Simpson v. Boeing Company, The

Filing 24

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendants motion to dismiss or strike plaintiffs class claims [Doc. # 11 ] is denied. Signed by District Judge Carol E. Jackson on 6/13/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LISA SIMPSON,

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Plaintiff,
vs.
THE BOEING COMPANY,
Defendant.

Case No. 4:14-CV-14 (CEJ)

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

Background

Plaintiff Lisa Simpson is an African American woman over the age of 40. She
applied for a variety of employment positions with defendant, the Boeing Company,
between January and April 2012, but was not hired. She alleges that defendant filled
these positions with less qualified white male applicants under the age of 40, and that
she was passed over due to her race, age, and gender.

Plaintiff brings claims,

individually and on behalf of a class, 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); age
discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §
621, et seq. (Count IV) and the MHRA (Count V); and gender discrimination under Title
VII (Count VI) and the MHRA (Count VII).

She seeks to certify two classes of

individuals: (1) Class A - “all minority persons (including females and non-caucasian

applicants) 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 (2) Class B - “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 plaintiff’s 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

In order to file suit under Title VII, the ADEA, or the MHRA, a plaintiff must first
file an administrative charge of discrimination. See 42 U.S.C. §2000e-5(c); 29 U.S.C.
§626(d); Mo. Rev. Stat. § 213.075. The named plaintiff in this action, Lisa Simpson,
filed a charge of discrimination with the Missouri Commission on Human Rights (MCHR)
and the Equal Employment Opportunity Commission (EEOC) [Doc. #12-1], and was
issued a right to sue letter. However, she does not allege that other putative class
members have also filled charges.

Defendant argues that because other class

members have not exhausted their administrative remedies, this case cannot proceed
as a class action and plaintiff’s class claims must be dismissed. Plaintiff responds that,
under the “single-filing rule,” putative class members who have not filed administrative
charges may “piggyback” on her own properly filed charge.
Under the single-filing rule, once a single plaintiff has filed an administrative
charge, other plaintiffs may join the suit without filing separate charges by

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“piggybacking” on the original charge. 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). Circuit Courts of Appeals have
developed different tests to determine whether a single charge may serve as the basis
for a class action. See, e.g., Tolliver v. Xerox Corp., 918 F.2d 1052, 1057-58 (2d. Cir.
1990) (summarizing the differing standards). “The broadest test requires only that the
claims of the administrative claimant and the subsequent plaintiff arise out of the same
circumstances and occur within the same time frame.” Foster v. Ruhrpumpen, Inc.,
365 F.3d 1191, 1197 (10th Cir. 2004) (quoting Howlett v. Holiday Inns, Inc., 49 F.3d
189, 195 (6th Cir. 1995)). The most restrictive test “requires that the administrative
charge not only allege discrimination against a class but also that the claimant purports
to represent the class or others similarly situated.” Id. at 1197-98.
The Eighth Circuit Court of Appeals has adopted a middle ground, and applies
the single-filing rule only when the original filing places the administrative agency and
the employer on notice that class claims may follow. The purpose of the administrative
charge is twofold: it 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, and it notifies the employer of the claims against it and its exposure to
liability. Kloos, 799 F.2d at 400. In order for a single administrative charge to serve
as the basis for a class action without undermining these twin goals of notice and
conciliation, the charge must “fairly anticipate class claims.” Id. Therefore, while the
claimant need not purport to represent a class in the administrative charge, “the
administrative claim [must] give notice that the discrimination is ‘class-wide,’ i.e., ...

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allege[] discrimination against a class of which the subsequent plaintiff is a member.”
Tolliver, 918 F.2d at 1058 (citing Kloos, 799 F.2d at 401).
Plaintiff’s administrative charge reads, in part:
Upon information and belief the... positions were filled by predominately
less qualified (or not qualified whatsoever) younger, white males. There
is a great disparity in Boeing’s hiring practices and they are
discriminating against me and other similarly situated individuals on the
basis of race, age, and gender. Boeing has consistently filled open
positions that I have applied for with less experienced individuals and I
believe I was discriminated against through their hiring practices.
[Doc. #12-1] (emphasis added).
While plaintiff describes her personal experience seeking employment with defendant,
she also alleges a “great disparity” in defendant’s hiring practices and discrimination
against individuals similarly situated to herself.

This language is sufficient to put

defendant on notice of a potential class action, and cures the deficiency this Court
identified in the similar case of Sherrard v. Boeing Co., No. 4:13-CV-1015 (CEJ).
In Sherrard, the administrative charges of the named plaintiffs could be read
only to bring individual claims of discrimination. Sherrard v. Boeing Co., No. 4:13-CV1015 (CEJ), 2013 WL 5786642, at *2 (E.D. Mo. Oct. 28, 2013). They did not reference
a widespread disparity in hiring practices or discrimination against similarly situated
individuals. Accordingly, the Court granted defendant’s motion to dismiss class claims,
and found that putative class members could not benefit from the single-filing rule. Id.
The administrative charge in this case, unlike the charges in Sherrard, notified the
MHRA, the EEOC, and Boeing that plaintiff’s accusations encompassed more than just
her own isolated experience with discrimination.
Defendant argues that the single-filing rule was abrogated by National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and is no longer good law. Morgan

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did not directly address the single-filing rule. Rather, it concerned the statutory time
period within which to file a charge, and abrogated the continuing violation doctrine.
Some courts have acknowledged tension between Morgan and the single-filing rule.
See, e.g., Horton v. Jackson Cnty. Bd. of Cnty. Comm’rs, 343 F.3d 897, 900 (7th Cir.
2003); see also Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1198-99 (10th Cir. 2004).
Although Morgan primarily addresses the continuing violation doctrine, it “is emphatic
that ‘each discrete discriminatory act [i.e., an act that is not part of a continuing
violation] starts a new clock for filing charges alleging that act.’” Horton, 343 F.3d at
900 (7th Cir. 2003) (quoting Morgan, 536 U.S. at 113).

“The single-filing rule

dispenses not only with the need to file a separate charge for each violation of an
employee’s rights, but also and necessarily with the need to file a timely charge.” Id.
Despite this acknowledged tension, courts have continued to apply the singlefiling rule to class actions. As the Seventh Circuit Court of Appeals noted, “it is hard
to quarrel with the original application of the single-filing doctrine, which was to class
actions. Requiring that every class member file a separate charge might drown agency
and employer alike by touching off a multitude of fruitless negotiations.” Horton, 343
F.3d at 900. The Seventh Circuit found it “clear that the single-filing doctrine is indeed
valid insofar as class actions are concerned....” Id. The Tenth Circuit Court of Appeals
has also continued to apply the single-filing rule. See Foster v. Ruhrpumpen, Inc., 365
F.3d 1191, 1198-99 (10th Cir. 2004) (addressing Morgan, but continuing to apply the
single-filing rule). While this Court has not explicitly addressed the impact of Morgan
on the single-filing rule, it has continued to discuss and apply that rule as well-settled
law. See, e.g., Turner v. Sw. Bell Telephone L.P., No. 4:04-CV-1688 (SNL), 2006 WL
903373, at *6 (E.D. Mo. Apr. 7, 2006) (“The law is well-settled that if one or more

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putative members of a class properly file a charge of discrimination with EEOC or
MHRA, and receive a Right to Sue letter, it is sufficient exhaustion of administrative
remedies....[a]s long as class issues are alleged....”). In short, defendant’s contention
that Morgan has abrogated the rule is unsupported by case law.
Defendant also argues that, even if the single-filing rule applies to plaintiff’s
class claims under federal law, it does not apply to her claims under the MHRA.
Although Title VII case law is frequently used to interpret analogous discrimination
statues in the MHRA, the MHRA “is not merely a reiteration of Title VII.” Hammond v.
Municipal Correction Institute, 117 S.W.3d 130, 137 (Mo. Ct. App. 2003). Rather, Title
VII and the MHRA are “coextensive, but not identical, acts.” Brady v. Curators of
University of Missouri, 213 S.W.3d 101, 112 (Mo. Ct. App. 2006). However, defendant
has failed to identify statutory language or Missouri case law that justifies a departure
from this Court’s long-standing assumption that the single-filing rule applies equally
to Title VII and the MHRA. See Turner, 2006 WL 903373 (discussing the single-filing
rule in the context of both Title VII and the MHRA).
B.

Sufficiency of Class Claims under Rule 23

Defendant argues that plaintiff’s class claims should be dismissed prior to any
class discovery or motion to certify a class, because plaintiff has failed to state a
plausible claim of 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., 291 F.R.D.
263, 269 (W.D. Wis. 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

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(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.
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, plaintiff seeks 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....”
Defendant asserts that it is evident from the pleadings that plaintiff cannot
satisfy the commonality requirement as refined by the Supreme Court in Dukes, 131
S.Ct. at 2522, and that plaintiff will not be able to produce any “glue” to hold together
the reasons for defendant’s failure to hire class members.

The Court previously

rejected this argument in Sherrard v. Boeing Co., and found plaintiffs’ pleadings
sufficient to survive a motion to dismiss.1 The Court emphasized that, at this early
stage of litigation, information about defendant’s hiring policies, practices, and
procedures - the type of information which would produce “a common answer to the
1

To clarify, in Sherrard the Court dismissed class claims under Title VII, the ADEA, and
the MHRA for failure to exhaust administrative remedies. The Court denied the motion to
dismiss plaintiffs’ class claim of discrimination under 42 U.S.C. § 1981.

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crucial question why was I disfavored” Dukes, 131 S.Ct. at 2552 - was unavailable.
Sherrard, 2013 WL 5786642, at *3. Defendant argues that the case of Scott v. Family
Dollar Stores, Inc., 733 F.3d 105 (4th Cir. 2013), handed down by the Fourth Circuit
Court of Appeals just prior to Sherrard, warrants reconsideration of this issue. After
taking Scott into consideration, the Court remains convinced that its ruling in Sherrard
was correct.
The court in Scott addressed the sufficiency of pleadings in the context of class
claims of discrimination. Plaintiffs, store managers at Family Dollar Stores, alleged that
“defendant’s pay decisions and/or system includes subjectivity and gender stereotyping
that causes disparate impact to compensation paid to female store managers.” Scott,
733 F.3d at 108-09. Because the complaint did not identify a company-wide practice,
policy, or decision-maker responsible for pay and promotion, the court found that
plaintiffs’ allegations were insufficient to satisfy the commonality standard set forth in
Dukes.2 Id. at 116.
The class allegations in the instant complaint are far narrower than those in
Scott or Dukes. Plaintiff is not alleging a disparate impact spanning a nationwide chain
of stores. Rather, she alleges that defendant discriminates against minorities through
its hiring policies and practices for specific positions at its St. Louis locations. The
narrow scope of plaintiff’s allegations make this case distinguishable from Scott and
Dukes, and increase the likelihood that plaintiff will be able to identify a common
answer to the question of why class members were not hired. The Court concludes
that it is plausible that plaintiff will be able to satisfy the Rule 23(a)(2)'s commonality
requirement after conducting discovery.
2

The court went on to find plaintiffs’ amended complaint cured the defects of the
original complaint, and remanded the case. Scott, 733 F.3d at 117.

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Defendant also argues that plaintiff cannot satisfy the Rule 23(a)(4) requirement
that named parties “will fairly and adequately protect the interests of the class.” “The
adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between
named parties and the class they seek to represent.” Anchem Prods., Inc. v. Windsor,
521 U.S. 591, 625 (1997). Defendant contends that members of Class A - a combined
class of females and racial minorities - and Class B - a class of persons over the age
of 40 - have competing claims, because they all claim that defendant failed to hire
them to fill a limited number of employment positions. Following this logic, Title VII
failure-to-hire or failure-to-promote claims would never be certifiable as class actions,
as the number of employment positions or promotions available are always limited.
The Court disagrees with defendant’s characterization of plaintiff’s proposed classes as
inherently conflicted. Plaintiff alleges that she and the putative class members suffered
the same injuries, and her allegations are sufficient to survive defendant’s motion to
dismiss.
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). This point was raised and rejected in Sherrard.
2013 WL 5786642, at *4. 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-NKL, 2009 WL
3837502, *6 (W.D. Mo. Nov. 17, 2009) (quoting Newberg on Class Actions, § 4.25).
“[I]t is a rare case in which it is clear from the pleadings that the plaintiffs may
not proceed as a class....” Ladik, 291 F.R.D. at 272. This is not such a case.

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****
For the reasons discussed above,
IT IS HEREBY ORDERED that defendant’s motion to dismiss or strike plaintiff’s
class claims [Doc. #11] is denied.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 13th day of June, 2014.

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