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The U.S. Supreme Court on Feb. 26 and Feb. 27 issued the following opinions: • The justices ruled, 7-2, that a group of former and current Federal Express employees met the requirements for suing a company under the Age Discrimination in Employment Act (ADEA). Federal Express Corp. v. Holowecki, No. 06-1322. Employees who claim job discrimination should not suffer because of mistakes made by the Equal Employment Opportunity Commission, Justice Anthony M. Kennedy said on behalf of the court. The EEOC had failed to notify FedEx that 14 employees had filed a complaint. Companies must be told about complaints before discrimination lawsuits can be filed. The EEOC acknowledged it erred in this case. The ADEA requires plaintiffs to file an age discrimination complaint with the EEOC and wait 60 days before they sue an employer. The law is intended to give the EEOC the opportunity to notify the company accused of discrimination, investigate the charges and seek to resolve them before a suit is filed. FedEx courier Patricia Kennedy filed an intake questionnaire with the EEOC in December 2001 that included the information necessary to comply with that law. A New York federal court dismissed the case, but the 2d Circuit ruled that the case should be allowed to proceed. The justices affirmed, saying that though the EEOC had failed to notify FedEx about the allegations, the plaintiffs should not be penalized because of the agency’s mistake. The EEOC “acted within its authority in formulating the rule that a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee’s behalf” and that the EEOC’s “determination is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces.” Here, because of the EEOC’s failure to treat the employee’s filing as a charge in the first instance, both sides lost the benefits of the ADEA’s informal dispute resolution process. Chief Justice John G. Roberts Jr. and justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, Stephen G. Breyer and Samuel A. Alito Jr. joined Kennedy. Justice Clarence Thomas’ dissent was joined by Justice Antonin Scalia. • The justices ruled unanimously that testimony from workers who suffered job bias but were not parties to a federal age discrimination case “is neither per se admissible nor per se inadmissible” under the Federal Rules of Evidence. Sprint/United Management Co. v. Mendelsohn, No. 06-1221. Sprint let Ellen Mendelsohn go in 2002 amid companywide layoffs that eventually numbered more than 14,000. Mendelsohn, a 51-year-old midlevel manager, sued in a Kansas federal court under the Age Discrimination in Employment Act. The jury ruled against Mendelsohn after a judge excluded the testimony of five ex-employees from other departments at Sprint who claimed they had been released because of their age. Lawyers refer to such testimony as “me too” evidence. The 10th Circuit sent the case back for a new trial, saying that, by not being able to present testimony of other employees, Mendelsohn had been deprived of a full opportunity to present her ADEA case. The justices vacated, but said they could not determine whether the trial judge’s decision was correct. “The question whether evidence of discrimination by other supervisors is relevant . . . is fact-based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances,” Thomas said for the court. The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact-based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case, Thomas said. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry.

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