UNITED STATES DISTRICT COURT 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 ************************************************************************** <> <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).