Opposition — Union Carbide Corp. v. Nance

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IN THE

Supreme Cuurt of the United States

OCTOBER TERM, 1976

No. 76-838

UNION CARBIDE CORPORATION,

CONSUMER PRODUCTS DIVISION,

Petitioner,

WINIFRED S. NANCE,

Respondent.

BRIEF IN OPPOSITION TO CERTIORARI

ROBERT BELTON

Post Office Box 6057

Statin B, University Station

Nashville, Tennessee 37235

JONATHAN WALLAS

Suite 730

East Independence Plaza

951 South Independence Blvd.

Charlotte, North Carolina 28202

Attorneys for Respondent

WILSON - Eres PRINTING Co.. INC. RE 7-6002 - WASHINGTON. D. C. 20001

TABLE OF CONTENTS

r,; ...... ̃ latis

e . NTRS eS SEE oe

Reasons for Denying the Writ

I. The Title VII Principles Relied Upon By the

Fourth Circuit Are Consistent With Decisions

of Other Courts of Appeals

II. The Facts and Issue Decided in Franks v. Bow-

man Transportation Company Are Patently

Distinguishable From This Cases

CITATIONS

Cases Page

Bowe v. Colgate-Palmolive Co., 489 F.2d 896 (7th

I ie 10

Bowe v. Colgate-Palmolive Co., 416 F. 2d 711 (7th

D ea 4

Bowe v. Colgate-Palmolive Co., 6 BNA FE Cases

I Ge

EEOC v. Detroit Edison Co., 515 F.2d 301 (6th

Cir. 1975), pets. for cert. pending, 44 U.S.L.W.

3094, 3150 (U.S. August 11, 13 and September

12, 1975) (Nos. 75-221, -220, -393) _.................. 10

Evans v. United Air Lines, Inc., 534 F.2d 1247

(1976), cert. granted, 45 U.S.L.W. 3329 (U.S.

November 1, 1976) (No. 76-3333)))))) 10

Franks v. Bowman Transportation Co., 424 U. 8.

747 (1976) . aa ka aaa a 3, 6, 7, 8, 11

Jersey Central Power & Light Co. v. Local 327,

508 F.2d 687 (3rd Cir. 1975), vacated and re-

manded, 425 U.S. 987, 96 S.Ct. 2196 (1976) 8

Jones v. Lee Way Motor Freight, 431 F.2d 245

(10th Cir. ), cert. denied, 401 U.S. 954

— .! — 10

Papermakers & Paperworkers Local 189 v. United

States, 416 F.2d 980 (5th Cir. 1969), cert. de-

Patterson v. American Tobacco Co., 528 F.2d

357 (4th Cir.), cert. denied, 425 U.S. 935

— 9

Pett way v. — Cast — Pipe Co., 494 U. 8.

211 (5th Cir. 1974 ͤ— —„ꝛ 10

Quarles v. Philip Morris, Inc., 279 F. Supp. 505

(E. D. Va. 1968) — — 8, 9, 10

Rogers v. International Paper Co., 510 F.2d 1340

(8th Cir.), vacated and remanded on other

grounds, 423 U.S. 809 (19759 10

United States v. Bethlehem Steel Corp., 446 F.2d

SS GEE —... T 9

III

CITATIONS—Continued

Page

United States v. Chesapeake & O. Ry. Co., 471 F. 2d

582 (4th Cir. 1972), cert. denied, 411 U.S. 939

„% — ͤ — T 9

United States v. Georgia Power Co., 474 F.2d 906

r x 4

United States v. Navajo Freight Systems, 525 F.2d

e 10

United States v. St. Louis-San Francisco Ry., 464

F. 2d 301 (8th Cir. 1972), cert. denied, 409 U.S.

I ACE pce 10

Waters v. Wisconsin Steel Workers, 502 F.2d 1309

(7th Cir. 1974), cert. denied, 425 U.S. 997

EE 7, 8, 10

Watkins v. Steelworkers Local 2369, 516 F.2d 41

e —

Statutes

§ 703 (h) of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2(h) 6, 7, 9, 11

Legislative History

110 Cong. Rec. 7207 (1964))))))))ꝛ::: —

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-838

UNION CARBIDE CORPORATION,

CONSUMER PRODUCTs DIVISION,

Petitioner,

WINIFRED S. NANCE,

Respondent.

BRIEF IN OPPOSITION TO CERTIORARI

QUESTION PRESENTED

Petitioner raises, in two different formulations, a single

question: whether the exemption provided in § 703(h)

of Title VII for a bona fide seniority system is applicable

as a matter of law to deny a district court the authority

under § 703(g) to grant seniority relief from a facially

sex-based seniority system that has a continuing adverse

effect on the employment opportunities of a protected

member after the effective date of the Act?

STATEMENT OF THE CASE

The issues Petitioner Union Carbide presents for re-

view are not raised on the facts of this case therefore

Respondent Nance finds it necessary to make this coun-

ter statement.

Nance sued Union Carbide under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., seeking

relief from broad sex-based employment practices at Pe-

titioner’s Charlotte, North Carolina plant (“Charlotte

plant“). Nance filed her complaint as an individual, non-

class action in the United States District Court for the

Western District of North Carolina, Charlotte Division,

on August 12, 1972.

From the early 1940’s until approximately two weeks

prior to the effective date of Title VII (July 2, 1965),

Union Carbide maintained an open and declared policy

and practice of segregating its work force on the basis

of sex. (A 13-14) Females were hired into, promoted

to, and laid off from jobs reserved exclusively for females

and were credited with a seniority standing only with

respect to these jobs. The same practice was followed

with respect to jobs reserved exclusively for males. (A

14) Separate seniority rosters were maintained for males

and females.’ (Id.)

Union Carbide seeks to avoid Title VII liability on

the basis that gender-based discrimination was not il-

1 Petitioner herein will be designated as “Union Carbide“ and

Respondent as ““Nance” to conform to the designation of the parties

by Petitioner.

Union Carbide asserts that the classifications of jobs as male

jobs or female jobs were based on such factors as weight-lifting re-

quirements, state statutory restrictions on the hours of work for

females and other hardship factors (Petition at 5); however, long

before the effective date of Title VII females in fact worked on jobs

reserved exclusively for males. For example, Nance, employed in

1952, worked on a job designated as a male job from January 12,

1953 until March 16, 1953. Appendix filed in the Court of Appeals,

Exhibit Volume EII at 413; 423-424. (Hereinafter designated

“Record on Appeal, Vol. at „) Females who were assigned

to male jobs could not assert any seniority rights over these jobs to

avoid lay-off solely because of Union Carbide’s sex-based seniority

practices. (A 14)

legal prior to the effective date of the Act. See Petition

at 11. The record shows and the district court found

that Union Carbide engaged in facially sex-based prac-

tices not only prior to the effective date of the Act, but

that it continued to engage in active facially sex-based

practices for more than four years after the effective

date of the Act. (Finding No. 15, A 13) Facially sex-

based practices were not eliminated by Union Carbide

until November 18, 1969.°

The critical factor for work opportunities at the Char-

lotte plant is an employee’s “company service credit.”

Promotions, demotions, transfers, lay-offs and recalls are

governed by “company service credit” and is the operative

seniority standard.“ Company service seniority is cal-

culated by deducting all of the time during which the

Before July 2, 1965, jobs were specifically designated as male“

jobs or “female” jobs. (A 13-14) In June, 1965 jobs were re-

designated “male” or “either”. Jobs designated as either“ were for

the first time opened to both male and female employees; how-

ever, jobs designated as male“ were not open to females under

any circumstances. (A 19-20) Designations of jobs as “male” were

not removed until November 18, 1969. (A 21-22)

Also, Union Carbide is a government contractor subject to Execu-

tive Order 11246. This Executive Order was amended in 1967 and

discrimination on the basis of sex was added as a prohibited prac-

tice by employers doing business with the United States. (A 8 n. 1)

* Employee’s fringe benefits also are controlled by company serv-

ice credit. For example, company service determines the number of

days for vacation and the amount to be received from the retire-

ment program. Record on Appeal Vol. No. A. II at 441-443. The em-

ployee who is forced to take lay-off is automatically paid his

accrued vacation time; participation in the savings program comes

to an end and accrued principal and interest are paid out; and

participation in group life insurance and hospitalization must be

converted into an individual policy. An employee who remains in the

plant during a reduction in force continues to receive pro-rata con-

tributions to the fringe benefit programs by Union Carbide and

his ongoing participation in these programs continues unabated.

Record on Appeal, Vol. II at 522-526: But see Franks v. Bowman

Transportation Co., 424 U.S. 747, 766 (1976).

employee is on lay-off from the employee’s original hire

date. (A 12-13)

The seniority system here was not negotiated through

the collective bargaining process because employees at the

Charlotte plant are not represented by a labor organiza-

tion. (A 34)

The obvious effect of the combination of Union Car-

bide’s pre-Act facially sex-based job classifications and

seniority rosters and its use of the company service credit

seniority practice (as defined above) is that females were

promoted, demoted, laid off and recalled on the basis of

company service as compared only to other females where-

as male employees with less company service and even

later original hire dates would not be affected. Thus male

employees who continued to work during a reduction in

force gained company service credit where females who

were laid off suffered a reduction in company service

seniority status.“ (A 14-16)

Nance was hired at the Charlotte plant of Union Car-

bide on July 8, 1952 at a time when Union Carbide

openly engaged in gender based employment practices.

As of August 20, 1973, the company service credit sen-

iority standing of Nance was not her original employ-

ment date (July 8, 1952) but rather the date of July

21, 1956. Thus between July 8, 1952 and August 20,

1973, more than four years had been deducted from

Nance’s seniority status solely because of the lay-offs she

Union Carbide asserts that “company service credit” seniority

as used at the Charlotte plant is synonymous with the term “plant-

wide” seniority. Petition at 4. But it is simply misleading to treat

these terms interchangeably because under the traditional notion

of “plant-wide” seniority the time spends the employee on lay-off

is not deducted from original employment date. Compare, e.g.,

United States v. Georgia Power Co., 474 F.2d 906, 926 (5th Cir.

1973).

The opposite result could and did occur. But see Bowe v. Colgate-

Palmolive Co., 416 F.2d 711 (7th Cir. 1969), reversing in part,

272 F. Supp. 332, 344-345 (S.D. Ind. 1967).

had been forced to take both prior to and after the effec-

tive date of Title VII.“ A number of male employees hired

after Nance have as their company seniority dates the

date of original hire; thus each has a competitive ad-

vantage as to seniority for job progression and protection

from lay-offs superior to that of Nance. (A 16 and

n. 6)

A summary of Nance’s lay-offs is as follows:

Hired 7/8/52 Original company service (CS)

date of 7/8/52

Laid off 12/13/53

Recalled 5/2/55 Adjusted CS 11/14/53

Laid off 7/15/55

Recalled 9/28/55 Adjusted CS 1/25/54

Laid off 2/24/61

Recalled 8/21/61 Adjusted CS 7/21/54

Laid off 9/28/62

Recalled 2/11/63 Adjusted CS 12/3/54

Laid off 4/3/64

Recalled 1/25/65 Adjusted CS 9/25/55

Laid off 1/23/70

Recalled 7/20/70 Adjusted CS 3/20/56

Laid off 4/18/73

Recalled 8/20/73 Adjusted CS 7/21/56

See A 15.

Some of the males identified in the record who were hired after

Nance but who have a superior seniority status are as follows:

Company

Name Date Hired Service

George Hail 2/ 6/56 2/ 6/56

Bonner David Twitty 1/11/56 1/11/56

Carroll J. Stokes 1/ 2/56 1/ 2/56

Willard Paige 11/28/55 11/28/55

Hallbrook McCraw 11/14/55 11/14/55

Craig Barbee 10/31/55 10/31/55

Marvin Sutton 10/31/55 10/31/55

Bobby Joe McCorkle 10/31/55 10/31/55

Howard Morris 10/26/55 10/26/55

See A 16 and n. 6.

The district court held that the company service sen-

iority arrangement constitutes a present practice of dis-

crimination under Title VII that adversely affects Nance’s

status as an employee. (A 40) In order to remedy the

discriminatory features of the seniority arrangement, the

district court entered a judgment in favor of Nance

that required substantial seniority modifications, includ-

ing the use of original employment date seniority. (A

60)

Union Carbide appealed to the Court of Appeals for

the Fourth Circuit. The Court of Appeals, although

vacating the judgment in its entirety ° sustained the rul-

ing of the district court that Nance was entitled to an

adjustment in her seniority standing sufficient to elimi-

nate the present and continuing adverse effects of Union

Carbide’s pre-Act gender based employment practices.

The court held that the company service seniority sys-

tem was not protected under § 703(h). (A 92-93)

REASONS FOR DENYING THE WRIT

The Title VII Principles Relied Upon By the Fourth

Circuit Are Consistent With Decisions of Other Courts

of Appeals

The conflict that Union Carbide alleges to exist be-

tween the legal principles relied upon by the Fourth

Circuit in ordering an adjustment of Nance’s seniority

status and the decisions of the Court in Franks v. Bow-

A comprehensive judgment was entered by the district court in

favor of Nance designed to enjoin all of the Title VII violations

claimed and proven by Nance. See A 37-46; A 59-67. However,

the Court of Appeals limited Nance’s entitlement to relief to a con-

sideration of an adjustment of her seniority date and a recognition

of her right to back pay, costs and attorneys’ fees. Nance filed a

Petition for a Writ of Certiorari in this Court on December 16,

1976 seeking review of the limitation on relief imposed by the

Court of Appeals. No. 76-824, Nance v. Union Carbide Corp.

man Transportation Co., 424 U.S. 747 (1976), and the

Seventh Circuit in Waters v. Wisconsin Steel Works, 502

F.2d 1309 (1974), cert. denied, 425 U.S. 997 (1976),

simply does not exist and crumbles under analysis. A

correct factual analysis focusing upon what is and what

is not here involved clearly demonstrates that the issues

presented by Union Carbide are not raised on the facts

of this case.

This case, unlike Franks v. Bowman Transportation

Co., supra, does not involve an identifiable applicant for

employment who was rejected after the effective date

of Title VII because of an impermissible Title VII cri-

teria, i. e., sex.“ Here, Nance is an employee who was

hired by Union Carbide on July 8, 1952 almost twenty

years before the effective date of Title VII and whose

seniority status has been diminished solely because she

is a female. Nor does this case, unlike Franks, supra,

and Waters v. Wisconsin Steel Works, supra, involve the

application of a long established facially neutral seniority

system embodied in a labor contract. Here, Union Car-

bide’s seniority arrangements were facially sex-based

prior to the effective date of the Act and remained so

for more than four years after the effective date. (A

13) Finally, this case does not involve a consideration

of a seniority system that is the product of the collective

bargaining process. The legislative history on § 703 (h),

42 U.S.C. § 2000e-2 (h), about bona fide seniority sys-

tems was precipitated in substantial part by Congres-

10 In Franks, the Court stated clearly what that case was con-

cerned with:

This case presents the question whether identifiable applicants

who were denied employment because of race after the effective

date of Title VII of the Civil Rights Act of 1964... may be

awarded seniority status retroactive to the dates of their

employment applications.

424 U.S. at 750 (footnote omitted) (empnasis supplied).

11 See notes 7 and 8, supra at 5.

sional concern with the impact of Title VII on facially

neutral * seniority systems negotiated and hammered out

through the collective bargaining process.“ Here, not

only was the seniority system facially biased but the sys-

tem is solely the product of Union Carbide because em-

ployees are not represented by a labor organization. (A

34)

Union Carbide’s reliance upon the so-called “fictional

seniority” and “last hired, first fired” seniority cases

is totally misplaced. These cases are inapposite here

because they involve employment situations in which

plaintiffs did not have a pre-Act status as employees with

defendants. The relevant cases and the line of cases here

relied upon by the Court of Appeals“ involve plaintiffs

12 “Of course, if the seniority rule is itself discriminatory it would

be unlawful under Title VII.” 110 Cong. Rec. 7207 (1964).

See pertinent portions of the legislative history cited by this

Court in F s v. Bowman Transportation Co., supra at 759-760

and notes 5 and 16.

„ Waters v. Wisconsin Steel Works, supra; Jersey Central Power

& Light Co. v. Local 327, 508 F.2d 687 (3rd Cir. 1975), vacated and

remanded, 425 U.S. 987 (1976); Watkins v. Steelworkers Local

2369, 516 F.2d 41 (5th Cir. 1975).

15 * * * The bellwether authority in this area is the oft-cited

case of Quarles v. Philip Morris, Incorporated (E.D. Va. 1968)

279 F. Supp. 505, 517-8. That case held (a) that only a bona

fide seniority system was protected under the Act, (b) that

one characteristic of a bona fide seniority system must be lack

of discrimination,” and (c) that a seniority system, however

neutral facially, is not a bona fide seniority system if it “has

its genesis in racial [or sex] discrimination,” whether pre-Act

or post-Act. Accordingly, Quarles established that any seniority

system which carried over into the post-Act period the effects

of a pre-Act discriminatory jo! assignment policy disadvantag-

ing a black [or a female] in seniority rights was not a bona

fide seniority system under the Act and had to be adjusted to

remedy that disadvantage. This decision has been consistently

followed by this Circuit and its ruling has been adopted in re-

peated decisions of other Circuits since and has been approved

by the legal writers. It is conceded by the defendant that in

the pre-Act period, the jobs in certain departments were re-

who have had a pre-Act status and/or often long associa-

tion as employees with defendants but whose seniority

status has been adversely affected in the post-Act period

because of the defendants’ pre-Act discrimination. The

seminal decisions in this well established line of cases are

Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D.

Va. 1968) and Papermakers and Paperworkers Local 189

v. United States, 416 F.2d 980 (5th Cir. 1969), cert.

denied, 397 U.S. 919 (1970) (Local 189). Quarles and

Local 189 established the rule that, as to Title VII plain-

tiffs who have had a pre-Act status as employees, a

facially neutral seniority system is not bona fide within

the meaning of § 703(h) when it operates to perpetuate

into the post-Act period the effects of historical discrimi-

nation. Under the theory of Quarles and Local 189, plain-

tiffs are entitled to a modification of the seniority rules

that will provide an opportunity for them to reach their

“rightful place” in the seniority hierarchy as soon as

possible as employment opportunities become available in

the future. On facts similar to those involved here, the

courts of appeals are consistent in the application of the

Quarles and Local 189 reasoning.“

served exclusively for male employees and that in periods of lay-

off only qualified male employees could bid on the jobs in these

departments. Such a system obviously gave the male employee a

preferred opportunity to protect his “company service” over

the female employee. This more extensive opportunity in bid-

ding for vacancies during lay-offs or the part of male employees

was a discrimination against female employees, and because

that discrimination was carried over in the operation of the

post-Act seniority system it tainted such post-Act system. To

such extent as the plaintiff was prejudiced thereby in the

computation of her “company service” or seniority rights, she

is entitled to relief. This the District Court correctly concluded.

(A 93-94) (footnotes omitted) (brackets in original) (emphasis

supplied) .

16 Second: United States v. Bethlehem Steel Corp., 446 F.2d 652,

661-662 (2nd Cir. 1971).

582-587 (4th Cir. 1972), cert. denied, 411 U.S. 939 (1973); Patter-

The Court of Appeals for the Seventh Circuit is in

full accord in the application of the Quarles and Local

189 rationale to cases similar to the facts presented here.

For example, in Bowe v. Colgate-Palmolive Co., 489 F.2d

896 (7th Cir. 1973), a case strikingly similar to this

case, the Seventh Circuit affirmed the judgment of the

lower court after an earlier remand in which pre-Act

seniority losses that were the result of sex-based discrimi-

natory practices were restored to a number of female

employees under the rightful place theory of relief.

Equally important here also is the recognition by the

Seventh Circuit of the necessary factual distinction be-

tween the so-called “last hired, first fired” cases such as

Waters, supra and the Quarles and Local 189 line of

cases. Evans v. United Air Lines, Inc., 534 F.2d 1247,

1249 n. 8 (7th Cir. 1975), cert. granted on other grounds,

45 U.S.L.W. 3329 (U.S. November 1, 1976) (No. 76-

333).

son V. American Tobacco Co., 528 F.2d 357 (4th Cir.), cert. denied,

425 U.S. 935 (1975).

Fifth: Pettway v. American Cast Iron Pipe Co., 494 U.S. 211,

248-249 (5th Cir. 1974).

Sixth: EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir.

1975), pets. for cert. pending, 44 U.S.L.W. 3094, 3150 (U.S. August

11, 13 and September 12, 1975) (Nos. 75-221, -220, -393).

Seventh: Bowe v. Colgate-Palmolive Co., 489 F.2d 896, 900-901

(7th Cir. 1973).

Eighth: Rogers v. International Paper Co., 510 F.2d 1340,

1346-47 (8th Cir.), vacated and remanded on other grounds, 423

U.S. 809 (1975) ; United States v. St. Louis-San Francisco Ry., 464

F. 2d 301, 308 (8th Cir. 1972), cert. denied, 409 U.S. 1107 (1973).

Ninth: United States v. Navajo Freight Systems, 525 F.2d

1318 (9th Cir. 1975).

Tenth: Jones v. Lee Way Motor Freight, 431 F.2d 245 (10th

Cir. 1971), cert. denied, 401 U.S. 954 (1971).

*The judgment of the district court is not officially reported

but may be found at 6 BNA FEP Cases 1123. (S.D. Ind. 1972).

The Facts and Issue Decided in Franks Are Patently

Distinguishable From This Case

Union Carbide recognizes, as it must, that the issue

presented in its Petition is not the same issue decided

by the Court in Franks v. Bowman Transportation, 424

U.S. 747 (1974). Petition at 14, see n. 10 sepra.- Union

Carbide’s recognition of this distinction amply demon-

strates the absence of a conflict between the instant case

and Franks and is thus a sufficient basis upon which the

Petition should be denied. :

Union Carbide’s principle reliance upon Franks, when

stripped of all of its rhetoric, is at bottom the assertion

that the discussion of the legislative history of § 703

(h) “requires the conclusion that Section 703 (h) pro-

tects company service seniority rights that vested prior

to the effective date of Title VII.” Petition at 19. This

assertion is clearly an erroneous reading of Franks.

What the Court did in fact was to reaffirm a well estab-

lished rule holding that seniority rights are not vested

indefeasible rights but only expectations that may be

modified by statutes such as Title VII. Franks, supra

at 778-779.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,