Petition — Marshall Field & Co. v. Paskuly

81-126 Jul 21

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198

. STEVAS,

IN THE

Supreme Court of the United States

Octoser TERM, 1981

MARSHALL FIELD & COMPANY,

Petitioner,

v.

GEORGENE PASK UL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

Nina Gippen STILLMAN

MARIAN Conroy Haney

115 South LaSalle Street

Chicago, Illinois 60603

Counsel for Petitioner

Of Counsel

Vepper, Price, Kaurman & KamMMHOLZz

115 South LaSalle Street

Chicago, Illinois 60603

(312) 781-2200

—

QUESTION PRESENTED FOR REVIEW

Whether an amended complaint adding class plaintiffs

to an individual lawsuit after the expiration of the ap-

plicable statute of limitations relates back under Rule 15(c)

of the Federal Rules of Civil Procedure to the date the

original complaint was filed where the defendant had no

notice within the limitations period of either the original

individual complaint or the additional class plantiffs.

ii

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW ........ ae

TABLE OF CONTENTS s 1

TABLE OF AUTHORTIgns s tii

D 2

/%«öÜ— ]ͤ: 2

STATUTORY PROVISION AND

ee 2

STATEMENT OF THE CAS. 3

REASONS FOR GRANTING THE WRIT ......... 7

A. The Decision Below Conflicts With Principles

Of Law Established By This Court, Decisions

Of Other Circuits And Earlier Decisions Of The

Seventh Circuit And Ignores The Requirements

Of The Applicable Federal Rule of Civil Pro-

cedure.

B. This Case Presents Questions Of Substantial And

Recurring Importance And Therefore Is Appro-

priate For Decision By This Court.

„bbb „„

APPENDIX A—Opinion of United States Court of

Appeals for the Seventh Circuit en-

tered Anvil 3G, 1961 2.2. ccsccccccce

APPENDIX B—Opinion of United States District

Court for the Northern District of

Illinois entered June 18, 1980 ......

APPENDIX C—Judgment of United States Court of

Appeals for the Seventh Circuit en-

tered April 96, 1001

APPENDIX D—Section 1292(b) Certification Order

of the United States District Court

for the Northern District of Dlinois

entered June 27, 1980 .............

APPENDIX E—Order Granting Petition for Permis-

sion to Appeal of the United States

Court of Appeals for the Seventh

Circuit entered August 12, 1980

13

la

3a

9a

10a

lla

iii

TABLE OF AUTHORITIES

Cases

PAGE

American Pipe and Construction Co. v. Utah, 414 US.

%%ͤĩt 5

Archuleta v. Duffy s, Inc., 471 F. 2d 33 (10th Cir. 1973)

Arneil v. Ramsey, 550 F. 2d 774 (2d Cir. 19777)

Britt v. Arvantis, 590 F. 2d 57 (3d Cir. 1978)

Craig v. United States, 413 F. 2d 854 (9th Cir.), cert.

denied, 396 U.S. 987 (196 900õõ0y7õů r

Gridley v. Cunningham, 550 F.2d 551 (8th Cir. 1977) ..

Hernandez Jimenez v. Calero Toledo, 604 F.2d 99 (Ist

c ⁵ͤoͤtd d ß

Ingram v. Kumar, 585 F.2d 566 (2d Cir. 1978), cert.

denied, 440 U.S. 940 (1979) ........ccscccccsveees

McGowan v. Williams, 623 F.2d 1239 (7th Cir. 1980) ..

Montalvo v. Tower Life Building, 426 F. 2d 1135 (5th

7 ²˙•].. x

Norton v. International Harvester Company, 627 F. 2d

y ͤůAmꝛr:: ͤ—

Patterson v. General Motors Corporation, 631 F. 2d 476

// ͤ ⁰ GA. 2 onttedees

Perry v. Beneficial Finance Co. of New York, Inc.,

et Fe OG A Ff | ) Be ee

Sassi v. Breier, 584 F.2d 234 (7th Cir. 1978) .........

Simmons v. Fenton, 480 F.2d 133 (7th Cir. 1973)

Staren v. American National Bank and Trust Company

of Chicago, 529 F. 2d 1257 (7th Cir. 1976) ..........

Wood v. Worachek, 618 F.2d 1225 (7th Cir. 1980)

7, 8,12

10

8,9

10

10

10

10

10

9

10

9, 10, 11

7

9

9

iv

Statutes and Federal Rule

PAGE

// ͤmA5 5 2

„.. 2, 5

Title VII of the Civil Rights Act of 1964, as amended,

/// %% 0 „„ 2, 3, 4, 5,

6, 12

Federal Rules of Civil Procedure

%% h ˙ K „„ 3, 4, 7, 9,

11

IN THE

Supreme Court of the United States

Octoser Term, 1981

MARSHALL FIELD & COMPANY,

Petitioner,

v.

GEORGENE PASKULY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

Marshall Field & Company (“Field”)* prays that a writ

of certiorari issue to review the judgment of the United

States Court of Appeals for the Seventh Circuit entered

on April 28, 1981.

Marshall Field & Company is a parent corporation. Its divisions

and subsidiaries all are wholly owned.

2

OPINIONS BELOW

The opinion of the Court of Appeals (Appendix A, infra,

pp. la-2a) is reported at 646 F.2d 1210 (7th Cir. 1981).

The decision of the District Court (Appendix B, infra,

pp. 3a-8a) is reported at 494 F.Supp. 687 (N. D. Ill. 1980).

JURISDICTION

The Judgment of the Court of Appeals was entered on

April 28, 1981 (Appendix C, infra, p. 9a). The jurisdiction

of this Court is invoked pursuant to 28 U.S.C. 6 1254(1).

The jurisdiction of the Court of Appeals was conferred by

28 U.S.C. § 1292(b).

STATUTORY PROVISION AND RULE INVOLVED

Civil Rights Act of 1964, Title VII, 42 U.S.C. 5 2000e-

5(f)(1), provides in relevant part:

.. If a charge filed with the Commission pursuant

to subsection (b) of this section is dismissed by the

Commission, or if within one hundred and eighty days

from the filing of such charge or the expiration of any

period of reference under subsection (c) or (d) of this

section, whichever is later, the Commission has not filed

a civil action under this section or the Attorney General

has not filed a civil action in a case involving a govern-

ment, governmental agency, or political subdivision, or

the Commission has not entered into a conciliation

agreement to which the person aggrieved is a party,

the Commission, or the Attorney General in a case in-

volving a government, governmental agency, or polit-

ical subdivision, shall so notify the person aggrieved

and within ninety days after the giving of such notice a

civil action may be brought against the respondent

named in the charge (A) by the person claiming to be

aggrieved or (B) if such charge was filed by a member

of the Commission, by any person whom the charge

alleges was aggrieved by the r!leged unlawful employ-

ment practice.

3

Rule 15(c) of the Federal Rules of Civil Procedure pro-

vides in relevant part:

(e) Relation Back of Amendments. Whenever the

claim or defense asserted in the amended pleading

arose out of the conduct, transaction, or occurrence set

forth or attempted to be set forth in the original plead-

ing, the amendment relates back to the date of the

original pleading. An amendment changing the party

against whom a claim is asserted relates back if the

foregoing provision is satisfied and, within the period

provided by law for commencing the action against

him, the party to be brought in by amendment (1) has

received such notice of the institution of the action

that he will not be prejudiced in maintaining his de-

fense on the merits, and (2) knew or should have known

that, but for a mistake concerning the identity of the

proper party, the action would have been brought

against him.

STATEMENT OF THE CASE

A. The Facts

On July 23, 1974, Georgene Paskuly (“Paskuly”) filed a

charge with the Equal Employment Opportunity Commis-

sion (“EEOC”) alleging that she had been unlawfully dis-

criminated against on the basis of her sex by her employer,

Field. On April 5, 1978, Paskuly received a Notice of Right

To Sue from the EEOC.

On June 23, 1978, Paskuly filed a Complaint with the

District Court alleging that Field had unlawfully dis-

criminated against her because of her sex in violation of

Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e et seg. (“Title VII”) (App. A, p. 1a;

App. B, p. 3a). Field was served with Paskuly’s Complaint

on July 12, 1978, eight days after the expiration of the

ninety-day Title VII statute of limitations.

4

On October 25, 1979, Paskuly filed an Amended Complaint

seeking to transform this action into a class action on

behalf of all similarly situated female employees of Field

(App. A, p. la; App. B, p. 3a).

B. The Decision of the District Court

On November 14, 1979, Field moved to strike, inter alia,

the class claims from the Amended Complaint on the

grounds that such claims neither were made within the

applicable Title VII ninety-day statute of limitations nor

related back to the filing date of the original Complaint

under Rule 15(c) of the Federal Rules of Civil Procedure

for the reason that Field had no notice within the appli-

cable limitations period of the addition of class plaintiffs

(App. B, pp. 3a-4a).

On June 18, 1980, the District Court denied Field’s

Motion to Strike the class claims from the Amended Com-

plaint (App. B, pp. 3a-8a). In so doing, the court acknowl-

edged that the applicable ninety-day Title VII limitations

period was jurisdictional and that the provisions of Rule

15(c) of the Federal Rules of Civil Procedure apply to

amendments seeking to add plaintiffs (App. B, pp. 4a-5a).

The District Court further stated that:

As to Rule 15(c)’s additional notice considerations, the

Court prefatorially notes that it is rare that an amend-

ment will relate back which adds plaintiffs who are

total strangers to the lawsuit. E.g., Perry v. Beneficial

Finance Co., 81 F.R.D. 490, 494 (W.D. N.Y. 1979);

Herm v. Stafford, 455 F.Supp. 650 (W.D. Ky. 1978) ;

3 Moore’s Federal Practice, f 15.15 [4.-2]. However,

the particular facts of this case coupled with the nature

of the Title VII remedy causes the Court to carve out

an exception to that general rule in the instant case.

(App. B, pp. 5a-6a).

5

The District Court went on to state that relation back

should be allowed in this case because “(t]he policies under-

lying Title VII strongly favor the bringing of class actions”

and that the primary question to be decided when deter-

mining whether a new plaintiff’s claim should relate back

to the date of the claim of the original plaintiff “is whether

the defendant had such notice of the added claim at the

time the action was commenced that relation back of the

added claim will not cause defendant undue prejudice”

(App. B, pp. 5a-6a). The court further reasoned that:

.. although once plaintiff initially commenced this

action defendant was no longer on notice that it would

have to defend itself in a class action, the allegations

of the original complaint nevertheless apprised de-

fendant that it would have to defend its employment

practices from charges of broad-ranging class-based

discrimination.

(App. B, p. 7a). The District Court also found that, be-

cause Paskuly’s original individual Complaint challenged

Field’s policies “on the ground that they discriminate

against plaintiff and other female employees,” the evidence

Field would use in its defense against the original indi-

vidual Complaint and the Amended class Complaint would

be “precisely the same” (App. B, p. 7a). Thus, the Dis-

trict Court determined that Field would not be prejudiced

if the Amended Complaint’s class claims related back to the

date Paskuly’s original Complaint was filed (App. B, p. 7a).

O. Section 1292 (b) Certification

On June 27, 1980, the District Court, pursuant to 28

U.S.C. § 1292 (b), certified that portion of its June 18, 1980

Memorandum Opinion denying Field’s Motion to Strike

the Amended Complaint’s class claims (Appendix D, infra,

p. 10a). On July 7, 1980, Field filed its Petition for Per-

6

mission to Appeal with the Seventh Circuit. On August 12,

1980, the Seventh Circuit granted Field permission to

appeal (Appendix E, infra, pp. IIa-14a).

D. The Decision of the Court of Appeals

The Court of Appeals affirmed the decision of the District

Court (App. A, pp. la-2a).' In so doing, the court deter-

mined that Paskuly’s Amended Complaint related back to

the date of the original pleading because the Amended

Complaint alleges that the class claims arose from the same

employment practices from which Paskuly’s original claim

arose (App. A, pp. la-2a). The court further stated:

We note that the original complaint alleged that de-

fendant engaged in practices that discriminated against

women because of their sex; the defenaant was thereby

on notice that it might be required to defend its em-

ployment practices from charges of class-based dis-

crimination. [Citations omitted] In view of this notice,

we believe that the district court’s finding that the de-

fendant was not prejudiced by plaintiff’s amendment

was not clearly erroneous.

(App. A, p. 2a).

The Court of Appeals further concluded that the filing of

Paskuly’s EEOC charge also gave Field “notice of the

likelihood of a class-wide action later being maintained

against it” (App. A, p. 2a). Finally, the Court of Appeals,

noting the broad-based nature of Paskuly’s original Com-

plaint, disagreed with the District Court’s conclusion that

the original Complaint, brought by Paskuly in her individ-

ual capacity, put Field off notice of the possibility of a class

action (App. A, p. 2a).

1 The EEOC filed an amicus curiae brief in the Court of Appeals

on behalf of Paskuly because the “appeal involve(d] an issue of

importance to Title VII enforcement ....” Brief For The Equal

Employment Opportunity Commission As Amicus Curiae at 1.

7

REASONS FOR GRANTING THE WRIT

A. The Decision Below Conflicts With Principles Of Law

Established By This Court, Decisions Of Other Circuits

And Earlier Decisions Of The Seventh Circuit And Ig-

nores The Requirements Of The Applicable Federal Rule

Of Civil Procedure.

The decision below permitted Paskuly’s Aiuwended Com-

plaint, which added thousands of parties plaintilf to the

lawsuit, to relate back to the date the origina) Complaint

was filed even though Field had no notice of Paskuly’s

original Complaint and, consequently, no notice of any

allegations by Paskuly, class-wide or otherwise, within the

applicable limitations period. In allowing relation back

under such circumstances, the decision below conflicts with

principles of law established by this Court, decisions of

other courts and earlier Seventh Circuit decisions. Simi-

larly, it ignores the requirements for relation back man-

dated by Rule 15(c) of the Federal Rules of Civil Procedure.

The relation back concept embodied in Rule 15(c) is

intimately tied to the policy underlying the statute of

limitations principle.* Patterson v. General Motors Corpo-

ration, 631 F.2d 476, 486 (7th Cir. 1980). Indeed, “the chief

consideration of [the] policy [underlying Rule 15(c)] is

that of the statute of limitations.” Advisory Committee’s

Notes, 39 F. R. D. 69, 84. In American Pipe and Construction

Co. v. Utah, 414 U.S. 538, 555 (1974), this Court noted that

the policy behind the statute of limitations is satisfied when

a suit is commenced which “notifies the defendants not only

of the substantive claims being brought against them, but

* Although Rule 15(c) specifically refers to the addition of

parties defendant, it has uniformly been held by numerous courts,

including the District Court below, that Rule 15(c) similarly

applies “by analogy” to the addition of parties plaintiff. Advisory

Committee’s Notes, 39 F.R.D. 69, 83-4; Wright & Miller, Federal

Practice And Procedure: Civil § 1501.

also of the number and generic identities of the potential

plaintiffs who may participate in the judgment.” This Court

went on to state that the limitations policy was satisfied in

the case before it because [wlithin the period set by the

statute of limitations, the defendants have the essential

information necessary to determine both the subject matter

and size of the prospective litigation, whether the actual

trial is conducted in the form of a class action, as a joint suit,

or as a principal suit with additional intervenors” (Id.).

Field was not served with the Amended Complaint in

which Paskuly sought to represent a class within the

applicable limitations period and, therefore, had no timely

notice of the class claims. In fact, because Field was not

served with the original Complaint prior to the expiration

of the statute of limitations, Field had no notice whatsoever

of this lawsuit within the limitations period. It necessarily

follows that within the statutory period Field had no notice

of “the number and generic identities of the potential

plaintiffs,” “the subject matter and size of the prospective

litigation” or that this suit was brought as a “class action.”

Accordingly, the decision below, by permitting relation

back, conflicts with the rule established by this Court in

American Pipe and Construction Co. v. Utah, supra.

The decision below also conflicts with the decision of the

Second Circuit in Arneil v. Ramsey, 550 F.2d 774 (2d Cir.

1977). In that case the Second Circuit held that an amended

complaint which broadened the parameters of the proposed

class did not relate back to the date of the original com-

plaint. In so doing, the court stated that:

Relation back, at least on the facts of this case, would

not accord with one of the rationales of American Pipe

[and Construction Co. v. Utah, 414 U.S. 538], that com-

mencement of the class action adequately notifies the

defendants “not only of the substantive claims being

brought against them, but also of the number and

generic identities of the potential plaintiffs who may

participate in the judgment. Within the period set by

the statute of limitations, the defendants have the es-

sential information necessary to determine both the

subject matter and size of the prospective litigation

„„ 414 U.S. at 545-555, 94 8.Ct. at 767.

550 F. 2d at 782.

Accordingly, by not permitting relation back of the

amended complaint, the Second Circuit in Arneil reached

the opposite conclusion from that reflected in the decision

of the court below. This is made clear by the decision in

Perry v. Beneficial Finance Co. of New York, Inc., 81 F. R. D.

490 (W.D.N.Y. 1979), in which the court was faced with the

precise issue here and, guided by Arneil, refused to permit

an amended complaint adding a class action allegation to

relate back to the date the original complaint was filed.

Moreover, contrary to numerous decisions of other cir-

cuits and, indeed, contrary to earlier Seventh Circuit

precedent, the court below did not require fulfillment of

all the prerequisites mandated by Rule 15(c) of the Federal

Rules of Civil Procedure before permitting the Amended

Complaint adding parties to relate back to the date the

original Complaint was filed. Prior to the decision below,

the Seventh Circuit had consistently applied all the Rule

15 (e) prerequisites when resolving issues arising under

that Rule. Norton v. International Harvester Company, 627

F.2d 18 (7th Cir. 1980); McGowan v. Williams, 623 F. 2d

1239 (7th Cir. 1980); Wood v. Worachek, 618 F.2d 1225

(7th Cir. 1980); Sassi v. Breier, 584 F.2d 234 (7th Cir.

1978) ; Staren v. American National Bank and Trust Com-

pany of Chicago, 529 F.2d 1257 (7th Cir. 1976) ; Simmons

v. Fenton, 480 F.2d 133 (7th Cir. 1973). It is also well-

established law in other circuits that all the criteria of Rule

15(c) must be satisfied where a new party is brought into

10

a lawsuit. Hernandez Jimenez v. Calero Toledo, 604 F.2d

99 (Ist Cir. 1979) ; Ingram v. Kumar, 585 F.2d 566 (2d Cir.

1978), cert. denied, 440 U.S. 940 (1979); Britt v. Arvantis,

590 F.2d 57 (3d Cir. 1978); Montalvo v. Tower Life Build-

ing, 426 F. 2d 1135 (5th Cir. 1970) ; Gridley v. Cunningham,

550 F.2d 551 (8th Cir. 1977); Craig v. United States, 413

F.2d 854 (9th Cir.), cert. denied, 396 U.S. 987 (1969);

Archuleta v. Duffy's, Inc., 471 F. 2d 33 (10th Cir. 1973).

In its failure to require that all of the Rule 15(c) criteria

be satisfied, the decision below ignored completely the

“mistake” requirement of that Rule; Paskuly neither

argued, nor did the court below find, that the Rule 15(c)

“mistake” prerequisite had been met.

Similarly, the court below ignored the clear wording of

the Rule 15(c) notice requirement which demands “notice

of the institution of the action“ within the limitations

period. Instead, the appellate court held that Field received

adequate notice because Paskuly’s broad claims in her orig-

inal complaint put Field “on notice that it might be re-

quired to defend its employment practices from charges of

class-based discrimination” and because Paskuly’s EEOC

charge gave Field “notice of the likelihood of a class-wide

action later being maintained against it.” In so holding, the

decision below squarely conflicts with the decision of the

Tenth Circuit in Archuleta v. Duffy's, Inc., 471 F.2d 33

(1973), and the Ninth Circuit in Craig v. United States, 413

F. 2d 854, cert. denied, 396 U.S. 987 (1969), both of which

held that knowledge of the existence of a potential action

does not constitute “notice of the institution of an action”

as required by Rule 15(c). Similarly, it contradicts a prior

Seventh Circuit decision in Norton v. International Harves-

ter Company, supra, which held that notice of an incident

11

giving rise to a lawsuit but not of the lawsuit itself falls

short of satisfying the Rule 15(c) prerequisites.’

Accordingly, certiorari should be granted because the

decision of the court below represents a gross departure

from well-established principles of law espoused by this

Court and numerous lower courts and reflected in the ap-

plicable Federal Rule of Civil Procedure. Additionally, the

grant of certiorari is appropriate here to resolve extremely

significant conflicts between the circuits as well as between

different panels of the Seventh Circuit.

B. This Case Presents Questions Of Substantial And Re-

curring And Therefore Is Appropriate For

Decision By This Court.

This case presents a crucial and far-reaching question:

may a defendant, long after the expiration of the applicable

limitations period and without any prior timely notice, be

required to defend itself against the claims of thousands

of new plaintiifs with the concomitant increased potential

liability and other attendant burdens associated with class

as compared with individual litigation? An affirmative re-

sponse to that question, as given by the court below, repre-

sents a substantial departure from the long-standing funda-

* Inexplicably, the court below applied a test of de novo review

in reversing the District Court's holding that Field had no notice

of a class action within the limitations period but applied a different

test, the clearly erroneous test, in affirming the District Court's

conclusion that Field had not been prejudiced. In contrast, in

Norton, the Seventh Circuit held that loss of the statute of limita-

tions defense was prima facie prejudice as a matter of law which

could be overcome only by showing notice, which presumably is

a question of fact. Thus, the court below is inconsistent with Norton

since it reverses the standards of review applied in Norton to

questions of prejudice and notice.

12

mental legal policy underlying the very concept of the

statute of limitations—a policy mandating that, within the

applicable limitations period, a defendant must be notified

not only of the substantive claims brought against it “but

also of the number and generic identities of the poten-

tial plaintiffs who may participate in the judgment” and

whether a “class action” is involved. American Pipe and

Construction Co. v. Utah, supra.

The factual circumstances of this case are hardly unique.

Indeed, they present a recurring situation, especially in

Title VII lawsuits. Often, after the expiration of the

ninety-day limitations period, a Title VII plaintiff seeks

to transform his or her lawsuit into a class action. A de-

fendant in such a situation, if the amendment adding class

claims is permitted, is faced with a new cause of action with

potentially thousands of new plaintiffs long after the ex-

piration of the limitations period.

Further, the position of the Seventh Circuit espoused in

this case would emasculate the enforcement scheme man-

dated by Congress for Title VII—a scheme clearly de-

signed for expeditious enforcement of the Act—by

effectively rendering null and void Title VII's ninety-day

statutory limitations period.

The significance and, indeed, the far-reaching impact of

the issue presented for review has already been attested to

by the EEOC, which appeared as amicus curiae on behalf

of Paskuly in the court below, and which expressly noted

that this case “involves an important question concerning

the ability of Title VII litigants to amend their timely

filed complaints to include class allegations more than 90

days after issuance of a right to sue notice.” Motion By

13

The Equal Employment Opportunity Commission, Amicus

Curiae, For Leave To Present Oral Argument at 2.

Clearly, the issues sought to be brought before this Court

are of substantial and recurring importance necessitating

final resolution in this judicial forum.

CONCLUSION

For these reasons, it is respectfully submitted that this

petition for a writ of certiorari should be granted.

Respectfully submitted,

Nina Grppen StTituMan

Marian Conroy Haney

115 South LaSalle Street

Chicago, Illinois 60603

Counsel for Petitioner

Of Counsel

Vepver, Price, Kavrman & Kammnoiz

115 South LaSalle Street

Chicago, Illinois 60603

(312) 781-2200

July, 1981

APPENDIX

la

APPENDIX A

Georgene PASKULY, Plaintiff-Appellee,

v.

MARSHALL FIELD & COMPANY,

Defendant-Appellant.

No. 80-2207

United States Court of Appeals,

Seventh Circuit.

Argued Jan, 9, 1981.

Decided April 28, 1981.

Before PELL and WOOD, Cireuit Judges, and BONSAL,

Senior District Judge.“

PER CURIAM.

Plaintiff Georgene Paskuly instituted this action on June

23, 1978 in the United States District Court for the

Northern District of Illinois, Eastern Division. The com-

plaint alleged that her employer, defendant Marshall Field

& Company, had discriminated against her because of her

sex. On October 25, 1979 plaintiff filed an amended com-

plaint seeking to transform her action into a class action

on behalf of all similarly situated female employees of

the defendant. Defendant moved to strike plaintiff’s class

allegations on the ground that the plaintiff failed to assert

them within 90 days of her receipt of her right-to-sue letter

from the Equal Employment Opportunity Commission

(“EEOC”). The district court denied defendant’s motion,

and it appeals.

We affirm.

In her amended complaint, plaintiff alleges that the

claims of the class arose from the same employment prac-

* Senior District Judge Dudley B. Bonsal of the Southern District

of New York is sitting by designation.

2a

tices from which her individual claim arose. The amended

pleading therefore “relates back” to the date of the original

pleading under Rule 15(c) of the Federal Rules of Civil

Procedure, which preserves the amended complaint from

operation of the 90-day limitations period of Title VII, 42

U.S. OC. § 2000e—5(f). Bernstein v. National Liberty Inter-

national Corp., 407 F.Supp. 709 (E. D. Pa. 1977); see also

Badillo v. Central Steel d Wire Co., 495 F.Supp. 299

(N. D. IIl. 1980); Harshaw v. Pan American World Airlines,

70 F.R.D. 462 (D.D.C. 1975); Silverman v. Lehigh Uni-

versity, 19 FEP Cases 983 (E.D.Pa.1976). We note that

the original complaint alleged that defendant engaged in

practices that discriminated against women because of their

sex; the defendant was thereby on notice that it might be

required to defend its employment practices from charges

of class-based discrimination. See Staren v. American

National Bank d Trust Company of Chicago, 529 F. 2d 1257

(7th Cir. 1976); Unilever (Raw Materials) Ltd. v. M/T

Stolt Boel, 77 F. R. D. 384 (S. D. N. V. 1977). In view of this

notice, we believe that the district court's finding that the

defendant was not prejudiced by plaintiff’s amendment was

not clearly erroneous.

Moreover, the filing of the EEOC charge also placed

defendant on notice of the likelihood of a class-wide action

later being maintained against it. In view of the broad-

based nature of the original complaint, we therefore cannot

agree with the district court that defendant was ‘put-off’

notice” of the possibility of a class action when plaintiff

instituted this action in an individual capacity. See Roma-

santa v. United Airlines, Inc., 587 F.2d 915, 918 n.6, af d

sub nom. United Airlines, Inc. v. McDonald, 432 U.S., 385,

97 S.Ct. 2464, 52 L. Ed. 2d 423 (1977).

We note that the district court has not passed on plain-

tiff’s request for class certification, pursuant to Fed.R.

Civ. P. 23.

The judgment of the district court is affirmed.

3a

APPENDIX B

Georgene PASKULY, Plaintiff,

v.

MARSHALL FIELD & COMPANY,

Defendant.

No. 78 0 2528.

United States District Court,

N. D. Illinois, E. D.

June 18, 1980.

MEMORANDUM OPINION

MAROVITZ, District Judge.

Motion To Strike And Dismiss

Plaintiff Georgene Paskuly brings this action against her

employer, defendant Marshall Field & Company, alleging

that defendant has discriminated against her because of

her sex. Plaintiff originally commenced this action in an

individual capacity on June 23, 1978. On October 25, 1979,

plaintiff filed her amended complaint seeking to transform

this action into a class action on behalf of all similarly sit-

uated female employees of defendant. Plaintiff’s amended

complaint alleges, inter alia, that defendant’s employment

practices with respect to job assignments, wages, training,

promotion, transfer, discharge, and layoff discriminate

against women employees. Plaintiff asserts claims under

42 U.S.C. § 2000e (Title VII) and 42 U.S.C. 6 1981. Plain-

tiff seeks declaratory, injunctive, and monetary relief. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1343.

Pending before the Court is defendant’s motion to strike

certain portions of plaintiff’s amended complaint. More

4a

specifically, defendant requests the Court to strike plain-

tiff’s class allegations, her section 1981 claim, her claim

based upon defendant’s alleged failure to adopt an affirma-

tive action program with respect to women, and her claim

as to defendant’s alleged wrongful layoff and discharge

practices. For the reasons set forth below, the Court denies

defendant’s motion insofar as it seeks to have stricken

plaintiff’s class allegations and grants defendant’s motion

as to plaintiff’s section 1981 claim. Because plaintiff has

yet to have an opportunity to respond to defendant’s other

arguments, the Court does not today reach those arguments.

The Court turns first to the class action issue. Defendant

argues that because plaintiff failed to make her class alle-

gations within 90 days of her receipt of her right to sue

letter from the Equal Employment Opportunity Commis-

sion (EEOC), plaintiff’s class allegations are untimely.

Further, defendant argues that the class allegations of

plaintiff’s amended complaint should not relate back, pur-

suant to Rule 15(c) of the Federal Rules of Civil Proce-

dure, to the time plaintiff filed her original complaint.

The relevant time limitations with respect to the asser-

tion of a claim under Title VII require that a claimant

must file his claim with the EEOC within 180 days of

the alleged discrimination and that the claimant’s civil

action must be brought within 90 days of his receipt from

the EEOC of a right to sue letter. 42 U.S.C. §§ 2000e-5(a),

(e). These time limitations are characterized as jurisdic-

tional, McDonnell Douglas Corp. v. Green, 411 U.S. 792,

798, 93 S.Ct. 1817, 1822, 36 L. Ed. 2d 668 (1973); however,

they are intended to serve the same purpose as a statute

of limitation. See Bowe v. Colgate-Palmolive Co., 416 F. 2d

711, 720 (7th Cir. 1969). Specifically, Title VII's time limi-

tations are designed to grant employers notice of any

alleged violations before relevant evidence becomes stale.

Z. g., id.

5a

Rule 15(c) contains a general requirement that amend-

ments to pleadings will relate back to the date of the orig-

inal filing only when the claim asserted in the amended

pleading arises out of the same set of facts as did the

original claim. Further, Rule 15(c) establishes certain

additional requirements pertaining to notice which must

be met before an amendment changing or adding defendants

will relate back. Fed. R. Civ.P. 15(c). Although Rule 15(c)

does not explicitly address the relation back questions which

arise when an amendment substitutes or adds plaintiffs, it

is clear that the considerations established in the rule were

intended to apply to such amendments. Adv.Comm.Note,

reprinted in 39 F. R. D. 69, 84. The central underlying ques-

tion which a court must decide when determining whether

a claim asserted by a new plaintiff shall relate back to the

time of the original plaintiff’s claim is whether the defend-

ant had such notice of the added claim at the time the action

was commenced that relation back of the added claim will

not cause defendant undue prejudice. See Staren v. Ameri-

cam National Bank d Trust Company of Chicago, 529 F. 2d

1257, 1263 (7th Cir. 1976) ; Unilever (Raw Materials) Ltd.

v. M/T Stolt Boel, 77 F. R. D. 384, 390 (S. D. N. V. 1977). In

so doing, the Court should remain mindful that the federal

rules are to be accorded a liberal interpretation. Staren v.

American National Bank d Trust Company of Chicago, 529

F. 2d 1257, 1263 (7th Cir. 1976).

In the instant case, since the claims of the class which

plaintiff seeks to bring into this action are alleged to arise

from the same employment practices from which plaintiff’s

claim allegedly arises, the Court finds that the amendment

adding the class claims satisfies the common factual re-

quirement of Rule 15(c). See Romasanta v. United Airlines,

Inc., 587 F.2d 915, 919 (7th Cir. 1976), aff'd United Air-

lines, Inc. v. McDonald, 482 U.S. 385, 97 S.Ct. 2464, 52

L.Ed2d 423 (1977). As to Rule 15(c)’s additional notice

6a

considerations, the Court prefatorially notes that it is rare

that an amendment will relate back which adds plaintiffs

who are total strangers to the lawsuit. E. g., Perry v. Bene-

ficial Finance Co., 81 F.R.D. 490, 494 (W. D. N. v. 1979);

Herm v. Stafford, 455 F.Supp. 650 (W.D.Ky. 1978); 3

Moore’s Federal Practice, N 15.-15[4.-2]. However, the par-

ticular facts of this case coupled with the nature of the Title

VII remedy causes the Court to carve out an exception to

that general rule in the instant case.

The policies underlying Title VII strongly favor the

bringing of class actions. Bowe v. Colgate-Palmolive Co.,

416 F. 2d at 719; Oatis v. Crown Zellerbach Corp., 398 F. 2d

496, 498 (Sth Cir. 1968). Title VII is primarily designed to

eradicate discrimination of a class-wide character, and the

Courts have recognized that this goal may often be best

achieved by way of a class action. Bowe v. Colgate-Palmolive

Co., 416 F. 2d at 719. In this connection, Title VII is also

designed to facilitate equal treatment among the class

members. Romansanta v. United Airlines, Inc., 587 F. ad at

918. Therefore, the courts have adopted a rule which pro-

vides that once a single Title VII class member has timely

filed charges with the EEOC, he may subsequently bring

a class action without the other members of the class having

instituted a grievance with the EEOC. Bowe v. Colgate-

Palmolive Co., 416 F.2d at 720. Moreover, this Circuit has

held that an EEOC filing by a single class member grants

the adverse party sufficient notice of the possibility of a

class action that the statute of limitation for the entire

class is thereby tolled. Romansanta v. United Airlines, Inc.,

537 F. ad at 918 n. 6. The rationale for the rule is that when

an individual lodges an EEOC claim which asserts a griev-

ance common to the class to which he belongs, the adverse

party can not fairly complain of surprise when a class

action is subsequently instituted. Bowe v. Colgate-Palmolive

Co., 416 F. 2d at 720. The problem presented herein is while

7a

defendant was fairly put on notice of the possibility of a

class-wide action when plaintiff filed her charges with the

EEOC, defendant was “put off” notice of the possibility

of such an action when plaintiff instituted this action in

an individual capacity.

As stated above, however, the facts of this case coupled

with the important policies of Title VII lead this Court

to the conclusion that plaintiff’s class claims should relate

back to the time of the filing of her original complaint. See

Mays v. Motorola, Inc., 14 EPD {| 7676 (N. D. IIl. 1977). First,

the Court notes that defendant has not convincingly as-

serted any specific prejudice which it will suffer if the Court

permits plaintiff’s class claims to relate back. Further,

although once plaintiff initially commenced this action de-

fendant was no longer on notice that it would have to

defend itself in a class action, the allegations of the original

complaint nevertheless apprised defendant that it would

have to defend its employment practices from charges of

broad-ranging class-based discrimination. The primary pur-

pose of statutes of limitation is to protect parties from the

prejudice caused by the loss of evidence due to the passage

of time. E.., United States v. Kubrick, 444 U.S. 111, 117,

100 S.Ct. 352, 357, 62 L.Ed.2d 259, 48 U.S.L.W. 4030, 4032

(1979). Plaintiff’s original complaint challenges defendant’s

transfer, promotion, wage, job assignments, and training

policies on the ground that they discriminate against plain-

tiff and other female employees of defendant. Hence, it can

not reasonably be said that defendant would be prejudiced

by the relation back of plaintiff’s class allegations since

precisely the same evidence which defendant would be re-

quired to marshall in its defense of plaintiff’s class claims,

defendant should have been preserving in order to defend

itself against plaintiff’s individual claim.

Moreover, it is likely that the relation back of plaintiff's

class allegations will only slightly affect the size of the

8a

putative class. Plaintiff alleges that defendant's discrimi-

natory practices are of a continuing nature. Therefore, as

a result of the relation back of plaintiff’s class allegations

the size of the putative class will only swell by the number

of class members who left defendant’s employ during the

period from the date of plaintiff’s EEOC filing until 180

days prior to the entry of this order. It is only as to this

group that relation back will cause Title VII's time-bar to

be lifted. Any Title VII claim of those females currently

employed with defendant or who have left defendant’s

employ within the last 180 days remains viable irrespective

of the Court’s ruling today. Finally, the Court notes that

discovery has been stayed in this action since early 1979.

Indeed, to date there has been little discovery in this action.

Therefore, the transformation of this action to a class

action will not cause this action to be unduly delayed. C/.

King v. Motor Freight Express, Inc., No. 78 C 4133

(N. D. IIl., March 18, 1980) (memorandum opinion denying

leave to amend Title VII action to assert class claims

because individual action was ripe for trial).

Accordingly, the Court hereby denies defendant’s motion

insofar as it seeks to have stricken plaintiff's class allega-

tions. Of course, however, the Court in no way intimates

any opinion as to the merits of plaintiff’s request for class

certification. Briefing of that motion shall proceed pursuant

to Local Rule 13 as of the date of this memorandum opinion.

With respect to plaintiff’s claim under 42 U.S.C. § 1981,

defendant correctly points out, and plaintiff now con-

cedes, Plaintiff’s Sur-Reply Brief p. 3 n. 1, that that

section may not be invoked to remedy sex discrimination.

E.., Manzanares v. Safeway Stores, Inc., 593 F. 2d 968, 971

(10th Cir, 1979). Accordingly, plaintiff’s section 1981 claim

is hereby stricken from her amended complaint. As to

defendant’s contentions with respect to plaintiff’s layoff,

discharge, and affirmative action claims, the Court hereby

orders plaintiff to file her response brief and defendant its

reply brief pursuant to Local Rule 13.

9a

APPENDIX O

Per Curiam Opinion

JUDGMENT—ORAL ARGUMENT

United States Court of Appeals

Fon run Seventa Cmovir

Chicago, Illinois 60604

April 28, 1981

Before

Hon. WILBUR F. PELL, IR., Circuit Judge

Hon. HARLINGTON WOOD, IR., Circuit Judge

Hon, DUDLEY B. BONSAL, Senior District Judge“

— — f ＋⏑ —————— ͤ— —⅛—ö0 ſꝗ rn ñÄ1,4k2?nn . ñ1?.v —

5

GEORGENE PASKULY, 1 1

Plaintiff-A ppellee, 1

No, 80-2207 vs. 8

Eastern D'vision

MARSHALL FIELD & COMPANY, *

Defendant-Appellant, | | ABRAHAM.

This cause was heard on the record from the United

States District Court for the Northern District of Illinois,

Eastern Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND Ab.

JUDGED by this Court that the judgment of the said Dis-

trict Court in this cause appealed from be, and the same is

hereby AFFIRMED, with costs, in accordance with the

opinion of this Court filed this date.

* Senior District Judge Dudley B. Bonsal of the Southern District

of New York, sitting by designation.

10a

APPENDIX D

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Honorable Abraham Lincoln Marovitz

Cause No, 78 C 2528 June 26, 1980

Title of Cause: Georgene Paskuly v. Marshall Field &

Company.

Brief Statement of Motion: Motion to Amend Order to

Include Section 1292(b) Certification and To Stay All

District Court Proceedings.

Motion of the defendant to Amend Order to include

Section 1292(b) Certification And to stay all District Court

proceedings, is granted and all discovery is stayed, Cause

is continued to September 10, 1980 at 10:45 A.M.

Docketed June 27, 1980

lla

APPENDIX E

United States Court of Appeals

For tae Seventa Cracuit

Chicago, Illinois 60604

August 12, 1980

Before

Hon, WALTER J, CUMMINGS, Cireuit Judge

Hon, WILBUR F. PELL, JR., Cireuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

GEORGENE PASKULY, peel trom the

Plaintiff-A ppellee, District Cour

or

Misc, No. 80-8035 vs. 1 Northers Distriet

MARSHALL FIELD & COMPANY, | “i viii

Defendant-A ppellant. | Joel — Judge

This matter comes before the Court for its consideration

on the filing of the following documents:

1, “PETITION FOR PERMISSION TO APPEAL”

filed herein on July 11, 1980 by counsel for the defendant-

appellant.

2. “MEMORANDUM IN OPPOSITION TO DEFEND.

ANT’S PETITION FOR PERMISSION TO APPEAL”

filed herein on July 28, 1980 by counsel for the plaintiff.

appellee,

3. “MOTION FOR LEAVE TO FILE INSTANTER

REPLY MEMORANDUM IN SUPPORT OF PETITION

FOR PERMISSION TO APPEAL” filed herein on July

31, 1980 by counsel for the defendant-appellant.

12a

On consideration whereof,

IT IS ORDERED that defendant-appellant’s petition for

permission to appeal is hereby GRANTED.

PELL, dissenting.

There are very few cases of any complexity in the federal

courts which do not from the outset involve rulings by the

trial judges which, if set aside, would not change to some

extent the course and length of the litigation. If these con-

stantly recurring rulings are the subject of appellate inter-

locutory review simply because of a certification under 28

U.S.C. § 1292(b), the courts of appeals are more and more

going to become involved in the piecemeal review of ongoing

litigation in the trial courts with less and less available

time to address those appeals with which the courts of

apres!s should be primarily concerned, being from final

judgments. The present case is one which, in my opinion,

presents no appropriate basis for review. Accordingly, I

respectfully dissent.

At the outset, iv must be noted, that the litigation below

has not even reached the state of a class having been certi-

fied. If the case were allowed to proceed at the trial court

level without appellate ioterference, the issue now before us

could well be mooted by a determination of the impropriety

of certification. Even if that next step had already sccurred,

and some type of class had been certified, the Supreme

Court has made clear the inappropriateness of the review

of such a question. Coopers d Lybrand v. Livesay, 437 U.S.

463 (1978).

Aside from the fact that the time now spent by this court

in reviewing the decision of the district court permitting the

filing of an amended complaint may be an exercise in futil-

ity, the record presented to us simply does not demonstrate

that the appellant has met the heavy burden facing a liti-

gant who asks for the section 1292(b) interlocutory review.

13a

This court has emphasized that the appellant “has the bur-

den of persuading the court of appeals that exceptional cir-

cumstances justify a departure from the basic policy of

postponing appellate review until after the entry of a final

judgment.” Fisons Lid. v. United States, 458 F.2d 1241,

1248 (7th Cir. 1972). This language has been explicitly en-

dorsed and adopted by the Supreme Court. Coopers d

Lybrand, supra, at 475.

Turning to the presence of exceptional circumstances, I

find none worthy of the designation. The plaintiff’s original

complaint was a class action complaint except for articulat-

ing the requirements of Rule 23 and adding a request for

class relief. Thoughts of form over substances interject

themselves. The original complaint explicitly and re-

peatedly alleged that the defendant maintained policies and

practices that discriminated against women, not just against

the named plaintiff. I fail to see in this reading of the

amended complaint any basis for the appellant’s assertion

that the scope of discovery or the length of the trial will

be changed by the amendment.

The appellant argues that this court in Wenning v. Jim

Walters Homes, 606 F.2d 784, 785 (7th Cir. 1979), “has al-

ready stated that it is preferable to resolve a limitations

issue before the class issue... The exact language of

that case was: “Under these circumstances it was not error

to reach the statute of limitations issue before deciding the

class action.” Id. at 785. Wenning involved an appeal from

a final judgment and I have great difficulty in saying that

a holding that the trial court’s action was “not error” should

be characterized as a “preference.”

I agree with the appellee and with the trial court that the

“Title VII claim of those females currently employed with

defendant or who have left defendant’s employ within the

last 180 days remains viable irrespective” of the court’s

14a

ruling under review. Thus, the only real issue concerns

a very small sub-group of the putative class who would

need to rely on the relation-back doctrine to protect their

claims. I have no reason for thinking that if the district

court was incorrect in this relatively inconsequential por-

tion of the order that it might not be corrected in the event

an appropriate class would be certified.

I think if we continue to engage in piecemeal litigation on

the basis of cases such as this one, we can only complain of

an overload of cases with poor grace.