                                                            [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
                                                         6
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)



                                       6
(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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