United States Court of Appeals,

Fifth Circuit.

No. 91–2649.

Richard M. ANSON, Plaintiff,

Timothy R. Parker, Movant–Appellant,

v.

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, et al.,

Defendants–Appellees.

June 11, 1992.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, REYNALDO G. GARZA, and WIENER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

In this case, appellant claims that the district court erred in denying his motion to intervene

in another plaint iff's age discrimination suit. For the reasons discussed below, we affirm the order of

the district court.

BACKGROUND

On June 30, 1988, Plaint iff Richard A nso n was laid off from his position with Defendant

University of Texas Health Sc ience Center–Houston. Anson's immediate supervisor, Appellant

Timothy Parker, had informed Anson that Defendant was no longer going to fund his position. On

January 24, 1989, Anson filed a charge of age discrimination with the Texas Commission on Human

Rights and the Equal Employment Op p ortunity Commission ("EEOC"). Defendant terminated

Parker's employment in late February, 1989. Parker filed no administrative charge.

The EEOC, having reviewed Anson's charge of discrimination, issued a final determination

dismissing and terminating its administrative processing of the charge. On June 6, 1990, Anson filed

a lawsuit in the Southern District of Texas, Houston Division, alleging age discrimination.Parker moved to intervene on January 30, 1991. The district court denied the motion. This

appeal followed.

ANALYSIS

As the district court noted in its May 9, 1991 order, a class action under the Age

Discrimination in Employment Act ("ADEA"), as amended, 29 U.S.C. §§ 621, et seq., must conform

not with the "opt out" procedural requirements of Fed.R.Civ.P. 23, but rather with the requirements

established by the F air Labor Standards Act of 1938, § 16(b), 29 U.S.C. § 216(b). S ee ADEA, §

7(d), 29 U.S.C. § 626(d); L a Chapelle v. Ow ens–Illinois, Inc., 513 F.2d 286 (5th Cir.1975) (per

curiam). Under Section 216(b), an employee may become an "opt-in" party plaintiff to an already

filed suit by filing written consent with the court where the suit is pending. Parker filed such written

consent.

As the district court further noted, one cannot take legal action in ADEA cases unless one

has filed an administrative charge, in cases arising in Texas, within 300 days of the last act of

discrimination. M

cC orstin v. United States Steel Co., 621 F.2d 749, 755 (5th Cir.1980). We

expressly left open, however, the question of whether one who had not filed an administrative charge

could opt-i n to a suit filed by a similarly situated grievant whose charge had purported to represent

similarly situated employees. Id. at 755–56. McCorstin dealt with a case which arose in 1972 and

was tried in 1977. At that time, Section 626(d) provided:

No civil action may be commenced by any individual under this section until the

individual has given the Secretary [of Labor] not less than sixty days' notice of an intent to

file such action.

McCorstin, 621 F.2d at 755 n. 9.

At one time, the courts disagreed as to whether or not each potential plaint iff must have filed

his o wn administrative charge in order to join the lawsuit of a similarly situated plaintiff. As the1 The district court made no explicit findings on whether or not Parker and Anson are "similarly

situated." Anson was let go due to a reduction in force. Defendants allege that Parker was fired

for cause and that therefore he is not similarly situated with Anson. The meager record presented

to us sheds little light on this issue. Second Circuit noted:

As originally enacted, section 7(d) provided that a suit could not be commenced "by

any individual under this section until the individual has given" at least 60 days notice to the

Secretary of Labor, who was then charged with enforcement of the Act. Pub.L. No. 90–202,

81 Stat. 602, 605 (1967) (empha sis added). In 1978, Congress amended section 7(d) to

eliminat e the requirement that "the individual" bringing suit must have given the

administrative notice and provided instead that suit could not be brought until 60 days after

" a charge alleging unlawfu l discrimination has been filed with the Secretary." Pub.L. No.

95–256, § 4(a), 92 Stat. 189, 190 (1978) (emphasis added). That same year the Secretary's

ADEA responsibilities were transferred to the EEOC. Reorg. Plan No. 1 of 1978, § 2, 43

Fed.Reg. 19807, 92 Stat. 3781 (1978). In changing the statutory requirement from a charge

filing obligation of the individual bringing suit to the more general requirement that "a charge

... has been filed," Congress pointed out that "[f]ailure to timely file the notice ... [was] the

most common basis for dismissal of ADEA lawsuits by private individuals" and emphasized

that the purpose of the amendment was "to make it more likely that the courts will reach the

merits of the cases of aggrieved individuals.... " S.Rep. No. 493, 95th Cong., 1st Sess. 12

(1977), U.S.Code Cong. & Admin.News 1978, pp. 504, 515.

Tolliver v. Xerox Corp., 918 F.2d 1052, 1056 (2d Cir.1990), cert. denied

––– U.S.

––––, 111 S.Ct.

1641, 113 L.Ed.2d 736 (1991).

The federal courts now universally hold that an individual who has not filed an administrative

charge can opt-in to a suit filed by any similarly situated plaintiff under certain conditions. 1 Courts

vary, however, as to what those conditions are. Many courts require that the administrative charge

give notice to the administrative agency and the defendant that the discrimination is class-wide. The

Eighth Circuit has stated that since the purpose of an administrative charge is to allow the agency to

negotiate an end to the alleged unlawful practice and also to alert the employer as to its exposure,

"[a]n administrative charge of one or more plaintiffs setting forth only personal claims of

discrimination

... is not sufficient t o serve as the basis for an ADEA class action." K loos v.

Carter–Day Co., 799 F.2d 397, 400 (8th Cir.1986). Similarly, the Ninth Circuit has held that the

district court should not allow others to opt-i n to a lawsuit filed by a plaintiff whose administrative

charge "ex pressed no intention to sue on behalf of anyone other than himself." N aton v. Bank of2 We note that Naton dealt with an action begun prior to the change in the language of 29

U.S.C. § 626(d). In our view, however, Congress meant the alteration as a clarification and not

as a substantive change. Therefore, pre-alteration precedent is still valuable. California, 649 F.2d 691, 697 (9th Cir.1981). 2

The Second Circuit has stated:

Where the grievances arise i n a work unit of modest size, ... mere similarity of the

grievances within the same general time frame suffices to permit the "single filing rule."

... However, where the grievances are alleged to arise thr oughout a large group, the l ack of

conciliation of one individual grievance does not necessarily mean that conciliation efforts

would be unavailing if the EEOC and the employer were alerted to the broad scope of the

claim. Though we do not think the administrative claim in such circumstances need specify

that the claimant purports to represent a class or others similarly situated, there must be some

indication that the grievance affects a group of individuals defined broadly enough to include

those who seek to piggyback on the claim. Such a claim alerts the EEOC that more is alleged

than an isolated act of discrimination and affords sufficient notice to the employer to explore

conciliation with the affected group.

Tolliver, 918 F.2d at 1058 (footnote omitted).

The Seventh Circuit, while noting similarit y in the statutory language of the ADEA and Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–5, also noted differences between procedures

under the two Acts:

Under

... 29 U.S.C. § 216(b), all plaintiffs in an ADEA representative action must

affirmat ively opt-i n to the suit. Thus, there are no anonymous plaint iffs under ADEA. One

of the chief purposes behind this particular provision was to prevent the filing of claims on

behalf of a large group of unnamed and nonparticipating plaintiffs.... In light of this litigation

procedure, we believe it is necess ary that the defendant at least be apprised during the

conciliation process of the possibility of a subsequent lawsuit with many plaint iffs. Therefore,

in o ur view, the charge must, at the very least, contain an allegation of class-wide

discrimination. This notification is necessary in order to satisfy Congress' express desire that

the defendant understand, during the conciliation stage, the magnitude of his potential liabilit y.

Anderson v. Montgomery Ward & Co., Inc., 852 F.2d 1008, 1016 (7th Cir.1988) (citations omitted).

Anson's administrative charge alleged:On June 30, 1988, I no longer had a position as Director of Physical Plant Building Trades.

The Respondent is an institute of h i gher learning devoted to the teaching and research of

medical sciences and employs over 2,500 individuals.

[Appellant] Timothy Parker, Vice President o f Support Services, told me that my position

would not be funded after the end of the fiscal year and that my appointment would not be

renewed.

I believe I have been discriminated against because of my age, 60 years (DOB 9/ 9/27) i n violation of the Age Discrimination in Employment Act.

Anson's charge in no way alleges discrimination against anyone but himself. Nevertheless,

Parker claims that the district court erred in denying his motion to intervene because, he alleges, the

EEOC investigated the possibility of class-wide discrimination by Defendants. Thus, Parker claims,

Defendants were alerted to their potential exposure. Parker offered to subpoena the EEOC

investigators for a hearing to show that the agency had investigated possible discrimination against

others besides Anson, including himself. The district court declined to conduct such a hearing.

Defendants argue that even if, arguendo, such a hearing were legit imate, the di stri ct court

properly denied Parker's motion because

the representative plainti ff in an ADEA action may only represent those similarly-situated

individuals who could have t imely complied with section 626(d)'s notice requirement as of the

date of the representative plaintiff's filing with [the agency].

Cavanaugh v. Texas Instruments, Inc., 440 F.Supp. 1124, 1128 (S.D.Tex.1977) (citation omitted).

Defendants argue that Parker is therefore barred from intervent ion because he was still

employed when Anson filed his administrative charge, and could therefore not have timely filed a

charge contemporaneously with Anson. There may be a problem with this reasoning. Cavanaugh

relied upon Pandis v. Sikorsky Aircraft Div. of U.T.C., 431 F.Supp. 793 (D.Conn.1977), which stated

that one who could not have t imely filed along with the representative plaint iff could not opt-into his

suit because "[c]laims that were time-barred on the date that plaint iff filed his suit cannot be revived

by the commencement of a putative class action." Id. at 798. The case under review, on the other

hand, was not time-barred when Anson filed his charge. Rather, it had yet to arise.Parker contends that the district court could not use the fact that his claim had not arisen at

the time of Anson's administrative charge as a reason for denying the motion to intervene. Noting

that the federal courts have often found similarity between the ADEA and Title VII, Parker points

out that in Almendral v. New York State Office of Mental Health, 743 F.2d 963 (2d Cir.1984), the

Second Circuit held that it was error for the district court to refuse to consider claims arising

subsequently to thos e list ed in the administrative charge. The A lmendral Court, however, was

speaking of further claims from a particular plaint iff, not the addition of further plaint iffs. Therefore,

the risk of exposure is more attenuated in the Almendral situation. Moreover, the Second Circuit

relied, inter alia, on the fact that t he plaintiff's "EEOC complaint plainly stated that the acts of

discrimination were on a "continuing' basis." I d. at 967. Anson made no such allegation in his

complaint.

Ultimately, we find the reasoning of the Eighth Circuit instructive:

Failure to require some notice of class claims in the charge would require employers

to treat all individual charges as potential class actions. This consequence is of particular

significance in the age discrimination area, where every employed person over the age of forty

is a pot ential plaintiff. The charge filing provision limits the chances for the filing of suits

based on subsequent motivations or reassessments.

Kloos, 799 F.2d at 400 (citation omitted).

Parker would hav e us remand this case for a hearing to demonstrate that there was no

problem of exposure to claims unanticipated by the admi nist rative charge because the EEOC

investigation went beyond the charge's allegations. This is a novel approach, and we are not

convinced that Congress meant to burden the co urts with such factfinding. In any case, it is

unnecessary for us to decide whether such a hearing would ever be appropriate. We hold simply that

a district court does not err in denying intervention to one whose claim had not yet arisen at the time

of the filing by another of an administrative charge which alleg es only past personal complaints

regarding one who employs as many as 2,500 people.CONCLUSIONS

Anson's charge o f discrimination towards himself alone did not on its face suffice to alert

either the EEOC or the Defendants to Parker's potential alle gat ions. Therefore, the order of the

district court is

AFFIRMED.