839 F.3d 958 (11th Cir. 2016), 15-10602, Villarreal v. R.J. Reynolds Tobacco Co.

Docket Nº:15-10602
Citation:839 F.3d 958, 26 Fla.L.Weekly Fed. C 892
Opinion Judge:WILLIAM PRYOR, Circuit Judge:
Party Name:RICHARD M. VILLARREAL, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, PINSTRIPE, INC., Defendants-Appellees
Attorney:For RICHARD M. VILLARREAL, on behalf of himself and all others similarly situated, Plaintiff - Appellant: John J. Almond, Michael L. Eber, Rogers & Hardin, LLP, ATLANTA, GA; Shanon Jude Carson, Sarah R. Schalman-Bergen, Berger & Montague, PC, PHILADELPHIA, PA; James Michael Finberg, Patrick Casey...
Judge Panel:Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges. JORDAN, Circuit Judge, concurring in part and dissenting in part. ROSENBAUM, Circuit Judge, concurring in part and dissenting in part. MARTIN, Circ...
Case Date:October 05, 2016
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 958

839 F.3d 958 (11th Cir. 2016)

26 Fla.L.Weekly Fed. C 892

RICHARD M. VILLARREAL, on behalf of himself and all others similarly situated, Plaintiff-Appellant,

v.

R.J. REYNOLDS TOBACCO COMPANY, PINSTRIPE, INC., Defendants-Appellees

No. 15-10602

United States Court of Appeals, Eleventh Circuit

October 5, 2016

Page 959

[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 2:12-cv-00138-RWS.

For RICHARD M. VILLARREAL, on behalf of himself and all others similarly situated, Plaintiff - Appellant: John J. Almond, Michael L. Eber, Rogers & Hardin, LLP, ATLANTA, GA; Shanon Jude Carson, Sarah R. Schalman-Bergen, Berger & Montague, PC, PHILADELPHIA, PA; James Michael Finberg, Patrick Casey Pitts, Altshuler Berzon, LLP, SAN FRANCISCO, CA; Mark T. Johnson, Joshua G. Konecky, Todd M. Schneider, Schneider Wallace Cottrell Brayton Konecky, LLP-CA, SAN FRANCISCO, CA.

For R.J. REYNOLDS TOBACCO COMPANY, PINSTRIPE, INC., Defendants - Appellees: Eric S. Dreiband, Anthony J. Dick, Alison B. Marshall, Nikki Lynn McArthur, Jones Day, WASHINGTON, DC; Deborah A. Sudbury, Jones Day, ATLANTA, GA.

For EQUAL EMPLOYMENT ADVISORY COUNCIL, Amicus Curiae: Rae Thiesfield Vann, Norris Tysse Lampley & Lakis, LLP, WASHINGTON, DC.

For EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Amicus Curiae: Christine Back, Donna J. Brusoski, Patrick David Lopez, Equal Employment Opportunity Commission, Office of General Counsel-Appellate Services, WASHINGTON, DC.

For AARP, Amicus Curiae: Daniel Benjamin Kohrman, AARP A4-240, WASHINGTON, DC.

For RETAIL LITIGATION CENTER INC., Amicus Curiae: Joseph George Schmitt, Mark J. Girouard, Nilan Johnson Lewis, PA, MINNEAPOLIS, MN.

For CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, Amicus Curiae: Donald R. Livingston, Ze-wen Julius Chen, Akin Gump Strauss Hauer & Feld, LLP, WASHINGTON, DC; Hyland Hunt, Deutsch Hunt PLLC, WASHINGTON, DC.

For NAACP LEGAL DEFENSE, Amicus Curiae: Christina Swarns, I, NAACP Legal Defense & Educational Fund, Inc., Criminal Justice Project, NEW YORK, NY.

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges. JORDAN, Circuit Judge, concurring in part and dissenting in part. ROSENBAUM, Circuit Judge, concurring in part and dissenting in part. MARTIN, Circuit Judge, dissenting, in which WILSON and JILL PRYOR, Circuit Judges, join, and JORDAN and ROSENBAUM, Circuit Judges, join as to Part II.

OPINION

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ON PETITION FOR REHEARING

WILLIAM PRYOR, Circuit Judge:

The main issue presented by this appeal is whether the Age Discrimination in Employment Act allows an unsuccessful job applicant to sue an employer for using a practice that has a disparate impact on older workers. Richard Villarreal sued R.J. Reynolds Tobacco Company and Pinstripe, Inc. for rejecting his job applications. All parties agree that Villarreal, as an applicant for employment, can sue for disparate treatment because the Act prohibits an employer from " fail[ing] or refus[ing] to hire . . . any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). But Villarreal and the Equal Employment Opportunity Commission, as amicus curiae, argue that an applicant can also sue an employer for disparate impact because the Act prohibits an employer from " limit[ing], segregat[ing], or classify[ing] his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." Id. § 623(a)(2). We conclude that the whole text of the Act makes clear that an applicant for employment cannot sue an employer for disparate impact because the applicant has no " status as an employee." Id. And we conclude that Villarreal is not entitled to equitable tolling of his claim of disparate treatment because he admitted facts that establish that he did not diligently pursue his rights. We affirm in part and remand for the panel to address the remaining issue about whether the continuing-violation doctrine makes Villarreal's claim of disparate treatment timely.

I. BACKGROUND

On November 8, 2007, Villarreal applied for a position as a territory manager at R.J. Reynolds. He was 49 years old. Using guidelines provided by R.J. Reynolds, a contractor screened out Villarreal's application. The guidelines described the " targeted candidate" as someone " 2-3 years out of college" who " adjusts easily to changes" and instructed the contractor to " stay away from" applicants " in sales for 8-10 years." Neither the contractor nor R.J. Reynolds told Villarreal that he had been rejected, and Villarreal did not follow up.

Over two years later, in April 2010, lawyers contacted Villarreal and told him that R.J. Reynolds had discriminated against him on the basis of his age. In May 2010, Villarreal filed a charge with the Equal Employment Opportunity Commission. Villarreal also applied to R.J. Reynolds five more times in the next two years and was rejected every time. He amended his charge to include these rejections and to add Pinstripe, which replaced the first contractor, as a respondent.

In April 2012, the Commission issued notices of right to sue with respect to R.J. Reynolds and Pinstripe. Villarreal brought a collective action against R.J. Reynolds and Pinstripe under the Act on behalf of " all applicants for the Territory Manager position who applied for the position since the date RJ Reynolds began its pattern or practice of discriminating against applicants over the age of 40 . . . ; who were 40 years of age or older at the time of their application; and who were rejected for the

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position." The complaint alleged two counts: disparate treatment under section 4(a)(1) of the Act and disparate impact under section 4(a)(2) of the Act.

In anticipation of an objection of untimeliness, Villarreal also alleged facts to support equitable tolling of the limitations period that governed his complaint. He alleged that " he did not become aware until shortly before filing the charge that there was reason to believe that his 2007 application for the Territory Manager position had been rejected on account of his age." He also alleged that " [t]he facts necessary to support [his] charge of discrimination were not apparent to him, and could not have been apparent to him, until less than a month before he filed his May 17, 2010 EEOC charge."

R.J. Reynolds and Pinstripe moved to dismiss Villarreal's complaint in part. They moved to dismiss the disparate-impact count on the ground that section 4(a)(2) does not give a cause of action to applicants, and they moved to dismiss as untimely the parts of both counts based on the 2007 application. The district court dismissed the disparate-impact count and the untimely parts of both counts.

When Villarreal later moved for leave to amend the complaint, he alleged in his proposed amended complaint that he " was not an employee of . . . R.J. Reynolds . . . or related to anyone who was," that he " did not receive any communication from RJ Reynolds or anyone else informing him why he was not hired," that he " did not even know whether his application had been reviewed at all," and that he was unaware of the screening guidelines. The district court denied leave to amend the complaint on the ground that amendment would be futile. It explained that Villarreal " has not alleged any misrepresentations or concealment that hindered [him] from learning of any alleged discrimination," that he " made no attempt to contact [R.J. Reynolds] and ascertain the basis for his application rejection," and that he " has not alleged any due diligence on his part." Villarreal later moved to dismiss the remaining parts of the complaint, and the district court dismissed them with prejudice.

A divided panel of this Court reversed. Villarreal v. R.J. Reynolds Tobacco Co., 806 F.3d 1288, 1290 (11th Cir. 2015), reh'g en banc granted, opinion vacated, No. 15-10602, (11th Cir. Feb. 10, 2016). It concluded that section 4(a)(2) was ambiguous and deferred to the interpretation of the Commission announced in a rule. Id. It also concluded that equitable tolling was appropriate. Id. The panel did not address the continuing-violation doctrine, which Villarreal also raised in support of the timeliness of his claims. Id. at 1306 n.16. Judge Vinson, sitting by designation, dissented. Id. at 1306.

II. STANDARDS OF REVIEW

" We review de novo the dismissal of a complaint for failure to state a claim, accepting all allegations in the complaint as true and construing facts in the light most favorable to the plaintiff." Harry v. Marchant, 291 F.3d 767, 769 (11th...

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