Nancy E. Torry v. Northrop Grumman Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4149
N ANCY E. T ORRY ,
Plaintiff-Appellant,
v.
N ORTHROP G RUMMAN C ORPORATION ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 7288—Charles R. Norgle, Judge.
____________
A RGUED J ANUARY 26, 2005—D ECIDED M ARCH 4, 2005
____________
Before POSNER , M ANION , and W OOD , Circuit Judges.
P OSNER , Circuit Judge. Nancy Torry filed this suit
against her employer alleging a violation only of the
Age Discrimination in Employment Act; although the
charge she had filed with the EEOC had also alleged
racial discrimination (she is black), the complaint in her
court suit did not mention race. During years of pretrial
proceedings, however, it quickly became apparent that
she was seeking a remedy for racial discrimination, in
violation of Title VII of the Civil Rights Act of 1964, as
well as for age discrimination. Her brief in opposition to

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2 No. 03-4149
Northrop Grumman’s motion for summary judgment
was explicit on this score, and Northrop Grumman
never doubted that Title VII was in the case. But Torry’s
lawyer never moved to amend the complaint to add a
Title VII charge, and Northrop argued that the failure
to amend was fatal and barred a claim of racial discrim-
ination. The judge disagreed and went on to consider the
merits of both the age discrimination and racial discrimi-
nation charges. He ruled in favor of Northrop Grumman
on both claims; but the defendant, while defending
the judge’s ruling on the merits, also insists that he
should never have reached the merits of the racial claim.
The courts typically resolve such disputes by invoking the
doctrine of “constructive amendment” (of a complaint). E.g.,
Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc.,
535 U.S. 826, 829 n. 1 (2002); Bennett v. Roberts, 295 F.3d 687,
699 (7th Cir. 2002); Eli Lilly & Co. v. Aradigm Corp., 376 F.3d
1352, 1357 n. 1 (Fed. Cir. 2004); Green Country Food Market,
Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1278 (10th Cir.
2004); City of Rome v. Verizon Communications, Inc., 362 F.3d
168, 181-82 (2d Cir. 2004). A typical formulation of the
doctrine is that “parties may constructively amend the
complaint by agreeing, even implicitly, to litigate fully an
issue not raised in the original pleadings.” Stemler v. City
of Florence, 126 F.3d 856, 872 (6th Cir. 1997). It is said to be “a
judicially created doctrine that courts have extrapolated
from the language of Federal Rule of Civil Procedure 15(b).”
City of Rome v. Verizon Communications, Inc., supra, 362 F.3d
at 181.
The word “constructive” is a common legal term of art,
but it should be avoided wherever possible. The operative
meaning of “constructive” in law is, as our cases have
stressed, “no,” Eckstein v. Balcor Film Investors, 58 F.3d 1162,

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No. 03-4149 3
1168 (7th Cir. 1995); Parker v. Sullivan, 898 F.2d 578, 579 (7th
Cir. 1990); Shacket v. Philko Aviation, Inc., 841 F.2d 166, 171
(7th Cir. 1988), and how helpful can it be to have a “no
amendment” doctrine? Cf. Astor v. Wells, 17 U.S. (4 Wheat.)
466, 477-79 (1819). When a court says that the defendant
received “constructive notice” of the plaintiff’s suit, it means
that he didn’t receive notice but we’ll pretend he did; and
when a court says that the defendant had “constructive
possession” of a gun, it means that he didn’t possess it but
we’ll pretend he did. How much more illuminating it would
be if the court said that notice isn’t always required to make
a person suable, or that possession of a gun isn’t always
required to make a person guilty of a gun offense. And
coming to the present case, how helpful can it be to say that
we’ll pretend a plaintiff has amended his complaint when
he hasn’t?
Of all “constructive” doctrines, that of “constructive
amendment” may be the most otiose, because the ground
that it traverses is fully and clearly occupied by Fed. R.
Civ. P. 15(b), which provides in language that could not
be clearer that “when issues not raised by the pleadings
are tried by express or implied consent of the parties,
they shall be treated in all respects as if they had been raised
in the pleadings.” In other words, provided the issue that
wasn’t in the complaint—in this case, the issue of racial
discrimination—was tried (or, in this case, pretried, Ryan v.
Illinois Dept. of Children & Family Servs., 185 F.3d 751, 763
(7th Cir. 1999); Kulkarni v. Alexander, 662 F.2d 758, 762 (D.C.
Cir. 1978); but cf. Independent Petroleum Ass’n v. Babbitt, 235
F.3d 588, 596 (D.C. Cir. 2001)), without objection by either
party, it doesn’t matter that it wasn’t mentioned in the
complaint.
The doctrine is a throwback to the days before the Federal
Rules of Civil Procedure, promulgated in 1938 (so it is a

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4 No. 03-4149
pretty long throwback), demoted the complaint in federal
civil litigation from its queenly role. The rules contemplate
that the complaint will be superseded by pretrial orders (see
Rule 16(e)), which among other things will define the issues
for adjudication. Rule 15(b) is another supersession rule.
When issues not mentioned in the complaint (whether
originally or by amendment) are nevertheless litigated with
the consent of the parties, the complaint is not “construc-
tively amended”; it is simply an irrelevance so far as those
issues are concerned.
Were there any doubt about the meaning of Rule 15(b),
it would be dispelled by the sentence that follows the
one we quoted from the rule: “Such amendment of the
pleadings as may be necessary to cause them to conform
to the evidence and to raise these issues may be made
upon motion of any party at any time, even after judg-
ment; but failure so to amend does not affect the result of the trial
of these issues” (emphasis added). The words that we have
italicized show that Northrop Grumman’s insistence that
the plaintiff had to amend the complaint to add a charge of
racial discrimination is frivolous. A party—in this case,
ironically, Northrop Grumman—might want to have the
complaint amended after judgment (and notice from the
language of the rule that “any party,” including therefore
the defendant, e.g., Rissman v. Rissman, 229 F.3d 586, 588
(7th Cir. 2000), H.B. Fuller Co. v. Kinetic Systems, Inc., 932
F.2d 681, 685-86 (7th Cir. 1991), can make the motion) in
order to simplify proof of res judicata or collateral estoppel;
in a subsequent case the defendant could point to the
complaint to indicate the scope of the judgment dismissing
it. First National Bank v. Continental Illinois National Bank &
Trust Co., 933 F.2d 466, 468 (7th Cir. 1991); Federal Savings &
Loan Ins. Corp. v. Hogan, 476 F.2d 1182, 1187 (7th Cir. 1973).
But that option has nothing to do with whether a complaint

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No. 03-4149 5
must be amended to conform to the issues litigated; there is
no must.
So the question is simply whether the issue of racial
discrimination was (pre)tried by implied consent of the
parties (for there was never express consent). The answer is
that it was. The defendant went through four years of
discovery and other pretrial maneuverings without object-
ing to the fact that its opponent was patently engaged in
endeavoring to prove racial as well as age discrimination.
No more was required to satisfy Rule 15(b). No occasion for
use of the term “constructive amendment” arises, either in
this case or, so far as we can see, in any other.
Despite wasting our time with a bad argument, Northrop
Grumman is entitled to prevail on this appeal. The plain-
tiff’s claim of discrimination has no merit. She was laid
off in a RIF, and she does not question the bona fides of
the RIF. Her argument is that she should have been allowed
to bump junior employees and thus retain her job. She relies
heavily on a handbook distributed to all of the defendant’s
employees that creates bumping rights without need to
apply for the job one wants to be bumped into. But the
handbook contains an express disclaimer of the applicability
of these bumping rights to hourly workers at the particular
plant at which she worked. She made no
application—which also scotches her claim that a younger
white worker was given a discriminatory preference over
her by being offered another job when he was bumped; he
had applied for the job.
A FFIRMED .

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6 No. 03-4149
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-4-05

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