It was a busy week for the Supreme Court, which issued back-to-back decisions in two closely watched employment cases: Sprint/United Management Co. v. Mendelsohn (No. 06-1221, February 26, 2008), which concerns the admissibility of so-called “me too” evidence in discrimination cases, and Federal Express Corp. v. Holowecki (No. 06-1322, February 27, 2008), which addresses the circumstances under which an intake questionnaire can constitute a charge of discrimination. Unfortunately for employers, the Court’s decisions in these cases fail to provide definitive guidance regarding these important issues.
“Me Too” Evidence
The plaintiff in Mendelsohn alleged that she was discharged as part of a company-wide reduction in force (“RIF”) because of her age in violation of the Age Discrimination in Employment Act (“ADEA”). At trial, the plaintiff sought to introduce testimony by several co-workers regarding alleged discrimination that they experienced during their employment. The defendant moved to exclude this so-called “me too” evidence, arguing that because the co-workers’ testimony concerned supervisors who were not involved in the decision to discharge the plaintiff, the testimony was irrelevant under Federal Rule of Evidence 401 or, alternatively, unduly prejudicial under Federal Rule of Evidence 403. The district court granted the defendant’s motion, finding that only evidence of discrimination against “similarly situated” employees (i.e., those with the same supervisor during the relevant time period) should be admitted. On appeal, the Tenth Circuit reversed, holding that the district court improperly excluded the co-workers’ testimony as per se inadmissible. The Tenth Circuit held that the testimony in question was “logically tied” to the plaintiff’s discharge, and therefore should have been admitted, because the plaintiff and her co-workers were discharged within the same year as part of the same RIF and their selection for the RIF was based on similar criteria, notwithstanding the fact that they were selected by different supervisors.
The Supreme Court granted certiorari “to determine whether, in an employment discrimination action, the Federal Rules of Evidence require admission of testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.” But rather than address this issue, the Court remanded the case on procedural grounds. Specifically, the Court held that it was unclear whether the district court excluded the co-workers’ testimony as inadmissible per se or simply inadmissible under the specific factual context of the case, and that the Tenth Circuit should have sought clarification from the district court on this issue before ruling. Thus, the only issue resolved by Mendelsohn is that admissibility of “me too” evidence is not subject to a per se rule — an issue that did not need resolving by the Supreme Court.
The Court’s only commentary regarding the factors governing the admissibility of “me too” evidence — the issue on which employers and their counsel were looking to the Mendelsohn decision for guidance — was its general observation that “[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.” In view of the Court’s failure to provide substantive guidance to lower courts on the admissibility of this type of evidence, employers and their counsel will be forced to continue litigating this issue through motions in limine, the results of which vary greatly not only among jurisdictions, but also among judges within a particular jurisdiction. Employers and their counsel can expect this uncertainty to continue to impede their case assessment and settlement efforts as they struggle to discern whether litigating the plaintiff’s case will also require litigating the mini-trials of other “me too” witnesses.
Although the Supreme Court’s decision in Holowecki is more substantive than its decision in Mendelsohn, it is no less disappointing. In Holowecki, the plaintiff filed an intake questionnaire and supporting affidavit with the EEOC, alleging that her employer’s compensation systems discriminated against older employees in violation of the ADEA. She did not file a formal charge of discrimination with the EEOC prior to initiating her lawsuit. The district court dismissed the plaintiff’s case on the grounds that her intake questionnaire and affidavit did not satisfy the ADEA’s charge requirement. On appeal, the Second Circuit reversed. The Supreme Court granted certiorari to consider whether the materials submitted to the EEOC constituted a “charge” for purposes of the ADEA.
The Court began its analysis by observing that the case involved two distinct questions: What is a charge as the ADEA uses that term? And did the documents filed by the plaintiff constitute a charge? With respect to the first question, the defendant employer urged the Court to adopt a rule that would condition the definition of a charge upon the EEOC’s fulfilling its duty to notify the employer and initiate a conciliation process. In other words, an intake questionnaire or other correspondence would not constitute a charge unless the EEOC in the first instance deemed it to be a charge and processed it accordingly. The Court rejected this standard as “too artificial.” In reaching this conclusion, the Court appeared to be motivated by its concern that complainants would be prejudiced by the EEOC’s lack of guidance or uniform decisionmaking with respect to these issues. This concern was heightened here since complainants typically are not represented by an attorney at the charge-filing stage.
Instead, the Court adopted the standard proposed by the EEOC: “In addition to the information required by the regulations, i.e., an allegation [of discrimination] and the name of the charged party, if a filing is to be deemed a charge it 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.” The Court reasoned that because the ADEA and its implementing regulations did not adequately define the term “charge,” courts should defer to the EEOC as the agency responsible for enforcing the statute.1 Having adopted the EEOC’s proposed standard for what constitutes a charge, the Court applied the standard to the intake questionnaire and affidavit filed by the plaintiff. The majority held that the materials filed by the plaintiff, taken as a whole, satisfied the charge requirement, citing the plaintiff’s request in her affidavit that the EEOC “force [the defendant] to end their age discrimination . .
The Holowecki decision is troubling for employers for several reasons. First, the standard adopted by the Court, though objective in nature, is easily satisfied. Indeed, it is difficult to imagine a circumstance under which a person aggrieved by an employment decision would reach out to the EEOC without providing some indicia of a desire for the agency to take remedial action. As a result, employers can expect that in many cases the filing of an intake questionnaire or other correspondence will be sufficient to satisfy the charge requirement, and that charges filed after the 180-day or 300-day period may nevertheless be deemed timely on the basis of an earlier-filed intake questionnaire or other correspondence. Second, because the Court’s standard ignores the EEOC’s actual treatment of the intake questionnaire or other correspondence, the charge requirement may be deemed satisfied even where, as in Holowecki, the agency never initiates an investigation or provides notice of the charge to the employer. In such cases, employers are deprived of the benefit of the EEOC proceedings, including the deterrent value of a no-cause determination and the opportunity to negotiate a settlement of claims at a time when the claimant has not yet retained counsel. Given the loose nature of the inquiry regarding sufficiency, and the fact that employers may not receive a copy of the intake questionnaire or other materials until after a lawsuit is filed and a FOIA request is served, employers and their counsel should be vigilant about identifying issues relating to the charge requirement early on and preserving their defenses accordingly. Counsel must also be proactive and creative in deposing plaintiffs on the motivation behind, and content of, their pre-charge communications with the EEOC.
While the Court’s decisions in Mendelsohn and Holowecki fail to provide much-needed guidance regarding these issues, there is some good news for employers. By vacating the Tenth Circuit’s decision, the Court in Mendelsohn eliminated an unfortunate case precedent that allowed “me too” evidence to be introduced as long as there was some minimal connection between the plaintiff’s and the co-worker’s alleged adverse action. In addition, although the Court in Holowecki deferred to the EEOC’s standard for determining when an intake questionnaire or other correspondence is sufficient to satisfy the charge requirement, the Court also encouraged the EEOC to adopt clearer guidance and internal procedures regarding this issue, commenting that “[r]easonable arguments can be made that the agency should adopt a standard giving more guidance to filers, making it clear that the request to act must be stated in quite explicit terms,” and that “[t]o reduce the risk of further misunderstandings by those who seek its assistance, the agency should determine . . . what additional revisions in its forms and processes are necessary or appropriate.” Of course, it remains to be seen whether the EEOC takes the Court’s cue and amends its regulations to define the requirements of a charge or, at the very least, develops and implements better internal controls to ensure that agency determinations regarding the sufficiency of intake questionnaires or other materials are consistent and are communicated to the parties. Finally, the Holowecki decision states that the “manifest intent” standard previously applied by some circuit courts, including the Eleventh Circuit, accords with the standard adopted by the Court and therefore is still good law. In order to be deemed a charge under the manifest intent standard, the filing “must demonstrate an individual’s intent to have the agency initiate its investigatory and conciliatory processes.” Accordingly, employers can still argue that an intake questionnaire or other filing does not constitute a charge under the manifest intent standard, and can rely on circuit court decisions applying this standard rather than the somewhat looser standard employed by the Court.