Last month, the U.S. Supreme Court decided two employment law cases previewed in our September 2007 Client Alert. In one, the Court considered whether submitting an intake questionnaire and affidavit to the Equal Employment Opportunity Commission (“EEOC”) satisfies an employee’s obligation to file a “charge” for purposes of the Age Discrimination in Employment Act (“ADEA”) exhaustion requirement. In the other, the Court considered whether an age discrimination plaintiff in a reduction in force (“RIF”) case may introduce “me, too” testimony of co-workers who also claim that the employer discriminated against them on the basis of their age.

ADEA Exhaustion

In Holowecki v. Federal Express Corp., 128 S. Ct. 1147 (2008), fourteen current and former couriers sued Federal Express Corporation (“FedEx”) for allegedly discriminating against them on the basis of their age in violation of the ADEA. They contended that FedEx policies and practices forced older workers out of the company. The district court dismissed the claim as time-barred.

Under the ADEA, an individual must file a charge of discrimination with the EEOC before filing a lawsuit in federal court. The ADEA dictates the time within which the individual must file the charge and the time within which he or she must then file a lawsuit. The statute does not, however, define what constitutes a “charge” and the EEOC’s regulations do not clarify the issue.

In Holowecki, the Supreme Court focused on one of the plaintiffs, Patricia Kennedy, who, prior to initiating the lawsuit, filed an intake questionnaire and an affidavit with the EEOC detailing FedEx’s alleged discriminatory policies and practices. The EEOC did not investigate Kennedy’s allegations or notify FedEx of the filing, as it routinely does upon receiving a charge. Kennedy and the other plaintiffs then initiated the federal lawsuit.

The trial court dismissed Kennedy’s lawsuit on the ground that her submission was not a charge. The Second Circuit reversed, explaining that the submission constituted a charge because it: (1) contained the information required by the statute and regulations; and (2) communicated her intent to “activate the EEOC’s administrative process.”

The Supreme Court granted certiorari to FedEx and affirmed the Second Circuit’s judgment. The Court determined that in order to be deemed a charge, a filing must include “an allegation and the name of the charged party” and “must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.” A filing should be considered “from the standpoint of an objective observer” applying “a reasonable construction of its terms.”

Referring to this standard as “permissive,” the Court recognized that “a wide range of documents might be classified as charges.” The Court explained that such a result is “consistent with the design and purpose of the ADEA.”

The Court rejected FedEx’s argument that a filing should not be considered a charge unless the EEOC treats it as a charge by notifying the charged party and initiating a conciliation process. According to the Court, the ADEA “requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual’s right to sue upon the agency taking any action.”

In this case, Kennedy’s intake form set forth her and her employer’s name, address, and telephone number, an allegation of age discrimination, the number of employees who worked at the facility where she worked, and a statement indicating that she had not sought assistance from any other governmental agency regarding this matter. FedEx argued that the form was a deficient charge because it lacked a request for the agency to take action on her behalf. The Court disagreed, explaining that Kennedy also attached an affidavit to her intake form, which satisfied this requirement because it stated, “[p]lease force Federal Express to end their age discrimination plan so we can finish out our careers absent the unfairness and hostile work environment …”

“Me, Too” Evidence

In Mendelsohn v. Sprint/United Management Co., 128 S. Ct. 1140 (2008), the Supreme Court rejected a per se rule regarding the admissibility in ADEA cases of “me too” testimony by co-workers who also believe that the employer discriminated against them. Plaintiff Ellen Mendelsohn was laid off from her job with defendant Sprint/United Management Co. (“Sprint”) as part of a companywide RIF. She sued Sprint alleging age discrimination in violation of the ADEA.

At trial, Mendelsohn sought to introduce testimony of five other employees over forty who believed that their supervisors had discriminated against them due to their age. Among other things, one or more of these witnesses were prepared to testify about: hearing Sprint supervisors make remarks denigrating older workers; seeing a spreadsheet suggesting that a supervisor considered age in making layoff decisions; and witnessing the harassment of another Sprint employee based upon her age.

None of the witnesses worked in Mendelsohn’s department or reported to the supervisors in her chain of command, including Paul Reddick, the decisionmaker in Mendelsohn’s discharge. Moreover, none of the witnesses contended that they had heard discriminatory comments by these supervisors. 

Sprint argued that the court should preclude this “me, too” testimony. According to Sprint: (1) the testimony was irrelevant to the issue of whether Reddick decided to terminate Mendelsohn’s employment because of her age; (2) the testimony would only be relevant if it came from employees who were similarly situated to Mendelsohn in that they reported to the same supervisors; and (3) the danger of unfair prejudice, confusion of the issues, misleading of the jury, and undue delay substantially outweighed the probative value of the testimony.

The trial court agreed and excluded all of the “me, too” testimony. The jury returned a verdict for Sprint, and Mendelsohn appealed.

The Tenth Circuit rejected what it interpreted as the trial court’s per se rule of inadmissibility, concluding that the evidence in this case was relevant and not unduly prejudicial. The Tenth Circuit reversed and remanded the case for a new trial. The Supreme Court granted certiorari to Sprint. The Court observed that the Tenth Circuit erred in concluding that the trial court had applied a per se rule. The Supreme Court explained that the basis of the trial court’s decision was unclear and, therefore, the Tenth Circuit should have remanded the case for clarification.

Nonetheless, the Court noted that “had the District Court applied a per se rule excluding the evidence, the Court of Appeals would have been correct to conclude that it had abused its discretion.” The Supreme Court stated, “[t]he 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 further stated that determining whether such evidence is prejudicial “also requires a factintensive, context-specific inquiry.”

The Court vacated the judgment of the Court of Appeals and remanded the case with instructions to the trial court to clarify the basis for its evidentiary ruling.