Keywords: employment, Age Discrimination in Employment Act (ADEA)
Update: see below Subsequent Legal Developments.
This case, argued before the U.S. Supreme Court on November 6, 2007 and decided on February 27, 2008, addressed what is a proper filing of an employment discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”) under the Age Discrimination in Employment Act (“ADEA”). Because similar procedures apply for filing employment discrimination complaints under the ADA and the Civil Rights Act, the disability community has monitored this case for its possible impact on the ADA Title I complaint process. Nonetheless, the enforcement mechanisms and statutory waiting periods for ADEA claims do differ from the ADA. In this decision, the Supreme Court narrowly construed—or specifically stated—that the decision should only apply to the ADEA, and was not to be a precedent for ADA Title I or Civil Rights Act Title VII cases.
Current and former Federal Express (“FedEx”) courier employees, all at least 40 years of age, sued their employer for engaging in employment practices and procedures that discriminated on the basis of age in violation of the ADEA and the New York State Human Rights Law. They complained that the company’s policies, such as “Best Practice Pays” (BPP) and “Minimum Acceptable Performance Standards” (MAPS), were implemented so as to encourage older employees to leave the company before retirement age.
The plaintiff’s alleged that the BPP and MAPS programs originally were designed to increase performance goals, but later evolved into age discriminatory practices. Specifically, the programs allegedly encouraged supervisors to establish a set number of stops that could be achieved in an hour. Achieving those goals would result in enhanced pay for one pay period. The plaintiffs alleged that soon after goals were established for some of the younger employees they became the minimum number of stops all couriers, both young and old, were expected to make. The plaintiffs said that the amount of stops reasonably achieved by younger couriers were far higher than the rate that could be achieved by an older courier; however older couriers were still required to meet those goals in order to keep their jobs. Failure to meet those goals resulted in disciplinary action, which sometimes included termination and constructive discharge of older couriers when approaching retirement eligibility.
The District Court for the Southern District of New York dismissed the action as time barred because plaintiff Patricia Kennedy did not file an official EEOC charge form 60 days prior to filing her ADEA complaint in federal court. Instead she submitted a questionnaire form and accompanying affidavit to the EEOC, which outlined her complaint, yet contained the same information required by the official form. Furthermore, the court stated that she did not receive a right to sue letter from the EEOC, which is required before filing a district court action.
The plaintiffs appealed and the Second Circuit Court of Appeals reversed the District Court’s decision. The Court of Appeals stated that although the ADEA requires the filing of a timely EEOC charge, the EEOC does not define the term “charge.” The Court of Appeals constructed its own interpretation of “charge” to include Ms. Kennedy’s Intake Questionnaire and attached affidavit. The court indicated this interpretation of an EEOC “charge” fulfills the ADEA’s statutory scheme of providing the EEOC with notice of complaints, thereby giving the EEOC an opportunity to eliminate possible discriminatory practices without court intervention. Specifically, the Court of Appeals held that the questionnaire constituted an EEOC “charge” because (1) the content satisfied the ADEA’s requirements of what must be included in a charge, and (2) the questionnaire demonstrated the plaintiff’s intent to initiate the EEOC’s administrative process.
The Court of Appeals concluded it was irrelevant that the plaintiff’s EEOC charge was not submitted on an official EEOC charge form because her informal method provided the same information required by the ADEA. The required information included an allegation that FedEx violated the ADEA by engaging in actions that discriminated against Ms. Kennedy and other plaintiffs because of their age. Also required, the questionnaire and affidavit constituted a “writing” that named the employer and described alleged discriminatory acts, including the BPP and MAPS programs. Finally, the content of the questionnaire was evidence that Ms. Kennedy intended to activate the administrative process.
Additionally, the Court of Appeals determined that Kennedy’s sole EEOC charge was sufficient to allow the other eleven named plaintiffs, who did not file their own EEOC charges, to satisfy the ADEA’s exhaustion requirement via the “piggybacking” rule. According to that rule, “where one plaintiff has filed a timely EEOC complaint, other non-filing plaintiffs may join in the action if their individual claims aris[e] out of similar discriminatory treatment in the same time frame.”
FedEx appealed to the U.S. Supreme Court, which granted a writ of certiorari to accept the case for review. The parties presented their oral arguments before the Supreme Court on November 6, 2007.
The Supreme Court issued its final ruling on February 27, 2008. In a 7-2 decision, the Majority opinion, written by Justice Kennedy, with Justices Stevens, Souter, Ginsburg, Breyer, Alito, and Chief Justice Roberts concurring, affirmed the Second Circuit Court of Appeals decision. Justices Thomas and Scalia dissented (disagreed with the majority opinion).
The Majority determined that an employee must file “a charge alleging unlawful [age] discrimination” with the EEOC in order to trigger the ADEA’s enforcement mechanisms and statutory waiting periods before a lawsuit can be filed. However, because the EEOC did not define a “charge,” Ms. Kennedy’s questionnaire form and accompanying affidavit to the EEOC could be considered a “charge.” Additionally, the Court stated that a filing could be deemed a “charge” “if the document reasonably [could] be construed to request agency action and appropriate relief on the employee’s behalf.”
The Court held that Ms. Kennedy’s questionnaire contained all necessary information required by the EEOC official charge form. Furthermore, the accompanying six-page affidavit stating, “[p]lease force Federal Express to end their age discrimination plan so we can finish out our careers absent the unfairness and hostile work environment created within their application of Best Practice/High-Velocity Culture Change,” was a sufficient request for the agency to act. The Court added that if Ms. Kennedy had not filed the accompanying affidavit, the questionnaire alone likely would not constitute a charge.
Recent Supreme Court decisions upheld the decision in Holowecki, while stressing the importance of the affidavit. In Morrow v. Metro Transit (2009), Morrow submitted a questionnaire similar to Holowecki. Instead of including an affidavit, however, Morrow attached a paragraph with the relevant facts of the case. The Court in Morrow agreed with Holowecki, that the questionnaire alone would not be enough. The Court here further held that including the paragraph with the relevant facts was also not sufficient, stressing the importance of an affidavit to the Holowecki holding.
The Court in Aly v. Mohegan Council, Boy Scouts of America (2013) also relied on the outcome of Holowecki to determine what constituted a “charging instrument.” The Court in Holowecki determined a charging instrument to be a form that may be reasonably construed as a request for an agency to take action to protect a complainant’s rights, or to settle a dispute. While the questionnaire in Holowecki alone did not satisfy this definition, the questionnaire in Aly referred to the filing employee as a complainant, and included language that reasonably could be inferred as requesting action from the employer. Such language included referring to the form itself as an “employment complaint being filed against the Respondent”. The request for agency action in this case triggers the form to be considered a charging instrument, which allows the form to be sufficient on its own, without an affidavit.
This decision is narrowly applied to the ADEA. Moreover, the Majority opinion recommended that the EEOC make revisions to its charge-filing process to avoid unnecessary future disputes. As such, filing a questionnaire and supporting affidavit, in place of an official charge as Ms. Kennedy did, may be sufficient to qualify as a charge of ADEA discrimination, but it may not be wise to rely on this procedure in light of likely revisions.