[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 96-5131
________________________
D. C. Docket Nos. 93-2247-CIV-MOORE
94-0734-CIV-MOORE
EDWARD GITLITZ,
Plaintiff-Appellant,
versus
COMPAGNIE NATIONALE AIR FRANCE,
Defendant-Appellee.
---------------------------------------------
JOE F. COLLINS,
Plaintiff-Appellant,
versus
COMPAGNIE NATIONALE AIR FRANCE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 19, 1997)
Before ANDERSON, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Plaintiffs-Appellants Edward Gitlitz and Joe F. Collins
brought suit against their former employer, Compangie Nationale Air
France, alleging violations of the Employee Retirement Income
Security Act of 1974 (ERISA) and the Age Discrimination in
Employment Act of 1967 (ADEA). The district court dismissed
Collins’s ADEA claims and granted summary judgment for the
defendant with respect to the ERISA claims of both plaintiffs.1
I. Facts and Procedural History
Edward Gitlitz and Joe F. Collins were employed as outside
sales representatives for Air France for 35 and 22 years,
respectively. In 1993, Air France implemented a new personnel
structure which eliminated their positions as salaried outside
sales representatives, but offered them the opportunity to continue
doing essentially the same jobs as independent contractors, known
as Business Development Attaches (“BDA’s”). Some representatives,
such as the plaintiffs, also satisfied the age and service
requirements to qualify for early retirement and receive pension
benefits.2 However, under the new structure, they were not
1
The district court denied the defendant’s motion for
summary judgment on Gitlitz’s ADEA and Florida Civil Rights
Act claims. These matters are not before us on appeal. The
other issues are properly before us pursuant to an
order of partial final judgment by the district court.
Fed.R.Civ.P. 54(b).
2
Plaintiff Gitlitz was 59 years old and Plaintiff Collins
was 56 years old when the positions were eliminated.
2
permitted to take early retirement and begin receiving pension
benefits and also become independent contractors/BDAs; they were
forced to choose one or the other.3
Plaintiffs filed their respective complaints in 1994, alleging
that Air France’s elimination of their sales representative
positions and the manner in which it was done constituted
discrimination in violation of the ADEA and ERISA.
Gitlitz filed timely ADEA administrative charges with the EEOC
and filed suit in district court within 90 days of receiving a
right-to-sue letter from the EEOC. Collins also filed ADEA
administrative charges with the EEOC. The EEOC issued a no-cause
determination and right-to-sue letter which Collins received on
November 15, 1993. The letter stated that Collins had 90 days
within which to file suit. After contacting his congressman,
Collins received a second right-to-sue letter on January 28, 1994,4
which rescinded the first letter and stated that Collins had
another 90 days within which to file suit. On April 15, 1994,
Collins filed his complaint in district court. Concluding that
3
The defendant claims that the plaintiffs “opted
voluntarily to participate in an enhanced early
retirement plan.” The plaintiffs characterize the
situation as forced retirement or forfeiture of their
ERISA benefits. Both sides agree that the sales
representatives could not exercise both options.
4
Upon receipt of this second letter, Collins had
approximately 16 or 17 days left of the 90 day statutory period
triggered by the first letter.
3
Collins’s second EEOC letter was ineffective, the district court
dismissed Collins’s ADEA claim as untimely.
The district court denied Air France’s motion for summary
judgment on the ADEA claim of Gitlitz, holding that he had raised
a triable question of fact on the issue of pretext in Air France’s
employment decision.
The district court granted summary judgment on the ERISA
claims as to both plaintiffs.5
II. Summary Judgment Standard
This Court applies a de novo standard of review to a
district court’s grant of summary judgment. See, e.g., Scala v.
City of Winter Park, 116 F.3d 1396, 1398 (11th Cir. 1997).
Summary judgment is appropriate if the record shows no genuine
issue of material fact and that the moving party is entitled to
judgment as a matter of law. Id. “All evidence and reasonable
factual inferences drawn therefrom are reviewed in the light most
favorable to the party opposing the motion.” Warren v. Crawford,
927 F.2d 559, 561-62 (11th Cir. 1991) (citations omitted).
III. Discussion
A. Collins’s ADEA Claim
Collins appeals the district court’s dismissal of his ADEA
claim as untimely. He argues that even if his claim was not timely
filed, he should be entitled to equitable tolling based on his
5
The district court adopted in part and amended in part
the Report and Recommendation of United States Magistrate Judge
Ted E. Bandstra dated June 1, 1995.
4
reliance on the second letter he received from the EEOC. However,
because plaintiff did not fairly present this equitable tolling
argument to the district court, we decline to entertain the
argument for the first time on appeal.
With regard to his other arguments, we must first determine
whether Collins’s second letter, received on January 28, 1994, was
effective. The parties agree that under the applicable law the
second EEOC letter was effective if issued pursuant to an EEOC
reconsideration of the merits, but was not effective if there was
no reconsideration. Gonzales v. Firestone Tire and Rubber, 610
F.2d 241, 246 (5th Cir. 1980) (“The EEOC may issue a second ninety-
day right-to-sue notice upon completion of a discretionary
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reconsideration of a prior determination.”). See also Lute v.
Singer Co., 678 F.2d 844, 846 (9th Cir. 1982); Trujillo v. GE Co.,
621 F.2d 1084, 1087 (10th Cir. 1980).
Our review of the summary judgment record persuades us that
there is no genuine issue of fact with regard to this issue: there
was no reconsideration by the EEOC. There is no indication that
additional evidence was before the EEOC. There was no request that
the EEOC reconsider on the merits. The only evidence of any
communication between the parties and the EEOC is an inference that
Collins’s congressman may have called the EEOC in response to
6
This Court adopted as binding precedent all of
the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).
5
Collins’s request that he assist in obtaining an extension of time.
Neither the second EEOC letter nor the cover letter accompanying it
indicates that it was the culmination of a reconsideration. To the
contrary, the cover letter said that “[t]he Determination is re-
issued as of this date” (emphasis added). The term “re-issue”
suggests that the original determination was merely issued again
with a new date. Moreover, the second EEOC letter is a verbatim
copy of the first letter except for a single difference -- i.e.,
the date. The relevant regulations, 29 C.F.R. 1601.21(b) and (d),
contemplate that “[i]n cases where the Commission decides to
reconsider a dismissal or a determination finding reasonable cause
to believe a charge is true, a notice of intent to reconsider will
promptly issue.” Neither party in this case received a notice of
intent to reconsider; rather they received only a verbatim copy of
the initial letter with a new date. Under all of these
circumstances, we do not believe a factfinder could conclude that
the EEOC reconsidered this case on the merits.
Collins argues that even if the second EEOC letter is
ineffective, he should nevertheless be permitted to attach his
claim to Gitlitz’s under the single-filing rule. It is clear that
a plaintiff who has not filed an EEOC charge may “piggyback” on the
timely filing of an EEOC charge by another plaintiff who faced
similar discriminatory treatment in the same time frame. Calloway
v. Partners National Health Plans, 986 F.2d 446, 449 (11th Cir.
1993); Grayson v. Kmart Corp., 79 F.3d 1086, 1101 (11th Cir. 1996)
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(finding that the single-filing rule applies to ADEA claims), cert.
denied, __ U.S. __, 117 S. Ct. 447 (1996).
Collins argues that it would be ironic to find that the case
law permits a plaintiff who has not filed an EEOC charge to
“piggyback” his claim, but then to deny the “piggyback” option to
a plaintiff who has exercised somewhat more diligence by filing an
EEOC charge although failing to follow through with a timely suit.
The Eighth Circuit addressed and rejected just such an argument:
It is somewhat ironic, however, that [a person], who did
not even file an administrative charge, is permitted to
continue in this action while the others have been
dismissed, and we believe that result requires a brief
explanation. . . . Our decision . . . permitted
plaintiffs who had not filed administrative charges to
“piggyback” on the timely filing of an administrative
charge filed by another claimant who purported to
represent the interests of a class of similarly situated
employees. . . . For those plaintiffs who have never
filed an administrative charge and who are allowed to
piggyback on the filed claim of another, 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 . . . .
Those plaintiffs who do file administrative charges,
however, should be bound by the statute of limitations,
which is normally stated in the right-to-sue letter. . .
. [O]nce they file separate administrative charges, they
cannot rely any further on the other claimant’s actions
and must timely file suit after receiving their right-to-
sue letters. Thus, any claimant who files an
administrative charge and receives a right-to-sue letter
from the EEOC must file suit within ninety days after
receiving that letter to preserve the cause of action.
Anderson v. Unisys Corp., 47 F.3d 302, 308-09 (8th Cir.), cert.
denied, __ U.S. __, 116 S.Ct. 299 (1995). Similarly, the Fifth
Circuit concluded that “where the party wishing to piggyback has
filed his own EEOC charge,” he is “bound by the parameters of his
7
own EEOC charge, and cannot subsequently utilize the single filing
rule to avoid the statute of limitations.” Mooney v. Aramco
Services Co., 54 F.3d 1207, 1223-24 (5th Cir. 1995).
We agree with the reasoning of the Eighth Circuit and the
Fifth Circuit. In fashioning the ADEA statute of limitations,
Congress carefully balanced the interests of plaintiffs and the
interests of employers. A plaintiff who has not filed an
individual EEOC charge may invoke the single-filing rule where such
plaintiff is similarly situated to the person who actually filed an
EEOC charge, and where the EEOC charge actually filed gave the
employer notice of the collective or class-wide nature of the
charge. In such circumstances, it is reasonable from the
perspective of the employer’s interests and the interests of
economy of administration within the agency to permit such a
plaintiff to rely upon the other claimant’s EEOC charge. However,
where a plaintiff has filed an individual EEOC charge, such a
plaintiff should be required to rely upon his or her own EEOC
charge, and cannot reasonably rely upon the other claimant’s
charge. Thus, we conclude that Collins may not “piggyback” onto
Gitlitz’s ADEA claim.
For the foregoing reasons, we affirm the district court’s
dismissal of Collins’s ADEA claim.
B. ERISA Claims
Both Collins and Gitlitz claim that their termination was a
violation of ERISA § 510 which makes it unlawful to “discharge,
fine, suspend, expel, discipline, or discriminate against a
8
participant or beneficiary [of an employee benefit plan] . . . for
the purpose of interfering with the attainment of any right to
which such participant may become entitled under the plan. . . .”
29 U.S.C. § 1140. This section prohibits interference with
present pension benefits and also protects against interference
with future entitlement to receive the same. See Inter-Modal Rail
Employees Assoc. v. Atchison, Topeka and Santa Fe R.R. Co., __ U.S.
__, 117 S. Ct. 1513, 1515 (1997); Clark v. Coats & Clark, 990 F.2d
1217. 1222 (11th Cir. 1993) (“Section 510 . . . protects the right
. . . to accrue additional vested benefits.”)
Clark v. Coats & Clark articulated the Eleventh Circuit test
for demonstrating a violation of § 510:
The ultimate inquiry in a § 510 case is whether the
employer had the specific intent to interfere with the
employee’s ERISA rights. . . . A plaintiff is not
required to prove that interference with ERISA rights was
the sole reason for the discharge but must show more than
the incidental loss of benefits as a result of a
discharge. . . . This burden can be met either by showing
direct proof of discrimination or by satisfying the
scheme for circumstantial evidence established by
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L.Ed.2d 668 (1973), and restated in Texas
Department of Community Affairs v. Burdine, 450 U.S. 248,
253-54, 101 S. Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981).
990 F.2d at 1222-23. Under the McDonnell Douglas scheme, the
plaintiff must demonstrate a prima facie case of discrimination,
which creates a presumption of discrimination. The defendant then
must articulate a legitimate nondiscriminatory reason for his
conduct. If the defendant does so, the presumption of
discrimination disappears, and in order to prevail the plaintiff
9
must demonstrate that the reason given was a mere pretext for
discrimination. Id. at 1223.
Clark v. Coats & Clark also articulated the test for a prima
facie case:
In the context of a §510 claim alleging unlawful
discharge, a plaintiff may establish a prima facie case
of discrimination by showing (1) that he is entitled to
ERISA’s protection, (2) was qualified for the position,
and (3) was discharged under circumstances that give rise
to an inference of discrimination. . . . To satisfy the
last element the plaintiff does not have to prove
discriminatory intent but must introduce evidence that
suggests interference with ERISA rights was a motivating
factor. . . . The plaintiff, however, cannot establish a
prima facie case merely by showing that, as a result of
the termination, he was deprived of the opportunity to
accrue more benefits. . . . Moreover, measures designed
to reduce costs in general that also result in an
incidental reduction in benefit expenses do not suggest
discriminatory intent. . . . Instead the employee must
introduce evidence suggesting that the employer’s
decision was directed at ERISA rights in particular.
Id. at 1223-24.
In Seaman v. Arvida Realty Sales, 985 F.2d 543 (11th Cir.
1993), we held that a company’s reclassification of employees as
independent contractors could, if done with specific intent to
interfere with the employees’ future ERISA benefits, give rise to
a violation of § 510.
In this case the district court held that the plaintiffs
failed to demonstrate a violation of § 510. After a careful review
of this summary judgment record, we disagree. We readily conclude
that plaintiffs have created genuine issues of fact with respect to
the prima facie case. Plaintiffs are clearly entitled to ERISA’s
protection and qualified for the job, thus satisfying the first two
10
prongs. For the reasons discussed below, we also conclude that
plaintiffs have satisfied the third prong by adducing sufficient
evidence to create a genuine issue of fact on the issue of whether
Air France reclassified them from employees to independent
contractors with specific intent to interfere with their ERISA
benefits. Air France has articulated what it asserts to be a
legitimate business reason for its actions -- i.e., that it
reclassified plaintiffs and the other outside sales representatives
in order to motivate the sales force. Thus, the issue before us is
whether plaintiffs have adduced sufficient evidence to create a
genuine issue of fact as to whether Air France’s purported reason
was a pretext for discrimination, or, in other words, whether Air
France had a specific intent to interfere with employees’ ERISA
rights.
After a careful review of this summary judgment record, we
conclude that plaintiffs have adduced evidence from which a
factfinder could reasonably find that Air France conceived and
implemented the BDA structure for the specific purpose of
interfering with the ERISA rights of plaintiffs and others
similarly situated. It is clear that plaintiffs were entitled to
continue accruing ERISA benefits in their previous status as
employees, but were excluded from all ERISA plans in the
independent contractor status of BDA. Plaintiffs have adduced
evidence from which a factfinder could find that the change of
status was accompanied by no substantial change in the job
function, in the manner the job was expected to be performed, in
11
the supervisors, or in the control exercised by the supervisors.
There is also a genuine issue of fact as to whether the BDA program
would save future ERISA costs for Air France, and the extent of any
such savings. The only business reason for the change which has
been asserted by Air France is that its purpose was to motivate the
sales force. However, counsel for plaintiffs, in deposing the two
Air France managers who apparently were involved in the decision,
pressed each for an explanation of how the BDA structure operated
to enhance such motivation in a manner not also equally feasible in
an employee status. Neither provided an intelligible answer.
Similarly, at oral argument in this Court counsel for Air France
was unable to provide an intelligible answer to that question. Our
careful review of this summary judgment record reveals no apparent
way in which the independent contractor status, as implemented in
this case, served to enhance motivation in a manner not equally
feasible in an employee context.7 The only feature of the new BDA
structure which apparently would serve to increase motivation was
an increased reliance on a bonus method of compensation, a method
which is as readily adapted to employee status as to independent
contractor status.
7
We expressly leave open the possibility that
some other formulation of job functions and
responsibilities in an independent contractor context
might constitute a legitimate business reason and rebut
any inference of specific intent to interfere with
ERISA rights. We hold only that the BDA program as
implemented in this record and in conjunction with the
other evidence in this record leaves a genuine issue of
fact as to such specific intent.
12
Under all the circumstances revealed by the instant record, we
conclude that a factfinder could find that Air France’s asserted
business reason is a pretext, and that Air France did have a
specific intent to deprive plaintiffs, and others similarly
situated, of their right to accrue future ERISA benefits. This
would violate § 510. Clark v. Coats & Clark, supra, 990 F.2d at
1222; Seaman v. Arvida, supra, 985 F.2d at 545-47.
Accordingly, with respect to plaintiffs’ ERISA claims, we
reverse the grant of summary judgment and remand the case to the
district court for further proceedings.
IV. Conclusion
We affirm the district court’s dismissal of Collins’s ADEA
claim. We reverse the district court’s grant of summary judgment
on the ERISA claims of both plaintiffs, and remand these claims.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
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