Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
6-2-1995
Whalen v Grace
Precedential or Non-Precedential:
Docket 94-5503
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"Whalen v Grace" (1995). 1995 Decisions. Paper 148.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/148
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-5503
WALTER R. WHALEN; IRENE W. RELEFORD; RONALD D. GLASGOW;
ALEXANDER G. DEPALMA; BEVELY M. HOPKINS; DONNA R. BAUGH;
JANET K. TURRELL; MARY A. PANARELLO; ROBERT K. WILLIAMSON
V.
W.R. GRACE & CO.; BAKER & TAYLOR, INC.; BAKER & TAYLOR
BOOKS CO.; THE CARLYLE GROUP; RAYMOND BARRATT;
JOHN DOE, 1-25, fictitious names; ROE & DOE, 1-25,
fictitious names; ABC CORP., 1-25, fictitious corporations
W. R. GRACE & CO. - CONN.; BAKER & TAYLOR BOOKS;
BAKER & TAYLOR, INC.; and RAYMOND BARRATT,
Appellants
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 93-00640)
Argued March 2, 1995
Before: GREENBERG, NYGAARD and McKEE, Circuit Judges
(Opinion Filed June 2, 1995)
EDWARD P. LYNCH, ESQUIRE
THERESA A. KELLY, ESQUIRE
Pitney, Hardin, Kipp & Szuch
P.O. Box 1945
Morristown, NJ 07962-1945
Attorney for Appellants
NEIL REISEMAN, ESQUIRE
GREGORY A. DEVERO, ESQUIRE
Reiseman & Sharp
Four Campus Drive
Parsippany, NJ 07054-0431
Attorney for Appellees
OPINION OF THE COURT
NYGAARD, Circuit Judge
This appeal arises from the district court's decision
to allow five age discrimination plaintiffs who had filed timely
charges with the Equal Employment Opportunity Commission to amend
their complaint to add four new plaintiffs who had not. Because
our case law requires that, outside the context of a
representative or class action under the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et seq., an individual plaintiff
must file a timely administrative charge, we will reverse and
remand.
I.
The original plaintiffs1, appellees herein, are all
over age forty and former employees of Baker & Taylor Books.
Each held a different position and worked at one of three
different company locations before being terminated from
employment during 1991. Each filed a timely charge of
discrimination with the EEOC, alleging that his or her layoff was
a result of a company-wide policy to rid itself of older workers.
On February 16, 1993, they filed this lawsuit in the United
States District Court for the District of New Jersey, alleging
violation of the ADEA and the New Jersey Law Against
Discrimination, N.J. Stat. Ann. § 10:5-12, et seq. However, they
did not file a class action, as permitted by ADEA § 7(b), 29
U.S.C. § 626(b).
1
. Walter R. Whalen, Irene W. Releford, Ronald D. Glasgow,
Alexander G. De Palma, and Bevely M. Hopkins.
Generally, under the ADEA, "[n]o civil action may be
commenced by an individual...until 60 days after a charge
alleging unlawful discrimination has been filed with the [EEOC]."
ADEA § 7(d), 29 U.S.C. § 626(d). It is undisputed that the five
original plaintiffs complied with this filing requirement.
However, on October 28, 1993, they moved under Fed. R. Civ. P. 15
to amend their complaint and add four new plaintiffs, Donna R.
Baugh, Janet K. Turrell, Mary A. Panarello and Robert K.
Williamson. These prospective plaintiffs are also over age 40
and former employees of Baker & Taylor who were terminated in
19912. They were employed in various positions and at various
locations, and also claim they were victims of a company-wide
push to eliminate older employees. The controversy before us
arises because none of these prospective plaintiffs filed timely
EEOC charges.
Section 7(b) of the ADEA incorporates the enforcement
"powers, remedies and procedures" of § 16(b) of the Fair Labor
Standards Act, 29 U.S.C. § 216(b), which provides, in relevant
part, that "[a]n action...may be maintained against any employer
(including a public agency) in any Federal or State court of
competent jurisdiction by any one or more employees for and in
behalf of himself or themselves and other employees similarly
situated."3 We have held previously that this provision allows
2
. The exception is new plaintiff Baugh, who was terminated in
1992.
3
. Unlike a class action under Fed. R. Civ. P. 23, under §16(b),
no person can become a party plaintiff and no person will be
bound by or may benefit from a judgment unless he or she has
aggrieved individuals who failed to file the required § 7(d) EEOC
charge to join a class action brought by a plaintiff who had
filed an EEOC charge alleging class-wide discrimination. Lusardi
v. Lechner, 855 F.2d 1062, 1077 (3d Cir. 1988); accord Lockhart
v. Westinghouse Credit Corp., 879 F.2d 43, 52 (3d Cir. 1989).
The appellees argue that this rule, known as the "single filing
rule," should be applied to ADEA non-class actions, allowing the
prospective plaintiffs to "piggyback" onto the timely
administrative charges filed by the appellees.
The Magistrate Judge denied the appellees' motion to
amend their complaint, holding that the single filing rule has
not been applied in this Circuit in ADEA cases that are not class
action suits; accordingly, the Magistrate Judge held that our
decisions in Lusardi and Lockhart require a plaintiff in a non-
class action suit, pursuant to ADEA §7(d), to have filed a
charge with the EEOC.
The district court reversed, following the analysis in
Tolliver v. Xerox Corp., 918 F.2d 1052 (2d Cir. 1990), cert.
denied, 499 U.S. 983, 111 S. Ct. 1641 (1991), which held that the
single filing rule applies to ADEA class and non-class actions
alike. See also Howlett v. Holiday Inns, Inc., 49 F.3d 189 (6th
Cir. 1995) (following Tolliver). The district court granted the
appellants' motion to certify the order granting leave to amend
(..continued)
affirmatively "opted into" the class by filing a written consent
with the court. Nowicki v. USX Corp., 672 F. Supp. 854, 855-56
(W.D. Pa. 1987) (citing La Chappelle v. Owens-Illinois, Inc., 513
F.2d 286, 288 (5th Cir. 1975)).
the complaint under 28 U.S.C. § 1292(b) as involving a
controlling question of law, on which there is substantial ground
for difference of opinion, and from which an immediate appeal may
materially advance the ultimate termination of the litigation.
In turn, we granted the appellants' petition for immediate
appeal.
II.
Because the narrow issue raised on this appeal involves
interpretation and application of legal principles, i.e., whether
the single filing rule is applicable to non-class action ADEA
lawsuits, our review is plenary. Epstein Family Partnership v.
Kmart Corp., 13 F.3d 762, 765-66 (3d Cir. 1994).
In Lusardi, we held that an individual EEOC filing is
not a prerequisite to opting into a § 16(b) action where the
representative plaintiff has filed a timely charge with the EEOC
that gives the employer notice that class-wide discrimination is
alleged. 855 F.2d at 1078. "So long as class issues are
alleged, a timely charge may serve as the basis for a class
action." Id. (emphasis added). However, we clearly
distinguished class actions from other situations where a
plaintiff seeks to "piggyback" onto a timely charge: "To view
opt-in suits under §16(b) as either permissive joinders or
efforts to intervene would necessarily require that the plaintiff
individually fulfill all of the prerequisites to suit." Id.
Similarly, in Lockhart, we recognized that ADEA §7(d)
requires a complainant to file a timely charge of discrimination
with the EEOC and the appropriate state agency. 879 F.2d at 52.
Ordinarily, a complainant who fails to file a timely charge is
barred from seeking relief. Id. (citations omitted). However,
we noted our decision in Lusardi as holding "that plaintiffs who
had not filed charges with the EEOC could opt into an ADEA class
action suit only if the original complainant's EEOC charge gave
the employer notice of class-based age discrimination." Id. at
52-53 (emphasis added).
Once again, we made clear that our holding was limited
to the context of §16(b) class actions. We held that the
district court erred by allowing two new plaintiffs, who had not
filed EEOC charges, to join the suit of the original plaintiff
because his EEOC charge did not give adequate notice of class-
based discrimination. Id. at 53. Significantly, however, we
also said that the district court erred in holding
that the joinder of Bradley and Wilson was
sanctioned by the permissive joinder rule of
Fed. R. Civ. P. 20(a). In Lusardi, we recog-
nized that opt-in class action suits had been
analogized to permissive joinder and
intervention, but rejected such comparisons
.... Moreover, we note that Bradley and
Wilson could not have been joined pursuant to
Fed. R. Civ. P. 20(a), in any event, since
neither one had fulfilled the administrative
requirement of filing his own timely charge
with the EEOC.
Id. n. 11.
Here, the appellees have not brought a § 16(b) class
action, nor obviously, could the four prospective plaintiffs have
filed written consents "opting into" such an action. The
appellees instead sought to amend their complaint pursuant to
Rule 15(a) to add four new party plaintiffs who had failed to
pursue administrative remedies. Allowing the amendment for this
purpose would create the same result as permissive joinder or
intervention -- application of the single filing rule outside the
context of a §16(b) class action -- which we rejected in Lusardi
and Lockhart.
Appellees argue that the following passage in Lusardi
supports their argument that the single filing rule applies to
non-class actions:
Although the EEOC charge does not use the
words "similarly situated" or allege speci-
fically that a class action is going to be
brought, we fail to see how [the defendant]
can claim prejudice by the bringing of a
class action. The charge clearly notifies
[the defendant] that it allegedly discrimi-
nates against persons over forty years old as
a class. Accordingly, the charge provides
sufficient notice to the parties to encourage
meaningful conciliation, the purpose of
requiring it....So long as class issues are
alleged, a timely charge may serve as the
basis for a class action.
Lusardi, 855 F.2d at 1078 (citation omitted) (emphasis added).
Appellees' reliance on this passage is misplaced, because it
states merely that a plaintiff is not required to file a "class
charge," only allege class issues that may subsequently form the
basis for a "class action." There is no suggestion that filing a
charge with allegations broad enough to support a subsequent
class action lawsuit alleviates the burden of filing the class
action itself, with the attendant requirement of class
certification.
The district court acknowledged that Lusardi and
Lockhart indicate that the single filing rule does not apply to
non-class actions; however, it was persuaded by the analysis in
Tolliver, supra, which held that the single filing rule applies
equally to ADEA individual and class actions. We conclude,
however, that our analysis in Lusardi and Lockhart controls our
decision here, and provides plaintiffs the option of seeking
class certification and prospective plaintiffs who failed to seek
a timely administrative remedy for their alleged injury the
opportunity to opt into the class. When, however, plaintiffs
choose to bring suit individually, they must first satisfy the
prerequisite of filing a timely EEOC charge.
Accordingly, we will reverse and remand the cause to
the district court with instructions that it deny appellees'
motion to amend their complaint.