Opinion
Case No. 00-4186-RDR
April 2, 2001
MEMORANDUM AND ORDER
This is an employment discrimination action. Plaintiff asserts claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Kansas Age Discrimination in Employment Act (KADEA), K.S.A. § 44-1111 et seq. This case has a close relationship with another pending case, Epling v. UCB Films, Inc., No. 98-4226-RDR (Epling I). This relationship will be examined as the court considers the pending motions here. The following motions are presently before the court: (1) defendant UCB Inc.'s motion to dismiss; (2) defendant UCB Films, Inc.'s motion to dismiss; and (3) plaintiff's motions to consolidate. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
On January 16, 2001, plaintiffs filed a motion for extension of time to file their response to the defendants' motions to dismiss. They sought an extension until January 29, 2001 in which to file their response. The court inadvertently failed to rule on this motion, and the response was filed on January 29, 2001. The court shall now grant this motion. The court finds that the response was timely filed.
BACKGROUND
For many years, Dupont, Inc. and Flexel, Inc. operated a cellophane manufacturing plant in Tecumseh, Kansas. In 1996, Flexel closed the plant and terminated all of its employees. UCB Films, Inc. purchased the plant and began seeking employees in 1997. Adecco, an employment agency, acted as agent for UCB in the hiring process by providing administrative testing and employment services. Adecco reviewed all applicants to ensure they met the basic qualifications for employment by UCB, i.e., six months of production, warehouse or light industrial experience; two valid references; high school diploma or GED; and successful completion of safety, light industrial, and basic math tests. Applicants who met these basic qualifications were sent to UCB for interviews.
On July 18, 1997, Epling took the various tests administered by Adecco but failed the math test. Accordingly, his application was rejected in October 1997. He received the following rejection letter from UCB:
Thank you for your interest in the Coating Operator position advertised for UCB Cello, Inc.
At this point, our process reveals that some of our other applicants have skills and experience that match the needs of this position more closely than your information indicated.
We would be pleased, however, to keep your resume active in our files for consideration for any future positions for which you may be qualified. In order to remain active, our office needs to hear from you at least every 30 days. If we do not hear from you, we will assume that something has changed and you are no longer looking for a new position.
Again, thank you for your interest in UCB Cello, Inc.
Following receipt of the rejection letter, Epling sent a letter every month to either Adecco or UCB asking to be considered for employment. On February 12, 1998, Epling filed a charge of discrimination with the Kansas Human Rights Commission (KHRC) and Equal Employment Opportunity Commission (EEOC). In this complaint, he made the following allegations:
I. I made application for a coating operator position through Adecco, a temporary agency.
A. On or about October 7, 1997, I was informed in writing by Adecco that I was not selected for the position allegedly because the other applicants had skills or experience that matched the needs of this position more closely than my skills and experience. To the best of my knowledge and belief, I was as qualified or more qualified than the other applicants in that I have twenty-four (24) years of experience performing the duties and responsibilities of the position, along with various other skills and experience.
II. I hereby charge UCB Cello, Inc. and its representatives with a violation of the Kansas Act Against Discrimination in Employment Act. I was singled out for adverse differential treatment compared to similarly-situated younger applicants in that the Respondent aided, abetted, incited, compelled or coerced the denial of my employment because of my age, fifty-six (56).
On December 18, 1998, Epling filed an action against UCB in this court alleging age discrimination, which was designated as Case No. 98-4226 (Epling I). He contended he was discriminated against because of his age when he was not hired as a coating operator on October 7, 1997.
On May 7, 1999, plaintiff learned for the first time that he failed the math test in the initial application process. He filed another charge of discrimination with the KHRC and the EEOC on May 25, 1999. In this complaint, he made the following allegations:
1. Since December 1997, I have continually applied for a job at UCB Films, Inc. which has continuously advertised that it is seeking applicants for UCB job vacancies. In addition, I send monthly letters requesting that I be considered for a job at UCB.
2. UCB has continually failed to hire me for employment.
3. I believe UCB has violated the Kansas Act Against Discrimination and the Kansas(sic) and the Kansas Age Discrimination in Employment Act by failing to hire me for employment in any job vacancy, including the position of coating operator, in retaliation for my filing of a complaint (Docket 22236-98) with the Kansas Human Rights Commission claiming a violation of the Kansas Act Against Discrimination and the Kansas Age Discrimination in Employment Act.
Epling asked to be allowed to retake the math test. He was allowed to do so and was informed in July 1999 that he had passed the test.
On July 22, 1999, he sought to amend his complaint in Epling I. He wanted to add a claim of retaliation.
On December 3, 1999, Epling filed a third administrative charge of discrimination. In this complaint, he alleged that the defendants have continued a course of conduct of refusing to hire him because of his age and in retaliation for filing past complaints.
On December 27, 1999, he filed a second motion to amend in Epling I. In this motion, he sought to add UCB, Inc. as a defendant and to add four additional plaintiffs. In February 2000, Epling was interviewed at UCB. He was not hired. On August 7, 2000, the court denied both of Epling's motions to amend.
On November 14, 2000, Epling filed this action against UCB Films, Inc. and UCB, Inc. The instant motions to dismiss were filed on December 5, 2000 and December 27, 2000. On February 6, 2001, the court issued an opinion in a related case, Hladky v. UCB Films, Inc., No. 00-4062-RDR (D.Kan. 2001), on defendant's motion to dismiss. The defendants filed their reply concerning the instant motions on March 14, 2001.
Each defendant raises the same arguments in their respective motion to dismiss. The defendants also raise some new arguments in their reply. In the motions to dismiss, the defendants contend that (1) res judicata precludes Epling from litigating this case; and (2) the court lacks subject matter jurisdiction to consider the claims asserted by the plaintiffs other than Epling. In their reply, the defendants assert that the rule against duplicative litigation bars this action. They further argue that Epling's claims should be barred as untimely.
RES JUDICATA OR DUPLICATIVE LITIGATION
The defendants, relying on the doctrine of res judicata or duplicative litigation, contend that this action is barred and should be dismissed. They argue initially that the denial of the motions to amend in Epling I operates like a judgment on the merits for res judicata purposes. In making this argument, they also assert that the claims against UCB, Inc. should be dismissed based on res judicata because the motion to amend in Epling I seeking to add UCB, Inc. as a defendant was denied as futile. They further assert, in the alternative, that Epling's claims should be barred as untimely and duplicative.
The court has recently addressed many of the issues raised by the parties in this case in Hladky v. UCB Films, Inc., No. 00-4062-RDR (D.Kan. 2001), an action brought by Epling's wife with the same attorneys involved on each side as in this case. There, we refused to apply res judicata, finding that the denial of a motion to amend for untimeliness did not constitute a "final judgment on the merits" for claim preclusion purposes. The court did, however, recognize that the denial of a motion to amend on the grounds of futility could have a preclusive effect. The court further determined that the rule against duplicative litigation allows the court to dismiss claims that should have been filed in one lawsuit. For the reasons stated in Hladky, the court again finds that the doctrine of res judicata cannot be applied here. In turning to consideration of the duplicative litigation rule, the court has determined that the issue of what claims are barred by this rule should await another day. We definitely believe that some of the claims asserted by plaintiff in this case should be dismissed. However, the court believes that additional information is necessary before we can make that decision. The circumstances here differ from those in Hladky. We believe that we can better consider the defendants' arguments concerning duplicative litigation in a motion for summary judgment.
The defendants have also argued that most of Epling's claims are untimely. They note that Epling failed to timely file suit after receiving his notices of right to sue. The court shall not address this argument at this time. The court does not believe that Epling has had an adequate opportunity to respond to it. The defendants may raise this argument again in a motion for summary judgment. This will allow the court to have an adequate background and will allow the plaintiff an opportunity to respond.
The court shall next consider the defendants' argument that the denial of the motion to amend to allow UCB, Inc. to be added as a party on futility grounds should bar the addition of UCB, Inc. as a party here based on res judicata. We cannot agree. As noted in Hladky, in order to apply res judicata, there must be a final judgment on the merits. The court does not find the presence of a final judgment on the merits where review of the magistrate's decision has been sought and no decision has been rendered. Absent an order of the district court, the magistrate's ruling is not a final decision for res judicata purposes.
LACK OF SUBJECT MATTER JURISDICTION CONCERNING PLAINTIFFS OTHER THAN EPLING
The defendants argue that the court should dismiss all plaintiffs other than Epling because they have not exhausted their administrative remedies as required by 29 U.S.C. § 626(d). These plaintiffs concede they have not timely filed administrative charges of discrimination. Rather, they contend that they can pursue their claims of age discrimination in this case based upon the "joint-filing" or "single-filing" rule.
A person seeking to file a civil action under the ADEA must first file an administrative charge alleging unlawful discrimination with the EEOC. 29 U.S.C. § 626(d). An exception, however, does exist to this general rule. The "single filing" rule allows the administrative charge of one plaintiff to satisfy the charge filing obligations of other plaintiffs. This rule, also referred to as "piggybacking," has been adopted by the Tenth Circuit and a number of other circuits. See Mistretta v. Sandia Corp., 639 F.2d 588, 593-94 (10th Cir. 1980). See also Grayson v. K Mart Corp., 79 F.3d 1086, 1101-02 (11th Cir. 1996); Howlett v. Holiday Inns, Inc., 49 F.3d 189, 194 (6th Cir. 1995); Anson v. University of Texas Health Science Center, 962 F.2d 539, 541-42 (5th Cir. 1992); Tolliver v. Xerox, 918 F.2d 1052, 1057-59 (2nd Cir. 1990); Anderson v. Montgomery Ward Co., Inc., 852 F.2d 1008, 1016 (7th Cir. 1988); Kloos v. Carter-Day Co., 799 F.2d 397, 400-01 (8th Cir. 1986).
In Mistretta, the Tenth Circuit determined that a plaintiff can join an ADEA action if the named plaintiff gave notice to the administrative agency of alleged class discrimination. See 639 F.2d at 595 ("The formal charges were alleged to have been filed for the individual complainants and all others similarly situated. The allegation was that Sandia's "arbitrary action constitutes age discrimination against workers over 40," a notice which notified the New Mexico Human Rights Commission so that it had an opportunity to investigate and to act within the statutory time limitations."). See also Thiessen v. General Electric Capital Corp., 996 F. Supp. 1071, 1076 (D.Kan. 1998) (filed charge need not contain express statement that charge is filed on behalf of others similarly situated but "Mistretta . . . requires allegations of class-wide discrimination in order to satisfy the notice requirements of § 626(d)").
Here, the court finds nothing in any of the charges made by Epling of class-wide age discrimination. The charges assert only an isolated act of discrimination by the defendants. Without allegations of class-wide age discrimination in Epling's charges, the court finds that the single-filing rule cannot be applied here. Accordingly, the court finds that plaintiffs Raymundo Valdivia, Geraldine D. Valdivia, Robert E. Johnson, and Dexter Claspill are not proper plaintiffs and shall dismiss their claims for lack of subject matter jurisdiction.
CONSOLIDATION
Plaintiff seeks to consolidate this case with Epling I. The court agrees that consolidation is appropriate. Accordingly, the court shall consolidate this case with Case No. 98-4226 for all further proceedings.
IT IS THEREFORE ORDERED that defendants' motions to dismiss (Doc. ## 6 and 14) be hereby granted in part and denied in part. Plaintiffs Raymundo Valdivia, Geraldine D. Valdivia, Robert E. Johnson, and Dexter Claspill and their claims are hereby dismissed for the reasons set forth in this memorandum. The remainder of the defendants' motions are denied.
IT IS FURTHER ORDERED that plaintiffs' motion to extend time to file a response to defendant's motion to dismiss (Doc. # 20) be hereby granted. The response filed by plaintiffs on January 29, 2001 is timely.
IT IS FURTHER ORDERED that plaintiff's motions to consolidate (Doc. ## 9 and 26) be hereby granted. This case is hereby consolidated with Case No. 98-4226 for all further proceedings.
IT IS SO ORDERED.