Opposition Brief — Rider v. Pennsylvania

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NO. -4 IOSEPH B, 5; : 108, Sieg

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1988

BARRY L. RIDER, et al.,

Petitioners

Vv.

COMMONWEALTH OF PENNSYLVANIA, et al.,

Respondents

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

LeROY S. ZIMMERMAN

Attorney General

AMY ZAPP*

Deputy Attorney General

GREGORY R. NEUHAUSER

Senior Deputy Attorney General

JOHN G. KNORR, III

Chief Deputy Attorney General

Chief, Litigation Section

*Counsel of Record

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

QUESTION PRESENTED

Whether, in accordance with full faith

and credit, the Court of Appeals properly

affirmed dismissal of petitioners’ Title

VII sex discrimination: claim where the

judgment in a related state court action

operated to preclude that claim under

state law?

QUESTIONS PRESENTED.........ceee-

TABLE OF AUTHORITIES...........- oe

STATEMENT OF THE CASE..........2..

ARGUMENT.....-ccccecces ceieweee cus

THE COURT OF APPEALS'

DECISION AFFIRMING DIS-

MISSAL OF THE GUARDS'

TITLE VII CLAIM PRESENTS

NEITHER IMPORTANT NOR

WIDELSY-APPLICABLE QUES-

TIONS OF FEDERAL LAW MER-

ITING THE COURT'S REVIEW....

CONCLUSION......... Tree. aise

pe

ii

13

13

23

:

TABLE OF AUTHORITIES

Cases:

Alexander v. Gardner-Denver

,

Ee Wvles. BO CASTE) 6 0.0 s o-adivn:e's

Brockett v. Spokane Arcades,

inc.,

472 UsGe SOL GIGBS inci. cee

Commonwealth, Department of

Corrections v. AFSCME,

101 Pa. Commw. Ct. 121, 515

A.2d 1000 (1986), allocatur

denied, 515 Pa. 610,

Bae Meee MGS. CISST) occ cece

Frisby v. Schultz,

No. 87-168 (June 27, 1988)...

Kremer _v. Chemical Construc-

tion Corp., 1

Beeeu ss 2O6Gk 01902)... 68766.

McDonald v. City of West Branch,

eee os MeV ae) YS eee

Migra v. Warren City School

District § i of Ed ik:

gk eT Ae ee ee

Newark Morning Ledger Company

v. United States,

939-F.2G 929 (3d Cir: 1976)..

-iii-

15,

15

19

16

21

Safeguard Mutual Ins. Co. v.

Williams,

463 Pa. 567, 345 A.2d 664

viseieke a: 3 “aera

sellers Association, Inc.,

No. 86-1034 (January 25,

ISOR vcs cos a carats a aia 16

Civil Rights Act of 1964,

42 U.S.C. §§ 2000e-

2000e-16 (1981 & Supp.

LOGR i. odds ewes the dita ed oe 6 ces passim

Equal Pay Act of 1963, .

29 U.S.C. §§ 206(d)

CID UG) « « dMB i eas a He ba ba « 7

Full Faith and Credit Statute

28 U.6.C« 4 1736 CE96E6) i. ccc 8, %5

42 U.8.C. § B9GS CUSER) oc vacccnes 7

42 U.S.C § BOGS CISSR) cide ceceds 7

Procedural Rules:

eG. Bs HER se ee CBO 8c bk Ba WESC Ye 10

oi Ya

STATEMENT OF THE CASE

1. This action arises out of

alleced. sex discrimination in the

operation of one of Pennsylvania's state

prisons. The petitioners are a group of

male guards who work at the State

Correctional Institution at Muncy, a

prison that houses mostly female

inmates. The petitioners complain that

certain jobs at the prison are available

only to female guards, allegedly in

violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C §§ 2000e-

2000e-16 (1981 & Supp. 1988). Their

complaint seeks damages and injunctive

relief which would permit them to be

hired for the positions in question.

ae The guards first contested

the prison's hiring policy in a union

arbitration proceeding that was appealed

to the state appellate courts. See

v. AFSCME, 101 Pa. Commw. Ct. 121, 515

A.2d 1000 (1986), allocatur denied, 515

Pa. 610, 529 A.2d 1083 (1987). In state

court, they claimed’ that the sex-

designated hiring policy at the prison

violated two specific provisions of

their bargaining agreement: one which

required that all positions at the

prison were to be filled strictly on the

basis of seniority unless there was an

operational necessity to depart there-

1

from; and another which expressly

lIfhis contract provision provided

that:

In making shift assignments

to shift openings, prefer-

ence shall be granted on a

seniority basis unless the

Employer feels it is neces-

sary to assign otherwise in

order to protect the effi-

ciency of operation. Sen-

iority status in this

regard shall be Classifi-

cation seniority attained

at the work site.

(App. 78a-79a).

foes ie a i ct ey

i "

ne Sane [OE RY cent) eee en Teen EN oe Te

prohibited discrimination based on

gender.” (App. 78a-79a).

It was undisputed in the

arbitration proceeding that the

operational policy at the prison for

deploying personnel required that:

Guards will not be assigned

to work in open view of un-

clothed inmates of the oppo-

site sex;

External escort of prisoners

must be by at least one offi-

cer of the same sex;

2The contract stated that:

Both the Employer and the

Union agree not to dis-

criminate against any

employee on the basis of

race, creed, color, ances-

try, sex, marital status,

age, national origin, non-

job related handicap Or

disability, union membership

or political affiliation.

(App. 79a).

Assignments to housing units

will involve at least one

officer of the same sex as

the inmates; and

Guards will not conduct strip

or frisk searches of inmates

of the opposite sex except

in case of emergency.

(App. at 8la).

The arbitrator who considered

the grievances upheld them and made an

award to the guards. (App. 78a). That

decision, however, was appealed to the

Commonwealth Court of Pennsylvania which

rejected and vacated the arbitrator's

ruling. In so doing, that court

explained that it was the arbitrator's

responsibility to decide if the sex-

designated hiring practice was at odds

with the essence of the contract. It

pointed out that, although the arbi-

trator had correctly recognized that the

essential inquiry was whether gender was

——————

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PETAL SRD UI ait ae ee alae eRe, ea.

& BRS RA ae OD, Sg Se WO

a bona fide occupational qualification

("BFOQ") for the positions governed by

the hiring procedures, in reaching his

decision, he incorrectly limited his

analysis to a discussion of whether

inmates retain any personal privacy

right which would necessitate assignment

of personnel based on gender. (App. 82a-

90a).

Commonwealth Court concluded

much more was involved in making the

BFOQ determination in this instance. It

stressed that, under state law, the

prison has a legal responsibility as a

public agency to deal with its inmate

population in an effective, efficient,

and humane manner. (App. 87a). Sex-

based hiring for the positions in

question, it found, was necessary from

an operational standpoint in order to

satisfy those obligations. Consistent

with that determination, it found no

~ =

violation. of the collective bargaining

agreement provision on _ seniority-based

hiring or the provision prohibiting

discrimination in hiring based on

gender. (App. 85a-90a) The ._ Penn-

sylvania Supreme Court refused review.

See 515 Pa. 610, 529 A.2d 1083 (1987).

| a Shortly after the arbi-

trator's award was overturned, peti-

tioners instituted this action in this

District Court for the Middle District

of Pennsylvania against respondents,

two Commonwealth agencies, the Pennsyl-

vania Department of Corrections and the

State Civil Service Commission, and four

of their officials and employees. In

3The individual respondents’ are

Glen R. Jeffes, former Commissioner of

the Department of Correction; Ann M.

Goolsby and J. lL. Andrews Superin-

tendent and Personnel Director at

SCI-Muncy; and John E. Millett,

Executive Director of the State Civil

Service Commission.

=

NEE i ise etal Ai pos

their complaint they claimed that the

gender-specific hiring policy used by

the Department at the prison with

approval of the State Civil Service

Commission adversely affected their

compensation and advancement and

constituted impermissible discrimination

based on gender prohibited by Title

VII.4 (App. la-3a).

Based on the decision in state

court, respondents moved to dismiss the

complaint. They contended that, when

the state court decision was given full

faith and credit in the action in

federal court, it operated to bar the

guards’ Title VII claim. The District

Court agreed and dismissed the claim.

(App. 64a-76a).

4The guards also sought. relief

under the Equal Pay Act of 1963, 29

U.S.C. §§ 206(d)(1978); under 42 U.S.C.

§§ 1983 and 1985 (1981); and under state

law. (App. 3a). These claims are not

involved here.

~

In taking that action, the

District Court applied the principles

the Court has prescribed in interpreting

the provisions of the Full Faith and

Credit Statute, 28 U.S.C. § 1738 (1966).

(App. 170a-7la). It first assessed

what, if any, preclusive effect the

Commonwealth Court's decision would have

in the Pennsylvania courts. In this

regard, it recognized that Pennsylvania

law requires four conditions be met in

order for a judgment in one case to

preclude litigation of an issue or a

claim in another: (1) that the issue

decided in the prior action be identical

to that in the later matter; (2) that

there was a final judgment on the merits;

(3) that the party against whom estoppel

is asserted must have been a party to,

or in privity with, a party to the

earlier action; and (4) that the party

against whom estoppel is asserted had a

full and fair opportunity to litigate

the issue in the earlier action. App.

7la, citing Safeguard Mutual Ins. Co. v.

Basse, 0s Pa. 567,°' 574, 345 A.2d

664, 668 (1975).

As the District Court observed,

the guards did not dispute satisfaction

of the first, third, and fourth

conditions in this case. Rather, their

only argument was that the judgment in

state court did not decide the merits of

their claim. (App. 7la-72a). The

District Court rejected that contention.

It concluded that the issue pivotal to

the guards' Title VII claim, ji.e.,

whether there was a BFOQ for the hiring

practice, was necessarily decided in the

state court proceeding given the partic-

ular contract provisions involved. Since

the effect of the contract involved was

to prohibit sex-based hiring, unless

there existed an operational necessity

for it, the state court's conclusion

that there was no violation of the

contract necessarily involved a finding

that there was a BFOQ for the hiring

practice challenged. (App. 72a-75a).

4. The guards appealed the

District Court's dismissal of their Title

VII claim to the Court of Appeals which

affirmed.” In the Court of Appeals,

SPursuant to Fed. R.Civ.P. 54(b),

the District Court reduced its decision

on the Title VII claim to a final judg-

ment, (App. 58a- 63a), and the guards

then appealed the disposition of that

Claim to the Court of Appeals. (App. 4a

Sie SF The other claims are presently

stayed. :

_

they attempted to dispute the existence

of all four of the state law

prerequisites for preclusion, notwith-

standing their failure Kel Se so before

the District Court. The Court of

Appeals concluded, however, that they

had abandoned their dispute as to all

but the second of the requirements.

(App. 30a-32a). The Court of Appeals

went on to say that, even though it was

under no obligation to do so, in an

exercise of caution it would nonetheless

review compliance with each of the four

state law requirements in this’ case.

That review concluded all were met.

(App. 32a-42a).

With respect to the question of

whether there had been a final judgment

on the merits--the only point the guards

properly disputed on appeal--the Court

om

of Appeals was in complete agreement

with the District Court. It concluded

that the state court's interpretation of

the specific bargaining agreement provi-

Sions necessarily entailed addressing

the issue pivotal to the guards' Title

VII claim: whether there was a BFOQ for

the gender-designated hiring practice.

Like the District Court, the Court of

Appeals also concluded that, in an

action in the courts of the Common-

wealth, the guards would be barred from

relitigating this issue. (App. 40a-47a).

Accordingly, under’. the principles of

full faith and credit, it determined

they are barred from relitigating the

same issue in federal court.

a Stn

ARGUMENT

THE COURT OF APPEALS' DECI-

SION AFFIRMING DISMISSAL OF

THE GUARDS’' TITLE VII CLAIM

PRESENTS NEITHER -IMPORTANT

NOR WIDELY-APPLICABLE QUES-

TIONS OF FEDERAL LAW MERITING

THE COURT'S REVIEW.

Petitioners assert that this

case presents important and far-reaching

questions of federal employment = law

which urgently require the Court's

1 attention. They argue, first, that in

affording the state court decision

preclusive effect, the Court of Appeals

seriously deviated from the Court's

decisions applying principles of full

faith and credit. Second, they claim it

was improper for the Court of Appeals to

conclude that the issue central to their

Title VII claim--whether a BFOQ existed

for the sex-designated hiring policy--

wkBe

had been decided in the state court

action, because the scrutiny given that

question in the arbitration proceeding

was less exacting than that ordinarily

employed by a federal court-in resolving

the same point.

In reality, none of this is

true. Despite petitioners’ efforts to

portray it as otherwise, this is a

completely unremarkable case involving

nothing more than the application of

well-established legal principles to the

particular facts involved here. The

Court of Appeals’ decision has no broad

Significance. Moreover, what peti-

tioners are now trying to pass off as

pressing federal questions are, in

actuality, issues of state law which

they are barred from raising as_ the

result of their earlier actions in this

case.

«tin

A. This Court repeatedly has

held that under 28 U.S.C. § 1738, the

judgments of state courts are entitled

to full faith and credit in federal

court; they must be given the same force

and effect as they would have in a state

court proceeding. See McDonald v. City

of West Branch, 466 U.S. 284, 287 (1984),

(1984); Kremer _v. Chemical Construction

Corp., 456 U.S. 466 (1982). The Court

has never said that the applicability of

this statute is restricted to particular

types of state court actions. Rather,

when a court is confronted with a ques-

tion of what effect a state court deci-

sion may have in a matter before it, it

must assay what the effect would be

under state law. See McDonald, 466 U.S.

at 287. As Kremer clearly shows, the

-15-

very same analysis applies when the

state court decision involves a review

of administrative proceedings and it may

be found that the state court decision

precludes a federal Title VII suit.

Kremer, 456 U.S. at 476-482.

The courts below did precisely

what they were supposed to do in this

case. The uniform conclusion of both

the District Court and the Court of

Appeals on the question of state

law--and, hence, one this Court should

be reluctant to disturb, see Frisby v.

Schultz, No. 87-168 (June 27, 1988),

slip op. at 6-7; Virginia v. American

Booksellers Association, Inc., 86-1034

(January 25, 1988), slip op. at 10-11;

Brockett v. Spokane Arcades, Inc., 472

U.S. 491, 499-500 (1985)--is that peti-

tioners' Title VII claim is precluded

=16—-

because of what was necessarily deter-

mined in the state court. The courts

below did not take any action contrary

to the decisions of this Court. Rather,

their decisions embrace and apply the

well-settled principles of Kremer,

McDonald and Migra.

Despite this, petitioners go to

great lengths to try to create the

impression that the Court of Appeals’

decision conflicts with Kremer, supra,

and with the Court's decision in

Vv = Vv » €3

U.S. 36 (1974). Their arguments have no

merit. The Court of Appeals’ action was

consistent with--not contrary to--Kremer.

Furthermore, Alexander has no relevance

to this action. In Alexander, the Court

addressed what effect an unreviewed

arbitrator's decision had under full

faith and credit and concluded the

doctrine did not apply. This case, by

win

contrast, involves a state court

judgment which must be considered in the

manner prescribed by Migra and Kremer.

Alexander does not apply here and

petitioners fail to see this distinction.

B. The true nature of peti-

tioners' disagreement is one involving

-the application of state law. By

discussing at length the procedures

involved in arbitration and what they

perceive as its inadequacies, ° they

are, in reality, arguing that they did

not have a full and fair opportunity to

litigate the issue on which their Title

6In their related discussion of

what transpired in the arbitration

proceeding in this case, see Petition at

pp. 31-32, petitioners take many

liberties with the record and infuse

that discussion with "“facts" that are

not actually of record. Respondents do

not concede the accuracy of their

account.

-18-

VII claim is based. This is a point,

however, that they did not challenge in

the District Court even though they had

ample opportunity to do so. (App. 7la-

72a). As the Court of Appeals correctly

concluded, they could not iegitimately

attempt to resurrect that argument in

their appeal before it and certainly

they may not do so now. See Newark

Morning Ledger Company v. United States,

539 F.2d 929, 932-933 (3d Cir. 1976),

(App. 30a-32a).

The second argument made _ by

petitioners, which challenges the BFOQ

determination in this case, is likewise

barred. Their basic contention, that

the decision in the arbitration

proceeding on this point did not involve

analysis comparable to that which would

be applied by a federal court, again,

really involves a question of appiying

-19-

state law. In essence, it iS an argu-

ment that the issue involved in the

arbitration proceeding and the Title VII

claim is not the same. Petitioners,

however, never disputed this point in

the District Court when they were

obliged to do. ‘In any event, there is

plainly no merit to the argument. As

the opinions of the courts below demon-

strate, given the particular contract

provisions involved, the questions in

both proceedings were synonymous. (App.

40a-47a, 72a-75a).

C. Finally, while eehit toners

strive to convince the Court that this

case presents questions of broad appli-

cation, their predictions in this

respect are empty overstatements. The

Court of Appeals has not fashioned any

new or unusual _ rule. It simply has

applied long-standing principles’ enun-

ciated by the Court. To the extent the

«ft..

state court decision in this case is

"unusual" because of its genesis in an

arbitration, that characterstic is not

one of substance. As with any case

involving a question of what effect is

to be given a state court decision, its

importance hinges on what actually was

decided and what that means in terms of

state law preclusion principles. — See

McDonald, supra. Its significance is

confined to this case and this’ case

alone. Other cases necessarily will be

affected by the particulars they involve

and may very well lead to different

results.

In those situations where, as

here, the ultimate conclusion is that a

claim is precluded by a prior. state

court judgment, that result is not

unfair. It means only that the state

court decision has been given its

intended effect under full faith and

me ee

credit. This Court consistently has

recognized the importance of full faith

and credit to our federal system of

government. This case presents no

reason to question those decisions or

the result reached by the Court of

Appeals.

ait.

CONCLUSION

For the foregoing reasons, the

petition for writ of certiorari should

be denied.

Respectfully submitted,

LeROY S. ZIMMERMAN

Attorney General

By: AMY ZAPP

Deputy Attorney General

GREGORY R. NEUHAUSER

Senior Deputy Attorney General

JOHN G. KNORR, III

Chief Deputy Attorney General

Chief, Litigation Section

Counsel for Respondents

Office of Attorney General

15th Floor

Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

DATE: November 21, 1988

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