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Jurisdictional questions dominate first oral argument before Supreme Court

By Pamela Wolf, J.D., Lisa Milam-Perez, J.D. and Joy P. Waltemath, J.D.

On Monday, October 7, the Supreme Court kicked off its new term with a batch of orders that included a denial of certiorari to Cintas Corporation in its battle against the EEOC and a request for the U.S. Solicitor General to take a position on whether certiorari should be granted in a pregnancy discrimination case brought against UPS. The Court also opened its doors for oral argument.

Madigan v. Levin. In its first oral argument of the term, the Court focused its attention on Madigan v. Levin (Dkt No 12-872), an age discrimination case on review of a Seventh Circuit ruling.

Resolving a question of first impression in its circuit, the Seventh Circuit held on August 17, 2012, that the ADEA is not the exclusive remedy for age discrimination in employment claims and thus affirmed a district court’s conclusion that a discharged assistant attorney general could proceed with his Sec. 1983 equal protection claims against individual defendants. Further, because it was clearly established at the time of his discharge that age discrimination in employment violates the Equal Protection Clause, the Illinois Attorney General and other individual defendants were not entitled to qualified immunity.

The question presented is: “Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the Federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.”

It may be that the fate of the case is foreshadowed by the very first question from the bench. Justice Ginsburg asked Illinois Solicitor General Michael A. Scodro (on behalf of the petitioner, Illinois Attorney General Lisa Madigan) what she saw as a preliminary question to be addressed prior to the question presented under the ADEA: “What authority did the Seventh Circuit have to deal with the question under the Age Discrimination Act? I mean, it was — it went to the Seventh Circuit on interlocutory review.”

After Scodro agreed on that procedural posture, Ginsburg went on to query: “A qualified immunity question. Everybody agrees that there is no qualified immunity. That there — that there is indeed a claim that the Equal Protection Clause includes age. So … Seventh Circuit had no authority to deal with any question other than that, did it?”

The very next question came from Justice Alito: “Now, we have an amicus brief from law professors who argue that the Seventh Circuit should not have considered the question of whether there was a cause of action under Section 1983. But they also go on to argue that we, nevertheless, have jurisdiction to consider that question, and that it is a — a matter of discretion for us to decide whether to do that. Is that — do you agree with that position?”

Not surprisingly, Scodro did agree with the professors’ stated position.

However, Justice Kennedy next chimed in with what appeared to be a “putting the cart before the horse” question: “If we adopt that formulation and that solution, is it as if we are granting certiorari before judgment on an issue in our own discretion? Is that the way it works?” Kennedy went on to ask Scodro for the rationale that would permit the High Court to exercise jurisdiction where an appeals court could not.

Later, Justice Scalia chided Attorney Edward R. Theobald, who argued on behalf of the respondent, for failing to more thoroughly address his several arguments as to “why we can’t get to the holding of the Seventh Circuit” in the respondent’s brief in opposition. “I mean, we — we don’t like to dismiss a case as improvidently granted,” Scalia said. “[O]nly when the — when the case is before us, counsel suddenly finds all sorts of reasons why we shouldn’t have taken it in the first place,” Scalia added. “You should have told us that before we took it.”

“We could have done a better job,” Theobald acknowledged, also apologizing to the Court.

While the High Court did hear substantial argument on the merits of the question presented, as Scalia noted, the jurists also found themselves “spending most of our discussion on — on other stuff.”

Although it’s hard to predict what the Court will do, it appears there is at least the possibility that this “other stuff” will determine the outcome.

EEOC v. Cintas Corporation. On its first day, the Court also denied the petition for certiorari filed by Cintas Corporation (Dkt No 12-1347) after the EEOC’s gender discrimination case against the uniform company was reinstated by the Sixth Circuit Court of Appeals.

In a significant victory for the EEOC, the Sixth Circuit on November 9, 2012, overturned a judgment in favor of Cintas in a suit alleging gender bias in the company’s hiring practices and also reversed an attorneys’ fee award to the employer. The lower court had granted Cintas’ motion for judgment on the pleadings on the EEOC’s initial pattern-or-practice suit, concluding that the EEOC could not pursue a pattern-or-practice claim under Sec. 706 of Title VII.

The district court also had held the EEOC’s pleadings were deficient to that end. In so holding, it erred on both counts, the Sixth Circuit found, vacating the judgment.

The appeals court also vacated the lower court’s grant of summary judgment to the employer on the agency’s individual-claimant claims brought on behalf of 13 service sales representatives. The court’s summary judgment determination was erroneously based on McDonnell Douglas rather than the pattern-or-practice framework, and thus it could not stand.

Young v. UPS. The High Court also asked the U.S. Solicitor General to weigh in on whether the petition for certiorari filed by the petitioner in Young v UPS (Dkt No 12-226) should be granted. There, the Fourth Circuit held on January 9, 2013, that a UPS policy providing light-duty work only to employees who had on-the-job injuries, employees with disabilities accommodated under the ADA, and employees who had lost DOT certification was not direct evidence of pregnancy-based sex discrimination. Nor could a pregnant employee who was unable to work during her pregnancy because of a lifting restriction establish a prima facie case of pregnancy discrimination because the court agreed that she was not similarly situated to employees with work-related injuries, ADA disabilities, or those who had lost DOT certification.