Sherrard et al v. The Boeing Company

Filing 28

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendants motion to dismiss or strike plaintiffs class claims [Doc. # 9 ] is granted as to plaintiffs class claims of race and age discrimination under Title VII, the ADEA, and the MHRA, and denied with respect to plaintiffs class claim of race discrimination under 42 U.S.C. § 1981. IT IS FURTHER ORDERED that plaintiffs second motion for extension of time to respond to defendants motions to dismiss [Doc. # 15 ] is moot. Signed by District Judge Carol E. Jackson on 10/28/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HULITT SHERRARD, et al.,
Plaintiffs,
vs.
THE BOEING COMPANY,
Defendant.

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Case No. 4:13-CV-1015 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion to dismiss or strike
plaintiffs’ class claims. Plaintiffs have responded in opposition, and the issues are fully
briefed.
I.

Background

Plaintiffs Hulitt Sherrard, Tony Bailey, and Demonicel Jackson are African
Americans over the age of 40. They applied for a variety of employment positions with
defendant, the Boeing Company, but were not hired. They allege that defendant filled
these positions with less qualified white applicants under the age of 40, and that they
were passed over due to their race and age. In their amended complaint, plaintiffs
assert claims of race discrimination under Title VII of the Civil Rights Act, 42 U.S.C. §
2000e, et seq. (Count I), 42 U.S.C. § 1981 (Count II), and the Missouri Human Rights
Act (MHRA), Mo. Rev. Stat. § 213.010, et seq. (Count III), and claims of age
discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §
621, et seq. (Count IV) and the MHRA (Count V). They seek to certify two classes of
individuals:
Class A - consisting of “all minority persons who applied to work as a
mechanic and/or machinist at The Boeing Company at its facilities located

in and around St. Louis County and the St. Louis Metropolitan area and
were not hired by The Boeing Company,” and
Class B - consisting of “all persons over the age of 40 who applied to
work as a mechanic and/or machinist at The Boeing Company at its
facilities located in and around St. Louis County and the St. Louis
Metropolitan area and were not hired by The Boeing Company.”
II.

Discussion

Defendant moves to dismiss or strike plaintiffs’ class claims for failure to exhaust
administrative remedies and for failure to state plausible claims of class-wide relief
under Fed.R.Civ.P. 23. The Court will address these issues in turn.
A.

Administrative Exhaustion of Class Claims

As a prerequisite to filing suit under Title VII, the ADEA, or the MHRA, a plaintiff
must file a charge of discrimination with the Equal Employment Opportunity
Commission (EEOC) or a comparable state agency. See 42 U.S.C. §2000e-5(c); 29
U.S.C. §626(d); Mo. Rev. Stat. § 213.075. After one plaintiff has properly filed an
administrative charge, other plaintiffs may join that suit without filing separate charges
by “piggybacking” on the original charge. This is known as the “single filing” rule. See
Kloos v. Carter-Day Co., 799 F.2d 397, 400 (8th Cir. 1986) (applying piggybacking to
an ADEA claim); Turner v. Sw. Bell Telephone L.P., No. 4:04-CV-1688 (SNL), 2006 WL
903373, at *6 (E.D. Mo. Apr. 7, 2006) (applying Kloos to Title VII and the MHRA).
“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.” Bettcher v. Brown Sch., Inc., 262 F.3d 492, 495 n.3 (5th Cir. 2001). The
purpose of an administrative charge is twofold. First, the charge provides the state
agency or the EEOC with information and the opportunity to negotiate an end to the
unlawful practices through informal methods of conciliation. Kloos, 799 F.2d at 400.

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Second, the charge notifies the employer of the claims against it and its exposure to
liability. Id. Thus, for a single administrative charge to serve as the basis for a class
action, it must “allege class-wide... discrimination or claim to represent a class.” Id.
The charge must “fairly anticipate class claims” in order to satisfy the notice and
conciliation purposes of the filing requirement. Id.
In the instant case, each named plaintiff filed an individual administrative
charge. These charges do not indicate that plaintiffs sought to address a widespread
problem or represent a class.

Instead, each charge refers only to individual

grievances. See, e.g., EEOC charge of plaintiff Tony Bailey [Doc. # 10-1] (“I am a 49
year old African American . . . I applied for six positions ranging from tooling mechanic
to supply chain specialist. Despite being qualified for all the positions I was not hired
for any of them . . . I believe I have been discriminated against . . .”). Plaintiffs point
out that they named one another as “similarly situated individuals” on their EEOC
intake questionnaires. Plaintiffs argue that these questionnaires should count as part
of their administrative charges, and that naming two other individuals in a charge is
sufficient to support a class action under the single filing rule.

The Court is not

convinced that plaintiffs’ questionnaires should be considered a component of their
charges.

Compare Fed. Express Corp. v. Holowecki, 552 U.S. 389, 404 (2008)

(concluding, in an ADEA case, that an EEOC intake questionnaire accompanied by a
detailed affidavit describing the alleged discriminatory practice constituted a “charge”)
with Kristensen v. Greatbatch, No. 11-3318 (MJD/TNL), 2012 WL 4479244, at *5 (D.
Minn. Sept. 28, 2012) (holding that, in the context of Title VII claims, “when Plaintiff
has filed a timely EEOC Charge... the Questionnaire cannot be used to satisfy the
requirement that she exhaust administrative remedies for other claims.”). Even if the

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Court were to consider the questionnaires, a charge that names two other individuals
who filed separate administrative complaints by no means provides notice to the
agency or the employer sufficient to support the class claims plaintiffs wish to pursue.
See Kloos, 799 F.2d at 401 (finding that three administrative filings did not provide
notice of class-wide discrimination to the agency or the employer).
Plaintiffs argue that Kloos applies only to opt-in class actions under the ADEA,
and not to opt-out classes under Title VII. The Court has rejected this limited reading
of Kloos.

See Turner, 2006 WL 903373, at *6.

The ADEA and Title VII require

administrative exhaustion for the same reasons - to provide the employer with notice
and the agency with the opportunity to engage in conciliation.

“It is obvious,

therefore, that Kloos and its progeny are applicable, not only to the ADEA opt-in class
claims, but to Title VII opt-out class claims as well.” Id.
In conclusion, plaintiffs cannot benefit from the single filing rule, because their
administrative filings failed to apprise the agencies or the defendant of potential class
claims. Accordingly, plaintiffs’ class claims under Title VII, the ADEA, and the MHRA
will be stricken from the amended complaint.1
B.

Sufficiency of Class Claims under Rule 23

The only remaining class claim is one of race discrimination under Section 1981.
Defendant argues that this claim should be dismissed prior to any class discovery or
motion to certify a class, because plaintiffs have failed to state a plausible claim for
class-wide relief.

When a defendant moves to dismiss class allegations prior to

discovery, the court should evaluate the motion under a standard similar to that of
Fed.R.Civ.P. 12(b)(6). See Ladik v. Wal-Mart Stores, Inc., No. 13-CV-123-BBC, 2013
1

This holding does not affect plaintiffs’ individual claims under these statutes, nor does
it impact plaintiffs’ class claim under Section 1981.

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WL 2351866, at *7 (W.D. Wis. May 24, 2013) (citations omitted).

“Under that

standard, the plaintiffs’ allegations must ‘state a claim to relief that is plausible on its
face’ and ‘raise a right to relief above the speculative level.’” Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “In the context of a determination under Rule 23,
the question is whether plaintiffs’ allegations are sufficient to show that it is plausible
that plaintiffs will be able to satisfy the Rule 23 requirements after conducting
discovery.” Id. Defendant also moves to strike plaintiffs’ class allegations under
Fed.R.Civ.P. 12(f), which allows a court to strike immaterial matter from the complaint,
and Fed.R.Civ.P. 23(d)(1)(D), which allows the Court to require pleadings to be
amended to eliminate allegations about absent persons.
Federal Rule of Civil Procedure 23 sets forth the requirements that must be met
for class certification. First, under Rule 23(a), the party seeking to certify a class must
show that:
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect the
interests of the class.
Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2548 (2011) (quoting Fed.R.Civ.P.
23(a)). The party must also demonstrate that at least one of three requirements listed
in Rule 23(b) is satisfied. In this case, plaintiffs seek to satisfy Rule 23(b)(3), and
show that “questions of law or fact common to class members predominate over any
questions affecting only individual members . . . ”
“[I]t is a rare case in which it is clear from the pleadings that the plaintiffs may
not proceed as a class....”

Ladik, 2013 WL 2351866, at *11 (dismissing class

allegations prior to discovery because plaintiffs sought to certify a class on a theory
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materially indistinguishable from the one rejected by the Supreme Court in Wal-Mart
v. Dukes, 131 S.Ct. at 2522). This is not such a case. Defendant asserts that it is
evident from pleadings that plaintiffs cannot satisfy the commonality requirement as
refined by the Supreme Court in Dukes, 131 S.Ct. at 2522, and that plaintiffs will not
be able to produce any “glue” to hold together the reasons for defendant’s failure to
hire class members. At this stage, the Court simply does not have enough information
about defendant’s hiring policies, practices, and procedures to determine if this is so.
Defendant also argues that plaintiffs cannot show “typicality,” which requires a
“demonstration that there are other members of the class who have the same or
similar grievances as the plaintiff.” Donald v. Pillsbury Co., 554 F.2d 825, 830 (8th Cir.
1977). Defendant points to Chaffin v. Rheem Mfg. Co., 904 F.2d 1269, 1275 (8th Cir.
1990), which affirmed the denial of a motion to certify a class when plaintiff’s only
evidence of similarly situated individuals was anecdotal and statistical evidence of race
discrimination, and the names of one or two other black employees who believed they
also suffered discrimination on the basis of race. This case is unpersuasive as it was
decided after plaintiff had the opportunity to conduct class discovery.

Prior to

discovery, the inability to identify more than a few other similarly situated persons is
neither surprising, nor fatal to plaintiffs’ class claims.
Finally, defendant argues that individualized damages calculations would
overwhelm any common questions of fact or law, precluding a showing of
“predominance” under Rule 23(b)(3). At this stage, it is not clear whether individual
or common issues predominate. Indeed, “[c]ommon issues may predominate when
liability can be determined on a class-wide basis, even when there are some
individualized damages issues.” Roberts v. Source for Pub. Data, No. 2:08-cv-4167-

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NKL, 2009 WL 3837502, *6 (W.D. Mo. Nov. 17, 2009) (quoting Newberg on Class
Actions, § 4.25).
This is not one of those rare cases in which it is evident from the pleadings that
plaintiffs have failed to state even a plausible claim of class relief.

Accordingly,

defendant’s motion to dismiss plaintiffs’ class claims on this ground will be denied.
Because the only class claim remaining in this case is that of race discrimination under
42 U.S.C. § 1981, the Court will only entertain a motion to certify plaintiffs’ proposed
Class A.
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For the reasons discussed above,
IT IS HEREBY ORDERED that defendant’s motion to dismiss or strike plaintiffs’
class claims [Doc. #9] is granted as to plaintiffs’ class claims of race and age
discrimination under Title VII, the ADEA, and the MHRA, and denied with respect to
plaintiffs’ class claim of race discrimination under 42 U.S.C. § 1981.
IT IS FURTHER ORDERED that plaintiffs’ second motion for extension of time
to respond to defendant’s motions to dismiss [Doc. #15] is moot.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 28th day of October, 2013.

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