age discrimination

18-882

Issues

To prove a violation of the federal-sector provision of the Age Discrimination in Employment Act, must a plaintiff prove that age discrimination was a but-for cause of an adverse employment action or merely a motivating factor?

This case asks the Supreme Court to determine whether, under Section 633a(a) of the Age Discrimination in Employment Act of 1967 (“ADEA”), federal-sector plaintiffs must show that age discrimination was the but-for cause of an adverse employment action, or whether federal-sector plaintiffs must merely show that their age was a motivating factor for the adverse action. Section 633a(a) states that employment decisions affecting employees or applicants at least 40 years of age “shall be made free from any discrimination based on age.” Noris Babb, a clinical pharmacist, sued Secretary of the Department of Veterans Affairs (“VA”) Robert Wilkie alleging, among other claims, age and gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the ADEA after she was denied a promotion, training, and two clinic positions. Babb argues that Section 633a(a) requires her only to prove that age was a motivating factor in the VA’s adverse personnel decisions. Wilkie, on the other hand, contends that Section 633a(a) requires Babb to prove that age was the but-for cause of—that is, the actual reason for—the employment decisions. This case has implications on the ability of federal-sector workers to prove age discrimination claims under the ADEA.

Questions as Framed for the Court by the Parties

Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age,” 29 U.S.C. § 633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.

In 2004, Noris Babb joined the C.W. “Bill” Young Veterans Affairs (“VA”) Medical Center’s Pharmacy Services division in Bay Pines, Florida as a clinical pharmacist. Babb v. Wilkie at 2–3. Two years later, Babb began working as a geriatrics pharmacist in the Medical Center’s Geriatric Clinic, a position governed by a service agreement between the Pharmacy Services division and the Geriatric Clinic. Id. at 3.

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Acknowledgments

The authors would like to thank Professor Angela B. Cornell for her guidance and insights into this case.

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Federal Express Corporation v. Holowecki

Issues

Whether filing an “Intake Questionnaire” with the Equal Employment Opportunity Commission (“EEOC”) alleging illegal age discrimination under the Age Discrimination in Employment Act has the same legal effect as filing the EEOC’s form titled “Charge of Discrimination.”

 

In 2001, Patricia Kennedy filed an “intake questionnaire” with the Equal Employment Opportunity Commission (“EEOC”) alleging age discrimination by her employer, Federal Express Corporation (“FedEx”), against her and other couriers. Because she did not file a formal “charge” document, the EEOC did not notify FedEx, investigate the claims, or begin conciliation efforts. Five months later, Kennedy, along with thirteen other past and present FedEx couriers over the age of forty, filed suit over this issue in federal court. The trial court granted FedEx’s motion to dismiss, ruling (among other things) that Kennedy could not sue because she never filed a timely charge with the EEOC as required by the Age Discrimination in Employment Act (“ADEA”). The U.S. Court of Appeals for the Second Circuit reversed, holding that Kennedy’s intake questionnaire is a “charge” for the ADEA’s purpose because it manifests her intent to activate the EEOC’s investigation and conciliation process.

 

    Questions as Framed for the Court by the Parties

    Whether the Second Circuit erred in concluding, contrary to the law of several other circuits and implicating an issue this Court has examined but not yet decided, that an "intake questionnaire" submitted to the Equal Employment Opportunity Commission ("EEOC") may suffice for the charge of discrimination that must be submitted pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.

    The Federal Express Corporation (“FedEx”) engages in the business of package transportation and delivery. Brief in Opposition to the Petition for Writ of Certiorari at 1. FedEx implemented new employee policies in 1994 and 1995. Holowecki v. Federal Express Corp., 440 F.3d 558, 562 (2d Cir. 2006). One of the policies required supervisors and couriers to set goals for the number of deliveries on each route. Id. Initially, couriers who met the goals received bonuses. Id.
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    Madigan v. Levin

    Issues

    Does the Age Discrimination in Employment Act provide the sole vehicle for age discrimination claims under federal law or are the claims covered under the Equal Protection Clause via 42 U.S.C. § 1983?

    Respondent Harvey N. Levin was an Assistant Attorney General (“AAG”) for the state of Illinois until his employment was terminated in May 2006. Levin sued Illinois Attorney General Lisa Madigan and other state Petitioners under the Age Discrimination in Employment Act (“ADEA”) and the Equal Protection Clause via 42 U.S.C. § 1983. Madigan argues the ADEA precludes Levin’s § 1983 claim. Levin contends the ADEA does not preclude a § 1983 claim for age discrimination and even if the ADEA does preclude such a claim, the ADEA does not apply to him because he is not an “employee” for ADEA purposes. In contrast with four other circuit decisions, the Seventh Circuit held that the ADEA does not preempt § 1983 claims. If the lower court’s ruling stands, Levin will be able to pursue his age discrimination claim in court. The Supreme Court can decide what avenues government workers have to pursue age discrimination claims. The decision will also impact the volume of cases that states, and other levels of government, will need to defend.

    Questions as Framed for the Court by the Parties

    Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the Federal Age Discrimination in Employment Act's comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.

    Facts

    In 2000, at the age of 55, Levin began working as an AAG for the state of Illinois. See Levin v. Madigan, 692 F.3d 607, 609 (7th Cir. 2012). After six years and a promotion to Senior AAG, Madigan’s office terminated Levin’s employment.

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    Meacham v. Knolls Atomic Power Laboratory

    Issues

    After an employee shows that an employment practice had a disparate impact on older workers, and after an employer presents evidence that the challenged practice was neutral, does the employer have to convince the jury that its policy was "reasonable," or does an employee have to convince the jury the policy was "unreasonable?"

     

    In this case, a hair's breadth of analytical difference is worth almost $6 million dollars, as the plaintiffs, former employees at Knolls Atomic Power Laboratory ("KAPL") ask the U.S. Supreme Court to overturn the Second Circuit's finding for the defendants. The plaintiffs had prevailed at trial and on appeal on a disparate impact theory of illegal age discrimination under the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. 621 et seq., when the Supreme Court remanded for reconsideration in light of Smith v. City of Jackson. While upholding the disparate impact theory, City of Jackson also requires the touchstone of the analysis to be whether employers considered "reasonable factors other than age," which the Second Circuit determined was a burden of persuasion to be borne by the plaintiffs. The employee-plaintiffs disagree, maintaining that the "reasonable factors other than age" harbor in the ADEA statute is a traditional affirmative defense on which the employer-defendants bear the burden of proof. In determining where the burden rests, the Supreme Court's decision will impact the nature of future employee litigation under the ADEA, shape the strategies for a successful reduction in force, and determine what deference is due the Equal Employment Opportunity Commission's regulations interpreting the ADEA.

    Questions as Framed for the Court by the Parties

    Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the "reasonable factors other than age" defense, as held by the Second Circuit in this case in conflict with the decisions of other circuits and a regulation of the Equal Employment Opportunity Commission.

    Knolls Atomic Power Laboratory (the "Lab") draws its workforce of 2,600 from the small upstate New York towns of Niskayuna and New Milton.

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    Mount Lemmon Fire District v. Guido

    Issues

    Does the Age Discrimination in Employment Act apply to state political subdivisions regardless of how many employees they have, or only to state political subdivisions with at least twenty employees?

    This case asks the Supreme Court to resolve whether the Age Discrimination in Employment Act (“ADEA”) applies to political subdivisions of a state regardless of the subdivision’s number of employees, or whether the ADEA applies only to those political subdivisions of a state that have at least twenty employees for statutorily-required length of time. Mount Lemmon Fire District contends that the ADEA defines “employer” to cover only political subdivisions having twenty or more employees. John Guido and Dennis Rankin assert that the ADEA’s definition of “employer” creates separate categories of employers, one of which is state political subdivisions with no minimum-employee requirement. The outcome of this case will have implications on the liability of small state political subdivisions under the ADEA for age-based hiring decisions.

    Questions as Framed for the Court by the Parties

     Under the ADEA, does the same twenty-employee minimum that applies to private employers also apply to political subdivisions of a State, as the Sixth, Seventh, Eighth, and Tenth Circuits have held, or does the ADEA apply instead to all State political subdivisions of any size, as the Ninth Circuit held in this case?

    In 1967, Congress passed the Age Discrimination in Employment Act (“ADEA”) “to protect older workers from ‘arbitrary age discrimination in employment.’” Guido v. Mount Lemmon Fire District at 3, 5. Originally, the statute—which applies to “employers,”—only applied to private-sector employers.

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    Sprint/United Management v. Mendelsohn

     

    In her Age Discrimination in Employment Act (ADEA) suit against Sprint, Ellen Mendelsohn sought to use the testimony of other Sprint employees who claimed to have experienced age discrimination at Sprint. This evidence falls into the category sometimes called "me too" testimony, because the employees did not share a supervisor with Mendelsohn and were not parties in Mendelsohn's litigation. The district court rejected the "me too" testimony, interpreting a past Tenth Circuit ruling to mean that testimony of other employees was admissible only if the other employees worked under the same supervisor and were fired around the time Sprint fired Mendelsohn. The Tenth Circuit reversed, holding that the same-supervisor requirement only applied in discriminatory discipline actions, not in cases like Mendelsohn involving allegations of company-wide discrimination.� Currently, four circuits hold that "me too" evidence is irrelevant and thus inadmissible, while another five circuits hold that such evidence is excludable at the discretion of the court. The Tenth Circuit's holding departs from both of these views. By deciding Sprint v. Mendelsohn, the Supreme Court will resolve this circuit split regarding "me too" evidence. The Court's decision will affect the ability of employees to prove company-wide discrimination. Its ruling will be particularly important because it will apply not only to ADEA, but also to suits brought under a range of federal anti-discrimination statutes.�

    Questions as Framed for the Court by the Parties

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