Armstrong v. Martin Marietta Corp.

• Decision Date: 16 April 1998
• Docket Number: No. 95-3255,95-3255
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 1007, 73 Empl. Prac. Dec. P 45,338, 11 Fla. L. Weekly Fed. C 1240 David M. ARMSTRONG, L. Benson Barger, Wallace D. Black, Howard Brooks, Jerry A. Budd, Sonja M. Carter, Dominick C. Cizek, Carol D. Clarke-Iley, Charles H. Davis, Kenneth O. Giessuebel, Herold P. Glaser, Robert A. Havlish, Kumar Hinduja, Joseph C. Jett, Glenn E. Johnson, Robert C. Lerche, Calvin N. Lightner, George W. McGuirk, James W. McLean, William G. Murphy, Donald L. Prasky, Clark C. Rains, Kenneth A. Richards, Russell G. Roberts, Linda L. Ryan, Victor W. Shaw, Linton W. Smith, Michael Sylvestri, Delbert S. Turner, Edward W. Walsh, Joseph W. Williamson, Plaintiffs-Appellants, v. MARTIN MARIETTA CORP., Martin Marietta Technologies, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1374

138 F.3d 1374

76 Fair Empl.Prac.Cas. (BNA) 1007,

73 Empl. Prac. Dec. P 45,338,

11 Fla. L. Weekly Fed. C 1240

David M. ARMSTRONG, L. Benson Barger, Wallace D. Black Howard Brooks, Jerry A. Budd, Sonja M. Carter, Dominick C Cizek, Carol D. Clarke-Iley, Charles H. Davis, Kenneth O Giessuebel, Herold P. Glaser, Robert A. Havlish, Kumar Hinduja, Joseph C. Jett, Glenn E. Johnson, Robert C. Lerche Calvin N. Lightner, George W. McGuirk, James W. McLean, William G. Murphy, Donald L. Prasky, Clark C. Rains, Kenneth A. Richards, Russell G. Roberts, Linda L. Ryan, Victor W. Shaw, Linton W. Smith, Michael Sylvestri, Delbert S. Turner, Edward W. Walsh, Joseph W. Williamson, Plaintiffs-Appellants, v. MARTIN MARIETTA CORP., Martin Marietta Technologies, Inc., Defendants-Appellees.

No. 95-3255.

United States Court of Appeals, Eleventh Circuit.

April 16, 1998.

Norman B. Smith, Smith, Follin & James, L.L.P., Greensboro, NC, Allen M. Blake, St. Petersburg, FL, for Plaintiffs-Appellants.

Abigail van Alstyne, Gordon, Solberman, Wiggins & Childs, Birmingham, AL, for Amicus Lawyers' Committee for Civil Rights Undr Law.

Thomas C. Garwood, Jr., Kay L. Wolf, Garwood,, McKenna & McKenna, P.A., Orlando, FL, for Defendants-Appellees.

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

Before HATCHETT, Chief Judge, and TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges. ^*

TJOFLAT, Circuit Judge:

In Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Supreme Court held that the commencement of a class action suspends the applicable statute of limitations for all asserted members of the putative class "until class certification is denied." Id. at 354-55, 103 S.Ct. at 2397-98. The question presented in this case is whether, in the absence of controlling authority, the statute of limitations begins to run again immediately upon the district court's entry of the interlocutory order denying class certification, ¹ or whether the statute remains tolled through final judgment in the former class action and completion of an appeal from the order denying class certification. ² The appellants advocate the latter rule, and a divided panel of this court adopted a variation of that rule. ³ For the reasons set forth below, we hold that the tolling of the statute of limitations ceases when the district court enters an interlocutory order denying class certification.

I.

This case arises under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1994) (the "ADEA"). The thirty-one appellants in the instant case are former Martin Marietta ⁴ employees who lost their jobs between 1992 and 1993. (Two other appellants, Myrtle Y. Redding and Marlon K. Tarter, have been dismissed from this appeal pursuant to joint stipulation of the parties.) Following their terminations, twenty-eight appellants filed timely charges of age discrimination with the Equal Employment Opportunity Commission (the "EEOC"), as is required by statute. See 29 U.S.C. § 626(d) (providing that a person who wishes to bring a civil action against his or her employer At various times, the EEOC notified each appellant (other than Clarke-Iley, Johnson, and Shaw) that his or her charge of age discrimination was dismissed. Receipt of such notice triggers the statute of limitations for bringing a civil action in court, and the plaintiff must then file suit within ninety days. See 29 U.S.C. § 626(e). ⁵ This ninety-day limitations period is tolled, however, while the plaintiff is a putative member of a class action. See Crown, Cork, 462 U.S. at 353-54, 103 S.Ct. at 2397-98. Twenty-eight of the thirty-one appellants opted into Carmichael v. Martin Marietta Corp., Case No. 93-434-CIV-ORL-19, an age discrimination class action that was already proceeding in the Middle District of Florida, on June 4, 1993. ⁶ The remaining three appellants--Davis, Havlish, and Hinduja--were named plaintiffs in the Carmichael action.

pursuant to the ADEA must first file a timely charge of discrimination with the EEOC). Three appellants--Clarke-Iley, Johnson, and Shaw--did not file EEOC charges.

On April 7, 1994, the district court in Carmichael determined that the appellants were not "similarly situated" to the other Carmichael plaintiffs. The Carmichael court therefore certified a plaintiff class that did not include as members the appellants in the instant case. The court then dismissed the claims of appellants Davis, Havlish, and Hinduja without prejudice, and denied the remaining appellants' requests to opt into the Carmichael class. None of the appellants requested leave to file an interlocutory appeal from that order under 28 U.S.C. § 1292(b). ⁷

On October 11, 1994, more than ninety days after the Carmichael court's partial denial of class certification, the thirty-one appellants and fourteen additional plaintiffs (including former appellants Redding and Tarter) filed the complaint that commenced the instant action in the district court. On October 25, 1994, an amended complaint added a forty-sixth plaintiff, appellant Wallace Black.

On January 17, 1995, Martin Marietta filed a motion for partial summary judgment against the thirty-one appellants, on the ground that they had failed to file their individual lawsuits within ninety days after their dismissal from the Carmichael class action. Martin Marietta also sought summary judgment against appellants Clarke-Iley, Johnson, On March 22, 1995, a magistrate judge issued a report recommending that the district court grant Martin Marietta's motion for partial summary judgment. The magistrate judge concluded that the ninety-day statute of limitations, which was tolled while the appellants were putative members of the Carmichael class action, recommenced when the Carmichael court dismissed their claims. Therefore, because the appellants' instant claims were filed more than ninety days after the dismissal in Carmichael, those claims were barred by the statute of limitations. The magistrate judge rejected Martin Marietta's alternative ground for partial summary judgment against Clarke-Iley, Johnson, and Shaw, concluding that this circuit's "piggybacking" rule excused them from filing charges of discrimination with the EEOC. See Grayson v. K Mart Corp., 79 F.3d 1086, 1101-02 (11th Cir.1996) (holding that an individual who did not file an EEOC charge may opt into an ADEA class action by "piggybacking" onto a timely charge filed by one of the named plaintiffs, provided that the claims of the named plaintiff and the piggybacking plaintiff arise out of similar discriminatory treatment in the same time frame). ⁸

and Shaw on the alternative ground that each had failed to file a charge of age discrimination with the EEOC within 300 days of the alleged discrimination.

On May 10, 1995, the district court adopted the magistrate judge's report and recommendation, and granted partial summary judgment against the thirty-one appellants. On September 14, 1995, the district court amended its order and replaced the partial summary judgement with a final judgment pursuant to Federal Rule of Civil Procedure 54(b). This appeal followed.

II.

The primary issue on appeal is whether the district court was correct in holding that the statute of limitations, which was tolled while the appellants were putative members of the class action, resumed running when the Carmichael court dismissed the appellants' claims in that case. We hold that the limitations period for filing an individual suit (and for intervening in an extant action) did so resume. We therefore affirm the decision of the district court with regard to almost all of the appellants. ⁹

The ADEA's statute of limitations requires the plaintiff to file suit within ninety days after receiving notice that the EEOC has dismissed the plaintiff's age discrimination charge. See 29 U.S.C. § 626(e). Membership in a pending class action, however, tolls the ninety-day period for filing an individual lawsuit. See Crown, Cork, 462 U.S. at 353-54, 103 S.Ct. at 2397-98. The purpose of such tolling is to encourage class members reasonably to rely on the class action to protect their rights. Without tolling, class members would have to take action prior to the running of the statute of limitations in order to protect themselves in case class certification is later denied, even when they may reasonably expect to receive relief through the already-filed class action. See id. at 350-51, 103 S.Ct. at 2396; see also Griffin v. Singletary, 17 F.3d 356, 360 (11th Cir.1994) ("Insofar as the individual claims are concerned, putative class members should be entitled to rely on a class action as long as it is pending."). Once the district court enters the order denying class certification, however, reliance on the named plaintiffs' prosecution of the matter ceases to be reasonable, and, we hold, the excluded putative class members are put on notice that they must act independently to protect their rights. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 399, 97 S.Ct. 2464, 2472, 53 L.Ed.2d 423 (1977) (Powell, J., dissenting).

The appellants, however, argue that the statute of limitations should continue to be tolled, even after the district court's denial of class certification, because the denial of certification in an interlocutory order may be reversed by the district court at any time When the district court denies class certification, ¹⁰ the named plaintiffs no longer have a duty to advance the interests of the excluded putative class members. See Fed.R.Civ.P. 23(c)(1), advisory committee's note to 1966 amendment (explaining that the trial court's order denying class certification "strip[s] [the suit] of its character as a class action," thus requiring the litigation to proceed as a non-class action, even though the district court may change its mind and certify a class at any time before a decision...