Pаul HOLOWECKI, Patricia Kennedy, Donna M. Lewis, Charles Moncalieri, Phyllis Nelson, Andy Kubicki, Elizabeth Tucker, Steven Almendarez, Frank J. Martinez, Kelly L. Martinez, Kevin McQuillan, Kenneth G. Mutchler, George Robertson, Nancy Thompics, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellee.
Docket No. -43376-CV
United States Court of Appeals, Second Circuit
Argued: May 24, 2005. Decided: March 8, 2006.
440 F.3d 558
R. Jeffery Kelsey, Memphis, TN, for Defendant-Appellee.
Before: KEARSE, CALABRESI, and POOLER, Circuit Judges.
POOLER, Circuit Judge.
Appellants, who are all at least 40 years of age and are currently or were formerly employed as couriers for appellee Federal Express Corporation (“FedEx“), filed an April 30, 2002, complaint on behalf of themselves and other similarly situated FedEx сouriers, claiming that FedEx had engaged in a pattern and practice of employment procedures that discriminate based on age, in violation of the Age Discrimination in Employment Act (“ADEA“),
We disagree with the district court‘s dismissals of the plaintiffs’ claims. Specifically, we hold that plaintiff Patricia Kennedy‘s Intake Questionnaire and accompanying verified affidavit, filed with the Equal Employment Opportunity Commission (“EEOC“), constituted an EEOC “charge” that satisfactorily fulfilled the ADEA‘s exhaustion requirements even though the EEOC never notified, or investigated, the employer. Furthermore, we conclude that Kennedy‘s EEOC charge was sufficient to permit the eleven named plaintiffs that never filed EEOC charges to take advantage of the “single filing” or “piggybacking” rule and thereby satisfy the ADEA‘s exhaustion requirements.
Finally, with respect to plaintiffs George Robertson and Kevin McQuillan, two individuals who did individually file administrative charges and received right-to-sue letters, we conclude that the district court erred in determining that these plaintiffs did not file their charges within 300 days after the alleged unlawful practice occurred, as is required by
BACKGROUND
This case requires us to consider various time limits imposed on plaintiffs seeking to sue their employer under the ADEA. Appellants (also referred to as “Holowecki plaintiffs“), residents of several states, filed an April 30, 2002, complaint on behalf of themselves and other similarly situated FedEx couriers. The complaint alleged, inter alia, that, through policies initiated in 1994 and 1995 — such as “Best Practices Pays” (“BPP“) and “Minimum Acceptable Performance Standards” (“MAPS“) — and through a pattern and practices that continued thereafter, FedEx had discriminated based on age. The Holowecki plaintiffs contended that BPP, MAPS, and related policies were intended to encourage older workers tо leave the company before they wished to retire and to mask FedEx‘s efforts to terminate older workers based on age discrimination.
According to the complaint, for instance, after the initial implementation of the BPP and MAPS, FedEx continued to increase performance goals and apply these new goals in a way that discriminated against older couriers. For instance, at first, FedEx required that a courier work with her supervisor to agree upon “a reasonable and safe number of stops per hour on the courier‘s route that could reasonably be achieved.” If the courier achieved this goal, she would receive enhanced pay for one pay period. “Over time, however, [FedEx] treated the goals as the minimum acceptable number of stops that older couriers were required to make to retain their positions. . . . [F]ailure of a courier to achieve that number was grounds for a ‘performance reminder’ and then disciplinary action up to and including termination.” Older couriers, according to the complaint, were more often “written up” for occasional failures to meet these goals and “younger couriers wеre rarely disciplined for such matters.” Furthermore, pursuant to these policies, any absence of more than 90 days became grounds for termination from employment. The complaint alleged a series of additional discriminatory practices based on age and claimed that these policies led to the termination and constructive discharge of a disproportionately high percentage of older couriers.
Unlike Title VII, the ADEA does not require an aggrieved party to receive a right-to-sue letter from the EEOC before filing suit in federal court. Compare
While the ADEA‘s time limit requirements are subject to equitable modification or estoppel, Dillman v. Combustion Eng‘g, Inc., 784 F.2d 57, 59 (2d Cir. 1986), ADEA time limits “are not to be disregarded by courts out of a vague sympathy for particular litigants,” Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S. Ct. 1723, 80 L. Ed. 2d 196 (1984).
Three of the named Holowecki plaintiffs filed charges with the EEOC or an authorized state agency (collectively referred to as “EEOC“) before bringing suit in federal court and eleven did not. Plaintiff Kennedy, a resident of Florida, filed an EEOC Intake Questionnaire form and accompanying verified affidavit on December 3, 2001, and an EEOC chаrge form on May 30, 2002. Kennedy did not receive a right-to-sue letter in conjunction with either of these filings. The verified affidavit, accompanying the Intake Questionnaire form, consisted of over four pages of text and alleged that FedEx had instituted a number of policies and practices that discriminated based on age. It stated, for instance, that “as a result of [the Best Practice Pays] policy and procedure changes,” FedEx had “fired and/or constructively terminated” older couriers and had otherwise discriminated against older couriers. Moreover, it named several practices, such as FedEx‘s goals with respect to the number of stops per hour, that had increasingly gotten worse since the initiation of the BPP and MAPS.
Plaintiff Robertson, a resident of Illinois, filed an EEOC charge on December 1, 2000, and plaintiff McQuillan, a resident of New York, filed an EEOC charge on September 11, 1998. Although there was no question as to whether these constituted EEOC “charges” or as to whether these were filed 60 days prior to the initiation of the April 30, 2002 federal complaint, the district court found that they failеd to meet the Section 626(d) requirement that the EEOC charge be filed within 300 days after the occurrence of the allegedly discriminatory acts. Appellee argued below that these two plaintiffs, both of whom received right-to-sue letters from the EEOC, failed to satisfy the requirement that they bring their April 30, 2002 federal suit within 90 days of receipt of the letters. See
Appellee argues that Robertson‘s right-to-sue letter was received on or about April 25, 2001, but Robertson states, “under penalty of perjury,” that it was received shortly after February 7, 2002, and thus satisfies Section 626(e) because it was received within 90 days of the April 30, 2002 federal suit. After Robertson filed his December 1, 2000, charge with the EEOC, providing a Lake Villa, Illinois address, the EEOC sent Robertson a right-to-sue letter, dated April 25, 2001. According to Robertson‘s declaration, submitted to the district court in opposition to appellee‘s motion to dismiss,4 he moved from Lake Villa in March of 2001 and requested that the United States Postal Service forward his mail. The April 25, 2001, right-to-sue letter, however, somehow did not reach Robertson. In January or February of 2002, Robertson contacted the EEOC because he had not heard anything since the filing of his charge. In response, on February 7, 2002, the EEOC sent Robertson the April 25, 2001 right-to-sue letter.
According to the record, eleven of the Holowecki named plaintiffs never filed anything approximating an EEOC charge. These non-filing plaintiffs claimed that their suit nonetheless did satisfy ADEA time limit requirements because of the single filing, or “piggybacking,” rule. According to the piggybacking rule, “where one plaintiff has filed a timely EEOC complaint, other non-filing plaintiffs may join in the action if their individual claims aris[e] out of similar discriminatory treatment in the same time frame.” Snell v. Suffolk County, 782 F.2d 1094, 1100 (2d Cir. 1986) (internal quotation marks omitted). In cases such as this, when the allegedly discriminatory activity affects a large group, piggybacking is not allowed unless the filed сharge provides “some indication that the grievance affects a group of individuals defined broadly enough to include those who seek to piggyback on the claim.” Tolliver, 918 F.2d at 1058.
The eleven non-filing plaintiffs (also referred to as “the piggybacking plaintiffs“) present three piggybacking theories on appeal, all of which the district court rejected. They argue that they can piggyback onto (1) Kennedy‘s December 3, 2001, EEOC Intake Questionnaire and accompanying affidavit or (2) Robertson‘s December 1, 2000, EEOC charge, both of which, in their view, satisfy the ADEA‘s time limit requirements. Additionally, the piggybacking plaintiffs contend that they can piggyback onto timely EEOC charges filed by parties to a separate Florida lawsuit that was dismissed prior to the initiation of this claim, Freeman v. Federal Express Corp., No. 99-2466 (M.D. Fla. Sept. 25, 2000), aff‘d, 2002 WL 187185 (11th Cir. Jan. 14, 2002), because the charges filed by those individuals put the EEOC and FedEx on notice about its allegedly nationwide discriminatory practices. None of the Freeman plaintiffs are parties to the Holowecki suit. None of the Holowеcki named plaintiffs were parties to the Florida lawsuit, although some of them unsuccessfully tried to join in an amended Freeman complaint that the Florida district court dismissed as moot. See Bost v. Federal Express Corp., 372 F.3d 1233, 1236-37 (11th Cir. 2004) (describing procedural history of Freeman litigation).
DISCUSSION
We construe the district court‘s ruling as a dismissal for failure to state a claim under
I. Kennedy‘s EEOC Intake Questionnaire and Affidavit
Both Kennedy and the piggybacking plaintiffs argue that, based on the circumstances of this case, Kennedy‘s EEOC Intake Questionnaire and accompanying affidavit constitute an EEOC “charge.” Accordingly, they contend, it is timely in accordance with
A. Meaning of EEOC “Charge”
In order to decide whether Kennedy‘s EEOC Intake Questionnaire and accompanying affidavit constitutes an EEOC charge we first turn to the meaning of the statutory term “charge.” The ADEA requires the filing of a timely charge with the EEOC but does not define the term “charge.”5 See
Some Circuits have imposed an additional requirement, the “manifest intent” rule, that is not explicitly stated in the statute or interpreting regulations. According to these courts, for a written submission to the EEOC to constitute a “charge,” it must manifest an individual‘s intent to have the agency initiate its investigatory and conciliatory processes. An oft-cited proposition of the Third Circuit is that “[i]n order to constitute a charge that satisfies the requirement of section 626(d), notice to the EEOC must be of a kind that would convince a reasonable person that the grievant has manifested an intent to activate the Act‘s machinery.” Bihler v. Singer Co., 710 F.2d 96, 99 (3d Cir. 1983); see Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1319 (11th Cir. 2001) (citing proposition favorably); Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 542 (7th Cir. 1988) (same).
This interpretation of the meaning of “charge” recognizes that providing the EEOC with an opportunity “to eliminate the discriminatory practice or practices alleged, аnd to effect voluntary compliance with the requirements of [the ADEA] through informal methods of conciliation, conference, and persuasion,”
While we fully recognize that administrative exhaustion is an important aspect of the ADEA, if an individual satisfactorily notifies the EEOC of her charge, she is not foreclosed from federal suit merely because the EEOC fails to follow through with notifying the employer and attempting to resolve the matter through “conciliation, conference, and persuasion.”
This Court has recognized, in the ADEA context, that it is not required that the EEOC has actually taken action before an individual, who otherwise satisfactorily filed a charge, can bring suit in federal court. Hodge, 157 F.3d at 167-68. In Hodge, we allowed a federal ADEA suit to go forward even though the EEOC had not terminatеd its investigation. In that case, the investigation of the charge had been held up due to the withdrawal of plaintiff‘s initial administrative charge pursuant to an agreement that was later deemed invalid. Id. We concluded that plaintiff need not re-file a charge or seek to reopen the administrative proceedings. Id. Since the EEOC had the charge for more than the “60-day period that Congress established for the EEOC to investigate or attempt conciliation before the ADEA plaintiff is allowed to file suit in court,” we saw “no statutory purpose to be served by a refiling or reopening requirement, the effect of which would be the imposition of additional delays, including another 60-day waiting period.” Id. at 168. We cited Bihler, 710 F.2d at 99 n. 7, for the proposition that “[s]uch a holding would establish a prerequisite to suit beyond a prospective plaintiff‘s control and therefore would be contrary to the spirit and purpose of the Act.” Hodge, 157 F.3d at 168. This reasoning equally applies when an individual has manifested her intent to activate the administrative process. A complainant should not be held accountable if the EEOC fails to follow through after that complainant has provided written notice to the EEOC “that would convince a reasоnable person” that she intends “to activate the Act‘s machinery,” Bihler, 710 F.2d at 99.
Now that we have described the requirements for an EEOC “charge” we turn to the particular circumstances of this case. Kennedy filed her EEOC Intake Questionnaire and accompanying affidavit (“questionnaire“) with the EEOC on December 3, 2001, more than 60 days prior to initiating this suit on April 30, 2002, and alleged discriminatory acts that occurred within 300 days of the filing of the questionnaire. See
First, Kennedy‘s questionnaire satisfies the EEOC‘s interpreting regulations specifying the required content that must appear in a “charge.” See
Second, the content of the questionnaire evidenced Kennedy‘s intent to activate the administrative process. The forceful tone and content of the affidavit should have alerted the EEOC that the filing was meant to be an EEOC “charge.” For instance, the affidavit states that, in years past, Kennedy has “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 had allowed FedEx to continue its discriminatory practices against hеr. As further indication that Kennedy intended to activate the administrative process, by checking the “consent” box on the questionnaire form, Kennedy consented to the disclosure of her identity to the employer that allegedly discriminated against her. This demonstrates Kennedy‘s desire to move the investigatory and conciliatory process forward. Moreover, the EEOC form, on which Kennedy submitted her affidavit, itself indicated that the case was currently “open,” also suggested that her filing would be sufficient to initiate the administrative process. Finally, and perhaps most tellingly, the affidavit unambiguously states, “[p]lеase force Federal Express to end their age discrimination plan so we can finish out our careers absent the unfairness and hostile work environment created within their application of Best Practice Pays/High-Velocity Culture Change.” In light of these facts, we conclude that Kennedy provided written notice to the EEOC “that would convince a reasonable person” that Kennedy intended “to activate the Act‘s machinery,” see Bihler, 710 F.2d at 99. The EEOC erred by failing to act in response to Kennedy‘s manifested intent.
Having established that the questionnaire in this case was a “charge,” we turn to the piggybacking plaintiffs’ theory that they can use Kennedy‘s charge to satisfy the ADEA‘s time limit requirements because Kennedy‘s affidavit identified discriminatory treatment that is similar to the acts described in the complaint and alleges that a large group of workers have experienced similar discrimination. See Tolliver, 918 F.2d at 1056-58. We agree with this theory.
Like the Holowecki complaint, Kennedy‘s questionnaire described the allegedly discriminatory policies, such as the Best Practices Pays, Minimum Acceptable Performance Standards, and other discriminatory practices, in detail. Kennedy‘s questionnaire also prоvided notice that the policies were affecting a wide range of FedEx employees. The affidavit stated, for instance, that the Best Practice Pays policy “has systematically targeted myself and others.” Moreover, it stated that “management has continually picked at me 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.” Kennedy concluded by stating that FedEx must be forced to stop its discriminatory policies so that “we can finish out our careers” absent discriminatory practices.
Because we agree that the piggybacking plaintiffs can piggyback onto Kennedy‘s charge, there is no reason for this court to address the two other piggybacking theories presented on appeal. Therefore, we are left only to deal with the two remaining named plaintiffs who individually filed administrative charges with the EEOC.
II. Robertson‘s EEOC Charge
It is undisputed that Robertson‘s charge was filed more than 60 days prior to the initiation of the Holowecki suit.6 The district court held, however, that the Robertson charge was nonetheless untimely under Section 626(d) because it was filed more than 300 days after the implementation of the allegedly discriminatory policies alleged in the complaint. Specifically, the district court found the charge untimely because it was submitted “over six years after plaintiffs claim the policies were implemented.” Appellee also challenges the Robertson charge on an additional timeliness ground not specifically addressed in the district court‘s opinion, arguing that Robertson did not file suit in federal court within 90 days of his receipt of a right-to-sue letter, in violation of Section 626(e). We find that, if we accept the allegations in the cоmplaint as true, Robertson‘s charge was not filed more than 300 days after the implementation of the discriminatory policies alleged, and we therefore vacate the district court‘s dismissal of his claim on that basis. However, because it was not reached below, we remand for the district court to address whether Robertson‘s suit was untimely because it was not filed within 90 days of receiving the right-to-sue letter.
III. McQuillan‘s EEOC Charge
As with Robertson, we disagree with the district court‘s determination that McQuillan failed to file within 300 days after the alleged unlawful practice occurred. McQuillan‘s charge, which was signed on September 11, 1998, challenges his termination from employment, which occurred on March 31, 1998. There is no doubt that the charge described acts that allegedly occurred within the required 300-day period. Because we vacate the district court‘s dismissal of McQuillan‘s claim on this ground, we remand for the district court to consider in the first instance appellee‘s argument that McQuillan‘s suit was not filed within 90 days of receiving the right-to-sue letter.
CONCLUSION
The judgment of the district court is reversed with respect to all of the named plaintiffs, except Robertson and McQuillan. The district court‘s dismissal of Robertson‘s and McQuillan‘s claims is vacated. The case is remanded for further proceedings consistent with this opinion.