Communications Workers of America, Afl-Cio v. New Jersey Department of Personnel

Filed February 25, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3178
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO
and
LOCAL 1033 OF THE COMMUNICATIONS WORKERS OF
AMERICA; CHERYL TOBIN; BESSIE DELEON; REGINA
JACKSON; ARUN KAUSHAL,
Intervenor-Plaintiffs in District Court
v.
NEW JERSEY DEPARTMENT OF PERSONNEL;
MERIT SYSTEM BOARD
Local 1033 of the Communications Workers of America,
Cheryl Tobin, Bessie DeLeon, Regina Jackson and
Arun Kaushal,
Appellants
Appeal from the United States District Court
For the District of New Jersey
D.C. No.: 99-cv-03329
District Judge: Honorable Mary Little Cooper
Argued: January 18, 2002
Before: SCIRICA, ROSENN, Circuit Judges, and
KANE,* District Judge.
(Filed: February 25, 2002)
_________________________________________________________________
* Hon. Yvette Kane, United States District Court for the Middle District
of Pennsylvania, Sitting by Designation.
Walter R. Bliss, Jr. (Argued)
260 Wall Street
Princeton, NJ 08540
Counsel for Appellants
Todd A. Wigder (Argued)
Office of Attorney General of
New Jersey
Department of Law and
Public Safety
25 Market Street
Trenton, NJ 08625
Counsel for Appellees

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OPINION OF THE COURT
ROSENN, Circuit Judge:
The major issue in this appeal is the extent to which
piggybacking, a common practice on playgrounds, is
permitted in the judicial forum. In July 1999, the
Communications Workers of America, AFL-CIO ("the
National"), after obtaining a right to sue letter from the
Equal Employment Opportunity Commission (EEOC), filed
a racial discrimination action in the United States District
Court for the District of New Jersey. The National filed the
action under Title VII of the Civil Rights Act of 1964, 42
U.S.C. S 2000e-5, and the New Jersey Law Against
Discrimination (NJLAD). It alleged that the Performance
Assessment Review (PAR) program utilized by the New
Jersey Department of Personnel, Merit Systems Board (the
State or New Jersey), in making promotions, salary and
layoff decisions "has a disparate impact upon African-
American and Hispanic employees."
In July 2000, Local 1033 of the Communications
Workers of America, along with four of its members, Cheryl
Tobin, Bessie DeLeon, Regina Jackson and Arun Kaushal
(collectively, "the Local") successfully intervened. In May
2001, however, the District Court dismissed the Local’s
complaint as time barred. In August 2001, the District
Court granted New Jersey’s motion to enforce against the
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National a prior settlement agreement that had been
reached between the National and the State. The Local
timely appealed from both orders. We affirm.
I.
In December 1994, the National filed a charge with the
EEOC alleging that the PAR program utilized by the State
of New Jersey in making promotions, salary increment and
layoff decisions "discriminates against African-American
and Hispanic State employees based upon their race, color
and national origin because the system has a disparate
impact upon African-American and Hispanic employees."
Along with the EEOC charge, the National submitted a
transmittal letter, stating that the charge was being filed
"on behalf of individual members who had been
discriminated against by the State’s evaluation policies."
In April 1999, the EEOC issued a dismissal and right to
sue letter, finding that "the EEOC is unable to conclude
that the information obtained establishes violation of the
statutes." In accordance with Title VII of the Civil Rights Act
of 1964, 42 U.S.C. S 2000e-5, the National timely instituted
an action in the United States District Court against New
Jersey alleging that the PAR program impermissibly
discriminates on the basis of race. The National sought
declaratory and injunctive relief, along with "such other

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and further relief as may be proper." Apparently, the
National’s complaint did not name any individual
employees as plaintiffs.
In the course of intensive collective bargaining
negotiations in July 1999, the National reached an
agreement with New Jersey that resolved the Union’s
complaint by revamping the PAR system, the layoff process,
and recognizing the National’s right to challenge the new
system should that system perpetuate discrimination
against minority workers. In January 2000, the National
informed the Local that it had agreed to withdraw the Title
VII action because of the settlement it had entered into with
New Jersey and the terms of the settlement.
On January 31, 2000, New Jersey and the National,
pursuant to the settlement agreement, submitted a signed
3
joint stipulation of dismissal to the District Court.
Dissatisfied with the agreement reached by the National,
the Local1 in February 2000 moved to intervene and sought
to file their own complaint. The State and the National
opposed intervention on the ground that there was no
action pending in which to intervene. In July 2000, the
District Court allowed the Local to intervene as of right
under Federal Rule of Civil Procedure (Fed. R. Civ. P.) Rule
24(a) without prejudice to any defenses New Jersey might
have against the Local.2
The Local acknowledges that the complaint filed by it is
identical to the National’s complaint except that it explicitly
seeks compensatory damages and remediation for the
effects of past discrimination. It also acknowledges that the
PAR program is no longer used to make layoff
determinations because of new regulations that have since
become effective. However, it contends that the PAR
program is still used in making promotions and salary
increment decisions, albeit under the new PAR program
negotiated by the National. The Local’s main concern under
the agreement is that neither the new regulations nor the
new PAR program addresses remedying "the cumulative
effects of past PAR ratings on the current status of affected
employees" in the context of layoffs, promotions and salary
increments and does not compensate for those past
violations.
Subsequently, New Jersey filed a motion to dismiss the
Local’s complaint as time barred. In May 2001, the District
Court agreed, and dismissed the Local’s complaint. After
the Local intervention, the National filed a formal motion to
_________________________________________________________________
1. Local 1033 is a labor organization chartered by the National. Local
1033 represents approximately 6,000 New Jersey state governmental
employees in Mercer County. The four individual named plaintiffs are all
Local 1033 members.

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2. The Magistrate Judge had rejected the National and New Jersey’s
argument that because both parties had submitted a joint stipulation of
dismissal before the motion to intervene was filed, that the Local did not
have any action in which it could intervene. New Jersey has not cross-
appealed from either finding -- (1) allowing intervention as of right; and
(2) that the January 2000 joint stipulation of dismissal did not
accomplish an automatic dismissal under Fed. R. Civ. P. Rule 41.
4
amend its complaint to include the additional remedies
sought by the Local. New Jersey opposed the amendment
and filed a cross-motion to enforce the settlement
agreement with the National. In August 2001, the District
Court agreed with New Jersey, ordered the settlement
agreement enforced, and found that the National was
estopped from denying the existence of the agreement.
The District Court reasoned that the National had
repeatedly represented to the Court that a settlement
agreement had been reached as far back as July 1999. The
Court also stated that the National had opposed the Local’s
motion to intervene on the basis of that settlement. In
ordering the enforcement of the settlement, the District
Court denied as moot both the National’s motion to amend
its complaint and the Local’s motion to certify the May
2001 dismissal of its complaint as final. The Local timely
appealed from the May 2001 order dismissing its complaint
in intervention and from the August 2001 order enforcing
the settlement agreement between the National and New
Jersey.3
II.
Before bringing an employment discrimination action
under Title VII of the Civil Rights Act of 1964, an individual
must file a charge with the EEOC within 180 days of the
unlawful discriminatory act. 42 U.S.C. S 2000e-5(e). If the
EEOC dismisses the charge, the individual has ninety days
from the EEOC right to sue letter to file an action. Id.
S 2000e-5(f)(1). Both requirements -- exhaustion and filing
-- are non-jurisdictional prerequisites, akin to statutes of
limitations and are subject to waiver, estoppel and
equitable tolling principles. Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982).
Under the single filing rule doctrine, a plaintiff who has
not filed an EEOC charge within the requisite time period
_________________________________________________________________
3. The National also separately appealed from the order enforcing the
settlement agreement but withdrew from this appeal on the eve of oral
argument scheduled in this court. However, the National continues to
maintain its separate appeal from the August 2001 order.
5
can join a class action without satisfying either

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requirements -- exhaustion and filing -- if the original
EEOC charge filed by the plaintiff who subsequently filed a
class action had alleged class based discrimination in the
EEOC charge. Lusardi v. Lechner, 855 F.2d 1062, 1077-78
(3d Cir. 1988). The Local does not dispute that it never filed
its own charge with the EEOC. Rather, it contends that it
should be allowed to piggyback on the National’s EEOC
charge and complaint under the single filing rule doctrine.
In the context of an Age Discrimination in Employment Act,
29 U.S.C. S 621 et seq. (ADEA) claim, this Court reaffirmed
the rule that a non-filing plaintiff who intends to rely upon
an EEOC charge already filed by another party must allege
class based discrimination. Lockhart v. Westinghouse Credit
Corp., 879 F.2d 43, 52-53 (3d Cir. 1989), partially overruled
on other grounds, Starceski v. Westinghouse Elec. Corp., 54
F.3d 1089, 1099 n.10 (3d Cir. 1995)(recognizing Hazen
Paper Co. v. Biggins, 50 U.S. 604 (1993) as effectively
overruling our decision in Lockhart on "outrageous"
standard); see also Lusardi, 855 F.2d at 1078 (stating that
although original EEOC charge need not explicitly state
that charge is being brought on behalf of "others similarly
situated," it must allege class based discrimination).
Here, New Jersey assumes only for argument that the
National’s EEOC charge was broad enough to have alleged
class based discrimination. Even if so, New Jersey contends
that the Local cannot take advantage of the single filing
rule doctrine because, as the District Court acknowledged,
piggybacking has never been allowed when the subsequent
action is not a class action. The District Court stated that
even if the charge alleged class based discrimination, since
the subsequent action was not a class action, the Local
could not satisfy the Title VII time limitation for filing the
district court action within ninety days from the date of the
EEOC right to sue letter. It reasoned that although the
EEOC charge may have been broad enough to support the
filing of a class action, it is of little use to the Local because
the National never filed a class action.
The Local contends, and argued vigorously in this court,
that the District Court failed to address its contention that
the National’s action should be treated akin to a class
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action for not just the exhaustion requirement, but for the
filing requirement as well. The Local argues that the issue
is markedly different from those equitable tolling cases
where there is no timely complaint; here, there is a timely
complaint in what it claims is in the form of a
representative action. It submits that the National’s suit as
a representative action is akin to a class action because "it
sued to vindicate the civil rights of aggrieved employees
under federal and state anti-discrimination laws." To put it
differently, it submits that the National’s "decision to follow
up [the EEOC] charge with an associational standing suit,
rather than a class action, should not prevent it from
satisfying [the Local’s] EEOC charge-filing requirement."

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This Court’s decision in Whalen v. W.R. Grace & Co., 56
F.3d 504 (3d Cir. 1995) is dispositive. In Whalen, certain
plaintiffs who had not filed an EEOC charge and who
sought to piggyback in an action filed by plaintiffs who had
filed a broad EEOC charge sought to take advantage of the
single filing rule. We held that "our case law requires that,
outside the context of a representative or class action, . . .
an individual plaintiff must file a timely administrative
charge." Whalen, 56 F.3d at 505. Moreover, and most
relevant here, we stated that Lusardi did not hold that
"filing a charge with allegations broad enough to support a
subsequent class action lawsuit alleviates the burden of
filing the class action itself, with the attendant requirement
of class certification." Id. at 507. We concluded that if
"plaintiffs choose to bring suit individually, they must first
satisfy the prerequisite of filing a timely EEOC charge." Id.
The Local unpersuasively attempts to distinguish Whalen
by arguing that the subsequent action in that case was an
individual action, whereas here, the action is in the form of
a representative action. Notwithstanding the Local’s
repeated assertions that the National’s action in the District
Court was in the form of a representative or class action, its
arguments have no merit and must be rejected. An
acceptance of the Local’s argument would eviscerate the
distinction between an action filed by an entity based on
associational standing, as did the National in this case, and
class actions, and the attendant requirements of class
certifications and the associated procedural due notice and
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fairness safeguards as provided by Fed. R. Civ. P. Rule 23.
As the Magistrate Judge noted, the Local’s "attempt to
transform the underlying action into a class action[or
similar to a class action] when it was never filed, nor
intended to be one, is futile."4
III.
Following the Local’s intervention, the National responded
to the changing winds and attempted to take advantage of
them by amending its complaint to seek compensatory
damages and relief from the effects of past discrimination.
New Jersey opposed the amendment. New Jersey also filed
a cross-motion to enforce the settlement agreement it
entered into with the National. In August 2001, the District
Court ordered the enforcement of the settlement agreement
and held that the National was estopped from denying the
existence of the settlement. The District Court reasoned
that since July 1999, the National had repeatedly
represented to the court that a settlement agreement had
been reached. The court also noted that the National had
opposed the Local’s motion to intervene on the specific
ground that a settlement had been reached between the
National and New Jersey.
On appeal to this court, the Local raises two issues: (1)
The District Court erred in finding that there was a

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settlement agreement; and (2) The District Court erred in
not conducting a fairness hearing. As a threshold issue,
New Jersey contends that the Local, as a non-party to the
settlement agreement, does not have standing to appeal
from the order enforcing the agreement between the
National and New Jersey.
_________________________________________________________________
4. The Local acknowledges that the "Local President Rae Roeder became
aware of the EEOC’s right-to-sue letter sometime in the spring of 1999,
but the Local relied upon [the National] to file suit because the PAR
program affected members of all of the locals." Further, it admitted that
soon after the National filed its suit, "President Roeder obtained a copy
of the complaint but did not have it reviewed by an attorney because she
assumed it demanded all available remedies."
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A.
This Court in Binker v. Pennsylvania observed that
normally "those who were not parties to the proceeding
below may not appeal the district court’s judgment." 977
F.2d 738, 745 (3d Cir. 1992). But, the Binker court adopted
the standard enunciated in EEOC v. Pan Am. World
Airways, Inc., 897 F.2d 1499 (9th Cir. 1990) to allow non-
parties to appeal if the: (1) equities favor hearing the
appeal; (2) the non-parties participated in the settlement
agreement; and (3) the non-parties had a stake in its
proceedings discernable from the record. Id.
Here, New Jersey contends that the Local lacks standing
because it made no attempt to participate in the District
Court’s enforcement deliberations. The Local does not
dispute this assertion. Rather, it blatantly argues that it
"should not be faulted for non-participation on facts
indicating that such participation would have been futile."
They contend that it would have been futile because the
District Court had dismissed their complaint and as such,
it "reasonably assumed that there was no point in
participating further in the proceedings except to the extent
necessary to preserve their right to appeal." This argument
is specious. The issues involved in deciding whether to
dismiss the Local’s complaint in intervention involved
issues separate and distinct from its participation in an
extra-judicial settlement of which it had timely notice from
the National. Also, we can see no redeeming merit in the
Local’s other argument that the opposition to the
settlement made in its briefs on the motion to intervene and
in its opposition to New Jersey’s motion to dismiss the
Local’s complaint provides standing. Even if such
arguments had been raised, those proceedings had no
relation to the adequacy and existence of the settlement
agreement. The Local chose not to be included in the
settlement negotiations. Non-parties have no standing to
challenge the merits of a settlement agreement when they
have voluntarily refrained from participating in the
negotiations. Pan Am. World Airways, Inc., 897 F.3d at
1509. The Local unilaterally chose to play no part in the

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enforcement proceedings. We conclude, as we must, that
the Local has no standing to appeal.
9
B.
Even if we were to address the Local’s substantive
arguments, we see no merits to them. First, it contends
that the District Court erred in finding that there was an
agreement because it argues that there were factual
disputes over the existence of the agreement. However, it
seems plain that the District Court committed no error in
estopping the National from denying the existence of an
agreement. The National had repeatedly asserted to the
District Court that there was one. Based on the settlement,
the National even had opposed the Local’s motion to
intervene. So, under either the de novo standard of review
that the Local asserts applies, or the abuse of discretion
standard that New Jersey contends applies, there was no
error.
Lastly, the Local argues that the District Court erred in
not conducting a fairness hearing under Binker . But the
Binker court stated that there is no authority like Fed. R.
Civ. P. Rule 23 which mandates a district court to make a
fairness determination in an ADEA claim. Binker , 977 F.2d
at 747. Likewise, we can find no such authority in a Title
VII case. Relying on non-statutory prudential concerns, the
Court stated that "settlement agreements, including those
under the ADEA, are agreed to be subject to a universal
standard, that of fairness, adequacy and reasonableness."
Id. (internal quotations and citations omitted).
Again, the Local argues that since the National’s action
was a representative action akin to an action brought on
behalf of employees by the EEOC, the District Court was
obligated to make a fairness determination. For the same
reason that we rejected the Local’s arguments with respect
to piggybacking, its argument that it was denied a fairness
hearing, as required in class action cases, must be rejected.
Moreover, unlike Binker, the National’s action here did not
preclude the Local from filing their own action. So, it seems
that the prudential concerns that prompted the Binker
court to obligate the District Court to make a fairness
determination when an ADEA claim is brought by the
EEOC are inapplicable in this Title VII action. We perceive
no error of the District Court in failing to conduct a fairness
hearing.
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IV.
Accordingly, the Orders of the District Court dismissing
the Local’s complaint in intervention and enforcing the
settlement between the National and New Jersey are
affirmed. Costs taxed against the appellants.

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A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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