US - EEOC "intake
questionnaire" can be treated as a
Federal Express Corp
v. Holowecki (US Supreme Court 02/27/2008)
Age Discrimination in Employment Act of 1967 (ADEA) requires
that "[n]o civil action ... be commenced ... until 60
days after a charge alleging unlawful discrimination has been
filed with the Equal Employment Opportunity Commission"
(EEOC), 29 U. S. C. §626(d), but does not define the term
"charge." After petitioner delivery service (FedEx)
initiated programs tying its couriers' compensation and
continued employment to certain performance benchmarks,
respondent Kennedy (hereinafter respondent), a FedEx courier
over age 40, filed with the EEOC, in December 2001, a Form 283
"Intake Questionnaire" and a detailed affidavit
supporting her contention that the FedEx programs
discriminated against older couriers in violation of the ADEA.
In April 2002, respondent and others filed this ADEA suit
claiming, inter alia, that the programs were veiled attempts
to force out, harass, and discriminate against older couriers.
FedEx moved to dismiss respondent's action, contending she had
not filed the "charge" required by §626(d).
Respondent countered that her Form 283 and affidavit
constituted a valid charge, but the District Court disagreed
and granted FedEx's motion. The Second Circuit reversed.
1. In addition to the
information required by the implementing regulations, i.e., an
allegation of age discrimination and the name of the charged
party, if a filing is to be deemed a "charge" under
the ADEA it must be reasonably construed as a request for the
agency to take remedial action to protect the employee's
rights or otherwise settle a dispute between the employer and
the employee. Pp. 3-13.
(a) There is little dispute
that the EEOC's regulations-so far as they go-are reasonable
constructions of the statutory term "charge" and are
therefore entitled to deference under Chevron U. S. A. Inc.
v. Natural Resources Defense Council, Inc., 467 U. S. 837
. However, while the regulations give some content to the term
charge, they fall short of a comprehensive definition. Thus,
the issue is the guidance the regulations give. Title 29 CFR
§1626.3 says: "charge shall mean a statement filed with
the [EEOC] which alleges that the named prospective defendant
has engaged in or is about to engage in acts in violation of
the Act." Section 1626.8(a) identifies information a
"charge should contain," including: the employee's
and employer's names, addresses, and phone numbers; an
allegation that the employee was the victim of age
discrimination; the number of employees of the charged
employer; and a statement indicating whether the charging
party has initiated state proceedings. Section 1626.8(b),
however, seems to qualify these requirements by stating that a
charge is "sufficient" if it meets the requirements
of §1626.6-i.e., if it is "in writing and ... name[s]
the prospective respondent and ... generally allege[s] the
discriminatory act(s)." That the meaning of charge
remains unclear, even with the regulations, is evidenced by
the differing positions of the parties and the Courts of
Appeals on the matter. Pp. 3-5.
(b) Just as this Court defers
to reasonable statutory interpretations, an agency is entitled
to deference when it adopts a reasonable interpretation of its
regulations, unless its position is " ' plainly erroneous
or inconsistent with the regulation,' " Auer v.
Robbins, 519 U. S. 452 . The Court accords such deference
to the EEOC's position that its regulations identify certain
requirements for a charge but do not provide an exhaustive
definition. It follows that a document meeting §1626.6's
requirements is not a charge in every instance. The language
in §§1626.6 and 1626.8 cannot be viewed in isolation from
the rest of the regulations. While the regulations' structure
is less than clear, the relevant provisions are grouped under
the title, "Procedures-Age Discrimination in Employment
Act." A permissible reading is that the regulations
identify the procedures for filing a charge but do not state
the full contents of a charge. Pp. 5-6.
(c) That does not resolve
this case because the regulations do not state what additional
elements are required in a charge. The EEOC submits, in
accordance with a position it has adopted in internal
directives over the years, that the proper test is whether a
filing, taken as a whole, should be construed as a request by
the employee for the EEOC to take whatever action is necessary
to vindicate her rights. Pp. 6-8.
(d) The EEOC acted within its
authority in formulating its request-to-act requirement. The
agency's policy statements, embodied in its compliance manual
and internal directives, interpret not only its regulations
but also the statute itself. Assuming these interpretive
statements are not entitled to full Chevron deference,
they nevertheless are entitled to a "measure of
respect" under the less deferential standard of Skidmore
v. Swift & Co., 323 U. S. 134 , see Alaska Dept. of
Environmental Conservation v. EPA, 540 U. S. 461 , whereby
the Court considers whether the agency has consistently
applied its position, e.g., United States v. Mead Corp., 533
U. S. 218 . Here, the relevant interpretive statement has been
binding on EEOC staff for at least five years. True, the
agency's implementation has been uneven; e.g., its field
office did not treat respondent's filing as a charge, and, as
a result, she filed suit before the EEOC could initiate
conciliation with FedEx. Such undoubted deficiencies are not
enough, however, to deprive an agency that processes over
175,000 inquiries a year of all judicial deference. Moreover,
the charge must be defined in a way that allows the agency to
fulfill its distinct statutory functions of enforcing
antidiscrimination laws, see 29 U. S. C. §626(d), and
disseminating information about those laws to the public, see,
e.g., Civil Rights Act of 1964, §§705(i), 705(g)(3). Pp.
(e) FedEx's view that because
the EEOC must act "[u]pon receiving ... a charge,"
29 U. S. C. §626(d), its failure to do so means the filing is
not a charge, is rejected as too artificial a reading of the
ADEA. The statute requires the aggrieved individual to file a
charge before filing a lawsuit; it does not condition the
individual's right to sue upon the agency taking any action.
Cf. Edelman v. Lynchburg College, 535 U. S. 106 .
Moreover, because the filing of a charge determines when the
ADEA's time limits and procedural mechanisms commence, it
would be illogical and impractical to make the definition of
charge dependent upon a condition subsequent over which the
parties have no control. Cf. Logan v. Zimmerman Brush Co.,
455 U. S. 422 . Pp. 12-13.
2. The agency's determination
that respondent's December 2001 filing was a charge is a
reasonable exercise of its authority to apply its own
regulations and procedures in the course of the routine
administration of the statute it enforces. Pp. 13-17.
(a) Respondent's completed
Form 283 contained all the information outlined in 29 CFR §1626.8,
and, although the form did not itself request agency action,
the accompanying affidavit asked the EEOC to "force
[FedEx] to end [its] age discrimination plan." FedEx
contends unpersuasively that, in context, the latter statement
is ambiguous because the affidavit also stated: "I have
been ... assur[ed] by [the EEOC] that this Affidavit will be
considered confidential ... and will not be disclosed ...
unless it becomes necessary ... to produce the affidavit in a
formal proceeding." This argument reads too much into the
nondisclosure assurances. Respondent did not request the EEOC
to avoid contacting FedEx, but stated only her understanding
that the affidavit itself would be kept confidential and, even
then, consented to disclosure of the affidavit in a
"formal proceeding." Furthermore, respondent checked
a box on the Form 283 giving consent for the EEOC to disclose
her identity to FedEx. The fact that respondent filed a formal
charge with the EEOC after she filed her District Court
complaint is irrelevant because postfiling conduct does not
nullify an earlier, proper charge. Pp. 13-15.
(b) Because the EEOC failed
to treat respondent's filing as a charge in the first
instance, both sides lost the benefits of the ADEA's informal
dispute resolution process. The court that hears the merits
can attempt to remedy this deficiency by staying the
proceedings to allow an opportunity for conciliation and
settlement. While that remedy is imperfect, it is unavoidable
in this case. However, the ultimate responsibility for
establishing a clearer, more consistent process lies with the
EEOC, which should determine, in the first instance, what
revisions to its forms and processes are necessary or
appropriate to reduce the risk of future misunderstandings by
those who seek its assistance. Pp. 16-17.
F. 3d 558, affirmed.
KENNEDY, J., delivered the
opinion of the Court, in which ROBERTS, C. J., and STEVENS,
SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J.,
filed a dissenting opinion, in which SCALIA, J., joined.