Lawrence E. Lupien v. Harold W. Clarke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1828
___________
Peter J. Shelton, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri
The Boeing Company, *
*
Defendant-Appellee, *
*
GKN Aerospace North America, Inc.; *
Lodge 837, International Association *
of Machinists and Aerospace Workers *
AFL-CIO, *
*
Defendants. *
___________
Submitted: November 19, 2004
Filed: March 7, 2005
___________
Before RILEY, McMILLIAN, and GRUENDER, Circuit Judges.
___________
McMILLIAN, Circuit Judge.

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1The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
2At oral argument, we sua sponte questioned counsel as to whether Shelton had
adequately preserved the exhaustion-of-administrative-remedies issue in his Notice
of Appeal (NOA) where the NOA designated only “the final judgment” entered on
March 3, 2004, and not the district court’s order of November 17, 2003, as that which
was being appealed. We raised this jurisdictional issue in recognition of our “special
obligation” to consider our own jurisdiction. Thomas v. Basham, 931 F.2d 521, 522-
23 (8 th Cir. 1991) (indicating that jurisdictional issues should be raised sua sponte by
a federal court whenever it appears that jurisdiction may be lacking). However, upon
independent review, we are now satisfied that we have jurisdiction over this appeal.
Under Fed. R. App. P. 3(c)(1)(B), Shelton’s designation in the NOA of the final
judgment, as opposed to an interlocutory order, was sufficient to permit review of the
district court’s order of November 17, 2003. See In re National Warranty Ins. Risk
Retention Group, 384 F.3d 959, 964 (8 th Cir. 2004) (Where the appellant’s Notice of
Appeal identified only the order of the bankruptcy appellate panel (BAP) affirming
an order of the bankruptcy court, and both the BAP’s order and the bankruptcy
court’s order “represent[ed] the final orders of the respective courts,” holding that
jurisdiction to review a discovery order was proper because “[t]he obvious intent of
-2-
Peter J. Shelton appeals from an order entered in the United States District
Court 1 for the Eastern District of Missouri dismissing his claims against his former
employer, The Boeing Company (Boeing), under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621 et seq. See Shelton v. The Boeing Co.,
No. 4:02CV286 (E. D. Mo. Nov. 17, 2003) (order granting Boeing’s motion for
partial dismissal) (hereinafter “slip op.”). For reversal, Shelton argues that the district
court erred in dismissing, for failure to exhaust administrative remedies, his claims
of discriminatory refusal to rehire arising after June 25, 2001. For the reasons
discussed below, we affirm.
Jurisdiction in the district court was proper under 28 U.S.C. §§ 1331, 1343.
Jurisdiction in this court is proper under 28 U.S.C. § 1291. The notice of appeal was
timely filed pursuant to Fed. R. App. P. 4(a).2

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the Notice of Appeal was to appeal all orders, including discovery orders, that led up
to the courts’ final decisions” and no prejudice had been demonstrated.); Greer v. St.
Louis Reg’l Med. Ctr., 258 F.3d 843, 846 (8 th Cir. 2001) (“Ordinarily, a notice of
appeal that specifies the final judgment in a case should be understood to bring up for
review all of the previous rulings and orders that led up to and served as a predicate
for that final judgment.”); cf. Parkhill v. Minnesota Mut. Life Ins. Co., 286 F.3d 1051,
1058 (8 th Cir. 2002) (designation in NOA of order granting summary judgment
insufficient to confer appellate jurisdiction to review order issued a year earlier
denying class certification); Moore v. Robertson Fire Prot. Dist., 249 F.3d 786, 788
& nn.2-3 (8 th Cir. 2001) (where the NOA specified only one plaintiff as the party
appealing, and designated only the district court’s judgment against that specific
plaintiff, court of appeals lacked jurisdiction to review separate earlier order granting
summary judgment against two other plaintiffs) (citing Fed. R. App. P. 3(c)(1)(A)).
-3-
Shelton was a production material coordinator for Boeing. After Boeing sold
the division in which Shelton worked, he was notified that he would be laid off
effective January 12, 2001. Shelton was 50 years old at the time of the layoff. On
October 24, 2001, Shelton filed an intake questionnaire, or administrative charge,
with the Equal Employment Opportunity Commission (EEOC), alleging that Boeing
had discriminated against him on the basis of his age in terminating him and refusing
to rehire him for another position. On his administrative charge, in the section
entitled “Hiring/Promotion,” Shelton wrote: “Applied to Boeing 10 times,” and he set
forth the specific positions for which he applied. In response to the question: “When
did you apply for that position?,” Shelton indicated a time period of November 15,
2000, through June 25, 2001. To the question: “When did you learn that you were not
selected? (Date),” he wrote: “NO RESPONSE FROM BOEING.”
After Shelton received a Right to Sue letter, he brought the present action in
federal court. In his second amended complaint, Shelton alleged: “Since Plaintiff’s
termination, he has repeatedly applied for other positions with Defendant Boeing and
has been repeatedly denied employment, often losing the position to individuals who
are younger and less qualified.” Appellant’s Appendix at 16.

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-4-
Following some discovery, Boeing moved to dismiss Shelton’s claims, for
failure to exhaust administrative remedies, to the extent he was seeking redress for
refusals to rehire occurring after June 25, 2001.
The district court held that Shelton had failed to exhaust his administrative
remedies for his post-June 25, 2001, claims because they were not raised in the
administrative charge nor like or reasonably related to the claims that were raised.
Slip op. at 4-5. The district court therefore dismissed “all claims for failure-to-hire
arising from hiring decisions made . . . after June 25, 2001.” Id. at 5. Following the
entry of final judgment, Shelton appealed.
On appeal, Shelton argues that the district court erred in dismissing his refusal-
to-rehire claims under the ADEA arising out of post-June 25, 2001, employment
decisions. He notes that his administrative charge referenced ten incidents in which
Boeing refused to rehire him, occurring both before and after his termination. He
argues that ten subsequent incidents in which he unsuccessfully applied for job
vacancies at Boeing are “reasonably related” to the administrative charge. Shelton
points out that the scope of his complaint may be as broad as the EEOC investigation
that reasonably may be expected to result from his administrative charge. He argues
that the scope of his claim in the second amended complaint, incorporating multiple
post-June 25, 2001, refusals to rehire, is no broader than the EEOC investigation that
reasonably could be expected to grow out of his administrative charge. See Brief for
Appellant at 11-14 (citing, e.g., Butts v. City of New York Dep’t of Hous. Pres. &
Dev., 990 F.2d 1397 (2d Cir. 1993) (circumstances permitting conclusion that a
discrimination claim is “reasonably related” to the administrative charge include:
where the plaintiff alleges further incidents of discrimination carried out in the same
manner as alleged in the administrative charge and where the conduct complained of
falls within the scope of the EEOC investigation which can reasonably be expected
to grow out of the charge)).

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We review the district court’s dismissal of Shelton’s claims de novo.
Exhaustion of administrative remedies is a condition precedent to the filing of an
action under the ADEA in federal court. See Dorsey v. Pinnacle Automation Co., 278
F.3d 830, 835 (8 th Cir. 2002). The reason for requiring the pursuit of administrative
remedies first is to provide the EEOC with an initial opportunity to investigate
allegations of employment discrimination and to work with the parties toward
voluntary compliance and conciliation. See, e.g., Shannon v. Ford Motor Co., 72
F.3d 678, 684 (8 th Cir. 1996) (discussing exhaustion requirement under Title VII).
“The proper exhaustion of administrative remedies gives the plaintiff a green light to
bring [his or] her employment-discrimination claim, along with allegations that are
‘like or reasonably related’ to that claim, in federal court.” Id. Although we have
often stated that we will liberally construe an administrative charge for exhaustion of
remedies purposes, we also recognize that “there is a difference between liberally
reading a claim which lacks specificity, and inventing, ex nihilo, a claim which
simply was not made.” Id. (internal quotation marks and citation omitted). The
claims of employment discrimination in the complaint may be as broad as the scope
of the EEOC investigation which reasonably could be expected to result from the
administrative charge. See, e.g., Kells v. Sinclair Buick–GMC Truck, Inc., 210 F.3d
827, 836 (8 th Cir. 2000).
In the present case, it is undisputed that Shelton, in his EEOC intake
questionnaire, identified a specific time period in which he alleged the discriminatory
conduct occurred. The ending date, June 25, 2001, was four months before the date
on which Shelton submitted the intake questionnaire to the EEOC. Neither Boeing
nor the EEOC was on actual notice that Shelton was claiming additional acts of
alleged age discrimination occurring after June 25, 2001. Shelton nevertheless now
maintains that he should be permitted to sue Boeing under the ADEA on the basis of
ten incidents in which Boeing refused to rehire him after June 25, 2001.

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In Boge v. Ringland-Johnson-Crowley Co., 976 F.2d 448, 451 (8 th Cir. 1992),
the plaintiff had been hired and terminated by the same employer three times. We
affirmed the district court’s dismissal of the plaintiff’s claim arising out of the last
termination, where the administrative charge only alleged age discrimination in the
first termination. Relevant to the case at bar, we explained: “a layoff from
employment constitutes a completed act at the time it occurred . . . . [A]n employer’s
failure to recall or rehire does not constitute a continuing violation of the ADEA.
Each alleged discriminatory recall constitutes a separate and completed act by the
defendant.” Id. (citations omitted); accord National R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 114-15 (2002) (“Discrete acts such as termination, failure to promote,
denial of transfer, or refusal to hire are easy to identify. Each incident of
discrimination and each retaliatory adverse employment decision constitutes a
separate actionable unlawful employment practice.”) (internal quotation marks
omitted). Because a refusal to hire or rehire is a discrete employment action, Shelton
could have identified, either in his original administrative charge or by amendment,
each refusal to rehire that he contends was based upon unlawful age discrimination.
Moreover, because refusals to hire or rehire constitute discrete employment actions,
it is not reasonable to expect the EEOC to look for and investigate such adverse
employment actions if they are nowhere mentioned in the administrative charge. We
therefore hold that Shelton’s claims of discriminatory refusal to rehire arising after
June 25, 2001, are not like or reasonably related to the claims in his administrative
charge. The order of the district court is affirmed.
______________________________

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