United States Court of Appeals
For the First Circuit
No. 97-1550
ALAN BASCH, ROBERT EISENBERG, SUSAN WINSPEAR, PETER COUTU,
THOMAS HOWELL, WILLIAM JORGENSEN, DIANA KURTZ, SCOTT SEENEY,
SHANO EZZELL, ANDREW CHAPMAN AND WILLIAM CONNELLY,
Plaintiffs, Appellants,
v.
THE GROUND ROUND, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Lynch, Circuit Judge.
Jonathon J. Margolis, with whom Sara Fleschner and
Kushner & Sanders were on brief, for appellants.
Edward P. Leibensperger, with whom Christa Von Der Luftand Nutter, McClennen & Fish were on brief, for appellee.
March 17, 1998
LYNCH, Circuit Judge. This case involves the
intersection of the ADEA statute of limitations and the special
tolling rules which may apply when the plaintiffs are within a
class alleged but not certified in earlier ADEA actions. The
plaintiffs are eleven people, all over 40 years old, who lost
their management level jobs at The Ground Round. In all,
members of this group, represented by the same counsel, have
filed four different actions accusing Ground Round of age
discrimination. If this, the fourth action, is untimely, then
the district court correctly entered summary judgment.
This action is untimely if the plaintiffs' otherwise
concededly untimely claims are not saved by the fact that there
were two prior lawsuits with class action allegations, and
plaintiffs were within the classes alleged. We hold that this
stacking of two class actions does not save the plaintiffs'
claims. We affirm.
I.
This is the fourth lawsuit by former Ground Round
employees alleging class-wide age discrimination by Ground
Round. Each action described the same set of events and
asserted essentially the same class. The first such action,
Dionne v. Ground Round, was filed in Massachusetts state court
and removed by Ground Round to federal court based on
plaintiffs' ADEA claims. The Dionne plaintiffs sought class
certification, which the district court denied on July 6, 1994.
The Dionne plaintiffs then voluntarily dismissed their ADEA
claims and successfully moved to remand the case to state
court.
The second action, Halligan v. Ground Round, was filed in
federal district court on November 22, 1993. As of the time
the complaint in this case was filed, the Halligan plaintiffs
still had not moved for class certification. On December 21,
1995, after the complaint in this case was filed, the Halliganplaintiffs voluntarily dismissed their ADEA claims and the
action was dismissed.
After the district court denied class certification in
Dionne, but before remand to state court, several members of
the putative class sought to intervene in that action. The
district court denied their motion, at which point the would-be
intervenors filed the third related lawsuit, Winspear v. Ground
Round, in state court alleging only state-law causes of action.
Seven of the plaintiffs in the Winspear action are plaintiffs
here. The Massachusetts Superior Court granted Ground Round's
motion for summary judgment in Winspear without reaching the
merits.
Plaintiffs here filed this action against Ground Round on
October 6, 1995, alleging that Ground Round instituted a
company-wide policy of dismissing older management workers and
replacing them with younger workers, in violation of the ADEA.
Plaintiffs claimed to represent a class of similarly situated
former Ground Round employees.
The plaintiffs here claim to represent the class of "all
past, present and future managerial employees of Ground Round,
who have been or may be terminated from their employment on the
basis of age," not including those who left Ground Round's
employ before January 1, 1990. The Dionne, Halligan, and
Winspear complaints defined the putative class in a nearly
identical manner.
Ground Round moved for summary judgment on several
grounds. First, relying on the Massachusetts Superior Court's
dismissal of the Winspear action to which seven of the present
plaintiffs were parties, Ground Round argued that the claims of
those seven plaintiffs were barred by the doctrine of res
judicata. The district court rejected this argument based on
its conclusion that the Winspear action was dismissed for
procedural reasons, and not on its merits.
Defendant's second argument for summary judgment was that
the claims of seven plaintiffs were barred because those
plaintiffs failed to file administrative charges with the EEOC
within 300 days of their discharge from employment, as required
by the ADEA. The seven plaintiffs admit that they did not
file administrative charges within the requisite time period,
but argue that their claims are nevertheless saved by the
"single-filing rule" adopted by the majority of circuits, but
not yet addressed by this circuit. That rule, also referred to
as "piggybacking," permits plaintiffs who have failed to file
administrative charges, or who have filed untimely charges, to
"piggyback" on the timely-filed charges of other plaintiffs,
provided the timely-filed charge gives the EEOC and the
employer adequate notice of allegations of class-wide
discrimination. See Grayson v. K Mart Corp., 79 F.3d 1086,
1101-02 (11th Cir. 1996); Howlett v. Holiday Inns, Inc., 49
F.3d 189, 194 (6th Cir. 1995); Anson v. University of Tex.
Health Science Ctr., 962 F.2d 539, 541-42 (5th Cir. 1992);
Tolliver v. Xerox Corp., 918 F.2d 1052, 1057-59 (2nd Cir.
1990); Kloos v. Carter-Day Co., 799 F.2d 397, 400-401 (8th Cir.
1986).
Defendant also argued that even if the single-filing rule
were adopted, plaintiffs' claims would still be barred because
the timely-filed administrative charges on which plaintiffs
rely provided inadequate notice of class-wide allegations.
See Kloos, 799 F.2d at 400 ("To be faithful to the purposes of
the filing requirement, an administrative charge must allege
class-wide age discrimination or claim to represent a class in
order to serve as the basis for an ADEA class action . . . .").
The district court found that this circuit would adopt the
majority rule, but accepted defendant's argument that the
single-filing rule offered plaintiffs no refuge here because
the underlying charges contained no allegations of class-wide
discrimination.
Defendant's final argument for summary judgment was that
the claims of all of the plaintiffs were time-barred for
failure to file their complaint within 90 days of receiving
notice from the EEOC of termination of its proceedings, as
required by the ADEA. The EEOC proceedings on plaintiffs'
charges terminated at various dates between July 21, 1993, and
January 4, 1995. This action was filed on October 6, 1995,
long after the 90-day period had expired for all plaintiffs.
Plaintiffs concede they all missed the 90-day deadline
for filing their complaint, but seek shelter in the statute of
limitations tolling rule announced in American Pipe & Const.
Co. v. Utah, 414 U.S. 538 (1974), and reiterated in Crown, Cork
& Seal Co. v. Parker, 462 U.S. 345 (1983). Those cases held
that "the commencement of a class action suspends the
applicable statute of limitations as to all asserted members of
the class who would have been parties had the suit been
permitted to continue as a class action." American Pipe, 414
U.S. at 554. Plaintiffs argue that the filing of the
Dionne and Halligan actions suspended the running of the
statute of limitations for plaintiffs, who would have been
members of the Dionne and Halligan classes had class
certification been granted in those cases. The district court
accepted the application of the American Pipe tolling rule, but
rejected plaintiffs' argument that the rule saved their claims
in this case.
Assuming arguendo that the American Pipe and Crown, Corktolling rules apply to ADEA actions, we nevertheless find that
plaintiffs' claims are time-barred. We do not reach the merits
of the res judicata or single-filing rule arguments.
II.
In American Pipe the Supreme Court balanced the policies
served by the class action rule, Fed. R. Civ. P. 23, and the
policies served by the statute of limitations. The case arose
under the Sherman Antitrust Act, and was brought as a putative
class action. After the district court denied class
certification, several would-be class members moved to
intervene. Although the applicable statute of limitations had
run as to the intervenors, the Supreme Court held that their
claims were not time-barred because the filing of the putative
class action tolled the statute of limitations as to all
alleged class members until the district court denied
certification, "at least where class action status has been
denied solely because of failure to demonstrate that the class
is so numerous that joinder of all members is impracticable."
Id. at 552-53 (internal quotation marks omitted).
In Crown, Cork, a Title VII case, the Court reaffirmed
the American Pipe tolling rule and extended it to apply not
only to plaintiffs who seek to intervene in the pending action,
but also to would-be class members who file actions of their
own. See id. at 349-50. The Court also did not limit its
holding to instances when the class certification was denied
solely on numerosity grounds.
A logical initial question is whether the Crown, Corkrule for Title VII cases also applies to ADEA cases. Defendant
argues that these tolling rules do not apply to ADEA
plaintiffs. This argument is grounded in the fact that both
American Pipe (a Sherman Act case) and Crown, Cork (a Title VII
case) arose in the context of class actions brought under Fed.
R. Civ. P. 23. Rule 23 provides that all members of a class
are included in the action and are bound by the judgment unless
they "opt out" of the action by affirmatively requesting
exclusion. The ADEA, in contrast, adopts the enforcement
procedures of the Fair Labor Standards Act, see 29 U.S.C.
201-219, which provides for an "opt in" procedure for class
actions, requiring individuals to affirmatively file consent to
the action in order to be a member of the class. See 29 U.S.C.
216(b), 626(b). Defendant contends that the difference
between these two procedures results from different policy
considerations, and that the rationale behind the American Pipeand Crown, Cork tolling rules does not apply in the context of
"opt in" class actions.
The courts of appeals that have addressed this issue have
split on the outcome. Compare Sperling v. Hoffman-La Roche,
Inc., 24 F.3d 463, 471-72 (3rd Cir. 1994) (opt-in plaintiff may
join ADEA action after limitations period for that individual
plaintiff has run if the representative plaintiffs' actions are
timely) with Grayson, 79 F.3d at 1106 (opt-in ADEA plaintiffs
must meet the statute of limitations and may not rely on filing
of class action complaint) and O'Connell v. Champion Int'l
Corp., 812 F.2d 393, 394 (8th Cir. 1987) (same). We consider
this an issue of some complexity, and we do not reach or
resolve it here. Even assuming that the American Pipe and
Crown, Cork tolling rules do apply to ADEA actions, we find
that the rules do not save plaintiffs' claims. This is because
plaintiffs' claims depend on the "stacking" of two sequential
class actions to keep their claims from being untimely. We do
not believe the tolling rules were meant to permit the stacking
of class actions.
In Crown, Cork, the Court stated that "[o]nce the statute
of limitations has been tolled, it remains tolled for all
members of the putative class until class certification is
denied," at which point "class members may choose to file their
own suits or to intervene as plaintiffs in the pending action."
462 U.S. at 354. In this case, the first class action relevant
is the Dionne action. The Dionne action was filed as a
putative class action on April 20, 1993, and the district court
denied class certification on July 6, 1994. Plaintiffs here
were within the class sought in Dionne. Applying American Pipeand Crown, Cork would toll the running of the 90-day
limitations period for each plaintiff from April 20, 1993,
until July 6, 1994. At that point, each plaintiff would have
had at most 90 days to move to intervene in that action or to
file an individual action. But plaintiffs did not do that.
The complaint in this action was filed on October 6, 1995, more
than 90 days after the denial of class certification in Dionne.
Plaintiffs argue that they are saved by the filing of the
Halligan putative class action. Halligan was filed in November
of 1993, after Dionne was filed but before the court had denied
class certification in Dionne. Halligan remained pending as an
asserted but not certified class action, plaintiffs not yet
having moved for class certification, on the day the instant
action was filed. Plaintiffs claim that because "at all
relevant times there was at least one class-action suit pending
against Ground Round, and each of the plaintiffs was a member
of the defined classes in those cases[, t]hose actions tolled
the statute of limitations." We disagree.
The Halligan complaint alleged the same class and the
same claims as did the Dionne complaint. In fact, the named
plaintiff, David Halligan, was active in the effort to attain
class certification in the Dionne action. Halligan submitted
an affidavit in support of the Dionne motion to certify a
class, in which he alleged age discrimination by Ground Round.
The policies -- respect for Rule 23 and considerations of
judicial economy -- which animated the Crown, Cork and American
Pipe tolling rules dictate that the tolling rules, if adopted
at all in ADEA cases, not permit plaintiffs to stretch out
limitations periods by bringing successive class actions.
Plaintiffs may not stack one class action on top of
another and continue to toll the statute of limitations
indefinitely. Permitting such tactics would allow lawyers to
file successive putative class actions with the hope of
attracting more potential plaintiffs and perpetually tolling
the statute of limitations as to all such potential litigants,
regardless of how many times a court declines to certify the
class. This simply cannot be what the American Pipe rule was
intended to allow, and we decline to embrace such an extension
of that rule. At least one of our sister circuits agrees. SeeSalazar-Calderon v. Presidio Valley Farmers Ass'n, 765 F.2d
1334, 1351 (5th Cir. 1985) ("Plaintiffs have no authority for
their contention that putative class members may piggyback one
class action onto another and thus toll the statute of
limitations indefinitely, nor have we found any."). On closely
related issues, each court of appeals to address the question
has reasoned similarly and rejected efforts by late plaintiffs
to resuscitate their claims through stacking of subsequent
class actions. See Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.
1988) (class action tolls statute of limitations only for
subsequent individual actions, not for subsequent class action
alleging similar class and similar claims); Robbin v. Fluor
Corp., 835 F.2d 213, 214 (9th Cir. 1987) (same); Korwek v.
Hunt, 827 F.2d 874, 879 (2d Cir. 1987) (same).
The dangers which Justice Blackmun warned against in his
concurring opinion in American Pipe are vividly demonstrated by
plaintiffs' theory. Justice Blackmun wrote separately to
stress that the Court's decision "must not be regarded as
encouragement to lawyers in a case of this kind to frame their
pleadings as a class action, intentionally, to attract and save
members of the purported class who have slept on their rights."
414 U.S. at 561 (Blackmun, J. concurring). This point was
emphasized by Justice O'Connor in her Crown, Cork concurrence,
in which she stated that "[t]he tolling rule of American Pipeis a generous one, inviting abuse." 462 U.S. at 354 (O'Connor,
J., concurring). Rational policy considerations led the
Congress to impose a statute of limitations on the bringing of
ADEA actions. After class certification has been denied in an
action, potential individual plaintiffs cannot extend that
limitations period by relying on successive class actions which
allege the same class and the same claims. Plaintiffs' claims
are therefore time-barred, and the district court properly
entered summary judgment in Ground Round's favor.
Affirmed. Costs to defendant.