Torry v. Northrop Grumman Corp.Torry v. Northrop Grumman Corp.
- Reporters:
- Before:
- Posner, Manion, Wood
POSNER, Circuit Judge. Nancy Torry filed this suit against her employer alleging a violation only of the Age Discrimination in Employment Act; although the chаrge she had filed with the EEOC had also alleged racial discrimination (she is black), the complaint in her court suit did not mention race. During years of pretrial proceedings, however, it quickly became apparent that she was seeking a remedy for racial discrimination, in violation of Title VII of the Civil Rights Act of 1964, as well as for age discrimination. Her brief in opposition to Northrop Grumman‘s motion for summary judgmеnt was explicit on this score, and Northrop Grumman never doubted that Title VII was in the case. But Torry‘s lawyer never moved to amend the сomplaint to add a Title VII charge, and Northrop argued that the failure to amend was fatal and barred a claim of raciаl discrimination. The judge disagreed and went on to consider the merits of both the age discrimination and racial discrimination charges. He ruled in favor of Northrop Grumman on both claims; but the defendant, while defending the judge‘s ruling on the merits, also insists that he should never have reached the merits of the racial claim.
The courts typically resolve such disputes by invoking the doctrine of “constructive amendment” (of a complaint). E.g., Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 829 n. 1 (2002); Bennett v. Roberts, 295 F.3d 687, 699 (7th Cir. 2002); Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1357 n. 1 (Fed. Cir. 2004); Green Country Food Market, Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1278 (10th Cir. 2004); City of Rome v. Verizon Communications, Inc., 362 F.3d 168, 181-82 (2d Cir. 2004). A typical formulation of the doctrine is that “parties may constructively amend the complaint by agreeing, even implicitly, to litigate fully an issue not raised in the original pleadings.” Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir. 1997). It is said to be “a judicially created doctrine that courts have extrapolated from the language of Federal Rule of Civil Procedure 15(b).” City of Rome v. Verizon Communications, Inc., supra, 362 F.3d at 181.
The word “constructive” is a common legal term of art, but it should be avoided wherever possible. The operative meaning of “constructive” in law is, as our cases have stressed, “no,” Eckstein v. Balcor Film Investors, 58 F.3d 1162, 1168 (7th Cir. 1995); Parker v. Sullivan, 898 F.2d 578, 579 (7th Cir. 1990); Shacket v. Philko Aviation, Inc., 841 F.2d 166, 171 (7th Cir. 1988), and how helpful can it be to have a “no amendment” doctrine? Cf. Astor v. Wells, 17 U.S. (4 Wheat.) 466, 477-79 (1819). When a court says that the defendant received “constructive notice” of the plaintiff‘s suit, it means that he didn‘t receive notice but we‘ll pretend he did; and when a court says that the defendant had “construсtive possession” of a gun, it means that he didn‘t possess it but we‘ll pretend he did. How much more illuminating it would be if the court said that notice isn‘t always required to make a person suable, or that possession of a gun isn‘t always required to make a person guilty of a gun offense. And coming to the present case, how helpful can it be to say that we‘ll pretend a plaintiff has amended his complaint when he hasn‘t?
Of all “constructive” doctrines, that of “constructive amendment” may be the most otiose, because the ground that it traverses is fully and сlearly occupied by
The doctrine is a throwback to the days befоre the Federal Rules of Civil Procedure, promulgated in 1938 (so it is a pretty long throwback), demoted the complaint in federal civil litigаtion from its queenly role. The rules contemplate that the complaint will be superseded by pretrial orders (see
Were there any doubt about the meaning of
So the question is simply whether the issue of rаcial discrimination was (pre)tried by implied consent of the parties (for there was never express consent). The answer is that it was. The defendant went through four years of discovery and other pretrial maneuverings without objecting to the fact that its opponеnt was patently engaged in endeavoring to prove racial as well as age discrimination. No more was required to satisfy
Dеspite wasting our time with a bad argument, Northrop Grumman is entitled to prevail on this appeal. The plaintiff‘s claim of discrimination has nо merit. She was laid off in a RIF, and she does not question the bona fides of the RIF. Her argument is that she should have been allowed to bump junior еmployees and thus retain her job. She relies heavily on a handbook distributed to all of the defendant‘s employees that creates bumping rights without need to apply for the job one wants to be bumped into. But the handbook contains an express disclaimer of the applicability of these bumping rights to hourly workers at the particular plant at which she worked. She made no applicatiоn—which also scotches her claim that a younger white worker was given a discriminatory preference over her by being offered another job when he was bumped; he had applied for the job.
AFFIRMED.
A true Copy:
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—3-4-05