United States Court of Appeals

For the First Circuit

_____________________

No. 19-1679

FRANCISCO PÉREZ-ABREU; OLGA FELIX-ANCONA;

CONJUGAL PARTNERSHIP PÉREZ-FELIX,

Plaintiffs, Appellants,

v.

METROPOL HATO REY LLC; RESTAURANT METROPOL 3, INC.,

Defendants, Appellees.

_____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

_____________________

Before

Howard, Chief Judge,

Barron, Circuit Judge,

and McAuliffe, District Judge.

_____________________

Javier A. Rivera-Vaquer, with whom Jose A. Rivera-Cordero

and Rivera Mercado & Rivera Cordero were on brief, for 

appellants.

Luis E. Pabon-Roca, with whom Clarisa Sola-Gomez and Faccio 

& Pabon Roca were on brief, for appellees.

_____________________

July 9, 2021

_____________________

 Of the District of New Hampshire, sitting by designation.
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McAULIFFE, District Judge. Appellant, Francisco PérezAbreu, brought suit against his employer, a restaurant called the 

Metropol Hato Rey. Pérez asserted claims of age-based 

discrimination under the Age Discrimination in Employment Act

("ADEA") and Puerto Rico's statutory analog. His employer promptly 

moved to dismiss the complaint, pointing out that Pérez failed to 

exhaust required administrative remedies before filing suit. That 

is, he neglected to first file a complaint with the Equal 

Employment Opportunity Commission. In response, Pérez

acknowledged his failure to exhaust but pressed the district court 

to excuse that failure by adopting and applying the "single filing 

rule," also known as the "piggyback rule." That rule, in its 

various forms, allows a litigant to vicariously exhaust by relying 

upon a timely administrative complaint filed by another, 

similarly-situated plaintiff. Here, Pérez sought to "piggyback"

on an EEOC age discrimination complaint timely filed against his 

employer by one of his co-workers. 

The district court declined to adopt the single filing 

rule in these circumstances, dismissed Pérez's ADEA claims, and 

declined to exercise supplemental jurisdiction over his Puerto 

Rico law claims. In this appeal, Pérez urges the court to adopt

an expansive version of the single filing rule and remand the case 

to the district court for further proceedings. We decline that 

invitation. 
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I.

Pérez filed suit in November of 2018, complaining of age 

discrimination under the Age Discrimination in Employment Act, 29 

U.S.C. §§ 621-634, and Puerto Rico's anti-discrimination law, 

known as Puerto Rico Law 100, P.R. Laws Ann. tit. 29, § 146 et

seq. His complaint alleged two discrete acts of age-based 

discrimination. The first occurred in 2010, when the Metropol 

restaurant reduced his hours from 40 to 35 each week. As a result, 

Pérez suffered a reduction both in his fixed income and in the 

wages he derived from tips. He continued to work 35 hours each 

week until March of 2018, when the restaurant reestablished his 

40-hour weekly schedule. 

The second act of alleged age discrimination took place

in December of 2013, shortly after the restaurant's reorganization

and relocation. Pérez claims that after the Metropol relocated, 

he was no longer assigned to a specific group of tables. Instead, 

he had to serve tables on an "as-needed" basis, causing him to 

have fewer customers and a loss of income. Pérez contends that 

age-based animus motivated the restaurant's 2010 decision to 

reduce the number of hours he worked each week, as well as its 

2013 decision to structure his service in a way that was 

economically less favorable to him.

The Metropol restaurant moved to dismiss the complaint, 

noting that Pérez failed to exhaust administrative remedies – that 
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is, he neglected to file a complaint with either the EEOC or the 

ADU (the Antidiscrimination Unit of the Puerto Rico Department of 

Labor). See 29 U.S.C. § 626(d)(1). Persuaded that the motion to 

dismiss had merit, the district court directed Pérez to show cause 

why his complaint should not be dismissed for failure to exhaust. 

Additionally, the district court sua sponte granted Pérez leave to 

amend his complaint to assert his claims "with more specificity 

and solve any material pleading deficiencies discussed in 

Defendants' Motion to Dismiss."

Pérez chose not to amend his complaint. He did, however, 

submit a legal memorandum in which he acknowledged his failure to 

exhaust, but urged the court to adopt the "single filing" exception 

to exhaustion. That exception, which has also come to be known as 

the "piggybacking rule," would allow Pérez to vicariously satisfy

his exhaustion obligation by relying upon a timely-filed 

administrative complaint against his employer made by a similarlysituated plaintiff. See, e.g., Grayson v. K Mart Corp., 79 F.3d 

1086, 1101 (11th Cir. 1996). Specifically, Pérez sought to 

piggyback on one of several administrative charges brought by his 

co-worker, Juan Santiago-Del Valle. Mr. Del Valle filed complaints 

with the EEOC and the ADU and subsequently sued the Metropol Hato 

Rey for alleged age discrimination. See Santiago-Del Valle v. 

Metropol Hato Rey, LLC, Civil No. 18-cv-1464 (GAG) (the "Del Valle

Case").
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The district court, recognizing that there are several 

interpretations of the single filing rule, favored the one

described in Greene v. City of Boston, 204 F. Supp. 2d 239 (D. 

Mass. 2002), which requires the underlying administrative 

complaint to contain some allegation of discriminatory impact 

beyond the interests of the complainant. See id. at 244. Applying 

that test to the facts before it, the district court looked to the 

EEOC complaint filed in the Del Valle Case and saw that it 

contained no "intimations of class-wide discrimination." That is

to say, it failed to inform either the EEOC or the Metropol Hato 

Rey that employees other than Mr. Del Valle — like Pérez — might 

also have been subjected to age-based discrimination. That 

deficiency, in the district court's view, meant Pérez was not 

entitled to the single filing rule's exception to the exhaustion 

requirement.

Given those findings, the district court granted the 

restaurant's motion to dismiss, dismissed Pérez's complaint 

(without prejudice) for failure to exhaust, and declined to 

exercise supplemental jurisdiction over Pérez's remaining Puerto 

Rico law claims. This appeal ensued. 

II.

We review the district court's dismissal de novo. See, 

e.g., Alston v. Spiegel, 988 F.3d 564, 571 (1st Cir. 2021); 

Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011). 
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A.

The ADEA requires that, before filing a civil suit, a 

litigant must first file an age discrimination complaint with the 

EEOC. 29 U.S.C. § 626(d)(1); see also Martínez-Rivera v. Puerto 

Rico, 812 F.3d 69, 78 (1st Cir. 2016) ("[Plaintiff] had to exhaust 

her administrative remedies before bringing an age discrimination 

claim under the ADEA to court."). If the EEOC dismisses or 

otherwise terminates the administrative proceedings, it must 

notify the complainant, who then has "90 days after the date of 

the receipt of such notice" to file suit. 29 U.S.C. § 626(e). 

While compliance with the administrative filing requirement is 

compulsory, it is not jurisdictional. See Tapia-Tapia v. Potter, 

322 F.3d 742, 745 & n.4 (1st Cir. 2003). "The need for compliance 

is, therefore, 'subject to the usual gamut of equitable 

exceptions.'" Id. at 745 n.4 (quoting Bonilla v. Muebles J.J. 

Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999)). The single 

filing rule is such an exception. 

Although it has been applied unevenly, the single filing 

rule, generally speaking, permits an ADEA (or Title VII) plaintiff 

who has not exhausted administrative remedies to join an existing 

discrimination suit, provided one or more of the named plaintiffs 

in that suit did exhaust such remedies. In other words, a nonexhausting party is able to satisfy the exhaustion requirements by 

"piggybacking" on the timely administrative complaint filed by a 
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similarly-situated plaintiff. See, e.g., Howlett v. Holiday Inns, 

Inc., 49 F.3d 189, 194 (6th Cir. 1995) ("It is not necessary in 

all circumstances, though, that the EEOC charge be filed by the 

individual bringing suit under the ADEA. '[C]ourts have regularly 

held that the timely filing of an administrative charge by a named 

plaintiff in a class action satisfies the charge filing obligation 

of all members of the class.' The 'single filing rule' . . . 

allows the administrative charge of one plaintiff to satisfy the 

charge filing obligations of other plaintiffs." (alteration in 

original) (quoting Tolliver v. Xerox Corp., 918 F.2d 1052, 1056

(2d Cir. 1990))).

In the Tolliver opinion, the Court of Appeals for the 

Second Circuit summarized what it viewed as three versions of the 

single filing rule: 

Courts have used different tests, either alone or in 

combination, for determining whether an administrative 

charge suffices to permit piggybacking by a subsequent 

plaintiff. The broadest test requires only that the 

claims of the administrative claimant and the subsequent 

plaintiff arise out of the same circumstances and occur 

within the same general time frame. . . . A somewhat 

narrower test requires that the administrative claim 

give notice that the discrimination is "class-wide,"

i.e., that it alleges discrimination against a class of 

which the subsequent plaintiff is a member. A still 

narrower test requires that the administrative claim not 

only allege discrimination against a class but also 

allege that the claimant purports to represent the class 

or others similarly situated.

Tolliver, 918 F.2d at 1057–58 (citations omitted). 
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Here, Pérez urges this court to adopt what the Tolliver

court called the "broadest test." That is, he asks the court to 

allow "piggybacking" as long as the "claims of the administrative 

claimant and the subsequent plaintiff arise out of the same 

circumstances and occur within the same general time frame." Id.

at 1057. Under that interpretation of the rule, the underlying 

EEOC complaint need not have alerted the EEOC or the employer to 

the possibility that discriminatory conduct had been directed at 

anyone other than the complainant. 

That expansive version of the single filing rule is not 

without its critics. See, e.g., Greene, 204 F. Supp. 2d at 243 

("The Tolliver court's identification of three different 'tests'

for applying the single filing rule, while useful, conflates two

distinct issues. What the Tolliver court described as the 

'broad[est] test,' is really a description of the policy justifying 

the single filing rule itself, that is, within a discrete work 

group a discriminatory practice is likely to affect all similarly 

situated employees in the same way, thereby making group 

conciliation practicable."); see also Whalen v. W.R. Grace & Co., 

56 F.3d 504, 507 (3d Cir. 1995) (rejecting Tolliver to the extent 

it would permit a non-exhausting, "piggybacking" claimant to rely 

upon an EEOC complaint that failed to give notice of class-wide 

discrimination).
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Criticism of the Tolliver "broadest test" is 

understandable. After all, an employee is required to file an 

administrative complaint before bringing suit to give the employer 

notice of the allegedly unlawful activity and to afford the 

government an opportunity to negotiate an end to any unlawful 

practices. See, e.g., Kloos v. Carter-Day Co., 799 F.2d 397, 400 

(8th Cir. 1986) ("The filing requirement serves several important 

purposes. First, it provides the state agency or the EEOC with 

information and 'an opportunity to eliminate the alleged unlawful 

practices through informal methods of conciliation.' Second, it 

provides formal notice to the employer and prospective defendant 

of the charges that have been made against it." (quoting H.R. Rep. 

No. 950, at 12 (1978), as reprinted in 1978 U.S.C.C.A.N. 504, 

515)). 

If the administrative complaint on which a nonexhausting plaintiff wishes to "piggyback" does not give the EEOC 

and the employer notice of unlawful practices that potentially 

extend beyond the complainant, then the purposes of administrative 

exhaustion would be undermined if a non-exhausting plaintiff were 

allowed to bypass the administrative process and proceed directly 

to court. The government and the employer would be deprived of 

any notice of the scope of the claims asserted, as well as the 

opportunity to resolve the non-exhausting plaintiff's claims 

informally. See, e.g., Anderson v. Montgomery Ward & Co., 852 
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F.2d 1008, 1016 (7th Cir. 1988) ("[I]n our view, the charge [on 

which the non-exhausting party seeks to piggyback] 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 liability."). 

B.

In addition to considering which version of the single 

filing rule should be applied, courts have had to determine the 

particular circumstances under which a plaintiff may rely upon the 

rule. In its traditional application, the single filing rule 

permits a party invoking the rule to do so either in a class action 

or to join an existing suit (in which at least one plaintiff 

properly exhausted and timely sued). See White v. BFI Waste 

Servs., LLC, 375 F.3d 288, 293 (4th Cir. 2004) ("The 'singlefiling rule,' as applied by those circuits which have adopted it, 

allows plaintiffs who have not exhausted the administrative 

requirement of filing with the EEOC to join in a lawsuit with other 

plaintiffs who have exhausted the requirement, provided that all 

plaintiffs' claims are substantially similar and that the EEOC 

charge itself gave notice of the charge's collective nature."); 

Peeples v. City of Detroit, 891 F.3d 622, 631–32 (6th Cir. 2018) 

("The [single filing] rule is not limited to class actions but 

permits plaintiffs to join an individual action, 'if the named 
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plaintiff filed a timely administrative charge sufficient to 

permit "piggybacking" by the joining plaintiff.'" (quoting

Howlett, 49 F.3d at 194)); Foster v. Ruhrpumpen, Inc., 365 F.3d 

1191, 1197 (10th Cir. 2004) ("Generally speaking, each plaintiff 

must exhaust his or her administrative remedies by filing a timely 

EEOC charge prior to bringing suit. However, given the widespread 

concern over discriminatory employment practices and the 

congressional intent behind Title VII and the ADEA, the federal 

courts have universally recognized an exception to the individual 

filing rule which provides that 'in a multiple-plaintiff, nonclass action suit, if one plaintiff has filed a timely EEOC 

complaint as to that plaintiff's individual claim, then coplaintiffs with individual claims arising out of similar

discriminatory treatment in the same time frame need not have 

satisfied the filing requirement.'" (quoting Allen v. U.S. Corp., 

665 F.2d 689, 695 (5th Cir. 1982))); Price v. Choctaw Glove & 

Safety Co., 459 F.3d 595, 599 (5th Cir. 2006) ("[T]his Circuit 

intended for the single filing rule only to permit a non-charging 

party to join or intervene in a lawsuit filed by a charging party 

who has properly exhausted the administrative requirements. . . . 

A non-charging party cannot bring her own independent lawsuit based 

upon another party's charge."). But see Horton v. Jackson Cnty. 

Bd. of Cnty. Comm'rs, 343 F.3d 897, 900 (7th Cir. 2003) (noting 

that while "only the Third Circuit confines the [single filing] 
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doctrine to class actions, . . . it is possible that the Supreme 

Court will limit the doctrine to class action cases").

The Second Circuit, however, has found that in the ADEA 

context the single filing rule also applies to situations in which 

the plaintiff files a separate lawsuit. Tolliver, 918 F.2d at 

1057 ("[U]nder Title VII, the single filing rule has been used 

only to permit joining a preexisting suit in which at least one 

plaintiff had filed a timely charge. But, . . . that consequence 

flows from Title VII's requirement that no person may initiate a 

Title VII suit without obtaining a right-to-sue letter . . . . 

There is no comparable requirement for ADEA suits and therefore no 

reason to require ADEA plaintiffs seeking to benefit from the 

single filing rule to join preexisting individual suits."). In 

other words, because a Title VII plaintiff cannot file suit without 

a right-to-sue letter, a non-exhausting, piggybacking plaintiff 

with Title VII claims must necessarily join a pre-existing suit in 

which at least one other plaintiff has received a right-to-sue 

letter. But, under the ADEA, securing a right-to-sue letter is 

not a prerequisite to suit. Accordingly, the Tolliver court 

reasoned that non-exhausting plaintiffs with claims under the ADEA 

could piggyback on the administrative complaint of a co-worker, 

but need not necessarily join that co-worker's suit. Such a 

claimant could file an independent suit, as did Pérez in this case.
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C.

Although we have had occasion to discuss the single 

filing rule in the past, see Basch v. Ground Round, Inc., 139 F.3d 

6, 8-9 (1st Cir. 1998), we have not explicitly adopted it. We 

decline to do so today because the circumstances of this case, in 

combination, do not lend themselves to a thoughtful application of 

a reasonable variant of the rule. 

First, Pérez has not shown that the EEOC charges timely

filed by his co-worker and on which Pérez seeks to piggyback 

informed the EEOC or the Metropol Hato Rey that broader, companywide acts of discrimination may have occurred, or that other 

employees — like Pérez — may also have been the victim of agebased discrimination. Moreover, he did not seek to join a timely 

suit filed by a co-worker who properly exhausted administrative 

remedies but, instead, brought his own independent action. We 

also note that Pérez's separate suit was filed more than 90 days 

after the EEOC's notice of dismissal of the administrative 

complaint on which Pérez seeks to piggyback.1 

1 Under the ADEA, suit must be filed no later than 90 days 

after receipt of notice from the EEOC that it has dismissed or 

otherwise terminated the administrative proceeding. 29 U.S.C. 

§ 626(e). Here, however, because Pérez did not file an 

administrative complaint, he never received a notice of dismissal. 

The timeliness of his individual suit might then be measured by 

the dismissal letter in the administrative action on which he seeks 

to piggyback. In that case, Pérez would find himself in a 

difficult position, since he filed suit on November 13, 2018, more 

than 90 days after Mr. Del Valle's receipt of the EEOC dismissal 
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Finally, and importantly, even when prompted by the 

district court, Pérez did not amend his complaint to state either 

that he had exhausted (which he plainly could not do) or that he 

sought to invoke an equitable exception to the exhaustion 

requirement. Because filing an administrative charge of 

discrimination is a prerequisite to bringing a civil suit under

both the ADEA and Title VII, courts have routinely required 

plaintiffs to include an allegation of exhaustion in their 

complaints. Those who fail to do so are often granted leave to 

file an amended complaint making that assertion (as Pérez was 

here), or face dismissal. See Burnett v. City of Jacksonville, 

376 F. App'x 905, 907 (11th Cir. 2010); O'Kane v. Mead Johnson 

Nutrition Co., 804 F. App'x 988, 989 (10th Cir. 2020); see also

Drury v. JF White Contracting Corp., No. CV 06-40027-FDS, 2006 WL 

8458670, at *4 (D. Mass. Feb. 17, 2006).

III.

We need not explore the several nuanced issues that arise 

here, or determine the single filing rule’s proper scope. It is 

sufficient to note that we decline to adopt any version of the 

single filing rule that would be sufficiently broad to excuse the 

procedural failings associated with Pérez's suit. For the 

letter dated April 9, 2018.
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foregoing reasons, the district court's order dismissing Pérez's 

complaint is affirmed.