Bettcher v. Brown Schools, Inc.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 00-50982

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WILLIAM H. BETTCHER III,

Plaintiff-Appellant,

versus

THE BROWN SCHOOLS, INC., D/B/A THE BROWN SCHOOLS,

ALSO D/B/A THE BROWN SCHOOLS REHABILITATION,

Defendant-Appellee.

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Appeal from the United States District Court for the

Western District of Texas

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August 31, 2001

Before JOLLY, SMITH and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

William Bettcher wants us to breathe new life into his age

discrimination law suit, which was dismissed by the district court

for failure to file a timely charge with the EEOC. He argues that

the “single filing rule” rescues his claim. This carefully limited

exception to the ADEA charge-filing requirement will sometimes

allow a non-filing plaintiff to join the lawsuit of a similarly

situated litigant who has filed the statutorily mandated charge.

1

Bettcher, however, attempts to extend the rule to allow him to

predicate his federal law suit on someone else’s EEOC charge, even

when that person has not filed a lawsuit. Because Bettcher seeks

an extension of the single filing rule not contemplated by our

precedents, we AFFIRM the judgment of the district court.

I

In November 1997, appellee The Brown Schools terminated 29

employees in a broad-based reduction of its workforce. Appellant

Bettcher and co-worker Diane Roper were among those terminated.

Bettcher was 65 years old and Roper was 60.

On August 11, 1998, Roper (a female) filed a charge of

discrimination with the EEOC alleging sex and age discrimination.1

Bettcher never filed a charge. The EEOC forwarded Roper’s claim to

Brown Schools two weeks later, and the Schools filed a response.

In June 1999, 568 days after Bettcher and Roper were

terminated, the EEOC issued a determination, finding reasonable

cause to believe that Brown Schools had discriminated against Roper

and an unnamed male teacher in the Rehab Therapy Education

Department of Brown. This unnamed teacher was Bettcher. The

1

The charge alleged, in relevant part:

I was terminated from my position as Teacher and

Educational Diagnostician on November 21, 1997. I was

informed by James Dalzell, Chief Executive Officer, that

my position was eliminated. . . . Two younger, less

qualified teachers were retained. One was a male who

took over 2/3 of my duties and responsibilities. I

believe I have been discriminated against based on my

age, 60 years, and my sex, female . . .

2

determination was issued 268 days after the applicable 300-day

limitations period for filing a charge of discrimination had

passed. See 29 U.S.C. § 626(d). On July 22, 1999, conciliation

procedures began between Roper and Brown Schools. Roper and Brown

Schools eventually reached a conciliation agreement, but this

agreement did not include Bettcher.

Notwithstanding that Bettcher had never filed a charge of

discrimination, the EEOC nevertheless issued him a Right to Sue

notice on October 26, 1999.2 This notice referenced only Roper’s

charge and charge number. On January 27, 2000--over two years

after his discharge--Bettcher filed this suit, alleging

discrimination under Title VII, the Texas Commission on Human

Rights Act (“TCHRA”), and the Age Discrimination in Employment Act

(“ADEA”). Brown Schools removed the action to federal court, where

it filed a Motion to Dismiss alleging that Bettcher’s claims were

time-barred because no administrative charge was filed within 300

days of the last act of discrimination as required by the ADEA.

The district court, treating the motion to dismiss as a motion for

summary judgment, granted judgment in favor of Brown Schools,

finding that Bettcher’s claims were time-barred. The court further

held that Bettcher could not piggyback on Roper’s charge under the

single filing rule because the two were not “similarly situated”

under the law, Roper’s charge did not provide notice of the

2

The Texas Commission on Human Rights also issued a right to

sue letter thereafter.

3

collective or class-wide nature of the charge, and, as Roper never

filed a civil suit, “there [was] nothing for the plaintiff to

‘piggyback’ on.”

II

This court conducts a de novo review of a grant of summary

judgment, ensuring that no genuine issue of material fact exists

and that judgment in favor of the appellee was warranted as a

matter of law. Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th Cir.

2000).

The applicable law is straightforward. An individual cannot

take legal action in an ADEA case in Texas unless that individual

first files an administrative charge within 300 days of the last

act of discrimination. See Anson v. Univ. of Tex. Health Science

Ctr., 962 F.2d 539, 540 (5th Cir. 1992). Under the single filing

rule, however, an individual who has not filed an administrative

charge can “opt-in to a suit filed by any similarly situated

plaintiff under certain conditions.” Id. at 541; See also Mooney

v. Aramco Services Co., 54 F.3d 1207, 1223 (5th Cir. 1995).

The plaintiff must satisfy three conditions before he may

invoke the single filing rule. First, the plaintiff must be

“similarly situated” to the person who actually filed the EEOC

charge. See Anson, 962 F.2d at 541. Second, the charge must have

provided some notice of the “collective or class-wide nature of the

charge.” Id. at 541-43. Finally, a prerequisite--implicit to be

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sure--for piggybacking under the single filing rule is the

requirement that the individual who filed the EEOC charge must

actually file a suit that the piggybacking plaintiff may join.

See, e.g., Mooney, 54 F.3d at 1224, n.22 (noting “we deem it

reasonable to permit them to join suit as long as the claimant on

whose administrative filing they have relied timely files suit

after receiving right-to-sue letters . . .” (citation omitted));

Anson, 962 F.2d at 541 (holding that “an individual who has not

filed an administrative charge can opt-in to a suit filed by any

similarly situated plaintiff”). While the single filing rule has

permitted a plaintiff to “join individual ADEA actions,” the rule

has never been utilized to allow a non-charging plaintiff to file

a separate suit based upon the charge of a party that has not filed

suit. Mooney, 54 F.3d at 1223. Such a reading would allow the

single filing exception to consume the statutory rule, which

clearly requires all ADEA plaintiffs to file a charge before filing

a lawsuit. In the absence of a lawsuit--properly supported by an

EEOC charge--that a non-charging individual can join, a would-be

plaintiff cannot invoke the piggyback rationale of the single

filing rule because, indeed, there is no civil action upon which to

piggyback.3

3

Bettcher argues that the purpose behind the single filing

rule applies even when the individual who filed the charge does not

actually file suit. The single file rule was first implemented in

the class action context 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.” Id. at 1223

5

In sum, no circuit court has ever authorized piggybacking on

an EEOC charge when the individual who filed the charge never

actually filed suit, and we decline to be the first to do so.

Therefore, the district court did not err in finding that the

single filing rule was inapplicable because Roper never filed a

civil action that Bettcher could join.4

III

Because Bettcher failed to file a timely charge of

discrimination with the EEOC to support his lawsuit, and because he

could not “join [an] individual ADEA action” under the single

filing rule, the district court was without jurisdiction to

entertain his age discrimination claims. The judgment of the

(citation omitted). The single filing rule has, however, only been

read to eliminate the need to file an EEOC charge when the purposes

behind the charge-filing requirement have been met. In this case,

the primary purpose underlying the EEOC charge requirement--to give

the employer “prompt notice” of an impending claim--was not

satisfied. Zipes v. TWA, 455 U.S. 385, 398 (1982). The record

reveals that Brown Schools did not receive notice that Bettcher was

making a claim until after the EEOC issued its determination, which

was more than 500 days after Bettcher was terminated. Bettcher’s

argument that Brown Schools was on notice of his claim earlier

because his name was included on a list of almost 30 employees

terminated along with Roper is unconvincing. Given that the

statute requires that a charge be filed within 300 days, and given

that Brown Schools had no notice of Bettcher’s actual claim until

the EEOC included him in its determination in June 1999, we cannot

say that Brown Schools received “prompt notice” of Bettcher’s claim

against it.

4

Even if Roper had filed a lawsuit, we nevertheless doubt that

the facts of this case would allow Bettcher to invoke the single

filing rule because Roper’s EEOC charge contained no collective or

class-wide allegations of discrimination. See Anson, 962 F.2d at

542.

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district court is therefore

A F F I R M E D

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