## Facts

- David M. Armstrong and other former employees alleged age discrimination under the ADEA after terminations in 1992–1993.
- Most employees timely filed EEOC charges; the EEOC issued right-to-sue notices stating they had 90 days to file suit.
- Instead of filing individual actions, the employees attempted to proceed through an existing ADEA collective action against the same employer (the Carmichael action), either as added named plaintiffs or by opting in.
- The district court in Carmichael ruled the employees were not “similarly situated” to the certified group, excluded them from the collective, dismissed certain added-plaintiff claims, and denied opt-in motions.
- That exclusion order was interlocutory because it did not terminate the Carmichael action.
- More than 90 days after being excluded, the employees filed a new, separate ADEA action asserting individual claims.
- The employer moved for summary judgment, arguing the claims were time-barred because the 90-day period resumed when the employees were excluded from Carmichael; the district court agreed.

## Issues

1. When a putative class/collective action tolls a limitations period, does tolling end upon the district court’s interlocutory order denying class certification or collective inclusion, or does it continue through final judgment and any appeal?
2. After tolling ends, must excluded ADEA plaintiffs file individual actions within the remaining portion of the 90-day right-to-sue period to avoid dismissal as untimely?

## Decision

- The en banc Eleventh Circuit affirmed summary judgment for the employer.
- Tolling under American Pipe and Crown, Cork ends when the district court enters an interlocutory order denying class certification or excluding plaintiffs from the collective as not similarly situated.
- The limitations clock does not remain suspended through the remainder of the class action or through appellate review of the certification ruling.
- Because the employees filed their individual suit more than 90 days after the exclusion order, their ADEA claims were time-barred.

## Legal Principles

- Filing a putative class action tolls limitations for absent class members only until the district court denies class certification.
- The end of tolling is triggered by the district court’s denial of certification or exclusion from collective treatment, even if the order is interlocutory and subject to revision.
- Appellate-jurisdiction rules governing appealability of interlocutory orders do not extend statutes of limitations.
- In ADEA collective actions, American Pipe/Crown, Cork tolling can apply, but excluded plaintiffs must file individual actions within the remaining right-to-sue period after exclusion.

## Conclusion

The court held that American Pipe/Crown, Cork tolling stops when a district court first denies class/collective inclusion, and ADEA plaintiffs excluded from the collective must file individual suits within the remaining 90-day period or their claims are untimely.


Armstrong v. Martin Marietta Corp., 138 F.3d 1374 (11th Cir. 1998)