Tuesday, November 6, 2007

Supreme Court hears oral argument in Federal Express v. Holowecki

The United States Supreme Court today held oral argument in Federal Express v. Holowecki. It is the first of six employment cases the Supremes will decide this term. The issue in Holowecki is what constitutes a "charge" of discrimination submitted to the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act before plaintiff can institute a private lawsuit.

The plaintiff, Patricia Kennedy, submitted an Intake Questionnaire, with an accompanying affidavit, to the EEOC, which alleged that Fed Ex had committed age discrimination. She did not, however, file a Charge of Discrimination at that point. The EEOC neither assigned a charge number to the submission, nor did it inform Fed Ex that it had received the Intake Questionnaire. Five months later, Kennedy filed a class-action ADEA against Fed Ex, and waited another month before finally filing a formal Charge of Discrimination with the EEOC.

An individual claiming age discrimination may not bring a civil action against an employer without first filing a charge of discrimination with the EEOC within 180 or 300 days (depending on the jurisdiction -- it's 300 days in Ohio) of when the alleged discrimination occurs. The employee must wait sixty days after filing the charge at the EEOC to bring suit. After receiving a charge, the EEOC must promptly notify the employer of the charge and seek voluntary resolution of the claims. The district court granted Fed Ex’s motion to dismiss, finding that the submission of the Intake Questionnaire did not constitute a "charge" under the ADEA. The Second Circuit, however, reversed. It held that a charge is sufficient when the employee names the employer and generally describes the alleged discriminatory acts, and if a reasonable person would find that the employee intended to file a charge.

It will now be up to the Supreme Court to determine what constitutes a charge for purposes of opening the jurisdictional gate to the courts on federal age discrimination claims. Links to all of the lower courts' decisions, the various Supreme Court briefs, and the oral argument transcript are available here.

Fed Ex, has a compelling argument to make. Under the appellate court's ruling, the employee can proceed to federal court on an age discrimination class action lawsuit, without the employer, who had no notice that a charge had even been filed with the EEOC, having the benefit of trying to settle the claim pre-lawsuit. During the EEOC's conciliation process, the stakes are decidedly much lower than they are once an actual lawsuit is filed. For one thing, claimants usually are not represented by counsel at the EEOC. The same is rarely true in federal court. Thus, Fed Ex can claim real prejudice by not having had the opportunity to resolve this case via the EEOC's informal conciliation process.

The following interplay between Chief Justice Roberts and Fed Ex's counsel illustrates this tension:

Chief Justice Roberts: I mean, once the lawyer's involved and they're in litigation and all that, they're not going to take conciliation efforts with the same light as before.... Did you undertake conciliation efforts after her formal, her filing of the Form 5 charge?

Connie Lensing: We were in a lawsuit, Your Honor, and so that sort of changes everything. We can't, we can't talk to her. We can't -- you know, the discovery process is what you then would use to investigate, rather than an informal investigation.

If I was to bet how this case will come out, however, I'm betting on the Roberts Court handing down its second pro-employee decision in as many terms. The EEOC's own internal policies and procedures seem to indicate that the Intake Questionnaire constitutes a "charge," even though it is not a formal charge document. Fed Ex should have received notice of the Intake Questionnaire, putting it on notice of the allegations against it and getting the ball rolling on the processing of the claim and the conciliation process. It is at least possible that the Supreme Court will invalidate the EEOC's own internal rules, but doubtful on what essentially amounts to a clerical issue.