1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-2-1995

Whalen v Grace

Precedential or Non-Precedential:

Docket 94-5503

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Recommended Citation

"Whalen v Grace" (1995). 1995 Decisions. Paper 148.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/148
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

 

 No. 94-5503 

 

WALTER R. WHALEN; IRENE W. RELEFORD; RONALD D. GLASGOW; 

ALEXANDER G. DEPALMA; BEVELY M. HOPKINS; DONNA R. BAUGH; 

JANET K. TURRELL; MARY A. PANARELLO; ROBERT K. WILLIAMSON 

V. 

W.R. GRACE & CO.; BAKER & TAYLOR, INC.; BAKER & TAYLOR 

BOOKS CO.; THE CARLYLE GROUP; RAYMOND BARRATT; 

JOHN DOE, 1-25, fictitious names; ROE & DOE, 1-25, 

fictitious names; ABC CORP., 1-25, fictitious corporations 

W. R. GRACE & CO. - CONN.; BAKER & TAYLOR BOOKS; 

BAKER & TAYLOR, INC.; and RAYMOND BARRATT, 

 Appellants 

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

(D.C. Civil No. 93-00640) 

 

Argued March 2, 1995 

Before: GREENBERG, NYGAARD and McKEE, Circuit Judges

(Opinion Filed June 2, 1995) 

EDWARD P. LYNCH, ESQUIRE 

THERESA A. KELLY, ESQUIRE 

Pitney, Hardin, Kipp & Szuch 

P.O. Box 1945 

Morristown, NJ 07962-1945 

Attorney for Appellants 

NEIL REISEMAN, ESQUIRE 

GREGORY A. DEVERO, ESQUIRE 

Reiseman & Sharp 

Four Campus Drive 

Parsippany, NJ 07054-0431 

Attorney for Appellees 

 
 OPINION OF THE COURT 

 
NYGAARD, Circuit Judge

 This appeal arises from the district court's decision 

to allow five age discrimination plaintiffs who had filed timely 

charges with the Equal Employment Opportunity Commission to amend 

their complaint to add four new plaintiffs who had not. Because 

our case law requires that, outside the context of a 

representative or class action under the Age Discrimination in 

Employment Act, 29 U.S.C. § 621, et seq., an individual plaintiff 

must file a timely administrative charge, we will reverse and 

remand. 

 I. 

 The original plaintiffs1, appellees herein, are all 

over age forty and former employees of Baker & Taylor Books. 

Each held a different position and worked at one of three 

different company locations before being terminated from 

employment during 1991. Each filed a timely charge of 

discrimination with the EEOC, alleging that his or her layoff was 

a result of a company-wide policy to rid itself of older workers. 

On February 16, 1993, they filed this lawsuit in the United 

States District Court for the District of New Jersey, alleging 

violation of the ADEA and the New Jersey Law Against 

Discrimination, N.J. Stat. Ann. § 10:5-12, et seq. However, they 

did not file a class action, as permitted by ADEA § 7(b), 29 

U.S.C. § 626(b). 

 

1. Walter R. Whalen, Irene W. Releford, Ronald D. Glasgow, 

Alexander G. De Palma, and Bevely M. Hopkins. 
 Generally, under the ADEA, "[n]o civil action may be 

commenced by an individual...until 60 days after a charge 

alleging unlawful discrimination has been filed with the [EEOC]." 

ADEA § 7(d), 29 U.S.C. § 626(d). It is undisputed that the five 

original plaintiffs complied with this filing requirement. 

However, on October 28, 1993, they moved under Fed. R. Civ. P. 15 

to amend their complaint and add four new plaintiffs, Donna R. 

Baugh, Janet K. Turrell, Mary A. Panarello and Robert K. 

Williamson. These prospective plaintiffs are also over age 40 

and former employees of Baker & Taylor who were terminated in 

19912. They were employed in various positions and at various 

locations, and also claim they were victims of a company-wide 

push to eliminate older employees. The controversy before us 

arises because none of these prospective plaintiffs filed timely 

EEOC charges. 

 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 against any employer 

(including a public agency) in any Federal or State court of 

competent jurisdiction by any one or more employees for and in 

behalf of himself or themselves and other employees similarly 

situated."3 We have held previously that this provision allows 

 

2. The exception is new plaintiff Baugh, who was terminated in 

1992. 

3. Unlike a class action under Fed. R. Civ. P. 23, under §16(b), 

no person can become a party plaintiff and no person will be 

bound by or may benefit from a judgment unless he or she has 
aggrieved individuals who failed to file the required § 7(d) EEOC 

charge to join a class action brought by a plaintiff who had 

filed an EEOC charge alleging class-wide discrimination. Lusardi 

v. Lechner, 855 F.2d 1062, 1077 (3d Cir. 1988); accord Lockhart 

v. Westinghouse Credit Corp., 879 F.2d 43, 52 (3d Cir. 1989). 

The appellees argue that this rule, known as the "single filing 

rule," should be applied to ADEA non-class actions, allowing the 

prospective plaintiffs to "piggyback" onto the timely 

administrative charges filed by the appellees. 

 The Magistrate Judge denied the appellees' motion to 

amend their complaint, holding that the single filing rule has 

not been applied in this Circuit in ADEA cases that are not class 

action suits; accordingly, the Magistrate Judge held that our 

decisions in Lusardi and Lockhart require a plaintiff in a nonclass action suit, pursuant to ADEA §7(d), to have filed a 

charge with the EEOC. 

 The district court reversed, following the analysis in 

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

denied, 499 U.S. 983, 111 S. Ct. 1641 (1991), which held that the 

single filing rule applies to ADEA class and non-class actions 

alike. See also Howlett v. Holiday Inns, Inc., 49 F.3d 189 (6th 

Cir. 1995) (following Tolliver). The district court granted the 

appellants' motion to certify the order granting leave to amend 

(..continued) 

affirmatively "opted into" the class by filing a written consent 

with the court. Nowicki v. USX Corp., 672 F. Supp. 854, 855-56 

(W.D. Pa. 1987) (citing La Chappelle v. Owens-Illinois, Inc., 513 

F.2d 286, 288 (5th Cir. 1975)). 
the complaint under 28 U.S.C. § 1292(b) as involving a 

controlling question of law, on which there is substantial ground 

for difference of opinion, and from which an immediate appeal may 

materially advance the ultimate termination of the litigation. 

In turn, we granted the appellants' petition for immediate 

appeal. 

II. 

 Because the narrow issue raised on this appeal involves 

interpretation and application of legal principles, i.e., whether 

the single filing rule is applicable to non-class action ADEA 

lawsuits, our review is plenary. Epstein Family Partnership v. 

Kmart Corp., 13 F.3d 762, 765-66 (3d Cir. 1994). 

 In Lusardi, we held that an individual EEOC filing is 

not a prerequisite to opting into a § 16(b) action where the 

representative plaintiff has filed a timely charge with the EEOC 

that gives the employer notice that class-wide discrimination is 

alleged. 855 F.2d at 1078. "So long as class issues are 

alleged, a timely charge may serve as the basis for a class 

action." Id. (emphasis added). However, we clearly 

distinguished class actions from other situations where a 

plaintiff seeks to "piggyback" onto a timely charge: "To view 

opt-in suits under §16(b) as either permissive joinders or 

efforts to intervene would necessarily require that the plaintiff 

individually fulfill all of the prerequisites to suit." Id.

 Similarly, in Lockhart, we recognized that ADEA §7(d) 

requires a complainant to file a timely charge of discrimination 

with the EEOC and the appropriate state agency. 879 F.2d at 52. 
Ordinarily, a complainant who fails to file a timely charge is 

barred from seeking relief. Id. (citations omitted). However, 

we noted our decision in Lusardi as holding "that plaintiffs who 

had not filed charges with the EEOC could opt into an ADEA class 

action suit only if the original complainant's EEOC charge gave 

the employer notice of class-based age discrimination." Id. at 

52-53 (emphasis added). 

 Once again, we made clear that our holding was limited 

to the context of §16(b) class actions. We held that the 

district court erred by allowing two new plaintiffs, who had not 

filed EEOC charges, to join the suit of the original plaintiff 

because his EEOC charge did not give adequate notice of classbased discrimination. Id. at 53. Significantly, however, we 

also said that the district court erred in holding 

 that the joinder of Bradley and Wilson was 

sanctioned by the permissive joinder rule of 

Fed. R. Civ. P. 20(a). In Lusardi, we recognized that opt-in class action suits had been 

analogized to permissive joinder and 

intervention, but rejected such comparisons 

.... Moreover, we note that Bradley and 

Wilson could not have been joined pursuant to 

Fed. R. Civ. P. 20(a), in any event, since 

neither one had fulfilled the administrative 

requirement of filing his own timely charge 

with the EEOC. 

 

Id. n. 11. 

 Here, the appellees have not brought a § 16(b) class 

action, nor obviously, could the four prospective plaintiffs have 

filed written consents "opting into" such an action. The 

appellees instead sought to amend their complaint pursuant to 

Rule 15(a) to add four new party plaintiffs who had failed to 
pursue administrative remedies. Allowing the amendment for this 

purpose would create the same result as permissive joinder or 

intervention -- application of the single filing rule outside the 

context of a §16(b) class action -- which we rejected in Lusardi

and Lockhart. 

 Appellees argue that the following passage in Lusardi

supports their argument that the single filing rule applies to 

non-class actions: 

 Although the EEOC charge does not use the 

words "similarly situated" or allege specifically that a class action is going to be 

brought, we fail to see how [the defendant] 

can claim prejudice by the bringing of a 

class action. The charge clearly notifies 

[the defendant] that it allegedly discriminates against persons over forty years old as 

a class. Accordingly, the charge provides 

sufficient notice to the parties to encourage 

meaningful conciliation, the purpose of 

requiring it....So long as class issues are 

alleged, a timely charge may serve as the 

basis for a class action. 

Lusardi, 855 F.2d at 1078 (citation omitted) (emphasis added). 

Appellees' reliance on this passage is misplaced, because it 

states merely that a plaintiff is not required to file a "class 

charge," only allege class issues that may subsequently form the 

basis for a "class action." There 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. 
 The district court acknowledged that Lusardi and 

Lockhart indicate that the single filing rule does not apply to 

non-class actions; however, it was persuaded by the analysis in 

Tolliver, supra, which held that the single filing rule applies 

equally to ADEA individual and class actions. We conclude, 

however, that our analysis in Lusardi and Lockhart controls our 

decision here, and provides plaintiffs the option of seeking 

class certification and prospective plaintiffs who failed to seek 

a timely administrative remedy for their alleged injury the 

opportunity to opt into the class. When, however, plaintiffs 

choose to bring suit individually, they must first satisfy the 

prerequisite of filing a timely EEOC charge. 

 Accordingly, we will reverse and remand the cause to 

the district court with instructions that it deny appellees' 

motion to amend their complaint.