Appeal from the United States District Court for the Western District of Wisconsin. No. 82-C-12 -- James E. Doyle, Judge.
Before PELL and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
PELL, Circuit Judge. Plaintiff filed suit charging defendant with violations of both the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e17. The district court dismissed plaintiff's ADEA claim for lack of subject matter jurisdiction and entered final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure on that claim. Plaintiff challenges the dismissal of her ADEA claim, while defendant challenges entry of final judgment.
Plaintiff began working as a cook at Beloit College at the age of twenty-five. She was thirty-nine when she was promoted to assistant manager in 1974, and forty-four when Consolidated Management began to manage the food operations. Less than a year later Rick Levi, a supervisor for Consolidated, terminated plaintiff and replaced her with a twenty-three year old male with little previous job experience.
Plaintiff believed that she was terminated because of her age and sex and filed a complaint with the Wisconsin Equal Rights Division. The complaint form contained a box with a question that read: "If any other governmental agency has jurisdiction over this charge, may we refer it to them?" Plaintiff replied by checking "yes." The Equal Rights Division sent copies of the charge to the Milwaukee District Office of the Equal Employment Opportunity Commission (EEOC) and to Consolidated. The copy sent to Consolidated indicated that the complaint was being referred to the EEOC.
The EEOC wrote to plaintiff to acknowledge receipt of her charge, but did nothing pending the outcome of the investigation by the Equal Rights Division. The Division issued an initial determination that Consolidated had discriminated against plaintiff on the basis of age and sex. The Division unsuccessfully attempted to conciliate the case and then certified it to a public hearing. Plaintiff, however, requested leave to withdraw her charge from the Division in order to seek federal remedies. The Division dismissed plaintiff's complaint, and the EEOC then issued a "Notice of Right to Sue" to plaintiff. Plaintiff then filed her ADEA and Title VII claims in federal court.
After several rounds of pretrial motions defendant moved to dismiss for failure to allege exhaustion of federal administrative remedies, but only with respect to the ADEA claim. Plaintiff moved for leave to file a second amended complaint, which was granted. The court, however, dismissed plaintiff's ADEA claim because that charge had been sent to the EEOC by the Equal Rights Division rather than by plaintiff. The court held that this procedure did not constitute "filing" with the EEOC as required by the ADEA and concluded that subject matter jurisdiction was lacking. Plaintiff moved for reconsideration of the dismissal, apprising the court for the first time that the EEOC and the Division had entered into a work-sharing agreement designating the division as the EEOC's agent for the purpose of receiving charges. The court declined to consider the agreement as plaintiff advanced no reason for not presenting it in a timely manner. The court found no just reason for delay and entered final judgment on the ADEA claim.
II Appellate Jurisdiction
As an initial matter we must consider defendant's claim that we lack jurisdiction to hear this appeal. Under 28 U.S.C. § 1291 the courts of appeals "shall have jurisdiction of appeals from all final decisions of the district courts of the United States." Rule 54(b) of the Federal Rules of Civil Procedure allows the district court to enter final judgment in a multiclaim case "as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Defendant argues that the district court improperly entered judgment pursuant to Rule 54(b) on plaintiff's ADEA claim and that we do not have before us a final decision until Section 1291.
There are three prerequisites to a Rule 54(b) certification. First, the action must involve separate claims. Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 47 L. Ed. 2d 435, 96 S. Ct. 1202 (1976). Second, there must be a final decision as to at least one of these claims. Third, the district court must expressly determine that there is "no just reason for delay." The existence of the first two criteria is open to our de novo review, but the determination of "just reason for delay" is addressed to the sound discretion of the district court. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 7-8, 64 L. Ed. 2d 1, 100 S. Ct. 1460 (1980); Sears Roebuck & Co. v. Mackey, 351 U.S. 427, 100 L. Ed. 1297, 76 S. Ct. 895 (1956); Local P-171, Amalgamated Meat Cutters and Butcher Workmen of North America v. Thompson Farms Co., 642 F.2d 1065, 1069 (7th Cir. 1981).
Defendant's principal contention is that plaintiff's ADEA claim is not separate from her Title VII claim. If this is the case, then the district court was not empowered to certify the ADEA claim under Rule 54(b). Unfortunately, there is no clear test to determine when claims are separate for purposes of the rule. Local P-171, 642 F.2d at 1070. Nevertheless, we have recognized certain rules of thumb to identify those types of claims that can never be considered separate, and have examined the remainder on a case-by-case basis. The first rule is that "claims cannot be separate unless separate recovery is possible on each. . . . Hence, mere variations of legal theory do not constitute separate claims." 642 F.2d at 1071. The second is that "claims so closely related that they would fall afoul of the rule against splitting claims if brought separately" may not be considered as separate. Id.
Contrary to defendant's claim, plaintiff's claims are not merely different legal theories as to why her termination was illegal, nor would separate recovery for the ADEA claim be precluded by a determination of her Title VII claim. Plaintiff's claims rest on separate legal rights and on separate operative facts. Plaintiff is entitled to be free from discrimination on account of sex and on account of age. To prove violation of Title VII plaintiff must prove that her sex was a motivating factor in Rick Levi's actions, her age is irrelevant, while the reverse is true of her ADEA claim. Furthermore, recovery under Title VII will not prevent plaintiff from seeking additional "liquidated" damages under the ADEA if she can prove that the violation was willful. 29 U.S.C. § 626(b); Pfeiffer v. Essex Wire Corp., 682 F.2d 684, 686 (7th Cir. 1982), cert. denied, 459 U.S. 1039, 103 S. Ct. 453, 74 L. Ed. 2d 606 (in the case of a willful violation of the ADEA an additional amount equal to actual damages is paid as liquidated damages).
As defendant raises no objection to the finality of the dismissal of the ADEA claim, we turn now to review the court's determination that there is "no just cause for delay" in the entry of judgment. Although the court did not elaborate upon the reason it found no just cause for delay, we find no abuse of discretion in certifying the dismissal under Rule 54(b). In Bank of Lincolnwood v. Federal Leasing, Inc., 622 F.2d 944 (7th Cir. 1980), we noted several factors a district court should consider in determining whether there is just cause for delay in entering judgment. In this case the relevant factors are: (1) the possibility that the need for review might be mooted by future developments in the district court; (2) the possibility that we may be obliged to consider the same issue a second time; and (3) miscellaneous factors such as delay and shortening the trial.
All of these factors militate in favor of certification in this case. As we have already noted, resolution of plaintiff's Title VII claim will not moot her ADEA claim. If we decline to consider plaintiff's claim now, when it has been briefed and argued, we will only be postponing our work. Furthermore, counsel have informed us that the district court has stayed trial of the Title VII claim pending resolution of this appeal and has allowed discovery to proceed on the ADEA claim, so plaintiff's ADEA claim can be presented along with her Title VII claim should we reverse the district court. Deciding plaintiff's claim now will best serve the efficient administration of justice. It is clear, then, that the district court did not abuse its discretion in certifying plaintiff's claim under Rule 54(b). We turn now to the merits of plaintiff's appeal.
III Subject Matter Jurisdiction
The district court found that plaintiff had not adequately pled compliance with the administrative procedures required by the ADEA and concluded that this shortcoming deprived the court of subject matter jurisdiction. To evaluate the district court's ruling it is first necessary to examine the procedural structure of the ADEA, which can usefully be compared to Title VII procedures. The ADEA and Title VII share two characteristics; both require that a would-be plaintiff pursue certain administrative remedies before filing a civil suit, and both require that the plaintiff defer to available state procedures in certain situations. If the plaintiff lives in a state that has "a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice," then the plaintiff must defer to the available state remedies by commencing proceedings under state law and allowing the state at least 60 days to resolve the dispute. 29 U.S.C. § 633; see also 42 U.S.C. § 2000e-5(c) (similar deferral provision for Title VII). In addition to instituting state proceedings, a charge of age discrimination must be filed with the EEOC and the Commissioners must be allowed 60 days in which to resolve the dispute through conciliation, conference, and persuasion. In nondeferral states this charge must be filed within 180 days of the unlawful practice, and in states in which deferral to state mechanisms is required the charge must be filed with the EEOC within 300 days of the unlawful practice or 30 days after notice of termination of the state proceedings, however, in deferral states that the charge be filed within the EEOC after, rather than during or before, state proceedings. Magalotti v. Ford Motor Co., 418 F. Supp. 430, 435 (E.D. Mich. 1976). Title VII differs in this respect as a charge may not be filed with the EEOC until after the state has been given an opportunity to resolve the dispute. 42 U.S.C. § 2000e-5(c).
Defendant challenged the sufficiency of plaintiff's pleadings regarding the filing of her ADEA charge with the EEOC. Defendant did not challenge this aspect of plaintiff's Title VII claim and we need not consider the adequacy of plaintiff's compliance with Title VII. Plaintiff pled the following facts regarding her compliance with the administrative procedures in her second amended complaint: (1) she filed a charge with the Wisconsin Equal Rights Division; (2) she indicated on this charge that she wished the Division to refer the charge to any other government agency having jurisdiction; (3) the Equal Rights Division sent a copy of plaintiff's charge to the EEOC;*fn1 (4) the Division sent a copy of the charge to defendant, which indicated that the charge was being referred to the EEOC; (5) and the EEOC wrote to both defendant and plaintiff to acknowledge receipt of the charge from the Division. In examining the complaint the court did not refer to plaintiff's allegation that the Division sent the charge to the EEOC at her request. The court termed the copy sent to the EEOC an "informational copy" and held that it was not adequate to meet the requirement that a charge be filed with the ...