                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-1995

Whalen v Grace
Precedential or Non-Precedential:

Docket 94-5503




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Recommended Citation
"Whalen v Grace" (1995). 1995 Decisions. Paper 148.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/148


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                               No. 94-5503


     WALTER R. WHALEN; IRENE W. RELEFORD; RONALD D. GLASGOW;
    ALEXANDER G. DEPALMA; BEVELY M. HOPKINS; DONNA R. BAUGH;
    JANET K. TURRELL; MARY A. PANARELLO; ROBERT K. WILLIAMSON

                                V.

     W.R. GRACE & CO.; BAKER & TAYLOR, INC.; BAKER & TAYLOR
         BOOKS CO.; THE CARLYLE GROUP; RAYMOND BARRATT;
       JOHN DOE, 1-25, fictitious names; ROE & DOE, 1-25,
   fictitious names; ABC CORP., 1-25, fictitious corporations

        W. R. GRACE & CO. - CONN.; BAKER & TAYLOR BOOKS;
           BAKER & TAYLOR, INC.; and RAYMOND BARRATT,
                                             Appellants


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY
                    (D.C. Civil No. 93-00640)


                      Argued March 2, 1995

     Before:   GREENBERG, NYGAARD and McKEE, Circuit Judges

                  (Opinion Filed June 2, 1995)

EDWARD P. LYNCH, ESQUIRE
THERESA A. KELLY, ESQUIRE
Pitney, Hardin, Kipp & Szuch
P.O. Box 1945
Morristown, NJ 07962-1945
Attorney for Appellants

NEIL REISEMAN, ESQUIRE
GREGORY A. DEVERO, ESQUIRE
Reiseman & Sharp
Four Campus Drive
Parsippany, NJ 07054-0431
Attorney for Appellees
OPINION OF THE COURT
NYGAARD, Circuit Judge

          This appeal arises from the district court's decision

to allow five age discrimination plaintiffs who had filed timely

charges with the Equal Employment Opportunity Commission to amend

their complaint to add four new plaintiffs who had not.    Because

our case law requires that, outside the context of a

representative or class action under the Age Discrimination in

Employment Act, 29 U.S.C. § 621, et seq., an individual plaintiff

must file a timely administrative charge, we will reverse and

remand.

                                     I.

          The original plaintiffs1, appellees herein, are all

over age forty and former employees of Baker & Taylor Books.

Each held a different position and worked at one of three

different company locations before being terminated from

employment during 1991.   Each filed a timely charge of

discrimination with the EEOC, alleging that his or her layoff was

a result of a company-wide policy to rid itself of older workers.

On February 16, 1993, they filed this lawsuit in the United

States District Court for the District of New Jersey, alleging

violation of the ADEA and the New Jersey Law Against

Discrimination, N.J. Stat. Ann. § 10:5-12, et seq.     However, they

did not file a class action, as permitted by ADEA § 7(b), 29

U.S.C. § 626(b).


1
 . Walter R. Whalen, Irene W. Releford, Ronald D. Glasgow,
Alexander G. De Palma, and Bevely M. Hopkins.
           Generally, under the ADEA, "[n]o civil action may be

commenced by an individual...until 60 days after a charge

alleging unlawful discrimination has been filed with the [EEOC]."

ADEA § 7(d), 29 U.S.C. § 626(d).     It is undisputed that the five

original plaintiffs complied with this filing requirement.

However, on October 28, 1993, they moved under Fed. R. Civ. P. 15

to amend their complaint and add four new plaintiffs, Donna R.

Baugh, Janet K. Turrell, Mary A. Panarello and Robert K.

Williamson.     These prospective plaintiffs are also over age 40

and former employees of Baker & Taylor who were terminated in

19912.   They were employed in various positions and at various

locations, and also claim they were victims of a company-wide

push to eliminate older employees.    The controversy before us

arises because none of these prospective plaintiffs filed timely

EEOC charges.

           Section 7(b) of the ADEA incorporates the enforcement

"powers, remedies and procedures" of § 16(b) of the Fair Labor

Standards Act, 29 U.S.C. § 216(b), which provides, in relevant

part, that "[a]n action...may be maintained against any employer

(including a public agency) in any Federal or State court of

competent jurisdiction by any one or more employees for and in

behalf of himself or themselves and other employees similarly

situated."3   We have held previously that this provision allows

2
 . The exception is new plaintiff Baugh, who was terminated in
1992.
3
 . Unlike a class action under Fed. R. Civ. P. 23, under §16(b),
no person can become a party plaintiff and no person will be
bound by or may benefit from a judgment unless he or she has
aggrieved individuals who failed to file the required § 7(d) EEOC

charge to join a class action brought by a plaintiff who had

filed an EEOC charge alleging class-wide discrimination.    Lusardi

v. Lechner, 855 F.2d 1062, 1077 (3d Cir. 1988); accord Lockhart

v. Westinghouse Credit Corp., 879 F.2d 43, 52 (3d Cir. 1989).

The appellees argue that this rule, known as the "single filing

rule," should be applied to ADEA non-class actions, allowing the

prospective plaintiffs to "piggyback" onto the timely

administrative charges filed by the appellees.

            The Magistrate Judge denied the appellees' motion to

amend their complaint, holding that the single filing rule has

not been applied in this Circuit in ADEA cases that are not class

action suits; accordingly, the Magistrate Judge held that our

decisions in Lusardi and Lockhart require a plaintiff in a non-

class    action suit, pursuant to ADEA §7(d), to have filed a

charge with the EEOC.

            The district court reversed, following the analysis in

Tolliver v. Xerox Corp., 918 F.2d 1052 (2d Cir. 1990), cert.

denied, 499 U.S. 983, 111 S. Ct. 1641 (1991), which held that the

single filing rule applies to ADEA class and non-class actions

alike.    See also Howlett v. Holiday Inns, Inc., 49 F.3d 189 (6th
Cir. 1995) (following Tolliver).    The district court granted the

appellants' motion to certify the order granting leave to amend

(..continued)
affirmatively "opted into" the class by filing a written consent
with the court. Nowicki v. USX Corp., 672 F. Supp. 854, 855-56
(W.D. Pa. 1987) (citing La Chappelle v. Owens-Illinois, Inc., 513
F.2d 286, 288 (5th Cir. 1975)).
the complaint under 28 U.S.C. § 1292(b) as involving a

controlling question of law, on which there is substantial ground

for difference of opinion, and from which an immediate appeal may

materially advance the ultimate termination of the litigation.

In turn, we granted the appellants' petition for immediate

appeal.

                                II.

           Because the narrow issue raised on this appeal involves

interpretation and application of legal principles, i.e., whether

the single filing rule is applicable to non-class action ADEA

lawsuits, our review is plenary.      Epstein Family Partnership v.

Kmart Corp., 13 F.3d 762, 765-66 (3d Cir. 1994).

           In Lusardi, we held that an individual EEOC filing is

not a prerequisite to opting into a § 16(b) action where the

representative plaintiff has filed a timely charge with the EEOC

that gives the employer notice that class-wide discrimination is

alleged.   855 F.2d at 1078.   "So long as class issues are

alleged, a timely charge may serve as the basis for a class

action."   Id. (emphasis added).   However, we clearly

distinguished class actions from other situations where a

plaintiff seeks to "piggyback" onto a timely charge:     "To view

opt-in suits under §16(b) as either permissive joinders or

efforts to intervene would necessarily require that the plaintiff

individually fulfill all of the prerequisites to suit."     Id.
           Similarly, in Lockhart, we recognized that ADEA §7(d)

requires a complainant to file a timely charge of discrimination

with the EEOC and the appropriate state agency.     879 F.2d at 52.
Ordinarily, a complainant who fails to file a timely charge is

barred from seeking relief.   Id. (citations omitted).   However,

we noted our decision in Lusardi as holding "that plaintiffs who

had not filed charges with the EEOC could opt into an ADEA class

action suit only if the original complainant's EEOC charge gave

the employer notice of class-based age discrimination."    Id. at

52-53 (emphasis added).

          Once again, we made clear that our holding was limited

to the context of §16(b) class actions.    We held that the

district court erred by allowing two new plaintiffs, who had not

filed EEOC charges, to join the suit of the original plaintiff

because his EEOC charge did not give adequate notice of class-

based discrimination.   Id. at 53.   Significantly, however, we

also said that the district court erred in holding
          that the joinder of Bradley and Wilson was
          sanctioned by the permissive joinder rule of
          Fed. R. Civ. P. 20(a). In Lusardi, we recog-
          nized that opt-in class action suits had been
          analogized to permissive joinder and
          intervention, but rejected such comparisons
          .... Moreover, we note that Bradley and
          Wilson could not have been joined pursuant to
          Fed. R. Civ. P. 20(a), in any event, since
          neither one had fulfilled the administrative
          requirement of filing his own timely charge
          with the EEOC.


Id. n. 11.

          Here, the appellees have not brought a § 16(b) class

action, nor obviously, could the four prospective plaintiffs have

filed written consents "opting into" such an action.     The

appellees instead sought to amend their complaint pursuant to

Rule 15(a) to add four new party plaintiffs who had failed to
pursue administrative remedies.   Allowing the amendment for this

purpose would create the same result as permissive joinder or

intervention -- application of the single filing rule outside the

context of a §16(b) class action -- which we rejected in Lusardi

and Lockhart.

          Appellees argue that the following passage in Lusardi

supports their argument that the single filing rule applies to

non-class actions:
          Although the EEOC charge does not use the
          words "similarly situated" or allege speci-
          fically that a class action is going to be
          brought, we fail to see how [the defendant]
          can claim prejudice by the bringing of a
          class action. The charge clearly notifies
          [the defendant] that it allegedly discrimi-
          nates against persons over forty years old as
          a class. Accordingly, the charge provides
          sufficient notice to the parties to encourage
          meaningful conciliation, the purpose of
          requiring it....So long as class issues are
          alleged, a timely charge may serve as the
          basis for a class action.


Lusardi, 855 F.2d at 1078 (citation omitted) (emphasis added).
Appellees' reliance on this passage is misplaced, because it
states merely that a plaintiff is not required to file a "class

charge," only allege class issues that may subsequently form the

basis for a "class action."   There is no suggestion that filing a

charge with allegations broad enough to support a subsequent

class action lawsuit alleviates the burden of filing the class

action itself, with the attendant requirement of class

certification.
          The district court acknowledged that Lusardi and

Lockhart indicate that the single filing rule does not apply to

non-class actions; however, it was persuaded by the analysis in

Tolliver, supra, which held that the single filing rule applies

equally to ADEA individual and class actions.   We conclude,

however, that our analysis in Lusardi and Lockhart controls our

decision here, and provides plaintiffs the option of seeking

class certification and prospective plaintiffs who failed to seek

a timely administrative remedy for their alleged injury the

opportunity to opt into the class.   When, however, plaintiffs

choose to bring suit individually, they must first satisfy the

prerequisite of filing a timely EEOC charge.

          Accordingly, we will reverse and remand the cause to

the district court with instructions that it deny appellees'

motion to amend their complaint.
