372 F.3d 1233 (11th Cir. 2004), 03-13408, Bost v. Federal Express Corp.

Docket Nº:03-13408.
Citation:372 F.3d 1233
Party Name:Anthony W. BOST, individually and on behalf of others similarly situated, Ronald Clausnitzer, individually and on behalf of others similarly situated, et al., Plaintiffs-Appellants, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellee.
Case Date:June 08, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1233

372 F.3d 1233 (11th Cir. 2004)

Anthony W. BOST, individually and on behalf of others similarly situated, Ronald Clausnitzer, individually and on behalf of others similarly situated, et al., Plaintiffs-Appellants,



No. 03-13408.

United States Court of Appeals, Eleventh Circuit

June 8, 2004

Page 1234

[Copyrighted Material Omitted]

Page 1235

        David L. Rose, Rose & Rose, PC, Washington, DC, for Plaintiffs-Appellants.

        Carl K. Morrison, Memphis, TN, Cathy J. Beveridge, Hala A. Sandridge, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, FL, for Defendant-Appellee.

        Appeal from the United States District Court for the Middle District of Florida.

        Before ANDERSON, HULL and PRYOR, Circuit Judges.

        PRYOR, Circuit Judge:

        The main issue in this appeal is whether an EEOC intake questionnaire and affidavit satisfy the requirements of an EEOC charge when these documents state that they are for "pre-charge filing counseling," the EEOC does not treat them as a charge, and the employee later files a timely charge. We conclude, in this circumstance, that the intake questionnaire and affidavit do not constitute an EEOC charge because these forms would not have suggested to a reasonable person that the employee who completed them had yet manifested an intent to activate the administrative process. Accordingly, we affirm the judgment entered against Anthony Bost, whose complaint was premature because it was filed after his intake questionnaire and affidavit but before his formal charge. We also affirm the judgment entered against the employees on all other issues raised in this appeal.

Page 1236


        The multiple categories of plaintiffs and their repeated forays into litigation complicate this appeal. The plaintiffs are numerous former and current employees of the defendant, some of whom filed formal EEOC charges and others who did not, and several of the employees were named plaintiffs to an earlier lawsuit that was dismissed and affirmed on appeal. To understand the issues in this appeal, a brief overview of the categories of employees and the history of their earlier lawsuit and this litigation is necessary.

        A. The Plaintiffs

        Former and current employees of Federal Express Corporation (FedEx) sued FedEx and alleged violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. sections 621-634, and the Florida Civil Rights Act (FCRA), Fla. Stat. Ann. sections 760.01-760.11. Their putative class action alleged that from late 1994 through the present, FedEx engaged in a pattern and practice of discrimination against older couriers. Five of the named plaintiffs, Ronald Clausnitzer, Kathy Creamer, William Krollman, Gerald Freeman, and Vincent Maccia, were plaintiffs in an earlier case, Freeman, et al. v. Federal Express Corp., Civ, 99-2466-T-30B, that was dismissed by the district court and affirmed by this Court. The plaintiffs in Freeman filed a total of seven charges of discrimination against FedEx, beginning on July 8, 1996, until April 15, 1998. The EEOC dismissed all of the charges and issued right-to-sue letters between June 22, 1999, and September 15, 1999.

        Five other named plaintiffs, Mary Anne Frost, Ervis Gregory, John Kuenning, Denny Majors, and Phyllis Nelson, did not file any charge with the EEOC. These employees, among others, first filed an amended complaint in the Freeman litigation while the dismissal of that suit was pending before this Court.

        Anthony Bost also was among those who filed an amended complaint in Freeman while that case was on appeal, but Bost, unlike the others, filed an EEOC charge. Bost first filed an intake questionnaire and affidavit with the EEOC on December 18, 2001, and then filed a formal charge with the EEOC on June 5, 2002. In his responses to the intake questionnaire, Bost alleged that FedEx discriminated against him and other older couriers because of their age. Bost included his full name, address, and telephone number, as well as the name, address, and telephone number of FedEx. Bost signed the questionnaire on December 18, 2001. Bost attached a six-page affidavit alleging instances of discrimination and harassment. On the sixth page of the affidavit, Bost signed his name under oath in the presence of a notary. Bost filed a formal charge of discrimination a month after the filing of this putative class action. The EEOC issued Bost a notice of right to sue on August 28, 2002.

        Four other current employees, James Natalina, Kenny Bosley, Stephen Costianes, and Curlie Chester, consented to join this suit as party plaintiffs after the filing of the complaint. Because they did not provide the district court with proof of filing EEOC charges, none of these plaintiffs presumably filed a charge with the EEOC.

        B. Procedural History

        The Freeman plaintiffs first filed suit, pro se, against FedEx on October 26, 1999. The district court dismissed the complaint

Page 1237

without prejudice on September 25, 2000, and instructed the plaintiffs to amend their complaint within 20 days or by October 23, 2000. The Freeman plaintiffs elected to file a notice of interlocutory appeal on October 24, 2000, and an amended notice of interlocutory appeal on November 13, 2000. On January 14, 2002, this Court concluded that the dismissal of the complaint was final because an amended complaint had not been filed within the required time. This Court also issued an order summarily affirming the dismissal of the Freeman suit. See Freeman v. Federal Express Corp., 31 Fed. Appx. 929 (11th Cir. 2002). The district court then issued an administrative order on March 28, 2002, at the request of FedEx, explaining that its September 25, 2000, order of dismissal became final on October 23, 2000, because the Freeman plaintiffs did not file an amended complaint by that date. The district court concluded that all filings after October 23, 2000, including the amended complaint of Bost and others, were void.

        On May 9, 2002, the plaintiffs in this appeal filed a complaint against FedEx and, as in Freeman, alleged violations of the ADEA and the FCRA. On July 29, 2002, FedEx filed a motion to dismiss with prejudice and attached a declaration with nine exhibits to this motion. The employees responded with two memoranda of law and numerous exhibits. The district court granted the motion to dismiss on the grounds that the Freeman plaintiffs' complaints were barred by res judicata, and the Bost complaint was premature because it was filed before the EEOC charge. The district...

To continue reading