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Affirming the district court's judgment on different grounds, the Second Circuit refrained from determining whether employees of joint employers can be aggregated to satisfy Title VII's requirements, and instead found that Arculeo had failed to provide justification for aggregating a sufficient number of defendants' employees. The court began by stating that in the “joint employer” context, “separate legal entities … handle certain aspects of their employer-employee relationship jointly” such that “an employee, formally employed by one entity, who has been assigned to work in circumstances that justify the conclusion that the employee is at the same time constructively employed by another entity, may impose liability for violations of employment law on the constructive employer, on the theory that this other entity is the employee's joint employer.” Unlike under the “single employer” relationship, wherein “[a]lthough nominally and technically distinct, several entities are properly seen as a single integrated entity,” therefore providing that “all the employees of the constituent entities are employees of the overarching integrated entity” for purposes of aggregation, in the joint employer context “it does not follow that all the employees of both employers are part of an integrated entity encompassing both.”

Thus, the Second Circuit found that in the joint employer context, a joint undertaking by two entities must be proved as justification for aggregating the employees of one employer to those of another who are jointly employed by the first. Because Arculeo did not could not show that either On-Site or Crystal Hills, each of which had fewer than 15 employees alone, jointly employed enough of the other entity's employees to meet the15-employee threshold, the Second Circuit affirmed the district court's grant of summary judgment to defendants.

Seventh Circuit Rules on 'Class-of-One' Theory

In holding that a police officer who sued his police chief under 42 U.S.C. ' 1983 for depriving him of equal protection under the law did not satisfy the “class-of-one” theory, the Seventh Circuit attempted to better clarify the concept of a class-of-one claim; a doctrine, it warned, that “'unless carefully circumscribed … could effectively provide a federal cause of action for review of almost every executive and administrative decision made by state actors'” Lauth v. McCollum, 2005 WL 2277119 (7th Cir. Sept. 20) (quoting Jennings v. City of Stillwater, 383 F.3d 1199 (10th Cir. 2004)).

Lauth, a Chicago area police officer, sued his police chief, McCollum, under ' 1983 for allegedly depriving him of equal protection by requesting that the Village's Board of Police Commissioners sanction Lauth for malfeasance, a request with which the Board complied. McCollum took this action against Lauth after he mishandled a missing child report by failing to comply with standard operating procedures and state statutory requirements. Rather than pursuing judicial review of the Board's disciplinary action within the Illinois state courts, Lauth brought the instant suit in federal court, claiming that McCollum's treatment of him was motivated by animus stemming from Lauth's participation in unionizing the Village police force, and that another officer who had mishandled a missing-person complaint years earlier was not similarly disciplined. The district judge granted summary judgment for defendant, and Lauth appealed.

In upholding the district court's grant of summary judgment to defendant, the Seventh Circuit remarked that “[t]here is clearly something wrong with a suit of this character coming into federal court dressed as a constitutional case.” Commenting on the uncertainty surrounding “class-of-one” equal protection cases, the court lamented that if “any unexplained or unjustified disparity in treatment by public officials is … to be deemed a prima facie denial of equal protection, endless vistas of federal liability are opened.” In the court's reasoning, such understanding of the “class of one” theory is flawed in that it is impossible to achieve complete equality in enforcement or rid all remnants of personal motive from official action. Thus, the Seventh Circuit found that as we move away from the paradigmatic “class-of-one” case, which “is one in which a public official, with no conceivable basis for his action other than spite or some other improper motive (improper because unrelated to his public duties), comes down hard on a hapless private citizen,” the provision of federal relief is no longer justified. In making this statement, the court acknowledged the wealth of legal protections outside of this federal structure that inure to tenured public employees like Lanuth, including the right to sue for a deprivation of property under Section 1983 in both federal in state court. Thus while declining to find that a public employee can never maintain a class-of-one case, the Seventh Circuit determined that “[t]he principal effect of “class of one” suits by public employees is … to undermine discipline in public agencies” and “to inject the federal courts into an area of labor relations that Congress disclaimed a federal interest in.” In so finding, the court advised that the best approach to “class of one” cases would be to instruct potential plaintiffs that in order to prevail on such a claim, the governmental action taken against them must be “'wholly impossible to relate to legitimate governmental objectives'” (quoting Esmail v. Macrane, 53 F.3d 176, at 180 (7th Cir. 1995).

Right to Sue for Age Discrimination Claims

The Eleventh Circuit has held that for purposes of determining when the 90-day statute of limitations period begins to run on filing a claim under the Age Discrimination in Employment Act (ADEA), the clock should start a reasonable time after employees have actual knowledge that the Equal Employment Opportunity Commission (EEOC) has terminated investigation of their claims, and not when employees receive written notice of their right to sue. Kerr v. McDonald's Corporation, 2005 WL 2456866 (11th Cir. Oct. 6).

After defendant McDonald's Corporation terminated their employment in October 2001, plaintiffs Christine Kerr and Pat Green Smith, both over 50 years old, filed a class-action age discrimination claim under the ADEA in the United States District Court for the Northern District of Georgia. Stating that plaintiffs' action was time-barred in that their right-to-sue (RTS) letters were issued by the EEOC well over 90 days prior to the filing of their complaint, defendant moved to dismiss, and the district court granted the request.

Affirming the district court's order, the Eleventh Circuit found that even though plaintiffs filed their suit within 90 days of when they claimed to have received their RTS letters, the appropriate date on which to begin running the limitations period under the ADEA was the day on which complainants had actual knowledge that the EEOC investigations of their claims had been terminated. Under the ADEA, “'a civil action may be brought … within 90 days after the date of the receipt of … notice [of dismissal of the charge]'” (citing 29 U.S.C. ' 626(e)). The Eleventh Circuit previously determined that the 90 days starts to run when the “'complainant has adequate notice that the EEOC has dismissed the Charge'” (quoting Santini v. Cleveland Clinic Florida, 232 F.3d 823 (11th Cir. 2000)). Both plaintiffs had been notified in late December 2002 by the EEOC investigator assigned to their cases that the agency's investigations of their claims had been completed, and both orally requested RTS letters a few days before Dec. 30, 2002. While the EEOC allows such letters to be requested orally by a charging party, it also follows up on such requests by sending a letter to the complainant asking for written confirmation. Both plaintiffs confirmed their requests in writing and sent the confirmation to the EEOC by early January 2003. Even though the EEOC unit supervisor signed and dated plaintiffs' RTS letters, prompting the agency's practice of mailing the letters out the day they are dated or within the following 2 days, plaintiffs both asserted that they did not receive the letters until sometime in mid-February.

Rejecting their claim that this date in February should be used to calculate the limitations period for the filing of their complaints, the court concurred with defendant's argument that ” … because Kerr and Green Smith had knowledge of their right to sue and had requested official notice thereof, the time for filing should begin within a reasonable time after the letters were mailed, rather than with their actual receipt of file copies.” The Eleventh Circuit found that “ Kerr and Green Smith, in failing to make any inquiry regarding their late or missing letters, failed to assume the minimal responsibility or to put forth the minimal effort necessary to resolve their claims in this case.” Thus, it was not only consistent with the governing statute, but also equitable to impose upon plaintiffs a limitations period beginning on the date on which they could be imputed with actual knowledge of their rights.

Second Circuit Ruling on Existence of Joint Employers Under Title VII Standard

While acknowledging that its courts had not yet taken a stance on “whether aggregation is appropriate in either the single employer or the joint employer context for purposes of determining whether the Title VII threshold is met,” the Second Circuit found that even if such aggregation had been judicially upheld, the plaintiff employee had failed to show that the employees for the two companies for which she worked could be justifiably aggregated. Arculeo v. On-Site Sales & Marketing, LLC, 2005 WL 2403853 (2nd Cir. Sept. 30).

Plaintiff Jennifer Arculeo, a sales assistant, brought this suit in the United States District Court for the Southern District of New York against both On-Site Sales & Marketing, LLC (On-Site) and Crystal Hills, LLC (Crystal Hills) alleging sex-based discrimination in employment under both Title VII of the Civil Rights Act of 1964 (Title VII) and New York Human Rights Law (NYHRL), N.Y. EXEC. LAW ”296-297. Only employers that employ at least 15 employees are covered by the provisions of Title VII. While Arculeo did not dispute the fact that neither On-Site nor Crystal Hills independently employed as many as 15 employees, she argued that the two defendants should be deemed her joint employers, and that their employees should be aggregated for purposes of meeting Title VII's 15-employee threshold. During her employment with On-Site, a marketing and sales services firm, she was assigned to work with, and under the supervision of, individuals employed by Crystal Hills, a housing construction company with which On-Site had contracted to perform sales and marketing services. Most or all of the alleged abusive contact was attributed to a Crystal Hills supervisor and the On-Site supervisor stationed at the Crystal Hills facility. While the district court did not rule on whether On-Site and Crystal Hills could be considered Arculeo's joint employers, it granted defendants' motions for summary judgment after determining, as a matter of law, that joint employers could not be aggregated for purposes of meeting the fifteen-employee minimum.

Affirming the district court's judgment on different grounds, the Second Circuit refrained from determining whether employees of joint employers can be aggregated to satisfy Title VII's requirements, and instead found that Arculeo had failed to provide justification for aggregating a sufficient number of defendants' employees. The court began by stating that in the “joint employer” context, “separate legal entities … handle certain aspects of their employer-employee relationship jointly” such that “an employee, formally employed by one entity, who has been assigned to work in circumstances that justify the conclusion that the employee is at the same time constructively employed by another entity, may impose liability for violations of employment law on the constructive employer, on the theory that this other entity is the employee's joint employer.” Unlike under the “single employer” relationship, wherein “[a]lthough nominally and technically distinct, several entities are properly seen as a single integrated entity,” therefore providing that “all the employees of the constituent entities are employees of the overarching integrated entity” for purposes of aggregation, in the joint employer context “it does not follow that all the employees of both employers are part of an integrated entity encompassing both.”

Thus, the Second Circuit found that in the joint employer context, a joint undertaking by two entities must be proved as justification for aggregating the employees of one employer to those of another who are jointly employed by the first. Because Arculeo did not could not show that either On-Site or Crystal Hills, each of which had fewer than 15 employees alone, jointly employed enough of the other entity's employees to meet the15-employee threshold, the Second Circuit affirmed the district court's grant of summary judgment to defendants.

Seventh Circuit Rules on 'Class-of-One' Theory

In holding that a police officer who sued his police chief under 42 U.S.C. ' 1983 for depriving him of equal protection under the law did not satisfy the “class-of-one” theory, the Seventh Circuit attempted to better clarify the concept of a class-of-one claim; a doctrine, it warned, that “'unless carefully circumscribed … could effectively provide a federal cause of action for review of almost every executive and administrative decision made by state actors'” Lauth v. McCollum, 2005 WL 2277119 (7th Cir. Sept. 20) (quoting Jennings v. City of Stillwater , 383 F.3d 1199 (10th Cir. 2004)).

Lauth, a Chicago area police officer, sued his police chief, McCollum, under ' 1983 for allegedly depriving him of equal protection by requesting that the Village's Board of Police Commissioners sanction Lauth for malfeasance, a request with which the Board complied. McCollum took this action against Lauth after he mishandled a missing child report by failing to comply with standard operating procedures and state statutory requirements. Rather than pursuing judicial review of the Board's disciplinary action within the Illinois state courts, Lauth brought the instant suit in federal court, claiming that McCollum's treatment of him was motivated by animus stemming from Lauth's participation in unionizing the Village police force, and that another officer who had mishandled a missing-person complaint years earlier was not similarly disciplined. The district judge granted summary judgment for defendant, and Lauth appealed.

In upholding the district court's grant of summary judgment to defendant, the Seventh Circuit remarked that “[t]here is clearly something wrong with a suit of this character coming into federal court dressed as a constitutional case.” Commenting on the uncertainty surrounding “class-of-one” equal protection cases, the court lamented that if “any unexplained or unjustified disparity in treatment by public officials is … to be deemed a prima facie denial of equal protection, endless vistas of federal liability are opened.” In the court's reasoning, such understanding of the “class of one” theory is flawed in that it is impossible to achieve complete equality in enforcement or rid all remnants of personal motive from official action. Thus, the Seventh Circuit found that as we move away from the paradigmatic “class-of-one” case, which “is one in which a public official, with no conceivable basis for his action other than spite or some other improper motive (improper because unrelated to his public duties), comes down hard on a hapless private citizen,” the provision of federal relief is no longer justified. In making this statement, the court acknowledged the wealth of legal protections outside of this federal structure that inure to tenured public employees like Lanuth, including the right to sue for a deprivation of property under Section 1983 in both federal in state court. Thus while declining to find that a public employee can never maintain a class-of-one case, the Seventh Circuit determined that “[t]he principal effect of “class of one” suits by public employees is … to undermine discipline in public agencies” and “to inject the federal courts into an area of labor relations that Congress disclaimed a federal interest in.” In so finding, the court advised that the best approach to “class of one” cases would be to instruct potential plaintiffs that in order to prevail on such a claim, the governmental action taken against them must be “'wholly impossible to relate to legitimate governmental objectives'” (quoting Esmail v. Macrane , 53 F.3d 176, at 180 (7th Cir. 1995).

Right to Sue for Age Discrimination Claims

The Eleventh Circuit has held that for purposes of determining when the 90-day statute of limitations period begins to run on filing a claim under the Age Discrimination in Employment Act (ADEA), the clock should start a reasonable time after employees have actual knowledge that the Equal Employment Opportunity Commission (EEOC) has terminated investigation of their claims, and not when employees receive written notice of their right to sue. Kerr v. McDonald's Corporation, 2005 WL 2456866 (11th Cir. Oct. 6).

After defendant McDonald's Corporation terminated their employment in October 2001, plaintiffs Christine Kerr and Pat Green Smith, both over 50 years old, filed a class-action age discrimination claim under the ADEA in the United States District Court for the Northern District of Georgia. Stating that plaintiffs' action was time-barred in that their right-to-sue (RTS) letters were issued by the EEOC well over 90 days prior to the filing of their complaint, defendant moved to dismiss, and the district court granted the request.

Affirming the district court's order, the Eleventh Circuit found that even though plaintiffs filed their suit within 90 days of when they claimed to have received their RTS letters, the appropriate date on which to begin running the limitations period under the ADEA was the day on which complainants had actual knowledge that the EEOC investigations of their claims had been terminated. Under the ADEA, “'a civil action may be brought … within 90 days after the date of the receipt of … notice [of dismissal of the charge]'” (citing 29 U.S.C. ' 626(e)). The Eleventh Circuit previously determined that the 90 days starts to run when the “'complainant has adequate notice that the EEOC has dismissed the Charge'” (quoting Santini v. Cleveland Clinic Florida , 232 F.3d 823 (11th Cir. 2000)). Both plaintiffs had been notified in late December 2002 by the EEOC investigator assigned to their cases that the agency's investigations of their claims had been completed, and both orally requested RTS letters a few days before Dec. 30, 2002. While the EEOC allows such letters to be requested orally by a charging party, it also follows up on such requests by sending a letter to the complainant asking for written confirmation. Both plaintiffs confirmed their requests in writing and sent the confirmation to the EEOC by early January 2003. Even though the EEOC unit supervisor signed and dated plaintiffs' RTS letters, prompting the agency's practice of mailing the letters out the day they are dated or within the following 2 days, plaintiffs both asserted that they did not receive the letters until sometime in mid-February.

Rejecting their claim that this date in February should be used to calculate the limitations period for the filing of their complaints, the court concurred with defendant's argument that ” … because Kerr and Green Smith had knowledge of their right to sue and had requested official notice thereof, the time for filing should begin within a reasonable time after the letters were mailed, rather than with their actual receipt of file copies.” The Eleventh Circuit found that “ Kerr and Green Smith, in failing to make any inquiry regarding their late or missing letters, failed to assume the minimal responsibility or to put forth the minimal effort necessary to resolve their claims in this case.” Thus, it was not only consistent with the governing statute, but also equitable to impose upon plaintiffs a limitations period beginning on the date on which they could be imputed with actual knowledge of their rights.