                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    July 26, 2011
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court

 LYNDA MCCLELLAND,

              Plaintiff-Appellant,
                                                         No. 08-3258
 v.
                                                (D.C. No. 2:05-CV-02137-CM)
                                                           (D. Kan.)
 DELUXE FINANCIAL SERVICES,
 INC.,

              Defendant-Appellee.


                           ORDER AND JUDGMENT *


Before HOLMES, BALDOCK, and SILER, ** Circuit Judges.


      Federal Rule of Civil Procedure 15(c) provides that, for purposes of the

statute of limitations, a subsequently amended complaint may “relate back” to the

date of the filing of an earlier complaint in certain circumstances. Plaintiff-

Appellant Lynda McClelland seeks to use Rule 15(c) to prevent the statute of

limitations from barring her discrimination suit against Defendant-Appellee

Deluxe Financial Services, Inc. (“Deluxe”). Because we conclude that the


      *
             This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
United States Court of Appeals for the Sixth Circuit, sitting by designation.
relevant amended complaint does not arise out of the same “conduct, transaction,

or occurrence set out . . . in the initial pleading,” Fed. R. Civ. P. 15(c)(1)(B), we

hold that Ms. McClelland’s amended complaint does not relate back.

Accordingly, Ms. McClelland’s claims are time-barred. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm the district court’s dismissal of her lawsuit.

                                  BACKGROUND

      Ms. McClelland is the final plaintiff in protracted litigation against Deluxe,

involving two captioned cases, numerous named plaintiffs, and a putative class.

To resolve Ms. McClelland’s appeal, it is necessary to review some of this

litigation’s complex history. We set forth only those details relevant to the

matters at hand.

I.    Aikens v. Deluxe

      On August 23, 2001, six individuals filed suit against Deluxe, alleging that

it had discriminated against them on the basis of their race in violation of 42

U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. §§ 2000e to 2000e-17 (as amended). See Aikens v. Deluxe Fin. Servs.,

Inc., No. Civ.A.01-2427-CM, 2005 WL 1041351 (D. Kan. Mar. 2, 2005). “All of

the plaintiffs [were] either current, or former, black employees of [Deluxe].”

Aplt. App. at 185 (Aikens Compl., filed Aug. 23, 2001). They described a

specific series of allegedly discriminatory incidents at Deluxe and asserted that

“[t]he defendant’s treatment of the plaintiffs constitute[d] a continuous pattern

                                           2
and practice of discrimination.” Id. at 186. The Aikens plaintiffs pleaded theories

of disparate treatment, hostile work environment, and retaliation. Significantly,

they sought only monetary relief. See id. at 187–89 (seeking only “judgment

against the defendant for damages in excess of $500,000.00, consisting of back

pay, front pay, prejudgment interest, compensatory damages, punitive damages,

attorneys fees, litigation expenses and such other and further relief as the Court

deems proper”). Several weeks later, they filed a First Amended Complaint,

which added three plaintiffs but otherwise left their factual allegations and legal

claims unaltered.

      The Aikens plaintiffs filed a Second Amended Complaint on March 6, 2002.

The first part of the complaint was substantively identical to the first two

complaints, except that the new complaint dropped any reference to the specific

set of allegedly discriminatory incidents underlying the first two complaints.

Under a separate heading, plaintiffs introduced claims “on behalf of all African-

American persons who were denied equal pay, equal promotions and/or equal job

training.” Id. at 208 (Aikens Second Am. Compl., filed Mar. 6, 2002). With these

putative class claims, the Aikens plaintiffs widened their focus to allege facility-

wide and upper-management-level discrimination at Deluxe. In addition to the

claims of disparate treatment, hostile work environment, and retaliation retained

by the individual plaintiffs, the Aikens plaintiffs stated four claims on behalf of

the class. First, they asserted a broad-sweeping claim under 42 U.S.C. § 1981,

                                          3
which averred that Deluxe “intentionally discriminated . . . by making promotion

and hiring decisions based upon race, by denying the Plaintiffs and all class

members equal pay and equal terms and conditions of employment, and by

maintaining a pervasive atmosphere perpetuating discriminatory treatment.” Id.

at 215. The three other discrimination claims brought on behalf of the class,

which presumably were grounded on Title VII, pertained to compensation,

promotion, and hiring. Although the four class claims expressly charged Deluxe

with “intentionally discriminat[ing] against Plaintiffs, and all class members,” id.,

with respect to the compensation and promotion claims, the Second Amended

Complaint also briefly averred that Deluxe’s “conduct . . . has a disparate impact

on African-American employees, including Representative Plaintiffs,” id. at 216.

On behalf of the class, plaintiffs sought declaratory, injunctive, and monetary

relief. On March 1, 2004, the Aikens plaintiffs filed a motion for class

certification.

      During the next year, the parties engaged in “intensified efforts” to resolve

the dispute outside of litigation through mediation. Aikens, 2005 WL 1041351, at

*2. The efforts were successful, as “[e]ach of the individual plaintiffs agreed to

dismiss their individual and class claims in settlement of the litigation.” Id. The

district court concluded that the settlements and their accompanying stipulations

of dismissal resolved all pending claims in the case, and accordingly denied the

pending class-certification motion as moot. Id. at *6. In justifying this ruling,

                                          4
the district court noted that the dismissal would not prejudice absent members of

the putative class:

             It is undisputed that claims of the putative class are tolled during
             pendency of the class certification. See Crown, Cork & Seal Co.,
             Inc. v. Parker, 462 U.S. 345, 354–55 (1983) (holding that the
             commencement of a class action suspends the applicable statute
             of limitations for all asserted members of the putative class until
             a class certification decision is made). Thus, the absent class
             members may file separate actions to protect their claims within
             any time remaining in the applicable statute of limitations.

Id. at *5. The Aikens suit was dismissed on March 2, 2005.

II.   Webb v. Deluxe

      On April 11, 2005, a new set of individual plaintiffs initiated the lawsuit

Webb v. Deluxe Financial Services, Inc. Like the plaintiffs in Aikens, the Webb

plaintiffs alleged that Deluxe had engaged in a pattern and practice of racial

discrimination. Like the plaintiffs in Aikens, they raised claims of disparate

treatment, hostile work environment, retaliation, and other general claims under

42 U.S.C. § 1981. They did not, however, aver class claims. The Webb plaintiffs

sought declaratory, injunctive, and monetary relief. Ms. McClelland joined the

Webb suit on April 19, 2005, with the filing of the First Amended Complaint.

      Deluxe moved for summary judgment, asserting that the claims of several

Webb plaintiffs—including Ms. McClelland—were barred by the applicable

statute of limitations. Consistent with the district court’s statements in dismissing

the Aikens suit, Deluxe acknowledged that the putative class action in Aikens


                                           5
tolled the statute of limitations for some of the Webb plaintiffs. But it contended

that the four-year statute of limitations on Ms. McClelland’s claims expired

before the Aikens class claims were filed on March 6, 2002. Thus, according to

Deluxe, Ms. McClelland had nothing for the Aikens class claims to toll.

      In response, Ms. McClelland did not dispute that, counting back to the date

of the Second Amended Complaint in Aikens, her claims were not timely.

However, she argued that, under Federal Rule of Civil Procedure 15(c), the

Second Amended Complaint should relate back to the initial Complaint in Aikens.

Ms. McClelland argued that, counting back from the date of the initial Complaint,

rather than the Second Amended Complaint, her claims were timely.

      The district court granted Deluxe’s motion for summary judgment. As to

the issue of whether the Second Amended Complaint related back, it stated:

                     The Aikens plaintiffs first alleged a class action suit in the
             Second Amended Complaint, which they filed on March 6, 2002.
             While it is arguable whether this complaint relates back to the
             first complaint under Federal Rule of Civil Procedure 15(c), such
             an analysis is unnecessary for the court’s present decision. This
             court denied class certification on March 2, 2005. For this
             decision, the court considers the statute of limitations for putative
             class members tolled from at least March 6, 2002 to March 2,
             2005.

Id. at 242 (Mem. & Order, filed Sept. 22, 2006) (citations omitted). It is not clear

why the district court deemed the relation-back analysis unnecessary. However,

operating on the view that the limitations period was four years, and taking into

account the almost three-year tolling period, the district court concluded that “any

                                           6
claim regarding employment practices” could not have accrued before mid-April

1998, because otherwise it “would be barred regardless of its association with the

Aikens case.” Id. at 243. In other words, the court reasoned that the claim must

have accrued in or after mid-April 1998 in order to fall within the limitations

period. Because Ms. McClelland stopped working at Deluxe on March 2, 1998,

the district court concluded that her claims were barred by the statute of

limitations.

      Ms. McClelland later argued that the district court should return to the

relation-back question because it had not actually decided the issue, but the court

rejected her arguments on procedural grounds. The court then granted final

judgment to Deluxe on Ms. McClelland’s claims. Ms. McClelland submitted a

timely notice of appeal.

                                   DISCUSSION

      Although Ms. McClelland’s appeal implicates several significant issues, we

need only resolve one. Specifically, Ms. McClelland argues that her claims

against Deluxe are timely because the Second Amended Complaint in Aikens

relates back under Rule 15(c) to the initial Aikens Complaint. We disagree.

Thus, we hold that Ms. McClelland’s claims are barred by the statute of

limitations.

I.    Standard of Review




                                          7
      We review de novo the district court’s grant of summary judgment,

applying the same legal standard employed by the district court. See, e.g.,

Narotzky v. Natrona Cnty. Mem’l Hosp. Bd. of Trs., 610 F.3d 558, 565 (10th Cir.

2010). “The court shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In applying this standard,

we construe the facts in the light most favorable to Ms. McClelland, the non-

moving party. See, e.g., Kannady v. City of Kiowa, 590 F.3d 1161, 1168–69 (10th

Cir. 2010). Further, “[w]e review de novo the district court’s application of Rule

15(c) to undisputed facts, a ‘purely legal interpretation.’” Garrett v. Fleming,

362 F.3d 692, 695 (10th Cir. 2004) (quoting Slade v. U.S. Postal Serv., 875 F.2d

814, 815 (10th Cir. 1989)); cf. Sawtell v. E.I. du Pont de Nemours & Co., Inc., 22

F.3d 248, 253 (10th Cir. 1994) (“If the district court’s refusal to toll the statute of

limitations resides in the grant of summary judgment, we review the refusal de

novo.”).

II.   Ms. McClelland’s Claim Is Not Timely

      As the district court noted, the Supreme Court has long 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.” Am. Pipe & Const. Co. v. Utah,

414 U.S. 538, 554 (1974). Such a rule, the Supreme Court stated, comports with

                                           8
the fairness principles underlying limitations periods because “a named plaintiff

who is found to be representative of a class commences a suit and thereby notifies

the defendants not only of the substantive claims being brought against them, but

also of the number and generic identities of the potential plaintiffs who may

participate in the judgment.” Id. at 554–55; accord State Farm Mut. Auto. Ins.

Co. v. Boellstorff, 540 F.3d 1223, 1228–30 (10th Cir. 2008); Joseph v. Wiles, 223

F.3d 1155, 1166–68 (10th Cir. 2000); see Parker, 462 U.S. at 354 (“Once the

statute of limitations has been tolled, it remains tolled for all members of the

putative class until class certification is denied.”). Thus, assuming, arguendo,

that she is a member of the putative Aikens class, we may further assume that Ms.

McClelland’s statute of limitations was tolled from the date of the filing of the

Second Amended Complaint in Aikens—when the class claims were first

asserted—to the date when the class claims were denied.

      The issue before us is whether Ms. McClelland is entitled to additional

tolling by operation of Federal Rule of Civil Procedure 15(c). She argues that,

under Rule 15(c), the Second Amended Complaint in Aikens should be found to

relate back to the initial Aikens Complaint, and, thus, that she is entitled to class

tolling all the way back to the date of that initial Complaint. 1 If the Second


      1
              Deluxe categorically objects to this proposed maneuver, contending
that “[t]olling and the relation back doctrine are analytically distinct,” Aplee. Br.
at 28, and that it would be improper to use relation back to extend the American
Pipe tolling period. We need not definitively decide whether it is appropriate to

                                           9
Amended Complaint relates back, Ms. McClelland contends that her claims are

timely. If it does not, there is no dispute that her claims are barred.

      A.     Relation Back Under Rule 15(c) 2

      Rule 15(c) provides that “[a]n amendment to a pleading relates back to the

date of the original pleading when . . . the amendment asserts a claim or defense

that arose out of the conduct, transaction, or occurrence set out—or attempted to

be set out—in the original pleading . . . .” Fed. R. Civ. P. 15(c)(1)(B). “Relation

back is intimately connected with the policy of the statute of limitations.” Fed. R.

Civ. P. 15 advisory committee’s note (1966). As the Supreme Court has stated,


extend American Pipe as Ms. McClelland asks us to do. For even if we assume,
without deciding, that Ms. McClelland may use class tolling in conjunction with
relation back under Rule 15(c), her claim fails because we nevertheless conclude
that the Second Amended Complaint in Aikens does not relate back.
      2
              As noted above, the district court did not explicitly hold that the
Second Amended Complaint did not relate back; rather, the court deemed it
unnecessary to consider the issue and then refused Ms. McClelland’s request to
reconsider this decision. However, because this legal issue was litigated before
the district court and has been fully briefed by the parties before us, we do not
hesitate to resolve this appeal on the relation-back issue. See, e.g., Prison Legal
News v. Exec. Office of the U.S. Attorneys, 628 F.3d 1243, 1251 (10th Cir. 2011)
(“This court may nonetheless affirm on any ground that is supported in the record
and raised on appeal.”); Shroff v. Spellman, 604 F.3d 1179, 1187 n.4 (10th Cir.
2010) (“[W]e may ‘affirm a district court decision on any grounds for which there
is a record sufficient to permit conclusions of law, even grounds not relied upon
by the district court.’” (quoting Weitzel v. Div. of Occupational & Prof’l
Licensing, 240 F.3d 871, 876 (10th Cir. 2001))); Bixler v. Foster, 596 F.3d 751,
760 (10th Cir. 2010) (“Although the district court did not rely on this ground, ‘we
may affirm on any grounds supported by the record.’ Defendants raised this
ground in the district court, thus providing plaintiffs an opportunity to address it.”
(citation omitted) (quoting Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001))).


                                          10
the purpose of relation back is “to balance the interests of the defendant protected

by the statute of limitations with the preference expressed in the Federal Rules of

Civil Procedure in general, and Rule 15 in particular, for resolving disputes on

their merits.” Krupski v. Costa Crociere S. p. A., 130 S. Ct. 2485, 2494 (2010).

Though a potential defendant has a “strong interest in repose,” repose should not

be a “windfall” for a defendant who possesses sufficient notice of impending

claims. Id. “The rationale of Rule 15(c) is that a party who has been notified of

litigation concerning a particular occurrence has been given all the notice that

statutes of limitations were intended to provide.” Baldwin Cnty. Welcome Cntr. v.

Brown, 466 U.S. 147, 149 n.3 (1984). 3 The same general standard of notice


      3
              The Fifth Circuit’s discussion of the relation-back doctrine is
noteworthy:

              Relation back is intimately connected with the policy of the
              statute of limitations. The policies underlying statutes of
              limitations—evidentiary concerns and repose—require that a
              plaintiff (1) commence suit (preserving the evidence) and (2)
              furnish the defendant notice of the suit and its claims (preventing
              repose from vesting). When Rule 15(c) is satisfied, neither of
              these policies is impinged because the plaintiff commenced suit
              before the limitations period lapsed and the defendant knew or
              should have known of the suit and the claims, allowing him to
              preserve his evidence. In such a circumstance, at least according
              to the drafters of the Rules, it would work an injustice to time-
              bar a plaintiff’s claim against a particular defendant not earlier
              named or a specific claim not earlier pleaded.

Admiral Ins. Co. v. Abshire, 574 F.3d 267, 277 (5th Cir.) (footnotes omitted)
(quoting Fed. R. Civ. P. 15 advisory committee’s notes) (internal quotation marks
omitted), cert. denied, 130 S. Ct. 756 (2009).

                                          11
applies regardless of whether a litigant seeks to add defendants, plaintiffs, or

claims. See, e.g., Fed. R. Civ. P. 15 advisory committee’s note.

      Because it can be challenging to give life to the general language of Rule

15(c), we canvas some of our salient cases to illuminate the manner in which we

have applied the relation-back concept. In Gilles v. United States, 906 F.2d 1386

(10th Cir. 1990) (en banc), the district court concluded that Mr. Gilles’s amended

complaint did not relate back and dismissed his suit as untimely. Reversing on

this point, we stated:

             Here both the original and amended complaints contain almost
             identical portions entitled “Gravamen Of Complaint,” averring
             that the United States, through its agents and employees,
             negligently treated plaintiff Gilles with resulting irreparable
             damage to his health so that his heart condition became
             inoperable and his life expectancy has been considerably
             diminished. The two complaints are grounded on the same
             nucleus of operative facts, and thus, within the meaning of Rule
             15(c), the claim asserted in the amended complaint arose out of
             the same “conduct, transaction, or occurrence . . . .”

Id. at 1389–90 (citation omitted) (footnote omitted).

      In Southern Colorado Prestress Co. v. Occupational Safety & Health

Review Commission, 586 F.2d 1342 (10th Cir. 1978), a construction company

appealed an order of the Occupational Safety and Health Review Commission,

alleging that the Commission’s amended citation for workplace safety violations

was untimely. Id. at 1346. We rejected this argument, holding that Rule 15(c)

was satisfied because “the citation as amended alleged the same basic facts and


                                          12
circumstances and complained of the same omission by the employer as had the

original citation and complaint[;] that is, the failure to provide scaffolding or

safety nets.” Id. at 1346–47. We further explained:

             The original citation stated that . . . the employer did not provide
             scaffolding or safety nets for an employee . . . . This citation
             alleged a serious violation under 29 C.F.R.
             [§] 1926.750(b)(1)(ii) . . . . The amendment . . . essentially
             alleged that ‘the same conditions are also a serious violation of
             the standards found at’ 29 C.F.R. [§] 1926.105(a) and (b). No
             new facts were alleged.

Id. at 1347 n.7 (alterations omitted).

      In Superior Manufacturing Corp. v. Hessler, Manufacturing Corp., 267

F.2d 302 (10th Cir. 1959), a group of creditors filed a petition to compel

bankruptcy proceedings, but the petition was dismissed for procedural defects.

Id. at 303. The creditors then “filed a petition in form and substance in practical

identity with the initial pleading” (but minus the procedural defects). Id. The

debtors moved to dismiss the amended petition as untimely. We stated:

                    An amended pleading is one which clarifies or amplifies
             a cause of action which can be identified with certainty as the
             same cause of action originally pleaded or attempted to be
             pleaded. It is a perfection of an original pleading rather than the
             establishment of a new cause of action. . . . Of course the
             intention of the bankruptcy act cannot be defeated by the filing
             of a skeleton petition complying with statutory requirements
             pleaded as generalities and then later amended to supply requisite
             particulars. The essential claim must be capable of determination
             in the original pleading and continued in the amended pleading.




                                          13
Id. at 304 (citations omitted). “The most casual comparison” of the two pleadings

in that case indicated that this test was satisfied and, therefore, that the amended

pleading related back. Id.

      In Denver & Rio Grande Western Railroad Co. v. Clint, 235 F.2d 445 (10th

Cir. 1956), a widow sued her husband’s employer for the husband’s wrongful

death. After the limitations period had run, she amended her complaint to change

the state statute on which her claim was predicated. Id. at 447. In ruling on

whether the amended complaint related back under Rule 15(c), we stated:

                    The claim asserted in the amended complaint arose out of
             the same conduct and occurrence set forth, or attempted to be set
             forth in the original complaint. The parties were the same, the
             occurrence was the same, and in both pleadings the same
             negligence was pleaded as the proximate cause of the accident
             which resulted in David’s death. From the beginning, Ane
             sought to recover damages for the death of David, her husband,
             caused by an explosion of the locomotive in which he was riding,
             which explosion was caused by the negligence of the employees
             of the Railroad Company, the engineer and fireman in charge of
             the locomotive.

Id. Accordingly, we held that “the amendment related back to the time of the

filing of the original complaint and that, therefore, the claim asserted in the

amended complaint [wa]s not barred.” Id.

      Finally, in Kansas Milling Co. v. National Labor Relations Board, 185 F.2d

413 (10th Cir. 1951), the appellant challenged an order of the National Labor

Relations Board, contending that the Board’s amended complaint alleging unfair

labor practices was untimely and did not relate back to an earlier complaint. We

                                          14
disagreed. “The first charge,” we noted, “alleged in the general language of the

statute that the company had interfered with, restrained and coerced its

employees, discriminated in regard to hire and tenure and had refused to bargain

in good faith in violation of their rights . . . .” Id. at 416. By comparison, the

second amended charge alleged that

             the company had threatened its employees with loss of seniority
             and their jobs if they engaged in a strike; told them during the
             course of the strike that unless they returned to work they would
             lose their seniority and their jobs; and told them to repudiate the
             Union and that unless they did so they would be discharged.

Id. In this light, we found “nothing inconsistent in the . . . amended charge with

the general allegations of the original charge. [It is] somewhat in the nature of a

bill of particulars making more definite the general allegations of the original

charge and thus relate[s] back to the original charge.” Id.; see also Am. Fid. &

Cas. Co. v. All Am. Bus Lines, 190 F.2d 234, 237 (10th Cir. 1951) (“The

complaint, both before and after the substitution of Security as the party plaintiff,

centered with the same impact and force around the pivotal question whether

American failed to exercise good faith in declining to settle the case pending in

the state court.”). Compare Bensel v. Allied Pilots Ass’n, 387 F.3d 298, 310 (3d

Cir. 2004) (“By virtue of the series of events drafted in the original Complaint,

[Defendant] was unquestionably on notice that it would be held liable for every

possible breach . . . occasioned by the outlined facts. The additional purported

breaches particularized in the Second Amended Restated Complaint derive

                                          15
directly from the factual circumstances adumbrated in the original Complaint.”),

and Langley v. Coughlin, 715 F. Supp. 522, 553 n.31 (S.D.N.Y. 1989) (“Although

the original complaint did not contain class action allegations, it did allege all of

the basic facts material to the class claims and, by its request for injunctive relief,

gave adequate notice that class-wide relief might well be merited. Under these

circumstances the amended complaint may be deemed to relate back to the date of

filing of the original pleading even though in effect it added a large number of

inmates as potential beneficiaries of plaintiffs’ claims.”), with Cliff v. Payco Gen.

Am. Credits, Inc., 363 F.3d 1113, 1133 n.16 (11th Cir. 2004) (holding that

plaintiff’s complaint alleging nationwide class-action claims did not relate back

under Rule 15(c) when plaintiff “made the strategic decision to limit the class to

individuals residing in one state, and subsequently decided—after the statute of

limitations had run—that he wished to expand his suit to encompass individuals in

all fifty states”), and 6A Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure § 1497, at 99–104 (3d ed. 2010) (“[I]f the

alteration of the original pleading is so substantial that it cannot be said that

defendant was given adequate notice of the conduct, transaction, or occurrence

that forms the basis of the new claim or defense, then the amendment will not

relate back . . . .”).

       B.      The Aikens Second Amended Complaint Does Not Relate Back




                                           16
      Ms. McClelland argues that the Second Amended Complaint in Aikens

should relate back to the initial Complaint. In light of the principles and

precedents above, we conclude that the Complaint did not give Deluxe sufficient

notice of the impending class claims. Thus, we hold that the Second Amended

Complaint does not relate back.

             1.    Initial Complaint in Aikens

      On August 23, 2001, six individual plaintiffs filed the initial Complaint in

the Aikens case. They alleged that Deluxe had discriminated against them based

upon their race. They pleaded a general discrimination claim under 42 U.S.C.

§ 1981, which alleged that Deluxe discriminated against them “in regard to the

conditions and privileges of their employment, including but not limited to, their

rate of pay, promotion, hiring, evaluation of their work and performance,

assignment of helpers, assignment of duties, and the handling of work related

injuries.” Aplt. App. at 187. The individual plaintiffs also pleaded specific

claims for hostile work environment and retaliation under Title VII and § 1981.

The Complaint noted that all of the plaintiffs had filed administrative charges

with the Equal Employment Opportunity Commission (“EEOC”). The individual

plaintiffs sought only money damages, not injunctive or declaratory relief.

      The focus of this Complaint was a series of allegedly discriminatory

incidents at Deluxe. Specifically, the Complaint stated:




                                         17
                  In mid-1999, the defendant hired Lindsey Jones, a black
            male, to be its plant manager at the Lenexa, Kansas, facilities.

                  Mr. Jones was the first black plant manager hired by the
            defendant.

                 In mid-1999, the defendant also hired Sherry Vega, a
            Hispanic female, to be its Human Resources manager at the
            Lenexa, Kansas, facilities[.]

                  Mr. Jones, as the plant manager, together with Ms. Vega,
            began to initiate several plans to improve the status of minority
            employees at the defendant’s Lenexa, Kansas, facilities.

                  In mid-2000, the defendant terminated the employment of
            Mr. Jones and Ms. Vega.

                  Both Mr. Jones and Ms. Vega filed complaints of
            discrimination with the [EEOC], which has rendered a probable
            cause determination in their cases.

                   Throughout their employment, the plaintiffs were subjected
            to racially discriminatory jokes, comments and depictions.

                  Most of the plaintiffs participated in a corporate meeting
            where the president of the company was present. During that
            meeting, plaintiffs spoke out about the problems that minority
            workers faced and about their feelings regarding the termination
            of Mr. Jones and Ms. Vega.

                  After the corporate meeting, the plaintiffs were called into
            the new plant manager’s office and informed that their comments
            were inappropriate, and that plaintiffs and the other minority
            workers who spoke up did not allow the white employees an
            opportunity to express their concerns.

                  The defendant’s treatment of the plaintiffs constitutes a
            continuous pattern and practice of discrimination.

Id. at 185–86 (paragraph numbers omitted).


                                        18
      Just as these allegations centered on a discrete set of incidents involving

Mr. Jones and Ms. Vega, other averments in the Complaint centered on the

individual plaintiffs’ own experiences and impressions and did not exhibit an

obvious connection with general policies and practices at Deluxe. See, e.g., id. at

185 (“All of the plaintiffs were paid at a lesser pay grade and salary range than

similarly situated white employees.” (emphasis added)); id. at 187 (“Throughout

the course of their employment, the plaintiffs were treated differently than

similarly situated white employees . . . .” (emphasis added)); id. (“The

defendant’s treatment of the plaintiffs . . . is motivated by improper factors,

including plaintiffs’ race.” (emphasis added)); id. (“As a result of the defendant’s

illegal and intentional conduct, plaintiffs have suffered serious economic losses as

well as physical and emotional pain and suffering.” (emphasis added)). The

Complaint did aver that Deluxe’s “treatment of the plaintiffs constitute[d] a

continuous pattern and practice of discrimination.” Id. at 186 (emphasis added).

However, the Complaint’s averments did not even hint that this allegedly

discriminatory pattern and practice extended to other African American

employees, beyond the named individual plaintiffs. Similarly, there was no

suggestion in these averments that any such pattern and practice was formulated

or orchestrated by Deluxe’s high-level management or implemented throughout

the Lenexa, Kansas, facility or company-wide.

             2.     Second Amended Complaint in Aikens

                                          19
      The Aikens plaintiffs filed a Second Amended Complaint on March 6, 2002.

The first several pages of this complaint repeated the individual allegations made

in the initial Complaint. Gone, however, was any mention of the series of events

centering on Mr. Jones and Ms. Vega. Rather, under a separate heading, the

complaint introduced “Class Allegations.” Id. at 206. At a superficial level, the

class averments principally focus on the same subject matter as the

Complaint—i.e., Deluxe’s allegedly intentional discrimination against African-

American employees. Beneath these superficial similarities, however, lie very

significant differences.

      First, the classes proposed by the Second Amended Complaint expanded

the case from six individual plaintiffs to “all African-American persons who were

denied equal pay, equal promotions and/or equal job training” at Deluxe’s

Lenexa, Kansas, facility. Id. at 208. More specifically, this master class itself

was divided into two subclasses. One subclass included “any African-Americans

employed by Defendant in Lenexa[,] Kansas[,] from October 13, 1994, to

present,” and the other included “[a]ll African-Americans who attempted to

obtain employment with Defendant in Lenexa[,] Kansas[,] from 1996, to present.”

Id. The complaint further indicated that “[t]he African-Americans in the

[proposed] Classes . . . are so numerous that joinder of all members is

impracticable. Upon information and belief, the members of this class will

exceed 300 persons.” Id. at 209.

                                         20
      Second, the Second Amended Complaint sought new forms of relief. While

the initial Complaint sought only money damages, the Second Amended

Complaint sought money damages, as well as declaratory and injunctive relief.

      Third, and more generally, the Second Amended Complaint transformed the

gravamen of the case from alleged discrimination centering on a series of discrete

incidents relating to specified employees, to allegations that Deluxe discriminated

against African-American employees on at least a facility-wide basis; that Deluxe

did so by “maintain[ing] unconstitutional and discriminatory policies, practices,

and customs of racial discrimination, including, but not limited to, promotional,

training, hiring and pay practices,” id. at 206; and that these “purposefully

discriminatory employment policies, practices, and procedures [were] conceived

and directed by [Deluxe’s] upper management, id. at 215; see also id. at 207

(“Defendant has had actual and/or constructive notice of . . . , but has taken no

constructive steps to eliminate said discriminatory policies, procedures and

practices.”); id. at 213 (“Defendant’s management personnel have actual

knowledge of discrimination directed against African-American

employees . . . .”).

      In particular, the class averments implicate much of the framework of

policies and practices that Deluxe has erected for dealing with employees, not

only at the Lenexa facility, but also apparently throughout the company as a

whole. See id. (“Defendant has promotion practices which are based on

                                         21
subjective rather than objective, job-related criteria, and which are not uniformly

applied to African-American and Caucasian employees.”); id. at 214 (“There are

inadequate written policies, procedures, or guidelines at [Deluxe] with respect to

promotion of its employees[,] . . . render[ing] the system arbitrary, and such

arbitrariness is used as pretext for denying qualified African-American

employees, including Representative Plaintiffs, promotions to which they are

qualified and entitled.”); id. at 216 (alleging that Deluxe “fails to maintain a

salary or pay scale which is based on objective, job-related criteria”). In this

regard, although the principal focus of the Second Amended Complaint appears to

have been on alleged intentional discrimination, it is at least noteworthy that the

class averments hint at another theory of discrimination that does not require such

intent—that is, the disparate-impact theory. See id. (averring briefly with regard

to the compensation and promotion class claims that Deluxe’s “conduct . . . has a

disparate impact on African-American employees, including Representative

Plaintiffs”); cf. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15

(1977) (“Proof of discriminatory motive . . . is not required under a disparate-

impact theory.”); Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir. 2006)

(“In a disparate-impact claim the plaintiff is challenging an employment practice

that is fair in form, but discriminatory in operation.” (quoting Bullington v.

United Air Lines, Inc., 186 F.3d 1301, 1312 (10th Cir. 1999)) (internal quotation

marks omitted)).

                                          22
             3.     No Relation Back

      In contending that the Second Amended Complaint relates back, Ms.

McClelland focuses on two factors. First, she points out that the initial Aikens

Complaint contained broad allegations of discrimination, including allegations

that Deluxe’s actions “constitute[d] a continuous pattern and practice of

discrimination.” Aplt. Reply Br. at 5 (emphasis omitted) (quoting Aikens Compl.

at 5) (internal quotation marks omitted). Deluxe was thus “on notice of the nature

of the substantive claims [that] it might have to defend [against].” Id. Second,

she highlights that both the initial Complaint and the Second Amended Complaint

focused on Deluxe’s facility in Lenexa, Kansas. Thus, “Deluxe was on notice of

the generic identities of the putative class members . . . , i.e.[,] all African-

American employees who worked for Deluxe at its Lenexa, Kansas[,] facilities.”

Id.

      To support her argument, Ms. McClelland relies chiefly on Paskuly v.

Marshall Field & Co., 646 F.2d 1210 (7th Cir. 1981). In that case, Ms. Paskuly

brought suit under Title VII, “alleg[ing] that her employer, defendant Marshall

Field & Company, had discriminated against her because of her sex.” Id. at

1210–11. After the statute of limitations had run, Ms. Paskuly “filed an amended

complaint seeking to transform her action into a class action on behalf of all

similarly situated female employees of the defendant.” Id. at 1211. The district

court denied Marshall Field’s motion to strike her class claims as untimely.

                                           23
Reviewing for an abuse of discretion, the Seventh Circuit—in a one-page per

curiam opinion—affirmed under Rule 15(c). Id. “We note,” the court stated,

“that the original complaint alleged that defendant engaged in practices that

discriminated against women because of their sex; the defendant was thereby on

notice that it might be required to defend its employment practices from charges

of class-based discrimination.” Id. The court also held that Ms. Paskuly’s filing

of a charge of discrimination with the EEOC “placed defendant on notice of the

likelihood of a class-wide action later being maintained against it.” Id. Ms.

McClelland contends that we should reach a “similar conclusion” in this case.

Aplt. Opening Br. at 27.

      In response, Deluxe contends that relation back would be improper because

it was not until the Second Amended Complaint that it was aware of “any

substantive claims of putative class members.” Aplee. Br. at 25. “On the

contrary, [the first two Aikens complaints] focused exclusively on the treatment of

the individual plaintiffs.” Id. Deluxe continues:

                    The original and First Amended Complaints also failed to
             notify Deluxe of the generic identities of the putative class
             members who may participate in a judgment. They contained no
             description of any putative class. Moreover, the pleadings
             expressly excluded anyone other than the identified plaintiffs
             from participating in the judgment. The relief demanded was
             exclusively individualized and reserved to the identified
             plaintiffs. Indeed, the pleadings contained no request for
             injunctive or declaratory relief that might impact someone other
             than the identified plaintiffs. As a result, no one other than the


                                         24
             identified, individual Aikens plaintiffs could have participated in
             any aspect of the judgment.

Id. at 26 (footnote omitted) (citations omitted). Deluxe also contends—and Ms.

McClelland does not dispute—that the individual plaintiffs in the initial Aikens

Complaint all worked in Deluxe’s manufacturing plants in Lenexa, Kansas. Id. at

26 n.5. The Second Amended Complaint, in declaring a class of “all African-

American persons who were denied equal pay, equal promotions and/or equal job

training” at Deluxe, Aplt. App. at 208, does not appear to limit its coverage to

manufacturing employees in Lenexa, Kansas. “Without a class description,”

Deluxe argues, “a Complaint does not notify a defendant what evidence needs to

be preserved, for what claims, for what period of time, from what facilities, and

so on.” Aplee. Br. at 27 n.6.

      We agree with Deluxe. More specifically, we conclude that there is no

relation back under Rule 15(c). Upon receiving the initial Aikens Complaint, a

reasonable defendant in Deluxe’s position certainly would have been aware that

claims of discrimination were brewing among a certain subset of its employees.

For example, Deluxe would have had no grounds for objecting if the initial Aikens

plaintiffs had sought to add new legal claims based on the “basic facts and

circumstances” laid out in the initial Complaint. S. Colo. Prestress, 586 F.2d at

1346. Nor could Deluxe reasonably claim to have been surprised by the addition

of further plaintiffs who had worked under Mr. Jones and Ms. Vega, or who had


                                         25
been involved in the series of allegedly discriminatory incidents set out in the

initial Complaint. Indeed, this is precisely what occurred when three individual

plaintiffs were added by the First Amended Complaint.

         Unlike the First Amended Complaint, however, the Second Amended

Complaint alleged something different altogether. The first two complaints

involved a set of allegedly discriminatory incidents affecting a limited number of

identified employees that involved, among other things, pay and promotions. And

Mr. Jones and Ms. Vega, and Deluxe’s allegedly adverse treatment of them, had a

somewhat ill-defined nexus to these events. Yet, the Second Amended

Complaint, rather than containing “almost identical” allegations, Gilles, 906 F.2d

at 1389, instead alleged that upper management instigated discrimination and

implemented it on at least a facility-wide basis, affecting more than 300 potential

plaintiffs. The Second Amended Complaint was not “somewhat in the nature of a

bill of particulars making more definite the general allegations of the original

charge,” Kan. Milling Co., 185 F.2d at 416, but instead included a set of new and

separate allegations implicating a wider set of facts, witnesses, and proofs. “The

fact that both [complaints] involve[d] allegations of racial discrimination does not

alter [this] conclusion.” Williams v. Boeing Co., 517 F.3d 1120, 1133 (9th Cir.

2008).

         Ms. McClelland is correct to note that the initial Complaint and the Second

Amended Complaint use the phrase “pattern and practice” in discussing the

                                          26
alleged discrimination of Deluxe. For the purpose of notice, however, it is the

content of the allegations, not the phrases employed, that matters. The allegations

in the initial Complaint focused on the individual plaintiffs; it was not until the

Second Amended Complaint that Deluxe was made aware of specific claims of

systemic, facility-wide (and possibly company-wide) discrimination. An

individual may believe—and thus allege—that an employer’s treatment of him is

part of a “pattern and practice” of discrimination. But without specific

allegations of class-wide discrimination, such vague claims by individual

plaintiffs are not enough to alert a defendant that class claims are on the horizon.

The phrase “pattern and practice” is not a shibboleth which, once uttered, puts the

defendant on alert that the limitations period is tolled. That would be grossly

unfair. See, e.g., Augilar v. U.S. Immig. & Customs Enforcement, 510 F.3d 1, 16

(1st Cir. 2007) (“While there may be qualitative as well as quantitative

distinctions between class-wide pattern and practice claims, on the one hand, and

individual claims, on the other hand, merely conglomerating individual claims

and posturing the conglomeration as a pattern and practice claim does not have

talismanic effects.” (citation omitted)); see also, e.g., Mirasol v. Gutierrez, No.

05 Civ. 6368(DC), 2006 WL 871028, at *4 (S.D.N.Y. Apr. 5, 2006) (“[A]

plaintiff does not properly allege an ongoing discriminatory policy simply by

invoking the magic words pattern or practice.” (quoting Blake v. Bronx Lebanon




                                          27
Hosp. Ctr., No. 02 Civ. 3827(CBM), 2003 WL 21910867, at *5 (S.D.N.Y. Aug.

11, 2003)) (internal quotation marks omitted)).

      We likewise reject Ms. McClelland’s claim that Deluxe was on notice of

the impending class claims simply because both the initial Complaint and the

class claims of the Second Amended Complaint centered on Deluxe’s facility in

Lenexa, Kansas. As we noted above, Deluxe contends—and Ms. McClelland does

not dispute—that the plaintiffs in the initial Complaint worked exclusively in one

business division of the Lenexa facility, that is, manufacturing; yet, the class

averments of the Second Amended Complaint sweep more broadly. This fact cuts

against the argument that the initial Complaint would have provided Deluxe

notice of the generic identities of the members of the putative class. But even

without this information, 4 Ms. McClelland’s argument is unpersuasive. Simply




      4
             That all of the named plaintiffs in the initial Complaint worked in the
same business division is not discernable from the face of the Complaint. We do
not appear to have opined on what evidence a court may consider (in addition to
the pleadings) in determining whether a defendant received notice of a particular
claim. See United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493,
517 (6th Cir. 2007) (holding that courts may “consider extrinsic evidence in
analyzing whether an amendment relates back to the original complaint”); see
also 6A Wright et al., supra, § 1497, at 110 (“It has been suggested that the
requisite notice must be given by the content of the original pleadings. Other
cases have taken a broader view and have held that it is sufficient if the opposing
party was made aware of the matters to be raised by the amendment from sources
other than the pleadings. This position seems sound . . . .” (footnotes omitted)).
 And we need not definitively speak to the matter here because Ms. McClelland’s
argument is unpersuasive in any event.

                                          28
because the two complaints focused on the same facility, without additional

context, says nothing about the notice Deluxe received from the initial Complaint.

      Lastly, the Seventh Circuit’s short per curiam opinion in Paskuly does not

give us pause. Its persuasive force is undercut by the cursory nature of its

analysis. And, such that it is, Paskuly’s analysis is problematic in at least one

significant respect. The Seventh Circuit stated that Ms. Paskuly’s filing of a

charge with the EEOC “placed defendant on notice of the likelihood of a

class-wide action later being maintained against it.” 646 F.2d at 1211. The court

did not discuss the content of the EEOC charge in reaching this conclusion; it

appears to have held that such a charge provided notice as a categorical matter.

Ms. McClelland points out that all of the plaintiffs in the original Aikens

Complaint filed EEOC charges against Deluxe, and she urges us to follow

Paskuly and find that these charges gave Deluxe notice of the impending class

claims. We reject the idea that the mere act of filing such a charge is sufficient in

and of itself to provide notice to a defendant of class claims. 5 Paskuly does not



      5
              Assuming that extrinsic evidence such as the contents of an EEOC
charge may be considered in assessing a defendant’s notice for purposes of Rule
15(c), see discussion supra note 4, we do not reject out of hand the possibility
that an EEOC charge—depending on its substantive allegations—might provide
notice to a defendant for purposes of relation back. We need not decide the point
here, however. We note that we would have no way to make such a determination
in this case, for the record on appeal does not include copies of the EEOC charges
filed by the Aikens plaintiffs, and Ms. McClelland does not indicate what the
charges alleged.

                                          29
explain why this should be so, no reason is readily apparent to us, and Ms.

McClelland does not offer us one. Therefore, to the extent that Paskuly’s holding

turns on Ms. Paskuly’s act of filing an EEOC charge, it is dubious. And, more

generally, we conclude that Paskuly should not guide our resolution of the

relation-back issue.

                                 CONCLUSION

      Because we conclude that the Second Amended Complaint in Aikens does

not relate back to the initial Aikens Complaint, Ms. McClelland’s claims against

Deluxe are barred by the applicable statute of limitations. Therefore, we

AFFIRM the district court’s judgment.




                                      ENTERED FOR THE COURT



                                      Jerome A. Holmes
                                      Circuit Judge




                                         30
