On December 3, 2007, the United States Supreme Court heard oral arguments in four unrelated discrimination cases that present controversial issues arising under the federal Age Discrimination in Employment Act (ADEA). Summaries of these cases, which are pending before the US Supreme Court, are provided below.

In Ellen Mendelsohn v. Sprint/United Management Company, the US Supreme Court was asked to resolve a split among the federal Circuit Courts as to whether, in an employment discrimination lawsuit, a district court must admit “me too” evidence at trial—“me too” evidence is generally described as testimony by individuals (often current or former employees of the defendant-employer), who are not parties to the lawsuit, claiming that they were discriminated against by supervisors, managers or other persons who played no role in the discriminatory act(s) that the plaintiff is complaining of in the lawsuit. In Mendelsohn, the plaintiff was laid off from her job with Sprint in 2002 as part of an ongoing company-wide reduction in force (“RIF”). The plaintiff was 51 years old when her employment was terminated. Over an 18-month period, Sprint laid off over 15,000 employees as part of the RIF. Decisions as to the employees selected for the RIF were made by the supervisor or manager responsible for each downsizing unit within Sprint.

Subsequent to her termination, Plaintiff filed a charge of age discrimination with the Equal Employment Opportunity Commission (EEOC). After the EEOC dismissed plaintiff’s charge, she filed an action in the US District Court for the District of Kansas alleging that she was selected for the RIF based on her age. In support of her claim, plaintiff sought to have five former employees of Sprint, each who were older than 40 years of age and who were part of the same RIF as plaintiff, testify at trial that they believed they were also victims of age discrimination by Sprint (“me too” witnesses). Prior to trial, Sprint moved to exclude any evidence from the “me too” witnesses as irrelevant to plaintiff’s case. The District Court granted Sprint’s motion, ruling that only persons who were “similarly situated” to plaintiff could testify about the perceived age discrimination they have experienced. The District Court explained that to be “similarly situated,” the former employees must have had the same supervisor as plaintiff and have been terminated around the same time as plaintiff. None of the “me too” witnesses had worked in the same department nor had the same supervisor as the plaintiff and, therefore, testimony from all five witnesses was excluded at trial. The jury returned a verdict in favor of Sprint and the plaintiff appealed to the US Court of Appeals for the Tenth Circuit. The Tenth Circuit reversed the jury’s verdict, holding, in pertinent part, that the “me too” witnesses’ testimony was relevant because even though none of the five ex-employees had had the same supervisor as plaintiff, the “me too” evidence may still be probative of an alleged discriminatory company-wide RIF. The Tenth Circuit continued that “because direct testimony as to the employer’s mental processes seldom exists, evidence of the employer’s general discriminatory propensities may be relevant to Sprint’s discriminatory animus toward older workers and the exclusion of that evidence unfairly inhibited Mendelsohn from presenting her case to the jury.”

In Sprint’s petition for a Writ of Certiorari, it urged the US Supreme Court to resolve the conflict of the admissibility of “me too” evidence between the federal Circuit Courts and find that (i) “me too” evidence is not relevant to the circumstances relating to an individual plaintiff’s situation; (ii) admission of “me too” evidence risks confusing and distracting the jury from a proper focus on the plaintiff’s alleged circumstances; (iii) admission of “me too” evidence risks unfair prejudice to an employer (particularly in a RIF case where often hundreds, and in this case thousands, of employees are laid off and where, consequently, it is not surprising that a plaintiff can find a few former employees who believe that they were selected for the RIF because of their age); and (iv) “me too” evidence results in undue delays and a needless burden on the courts’ resources, as the admission of testimony by these witnesses essentially results in “trials-within-a-trial” for each “me too” witness. The US Supreme Court’s decision, which is anticipated sometime in 2008, could have a significant impact on future age discrimination cases.

In Federal Express Corporation v. Paul Holowecki, et al., the US Supreme Court was asked to settle the dispute among the federal Circuit Courts as to whether an EEOC Intake Questionnaire form and accompanying verified affidavit submitted by an individual to the EEOC—that is not a formal EEOC charge (an EEOC Form 5)—may suffice as a charge of discrimination to satisfy the requirements of the ADEA. In essence, the ADEA requires an employee to file a timely charge of discrimination with the EEOC before the employee may bring a lawsuit alleging age discrimination.1 The ADEA does not define what constitutes a charge, but the EEOC has established interpreting regulations that specify the requisite information that must appear in a charge. The regulations specify that a charge must be in writing (or information that an EEOC official reduces to in writing) from the person making the charge that names the employer and generally describes the alleged discriminatory acts. The regulations also state that a charge should contain other information such as the full contact information for the employer and the individual filing the charge and a “clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful practices.”

In Holowecki, on December 3, 2001, plaintiff Patricia Kennedy, who at the time worked as a courier for Federal Express and who was older than 40, filed with the EEOC an EEOC Intake Questionnaire form and accompanying verified and notarized affidavit (“Questionnaire and Affidavit”) which consisted of more than four pages of text alleging that Federal Express had discriminated against her and other couriers on the basis of age. The Questionnaire and Affidavit specifically stated, among other things that “as a result of [the Best Practices Pays] policy and procedure changes,” Federal Express had “fired and/or constructively terminated” older couriers, the Best Practice Policy “has systematically targeted myself and other older couriers emotionally and financially by changing our ‘start times,’” and that Kennedy knew she was “not alone” because “many older couriers” shared her “doubts and fears.” The Questionnaire and Affidavit contained the full contact information for Kennedy and Federal Express, pertinent dates regarding the alleged acts and practices, the approximate number of employees at Kennedy’s workplace and indicated that Kennedy had not filed any other complaint against Federal Express. The Questionnaire and Affidavit also stated that in years past, Kennedy had “threatened to stand up for [her] rights, but that [i]n the past several months” she had “come to realize that by doing nothing” she allowed Federal Express to continue its discriminatory practices against her. Kennedy checked the “Consent” box on the Questionnaire, allowing the disclosure of her identity to Federal Express. In addition, the Affidavit stated, “[p]lease force Federal Express to end their age discrimination plan so we can finish our careers absent the unfairness and hostile work environment created within their application of Best Practices Pays/High Velocity Culture Change.” The EEOC did not treat the Questionnaire and Affidavit as a formal EEOC charge and accordingly it did not notify Federal Express that a charge of discrimination had been filed against it nor did it institute an investigation of the allegations in Kennedy’s Questionnaire and Affidavit. Kennedy did not receive a right-to-sue letter with respect to the Questionnaire and Affidavit.

On April 30, 2002, Kennedy and 13 other current and former Federal Express employees brought a lawsuit in the Southern District of New York, alleging that Federal Express had implemented policies in 1994 and 1995 that violated the ADEA. On May 30, 2002, Kennedy filed a formal EEOC Form 5 charge with the EEOC against Federal Express alleging age discrimination. Federal Express subsequently moved to dismiss the lawsuit on the grounds that none of the plaintiffs had filed a timely or valid charge of discrimination with the EEOC as required by the ADEA. The District Court granted Federal Express’s motion, rejecting the argument that Kennedy’s submission of the Questionnaire and Affidavit satisfied the ADEA’s EEOC charge requirement.2 Plaintiffs appealed the decision to the United States Court of Appeals for the Second Circuit.

The Second Circuit reversed the District Court, concluding, in relevant part, that (i) Kennedy’s Questionnaire and Affidavit satisfied the statutory and regulatory requirements for what content must be included in a charge and (ii) the Questionnaire and Affidavit manifested Kennedy’s intent to activate the EEOC’s administrative process. The Second Circuit, joining three other federal Circuit Courts in adopting the “manifest intent” rule, explained that a writing submitted to the EEOC that satisfied the interpreting regulations is an EEOC charge for purposes of satisfying the ADEA only when the writing also demonstrates the individual’s intent to activate the EEOC’s investigatory and conciliatory process. Based on the various factors mentioned above, the Second Circuit concluded that Kennedy provided written notice to the EEOC “‘that would convince a reasonable person’ that Kennedy intended to ‘activate the [ADEA’s] machinery.’” The Second Circuit also concluded that it is not necessary that the EEOC had actually taken action before an individual, who otherwise satisfactorily filed a charge, can bring an ADEA claim in federal court.

In Federal Express’s petition for a Writ of Certiorari, it asserted that it is of “paramount importance” that the US Supreme Court determine whether and when an intake questionnaire or other “pre-charge” document that has not been treated as a charge by the EEOC can nevertheless constitute a charge for purposes of the ADEA. Federal Express maintains that six Circuits have addressed this issue and they have reached contradictory conclusions.

In addition, US Supreme Court Justices agreed to consider issues arising under the ADEA in two other pending cases. In Gomez-Perez v. Potter, the US Supreme Court will decide whether the ADEA permits an individual to bring a claim of retaliation against a federal employer as a result of having made an age discrimination-related complaint. In Gomez-Perez, the Court of Appeals for the First Circuit had affirmed the District Court’s decision that although the ADEA clearly prohibits discrimination against federal employees based on age, it does not provide a cause of action for retaliation against federal employers (in comparison, the ADEA explicitly provides that private employers may not retaliate against employees who complain of discrimination). In Kentucky Retirement Systems v. Equal Employment Opportunity Commission, the US Supreme Court will decide whether any use of age as a factor in a retirement plan is “arbitrary” and thus renders the plan facially discriminatory in violation of the ADEA.