IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-50982
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WILLIAM H. BETTCHER III,
Plaintiff-Appellant,
versus
THE BROWN SCHOOLS, INC., D/B/A THE BROWN SCHOOLS,
ALSO D/B/A THE BROWN SCHOOLS REHABILITATION,
Defendant-Appellee.
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Appeal from the United States District Court for the
Western District of Texas
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August 31, 2001
Before JOLLY, SMITH and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
William Bettcher wants us to breathe new life into his age
discrimination law suit, which was dismissed by the district court
for failure to file a timely charge with the EEOC. He argues that
the “single filing rule” rescues his claim. This carefully limited
exception to the ADEA charge-filing requirement will sometimes
allow a non-filing plaintiff to join the lawsuit of a similarly
situated litigant who has filed the statutorily mandated charge.
1
Bettcher, however, attempts to extend the rule to allow him to
predicate his federal law suit on someone else’s EEOC charge, even
when that person has not filed a lawsuit. Because Bettcher seeks
an extension of the single filing rule not contemplated by our
precedents, we AFFIRM the judgment of the district court.
I
In November 1997, appellee The Brown Schools terminated 29
employees in a broad-based reduction of its workforce. Appellant
Bettcher and co-worker Diane Roper were among those terminated.
Bettcher was 65 years old and Roper was 60.
On August 11, 1998, Roper (a female) filed a charge of
discrimination with the EEOC alleging sex and age discrimination.1
Bettcher never filed a charge. The EEOC forwarded Roper’s claim to
Brown Schools two weeks later, and the Schools filed a response.
In June 1999, 568 days after Bettcher and Roper were
terminated, the EEOC issued a determination, finding reasonable
cause to believe that Brown Schools had discriminated against Roper
and an unnamed male teacher in the Rehab Therapy Education
Department of Brown. This unnamed teacher was Bettcher. The
1
The charge alleged, in relevant part:
I was terminated from my position as Teacher and
Educational Diagnostician on November 21, 1997. I was
informed by James Dalzell, Chief Executive Officer, that
my position was eliminated. . . . Two younger, less
qualified teachers were retained. One was a male who
took over 2/3 of my duties and responsibilities. I
believe I have been discriminated against based on my
age, 60 years, and my sex, female . . .
2
determination was issued 268 days after the applicable 300-day
limitations period for filing a charge of discrimination had
passed. See 29 U.S.C. § 626(d). On July 22, 1999, conciliation
procedures began between Roper and Brown Schools. Roper and Brown
Schools eventually reached a conciliation agreement, but this
agreement did not include Bettcher.
Notwithstanding that Bettcher had never filed a charge of
discrimination, the EEOC nevertheless issued him a Right to Sue
notice on October 26, 1999.2 This notice referenced only Roper’s
charge and charge number. On January 27, 2000--over two years
after his discharge--Bettcher filed this suit, alleging
discrimination under Title VII, the Texas Commission on Human
Rights Act (“TCHRA”), and the Age Discrimination in Employment Act
(“ADEA”). Brown Schools removed the action to federal court, where
it filed a Motion to Dismiss alleging that Bettcher’s claims were
time-barred because no administrative charge was filed within 300
days of the last act of discrimination as required by the ADEA.
The district court, treating the motion to dismiss as a motion for
summary judgment, granted judgment in favor of Brown Schools,
finding that Bettcher’s claims were time-barred. The court further
held that Bettcher could not piggyback on Roper’s charge under the
single filing rule because the two were not “similarly situated”
under the law, Roper’s charge did not provide notice of the
2
The Texas Commission on Human Rights also issued a right to
sue letter thereafter.
3
collective or class-wide nature of the charge, and, as Roper never
filed a civil suit, “there [was] nothing for the plaintiff to
‘piggyback’ on.”
II
This court conducts a de novo review of a grant of summary
judgment, ensuring that no genuine issue of material fact exists
and that judgment in favor of the appellee was warranted as a
matter of law. Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th Cir.
2000).
The applicable law is straightforward. An individual cannot
take legal action in an ADEA case in Texas unless that individual
first files an administrative charge within 300 days of the last
act of discrimination. See Anson v. Univ. of Tex. Health Science
Ctr., 962 F.2d 539, 540 (5th Cir. 1992). Under the single filing
rule, however, an individual who has not filed an administrative
charge can “opt-in to a suit filed by any similarly situated
plaintiff under certain conditions.” Id. at 541; See also Mooney
v. Aramco Services Co., 54 F.3d 1207, 1223 (5th Cir. 1995).
The plaintiff must satisfy three conditions before he may
invoke the single filing rule. First, the plaintiff must be
“similarly situated” to the person who actually filed the EEOC
charge. See Anson, 962 F.2d at 541. Second, the charge must have
provided some notice of the “collective or class-wide nature of the
charge.” Id. at 541-43. Finally, a prerequisite--implicit to be
4
sure--for piggybacking under the single filing rule is the
requirement that the individual who filed the EEOC charge must
actually file a suit that the piggybacking plaintiff may join.
See, e.g., Mooney, 54 F.3d at 1224, n.22 (noting “we deem it
reasonable to permit them to join suit as long as the claimant on
whose administrative filing they have relied timely files suit
after receiving right-to-sue letters . . .” (citation omitted));
Anson, 962 F.2d at 541 (holding that “an individual who has not
filed an administrative charge can opt-in to a suit filed by any
similarly situated plaintiff”). While the single filing rule has
permitted a plaintiff to “join individual ADEA actions,” the rule
has never been utilized to allow a non-charging plaintiff to file
a separate suit based upon the charge of a party that has not filed
suit. Mooney, 54 F.3d at 1223. Such a reading would allow the
single filing exception to consume the statutory rule, which
clearly requires all ADEA plaintiffs to file a charge before filing
a lawsuit. In the absence of a lawsuit--properly supported by an
EEOC charge--that a non-charging individual can join, a would-be
plaintiff cannot invoke the piggyback rationale of the single
filing rule because, indeed, there is no civil action upon which to
piggyback.3
3
Bettcher argues that the purpose behind the single filing
rule applies even when the individual who filed the charge does not
actually file suit. The single file rule was first implemented in
the class action context because “it would be wasteful, if not
vain, for numerous employees, all with the same grievance, to have
to process many identical complaints with the EEOC.” Id. at 1223
5
In sum, no circuit court has ever authorized piggybacking on
an EEOC charge when the individual who filed the charge never
actually filed suit, and we decline to be the first to do so.
Therefore, the district court did not err in finding that the
single filing rule was inapplicable because Roper never filed a
civil action that Bettcher could join.4
III
Because Bettcher failed to file a timely charge of
discrimination with the EEOC to support his lawsuit, and because he
could not “join [an] individual ADEA action” under the single
filing rule, the district court was without jurisdiction to
entertain his age discrimination claims. The judgment of the
(citation omitted). The single filing rule has, however, only been
read to eliminate the need to file an EEOC charge when the purposes
behind the charge-filing requirement have been met. In this case,
the primary purpose underlying the EEOC charge requirement--to give
the employer “prompt notice” of an impending claim--was not
satisfied. Zipes v. TWA, 455 U.S. 385, 398 (1982). The record
reveals that Brown Schools did not receive notice that Bettcher was
making a claim until after the EEOC issued its determination, which
was more than 500 days after Bettcher was terminated. Bettcher’s
argument that Brown Schools was on notice of his claim earlier
because his name was included on a list of almost 30 employees
terminated along with Roper is unconvincing. Given that the
statute requires that a charge be filed within 300 days, and given
that Brown Schools had no notice of Bettcher’s actual claim until
the EEOC included him in its determination in June 1999, we cannot
say that Brown Schools received “prompt notice” of Bettcher’s claim
against it.
4
Even if Roper had filed a lawsuit, we nevertheless doubt that
the facts of this case would allow Bettcher to invoke the single
filing rule because Roper’s EEOC charge contained no collective or
class-wide allegations of discrimination. See Anson, 962 F.2d at
542.
6
district court is therefore
A F F I R M E D
7