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The U.S. Supreme Court has a busy employment law docket this term, with at least six important cases to be decided before the court recesses in late June. The first two employment decisions were issued last month, addressing important practical issues for lawyers both at the beginning and the end of a case’s litigation life. What is a Charge? In Federal Express Corp. v. Holowecki, 2008 WESTLAW 508018 (2008), the court gave guidance in determining what documents, filed with the Equal Employment Opportunity Commission, constitute a charge of discrimination. Under the Age Discrimination in Employment Act, Title VII and the Americans with Disabilities Act, an individual cannot bring suit in federal court until he or she has filed a charge alleging discrimination with the Equal Employment Opportunity Commission. The statutory purpose of the charge is to notify the person charged with discrimination of the claim and to permit the EEOC to investigate and potentially conciliate the claim. While the length of time the commission must consider a charge varies between the statutes, the underlying requirement of a charge is consistent. In Holowecki, Patricia Kennedy, one of 14 proposed plaintiffs alleging age discrimination against Federal Express, did not file her charge with the EEOC until after litigation had begun. However, prior to initiating suit, she submitted an intake questionnaire, along with a six-page affidavit detailing Federal Express’ alleged discriminatory practices. The intake questionnaire is a form prepared by the commission asking a series of questions to a complaining party. These questions often form the basis for a charge, but the questionnaire usually is not transmitted to the party against whom the allegations are made. In Holowecki, the EEOC did not treat Kennedy’s documents as sufficient to initiate a charge and did not notify Federal Express that Kennedy had contacted the commission, much less that she had sought to initiate action. As such, the district court dismissed Kennedy’s lawsuit for failure to comply with the ADEA’s charge-filing requirements. The 2nd U.S. Circuit Court of Appeals reversed, and the Supreme Court accepted the case. Varying Positions The court considered varying positions with respect to the global question: “What constitutes a charge?” Federal Express’ position was that only the EEOC’s charge form could constitute a charge, as defined by the statute. Kennedy, on the other hand, claimed that any document filed with the commission that identified the party against whom the allegations were made, along with a statement of the alleged discrimination, was sufficient to satisfy this statute. The commission’s position, while closer to that of Kennedy, required a bit more. Specifically, the commission, in an amicus brief to the court, argued that any document including the name of the employer, an allegation of discrimination and, most importantly, a statement that could reasonably be construed as a request for the agency to take remedial action, would be acceptable. This was based upon the commission’s interpretive statements, which the court found were entitled to a “measure of respect,” but not full “deference” under the prevailing standard. Intent to Seek Relief The court accepted the EEOC’s standard on the grounds that “documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee’s rights and statutory remedies.” The court found that, at this early stage of proceedings, an employee’s filings should be viewed permissively so as to encourage the employee(s) to go directly to the commission, rather than hiring lawyers. The court found that Kennedy’s filing met the court’s (and the commission’s) standard, not based upon the intake questionnaire alone, but upon the final sentence of her affidavit, which requested that the commission “please force Federal Express to end the age discrimination plan. …” The court found that this was “probably construed as a request for the agency to act” which, in turn, was sufficient to convert the pre-charge documents into an actionable charge. In should be noted that Kennedy filed her questionnaire in 2001 and that the commission has since modified the form to include a question prompting a request for action. While litigation without a preceding charge is rare, the more common situation is where a charge is filed more than 300 days after the act of discrimination, making the charge facially untimely. Often times, however, a review of the commission’s file will reveal that the complainant submitted an intake questionnaire within the 300 day period. While employers, and their counsel, will continue to question an untimely charge, the Holowecki decision will make it easier for complainants to argue that the intake questionnaire was sufficient to initiate action within the necessary time period. Should a charge be filed timely and a case proceeds through discovery to trial, the court’s other recent decision may give some guidance to admissible evidence. In Sprint/United Management Co. v. Mendelsohn, 2008 WESTLAW 495370 (2008), the court addressed the admissibility of so-called “me too” evidence. Specifically, in Sprint/United, the trial court issued an evidentiary order stating that “plaintiff may offer any evidence of discrimination against Sprint employees who are similarly situated to her. ‘Similarly situated’ employees, for the purpose of this ruling, requires proof that (1) [the allegedly discriminating supervisor] was the decision-maker in any adverse employment action; and (2) temporal proximity.” No Per Se Rule While this order would seem to have been routine, it prohibited Mendelsohn from submitting proposed evidence that fellow employees, working in different parts of the company and having no relation to her decision, also believed that they had been subject to discrimination. The court, in a unanimous opinion, declined to issue a per se rule that such evidence was admissible or not. Rather, the court found that “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.” The court went on to note that the federal rules require a fact-intensive, context-specific inquiry. On its face, the Sprint/United decision gives little guidance to litigants and their counsel. It is significant, however, because the court refused to exclude seemingly disparate allegations of discrimination across-the-board. Rather, courts will at least need to consider such evidence for relevance to the issue in question on a case-by-case basis. Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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