FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARK HOHIDER and ROBERT DIPAOLO, )
On Behalf of Themselves and All Others )
Similarly Situated, )
)
Plaintiffs, ) Civil Action No. 04-0363
)
v. ) Judge Joy Flowers Conti
)
UNITED PARCEL SERVICE, INC., and )
DOES 1-100, )
)
Defendants. )
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF HOHIDER AND IN OPPOSITION
TO UPS'S MOTION FOR SUMMARY JUDGMENT AS TO CLASS CLAIMS
STATEMENT OF FACTS
UPS hired Mark Hohider in October 1986 to work as a part-time
Loader/Unloader in its
facility in New Stanton, Pennsylvania, located in the Laurel Mountain
District. R.1 (Complaint),
p. 7, ¶16.<1> In 1994, Hohider began working as a regular temporary
driver, assigned to cover
absences, overflow work, and vacations. R.72 (Appendix to Hohider
Response), p. 23. Hohider
was injured on the job in August 1999, when the UPS package car he was
driving was rear-
ended. Id. As a consequence of the accident, Hohider sustained a
herniated disc that has
substantially restricted his ability to lift, walk, and sit. Id., pp. 12-13.
Hohider went on medical leave from UPS to recover from his
accident-related injuries.
R.1, p. 7, ¶16. Beginning in October 2000, "and continuously
thereafter," Hohider requested to
return to work in a position "consistent with his permanent physical
restrictions," identified in
the "limited medical release" provided by "a UPS-selected physician."
Id. On January 4, 2001,
UPS responded to Hohider's "request for a job-related accommodation."
R. 72, p. 30. Having
"carefully evaluated" Hohider's request, and "based upon the medical
information" provided,
UPS reached a "preliminary determination that [Hohider] may be
eligible for a reasonable
accommodation pursuant to the [ADA]." Id. Hohider met with UPS on
January 16, 2001 and
completed an "Accommodation Checklist." See id., pp. 13, 31. On
February 6, 2001, however,
UPS informed Hohider that "after carefully reviewing your situation,
we are aware of no
available position at UPS at this time for which you are qualified and
capable of performing the
essential job functions with or without reasonable accommodation."
Id., p. 31. UPS invited
Hohider to contact UPS "[i]f your condition or abilities change in the
future . . . or you become
aware of an open position that you believe you are capable of
performing . . . so that we may re-
evaluate your situation." Id.
On March 20, 2001, Hohider filed a timely charge with the
Pennsylvania Human
Relations Commission (PHRC), which was "dual filed with the EEOC." R.
55 (UPS Concise
Statement of Facts), pp. 2-3. Hohider alleged UPS had violated
Pennsylvania's statutory
prohibition against disability-based employment discrimination by
"refusing to return [him] to
the active workforce," even though he had "informed UPS of positions
[he] could perform the
essential functions of with a reasonable accommodation." Id., p. 3.
Soon after filing his charge, Hohider engaged an attorney to
represent him. While his
charge was pending before the PHRC, Hohider's counsel informed the
state agency that UPS had
not responded to his client's efforts to provide updated medical
information, id., p. 32; denied
Hohider the opportunity, provided under the collective bargaining
agreement, to bump a less
senior worker holding a job that met his medical restrictions, id., p.
34; and continually refused to
return him to work in positions he had identified "which are within
his restrictions, as indicated
by UPS's doctor's signature." Id., p. 35. Counsel further notified
the PHRC "that the EEOC
recently entered a consent decree with UPS in Phoenix, regarding its
policy of requiring a 'full
release' before an injured worker could return to work," and that "Mr.
Hohider contends this
policy is still in place in and around the Pittsburgh area." Id., p.
36. Counsel enclosed a copy of
the consent decree, along with "a statement from another disabled UPS
employee, Bob DiPaolo,
indicating that UPS refused to permit him to take a job for which he
had won a bid." Id.
Counsel identified DiPaolo as "a witness to this policy and practice
of discrimination and
retaliation" by UPS, and provided his contact information so the PHRC
could interview him. Id.
On August 13, 2002, the PHRC issued a finding of no probable
cause and dismissed
Hohider's charge. Id., pp. 10-14. The PHRC found Hohider's herniated
disc is a physical
impairment that "does substantially limit one or more major life
activities," citing medical
testimony that Hohider is "substantially restricted in his lifting,
walking, and sitting." Id., pp. 12-
13. The PHRC further found that Hohider could no longer perform, with
or without reasonable
accommodation, the essential functions of the driver position he
occupied when he was injured.
Id., pp. 13-14. Under Pennsylvania law, the PHRC stated, an employer
"is not obligated . . . to
provide [a disabled employee] with an alternative position as an
accommodation." Id., p. 14.
Because Hohider was no longer able to perform the driver position he
last held at UPS, the
PHRC concluded that he does not "meet[] the legal definition of a
disabled person under" state
law, and UPS therefore was not "required to engage in the interactive
process of finding an
accommodation."<2> Id.
On September 5, 2002, Hohider timely requested that the EEOC
conduct a "substantial
weight review" of the PHRC's no cause finding. Id., p. 56; see 29
C.F.R. § 1601.21(e). Hohider
submitted an affidavit, executed October 19, 2002, to supplement the
allegations contained in his
original charge. Id., pp. 57-58. Hohider's affidavit recounted UPS's
continuing refusal to return
him to work, pursuant to a "well-known company policy that UPS will
not allow an injured or
disabled employee to return to work until he submits a full release,"
and gave specific examples
from his own experience that illustrated "the company's policy of
nonaccommodation." Id.
Counsel's accompanying letter stated that "[w]ith rare exceptions, in
the Greater Pittsburgh
metro area, UPS continues to enforce the same de facto policy of
requiring a 'full release' before
it will return an injured employee to work," and that this "de facto
policy" was the subject of the
EEOC's enforcement action and consent decree in Arizona. Id., p. 59.
Counsel enclosed a copy
of that consent decree, and asserted that "[s]uch a policy is one of
non-accommodation of an
individual with a disability and is, per se, a violation of the ADA." Id.
Counsel also alerted the Commission to a previous administrative
charge against UPS,
alleging "the same unlawful policy of non-accommodation," filed in
1996 by an employee who
"was similarly told he had to provide a 'full release' before any
reinstatement would even be
considered," and advised that DiPaolo, another employee at the UPS
facility where Hohider
worked, had "recently filed a nearly identical Charge." Id., p.60.
In closing, counsel offered to
"provide the names of additional potential" claimants, and requested
the EEOC to "investigate,
issue a cause finding, consolidate the cases, and file suit on behalf
of Mr. Hohider and the class
of workers subject to this illegal corporate policy." Id., p. 61.
In subsequent correspondence, Hohider's attorney provided
additional information and
evidence supporting the allegation that UPS in practice requires a
full or 100% unrestricted
medical release before allowing an employee to return to work from
medical leave. Id., pp. 64-
69. Included among these materials were the questionnaires,
affidavit, and formal charge that
DiPaolo filed with the EEOC. Id., pp. 74-89, 92-94. In his initial
questionnaire, dated July 2001,
DiPaolo alleged that "UPS has a policy of non-accomadition [sic] with
people with disabilities
which continues in effect to this day." Id., p. 75. DiPaolo stated
in a subsequent questionnaire
that he was not allowed to return to work due to the "UPS attitude and
policy" that "you cannot
not [sic] return to do your original job or any job unless you are
released to full duty without any
restrictions." Id., p. 80. In a portion of his affidavit entitled
"Class Harm," DiPaolo stated his
belief "that [UPS's] policy of full medical releases is discriminatory
against disabled employees
as a group and that [UPS does] not even attempt to enter into the
interactive process with
employees with disabilities because of this policy." Id., p. 93.
In January 2003, the EEOC sent UPS a Request for Information in
connection with
DiPaolo's charge, id., pp. 97-101, asking the company to "[p]rovide
the names, job titles, and
departments of all employees who were similarly situated with the CP
and describe their
treatment in comparable situations." Id., p.100. Among "other
relevant information to be
considered in the investigation of [DiPaolo's] charge," the EEOC
requested UPS to "[s]tate,
describe and explain your policy, practice and procedure of requiring
100% full-releases of
employees" and to "[n]ame each and every person related to the New
Stanton facility who has
been denied reinstatement similar to that of [CP]." Id.
On February 28, 2003, Hohider's attorney wrote to counsel for UPS
to complain "that
UPS continues to adhere to its policies of nonaccommodation, and of
refusal to engage in the
interactive process." Id., p. 21A. The letter cautioned that unless
UPS decided to "abandon its
unlawful policies . . . it seems inevitable that another class action
lawsuit will be required to
convince UPS to treat Mr. Hohider, and others, with the same respect
and the opportunities to
work as those enjoyed by persons without disabilities, and advised UPS
that Hohider's "case file
is currently under review by the EEOC." Id., p. 21B. The EEOC
received the PHRC's case file
on Hohider's complaint in early June 2003. Id., p. 73.
On July 18, 2003, the EEOC issued substantially identical letters
of determination to
Hohider and DiPaolo, finding in each case that "the evidence obtained
during the investigation
establishes a violation of the [ADA]." Id., pp. 15-18. The EEOC
determined that "[e]mployees
having a limited prospect of recovery are not eligible to participate"
in UPS's light duty program,
"which eliminates all persons who qualify under the ADA," and that UPS
"has a 100% full
medical release practice, which . . . is a per se violation of the
ADA." Id., pp. 15, 17. On
September 4, 2003, the EEOC proposed a conciliation agreement to
resolve both charges. Id.,
pp. 20-21. In addition to seeking reinstatement and make-whole relief
for Hohider and DiPaolo,
the EEOC proposed that UPS would agree to the following "general
provisions": "immediately
re-negotiate the light duty program so that it is not rehabilitative
in nature and includes any
person who is qualified under the ADA"; "eliminate [its] practice of
requiring 100% full medical
releases"; "implement a policy regarding reasonable accommodation
which clearly demonstrates
that [UPS] will enter into the interactive process in the future";
ensure "that all [its] policies and
practices do not discriminate against any person identified as
disabled or violates [sic] provisions
of the ADA"; and notify "all employees" of these "changes" in policy. Id.
On September 24, 2003, UPS refused the EEOC's offer to conciliate
Hohider's charge.
Id., pp. 22-29. UPS asserted that "Hohider has not at any relevant
time been substantially limited
in any major life activity," and "decline[d] the EEOC's request for
conciliation as it pertains to
any monetary or other relief to Hohider." Id., p. 23. UPS further
maintained that the EEOC was
"mistaken" in its determination "(i) that UPS 'has a 100% full medical
release practice' and (ii)
that UPS's light duty program excludes 'person[s] who [are]
qualif[ied] under the ADA.'" Id.
Quoting extensively from UPS's Management Guide and ADA Compliance
Manual, id., pp. 25-
26, the company insisted that its "policies regarding accommodations
under the ADA are
compliant with the law and there is no basis for suggesting that UPS
maintains a policy that
violates the ADA." Id., p. 27. UPS argued that the finding of a
"'100% full medical release
practice' . . . is untrue, as demonstrated by the proceedings in
another matter before the EEOC
involving the same UPS district, the Laurel Mountain District, where
Hohider worked." Id.
(citing Michelle D. Miller v. United Parcel Service, Inc., EEOC Charge
No. 172-A11076). While
the EEOC found no probable cause that UPS had discriminated against
the charging party in that
case, the agency "raised this purported return to work policy" because
during "'the course of the
investigation, two [UPS] employees described a return to work policy
in a manner that conflicts
with UPS policy and with the [ADA].'" Id. (quoting Conciliation
Agreement between EEOC
and UPS). The EEOC had credited UPS's explanation, in that case, that
"the two UPS employees
who were handling UPS's response to the charge . . . had misstated
UPS's policy," and agreed
with UPS's proposal to provide "training" to those two employees and
issue a general notice
about the company's ADA Compliance Program "to all managers and
supervisors in the Laurel
Mountain District." Id., pp. 27-28.
The EEOC informed Hohider on December 10, 2003, that conciliation
efforts had failed
and issued a Notice of Right to Sue. R.1, Ex. A. Hohider and
DiPaolo, "individually and on
behalf of all others similarly situated," timely filed a "class
complaint" on March 10, 2004. R.1,
p. 1, ¶1. The complaint asserts that UPS engages in systemic
discrimination in violation of the
ADA by maintaining a de facto practice of requiring employees to
provide a full or 100%
medical release, without restrictions, before permitting them to
return to duty following a
medical leave of absence. Id., pp. 1-2, ¶ 2. UPS has moved for
summary judgment against
Hohider's class claims "on the ground that he failed to assert such
claims in his administrative
complaint." R. 52 (UPS Motion for S.J. on Class Claims), p. 1.
ARGUMENT
Summary judgment should be denied because Hohider's class claims of
systemic discrimination are within the scope of the EEOC's investigation,
determination, and conciliation of his charge.
Under the ADA, a class claim of systemic discrimination may be
asserted by a claimant
when the administrative investigation of his timely charge revealed
evidence of a policy or
practice of discrimination, regardless of whether his charge alleged
class-wide discrimination.
The charge filing requirement, established in Title VII and expressly
incorporated into the ADA,
see 42 U.S.C. § 12117(a), serves "to initiate the statutory scheme for
remedying discrimination."
Hicks v. ABT Associates, Inc., 572 F.2d 960, 963 (3d Cir. 1978). Upon
receiving a charge, the
EEOC "shall serve a notice of the charge (including the date, place,
and circumstances of the
alleged unlawful employment practice) on the employer . . . and shall
make an investigation
thereof," 42 U.S.C. § 2000e-5(b), "to determine whether there is
reasonable cause to believe that
the charge is true." Hicks, 572 F.2d at 963. If the investigation
leads to a cause finding, "the
Commission shall endeavor to eliminate any such alleged unlawful
employment practice by
informal methods of conference, conciliation, and persuasion." 42
U.S.C. § 2000e-5(b). "If no
reasonable cause is found, or if reconciliation attempts prove futile
within a certain time, the
charging party is issued a notice of his right to bring a civil
action." Hicks, 572 F.2d at 963. A
private litigant may seek judicial redress under Title VII or the ADA
only after receiving a right
to sue notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1).
The "effect of the [charge] filing requirement," the Third
Circuit has discerned, "is
essentially to permit the EEOC to use informal, non-judicial means of
reconciling the differences
between the charging party and an employer." Hicks, 572 F.2d at 963,
966 ("the purpose of the
filing requirement is to allow the EEOC to settle a complaint
informally"); see also Antol v.
Perry, 82 F.3d 1291, 1296 (3d Cir. 1996) ("The purpose of requiring
exhaustion is to afford the
EEOC the opportunity to settle disputes through conference,
conciliation, and persuasion,
avoiding unnecessary action in court."). Other courts have reached
the same conclusion. See,
e.g., Gregory v. Georgia Dept. of Human Resources, 355 F.3d 1277, 1279
(11th Cir. 2004) ("The
purpose of [Title VII's] exhaustion requirement 'is that the [EEOC]
should have the first
opportunity to investigate the alleged discriminatory practices to
permit it to perform its role in
obtaining voluntary compliance and promoting conciliation efforts.'")
(citations omitted);
Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985) ("Timely
filing affords the EEOC
'an opportunity to settle disputes through conference, conciliation,
and persuasion before the
aggrieved party [is] permitted to file a lawsuit.'") (quoting
Alexander v. Gardner-Denver Co.,
415 U.S. 36, 44 (1974)); Medina v. Reinhardt, 686 F.2d 997, 1013 (D.C.
Cir. 1982) ("The
'principal functions of the EEOC filing requirement' are to enable
'the EEOC to provide the
alleged wrongdoer with notice and to permit possible conciliation.'")
(citation omitted).
"Once a charge of some sort is filed with the EEOC," the Third
Circuit has held, "the
scope of a resulting private civil action in the district court is
'defined by the scope of the EEOC
investigation which can reasonably be expected to grow out of the
charge of discrimination . . .'"
Hicks, 572 F.2d at 966 (citation omitted). "This standard," the Court
decided, "is a fair
compromise of the interests expressed in Title VII in informal
settlement as a preferred method
of conflict resolution and the employee's right to a judicial forum
once the Commission has
finished processing a charge." Id. So long as a reasonable
investigation of the charge would
have disclosed the discriminatory practices alleged in the civil
complaint, the filing requirement
has served its statutory purpose of affording the EEOC a fair
opportunity to seek "[c]ooperation
and voluntary compliance" before permitting judicial recourse. See
Gardner-Denver, 415 U.S. at
44. Because "a technical reading" of the administrative filing
requirements "would be
'particularly inappropriate in a statutory scheme in which laymen,
unassisted by trained lawyers,
initiate the process,'" the Third Circuit's approach fully comports
with the Supreme Court's
"guiding principle for construing the provisions of Title VII." Zipes
v. Trans World Airlines,
455 U.S. 385, 397 (1982) (citation omitted); see Hicks, 572 F.2d at
965 ("[W]e keep in mind that
charges are most often drafted by one who is not well versed in the
art of legal description.
Accordingly, the scope of the original charge should be liberally
construed."); see also Babrocky,
773 F.2d at 865-66 ("An exact correspondence between the words of the
EEOC charge and the
judicial complaint" is not required.); Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 465 (5th
Cir. 1970) ("the specific words of the charge of discrimination need
not presage with literary
exactitude the judicial pleadings which may follow").
Other circuits have approved a similar analysis to determine if a
litigant's judicial claims
are fairly encompassed within the allegations of his administrative
charge. See Gregory, 355 F.3d
at 1280 ("In light of the purpose of the EEOC exhaustion requirement,
we have held that a
plaintiff's judicial complaint is limited by the scope of the EEOC
investigation which can
reasonably be expected to grow out of the charge of discrimination.");
Paige v. California, 102
F.3d 1035, 1041-42 (9th Cir. 1996) ("The district court here had
jurisdiction over the plaintiffs'
claim of class discrimination in promotion if that claim fell within
the scope of the EEOC's
actual investigation or an EEOC investigation which [could] reasonably
be expected to grow out
of the charge of discrimination.") (citation omitted); Schnellbaecher
v. Baskin Clothing Co., 887
F.2d 124, 128 (7th Cir. 1989) ("[I]t is not the scope of the actual
[EEOC] investigation pursued
that determines what [judicial] complaint may be filed, but what EEOC
investigation could
reasonably be expected to grow from the original [administrative
charge]."); Fellows v.
Universal Restaurants, 701 F.2d 447, 450-51 (5th Cir. 1983) ("a cause
of action for Title VII
employment discrimination may be based, not only upon the specific
complaints made by the
employee's initial EEOC charge, but also upon any kind of
discrimination like or related to the
charge's allegations, limited only by the scope of the EEOC
investigation that could reasonably
be expected to grow out of the initial charges of discrimination").
The scope of a reasonable EEOC investigation, moreover, depends
not only on the
contents of the charge itself, but also on any supporting
documentation and other materials
generated during the administrative process, including the EEOC's
determination. See, e.g.,
Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1280 (5th Cir. 1994)
(plaintiff's disparate treatment
claim, while not specifically alleged in charge, "was advanced before
the EEOC . . . because the
EEOC investigation of that claim was a reasonable consequence of
Clark's EEOC complaint and
supporting documentation"); Fellows, 701 F.2d at 448 (EEOC's request
for information relating
to applicants and employees other than plaintiff, and letter from
plaintiff's counsel advising
defendant that "a class action lawsuit would be filed" if settlement
could not be reached during
administrative process, supported conclusion that plaintiff's class
claims of sex discrimination
were within scope of discrimination alleged in charge). Thus, "an
inquiry into the scope of the
charge always entails an inquiry beyond the face of the complaint . .
. and may require evidence
of the breadth of the EEOC investigation that followed the filing of
the charge to determine
whether the charge was adequate to support all of the allegations
advanced in the complaint."
Babrocky, 773 F.2d at 863.
There is no question that Hohider's class claims – alleging that
UPS's practice of
requiring employees on medical leave to provide a full/100% medical
release to return to work
discriminates against a class of similarly situated individuals with
disabilities in violation of the
ADA – fall within the scope of the EEOC's reasonable investigation of
his charge. In his
original charge, filed pro se, Hohider alleged that UPS "refused to
reinstate [him] to the active
workforce because of [his] . . . disability," although "[UPS's] doctor
indicated that [he] could
return to work in a limited capacity" and he had "informed [UPS] of
positions that [he] could
perform . . . with a reasonable accommodation." R.55, p. 3.
Throughout the course of
administrative proceedings, Hohider supplemented his charge by
providing additional
information and materials to the PHRC and the EEOC. Through counsel,
Hohider informed the
PHRC of UPS's continuing refusal to reinstate him to jobs meeting his
medical restrictions, or to
make good faith efforts to identify and provide him with a reasonable
accommodation; provided
a copy of the 2001 consent decree entered to resolve the EEOC's claim
that the Desert Mountain
District of "UPS maintained a policy and practice of requiring
employees to provide a full
release without restrictions before returning to work after a medical
leave of absence"; and
furnished contact information for DiPaolo, another UPS employee who
allegedly experienced
"this policy and practice of discrimination and retaliation" by UPS.
See R. 72, pp. 32-36.
Upon Hohider's request for substantial review, the EEOC received
his PHRC case file,
id. p. 73, and the following additional information and materials:
Hohider's supplemental
affidavit, recounting UPS's continuing refusal to return him to work,
pursuant to a "well-known
company policy that UPS will not allow an injured or disabled employee
to return to work until
he submits a full release," id., pp. 57-58; notice of a prior charge
filed against UPS in 1996,
alleging "the same unlawful policy of nonaccommodation" against an
employee who "was
similarly told he had to provide a 'full release' before any
reinstatement would even be
considered," id., p. 60; and copies of DiPaolo's EEOC charge,
questionnaires, and affidavit, id.,
pp. 74-89, 92-94, in which he expressly alleged that UPS's "policy of
full medical releases is
discriminatory against disabled employees as a group and that [UPS
does] not even attempt to
enter into the interactive process with employees with disabilities
because of this policy." Id., p.
93. The EEOC's review of these materials led to its determination
that UPS maintains "a 100%
full medical release practice, which . . . is a per se violation of
the ADA," and discriminated
against Hohider, pursuant to this practice, by rejecting him for a
vacant position which met his
medical restrictions. Id., pp. 15-16. The EEOC's "investigation of a
particular claim," as
reflected in its charge determination, "creates a strong inference
that such a claim was presented"
in the administrative process, and is therefore properly within the
scope of a subsequent judicial
complaint. Clark, 18 F.3d at 1280 (EEOC's determination, which
treated charging party's
"gender-based harassment claim . . . as distinct from claims of sexual
harassment or retaliation,"
supported reversing summary judgment against claims of sex-based
disparate treatment).
UPS received actual notice, moreover, that the administrative
review of Hohider's charge
could lead to litigation claiming systemic discrimination against a
class of similarly situated
employees. In a letter dated February 2003, Hohider's attorney
notified UPS that the "case file is
currently under review by the EEOC," and warned that if "UPS continues
to adhere to its policies
of non-accommodation, and of refusal to engage in the interactive
process . . . it seems inevitable
that another class action lawsuit will be required to convince UPS to
treat Mr. Hohider, and
others, with the same respect and the opportunities to work as those
enjoyed by persons without
disabilities." R. 72, pp. 21A-21B. During this same period, while
Hohider's charge was pending
before the EEOC, UPS knew that DiPaolo, in his EEOC charge, similarly
alleged that the
company "has refused to allow me to return to work without a full
medical release from my
doctor" and "ignored" the statutory requirement that the company
engage in an "interactive
process" to determine a "reasonable accommodation." Id., p. 96. The
Request for Information in
connection with DiPaolo's charge, id., pp. 97-101, notified UPS in
January 2003 that the EEOC
was investigating whether the company maintained a "policy, practice
and procedure of requiring
100% full-releases of employees," and whether UPS had applied this
policy or practice to other
"employees who were similarly situated with the [charging party]."
Id., p. 100. Finally, the
EEOC's simultaneous letters of determination on Hohider's and
DiPaolo's charges, along with
the joint conciliation proposal, informed UPS that the investigation
had revealed "a 100% full
medical release practice, which . . . is a per se violation of the
ADA," id., pp. 15, 17, and
afforded UPS with an opportunity to eliminate the alleged
discriminatory practices and resolve
the charging parties' claims outside the judicial system. Id., pp. 20-21.
In seeking dismissal of Hohider's class claims, UPS urges the
district court to focus
exclusively on the facial contents of his "administrative complaint,"
which contains no allegation
of class-wide discrimination, and to ignore entirely the record of
administrative proceedings on
his charge, including the EEOC's investigation, determination, and
conciliation proposal. See R.
52, pp. 1-5. Although the Third Circuit has squarely held that "the
scope of a resulting private
civil action in the district court is 'defined by the scope of the
EEOC investigation which can
reasonably be expected to grow out of the charge of discrimination,'"
Hicks, 572 F.2d at 966
(citation omitted), UPS argues that rule does not govern whether
Hohider's class claims are
within the scope of his charge. Instead, UPS urges the court to
follow a line of cases in which a
claimant who never filed a charge (or whose charge was not timely)
files or joins a civil action as
a party plaintiff, and relies on the timely charge(s) filed by one or
more other claimants to satisfy
the charge-filing prerequisites. See, e.g., Lockhart v. Westinghouse
Credit Corp., 879 F.2d 43,
52-53 (3d Cir. 1989), overruled on other grounds by Hazen Paper v.
Biggins, 507 U.S. 604
(1993); Lusardi v. Lechner, 855 F.2d 1062, 1077 (3d Cir. 1988); Kloos
v. Carter-Day Co., 799
F.2d 397, 400 (8th Cir. 1986) (cited at R. 52, pp. 5-8); see also
Anderson v. Montgomery Ward,
852 F.2d 1008, 1016 (7th Cir. 1988); DeMedina v. Reinhardt, 686 F.2d
997, 1012-13 (D.C. Cir.
1982); Crawford v. United States Steel Corp., 660 F.2d 663, 665-66
(5th Cir. 1981); Bean v.
Crocker National Bank, 600 F.2d 754, 759-60 (9th Cir. 1979). Courts
have crafted the "piggy-
backing" or "single filing" rule to decide whether a claimant who did
not file a timely charge can
rely on a charge filed by someone else to satisfy the administrative
prerequisites to suit, and
have used different tests, either alone or in combination, for
determining whether
an administrative charge suffices to permit piggybacking by a
subsequent plaintiff.
The broadest test requires only that the claims of the
administrative claimant and
the subsequent plaintiff arise out of the same circumstances and
occur within the
same general time frame. . . . A somewhat narrower test requires that the
administrative claim give notice that the discrimination is
"class-wide," i.e., that it
alleges discrimination against a class of which the subsequent
plaintiff is a
member. . . . A still narrower test requires that the
administrative claim not only
allege discrimination against a class but also allege that the
claimant purports to
represent the class or others similarly situated.
Tolliver v. Xerox Corp., 918 F.2d 1052, 1057-58 (2d Cir. 1990)
(citations omitted). UPS
borrows the rule applied by the Third Circuit in these piggybacking
cases, see, e.g., Lockhart,
879 F.2d at 52-53; Lusardi, 855 F.2d at 1077, and asserts that because
Hohider did not expressly
allege class-wide discrimination in his charge, or formally amend his
charge to include such an
allegation, his class claims must be dismissed. R. 52, p. 15.
Plainly, the single filing rule does not apply here, since
Hohider filed an administrative
charge, which was the subject of extensive administrative proceedings,
including an
investigation, cause determination, and conciliation proposal by the
EEOC. The Supreme Court
has long recognized that a private Title VII litigant who has met the
charge-filing requirements
may seek "full relief" to be "'awarded on a class basis . . . without
exhaustion of administrative
procedures by unnamed class members.'" United Airlines, Inc. v.
McDonald, 432 U.S. 385, 389
n.6 (1977) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 414
n.8 (1975)); Franks v.
Bowman Transportation, 424 U.S. 747, 771 (1976) (reversing denial of
seniority relief for
unnamed class members who had not filed administrative charges).
Because Hohider satisfied
the administrative charge-filing prerequisites to bring suit under the
ADA, "the scope of . . . [his]
private civil action in the district court is defined by the scope of
the EEOC investigation which
can reasonably be expected to grow out of the charge of
discrimination." Hicks, 572 F.2d at 966
(internal quotation marks omitted).
Both the Ninth Circuit in Paige, 102 F.3d at 1041-42, and the
Fifth Circuit in Fellows,
701 F.2d at 460-51, have adopted the "scope of a reasonable
investigation" standard established
in Hicks to determine whether class claims asserted in litigation fall
within the scope of the
named plaintiff's administrative charge. This case does not present
the situation the single filing
rule was designed to address, i.e., whether an individual who never
filed a timely charge can
nevertheless file or intervene in a discrimination suit as a party
plaintiff to seek relief for himself
(and potentially for others). This Court should therefore reject
UPS's reliance on the standard
developed in the piggybacking context, and instead follow the analysis
adopted by the Third
Circuit in Hicks to determine whether Hohider's class claims exceed
the scope of his charge.
No court of appeals has used any variation of the single
filing/piggybacking test to
determine whether a plaintiff who filed a timely charge may assert
claims on behalf of unnamed
class members in subsequent litigation. Several district courts in
the Third Circuit, however,
have applied precedent developed in the context of the single filing
rule to dismiss class claims
of discrimination brought by plaintiffs who did not expressly allege
class-wide discrimination in
their charges. See, e.g., Hoffman v. R.I. Enterprises, 50 F. Supp. 2d
393, 399 (M.D. Pa. 1999);
Jackson v. Merck & Co., No. 99-CV-3069, 1999 WL 962522, at *5 (E.D.
Pa. Oct. 21, 1999);
Kresefsky v. Panasonic Communications & Sys. Co., 169 F.R.D. 54, 60-61
(D.N.J. 1996). UPS
relies heavily on these cases in seeking summary judgment on Hohider's
class claims. See R.54,
pp. 9-14. In the EEOC's view, these decisions are incorrect to the
extent they apply the single
filing rule, rather than the scope of the charge analysis, to decide
whether class claims advanced
by a plaintiff who filed a timely charge are within the scope of the
administrative proceedings on
his charge. Also, each of the cases is factually distinguishable from
Hohider's, because all of
these plaintiffs relied solely on the allegations of their
administrative charges to support their
assertion of class claims and argued (unsuccessfully) that a
reasonable EEOC investigation
would have encompassed class-wide discrimination. In none of these
three cases did the charges
filed by plaintiffs lead to an actual EEOC investigation that revealed
evidence of systemic
discrimination, let alone a finding that the employer maintained a
practice or policy that was a
"per se violation" of federal anti-discrimination law. See R. 72, pp. 15, 17.
UPS also argues that the Seventh Circuit's decision in
Schnellbaecher supports dismissal
of Hohider's class claims. See R. 54 (Mem. in Support of UPS Motion
for S.J. on Class Claims),
pp. 7-8. UPS's reliance on Schnellbaecher is misplaced, because the
Court in that case approved
a standard which, if applied here, would dictate denial of summary
judgment on Hohider's class
claims. In articulating the proper analysis to determine whether two
plaintiffs who had timely
filed sex discrimination charges could litigate those claims on behalf
of a class of female
employees, the Court in Schnellbaecher favorably cited both Fellows
and Hicks, and did not
apply the single filing rule or cite precedent developed in that
context. See 887 F.2d at 127. The
Seventh Circuit recognized that discrimination claims advanced in
litigation are cognizable so
long as they "are like or reasonably related to the allegations of the
charge and growing out of
such allegations," and this analysis may require an "inquiry . . .
into what EEOC investigation
could reasonably be expected to grow from the original complaint." Id.
(internal quotation marks
omitted). Because "both the EEOC charge and the ensuing investigation
were insufficient to put
the defendants on notice of any intention of the plaintiffs to make
allegations of class-wide
discrimination in their complaint," the Court held, "the district
judge was correct in dismissing
the charges of class-wide discrimination." Id. at 127-28 (emphasis
added). Significantly, the
Court distinguished Fellows by noting, "[m]ost importantly," that the
defendant in that case "had
received a letter from the plaintiff's attorney shortly after her
charge was filed, stating that if a
settlement could not be reached, a class action lawsuit would be
filed," and "thereafter refused to
answer the EEOC's questions concerning its other employees." Id.
In this case, Hohider's counsel sent UPS a similar letter in
February 2003, see R. 72, pp.
21A-21B, shortly after the EEOC notified UPS, through its Request for
Information in
connection with DiPaolo's charge, that the agency was investigating
whether the company
maintained a "policy, practice and procedure of requiring 100%
full-releases of employees," and
whether UPS had applied this policy or practice to other "employees
who were similarly situated
with the CP." Id., p. 100. The EEOC's determination that UPS
maintains "a 100% full medical
release practice, which . . . is a per se violation of the ADA," id.,
pp. 15, 17, and its proposal that
UPS eliminate that practice and inform all employees of the change in
policy, id., pp. 20-21,
further demonstrate beyond dispute that the "ensuing investigation" of
Hohider's charge put
UPS on notice that the administrative process could give rise to
subsequent litigation asserting
class claims of discrimination against similarly situated individuals
who were denied reasonable
accommodation pursuant to this practice. See Schnellbaecher, 887 F.2d at 128.
UPS concedes that Hohider's "class action claims would
potentially be viable" had he
formally amended his charge to include specific allegations of
class-wide discrimination. R. 54,
p. 15; see 29 C.F.R. § 1601.12(b) ("A charge may be amended . . . to
clarify and amplify
allegations made therein. Such amendments and amendments alleging
additional acts which
constitute unlawful employment practices related to or growing out of
the subject matter of the
original charge will relate back to the date the charge was first
received."). Yet a formal
amendment would have served no purpose that was not effectively
accomplished through
Hohider's supplemental affidavit and other communications from counsel
during the
administrative proceedings. When UPS initially refused to provide an
accommodation that
would enable Hohider to get back to work, he had no reason to suspect
that the company's failure
to engage in good faith efforts to accommodate his medical
restrictions was part of a de facto
100% release practice. As UPS pointed out in rejecting the EEOC's
conciliation proposal (and
convinced the EEOC during the investigation of an earlier charge), a
100% release requirement is
contrary to the company's official policies. See R. 72, pp. 25-27.
It was only after Hohider
(acting without counsel) filed his initial intake questionnaire and
charge that it became clear to
him (and his attorney) that UPS's treatment of him was pursuant to an
unwritten company
practice of systemic discrimination against employees with
disabilities. Hohider and his counsel
furnished information and materials to both the PHRC and the EEOC to
support his allegations
of class-wide discrimination, and these allegations were communicated
directly to UPS by
Hohider's attorney while his charge was pending, and subsequently
confirmed by the EEOC's
cause determination and conciliation proposal.
In sum, the rigidly formalistic approach urged by UPS – requiring
an express allegation
of class-wide discrimination on the face of a charge to support a
class claim of systemic
discrimination – would impose impracticable requirements on often
unrepresented individuals
who file charges of discrimination; encourage unnecessary
administrative filings that would
further encumber an overburdened charge-processing system; and impede
litigants from serving
the "private attorney general" function Congress deemed necessary to
achieve maximum
enforcement of the nation's anti-discrimination laws, see Albemarle
Paper Co. v. Moody, 422
U.S. 405, 415 (1975); Alexander v. Gardner-Denver Co., 415 U.S. 36, 45
(1974) ("Congress
gave private individuals a significant role in the enforcement process
of Title VII . . . [which]
vindicates the important congressional policy against discriminatory
employment practices.").
CONCLUSION
For the foregoing reasons, the EEOC respectfully urges this Court
to deny UPS's motion
for summary judgment on Hohider's class claims.
Respectfully submitted,
ERIC S. DREIBAND
General Counsel
CAROLYN L. WHEELER
Assistant General Counsel
___________________________
DORI K. BERNSTEIN
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7046
Washington, D.C. 20507
(202) 663-4734
CERTIFICATE OF SERVICE
I hereby certify that one copy of this brief was mailed, first
class, postage prepaid, on
this 11th day of March, to the following:
Christian Bagin David R. Scott
Bruce Bagin Scott + Scott, LLC
Wienand & Bagin P.O. Box 192
312 Boulevard of the Allies, Suite 600 108 Norwich Avenue
Pittsburgh, Pennsylvania 15222-1923 Colchester, Connecticut 06415
Anita M. Laing Kimberly M. Skaggs
Arthur Shingler, III Judy B. Goldstein
Donald A. Broggi The Equal Justice Foundation
Scott + Scott, LLC 88 East Broad Street, Suite 1590
401 B Street, Suite 307 Columbus, Ohio 43115
San Diego, California 92101
David J. McAllister
Perry A. Napolitano
Joseph E. Culleiton
Abigail D. Flynn-Kozara
REED SMITH LLP
435 Sixth Avenue
Pittsburgh, Pennsylvania 15219-1886
_________________________
Dori K. Bernstein
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7046
Washington, D.C. 20507
(202) 663-4734
**************************************************************************
<<FOOTNOTES>>
<1> Record ("R.") references correspond to numbered entries on this Court's
docket sheet.
<2> In contrast to Pennsylvania law, as interpreted by the PHRC, the ADA
expressly defines "reasonable accommodation" to include "reassignment
to a vacant
position." 42 U.S.C. § 12111(9)(B); see also 29 C.F.R. Pt. 1630 App.
§ 1630.2(o)
(discussing reasonable accommodation, including reassignment). Thus,
an individual
with a disability who, with or without reasonable accommodation, can no longer
perform the essential functions of his current (or former) job, can
demonstrate he
is a "qualified" individual with a disability, 42 U.S.C. § 12111(8),
and therefore
within the ADA's coverage, if he is able to perform the essential
functions of a
vacant position, with or without reasonable accommodation. Because
"[t]he practices
prohibited by the [Pennsylvania] law" are not "comparable in scope to
the practices
prohibited by federal law," the PHRC's determination of Hohider's charge is not
entitled to the "substantial weight" the EEOC ordinarily accords to
the findings of
a state fair employment practice (FEP) agency. See 29 C.F.R. §
1601.21(e)(2)(ii).
