United States Court of Appeals For the First Circuit _____________________

No. 19-1679

FRANCISCO PÉREZ-ABREU; OLGA FELIX-ANCONA; CONJUGAL PARTNERSHIP PÉREZ-FELIX,

Plaintiffs, Appellants,

v.

METROPOL HATO REY LLC; RESTAURANT METROPOL 3, INC.,

Defendants, Appellees. _____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge] _____________________

Before

Howard, Chief Judge, Barron, Circuit Judge, and McAuliffe, District Judge. _____________________

Javier A. Rivera-Vaquer, with whom Jose A. Rivera-Cordero and Rivera Mercado & Rivera Cordero were on brief, for appellants. Luis E. Pabon-Roca, with whom Clarisa Sola-Gomez and Faccio & Pabon Roca were on brief, for appellees. _____________________

July 9, 2021 _____________________

 Of the District of New Hampshire, sitting by designation. McAULIFFE, District Judge. Appellant, Francisco Pérez-

Abreu, brought suit against his employer, a restaurant called the

Metropol Hato Rey. Pérez asserted claims of age-based

discrimination under the Age Discrimination in Employment Act

("ADEA") and Puerto Rico's statutory analog. His employer promptly

moved to dismiss the complaint, pointing out that Pérez failed to

exhaust required administrative remedies before filing suit. That

is, he neglected to first file a complaint with the Equal

Employment Opportunity Commission. In response, Pérez

acknowledged his failure to exhaust but pressed the district court

to excuse that failure by adopting and applying the "single filing

rule," also known as the "piggyback rule." That rule, in its

various forms, allows a litigant to vicariously exhaust by relying

upon a timely administrative complaint filed by another,

similarly-situated plaintiff. Here, Pérez sought to "piggyback"

on an EEOC age discrimination complaint timely filed against his

employer by one of his co-workers.

The district court declined to adopt the single filing

rule in these circumstances, dismissed Pérez's ADEA claims, and

declined to exercise supplemental jurisdiction over his Puerto

Rico law claims. In this appeal, Pérez urges the court to adopt

an expansive version of the single filing rule and remand the case

to the district court for further proceedings. We decline that

invitation.

- 2 - I.

Pérez filed suit in November of 2018, complaining of age

discrimination under the Age Discrimination in Employment Act,

, and Puerto Rico's anti-discrimination law,

known as Puerto Rico Law 100,

et

seq. His complaint alleged two discrete acts of age-based

discrimination. The first occurred in 2010, when the Metropol

restaurant reduced his hours from 40 to 35 each week. As a result,

Pérez suffered a reduction both in his fixed income and in the

wages he derived from tips. He continued to work 35 hours each

week until March of 2018, when the restaurant reestablished his

40-hour weekly schedule.

The second act of alleged age discrimination took place

in December of 2013, shortly after the restaurant's reorganization

and relocation. Pérez claims that after the Metropol relocated,

he was no longer assigned to a specific group of tables. Instead,

he had to serve tables on an "as-needed" basis, causing him to

have fewer customers and a loss of income. Pérez contends that

age-based animus motivated the restaurant's 2010 decision to

reduce the number of hours he worked each week, as well as its

2013 decision to structure his service in a way that was

economically less favorable to him.

The Metropol restaurant moved to dismiss the complaint,

noting that Pérez failed to exhaust administrative remedies – that

- 3 - is, he neglected to file a complaint with either the EEOC or the

ADU (the Antidiscrimination Unit of the Puerto Rico Department of

Labor). See

(d)(1). Persuaded that the motion to

dismiss had merit, the district court directed Pérez to show cause

why his complaint should not be dismissed for failure to exhaust.

Additionally, the district court sua sponte granted Pérez leave to

amend his complaint to assert his claims "with more specificity

and solve any material pleading deficiencies discussed in

Defendants' Motion to Dismiss."

Pérez chose not to amend his complaint. He did, however,

submit a legal memorandum in which he acknowledged his failure to

exhaust, but urged the court to adopt the "single filing" exception

to exhaustion. That exception, which has also come to be known as

the "piggybacking rule," would allow Pérez to vicariously satisfy

his exhaustion obligation by relying upon a timely-filed

administrative complaint against his employer made by a similarly-

situated plaintiff. See, e.g., Grayson v. K Mart Corp.,

(11th Cir. 1996). Specifically, Pérez sought to

piggyback on one of several administrative charges brought by his

co-worker, Juan Santiago-Del Valle. Mr. Del Valle filed complaints

with the EEOC and the ADU and subsequently sued the Metropol Hato

Rey for alleged age discrimination. See Santiago-Del Valle v.

Metropol Hato Rey, LLC, Civil No. 18-cv-1464 (GAG) (the "Del Valle

Case").

- 4 - The district court, recognizing that there are several

interpretations of the single filing rule, favored the one

described in Greene v. City of Boston,

(D.

Mass. 2002), which requires the underlying administrative

complaint to contain some allegation of discriminatory impact

beyond the interests of the complainant. See

. Applying

that test to the facts before it, the district court looked to the

EEOC complaint filed in the Del Valle Case and saw that it

contained no "intimations of class-wide discrimination." That is

to say, it failed to inform either the EEOC or the Metropol Hato

Rey that employees other than Mr. Del Valle — like Pérez — might

also have been subjected to age-based discrimination. That

deficiency, in the district court's view, meant Pérez was not

entitled to the single filing rule's exception to the exhaustion

requirement.

Given those findings, the district court granted the

restaurant's motion to dismiss, dismissed Pérez's complaint

(without prejudice) for failure to exhaust, and declined to

exercise supplemental jurisdiction over Pérez's remaining Puerto

Rico law claims. This appeal ensued.

II.

We review the district court's dismissal de novo. See,

e.g., Alston v. Spiegel,

, 571 (1st Cir. 2021);

Santiago v. Puerto Rico,

(1st Cir. 2011).

- 5 - A.

The ADEA requires that, before filing a civil suit, a

litigant must first file an age discrimination complaint with the

EEOC.

(d)(1); see also Martínez-Rivera v. Puerto

Rico,

(1st Cir. 2016) ("[Plaintiff] had to exhaust

her administrative remedies before bringing an age discrimination

claim under the ADEA to court."). If the EEOC dismisses or

otherwise terminates the administrative proceedings, it must

notify the complainant, who then has "90 days after the date of

the receipt of such notice" to file suit.

(e).

While compliance with the administrative filing requirement is

compulsory, it is not jurisdictional. See Tapia-Tapia v. Potter,

, 745 & n.4 (1st Cir. 2003). "The need for compliance

is, therefore, 'subject to the usual gamut of equitable

exceptions.'"

at 745 n.4 (quoting Bonilla v. Muebles J.J.

Alvarez, Inc.,

(1st Cir. 1999)). The single

filing rule is such an exception.

Although it has been applied unevenly, the single filing

rule, generally speaking, permits an ADEA (or Title VII) plaintiff

who has not exhausted administrative remedies to join an existing

discrimination suit, provided one or more of the named plaintiffs

in that suit did exhaust such remedies. In other words, a non-

exhausting party is able to satisfy the exhaustion requirements by

"piggybacking" on the timely administrative complaint filed by a

- 6 - similarly-situated plaintiff. See, e.g., Howlett v. Holiday Inns,

Inc.,

(6th Cir. 1995) ("It is not necessary in

all circumstances, though, that the EEOC charge be filed by the

individual bringing suit under the ADEA. '[C]ourts have regularly

held that the timely filing of an administrative charge by a named

plaintiff in a class action satisfies the charge filing obligation

of all members of the class.' The 'single filing rule' . . .

allows the administrative charge of one plaintiff to satisfy the

charge filing obligations of other plaintiffs." (alteration in

original) (quoting Tolliver v. Xerox Corp.,

(2d Cir. 1990))).

In the Tolliver opinion, the Court of Appeals for the

Second Circuit summarized what it viewed as three versions of the

single filing rule:

Courts have used different tests, either alone or in combination, for determining whether an administrative charge suffices to permit piggybacking by a subsequent plaintiff. The broadest test requires only that the claims of the administrative claimant and the subsequent plaintiff arise out of the same circumstances and occur within the same general time frame. . . . A somewhat narrower test requires that the administrative claim give notice that the discrimination is "class-wide," i.e., that it alleges discrimination against a class of which the subsequent plaintiff is a member. A still narrower test requires that the administrative claim not only allege discrimination against a class but also allege that the claimant purports to represent the class or others similarly situated.

Tolliver, 918 F.2d at 1057–58 (citations omitted).

- 7 - Here, Pérez urges this court to adopt what the Tolliver

court called the "broadest test." That is, he asks the court to

allow "piggybacking" as long as the "claims of the administrative

claimant and the subsequent plaintiff arise out of the same

circumstances and occur within the same general time frame."

. Under that interpretation of the rule, the underlying

EEOC complaint need not have alerted the EEOC or the employer to

the possibility that discriminatory conduct had been directed at

anyone other than the complainant.

That expansive version of the single filing rule is not

without its critics. See, e.g., Greene,

("The Tolliver court's identification of three different 'tests'

for applying the single filing rule, while useful, conflates two

distinct issues. What the Tolliver court described as the

'broad[est] test,' is really a description of the policy justifying

the single filing rule itself, that is, within a discrete work

group a discriminatory practice is likely to affect all similarly

situated employees in the same way, thereby making group

conciliation practicable."); see also Whalen v. W.R. Grace & Co.,

(3d Cir. 1995) (rejecting Tolliver to the extent

it would permit a non-exhausting, "piggybacking" claimant to rely

upon an EEOC complaint that failed to give notice of class-wide

discrimination).

- 8 - Criticism of the Tolliver "broadest test" is

understandable. After all, an employee is required to file an

administrative complaint before bringing suit to give the employer

notice of the allegedly unlawful activity and to afford the

government an opportunity to negotiate an end to any unlawful

practices. See, e.g., Kloos v. Carter-Day Co.,

(8th Cir. 1986) ("The filing requirement serves several important

purposes. First, it provides the state agency or the EEOC with

information and 'an opportunity to eliminate the alleged unlawful

practices through informal methods of conciliation.' Second, it

provides formal notice to the employer and prospective defendant

of the charges that have been made against it." (quoting H.R. Rep.

No. 950, at 12 (1978), as reprinted in 1978 U.S.C.C.A.N. 504,

515)).

If the administrative complaint on which a non-

exhausting plaintiff wishes to "piggyback" does not give the EEOC

and the employer notice of unlawful practices that potentially

extend beyond the complainant, then the purposes of administrative

exhaustion would be undermined if a non-exhausting plaintiff were

allowed to bypass the administrative process and proceed directly

to court. The government and the employer would be deprived of

any notice of the scope of the claims asserted, as well as the

opportunity to resolve the non-exhausting plaintiff's claims

informally. See, e.g., Anderson v. Montgomery Ward & Co., 852

- 9 - F.2d 1008, 1016 (7th Cir. 1988) ("[I]n our view, the charge [on

which the non-exhausting party seeks to piggyback] must, at the

very least, contain an allegation of class-wide discrimination.

This notification is necessary in order to satisfy Congress'

express desire that the defendant understand, during the

conciliation stage, the magnitude of his potential liability.").

B.

In addition to considering which version of the single

filing rule should be applied, courts have had to determine the

particular circumstances under which a plaintiff may rely upon the

rule. In its traditional application, the single filing rule

permits a party invoking the rule to do so either in a class action

or to join an existing suit (in which at least one plaintiff

properly exhausted and timely sued). See White v. BFI Waste

Servs., LLC,

(4th Cir. 2004) ("The 'single-

filing rule,' as applied by those circuits which have adopted it,

allows plaintiffs who have not exhausted the administrative

requirement of filing with the EEOC to join in a lawsuit with other

plaintiffs who have exhausted the requirement, provided that all

plaintiffs' claims are substantially similar and that the EEOC

charge itself gave notice of the charge's collective nature.");

Peeples v. City of Detroit,

, 631–32 (6th Cir. 2018)

("The [single filing] rule is not limited to class actions but

permits plaintiffs to join an individual action, 'if the named

- 10 - plaintiff filed a timely administrative charge sufficient to

permit "piggybacking" by the joining plaintiff.'" (quoting

Howlett,

)); Foster v. Ruhrpumpen, Inc.,

(10th Cir. 2004) ("Generally speaking, each plaintiff

must exhaust his or her administrative remedies by filing a timely

EEOC charge prior to bringing suit. However, given the widespread

concern over discriminatory employment practices and the

congressional intent behind Title VII and the ADEA, the federal

courts have universally recognized an exception to the individual

filing rule which provides that 'in a multiple-plaintiff, non-

class action suit, if one plaintiff has filed a timely EEOC

complaint as to that plaintiff's individual claim, then co-

plaintiffs with individual claims arising out of similar

discriminatory treatment in the same time frame need not have

satisfied the filing requirement.'" (quoting Allen v. U.S. Corp.,

(5th Cir. 1982))); Price v. Choctaw Glove &

Safety Co.,

(5th Cir. 2006) ("[T]his Circuit

intended for the single filing rule only to permit a non-charging

party to join or intervene in a lawsuit filed by a charging party

who has properly exhausted the administrative requirements. . . .

A non-charging party cannot bring her own independent lawsuit based

upon another party's charge."). But see Horton v. Jackson Cnty.

Bd. of Cnty. Comm'rs,

(7th Cir. 2003) (noting

that while "only the Third Circuit confines the [single filing]

- 11 - doctrine to class actions, . . . it is possible that the Supreme

Court will limit the doctrine to class action cases").

The Second Circuit, however, has found that in the ADEA

context the single filing rule also applies to situations in which

the plaintiff files a separate lawsuit. Tolliver,

("[U]nder Title VII, the single filing rule has been used

only to permit joining a preexisting suit in which at least one

plaintiff had filed a timely charge. But, . . . that consequence

flows from Title VII's requirement that no person may initiate a

Title VII suit without obtaining a right-to-sue letter . . . .

There is no comparable requirement for ADEA suits and therefore no

reason to require ADEA plaintiffs seeking to benefit from the

single filing rule to join preexisting individual suits."). In

other words, because a Title VII plaintiff cannot file suit without

a right-to-sue letter, a non-exhausting, piggybacking plaintiff

with Title VII claims must necessarily join a pre-existing suit in

which at least one other plaintiff has received a right-to-sue

letter. But, under the ADEA, securing a right-to-sue letter is

not a prerequisite to suit. Accordingly, the Tolliver court

reasoned that non-exhausting plaintiffs with claims under the ADEA

could piggyback on the administrative complaint of a co-worker,

but need not necessarily join that co-worker's suit. Such a

claimant could file an independent suit, as did Pérez in this case.

- 12 - C.

Although we have had occasion to discuss the single

filing rule in the past, see Basch v. Ground Round, Inc.,

(1st Cir. 1998), we have not explicitly adopted it. We

decline to do so today because the circumstances of this case, in

combination, do not lend themselves to a thoughtful application of

a reasonable variant of the rule.

First, Pérez has not shown that the EEOC charges timely

filed by his co-worker and on which Pérez seeks to piggyback

informed the EEOC or the Metropol Hato Rey that broader, company-

wide acts of discrimination may have occurred, or that other

employees — like Pérez — may also have been the victim of age-

based discrimination. Moreover, he did not seek to join a timely

suit filed by a co-worker who properly exhausted administrative

remedies but, instead, brought his own independent action. We

also note that Pérez's separate suit was filed more than 90 days

after the EEOC's notice of dismissal of the administrative

complaint on which Pérez seeks to piggyback.1

1 Under the ADEA, suit must be filed no later than 90 days after receipt of notice from the EEOC that it has dismissed or otherwise terminated the administrative proceeding.

(e). Here, however, because Pérez did not file an administrative complaint, he never received a notice of dismissal. The timeliness of his individual suit might then be measured by the dismissal letter in the administrative action on which he seeks to piggyback. In that case, Pérez would find himself in a difficult position, since he filed suit on November 13, 2018, more than 90 days after Mr. Del Valle's receipt of the EEOC dismissal

- 13 - Finally, and importantly, even when prompted by the

district court, Pérez did not amend his complaint to state either

that he had exhausted (which he plainly could not do) or that he

sought to invoke an equitable exception to the exhaustion

requirement. Because filing an administrative charge of

discrimination is a prerequisite to bringing a civil suit under

both the ADEA and Title VII, courts have routinely required

plaintiffs to include an allegation of exhaustion in their

complaints. Those who fail to do so are often granted leave to

file an amended complaint making that assertion (as Pérez was

here), or face dismissal. See Burnett v. City of Jacksonville,

(11th Cir. 2010); O'Kane v. Mead Johnson

Nutrition Co.,

, 989 (10th Cir. 2020); see also

Drury v. JF White Contracting Corp., No. CV 06-40027-FDS,

, at *4 (D. Mass. Feb. 17, 2006).

III.

We need not explore the several nuanced issues that arise

here, or determine the single filing rule’s proper scope. It is

sufficient to note that we decline to adopt any version of the

single filing rule that would be sufficiently broad to excuse the

procedural failings associated with Pérez's suit. For the

letter dated April 9, 2018.

- 14 - foregoing reasons, the district court's order dismissing Pérez's

complaint is affirmed.

- 15 -