Alaska Employment Law

Jump to Comments

The author reviews the Supreme Court’s docket for the October 2007 ELS Meeting

Introduction

The United States Supreme Court’s 2007-08 Term opens on October 1, 2007 (the “First Monday in October”).  From 2000 to 2005, the Court reviewed an average of seven Labor and Employment cases each Term.  Last year, however, the Court accepted only two Labor and Employment cases.  Cases for the upcoming Term are returning to a more normal range with certiorari issued to review five cases, four of which concern some issue under the Age Discrimination in Employment Act.  This summary briefly reviews the Labor and Employment cases under review this Term.

Sprint/United Management Co. v. Mendelsohn   Mendelsohn filed an age discrimination claim after she was laid off during a reduction in force.  She sought to introduce evidence that other employees had also experienced age discrimination.  However, these other employees had little or nothing in common with her claim.  In particular, they had worked for different supervisors and there were no common decision-makers.  The district court excluded this evidence of “me too” employees because the employees in question had not been discriminated against by the same supervisor.  The Tenth Circuit reversed on 2-1 split.  The majority concluded that the evidence had some probative value because it could conceivably reflect a company-wide pattern of discrimination.  The dissent objected that the district court’s ruling was no different than any other evidentiary ruling reviewed for an abuse of discretion, and although different judges could have reached different conclusions on the admissibility of the proffered evidence, no one could categorically state that the district court abused its discretion.  The dissent further disagreed with the majority by observing that the proffered evidence concerned only five other employees, scarcely evidence of a company-wide pattern of discrimination given Sprint’s size, and that the actual evidence being offered was generalized and non-specific.

Federal Express Corp. v. Holowecki   Paul Holewecki, Patricia Kennedy, and 12 other FedEx courier drivers filed suit for age discrimination.  The ADEA has a unique partial exhaustion system.  An administrative charge must be filed with the EEOC at least 60 days before filing suit in court (the plaintiff need not wait for a right-to-sue letter, in other words, as is the case with Title VII charges).  Kennedy submitted her intake questionnaire on December 3, 2001.  She filed suit on April 30, 2002.  A month later, on May 30, 2002, she filed a charge with the EEOC.  The EEOC never acted on Kennedy’s intake questionnaire, and no notice was ever given to FedEx that a “charge” had been filed based on that questionnaire.  Eleven other plaintiffs “piggybacked” on Kennedy’s charge.  The Second Circuit allows plaintiffs who do not file a timely charge to piggyback on a timely filed charge if the piggybacked allegations arise out of similar discriminatory acts occurring around the same time as those underlying the timely filed charge, and if the timely filed charge includes allegations that other individuals also have claims. The district court ruled that Kennedy’s complaint was time-barred because she had not filed a charge at least 60 days before filing suit.  The Second Circuit reversed.  The court noted that a “charge” existed if a written submission reflected an “individual’s intent to have the agency initiate its investigatory and conciliatory processes.”  The court concluded that Kennedy’s intake questionnaire satisfied this test because it was accompanied by an affidavit that specified the allegedly discriminatory acts.  The court recognized that the EEOC did not treat the intake questionnaire as being a “charge,” but held it would be unfair to penalize Kennedy for the EEOC’s failure to properly process her claim.  

Gomez-Perez v. Potter    Gomez-Perez, a federal worker employed by the USPS, filed suit alleging a retaliation claim under the ADEA.  The district court dismissed, concluding that ADEA’s federal employee provision did not include any prohibition against retaliation, and that therefore no such claim existed.  The First Circuit affirmed.  In doing so, the court rejected a contrary result reached by the D.C. Circuit and implied by results from the Second and Fourth Circuits.

CBOCS West, Inc. v. Humphries   Humphries worked for a Cracker Barrel restaurant in Illinois.  He filed suit under § 1981 alleging retaliation because he had complained about allegedly discriminatory employment decisions.  Clarifying existing intra-circuit precedent, the Seventh Circuit held that retaliation claims were cognizable even though not specifically identified by the statute.  Seven other circuits, including the Ninth, have reached the same result as the Seventh Circuit.

Kentucky Retirement Systems v. EEOC  Kentucky has a public employee retirement plan that has normal and disability retirement benefits. An employee eligible for normal retirement benefits is not eligible for disability retirement benefits.  Eligibility for normal retirement benefits is a combination of age and minimum service requirements.  Thus, age is an indirect factor in determining benefits.  The EEOC filed suit alleging that the policy denied benefits or paid reduced benefits because of age.  The district court disagreed, noting that the policy did not discriminate based on age but instead merely recognized age as concomitant with a retirement plan (any retirement plan).  The Sixth Circuit affirmed observing that the policy’s interplay with age only reflected an “actuarial reality” and nothing else.  However, en banc review was sought and granted, and the full court reversed 10-4.  The majority concluded that the use of age as a factor excluded employees who were 55 or over from receiving a particular retirement benefit (disability) and that the policy also could be applied to allow deny retirement benefits even though younger employees would be eligible for those.  The majority noted that four other circuits, including the Ninth Circuit, had held that similar policies gave rise to ADEA violations. The four dissenting judges viewed the policy as being non-discriminatory in scope and application, and as using age only in the sense of it being an actuarial reality that would be found in any retirement-based plan.  The dissent viewed the policy as simply reflecting a way by which an employee who became disabled before being eligible for normal retirement benefits could receive retirement benefits equal or close to what he or she would have received if no disability was suffered.

Predictions

Predictions are always difficult (foolish?), especially in advance of oral argument, but all five cases appear to shadow recent trends.  Forecasting the result is therefore useful if only as a means to discuss those trends (even if the predictions prove “wrong”).

In Mendelsohn, it is probable that the Court will reverse.  The Tenth Circuit’s opinion gives inadequate deference to the district court’s exercise of its discretion.  That cannot be the end of it, however.  It is unlikely that the Court would have issued certiorari to review an opinion that misapplied standards of review.  Instead, the Court may use this case as a vehicle to explore evidentiary burdens and methods or manners of proof.  It is possible that the Court’s primary concern will focus on the majority’s analysis, which implies that “me too” evidence would almost always be relevant in any disparate treatment case.  The problem with this approach is that it would turn each distinct discriminatory act into a company-wide evaluation of indeterminately broad limits.  Mendelsohn alleged a disparate treatment (intentional discrimination) claim.  The fact that other employees may or may not have encountered what they believed to be other instances of age-related bias had little or only marginal relevance to Mendelsohn’s claim because traditionally a disparate treatment claim examines the intent of the decision-maker.  But to the extent, if any, that “me too” evidence might be relevant in a disparate treatment case, there was little actual evidence to support a company-wide pattern of discrimination theory.

In Holowecki, although the Second Circuit’s result seems fair in that a charging party should not be penalized for the EEOC’s failure to act on an intake questionnaire, the court’s analysis seems out of step with established administrative procedures.  A charge initiates the administrative process.  Indeed, as the court recognized, “[r]eceiving a charge provides the EEOC with an opportunity to notify the prospective defendants and seek conciliation.”  But no such notice was ever provided to FedEx.  Moreover, the test seems fraught with qualifying ambiguities.  When does a written submission “manifest an individual’s intent to have the agency initiate its investigatory and conciliatory processes”?  Why should we stop with a written submission?  It’s hard to see how employers can be charged with notice of an intake questionnaire (the underlying principle related to timely filing) when the intake questionnaire is not provided to employers.  This is particularly so where the EEOC does not consider intake questionnaires to operate as charges.  Consequently, I think the Court will reverse.

However, the facts and legal theories offer a bridge between the majority and dissenting opinions from last Term’s Ledbetter opinion.  Instead of redefining a charge in such broadly phrased terms that are susceptible to abuse and further extension, a better result might be to allow an intake questionnaire to equitably toll the applicable time period if the charging party/plaintiff can establish grounds for equitable tolling (which co-plaintiff Kennedy might be able to do).  Generally speaking, most courts have allowed some form of equitable tolling of limitation periods where extraordinary circumstances exist beyond the plaintiff’s control and the defendant suffers no prejudice.  Kennedy would seem to have a good argument for such tolling.  She filed an intake questionnaire with a detailed affidavit.  She had no power to compel the EEOC to commence its investigation.  FedEx suffered no discernible prejudice.  Therefore, absent any additional facts, it would seem there might be (in theory at least) the potential for some form of equitable tolling. If a result along these lines is reached, it is likely that seven or more justices would agree to vacate and remand, thereby rejecting the Second Circuit’s broad test for defining what constitutes a “charge,” but allowing plaintiffs like Kennedy to try to establish grounds for tolling to preserve their claims.

In Gomez-Perez v. Potter, I believe the Court will reverse.  This case is similar to Jackson v. Birmingham Board of Education, the 2005 Title IX case in which the Court held that Title IX prohibited retaliation even though, unlike Title VII, it did not expressly include a retaliation provision.  There is really no structural or analytical difference between the cases.  The same result should be reached.  However, Jackson was a 5-4 opinion authored by Justice O’Connor who was joined by Justices Stevens, Souter, Breyer, and Ginsburg.  Thus, it could be that Gomez-Perez will test both Justice O’Connor’s legacy and the impact that Chief Justice Roberts and Justice Alito have on the Court.  In addition, Congress did specifically prohibit retaliation for other ADEA claims.  Its failure to include a similar provision in the federal employee provision could well be interpreted as an intent not to waive sovereign immunity for such claims.  However, Chief Justice Roberts has consistently expressed respect for stare decisis, and I think it would be difficult to affirm the First Circuit without also disturbing Jackson—or at least calling Jackson’s reasoning and analysis into doubt.

In Humphries, I believe the Court will affirm the Seventh Circuit.  This case is interesting from a historical perspective and, if one has the time, the petition filed by the employer represents an excellent overview of the ebb and flow of court opinions.  At the end of the day, though, § 1981 as amended by the Civil Rights Act of 1991 would seem to have broadened the statute’s scope if only because retaliating against an employee would constitute a breach of the implied covenant inherent in any contract.  Eight circuits recognize retaliation claims under § 1981.

In Kentucky Retirement Systems, I believe the Court will reverse.  I think this case is conceptually similar to Smith v. City of Jackson, the 2005 ADEA case in which the Court rejected the employees’ disparate impact theories because reasonable factors other than age existed to support the employer’s policy.  Is any consideration of “age” arbitrary and thus a violation of the ADEA?  Not all age discrimination in employment is actionable.

For More Information

The ABA’s court site (http://www.abanet.org/publiced/preview/briefs/home.html) includes merit briefs.  The Duke Law School offers a good website with summaries and commentary (http://www.law.duke.edu/publiclaw/supremecourtonline/index.html).  The United States Supreme Court’s website is also an excellent resource (http://www.supremecourtus.gov/).
Another good site is http://www.lawmemo.com/supreme.

Disclaimer

This legal summary is for informational purposes and is not intended as legal advice.  The summary presented here reflects the author’s analysis.  Employers with questions or seeking additional information should confer with counsel.

Gregory Fisher practices with Birch, Horton, Bittner and Cherot, 1127 West 7^th Avenue, Anchorage, Alaska 99501; (907) 276‑1550; gfisher@bhb.com.  J.D., University of Washington School of Law (1991), Washington Law Review; B.A. with Honors, Harpur College, S.U.N.Y. Binghamton (1988).