Andrews v. Orr

• Decision Date: 30 June 1988
• Docket Number: No. 87-3397,87-3397
• Citation: 851 F.2d 146
• Parties: 48 Fair Empl.Prac.Cas. 643, 47 Empl. Prac. Dec. P 38,116, 12 Fed.R.Serv.3d 554 Eunice ANDREWS, Patricia Chilton, Barbara Tommie, et al., Plaintiffs-Appellants, v. Verne ORR, Secretary of the Air Force, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 146

851 F.2d 146

48 Fair Empl.Prac.Cas. 643,

47 Empl. Prac. Dec. P 38,116, 12 Fed.R.Serv.3d 554

Eunice ANDREWS, Patricia Chilton, Barbara Tommie, et al., Plaintiffs-Appellants, v. Verne ORR, Secretary of the Air Force, Defendant-Appellee.

No. 87-3397.

United States Court of Appeals, Sixth Circuit.

Argued April 26, 1988.

Decided June 30, 1988.

Joseph F. Henderson, Mt. Rainier, Md., for plaintiffs-appellants.

Paul Blankenstein, Judith F. Ledbetter, Anthony W. Norwood, Elizabeth A. Pugh, Dept. of Justice, Civil Div., Washington, D.C., Robert S. Greenspan, Michael E. Robinson (argued), Dale Ann Goldberg, Asst. U.S. Atty., Dayton, Ohio, for defendant-appellee.

Before LIVELY, KRUPANSKY and BOGGS, Circuit Judges.

LIVELY, Circuit Judge.

This is an employment discrimination case filed as an individual and class action by federal employees under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982). The appeal concerns the application of requirements that administrative remedies be sought in a timely manner prior to the commencement of court proceedings. With regard to individual claims, the regulation involved is 29 C.F.R. Sec. 1613.214(a)(1)(i), which provides:

Sec. 1613.214 Filing and presentation of complaint.

(a) Time limits. (1) An agency shall require that a complaint be submitted in writing by the complainant or his representative and be signed by the complainant. The complaint may be delivered in person or submitted by mail. The agency may accept the complaint for processing in accordance with this subpart only if:

(i) The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter, or, if a personnel action, within 30 calendar days of its effective date;

Different regulations cover claims for classwide relief. See 29 C.F.R. Sec. 1613.601 et seq. These regulations contain a ninety day time limit. 29 C.F.R. Sec. 1613.602(a). The regulations are part of a comprehensive administrative scheme, culminating in consideration of claims of employment discrimination by the Equal Employment Opportunity Commission (EEOC) as the final stage before litigation.

I.

Since the sequence and dates of various steps are critical to the decision of the appeal, we set forth the district court's succinct statement of the case:

The plaintiffs are black, civilian employees of the Air Force Logistics Command ("AFLC") stationed at Wright-Patterson Air Force Base ("WPAFB"). The Plaintiffs allege that they were discriminated against on the basis of their race by the denial of promotions. Plaintiffs base this allegation on the use of the Professional and Administrative Career Examination ("PACE") by the AFLC to select employees for promotion. Plaintiffs contend that PACE had a disparate impact upon blacks.

This is the third class action, of which this Court is aware, challenging the disparate impact of PACE. The first of these was Luevano v. Campbell, 93 F.R.D. 68 (D.D.C.1981). Subsequently, a class action was commenced in this Court on behalf of all black AFLC employees who sought promotion to professional, administrative or technical jobs prior to January 19, 1982, for which the PACE exam was administered, and who were denied promotional opportunities as a result of Defendant's use of PACE. Brown v. Orr, 99 F.R.D. 524 (S.D. Ohio 1983). On March 15, 1983, this Court issued its Decision denying class certification in Brown. The Plaintiffs herein took no action at that time. On April 18, 1983, the plaintiff in Brown filed a second motion to certify a class therein. ¹ Before this Court ruled on the then pending, second motion to certify, the Plaintiff in Brown settled her individual claim on July 12, 1983, and the cause was dismissed with prejudice. Once again, the Plaintiffs herein took no action with regard to the Brown case. Rather, between July 26 and July 28, 1983, the Plaintiffs herein initiated the administrative process by contacting their EEO counselor.

Andrews v. Orr, 614 F.Supp. 689, 690-91 (S.D. Ohio 1985).

The defendant moved to dismiss the individual claims for lack of jurisdiction because the plaintiffs had failed to file complaints with their EEO counselor within thirty days after the district court's denial of the first motion for class certification in the Brown case. The defendant conceded, at least implicitly, that time limits for filing individual administrative complaints were tolled during the pendency of the class action but contended that tolling ended with the district court's March 15, 1983, order. The defendant also moved to dismiss the class claim, contending that the tolling rule does not apply to such claims.

The district court concluded that the pendency of the Luevano and Brown class actions tolled the period for filing individual claims, but that it did not toll the limitations period for any new claims seeking classwide relief. 614 F.Supp. at 692. The district court then determined that the thirty day limitations period applicable to the plaintiffs' individual claims began to run with the March 15 denial of class certification in Brown. Since the plaintiffs filed their complaints with their EEO counselor in July, they were out of time. The court also held, however, that the thirty day requirement is not jurisdictional and is subject to equitable tolling. Id. at 693-94. In a later unreported decision filed on February 27, 1987, the district court held that the plaintiffs had not established facts to support a finding that equitable tolling should be applied to extend the time in which they could have filed their individual administrative complaints. The district court then dismissed the action with prejudice, and this appeal followed.

II.

A.

The district court was clearly correct in holding that pendency of the Luevano and Brown class actions tolled the limitations periods for the plaintiffs' individual claims. In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Supreme Court stated the rule that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Id. at 554, 94 S.Ct. at 766 (footnote omitted). Later the Court applied this rule in a Title VII case and clarified the duration and effect of the tolling. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). There the Court stated that "[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action." Id. at 354, 103 S.Ct. at 2397-98 (emphasis added).

B.

We also agree with the district court's conclusions concerning the plaintiffs' attempt to gain classwide relief. The courts of appeals that have dealt with the issue appear to be in unanimous agreement that the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original asserted class. See Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987) ("The Supreme Court ... certainly did not intend to afford plaintiffs the opportunity to argue and reargue the question of class certification by filing new but repetitive complaints."); Salazar-Calderon v. Presidio Valley Farmers Ass'n, 765 F.2d 1334, 1351 (5th Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1245, 89 L.Ed.2d 353 (1986) ("Plaintiffs have no authority for their contention that putative class members may piggyback one class action onto another and thus toll the statute of limitations indefinitely...."); Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987) (adopting reasoning of Korwek ). These decisions reflect the concern expressed by Justice Powell, concurring separately in Crown, Cork & Seal: "The tolling rule of American Pipe [& Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) ] is a generous one, inviting abuse." 462 U.S. at 354, 103 S.Ct. at 2398.

The plaintiffs make one contention that is not mentioned in any of the cited cases. Relying on United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), they argue that the time for filing their class claims was tolled until all appeal and intervention rights expired in Brown. They misconstrue the holding of McDonald. In that case the plaintiff was permitted to intervene in an earlier class action of which she was a putative class member solely for the purpose of appealing the court's denial of class certification. McDonald dealt only with the right to intervene for the purpose of seeking reversal of a denial of class certification; nothing in the opinion supports the view that the American Pipe tolling rule applies to class members who do not intervene to appeal, but seek to initiate a new class action.

C.

Thus we agree with the district court that the thirty day limitations period for filing individual administrative complaints was tolled during the pendency of the earlier class actions, but that there was no tolling for future class actions by putative class members. We turn next to the question of when tolling ended and the thirty day period began to run for the plaintiffs' individual claims.

III.

As stated earlier, the district court denied class certification in Brown on March 15, 1983. At a pretrial conference on March 23, 1983, the plaintiff in Brown indicated that she intended to file a second motion to certify a class limited to employees at WPAFB. On March 25 the court issued a pretrial order directing Brown to file such a motion within thirty days. Complying with this order, Brown filed her second motion for class certification on April 18. This...