Hargett v. Valley Federal Savings Bank

United States Court of Appeals,

Eleventh Circuit.

Nos. 94-6254, 94-6368.

Alpha W. HARGETT, III, Plaintiff-Appellant,

v.

VALLEY FEDERAL SAVINGS BANK, Defendant-Appellee.

Aug. 4, 1995.

Appeals from the United States District Court for the Northern
District of Alabama. (No. 92-B-2279 NW), Sharon Lovelace Blackburn,
Judge.

Before CARNES, Circuit Judge, JOHNSON, Senior Circuit Judge, and
HOBBS*, Senior District Judge.

HOBBS, Senior District Judge:

This consolidated appeal arises from two EEOC claims filed

respectively before Judge Blackburn and Judge Hancock in the

Northern District of Alabama. The appeal requires determinations

whether the age discrimination claim, which was filed before Judge

Blackburn, and the retaliation claim, which was filed before Judge

Hancock, were timely filed with the EEOC.

Alpha W. Hargett filed the age discrimination claim and the

retaliation claim against his former employer, the Valley Federal

Savings Bank ("Valley"). Hargett appeals Judge Hancock's order

granting Valley's Motion for Summary Judgment in the retaliation

action. Hargett also appeals the following orders in the case

before Judge Blackburn: the order denying Hargett's Motion to

Amend his complaint; the order granting Valley's Motion for Leave

to Amend its answer; and the portion of Judge Blackburn's order

*
Honorable Truman M. Hobbs, Senior U.S. District Judge for
the Middle District of Alabama, sitting by designation.
granting Valley's Motion for Summary Judgment in which the court

held that Hargett's EEOC charge alleging age discrimination was

untimely filed.1 For the reasons hereinafter stated, we affirm the

decisions of Judge Blackburn and reverse the decision of Judge

Hancock.

I. STATEMENT OF THE CASE

A. FACTS

Valley employed Hargett, on June 13, 1990, as a probationary

employee. Hargett has had banking experience in the conventional

home mortgage market, and Valley hired him expecting that business

in the conventional home mortgage market would improve, although it

had been in a state of depression in the area since 1989. Hargett

was laid off on November 15, 1990, a few days after his forty-first

birthday.2 Valley advised him that a continuation of the depressed

market caused his termination.

In early 1991, Hargett returned to Valley on personal

business. He found that Regina Richards, age 31, was occupying his

former office and purportedly was performing his former duties. On

November 15, 1991, Hargett filed an EEOC "Intake Questionnaire,"

representing that Valley had discriminated against him on the basis

of his age on November 15, 1990. On February 11, 1992, Hargett

1
Hargett does not appeal Judge Blackburn's grant of Valley's
Motion for Summary Judgment on the merits of Hargett's age
discrimination claim. However, Hargett insists that Judge
Blackburn was in error in her order that the retaliation claim
required a timely EEOC filing. Hargett argues that under the
Gupta rule, the retaliation claim attaches to the original EEOC
claim for age discrimination without any second EEOC filing.
Gupta v. East Texas State Univ., 654 F.2d 411, 414 (5th Cir.
(Unit A) Aug. 1981).
2
Hargett's date of birth is November 3, 1949.
filed a sworn charge of discrimination with the EEOC alleging

discrimination on the basis of age and sex, and citing November 15,

1990, as the date of the most recent discrimination. On April 15,

1992, Hargett wrote Frank Donsbach, the Senior Vice-President at

Valley, requesting reinstatement. Donsbach replied on April 21,

1992, informing Hargett that they were seeking to hire persons with

outside loan experience, but that he was not a candidate for

employment with Valley. On May 20, 1992, Hargett forwarded a

newspaper clipping dated May 10, 1992, to an EEOC investigator,

calling to his attention that Valley had recently hired Steve

Nesbitt into a loan officer's position. On September 25, 1992,

Hargett filed his age discrimination claim in district court.

On May 19, 1993, in aid of his age discrimination suit,

Hargett deposed Donsbach, Valley's corporate representative and

Vice-President. Donsbach's deposition testimony was as follows:

Q. Would you consider him [Hargett] for re-employment?

A. Probably not.

Q. Why is that?

A. Mainly because of what's going on here, I guess.

Q. When he filed the EEOC Charge, does that automatically knock Mr.
Hargett out of being considered for re-employment.

A. I don't know.

Q. Well, did it play a role?

A. It probably did.

(Donsbach Dep. at 34).

B. PROCEDURAL HISTORY

Hargett's pro se age discrimination suit alleged age

discrimination, in violation of 29 U.S.C. § 621 et seq. The case
was assigned to Judge Blackburn. Once Hargett retained counsel, he

amended the complaint on December 31, 1992. The amended complaint

alleged that Valley discriminated against Hargett on the basis of

age in "layoff, recall from layoff, job assignments ... as well as

other terms and conditions and privileges of employment." Valley

filed an amended answer on January 26, 1993, in which it admitted

the allegations contained in paragraph two of the amended complaint

which read as follows:

Plaintiff has fulfilled all conditions precedent to the
institution of this action under the Age Discrimination In
Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.
The Equal Employment Opportunity Commission attempted
conciliation of the age discrimination charge. Plaintiff
timely filed suit within ninety days of his receipt of the
Notice of Right to Sue and within two years of the occurrence
of the last discriminatory act.

On May 17, 1993, Valley moved for summary judgment as to the

merits and untimeliness of Hargett's first EEOC charge and

submitted its brief and supporting documentation thereto on July 2,

1993.

On July 2, 1993, Valley moved to amend its answer to

incorporate the defense of the statute of limitations, asserting

that Hargett failed to timely file a charge of discrimination with

the EEOC within the time prescribed by 29 U.S.C. § 626 and failed

to fulfill all conditions precedent to the maintenance of the

action.

The pretrial conference before Judge Blackburn was held on

July 6, 1993. Judge Blackburn entered the proposed pretrial order,

which counsel for the parties had drafted and submitted to her.

Under paragraph "5(f)" of the pretrial order, Valley included the

defense that Hargett's EEOC charge was untimely. Although Hargett
contends that Donsbach's deposition testimony on May 19, 1993,

shows that Valley had retaliated against him, he did not include

the retaliation claim in the pretrial order, nor did he represent

to the court at the pretrial conference that he intended to assert

such a claim. The trial before Judge Blackburn was scheduled for

September 27, 1993.

On July 5, 1993, Hargett filed a new EEOC charge alleging

retaliation against Valley. The EEOC issued a right to sue letter

on August 26, 1993. On September 17, 1993, Hargett commenced his

retaliation suit in district court, and the case was assigned to

Judge Hancock.

On December 6, 1993, Hargett filed a motion for consolidation

before Judge Hancock. On December 7, 1993, Judge Hancock ruled

that Hargett should have filed his consolidation motion before

Judge Blackburn, rather than before Judge Hancock. Hargett refiled

his motion to consolidate on December 13, 1993, with Judge

Blackburn.

Valley entered its first appearance in the action before Judge

Hancock on January 4, 1994, in a motion to dismiss or in the

alternative for summary judgment, contending that the EEOC charge

and suit were untimely. On January 4, 1994, Valley filed an

objection to the consolidation in Judge Blackburn's case and sought

to delay Judge Blackburn's ruling on consolidation until Judge

Hancock had considered Valley's pending motion to dismiss or in the

alternative for summary judgment.

On February 3, 1994, Hargett filed a "cross motion for summary

judgment" before Judge Hancock in his retaliation suit. Judge
Blackburn stayed consideration of the consolidation issue, which

was ultimately treated as moot when Judge Hancock held that

Hargett's retaliation claim was untimely filed. Judge Hancock

granted Valley's motion for summary judgment on February 25, 1994,

on two grounds. First, Judge Hancock ruled that Hargett became

aware of facts sufficient to place him on notice of a potential

retaliation claim by the April 21, 1992, correspondence to him from

Valley, confirming the bank's efforts to employ people with outside

loan experience. Accordingly, Judge Hancock held that Hargett's

EEOC retaliation charge was untimely, as it was not filed within

180 days of that time. Second, Judge Hancock held that Hargett's

independent retaliation action could not draw on ancillary

jurisdiction of the age discrimination case to support it because

the age discrimination case was not properly before him.

On March 9, 1994, Hargett filed a motion to amend the

complaint to add the retaliation claim in the case before Judge

Blackburn. Judge Blackburn issued a memorandum opinion and order

denying the motion on March 30, 1994. The court noted that Hargett

failed to include in the pretrial order his retaliation claim, of

which he was aware in May, 1993. Additionally, because Hargett had

not timely filed his age discrimination claim to which the

retaliation claim could otherwise append, the district court denied

Hargett's motion for leave to amend.

On March 30, 1994, Judge Blackburn also issued a separate

memorandum opinion granting Valley's motion to amend its answer,

which Valley had filed on July 2, 1993. On the same day, Valley

filed its amended answer, and Judge Blackburn granted Valley's
motion for summary judgment based on the merits that Hargett failed

to make a prima facie case of age discrimination and that Valley

had articulated a legitimate, non-discriminatory reason for

Hargett's discharge. Judge Blackburn also stated that Hargett's

failure to timely file a charge of age discrimination precluded his

suit altogether.

II. STATEMENT OF THE ISSUES

1. Did Judge Blackburn err in holding that Hargett's claim alleging
age discrimination in lay off was untimely filed.

2. Did Judge Blackburn abuse her discretion by denying Hargett's
motion to amend his age discrimination case to add a
retaliation claim.

3. Did Judge Blackburn abuse her discretion by allowing the
defendant Valley to amend its answer to assert the defense of
the statute of limitations after Valley had admitted in its
answer to the complaint that the procedural preconditions to
suit had been satisfied.

4. Did Judge Blackburn err in holding that the rehire claim was
time-barred.

5. Did Judge Hancock err in ruling that Hargett's retaliation claim
was untimely filed with the EEOC.

6. Did either court abuse its discretion in failing to rule on
Hargett's motion for consolidation.

III. STANDARD OF REVIEW

This court reviews de novo the district court's grant of a

motion for summary judgment. Edwards v. Wallace Community College,

49 F.3d 1517, 1520 (11th Cir.1995); Beavers v. American Cast Iron

Pipe Co., 975 F.2d 792 (11th Cir.1992). Summary judgment is

appropriate only where there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law.

Beal v. Paramount Pictures Corp., 20 F.3d 454, 458 (11th Cir.1994),

cert. denied, --- U.S. ----, 115 S.Ct. 675, 130 L.Ed.2d 607 (1994).
This court reviews the facts in the light most favorable to the

non-movant and resolves all factual disputes in favor of the

non-movant. Smith v. Jefferson Pilot Life Ins. Co., 14 F.3d 562,

566 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 57, 130

L.Ed.2d 15 (1994).

The district court's ruling on whether consolidation is

appropriate is reviewed under an abuse of discretion standard.
3
Whiteman v. Pitrie, 220 F.2d 914 (5th Cir.1955); DuPont v.

Southern Pac. Co., 366 F.2d 193 (5th Cir.1966), cert. denied, 386

U.S. 958, 87 S.Ct. 1027, 18 L.Ed.2d 106 (1967); Alley v. Chrysler

Credit Corp., 767 F.2d 138 (5th Cir.1985). To find an abuse of

discretion, the appellate court must find that, on an examination

of the record as a whole, the action complained of adversely

affected the substantial rights of the complaining party. Box v.

Swindle, 306 F.2d 882 (5th Cir.1962).

The district court's decision on whether to grant a motion

for leave to amend the pleadings is reviewed for abuse of

discretion. Jones v. Childers, 18 F.3d 899 (11th Cir.1994);

Lockett v. General Fin. Loan Co. of Downtown, 623 F.2d 1128 (5th

Cir.1980); Thomas v. Farmville Mfg. Co., Inc., 705 F.2d 1307 (11th

Cir.1983).

IV. DISCUSSION

A. TIMELINESS OF THE "LAY OFF" CLAIM

Hargett first alleges that Judge Blackburn erred when she

3
In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), 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.
granted summary judgment in favor of Valley on the basis that

Hargett's age discrimination suit was not timely filed with the

EEOC. Hargett filed his claim with the EEOC on February 11, 1992.

Therefore, his age discrimination claim is barred if he knew or

reasonably should have known of the challenged acts more than 180

days prior to February 11, 1992. Allen v. United States Steel Co.,
4
665 F.2d 689, 692 (5th Cir. (Unit B) 1982) (citations omitted);

Hill v. MARTA, 841 F.2d 1533, 1545 (11th Cir.1988), as amended

after reh'g, 848 F.2d 1522 (11th Cir.1988); see also Coleman, John

J., III, Employment Discrimination in Alabama 310 (1991) (the

limitations period begins to run from the time that the person

knows or reasonably should know that the challenged act has

occurred). Judge Blackburn held that the 180 day period started to

run on November 15, 1990, the date of layoff, which Hargett

referred to in his EEOC charge and in his EEOC intake questionnaire

as the last date of discriminatory action.

Even if Judge Blackburn erred in finding that the limitations

period commenced on November 15, 1990, the age discrimination claim

is still untimely. A plaintiff, who is aware that he is being

replaced in a position, which he believes he is able to perform, by

a person outside the protected age group, knows enough to support

filing a claim. See Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d

1023, 1025 (11th Cir.1994) (citation omitted). The latest that the

180 day period could begin to run would be "right after the first

4
See infra n. 3; Although Allen was decided after September
30, 1981, the Eleventh Circuit regards the decisions of Unit B
panels of the former Fifth Circuit as binding precedent. Stein
v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982).
 5
of the year, 1991," when Hargett became aware that Regina

Richards, a 31 year-old female, had allegedly assumed his former

duties. Even a liberal interpretation of the phrase, "the first of

the year, 1991," would render the 1992, EEOC filing and the

November, 1991, filing of the intake questionnaire untimely. See

Id. at 1026 (where plaintiff did not have sufficient facts to

support a claim of age discrimination at the time of discharge,

court held the 180 day charge-filing period was tolled to the date

in which the plaintiff had enough information to support such a

claim, when he learned that a younger individual had replaced him).

Therefore, Judge Blackburn did not err in holding that the age

discrimination claim was untimely filed.

B. MOTION TO AMEND THE COMPLAINT

1. Denial of the Motion to Amend the Complaint

Hargett argues that Judge Blackburn abused her discretion by

denying Hargett's motion to amend his age discrimination case to

add the retaliation claim. We disagree.

Fed.R.Civ.P. 15(a)6 provides the district court with

5
RB 26; Hargett Dep. at 50-51.
6
Rule 15(a) provides as follows:

A party may amend the party's pleading once as a matter
of course at any time before a responsive pleading is
served or, if the pleading is one to which no
responsive pleading is permitted and the action has not
been placed upon the trial calendar, the party may so
amend it at any time within 20 days after it is served.
Otherwise a party may amend the party's pleading only
by leave of court or by written consent of the adverse
party; and leave shall be freely given when justice so
requires. A party shall plead in response to an
amended pleading within the time remaining for response
to the original pleading or within 10 days after
service of the amended pleading, whichever period may
extensive discretion to decide whether to grant leave to amend

after the time for amendment as a matter of course has passed. 6

Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice & Procedure Civil 2d § 1486, at 604 (1990). In Foman v.

Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962),

the Supreme Court propounded the following standard which is to be

employed by the district courts:

If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits. In
the absence of any apparent or declared reason—such as undue
delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.—the
leave sought should, as the rules require, be "freely given."

In denying the amendment, Judge Blackburn noted that Hargett

had knowledge of the retaliation claim on May 19, 1993, the date of

the Donsbach deposition when Hargett also contends the retaliation

claim arose. However, Hargett failed to add this claim in the

pretrial order, entered July 7, 1993. We hold that Judge Blackburn

did not abuse her discretion when she denied the amendment which

was filed more than eight months after the pretrial order was

entered and almost ten months after the Donsbach deposition. See

Nevels v. Ford Motor Co., 439 F.2d 251, 257 (5th Cir.1971) (wherein

the court stated that generally leave to file amendments should be

freely given; however "amendments should be tendered no later than

the time of pretrial unless compelling reasons why this could not

have been done are presented").

be longer, unless the court otherwise orders.

Fed.R.Civ.P. 15(a).
2. Application of the Gupta Rule

Judge Blackburn did not err in her application of the Gupta

rule. See Gupta v. East Texas State Univ., 654 F.2d 411, 414 (5th

Cir. (Unit A) Aug. 1981).7

In Gupta, the court held that there is no need to file a

subsequent EEOC charge involving a retaliation claim where the

claim "grows out of an administrative charge that is properly

before the court," because the court has ancillary jurisdiction

over the claims. Id.

The court faced a situation similar to the instant case,

involving an age discrimination claim which was untimely filed with

the EEOC, in Barrow v. New Orleans Steamship Ass'n, 932 F.2d 473

(5th Cir.1991). The Fifth Circuit held that the retaliation claim

which was not filed with the EEOC could not be attached to the

untimely filed age discrimination suit.8 The Fifth Circuit stated

[b]ecause one of the age discrimination charges was untimely
and the other was not presented first to the EEOC, they were
not "properly' before the district court. Thus, the
retaliation charge has no charge on which to attach itself,
and the district court correctly dismissed it.

Id. at 478 (emphasis added).

The Eighth Circuit considered a related question in Wentz v.

Maryland Cas. Co., 869 F.2d 1153 (8th Cir.1989). Wentz, a former

employee of Maryland Casualty Company ("Maryland"), filed a claim

alleging age discrimination with the EEOC on February 15, 1984.

7
See infra n. 3.
8
The Fifth Circuit stated that the retaliation claim should
be dismissed without prejudice so it could be filed separately
with the EEOC. Id.
The following day, Maryland discharged Wentz. Wentz filed suit

alleging age discrimination, retaliation, and other claims. Id. at

1154. The district court held that Maryland discharged Wentz for

a legitimate nondiscriminatory reason, that was not pretextual. On

the strength of that ruling, the trial court dismissed the

retaliation claim. The Eighth Circuit held that the fact that

Wentz was unsuccessful on the age discrimination claim did not

preclude him from pursuing his retaliation claim. In so holding,

the court reasoned that Wentz's claim was cognizable if the

allegations in the complaint were reasonably related to "the timely

filed administrative charges." Id. at 1154 (citations omitted and

emphasis added); see also Anderson v. Block, 807 F.2d 145 (8th

Cir.1986) (wherein the court held that an employee's untimely filed

administrative charge alleging discriminatory discharge could be

treated as an amendment to her prior charges, which alleged

discrimination in suspensions, if it directly related to or grew

out of practices alleged in the prior suspension charges "that were

timely brought"). Although Wentz concerns different facts, one may
infer from the holding that Hargett's retaliation claim cannot

relate back to an age discrimination claim if it was not timely

filed.

We find the reasoning of the Fifth and Eighth Circuits

persuasive, and, accordingly hold that Judge Blackburn did not

abuse her discretion by disallowing the amendment. Consequently,

because the underlying age discrimination claim was untimely filed

and because Hargett did not move to amend the complaint until after

the pretrial order, Judge Blackburn did not abuse her discretion in
denying the retaliation amendment. See Nevels v. Ford Motor Co.,

439 F.2d 251, 257 (5th Cir.1971); see also Foman v. Davis, 371

U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (holding

that a court may deny an amendment due to undue delay).

C. MOTION TO AMEND THE ANSWER

Hargett next argues that Judge Blackburn abused her

discretion by allowing Valley to amend its answer on July 2, 1993,

to include the defense of statute of limitations because Valley

admitted in its first amended answer that all the preconditions to

suit had been satisfied, and because Valley had waived the defense

of statute of limitations under Fed.R.Civ.P. 8(c), by not including

the affirmative defense in its answer. Hargett's contentions are

meritless.

Fed.R.Civ.P. 15(a) gives the court extensive discretion to

decide whether to grant leave to amend after the time for amendment

as a matter of course has passed. See Fed.R.Civ.P. 15(a); 6

Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice & Procedure Civil 2d § 1486, at 604 (1990). Valley filed

the motion to amend four days before the pretrial conference was

held. Judge Blackburn reasoned that Hargett would not be

prejudiced by such an amendment because he was placed on notice

even before the pretrial conference that Valley challenged the

timeliness of the EEOC filing. Although a defendant's answer

should apprise the opposing party of the allegations in the

complaint which stand admitted and will not be in issue at trial,9

9
Charles A. Wright & Arthur R. Miller, Federal Practice &
Procedure Civil 2d § 1261, at 383 (1990).
because Valley challenged as untimely the EEOC filing in the early

stages of the litigation, Judge Blackburn was correct that no

prejudice or delay resulted to Hargett in allowing Valley's

amendment. The district court did not thereby abuse its

discretion.

In addition, if a party omits the defense of statute of

limitations in the answer, the defense is not waived if the

litigant includes it in the pretrial order. See generally, Jackson

v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1012 (11th Cir.1982)

(if a party fails to include an affirmative defense in the answer

or to have it "included in the pretrial order of the district

court, which supersedes the pleadings," the defense is normally

waived); see also Expertise, Inc. v. Aetna Fin. Co., 810 F.2d 968

(10th Cir.1987); Echols v. Strickland, 92 F.R.D. 75, 77

(S.D.Tex.1981); Bernert Towboat Co. v. U.S.S. Chandler, 666

F.Supp. 1454 (D.Or.1987) (although a failure to raise an

affirmative defense in an answer results in waiver, defendant

raised the defense in the pretrial order, which had the effect of

amending the pleadings).

Because Valley raised the statute of limitations defense at

the pretrial conference, and included it in the pretrial order,

which supersedes the pleadings, Hargett was not unreasonably

surprised by the defense. Thus, Judge Blackburn did not abuse her

discretion in allowing the amendment. See Joplin v. Bias, 631 F.2d

1235 (5th Cir. (Unit A) 1980) (holding that it was not an abuse of

discretion to allow defendant to amend answer to raise the statute

of limitations defense even though the defense was first raised
one-and-a-half years after the original answer was filed); see

also Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1012

(11th Cir.1982); Expertise, Inc. v. Aetna Fin. Co., 810 F.2d 968

(10th Cir.1987).

D. TIMELINESS OF THE REHIRE CLAIM

Hargett contends that his claim alleging age discrimination

in rehire is not barred. Hargett asserts that the 180 day period

did not begin to run on his rehire claim before Judge Blackburn

until April 21, 1992, two months after he had filed his initial

EEOC charge, when he received the letter from Valley stating that

he would not be rehired. Valley, however, asserts that although a

rehire claim is included in paragraph seven of the complaint,

Hargett failed to go beyond the pleadings in opposing Valley's

motion for summary judgment, as required by Fed.R.Civ.P. 56(e), and
10
that he is precluded from raising the claim on appeal. Valley

further contends that Hargett may not raise this argument on appeal

because Hargett never raised, argued, or briefed an age

discrimination in rehire claim before either district judge.

In Burnam v. Amoco Container Co., 755 F.2d 893, 894 (11th

Cir.1985) (per curiam), this court held that a plaintiff must

allege that the failure to rehire stemmed from a new and discrete

act of discrimination, separate from the original charge of

10
Fed.R.Civ.P. 56(e) "requires the nonmoving party to go
beyond the pleadings and by its own affidavits, or by the
"depositions, answers to interrogatories, and admissions on
file,' designate "specific facts showing that there is a genuine
issue for trial.' " Celotex Corp. v. Catrett, 477 U.S. 317, 324,
106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
discriminatory discharge.11 Because Hargett alleges the same

discriminatory reasons to support his claim of discrimination in

rehiring, Hargett's fails to demonstrate that the rehire claim is

derived from a separate act of discrimination by Valley. See Roy

v. Amoco Oil Co., 747 F.Supp. 661, 667 (S.D.Fla.1990), aff'd, 925

F.2d 1473 (11th Cir.1991), cert. denied, 502 U.S. 823, 112 S.Ct.

87, 116 L.Ed.2d 59 (1991); see also Gonzales v. Garner Food Serv.

Inc., 855 F.Supp. 371 (N.D.Ga.1994) (simple request to be rehired

cannot resurrect discharge claim); Knowles v. Postmaster General,

U.S. Postal Serv., 656 F.Supp. 593 (D.Conn.1987). Therefore,

Hargett's claim is time-barred because the statute of limitations

began to run on the date of his lay off, November 15, 1990.

Even assuming that the charge-filing period began on April 21,

1992, because Hargett did not file a separate charge with the EEOC

alleging discrimination in rehire within 180 days following his

receipt of the April, 1992, letter, his claim is untimely.

Further, Hargett cannot attach the rehire claim to the earlier

charge, filed in February, 1992, alleging age discrimination in lay

off because, as discussed previously, the earlier charge was not

timely filed with the EEOC, and a party may not attach a claim to

11
Burnam was discharged from Amoco on October 9, 1982, but
did not file a charge with the EEOC within 180 days of his lay
off. On May 23, 1983, Burnam requested that she be reinstated,
but was notified that she would not be. On June 6, 1983, Burnam
filed a charge with the EEOC. Burnam argued that the refusal to
rehire constituted a new and continuing violation of the Age
Discrimination in Employment Act. The Eleventh Circuit held that
"a failure to rehire subsequent to an allegedly discriminatory
firing, absent a new and discrete act of discrimination in the
refusal to rehire itself, cannot resurrect the old discriminatory
act." Id. at 894. The court stated that the request for
reinstatement sought to redress the original discharge.
Therefore, the court held that Burnam's claim was time-barred.
one contained in an earlier EEOC charge, which was untimely filed.

See Barrow, 932 F.2d at 478; Gupta, 654 F.2d at 414. Therefore,

even if we assume that the 180 day period began to run on April 21,

1992, Hargett's claim is time-barred because he did not file with

the EEOC within 180 days from that date, and he cannot attach the

rehire claim to the untimely filed lay off claim.

As to Valley's contention that Hargett did not argue the

discriminatory rehire claim before the district courts, upon review

of the record, we conclude that Hargett did not raise this argument

below. Generally, the court of appeals will not consider an issue

or theory that was not raised in the district court. Narey v.

Dean, 32 F.3d 1521, 1526 (11th Cir.1994); Gibson v. Resolution

Trust Corp., 51 F.3d 1016, 1021 (11th Cir.1995). Moreover, as

previously discussed, even if Hargett had properly raised this

issue in the district courts, Hargett's rehire claim would be

barred.

E. TIMELINESS OF THE RETALIATION CLAIM

Although we agree with Judge Hancock that Hargett's

retaliation claim could not attach to the age discrimination claim

under the Gupta rule for the reasons hereinbefore discussed, we are

of the opinion that Judge Hancock erred in holding that the 180 day

charge-filing period for retaliation claim commenced on April 21,

1992, the date that Valley notified Hargett that he would not be

considered for rehiring.

An employer violates the Age Discrimination in Employment Act

if it retaliates against an employee for filing an EEOC charge. 29

U.S.C. § 623(d) states in pertinent part as follows:
 It shall be unlawful for an employer to discriminate against
any of its employees or applicants for employment ... because
such individual, member or applicant for membership has
opposed any practice made unlawful by this section, or because
such individual, member or applicant for membership has made
a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or litigation under this
chapter.

29 U.S.C. § 623(d) (emphasis added).12

Valley argues that Hargett had sufficient information upon

which to file a retaliation claim when he received the letter

notifying him that he was not a candidate for rehiring, two months
13
after he filed the initial EEOC charge. In the alternative,

12
To establish a prima facie case of retaliation plaintiff
must show that he or she 1) engaged in statutorily protected
expression; 2) experienced adverse employment action; and 3) a
causal link exists between the protected expression and the
adverse action. See Hairston v. Gainesville Sun Publishing, 9
F.3d 913 (11th Cir.1993).
13
Judge Hancock found that the statute of limitations for
the retaliation claim began to run on April 21, 1992, when
Hargett received the letter. Judge Hancock relied on Stafford v.
Muscogee Co. Bd. of Educ., 688 F.2d 1383 (11th Cir.1982).
Stafford had applied for principalships with the county school
system after a fire destroyed the school where he had served as
the principal. In the summer of 1977, Stafford found that other
applicants had filled the positions. On October 7, 1977, the
county school superintendent informed Stafford that he would not
be appointed to any of the principalships. Following these
events, Stafford did not file a charge with the EEOC alleging
discrimination under Title VII until December 20, 1978. The
court held that the charge was untimely filed because the statute
of limitations started to run upon Stafford's receipt of the
October 7, 1977, correspondence from the superintendent.

While the court found that a letter notifying Stafford
that he would not be rehired, triggered the EEOC
charge-filing period for the rehire claim, it does not
follow that a reasonable person's receipt of a letter
denying reinstatement would cause the 180 day period for a
retaliation claim to begin. The Stafford court considered
when a reasonable person would know that he had been
discriminated against in rehiring, not when a reasonable
person would know that an employer had retaliated against
him for an EEOC filing.
Valley argues that the limitations period began on May 20, 1992,

when Hargett sent to the EEOC investigator a clipping, showing that

Valley had hired a person in the loan department. Valley contends

that his receipt of the letter, after his EEOC filing, and his

cognizance of Valley's recent hire, would place a reasonable person

on notice that Valley had retaliated against him for filing an EEOC

claim. We disagree.

Hargett's EEOC filing of his retaliation claim was timely

because Hargett was not reasonably put on notice that his EEOC

filing caused the adverse employment action until May, 1993, when

Donsbach, Valley's Senior Vice-President, testified in a deposition

that a reason Hargett would probably not be considered for rehire

was because he filed an EEOC charge. Prior to this statement by

Donsbach, Hargett was seeking to prove that all actions taken by

Valley in terminating his employment and refusing to rehire him

were based on his age.

Because Hargett had already been laid off, allegedly for age

discrimination, the refusal to rehire was entirely consistent with

the age discrimination claim. In fact, Donsbach's deposition

testimony was given as Hargett pursued his claim that his

mistreatment by Valley was because of his age. Thus, the April 21,

1992, letter refusing to rehire him did not provide Hargett with

sufficient facts to place a reasonable person on notice that

retaliation had occurred. See Sturniolo, 15 F.3d at 1025 (which

held that a limitations period begins to run only when facts which

would support a charge are apparent or should be apparent to a

person with a reasonably prudent regard for his rights).
Similarly, the fact that Hargett informed the EEOC investigator

that Valley had employed another person in the loan department

would not put Hargett on notice that Valley had retaliated against

him. The refusal to rehire was entirely consistent with his claim

of age discrimination. Although the hiring of others and the

refusal to rehire Hargett gave some persuasive evidence that the

reason given by Valley for his lay off was pretextual, such refusal

did not provide evidence of retaliation.

We find that Hargett had no basis upon which reasonably to

conclude that Valley had retaliated against him for filing an EEOC

charge prior to May 19, 1993. Therefore, Judge Hancock erred in

holding that the retaliation complaint was untimely, and this cause

is due to be reversed and remanded as to Hargett's retaliation

claim.

F. MOTION FOR CONSOLIDATION

Finally, Hargett contends that Judge Blackburn and Judge

Hancock abused their discretion by failing to rule on his motion

for consolidation. In the case at bar, neither court ruled on the

consolidation issue. Judge Blackburn did not rule on the motion

and Judge Hancock deferred the motion to Judge Blackburn, but then

rendered it moot by ruling on the pending motion for summary

judgment.

A trial court may consolidate cases when actions involving a

common question of law or fact are pending before the court.

Fed.R.Civ.P. 42.14 "The proper solution to problems created by the

14
Fed.R.Civ.P. 42 provides as follows:

When actions involving a common question of law or fact
existence of two or more cases involving the same parties and

issues, simultaneously pending in the same court would be to

consolidate them under Rule 42(a)." Miller v. United States Postal

Serv., 729 F.2d 1033, 1036 (5th Cir.1984) (citation omitted).

Although the handling of the motion for consolidation was

unusual, no prejudice was caused the plaintiff. As previously

discussed, a separate EEOC filing was required in order to assert

the retaliation claim because it could not append to the untimely

age discrimination case. See Gupta, 654 F.2d at 414; see also

Barrow, 932 F.2d 473.

V. CONCLUSION

For the foregoing reasons, the judgments of Judge Blackburn

are AFFIRMED. The judgment of Judge Hancock on the timeliness of

the retaliation claim is REVERSED and REMANDED.

AFFIRMED in part, REVERSED and REMANDED in part.

are pending before the court, it may order a joint
hearing or trial of any or all matters in issue in the
actions; it may order all the actions consolidated;
and it may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or
delay.