Summary
holding that individuals who filed administrative charge but failed to file federal suit within 90 days of receipt of right-to-sue letter as required by the ADEA could not take advantage of single filing rule
Summary of this case from Holowecki v. Federal Exp. Corp.Opinion
Nos. 98-6147, 98-6173
Argued: April 9, 1999
Decided: April 26, 1999
Appeal from the dismissal by the United States District Court for the Southern District of New York (Michael B. Mukasey, Judge) of a complaint and of claims sought to be added in an amended complaint because the claims are time barred. We affirm.
JONATHAN C. MOORE, Moore Williams (Norman Levy, Lore Levy, New York, New York, of counsel), New York, New York, for Plaintiffs-Appellants.
KAY K. GARDINER, Assistant United States Attorney (Mary Jo White, United States Attorney for the Southern District of New York; Nancy G. Milburn, Steven M. Haber, Assistant United States Attorneys, of counsel), New York, New York, for Defendant-Appellee.
Before: WINTER, Chief Judge, NEWMAN, and SOTOMAYOR, Circuit Judges.
In this consolidated appeal, appellants other than Ruth L.R. Levy (the "Roemer Appellants") appeal from Judge Mukasey's order dismissing their complaint in Roemer v. United States Gen. Accounting Office, No. 97 Civ. 4488 (MBM) ("the Roemer Complaint") as time barred. All appellants appeal from the district court's dismissal of the Roemer Appellants as plaintiffs in an amended complaint filed in Levy v. United States Gen. Accounting Office, No. 97 Civ. 4016 (MBM) (the "Levy Amended Complaint"), also because their claims were time barred. We affirm for substantially the reasons stated by the district court in its holding with regard to the single filing rule. See Levy v. United States Gen. Accounting Office, No. 97 Civ. 4016 (MBM), No. 97 Civ. 4488 (MBM), 1998 WL 193191 (S.D.N.Y. Apr. 22, 1998). We agree that it does not apply because the Roemer Appellants filed timely charges of discrimination with the General Accounting office ("GAO"). They were notified of the GAO's final decision on their claims, and the Roemer Complaint was not filed within ninety days of that final decision. See id. at *2-*4. We also agree with the district court, for substantially the reasons it stated, that the claims of the Roemer Appellants in the Levy Amended Complaint do not relate back to Levy's timely complaint. Levy did not seek to add the Roemer Appellants as plaintiffs because of a mistake, as required by Fed. R. Civ. P. 15(c)(3)(B). Rather, Levy sought to add them because the Roemer Appellants had filed a separate complaint that was time barred, see id. at *4-*6.
The judgment of the District Court in 97 Civ. 4488, entered May 1, 1998, and the partial judgment of the District Court in 97 Civ. 4016, certified under Fed. R. Civ. P. 54(b), and entered July 7, 1998, are affirmed.