Delaware Employment Law Blog

The Third Circuit, which governs Delaware, New Jersey, and Pennsylvania, applied a strict interpretation of Rule 23(f) and affirmed dismissal of a class action against Johnson & Johnson. The case, Gutierrez v. Johnson & Johnson, was filed by African-American and Hispanic former J&J employees alleging race discrimination--8,600 employees in all.

The federal District Court in New Jersey declined to certify the group as a class. Notably, the court found that the group had failed to identify any J&J policy that was discriminatory. The court also cited the diversity and size of the group as factors weighing against class certification.

Now, hang in there, this is where it starts to get complicated.

The potential class could have filed an appeal with the Third Circuit after the District Court issued its decision denying certification. But, instead, they wanted to file a motion for reconsideration. J&J agreed to an extension of time for the employee to file their motion. The court granted the requested extension but eventually denied the motion for reconsideration, upholding its denial of class status.

The employee-petitioners sought permission tofile an interlocutory appeal with the Third Circuit. The petition was filed within ten days of the District Court’s denial of their motion for reconsideration but 125 days after the original decision denying class certification.

A petition to appeal must be filed within 10 days. When a motion for reconsideration is timely filed, though, the 10 day-clock stops running until the motion is decided. Here, the employee-petitioners filed their motion within the deadline set by the District Court's scheduling order. That was not enough for the Third Circuit. Instead, the court found that the 10-day requirement was mandatory--within 10 days of the decision denying class certification, the party has 10, and only 10, days within which to file an appeal.

The fact that the motion for reconsideration was timely for purposes of the District Court’s scheduling order did not matter. According to the Third Circuit, much to Johnson & Johnson's relief, Rule 23(f) of the Federal Rules of Civil Procedure is strict and mandatory.

On Wednesday, the US Supreme Court decided the question, "When Is a Charge a Charge?" According to the Supreme Court's decision in Federal Express v. Holowecki, the answer may leave some employers wanting for more.

Current and former FedEx employees filed an "intake questionnaire" withthe Equal Employment Opportunity Commission (EEOC), alleging that they had been subject to unlawful discrimination based on their ages. The Age Discrimination in Employment Act (ADEA), requires an employee to exhaust her remedies at the administrative level, either with the EEOC or the local state agency, before she can proceed with a civil lawsuit.

The administrative process begins with the complainant going to the EEOC or state agency and completing a Charge of Discrimination. A "Charge" form is a simple, one-page form designed to capture only the most basic information about the allegations; i.e., employer's name and address, number of employees, protected class asserted, adverse action, and a brief narrative.

Here, the plaintiffs filed an "intake questionnaire," instead of a Charge. The former is a "fill-in-the-blank" question and answer form that the complainant would normally fill out after her initial intake interview and Charge are completed.

The EEOC says that a filing will be considered a Charge, "so long as it reasonably be construed to request agency action and appropriate relief on the employee's behalf." The EEOC failed to notify FedEx about the allegations--meaning that FedEx had no opportunity to respond to the claims before being sued. The Court held that the plaintiff should not be penalized for the EEOC's mistake:

The Federal Government interacts with individual citizens through all but countless forms, schedules, manuals, and worksheets. Congress, in most cases, delegates the format and design of these instruments to the agencies that administer the relevant laws and processes. An assumption underlying the congressional decision to delegate rulemaking and enforcement authority to the agency, and the consequent judicial rule of deference to the agency's determinations, is that the agency will take all efforts to ensure that affected parties will receive the full benefits and protections of the law. Here, because the agency 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 employer's interests, in particular, were given short shrift, for it was not notified of respondent's complaint until she filed suit. The court that hears the merits of this litigation can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. True, that remedy would be imperfect. Once the adversary process has begun a dispute may be in a more rigid cast than if conciliation had been attempted at the outset.

This result is unfortunate, but, at least in this case, unavoidable. While courts will use their powers to fashion the best relief possible in situations like this one, the ultimate responsibility for establishing a clearer, more consistent process lies with the agency. The agency already has made some changes to the charge-filing process. ... To reduce the risk of further misunderstandings by those who seek its assistance, the agency should determine, in the first instance, what additional revisions in its forms and processes are necessary or appropriate.

This decision is disappointing, though not necessarily surprising. The courts are always hesitant to dismiss a plaintiff's claim because of a procedural defect--especially when that defect was not caused by the plaintiff. Despite the sense of unfairness to the employer that results from this case, the Court's decision did contain one small trinket of employer victory. In it's opinion, the Court scolded the Commission to get its act together by evaluating its internal processes in an effort to avoid this sort of beaurocratic oversight again in the future. A small victory for sure. Read the full text of the Court's decision here.