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VOL. 122 | NO. 212 | Wednesday, November 7, 2007

Supreme Court Looks at FedEx Age Discrimination Case

By MARK SHERMAN | Associated Press Writer

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WASHINGTON (AP) - The Supreme Court signaled Tuesday that employees who claim job discrimination should not suffer because of mistakes made by the federal agency charged with investigating their allegations.

The justices came down hard on the Equal Employment Opportunity Commission in a case that was argued Tuesday about whether an age discrimination lawsuit against FedEx Corp. can proceed.

At issue is whether the EEOC's failure to notify FedEx about a complaint filed by FedEx courier Patricia Kennedy and 13 other employees should lead to the dismissal of the lawsuit.

Chief Justice John Roberts said he agreed that the law requires FedEx to be notified about a complaint before a lawsuit is filed so that the company can investigate and attempt to resolve it before lawyers and judges intervene.

"But I don't understand your leap from government incompetence to the plaintiff loses," Roberts told FedEx lawyer Connie Lensing.

Justice Antonin Scalia was even more pointed about the EEOC. "My main concern is to do something that will require the EEOC to get its act in order because this is nonsense," Scalia said.

Toby Heytens, the Justice Department lawyer representing the EEOC, agreed that the agency has been inconsistent about notifying employers when it receives complaints. But Heytens said the agency has tried to clarify its practices.

In August, the EEOC sent a memo to its field agents to advise them of the Supreme Court case and remind them to act promptly. "That situation should not have occurred, and this guidance is intended to insure that timely notice of charges is sent," said the memo, which is posted on EEOC's Web site.

David Rose, the lawyer representing the FedEx employees, said he is certain the EEOC received Kennedy's complaint because he sent it via FedEx.

Justice Clarence Thomas led the EEOC in the 1980s, but he maintained his customary silence in the courtroom Tuesday.

The Memphis, Tenn.-based company argued that the suit should be dismissed because Kennedy did not file a formal charge alleging age discrimination with the EEOC until after she sued FedEx. The other employees joined Kennedy's complaint.

Federal law requires plaintiffs to file a complaint with the EEOC and wait 60 days before they sue an employer. The law is intended to give the EEOC the opportunity to notify the company accused of discrimination, investigate the charges and seek to resolve them before a suit is filed.

The FedEx employees said Kennedy filed a form with the EEOC in December 2001 that included the information necessary to comply with that law and that the suit she and her colleagues filed in April 2002 should be allowed to proceed.

A district court dismissed the case, but the U.S. 2nd Circuit Court of Appeals, based in New York City, ruled in March 2006 that the case should be allowed to proceed. The court found that the EEOC's failure to follow through on Kennedy's complaint and notify FedEx should not preclude the plaintiffs' right to sue.

A decision should come in the next few months.

The case is Federal Express Corp. v. Paul Holowecki, et al. 06-1322.

Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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