Justices Scold EEOC for Lapses In Age Discrimination Lawsuit

By Robert Barnes
Washington Post Staff Writer
Wednesday, November 7, 2007

No matter which side ultimately prevails in Federal Express Corp. v. Holowecki, the clear loser yesterday at the Supreme Court was the Equal Employment Opportunity Commission.

Led by Antonin Scalia, the justices were unsparing in their criticism of the agency and the role it played in the tangled legal issues the court was picking through in the case of a FedEx courier who accused the company of age discrimination.

Before Assistant Solicitor General Toby J. Heytens, whose office represents the government, even began to present his argument, Scalia made his unhappiness clear.

"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," Scalia said.

"This whole situation can be traced back to the agency, and . . . whoever ends up bearing the burden of it, it's the agency's fault, and this scheme has to be revised."

At issue is a requirement in the Age Discrimination in Employment Act that an employee file a charge of discrimination with the EEOC before pursuing a case in federal court. That is intended to give the EEOC a chance to notify the company, investigate the claim and seek conciliation between the employer and employee before lawyers and judges become involved.

FedEx courier Patricia Kennedy believed she had done that when she filed an "intake questionnaire" -- EEOC form 283 -- and an affidavit with the agency's Tampa office in 2001. But it turns out that although the agency sometimes considers the intake questionnaire enough to start the proceedings, it sometimes insists on EEOC form 5, a formal charge document.

At any rate, the commission never notified FedEx of Kennedy's filings, and her suit, filed by her and other employees, was dismissed by a federal district judge. The U.S. Court of Appeals for the 2nd Circuit reversed that decision, saying that Kennedy's complaint met the requirements of a "charge" and that the employees should not be penalized because the EEOC failed to notify the company.

Chief Justice John G. Roberts Jr. told FedEx lawyer Connie Lensing she was right that the company should have been notified before the suit was filed.

"But I don't understand your leap from government incompetence to the plaintiff loses," he said.

Justice Stephen G. Breyer also criticized the agency's actions, and Heytens, who sided with the employees in the case, said he understood.

"The agency has taken a number of concrete steps, some of which we illustrate in our brief, to deal with what in reality is a very serious problem," Heytens said. For one thing, the forms have been changed, he said.

All of the justices who spoke -- Justice Clarence Thomas, who headed the EEOC in the 1980s, was the only one to not ask questions -- expressed frustration with the case, but the hour-long argument also produced some of the most memorable lines of the young term.

Scalia, for instance, several times refused to buy Lensing's argument that under the law, even if an employee files a proper charge with the EEOC, it does not become a valid charge until and unless the agency notifies the company. Scalia said that made no sense.

"I understand your reluctance to accept that definition, but -- " Lensing began.

Scalia interrupted: "Yes, only because I'm sane."

Lensing joined in the laughter, adding, "A point well taken."

The crowd also liked it when David L. Rose, the lawyer representing the FedEx employees, said he was sure that the EEOC had received a later, formal charge from Kennedy after she had filed the initial complaint.

"I sent it to the EEOC by, I think, FedEx," Rose said.

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