Outten & Golden: Empowering Employees in the Workplace

Archive for March, 2008

Another Win for Workers from the Supreme Court

Monday, March 10th, 2008

In my last blog post, I talked about a win for workers before the U.S. Supreme Court that might not have seemed like one at first blush. But the very next day, workers enjoyed a clear victory in a 7-2 vote by the Court, in the case of Federal Express Corp. v. Holowecki. Many commentators have noted that the case seems to represent a departure from other cases from the Roberts Court in its worker-friendly tone, and more relaxed approach to proving discrimination. As mentioned before, workers often have to take their victories however they can get them, but this decision was certainly a welcome switch.

Federal Express Corp. v. Holowecki involved the issue of what, exactly, a worker claiming discrimination must file in order for the filing to be valid. Prior to bringing a federal discrimination lawsuit, a worker is required to file a claim with the Equal Employment Opportunity Commission (EEOC) before filing a lawsuit in court. This process is called “exhaustion,” and is designed to ensure that the employer has notice of the claim, and that the EEOC, which specializes in employment discrimination issues, has an opportunity to resolve the claim before a lawsuit is filed.

Typically, when a complainant (the worker filing the discrimination claim) goes to the EEOC, a standard process is followed. The worker first fills out an intake questionnaire (known as Form 283), which details the actions of the employer that the employee believes to be discriminatory. From that document, EEOC personnel generally prepare a document called a “charge,” which serves as the formal document that initiates the discrimination complaint. Once the charge is finalized, it is sent to the employer to give notice of the complaint, and the EEOC will initiate conciliation proceedings to try to resolve the case informally. If those fail, the EEOC will investigate the case, and either determine that there is “probable case” to think that discriminatory actions have occurred, or it will issue what is known as a “right-to-sue” letter, which provides the requisite permission to file a lawsuit in court. (For more information about this process, please see the Workplace Fairness web page on filing claims with government agencies.)

Occasionally, this process breaks down, and the completed intake questionnaire doesn’t become an official charge from the EEOC’s perspective. Perhaps an EEOC employee drops the ball, or there’s miscommunication between the agency and the employee, but for whatever reason, the charge isn’t finalized. The confused employee may then file a lawsuit, believing that what he or she filed was adequate. Or there may be no choice but to forge ahead, if the employee has missed the deadline to file a claim, which means that there’s no time to correct the problem at the EEOC level.

What happened in the Holowecki case was that Patricia Kennedy, a courier for FedEx, filed an intake questionnaire alleging that FedEx had adopted some policies and practices concerning retirement health benefits that discriminated against older workers. The EEOC never issued a charge in her case, did not notify her employer, and made no attempt to conciliate her case. Ms. Kennedy joined 13 other FedEx employees in filing a lawsuit under the Age Discrimination in Employment Act, and only filed a formal charge once the lawsuit was filed.

Prior to the Holowecki decision, courts had been split about what constitutes an actual charge. Some courts required that a formal charge be filed, reasoning that only a formal charge could meet the legal requirements for exhaustion. Others said the intake questionnaire could be enough — if the employee believed it was a charge — while yet others said that the employee’s belief didn’t matter if the intake questionnaire had the basic information necessary for a charge. (See ScotusWiki Analysis.) The ultimate question, from a worker’s perspective, was whether a worker was out of luck when the EEOC messed up, since most of the time, employees going through the EEOC process don’t have attorneys and don’t know what process the EEOC is supposed to follow.

The Supreme Court’s decision recognized this reality, taking into account that employees without attorneys filing claims with the EEOC should, in essence, be given the benefit of the doubt, if there’s any question about whether a formal charge was filed. In the 7-2 decision written by Justice Kennedy, the Court made clear that “[t]he system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes.” The Court said it was “consistent with the purposes” of the Age Discrimination in Employment Act to allow the initial complaint to be submitted on a form that was “easy to complete,” or even as “an informal document, easy to draft.”

Anything less would have meant that workers would be harshly penalized if the EEOC made a mistake, which would compel more workers to get an attorney to file before the EEOC. Given that many workers (especially those still out of work due to the alleged discrimination) can’t afford to hire a lawyer at that stage, those most in need would more often be out of luck.

Thankfully, even a Supreme Court that is hardly known for its compassion towards workers recognized the injustice presented by the case, and made the right decision. Having the spotlight on this issue will also hopefully lead to fewer balls being dropped at the EEOC, since the agency received a tongue-lashing at oral argument from Justice Scalia (who ultimately voted against the workers.) (See Law.com article.) Justice Scalia said to the Solicitor General’s representative Toby Heytens as soon as he started to argue, “Mr. Heytens, let me tell you going in that my … main concern in this case, however the decision comes out, is to do something that will require the EEOC to get its act in order, because this is nonsense.” (See Oral Argument Transcript at 47.)

Reaction to the decision was favorable in the mainstream media. The New York Times even issued a supportive editorial, stating, “The decision is noteworthy because it suggests that this court could be pulling back from what has often seemed like a knee-jerk inclination to rule for corporations over workers and consumers,” and “It is surprising and welcome to see the court apply any sort of permissive standard….” (See New York Times editorial.) FindLaw’s Joanna Grossman remarked, “The opinion is quite significant in that it departs both in tone and substance from recent anti-plaintiff rulings in employment discrimination cases. It is thus a welcome sign of at least a modicum of commitment on the Court’s part to enforcing the civil rights laws.” (See FindLaw article.)

It’s sad when a Supreme Court opinion is noteworthy precisely because it doesn’t completely eviscerate a worker’s case. But that’s the reality that employees and their lawyers routinely face in our courts. So it’s nice to win one here and there.

Workers Win One Here and There

Saturday, March 1st, 2008

As we’ve mentioned more than once around here, the Roberts Supreme Court isn’t the most friendly to workers, and might even be less friendly than the Rehnquist Court. But every once in a while, the little guy gets some bones tossed his way. (Sorry to mix metaphors and not use gender neutral language in the same sentence.) That’s what happened recently in a couple of recent cases, where workers staved off the worst that could have happened from the court.

In the first decision to be issued, Sprint/United Management v. Mendelsohn (capably represented on the plaintiff’s side by Dennis Egan, Workplace Fairness board member), both sides could actually declare victory, since the case was sent back to the trial court for resolution.

Ellen Mendelsohn had worked for a Sprint subsidiary from 1989 until November 2002, when she was laid off from in a reduction in force, affecting some 15,000 employees. Mendelson was 51 years old at the time of the layoff, and brought a lawsuit under the Age Discrimination in Employment Act. Sprint responded by claiming Ms. Mendelsohn’s weak performance was responsible. When assembling evidence against Sprint, Mr. Egan sought to call five other former employees as witnesses, all of whom were over 40 and were ready to testify that they, too, had been subjected to discrimination, in an attempt to prove that there was a biased culture against older workers at Sprint. Sprint attorneys objected, saying that the other workers worked for different supervisors, and accordingly were not in the same boat as Mendelsohn.

The District Court (the first, trial-level court) ruled in favor of Sprint, determining that only workers who worked for the same supervisor as Mendelsohn would be allowed to testify, which barred Mendelsohn’s proposed witnesses. At trial, without hearing from Mendelsohn’s witneses, the jury voted in Sprint’s favor, finding that Mendelsohn had not been discriminated against.

The 10th Circuit Court of Appeals reversed the initial ruling in a 2-1 decision that compelled district courts to admit the testimony of other workers who claimed to be the victims of the same type of bias, even if they worked for a different employer or work unit. The court reasoned that excluding this evidence would make it much more difficult to prove discrimination using circumstantial evidence. If an employee was the only victim of a layoff under an individual supervisor, he or she would be out of luck, even if the highest echelons demanded the layoffs of all older workers.

Sprint was unhappy with the decision requiring that the evidence be admitted, and appealed the 10th Circuit ruling to the Supreme Court. At the oral argument (which I had the privilege of attending), things did not look good for Ms. Mendelsohn and Mr. Egan. As one analysis of the oral argument pointed out, “Mendlesohn’s counsel [had his work] cut out for him given the way the argument seems to be proceeding,” and went on to predict a 5-4 decision in Sprint’s favor. Mr. Egan was aggressively questioned as to whether admitting this evidence would lead to “mini-trials” over whether the evidence offered about other employees was true, which could, in Justice Breyer’s words, “muck up quite a lot of trials.” (See Oral Argument Transcript at page 46.)

When the decision was issued on February 27, it was a 9-0 decision in favor of Sprint. How then, you ask, can this be a decision in favor of workers? Bear with me. Remember, the trial court said the evidence from the other workers couldn’t be admitted, and the appellate court said it must be admitted? The Supreme Court unanimously said, in an opinion written by Justice Thomas, that both lower courts were wrong — that the evidence didn’t have to be admitted, and didn’t have to be excluded, but that it should be determined on a case-by-case basis.

As the analysis cited above said, “plaintiff attorneys may be happy if the case just establishes that there isn’t an absolute bar to this type of evidence…” And that’s what happened. As pointed out by plaintiff’s counsel Egan, “Sprint and the business community had urged the court to say this evidence is never admissible, and the court said no to that.” (See Los Angeles Times article.)

The Court said whether the evidence should be admitted “depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” Since the District Court judge hadn’t explained her ruling in the two-sentence order she issued rejecting the evidence, the case was sent back to her for a more substantive ruling. While it isn’t clear whether Ms. Mendelsohn will ultimately prevail, at least now there’s a chance for her to demonstrate a connection between the “me too” evidence and her own case. As the New York Times remarked, “Now it is up to the district court to better explain why it ruled as it did originally on the admissibility or non-admissibility of the other workers’ testimony in Ms. Mendelsohn’s case.” (See New York Times article.)

Given that at least two of the witnesses had known Ms. Mendelsohn for years (see Kansas City Star article) and the District Court may be very cautious after being overruled by the U.S. Supreme Court, there’s hope for Ms. Mendelsohn, and for other plaintiffs who want to introduce similar “me too” evidence of a discriminatory culture. There are just some days when just getting a shot at proving your case and not getting thrown out of court is a victory, and this is one of them.

In my next blog post, I’ll talk about another worker victory.

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