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New Guidance from the United States Supreme Court

Introduction

In an opinion that the Court frankly admitted was “unfortunate,” the United States Supreme Court issued an opinion last Wednesday, February 27th, in which it held that an EEOC intake questionnaire could qualify as a “charge” even though EEOC never treated the intake questionnaire as a charge and the employer was never served with a copy of it. This summary briefly reviews the case and its significance.

The Case: 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.

The Opinion

The United States Supreme Court affirmed by a 7-2 vote with Justice Kennedy writing for the majority. The majority noted that it was difficult to determine what was or was not a “charge” because the regulatory provisions were somewhat vague and/or ambiguous in some places, and internally inconsistent in other places. Therefore, the majority believed proper resolution required deference to the EEOC. The EEOC, in turn, took the position that a “charge” could be anything so long as it represented a request by the aggrieved complainant that the EEOC take action. Of course, lost in all of this was the fact that the EEOC never took any action, which would seem to suggest that the intake questionnaire was not a charge. But the majority did not seem to recognize this as a problem. Instead, the majority concluded that the statute only required that a charge be filed 60 days before suit was filed, and EEOC’s failure to process the charge did not preclude suit so long as a “charge” had been filed. The majority did not address the fact that Holowecki filed a charge after she filed suit (suggesting that even she knew her intake questionnaire was not a “charge”). Justice Kennedy frankly conceded that the result was “unfortunate, but, at least in this case, unavoidable.” However, he suggested that on remand the district court could stay proceedings and refer the dispute back to the EEOC for exhaustion of its conciliation procedures. He recognized that this was an imperfect remedy, but he thought it represented the only practical result under the circumstances.

Justice Thomas dissented, joined by Justice Scalia. Justice Thomas observed that it was hard to understand why the intake questionnaire should qualify as a “charge” when it was never served on Federal Express, when the EEOC never processed the intake questionnaire as a charge, and when the EEOC never took any steps that would suggest it considered the intake questionnaire to be a charge. He noted that the common meaning of a “charge” was a formal complaint, and he saw no evidence that a formal complaint existed. Justice Thomas also questioned the premise that the intake questionnaire objectively represented a request that the EEOC take action because the intake questionnaire was ambiguous in several respects as to what the complainant expected the EEOC to undertake in response to her statements.

Significance

This is one I got wrong, so my streak is broken. In my annual United States Supreme Court preview issued last October, I thought the Court would reverse:

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 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 as if 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 and establish grounds for tolling to preserve their claims.

Having read the Court’s opinion, I believe its analysis opens up a Pandora’s Box of problems. The whole concept behind the 60-day buffer period between filing a charge and filing suit is to allow the EEOC to engage the parties in a conciliation effort. This conciliation effort was designed to reduce costs and litigation. If, as the Court held, completion of this process is no impediment to filing suit, then the practical result is to dispense with the conciliation process. That may be a result that is technically allowed under the statute, but it is a result that frustrates the EEOC’s Congressional mandate. Moreover, it establishes a test for defining a “charge” that raises more questions than it answers. Questions of intent always involve an exploration of facts and circumstances that may lead to inconsistent results that cannot be reconciled (when does a written submission “manifest an individual’s intent to have the agency initiate its investigatory and conciliatory processes”?). At the end of the day, the Court’s opinion suggests that the entire administrative process for age discrimination claims is somewhat superfluous. This, I believe, is an unfortunate result and, to that extent, I agree with the Court’s holding.

Conclusion

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.

Mr. Fisher practices law with Birch, Horton, Bittner and Cherot, 1127 West 7th 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).