Opposition Brief — Steffen v. Meridian Life Insurtance

Buprame Court, WS.

ElED

7) MAY 26 1883

No. 88-1810 JOSEPH F. SPANIOL, JR.

LERK

rr ae

IN THE ne

Supreme Court of the United States

OCTOBER TERM, 1988

WALTER W. STEFFEN,

Petitioner,

V.

MERIDIAN LIFE INSURANCE COMPANY AND

MERIDIAN MUTUAL INSURANCE COMPANY,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION

C. WENDELL MARTIN JOHN T. NEIGHBOURS *

MARTIN WADE HARTLEY & MITZI HARRIS MARTIN

HOLLINGSWORTH BAKER & DANIELS

3590 North Meridian Street Suite 2700

Indianapolis, Indiana 46208 300 North Meridian Street

(317) 924-6700 Indianapolis, Indiana 46204

SUSAN BowRON-WHITE (317) 237-0300

MERIDIAN LIFE INSURANCE COMPANY

2955 North Meridian Street ean

Post Office Box 1980

Indianapolis, Indiana 46206

(317) 927-8213 * Counsel of Record

Counsei for Respondents

RT IEEE EEE an

WILSON - Epes PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether, when determining if a civil action is

within the scope of an administrative charge under the

Age Discrimination in Employment Act (“ADEA”),

courts employ a uniform standard that comports with

statutory procedural requirements without creating un-

necessary procedural barriers for employees who believe

their employers have discriminated against them.

2. Whether the court below correctly applied the uni-

form standard to the particular facts of this case.

(i)

il

LIST OF PARTIES

Respondents Meridian Life Insurance Company and

Meridian Mutual Insurance Company were defendants-

appellees below, urging affirmance of the district court’s

judgment. Pursuant to Rule 28.1, Respondents state the

following:

(1) Meridian Life Insurance Company, which js

a wholly-owned subsidiary of Meridian Mutual

Insurance Company, has no non-wholly owned

subsidiary or affiliate corporation; and

(2) Meridian Mutual Insurance Company has no

parent corporation or affiliate corporation. It

has one non-wholly owned subsidiary, Meridian

Insurance Group, Ine.

TABLE OF CONTENTS

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OPINIONS BELOW, JURISDICTION AND STATU-

20eF ERUVISIONS .............. Ss en

peewee Ge fer CASE.........................................

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Dummies OF ARGUMENT ........................................

REASONS FOR DENYING THE WRIT OF CER-

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I. Lower Courts’ “Scope Of The Charge” Test Is

A Uniform Standard That Recognizes Statutory

Procedural Requirements And Protects The

Rights Of Laymen Initiating The Administra-

Neen ne no ecccnvenenceeceeseeneceee

II. The Court Below Correctly Applied Well-

Established Legal Principles To The Facts......

A. The Court Below Properly Concluded That

Retaliation Was Not Within The Scope Of

Mm, CNPOO....................-...-..-------.

B. The Decision Of The Court Below Does Not

Require The Filing Of A Second Charge

That Specifically Alleges Retaliation —...........

III. This Case Does Not Merit The Court’s Review..

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11

11

17

19

19

iv

TABLE OF AUTHORITIES

CASES Page

Babrochky v. Jewel Food Co. and Retail Meatcutters

Union, 773 F.2d 857 (7th Cir. 1985) ........... 7, 8, 9, 10, 16

Baldwin County Welcome Center v. Brown, 466

U.S. 147, reh’g denied, 167 U.S. 1231 (1984)...... 6

PEOC v. Reichhold Chemicals, 700 F.Supp. 524

CRESBA Waco OE occ ssstacrviast iia eanarte rene eee 18

EEOC v. St. Anne’s Hospital of Chicago, 661 F.2d

ee te ey, A S: Deceeamnrnenere Gate eemmininnreneny Rand OB eal Cove 16

lkanem v. Health and Hospital Corp., 724 F.2d

563 (7th Cir. 1983), cert. denied, 469 U.S. 821

eS RARER AL fen ries oF am ce ORE aA oe nT 13

Grimes v. Louisville and Nashville Railroad Co.,

583 F.Supp. 642 (S8.D. Ind. 19841), aff’d without

opinion, 767 F.2d 925 (7th Cir. 1985), cert. de-

nied, 476 U.S. 1160, reh’g denied, 478 U.S. 1031

Bo) Pee iar Raet IPERS oe Mne Sete Net BR Me CAAA ea des hte SAN 10, 18

Gupta v. Bast Teras State University, 654 F.2d

LED CBGH Sty Se oxic ocean 18

Hemmige v. Chicago Public Schools, 786 F.2d 280

CPERE Cals AMID sccnscitedisuiccsacdecicaaleaestonar st es 10

Jenkins v. Blue Cross Mutual Hospital Ins., Ine.,

5358 F.2d 164 (7th Cir.), cert. denied, 429 U.S.

UR ARO esr as eens eee isnt 7, 8,18

Jensen v. Board of County Commissioners for

Sedgwick County, 636 F.Supp. 2935 (D. Kan.

IS IRDA ai nena Bn hs ver NAR ame RE Ran AS sent at ST 14

Tiron v. Sperry Rand Corp., 423 F.Supp. 155 (D.

RRC, We ha oe Be Oe ee eee ere 12, 16

Johnson v. General Electric, 8410 F.2d 132 (1st

OS ec TERE LSM RRR Rh ANSELM DENSE oy OMA Gis Eo 15

Love v. Pullman Co., 404 U.S. 522 (1972). = 6,8

McCray v. Standard Oil, 76 F.R.D. 190 (N. D. Til.

bf Upper eet DW hale aS apts ay Pmt ene Sry Baw ARI 7

Meyer v. Macmillan Publishing Co., 85 F.R.D. 149

ROR DRS me GE bo) OETA dian eaten th ee nanan a Dede 13, 15

Mohasco Corp. v. Silver, 447 U.S. 807 (1980)... 6

Reiter v. Center Consolidated School District No.

26-JT, 618 F.Supp. 1458 (D. Colo. 1985)... 10, 11

_

Vv

TABLE OF AUTHORITIES—Continued

Pave

Ross v. Kansas Commission on Civil Rights, 45

Fair Empl. Prac. Cas. 1472 (D. Kan. 1982)........ 17, 18

Sanchez v. Standard Brands, Inec., 481 F.2d 455

Bs RE be RS || y Yaesala aah NA Set ie os a ae 4, Oy 1s 16, 18

Smith v. Sentry Ins., 674 F.Supp. 1459 (N.D. Ga.

top DASEESSS BRAD Ree Dar ca tnt tet OR eee Ne eee OTA 8, 15

Tucker v. Harley Davidson Motor Co., 454 F.Supp.

a ie te i I oh ai nid ven seg sce nsoenaasaon 3

Zipes v. Trans World Airlines, Ine., 455 U.S. 385,

reh'g denied, 456 U.S. 940 (1982)......00000 eee. 6,8

OTHER AUTHORITIES

ey ices WU 0 PD rk ha cp acraticcn ccna coaseane 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-1810

WALTER W. STEFFEN,

. Petitioner,

MERIDIAN LIFE INSURANCE COMPANY AND

MERIDIAN MUTUAL INSURANCE COMPANY,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION

Respondents, Meridian Life Insurance Company and

Meridian Mutual Insurance Company (collectively ‘Me-

ridian”), defendants-appellees in the proceedings below,

urge this Court to deny the Petition for a Writ of Cer-

tiorari to review the judgment of the United States Court

of Appeals for the Seventh Circuit entered October 11,

1988.

OPINIONS BELOW, JURISDICTION

AND STATUTORY PROVISIONS

Meridian accepts the statement as to opinions below,

jurisdiction, and statutory provisions involved as stated

by the Petitioner, Walter W. Steffen (“Steffen”), plain-

tiff-appellant in the proceedings below.

2

STATEMENT OF THE CASE

I. Background

On March 31, 1983, Steffen’s duties with Meridian

were realigned. (Pet. App. F, pp. 86a-87a.) Subsequently,

in early May 1983, Steffen retained an attorney who ad-

vised him of his rights and remedies under the ADEA.

(Pet. App. F, pp. 89a, 99a.)

On May 13, 1983, after consulting with his attorney,

Steffen completed an Intake Questionnaire at the Equal

Employment Opportunity Commission (‘EEOC’) in

which he allemed that he had been demoted because of

his age and specifically noted that he was represented by

an attorney.’ (Pet. App. G, pp. 102a-103a, 195a.) That

attorney continued to represent Steffen until the attor-

ney’s death on or about July 1, 1984. (Pet. App. F, pp.

89a-90a. )

After an internal auditor’s investigation of Steffen’s

performing work for another life insurance company, a

potential violation of Meridian’s written conflict of inter-

est policy, and a review of the auditor’s report by the

Joint Audit Committee of Meridian’s Board of Directors,

the Committee found that Steffen had violated Meridian’s

conflict of interest policy and recommended that the

Board of Directors take appropriate disciplinary action.

The Board then unanimously resolved to accept Steffen’s

resignation, if offered, or, alternatively, to terminate his

employment relationship with Meridian. (See generally

Pet. App. A, pp. 12a-26a.) Steffen’s employment was

terminated on November 18, 1983. (Pet. App. H, p.

108a. )

On December J, 1983, Steffen filed a second EEOC

charge in which he alleged he was discharged because of

1The Seventh Circuit held that, under the circumstances as

alleged by Steffen, this Intake Questionnaire satisfied the statutory

charge-filing requirement. (Pet. App. A, p. 40a).

3

his age and precisely detailed the facts he believed sup-

ported his allegations. (Pet. App. H, pp. 108a-lila.) The

charge did not allege retaliation or refer to any facts to

indicate a nexus between his discharge and his prior par-

ticipation in the administrative process or his opposition

to Meridian’s alleged discriminatory practices. Moreover,

the EEOC, which was not alerted to any claim of retalia-

tory conduct, did not investigate or attempt conciliation

of any alleged retaliatory conduct. (Record on Appeal,

Doe. 05, attached Ex. 2, pp. 38-39; Doc. 98, attached Ex.

1, p. 115.)

II. Proceedings Below

On December 27, 1984, more than one year after filing

his charge of discriminatory discharge, Steffen filed his

judicial complaint wherein for the first time he claimed

that he was discharged in retaliation for exerting his

rights under the ADEA.

On October 15, 1985, Meridian moved for summary

judgment on the retaliatory discharge -claim based on

Steffen’s failure to exhaust his administrative remedies

by filing with the EEOC a charge of retaliatory discharge

in accordance with the requirements of 29 U.S.C.

§ 626(d). (Pet. App. D, pp. 70a, 75a.) The district court

entered judgment for the defendants on that claim. (Pet.

App. D, p. 81a.) The district court distinguished Steffen’s

case from cases in which courts permit plaintiffs to seek

relief for acts of retaliation which are not listed in an

initial charge filed before the alleged retaliatory conduct

occurred. (Pet. App. D, pp. 78a-8la.: The district court

emphasized that Steffen’s alleged retaliatory discharge oc-

curred before he filed his second EEOC charge: “If

Steffen intended to pursue the retaliatory discharge

claim in this court, he must have included it in his

EEOC charge which was filed after the allegedly con-

tinuing discriminatory conduct occurred.” (Pet. App. D,

p. 8la (emphasis added). )

4

The Seventh Circuit affirmed the district court: “[{T]he

district court properly entered summary judgment in

Meridian’s behalf on Steffen’s retaliatory discharge

claim.” (Pet. App. A, p. 52a.) The Court of Appeals,

too, focused on the specific facts of this case and dis-

tinguished it from cases in which courts “have allowed

a retaliatory discharge claim to proceed even though the

underlying charge did not mention retaliation.” (Pet.

App. A, p. 51a n.2.) Those cases, the court observed,

all involved situations where the alleged retaliation

arose after the charge of discrimination had been

filed or the employer was given clear notice from the

EEOC that retaliation was at issue; thus, “a double

filing . . . would serve no purpose except to create

additional procedural technicalities when a single fil-

ing would comply with the intent of Title VII.”

(Pet. App. A. p. 52a n.2 ‘original emphasis).) The court

continued, “These cases are distinguishable from the

present case where the alleged retaliatory acts occurred

before Steffen’s December 1, 1983 charge of discrimina-

tion was filed and Meridian was not given clear notice

that retaliation was an issue.” (Jd. (original emphasis).)

No jude in active service requested a vote on Steffen’s

Petition for Rehearing and Suggestion for Rehearing /1

Banc, and all of the judges on the original pane! voted

to deny rehearing. (Pet. App. C, pp. 68a-69a.) The court

entered an order denying Steffen’s Petition for Rehearing

on January 18, 1989. (/d.)

SUMMARY OF ARGUMENT

Steffen’s stated reasons for his Petition are insufficient

to warrant review of the Seventh Circuit’s decision.

Steffen does not alleve that the Seventh Circuit has de-

cided a federal question in a way that conflicts with an

applicable decision of this Court, nor does he allege that

the Seventh Circuit’s decision conflicts with the decision

of another federal court of appeals or any other lower

-

~~

court. Instead, through innuendo, Steffen attempts to

create conflict. The arguments supporting his Petition

are legally erroneous and suggest that his real complaint

is nothing more than his dissatisfaction with the district

court’s and Court of Appeals’ application of well-

established legal principles to the particular facts of his

case.

Steffen first contends that there is not a uniform test

for determining whether allegations of a judicial com-

plaint are within the scope of the EEOC charge. That

contention ignores nineteen years of decisions in which

courts consistently have relied upon a uniform standard

in determining the scope of a subsequent civil action. A

review of any of the scores of cases involving “scope”

issues demonstrates that courts simply refer to alter-

nate descriptions of the same test and that the under-

lying rationale and analysis are, indeed, identical. It is

dissimilar facts that yield dissimilar results in these

eases, not the lack of a uniform test. Consequently,

Steffen’s implication of conflict is meritless.

Second, Steffen implicitly argues that the court below

improperly concluded that retaliation was not within the

scope of his charge and claims that the court established

“precedent for the proposition that a second charge spe-

cifically alleging retaliation is required to assert a claim

for retaliation in a civil action.” Those assertions are

equally groundless. The court’s decision does not require

the filing of a second charge or the inclusion of a specific

alleration of retaliation in each case. The court’s deter-

mination that Steffen’s judicial allegation of retaliation

was outside the scope of his EEOC charge was based on

the particular facts of this case where a second charge

had been filed. The court fully considered those facts and

correctly decided that Steffen’s claim of retaliatory dis-

charee was not within the scope of his EEOC charge,

which was filed after the allegedly discriminatory Cis-

charge occurred.

-}

6

Steffen’s reasons for granting his Petition are nothing

more than personal complaints as to the court’s view of

the facts and the application of well-established legal

principles to those facts. His comptetnts—are not suffi-

cient to merit this Court’s review.

REASONS FOR DENYING THE

WRIT OF CERTIORARI

I. Lower Courts’ “Scope Of The Charge” Test Is A Uni-

form Standard That Recognizes Statutory Procedural

Requirements And Protects The Rights Of Laymen

Initiating The Administrative Process

The scope of the charge standard that is applied by

lower courts generally and by the district court and Court

of Appeals in this matter is a uniform standard that

takes into account this Court’s caution to interpret liber-

ally civil rights statutes so as to protect the rights of

employees who may be the victims of unlawful employ-

ment discrimination. This Court has admonished courts

to avoid creating additional procedural technicalities

when interpreting civil rights statutes in which the ad-

ministrative process is often initiated by “laymen, un-

assisted by trained lawyers.” Love v. Pullman Co., 404

U.S. 522, 527 (1972); Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 397, veh’g denied, 456 U.S. 940

(1982) (cases involving timely charge issues). However,

this Court has also advised that “experience teaches that

strict adherence to the procedural requirements specified

by the legislature is the best guarantee of evenhanded ad-

ministration of the law,” Mohasco Corp. v. Silver, 447

U.S. 807, 826 (1980), and that “|p]rocedural require-

ments established by Congress for gaining access to the

federal courts are net to be disregarded by courts out of

a vague sympathy for particular litigants.” Baldwin

County Welcome Center v. Brown, 466 U.S. 147, 152,

rel’g denied, 467 U.S. 1231 (1984).

7

Under the ADEA, one such procedural requirement is

“inlo civil action may be commenced by an indiviaua!

. until 60 days after a charge alleging unlawful dis-

crimination has been filed with the Equal Employment

Opportunity Commission.” 29 U.S.C. § 626(d) (1982).

Thus, a plaintiff is required to file a charge that encom-

passes the acts complained of as a prerequisite to filing

a suit in federal court. The policy behind this require-

ment, which is similar to the timeliness requirement, is

to (1) allow the agency an opportunity to investigate and

conciliate the claims of discrimination and (2) give the

employer timely notice of claims and promote the em-

ployer’s good faith negotiations during conciliation.

Babrocky v. Jewel Food Co. and Retail Meatcutters

Union, 773 F.2d 857, 863 (7th Cir. 1985).

To accommodate the concern for “laymen” who are

‘unassisted by trained lawyers,” courts, including the

Seventh Circuit, consistentiy have relaxed the require-

ment that a plaintiff include in his charge all alleged

conduct. They have, instead, extended the scope of the

complaint to include discriminatory matters that are

like or reasonably related to the charge and grow out of

such allegations or which can reasonably be expected to

grow out of an investigation of the charge as well as

matters actually investigated by the EEOC. See, e.9.,

Babrocky, 773 F.2d at 864; Jenkins v. Blue Cross Mutual

Hospital Ins., Inc., 538 F.2d 164, 167-68 (7th Cir.), cert.

denied, 429 U.S. 986 (1976); Sanchez v. Standard

Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970).?

2“The Seventh Circuit has indicated that the ‘like or related’

test is to be very liberally applied” and “has read the relatedness

requirement very broadly ....” McCray v. Standard Oil, 76 F.R.D.

490, 497-98 (N.D. Ill. 1977) (citing Jenkins and Sanchez). The

court’s rule “seeks to insure that the EEOC’s voluntary conciliation

procedures will be invoked before a federai suit is filed” and ‘allows

the scope of the judicial complaint to extend the scope of the EEOC

investigation growing out of the charges.” Jd. at 497.

Virtually every circuit has employed a scope of the charge stand-

ard that avoids a requirement that a plaintiff file a charge spe-

8

Applying this uniform approach, courts first look to

the actual investigation triggered by the EEOC charge

to determine if the EEOC investigated an instance of al-

leged discrimination. In the absence of an actual investi-

gation of a type of discrimination alleged in the judicia!

complaint, courts look to the facts alleged in the EEOC

charge to determine if the facts describe the discrimina-

tion about which the employee complains in court. See

Smith v. Sentry Ins., 674 F.Supp. 1459, 1467-68 (N.D.

Ga. 1987).

Steffen is unable to identify any manner in which the

Seventh Circuit’s application of this standard conflicts

with applicable decisions of this Court. Without sup-

port, he asserts that the lower court’s application of its

scope of the charge test to the facts of this case under-

mines prior principles established by this Court.* His

assertion is erroneous. Steffen fails to cite, and Meri-

dian’s research has not revealed, a single decision in

which this Court has addressed the scope of the charge

issue. Steffen baldly asserts that the Seventh Circuit’s

decision undermines the guiding principles announced in

Love, 404 U.S. 522, and Zipes, 455 U.S. 385. That claim,

however, is simply without merit. In reality, the Seventh

Circuit’s formulation is wholly consistent with the policy

considerations announced in Love and Zipes. See, e.4.,

Seventh Circuit decisions, Babrocky, 773 F.2d at 863-64,

and Jenkins, 5388 F.2d at 167-68, citing Love and Zipes.

Next, Steffen repeatedly intimates that there is a con-

flict among the courts regarding the test for determining

whether a plaintiff’s judicial complaint is within the

cifically and carefully articulating the employer’s alleged discrimi-

natory conduct. Babrocky, 772 F.2d at 864.

3 Without discussion, Steffen also announces that the Seventh

Circuit’s decision undermines congressional policies, which policies

he fails to identify. (Pet., p. 11.)

9

scope of his EEOC charge.‘ There is, however, no con-

fusion or lack of uniformity in the tests applied by the

courts. Even a cursory reading of the myriad of “scope”

cases reveals that, notwithstanding which articulated

form of the test (or combination of forms) is used, courts

focus on the same policy considerations and look to the

words of the charge and the EEOC’s investigation.’

In Sanchez, the Fifth Circuit first announced the scope

of the judicial complaint standard that has become the

model for other courts. Responding to the question what

standard should be used in measuring the proper scope

of a judicial complaint, the court adopted the answer of

one of its district courts: a judicial complaint “ ‘may

encompass any kind of discrimination like or related to

allegations contained in the charge and growing out of

such allegation during the pendency of the case before

the Commission.’ Sanchez, 431 F.2d at 466 (quoting

King v. Georgia Power Co., 295 F.Supp. 948, 947 (N.D.

Ga. 1968)). Then the court added, ‘Ji other words, the

‘scope’ of the judicial complaint is limited to the ‘scope’

of the EEOC investigation which can reasonably be ex-

pected to grow out of the charge of discrimination.” Id.

at 466 (emphasis added). Thus, from the genesis of the

“scope” test, the court articulated alternate characteri-

zations of the same test.

4 By failing to state that there is a conflict between the Seventh

Circuit’s decision and any other decision of a federal court of

appeals, or any other lower court, Steffen implicitly acknowledges

that a conflict regarding the “scope” test does not exist.

5 Although Steffen asserts that “/a] review of recent federal court

decisions illustrates few courts apply these different tests in a way

which achieve[s] similar results,” Steffen does not give a single

example of confusing or non-uniform decisions that resulted from

courts’ application of the different characterizations of the scope

of the charge test. (Pet., pp. 20-21.) The “ever-worsening ‘scope

of [the] charge’ dilemma” to which Steffen urges this Court to

turn its attention (Pet., p. 26) is imaginary. This manufactured

dilemma is not substantiated by Steffen’s Petition or by case law.

The circuits are in accord on thi: ‘ssue. Babrocky, 773 F.2d at 864.

10

Subsequently, courts, including the Seventh Circuit,

have interchanged the language used to describe the

standard, but the policy considerations and the analyses

have remained constant. See, e.g., the following char-

acterizations that have emanated from the Seventh Cir-

cuit: Babrocky, 773 F.2d at 864 (“All claims of discrim-

ination are cognizable that are ‘like or reasonably related

to the allegations of the charge and growing out of such

allegations.’’”); Hemmige v. Chicago Public Schools, 786

F.2d 280, 283 (7th Cir. 1986) (‘| T]he trial court recog-

nized that the scope of the judicial complaint is not lim-

ited to the precise facts set out in the EEOC charge—

but rather ‘to the scope of the EEOC investigation which

can reasonably be expected to grow out of the charge of

discrimination.’ ’); Grimes v. Louisville and Nashville

Railroad Co., 583 F.Supp. 642, 649 (S.D. Ind, 1984),

aff'd without opinion, 767 F.2d 925 (7th Cir. 1985), cert.

denied, 476 U.S. 1160, reh’g denied, 478 U.S. 1031 (1986)

(“{T]he Court may exercise jurisdiction over like or re-

lated matters which might reasonably be expected to be

subject to EEOC investigation growing out of the

charge.””). There is, however, no discord or confusion in

the application of these various characterizations of the

test. In fact, the Babrocky court emphasized that the

circuits were “in accord with |the| analysis” of judicial

complaints." 773 F.2d at 864.

Steffen relies on Reiter v. Center Consolidated School

District No. 26-JT, 618 F.Supp. 1458 (D. Colo. 1985),

to bolster his argument that the tests for determining

the scope of the charge are confusing and that there is a

need for uniformity that must be addressed by this Court.

6 The court cited decisions from the Third, Fourth, Fifth, Sixth,

Eighth, Ninth and Eleventh Circuits including the Fifth Circuit’s

seminal Sanchez decision. Moreover, in stating its scope test, the

court quoted Danner v. Phillips Petroleum Co., 447 F.2d 159, 162

(5th Cir. 1971), cert. denied, 429 U.S. 986 (1976), a Fifth Circuit

decision decided the year after Sanchez.

11

(Pet., pp. 19-20.) However, Judge Kane does not indi-

cate that there is any confusion caused by the ‘various

formulations.” In fact, Judge Kane recognizes that

[rjegardless of what formulation is employed, “the

most important considerations are whether the de-

fendant had sufficient notice from the administra-

tive charge of the alleged kinds and areas of dis-

crimination and whether the administrative agen-

cies and employers involved had an opportunity to

work on a conciliation agreement for voluntary com-

pliance in the challenged areas.”

Reiter, 618 F.Supp. at 1461 (citations omitted).

In determining whether Steffen’s judicial complaint was

within the scope of his EEOC charge, the Seventh Cir-

cuit relied on precisely the same standard as other courts,

employed the same considerations recognized by Judge

Kane, and correctly concluded, as did the district court,

that, under the circumstances in this case, Steffen was

barred from maintaining a retaliatory discharge action.

II. The Court Below Correctly Applied Well-Established

Legal Principles To The Facts

A. The Court Below Properly Concluded That Retalia-

tion Was Not Within The Scope Of Steffen’s EEOC

Charge

Steffen decries the “tragic consequerice!s!’’ that befall

American workers whose significant statutory rights are

jeopardized when they rely on “‘non-attornevs” to ‘ad-

vise them regarding their rights.” (Pet., pp. 11-13.) He

urges this Court’s intervention on behalf of those “vic-

tims of various forms of job discrimination” who are

penalized hy a “technical deficiency” in their administra-

tive charges because workers are “often unable to fully

articulate |their| grievances.” (Pet. pp. 12-13.)

Significantly, however, these concerns for the prototype

g * ] e !

worker for whom courts ha’> demonstrated some willing-

12

ness to relax procedural requirements are not present

here. Steffen is not a proper petitioner to invoke indul-

gence and liberality for the unschooled, inarticulate lay-

man, unfamiliar with administrative procedures and the

law. See Jiron v. Sperry Rand Corp.,_423 F.Supp. 155,

160 (D. Utah 1975). Steffen did not lose his day in

court because of a “technical error” in his EEOC charge.

Cf. Sanchez, 431 F.2d 455 (where the plaintiff failed to

check the appropriate box on her original charge of dis-

crimination).

Steffen, a high-level executive, retained and consulted

an attorney within four weeks after he believed Meridian

initially discriminated against him. (Pet. App. F, pp.

86a, 89a.) His attorney advised him of his rights and

remedies under the ADEA. (Pet. App. F, pp. 89a-90a,

99a.) Steffen, subsequently, visited the EEOC to com-

plain about his allegedly discriminatory demotion and

completed an Intake Questionnaire on May 13. 1983, spe-

cifically stating he was represented by an attorney. (Pet.

App. F, pp. 90a-92a; Pet. App. G, p. 105a.) The attor-

ney continued to represent Steffen in attempts to resolve

the dispute about Steffen’s change of duties and respon-

sibilities. (Pet. App. F, pp. 89a-90a, 94a-100a.) After

Steffen was discharged in November 1983. he filed a sec-

ond charge on December 1. 1983, alleging that he had

been terminated because of his age. ‘Pet. App. H, pp.

106a-11la.) *

More than one year later, on December 27, 1984, when

Steffen filed his judicial complaint, for the first time he

alleged that his discharge was retaliatory. In response

to Meridian’s Motion for Partial Summary Judgment,

the court reviewed the factual allegations of Steffen’s

EEOC charge to determine_whether his retaliation claims

7 Steffen’s attorney died on or about July 1, 1984, more than

seven months after Steffen filed his second EEOC charge. (Pet.

App. F, p. 89a.) He subsequently retained new counsel.

13

were within the charge’s scope. His charge does not re-

fer to his previous charge of age discrimination or to

his attorney’s prior attempts to resolve his claim of dis-

criminatory demotion. (Pet. App. H, pp. 108a-110a.) His

allegations that he was terminated, demoted and denied

profit sharing benefits were grounded only on his belief

that age affected the decisions.» Absent some reference

in the charge to the fact that Steffen had previously com-

plained of discrimination, it is impossible for anyone—a

layman, an EEOC officer or an employment lawyer—to

infer that Steffen’s discharge was the result of his earlier

opposing Meridian’s decisions or exercising his statutory

rights.” Cf. Jenkins, 538 F.2d at 168-69 (where the fac-

tual statements raised claims of both sex and race dis-

crimination).

Moreover, the evidence shows that nothing outside the

charge alerted the EEOC investigator, who would have

’ The court noted that Steffen had checked the box marked

“other,” “specifically” had written in “age,” and had made “no

mention of retaliation or any other words to that effect.” (Pet.

App. A, pp. 48a-49a).

® Before the Court of Appeals, it was argued that Steffen’s asser-

tion that the reason for his termination was “pretext” raises the

issue of retaliation. The court below concluded, “This contention

misses the mark by a wide margin.” (Pet. App. A, p. 49a.) Steffen’s

“pretext” language is directly related to Steffen’s statement that

he was the “oldest employee” at Meridian. While it alerts the

EEOC to Steffen’s belief that Meridian’s stated reason for his

termination was a pretext for age discrimination, it “cannot rea-

sonably be expected to alert the [EEOC] to the separate and dis-

tinct charge of retaliation.” Meyer v. Macmillan Publishing Co.,

85 F.R.D. 149, 152 (S.D.N.Y. 1980); see also Ekanem v. Health

-and Hospital Corp., 724 F.2d 563, 573 (7th Cir. 1983), cert. denied,

469 U.S. 821 (1984) (original emphasis) (“A charge that a given

wage is too low because of unlawful retaliation is not the same as

a charge that a given wage is too low because of unlawful race

discrimination.” ): Tucker v. Harley Davidson Motor Co., 454

F.Supp. 738, 742 (E.D. Wis. 1978) (holding that an allegation of

discriminatory dismissal does not fairly encompass the allegations

of retaliatory discharge).

14

had access to the file from Steffen’s first charge, to a

claim of retaliation. The EEOC’s Log of Investigative

Settlement Actions shows that after the investigator

talked with Steffen and Meridian’s counsel about the case,

he continued his investigation by preparing and forward-

ing to Meridian a “Request for Information.” (Record on

Appeal, Doc. 08, attached Ex. 1, p. 115.) That Request,

which included fourteen inquiries, did not seek any infor-

mation about the informal conciliation. Steffen’s prior

representation by counsel or Steffen’s complaints about

his demotion. (Record on Appeal, Doe. 05, attached Ex.

2, pp. 38-39.) Because the EEOC did not have notice of

a retaliation claim, Meridian did not have notice and

was not given an opportunity to conciliate a retaliation

charge. See Jensen v. Board of County Commissioners

for Sedgwick County, 636 F.Supp. 293, 300 (D. Kan.

1986) (Where the plaintiff, like Steffen, filed a charge

of discriminatory discharge but did not allege retalia-

tion, the court held that the retaliation claim “is separate

and distinct from a discrimination claim, and even under

a liberal analysis, it is not ‘reasonably related to the

charges alleged.’ ’’).

It is upon these facts that the court correctly con-

cluded that Steffen’s claim of retaliatory discharge was

not within the scope of his charge.

teffen’s failure to include the facts supporting a claim

of retaliation in his charge is inexcusable. As the Sev-

enth Circuit concluded, at the time he filed his December

1, 1983 charge, all the facts on which he based his civil

action were known, but he did not allege retaliation or

allege facts from which retaliation could reasonably be

inferred. The district court emphasized the same fact

when it distinguished Steffen’s case from cases in which

retaliatory conduct occurred after, rather than before,

the filing of a charge. (Pet. App. D, pp. 78a-81a.)

Relying upon Smith v. Sentry Ins., 674 F. Supp. 1459

(N.D. Ga. 1987), Steffen suggests that an EEOC in-

15

vestigator would have unavoidably concluded that his

discharge might be in retaliation for the assertion of his

ADEA rights. (Pet., p. 18.) That suggestion is without

merit. First, in this case the investigator did not reach

such an unavoidable conclusion because the investigator

did not investigate or attempt to conciliate a claim of

retaliatory discharge. (Record on Appeal, Doc. 05, at-

tached Ex. 2, pp. 38-39 (EEOC’s Request for Informa-

tion); Doe. 08, attached Ex. 1, p. 115 (EEOC Log of

Investigative Settlement Actions).) Second, Smith’s case

is distinguishable from Steffen’s.

In Smith, the court held that the plaintiff’s claim of

retaliatory discharge was encompassed in his EEOC

charge and in the investigation reasonably growing out

of that charge. There was no evidence of the actual

EEOC investigation in the record, so the court turned

to the charge itself. Although the charge did not de-

scribe Smith’s termination in terms of retaliatory dis-

charge, Smith stated in his Intake Questionnaire that the

discriminatory actions against him were the result of

“retaliatory appraisal,” “discrimination [sic] promotion”

and “discriminatory retaliatory termination and possibly

other actions.” Sinith, 674 F. Supp. at 1464 (emphasis

added). Thus, unlike Steffen, Smith alerted the EEOC

that he believed his termination was the result of his

prior opposition to what he believed were his employer’s

unlawful employment practices. See also Johnson v. Gen-

eral Electric, 840 F.2d 132, 139 (1st Cir. 1988) (holding

that a retaliation claim “could not have been expected to

be part of the scope of the EEOC’s investigation growing

out of appellant’s earlier complaints, because plaintiff

has not alleged that he even informed the EEOC of the

alleged retaliation”): Meyer v. Macmillan Publishing Co.,

85 F.R.D. at 151 (‘For the EEOC reasonably to be ex-

pected to investigate the retaliation charge, that agency

should have been alerted to the claim.”). Here, the

EEOC was not alerted to a claim of retaliatory dis-

16

charge because Steffen did not so much as hint that he

believed his discharge was based on retaliatory motive.'”

A court should not require “an exact correspondence

between the words of the EEOC charge and the judicial

complaint.” Babrocky, 7173 F.2d at 865-66.'' However,

here, Steffen filed his charge after the alleged retaliation

occurred; there is no correspondence between the two;

and there was no investigation of retaliation. Thus, the

Seventh Circuit correctly held that Steffen could not “‘in-

ject[] an entirely new theory of liability into the case

alleging unlawful activity of a much different nature

than the age discrimination alleged in the charge.” (Pet.

App. A, p. 50a.) A contrary ruling would emasculate

the dual purposes of putting the employer on notice of

the allegations and of allowing the agency to attempt an

informal conciliation of the charges.’* See Jiron, 423

F.Supp. at 159.

10 Steffen concludes his Petition pleading, “How could [I], [my]

EEOC counselor or anyone have identified whether [my |] termination

by Meridian was more age discrimination or in retaliation for the

assertion of [my} ADEA rights?”. (Pet., p. 26.) That rhetorical

question is best answered by a review of Steffen’s charge which

demonstrates that Steffen could and, in fact, did specifically identify

that he believed he was discharged only because of his age. After

stating, “I feel that I have been discriminated against because of

my age,” Steffen added, “At the time of my termination I was the

oldest employee in the Company.” (Pet. App. H, pp. 109a-110a.)

Retaliation did not hecome an alleged motive until more than one

year later after a second counsel, who prepared the judicial com-

plaint, became involved.

11 See also Sanchez, 431 F.2d at 465 (“{T]he specific words of

the charge of discrimination need not presage with literary exacti-

tude the judicial pleadings which may follow.” ).

12 Steffen argued in the court below that nothing different would

have occurred during the conciliation if retaliation had been spe-

cifically alleged. That argument is unsound. An employer charged

with discrimination and retaliation is in a totally different concilia-

tion posture than one charged solely with discriminatory conduct.

Cf. EEOC v. St. Anne's Hospital of Chicago, 664 F.2d 128, 131

17

B. The Decision Of The Court Below Does Not Require

The Filing Of A Second Charge That Specifically

Alleges Retaliation

Finally, Steffen complains that the lower court’s deci-

sion will require a worker who files an administrative

charge and, subsequently, suffers adverse employment ac-

tions to file a second charge “specifically articulating the

possibility” that the subsequent actions were retaliatory

in nature in order to bring a civil action based on retalia-

tion. (Pet., p. 25; see also pp. 11-18, 23.) No fair read-

ing of the court’s decision supports Steffen’s contention.

Even Steffen acknowledges that “[tjhe language of the

decision rejects this additional charge requirement,” yet

he insists that the “holding establishes legal precedent for

such a requirement.” (Pet., p. 23.) The court’s holding

that retaliation is not within the scope of the charge

clearly was based on the specific facts of this case in

which a second charge had been filed. Moreover, here,

the alleged retaliation occurred prior to Steffen’s filing

his second charge of discrimination, which charge re-

ferred only to age discrimination as a basis for his dis-

charge and did not suggest in any fashion that his dis-

charge was motivated by retaliation.

It is true that courts frequently permit plaintiffs to

seek relief for acts of retaliation even if they are not

listed in an initial charge when the act of retaliation

occurs after the EEOC charge was being considered and

the employee does not file a second charge. See Ross v.

Kansas Commission on Civil Rights, 45 Fair Empl. Prac.

Cas. 1472, 1475 (D. Kan. 1982). Courts reason that re-

quiring a plaintiff to file a second charge would “place

a needless procedural barrier against claimants under

Title VII and that eliminating such a barrier will dis-

(7th Cir. 1981) (where the court rejected the defendant’s claim that

it was denied an opportunity to conciliate because the defendant,

unlike Meridian, had been “informed prior to the reasonable cause

determination that retaliatory C’scharge had become the issue’’).

18

courage employers fiom attempting to deter employees

from exercising their Title VII rights.” Id. at 1475;

see also Gupta v. East Texas State University, 654 F.2d

411, 414 (Sth Cir. 1981) (“{T]t is unnecessary for a

plaintiff to exhaust administrative remedies prior to urg-

ing a retaliation claim growing out of an earlier charge”

because “a double filing ... would serve no purpose ex-

cept to create additional procedural technicalities when

a single filing would comply with the intent of Title

VIL”); EEOC v. Reichhold Chemicals, 700 F.Supp. 524,

527 iN.D. Fla. 1988) ‘extending the Gupta rationale to

a case in which the EEOC was the plaintiff) ; Grimes,

583 F.Supp. at 649. As previously discussed, both the

district court and the Court of Appeals emphasized that

Steffen, who filed his charge after the alleged retaliation

occurred, did not face such a procedural “barrier” or

“technicality.” (Pet. App. A, pp. 5la-52a n.2; Pet. App.

D, pp. 78a-8la.) Steffen filed a second charge after

the alleged retaliation, yet his detailed charge is devoid

of any facts from which to infer he believed that re-

taliatory motive was the basis of his discharge.

Steffen is certainly not a charging party “so unlettered

and inarticulate that he does not fully comprehend the

distinction between an act motivated by |age discrimina-

tion] and an identical act motivated by (retaliation |.”

Sanchez, 431 F.2d at 462-63. It is, therefore, fair to con-_

clude that Steffen believed his discharge was solely ba-ed

on age. It is also fair to conclude that retaliatory motive

was an afterthought that sprang forth when Steffen

obtained new counsel after the death of his initial counsel

in July 1984.

Here, the procedural requirements for gaining access

to the federal courts should not be disregarded. Steffen’s

case does not warrant further relaxation of the statutory

procedural requirements.

19

Ili. This Case Does Not Merit The Court’s Review

Steffen has not presented reasons of the character that

warrant granting a Petition for a Writ of Certiorari.

Steffen has not cited a single applicable decision of this

Court with which the Seventh Circuit’s decision conflicts.

Steffen has failed to establish the existence of a conflict

among the circuits with regard to the standard for deter-

mining whether a civil action based on retaliation is

within the scope of an EEOC charge. He simply has

presented to this Court a single plaintiff who is dissatis-

fied with the court’s application of well-established legal

principles to the particular facts of his case. Steffen’s

dissatisfaction is not a cert-worthy issue, and his case

does not merit this Court’s review.

CONCLUSION

For the foregoing reasons, the Petition should be

denied,

Respectfully submitted,

(, WENDELL MARTIN

MARTIN WaApDE I! arTLEY &

ITOLLINGSWORTH

3590 North Meridian Street

Indianapolis. Indiana 46208

(217) 924-6700

SUSAN BoWwRON-WINTE

MERIDIAN LIFE INSURANCE COMPANY

2055 North Meridian Street

Post Office Box 1980

Indiananolis. Indiana 46206

(317) 927-8212

JON T. NEIGHBOURS *

Mitzi [LARRIS MARTIN

BAKER & DANIELS

Suite 2700

"00 North Meridian Street

Indianapolis. Indiana 46204

(317) 237-0300

Counsel of Record

Counsel for Resvondcnts

May 26, 1989