[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF
APPEALS
No. 00-14736 ELEVENTH CIRCUIT
NOV 8, 2002
THOMAS K. KAHN
CLERK
D.C. Docket No. 98-00124-CV-LCN
CITY OF HIALEAH, FLORIDA, a political subdivision
of the State of Florida, and CITY OF HIALEAH
EMPLOYEES' RETIREMENT SYSTEM,
an operational subdivision of the City of Hialeah,
Petitioners-Appellants,
versus
ETERIO ROJAS, individually, and as a representative
of a class of persons similarly situated,
RUTH NINA, individually and as a representative
of a class of persons similarly situated,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of Florida
(November 8, 2002)
Before TJOFLAT and WILSON, Circuit Judges, and RESTANI*, Judge.
__________________________
*Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting by
designation.
TJOFLAT, Circuit Judge:
I.
On January 21, 1998, plaintiffs Eterio Rojas and Ruth Nina filed this class
action lawsuit against the City of Hialeah and the City of Hialeah Employees’
Retirement System, an operational subdivision of the city, (collectively, “Hialeah”)
alleging national origin employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and the Civil
Rights Act of 1871, 42 U.S.C. § 1983. Plaintiffs allege that Hialeah engaged in a
discriminatory policy of classifying Hispanic employees as temporary employees
for longer periods of time than white employees despite the fact that the Hispanic
employees were employed on a permanent basis. They further allege that, as a
result of this discriminatory policy, Hispanic employees were deprived of
longevity pay and retirement compensation which accrued to permanent
employees, but not to temporary employees. They claim that this discriminatory
policy and the resulting deprivation of longevity pay and retirement compensation
for Hispanic employees constitutes a continuing violation of Title VII and section
1983 so that their claims fall within the relevant statutes of limitations.
A.
Hialeah’s retirement system was established in 1956. The date when an
employee becomes eligible to receive a pension is determined by a combination of
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membership service years and age. Twenty years of membership service are
needed to receive a full retirement benefit, which is calculated as 3% of the
employee’s average final compensation for each year of civil service employment.
The average final compensation is based on the average of the employee’s highest
salary for three years of employment. Compensation includes base salary plus any
longevity pay, which is a fixed amount of money added to each paycheck based on
the number of years of service as a permanent employee.
At the time that the named plaintiffs were first employed by Hialeah,
temporary employees were not entitled to participate in the retirement system. In
1992, Hialeah entered into a collective bargaining agreement with the employees’
union under which all employees – temporary and permanent – were entitled to
participate in the pension plan after nine months of employment. Although this
change permitted employees to count the total number of years of service toward
the time needed to receive a pension, the years spent as temporary employees are
not counted in determining the amount of their pension.
Plaintiff Rojas was hired as a temporary employee in 1969. For ten years, he
was administratively terminated every nine months and then rehired as a temporary
employee for a new nine month period so that Hialeah could avoid classifying him
as a permanent employee entitled to full benefits. In 1979, Rojas was finally hired
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as a permanent employee. He retired from his position with Hialeah in 1993, and
began collecting his pension. He was given credit for his temporary employment
for purposes of determining when he became eligible to receive his pension, but
not for calculating the amount of his pension. Hialeah did not count his years of
temporary service when it determined his “credit service time” which would be
used as a multiplier to determine the amount of his actual pension. Also, in
determining his average final salary, Hialeah did not give credit for longevity pay
which would have accrued if he had been a permanent employee during the time he
was classified as a temporary employee.
B.
On October 8, 1997, Rojas filed a formal charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) alleging that he was not
receiving retirement benefits to which he was entitled because Hialeah
discriminated against him by classifying him as a temporary employee from 1969
to 1979. Rojas’s EEOC charge was lodged on his own behalf and on behalf of
eighteen other employees, including plaintiff Nina. The EEOC issued a right to
sue letter on December 8, 1997.
Plaintiff Nina is a current employee of Hialeah. She was hired as a
temporary employee in 1980. Like Rojas, she was administratively terminated
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every nine months and then rehired as a temporary employee so that Hialeah could
avoid classifying her as a permanent employee. She did not become a permanent
employee until 1991. As a result, her current salary does not reflect longevity pay
for the years she was a temporary employee. Also, like Rojas, she will not receive
credit for her time as a temporary employee when she retires and Hialeah
calculates her pension.
C.
On November 20, 1998, plaintiffs moved to certify a class of Hispanic
employees and former employees of Hialeah who had been classified as temporary
employees and had received lower salaries and/or pensions as a result. This
motion was referred to a magistrate judge who filed a Report and Recommendation
recommending that plaintiffs’ motion for class certification be granted. The
district court adopted the magistrate’s Report and Recommendation and entered an
order granting plaintiffs’ motion for class certification. The certified class
includes:
All former and current Hispanic employees for the City of Hialeah
who
(a) were employed by the City prior to its abandonment of its policy
to hire Hispanics as permanent “temprary” employees,
(b) worked for the city longer than nine (9) months,
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(c) worked 37 ½ to 40 hour work weeks during his or her employment
with the city,
(d) were classified as “temporary” employee for longer than nine (9)
months without including CETA work time and
(e) either
(i) received retirement benefits or lengevity pay from the
city within 300 days of Plintiff Rojas’ EEOC charge of
October 8, 1997 [i.e., December 12, 1996] which does
not include credit for the time the employee was
classified as a “temporary” employee; or
(ii) who upon retirement, will receive retirement benefits
from the city which will not include credit for the time
the employee was classified as a “temporary” employee.
Record, vol. 3, no. 98, at 7-8.
Hialeah now appeals the court’s decision to grant class certification. We
have jurisdiction over this interlocutory appeal under Rule 23(f) of the Federal
Rules of Civil Procedure, which provides that “[a] court of appeals may in its
discretion permit an appeal from an order of a district court granting or denying
class action certification under this rule . . . .” FED. R. CIV. P. 23(f). On appeal,
Hialeah contends that class certification was improperly granted because the
named plaintiffs failed to file a timely charge of discrimination with the EEOC and
the court failed to conduct a “rigorous analysis” to determine whether the
commonality and typicality requirements for class certification have been met.
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II.
A.
This Court requires that a plaintiff who wishes to bring a lawsuit on behalf
of a class of individuals similarly situated must first satisfy two prerequisites: “(1)
the named plaintiff must have standing to bring the claim, and (2) the requirements
of Rule 23 must be fulfilled.” Carter v. West Publ’g Co., 225 F.3d 1258, 1262
(11th Cir. 2000). Although Rule 23(f) limits our review to the district court’s order
granting class certification, “a determination on standing is a part of the class
certification analysis, and thus, subject to review under Rule 23(f).” Id. at 1263.
To have standing to represent a class, the named plaintiff’s claims must be
timely filed. Id.; see also Great Rivers Co-op. v. Farmland Indus., 120 F.3d 893,
899 (8th Cir. 1997) (“Inherent in Rule 23 is the requirement that the class
representatives be members of the class . . . . Here, [the class representative] is not
and cannot be a class member because his claim is time barred; consequently, he
cannot represent the class.”). Title VII requires a plaintiff to file a charge with the
EEOC within 180 or 300 days of the alleged unlawful employment practice. See
42 U.S.C. § 2000e-5(e). “Pursuant to the ‘single-filing rule,’ ‘[a]s long as at least
one named plaintiff timely filed an EEOC charge, the precondition to a Title VII
action is met for all other named plaintiffs and class members.’ ” Carter, 225 F.3d
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at 1263 (quoting Griffin v. Dugger, 823 F.2d 1476, 1492 (11th Cir. 1987)). In this
case, the named plaintiffs and the class rely on Rojas’s EEOC complaint. If
Rojas’s EEOC complaint was not timely filed, the named plaintiffs lack standing to
bring this action on behalf of the class, and we must reverse the district court’s
class certification. See id.
Plaintiffs argue that Rojas’s EEOC charge was timely filed because
Hialeah’s policy of classifying Hispanics as temporary employees based on
national origin combined with the resulting deprivation of longevity pay and
retirement compensation amount to a continuing violation of Title VII so that all of
Hialeah’s unlawful actions fall within the required time period. We disagree.
“In determining whether a discriminatory employment practice constitutes a
continuing violation, this Circuit distinguishes between the present consequence of
a one time violation, which does not extend the limitations period, and the
continuation of that violation into the present, which does.” Carter, 225 F.3d at
1263 (quoting Thigpen v. Bibb County, 223 F.3d 1231, 1243 (11th Cir. 2000)
(quoting Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 448 (11th Cir.
1993))). The term “practice” “appl[ies] to a discrete act or single ‘occurrence,’
even when it has a connection to other acts.” Nat’l R.R. Passenger Corp. v.
Morgan, __ U.S. __, 122 S. Ct. 2061, 2071, 153 L. Ed. 2d 106 (2002). “There is
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simply no indication that the term ‘practice’ converts related discrete acts into a
single unlawful practice for the purposes of timely filing.” Id. If the victim of an
employer’s unlawful employment practice does not file a timely complaint, the
unlawful practice ceases to have legal significance, and the employer is entitled to
treat the unlawful practice as if it were lawful. United Air Lines, Inc. v. Evans, 431
U.S. 553, 558, 97 S. Ct. 1885, 1889, 52 L. Ed. 2d 571 (1977) (“A discriminatory
act which is not made the basis for a timely charge is the legal equivalent of a
discriminatory act which occurred before the statute was passed . . . it is merely an
unfortunate event in history which has no present legal consequences.”). Because
time-barred discriminatory conduct has no legal significance, neutral policies that
give present effect to the time-barred conduct do not create a continuing violation.
Id.
In Evans, United Air Lines forced a female flight attendant to resign when
she married because of its policy against employing married female flight
attendants. Id. at 554, 97 S. Ct. at 1887. Evans did not sue United for sex
discrimination under Title VII when she was forced to resign. Id. at 554-55, 97 S.
Ct. at 1887. Instead, she sued after she was re-hired, alleging that United engaged
in a continuing violation of Title VII because its seniority system did not give her
credit for her prior service. Id. at 556, 97 S. Ct. at 1888. The Supreme Court held
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that, although the seniority system gave “present effect to a past act of
discrimination,” there was no continuing violation because “a challenge to a
neutral system may not be predicated on the mere fact that a past event which has
no present legal significance has affected the calculation of seniority credit . . . .”
Id. at 558, 560, 97 S. Ct. at 1889-90.
In Carter, plaintiffs brought a class action lawsuit against West Publishing,
alleging that West had denied female employees the opportunity to purchase stock
in the company on the basis of sex. 225 F.3d at 1260. Instead of suing when they
were denied the opportunity to purchase stock, however, plaintiffs waited until
after West had discontinued selling stock to any employees and sued under a
continuing violation theory because they did not receive dividends that were paid
to stockholders. See id. at 1261. We held that these facts did not constitute a
continuing violation because the denial of dividends pursuant to a neutral dividend
payment scheme was merely a present consequence of past discriminatory conduct
which fell outside of the statutory limitations period. Id. at 1265. Because the
named plaintiffs’ claims were time-barred, we held that they lacked standing to
bring an action on behalf of the class, and we reversed the district court’s class
certification. Id. at 1266-67.
We see no significant difference between the instant case and Evans or
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Carter. If the alleged facts are true, Hialeah committed an unlawful employment
practice against Rojas each time it failed to elevate him to permanent status
because of his national origin. Although Rojas knew that white employees were
being elevated to permanent status while Hispanic employees like him were not, he
did not file a complaint with the EEOC until 1997, eighteen years after Hialeah
ended its unlawful employment practices against him by elevating him to
permanent status. To satisfy the statutory timely filing requirements, Rojas argues
that Hialeah has engaged in a continuing violation because its method of
calculating the amount of pension payments does not factor in time spent as a
temporary employee. As in Evans and Carter, Hialeah’s denial of credit for
temporary service in determining retirement compensation is merely a present
consequence of past discrimination which has no present legal significance because
it lies outside of the statutory limitations period. Hialeah’s retirement
compensation system is neutrally applied; it denies credit for temporary service
time to all employees, not just Hispanic employees. Although this neutral policy
has a more dramatic effect on Hispanic employees because they were kept in
temporary status longer than other employees, this fact does not make Hialeah
guilty of a continuing violation. Because Rojas was last denied permanent
employment status prior to 1979 and he did not file an EEOC complaint until 1997,
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his claims are time-barred and he lacks standing to bring this action on behalf of a
class of similarly situated Hispanic employees and former employees.
Nina also lacks standing to bring a Title VII claim on behalf of the class. As
with Rojas, Hialeah committed an unlawful employment practice against Nina each
time it denied her permanent status because of her national origin. She alleges that
Hialeah’s system of calculating longevity pay constitutes a continuing violation
because it does not credit time spent as a temporary employee. Hialeah’s system
for calculating longevity pay is also neutral; all employees are denied credit for
time spent as temporary employees. Although Hispanics are more dramatically
affected than other employees, this is merely a present consequence of past
discriminatory conduct which has no legal significance because it is time-barred.
Hialeah’s discrimination against Nina ended when she was hired as a permanent
employee in 1991. She was named in Rojas’s EEOC complaint which was not
filed until 1997. Therefore, Nina’s claims are also time-barred and she does not
have standing to bring this action on behalf of the class.
B.
The named plaintiffs also lack standing to bring this class action under
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section 1983.1 Plaintiffs must bring a section 1983 claim arising in Florida within
four years of the alleged unlawful discriminatory practice.2 Burton v. City of Belle
Glade, 178 F.3d 1175, 1188 (11th Cir. 1999). As in Title VII cases, neutral
policies that give present effect to time-barred discriminatory conduct do not create
a continuing violation which renews the limitations period. See Thigpen,223 F.3d
at 1243 (quoting Calloway, 986 F.2d at 448).
The named plaintiffs filed this lawsuit on January 21, 1998. As we explain
above, there is no continuing violation because Hialeah’s policies for determining
retirement compensation and longevity pay are neutral policies that merely give
present effect to time-barred discriminatory conduct. For Rojas, the filing date in
this action was nineteen years after the discriminatory conduct against him ended
when he was hired as a permanent employee in 1979. For Nina, it was seven years
after the discriminatory conduct against her ended when she was hired as a
permanent employee in 1991. Because the named plaintiffs failed to bring their
section 1983 claims within four years of the alleged discriminatory conduct, their
1
We feel that it is necessary to note here that section 1983 creates no substantive rights;
it merely creates a remedy for deprivations of federal constitutional and statutory rights. Almand
v. Dekalb County, 103 F.3d 1510, 1512 (11th Cir. 1997). In this case, the source of plaintiffs’
substantive rights is the Equal Protection Clause of the Fourteenth Amendment.
2
Section 1983 claims are governed by the forum state’s residual personal injury statute
of limitations, which in Florida is four years. Burton v. City of Belle Glade, 178 F.3d 1175,
1188 (11th Cir. 1999) (citing Owens v. Okure, 488 U.S. 235, 249-250, 109 S. Ct. 573, 102 L. Ed.
2d 594 (1989); Wilson v. Garcia, 471 U.S. 261, 276, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985)).
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claims are time-barred, and they lack standing to bring this action on behalf of the
class. We therefore reverse the class certification with respect to section 1983 as
well as Title VII.
Because we find that the named plaintiffs in this case lack standing to bring
a class action lawsuit under Title VII and section 1983, we need not address
whether the procedural requirements of Rule 23 have been fulfilled.
III.
For the foregoing reasons, we hold that the district court’s certification of
this class was improper.
REVERSED.
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