                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2007

Ruehl v. Viacom Inc
Precedential or Non-Precedential: Precedential

Docket No. 06-1463




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                                              PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                           No. 06-1463


                       JAMES H. RUEHL

                                v.

VIACOM, INC., successor by merger to CBS CORPORATION,
   f/k/a WESTINGHOUSE ELECTRIC CORPORATION,

                                         `Appellant




        On Appeal from the United States District Court
           for the Western District of Pennsylvania
                    (D.C. No. 04-cv-0075)

          District Judge: Honorable Donetta Ambrose




                   Argued December 12, 2006


 Before: FUENTES and VAN ANTWERPEN, Circuit Judges,
             and PADOVA,* District Judge.

                   (Filed: September 7, 2007 )



 * Honorable John R. Padova, District Judge for the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.

                                 1
Glen D. Nager (Argued)
Lawrence D. Rosenberg
Julia C. Ambrose
Thomas J. Davis
Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113

Amy E. Dias
Jones Day
31st Floor, One Mellon Ctr.
500 Grant Street
Pittsburgh, PA 15219

      Attorneys for Defendant-Appellant

Gary F. Lynch (Argued)
Carlson Lynch Ltd.
36 N. Jefferson Street
P.O. Box 7635
New Castle, PA 16107

Colleen Ramage Johnston
Rothman Gordon, P.C.
310 Grant Street, 3d Floor
Pittsburgh, PA 15219

      Attorneys for Plaintiff-Appellee

Robin S. Conrad
Shane Brennan
National Chamber Litigation Center, Inc.
1615 H Street, N.W.
Washington, D.C. 20062

      Counsel for Amicus Curiae, Chamber of Commerce of
      the United States of America




                               2
                          ____________

                            OPINION
                          ____________

FUENTES, Circuit Judge.

       This is an interlocutory appeal from the District Court’s
denial of Viacom’s summary judgment motion. Viacom seeks to
have James Ruehl’s complaint under the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.,
dismissed for failure to timely exhaust administrative remedies
before the Equal Employment Opportunity Commission (“EEOC”).
The District Court denied summary judgment after concluding that
Ruehl’s failure to exhaust was saved by equitable tolling or, in the
alternative, excused by application of the “single filing rule.” For
the reasons that follow, we disagree with both rulings. We will
reverse the judgment of the District Court and remand for entry of
judgment in favor of Viacom.

I.            Background

        Ruehl had worked for Viacom for twenty-four years, when,
in March 1997, he was transferred from his position as director of
accounting in the Energy Systems Business Unit to the tax
department.1 (App. at 293, 427.) In “late 1997 or early 1998,”
Ruehl attended a meeting at which his supervisors informed him
that the tax department was being eliminated.2 (App. at 291.)
According to Ruehl, “[t]hey just informed me . . . that I was part of
the transition team and that my job would be eliminated on August


       1
          For most of his career Ruehl worked for Westinghouse
Electric Corporation (“WEC”). WEC was later purchased by CBS
Corporation, which was succeeded via merger by Viacom, Inc. For
ease of reference, we will refer to the defendant-appellant as
“Viacom.”
       2
        The record supports Viacom’s assertion that the meeting
was on December 10, 1997, and Ruehl does not dispute that date.
(See App. at 124, 429.)

                                 3
31, 1998.” (Id.) Approximately seven months later, on July 2,
1998, Ruehl received “[o]fficial notification” that his employment
would be terminated, and that his last day would be August 31,
1998. (App. at 301.)

       On his last day, Ruehl signed a “Separation Agreement,
General Release And Promise Not to Sue” (the “Release”), which
included a waiver of the right to sue for age discrimination under
the ADEA. (App. at 146-47.) Ruehl testified that during the
summer of 1998, before he signed the Release, he began to suspect
that his age may have played a role in Viacom’s decision to
terminate him. (App. at 295.) Other terminated employees shared
his suspicion and, on December 21, 1998, two former Viacom
employees, Norman Mueller and Harry Bellas, filed EEOC
charges, alleging that they were terminated as part of a “pattern and
scheme of systematic discrimination against older workers.” (App.
at 151-54.)

        In August 1999, Mueller and Bellas filed a collective action
under the ADEA, in the Western District of Pennsylvania (the
“Mueller-Bellas action”). The ADEA incorporates the collective
action provisions of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 216(b).3 See 29 U.S.C. § 626(b) (incorporating § 216(b)).
Unlike class actions governed by Rule 23 of the Federal Rules of
Civil Procedure, in which potential class members may “opt out,”
collective actions under the FLSA require potential class members
to notify the court of their desire to “opt in” to the action. See 29
U.S.C. § 216(b) (“No employee shall be a party plaintiff to any
such action unless he gives his consent in writing to become such
a party and such consent is filed in the court in which such action




       3
           Most courts, ours included, have not been methodical in
their use of the terms “class action” and “collective action.” The
result is that numerous cases about FLSA “collective actions” use
the Rule 23 term “class action.” Here, we will quote cases that use
the terms interchangeably, and we will refer to members of a
“collective action” as part of a “class,” but we will indicate where
our analysis is limited to collective actions.

                                 4
is brought.”).4

      On March 14, 2001, the district court conditionally certified
two sub-classes of plaintiffs in the Mueller-Bellas action.5 (See


       4
         See also Whalen v. W.R. Grace & Co., 56 F.3d 504, 506
(3d Cir. 1995) (“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 . . . by any
one or more employees for and in behalf of himself or themselves
and other employees similarly situated.’”) (quoting § 216(b));
Grayson v. K Mart Corp., 79 F.3d 1086, 1106 (11th Cir. 1996) (“In
creating a collective action procedure for ADEA actions, Congress
clearly adopted the opt-in joinder procedures of section 216(b) of
the FLSA and thus impliedly rejected the Rule 23 [opt-out] class
action procedures applicable to Title VII actions.”).
       5
         Subclass I, relating to Mueller’s and Bellas’s claim of
discriminatory termination decisions, was defined as:

       All United States citizens employed by
       Westinghouse Electric Corporation . . . who were
       designated by Westinghouse as “Professionals” or
       “Managers” and who were, at any time between
       January 1, 1994 and December 31, 1999,
       involuntarily terminated from employment with
       Westinghouse (or who elected retirement after being
       informed that their employment with Westinghouse
       was going to be involuntarily terminated) and who
       were, at the time of such involuntary termination (or
       retirement), 40 years of age or older.

(App. at 192.) Subclass II, relating to Mueller’s and Bellas’s claim
of discrimination through amendments to the Westinghouse
Pension Plan in 1994, was defined as:

       All participants in the Westinghouse Pension Plan
       who were 40 years of age or older on January 1,
       1995, and who took the “lump sum” option between

                                 5
App. at 191-92.) Ruehl opted in to both subclasses on March 28,
2001. (See App. at 173.) Viacom moved for decertification of the
subclasses on May 13, 2002 arguing, among other things, that
neither group of plaintiffs was “similarly situated” (as required for
a collective action under the FLSA or ADEA) “because they have
disparate factual and employment settings, there are substantial
conflicts among members of each subclass, and there are numerous
individualized defenses to their claims.” (App. at 193.) On
December 9, 2002, the district court granted Viacom’s motion,
decertified both subclasses, and dismissed the action in its entirety.
(See App. at 258.) On March 20, 2003, the opt-in plaintiffs,
including Ruehl, were notified of the decertification. (See App. at
273; Ruehl Br. at 5.)

        Nearly six months later, on October 14, 2003, Ruehl filed
his first, independent charge of age discrimination with the EEOC.
(App. at 275; Ruehl Br. at 5.) About four months later, on January
20, 2004, he commenced this action under the ADEA in the
Western District of Pennsylvania. (App. at 280-83; Ruehl Br. at 5.)
On August 12, 2004, after limited discovery on whether Ruehl’s
waiver of ADEA claims was valid, Viacom filed a motion for
summary judgment, arguing that Ruehl’s EEOC charge and his
district court complaint were both untimely. On November 18,
2004, the Court denied the motion, holding that despite the facial
untimeliness of Ruehl’s EEOC charge under the ADEA, his claim
could be saved by either the “single filing rule,” which would allow
him to rely on the filing date of Mueller’s timely EEOC charge, or
by equitable tolling based on alleged defects in the Release Ruehl
signed on his last day at Viacom.

       On March 9, 2005, the District Court certified its order for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b), finding
“substantial grounds for a difference of opinion exist as to both
controlling issues of law,” resolution of which “would materially
advance the termination of this litigation” and “three related cases



        January 1995, and December 31, 1999.

(Id.)

                                  6
involving 67 plaintiffs.” (App. at 22-23.) On January 31, 2006, we
granted Viacom’s petition for interlocutory review. (App. at 65.)
This appeal followed.6

II. Validity of Release of ADEA Claims

        As a threshold matter, we will consider the validity of
Ruehl’s waiver of ADEA claims, which forms the basis of his
equitable tolling argument. We agree with the District Court that
the Release Ruehl signed violates the Older Workers Benefit
Protection Act (“OWBPA”), 29 U.S.C. § 626. The OWBPA
imposes specific requirements for releases covering ADEA claims.
In particular, § 626(f)(1)(F) of OWBPA provides that a waiver of
claims is not knowing and voluntary unless, at a minimum, “(i) the
individual is given a period of at least 21 days within which to
consider the agreement; or (ii) if a waiver is requested in
connection with an exit incentive or other employment termination
program offered to a group or class of employees, the individual is
given a period of at least 45 days within which to consider the
agreement.” Id. In the latter situation, the employer must

       inform[] the individual in writing in a manner
       calculated to be understood by the average individual
       eligible to participate, as to:




       6
          Our review of the District Court’s denial of summary
judgment is plenary. See Miller v. Bolger, 802 F.2d 660, 662 (3d
Cir. 1986). We apply the same standard as the District Court:
“Summary judgment is appropriate only where, drawing all
reasonable inferences in favor of the nonmoving party, there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Lexington Ins. Co. v.
Western Pa. Hosp., 423 F.3d 318, 322 n.2 (3d Cir. 2005) (internal
quotation marks omitted). We also exercise plenary review over
the District Court’s choice and interpretation of applicable tolling
principles and its conclusion that facts permit equitable tolling of
the statute of limitations. See Ebbert v. Daimler Chrysler Corp.,
319 F.3d 103, 118 (3d Cir. 2003).

                                 7
       (i) any class, unit, or group of individuals covered by
       such program, any eligibility factors for such
       program, and any time limits applicable to such
       program; and

       (ii) the job titles and ages of all individuals eligible
       or selected for the program, and the ages of all
       individuals in the same job classification or
       organizational unit who are not eligible or selected
       for the program.

Id. at § 626(f)(1)(H).7

      In signing the Release, Ruehl affirmed that he was
informed, in writing, by Viacom, about

       (i) any class, unit or group of individuals covered by
       the Involuntary Separation Program, any eligibility
       factors for the Involuntary Separation Program, and
       any time limits applicable; and (ii) the job titles and
       ages of all individuals eligible or selected for the
       Involuntary Separation Program, and the ages of all
       individuals in the same job classification or
       organizational unit who are not eligible or selected
       for the program.

(App. at 147-48.) This language, drafted by Viacom, tracks the
language of the OWBPA. It is undisputed, however, that Viacom
failed to actually provide Ruehl with the required information.


       Nonetheless, Viacom argues that the Release complies with
the OWBPA because Viacom would have made the information
available to Ruehl had he requested it. Ruehl responds that he did
not request the information, but signed the waiver saying he did,
because he was afraid that any request or modification of the



       7
        The Release that Ruehl signed was undisputedly governed
by § 626(f)(1)(H).

                                  8
Release would delay his receipt of pension benefits. He argues that
the Release is invalid under the plain language of § 626(f)(1)(H)
because that provision places the burden on the employer to ensure
that waivers are knowing and voluntary. Ruehl is correct.

       The OWBPA places the burden on employers seeking
releases to “inform[] the individual in writing” of the demographic
information listed in § 626(f)(1)(H). Viacom never provided Ruehl
the information, and the Release does not mention Ruehl’s right to
receive it, nor does it mention that the information was available
upon request or how one might obtain the information. Ruehl’s
waiver was therefore not knowing and voluntary under the
OWBPA. Having the employee say he was informed in
writing—when he was not—does not satisfy the OWBPA’s
requirements.

       Our strict construction of the OWBPA’s disclosure
requirement follows the direction of the Supreme Court in Oubre
v. Energy Operations, Inc., 522 U.S. 422 (1998):

       The policy of the OWBPA is . . . to protect the rights
       and benefits of older workers. The OWBPA
       implements Congress’ policy via a strict, unqualified
       statutory stricture on waivers, and we are bound to
       take Congress at its word. Congress imposed
       specific duties on employers who seek releases of
       certain claims created by statute.            Congress
       delineated these duties with precision and without
       qualification . . . . Courts cannot with ease presume
       ratification of that which Congress forbids.
       ...
               The statute creates a series of prerequisites for
       knowing and voluntary waivers and imposes
       affirmative duties of disclosure and waiting periods.
       The OWBPA governs the effect under federal law of
       waivers or releases on ADEA claims and
       incorporates no exceptions or qualifications.

Id. at 427 (emphasis added).



                                  9
        Consistent with Oubre, several Courts of Appeals have
required strict compliance with the OWBPA’s disclosure
requirements. See Kruchowski v. Weyerhaeuser Co., 446 F.3d
1090, 1095 (10th Cir. 2006) (holding waiver invalid because
employer defined “decisional unit” too broadly and “terminated
employees [must] be informed of the ‘decisional unit’ at the time
they consider whether to waive any ADEA claims.”); Adams v.
Ameritech Servs., Inc., 231 F.3d 414, 431 (7th Cir. 2000) (holding
that “salary grade” instead of “job titles” is too general to furnish
the kind of information the statute contemplates; and stating that
“[a]s a form of worker protection legislation, the OWBPA demands
information that allows people to ascertain whether they are being
treated fairly vis-a-vis their peers.”); Tung v. Texaco Inc., 150 F.3d
206, 209 (2d Cir. 1998) (holding release invalid where
demographic information was given to employee on the day he
signed the release, not 45 days before, in accordance the OWBPA).

      Viacom argues that if we invalidate Ruehl’s waiver,
employers will be forced to attach voluminous amounts of
unwanted material to every release. This, Viacom contends, would
unduly burden both the employer and the employee.8 But we are



       8
           Viacom and amicus curiae, United States Chamber of
Commerce, point to the fact that the EEOC asked for public
comments on whether providing demographic information only
“upon request” satisfies § 626(f)(1)(H). They argue that the
EEOC’s action shows that the plain language of the statute does
not require appending the material to the release. They also point
to comments received by the EEOC from the Equal Employment
Advisory Council, which state that “a waiver will not be rendered
invalid if the information [in subparagraph H is] made available for
examination instead of being distributed in full . . . . [i]f the
employer simply informs all eligible employees that the additional
information is available for inspection in the personnel office or
other convenient location, those interested will be able to access
and examine it.” See Viacom Br. at 57 (citing July 22, 1992 letter
from Equal Employment Advisory Council to EEOC at 22, App. at
107) (emphasis added). Here, Viacom neither appended the
required information to the Release nor informed employees in

                                 10
not suggesting that Viacom was required to include boxes of paper
with each and every waiver. We hold only that Ruehl’s waiver was
invalid because Viacom neither attached the required information
to the Release nor adequately informed him of the relevant
information, or how to get it, in any writing at all.

III. Timeliness of EEOC Charge

       Ruehl did not file an EEOC charge until October 14, 2003.
That was 2135 days from the first adverse employment
action—over five years late. Generally, a judicial complaint under
the ADEA will be dismissed for failure to exhaust administrative
remedies if a supporting EEOC charge was not filed within 180 or
300 days (depending on state law) of notification to the employee
of the adverse employment action.9 “Like Title VII, ADEA has


writing about how to get it.
       9
        Section 7(d) of the ADEA, 29 U.S.C. § 626(d), details this
“exhaustion requirement”:

       No civil action may be commenced by an individual
       under this section [authorizing civil actions] until 60
       days after a charge alleging unlawful discrimination
       has been filed with the Equal Employment
       Opportunity Commission. Such a charge shall be
       filed-

       (1) within 180 days after the alleged unlawful
       practice occurred; or

       (2) in a case to which section 633(b) of this title applies,
       within 300 days after the alleged unlawful practice
       occurred, or within 30 days after receipt by the individual of
       notice of termination of proceedings under State law,
       whichever is earlier.

       Upon receiving such a charge, the Commission shall
       promptly notify all persons named in such charge as
       prospective defendants in the action and shall promptly seek

                                 11
deferral provisions and the time for filing a charge depends on
whether deferral applies. In deferral states, such as Pennsylvania,
the charge must be filed within 300 days of the allegedly illegal
act.” 10 Seredinski v. Clifton Precision Prods. Co., 776 F.2d 56, 63
(3d Cir. 1985). Thus, Ruehl had 300 days from December 10,
1997, the day he was notified his job would be eliminated, to file
an EEOC charge. See Watson v. Eastman Kodak Co., 235 F.3d
851, 852-53 (3d Cir. 2000) (“[A]n adverse employment action
occurs, and the statute of limitations therefore begins to run, at the


          to eliminate any alleged unlawful practice by informal
          methods of conciliation, conference, and persuasion.

Id. (footnote added).
          10
               Section 633(b), explains what makes a state a “deferral
state”:

          In the case of an alleged unlawful practice occurring
          in a State which has a law prohibiting discrimination
          in employment because of age and establishing or
          authorizing a State authority to grant or seek relief
          from such discriminatory practice, no suit may be
          brought under section 626 of this title before the
          expiration of sixty days after proceedings have been
          commenced under the State law, unless such
          proceedings have been earlier terminated: Provided,
          That such sixty-day period shall be extended to one
          hundred and twenty days during the first year after
          the effective date of such State law. If any
          requirement for the commencement of such
          proceedings is imposed by a State authority other
          than a requirement of the filing of a written and
          signed statement of the facts upon which the
          proceeding is based, the proceeding shall be deemed
          to have been commenced for the purposes of this
          subsection at the time such statement is sent by
          registered mail to the appropriate State authority.

Id.

                                    12
time the employee receives notice of that action and termination is
a delayed but inevitable result.”).

       Absent an applicable saving doctrine, Ruehl’s EEOC charge
was untimely, and his case must be dismissed.11 The District Court
held, however, that Ruehl’s claim was saved by the doctrine of
equitable tolling or, in the alternative, the single filing rule. For the
reasons that follow, we conclude that neither doctrine applies.

       A. Equitable Tolling

        The District Court denied summary judgment because it
found there were material issues of fact about whether equitable
tolling should be applied to Ruehl’s charge filing deadline. On
appeal, Ruehl argues that equitable tolling is appropriate for two
reasons: (1) Viacom actively misled him by “obtaining an invalid
waiver of claims,” that “lulled” him “into believing he had given
up his ability to pursue a claim of age discrimination;” and (2)
Viacom actively misled him by failing to make required disclosures
under the OWBPA. See Ruehl Br. at 25-26. We conclude that
Ruehl has not demonstrated extraordinary circumstances that
would justify equitable tolling.



       11
           In addition to the exhaustion requirement, the ADEA has
a filing requirement, under which a judicial complaint must be filed
within 90 days of either (1) receipt of a notice that a charge filed
with the EEOC has been dismissed or (2) notice EEOC
proceedings are being terminated by the EEOC. See Sperling v.
Hoffman-La Roche, Inc., 24 F.3d 463, 464 n.1 (3d Cir. 1994)
(citing 29 U.S.C. § 626(e)). In cases where a plaintiff has joined
a class or collective action complaint, and certification was denied,
or a conditionally certified class was decertified, courts have held
that an individual judicial complaint must be filed within ninety
(90) days of the denial of certification or decertification. See, e.g.,
Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1391-92 (11th
Cir. 1998); Basch v. Ground Round, Inc., 139 F.3d 6, 11 (1st Cir.
1998). We need not consider whether Ruehl’s judicial complaint
was timely because, for the reasons we explain below, Ruehl has
failed to meet the administrative exhaustion requirement.

                                   13
        The ADEA’s timely exhaustion requirement is a
non-jurisdictional prerequisite that, like a statute of limitations, is
subject to equitable tolling. Commc’ns Workers of Am. v. N. J.
Dept. of Pers., 282 F.3d 213, 216-17 (3d Cir. 2002) (hereinafter
“Communications Workers”). Equitable tolling stops the statute of
limitations from running when an EEOC charge’s accrual date has
already passed. Oshiver v. Levin, Fishbein, Sedran & Berman, 38
F.3d 1380, 1387 (3d Cir. 1994).

        In Oshiver, we explained two requirements for equitable
tolling in an employment discrimination case:

       the equitable tolling doctrine may excuse the
       plaintiff’s non-compliance with the statutory
       limitations provision at issue when it appears that (1)
       the defendant actively misled the plaintiff respecting
       the reason for the plaintiff’s discharge, and (2) this
       deception caused the plaintiff’s non-compliance with
       the limitations provision.

Id. (emphasis added). In addition, “equitable tolling requires the
plaintiff to demonstrate that he or she could not, by the exercise of
reasonable diligence, have discovered essential information bearing
on his or her claim.” In re Mushroom Transp. Co., 382 F.3d 325,
339 (3d Cir. 2004) (internal quotation marks omitted); see also Hart
v. J.T. Baker Chem. Co., 598 F.2d 829, 834 (3d Cir. 1979)
(denying equitable tolling although employee was given four
reasons for her discharge, none related to her gender, “her
suspicions [of gender discrimination] were sufficient to lead a
reasonable person to inquire further into the reasons for her
discharge”).

       Ruehl argues, first, that he was “actively misled” by the
invalid Release into believing he had waived all claims under the
ADEA. The problem with this argument is that Ruehl alleges a
misrepresentation of law, not of fact. Although Ruehl may have
been misled by the presentation of an invalid release, this did not
cause his late filing because he, like everyone, has access to the
law. See Utah Power & Light Co. v. Fed. Ins. Co., 983 F.2d 1549,
1556 (10th Cir. 1993) (“[N]o one can be deceived by a

                                  14
misrepresentation of law because everyone has access to the law .
. . .”). Had he been diligent, Ruehl would have discovered that the
Release was invalid in time to file a charge. See Mushroom, 382
F.3d at 339 (requiring, for equitable tolling, that plaintiff show
reasonable diligence would not have revealed essential information
bearing on his or her claim). Indeed, Ruehl had reason to suspect
the Release was invalid because it stated—and he affirmed—that
he had seen demographic information, even though none had been
provided.

       Ruehl argues, second, that there are material issues of fact
about whether Viacom actively misled him by failing to disclose
OWBPA information. He maintains that this information would
have revealed age discrimination and undermined Viacom’s
non-discriminatory explanation for his termination. But even
assuming we agree with Ruehl that, depending on what the
disclosures reveal, a jury could infer that Viacom actively misled
him as “part of an intentional plan to hide vital information from its
employees,” Ruehl’s diligence is also in issue. (See App. at 17.)

       Ruehl cannot benefit from equitable tolling unless he shows
both that Viacom actively misled him about the reason for his
discharge,12 and that this deception caused his late filing. See



       12
             We express no opinion about whether Ruehl has
established a factual basis for his claim that Viacom actively misled
him, but we reject Viacom’s legal argument that Ruehl cannot
show “actively misleading” conduct under Oshiver based on a
failure to disclose under the OWBPA. See Meyer v. Riegel Prods.
Co., 720 F.2d 303, 308-09 (3d Cir. 1983) (tolling the statute of
limitations on EEOC charge where employer told employee he was
being fired because of corporate reorganization, but omitted the
fact that a younger employee had been hired to take over his job);
Bonham v. Dresser Indus., Inc., 569 F.2d 187, 193 (3d Cir. 1977)
(“[C]ases may arise where the employer’s own acts or omissions
have lulled the plaintiff into foregoing prompt attempts to vindicate
his rights.”) (quoted in Meyer, 720 F.2d at 307 and Oshiver, 38
F.3d at 1387) (emphasis added). Viacom further insists that the
only legal consequence for failing to follow the dictates of

                                 15
Oshiver, 38 F.3d at 1387. The record in this case does not a permit
a finding that Ruehl met the second requirement.

      Specifically, Ruehl admitted at his deposition that he first
thought he had been subjected to age discrimination in the summer
of 1998:

       I guess when I was probably the oldest person in the
       department that was let go, and I was the only one
       not offered a job with the outsourcer. . . . [around]
       Summer of ‘98 I guess, you know, around the time
       of my termination . . . .

(App. at 295.) Ruehl also admitted that in 1994 he thought there
may have been age discrimination at Viacom when, in his presence,
Viacom’s Chief Financial Officer referred to an older employee as
a “blocker,” and said that Viacom needed to “get him out of here.”
(App. at 292.) Ruehl perceived this at the time to be the type of
“comments [that] were probably made about me the same way
when I wasn’t in the room.” (Id.)

        These facts, which would have supported Ruehl’s cause of
action, were known to him by the time he was terminated in August
1998. He has failed to explain how Viacom’s failure to disclose
under the OWBPA, however misleading, caused his failure to
pursue a claim based on information he already had. Ruehl has



OWBPA is that Ruehl’s waiver is invalid, and that it can have no
bearing on equitable tolling. Viacom Br. at 47. This argument
misses the point: our task is to determine whether there is a
material issue of fact regarding whether Viacom actively misled
Ruehl about his cause of action, and material omissions are
relevant to that inquiry. See Mushroom, 382 F.3d at 339 (“In
assessing the finding that [the plaintiff] failed as a matter of law to
exercise reasonable diligence for purposes of . . . equitable tolling,
we are guided by the general rule that such determinations are
typically within the jury’s province unless the facts are so clear that
reasonable minds cannot differ . . . .”) (internal quotation marks
and citation omitted).

                                  16
therefore failed to show the type of exceptional circumstances that
warrant equitable tolling.

B. “Single Filing Rule”

        The District Court held, alternatively, that the single filing
rule permits Ruehl, as a former plaintiff in the decertified Mueller-
Bellas class, to “piggyback” on Mueller’s EEOC charge, thereby
dispensing with the requirement that he file a timely charge of his
own.13 The single filing (or “piggybacking”) rule is a judge-made
exception to the requirement that plaintiffs exhaust their
administrative remedies prior to filing suit. Communications
Workers, 282 F.3d at 217 (“Under the single filing rule doctrine, a
plaintiff who has not filed an EEOC charge within the requisite
time period can join a class action without satisfying either
requirement—exhaustion and filing—if the original EEOC charge
filed by the plaintiff who subsequently filed a class action had
alleged class based discrimination in the EEOC charge.”); Whalen
v. W.R. Grace & Co., 56 F.3d 504, 506 (3d Cir. 1995) (“[The
single filing rule] allows aggrieved individuals who failed to file
the required . . . EEOC charge to join a class action brought by a
plaintiff who had filed an EEOC charge alleging class-wide
discrimination.”).

      1. Limitation of The Single Filing Rule to Class and
Collective Actions

       Beginning with Lusardi v. Lechner, 855 F.2d 1062 (3d Cir.
1988), we have limited application of the single filing rule to the
collective and class action context. In Lusardi, the district court
decertified a collective action filed by Xerox workers under the
ADEA because the plaintiffs did not satisfy the ADEA’s “similarly
situated” requirement. 855 F.2d at 1066; see also 29 U.S.C. §
216(b) (“An action . . . may be maintained . . . by any one or more
employees for and in behalf of himself or themselves and other
employees similarly situated.”). The court relied in part on the fact



       13
          We express no opinion on whether Mueller’s charge was
timely filed.

                                 17
that not every class member had filed an individual EEOC charge.
See id. at 1076. On appeal, we remanded the case to the district
court for reconsideration, because we agreed with amicus EEOC’s
position that a single, representative complaint can achieve the
notice and conciliation purpose of the EEOC filing, “[s]o long as
class issues are alleged.” 14 Id. at 1078; accord Lockhart v.
Westinghouse Credit Corp., 879 F.2d 43, 52 (3d Cir. 1989).15

       On remand, the district court again decertified the class,
implementing our holding, but still finding that the plaintiffs were
not “similarly situated,” because

       [t]he members of the proposed class come from
       different departments, groups, organizations,


       14
           We outlined the purpose of filing discrimination claims
first with the EEOC in Anjelino v. New York Times Co., 200 F.3d
73 (3d Cir. 1999):

       The preliminary step of the filing of the EEOC
       charge and the receipt of the right to sue notification
       are essential parts of the statutory plan, designed to
       correct discrimination through administrative
       conciliation and persuasion if possible, rather than
       by formal court action. Because the aim of the
       statutory scheme is to resolve disputes by informal
       conciliation, prior to litigation, suits in the district
       court are limited to matters of which the EEOC has
       had notice and a chance, if appropriate, to settle.

Id. at 93 (internal quotation marks and citation omitted).
       15
          We recognized in Starceski v. Westinghouse Elec. Corp.,
54 F.3d 1089, 1099 n.10 (3d Cir. 1995) that Lockhart was
effectively overruled on unrelated grounds by Hazen Paper Co. v.
Biggins, 507 U.S. 604 (1993), which rejected any requirement in
ADEA actions, of “direct” evidence of discrimination,
“outrageous” conduct by the employer, or proof that age was the
predominant rather than a determinative factor in the employment
decision.

                                 18
       sub-organizations, units and local offices within the
       Xerox organization. The opt-in plaintiffs performed
       different jobs at different geographic locations and
       were subject to different job actions concerning
       reductions in work force which occurred at various
       times as a result of various decisions by different
       supervisors m ad e o n a d ecen tralized
       employee-by-employee basis.

Lusardi v. Xerox Corp., 122 F.R.D. 463, 465 (D.N.J. 1988).

        Then, in Tolliver v. Xerox Corp., 918 F.2d 1052, 1055 (2d
Cir. 1990), the Second Circuit considered an individual action
brought by a former Lusardi class member who had not filed his
own timely EEOC charge. Tolliver extended the single filing rule
beyond the class action context, to any individual action where “it
can fairly be said that no conciliatory purpose would be served by
filing separate EEOC charges.” Id. at 1058 (citation omitted). The
court reasoned that the single filing rule can apply even where a
class action would be inappropriate because the purpose of the
administrative filing requirement, timely conciliation, is separate
from the purposes of class certification. Id. at 1059. Importantly,
the plaintiff’s status as a former member of a decertified class was
irrelevant to the holding.

        We rejected the Second Circuit’s approach in Whalen. 56
F.3d at 507. Whalen addressed whether plaintiffs who had not
filed individual EEOC charges could join a previously-filed ADEA
action, pursuant to Federal Rule of Civil Procedure 15(b). Id. at
505-06. The five plaintiffs in the original action had filed a joint
complaint, but not a collective action. Id. at 505. The prospective
plaintiffs argued that the single filing rule applied, and the district
court, relying on Tolliver, permitted the joinder. Id. at 506. We
reversed, explaining that under Lusardi, “[t]here 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.” Id. at 507.

       We further emphasized the connection between the

                                  19
certification process and proper application of the single filing rule
in Communications Workers, 282 F.3d at 218. In that case, a union
filed an EEOC charge alleging racial discrimination by the State of
New Jersey. Id. at 215. The union then filed a timely complaint,
asserting associational standing, and alleging discrimination against
all of the union’s black and Hispanic members, without naming any
individuals. Id. About a year later, a separate chapter of the same
union successfully intervened in the original action, but the district
court dismissed its complaint as time barred. Id. at 215-16. On
appeal, the chapter argued that it could piggyback on the union’s
timely complaint because the union had filed on behalf of all its
members, and that was functionally the same as a class action. Id.
at 217. We disagreed, reasoning that “acceptance of [that]
argument would eviscerate the distinction between an action filed
by an entity based on associational standing . . . and class actions,”
with “the attendant requirements of class certifications and the
associated procedural due notice and fairness safeguards as
provided by Fed. R. Civ. P. Rule 23.” Id. at 218 (emphasis added).

        The focus of our early cases, Lusardi and Lockhart, was that
in the limited context of a class or collective action, a single EEOC
charge alleging class-wide discrimination satisfies the exhaustion
requirement for all class plaintiffs because it achieves the EEOC
goals of notice and conciliation. Our later cases, Whalen and
Communications Workers, emphasized that the single filing rule is
limited to plaintiffs who have undergone the class certification
process, because that process ensures notice and possible
conciliation of each class member’s claims. We have not squarely
addressed whether the single filing rule applies in individual
actions after decertification.16



       16
           Courts in the Western District of Pennsylvania have
generally applied it post-decertification, whereas courts in the
Eastern District of Pennsylvania have generally not. Compare Ray
v. Consol. Rail Corp., No. 98-1757, at 7 (W.D. Pa. June 29, 1999);
McKernan v. Consol. Rail Corp., No. 98-1758, at 6 (W.D. Pa. June
29, 1999); Hilton v. Consol. Rail Corp., No. 98-364, at 6 (W.D. Pa.
June 23, 1999); Mayo v. Consol. Rail Corp., 96-656, at 9-10 (W.D.
Pa. June 23, 1999); In re Consol. Rail Corp. A.D.A. Litig., Nos.

                                 20
        Ruehl argues that because the Mueller-Bellas action had
been conditionally certified, Ruehl’s subsequent individual action
remains in the “context of a class action” and the single filing rule
should therefore be available to him even after decertification. In
our view, this proposed extension of the single filing rule does not
follow from our precedent, and would make little sense under the
facts of this case. We conclude that when a class is decertified
because the plaintiffs are not “similarly situated,” those plaintiffs
are in a qualitatively different position than plaintiffs in a certified
class, and our reasons for applying the single filing rule—in
Lusardi, Lockhart, Whalen, and Communications Workers—are
inapplicable.

       2.      Application of the Single Filing Rule after
               Decertification

       The district court explained in its well-reasoned and
exhaustive opinion decertifying the Mueller-Bellas class, that its
conditional certification under the ADEA had been granted because
there was sufficient evidence of age-based discrimination to
proceed with notice and initial discovery. Mueller v. CBS, Inc.,
No. 99-1310, at 6 (W.D. Pa. Dec. 9, 2002) (App. at 194); see also
Sperling v. Hoffman La-Roche, Inc., 118 F.R.D. 392, 407 (D.N.J.
1988) (explaining that at the initial notice stage, plaintiffs need
only make “substantial allegations” that they were collectively “the
victims of a single decision, policy, or plan infected by
discrimination.”). The court remarked that at the “notice stage” the
standard for conditional certification is “comparatively liberal.”
(App. at 194.)



98-1669, 98-1671, 98-1672, and 98-1759, at 9-10 (W.D. Pa. Mar.
23, 1999); with Foreman v. Consol. Rail Corp., No. 99-2804, 2000
WL 233471, at *1-2 (E.D. Pa. Feb. 25, 2000); Payne v. Consol.
Rail Corp., No. 99-2801, 2000 WL 190229, at *4 (E.D. Pa. Feb.
10, 2000); Wills v. Consol. Rail Corp., No. 99-2811, 2000 WL
365954, *2 -3 (E.D. Pa. Apr. 10, 2000); Koban v. Consol. Rail
Corp., No. 98-5872, 1999 WL 672657, at *2 (E.D. Pa. Aug. 13,
1999).


                                  21
       On reconsideration, however, the district court decertified
the Mueller-Bellas class, applying the factors set out in Plummer
v. General Electric Co., 93 F.R.D. 311 (E.D. Pa. 1981), and
Lusardi, 118 F.R.D. 351 (D.N.J. 1987).17 Based on these factors,
the court concluded that the class members were not “similarly
situated”:

       Plaintiffs are suggesting . . . that we continue to
       “slice and dice” a group of nearly 1,500 terminated
       employees until we find two or three who are not
       hopelessly disparate in time, location, management,
       who have no internal conflicts regarding



       17
            At the “reconsideration phase,” after potential class
members have filed their consents to opt in and after there has been
further discovery to support the plaintiffs’ allegations, a district
court may revoke conditional certification if the proposed class
does not meet FLSA’s “similarly situated” requirement. Neither
FLSA nor the ADEA define the term “similarly situated,” but we
have approved of the balancing of factors in Plummer, 93 F.R.D.
311, and Lusardi, 118 F.R.D. 351. See Lockhart, 879 F.2d at 51
(approving and applying these factors). A representative (but not
exhaustive or mandatory) list of relevant factors includes whether
the plaintiffs are employed in the same corporate department,
division and location; advanced similar claims of age
discrimination; sought substantially the same form of relief; and
had similar salaries and circumstances of employment. See id. at
51(citing Plummer, 93 F.R.D. at 312); Lusardi, 118 F.R.D. at 358-
59. Plaintiffs may also be found dissimilar on the basis of case
management issues, including individualized defenses. See
Lusardi, 855 F.2d at 1074-75 (“Whether a class action is
inappropriate . . . because of the disparate individual defenses . . .
[is] entrusted to the district court’s sound discretion.”). Under the
ADEA, employers may defend age discrimination claims on the
ground that the disparate treatment was based on “reasonable
factors other than age,” 29 U.S.C. § 623(f)(1), such as termination
for good cause, lack of a bona fide occupational qualification,
business necessity, seniority, the implications of a bona fide benefit
plan, and waiver, Mueller, No. 99-1310, at 9 (App. at 197.).

                                 22
       supervision, and who are subject to only one or two
       generalized defenses . . . . I decline to accept
       Plaintiffs’ suggestion that I resolve their factual
       disparity problems for them . . . .

Mueller, No. 99-1310, at 59 (emphasis added) (App. at 247.)
These reasons for decertification strongly counsel against
application of the single filing rule in Ruehl’s individual action.

        First, and most importantly, plaintiffs whose individual
claims were “hopelessly disparate in time, location, management,”
with “internal conflicts regarding supervision,” “subject to only one
or two generalized defenses,” are not different than the individual
plaintiffs in Tolliver or Whalen by virtue of the fact that they were
once members of a conditionally certified class. See Whalen, 56
F.3d at 507. Conditional certification of the Mueller-Bellas action,
as we have explained, only meant that there were allegations of
class-wide discrimination. When, at the reconsideration phase, the
facts of the case came to light, the court determined that the class
members were not similar enough to proceed with their class-wide
claims.

       Second, we believe dissimilarity frustrates the EEOC’s
goals of notice and conciliation—we stand by our disagreement
with Tolliver in this regard. Notice is intended to inform an
employer that “a complaint has been lodged against him and gives
him the opportunity to take remedial action.” Bihler v. Singer Co.,
710 F.2d 96, 99 (3d Cir. 1983) (internal quotation marks omitted).
In this case, the only aspect of the Mueller and Bellas charges
applicable to Ruehl was the class-wide allegation that Viacom
perpetrated a “pattern and scheme of systematic discrimination
against older workers.” (App. at 151- 54.) Even assuming a
pattern and scheme, we cannot fairly presume that Viacom was
notified of anything but the class-wide claims, which the district
court determined were overwhelmed by the plaintiffs’ individual
differences. By the time Ruehl filed his consent to opt in to the
Mueller-Bellas action—and had notified anyone of his individual
claim—it was too late for Viacom to take remedial action.

       Nor does Ruehl provide any reason to assume that

                                 23
conciliation of Ruehl’s individual claims would have been futile.
The EEOC’s role under the ADEA is “to eliminate the
discriminatory practice or practices alleged, and to effect voluntary
compliance . . . through informal methods of conciliation,
conference, and persuasion.” See 29 U.S.C. § 626(b). Fruitless
negotiation of class-wide claims tells us nothing about the
prospects for conciliation of individual claims that involve
potentially different conduct and different defenses.

        Third, and finally, we are unmoved by Ruehl’s prediction
that failure to apply the single filing rule after decertification will
deter plaintiffs from joining a class, for fear that their time to file
a charge will run out while certification is pending.                A
straightforward extension of our holding in Sperling v.
Hoffmann-La Roche, Inc., 24 F.3d 463 (3d Cir. 1994), alleviates
this problem by permitting tolling of the charge filing period, after
an ADEA plaintiff has opted into a collective action, until
decertification. See id. at 468 (“Our holding that ADEA’s statute
of limitations is tolled for eligible class members by the initial
filing of a representative complaint, as long as the representative
nature of the action is clear on the complaint’s face, is
foreshadowed by our opinion in Lusardi, 855 F.2d 1062”).18 Here,



       18
          See also Armstrong v. Martin Marietta Corp., 138 F.3d
1374, 1392 (11th Cir. 1998) (tolling the EEOC charge-filing period
during the pendency of plaintiffs’ participation in ADEA collective
actions); McDonald v. Sec’y of Health & Human Servs., 834 F.2d
1085, 1092 (1st Cir. 1987) (holding that the principles of Am. Pipe
& Constr. Co. v. Utah, 414 U.S. 538 (1974), permitting tolling of
the time to file a complaint during the pendency of a class action,
are “generally applicable” to administrative limitations periods, so
that after a class action was decertified on appeal, the class
members could “go forward from the point where they had left off
during pendency of the class action” and exhaust their
administrative remedies); Sharpe v. Am. Express Co., 689 F. Supp.
294, 300 (S.D.N.Y. 1988) (“Applying the tolling rule to the filing
of administrative claims will have the same salutary effect as exists
for the filing of lawsuits. In both cases, tolling the statute of
limitations during the pendency of a class action will avoid

                                  24
however, even if we tolled Ruehl’s charge filing period during the
pendency of the Mueller-Bellas action, his charge would still be
untimely.

        For these reasons, we hold that the single filing rule is not
available to former members of a collective action that is
decertified because the plaintiffs are not “similarly situated.” 19 It
is therefore not applicable in Ruehl’s case.

III.   Conclusion

        Ruehl’s EEOC charge was filed over five years too late.
Because he was aware of a factual basis for his claim in time to file
a charge, and Viacom’s allegedly misleading behavior in procuring
an invalid waiver did not cause his late filing, Ruehl is ineligible
for equitable tolling. In addition, because the Mueller-Bellas
action was decertified on grounds of dissimilarity, he cannot
piggyback on anyone else’s timely filed charge. Without equitable
tolling or piggybacking, Ruehl fails to satisfy the ADEA’s timely
exhaustion requirement. We will therefore reverse the District
Court’s order and remand for entry of summary judgment in favor
of Viacom.




encouraging all putative class members to file separate claims with
the EEOC . . . .”).
       19
          Our holding is limited to a decertified collective action.
We express no opinion about application of the rule in the context
of a decertified, Rule 23 class action.

                                 25
