Wednesday, November 7, 2007
Here is the transcript in the oral argument on Federal Express v. Holowecki (06-1322), which was argued yesterday before the U.S. Supreme Court.
It appears from the transcript that the Court is most annoyed with the EEOC in its inability to get its act together whether it comes to its regulations and forms dealing with charges of discrimination.
The AP reports the harsh words the Justices had for the administrative mess which is the EEOC:
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.
Ouch! But it is not all the EEOC's fault. This is an agency that has been perpetually underfunded, especially during Republican administrations and has not been given the ability to carry out its statutory mandate in an efficient and effective manner.
I wouldn't be surprise to see the Court apply the doctrine of equitable tolling, from TWA v. Zipes, to allow the late filed charge here by the plaintiff since it was the government's fault that the defendant did not get notice of the charge.
I'm with Paul Mollica on this one and think, "[t]he Court appeared in no mood to punish an employee whose charge the EEOC failed to publish to the other side. As Chief Justice Roberts queried, 'Why should he suffer the categorical sanction of dismissal simply because it's a little unfairness to you?'"