Supreme Court to Address Exhaustion and Evidence Issues, as appeared in NJCCA's FOCUS

David W. Garland

As appeared in the NJCCA's FOCUS.

In its new term, the U.S. Supreme Court will consider two important employment law cases.  In one, the Court will decide whether an intake questionnaire and affidavit submitted to the Equal Employment Opportunity Commission ("EEOC") constitute a "charge" of discrimination satisfying the exhaustion requirements of the Age Discrimination in Employment Act ("ADEA").  In the other, the Court will consider whether an age discrimination plaintiff should be permitted to introduce "me, too" testimony of co-workers who also claim that the employer improperly used age as a factor in implementing a reduction in force ("RIF"). 

Exhaustion Under the ADEA

Under the ADEA, an individual must file a charge of discrimination with the EEOC before filing a lawsuit in federal court.  The ADEA dictates when the individual must file the charge and when he or she must then file a lawsuit. 

In Holowecki v. Federal Express Corp., 440 F.3d 558 (2d Cir. 2006), fourteen current and former couriers sued the Federal Express Corporation ("FedEx") for allegedly discriminating against them on the basis of their age in violation of the ADEA.  They alleged that FedEx's policies and practices led to the discharge of a disproportionately high percentage of older couriers.

The Supreme Court will focus on one of the plaintiffs, Patricia Kennedy, who, prior to the filing of the Complaint, filed an intake questionnaire and an affidavit with the EEOC detailing FedEx's alleged discriminatory policies and practices.  The EEOC did not investigate Kennedy's allegations or notify FedEx of the filing, as it routinely does upon receiving a charge.  Kennedy and the other plaintiffs then initiated the federal lawsuit. 

Kennedy later filed an untimely formal charge with the EEOC.

FedEx filed a motion to dismiss Kennedy's claim, arguing that her first submission was not a charge and her second submission was untimely.  The district court agreed and granted the motion.

The Second Circuit reversed, explaining   that the ADEA does not define the term "charge," but the EEOC's regulations set forth the "minimal" amount of information that a charge must contain.  Under the regulations, according to the court, a charge must at least be a writing from (or on behalf of) the person making the charge, that "names the employer and generally describes the allegedly discriminatory acts."

The Second Circuit explained that an important purpose of the "ADEA's statutory scheme" is to provide the EEOC with "an opportunity 'to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of [the ADEA] through informal methods of conciliation, conference, and persuasion.'"  The court further explained, therefore, that a submission to the EEOC does not constitute a charge unless it "demonstrates that an individual seeks to activate the [EEOC's] administrative investigatory and conciliatory process," and is "'of a kind that would convince a reasonable person that the grievant has manifested an intent to activate the Act's machinery.'"

The court indicated that if a submission places the EEOC on notice of alleged discrimination and provides it with an opportunity to contact the prospective defendants and seek conciliation, the individual is "not foreclosed from federal suit merely because the EEOC fails to follow through with notifying the employer and attempting to resolve the matter."  The court concluded that Kennedy's submission satisfied these requirements because it:  (1) contained the information required by the statute and regulations; and (2) communicated her intent to "activate the EEOC's administrative process."

In seeking review by the Supreme Court, FedEx indicated that decisions of the Third and Sixth Circuits have suggested that an intake questionnaire does not constitute a charge for purposes of the ADEA exhaustion requirement, whereas decisions of the Seventh, Eighth and Eleventh Circuits have suggested that an intake questionnaire may constitute a charge. 

"Me, Too" Evidence

In Mendelsohn v. Sprint/United Management Co., 466 F.3d 1223 (10th Cir. 2006), the Tenth Circuit held that the trial court erred in barring an ADEA plaintiff from introducing "me, too" testimony of co-workers who claimed that they had also been discriminated against due to their age. 

Plaintiff Ellen Mendelsohn was laid off from her job with defendant Sprint/United Management Co. ("Sprint") as part of a company-wide RIF.  She was fifty-one years old and alleged that Sprint selected her for discharge because of her age. 

At trial, she sought to introduce testimony of five other employees over forty who were also laid off in the RIF and who also believed that Sprint had discriminated against them based upon their age.  Sprint argued that any reference to alleged discrimination by anyone other than Mendelsohn's supervisor was irrelevant to the issue of whether Mendelsohn's age motivated the supervisor to terminate her.  The district court agreed, ruling that only evidence regarding employees similarly situated to Mendelsohn was admissible. 

According to the court, employees were similarly situated if they shared Mendelsohn's supervisor and were terminated at approximately the same time.  Because none of the other employees whose testimony Mendelsohn wanted to introduce shared her supervisor, their testimony was barred.  The jury returned a verdict for Sprint.
The Tenth Circuit reversed.  According to the court, the excluded evidence was "relevant to Sprint's discriminatory animus toward older workers."  The court explained that because there is seldom direct evidence of an employer's "mental processes," evidence of "the employer's general discriminatory propensities may be relevant and admissible to prove discrimination."

The court distinguished this case from a discriminatory discipline case, in which a plaintiff seeking to establish a supervisor's discriminatory intent may only present evidence that other employees were treated more favorably for the same conduct if those employees and the plaintiff reported to the same supervisor.  According to the court, this "same supervisor" rule is inapplicable where the plaintiff alleges that she was the victim of a company-wide discriminatory RIF.

The court indicated that the testimony of other employees is "logically tied" to Sprint's alleged motive in selecting Mendelsohn for the RIF because Mendelsohn and the other employees:  (1) were all discharged within one year as part of a company-wide RIF; and (2) were members of the protected age group and were selected for the RIF based upon similar criteria.  The court rejected Sprint's argument that the evidence would have unfairly prejudiced the company by requiring it to effectively defend multiple discrimination claims.  Although the court acknowledged that admitting the evidence would "inconvenience" Sprint, it concluded that this fact did not outweigh the probative value.

According to Sprint, the Tenth Circuit decision is contrary to decisions of the Second, Third, Fifth and Sixth Circuits holding that "me, too" evidence should be excluded as not relevant, and decisions of other circuits barring it on the ground that its probative value is outweighed by such concerns as potential prejudice, confusion of the issues and undue delay.

Conclusion

In granting certiorari in Holowecki and Mendelsohn, it appears that the Supreme Court will resolve the uncertainty regarding two significant employment law issues.  Although these are both age discrimination cases, the principles that the Court articulates in deciding them may apply to other types of discrimination cases as well.

This article provides information on recent developments in the law.  It, however, should not be relied on for legal advice in any particular matter.