In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-1074

TIA J. HORTON,

Plaintiff,

and

KAREN BROOKS,

Proposed Intervenor, Appellant,

v.

JACKSON COUNTY BOARD OF COUNTY

COMMISSIONERS, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Indiana, New Albany Division.

No. NA 01-170-C-B/H—Sarah Evans Barker, Judge.

____________

ARGUED AUGUST 6, 2003—DECIDED SEPTEMBER 10, 2003

____________

Before BAUER, POSNER, and KANNE, Circuit Judges.

POSNER, Circuit Judge. Karen Brooks appeals from the

denial of her motion to intervene in an employment discrimination case brought by Tia Horton under Title VII

against their former employer. The appeal requires us to
2 No. 03-1074

consider the contours of the “single-filing” rule, which excuses in some circumstances the failure of a victim of employment discrimination to exhaust his or her administrative remedies.

Horton worked for Jackson County [Indiana] Community

Corrections and Brooks for the Jackson County Juvenile

Detention Center, both organizations being under the

control of the county board, which we’ll treat as the employer of both women. The board fired Horton from her job

with Corrections in February 2000, and she filed a timely

charge with the EEOC complaining that she had been fired

in retaliation for a discrimination suit that she had instituted

three years earlier against another Jackson County agency.

Later Horton filed this lawsuit, in which Brooks seeks to

intervene.

One month after Horton was fired from Corrections,

Brooks hired her to work at the Center. Eleven months later

the board fired both Horton and Brooks from their jobs with

the Center on the same day. Both women filed charges with

the EEOC complaining that they had been fired in retaliation for Horton’s complaint to the EEOC about having been

retaliated against for filing the 1997 suit. Both charges were

untimely. (Brooks claims on appeal that hers was not, but

has waived the claim by failing to make it in the district

court, Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001).)

The district judge ruled that Horton could amend her

complaint to add the second firing; retaliation for complaining to the EEOC need not be charged separately from the

discrimination that gave rise to the complaint, McKenzie v.

Illinois Dept. of Transportation, 92 F.3d 473, 482 (7th Cir.

1996); Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d

683, 686 (2d Cir. 2001) (per curiam); Abeita v. TransAmerica

Mailings, Inc., 159 F.3d 246, 254 (6th Cir. 1998); Ingels v.

Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994), at least—a
No. 03-1074 3

potentially critical qualification, as we’ll see—if the person

discriminated against and the person retaliated against are

the same. Brooks, unlike Horton, had no case pending when

she filed her untimely charge with the EEOC. There was

thus no complaint for her to amend. The question is

whether she could join Horton’s suit notwithstanding her

failure to file a timely administrative charge, the normal

prerequisite to suit. 42 U.S.C. § 2000e5(e); Beckel v. Wal-Mart

Associates, Inc., 301 F.3d 621, 622-23 (7th Cir. 2002); Boyer v.

Cordant Technologies, Inc., 316 F.3d 1137, 1138 (10th Cir.

2003).

The “single-filing” (or “piggybacking”) doctrine is a

judge-made exception to the rule that a timely administrative charge is a prerequisite to suit. Oatis v. Crown Zellerbach

Corp., 398 F.2d 496, 498-99 (5th Cir. 1968). The usual formulation is that if the would-be intervenor’s claim arises out of

the same or similar discriminatory conduct, committed in

the same period, as the claim in the suit in which he wants

to intervene, his failure to file a timely charge will be

disregarded. E.g., Alexander v. Fulton County, 207 F.3d 1303,

1333 (11th Cir. 2000); Snell v. Suffolk County, 782 F.2d 1094,

1100 (2d Cir. 1986); Allen v. United States Steel Corp., 665 F.2d

689, 695 (5th Cir. 1982). The purpose of requiring exhaustion

of administrative remedies in Title VII cases is to place the

employer on notice of an impending suit that he can try to

head off by negotiating with the complainant, utilizing the

conciliation services offered by the EEOC. Fairchild v. Forma

Scientific, Inc., 147 F.3d 567, 575 (7th Cir. 1998); Anderson v.

Montgomery Ward & Co., 852 F.2d 1008, 1016 (7th Cir. 1988);

Jasch v. Potter, 302 F.3d 1092, 1094-95 (9th Cir. 2002); Woodman v. Runyon, 132 F.3d 1330, 1342 (10th Cir. 1997); Lattimore

v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996). That

purpose, it is argued, is not engaged when the same claim

has been the subject of a timely charge by another employee
4 No. 03-1074

of this employer. If for example the employer has fired

every worker over the age of 40 and one of them has filed a

timely charge, he can guess that others will, and there is no

need to flood the EEOC with identical charges. Moreover, if

they’re really identical, then if the first can be settled

administratively the rest probably can be as well; if not, not.

The second point is not impressive. The initial complainant might fail to settle out of stubbornness, in which event

litigation by the others might have been averted had they

been forced to participate in the EEOC’s conciliation process

rather than being permitted to jump directly into court. It is

a useful process and its use should be encouraged. When a

discrimination charge is filed, the EEOC investigates and, if

it “determines that there is reasonable cause to believe that

an unlawful practice has occurred or is occurring,” it will

“attempt to achieve a just resolution of all violations found

and to obtain agreement [a ‘conciliation agreement’] that the

respondent will eliminate the unlawful employment

practice and provide appropriate affirmative relief.” 29

C.F.R. § 1601.24(a). In the past five years, conciliation has

been successful in approximately 25 percent of the Title VII

charges in which the Commission made a “reasonable

cause” determination. That is only a small percentage of the

total charges filed with the agency, but many other charges

are disposed of by negotiated settlements before the Commission completes its investigation and makes a “reasonable

cause” determination. 29 C.F.R. § 1601.20(a). In 2002, the

Commission received 61,459 Title VII charges and found

“reasonable cause” in only 4,380 of them, but 5,362 others

were disposed of by negotiated settlement. See the Commission’s Web site, http://www.eeoc.gov/stats/vii.html.

The conciliation process thus is important in limiting the

Title VII caseload of the federal courts, and there is a risk
No. 03-1074 5

that the single-filing doctrine will impede it. And here we

should note that the doctrine predates National Railroad

Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which, though

principally about the continuing-violation doctrine, is

emphatic that “each discrete discriminatory act [i.e., an act

that is not part of a continuing violation] starts a new clock

for filing charges alleging that act.” Id. at 113. The singlefiling rule dispenses not only with the need to file a separate

charge for each violation of an employee’s rights, but also

and necessarily with the need to file a timely charge. The

Court’s reference to the “clock” is also a reminder that the

filing of a timely charge with the EEOC is, as the Court

noted in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393

(1982), like a statute of limitations; and if there are two

victims of the same or similar wrongful activity and one

sues, his suit does not toll the statute of limitations for the

other to sue.

All this said, it is hard to quarrel with the original application of the single-filing doctrine, which was to class actions.

See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8

(1975); Romasanta v. United Airlines, Inc., 537 F.2d 915, 918

(7th Cir. 1976), affirmed under the name United Airlines, Inc.

v. McDonald, 432 U.S. 385 (1977); Oatis v. Crown Zellerbach

Corp., supra, 398 F.2d at 498-99; Foster v. Gueory, 655 F.2d

1319, 1322 (D.C. Cir. 1981). Requiring that every class

member file a separate charge might drown agency and

employer alike by touching off a multitude of fruitless

negotiations. And note that a suit by A on behalf of a class

that includes B does toll the statute of limitations for B even

though he is not a named plaintiff. The cases that we have

just cited make clear that the single-filing doctrine is indeed

valid insofar as class actions are concerned; but it has much

less to commend it, and the tension with Zipes and Morgan

is stark, when as in this case there is not only no class action
6 No. 03-1074

but only two complainants. We can find only two cases in

which the doctrine was applied when there were so few

complainants, Calloway v. Partners Nat’l Health Plans, 986

F.2d 446, 450 (11th Cir. 1993), and Wu v. Thomas, 863 F.2d

1543, 1547-48 (11th Cir. 1989), and in neither case was the

fewness remarked. Though only the Third Circuit confines

the doctrine to class actions, Communications Workers of

America v. N.J. Dept. of Personnel, 282 F.3d 213, 217-18 (3d

Cir. 2002), the doctrine’s extension to other suits, as in

Alexander v. Fulton County, 207 F.3d 1303, 1333 (11th Cir.

2000); Shempert v. Harwick Chemical Corp., 151 F.3d 793, 799

(8th Cir. 1998), and EEOC v. Wilson Metal Casket Co., 24 F.3d

836, 839-40 (6th Cir. 1994), need not go so far as to permit its

application to a two-complainant case, in which the rationale of the doctrine is attenuated to the point of nonexistence. After Morgan, it is possible that the Supreme Court

will limit the doctrine to class action cases, the only application of the doctrine that the Court has expressed approval

of (in Albemarle).

Even if the doctrine could be thought to embrace some

two-complainant cases, the present case would not qualify.

While it is true that Horton’s and Brooks’s claims are intertwined, that is true in every retaliation case in which a

worker is retaliated against for having supported another

worker’s claim. It would be a curious interpretation of the

doctrine to rule that a timely charge need never be filed in

such a case; yet that is the implication of allowing mere

similarity to excuse the failure to file. The doctrine should

at the very least be limited to cases, such as our hypothetical

case of the discharge of all workers over 40, in which the

unexhausted claim arises from the same unlawful conduct.

Horton was fired (or so she alleges, for of course we express

no view of the merits of either her or Brooks’s claim)

because she had brought an earlier suit against another
No. 03-1074 7

Jackson County agency. Brooks was fired because she

supported Horton, by hiring her for the Juvenile Center and

then by sticking up for her there until they were both fired.

Retaliating against Horton for her earlier suit, and retaliating against Brooks for Brooks’s support of Horton, were

different unlawful acts. Although the two employees were

fired from the Center the same day, they were fired for

different reasons, based on different conduct—Horton’s

suit, and Brooks’s support of that suit. The failure of

conciliation with Horton cannot be assumed to have

doomed an attempt at conciliation with Brooks, excusing

her from filing a timely administrative charge. Unless the

single-filing doctrine is limited to cases in which the claims

arise from the same facts rather than merely from facts that

resemble each other or are causally linked to each other,

courts will perforce be excusing the filing of a timely charge

in every case in which an employee alleges retaliation for

supporting another employee’s charge. Such a rule would

undermine the EEOC’s conciliation procedure for no good

reason.

The order denying intervention is therefore

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-10-03