King v. McMillan

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1183
LESPIA KING,
Plaintiff - Appellant,
JENNIFER DONOVAN; MALINDA BLAND; KRISTIN
DARNELL; TAMARA SPEIGHT; ERIN BACHINSKY;
ANGELA LINKOUS,
Intervenors,
versus
GEORGE M. MCMILLAN, Sheriff, Roanoke City
Sheriff’s Office,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:05-cv-00521-sgw)
Argued: March 14, 2007 Decided: May 4, 2007
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Melvin Edward Williams, TERRY N. GRIMES, P.C., Roanoke,
Virginia, for Appellant. Elizabeth Kay Dillon, GUYNN, MEMMER &
DILLON, P.C., Roanoke, Virginia, for Appellee. ON BRIEF: Terry N.
Grimes, Roanoke, Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Six women who claim to have been sexually harassed by
Sheriff George McMillan of Roanoke, Virginia, appeal the district
court’s order denying their motion to intervene in a Title VII suit
against McMillan filed by Lespia King. For the reasons explained
below, we affirm.
I.
Lespia King worked as a Deputy in the Roanoke City
Sheriff’s Office from August 2000 until April 2004, when she
resigned because of alleged sexual harassment by Sheriff McMillan.
On October 12, 2004, King filed a charge with the EEOC alleging
constructive discharge as a result of harassment and
discrimination. The EEOC issued a right to sue letter on June 8,
2005, and King filed this action on August 16, 2005. On September
16, 2005, King filed a motion to certify a class action. The
district court denied the motion as untimely because King did not
move to certify the class during the 90-day period following
issuance of the right to sue letter. 42 U.S.C. § 2000e-5(f)(1).
On October 7, 2005, six women -- putative members of the
class that King unsuccessfully proposed to represent -- moved to
intervene in King’s suit as plaintiffs. The proposed intervenors
are: Tamara Speight, a former employee of Prison Health Services
(PHS), an independent contractor of the Roanoke City jail, who
claims that McMillan harassed her until she left her job in October
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2001; Erin Bachinsky, a woman never employed by the Sheriff’s
Office who claims that McMillan harassed her during a job
interview; Kristin Darnell, a former Sheriff’s Office employee who
claims that McMillan harassed her until she resigned in August
2002; Jennifer Donovan, a former Sheriff’s Office employee who
claims that McMillan harassed her until she resigned in October
2002; Angela Linkous, a former PHS employee who asserts that
McMillan harassed her until her resignation in February 2003; and
Malinda Bland, who claims that McMillan harassed her during her one
week of employment by the Sheriff’s Office in August 2004. Like
King, all six of these women allege that McMillan made unwanted
sexual remarks to them, groped them, and inappropriately touched
them.
None of the proposed intervenors exhausted their
administrative remedies by filing charges with the EEOC. The six
argue they should be able to join the suit as plaintiffs because
the prerequisite of filing a timely charge with the EEOC was met by
King, the original plaintiff. When the other requirements for
intervention are satisfied, a number of circuits allow intervenors
in discrimination suits to rely on the original plaintiff’s EEOC
charge in lieu of requiring each to file an individual charge with
the agency. See, e.g., EEOC v. Wilson Metal Casket, Co., 24 F.3d
836, 840 (6th Cir. 1994); Snell v. Suffolk, 782 F.2d 1094, 110 (2d
Cir. 1986); Ezell v. Mobile Housing Bd., 709 F.2d 1376, 1381 (11th
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Cir. 1983); DeMedina v. Reinhardt, 686 F.2d 997, 1012-13 (D.C. Cir.
1982); Crawford v. United States Steel Corp., 660 F.2d 663, 665-66
(5th Cir. 1981); Allen v. Amalgamated Transit Union Local 788, 554
F.2d 876, 882-83 (8th Cir. 1977). While our circuit has long
applied this “single-filing rule” to class actions, see Chisholm v.
U.S. Postal Serv., 665 F.2d 482, 490 n.11 (4th Cir. 1981), we have
never decided whether the rule may be applied to intervenors. Only
the Third Circuit has confined application of the single-filing
rule to class actions. See Whalen v. W.R. Grace & Co., 56 F.3d
504, 507 (3d Cir. 1995).
The district court concluded that it did not have to
reach the question of whether intervenors can rely on the single-
filing rule because it determined that the prerequisites for
applying the rule are not present in this case. First, the
district court concluded that the proposed intervenors’ claims were
not substantially similar to King’s. Second, the court concluded
that King’s EEOC charge did not provide sufficient notice of the
collective nature of her claims. Finally, the court noted that at
the time King filed her EEOC charge, the claims of all proposed
intervenors, except Malinda Bland’s, were time barred. The
district court explained that the single-filing rule cannot be used
to resuscitate stale claims.
King and the proposed intervenors appeal the denial of
the motion to intervene.
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II.
Under Title VII a civil suit against the respondent named
in an administrative charge may be brought after administrative
proceedings have ended or conciliation attempts have failed. 42
U.S.C. § 2000e-5(f)(1). The requirement to file a charge with the
EEOC serves two purposes: “First, it notifies the charged party of
the asserted violation. Secondly, it brings the charged party
before the EEOC and permits effectuation of the Act’s primary goal,
the securing of voluntary compliance with the law.” Alvarado v.
Board of Trustees, 848 F.2d 457, 458-59 (4th Cir. 1988) (internal
quotation omitted).
The single-filing rule is a judge-made exception to the
requirement of administrative exhaustion. Horton v. Jackson County
Bd. of County Comm’rs, 343 F.3d 897, 899 (7th Cir. 2003). In those
circuits that follow it, the single-filing rule “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.” White v. BFI Waste Servs.,
LLC, 375 F.3d 288, 293 (4th Cir. 2004). Underlying the rule is the
understanding that “[i]t would be wasteful, if not vain, for
numerous employees, all with the same grievance, to have to process
many identical complaints with the EEOC.” Oatis v. Crown
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Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968). When the
initial plaintiff files an administrative charge making clear that
her grievance is shared by a group of similarly situated employees,
the rule does not interfere with the purposes of providing notice
and an opportunity for conciliation. Courts applying the rule
explain that nothing is gained by duplicative administrative
filings because “[i]f it was impossible for the EEOC to effectuate
a settlement of the original plaintiffs’ claims, there is no reason
to believe that the EEOC would be successful in settling [later
intervenors’] claims.” Foster v. Gueory, 655 F.2d 1319, 1323 (D.C.
Cir. 1981).
We need not decide whether to join those circuits that
apply the single-filing rule to non-class actions because we
conclude that the rule would not be properly applied in this case.
The district court was correct in concluding that the claims of
five of the six proposed intervenors are time barred. A plaintiff
alleging violation of Title VII in Virginia must file a charge with
the EEOC within 300 days of the alleged violation. Venkatraman v.
REI Sys., 417 F.3d 418, 420 (4th Cir. 2005). On the date that King
filed her EEOC charge, any claims that Donovan, Darnell, Speight,
Bachinsky, or Linkous might have pressed had already expired. The
single-filing rule is not properly used to resurrect statutorily
barred claims. Cf. AMTRAK v. Morgan, 536 U.S. 101, 113 (2002)
(“[D]iscrete discriminatory acts are not actionable if time barred,
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even when they are related to acts alleged in timely filed
charges.”).
This leaves only the claim of Malinda Bland. We agree
with the Seventh Circuit that in most cases where there are only
two complainants, the rationale underlying the single-filing rule
“is attenuated to the point of non-existence.” Horton, 343 F.3d at
900. In a two-complainant case, it is much more difficult to
justify excusing a single intervenor from the normal administrative
exhaustion requirements. Requiring a lone intervenor to file a
timely charge does not impose a substantial burden on either the
EEOC or the employer. Instead, requiring both the original
plaintiff and a later intervenor to file their own charges is
consonant with “the statutory goal of maximum possible reliance
upon voluntary conciliation and administrative resolution of
claims.” EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602
(1981). As a result, we find no error in the district court’s
denial of the motion to intervene as to Bland.
The district court’s order denying the motion to
intervene is therefore
AFFIRMED.
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