Horton, Tia J. v. Jackson County Board ( 2003 )

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 dis-
crimination 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 ex-
cuses in some circumstances the failure of a victim of em-
ployment discrimination to exhaust his or her administra-
tive 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 em-
ployer 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 retalia-
tion 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 complain-
ing 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 administra-
tive charge is a prerequisite to suit. Oatis v. Crown Zellerbach
Corp., 398 F.2d 496, 498-99 (5th Cir. 1968). The usual formu-
lation 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); Wood-
man 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 complain-
ant 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 Com-
mission 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 Commis-
sion’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 single-
filing 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 applica-
tion 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 ratio-
nale of the doctrine is attenuated to the point of nonexis-
tence. After Morgan, it is possible that the Supreme Court
will limit the doctrine to class action cases, the only applica-
tion 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 inter-
twined, 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 retaliat-
ing 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