Federal Express v. Holowecki and age discrimination

This lawsuit, as it reaches the Supreme Court, concerns one sheet of paper. Or, to put it slightly differently, it is about whether a person who has not used the right "form" to express a complaint still can be judged to have expressed her complaint in a legally-recognizable way. That, friends, is all this case is about. The question more specifically is, 'Was the plaintiff (Kennedy in this case) required to use Equal Employment Opportunity Commission ("EEOC") Form 5 to file a "charge of discrimination" against Federal Express with the EEOC or was it sufficient to file a "Form 283" ("Intake Questionnaire") accompanied by an affidavit which might have substantially fulfilled the requirements for the content of Form 5 as spelled out in the Federal Regulations? Let's dig a little deeper now.

Important Facts

This case is about Federal Express ("FE") drivers (called "couriers" by FE), those people with cute shorts that scurry around in a friendly manner and pick up and deliver packages every day. Well, these drivers alleged age discrimination by FE. They allege that their managers kept requiring them to deliver more and more packages in a specified time, thus making it more and more difficult for people over 40 to complete the job on time. Thus, they are "constructively terminated" because they can't sprint from one delivery to the next as quickly as a 20-something. So, Ms. Kennedy, one of the over-40 crowd and a resident of FL, was mad as hell and wasn't going to take this anymore. She filed an EEOC Intake Questionnaire (Form 283) and affidavit in Dec. 2001 complaining about her situation. Then, in April 2002 she filed a lawsuit in federal court alleging age discrimination (under 29 USC sec. 621 et seq.). Finally, in May 2002 she filed the EEOC charge form. The question is whether, under the law, she did things correctly. What, you ask, does the law say?

The Age Discrimination in Employment Act ("ADEA")

The only thing we need to know about the ADEA for this case is the time and form-filing requirements. The law lays them out in sec. 626(d). It provides:

"No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the EEOC...."

Now the issues are crystallizing nicely, in a bite-sized chunk that will provide a meal for the Supreme Court. The question is really quite simple. Since a civil action must await 60 days after the filing of the charge, the only way that Kennedy's lawsuit can go forward in this case is if her "Intake Questionnaire" of Dec. 2001 is constructively considered a "charge of discrimination." Her official "charge" wasn't filed until a month after the filing of the lawsuit, and even a clever lawyer can't show that something filed after a complaint was filed occurred more than 60 days before the same complaint was filed.

Before moving to how the lower court handled this issue, it might be helpful to consider the policy reasons behind the "60 day" rule in the statute. The law goes on to provide, in the same section:

"Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persusasion."

So, now we have it. The "charge" is important, from a statutory perspective, so that the EEOC can notify the allegedly offending employer and seek to work out some reconciliation. The statute doesn't say whether they hope to be able to sing "Kum Ba Yah" together as a result: maybe that is in the regulations.

In fact, when the EEOC receives Form 283 (which Kennedy submitted here in Dec. 2001), it doesn't consider it as a "charge of discrimination." It only considers it an "internal" document, a sort of "pre-charge" filing which the agency can use to consult with the aggrieved person to see if, in fact, s/he wants to go through with the case. But nowhere in the rules does it explicity say that you have to use Form 5, which is titled "Charge of Discrimination" in order to file a charge of discrimination. So, we have our problem.

The Decision Below--and Conclusion

The case was filed by Kennedy and 13 other claimaints in the Southern District of NY in April 2002. The District Court dismissed Ms. Kennedy's case as untimely filed, but the 2nd Circuit panel reversed (440 F3d 558 (2006)). According to the 2nd Circuit, the intake questionnaire could be treated as a charge by the EEOC, even though the EEOC didn't consider it such (the EEOC neither contacted FE nor started the conciliation process). What was significant for the Circuit was Kennedy's "manifest intent" in submitting the intake questionnaire. Applying this test, the court had little difficulty concluding that it constituted a "charge." Why? Well its "forceful tone and content" showed that it was Kennedy's "intent to activate the EEOC administrative process."

Thus, the Supreme Court has a pretty straightforward case before it on whether a form not the prescribed form (the prescription to use Form 5 is in an EEOC manual, and not in the Federal Regulations) might be acceptable to fufill the requirements of the law in sec. 626(d). I wouldn't count on the Supreme Court to be overly generous here. It is, in general, not a "bend-over-backwards-for-plaintiffs" Court.

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