Arnold v. Federal-Mogul Products, Inc. et al

Filing 33

ORDER: The Partial Motion for Judgment on the Pleadings 15 is hereby DENIED. It is SO ORDERED. Signed by District Judge Kevin H. Sharp on 2/21/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COOKEVILLE DIVISION
ROSIE M. ARNOLD,

)
)
Plaintiff,
)
)
v.
)
FEDERAL-MOGUL PRODUCTS, INC. )
and DEBBIE HITCHCOCK,
)
individually,
)
)
Defendants.
)

No. 2:11-00126
Judge Sharp

ORDER
In this action under the Family and Medical Leave Act and the Americans With Disabilities
Act, Defendants1 have filed a Partial Motion for Judgment on the Pleadings (Docket No. 15). By
way of that Motion, Defendants seek dismissal of Plaintiff’s disability discrimination claim because
it allegedly was not raised in a timely filed Equal Employment Opportunity Charge.
Defendants argue that the last act of alleged discrimination occurred when Plaintiff was
discharged from Federal-Mogul on February 10, 2010, and, because Tennessee is a deferral state,
Plaintiff was required to file a charge of discrimination within 300 days of that date. She did not do
so, but instead waited over a year to file her EEOC charge on April 4, 2011. Defendants also assert
that, even if Plaintiff’s Intake Questionnaire is considered to be a charge, it, too, was late because
it was not received by the EEOC until December 8, 2010, 301 days after her employment with
Federal-Mogul ended.
Plaintiff concedes all of the foregoing, with one major exception. She asserts that the EEOC
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At the time the case was filed, Defendants included not only Plaintiff’s former employer, Federal Mogul, but
also Debbie Hitchcock, its Human Resources Representative. Since that time, Plaintiff has voluntarily dismissed her
claim against Ms. Hitchcock (Docket No. 23).

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received the Initial Charge not on December 8, 2010, but the day before, when it was faxed to the
agency. As such it was filed within the 300 day window.
“Under the ADA, a claimant who wishes to bring a lawsuit claiming a violation of the ADA
must file a charge of discrimination with the EEOC within 300 days of the alleged discrimination.”
Parry v. Mohawk Motors of Michigan, Inc., 235 F.3d 299, 209 (6th Cir. 2000) (citing, 42 U.S.C. §
12117(a); 42 U.S.C. § 20003-5(e)(1)). Under the regulations, a charge is “deemed to be filed with
the Commission upon receipt,” and this has been held to include receipt via facsimile. See,
Edelman v. Lynchburg College, 535 U.S. 106, 118-19 (2002) (sending facsimile letter to EEOC
within 300 days could relate back if facsimile met the statutory requirements of a charge); Laouini
v. CLM Freight Lines, Inc., 586 F.3d 473, 479 (7th Cir. 2009) (holding that relevant regulations do
not prohibit filing of charge by facsimile and “local agency’s interpretation permitting charges of
discrimination to be lodged by fax is reasonable”); Redd v. 7-Eleven, Inc., 2013 WL 85178 at *3
(E.D. Va. Jan. 7, 2013) (citation omitted) (“the Court has reason to believe that [plaintiff] may have
filed a timely EEOC charge of discrimination, based on her fax to the EEOC” because “[i]nformal
though it was, governing law makes clear that the charge could subsequently ‘be amended to cure
technical defects or omissions’”).
The foregoing is for naught, however, if the Intake Questionnaire is not considered to be a
charge. In Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), the Supreme Court considered
whether an EEOC intake questionnaire and accompanying affidavit was a “charge” for the purposes
of time limitations in the context of an age discrimination claim. In holding that such documents
could be properly considered a charge, the Supreme Court wrote that “[i]n addition to the
information required by the regulations, i.e., an allegation and the name of the charged party, if a

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filing is to be deemed a charge it must be reasonably construed as a request for the agency to take
remedial action to protect the employee’s rights or otherwise settle a dispute between the employer
and the employee.” Id. at 402.
In this case, Plaintiff’s Intake Questionnaire met the requirements of Holowecki. It
contained her full name, address, and telephone, as well as the name, address and size of her
employer; it alleged that she had a disability and that she “was assessed points, penalized, and
discharged for absences caused by [her] disability”; it explained that she was disciplined on
December 2, 2009, and discharged on February 10, 2010; it identified the managers and supervisors
allegedly responsible for her discipline; and it explained that she had high blood pressure that
limited “[c]irculatory bodily function, performing manual tasks, seeing, eating, sleeping, walking
standing, lifting, bending, learning, reaching, concentrating, thinking and working.” (Docket No.
16-2). Further, Plaintiff specifically heeded the admonition that if she wanted to file a charge (as
opposed to “talk[ing] to an EEOC employee before deciding whether to file a charge”) she needed
to check box 2 which read:
I want to file a charge of discrimination, and I authorize the EEOC to look into the
discrimination I described above. I understand that the EEOC must give the
employer, union, or employment agency that accuse of discrimination information
about the charge, including my name. I also understand that the EEOC can only
accept charges of job discrimination based on race, color, religion, sex, national
origin, disability, age, genetic information, or retaliation for opposing discrimination.
(Id. at 4). That the EEOC understood a formal charge was to follow was made clear in a letter from
Sarah L. Smith of the EEOC to Ms. Hitchcock three days later on December 10, 2010. (Docket No.
17-2 at 1).
In making the determination that the Initial Charge and its faxing to the EEOC were
sufficient, the Court fully recognizes that Holowecki dealt with an ADEA claim, and also that the
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Supreme Court made clear its holding was not to be applied woodenly to all discrimination claims.
Rather, courts should “be careful not to apply rules applicable under one statute to a different statute
without careful and critical examination.” Holowecki, 552 US. at 393.
Such a “careful and critical examination” of Holowecki’s applicability to ADA cases was
undertaken by the court in Price v. City of New York, 797 F. Supp.2d 219 (E.D.N.Y. 2011). There,
the court observed:
The court has carefully and critically examined 29 C.F.R. § 1601, the
regulations that apply to both the ADA and Title VII. This set of regulations bears
substantial similarity to the ADEA regulations at issue in Holowecki. See 29 C.F.R.
§ 1626. The most relevant difference between the ADEA and ADA/Title VII
regulations concerns the stated requirements regarding the form of the charge. The
ADEA regulations state: “A charge shall be in writing and shall name the
prospective respondent and shall generally allege the discriminatory act(s). Charges
received in person or by telephone shall be reduced to writing.” 29 C.F.R. § 1626.6.
By contrast, the ADA and Title VII regulations require that “[a] charge shall be in
writing and signed and shall be verified.” 29 C.F.R. § 1601.9. With this distinction
in mind, the court finds the permissive standard announced in Holowecki applicable
here.
Decisions of other courts support this same conclusion. The court is aware
of no decision within this Circuit that has considered whether the Holowecki
standard extends to the ADA. But a number of courts in other jurisdictions have
applied this standard in ADA cases. See, e.g., Steiner v. Prof'l Servs. Industr., Inc.,
CA. No. 08–723, 2009 WL 2950755 (W.D.Pa. Sept. 9, 2009). Similarly, federal
courts in this Circuit have frequently applied Holowecki in assessing the timeliness
of charges in Title VII cases. See, e.g., Winston v. Mayfair Care Cntr., Inc., No. 09
CV 4792(ARR)(LB), at *7 n. 1 (E.D.N.Y. Mar. 4, 2011) (unpublished decision and
order) (collecting cases and noting that “because the EEOC's regulations setting forth
the basic information required of a charge are almost identical under both [the ADEA
and Title VII], federal courts have consistently applied Holowecki in the Title VII
context”); Broich v. Inc. Vill. of Southampton, No. CV–080553 (SJF)(ARL), 2011
WL 284484, *6–7 (E.D.N.Y. Jan. 25, 2011); Morrow v. Metro. Transit Auth., No.
08 Civ. 6123(DLC), 2009 WL 1286208, *5 n. 6 (S.D.N.Y. May 8, 2009); Simpson
v. City of N.Y. Dep't of Hous. Pres. & Dev., 08 Civ. 0185(SHS)(KNF), 2009 WL
996388, *5–6, 2009 U.S. Dist. LEXIS 58766, *16–19 (S.D.N.Y. April 13, 2009).
These cases are instructive here because, as the same regulations govern both Title
VII and the ADA, no distinction in the relevant regulations can counsel for a
different result as to ADEA cases.
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Id. at 225-226: see, Evans v. Excellus Health Plan, Inc., 2012 WL 3229292 at ** 4-5 (N.D.N.Y.
Aug. 6, 2012) (citation omitted) (relying on Evans, holding that Holowecki applied to ADA claims,
and noting that “since Holowecki, the ‘EEOC has changed the form’ to require claimants to check
a box to clearly express if they request the EEOC ‘to take remedial action’”); Stewart v. SEIU
United Healthcare Workers-West, 2012 WL 1357633 ** 2-3 (N.D. Cal. April 1, 2012) (applying
Holowecki to Intake Questionnaire in ADA case). This Court likewise agrees that Holowecki is
applicable to cases alleging disability discrimination under the ADA.
The Partial Motion for Judgment on the Pleadings (Docket No. 15) is hereby DENIED.
It is SO ORDERED.

____________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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