Federal Express v. Holowecki

From ScotusWiki

Jump to: navigation, search

Authorship: This page is maintained by Steven B. Siger, a 3L at Stanford Law School.

1 Briefs and Documents
2 Pre-Argument Articles
- 2.1 Argument Preview
3 Oral Argument Recap
4 Opinion Analysis
5 Links and further information

[edit] Briefs and Documents

Docket: 06-1322

Oral Argument: Transcript

Judgment: AFFIRMED in an opinion by Justice Kennedy.

Merits Briefs

Amicus briefs

Brief for the United States in Support of Respondent
Brief for the Chamber of Commerce of the United States of America in Support of Petitioner
Brief for the Equal Employment Advisory Council, the National Federation of Independent Business Legal Foundation, and the Society for Human Resource Management in Support of Petitioner

Certiorari Filings

[edit] Pre-Argument Articles

[edit] Argument Preview

On Tuesday November 6, 2007, the Supreme Court will hear argument in No. 06-1322, Federal Express Corp. v. Holowecki. This case presents the question of what may constitute a “charge” of discrimination that a potential plaintiff must submit to the Equal Employment Opportunity Commission (EEOC) under the Age Discrimination in Employment Act (ADEA) before bringing a private lawsuit.

[edit] Background

The ADEA makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” An individual facing age discrimination may bring a civil action against her employer, but she must first file a charge of discrimination with the EEOC within (depending on the jurisdiction) 180 or 300 days 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.

Patricia Kennedy was a courier for petitioner Federal Express (Fed Ex). On December 3, 2001, Kennedy filed an EEOC Form 283 Intake Questionnaire and accompanying affidavit alleging that Fed Ex had instituted a number of policies and practices that discriminated based on age. She did not file an EEOC Form 5 Charge of Discrimination at this point. The EEOC did not assign a charge number to Kennedy’s submission, it did not inform Fed Ex that it had received Kennedy’s Form 283, and it made no attempt at informal conciliation. On April 30, 2002, Kennedy filed a class-action ADEA suit on behalf of herself and others similarly situated. Exactly one month later, she submitted a Form 5 Charge of Discrimination to the EEOC.

The district court granted Fed Ex’s motion to dismiss the suit on the ground that the December 2001 submission did not constitute a “charge” under the ADEA. The Second Circuit, however, reversed. It held that the standard for what constitutes a charge is twofold. First, the court held that a charge must comport with the EEOC regulations, which state that a charge is sufficient when the person making the charge names the employer and generally describes the discriminatory acts. Second, the court held that the EEOC filing must manifest the employee’s intent to file a charge as viewed through the lens of a reasonable person. The Second Circuit found that Kennedy’s December 3 submission clearly had all of the required information and indicated her intention to “activate the . . . machinery” of the EEOC. Her filing therefore met the requirements of the ADEA, and the Second Circuit permitted her suit to go forward.

[edit] Petition for Certiorari

Fed Ex filed a petition for certiorari on March 30, 2007, which was granted June 4, 2007.

In its cert. petition, Fed Ex contended that the question presented in this case was extraordinarily important. It argued that permitting intake questionnaires and other similar documents to suffice as charges despite the EEOC’s failure to act would lead to increased litigation and undermine the delicate balance between employer and employee that Congress struck in enacting the ADEA. If a document could suffice as a charge without EEOC action, litigation would increase and the conciliation goals of the ADEA would be undermined. Alternatively, the EEOC’s workload would increase tremendously as it would be forced to treat many more documents as charges.

Fed Ex further argued that the circuits were deeply divided on the issue of what constitutes a charge. Some circuits had held that an intake form does not constitute a charge, others had held that an intake form could be a charge so long as the employee believed that her filing was sufficient to begin formal proceedings, and still others had held that an intake form could constitute a charge even without evidence of the employee’s own belief. Fed Ex contended that this split was demonstrated most clearly by contrasting the Second Circuit’s opinion below with an Eleventh Circuit decision dismissing an ADEA case against Fed Ex with almost identical facts.

Respondent Kennedy contended that the Court should deny review because the conflict cited by petitioner was illusory. Kennedy argued that the Eleventh Circuit had applied the same test as the Second Circuit in the similar cases cited by petitioner – the result only differed because the courts had different views about the reasonable intent of the employee who filled out the intake questionnaires. Moreover, respondent contended that the EEOC regulations clearly identified the steps an employee needed to follow to file a charge. When an employee follows those regulations, it should not be held against the employee if the EEOC fails to act.

Finally, Respondent argued that Kennedy would be permitted to remain a party to this lawsuit even if the Court found for Fed Ex. Because the Second Circuit below had found that other parties alleging similar discrimination had also met the charging requirements of the ADEA, Kennedy would be permitted to piggy-back on their charges and remain a class member.

[edit] Merits Briefing

In its merits brief, Fed Ex (which brought on new appellate counsel) changes its argument significantly from the cert. stage. For the first time, it argues that the ADEA itself defines a charge by setting out a list of requirements that must be satisfied before an employee can sue her employer for age discrimination. Not only must an employee file a writing with the EEOC and then wait sixty days before filing suit, but the employee also may not sue until the EEOC notifies the employer of the employee’s allegation and attempts informal conciliation. Fed Ex contends that reading the legislative scheme any other way would undermine the careful employer-employee balance struck by Congress, result in increased litigation generally, and prejudice employers who would potentially face litigation years after the incident from which it arose.

Fed Ex further argues that even if courts could craft a “fairness exception” based on the idea that an employee is not at fault when the EEOC fails to provide notice to the employer and attempt conciliation, such an exception would be inappropriate here because nothing in the record indicates that Kennedy had any reason to believe that her intake questionnaire was a charge. According to petitioner, the Second Circuit’s test – which construed the tone of the intake questionnaire tone as indicating an intent to file a charge – is entirely subjective. Petitioner claims that such a test creates the prospect that employees will purposely file ambiguous documents with the EEOC in the hope that the Commission will not treat them as a charge but courts later might.

Respondents’ merits brief relies heavily on the EEOC regulations, which define the minimal requirements of a charge – that they name the employer and allege the discriminatory acts. Respondents argue that Kennedy’s intake questionnaire clearly comports with the EEOC’s requirements. Moreover, they argue, the Commission’s failure to treat Kennedy’s intake questionnaire as a charge should not affect her rights under the ADEA. To hold otherwise would be inconsistent with the Supreme Court’s general recognition that plaintiffs should not be held responsible for things beyond their control. Finally, respondents contend that even if the Court decides to adopt the Second Circuit’s test – requiring that an employee’s EEOC filing manifest the intent to have the Commission commence proceedings – Kennedy’s intake questionnaire demonstrated such intent.

Lastly, the United States filed a brief as amicus in support of respondents. In the government’s view, the case presents a simple issue of Chevron deference. The ADEA does not define “charge.” The text of the statute makes clear that only after receiving a charge must the EEOC inform the employer and attempt conciliation. Therefore, contrary to petitioner’s view, the notice and conciliation provisions cannot themselves be part of a statutory definition charge. As the ADEA is unclear on what constitutes a charge, the government argues that the EEOC’s notice and comment regulations mandating that a charge merely name the employer and describe the discrimination are binding. The United States further contends that EEOC guidance documents adopt the manifest intent test used by the Second Circuit, so that a charge must also demonstrate the intent of the employee to make a formal accusation of unlawful discrimination.

Finally, the United States argues that the EEOC’s failure to fulfill its notice and conciliation duties upon receiving Kennedy’s charge does not undermine her right to sue. While acknowledging that – as Fed Ex contends – employers could be prejudiced by failing to receive notice from the EEOC, the government argues that a district court could minimize the harm to an employer through the appropriate use of trial tools generally at its disposal – for instance, issuing a stay to allow for attempted conciliation or invoking the doctrine of laches to prohibit stale claims. In spite of the difficulties facing employers, the United States concludes that “when the [EEOC] regrettably drops the ball in handling a timely submitted charge, defendants are not entitled to a windfall in the form of the dismissal of a potentially meritorious age discrimination suit.”

[edit] Oral Argument Recap

A transcript of the argument is available here

Although the dispute in this case was nominally between defendant Fed Ex and plaintiff Holowecki, it was evident at oral argument that the Court held the EEOC at fault for creating the dispute both by issuing unclear guidance regarding what constitutes a charge of age discrimination and by implementing inconsistent enforcement practices under its regulations.

Interestingly, although Fed Ex hired former acting Solicitor General Walter Dellinger and O’Melveny and Myers as outside appellate counsel for this case, Connie L. Lensing of Memphis, Tennessee – a Vice President of Litigation at Fed Ex – argued for petitioners. During her argument, it became clear that the Court simply did not buy Fed Ex’s argument that a document filed by a plaintiff could not be a charge until the EEOC gave notice to the employer. Justice Scalia made this point most clearly by analogizing Fed Ex’s position to the Rules of Civil Procedure. “My goodness,” he said, “It’s like saying there’s not a complaint until an answer is filed.”

The majority of Ms. Lensing’s time was spent on two related inquiries. First, she was asked repeatedly – again most pointedly by Justice Scalia – about what constitutes a charge, assuming that notice by the EEOC was not required. Her eventual answer was that “a charge needs to clearly delineate that it’s a charge.” From her perspective, the plaintiff’s intake questionnaire did not do so. Secondly, she was asked a number of times by several of the justices what should happen if an employee files something that is clearly a charge, the EEOC fails to act, and the employee then brings suit. While Ms. Lensing initially argued that the suit should be dismissed so that the EEOC could initiate conciliation absent the backdrop of ongoing litigation, a majority of the Court seemed to prefer a remedy of equitable tolling rather than dismissal. Justice Souter crystallized the Court’s thinking, by asking why a plaintiff should have to pay a second filing fee “when it wasn’t the plaintiff’s fault.”

David L. Rose of Washington, D.C. argued for respondent Holowecki. Mr. Rose attempted to rely on the EEOC regulations that require that a charge only identify the employer, identify the kind of discrimination, and be signed by the charging employee to support the claim that his client’s submission was a charge. He was quickly challenged by Justice Alito, who asked whether an employee’s submission would be a charge if it met those three requirements but the employee “check[ed] the box that says ‘I do not consent to have my employer notified.’” As the ADEA requires that employers be notified of all charges, such a submission could not be a charge notwithstanding its compliance with the regulations. While Mr. Rose attempted to evade Justice Alito’s question as “not presented here,” the justices pressed the issue further. Clearly frustrated by the EEOC’s lack of clarity, Justice Scalia at one point asked, to laughter, “what kind of an agency is this?” By the end of his argument, Mr. Rose appeared to acknowledge that an intake form filled out by an employee who did not consent to have his employer notified could not be a charge, but he struggled to find a basis for drawing this line.

Last, Toby J. Heytens of the Solicitor General’s Office argued in support of Respondent Holowecki. Before he could even get a sentence in edgewise, he received a verbal tongue-lashing from Justice Scalia largely directed at the EEOC:

[M]y main concern in this case, however the decision comes out, is to do something that will require the EEOC to get its act in order, because this is nonsense: These regulations that are contradicted by forms; this failure to give notice, but it’s ok because it’s a charge anyway. This whole situation can be traceable back to the agency. . . it’s the agency’s fault, and this scheme has to be revised.

Mr. Heytens agreed wholeheartedly with Justice Scalia’s criticism and claimed that the problems highlighted by this case had been solved by the agency in the years since the case was first filed. Turning to the merits, he echoed Mr. Rose in arguing that a charge should contain the three requirements in the agency regulations – the name of the employer, identification of the kind of discrimination, and the signature of the charging employee – and also should demonstrate the intent of the employee to file a charge.

Justice Breyer acknowledged that Mr. Heytens had proposed a reasonable rule but asked where the intent portion of the proposed rule came from. Mr. Heytens pointed to four different places – three memoranda and policy manuals internal to the EEOC and one statement accompanying the final rule promulgated by the agency pursuant to notice and comment rulemaking. While Chief Justice Roberts pointed out that the Court does not generally give Chevron deference to internal memoranda and policy manuals, Mr. Heytens argued that these sources represented the “agency’s considered judgment about the proper interpretation of its regulations” and were thus entitled to deference under Auer v. Robbins. Finally, Mr. Heytens agreed with the justices who had earlier suggested that equitable tolling was generally the appropriate relief in a case where the EEOC received a submission from an employee that was clearly a charge, but the agency failed to provide notice to the employer.

[edit] Opinion Analysis

The following was originally written by Lyle Denniston for SCOTUSblog.

The Supreme Court ruled on Wednesday, by a 7-2 vote, that a worker claiming age bias in the workplace may start a case before the Equal Employment Opportunity Commission only if he or she spells out more than a bare allegation of discrimination and the name of the employer. A “charge” necessary to open a case, the Court concluded, must include enough substance so that it be “reasonably construed” as a request for EEOC to take action to protect the workers’ rights or to settle a dispute over those rights. Largely deferring to EEOC’s views of what might constitute a “charge,” and thus start legal time lines to running, the Court said the proper test is whether an objective observer examining what the complaining worker has filed is enough to ask the agency “to activate its machinery and remedial processes.”

The ruling came in the case of Federal Express v. Holowecki (06-1322). This was the only merits decision of the day. Justice Anthony M. Kennedy wrote for the majority; Justice Clarence Thomas dissented, joined by Justice Antonin Scalia.

The ruling concluded that the material submitted in this case did constitute a “charge.” The Age Discrimination in Employment Act — the anti-bias law at issue in the specific case — requires a worker to file a timely charge of bias with EEOC before bringing a lawsuit to pursue the claim. The charge must be filed within 180 days after the act of discrimination occurred, unless the state where the incident arose has its own age bias law, in which case the time limit is 300 days. Theworker must wait 60 days after filing a charge before suing in court.

The specific case involved a group of employees of Federal Express Corp.l, the delivery comapny, claiming that the company engaged in discrimination againstw its older employees. One worker filed an intake questionnaire at EEOC making he claim, but did not treat it as if it were a formal charge. EEOC did not treat it as the filing of a charge, and did not start an investigation. Wednesday’s ruling, however, concluded that the worker in filing the paper at EEOC had come close enough to EEOC’s filing requirements to constitute a “charge” under ADEA.

At the close of the Court’s opinion, after making some mild criticism of EEOC for the way it handled its charge-filing process, Justice Kennedy suggested that “to reduce the risk of further misunderstandings by those who seek its assistance, the agency should determine, in the first instance, what additional revisions in its forms and processes are necessary or appropriate.”