Holowecki v. Federal Exp. Corp.

• Decision Date: 08 March 2006
• Docket Number: Docket No. -43376-CV.
• Citation: 440 F.3d 558
• Parties: Paul 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.
• Court: U.S. Court of Appeals — Second Circuit

Page 558

440 F.3d 558

Paul 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.

COPYRIGHT MATERIAL OMITTED

David L. Rose (David M. Wachtel, on the brief), Rose & Rose, P.C., Washington, DC, for Plaintiffs-Appellants.

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 couriers, 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"), 29 U.S.C. §§ 621 et seq., the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law §§ 290 et seq., and the laws of several other states. The United States District Court for the Southern District of New York (McKenna, J.) dismissed the claims as time-barred, concluding that each named plaintiff failed to comply with the ADEA's time limit requirements under 29 U.S.C. § 626(d).

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 29 U.S.C. § 626(d). We remand, however, for the district court to decide in the first instance whether the complaint, fleshed out by Robertson's affidavit, was sufficient to withstand a motion dismiss based on the ADEA's requirement that a claimant who receives a right-to-sue letter must bring suit in federal court within 90 days of receipt of the letter. See 29 U.S.C. § 626(e). Accordingly, we reverse in part, vacate in part, and remand for further proceedings in accordance with this opinion.

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 to 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 were 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.

The district court dismissed the Holowecki plaintiffs' complaint without reaching the merits, ruling that all fourteen named plaintiffs failed to satisfy the ADEA's time limit requirements, see 29 U.S.C. § 626, and declining to exercise supplemental jurisdiction over plaintiffs' state law claims. Under 29 U.S.C. § 626(d) ("Section 626(d)"), an aggrieved person must file an EEOC charge at least 60 days prior to initiating an ADEA suit in federal court. In addition, if the allegedly discriminatory act occurs in a "deferral state," a state that has its own age discrimination law and its own age discrimination remedial agency, the charge must be filed within the earlier of 300 days after the alleged unlawful practice occurred or thirty days after a complainant receives notice of the termination of state law proceedings. See 29 U.S.C. § 626(d); Id. § 633(b); Hodge v. New York Coll. of Podiatric Med., 157 F.3d 164, 166 (2d Cir.1998). It is undisputed that all of the states relevant to this action are deferral states.¹

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 29 U.S.C. § 626(d)-(e) with 42 U.S.C. § 2000e-5(e)-(f); see Hodge, 157 F.3d at 168 ("Whereas Title VII plaintiffs must receive a `right-to-sue' letter from the EEOC before filing suit in court . . . ADEA plaintiffs need only wait 60 days after filing the EEOC charge."); Tolliver v. Xerox Corp., 918 F.2d 1052, 1057 (2d Cir. 1990).² However, in the event that the EEOC issues a right-to-sue letter to an ADEA claimant, the claimant must file her federal suit within 90 days after receipt of the letter. See 29 U.S.C. § 626(e); see also Julian v. City of Houston, 314 F.3d 721, 726 (5th Cir. 2002) (acknowledging that Section 626(e) "establishes a ninety-day limitations period for the ADEA complainant who actually receives notice from the EEOC, [but] does not require a complainant to receive such notice before filing suit.").

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 charge 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.

The district court determined (1) that Kennedy's EEOC Intake Questionnaire and affidavit was not an EEOC "charge" and therefore did not satisfy Section 626(d)'s requirement that a claimant file a charge before bringing suit in federal court, and (2) that Kennedy's May 30, 2002, EEOC charge form was untimely because it was not filed 60 days prior to filing the April 30, 2002, ADEA complaint in federal court. See 29 U.S.C. § 626(d). Appellee does not dispute that Kennedy's EEOC Intake Questionnaire form and accompanying affidavit would satisfy the 60 and 300 day time limits set out in 29 U.S.C. § 626(d)³ if we consider them to be an EEOC charge. In appellee's view, however, the EEOC Intake Questionnaire and accompanying affidavit do not satisfy Section 626(d) because they are not properly considered to be an EEOC "charge."

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...