# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 27, 2015

Decided July 2, 2015

Before

RICHARD A. POSNER, Circuit Judge

DANIEL A. MANION, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 13

‐ 3355

DONNA BIBBS, CHARLES

GORDON, FRANCES RANDLE,

and ZACHARY SMITH,

Plaintiffs

‐ Appellants

,

v

.

SHERIFF OF COOK COUNTY and

COOK COUNTY, ILLINOIS,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 1:10

‐ cv

‐ 07382

J ohn W. Darrah,

J udge

.

O R D E R

Black applicants who were denied employment as correctional officers brought

this disparate impact discrimination case under Title VII of the Civil Rights Act of 1964

against the Sheriff of Cook County and Cook County, Illinois. The district court granted

Defendants’ motion to dismiss and Plaintiffs appeal. Because the district court erred NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 13

‐ 3355 Page 2

when it dismissed three of the complaint’s four plaintiffs and two of its three counts, we

reverse the judgment in part and remand the case for further proceedings.

I. Background

Donna Bibbs sought employment with the Sheriff of Cook County as a

correctional officer. As with all applicants, she had to pass five pre

‐ employment

screening “tests,” which included a polygraph examination and a psychological

screening. She completed the five tests, but received a letter stating that she had failed

one of them and would not be hired. (The letter did not specify which of the tests Bibbs

had failed. She discovered later that she had failed both the polygraph examination and

a psychological screening.)

Plaintiffs’ claims have evolved greatly over the course of this litigation. The initial

complaint identified Bibbs as the only plaintiff and alleged that Defendants’ hiring

practices had a disparate impact on blacks. The first amended complaint (FAC) added

six additional plaintiffs and stated that Plaintiffs brought the case individually and for

others similarly situated, but did not allege class status or propose a class definition.

Defendants moved to dismiss the additional plaintiffs on the grounds that they

had not exhausted their administrative remedies. The FAC alleged that the “Plaintiffs”

(plural) filed a timely charge of employment discrimination with the EEOC and that

Bibbs filed her action within 90 days of receiving her right

‐ to

‐ sue notice. However, it was

silent regarding whether the additional plaintiffs received their own right

‐ to

‐ sue letters

or met the 90

‐ day deadline. Defendants argued that the additional plaintiffs pleaded

themselves out of court by not alleging that they joined the lawsuit within 90 days of

receiving a right

‐ to

‐ sue letter. 1

1 Title VII allows a claimant to file suit only after filing a charge with the EEOC and waiting until the

EEOC sends notice that it does not intend to sue, thereby giving the claimant the “right

‐ to

‐ sue.” 42 U.S.C.

§ 2000e

‐ 5(e)(1), (f)(1). These steps have become known as Title VII’s “exhaustion of administrative

remedies” requirement despite the fact that the Administrative Procedure Act, 5 U.S.C. § 704, has nothing

to do with it. See Doe v. Oberweis Dairy

, 456 F.3d 704, 710 (7th Cir. 2006). Title VII imposes a further

requirement that a claimant must file suit within 90 days of receiving notice of the “right

‐ to

‐ sue” or the

suit is untimely. § 2000e

‐ 5(f)(1). The district court treated the issue as one of exhaustion rather than

timeliness because Plaintiffs did not allege that the additional plaintiffs received their own right

‐ to

‐ sue

letters, let alone met the 90

‐ day deadline. We will do the same.No. 13

‐ 3355 Page 3

The district court denied Defendants’ motion on the grounds that failure to

exhaust administrative remedies is an affirmative defense and Plaintiffs are not obliged

to allege facts negating an affirmative defense in the complaint. The district court noted

that dismissal is appropriate where it is clear from the face of the complaint that the

plaintiff did not exhaust administrative remedies, but held that nothing on the face of the

FAC compelled the conclusion that the additional plaintiffs failed to exhaust their

administrative remedies.

Plaintiffs eventually filed a Second and then a Third Amended Complaint (TAC).

The TAC settled on four named plaintiffs, Bibbs and three additional plaintiffs, and three

separate counts. Count I alleged that the Sheriff’s use of pre

‐ employment tests violated

Illinois law. Count II alleged that the psychological screening had a disparate impact on

black applicants. Count III alleged that a disproportionate number of black applicants

were disqualified because of false reports of disqualifying admissions on the polygraph

examination.

The TAC also contained a couple of procedural irregularities. First, Bibbs

remained a named plaintiff despite an earlier concession by Plaintiffs that Bibbs was an

inappropriate class representative. Second, the TAC’s proposed class definition included

only those who were rejected for failing the psychological screening. This would exclude

all claims premised on Count III’s allegation that Defendants discriminated against black

applicants through the administration of the polygraph examination.

The district court granted Defendants’ motion to dismiss under Rule 12(b)(6) and

dismissed the TAC without prejudice. The district court dismissed Count I of the TAC

on the grounds that Plaintiffs failed to plead any facts sufficient to demonstrate a

plausible claim for relief. The district court then dismissed the additional plaintiffs (all

but Bibbs) for failure to exhaust administrative remedies because the TAC did not allege

that they had joined the lawsuit within 90 days of receipt of a right

‐ to

‐ sue letter. Finally,

the district court dismissed the remaining counts, Counts II and III, for the only

remaining plaintiff, Bibbs, on the grounds that they were too vague to provide

Defendants with proper notice of her claims. The TAC’s procedural irregularities created

confusion, and thus contributed greatly to the perceived vagueness of the claims.

Plaintiffs declined to file a Fourth Amended Complaint, and the district court issued

judgment for the Defendants. Plaintiffs appeal all but the dismissal of Count I.No. 13

‐ 3355 Page 4

II. Analysis

We review the grant of a motion to dismiss under Rule 12(b)(6) de novo ; we accept

all facts pleaded as true and draw all reasonable inferences in Plaintiffs’ favor. Thulin v.

Shopko Stores Operating Co.

, 771 F.3d 994, 997 (7th Cir. 2014).

A. Dismissal of additional plaintiffs

Defendants filed two motions to dismiss under Rule 12(b)(6): the first to dismiss

the FAC, which the district court denied, and the second to dismiss the TAC, which the

district court granted. When the district court denied the first, the motion to dismiss the

FAC, it held that the additional plaintiffs could not be dismissed for failure to exhaust

administrative remedies. Since failure to exhaust administrative remedies is an

affirmative defense, the additional plaintiffs could only be dismissed for failure to state a

claim if it was clear from the face of the complaint that the affirmative defense applied.

See Mosely v. Bd. of Educ. of City of Chicago

, 434 F.3d 527, 533 (7th Cir. 2006); Hollander v.

Brown

, 457 F.3d 688, 691 n.1 (7th Cir. 2006). But it was not clear from the face of the FAC

that the defense applied because the FAC did not allege the facts necessary to come to

that conclusion. The FAC neither alleged that only Bibbs received a right

‐ to

‐ sue letter,

nor alleged that the additional plaintiffs joined after 90 days of receiving a right

‐ to

‐ sue

letter; it was silent regarding whether or when the additional plaintiffs received

right

‐ to

‐ sue letters. Despite this holding, when the district court later granted

Defendants’ second motion to dismiss, the motion to dismiss the TAC, it dismissed the

additional plaintiffs for failure to exhaust administrative remedies on the grounds it was

clear from the face of the complaint that the affirmative defense applied. Plaintiffs argue

that this second holding was in error because, like the FAC, the TAC did not allege the

facts necessary to conclude that the affirmative defense applied. Plaintiffs’ argument has

merit.

The TAC used substantially the same allegations of exhaustion as the FAC: all

plaintiffs filed a timely EEOC charge and Bibbs filed within 90 days of her right

‐ to

‐ sue

letter. The district court previously, and rightly, declined to dismiss the additional

plaintiffs because it was not clear from the face of the FAC that the affirmative defense

applied. The district court should have held likewise for the TAC and declined to

dismiss the additional plaintiffs a second time, because nothing had changed regarding

exhaustion between the FAC and the TAC. The district court reiterated that dismissal

was only possible if it was clear from the face of the complaint that the affirmative

defense applied. But, for whatever reason, the district court held that the sameNo. 13

‐ 3355 Page 5

allegations that were unclear before were now clear. The district court gave no reason for

this change, other than to cite the same cases as before, Hollander and Gragg v. Wenzak,

Inc.

, 2011 U.S. Dist. LEXIS 37327 (C.D. Ill. Apr. 6, 2011). Yet neither of these cases

supports the change. Dismissal was appropriate in Hollander because the plaintiff alleged

facts that showed the statute of limitations accrued well before she filed her case,

Hollander

, 457 F.3d at 693, and in Gragg because the “[p]laintiff specifically alleged that

she had not received a Notice of Right to Sue from the EEOC.” Gragg

, 2011 U.S. Dist.

LEXIS at *10 (emphasis in original). The change between the district court’s first holding

and its second was in error and requires reversal and remand.

For the benefit of the district court on remand, we note that Plaintiffs’ alternative

arguments are considerably less persuasive. Plaintiffs argued that the additional

plaintiffs do not need to meet the exhaustion requirement because they can rely on the

judicially created “single

‐ filing” or “piggyback” exception. See Horton v. Jackson County

Bd. of County Com’rs

, 343 F.3d 897, 899 (7th Cir. 2003). The district court held that the

exception did not apply to the additional plaintiffs because they each had filed their own

EEOC charge and, although we have not squarely decided the issue, to hold otherwise

would be at odds with several of our sister circuits. See Holowecki v. Fed. Express Corp.

, 440

F.3d 558, 564–65 (2d Cir. 2006) (citing cases). Indeed, Plaintiffs agreed at oral argument

that applying the “single

‐ filing” exception to this case would result in a circuit split and

therefore abandoned the argument.

Plaintiffs also argued that the filing of Bibbs’s initial complaint tolled the deadline

for the additional plaintiffs because the TAC related back to Bibbs’s initial complaint and

the filing of a class action tolls the statute of limitations for class members. See Crown,

Cork & Seal Co. v. Parker

, 462 U.S. 345, 349–352 (1983); Fed. R. Civ. P. 15(c). This argument

was not presented to the district court, and so—the issue of waiver aside—it is

premature. As it stands, the TAC does not relate back to Bibbs’s initial complaint. Before

the class allegations can toll the deadline for the additional plaintiffs, the district court

would have to allow the TAC to relate back to Bibbs’s initial complaint. But whether the

district court allows the TAC to relate back to the initial complaint is a matter within the

discretion of the district court, Arreola v. Godinez

, 546 F.3d 788, 796 (7th Cir. 2008), and the

matter was not presented to it. 2

2 Even if the district judge allows the TAC to relate back, Plaintiffs would still face the hurdle of class

certification. Bibbs’s claims are weak, making her an inadequate class representative. See Robinson v. Sheriff

of Cook County

, 167 F.3d 1155, 1157 (7th Cir. 1999). Were the class to be certified with her as theNo. 13

‐ 3355 Page 6

B. Dismissal of Counts II & III

The district court dismissed Counts II and III by relying on Bibbs’s statement in

her EEOC charge that the rejection letter said she “had failed one of the pre

‐ employment

tests.” (Emphasis added by district court.) Since a plaintiff is limited to claims that are

based on the EEOC charge, the district court decided that Bibbs could only allege one of

the five pre

‐ employment tests was discriminatory. See Doe v. Oberweis Dairy

, 456 F.3d

704, 709 (7th Cir. 2006) (“[T]he charge filed with the Commission limits the claims that

the complainant may raise in litigation.”). From there, the district court held that it was

impossible to tell which test Bibbs alleged was discriminatory since 1) the TAC alleged

that Bibbs was rejected for failing both the psychological screening and the polygraph

examination, 2) the TAC’s proposed class definition was limited to those who failed the

psychological screening, and 3) Plaintiffs had previously conceded in answer to the

district court’s interrogatories that Bibbs was an inappropriate class representative.

The errors with the district court’s reasoning are two

‐ fold. First, Bibbs’s EEOC

charge is not limited to claiming that only one test was discriminatory. The statement

quoted by the district court concerned the notice Bibbs received from the Sheriff’s office.

After relating the notice, Bibbs stated, “I believe I have been discriminated [against] on

account of my race, either because the tests used by the Sheriff have a disparate impact

on minority applicants or because of a decision by the Sheriff to wrongfully disqualify

minority applicants.” (Emphasis added.) Second, at this stage of the proceedings, the

district court should not have dismissed Bibbs’s claims based on her inability to serve as

a class representative. Bibbs’s lack of typicality and adequacy are reasons to deny

certification of a class with Bibbs as a representative, not to dismiss her claims. 3 See

representative, it runs the risk of not only Bibbs’s claims being dismissed, but those of the entire class as

well. See id

. Instead of Bibbs, Plaintiffs desire one of the additional plaintiffs, Zachary Smith, to serve as

class representative. Smith’s claim may have a better chance, but since the district court has yet to certify a

class, Smith must meet all of Title VII’s exhaustion requirements on his own, including joining the action

within 90 days of receiving his right

‐ to

‐ sue letter. Id

. at 1158 (because there was no class action when the

named plaintiff was dismissed, the alternative plaintiff could not take his place and her suitability as class

representative had to be determined independently of him). It appears, however, that Bibbs is the only

plaintiff who met Title VII’s exhaustion requirements. If this is true, it explains why Plaintiffs have not

sought her dismissal as a named plaintiff despite their concession that she is unfit to be a class

representative—were she to be dismissed, so would the entire case.

3 Plaintiffs argue that the district court should not have relied on their earlier concession that Bibbs was

unfit to be a class representative because they made that concession before they filed the TAC and all

pleadings prior to the filing of an amended complaint have no further effect once the amended complaintNo. 13

‐ 3355 Page 7

Arreola

, 546 F.3d at 794 (“Failure to meet any of the Rule[ 23’s] requirements precludes

class certification.”). Consequently, the district court erred by dismissing Counts II and

III.

III. Conclusion

Because the district court erred when it dismissed the additional plaintiffs and

two of the three counts, we reverse the judgment in part: we reverse the dismissal of

plaintiffs Smith, Randle, and Gordon and the dismissal of Counts II and III of the TAC;

affirm the dismissal of Count I; and, remand the case for further proceedings consistent

with this order. 4

is filed. Kelley v. Crosfield Catalysts

, 135 F.3d 1202, 1204 (7th Cir. 1998). We do not need to decide whether

Plaintiffs’ answers to the district court’s interrogatories constitute pleadings for the purpose of this rule.

Bibbs is an unfit class representation simply by the juxtaposition of the TAC’s claims that Bibbs was

discriminated against by both the psychological screening and the polygraph examination and the TAC’s

proposed class definition that involves only the psychological screening. The district court’s error was not

in holding that Bibbs was an unfit class representative—Plaintiffs conceded as much—but that being an

unfit class representative meant the complaint had to be dismissed. On the contrary, the action could have

gone forward, either with a different representative or without a class.

4 Because the district court did not dismiss Bibbs as plaintiff, but rather her claims, we need only reverse

the dismissal of her claims to enable her to continue as a plaintiff.