Labor Logic

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John D. Finerty, Jr.

The statutes and regulations that control when and how a federal discrimination case is heard in federal court require that a plaintiff first file a charge of discrimination with the U.S. Equal Employment Opportunity Commission. Most employment lawyers understand that a complainant before the agency must allege all bases for discrimination or the complainant risks having the case thrown out of federal court if he or she later sues. In other words, the scope of a subsequent federal lawsuit can be no broader than the scope of the initial charge filed with the EEOC.

Is the reverse also true? That is, if a subsequent federal lawsuit is narrower than the EEOC charge, are all the issues raised in the charge still in play in federal court? A recent case answered that question in the affirmative, unless the employer makes a specific timely objection.

Background

In Torry v. Northrup Grumman Corp., Case No. 03-4149 (7th Cir., Mar. 4, 2005), the court held the employer consented to try the issues of race and age discrimination in Torry’s federal court lawsuit, even though the complaint alleged only age discrimination.

Northrup Grumman laid Nancy Torry off during a reduction-in-force, or RIF. According to Torry, she should have been allowed to bump less senior employees and retain her job. Northrup Grumman’s employee handbook even created bumping rights. The handbook, however, contained an express disclaimer that it did not apply to hourly workers at Torry’s plant. Thus, Torry lost on the merits of her discrimination claims eventually.

Before the court got to the merits, however, the case presented a rather unique issue. Torry filed a complaint with the EEOC that alleged age discrimination and race discrimination. When she filed a lawsuit in federal court, however, she alleged only a violation of the Age Discrimination in Employment Act. During years of pretrial proceedings, the court noted it quickly became apparent that she was seeking a remedy for racial discrimination, as well as for age discrimination. Torry was represented by an attorney, but the attorney never amended the complaint.

Northrup Grumman moved for summary judgment, arguing that Torry’s failure to amend was fatal and barred her racial discrimination claim. The U.S. District Court for the Northern District of Illinois disagreed and went on to consider the merits of both Torry’s age discrimination and racial discrimination charges. The trial court granted judgment in Northrup Grumman’s favor on both claims, over its objection that the racial discrimination claim was not properly before the court.

The Rules of Amending Pleadings

On appeal the court analyzed two legal issues: the doctrine of "constructive amendment" of a complaint and Rule 15(b), Fed. R. Civ. P. The court noted the doctrine of constructive amendment is not particularly helpful and should be avoided. The term "constructive" actually means "no." For example, when one receives "constructive notice" of a claim, it means that he or she did not receive notice at all. It is not helpful, the court noted, to "pretend a plaintiff has amended his complaint" when it has not in fact been amended.

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Rule 15, however, "fully and clearly" handled the issue. That rule provides 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." If an issue not raised in the complaint, here the issue of racial discrimination, was tried without objection by either party, it doesn’t matter that it wasn’t raised in the complaint.

The court held that Northrup Grumman tried the issue of racial discrimination by implied consent. It went through four years of discovery and pretrial motions without objecting to the fact that its opponent was trying to prove racial as well as age discrimination. That is all Rule 15(b) requires.

The court called Northrup’s argument that the plaintiff was required to amend the complaint frivolous and a waste of time. Rule 15 expressly provides: "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 anytime, even after judgment; but failure so to amend does not affect the result of the trial of these issues (Emphasis by the court)."

The court then wrote: "The words that we have italicized show that Northrup Grumman’s insistence that the plaintiff had to amend the complaint to add a charge of racial discrimination is frivolous." The court pointed out that Northrup Grumman might want to have the complaint amended after judgment to make it clear that the court tried racial discrimination to simplify proof of res judicata or collateral estoppel in a subsequent case.

For more information on this case or for assistance in a federal discrimination case, contact John D. Finerty, Jr. at Michael Best & Friedrich LLP at (414) 225-8269 or by email.