Perez-Abreu v. Metropol Hato Rey LLC ( 2021 )

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.
McAULIFFE, District Judge. Appellant, Francisco Pérez-
Abreu, 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 similarly-
situated 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 non-
exhausting 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 non-
exhausting 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 'single-
filing 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, non-
class action suit, if one plaintiff has filed a timely EEOC
complaint as to that plaintiff's individual claim, then co-
plaintiffs 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, company-
wide acts of discrimination may have occurred, or that other
employees — like Pérez — may also have been the victim of age-
based 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.
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