887 F.2d 124 (7th Cir. 1989), 88-3019, Schnellbaecher v. Baskin Clothing Co.

Docket Nº:88-3019.
Citation:887 F.2d 124
Party Name:Jean SCHNELLBAECHER and Marcia Brandt, et al., Plaintiffs-Appellants, v. BASKIN CLOTHING COMPANY and Hartmarx Specialty Stores, Inc., Defendants-Appellees.
Case Date:October 05, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 124

887 F.2d 124 (7th Cir. 1989)

Jean SCHNELLBAECHER and Marcia Brandt, et al., Plaintiffs-Appellants,

v.

BASKIN CLOTHING COMPANY and Hartmarx Specialty Stores, Inc.,

Defendants-Appellees.

No. 88-3019.

United States Court of Appeals, Seventh Circuit

October 5, 1989

Argued April 6, 1989.

Page 125

Lynn A. Williams, Michael K. Havrilesko, Williams & McCarthy, Rockford, Ill., for plaintiffs-appellants.

Gary D. Ashman, Grace A. Newton, Carey M. Stein, Cynthia N. Burman, Hartmarx Corp., Chicago, Ill., for defendants-appellees.

Before WOOD, Jr., MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

The individual plaintiffs-appellants in this case, Jean Schnellbaecher and Marcia Brandt, were employees of the Baskin Clothing Store in Rockford, Illinois. In 1986, both plaintiffs, who are women, were denied a promotion to a sales position offering increased salary and commissions.

On July 22, 1986, plaintiffs filed pro se charges with the Equal Employment Opportunity Commission ("EEOC") against Baskin. They asserted violations by Baskin of Title VII and the Equal Pay Act. Brandt and Schnellbaecher claim that a less-qualified male was hired for the position in question and the reason they were given was "that a woman is to make less than a man because a woman does not have to support a family." This charge named only Baskin, and not its parent corporation, Hartmarx Specialty Stores, Inc. ("HSSI"). HSSI, however, determines Baskin's personnel policies and both entities have the same attorneys, and thus HSSI had notice of the charges against Baskin. On January 29, 1987, the EEOC sent a questionnaire to Baskin, which sought payroll

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records for all sales persons and an explanation for the differences between the salaries of male and female sales persons. Counsel for HSSI had notice of this questionnaire. On the following day, however, the EEOC issued a right-to-sue letter for each charge to plaintiffs. In March of 1987, the plaintiffs filed an Equal Pay Act lawsuit, which is separate from this suit, in the Northern District of Illinois.

By letter dated April 24, 1987, the plaintiffs' lawyer transmitted to the EEOC revised versions of the plaintiffs' original charges. In these revised charges, which plaintiff asked the EEOC to treat either as amended charges or as new charges, HSSI was added as a respondent, and plaintiffs alleged class-wide discrimination by the defendants against women. Five days later, plaintiffs filed this Title VII lawsuit against Baskin and HSSI, alleging both individual and class-wide discrimination in a three-count complaint.

The district court first dismissed the individual charges against both HSSI and Baskin. It observed that because HSSI had common corporate offices, corporate counsel and managerial staffs with Baskin, it had adequate notice of the original charges, and that with respect to the original charges, HSSI "may well have been provided with an opportunity to participate in conciliation." The court observed, however, that the charges alleging individual discrimination "are covered by the [Equal Pay Act] suit concurrently pending in this court."

The district court also dismissed plaintiffs' class-wide claim on the ground that neither HSSI nor Baskin had any opportunity to participate in conciliation regarding these claims. The court opined that the class-wide allegations were not properly before it because charges which contained explicit class allegations were not "filed at all or recognized by the EEOC." Thus, the district court dismissed the class-wide allegations in their entirety as to both defendants. The plaintiffs appeal.

Discussion

First, we will consider whether the district court properly dismissed the class-wide suit and the suit against HSSI under the EEOC's original charges. Cf. Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905 n. 29 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982). Because we conclude that under the original charges the district court properly dismissed HSSI and the class-wide allegations, we will address whether dismissal was proper under the "amended charges," or rather, whether the charge properly was amended before the filing of the complaint.

Dismissal of HSSI

Ordinarily, a party not named in an EEOC charge may not be sued under Title VII. 42 U.S.C. Sec. 2000e-5; LeBeau v. Libbey-Owens-Ford Co., 484 F.2d 798, 799 (7th Cir.1973). Although this requirement is not jurisdictional, but rather is like a statute of limitations, in that it is subject to waiver, estoppel, and equitable tolling, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982), none of these considerations apply here. See also Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir.1985) ("the requirement that the scope of the EEOC charge limit the scope of the subsequent complaint is in the nature of a condition precedent with which litigants must comply rather than constituting a component of subject...

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