The opinion of the court was delivered by: Marovitz, District Judge.
Motion To Strike And Dismiss
Plaintiff Georgene Paskuly brings this action against her
employer, defendant Marshall Field & Company, alleging that
defendant has discriminated against her because of her sex.
Plaintiff originally commenced this action in an individual
capacity on June 23, 1978. On October 25, 1979, plaintiff filed
her amended complaint seeking to transform this action into a
class action on behalf of all similarly situated female employees
of defendant. Plaintiff's amended complaint alleges, inter alia,
defendant's employment practices with respect to job assignments,
wages, training, promotion, transfer, discharge, and layoff
discriminate against women employees. Plaintiff asserts claims
under 42 U.S.C. § 2000e (Title VII) and 42 U.S.C. § 1981.
Plaintiff seeks declaratory, injunctive, and monetary relief. The
jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1343.
Pending before the Court is defendant's motion to strike
certain portions of plaintiff's amended complaint. More
specifically, defendant requests the Court to strike plaintiff's
class allegations, her section 1981 claim, her claim based upon
defendant's alleged failure to adopt an affirmative action
program with respect to women, and her claim as to defendant's
alleged wrongful layoff and discharge practices. For the reasons
set forth below, the Court denies defendant's motion insofar as
it seeks to have stricken plaintiff's class allegations and
grants defendant's motion as to plaintiff's section 1981 claim.
Because plaintiff has yet to have an opportunity to respond to
defendant's other arguments, the Court does not today reach those
The Court turns first to the class action issue. Defendant
argues that because plaintiff failed to make her class
allegations within 90 days of her receipt of her right to sue
letter from the Equal Employment Opportunity Commission (EEOC),
plaintiff's class allegations are untimely. Further, defendant
argues that the class allegations of plaintiff's amended
complaint should not relate back, pursuant to Rule 15(c) of the
Federal Rules of Civil Procedure, to the time plaintiff filed her
The relevant time limitations with respect to the assertion of
a claim under Title VII require that a claimant must file his
claim with the EEOC within 180 days of the alleged discrimination
and that the claimant's civil action must be brought within 90
days of his receipt from the EEOC of a right to sue letter.
42 U.S.C. § 20OOe-5(a), (e). These time limitations are
characterized as jurisdictional, McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668
(1973); however, they are intended to serve the same purpose as a
statute of limitation. See Bowe v. Colgate-Palmolive Co.,
416 F.2d 711, 720 (7th Cir. 1969). Specifically, Title VII's time
limitations are designed to grant employers notice of any alleged
violations before relevant evidence becomes stale. E.g., id.
Rule 15(c) contains a general requirement that amendments to
pleadings will relate back to the date of the original filing
only when the claim asserted in the amended pleading arises out
of the same set of facts as did the original claim. Further, Rule
15(c) establishes certain additional requirements pertaining to
notice which must be met before an amendment changing or adding
defendants will relate back. Fed.R.Civ.P. 15(c). Although Rule
15(c) does not explicitly address the relation back questions
which arise when an amendment substitutes or adds plaintiffs, it
is clear that the considerations established in the rule were
intended to apply to such amendments. Adv.Comm.Note, reprinted in
39 F.R.D. 69, 84. The central underlying question which a court
must decide when determining whether a claim asserted by a new
plaintiff shall relate back to the time of the original
plaintiff's claim is whether the defendant had such notice of the
added claim at the time the action was commenced that relation
back of the added claim will not cause defendant undue prejudice.
See Staren v. American National Bank & Trust Company of Chicago,
529 F.2d 1257, 1263 (7th Cir. 1976); Unilever (Raw Materials)
Ltd. v. M/T Stolt Boel, 77 F.R.D. 384, 390 (S.D.N.Y. 1977). In so
doing, the Court should remain mindful that the federal rules are
to be accorded a liberal interpretation. Staren v. American
National Bank & Trust Company of Chicago, 529 F.2d 1257, 1263
(7th Cir. 1976).
In the instant case, since the claims of the class which
plaintiff seeks to bring into this action are alleged to arise
from the same employment practices from which plaintiff's claim
allegedly arises, the Court finds that the amendment adding the
claims satisfies the common factual requirement of Rule 15(c).
See Romasanta v. United Airlines, Inc., 537 F.2d 915, 919 (7th
Cir. 1976), aff'd, United Airlines, Inc. v. McDonald,
432 U.S. 385, 97 S.Ct. 2464, 52 L.Ed.2d 423 (1977). As to Rule 15(c)'s
additional notice considerations, the Court prefatorially notes
that it is rare that an amendment will relate back which adds
plaintiffs who are total strangers to the lawsuit. E.g., Perry
v. Beneficial Finance Co., 81 F.R.D. 490, 494 (W.D.N.Y. 1979);
Herm v. Stafford, 455 F. Supp. 650 (W.D.Ky. 1978); 3 Moore's
Federal Practice, ¶ 15.15[4.-2]. However, the particular facts of
this case coupled with the nature of the Title VII remedy causes
the Court to carve out an exception to that general rule in the
The policies underlying Title VII strongly favor the bringing
of class actions. Bowe v. Colgate-Palmolive Co., 416 F.2d at 719;
Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir.
1968). Title VII is primarily designed to eradicate
discrimination of a class-wide character, and the Courts have
recognized that this goal may often be best achieved by way of a
class action. Bowe v. Colgate-Palmolive Co., 416 F.2d at 719. In
this connection, Title VII is also designed to facilitate equal
treatment among the class members. Romansanta v. United Airlines,
Inc., 537 F.2d at 918. Therefore, the courts have adopted a rule
which provides that once a single Title VII class member has
timely filed charges with the EEOC, he may subsequently bring a
class action without the other members of the class having
instituted a grievance with the EEOC. Bowe v. Colgate-Palmolive
Co., 416 F.2d at 720. Moreover, this Circuit has held that an
EEOC filing by a single class member grants the adverse party
sufficient notice of the possibility of a class action that the
statute of limitation for the entire class is thereby tolled.
Romansanta v. United Airlines, Inc., 537 F.2d at 918 n. 6. The
rationale for the rule is that when an individual lodges an EEOC
claim which asserts a grievance common to the class to which he
belongs, the adverse party can not fairly complain of surprise
when a class action is subsequently instituted. Bowe v.
Colgate-Palmolive Co., 416 F.2d at 720. The problem presented
herein is while defendant was fairly put on notice of the
possibility of a class-wide action when plaintiff filed her
charges with the EEOC, defendant was "put off" notice of the
possibility of such an action when plaintiff instituted this
action in an individual capacity.
As stated above, however, the facts of this case coupled with
the important policies of Title VII lead this Court to the
conclusion that plaintiff's class claims should relate back to
the time of the filing of her original complaint. See Mays v.
Motorola, Inc., 14 EPD ¶ 7676 (N.D.Ill. 1977). First, the Court
notes that defendant has not convincingly asserted any specific
prejudice which it will suffer if the Court permits plaintiff's
class claims to relate back. Further, although once plaintiff
initially commenced this action defendant was no longer on notice
that it would have to defend itself in a class action, the
allegations of the original complaint nevertheless apprised
defendant that it would have to defend its employment practices
from charges of broad-ranging class-based discrimination. The
primary purpose of statutes of limitation is to protect parties
from the prejudice caused by the loss of evidence due to the
passage of time. E.g., United States v. Kubrick, 444 U.S. 111,
117, 100 S.Ct. 352, 357, 62 L.Ed.2d 259, 48 U.S.L.W. 4030, 4032
(1979). Plaintiff's original complaint challenges defendant's
transfer, promotion, wage, job assignments, and training policies
on the ground that they discriminate against plaintiff and other
female employees of defendant. Hence, it can not reasonably be
said that defendant would be prejudiced by the relation back of
plaintiff's class allegations since precisely the same evidence
which defendant would be required to marshall in its defense of
plaintiff's class claims, defendant should have been preserving
in order to defend itself against plaintiff's individual claim.
Accordingly, the Court hereby denies defendant's motion insofar
as it seeks to have stricken plaintiff's class allegations. Of
course, however, the Court in no way intimates any opinion as to
the merits of plaintiff's request for class certification.
Briefing of that motion shall proceed pursuant to Local Rule 13
as of the date of this memorandum opinion.
With respect to plaintiff's claim under 42 U.S.C. § 1981,
defendant correctly points out, and plaintiff now concedes,
Plaintiff's Sur-Reply Brief p. 3 n. 1, that that section may not
be invoked to remedy sex discrimination. E.g., Manzanares v.
Safeway Stores, Inc., 593 F.2d 968, 971 (10th Cir. 1979).
Accordingly, plaintiff's section 1981 claim is hereby stricken
from her amended complaint. As to defendant's contentions with
respect to plaintiff's layoff, discharge, and affirmative ...