Oral argument recap: Federal Express v. Holowecki

Although the dispute in this case was nominally between defendant Fed Ex and plaintiff Holowecki, it was evident at oral argument that the Court held the EEOC at fault for creating the dispute both by issuing unclear guidance regarding what constitutes a charge of age discrimination and by implementing inconsistent enforcement practices under its regulations.

Interestingly, although Fed Ex hired former acting Solicitor General Walter Dellinger and O’Melveny and Myers as outside appellate counsel for this case, Connie L. Lensing of Memphis, Tennessee – a Vice President of Litigation at Fed Ex – argued for petitioners. During her argument, it became clear that the Court simply did not buy Fed Ex’s argument that a document filed by a plaintiff could not be a charge until the EEOC gave notice to the employer. Justice Scalia made this point most clearly by analogizing Fed Ex’s position to the Rules of Civil Procedure. “My goodness,” he said, “It’s like saying there’s not a complaint until an answer is filed.”

The majority of Ms. Lensing’s time was spent on two related inquiries. First, she was asked repeatedly – again most pointedly by Justice Scalia – about what constitutes a charge, assuming that notice by the EEOC was not required. Her eventual answer was that “a charge needs to clearly delineate that it’s a charge.” From her perspective, the plaintiff’s intake questionnaire did not do so. Secondly, she was asked a number of times by several of the justices what should happen if an employee files something that is clearly a charge, the EEOC fails to act, and the employee then brings suit. While Ms. Lensing initially argued that the suit should be dismissed so that the EEOC could initiate conciliation absent the backdrop of ongoing litigation, a majority of the Court seemed to prefer a remedy of equitable tolling rather than dismissal. Justice Souter crystallized the Court’s thinking, by asking why a plaintiff should have to pay a second filing fee “when it wasn’t the plaintiff’s fault.”

David L. Rose of Washington, D.C. argued for respondent Holowecki. Mr. Rose attempted to rely on the EEOC regulations that require that a charge only identify the employer, identify the kind of discrimination, and be signed by the charging employee to support the claim that his client’s submission was a charge. He was quickly challenged by Justice Alito, who asked whether an employee’s submission would be a charge if it met those three requirements but the employee “check[ed] the box that says ‘I do not consent to have my employer notified.’” As the ADEA requires that employers be notified of all charges, such a submission could not be a charge notwithstanding its compliance with the regulations. While Mr. Rose attempted to evade Justice Alito’s question as “not presented here,” the justices pressed the issue further. Clearly frustrated by the EEOC’s lack of clarity, Justice Scalia at one point asked, to laughter, “what kind of an agency is this?” By the end of his argument, Mr. Rose appeared to acknowledge that an intake form filled out by an employee who did not consent to have his employer notified could not be a charge, but he struggled to find a basis for drawing this line.

Last, Toby J. Heytens of the Solicitor General’s Office argued in support of Respondent Holowecki. Before he could even get a sentence in edgewise, he received a verbal tongue-lashing from Justice Scalia largely directed at the EEOC:

[M]y main concern in this case, however the decision comes out, is to do something that will require the EEOC to get its act in order, because this is nonsense: These regulations that are contradicted by forms; this failure to give notice, but it’s ok because it’s a charge anyway. This whole situation can be traceable back to the agency. . . it’s the agency’s fault, and this scheme has to be revised.

Mr. Heytens agreed wholeheartedly with Justice Scalia’s criticism and claimed that the problems highlighted by this case had been solved by the agency in the years since the case was first filed. Turning to the merits, he echoed Mr. Rose in arguing that a charge should contain the three requirements in the agency regulations – the name of the employer, identification of the kind of discrimination, and the signature of the charging employee – and also should demonstrate the intent of the employee to file a charge.

Justice Breyer acknowledged that Mr. Heytens had proposed a reasonable rule but asked where the intent portion of the proposed rule came from. Mr. Heytens pointed to four different places – three memoranda and policy manuals internal to the EEOC and one statement accompanying the final rule promulgated by the agency pursuant to notice and comment rulemaking. While Chief Justice Roberts pointed out that the Court does not generally give Chevron deference to internal memoranda and policy manuals, Mr. Heytens argued that these sources represented the “agency’s considered judgment about the proper interpretation of its regulations” and were thus entitled to deference under Auer v. Robbins. Finally, Mr. Heytens agreed with the justices who had earlier suggested that equitable tolling was generally the appropriate relief in a case where the EEOC received a submission from an employee that was clearly a charge, but the agency failed to provide notice to the employer.