Opposition — Johnson v. Nordstrom-Larpenteur Agency, Inc.

———

Supreme Court, U.S,

FILED

NO. 80-609 =

K, JR., CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1980

JOAN M. JOHNSON,

Petitioner,

vs.

NORDSTROM-LARPENTEUR AGENCY, INC.,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

DAVID A. RANHEIM

DORSEY, WINDHORST, HANNAFORD,

WHITNEY & HALLADAY

2300 First National Bank Building

Minneapolis, Minnesota 55402

Telephone: [612] 340-2791

Attorneys for Respondent

1980—Northwest Brief Printing Co., 316 Chicago Avenue, Minneapolis 55415--338-5078

TABLE OF CONTENTS

Page

I. STATEMENT OF THE CASE ............. 1

IS, -RIEE 5 56 09 65 te enn e eee 4

A. Petitioner’s Primary Argument, That Title

VII Is Broader Than the Equal Pay Act

And Permits a Finding of Discrimination in

Compensation Based Upon Evidence Oth-

er Than Equal Pay Act Standards, Was Ac-

knowledged by the District Court and Con-

firmed by the Eighth Circuit, Consistent

with the Decisions in Other Circuits, and

Thus Raises No Certworthy Issue .......

B. Petitioner’s Argument Concerning the Prop-

er “Establishment” for Equal Pay Act Ap-

plication Is a Pure Fact Argument Which

Involves No Important Question of Federal

Law, and Thus Raises No Certworthy Issue

C. Petitioner’s Recurring Demand for Recov-

ery of Costs Raises No Certworthy Issue . .

aaa, CORVCAAMNON 50k dace dances apne)

TABLE OF AUTHORITIES

Cases:

Cornwell Quality Tools Co. v. C.T.S. Co., 446 F.2d

825 (9th Cir. 1971), cert. denied, 404 U.S. 1049

CORFE. avd ks ce awenn 0c tne cok eee

DiSalvo v. Chamber of Commerce of Greater Kan-

sas City, 568 F.2d 593 (8th Cir. 1978) ........ 9,

Gunther v. County of Washington, 602 F.2d 882 (9th

Cir. 1979), rehearing denied, 22 F.E.P. Cases 1650

CEOGGD. ob hori 5 ous s inde eres BROS 8, 9, 10,

I.U.E. v. Westinghouse Electric Corp., 23 F.E.P. Cases

JOO ADS CW, TFS) vsvvevvwen teense seen 8, 10,

13

14

13

10

11

11

I.U.E. v. Westinghouse Electric Corp., 19 F.E.P. Cases

MP MME, EPID) cc ccccccccccccececccccees 10

Johnson v. Nordstrom-Larpenteur Agency, Inc., 623 F.

26 1279 (Oth Cir. 1950) 2... crcceccncececes 6, 13

Johnson v. Nordstrom-Larpenteur Agency, Inc., 23

F.E.P. Cases 274 (D. Minn. 1979) ............. 1

Laffey v. Northwest Airlines, Inc., 567 F.2d 429 (D.C.

Cir. 1976), cert. denied, 434 U.S. 1086 (1978) .... 10

Manhart v. City of Los Angeles Dept. of Power &

Water, 553 F.2d 581 (9th Cir. 1976), aff'd in part

and rev'd in part on other grounds, 435 U.S. 702

EOS eee eee eee ETE 10-11

Orr v. Frank R. MacNeill & Son, Inc., 511 F.2d 166

(Sth Cir.), cert. denied, 423 U.S. 865 (1975) ....9, 11

Other Authorities:

United States Supreme Court Rule 17 ............. ]

United States Supreme Court Rule 17(a) .......... 11

United States Supreme Court Rule 17(c) .......... 11

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1980

NO. 80-609

JOAN M. JOHNSON,

Petitioner,

vs.

NORDSTROM-LARPENTEUR AGENCY, INC.,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

I.

STATEMENT OF THE CASE

Petitioner's statement of the case unduly complicates

and distorts the pertinent facts in an apparent effort to

create new legal issues cognizable under Rule 17 of the

Rules of this Court. The operative facts, detailed in the

District Court’s findings and reviewed and affirmed by the

Eighth Circuit under the clearly erroneous standard,’ can

be briefly summarized.

1The District Court’s decision, Johnson v. Nordstrom-Larpenteur Agen-

cy, Inc., 23 F.E.P. Cases 274 (D. Minn. 1979), incorporates de-

tailed findings and then applies clearly established and uniformly in-

terpreted Equal Pay Act and Title VII law in reaching its conclu-

sions. The Eighth Circuit held that the District Court's findings are

not clearly erroneous. Johnson v. Nordstrom-Larpenteur Agency, Inc.,

623 F.2d 1279 (8th Cir. 1980). ‘This should put an end to what al-

ways has been a case involving pure issues of fact, not law.

2

Respondent is a commercial and personal lines insur-

ance agency with separate and administratively autono-

mous offices throughout the country. Its operations can

be viewed in terms of “sales” and “marketing” concepts.

“Sales” refers to efforts made in contacting and selling

insurance to clients or customers who need particular cov-

erage. “Marketing” refers to efforts made in placing an ex-

isting or prospective sale with an insurance company will-

ing to underwrite the risk.”

On June 19, 1972, petitioner was hired into respon-

dent’s Kansas City office as a “sales assistant.” She re-

mained in that office until April 10, 1975 when she was

terminated. The lower courts have properly recognized

that petitioner’s claims can best be analyzed by dividing

this total period of employment into two distinct periods,

namely, June 19, 1972 to November 1, 1974 and Novem-

ber 1, 1974 through April 10, 1975.

Between June 19, 1972 and November 1, 1974, peti-

tioner was shifted between the positions of “sales assis-

tant” and “marketing assistant.” During this period of

time, the “marketing” function in the Kansas City office

was coordinated by Marketing Manager Roy Wolfe.’ The

essence of petitioner’s argument before the EEOC, the Dis-

trict Court and the Eighth Circuit was that between June

19, 1972 and November 1, 1974 respondent discriminated

2See the District Court decision, 23 F.E.P. Cases at 275, Finding of

Fact 5; Petition for Writ, All.

5This separate Statement of the Case is provided, in part, because of

titioner's repeated claims that she did equal work to that per-

ormed by Wolfe. Though petitioner asserts that she performed “es-

sentially parallel marketing operations” while working “alongside”

Wolfe and that she was “instrumental in the development” of agency

relationships (Petition for Writ, p. 4), the District Court found ex-

actly the opposite. See 23 F.E.P. Cases at 275-76 (Finding of Fact

6) and at 277-78 (Finding of Fact 14); Petition for Writ, A16-17.

3

against her under Title VII and the Equal Pay Act by not

paying her the same amount as Marketing Manager Wolfe.

See Petition for Writ, p. 4. Petitioner’s arguments relating

to this time period were limited to this “equal pay for

equal work” approach.

On November 1, 1974, respondent implemented a re-

structuring and reorganization of its corporate “market-

ing” function, Marketing Manager Wolfe was trans-

ferred to Dallas and took with him the majority of the

responsibilities which he had assumed while working in

the same Kansas City office as petitioner.* Wolfe’s depar-

ture from the Kansas City office resulted in an opportu-

nity for petitioner. On a probationary basis, she assumed

certain marketing responsibilities which were greater than

her prior responsibilities but which remained significantly

less than those which Wolfe had handled prior to his

transfer. Accordingly, between November 1, 1974 and

April 10, 1975, the date of petitioner’s termination, peti-

tioner’s performance could not be analyzed under Equal

Pay Act considerations because she had no alleged male

counterpart in the office and was not, in the District Court’s

view, a successor to Wolfe in terms of job skill, effort

and responsibility.®

However, looking to broader principles under Title VII,

the District Court next assessed the evidence relating to

petitioner’s rate of pay following her promotion. Relying

upon evidence introduced by petitioner, the District Court

found that she was regarded as a probationary replace-

ae 23 F.E.P. Cases at 278, Findings of Fact 16-17; Petition for Writ,

17-19.

ae F.E.P, Cases at 279, Finding of Fact 24; Petition for Writ,

4

ment for Wolfe but was not paid as such.° Thus, though

it concluded that Equal Pay Act recovery for the period of

time subsequent to November 1, 1974 was not justified

by the evidence, the District Court found that Title VII

had been violated. Noting that damages were difficult to

measure, the District Court, in a determination highly fa-

vorable to petitioner, allowed her damages on the basis

of what departed Marketing Manager Wolfe had been earn-

ing.”

On April 10, 1975, petitioner was terminated. The Dis-

trict Court found that the termination was warranted and

nondiscriminatory.*

i.

ARGUMENT

Petitioner’s contention that her present claims are cog-

nizable under the considerations governing review on cer-

tiorari set forth in Rule 17 of the Rules of this Court is re-

futed by the facts and the law upon which petitioner pur-

ports to rely. No issue presented by this case reveals a

conflict between or among the federal courts of appeal,

‘See 24 F.E.P. Cases at 278-79, Findings of Fact 18-22; Petition for

Writ, A19-21.

™Damages were difficult to measure because of the findings that peti-

tioner’s job responsibilities subsequent to November 1, 1974 were

significantly less than those previously held by Wolfe. Rather than

selecting some arbitrary figure between petitioner’s salary and that

paid to Wolfe, which figure might have been more closely related to

petitioner’s actual responsibilities, the District Court provided peti-

tioner the maximum relief possible by basing dama on Wolfe’s

salary. Since petitioner now makes reference to a Gregory Galvin

as an individual in respondent’s Minneapolis office who could be

compared with petitioner, it should be noted that the District Court

measured petitioner’s damages against Wolfe’s $20,800 salary, not

Galvin’s $17,004 salary.

"See 23 F.E.P. Cases at 279-81, Findings of Fact 75-30; Petition for

Writ, A21-27.

5

nor does any issue raise an important question of federal

law which has not been, but should be, settled by this

Court.

A. Petitioner’s Primary Argument, That Title VII

Is Broader Than the Equal Pay Act And Per-

mits a Finding of Discrimination in Compen-

sation Based Upon Evidence Other Than

Equal Pay Act Standards, Was Acknow-

ledged by the District Court and Confirmed

by the Eighth Circuit, Consistent with the De-

cisions in Other Circuits, and Thus Raises No

Certworthy Issue.

Petitioner’s primary argument appears to be that both

the District Court and the Eighth Circuit somehow have

implicitly ruled that recovery under Title VII on wage

discrepancy allegations is not possible unless there is co-

existing recovery under the Equal Pay Act. However, an

impartial reading of the two decisions confirms that peti-

tioner’s argument is just plain wrong.

The District Court did decide that petitioner was en-

titled to no recovery under Equal Pay Act criteria. More

particularly, it found that petitioner’s employment with

respondent never incorporated job duties which were sub-

stantially equal to any appropriately considered male

counterpart in terms of skill, effort and responsibility.

The District Court’s findings were comprehensive and

specifically related to different periods of time, and in-

cluded an express finding that between June 19, 1972 and

November 1, 1974, when there was a male Marketing

_

ie

6

Manager in respondent’s Kansas City office, there was no

substantial equality in skill, effort and responsibility.’

The District Court’s denial of Title VII recovery be-

tween June 19, 1972 and November 1, 1974 was affirmed

by the Eighth Circuit because petitioner had claimed and

attempted to prove only that she was not given equal pay

for equal work. As to that, the evidence established that

petitioner did not perform “equal work” with any alleged

male counterpart during this period of time. As noted by

the Eighth Circuit:

The third issue raised on appeal is the district

court’s failing to find that appellant was discrimi-

nated against from June 19, 1972, until November

1, 1974, under Title VII of the Civil Rights Act of

1964. Appellant argues that during this period her

job duties were substantially similar to Wolfe’s and

that they actually performed the same work. The

district court found that between June of 1972 and

November of 1974 the responsibilities imposed upon

and performed by appellant were substantially less

than those of Wolfe and that he was paid a greater

salary because his experience, training, education and

job responsibilities far exceeded hers. The court’s

findings concerning the substantial disparity of job

qualifications and responsibilities are not clearly er-

roneous.

Johnson v. Nordstrom-Larpenteur Agency, Inc., 623 F.2d

1279, 1281 (8th Cir. 1980) (Petition for Writ, A5).

%See 23 F.E.P. Cases at 275-78, Findings of Fact 5-13 (Petition for

Writ, All-16), for the District Court’s comprehensive analysis of the

educational backgrounds, relevant work experience und actual job

duties of petitioner and those with whom she could properly com-

pare herself during this period of time.

7

Neither the District Court nor the Eighth Circuit con-

cluded, implicitly or explicitly, that there can be no Title

VII recovery for disparate compensation absent recovery

under the Equal Pay Act. Rather, both courts construed

the Acts together in reviewing petitioner’s “equal pay for

equal work” claims. For the period prior to November 1,

1974, petitioner submitted no evidence of discrimination

beyond this “equal pay for equal work” approach, and

thus, neither lower court had any reason to expand its re-

view to broader Title VII concepts.

Once the evidence was expanded beyond the “equal

pay for equal work” approach, relating to events after

November 1, 1974, broader Title VII review in fact was

undertaken. The District Court found that after November

1, 1974, petitioner’s Kansas City office did not incorporate

a marketing position which, under Equal Pay Act criteria,

could be deemed to be a consecutively held position with

that previously held by Marketing Manager Wolfe. This

finding, based upon a thorough analysis of petitioner’s

new job as opposed to that previously held by Wolfe,

properly led to the denial of recovery under the Equal Pay

Act for the period November 1 ,1974 to April 10, 1975.”

After determining that there could be no recovery un-

der the Equal Pay Act because there was no “equal work,”

the District Court turned to the broader review available

under Title VII and analyzed the evidence relating to re-

spondent’s handling of petitioner’s promotion. Pointing to

factors such as internal memoranda generated by respon-

dent, as well as the manner in which respondent held peti-

tioner out in her community as a probationary replace-

10See 23 F.E.P. Cases at 278-79, Findings of Fact 17, 24; Petition for

Writ, A18-19, 21.

8

ment for Marketing Manager Wolfe, the District Court

found that even though Equal Pay Act criteria had not

been satisfied, the discrepancy between petitioner’s pay

after November 1, 1974 and Marketing Manager Wolfe’s

pay before that date was unduly excessive and, at least in

part, attributable to her sex.’ The District Court con-

cluded that Title VII had been violated for the period

from November 1, 1974 to April 10, 1975.”

In support of her contention that this matter is cert-

worthy under considerations set forth in Rule 17(a) of the

Rules of this Court, petitioner erroneously asserts that the

circuit courts of appeal are in conflict on the issue sup-

posedly presented here, i.e., the relationship between Title

VII and the Equal Pay Act concerning allegations of dis-

criminatory compensation practices. Even if this issue were

presented by the lower court’s decisions here, which, as

noted above, it is not, the alleged “conflict” does not

exist.

Petitioner claims that the Fifth, Eighth and Tenth Cir-

cuit Courts of Appeal have differed from the Third and

Ninth Circuits. Citing /.U.E. v. Westinghouse Electric

Corp., 23 F.E.P. Cases 588 (3d Cir. 1980), and Gunther

v. County of Washington, 602 F.2d 882 (9th Cir. 1979),

rehearing denied, 22 F.E.P. Cases 1650 (1980), she

argues that the Third and Ninth Circuits have read Title

VII to provide broader opportunities for relief than the

Equal Pay Act on the issue of discriminatory compensa-

tion. In an effort to establish a conflict among the circuits,

petitioner then erroneously contends that the Fifth, Eighth

See 23 F.E.P. Cases at 278-79, Findings of Fact 18-22; Petition for

_ Writ, A19-21.

ae F.E.P. Cass at 283, Conclusion of Law 4; Petition for Writ,

9

and Tenth Circuits limit Title VII recovery for discrimina-

tory compensation to those situations where recovery is al-

lowable under the Equal Pay Act. However, looking at the

very cases upon which pétitioner relies, it becomes quickly

apparent that there exists no conflict among the circuits

concerning the interrelationship of the Equal Pay Act and

Title VII. Petitioner is comparing apples with oranges.

In Gunther v. County of Washington, supra, the Ninth

Circuit was confronted with claims which were broader

than mere claims of denial of equal pay for equal work.

The claim in Gunther was that even if the work were not

substantially equal, there should have been an opportunity

to prove that wage discrepancies were at least partially

attributable to sex discrimination. This is precisely what

the District Court allowed in the instant case. As to any

alleged conflict among the circuits, the Gunther decision

clearly distinguishes the considerations present there from

those present in the decisions of other circuits. In referring

to decisions rendered by the Fifth and Eighth Circuits, the

Ninth Circuit stated:

The cases considering the relationship between Title

VII and the Equal Pay Act have involved claims that

females were being denied equal pay for equal work.

See, e.g., DiSalvo, 568 F.2d 593; Orr v. MacNeill, 5

Cir., 511 F.2d 166. Quite properly, these cases have

construed the two statutes harmoniously; any other

approach may have produced different results de-

pending on whether a plaintiff labeled his cause of

action as being brought under “Title VII” or under the

“Equal Pay Act.””

18The DiSalvo decision is cited more fully as DiSalvo v. Chamber of

Commerce of Greater Kansas City, 568 F.2d 593 (8th Cir. 1978). The

Orr decision is more fully cited as Orr v. Frank R. MacNeill & Son,

Inc., 511 F.2d 166 (Sth Cir.), cert. denied, 423 U.S. 865 (1975).

10

Gunther v. County of Washington, 602 F.2d at 888.

Petitioner’s “apples and oranges” comparison is further

exposed by Gunther's reference to the trial court’s deci-

sion in 1.U.E. v. Westinghouse Electric Corp., 19 F.E.P.

Cases 450 (D.N.J. 1979) (reversed by the Ninth Circuit

and discussed below). The Gunther court commented as

follows:

The general rule stated in the cases cited in JUE—

that Title VII equal pay claims should be judged

under Equal Pay standards—is compatible with the

view we have taken. Those cases, however, did not

consider the issue whether Title VII prohibits con-

duct outside the scope of the Equal Pay Act, and

we see no reason to extend the rationale of those

cases to a significantly different issue which they did

not address.

Gunther v. County of Washington, 602 F.2d at 891.

The second decision relied upon by petitioner, /.U.E.

v. Westinghouse Electric Corp., 23 F.E.P. Cases 588

(3d Cir. 1980), likewise confirms that there is no

conflict among the circuits on the issue of whether Title

VII can be deemed to provide broader opportunity for re-

lief than the Equal Pay Act. There the Third Circuit, in

considering this issue, concluded that except for Gunther,

other circuit and district court decisions were not helpful

because they did not decide the same issue. /.U.E. v.

Westinghouse Electric Corp., 23 F.E.P. Cases at 598. The

very cases cited by the Third Circuit as not deciding the

same issue“ include some of the cases erroneously relied

M4DiSalvo v. Chamber of Commerce of Greater Kansas City, 568 F.2d

593, 596 (8th Cir. 1978); Laffey v. Northwest Airlines, Inc., 567 F.2d

429, 446 (D.C. Cir. 1976), cert. denied, 434 U.S, 1086 (1978); Man-

11

upon by petitioner here in her effort to create a conflict

where none exists.

Supreme Court Rule 17(a) provides that an issue might

be deemed certworthy if a federal circuit court has ren-

dered a decision in conflict with a decision of another cir-

cuit court on the same matter. Here petitioner has pulled

issues out of Gunther and I.U.E. which do not exist in the

decisions petitioner claims are in conflict. There of course

is nothing certworthy about different circuit courts, or for

that matter the same circuit court, reaching different re-

sults on different issues.

In addition to alleging that a conflict exists among the

circuits, petitioner argues that the Eighth Circuit in the

instant case implicitly decided that recovery under Title

VII is not possible absent recovery under the Equal Pay

Act. Again, there is no such finding. The Eighth Circuit

simply held, as it should have, that the District Court’s

detailed findings were not clearly erroneous. It decided no

important question of federal law which has not been,

but should be, decided by this Court, as contemplated by

Rule 17(c). The District Court found that Title VII and the

Equal Pay Act should be construed harmoniously with

respect to “equal pay for equal work” claims, but that

Title VII allows recovery even without findings of equal

work if wage discrepancies are due, at least in part, to

considerations of sex. The Eighth Circuit affirmed these

findings under the proper standard of review. No impor-

tant legal issue remains to be settled.

—

hart v. City of Los Angeles Dept. of Power & Water, 553 F.2d 581,

587-88 (9th Cir. 1976), aff'd in part and rev'd in part on other

grounds, 435 U.S. 702 (1978); Orr v. Frank R. MacNeill & Son, Inc.,

$511 F.2d 166, 171 (Sth Cir.), cert. denied, 423 U.S. 865 (1975).

12

B. Petitoner’s Argument Concerning the Proper

“Establishment’’ for Equal Pay Act Applica-

tion Is a Pure Fact Argument Which Involves

No Important Question of Federal Law, and

Thus Raises No Certworthy Issue.

Petitioner asserts that the determination of what pro-

perly constitutes a separate “establishment” for purposes

of Equal Pay Act application is an important question of

federal law which has not been, but should be, decided by

this Court. However, there is no attempt to show that the

uniformly acknowledged criteria for “establishment” anal-

ysis are in anyway under attack or at issue here. Instead,

petitioner simply contends that these criteria, when ap-

plied to petitioner’s version of the facts, should have caused

the District Court to conclude that respondent’s nation-

wide system of separate and autonomous offices never-

theless is a single “establishment.” This presents no cert-

worthy issue of law, but rather is pure fact argument.

The case law cited by petitioner emphasizes that cen-

tralization of administrative processes, interchange of em-

ployees and use of the same premises are, among others,

factors to be addressed in determining what constitutes a

separate “establishment.” We do not quarrel with these

factors, but we do emphasize that they are to be applied

to the particular circumstances of each case. Petitioner has

cited a few cases which found, upon application of the

proper criteria, that the “establishment” included more

than one location. In the instant case, however, applica-

tion of these criteria resulted in a determination that re-

15See Petition for Writ, pp. 21-23.

13

spondent’s Kansas City office is a separate “establish-

ment.””*

There is no important question of federal law here at

all, let alone one which has not been, but should be, de-

cided by this Court. Petitioner’s fact arguments already

have been determined below.

C. Petitioner’s Recurring Demand for Recovery

of Costs Raises No Certworthy Issue.

Petitioner’s final argument is that an important ques-

tion of federal law has been created by the Eighth Cir-

cuit’s determination that the District Court’s denial of

costs in this action was not an abuse of discretion. John-

son v. Nordstrom-Larpenteur Agency, Inc., 623 F.2d at

1282. Though labeled as an important question of federal

law, this is but another request for review of the facts

relevant to the District Court’s discretionary denial of out-

of-pocket costs to both sides.””

A trial court has broad discretion in taxing costs where

each of the parties has prevailed on one or more of its

claims, defenses or counterclaims. Cornwell Quality

Tools Co. v. C.T.S. Co., 446 F.2d 825, 833 (9th Cir.

1971), cert. denied, 404 U.S. 1049 (1972). This law was

specifically acknowledged by the Eighth Circuit here. John-

son v. Nordstrom-Larpenteur A gency, Inc., 623 F.2d 1279,

1282 (8th Cir. 1980).

16See 23 F.E.P. Cases at 279, Finding of Fact 23; Petition for Writ, A21.

1™Note that the Eighth Circuit did remand the issue of attorneys’ fees to

the District Court for determination, on the theory that plaintiff

could be deemed to have prevailed partially on her claims. Respon-

dent has not sought review by this Court of that decision, though

we believe the District Court quite properly denied petitioner's

claim for fees. Thus, the only matter now at issue is petitioner's

claim for other miscellaneous costs of litigation.

14

Petitioner does not ask this Court to consider wheth-

er the “abuse of discretion” standard is unduly broad

when applied to the goals and remedial purposes of Title

VII, but rather simply quotes general authority on the

costs issue and urges this Court to reach a different deter-

mination on the facts, Petitioner’s request does not raise a

certworthy question.

i.

CONCLUSION

The petition should be denied because none of the

questions presented is certworthy.

Dated: November 14, 1980.

Respectfully submitted,

DAVID A. RANHEIM

DORSEY, WINDHORST, HANNAFORD,

WHITNEY & HALLADAY

2300 First National Bank Building

Minneapolis, Minnesota 55402

‘Tolephone: [612] 340-2791

Attorneys for Respondent