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									                  Federal Express Corp. v. Holowecki
                                 NO. 06-1322, 2008 WL 508018
                        SUPREME COURT OF THE UNITED STATES
                                FEBRUARY 27, 2008


OVERVIEW: 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 (i.e., specifically stated the decision should only
apply) to the ADEA, and not be precedent for ADA Title I or Civil Rights Act Title VII
cases.

FACTS OF THE CASE: 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.

CASE HISTORY: 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.

   Prepared by the legal research staff of the Burton Blatt Institute (BBI): Centers of Innovation on
   Disability at Syracuse University (http://bbi.syr.edu/) for the DBTAC: Southeast ADA Center
   (Southeast DBTAC) (http://www.sedbtac.org/). This document does not provide legal advice. If
   you have further questions about the issues of this case that relate to you, please consult an
   attorney licensed in your state.
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.

ISSUE IN THE CASE:              Whether the plaintiff‟s questionnaire and affidavit
constituted an EEOC “charge” under the ADEA.

ORAL ARGUMENTS: FedEx argued for dismissal of the plaintiff‟s lawsuit, and
that the plaintiffs must fill out a formal charge form with the EEOC and wait 60 days
before filing a suit in federal court. Additionally, FedEx argued that once the EEOC

   Prepared by the legal research staff of the Burton Blatt Institute (BBI): Centers of Innovation on
   Disability at Syracuse University (http://bbi.syr.edu/) for the DBTAC: Southeast ADA Center
   (Southeast DBTAC) (http://www.sedbtac.org/). This document does not provide legal advice. If
   you have further questions about the issues of this case that relate to you, please consult an
   attorney licensed in your state.
charge is filed then FedEx will be put on notice as required by the ADEA, thereby giving
them time to find resolution with the plaintiffs before a lawsuit is filed. FedEx argued this
procedure is more effective than conciliation after lawyers are involved and a lawsuit is
pending.

Chief Justice Roberts and Justices Souter, Ginsburg, Scalia and Breyer seemed confused
by these suggestions, stating that it was unfair and inefficient to dismiss the case, require
the plaintiffs pay a new filing fee, and docket the lawsuit a second time after another 60
days. The Justices admitted it was somewhat unfair to FedEx that the EEOC did not put
them on notice. However, they suggested it may be more unfair to make the plaintiffs pay
for EEOC‟s mistake of not putting FedEx on notice by dismissing their case.

Instead of dismissing the case altogether, some of the Justices suggested that perhaps the
plaintiffs should be granted a stay (i.e., a court order to suspend all or part of a judicial
proceeding), or the lawsuit should be dismissed „without prejudice‟ (so the claims can be
re-filed). FedEx agreed to the proposal of dismissal without prejudice.

Supreme Court Decision: 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.

Policy & Practice: 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


   Prepared by the legal research staff of the Burton Blatt Institute (BBI): Centers of Innovation on
   Disability at Syracuse University (http://bbi.syr.edu/) for the DBTAC: Southeast ADA Center
   (Southeast DBTAC) (http://www.sedbtac.org/). This document does not provide legal advice. If
   you have further questions about the issues of this case that relate to you, please consult an
   attorney licensed in your state.
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.

LINKS:
February 27, 2008 Supreme Court Opinion:
http://www.supremecourtus.gov/opinions/07pdf/06-1322.pdf

November 6, 2007 Supreme Court Oral Argument Transcript:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-1322.pdf

Second Circuit Court of Appeals Opinion:
http://www.ceridian.com/www/content/10/12487/14743/14750/fedexcase.pdf




   Prepared by the legal research staff of the Burton Blatt Institute (BBI): Centers of Innovation on
   Disability at Syracuse University (http://bbi.syr.edu/) for the DBTAC: Southeast ADA Center
   (Southeast DBTAC) (http://www.sedbtac.org/). This document does not provide legal advice. If
   you have further questions about the issues of this case that relate to you, please consult an
   attorney licensed in your state.

								
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