Price, et al v. Choctaw Glove, et al

1
United States Court of Appeals
Fifth Circuit
F I L E D
August 3, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 05-60094
______________________
RITA L. PRICE, ET AL
Plaintiffs
JOHNNIE J. CLEVELAND; LINDA HUNTER; KESHU WASH HILLIE; BETTY
BEAL; RENEE WILLIAMS, ET AL
Plaintiffs-Appellants
versus
CHOCTAW GLOVE & SAFETY COMPANY, INC. doing business as Choctaw
Glove & Safety Company; doing business as Allied Enterprises;
doing business as The Glove Factory
Defendant-Appellee
RITA L PRICE; ET AL
Plaintiffs
RENEE WILLIAMS JOHNNIE J CLEVELAND; LINDA HUNTER; KESHU WASH
HILLIE; BETTY BEAL; ; ETAL
Plaintiffs-Appellants
versus
CHOCTAW GLOVE AND SAFETY COMPANY INC., doing business as Choctaw
Glove & Safety Company; doing business as Allied Enterprises;
doing business as The Glove Factory
Defendants-Appellee

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___________________________________________________
Appeal from the United States District Court for
the Southern District of Mississippi
___________________________________________________
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This case concerns whether the appellants, who have filed a
Title VII sex discrimination case against the appellee without
first filing an EEOC charge, can invoke the “single filing rule” to
piggyback on the EEOC charge filed by the plaintiff in the lead
case with which appellants’ case has been consolidated. After
reviewing the record and the applicable law, we conclude that they
cannot. Therefore, we affirm the district court’s dismissal of the
appellants’ case for failure to satisfy the prerequisites for
initiating and maintaining their discrimination claims.
1.
This case arises out of sex discrimination alleged by female
employees of appellee Choctaw Glove and Safety Company, Inc.
(“Choctaw Glove”). Rita Price filed a Charge of Discrimination
with the Equal Employment Opportunity Commission (the “EEOC”) on
December 12, 2000, alleging that Choctaw Glove was discriminating
against women based on their sex by relegating them to lower paying
positions. Price filed her charge on behalf of all present and
future female employees of Choctaw Glove. The EEOC issued Price a

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1 The EEOC issued Price a Notice of Right to Sue letter on
November 25, 2002, but the letter was mailed to the wrong address.
This error was corrected by a second letter sent to Price on
February 2, 2003. Therefore, Price’s 90-day time limit to file her
claims under Title VII began on February 7, 2003.
2 On June 1, 2004, the district court found that class
certification was not warranted on the basis of Federal Rule of
Civil Procedure 23(b)(2) because monetary, and not injunctive
relief, was the predominate relief sought by Price. On August 25,
2004, the district court found that class certification was not
warranted on the basis of Rule 23(b)(3) because individual issues
would predominate over class-wide issues, and judicial efficiency
would not be served by litigating the case as a class action.
3
Notice of Right to sue on February 7, 2003 and, on May 1, 2003,
Price timely filed a class action complaint under Title VII in the
Southern District of Mississippi (the “Price Class” or the “Price
Class Action”).1 On June 1, 2004, and again on August 25, 2004,
the district court denied without prejudice Price’s motion for
class certification.2
On August 26, 2004, Johnnie Cleveland and thirty-five other
named plaintiffs ( the “Cleveland Plaintiffs”) filed a Title VII
lawsuit against Choctaw Glove largely based on the same facts
alleged in the Price class action. It is undisputed that, as
female employees of Choctaw Glove, the Cleveland Plaintiffs are
members of the putative Price Class. However, none of the
Cleveland Plaintiffs filed a Charge of Discrimination with the
EEOC. On September 17, 2004, the Cleveland and Price lawsuits were
consolidated, with the Price Class Action designated as the lead
case. Choctaw Glove filed a motion to dismiss the Cleveland

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3 Gowesky v. Singing River Hospital Systems, 321 F.3d 503, 507
(5th Cir. 2003).
4 Fed. R. Civ. P. 56©); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
5 Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir.
2000).
4
Plaintiffs’ case, which the district court granted on December 22,
2004, the same date on which the district court denied Price’s
final motion for class certification. The Cleveland Plaintiffs,
whose case was dismissed without prejudice, now appeal the
dismissal of their case.
2.
Though Choctaw Glove filed a motion to dismiss the Cleveland
Plaintiffs’ case, the district court treated the motion as one for
summary judgment because Choctaw Glove included evidence outside of
the pleadings. This Court reviews the district court’s grant of
summary judgment de novo.3 Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”4 If the moving
party meets the initial burden of showing there is no genuine issue
of material fact, the burden shifts to the nonmoving party to
produce evidence or designate specific facts showing the existence
of a genuine issue for trial.”5

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6 See Wheeler v. American Home Products, Corp., 582 F.2d 891,
897 (5th Cir. 1977).
7 42 U.S.C. § 2000e, et seq. (except that in “deferral
jurisdictions” an extended 300-day period applies; the 300-day
statute of limitations is not applicable to this case).
8 Id.
9 Crawford v. United States Steel Corp., et al., 660 F.2d 663,
666 (5th Cir.1981)(explaining that the purpose of the EEOC charge
requirement is to insure that the settlement of grievances be first
attempted through the office of the EEOC)(internal citations
omitted).
5
3.
This Circuit has long required plaintiffs to exhaust their
administrative remedies before bringing suit under Title VII.6 In
order to file suit under Title VII, a plaintiff first must file a
charge with the EEOC within 180 days of the alleged discriminatory
act.7 If and once the EEOC issues a right-to-sue letter to the
party who has filed the EEOC charge, that party has 90 days to file
a Title VII action.8 We have not, however, demanded such
exhaustion in all situations because we are aware that literal
compliance does not always effectuate the requirement’s purpose of
promoting informal settlements.9 Thus, we have recognized that
“[i]t would be wasteful, if not vain, for numerous employees, all
with the same grievance, to have to process many identical
complaints with the EEOC. If it is impossible to reach a
settlement with one discriminatee, what reason would there be to

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10 Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir.
1968); see also Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989).
11 Crawford, 660 F.2d at 665.
12 398 F.2d at 499.
13 582 F.2d at 897.
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assume the next one would be successful[?]”10 One such situation in
which we have relaxed the Title VII filing requirement arises when
a non-filing party wishes to piggyback his judicial action on the
claim of a party who followed the administrative procedures. This
Circuit has held that “in an action involving claims of several
persons arising out of similar discriminatory treatment, not all of
them need to have filed EEOC charges as long as one or more of the
plaintiffs had satisfied the requirement.”11 In Oatis v. Crown
Zellerbach Corp., we held that it is not necessary for each member
of a class to file an EEOC charge as a prerequisite to join a Title
VII suit as long as at least one named plaintiff had filed such
charges.12 Wheeler v. American Home Products Corp. extended Oatis
to non-class suits, holding that similarly situated intervenors who
had not filed EEOC charges could maintain a Title VII claim if the
original plaintiffs had filed timely charges.13 In both Oatis and
Wheeler, this Court held that certain eligible parties were excused
from filing an EEOC charge when they were permitted to join or
intervene in a lawsuit in which the original, similarly situated
plaintiff had fully exhausted the administrative requirements.

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14 262 F.3d 492, 493-94 (5th Cir. 2001), citing, Anson v. Univ.
Texas Health Science Ctr., 962 F.2d 539, 540 (5th Cir. 1992).
15 Id. at 494 (internal citations omitted).
7
This Circuit further explained the piggyback concept in
Bettcher v. The Brown Schools, Inc., in which we stated that the
“single filing rule” is a “carefully limited exception” that allows
parties to “opt-in to a suit filed by any similarly situated
plaintiff under certain conditions.”14 In Bettcher, this Circuit
would not allow a plaintiff to piggyback on the EEOC charge filed
by a fellow employee who had received a right-to-sue notice from
the EEOC but decided not to file suit. The Court explained that
there are three conditions that must be satisfied before a
plaintiff may invoke the single filing rule:
First, the plaintiff must be similarly situated to the
person who actually filed the EEOC charge. Second, the
charge must have provided some notice of the collective
or class-wide nature of the charge. Finally, a
prerequisite – implicit to be sure - for piggybacking
under the single filing rule is the requirement that the
individual who filed the EEOC charge must actually file
a suit that the piggybacking plaintiff may join.15
Clearly, Bettcher would not allow the Cleveland Plaintiffs to file
a separate suit based on Price’s EEOC charge if Price had not filed
suit herself.

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16 Id. at 495. Bettcher refers specifically to claims brought
under the Age Discrimination in Employment Act (ADEA) claims.
However, the single filing rule refers to the EEOC administrative
charge requirements which are treated the same under the ADEA and
Title VII. See Anson, 962 F.2d at 542-43.
8
It is also clear from Bettcher that this Circuit intended for
the single filing rule only to permit a non-charging party to join
or intervene in a lawsuit filed by a charging party who has
properly exhausted the administrative requirements. Unlike the
situation in Bettcher, Price has actually filed a suit in which the
Cleveland Plaintiffs could have attempted to join. However, the
Cleveland Plaintiffs decided not to “opt-in” to the Price lawsuit.
Instead, the Cleveland Plaintiffs filed their own separate suit and
attempted to piggyback on the Price EEOC charge. The Cleveland
Plaintiffs would now have us read Bettcher as allowing the
extension of the single filing rule to permit the Cleveland
Plaintiffs to file an independent suit on an otherwise
unexhausted Title VII claim. Bettcher does not contemplate
such use of the single filing rule. A non-charging party
cannot bring her own independent lawsuit based upon another
party’s charge. To allow otherwise would “threaten to consume
the statutory rule, which clearly requires all [Title VII]
plaintiffs to file a charge before filing a lawsuit.”16 To do
what the Cleveland Plaintiffs ask would effectively overrule

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Bettcher. We need not consider all the reasons we cannot allow
the Cleveland Plaintiffs to invoke the single filing rule in
this situation. The first impediment suffices - this panel
cannot overrule another panel’s precedent.
Our conclusion that individuals filing separate Title VII
suits that are later consolidated may not piggyback is
consistent with the conclusions of our sister circuits which
have addressed the issue. See, e.g., White v. BFI Waste
Services, LLC, 375 F.3d 288, 294 (4th Cir. 2004) (rejecting
application of single filing rule where plaintiff “did not
formally join the earlier EEOC charge or any civil complaint
brought thereafter with respect to that EEOC charge.”);
Tolliver v. Xerox Corp., 918 F.2d 1052, 1057 (2d Cir. 1990)
(“[U]nder Title VII, the single filing rule has been used only
to permit joining a preexisting suit in which at least one
plaintiff had filed a timely charge.”).
CONCLUSION
The Cleveland Plaintiffs did not properly exhaust their
administrative remedies before bringing suit under Title VII.
They did not file a timely charge with the EEOC or receive from
the EEOC the requisite statutory notice before filing their
suit. Their case does not fall within any of the exceptional

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situations in which this Circuit has allowed a claimant to
piggyback his judicial action on the claim of a party who
followed the administrative requisites of the Act. Moreover,
this case does not present persuasive reasons for recognizing
the piggyback exception here. Therefore, the Cleveland
Plaintiffs must fail in their attempt to piggyback on the Price
EEOC charge. For the reasons explained above, the district
court’s dismissal of the Cleveland Plaintiffs for failure to
comply with the Title VII prerequisites is AFFIRMED.

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