Zuckerstein v. Argonne Nat. Laboratory

• Decision Date: 17 June 1987
• Docket Number: No. 86 C 6304.,86 C 6304.
• Citation: 663 F. Supp. 569
• Parties: Ivan Von ZUCKERSTEIN, Dr. Devabhaktuni Ramaswami, Dr. Han Chang, Dr. Mohan Jain and Josip Vrsek, Plaintiffs, v. ARGONNE NATIONAL LABORATORY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

663 F. Supp. 569

Ivan Von ZUCKERSTEIN, Dr. Devabhaktuni Ramaswami, Dr. Han Chang, Dr. Mohan Jain and Josip Vrsek, Plaintiffs, v. ARGONNE NATIONAL LABORATORY, Defendant.

No. 86 C 6304.

United States District Court, N.D. Illinois, E.D.

June 17, 1987.

Charles Barnhill, Jr. and Bridget Arimond, Davis, Barnhill and Galland, Chicago, Ill., for plaintiffs.

R. Clay Bennett, David P. Radelet, Matkov, Griffin, Parsons, Salzman & Madoff, Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiffs Zuckerstein, Ramaswami, Chang, Jain and Vresk, all foreign-born employees or former employees of Argonne National Laboratory ("Argonne"), filed suit in August 1986 alleging discrimination on account of national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiffs allege that Argonne placed them in lower-paying positions, denied them promotions to higher positions and supervisory jobs, removed them from heading projects, laid them off, and refused to reemploy them because they were born in foreign countries. Argonne moves to dismiss Dr. Chang as a plaintiff for failure to file charges in a timely manner with the Equal Employment Opportunity Commission (EEOC), as required by section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e), and failure to file suit within 90 days of receiving a "right to sue" letter from the EEOC, as required by section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1).¹ Because we consider matters outside the pleadings, we treat Argonne's motion as a motion for partial summary judgment. For the following reasons, we grant defendant's motion in part.

FACTS

Plaintiff Zuckerstein had been employed by defendant as an economist since 1976. In April 1983, Zuckerstein was informed that he would be laid off due to lack of funding, effective June 1, 1983. In September 1983, Zuckerstein filed a "Charge of Discrimination" with the EEOC alleging discrimination on account of national original (German-Jewish-Czechoslovakian). Specifically, Zuckerstein complained that he was not given a raise, was denied a promotion, was given secretarial duties and was laid off because he was born in a non-English-speaking country.

Plaintiff Ramaswami, of Indian origin, was employed by defendant as a chemical engineer for 23 years before being laid off in September 1985. That same month Dr. Ramaswami filed an EEOC complaint alleging discrimination by defendant on account of national origin. He claimed he was given work that normally would not have been given to an employee with his qualifications, not promoted, and ultimately laid off for lack of funding because he was foreign-born.

Plaintiff Chang, a mechanical engineer of Chinese origin, was laid off by defendant in May 1983, after being employed for several years as a mechanical engineer. Dr. Chang filed a complaint with the EEOC in February 1985, claiming discrimination on account of national origin. He alleged that defendant discriminated against employees born in non-English-speaking countries by not promoting them to middle and upper management, by removing them from being in charge of programs they developed, by replacing them with native-born employees and then by laying them off for lack of funding. Additionally, Chang alleged that the defendant discriminated by not rehiring him.

Plaintiff Jain, of Indian origin, had been employed by defendant for approximately five years as a mechanical engineer and was terminated for lack of funding effective January 15, 1985. In January 1985, Jain filed an EEOC complaint alleging discrimination on account of national origin. Dr. Jain charged defendant discriminated against him because he was born in a foreign country by removing him from management of the programs he created and laying him off. Jain further alleged defendant had a long-standing record of removing non-native-born employees from management of projects, not promoting them to mid-management positions and laying them off, purportedly for lack of funding.

Plaintiff Vresk, who was born in Yugoslavia, has worked for defendant since 1976 as an engineer. He filed a complaint with the EEOC in April 1985, alleging discrimination on account of national origin. Vresk claimed defendant discriminated against foreign-born employees by excluding them from managerial positions and removing them from supervision of projects.

Except for Dr. Chang, the EEOC issued each plaintiff a "right to sue" letter on June 17, 1986. Dr. Chang was issued a right-to-sue letter on April 30, 1985, more than a year earlier.

DISCUSSION

It is undisputed that plaintiff Chang did not comply with two procedural requirements of Title VII: timely filing of an EEOC complaint and filing suit within 90 days after receipt of a right-to-sue letter ("the procedural requirements").² Consequently, Chang could not maintain a Title VII action on his own. Dalton v. Employment Sec. Comm'n, 671 F.2d 835, 837 (4th Cir.), cert. denied, 459 U.S. 862, 103 S.Ct. 138, 74 L.Ed.2d 117 (1982). It is also undisputed that plaintiff Zuckerstein complied with these procedural requirements.³ Therefore, the issue before the court is whether in a non-class action multi-plaintiff suit a plaintiff who does not comply with these Title VII procedural requirements (the non-complying plaintiff) may join with a plaintiff who has complied with these procedural requirements (complying plaintiff) and if so, under what circumstances.

I. The Single-Filing Rule

Plaintiff Chang contends that he is excused from complying with the two procedural requirements of Title VII under the "single-filing rule." The single-filing rule allows a non-complying plaintiff to join a suit initiated by a complying plaintiff under certain circumstances. Snell v. Suffolk County, 782 F.2d 1094, 1100 (2d Cir.1986).

The policy behind requiring Title VII plaintiffs to first submit a charge to the EEOC is to allow the EEOC "an opportunity to settle disputes ... before the aggrieved party is permitted to file a lawsuit." Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974). The EEOC filing also provides "prompt notice to the employer," Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 1135, 71 L.Ed.2d 234 (1982), furthering the policy of conciliation. The policies behind these procedural requirements are satisfied in class action suits where there is at least one complying plaintiff. Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir.1968). Not requiring multiple EEOC filings avoids futile acts because

it would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with the EEOC. If it is impossible to reach a settlement with one discriminatee, what reason could there be to assume that the next one would be successful.

Id. at 498.

The Seventh Circuit has accepted this rationale for class action suits. Romasanta v. United Airlines, Inc., 537 F.2d 915, 918-919 & n. 7 (7th Cir.1976), aff'd sub nom., United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977). However, that court has not considered the single-filing rule in a non-class action context where a non-complying plaintiff seeks to join a suit with a complying plaintiff.

Although in recent cases the Seventh Circuit has stated generally that a plaintiff must comply with these procedural requirements of Title VII, it has not faced the issues presented by this case. In Wakeen v. Hoffman House, Inc., 724 F.2d 1238 (7th Cir.1983), the court refused to allow a non-complying plaintiff to replace the sole class representative where the complaint of the class representative who initiated the suit (and complied with the Title VII procedures) was dismissed. Id. at 1246. Thus, there was no complying plaintiff left for the non-complying plaintiff to join. In Eichman v. Indiana State University, 597 F.2d 1104 (7th Cir.1979), a non-complying plaintiff was permitted to rely on an EEOC charge in which he was named as an aggrieved person, but which he did not sign personally. Id. at 1107-08. The Eichman court allowed the non-filing plaintiff to maintain a Title VII action on his own because 42 U.S.C. § 2000e-5(b) provides for charges filed on behalf of an aggrieved person. The court did not discuss the single-filing rule. There is no indication in Eichman that the single-filing rule is limited to cases where the non-filing plaintiff is named in a timely EEOC charge.

The courts in this district that have faced issues similar to those involved here are divided. One court has held that the single-filing rule is not applicable in non-class action multi-plaintiff cases. Stewart v. Hannon, 28 Fair Empl.Prac.Cas. (BNA) 1162, 1165-66 (N.D.Ill.1980). In a more recent case, however, another court in this district relied on Title VII cases by analogy to conclude that the single-filing rule applied to multi-plaintiff non-class action suits brought under the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. §§ 621 et seq. Anderson v. Montgomery Ward & Co., 631 F.Supp. 1546, 1549 (N.D.Ill.1986).⁴ The Anderson court clearly stated:

In Title VII actions, courts have not required an expressly representative EEOC charge as a prerequisite to joinder by claimants who fail to file their own timely charges.

Id. at 1549.

Because there is no controlling precedent in this circuit, nor a clear trend in this district as to whether the single-filing rule should apply, we look to the rulings in other circuits. Six other circuits now recognize the single-filing rule. Snell v. Suffolk County, 782 F.2d 1094, 1100-01 (2d Cir.1986); Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 335 (4th Cir.1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 539 (1984); Ezell v. Mobile Hous. Bd., 709 F.2d 1376, 1381 (11th Cir. 1983); Foster v. Gueory, 655 F.2d 1319, 1323 (D.C.Cir.1981); Wheeler v....