The KDDK Advantage - August/September 2008

Supreme Court Reverses Run of Pro-Employer Decisions
By Jake R. Fulcher

The conservative Justices of the U.S. Supreme Court have given employers many victories over the past few years. However, the Court recently reversed this trend, issuing a number of employee-friendly decisions. The important cases are discussed below:

How is a “Charge”Defined?

Federal Express v. Holowecki - A group of employees filed a class action suit claiming age discrimination. Three of the employees merely filed “Intake Questionnaires” with the Equal Employment Opportunity Com-mission (EEOC) before the law suit was filed in federal district court.

The district court dismissed the employees’claims, stating they failed to meet the statute of limitations for filing charges with the EEOC. The district court based this decision on a determination that intake questionnaires did not constitute the filing of “charges.”

But the Second Circuit Court of Appeals reversed this decision and held that the EEOC Intake Questionnaire could be constituted as a “charge” because the Age Discrimination in Employment Act (ADEA) does not define the term “charge.”

The appeals court also held that an Intake Questionnaire can be considered a formal charge if it provides the minimal information required to demonstrate intent to activate the administrative process.

In a 7-2 opinion, the Supreme Court upheld the findings of the Second Circuit Court of Appeals.

“Me Too” Evidence

Sprint v. Mendelsohn - During a company-wide reduction in force, Sprint fired a 51-year-old employee who sued, alleging age discrimination. At trial the employee attempted to present evidence from other Sprint employees who also alleged age discrimination.

The district court judge refused to admit the “me too” testimony, citing the “same supervisor” rule, and stating that testimony of the “me too” employees was not valid because they did not have the same supervisor as the plaintiff.

The jury decided in favor of Sprint, but on appeal the Tenth Circuit reversed and ordered a new trial. The Tenth Circuit held that the “same supervisor” rule applies only to discriminatory disciplinary actions and not to suits alleging company-wide discrimination.

The Tenth Circuit also held the “me too” testimony was relevant because the other employees were similarly situated and fired around the same time, and the testimony was important enough that its exclusion had denied the plaintiff an opportunity to present her allegation of company-wide discrimination.

In a unanimous decision the Supreme Court ruled that “me too” evidence is neither automatically admissible nor automatically inadmissible in discrimination cases, and that district courts must now weigh several factors before determining whether “me too” evidence is admissible.

Employers Take Proof Burden

Meacham v. Knolls Atomic Power Laboratory - Twenty-six employees filed suit against Knolls for age discrimination related to dismissals during a downsizing. The jury found for the employees and a U.S. Court of Appeals affirmed.

But the Supreme Court vacated the judgment, citing its 2005 decision in Smith v. City of Jackson that an employer is not liable under the Age Discrimination Employment Act (ADEA) as long as an employment action is based on specific non-age factors. The case was sent back to the Court of Appeals where it again found in favor of the employer, claiming the employees had not carried their burden of persuasion regarding the employer’s actions. In front of the Supreme Court, the employees argued that it should be Knolls, not them, who must prove the reasonableness of an employment action.

In a 7-1 decision, the Court agreed, holding the text and structure of the ADEA’s indication that it is the employer, not the employee, who must bear the burden for proving the use of “reasonable factors other than age” in the decision to terminate employment during a workforce reduction.

Cases Coming Up

As the October 2008 term nears, the Court is faced with another docket of employment-law related decisions to review. Will we see the conservative, employer-friendly court or the one we saw during its most recent term? No one knows for sure.

Jake Fulcher practices labor & employment law and speaks frequently on topics of labor and employment. Contact Jake with any questions at jfulcher@kddk.com or 812-423-3183.

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