Labor Relations and The Supreme Court

Ellen Mendelshohn, who was employed in Sprint's business development group, was terminated as part of a companywide reduction in force. Mendelsohn brought suit against Sprint under the ADEA alleging disparate treatment based on her age, and sought to introduce testimony by five other laid-off Sprint employees who claimed that their supervisors also had discriminated against them because of age. However, none of the five witnesses worked in the business development group with Mendelsohn, nor had any of them worked under her supervisor. Sprint moved to exclude the testimony, arguing it was unfairly prejudicial and irrelevant to the central issue in the case, i.e., whether Mendelsohn's supervisor terminated her because of her age.

The district court granted Sprint's motion, excluding evidence of discrimination against employees who did not have the same supervisor as Mendelsohn. On appeal, the U.S. Court of Appeals for the Tenth Circuit held that the district court had abused its discretion by applying a per se rule that such “me too” evidence is irrelevant in a discrimination case. It then found that such testimony should be admitted in Mendelsohn's case because it was relevant to Sprint's discriminatory animus toward older workers and not unduly prejudicial.

The Supreme Court found that there was no basis in the record for the Tenth Circuit's determination that the district court had applied a per se rule excluding “me too” evidence. Nevertheless, it held that had the district court applied such a per se rule, it would indeed have abused its discretion. The Court concluded that evidence of discrimination by supervisors other than those accused in the lawsuit is not per se admissible or per se inadmissible, but its admissibility depends on many context-specific inquiries, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.

Stating that questions of relevance and prejudice are for the district court to determine, the Court vacated the Tenth Circuit's judgment and remanded the case to the district court to clarify the basis for its evidentiary ruling excluding the evidence.

EEOC Charge

In Federal Express Corp. v. Holowecki, 128 SCt 1147 (2008), the Supreme Court determined that to constitute a “charge” that satisfies the ADEA's requirement that an employee wait at least 60 days after filing a charge with the EEOC before commencing a federal action, a filing must be reasonably construed as a request for the agency to take remedial action protecting the employee's rights or otherwise settle the dispute. Under this standard, a wide range of documents, not just the EEOC's formal “Charge of Discrimination,” might be classified as a “charge” under the ADEA.

Patricia Kennedy and 13 other former and current Federal Express (FedEx) couriers over the age of 40 brought an ADEA suit against FedEx claiming that its performance benchmarks were used to force older workers out of the company. FedEx moved to dismiss Kennedy's claim, asserting that she had not filed a charge with the EEOC at least 60 days before filing suit. Kennedy claimed that she had fulfilled the statutory requirement by submitting an EEOC “Intake Questionnaire” (a form the EEOC uses to facilitate “pre-charge filing counseling”) along with a signed affidavit detailing the alleged discriminatory practices. The district court granted FedEx's motion to dismiss, but the Second Circuit reversed, holding that Kennedy's “Intake Questionnaire” and affidavit constituted a charge, even though the EEOC neither properly notified FedEx nor investigated the charge.

In a 7-2 opinion, the Supreme Court affirmed the Second Circuit's ruling and held that the proper test for determining whether a filing is a “charge” is whether, taken as a whole, it should reasonably be construed as a request by the employee for the EEOC to take remedial action. It found that the ADEA and the EEOC's regulations do not define the meaning of a “charge,” but concluded that the request-to-act requirement adopted by the EEOC in its amicus brief and in various internal directives it had issued to its field offices was reasonable. The Court rejected FedEx's assertion that the definition of a “charge” should be conditioned on the EEOC fulfilling its duty to notify the charged party and initiate a conciliation process, reasoning that the statute does not condition the individual's right to sue upon the EEOC taking any action.

The Court concluded that, while Kennedy's “Intake Questionnaire” alone might not have constituted a “charge,” her attached affidavit that asked the agency to “[p]lease force Federal Express to end their age discrimination plan ' ” is properly construed as a request for the EEOC to act, thereby making it a “ charge.” It further noted that there might be instances where the discrimination indicated on an “Intake Questionnaire” alone is so clear or pervasive that the EEOC could infer that remedial action is requested or required.

Section 1981 Retaliation

In CBOCS West Inc. v. Humphries, No. 06-1431 (May 27, 2008), the Court ruled that ' 1981, which outlaws race discrimination in the making and enforcement of contracts, also prohibits retaliation against persons who complain about a violation of the statute, even though the statute does not have an express anti-retaliation provision.

The case arose out of a claim by Hedrick Humphries, a former employee of a Cracker Barrel restaurant, that CBOCS (Cracker Barrel's owner) terminated him: 1) because of racial bias; and 2) because he had complained about racial discrimination against another black employee. Humphries brought suit alleging both unlawful discrimination and retaliation under Title VII of the Civil Rights Act of 1964, and ' 1981. The district court dismissed his Title VII claims on procedural grounds, and granted summary judgment in favor of Cracker Barrel on both ' 1981 claims. The Seventh Circuit reversed with respect to his ' 1981 retaliation claim, however, rejecting Cracker Barrel's argument that ' 1981 does not encompass claims of retaliation.

Affirming the Seventh Circuit's holding in a 7-2 opinion, the Supreme Court relied on its earlier decision in Sullivan v. Little Hunting Park Inc., 396 US 229 (1969). In Sullivan, the Court held that 42 USC ' 1982, which outlaws race discrimination in connection with selling, purchasing and leasing real and personal property, also prohibits retaliation against those who advocate the rights of minorities protected by that statute. Based on its longstanding parallel construction of ' 1981 and ' 1982, the Court determined that ' 1981 similarly encompasses retaliation claims. In addition, the Court further relied on the Civil Rights Act of 1991 amendments to ' 1981, which explicitly defined '1981's scope to include post-contract-formation conduct, where it stated retaliation would most likely be found. The Court rejected Cracker Barrel's argument that applying ' 1981 to employment-related retaliation actions would create an overlap with Title VII and allow a plaintiff to circumvent Title VII's administrative mechanisms because precisely the same kind of overlap with Title VII exists with respect to employment-related discrimination.

In dissent, Justices Clarence Thomas and Antonin Scalia criticized the majority for ignoring the plain language of ' 1981, which does not include any explicit language regarding retaliation. They argued that construing ' 1981's general ban on discrimination to cover retaliation renders the separate anti-retaliation provisions in Title VII and many other statutes superfluous, contrary to the normal rules of statutory interpretation.

ADEA Retaliation

In Gomez-Perez v. Potter, No. 06-1321 (May 27, 2008), the Supreme Court similarly ruled 6-3 that the federal sector provision of the ADEA, which prohibits age discrimination in personnel actions affecting federal employees, also forbids a federal agency from retaliating against a federal employee who has complained about age discrimination.

Myrna Gomez-Perez, who was a clerk for the U.S. Postal Service, alleged that after filing an administrative age discrimination complaint, she was subjected to retaliation by her supervisor and co-workers. The district court granted summary judgment for Potter, the Postmaster General, finding that the United States had not waived sovereign immunity for retaliation suits under the ADEA. On appeal, the First Circuit found that although sovereign immunity had been waived, the ADEA's federal sector prohibition of age discrimination does not cover retaliation.

The Supreme Court reversed the First Circuit's ruling, holding that the ADEA's federal sector provision does in fact include a protection against retaliation. As in the Cracker Barrel opinion decided the same day, the Court relied heavily on Sullivan in which it earlier held that a retaliation claim could be brought under ' 1982 even though the statute did not explicitly provide for retaliation claims. The Court also relied on Jackson v. Birmingham Bd. of Educ., 544 US 167 (2005), where it interpreted Title IX's prohibition of sex discrimination to include an anti-retaliation right by finding that “[r]etaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination.”

The Court rejected Potter's argument that the clear prohibition of retaliation in the ADEA's private sector provision demonstrated that if Congress had intended to include a retaliation claim under the federal sector provision, it would have done so explicitly. The Court explained that the six-year span separating the enactment of the private and federal sector provisions rendered any negative implications raised by a comparative reading of their language less convincing. It further reasoned that the ADEA's private sector provision contains a specific list of explicitly prohibited activities, and the omission of retaliation from such a list might have suggested
that Congress did not want to reach retaliation, but the federal sector provision contains a broad prohibition of discrimination rather than a list of specific prohibited practices.

In dissent, Justice John Roberts joined by Justices Scalia and Thomas, pointed to the government's historical use of the civil service system to handle retaliation claims and the Civil Service Commission's explicit anti-retaliation regulations as evidence that Congress did not intend the federal sector provision of the ADEA to address retaliation claims.

The review of the Court's cases will continue in an upcoming issue of Employment Law Strategist.

John P. Furfaro is a partner at Skadden, Arps, Slate, Meagher & Flom. Risa M. Salins is an associate at the firm. Amanda L. Houle, a summer associate, assisted in the preparation of this article, which originally ran in the New York Law Journal, an Incisive Media sister publication of this newsletter.

This is the first of two articles discussing labor and employment decisions issued by the U.S. Supreme Court in its 2007-08 term. The article herein examines the Court's rulings with respect to: 1) the admissibility of so-called “me too” testimony in employment discrimination suits; 2) the meaning of a “charge” for purposes of the Age Discrimination in Employment Act's (ADEA) filing requirements; 3) whether employees may bring retaliation claims under 42 USC ' 1981; and 4) whether federal employees may bring retaliation claims under the ADEA.

'Me Too' Evidence

In Sprint/United Mgmt. Co. v. Mendelsohn , 128 SCt 1140 (2008), the Supreme Court unanimously ruled that non-party testimony alleging discrimination by supervisors of the defendant company who played no role in the adverse employment decision challenged by the plaintiff ' so-called “me too” evidence ' is neither per se admissible nor per se inadmissible. Rather, admissibility of such evidence depends on its relevance and potential prejudicial effect in each particular case.

Ellen Mendelshohn, who was employed in Sprint's business development group, was terminated as part of a companywide reduction in force. Mendelsohn brought suit against Sprint under the ADEA alleging disparate treatment based on her age, and sought to introduce testimony by five other laid-off Sprint employees who claimed that their supervisors also had discriminated against them because of age. However, none of the five witnesses worked in the business development group with Mendelsohn, nor had any of them worked under her supervisor. Sprint moved to exclude the testimony, arguing it was unfairly prejudicial and irrelevant to the central issue in the case, i.e., whether Mendelsohn's supervisor terminated her because of her age.

The district court granted Sprint's motion, excluding evidence of discrimination against employees who did not have the same supervisor as Mendelsohn. On appeal, the U.S. Court of Appeals for the Tenth Circuit held that the district court had abused its discretion by applying a per se rule that such “me too” evidence is irrelevant in a discrimination case. It then found that such testimony should be admitted in Mendelsohn's case because it was relevant to Sprint's discriminatory animus toward older workers and not unduly prejudicial.

The Supreme Court found that there was no basis in the record for the Tenth Circuit's determination that the district court had applied a per se rule excluding “me too” evidence. Nevertheless, it held that had the district court applied such a per se rule, it would indeed have abused its discretion. The Court concluded that evidence of discrimination by supervisors other than those accused in the lawsuit is not per se admissible or per se inadmissible, but its admissibility depends on many context-specific inquiries, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.

Stating that questions of relevance and prejudice are for the district court to determine, the Court vacated the Tenth Circuit's judgment and remanded the case to the district court to clarify the basis for its evidentiary ruling excluding the evidence.

EEOC Charge

In Federal Express Corp. v. Holowecki , 128 SCt 1147 (2008), the Supreme Court determined that to constitute a “charge” that satisfies the ADEA's requirement that an employee wait at least 60 days after filing a charge with the EEOC before commencing a federal action, a filing must be reasonably construed as a request for the agency to take remedial action protecting the employee's rights or otherwise settle the dispute. Under this standard, a wide range of documents, not just the EEOC's formal “Charge of Discrimination,” might be classified as a “charge” under the ADEA.

Patricia Kennedy and 13 other former and current Federal Express (FedEx) couriers over the age of 40 brought an ADEA suit against FedEx claiming that its performance benchmarks were used to force older workers out of the company. FedEx moved to dismiss Kennedy's claim, asserting that she had not filed a charge with the EEOC at least 60 days before filing suit. Kennedy claimed that she had fulfilled the statutory requirement by submitting an EEOC “Intake Questionnaire” (a form the EEOC uses to facilitate “pre-charge filing counseling”) along with a signed affidavit detailing the alleged discriminatory practices. The district court granted FedEx's motion to dismiss, but the Second Circuit reversed, holding that Kennedy's “Intake Questionnaire” and affidavit constituted a charge, even though the EEOC neither properly notified FedEx nor investigated the charge.

In a 7-2 opinion, the Supreme Court affirmed the Second Circuit's ruling and held that the proper test for determining whether a filing is a “charge” is whether, taken as a whole, it should reasonably be construed as a request by the employee for the EEOC to take remedial action. It found that the ADEA and the EEOC's regulations do not define the meaning of a “charge,” but concluded that the request-to-act requirement adopted by the EEOC in its amicus brief and in various internal directives it had issued to its field offices was reasonable. The Court rejected FedEx's assertion that the definition of a “charge” should be conditioned on the EEOC fulfilling its duty to notify the charged party and initiate a conciliation process, reasoning that the statute does not condition the individual's right to sue upon the EEOC taking any action.

The Court concluded that, while Kennedy's “Intake Questionnaire” alone might not have constituted a “charge,” her attached affidavit that asked the agency to “[p]lease force Federal Express to end their age discrimination plan ' ” is properly construed as a request for the EEOC to act, thereby making it a “ charge.” It further noted that there might be instances where the discrimination indicated on an “Intake Questionnaire” alone is so clear or pervasive that the EEOC could infer that remedial action is requested or required.

Section 1981 Retaliation

In CBOCS West Inc. v. Humphries, No. 06-1431 (May 27, 2008), the Court ruled that ' 1981, which outlaws race discrimination in the making and enforcement of contracts, also prohibits retaliation against persons who complain about a violation of the statute, even though the statute does not have an express anti-retaliation provision.

The case arose out of a claim by Hedrick Humphries, a former employee of a Cracker Barrel restaurant, that CBOCS (Cracker Barrel's owner) terminated him: 1) because of racial bias; and 2) because he had complained about racial discrimination against another black employee. Humphries brought suit alleging both unlawful discrimination and retaliation under Title VII of the Civil Rights Act of 1964, and ' 1981. The district court dismissed his Title VII claims on procedural grounds, and granted summary judgment in favor of Cracker Barrel on both ' 1981 claims. The Seventh Circuit reversed with respect to his ' 1981 retaliation claim, however, rejecting Cracker Barrel's argument that ' 1981 does not encompass claims of retaliation.

Affirming the Seventh Circuit's holding in a 7-2 opinion, the Supreme Court relied on its earlier decision in Sullivan v. Little Hunting Park Inc. , 396 US 229 (1969). In Sullivan, the Court held that 42 USC ' 1982, which outlaws race discrimination in connection with selling, purchasing and leasing real and personal property, also prohibits retaliation against those who advocate the rights of minorities protected by that statute. Based on its longstanding parallel construction of ' 1981 and ' 1982, the Court determined that ' 1981 similarly encompasses retaliation claims. In addition, the Court further relied on the Civil Rights Act of 1991 amendments to ' 1981, which explicitly defined '1981's scope to include post-contract-formation conduct, where it stated retaliation would most likely be found. The Court rejected Cracker Barrel's argument that applying ' 1981 to employment-related retaliation actions would create an overlap with Title VII and allow a plaintiff to circumvent Title VII's administrative mechanisms because precisely the same kind of overlap with Title VII exists with respect to employment-related discrimination.

In dissent, Justices Clarence Thomas and Antonin Scalia criticized the majority for ignoring the plain language of ' 1981, which does not include any explicit language regarding retaliation. They argued that construing ' 1981's general ban on discrimination to cover retaliation renders the separate anti-retaliation provisions in Title VII and many other statutes superfluous, contrary to the normal rules of statutory interpretation.

ADEA Retaliation

In Gomez-Perez v. Potter, No. 06-1321 (May 27, 2008), the Supreme Court similarly ruled 6-3 that the federal sector provision of the ADEA, which prohibits age discrimination in personnel actions affecting federal employees, also forbids a federal agency from retaliating against a federal employee who has complained about age discrimination.

Myrna Gomez-Perez, who was a clerk for the U.S. Postal Service, alleged that after filing an administrative age discrimination complaint, she was subjected to retaliation by her supervisor and co-workers. The district court granted summary judgment for Potter, the Postmaster General, finding that the United States had not waived sovereign immunity for retaliation suits under the ADEA. On appeal, the First Circuit found that although sovereign immunity had been waived, the ADEA's federal sector prohibition of age discrimination does not cover retaliation.

The Supreme Court reversed the First Circuit's ruling, holding that the ADEA's federal sector provision does in fact include a protection against retaliation. As in the Cracker Barrel opinion decided the same day, the Court relied heavily on Sullivan in which it earlier held that a retaliation claim could be brought under ' 1982 even though the statute did not explicitly provide for retaliation claims. The Court also relied on Jackson v. Birmingham Bd. of Educ. , 544 US 167 (2005), where it interpreted Title IX's prohibition of sex discrimination to include an anti-retaliation right by finding that “[r]etaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination.”

The Court rejected Potter's argument that the clear prohibition of retaliation in the ADEA's private sector provision demonstrated that if Congress had intended to include a retaliation claim under the federal sector provision, it would have done so explicitly. The Court explained that the six-year span separating the enactment of the private and federal sector provisions rendered any negative implications raised by a comparative reading of their language less convincing. It further reasoned that the ADEA's private sector provision contains a specific list of explicitly prohibited activities, and the omission of retaliation from such a list might have suggested
that Congress did not want to reach retaliation, but the federal sector provision contains a broad prohibition of discrimination rather than a list of specific prohibited practices.

In dissent, Justice John Roberts joined by Justices Scalia and Thomas, pointed to the government's historical use of the civil service system to handle retaliation claims and the Civil Service Commission's explicit anti-retaliation regulations as evidence that Congress did not intend the federal sector provision of the ADEA to address retaliation claims.

The review of the Court's cases will continue in an upcoming issue of Employment Law Strategist.

John P. Furfaro is a partner at Skadden, Arps, Slate, Meagher & Flom. Risa M. Salins is an associate at the firm. Amanda L. Houle, a summer associate, assisted in the preparation of this article, which originally ran in the New York Law Journal, an Incisive Media sister publication of this newsletter.