Parker v. Crown, Cork and Seal Co., Inc.

• Decision Date: 23 April 1982
• Docket Number: No. 81-1465,81-1465
• Citation: 677 F.2d 391
• Parties: 28 Fair Empl.Prac.Cas. 1119, 28 Empl. Prac. Dec. P 32,656 Theodore PARKER, Appellant, v. CROWN, CORK AND SEAL COMPANY, INC., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 391

677 F.2d 391

28 Fair Empl.Prac.Cas. 1119,

28 Empl. Prac. Dec. P 32,656

Theodore PARKER, Appellant, v. CROWN, CORK AND SEAL COMPANY, INC., Appellee.

No. 81-1465.

United States Court of Appeals,

Fourth Circuit.

Argued Dec. 7, 1981.

Decided April 23, 1982.

Norris C. Ramsey, Baltimore, Md., for appellant.

Richard J. Magid, Baltimore, Md. (George D. Solter, Francis John Gorman, Baltimore, Md., on brief), for appellee.

Before WINTER, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

The question we must decide is whether the running of the ninety-day statutory period, fixed by 42 U.S.C. § 2000e-5(f)(1), in which plaintiff could commence his private Title VII action to redress alleged racial discrimination in employment was tolled during the period that there was pending a class action in which plaintiff was a member of the putative class but in which class certification was denied and the action subsequently dismissed. The district court ruled that the running of the period was not tolled. 514 F.Supp. 122. We conclude otherwise. We reverse and remand for further proceedings.

I.

Plaintiff, a black male, was discharged by defendant on July 15, 1977. He duly filed a charge of discrimination with EEOC, alleging racially motivated harassment and termination. A right-to-sue letter issued on November 9, 1978.

Meanwhile, however, a class action against defendant alleging racial discrimination in employment in violation of Title VII was filed September 15, 1978. Plaintiff was a member of the putative class, and his claim was encompassed within the scope of the action. On July 13, 1979, a hearing was held and the court ruled on some, but not all, of the class certification issues. On September 4, 1980, the court finally denied class certification. The allegations of class-wide harassment were denied for lack of numerosity, and those of illegal termination because the named plaintiff, a probationary employee, was not representative of the class.

Plaintiff took no action to intervene as a named plaintiff in the class action; nor did he seek to file an individual suit until after the class certification was denied. Plaintiff filed his own suit on October 27, 1980. ¹

He was promptly met by a motion for summary judgment on the ground that his suit was untimely since his right-to-sue notice issued November 9, 1978, and he did not file suit until October 27, 1980. Of course, as a factual matter, if the ninety-day statutory period for bringing suit was tolled until class certification was finally denied, unquestionably plaintiff instituted suit before the bar of the statute.

The district court granted summary judgment for defendant, ruling that plaintiff's right to file suit began to run on November 9, 1978, when he received his right-to-sue notification and that the running of the period was not tolled by the pendency of the intervening class action so as to permit plaintiff to file his own suit, although it would have tolled the running of the period had plaintiff sought to intervene in the putative class action after certification was denied.

II.

As the district court recognized, the decision in this case depends upon the reading to be given to American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). There, the Court held that "the commencement of the original class action tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status." Id. at 552-53, 94 S.Ct. at 765-66 (emphasis added). The Court has not applied the holding in American Pipe in any other context, but in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), in deciding that notice must be sent to all members of a Rule 23(b)(3) class action because, inter alia, members of the class have a right to "opt out" of the class, the Court noted:

Petitioner also argues that class members will not opt out because the statute of limitations has long since run out on the claims of all class members other than petitioner. This contention is disposed of by our recent decision in American Pipe ... which established that commencement of a class action tolls the applicable statute of limitations as to all members of the class.

Id. 417 U.S. at 176 n.13, 94 S.Ct. at 2152 n.13, 40 L.Ed.2d at 748 n.13. So stated, the rule in American Pipe is not limited to intervenors but applies to all members of the class, or at least to those who "opt out" and, presumably, file individual suits during the pendency of the class action.

Whether to give the holding in American Pipe a broad reading to toll the statute so as to permit the filing of individual suits or to restrict it to cases where erstwhile time-barred plaintiffs seek only intervention has been the subject of conflicting adjudications in the district courts. Compare, e.g., Green v. United States Steel Corp., 481 F.Supp. 295, 299 (E.D.Pa.1979) with Gluck v. Amicor, Inc., 487 F.Supp. 608, 614-15 (S.D.N.Y.1980).

Among the circuits, only Arneil v. Ramsey, 550 F.2d 774, 782-83 (2 Cir. 1977), and Stull v. Bayard, 561 F.2d 429, 433 (2 Cir. 1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 783 (1978) have directly decided the issue of whether the tolling rule of American Pipe is limited to intervention and both held that it was. However, in applying American Pipeline in other contexts, both Susman v. Lincoln American Corp., 587 F.2d 866, 869 (7 Cir. 1978), cert. denied, 445 U.S. 942, 100 S.Ct. 1336, 63 L.Ed.2d 775 (1980), and In re Fine Paper Litigation, 632 F.2d 1081, 1087 (3 Cir. 1980) stated the tolling rule broadly enough to include new suits as well as motions to intervene in the aborted class action.

With due respect to the views of the Second Circuit, we think that American Pipe should be read to toll limitations with respect to a new suit as well as to a motion to intervene. The rationale of any statute of limitations is to put a defendant on notice of a claim with reasonable promptness so that defense evidence is not lost, memories have not faded and witnesses have not disappeared. Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-49, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1943). Where plaintiff's individual complaint is within the scope of the putative class action, those purposes are fully served since the defendant has "sufficient information within the statutory period to timely apprise (it) ... of the nature and scope of the prospective litigation." Haas v. Pittsburgh National Bank, 526 F.2d 1083, 1097 n.19 (3...