Opposition — U. S. Industries, Inc. v. Page

Supreme Court, U. S.

FILED

Supreme Court of the United States

OCTOBER TERM, 1977

NO. 77-595

U. S. INDUSTRIES, INC..

Petitioner,

V.

JOHN D. PAGE and DON THOMAS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF RESPONDENTS IN OPPOSITION

STUART M. NELKIN

CAROL NELKIN

Attorneys for Respondents

5417 Chaucer St.

Houston, Texas 77005

713/526-4500

Of Counsel

NELKIN & NELKIN

Houston, Texas

—————

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

SUBJECT INDEX

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LIST OF AUTHORITIES

CASES

Chevron Oil v. Huson, 404 U.S. 97 (1971) ............

DeMatteis v. Eastman Kodak Company, 520 F.2d 409 (2nd

Cir. 1975) modifying 511 F.2d 306 (2nd Cir. 1975) ...

Garner v. E. I. DuPont De Nemours and Co., 538 F.2d 611

Sg Ba ie Seep opera ane nets Rate Me

Lacy v. Chrysler Corp., 533 F.2d 353 (8th Cir. 1976)

(en banc), cert. den. 429 U.S. 959 (1977) ............

Lynn v. Western Gillette, Inc., F.2d , No. 76-

Bee Cee Ga, WUUUEET Be, DOUED sk ccevccccccccvces

McGuire v. Aluminum Co. of America, 542 F.2d 43 (7th

ead ie ia hee teed ed BE ee ewe ohh Oe

Tuft v. McDonnell Douglas Corporation, 517 F.2d 1301

(8th Cir. 1975), cert. den. 423 U.S. 1052 (1976) .....

Turner v. Texas Instruments, Inc., 556 F.2d 1349 (Sth

a De c.cedet ne eek seen ehh heen awakened

Weaver v. Joseph Schlitz Brewing Co., 551 F.2d 122 (6th

Se. EE i i a ah Anes Chee eee eee ReoN whe

Whitton v. ITT Cannon Electric, F.2d , No. 76-

1256 (9th Cir. November 21, 1977) ..............05.

Williams v. CLE Corporation, 556 F.2d 346 (Sth Cir. 1977)

Nm Nm La no =

II

CASES

Williams v. Southern U. Gas. Co., 529 F.2d 483 (10th Cir.

ERS EW Ses RINT ie a geo he

Wilson v. Sharon Steel Corp., 549 F.2d 276 (3rd Cir. 1977)

Zambuto v. American Tel. & Tel. Co., 554 F.2d 1333 (Sth

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STATUTES

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Page IN THE

; Supreme Court of the United States

, OCTOBER TERM, 1977

4,5

2 NO. 77-595

U. S. INDUSTRIES, INC..,

Petitioner,

Vv.

JOHN D. PAGE and DON THOMAS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth Cir-

cuit (App. E of the Petition) is reported at 556 F.2d 356.

The opinions of the United States District Court appear

as Appendices A, B, C and D of the Petition.

2

JURISDICTION

The jurisdictional requisites are adequately set forth in

the Petition.

QUESTION PRESENTED

Whether the United States Court of Appeals and Dis-

trict Court were correct in concluding that a private plain-

tiffs Title VII action is maintainable where the action

was brought within ninety (90) days from the plaintiff's

receipt of a formal “Notice of Right to Sue” from the

Equal Employment Opportunity Commission as provided

in 29 C.F.R. § 1601.25.

STATUTE INVOLVED

The pertinent provision of Title VII of the Civil Acts

Right of 1964, as amended, 42 U.S.C. § 2000e ef seq.

{hereinafter “Title VII"], specifically Section 706(f)(1),

is set forth in Appendix H of the Petition.

STATEMENT

This litigation relates to the now abandoned practice of

the Equal Employment Opportunity Commission [herein-

after “EEOC”] to issue two separate letters to charging

parties at the conclusion of the agency’s efforts to con-

ciliate a charge of employment discrimination. Although

taking various forms, EEOC’s first letter would always

advise the charging party that he now had a right to

request a “Notice of Right to Sue” and that he would

have ninety (90) days from the receipt of the “Notice of

Right to Sue” to institute an action in the appropriate

3

United States District Court. The second letter would be

the “Notice of Right to Sue” and would advise the charg-

ing party that he had ninety (90) days from receipt of

this second letter to institute his action. The two-letter

procedure has now been abandoned by EEOC.

In the instant action, Respondent Page, the charging

party, filed suit within ninety (90) days from his receipt

of EEOC’s “Notice of Right to Sue” although more than

ninety (90) days from his receipt of EEOC’s first letter

to him advising of his right to request the “Notice of Right

to Sue.”

Petitioner’s Motion to Dismiss Respondent's Title VII

action as untimely was ultimately denied by the District

Court (App. C of the Petition). On interlocutory appeal,

the Court of Appeals affirmed the District Court (App.

E of the Petition).

REASONS FOR DENYING THE WRIT

1.

THERE IS NO CONFLICT OF DECISION

All appellate courts which have addressed the issue

raised in the Petition have concluded, as the Court of

Appeals in this case concluded, that a Title VII action

may be maintained by a private plaintiff if the plaintiff

has filed his Title VII suit within ninety (90) days from

receipt of EEOC’s formal “Notice of Right to Sue.” Lynn

v. Western Gillette, Inc., ___F.2d , No. 76-1256 (9th

Cir. November 21, 1977); Whitton v. ITT Cannon Elec-

tric, ___F.2d___, No. 76-1256 (9th Cir. November 21,

1977): Turner v. Texas Instruments, Inc., 556 F.2d 1349

4

(5th Cir., 1977); Williams v. CLE Corporation, 556 F.2d

346 (Sth Cir. 1977); Zambuto v. American Tel. & Tel.

Co., 554 F.2d 1333 (Sth Cir. 1977); Weaver v. Joseph

Schlitz Brewing Co., 551 F.2d 122 (6th Cir. 1977);

McGuire v. Aluminum Co. of America, 542 F.2d 43 (7th

Cir. 1976); Garner v. E. 1. DuPont De Nemours and Co.,

538 F.2d 611 (4th Cir. 1976); Williams v. Southern U.

Gas Co., 529 F.2d 483 (10th Cir. 1976); Lacy v. Chrys-

ler Corp., 533 F.2d 353 (8th Cir. 1976) (en banc), cert.

den. 429 U.S. 959 (1977); DeMatteis v. Eastman Kodak

Company, 520 F.2d 409 (2nd Cir. 1975) modifying 511

F.2d 306 (2nd Cir. 1975); Tuft v. McDonnell Douglas

Corporation, 517 F.2d 1301 (8th Cir. 1975), cert. den.

423 U.S. 1052 (1976). Cf., Wilson v. Sharon Steel Corp.,

549 F.2d 276 (3rd Cir. 1977).

The Court of Appeals for the Fifth Circuit has ad-

dressed this issue on at least three occasions in four sep-

arate cases and has consistently held that the Title VII

action may be maintained. Turner v. Texas Instruments,

Inc., supra, Zambuto v. American Tel. & Tel. Co., supra,

Page v. U. S. Industries, Inc., supra and Williams v. CLE

Corporation, supra.

While the Courts of Appeals have disagreed on whether

or not the two-step procedure of first advising a charging

party of the right to request a “Notice of Right to Sue”

was itself justified, compare e.g., Garner v. E. 1. DuPont De

Nemours and Co., supra (affirmative) with DeMatteis v.

Eastman Kodak Company, supra (negative), all of the

Courts of Appeals have concluded that the charging party

could maintain a Title VII action where he had instituted

suit within ninety (90) days from receipt of the EEOC’s

formal “Notice of Right to Sue.”

5

II.

THERE IS NO IMPORTANT QUESTION

OF FEDERAL LAW

Petitioner’s attack on EEOC’s two-letter procedure is

of extremely limited significance since EEOC has aban-

doned the procedure. Zambuto v. American Tele. & Tele.

Co., supra at 1335 n.6; Weaver v. Joseph Schlitz Brewing

Co., supra at 123. Thus, any ruling by this Court would

have no prospective application. Similarly, the retroactivity

of a decision inconsistent with the virtually unanimous

position of the Courts of Appeals is questionable in view

of the Court’s holding in Chevron Oil v. Huson, 404 US.

97 (1971).

CONCLUSION

For the foregoing reasons, Respondents respectfully

submit that this Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

STUART M. NELKIN

CAROL NELKIN

5417 Chaucer St.

Houston, Texas 77005

713/526-4500

Counsel fcr Respondents

6

CERTIFICATE OF SERVICE

I hereby certify that on this day of December,

1977, three (3) copies of the foregoing Brief for Respond-

ents in Opposition to Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit were

mailed, postage prepaid, to Mr. Samuel E. Hooper of

NEEL, HOOPER & KALMANS, 777 South Post Oak

Road, Suite 332, Houston, Texas 77056, Attorney for

Petitioner, U. S. Industries, Inc. and to Mr. James

Watson, Jr., Esq., 500 Texas Professional Tower Bldg.,

Houston, Texas 77002, Attorney for International Broth-

erhood of Boilermakers, Iron Shipbuilders, Blacksmiths,

Forgers and Helpers, AFL-CIO and its Affiliate Local

561.

STUART M. NELKIN