EIDENBOCK v. CHARLES SCHWAB CO., INC. (D.Ariz. 2006)

MARY MURGUIA, District Judge

Plaintiffs Rudy Eidenbock, Mark D. Freese, Marna Bennett, Joyce Walther, Brian Kearney, and Paul Warg, Jr., all former or current employees of Defendant, have sued Defendant asserting claims based on age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., (Count One), and retaliation under Title VII, 42 U.S.C. §§ 2000e et seq. (Count Two). The complaint was filed on August 3, 2005 and sets forth class action allegations. Defendant has filed a motion to dismiss all Plaintiffs' claims as to both counts as time-barred and thus for failure to state a claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6). (Doc. 6). Plaintiffs have filed a motion for extension of time to file a response which is granted. (Doc. 7). Plaintiffs have filed a response in opposition (Doc. 8) and Defendant has filed a reply. (Doc. 11). The Court has determined that oral argument would not materially assist in the determination of the pending motion. The Court enters this Order on Defendant's motion to dismiss the complaint.

I. Standard of Review.

When reviewing a motion to dismiss under Rule 12(b)(6), the Court accepts the allegations in the complaint as true and construes them in the light most favorable to the plaintiff.Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir. 1990). The Court must draw all reasonable inferences in favor of the non-moving party. Salim v. Lee, 202 F. Supp. 2d 1122, 1125 (C.D. Cal. 2002). Dismissal is proper "only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Gibson v. United States, 781 F.2d 1334, 1337 (9^th Cir. 1986). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9^th Cir. 1990). "The issue is not whether a plaintiff's success on the merits is likely but rather whether the claimant is entitled to proceed beyond the threshold in attempting to establish his claims." De La Cruz v. Tormey, 582 F.2d 45, 48 (9^th Cir. 1978). The Court must determine whether or not it appears to a certainty under existing law that no relief can be granted under any set of facts that might be proved in support of plaintiff's claims. Id.

II. Background.

Plaintiffs generally allege in the complaint that during their employment with Defendant, they were subjected to age discrimination and retaliatory adverse employment decisions "including but not limited to, being denied management or lateral positions when Defendant initiated layoffs, consolidations, or reorganizations, being terminated, and/or being threatened by Defendant that it would make false reports concerning plaintiffs . . ." (Complaint, paragraph 40). Plaintiffs have not referred to any right-to-sue letters in the Complaint and no right-to-sue letters were attached to the complaint. Defendant has submitted copies of each of Plaintiff's many charges and right-to-sue letters to its motion to dismiss.

Courts may consider exhibits to motions where the allegations in the complaint are based on such documents and the plaintiff has neglected to attach them to the complaint. Dixon v. Philadelphia Hous. Auth., 43 F. Supp.2d 543, 545 (E.D.Pa. 1999). This rule prevents a plaintiff with a legally deficient claim from surviving a motion to dismiss simply by failing to attach a dispositive document on which it relied. Id. The district court's consideration of a right-to-sue letter does not convert the defendant's motion to dismiss into one of summary judgment.Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998).

Plaintiffs Eidenbock and Freese previously filed suit against Defendant on July 22, 2004 in the case of Eidenbock et al. v. Charles Schwab Co., Inc., Case No. CV-04-1500-DGC-PHX. The case was ordered dismissed upon the Court's Order finding that the claims had been filed prematurely. After dismissal of this case, five of the six Plaintiffs filed "amended" charges with the EEOC. Defendant contends that each of Plaintiffs' amended charges rehash the allegations in their previous charges or are otherwise untimely and must be dismissed.

III. Plaintiffs' EEOC Charges.

(A) Plaintiff Eidenbock's three EEOC charges and his right-to-sue letters.

On January 29, 2004, Plaintiff Eidenbock filed a charge of discrimination alleging that Defendant had retaliated against him for cooperating in an age discrimination charge filed by a co-worker on July 23, 2002. Eidenbock alleged in the charge that he had been rejected from "approximately 21 positions," he had "received an unsupported below average evaluation," and on January 26, 2004 he had been "discharged for mishandling a client account." Eidenbock alleged January 26, 2004 as the latest date of discrimination. He checked the box for "retaliation" only, alleging a violation of the ADEA and Title VII. The charge did not include any age or class action allegations. On April 29, 2004, the EEOC issued a right-to-sue letter, finding no reasonable cause to support Eidenbock's allegations.

On September 16, 2004, Eidenbock filed an "amended" charge with the EEOC. This "amended" charge was identical in all respects to his original charge, except as follows: (i) he checked the box for age discrimination and added "I believe that I have been discriminated against due to my age, 43"; and (ii) he checked the box for sex discrimination and added "I believe that I have been discriminated against . . . due to my sex, male . . ." Plaintiff Eidenbock indicated that the latest alleged discrimination date was January 26, 2004, the date he left his employment with Defendant and the date indicated in his original charge. Plaintiff Eidenbock's "amended" charge did not include any class allegations. The EEOC did not issue a right-to-sue letter on the "amended" charge as Mr. Eidenbock's file was closed on April 29, 2004, the date the EEOC issued the right-to-sue letter on Eidenbock's original charge.

On February 13, 2005, Plaintiff Eidenbock filed a third charge with the EEOC which he styled as his "second amended charge." Mr. Eidenbock's third charge included the same allegations as his two prior charges but he checked only the boxes for age discrimination and retaliation, dropping the sex discrimination charge that had been indicated in his "amended charge." In this "second amended charge", Plaintiff Eidenbock alleged that "[b]eginning on or about March 2001 and continuing up to the present," Defendant began laying off older employees in favor of younger, less-qualified applicants to save money and that complaints to management had resulted in "retaliation, harassment, a hostile work environment, and invasion of privacy," including "job reassignments, inappropriate discipline and, ultimately, termination." Plaintiff Eidenbock stated that January 26, 2004 was the date of the latest discrimination. The EEOC issued a right-to-sue letter on August 16, 2005.

(B) Plaintiff Freese's two EEOC charges and right-to-sue letters.

On July 1, 2004, Mr. Freese filed a charge alleging that he had been "wrongfully terminated due to [his] age" and that March 25, 2004 was the date of the latest discrimination. The date of March 25, 2004 was the date Plaintiff Freese left Defendant's employment. Plaintiff Freese checked the box for age discrimination only, alleging a violation of the ADEA. This first charge did not include any class allegations. On July 16, 2004, the EEOC closed the case at the request of Plaintiff Freese and issued him a right-to-sue letter at his request. Plaintiff relied on this charge when he filed the original complaint and action in the previous case before Judge Campbell. As mentioned above, this previous lawsuit was dismissed as premature.

On March 5, 2005, Plaintiff Freese filed an "amended" charge with the EEOC. Mr. Freese's "amended" charge included the verbatim statement of class allegations from Plaintiff Eidenbock's third EEOC charge. Plaintiff Freese's "amended" charge included the same allegations as his first charge, but Mr. Freese checked the box for age discrimination and the box for retaliation. He indicated that March 25, 2004 was the date of the latest discrimination. A right-to-sue letter issued on August 16, 2005.

(C) Plaintiff Bennett's two EEOC charges and right-to-sue letters.

On July 26, 2004, Plaintiff Bennett filed a charge alleging age discrimination. In this charge, Plaintiff Bennett alleged that she had been denied at least two lateral transfers regarding positions that had been filled by younger individuals, and that Defendant had treated her disparately by placing her on administrative leave for giving advice to a customer. Plaintiff Bennett indicated that July 26, 2004, was the date of the latest discrimination. She checked the box for age discrimination only, alleging a violation of the ADEA. This first charge did not include class allegations. On August 17, 2004, the EEOC closed the case and issued Plaintiff Bennett a right-to-sue letter at her request.

Approximately one month after the previous lawsuit was dismissed, Plaintiff Bennett on March 16, 2005 filed an "amended" charge with the EEOC. Plaintiff Bennett's "amended" charge included the verbatim statement of class allegations as Plaintiff Eidenbock's third EEOC charge. This "amended" charge included similar allegations as in her first charge, except that Plaintiff Bennett checked the box for age discrimination and the box for retaliation. Plaintiff Bennett again indicated that July 26, 2004 was the date of latest discrimination. On August 16, 2005, the EEOC issued a right-to-sue letter at Bennett's request as to this "amended" charge.

(D) Plaintiff Walther's four EEOC charges and right-to-sue letters.

On July 23, 2002, Plaintiff Walther filed an EEOC charge against Defendant alleging age and sex discrimination based on the denial of positions in December 2001, February 2002 and June 2002. As to each position, Plaintiff Walther alleged that Defendant had filled the position with less qualified applicants who were younger and/or male. She alleged June 12, 2002 as the date of the latest discrimination. Plaintiff Walther checked the box for sex and age discrimination, alleging violations of the ADEA and Title VII. She did not include any class allegations. On July 30, 2003, the EEOC found no reasonable cause to support Plaintiff Walther's charge and issued a right-to-sue letter.

On October 21, 2003, Plaintiff Walther filed a second EEOC charge. She alleged that in December 2002, Defendant denied her a position that was filled by "two less qualified co-workers", a man and a woman. Walther alleged February 13, 2003 as the latest date of discrimination and checked the boxes for sex discrimination, age discrimination and retaliation based on violations of Title VII and the ADEA. This charge did not contain class allegations. On January 28, 2004, the EEOC found no reasonable cause to support the allegations and issued a right-to-sue letter.

On June 30, 2004, Plaintiff Walther filed her third EEOC charge. She alleged that on June 10, 2004, she had been "forced to retire . . . due to violations" of Defendant's "Attendance policies" and that she had been denied a lateral transfer and a promotion in October 2003 and April 2004. Plaintiff Walther stated that June 10, 2004 was the date of the latest discrimination. Walther checked the boxes for age discrimination and retaliation, alleging ADEA violations. This charge did not include any class allegations. On July 30, 2004, the EEOC closed the case and issued Ms. Walther a right-to-sue letter at her request.

On February 16, 2005, some two weeks after the dismissal of the previous federal suit, Plaintiff Walther filed an "amended" or fourth charge with the EEOC. She checked the box for retaliation and the box for age discrimination. Plaintiff Walther's fourth charge included a verbatim statement of class allegations as contained in Plaintiff Eidenbock's third EEOC charge. Plaintiff Walther's fourth charge encompassed similar allegations included in her prior charge and again identified June 10, 2004 as the date of latest discrimination. On August 16, 2005, the EEOC issued a right-to-sue letter on Walther's request.

(E) Plaintiff Kearney's two EEOC charges and his right-to-sue letters.

On July 2, 2004, Plaintiff Kearney filed a charge alleging age discrimination. Mr. Kearney alleged that, beginning in 1995, he was subjected to "derogatory age-based comments from coworkers and managers." He further alleged that since 2002, he was not selected for several positions because of his age. Plaintiff Kearney identified July 2, 2004 as the date of latest discrimination. Mr. Kearney checked the box for age discrimination only, in violation of the ADEA. This charge did not include class allegations. On July 30, 2004, the EEOC closed the case and issued Plaintiff Kearney a right-to-sue letter at his request.

On March 1, 2005, approximately one month after the previous federal lawsuit was dismissed, Plaintiff Kearney filed an "amended" charge with the EEOC. Plaintiff Kearney's second charge included a verbatim statement of class allegations from Plaintiff Eidenbock's third EEOC charge. Plaintiff Kearney's second charge encompassed the same allegations included in his prior charge. However, he also checked the box for age discrimination and the box for retaliation. Plaintiff Kearney identified the latest date of discrimination as March 25, 2004, not July 2, 2004 as identified in his first charge. On August 16, 2005, the EEOC issued a right-to-sue letter at Mr. Kearney's request.

(F) Plaintiff Warg's one EEOC charge and right-to-sue letter.

On June 30, 2004, Plaintiff Warg filed a charge alleging age discrimination as based on being "forced into early retirement for alleged performance issues." Plaintiff Warg identified March 30, 2004 as the date of latest discrimination. Mr. Warg checked the box for age discrimination only, alleging a violation of the ADEA. This charge did not include any class allegations. On July 30, 2004, the EEOC closed the case and issued a right-to-sue letter at Mr. Warg's request.

IV. Discussion.

Defendant contends that the claims of Plaintiffs Eidenbock, Freese and Kearney are time-barred under the ADEA because their EEOC charges were not filed within 300 days of the date of the latest act of discrimination. Defendant contends that Plaintiff Warg's suit is barred because he failed to file suit within 90 days after receiving his right-to-sue letter from the EEOC. Defendant contends that Plaintiffs cannot restart the 90-day statute of limitation period triggered by receipt of their original right-to-sue letters by filing "amended" charges that encompass the same alleged conduct set forth in the original charge.

(A) Plaintiffs Eidenbock, Freese and Kearney.

The ADEA requires that an aggrieved person file a charge with the EEOC or state agency before bringing age discrimination or retaliation claims against his or her employer. See 29 U.S.C. § 626(d). The same holds true for Plaintiff's claims based on Title VII. See 42 U.S.C. § 2000e-5(e)(1). Plaintiffs here have asserted claims based on age discrimination and retaliation under the ADEA and thus the ADEA is the proper statute for consideration. The ADEA mandates that any charge must be filed with the EEOC within 180 days of the alleged discriminatory act. 29 U.S.C. § 626(d)(1). Arizona is a "deferral state" because it has its own state anti-discrimination law and enforcement agency, which extends the time to file a charge under the ADEA to 300 days. See 29 U.S.C. § 626(d)(2). See also, Tylor v. Reynolds Metals Co., 600 F.2d 232, 233-34 (9^th Cir. 1979). "Failure to file a charge within these required time limits generally prevents a person from litigating the claim." Sanchez v. Pacific Powder Co., 147 F.3d 1097, 1099 (9^th Cir. 1998) (ADEA claim); Bodett v. Coxcom, Inc., 366 F.3d 736, 740 n. 2 (9^th Cir. 2004) (retaliation claim).

Pursuant to EEOC regulation, 29 C.F.R. § 1601.12(b):

A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received.

As Defendant points out in its reply, EEOC regulations provide that where a "charge filed . . . under the ADEA is dismissed or the Commission's proceedings are otherwise terminated, the Commission will issue a Notice of Dismissal or Termination. . . ." 29 C.F.R. § 1626.17(a)(1). The regulations further provide that "[i]ssuance of a notice of right to sue shall terminate further proceedings . . ." 29 C.F.R. § 1601.28(a)(3). "[W]here the EEOC has issued a right to sue letter, its review of the charge is terminated." Riley v. American Fam. Mut. Ins., Co., 881 F.2d 368, 371 (7^th Cir. 1989). In addition, where a right-to-sue letter has issued, and the EEOC has closed its file, there is no longer a charge pending before the EEOC which is capable of being amended. Balazs v. Liebenthal, 32 F.3d 151, 157 (4^th Cir. 1994).

Plaintiff Eidenbock filed his third and final EEOC charge on February 13, 2005 and stated in this charge that the date of the latest discrimination was January 26, 2004. Defendant contends that this third EEOC charge was filed 384 days after the date of the last act of discrimination and therefore the charge is time-barred.

Plaintiff has responded that the text of his first charge filed on January 29, 2004 identifies both retaliation and age discrimination but that the EEOC inadvertently failed to check the box for "age" when completing the form. According to Plaintiff, this is confirmed in the Notice of Charge of Discrimination which notified the employer that charges of employment discrimination had been filed against it based on both Title VII and the Age Discrimination in Employment Act. (Plaintiff's Exhibit 2). Plaintiff Eidenbock states in his papers that he consulted with the EEOC regarding the apparent omission in his first charge and he thereafter filed an "amended" charge on September 16, 2004 in which he checked the box for "age". Plaintiff Eidenbock further states that in this "amended" charge the box for sex discrimination was inadvertently checked by the EEOC. Plaintiff Eidenbock argues that the second charge was filed to correct the omission in the first charge. He further contends that he filed his third charge, referred to as the second amended charge, on February 13, 2005, to clarify the original and amended charges by stating with specificity the bases for his age discrimination and retaliation claims. In sum, Plaintiff contends that the two amended charges that followed his original charge relate back to his timely-filed original charge.

However, as to Plaintiff Eidenbock's first charge filed on January 29, 2004, the EEOC issued a right-to-sue letter on April 29, 2004. As for Plaintiff Eidenbock's "amended" or second charge filed on September 16, 2004, the EEOC issued a right-to-sue letter on April 29, 2004. Plaintiff Eidenbock's first and second charges were closed when he filed his third charge on February 13, 2005. The date of the last act of discrimination is identified in this third charge as January 26, 2004, a date more than 300 days after the filing date of the third charge. Plaintiff Eidenbock's claim is therefore time-barred.

Defendant contends that Plaintiff Freese filed his second EEOC charge on March 5, 2005, and gave March 25, 2004 as the date of the last act of discrimination. Based on these dates, Defendant contends that Plaintiff Freese filed his second charge 346 days after the date of the last discriminatory act and his claims are time-barred. Plaintiff Freese has responded that his first charge filed on July 1, 2004 contained bare allegations and he filed his "amended" or second charge on March 5, 2005 which significantly clarified the bare allegations of his original charge. Plaintiff Freese additionally points out that his "amended" or second charge alleged a new claim of retaliation arising from the age discrimination claim. Plaintiff Freese contends that the "amended" or second charge he filed relates back to his original timely-filed charge.

As with Plaintiff Eidenbock, the EEOC issued a right-to-sue letter as to Plaintiff Freese's original charge on July 16, 2004. This first charge therefore was closed at the time Plaintiff Freese filed his "amended" or second charge on March 5, 2005. Plaintiff Freese indicated in this "amended" charge that the last act of discrimination occurred on March 25, 2004. As Plaintiff Freese filed the "amended" or second charge on March 5, 2005, a date 346 days after the date of the last discriminatory act, Plaintiff Freese's claims are time-barred.

Defendant contends that Plaintiff Kearney filed his second charge on March 1, 2005 alleging therein that the last act of discrimination occurred on March 25, 2004. Plaintiff Kearney's second charge was filed 342 days after the date of the last act of discrimination and thus is time-barred. As with Plaintiff Freese, Plaintiff Kearney contends that his original charge filed on July 2, 2004 contained bare allegations and he filed his "amended" or second charge on March 1, 2005 which significantly clarified the bare allegations of the original charge and added a retaliation claim. Plaintiff Kearney argues that the "amended" charge relates back to the original timely filed charge.

As with Plaintiffs Eidenbock and Freese, the EEOC issued a right-to-sue letter as to Plaintiff Kearney's first charge on July 30, 2004. This original charge was closed as of the March 1, 2005 filing date of the "amended" or second charge. As Plaintiff Kearney's "amended" or second charge was filed on March 1, 2005, a period of 342 days from the date of the last act of discrimination, his claims are time-barred.

(B) Plaintiff Warg.

The ADEA provides that a civil action may be brought "within 90 days after the date of the receipt" of a right-to-sue letter from the EEOC. 29 U.S.C. § 626(e). See (Doc. 6, Exhibit 28). This 90-day period is a statute of limitations that generally bars untimely claims. See Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1174 (9^th Cir. 1986); Mitchell v. Los Angeles Comm. Coll. Dist., 861 F.2d 198, 202 (9^th Cir. 1988).

Plaintiff Warg filed one EEOC claim. The EEOC mailed Plaintiff Warg a right-to-sue letter on July 30, 2004. Plaintiff is presumed to have received the right-to-sue letter within three days after issuance. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1 (1984) (per curiam) (the presumed date of receipt of right-to-sue letter was 3 days after issuance under Fed.R.Civ.P. 6(e)); Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 383-84 (9^th Cir. 1997) (similar holding). Plaintiff Warg therefore had until November 1, 2004 to file suit against Defendant. The complaint in this case was filed on August 5, 2005, more than nine months after Plaintiff Warg received the right-to-sue letter.

Plaintiffs contends that Plaintiff Warg filed an "amended" or second charge on or about March 10, 2005 and that such "executed" charge will be forthcoming. Plaintiffs have attached as Exhibit 26 to their response an unsigned and undated "amended" charge bearing the name of Paul A. Warg, Jr. (Doc. 8, Exhibit 26). The Court has declined to consider this unsigned, undated document. Plaintiff Warg's claim is time-barred.

(C) Plaintiffs Bennett and Walther.

Plaintiff Bennett filed an "amended" or second EEOC charge on March 16, 2005. Plaintiff Bennett stated in this "amended" charge that the date of latest discrimination was July 26, 2004, a date within 300 days of the filing date of the charge. On August 16, 2005, the EEOC issued a right-to-sue letter at Bennett's request as to this "amended" charge.

Plaintiff Walther filed an "amended" charge, which was her fourth charge, on February 16, 2005. Plaintiff Walther stated in this "amended" charge that the date of latest discrimination was June 10, 2004, a date within 300 days of the filing date of this "amended" charge. On August 16, 2005, the EEOC issued a right-to-sue letter as to Walther's "amended" charge.

As can be seen, these Plaintiffs filed the complaint in the instant case within 90 days of receiving their right-to-sue letters on these "amended" charges. Nonetheless, Defendant contends that these "amended" charges did not restart or revive the 90-day period for filing suit because the "amended" charges covered the same subject matter as the earlier charges.

It does not appear that Defendant has contested that Plaintiffs Bennett and Walther complied with the 60-day waiting period imposed by the ADEA before filing suit in this case. See Dempsey v. Pacific Bell Co., 789 F.2d 1451, 1452 (9^th Cir. 1986) (an ADEA civil action may not be commenced until at least 60 days after filing the appropriate charge, citing 29 U.S.C. §§ 626(d), 633 (b)).

Generally, "[a] potential plaintiff may not evade the 90 day time limitation by filing successive EEOC charges." Lo v. Pan Am, 787 F.2d 827, 828 (2d Cir. 1986). The time limitations otherwise "would be meaningless because potential plaintiffs could evade those requirements simply by seeking additional right to sue letters whenever they please." Id., at 828. Subsequent charges that re-allege conduct encompassed by a prior charge have no legal effect. See Vitello v. Liturgy Training Pub., 932 F. Supp. 1093, 1098 (N.D. Ill. 1996). Where the allegations are different, even though related, courts have held that the plaintiff is entitled to rely on the later right-to-sue letter.See Goodluck v. Kelly Tractor Co., 733 F. Supp. 1479, 1481 (S.D.Fla. 1990). Generally, "`[t]he jurisdictional scope of a Title VII claimant's court action depends on the scope of both the EEOC charge and the EEOC investigation.'" Equal Employment Opportunity Commission v. National Education Association, Alaska, 422 F.3d 840, 847 (9^th Cir. 2005(quoting Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9^th Cir. 1990)).

Plaintiff Bennett filed her original charge on July 26, 2004 complaining that from 2002, she had applied for several positions for which she was qualified but had not been selected on account of her age, over forty. She checked the box for age discrimination only and identified July 26, 2004 as the date the discrimination took place. Plaintiff Bennett was issued a right-to-sue letter on this charge on August 17, 2004. In her "amended" charge filed on March 16, 2005, Plaintiff Bennett complained about being denied lateral positions and management positions, again identifying July 26, 2004 as the date the discrimination occurred. She checked the boxes for age discrimination and retaliation. Plaintiff Bennett further stated that when she had complained to management, she was subject to retaliation, harassment, a hostile work environment, invasion of privacy, job reassignments, inappropriate discipline and termination. Plaintiff Bennett included in this "amended" charge allegations on behalf of other employees whom she claimed had similarly been denied management positions and lateral transfers. She claimed that she had been discriminated against on the basis of age and that she had been retaliated against. In the right-to-sue letter issued as to this charge, it was stated that the letter was being issued "only to include the additional bases of Retaliation and issues of denial of transfer, harassment, terms and conditions, and termination not addressed in the original Notice of Right to Sue issued on July 30, 2004."

Plaintiff Bennett alleged facts, that is, denial of positions based on age discrimination, in her original charge. She also checked the box indicating age discrimination as to this first charge. In her "amended" or second charge, Plaintiff Bennett alleged circumstances based on denial of promotions and transfers based on age discrimination. These circumstances were encompassed within her first charge. Plaintiff Bennett did not file suit within 90 days of receiving the right-to-sue letter issued as to her first or original charge. However, Plaintiff Bennett further alleged in her "amended" or second charge circumstances relating to retaliation which were not encompassed within her first or original charge. Plaintiff Bennett may proceed in this lawsuit on the retaliation claim since the complaint was filed within 90 days of the issuance of the right-to-sue letter regarding the "amended" or second charge.

Plaintiff Walther in her third charge filed on June 30, 2004, complained that she had been forced to retire due to her employer's attendance polices and had been denied a lateral transfer in October 2003 and a promotion in April 2004. She checked the boxes for age discrimination and retaliation. She did not allege any facts in support of retaliation. She received a right-to-sue letter on June 30, 2004 as to this third charge. In her "amended" or fourth charge filed on February 16, 2005, Plaintiff Walther complained about being denied management positions and lateral transfers between March 2001 and June 2004 but did not relate facts specific to the claim. Plaintiff Walther stated that when she complained to management, she had been retaliated against, including job reassignments, inappropriate discipline and ultimately termination. She also complained that her employment termination had been pretextual. Plaintiff Walther included allegations on behalf of other employees whom she claimed had similarly been denied management positions and lateral transfers. Plaintiff Walther checked the boxes for age discrimination and retaliation as to this "amended" or fourth charge. The right-to-sue letter issued as to this charge states that it is being issued "only to the additional issues of harassment and terms and conditions not addressed in the original Notice of Right to Sue issued on July 30, 2004."

Plaintiff Walther in her third charge alleged facts, that is, denial of promotion and lateral transfers, in support of an age discrimination claim. She did not allege any facts in support of a retaliation claim even though she checked the box indicating retaliation. Plaintiff Walther in her "amended" or fourth claim alleged age discrimination based on lack of promotions and lateral transfers and thus this part of her "amended" or fourth charge was encompassed within her third charge. Plaintiff Walther did not file suit within 90 days of receiving her right-to-sue letter as to her third charge and her age discrimination claim is time-barred. However, Plaintiff Walther further alleged in her fourth charge circumstances relating to retaliation which had not been encompassed within her third charge. Plaintiff Walther asserted a retaliation claim in her "amended" or fourth charge and a retaliation claim has been asserted in the instant lawsuit. Plaintiff Walther therefore may proceed on her retaliation claim as she filed suit within 90 days of receiving the right-to-sue letter regarding her fourth charge.

Plaintiffs cannot represent class members if the latter's own claims are time-barred when they file suit. Once a plaintiff files a separate administrative charge, he or she cannot rely any further on the other claimant's actions and must timely file suit after receiving the right-to-sue letter. Anderson v. Unisys Corp., 47 F.3d 302, 209 (8^th Cir. 1995) ("[e]ven if those plaintiffs are piggybacking on another employee's timely administrative charge, once they file separate administrative charges, they cannot rely any further on the other claimant's actions and must timely file suit after receiving their right-to-sue letters"); Gitlitz v. Compagnie Nationale Air France, 129 F.3d 554, 557-58 (11^th Cir. 1997) (same). Plaintiffs Eidenbock, Freese, Kearney and Warg cannot rely upon the charges of Plaintiffs Walther and Bennett to revive their own time-barred claims.

Accordingly,

IT IS ORDERED that Plaintiffs' motion for extension of time to file response (Doc. 7) is granted.

IT IS FURTHER ORDERED that Defendant's motion to dismiss the complaint (Doc. 6) is granted in part and denied in part.

IT FURTHER ORDERED that Defendant's motion to dismiss the complaint as to Plaintiffs Eidenbock, Freese, Kearney and Warg is granted and the claims asserted by these Plaintiffs are dismissed with prejudice.

IT IS FURTHER ORDERED that Defendant's motion to dismiss the complaint as to Plaintiffs Walther and Bennett is granted as to these Plaintiffs' claims based on age discrimination. IT IS FURTHER ORDERED that Defendant's motion to dismiss the complaint as to Plaintiffs Walther and Bennett is denied as to these Plaintiffs' claims based on retaliation.