Issues
Whether filing an “Intake Questionnaire” with the Equal Employment Opportunity Commission (“EEOC”) alleging illegal age discrimination under the Age Discrimination in Employment Act has the same legal effect as filing the EEOC’s form titled “Charge of Discrimination.”
Oral argument:
November 6, 2007
In 2001, Patricia Kennedy filed an “intake questionnaire” with the Equal Employment Opportunity Commission (“EEOC”) alleging age discrimination by her employer, Federal Express Corporation (“FedEx”), against her and other couriers. Because she did not file a formal “charge” document, the EEOC did not notify FedEx, investigate the claims, or begin conciliation efforts. Five months later, Kennedy, along with thirteen other past and present FedEx couriers over the age of forty, filed suit over this issue in federal court. The trial court granted FedEx’s motion to dismiss, ruling (among other things) that Kennedy could not sue because she never filed a timely charge with the EEOC as required by the Age Discrimination in Employment Act (“ADEA”). The U.S. Court of Appeals for the Second Circuit reversed, holding that Kennedy’s intake questionnaire is a “charge” for the ADEA’s purpose because it manifests her intent to activate the EEOC’s investigation and conciliation process.
Questions as Framed for the Court by the Parties
Whether the Second Circuit erred in concluding, contrary to the law of several other circuits and implicating an issue this Court has examined but not yet decided, that an "intake questionnaire" submitted to the Equal Employment Opportunity Commission ("EEOC") may suffice for the charge of discrimination that must be submitted pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.
Facts
The Federal Express Corporation (“FedEx”) engages in the business of package transportation and delivery. Brief in Opposition to the Petition for Writ of Certiorari at 1. FedEx implemented new employee policies in 1994 and 1995. Holowecki v. Federal Express Corp., 440 F.3d 558, 562 (2d Cir. 2006). One of the policies required supervisors and couriers to set goals for the number of deliveries on each route. Id. Initially, couriers who met the goals received bonuses. Id. The Holowecki plaintiffs allege, however, that FedEx began using the goals as benchmarks and disproportionately disciplined older couriers who failed to meet them. Id. The plaintiffs allege that through such practices, FedEx discriminated by age and unfairly terminated older couriers. Id.
Seeking a remedy, three of the plaintiffs turned to the Equal Employment Opportunity Commission (“EEOC”). See id. at 561, 563-64. The Age Discrimination in Employment Act of 1967 (“ADEA”) empowers the EEOC to investigate claims of age-based employment discrimination. See 29 U.S.C. § 626(a). To invoke ADEA protection, a worker must file a “charge” of age discrimination with the EEOC. § 626(d). If state law also prohibits age discrimination, the worker must file the charge no later than 300 days after the unlawful discrimination occurred. See id. If the claim is not resolved by the EEOC to the worker’s satisfaction, at least sixty days must pass after filing the charge before the worker may sue in federal court. Id. Alternatively, those who have not filed a charge with the EEOC may join a lawsuit (“piggyback”) with a plaintiff who had filed a timely charge alleging similar discrimination around the same general time. Holowecki, 440 F.3d at 564 (citing Snellv.SuffolkCounty, 782 F.2d 1094, 1100 (2d Cir. 1986)).
Plaintiffs Kevin McQuillan and George Robertson filed formal charges of discrimination (EEOC Form 5) with the EEOC in 1998 and 2000, respectively. Id. at 564. Plaintiff Patricia Kennedy filed an “intake questionnaire” and an affidavit with the EEOC in 2001, also alleging discrimination. Id. at 563. The EEOC did not notify FedEx of Kennedy’s filing, investigate the claims, or begin conciliation efforts, all required procedures for a charge. Brief for Petitioner at 5.
In April 2002, Kennedy, McQuillan, Robertson, and eleven other past and present FedEx couriers sued FedEx in the U.S. District Court for the Southern District of New York. Holowecki, 440F.3d at 561-62. All plaintiffs were at least forty years of age and accused FedEx of violating the ADEA and state law. Id.The trial court granted FedEx’s motion to dismiss, ruling that none of the plaintiffs had filed a timely charge with the EEOC and thus were ineligible for ADEA protection. Seeid. at 561. The court reasoned that at the time the lawsuit was filed plaintiff Kennedy had filed only an intake questionnaire with the EEOC, not a formal charge, and that her subsequent filing of a charge was untimely as well. Id.at 563. Although plaintiffs McQuillan and Robertson had filed formal charges, the filings were more than 300 days after the policies in question took effect, which the court ruled was too late. Id.at 561. The court further held that because none of the charges filed were timely, the remaining plaintiffs could not sue on the basis of the piggyback rule. See Holowecki v. Federal Express Corp., 2002 WL 31260266, *4 (S.D.N.Y. 2002), rev’d in part, vacated in part, 440F.3d 558 (2d Cir. 2006).
The U.S. Court of Appeals for the Second Circuit reinstated the complaint. Holowecki, 440 F.3d at 570. The court ruled that Kennedy’s intake questionnaire and affidavit constituted a charge under the ADEA and that the piggyback rule allowed the remaining plaintiffs to join Kennedy’s lawsuit. Id. at 561, 566-69. The court also held that McQuillan and Robertson had filed timely charges because they filed those charges less than 300 days after the allegedly unlawful practices personally affected them. Id. at 561, 569-70. FedEx appealed to the Supreme Court of the United States, which granted certiorari on June 4, 2007. Supreme Court Order List: 551 U.S. (June 4, 2007). FedEx seeks review only of whether plaintiff Kennedy’s intake questionnaire constitutes a charge. Brief for Petitioner at i.
Analysis
The Supreme Court will hear arguments regarding what constitutes a charge under the Age Discrimination in Employment Act (“ADEA”) and thus what steps a plaintiff must take to administratively resolve a complaint about age discrimination prior to filing a lawsuit in federal court. Under the ADEA, judges may only accept ADEA lawsuits from workers who have filed a “charge” with the EEOC at least 60 days prior to commencing the lawsuit. See 29 U.S.C. § 626(d). In examining the issue of whether a court should define a charge by a filed writing’s content rather than by the use of a certain form, the Supreme Court will decide an issue it has encountered before but never decided. See, e.g., Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007); see alsoLove v. Pullman Co., 404 U.S. 522 (1972).
Five months before her lawsuit, plaintiff Kennedy filed an “intake questionnaire” with the EEOC containing written allegations of age discrimination by her employer, Federal Express Corporation (“FedEx”). Holowecki v. Federal Express Corp., 440 F.3d 558, 563 (2d Cir. 2006). Because the EEOC did not resolve her complaint, Kennedy (along with thirteen other past and present FedEx couriers) brought a lawsuit in the U.S. District Court for the Southern District of New York. See id., 440 F.3d at 561-62. The court dismissed her suit for failure to file a timely charge because she had not filed the EEOC’s “Charge of Discrimination” Form 5 sixty days before her lawsuit. Holowecki, 440F.3d at 563. On appeal, the Second Circuit reversed on that issue, holding that her intake questionnaire was a charge even though it was not on Form 5. Id. at 561, 566-69. It applied the “manifest intent” test, ruling that Kennedy’s intake questionnaire constituted a charge because its tone and content clearly displayed the intent to have the EEOC begin its investigatory and conciliatory processes . Id. at 566-568.
Did Plaintiff Kennedy's Intake File a Charge with the EEOC before this Lawsuit?
According to FedEx, Kennedy never filed a charge before this lawsuit because she failed to submit Form 5, the formal charge document. Brief for Petitioner at 6, 28 fn. 12. In FedEx’s view, the ADEA defines a charge by what it does. See id. at 11. Though Kennedy submitted written allegations of discrimination by FedEx, her submission did not actually start the EEOC’s investigatory process. See id. at 6. FedEx reasons that the intent of a charge is to avoid lawsuits by resolving complaints through an informal process, and allowing an intake questionnaire that does not start such a process to count as a charge defeats that purpose. Id. at 12-15, 17-18. Therefore they argue that an intake questionnaire cannot be a charge. Id.
Indeed, the statute requires the EEOC notify all prospective defendants and seek to eliminate any unlawful discrimination by informal conciliation. See 29 U.S.C. § 626(d). FedEx argues that through such requirements, Congress intended to strike a careful balance between the needs of workers and employers and the recognized drawbacks to formal litigation. See Brief for Petitioner at 13. In other words, Congress did not intend for the EEOC to act merely as a “ticket taker” on the way to court; Congress intended for the EEOC to have a mandatory role in warning employers of potential lawsuits. Brief of Amicus Curiae Chamber of Commerce at 2. In FedEx’s view, to conclude that Kennedy filed a charge when the EEOC did not notify the company of Kennedy’s allegations or pursue informal methods of conciliation, would unlawfully deprive the company of an opportunity to address Kennedy’s concerns outside of court. See Brief for Petitioner at 17.
The Holowecki plaintiffs disagree with the significance FedEx places on the EEOC’s inaction. They argue that workers do not lose their right to sue when the EEOC fails to investigate their charges of discrimination. See Brief for Respondent at 24. Notably, the plaintiffs have the support of the U.S. government, including the EEOC, which in an amicus brief now contends that the intake questionnaire was a charge under the ADEA, despite the EEOC’s inaction. See Brief ofAmicus Curiae United States at 6.
The Holowecki plaintiffs argue that Kennedy’s intake questionnaire met the legal requirements for a charge of discrimination laid out in the statute and in agency regulations. Brief for Respondent at 31-38. The ADEA requires “a charge alleging unlawful discrimination,” but never explicitly defines the term “charge.” See id. at 15. The Code of Federal Regulations (“C.F.R.”), which translates laws into more concrete administrative rules, never requires special forms for charges. See 29 C.F.R. § 1626.6. The relevant regulation simply states that “[a] charge shall be in writing and shall name the prospective respondent and shall generally allege the discriminatory act(s).” Id. The Holowecki plaintiffs argue that since Kennedy filed written allegations of age discrimination by FedEx, she met the requirements of the ADEA and C.F.R. for filing a charge. See Brief for Respondent at 15.
Did the Second Circuit Properly Apply the “Manifest Intent” Test in Ruling for the Plaintiffs?
FedEx also argues that courts should not apply the manifest intent test in such cases. Brief for Petitionerat 10, 29-31. It argues that the test is unworkable because the point at which the tone of an intake questionnaire is forceful enough to constitute a charge is subjective. Id. at 31.Additionally, it asserts that the manifest intent test allows plaintiffs to bypass the EEOC to litigate as soon as possible by intentionally wording an intake questionnaire so that EEOC would not activate it administrative process. Id. at 10, 29-30.
Alternatively, FedEx argues that if the manifest intent test is applied, it should require that the worker reasonably believed she had initiated the EEOC’s investigatory process. See Brief for Petitioner at 30. Given this requirement, Kennedy would need to show that she reasonably believed that upon receiving her intake questionnaire, the EEOC would notify FedEx of her complaint and begin its informal resolution methods. See id. To prove reasonable belief, for example, Kennedy could show that EEOC officials misled her into thinking that the EEOC would consider her intake questionnaire a charge. See id.
The Holowecki plaintiffs adhere to their position below and also argue that the manifest intent test should not be applied. Brief for Respondent at 41-42. In their view, the manifest intent test is superfluous because Kennedy’s submission fulfilled the statutory specifications of a charge. See Brief for Respondent at 41. Nevertheless, the plaintiffs tacitly agree that the Second Circuit properly applied the test, given that court’s concern that most intake questionnaires should not qualify as charges. See id. at 42. They point out, however, that FedEx urged the application of the manifest intent test in the court below and has now changed its position. Id.
Discussion
This case weighs a worker’s interest in being able to sue over employment discrimination against an employer’s desire to avoid costly investigation of claims that workers will not pursue. The Age Discrimination in Employment Act (“ADEA”) requires a prospective plaintiff to file a “charge” of employment discrimination with the Equal Employment Opportunity Commission (“EEOC”) and then wait sixty days before she may file a lawsuit in federal court on the matter. 29 U.S.C. § 626(d). In this case, the U.S. District Court for the Southern District of New York held that plaintiff Kennedy did not file a timely charge because she filed an “intake questionnaire” rather than the form the EEOC considers a charge. Holowecki v. Federal Express Corp., 440 F.3d 558, 563 (2d Cir. 2006). On appeal, the U.S. Court of Appeals for the Second Circuit overruled the lower court, holding that Kennedy’s questionnaire is a charge because its tone and content made it clear that she meant it as one. Id.at 568.
The Holowecki plaintiffs argue that Kennedy’s questionnaire is a charge whether or not the EEOC considered it one because it fulfills all of the requirements under the relevant agency regulations. Brief for Respondent at 31-38. They argue that the court should not punish the plaintiffs for the EEOC’s mistake. Id. FedEx, however, asserts that only a form treated as a charge by the EEOC is a charge under the ADEA. See Brief for Petitioner at 11-12. It reasons that the intent of a charge is to avoid lawsuits by resolving discrimination complaints through the EEOC’s informal process, and allowing any form that does not start that process (such as an intake questionnaire) to count as a charge defeats the purpose. Id. at 12-15, 17-18. The Holowecki plaintiffs counter that even if it is not a charge, the courts should not dismiss discrimination cases on such technical grounds. Brief for Respondentat 18-19, 25-28. As the Supreme Court stated in Love v. Pullman Co., “[s]uch technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.” Id. at 32, quoting 404 U.S. 522, 619 (1972).
If the Supreme Court rules in favor of FedEx, the burden would be on the worker to understand the law and act accordingly when pursuing a discrimination claim. This could cause courts to dismiss lawsuits over legitimate claims of discrimination. That would deny justice to workers who have unfairly and illegally lost their jobs, lost wages, or otherwise suffered harm. See Brief Amici Curiae of AARP et al. at 4-5. Arguably, however, if a worker hires an attorney to bring such a lawsuit, the attorney, if knowledgeable, could avoid this situation by informing the worker of the appropriate process and then waiting sixty days after the worker files the appropriate EEOC paperwork before commencing the suit (assuming, of course, that the statute of limitations for filing a charge had not already run).
A decision in favor of the plaintiffs may compel the EEOC to begin its administrative process upon receiving any intake questionnaire. Brief for Petitioner at 16-17, 22. That could significantly increase the workload of the EEOC when it already has a backlog of charges. Id. at 16-19. This also burdens employers by forcing them to respond to frivolous claims that EEOC officials would have avoided through its intake questionnaire screening and prioritization process. Id. at 17-18. As the U.S. Chamber of Commerce points out, it may also compel the EEOC to begin its process for any submitted writing or phone call to the EEOC that demonstrates a worker’s intent to initiate an investigation of discrimination, further increasing those burdens. See Brief for the Chamber of Commerce of the United States as Amicus for Petitioner, at 17.
Should the EEOC fail to investigate such claims, litigation could increase because courts may dismiss fewer cases for failure to file a timely charge. Brief for Petitioner at 16. Such lawsuits are expensive, take longer than the EEOC process, and may unfairly damage an employer’s reputation. Id. at 16-17. Additionally, that ruling could allow a worker who has filed only an intake questionnaire (even if filed long before this ruling) to avoid the time limitation on a lawsuit, potentially putting employers at risk of lawsuits at any time over claims for which they have had no previous notice. See id. at 18-21. Workers could file such lawsuits years after the discriminatory act — after related records have been destroyed, memories have faded, and witnesses have moved or died. Id. at 9, 18-20. Such a delay may deprive the employer of the notice necessary to correct discriminatory practices at an earlier date, which harms workers as well as employers. Id. at 9, 20.
Conclusion
This case demonstrates the conflict between workers, employers, and the EEOC. Employers and the EEOC want to avoid dedication of resources to resolving employment discrimination claims that workers will not pursue. Workers with such claims want the ability to pursue them even if there is a misunderstanding of the procedure required to do so. If the Supreme Court rules in favor of FedEx, the burden would be on the worker to understand the law and act accordingly when pursuing an employment discrimination claim. A decision in favor of the Holowecki plaintiffs would obligate the EEOC to begin its administrative process upon receiving a substantially complete intake questionnaire rather than waiting for the worker to complete official charge paperwork and would place the greater burden on the employer.Written by:
Michael Litvin
Suzanne Cook
Edited by: Cecelia Sander