Record and brief — Wilder v. Gilman Paper Co.

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THE UNITED STATES SUPREME COURT

LILLIAN WILDER,

Petitioner

vs.

GILMAN PAPER COMPANY,

Respondant

On appeal from the United States Court

of Appeals for the Eleventh Circuit

Petition for Writ of Certiorari

ROBERT E. ROBINSON

1316 Abercorn Street

Savannah, Georgia

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

Petitioner, LILLIAN WILDER, hereby pre-

sents the following questions for review by

this Honorable Court:

1. Did the Eleventh Circuit Court of

Appeals. err in affirming to the granting of

the Defendant's Motion for Summary Judgment

on all claims prior to the completion of dis-

covery.

2. Did the Eleventh Circuit Court of

Appeals err in affirming the lower court's

ruling that the Federal Court was without

jurisdiction to decide Plaintiff's Title VII

claim for failure to file a charge with EEOC.

3. Did the Eleventh Circuit Court of

Appeals err in affirming the lower court's

ruling that a separate class action brought

by another individual against the defendant

did not toll the time in which Plaintiff was

allowed to file an EEOC complaint.

TABLE OF CONTENTS

Questions Presented for Review .... i

@able of Contents <2. «essere oo Sd

Table of Authorities ......... iii

State of Jurisdiction .....e+¢-e+- 1

Constitutional and Statutory

PeOwanenen 6.6. .© eb es ee ere te 2s 8

Statement of the Case ....-+-+-«+- 5

Argument in Support of

wea te COPCIGEBTS © eo tw ew et thew ew ew 9

DE <4 ete « » 6 & 650 0 6 « v0 BO

ii

TABLE OF AUTHORITIES

Cases: Page

Coke vs. General Adjustment

Bureau, Inc., F.2d 584, 591

- By RE SCN es |

Wallace vs. International Paper

Company, 426 F. Supp. 353 (1977) .. 10

Statutory and Constitutional Authority

a eee Ge BOO: 6.6 « cs eo 6 ee

eR Gs Sn

Ga ees eeenom: 390s .i . «2 bie oe 8

> NH NH &

Cn Wel aon BOCCIOR. Beeees « i ae & ee

U.S.C. Ann. Const. Amendment XIV

Section I > >. * >. a > * >. — > >. >. . > 3

U.S.C. Ann. Const. Amendment V.... 3

iii

STATEMENT OF JURISDICTION

The jurisdiction of this Honorable Court

was invoked pursuant to 28 U.S.C. Section 1331,

1334, 2201 and 2202. Said case was filed in

the United States District Court for the South-

ern District of Georgia, Brunswick Division,

February 26, 1981. The District Court dismissed

the petitioner's complaint, subsequent to that

action, the petitioner appealed to the Eleventh

Circuit Court of Appeals, whereby the decision

was affirmed and judgment issued February 3,

1982. The Petitioner now seeks to appeal the

Appellate Court;s Gecision pursuart to Title

28 U.S. Ann. Section 210l(c). Said Section

provides that “any Writ of Certiorari intended

to bring any judgment or decree in a civil

action before the Supreme Court shall be applied

for within ninety (90) days after the entry of

such judgment or decree."

CONSTITUTIONAL AND STATUTORY AUTHORITY

Said suit is authorized unded the follow-

ing Constitutional and Statutory Provisions:

42 U.S.C. 1981: Equal Rights under the law

All persons within the jurisdiction

of the United States shall have the same right

in every state and territory to make and enforce

contracts pursued be parties, give evidence

and to the full and equal benefits of all laws

and proceedings for the security of persons

and property as is enjoyed by white citizens.

--42:_:ULS.C. Section 1983: Civil Action

for Deprivation of Rights

Anyone who, under color of any statute,

ordinance, regulation, custom, or usage of

any state or territory, subjects, or causes

to be subjected, any citizen of the United

States or other persons within the jurisdiction

thereof through the deprivation of anv rights,

privileges, or immunities secured } con-

struction and laws, shall be liable to the

@2<

party indigent in action at law, suit and equity,

or other proper proceedings for redress.

United States Code Ann. Const. Amendment V:

Capital Crime; Double Jeopardy; Self Incrimin-

; ation; Due Process; Just Compensation for Pro-

perty

No person shall be held to answer

for a capital or otherwise infamous crime unless

on a presentment or indictment of grand jury

except in cases arising in a land or naval

forces, or in the military, when a actual ser-

vice in time of war or public danger; nor shall

any person be subject to the same offense to

be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to

be a witness against himself, nor be deprived

of life, liberty, or property, without due

process of law; nor shall private property

be taken for public use without just compensat-

ion.

U.S. Code Ann. Const. Amendment XIV Section

I: Citizenship; Privileg) and Immunities; Due

-3-

Process; Equal Protection

All persons born and naturalized in

the United States, and subject to the juris-

diction thereof, are citizens of the United

States and of the state wherein they reside.

No state shall make or enforce any law which

shall abridge the privileges or immunities

of citizens of the United States; nor shall

any state deprive any person of life, limb

or property, without due process of law; nor

deny to any person within the jurisdiction

the egual protection of the laws.

U.S. Code Ann. Title 29 Section 216 (a) (b):

Pair Labor Standards Acts; Penalties; Civil

and Criminal Liabilities; Injunction Proceed-

ings Terminating Right of Actions; (see appendix)

42 U.S. Code Ann. Section(e)-2 EQUAL EMPLOY-

MENT OPPORTUNITIES: Unlawful Employment Prac-

tices (see appendix)

STATEMENT OF THE CASE

This case involves a complaint filed by

Plaintiff-Appellant Lillian Wilder, on her

own behalf and on the behalf of all others

persons similarly situated, to recover for

alleged employment discrimination on the basis

of sex under the Civil Rights Act of 1966,

42 U.S.C.A. Sections 1981, 1983 (1974); the

Fifth and Fourteenth Amendment of the United

States Constitution; Title VII of the Civil

Rights Act of 1964, 42 U.S.C. Section 2000(e),

et seq. (1974); the Fair Labor Standards Act

of 1938, 29 U.S.C.A. “Sections 201 et seq. 1978;

and the National Labor Rela‘ .ons Act.

The jurisdiction of tne Federal Court

was invoked pursuant to 28 U.S.C. Section 1331,

1343(4), 2201 and 2202.

The Plaintiff-Appellant filed her complaint

in the District Court on February 25, 1981

where she alleged that Gilman Paper Company,

United Papermakers International Union, and

-5-

United Paper workers International Union Local

958 did discriminate against her and other

similarly situated individuals. The class

which the Plaintiff-Appellant represen*s is

composed of persons who have been denied or

will be denied equal employment opportunities

by the defendant. Said denial is based upon

the sex of the class members.

In Plaintiff-Appellant's complaint filed

in the District Court, she stated that the ©

defendant prefer and choose male applicants

over female applicants on the basis of sex

and thereby affording males higher paying and

supervisory positions. The complaint further

alleges that defendant only consider males

for jobs that offers the greatest opportunities

for training and advancements. The defendant

intentionally attempted and in fact succeeded

in propetuating the traditional sex roles.

The complaint filed, asked for declaratory

judgment as to Plaintiff's rights and for a

permanent injunctive-relief against defendant

from maintaining these policies of discrimin-

ation and the Union's failure to represent

the Plaintiff-Appellant and the class she re-

presents fairly.

The Plaintiff-Appellant was initially

employed by Gilman Paper Company in 1959, she

worked off and on for the company until 1963.

She was terminated because of an on the job

injury to her wrist which left her unable co

perform the duties of her job. Plaintiff sub-

sequently recuperated from her injury and re-

applied for the position ac defendant Saint

Mary Georgia Plant in September 1964, Septem-

ber 1965, October 1968 and January 1980. Plain-

tiff alleged that she was discharged because

of her sex, and that certain males with work

related disabilities have been accommodated

in their jobs whereas females have not. The

Plaintiff-Appellant filed her complaint and

prior to filing an answer the Defendant~-Appel-

lees filed a Motion for Summary Judgment and

alternative Motion to Dismiss. On June 27,

-7-

1981 the District Court of the Southern District

of Georgia, Brunswick Division issued an Order

grauting defendant's motion. The Court con-

sidered the motion as one for Summary Judgment

as opposed to treating it as a Motion to Dismiss.

An action was filed with the Fifth Circu.t

Court of Appeals on July 13, 1981 to appeal

the order of the United States District Court

for the Southern District of Georgia, Brunswick

Division granting Appellant's Motion for Sum-

mary Judgment.

On February 3, 1982 the llth Circuit Court

of Appeals affirmed the District Court's grant-

ing of Summaru Judgment. The Appellant hereby

petitions for review by the Supreme Court of

the United States.

ARGUMENT IN SUPPORT OF

WRIT OF CERTIORARI

The Petitioner is now seeking a Writ of

Certiorari to the Supreme Court of the United

States because actions of the llth Circuit

Court of Appeals, in affirming the District

Court's decision, has departed from the ac~-

cepted and usual course of judicial proceedings

and further, has sanction a departure by the

lower Court that calls for an exercise of this

Court's power of supervision.

The Defendant's Motion for Summary Judg-

“ment was granted by the District Court and

affirmed by the llth Circuit Court as to all

claims.

The Petitioner conceeds that certain claims

are stronger than others, however, it is Peti-

tioner's contention that the case was not pro-

per for the granting of Summary Judgment.

The lower Court's granted the defendant's

motion primary on the grounds that the Peti-

tioner had not met the jurisdictional pre-

a Qu

requisite of filing a complaint with the Equal

Employment Opportunity Commission. The Peti-

tioner's action is barred by her failure to

file. There are cases handed down by Federal

Courts that hold that the failure to file is

not a jurisdictional bar. Coke vs. General

Adjustment Bureau, Inc., 640 F. 2d. 584, 591

(5th Cir. 1981); Wallace vs. International

Paper Company, 426 F. Supp. 352 (1977). There

are also decisions to the contrary. Petitioner

feels that this question could be properly

resolved by this Honorable Court.

There are additional factors which the

lower Courts failed to give adequate consider-

ation. Specifically, the fact that Petitioner's

claims are identical to those filed by another

member of the class and that the acts complain-

ed of by the Petitioner are of a continuous

nature.

Further, justice and equity requires that

this Court review this case and remand it be-

cause of procedural departures. The Defendant-

-10-

never answered the complaint. The opposing

party asked for additional time to provide

an answer and instead filed a Motion to Dis-

miss. It was the Petitioner's reliance on

representations made by the opposing counsel

which accounts for the lack of more substantial

evidence having been presented by the Petitioner.

Therefore, Petitioner asks that this Honor-

able Court exercise its supervisory authority

to review the Petitioner's claim.

RESPECTFULLY SUBMITTED,

Robert E. Robinson & Assoc.

1316 Abercorn Street

pray sp srs 31401

Silt Th.

Robert E. Robinson

Attorney for Plaintiff

ah Te

- ett. Se BR i

ee oe

—_

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-7701

Non-argument Calendar

LILLIAN WILDER,

Plaintiff-Appellant

vs.

GILMAN PAPER COMPANY,

Defendant-Appellee

Appeal from the United States District

Court for the Southern District of Georgia

( February 3, 1982 )

Before GODBOLD, Chief Judge, JOHNSON and

ANDERSON, Circuit Judges.

PER CURIAM:

Lillian Wilder worked intermittently

for Gilman Paper Company between 1959 and

1963. In 1963 the company terminated her

because of an injury incurred on the job.

Several applications for employment that she

alleges she made between 1964 and 1980 were

rejected by Gilman. She has now brought this

suit on her own behalf and as a class action

seeking to recover for sex discrimination

under Title VII of the Civil Rights Act of

1964, 42 U.S.C.A. Section 2000e, et segl;

42 U.S.C.A. Section 1981 & 1983; the Fair

Labor Standards Act of 1938; the Labor Manage-

ment Relations Act; and “customary international

law.” The district court granted summary

judgment on all claims. We affirm.

Wilder's primary contentions on appeal

concern the district court's summary judgment

on her Title VII claim. Because Wilder had

not first filed a charge with the Equal Employ-

ment Opportunity Commission (EEOC) as required

by 42 U.S.C.A. Section 2000e-5(e), the court

ruled that it lacked jurisdiction! to consider

her complaint. Wilder protests that, because

the violation she alleges was continuous,

her failure to file a claim with the EEOC

within 180 days of the discriminatory action

against her, again as Section 2000e-5(e)

requires, does not bar her suit. Her argument,

first, misapprehends the district court's

decision. The court ruled that, because she

had never filed a claim with the EEOC, she

could not bring suit if federal court. Thus,

even if her suit were not time-barred, her

failure ever to file a charge based on the

continuing violation would baw her suit in

federal court. In any event, Wilder's claim

that her suit was based on a continuing vio-

lation is incorrect. The mere fact that she

was fired in 1963 and has subsequently alleged-

ly been denied employment does not make out

a continuing violation by Gilman. See United

Airlines, Inc. v. Evans, 431 U.S. 553, 557-

58 (1977). The deadline for filing a claim

with the EEOC based on her charges has passed.

1. The district court's holding that the

failure to file a claim with the EEOC is a

juris iictional bar is understandable in light

of ‘he former Fifth Circuit precedent at the

tin: «c the district court's decision. Since

th. time the former Fifth Circuit has con-

sidered the loose and improper use of juris-

dictional terminology in this context and

concluded that the EEOC filing requirement

is in the nature of a limitations period and

is not a jurisdictional bar. Coke v. General

Adjustment Bureau, Inc., 640 F.2d 584, 591,

n. 14 (5th Cir. 1981) (en banc); Allen v.

United States Steel Corp., Slip Op. No. 80-

7515 (5th Cir., Jan. iL 1982), n. 2. Al-

though the filing requirement is not juris-

dictional, it is nevertheless a necessary

precondition to filing suit, and we affirm

on that basis.

Wilder also contends that she need not

have filed any claim with the EEOC because

another plaintiff, a member of her class,

in anouther lawsuit had filed with the EEOC.

The former Fifth Circuit in the past articu-

lated a narrow exception to the filing re-

quirement, holding that if any member of a

class files a claim with the EEOC based on

identical patterns and practices of discrimi-

nation, the statute is tolled for all other

potential claimants relying on the same act

of discrimination as the basis of their claim.

United States v. Georgia Power Company, 474

F.2d. 906, 925 (5th Cir. 1973). Wilder never

shows that her allegations are identical to

to those in the claim that was filed. Given

our findings that she has not shown a continu-

ous violation, that her discharge occurred

in 1963 before Title VII was enacted, and

that the holding below that she would be an

inappropriate class representative is correct,

we conclude that she cannot rely on a claim

filed by another individual in order to be

relieved of the need to file her own claim.

Wilder makes no specific arguments con-

testing the district court's summary judgment

2 She does, however, argue

on her other claim.

generally that if she had been allowed fur-

ther discovery she might have been able to

prove some set of facts that would entitle

3 A district court is not,

her to recovery.

of course, required to withhold a decision

on summary judgment until a party decides

to proceed with discovery. See, e.g., Sou-

thern Rambler Sales, Inc. v. American Motors

Corp., 375 F.2d 932, 937 (5th Cir. 1967) (sum-

mary judgment motion says in effect "meet

the affidavit facts or judicially die"). We

agree with the district court that, even in-

terpreting all facts in the light most favor-

able to the party opposing the motion, see

Vetter v. Frosch, 599 F.2d 630, 632 (5th Cir.

1979), there is not dispute over material

facts that would prevent summary judgment.

2. The district court stated that it granted

summary judgment rather than dismissed for

failure to state a claim in which relief might

be granted because it considered matters out-

side the pleadings. Its disposition was cor-

rect. See Fed.R.Civ.P. 12(b); 10 C. Wright

& A. Miller, Federal Practice and Procedures .

Section 2713 (1973).

3. We reject Wilder's contentions that she

was misled by Gilman and did not proceed with

discovery because of defendant's statement

that it needed additional time to answer her

complaint. Regardless of Gilman's statements,

however, she was given notice of Gilman's

motion for summary judgment and had adequate

opportunity for responding to that motion

by raising disputed material facts. Because

Wilder made no showing of cause for failure

to proceed with discovery, we find her argu-

ment that she had insufficient time for dis-

covery to be without merit. Save Our Ceme-

teries, Inc. v. Archdiocese of New Orleans,

Inc., 568 F.2d 1074, 1978 (5th Cir.), cert.

denied, 439 U.S. 830 (1978).

We agree with the district court's re-

solution of all remaining claims of Wilder.

Her claim under Section 1981 fails because

sex discrimination does not fall within the

scope of that statute. See e.g., Willingham

vs. Macon Tel. Publishing Co., 482 ¥.2d 535,

537 n. 1 (5th Cir. 1973), vacated on other

grounds, 507 F.2d 1084 (5th Cir. 1975) (en

banc). Her Section 1983 claim also must fail.

Such a claim must allege state action. See

Adicker v. S. H. Kress & Co., 398 U.S. 144,

150-52 (1970). Wilder makes no charge of

state action and makes no allegation that

we might construe possibly to involve state

action. Her claim under the Fair Labor Stand-

ards Act, alleging a violation of the equal

pay provision of the Act, 29 U.S.C.A. Section

296 {d), was brought 17 years after the last

possible accr’.a]) of her cause of action and

is barred by on statute of limitations for

that Act, 29 J. .C.A. Section 255(a). Also

barred by the statute of limitation is her

her claim under the Labor Management Relations

Act alleging a breach of a collective bar-

gaining agreement in violation of 29 U.S.C.A.

Section 1985. The relevant statute of limit-

ations for such a claim is the closest state

statute, here Georgia's six-year limitations

period for contract suits, Ga. Code Ann. Sec-

tion 3-705. See Kaufman and Broad Homes Sys.,

Inc. vs. International Br. of Firemen, 607

F.2d 1104, 1108 (5th Cir. 1979). Since the

last breach of contract regarding Wilder would

have occurred in 1963 -- not, as she contends,

on her last employment application -- her

suit was not timely. Finally, Wilder's claims

concerning violations of "customary inter-

national law" are too vague to be cognizable

by this Court.

We also agree with the district court's

holding that the case should not be certified

as a class action. A party with claims, in-

tents, and injuries different from those of

the class she purportedly represents should

not have her suit certified as a class action

under Fed.R.Civ.P. 23(a). See East Texas

Motor Freight System, Inc. v. Rodriguez, 431

U.S. 3.5, 403-04 (1977). Given our dis-

position of Wilder's individual claims, we

find that she possesses neither the same in-

terests nor the same injuries as other pur-

ported class members.

AFFIRMED.

42 U.S.C. Section 2000e-2: Unlawful en-

ployment practices

(a) It shall be an unlawfull employment

practice for an employer ----

(1) to fail or refuse to hire or

to discharge any individual, or otherwise to

discriminate against any individual with re-

spect to his compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex or

national orgin; or

(2) to limit, segregate, or classify

his employees or applicants for employment

in any way which would deprive or tend to de-

prive any individual of employment opportuni-

ties or otherwise adversely affect his status

as an employee, because of such individual's

race, color, religion, sex, or national origin.

29 U.S.C. Section 216: Penalties; civil

and criminal liability; injunction proceedings

terminating right of action

(a) Any person who willfully violates

any of the provisions of section 215 of this

title shall upon conviction thereof be sub-

ject to a fine of not more than $10,000, or

to imprisonment for not more than six months,

or both. No person shall be imprisoned under

this subsection except for an offense committed

after the conviction of such person for a prior

offense under this subsection.

(b) Any employer who violates the pro-

vision of section 206 or section 207 of this

title shall be liable to the employee or em-

ployees affected in the amount of their unpaid

minimum wages, or their unpaid overtime com-

pensation, as the case may be, and in an ad-

ditional equal amount as liquidated damages.

Action to recover such liability may be main-

tained in any court of competent jurisdiction

by any one or more employees for and in behalf

of himself or themselves and other employees

similarly situated. No employee shall be a

party plaintiff to any such action unless he

gives his consent in writing to become such

a party and such consent is filed in the court

in which such action is brought. The court

in such action shall, in addition to any judg-

ment awarded to the plaintiff or plaintiffs,

allow a reasonable attorney's fee to be paid

by the defendant, and costs of the action.

The right provided by this subsection to bring

an action by or on behalf of any employee,

and the right of any employee to become a party

plaintiff to any such action, shall terminate

upon the filing of a complaint by the Secre-

tary of Labor in an action under Section 217

of this title in which restraints is sought

of any further delay in the payment of unpaid

minimum wages, or the amount of unpaid over-

time compensation, as the case may be, owing

to such employee under Section 206 or Section

207 of this title by an employer liable there-

for under the provisions of this subsection.

CERTIFICATE OF SERVICE

I, ROBERT E. ROBINSON, do certify that I

have served a copy of the foregoing Petition

upon attorney(s) of record for all parties in

this action by depositing a copy of same in

the United States mail with proper postage

attached.

- eA as

this 2S day of (Yr , 1982.

Mahoney Hadlow & Adams

Guy O. Farmer II.

Catherine C. Cosby

800 Barnett Bank Building

100 Laura Street

Post Office Box 4099

Jacksonville, Florida 32201

ROBERT E. ROBINSON & ASSOCIATES, P.C.

1316 Abercorn Street

Savannah, Georgia 31401

ee

MAY 19 wee

ALEXANOER L. STEVAS.

Number 81-2010 =

THE UNITED STA‘JES SUPREME COURT

LILLIAN WILDER,

Petitioner

vs.

GILMAN PAPER COMPANY,

Respondent

On appeal from the United States Court

of Appeals for the Eleventh Circuit

Addendum to the Appendix of

Petitioner's Writ of Certiorari

ROBERT E. ROBINSON

1316 Abercorn Street

Savannah, Georgia

Counsel for Petitioner

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA

BRUNSWICK DIVISION

LILLIAN WILDER,

)

)

Plaintiff, )

)

vs. ) Cv 281-35

)

GILMAN PAPER CO. )

)

Defendant. )

ORDER

Plaintiff, Lillian Wilder, brings

this action on her own behalf and on behalf

of all others persons similarly situated,

to recover for alleged employment discri-

mination on the basis of sex under the

Civil Rights Act of 1866, 42 U.S.C.A. Section

1981, 1983 (1974); the Fifth and Fourteenth

Amendments to the United States Constitution;

Thitle VII of the Civil Rights Act of 1964,

42 U.S.C.A. Section 20003, et. seq; and fin-

ally, under “customary interrational law".

In her deposition, plaintiff testified

that she was initially employed by the

Gilman Paper Company in 1959. She worked

off and on for the company until 1963.

In 1963, she was terminated because an on

the job injury to her wrist left her unable

to perform the duties of her job. Plaintiff

subsequently recuperated from her injury

and reapplied for a job at defendant's

St. Marys, Georgia Plaint in March, 1964,

September, 1964, September, 1965, October,

1968, and January, 1980. Deposition of

Lillian Wilder, pp. 31-40. Each time plain-

tiff reapplied, she was told either that

there were no jobs available at that time,

or that applications were not being accepted

at that time. Id.

Plaintiff alleges that she was dis-

charged because of her sex, and that certain

males with work related disabilities have

been accommodated in their jobs whereas

females have not. She further alleges

that defendant has discriminatorily refused

to rehire her.

Plaintiff has never filed a grievance

with a union representing the employees

of Gilman Paper Company. Neither has plain-

tiff filed a claim with the Equal Employment

Opportunity Commisssion, the Wage Hour 3

Division of the Department of Labor, or

with any other federal, state or local

agency in which she has alleged any violation

of any of her rights by Gilman Paper Company.

Deposition of Lillian Wilder, pp. 28, 41.

This case is presently before the

Court on defendant's motion for summary

judgment and alternative motion to dismiss.

While the Court is generally reluctant

to consider a motion for summary judgment

before significant discovery has taken

place, in this case it is abundantly clear

that further discovery could serve no use-

ful purpose. In those areas where summary

judgment has been granted, it is evident

that plaintiff could produce no set of

facts which would entitle her to recovery.

The Court considers this motion as one

for summary judgment (as opposed to treat-

ing it as a motion to dismiss) only lecause

it is necessary to examine the deposition 3

of plaintiff and the affidavits produced

by both parties to fully understand the

sparse allegations advanced in the complaint.

PLAINTIFF'S TITLE VII CLAIM

It is elementary that a district court

has no jurisdiction over a Title VII claim

unlese the claimant has first filed a charge

with the Equal Employment Opportunities

Commission. 42 U.S.C.A. Section 2000e-5(e)

(1974); McArthur vs. Southern Airways, Inc.,

569 F.2aG 276 (5th Cir. 1978); Cutliff vs.

Greyhound Lines, Inc., 558 F.2d 803 (5th

Cir. 1977); See also, Alexander v. Gardner

Denver Company, 415 U.S. 36 (1974). Since

plaintiff admits that she has never filed

such a charge, her Title VII claim must

be dismissed.

Plaintiff's protestations that exhaustion

of administrative remedies would be useless

are irrelevant and totally without merit.

The requirement of filing a charge before

the EEOC is jurisdictional. Since no charge

has been filed, this Court has no power

to consider plaintiff's Title VII claim.

McArthur vs. Southern Airways, Inc., 569

F.2d 276 (5th Cir. 1978).

PLAINTIFF'S CLAIMS UNDER SECTION 1981

Employment practices which discriminate

on the basis of sex are not remediable

under 42 U.S.C.A. Section 1981 (1974).

Runyon v. McCrary, 427 U.S. 160 (1976);

Willingham v. Macon Telegraph Publishing

Company, 482 F.2d 535 (5th Cir. 1973),

vacated on other grounds, 507 F.2d 1084

(Sth Cir. 1975). After defendant filed

its motion for summary judgment and pointed

out this fact, however, plaintiff replied:

"Rather than assert that she has

been sexually discriminated against

in violation of 42 U.S.C. Section

1981, the plaintiff instead brings

this action under Section 1981 to

vindicate racial discrimination.”

Plaintiff's brief in opposition to defen-

dant's motion for summary judgment, p. 6.

Even a cursory examination of Plain-

tiff's complaint reveals that it rests

upon the sole and exclusive allegation

that plaintiff and other female workers

at Gilman Paper Company were discriminated

against on the basis of their sex. Indeed,

the word race is never mentioned in the

complaint. Plaintiff's attempt to now

characterize her claim as one for racial

discrimination is insufficient to amend

her complaint. Since plaintiff's complaint

seeks redress sclely for alleged discrimin-

ation on the basis of sex, her claim under

42 U.S.C.A Section 1981 (1974) must be dismissed.

Ls

PLAINTIFF'S CLAIMS UNDER SECTION 1983

In the brief in opposition to defen-

dant's motion for summary judgment, plain-

tiff states, "The defendant Company not

having moved for summary judgment on the

section 1983 claim the plaintiff is still

in court on that allegation." Not quite.

Defendant has moved for total summary judg-

ment on all points, alleging that, “there

are no genuine issues as to any material

fact regarding any of plaintiff's claims

and the Company is entitled to judgment

as a matter of law." Defendant's motion

for summary judgment, p. l.

The mere fact that defendant did not

specifically address plaintiff's claim

under 42 U.S.C.A. Section 1983 (1974) does

not prevent the Court from recognizing

the axiom that a complaint under Section

1983 is fatally flawed unless it alleges

that damages flow from state aci:ion. Adickes

v. S. H. Kress and Company, 398 U.S. 144

(1970); Greco v. Orange Memorial Hospital

Association, 513 F.2d 873 (5th Cir.), cert.

denied, 423 U.S. 1000 (1975). Since Gilman

Paper Company appears to be a purely private

concern and since plaintiff has made no

allegation that her damage was the result

of state action, that portion of her com-

plaint which is based on 42 U.S.C.A. Section

1983 (1974) should be dismissed.

THE FAIR LABOR STANDARDS ACT

Plaintiff's claim under the Fair Labor

Standards Act of 1938 is based upon her

allegation that defendant violated the

equal pay provisions fo the that Act, 29

U.S.C.A. Section 206(@) (1978).

Defendant correctly argues that any

possible blaim plaintiff could have under

this Act is barred by the applicable statute

of limitations. Any cause of action based

on the Equal Pay Act must be brought within

two years after the cause of accion accrued

(three years if the violation was willful)

or “be forever barred". 29 U.S.C.A. Section

255(a) (1975); Coleman v. Jiffy June Farms,

Inc., 458 F.2d 1139 (5th Cir. 1971), cert.

denied, 409 U.S. 948 (1972). Since plain-

tiff was last. paid by defendant in 1963,

it follows that any claim alleging that

she did not received equal pay for equal

work necessarily accrued more than three

years before the institution of this suit.

Plaintiff argues that the stature of

limitations might have been tolled by an

investigation of the Secretary of Labor.

Even assuming, arguendo, that such an in-

vestigation took place, administrative pro-

ceedings do not in any way toll or otherwise

affect the statute of limitations imposed

by 29 U.S.C.A Section 255(a) (1975). See,

Unexcelled Chemical Corporation vs. United

States, 345 U.S. 59 (1952); Aguilar v. Clay-

ton, 452 F. Supp. 896 (E,D, Okla. 1978).

Similarly, plaintiff's argument that the

statute of limitations does not apply to

cases where an employee is discharged for

making a complaint to the Secretary of Labor

is totally irrelevant where, as here, the

plaintiff alleges she was discharged for

other reasons.

Since plaintiff brings her claim under

the Equal Pay Act over 17 years after the

possible accrual of a cause of action, it

is clear that such a claim is barred by

the applicable statute of limitations. 29

U.S.C.A. Section 225(a) (1975).

THE NATIONAL LABOR RELATIONS ACT

Plaintiff alleges that defendant's

action toward her constitute a breach of

the collective bargaining argeement between

Gilman and the unions representing Gilman

employees, and that this breach is action-

able under Section 301 of the Labor Manage-

ment Relation Act, 29 U.S.C.A. Section 185

(1978).

The statute of limitations on such

actions is the most applicable state statute.

Kaufman and Broad Home Systems, Inc. v.

International Brotherhood of Firemen, 607

F.2d 1104 (5th Cir. 1979). Here, Georgia's

statute of limitations for actions on con-

tracts, Ga. Code Ann.. Section 3-705 (1975),

would apply. This statute provides that,

"A;; actions upon . . . simple contracts

in writing shall be brought within six years."

Since plaintiff has not been employed at

Gilman Paper Company in over 17 years, it

is certain that she does not have a cause

of action for breach of contract which matured

less than six years before the institution

of this suit.

Though plaintiff agrees that the state

statute of limitations govern. t is cause

of action, she argues that defendant's re-

fusal to rehire her in 1980 constitutes

a cause of action which accrued less than

six years ago. While such a refusal to

rehire a worker may indeed be actionable,

it is clear that it would not constitute

a breach of contract. At best, a refusal

to rehire in a case such as this could be

unfair labor practice under 29 U.S.C.A.

Section 158 (1973). The National Labor

Relations Board has jurisdiction over such

matters, not this Court. 29 U.S.C.A. Sec-

tion 160(b) (1973).

It is clear, therefore, that plaintiff

has no cognizable claim under the National

Labor Relations Act in this Court.

INTERNATIONAL LAW

In addition to her other claims, plain-

tiff asserts that she has stated a claim

under “customary international law" and

under the United Nations Charter. While

certain aspects of international law are

often effectuated by specific statutes passed

by the Congress and signed by the President,

it is elementary that general principles

of international law and even specific codi-

fications of international law such as the

United States Nations Charter are not self-

effectuating. See, Sei Fugii v. State,

38 Cal. 2d 718, 242 P.2d 617 (1952). This

Court has no choice but to dismiss such

vague allegations of nonconformance with

international law.

CLASS ALLEGATIONS

Since plaintiff has failed to establish

an individual cause of action against defen-

dant, it is clear that she also lacks stand-

ing to represent females employees at Gilman

Paper Company with similar complaints. East

Texas Motor Freight System, Inc. v. Rodriguez,

431 U.S. 395 (1977). It is apparent that

plaintiff is not part of the same class

of people she seeks to represent. Neither

does she posses the same interests or suffer

the same injury of the class members named

in the complaint. See, United States Parole

Commission v. Geraghty, 445 U.S. 388 (1980).

It follows, therefore, that plaintiff's

class allegations should be dismissed.

DEFENDANT'S MOTION FOR COSTS AND EXPENSES

The Court will reserve ruling on defen-

dant's motion for costs and expense until

such a time as a hearing can be held on

this matter.

Since it appears that plaintiff has

no cognizable cause of action before this

Court, and that no genuine issue of material

fact remains in this case, it follows, there-

fore, that defendant's motion for summary

judgment should be, and is hereby GRANTED.

Fed. R. Civ. P. 56. The Clerk is directed

to enter an appropriate judgment dismissing

plaintiff's claims.

SO ORDERED, this 27th day of June, 1981.

CERTIFICATE OF SERVICE

I, ROBERT E. ROBINSON, do certify that

I have served a copy of the foregoing adden-

dum to the Apendix of petitioner's Writ

of Certiorari upon attorney(s) of record

for all parties in this action by depositing

a copy of euiné in the United States Mail

with proper postage attached.

This day of , 1982.

[gh Blas

Mr. Guy O. Farmer, II.

Ms. Catherine C. Cosby

Attorneys at Law

800 Barnett Bank Building

100 Laura Street

Post Office Box 4099

Jacksonville, Florida 32201

RT E. ROBINSON & ASSOCIATES, P.C.

1316 Abercorn Street

Savannah, Georgia 31401

Office - Supreme Court, U.S.

FILE

LED

No. 81-2010 jun 4 1982

i

IN THE —_

Supreme Court of the United States

OCTOBER TERM, 1982

LILLIAN WILDER,

Petitioner,

—Vi.—

GILMAN PAPER COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

TO THE PETITION FOR WRIT OF CERTIORARI

GUY O. FARMER II KEVIN M. SMITH

COUNSEL OF RECORD SMITH & HULSEY

SMITH & HULSEY 500 Barnett Bank Building

500 Barnett Bank Building Jacksonville, FL 32202

Jacksonville, FL 32202 (904) 359-7700

(904) 359-7700

Counsel for Respondent

QUESTIONS PRESENTED

FOR THE PURPOSES OF THIS BRIEF IN OPPOSITION

TO THE PETITION FOR WRIT OF CERTIORARI, RE-

SPONDENT ADOPTS THE FORMAT OF THE QUESTIONS

PRESENTED FOR REVIEW BY PETITIONER.

oi-

TABLE OF CONTEN'’’S

QUESTIONS PRESENTED -+ ++ + + « «

TABLE OF AUTHORITIES +--+ ++ + « «

STATEMENT OF THE CASE +++ + «+ = =

SUMMARY OF REASONS FOR OPPOSING

THE PETITION . . . . . . * . * >. .

REASONS FOR OPPOSING THE PETITION: .-

I.

SINCE PETITIONER HAD

NOTICE OF THE COMPANY'S

MOTION FOR SUMMARY JUDG-

MENT, HAD ADEQUATE OPPOR-

TUNITY TO RESPOND TO THE

MOTION AND FAILED TO

RAISE THE EXISTENCE OF A

GENUINE ISSUE OF MATERIAL

FACT, THE ELEVENTH CIR-

CUIT CORRECTLY AFFIRMED

THE DISTRICT COURT'S

GRANT OF SUMMARY JUDGMENT

TO THE COMPANY --+ + «+ -

A. DEFENDANT MAY MOVE

FOR SUMMARY JUDGMENT

PRIOR TO THE SERVICE

OF A RESPONSIVE

PLEADING -+ ++ «+ «

b. THE GRANT OF SUMMARY

JUDGMENT PRIOR TO

THE OPPOSING PARTY'S

INSTITUTION OF DIS-

COVERY IS CONSISTENT

WITH THE PRINCIPLES .-

10

13

13

14

15

II.

III.

Page

OF JUSTICE AND EQUI-

TY UNDER THE CIRCUM-

STANCES OF THIS CASE

BECAUSE PETITIONER

HAD ADEQUATE OPPOR-

TUNITY TO ENGAGE IN

DISCOVERY PRIOR TO

THE GRANTING OF RE-

SPONDENT'S MOTION

AND FURTHER OPPOR-

TUNITY FOR DISCOVERY

WOULD HAVE BEEN

eee «6 & <6 26-6 6 « 15

A SEPARATE CLASS ACTION

SUIT BROUGHT BY ANOTHER

INDIVIDUAL AGAINST THE

COMPANY WHICH WAS SUBSE-

QUENTLY DISMISSED BY

SUMMARY JUDGMENT DOES

NOT, UNDER THE CIRCUM-

STANCES OF THIS CASE,

TOLL THE TIME IN WHICH

PLAINTIFF WAS REQUIRED

TO FILE AN EEOC CHARGE - - - - - 17

THE ELEVENTH CIRCUIT COR-

RECTLY HELD THAT NEITHER

THE 1963 TERMINATION NOR

THE ALLEGED SUBSEQUENT

DISCRIMINATORY REFUSALS

TO REHIRE PETITIONER ARE

CONTINUING VIOLATIONS

UNDER TITLE VII ---+-+:+:+-:+ + 19

-iii-

IV.

THE DECISION BELOW FAILS

TO PRESENT ANY REAL

CONFLICT QUESTION SINCE

NO ACTUAL CONFLICT EXISTS

BETWEEN THE DECISION

BELOW AND PRIOR HOLDINGS

OF THIS COURT OR OTHER

CIRCUITS AND, IN ADDI-

TION, THE ELEVENTH CIR-

CUIT'S AFFIRMANCE OF THE

DISMISSAL FOR FAILURE TO

FILE WAS NOT BASED ON

AN IMPERMISSIBLE JURIS-

DICTIONAL ANALYSIS ...

CONCLUSION . . . © © © © © se ee

TABLE OF AUTHORITIES

CASES:

Bertheas v. Trans World Airlines,

Inc., 450 F. Supp. 1069 (E.D. N.Y.

78) 7 + >. > * * . >. . . . > . .*

racamontes v. Amstar Corp., 576

F.2d 61 (5th Cir. 1978) .. r

a 1l v. Emco Machine Works, 601

Fo 1295 ee ee

Coke v. General Adjustment Bureau,

Inc., F. (Sth Cir. 1971)

EE ee ee a

First National Bank of Arizona v.

Cities Service Company, 391 U.S.

( > * > > bl > >. * . >. * .

Fowler vy. Gilman Paper Company s et.

ai, No. S.D. Ga., e

October 4, 1979), aff'd per curiam,

No. 79-3662 (5th Cir. May 7, 1980)

Guatam v. First National City Bank,

425 F. Supp. 579 (S.D. NY 1546)

cert. denied 440 U.S. 919 (1976)

20

19

2

14

. 17,18

20

Hodge v. McLean Trucking Company,

607 F.20 1118 (Sth Circ. 1979) .....- 20

Hubicki v. A.C.F. Industries, Inc.,

484 F.2d 519 (3rd Cir. 1973) ....... 14

-V-

Inda v. United Airlines, Inc., 565

F.2d 554 (9th Cir. 1977) cert.

denied 435 U.S. 1007 (1978) Saw aie

Kidder v. Eastern Airlines, Inc.,

469 F. Supp. 1060 (S.D. Fla. 1978) .

Molybdenum Corp. of America v.

ia 457 F.2d 935 (10th Cir. 1952)

National Hockey League v. Metro-

politan Hockey Club, Inc., 427

U.S. { ) . . 7 o 7 . . . . .

Rubies Express v. Piper, 447 U.S.

( ) > . > * > > > > . > > . >

Save Our Cemeteries, Inc. v. Arch

Diocese of New Orleans, inc., 568

F. 1074 (5th Cir. 1978) reh.

denied 572 F.2d 320 cert. denied

439 U.S. 836 CS ie ee’ *. aoe 6 e

Smith v. Office of Economic

Opportunity for State of Arkansas,

538 F.2 = cee Gane Sere) 6 © ec ec

Southern Pacific Transportation

Company v. National ieieses

cygbena 540 F.2d 213 (5th Cir.

Southern Rambler Sales, Inc. v.

American Motors Corporation, 375

F. (5t S. 7) cert.

denied 389 U.S. 832 (1967) .....

United Airlines, Inc. v. Evans, 431

RE tte ae a

18

14

20

24

. 24

15

20

- 14

15

20

Page

Zipes v. Transworld Airlines, Inc.,

rei U.S. 139, 102 Supreme Ct. 1127

a ERPS SG ee Pee ee

-vii-

CONSTITUTIONAL PROVISIONS:

Fifth Amendment, United States

Constitution (P.B. at 3) +++. -

Fourteenth Amendment, United States

Constitution (P.B. at 4) ++ +s -s.

STATUTORY PROVISIONS:

29 U.S.C. § 151 et seg., National

Labor Relations Act (P.App) - - -

29 U.S.C. § 201 et seg., Fair Labor

Standards Act of 1938 (P.App) -.- -

42 U.S.C. S 1981 (P.B. at 2) ba ° ad

42 U.S.C. § 1983 (P.B. at 2 -3) - -

42 U.S.C. § 2000 et seg., Title

VII, Civil Rights Act of 1964, as

amended (P.App.) --++++ +s. °

42 U.S.C. § 2000e-5(e) (1974)

| eS ee ee ee ee a

RULES OF PROCEDURE:

Ped. R. Civ. P. 23 + + © © + «© « «

Fed. R. Civ. P. 30(a)

Fed. R. Civ. P. 33(a)

Fed. R. Civ. P. 34(b)

-viii-

2,4,5

2,4,5

1,4,5

2,4,5

- Passim

Passim

Fed.

Fed.

Fed.

U.S.

U.S.

R. Civ. P. 36(a)

R. Civ. P. 56(b) .

R. Civ. P. 56(f) .

Sup. Ct. R. 49.2

Sup. Ct. R. 50

OTHER AUTHORITIES:

Note, The Emerging Deterrence

Orientation and Imposition of

Discovery Sanctions, 91 Harv.

Rev. OEE 0

, 1054 (1978)

-ix-

13,23,

13,23,

- 15

24

24

24

STATEMENT OF THE CASE

I. PROCEEDINGS BELOW

A. THE COMPLAINT

Plaintiff-petitioner, Lillian Wilder

(hereinafter "Petitioner") filed a Complaint

in the U.S. District Court for the Southern

District of Georgia on February 26, 1981,

alleging that Gilman Paper Company (herein-

after “Company"), the United Paper Workers,

and Paperworkers International Union, Local

958, St. Marys, Georgia, (hereinafter

"Unions") and the State of Georgia had dis-

criminated against her and “all other per-

sons similarly situated" because of sex in

violation of 42 U.S.C. § 2000(e) of the Civil

Rights Act of 1964 (hereinafter "Title

VII"); 42 U.S.C. § 1981 (hereinafter

"§ 1981); 42 U.S.C. § 1983 (hereinafter

"§ 1983"); the Fifth and Fourteenth Amend-

ments to the United States Constitution; the

National Labor Relations Act, 29 U.S.C.

§ 151 et seg., the Fair Labor Standards Act

of 1938, 29 U.S.C. § 201, et seg., and,

finally, under "customary '§§ international

law."

The Complaint contained a cursory

description of the class that Petitioner

allegedly represented, and simply para-

phrased the class action requirements of

Rule 23, Fed. R. Civ. P. In addition, Peti-

tioner's personal grievance was difficult to

determine, although it appeared to relate to

her termination from the Company in 1963.

The Complaint contained no allegation that

Petitioner ever filed a charge with the

United States Equal Employment Opportunity

Commission (hereinafter "EEOC") Or any other

governmental agency. Petitioner failed to

allege any state action by the Company.

Finally, Petitioner's Complaint was limited

to sex discrimination.

The defendant Unions and the State ci

Georgia had been dismissed on motions prior

to the time that the Company filed its alter-

native motions directed to the Complaint.

Petitioner has not pursued an appeal against

either of those defendants.

B. THE COMPANY'S MOTIONS DIRECTED TO

THE COMPLAINT.

On May 8, 1981, the Company filed

alternative motions for summary judgment and

to dismiss for failure to state a claim upon

which relief could be granted. The Company

attached the deposition of Petitioner and

the affidavit of John Love, the Industrial

Relations Manager of the Company, in support

of the motions. The motions addressed Peti-

tioner's numerous claims and argued that

Petitioner had failed to raise a genuine

issue as to any material fact and that the

Company was entitled to a judgment as a

matter of law. The Company also requested

that the Court award its costs and expenses,

including a reasonable attorney's fee.

Cc. THE DISTRICT COURT'S DECISION

GRANTING THE COMPANY'S MOTION.

On June 27, 1981, the District Court

granted the Company's summary judgment

motion. The court dismissed Petitioner's

Title VII claims due to her failure to file

an EEOC charge. Since Petitioner's Com-

plaint sought redress solely for alleged

discrimination because of her sex, her

§ 1981 claim was dismissed. Petitioner's

§ 1983 claim was dismissed due to her failure

to allege the requisite state action. Peti-

tioner's claims under the Fair Labor Stand-

ards Act and the National Labor Relations Act

were dismissed due to her failure to comply

with the applicable statutes of limitation.

The Court also dismissed Petitioner's claims

under "customary international law."

Finally, the Court dismissed the class alle-

gations and reserved ruling on the Company's

motion for costs and expenses.

D. THE ELEVENTH CIRCUIT'S PER CURIAM

DECISION AFFIRMING THE DISTRICT COURT'S

DECISION.

Petitioner then appealed the District

Court's summary judgment order. Petitioner

argued that the District Court erred in

granting summary judgment to the Company

before it had answered and before Petitioner

had pursued discovery. Petitioner also

argued that the District Court had erred in

dismissing her Title VII claim because of «ne

continuing nature of the violation and/or

because of equitable tolling principles.

Petitioner did not appeal the District

Court's decision regarding her claims under

§ 1981 and § 1983, the United States Consti-

tution, the Fair Labor Standards Act, the

National Labor Relations Act, “customary

international law," and the class action

allegation.

On February 3, 1982, an Eleventh Cir-

cuit panel (Godbold, Chief Judge, Johnson

and Anderson, Circuit Judges) affirmed per

curiam the District Court's order. The

Eleventh Circuit carefully addressed and

rejected each of Petitioner's arguments. In

concluding that the District Court was

correct in dismissing Petitioner's Title VII

claim for failure to file with the EEOC,

normally a necessary pre-condition to filing

suit in federal court, the Eleventh Circuit

found that there were no equitable circum-

stances present which would “toll” the

limitation period; that Petitioner had

failed to show a continuing violation; that

Petitioner's discharge occurred before Title

VII was enacted; and finally, that Peti-

tioner was an inappropriate class represen-

tative.

The court acknowledged a narrow excep-

tion to the EEOC filing requirements, citing

Fifth Circuit precedent which held that if

any member of a class files a claim with the

EEOC based on identical patterns and prac-

tices of discrimination, the statute is

tolled for all other potential claimants

relying on the same act of discrimination as

the basis for their claim. However, the

Eleventh Circuit found that Petitioner

failed to demonstrate that her allegations

were identical to those in the claim that was

filed and concluded that she could not rely

on the claim filed by the other individual in

order to be relieved of the need to file her

own claim.

The Eleventh Circuit found that the

District Court's actions were procedurally

correct in that a District Court is not

required to withhold a decision on summary

judgment until a party decides to proceed

with discovery. The Eleventh Circuit

specifically rejected Petitioner's conten-

tion that her failure to file was excused

because she was misled and did not proceed

with discovery in reliance on the Company's

statement that it needed additional time to

answer the Complaint. The court found that

regardless of the Company's prior represen-

tations, Petitioner was given notice of the

Company's motion for summary judgment and

had adequate opportunity for responding to

that motion by raising disputed material

facts. Finding that Petitioner made no show-

ing of cause for failure to proceed with

discovery, the court rejected her argument

that she had insufficient time for discov-

ery.

Finally, based on the disposition of

Petitioner's individual claims, the court

found that she possessed neither the same

interests nor the same injuries as other pur-

ported class members and affirmed the denial

of class certification.

II. STATEMENT OF THE FACTS:

A. PETITIONER'S EMPLOYMENT HISTORY.

Petitioner was initially employed under

the name, Lillian Woods, on October 15,

1959, as a Machine Tender in the Grocery Bag

Department of the Company's Kraft Bag Divi-

sion, which was located at the time in Savan-

nah, Georgia. She was then transferred to

St. Marys, Georgia, when the entire opera-

tion moved. On March 10, 1960, she was ter-

minated. She was rehired on a temporary

basis as a Temporary Machine Tender in the

Multi Wall Department on March 30, 1961.

That temporary job ended on May 3, 1961. She

was rehired in a temporary position as

Machine Tender in the Grocery Bag Department

on May 15, 1961. She was terminated on

December 27, 1963, due to her physical

inability to perform the Machine Tender job.

Although the Company had no record that

Petitioner had ever applied for a job at the

Company since her termination, Petitioner

testified at her deposition that she had

Orally inquired about a position with the

Company on several occasions - March, 1964;

September, 1964; September, 1965; October,

1968; and January, 1980. According to her

deposition, each time she re-applied she was

told either that there were no jobs available

at that time or that applications were not

being accepted at that time.

Petitioner has never filed a grievance

with a union representating the employees of

the Company. Neither has she filed a claim

with the EEOC, the Wage-Hour Division of the

United States Department of Labor, or any

other federal, state or local agency.

SUMMARY OF REASONS FOR

OPPOSING THE PETITION

The Eleventh Circuit's affirmance of

the District Court's grant of summary judg-

ment was correct and fully justified. First,

there were no “procedural departures" justi-

fying a petition to this Court because the

10

law is clear that a defendant may move for

summary judgment prior to filing an answer

and Petitioner was not deprived of her right

to engage in timely discovery.

Second, the Eleventh Circuit correctly

rejected Petitioner's argument that equita-

ble tolling principles salvaged her Title

VII claim. The mere fact that Petitioner's

attorney had earlier pursued a separate

"class action" against the Company (in which

the alleged class was never certified and the

suit was dismissed at an early stage on

summary judgment motion for, in part, fail-

ure to timely file an EEOC charge) is not

sufficient to toll the EEOC filing limita-

tion period. Petitioner has failed to raise

any disputed issue of material fact which

would excuse her from filing within 180 days

of the date she knew of the facts which gave

rise to her Title VII claim.

Third, Petitioner's characterization of

the Company's conduct as a "continuing

ll

violation" is incorrect and unsupported.

The mere allegation that the Company refused

upon a number of occasions to rehire an

employee terminated prior to the effective

date of the Act does not make out a claim of

continuing violation under Title VII.

Finally, Petitioner's attempt to seek

review of her claim based on a split in the

Circuit Courts of Appeal on the issue of the

nature of Title VII's filing prerequisite is

without merit. This Court resolved the split

in Zipes v. Trans World Airlines, Inc., 450

U.S. 139 (1982), prior to the filing of

Petitioner's brief. In fact, the Fifth and

Eleventh Circuits (as clearly articulated in

the Eleventh Circuit's opinion below) had

already adopted the principle that the fil-

ing limitation period was nonjurisdictional

and was subject to equitable modification.

Since Petitioner and her attorney con-

tinued to pursue an appeal after it was

clearly futile and wasteful to do so,

12

Respondent urges that the Court assess

reasonable attorneys’ fees and expenses

incurred on this appeal against Petitioner

and/or her Counsel pursuant to the Supreme

Court Rules and the Court's inherent power to

impose sanctions to achieve an orderly and

expeditious disposition of cases.

REASONS FOR OPPOSING THE PETITION

I. SINCE PETITIONER HAD NOTICE OF THE

COMPANY'S MOTION FOR SUMMARY JUDGMENT,

HAD ADEQUATE OPPORTUNITY TO RESPOND TO

THE MOTION AND FAILED TO RAISE THE

EXISTENCE OF A GENUINE ISSUE OF

MATERIAL FACT, THE ELEVENTH CIRCUIT

CORRECTLY AFFIRMED THE DISTRICT COURT'S

GRANT OF SUMMARY JUDGMENT TO THE

COMPANY.

Petitioner contends, without citation

to authority, that “justice and equity”

require that this Court grant review and

remand this case because of “procedural

departures." Petitioner's Brief (herein-

after P.B.) 10. Petitioner asserts that the

lower courts erred in granting summary judg-

13

ment to the Company prior to its service of

an answer and prior to Petitioner's pursuit

of discovery. P.B. ll. As demonstrated

below, and as articulated by the Eleventh

Circuit opinion, the grant of summary judg-

ment to the Company was fully justified in

this case.

A. DEFENDANT MAY MOVE FOR SUMMARY

JUDGMENT PRIOR TO THE SERVICE OF A

RESPONSIVE PLEADING.

Rule 56(b) of the Federal Rules of Civil

Procedure authorizes a defending party to

move “at anytime” for summary judgment in its

favor. The proposition is well-settled that

a defendant is not required to file an answer

before moving for summary judgment. First

National Bank of Arizona v. Cities Service

Company, 391 U.S. 253 (1968); Southern

Pacific Transportation Company v. National

Molasses Company, 540 F.2d 213, 214 (5th Cir.

1976); Hubicki v. ACF Industries, Inc., 484

F.2d 519 (3rd Cir. 1973); Kidder v. Eastern

Airlines, Inc., 469 F. Supp. 1060, 1065 Note

5 (S.D. Fla. 1978).

14

B. THE GRANT OF SUMMARY JUDGMENT

PRIOR TO THE OPPOSING PARTY'S

INSTITUTION OF DISCOVERY IS CON-

SISTENT WITH THE PRINCIPLES OF

JUSTICE AND EQUITY UNDER THE CIR-

CUMSTANCES OF THIS CASE BECAUSE

PETITIONER HAD ADEQUATE OPPORTU-

NITY TO ENGAGE IN DISCOVERY PRIOR

TO THE GRANTING OF RESPONDENT'S

MOTION AND FURTHER OPPORTUNITY FOR

DISCOVERY WOULD HAVE BEEN

FUTILE.

The courts will not delay decision on a

summary judgment motion to allow discovery

even under Rule 56(f) when the discovery

sought could have been instituted earlier,

especially when there is no reason to believe

that it will lead to a denial of the motion.

Southern Rambler Sales, Inc. v. American

Motors Corporation, 375 F.2d 932 (5th Cir.

1967), cert. denied, 389 U.S. 832 (1967);

Save Our Cemetaries, Inc. v. Arch Diocese of

New Orleans, Inc., 568 F.2d 1074 (5th Cir.

1978), reh. denied, 572 F.2d 320, cert.

denied, 439 U.S. 836 (1978). Under the cir-

cumstances of this case, Petitioner was not

prevented from pursuing discovery immedi-

15

ately upon filing of the complaint. See Fed.

R. Civ. P., Rules 30(a), 33(a), 34(b), and

36(a). Indeed, as the Eleventh Circuit con-

cluded, even if Petitioner was misled by the

Company and did not proceed with discovery

because of the Company's statement that it

needed additional time to file an answer, she

was given notice of the Company's motion for

summary judgment and had adequate opportu-

nity for responding to that motion by discov-

ering and raising disputed materiai facts.

Contrary to Petitioner's assertion, justice

and equity require that individuals not be

allowed to take advantage of a situation

which is, in fact, created by their own lack

of diligence in pursuing discovery.

Finally, even assuming arguendo that

Petitioner had been prevented from pursuing

discovery aiter filing suit, it is clear that

Petitioner's unjustified failure to file a

timely EEOC charge, coupled with her failure

to comply with other applicable statute of

16

limitation periods and administrative

requirements, require the legal conclusion

that Petitioner did not meet the necessary

prerequisites to filing this suit in federal

court. As a result, further discovery would

have served no useful purpose,

II. A SEPARATE CLASS ACTION SUIT BROUGHT BY

ANOTHER INDIVIDUAL AGAINST THE COMPANY

WHICH WAS SUBSEQUENTLY DISMISSED BY

SUMMARY JUDGMENT DOES NOT, UNDER THE

CIRCUMSTANCES OF THIS CASE, TOLL THE

TIME IN WHICH PETITIONER WAS REQUIRED

TO FILE AN EEOC CHARGE.

Petitioner's attempt to salvage her

Title VII claim by arguing that the time for

filing her EEOC charge was tolled by the

filing of an EEOC charge by another individ-

ual plaintiff who brought an earlier class

action suit against the Company was cor-

rectly rejected by the lower courts. First,

the other suit, Fowler v. Gilman Paper

Company, et al., No. 279-12 (S.D. Ga., filed

Oct. 4, 1979) aff'd per curiam, No. 79-3662

(5th Cir. May 7, 1980), brought by the same

attorney, was like the case now before this

17

Court dismissed at any early stage on the

Company's summary judgment motion,’ the

decision being based in part on Fowler's

failure to file a timely EEOC charge.

Second, the Fowler court refused to certify

the class and dismissed the conclusory class

action allegations at the same early stage of

the proceedings. Third, even if Fowler had

filed a timely EEOC charge, this Petitioner

still must comply with the 180-day filing

period since she seeks relief in a separate

action. Inda vy. United Airlines, Inc., 565

F.2d 554 (9th Cir. 1977), cert. denied 435

U.S. 1007 (1978); Bertheas v. Trans World

Airlines, Inc., 450 F. Supp. 1069 (E.D. N.Y.

1978). Finally the circumstances in which

courts have generally tolled or waived the

filing period limitations under Title VII

(e.g., during the pendency of an action

before a state court with jurisdiction over

the subject matter, deferring the commence-

ment of the 180 days until a claimant knew or

18

should have known the facts which would give

rise to a Title VII claim, or deferral when

the EEOC has misled a complainant about the

nature of the individual's rights under

Title VII) clearly do not appiy to Peti-

tioner. See generally Zipes v. Trans World

Airlines, Inc., 450 U.S. 239, 102: Ba: Gee

1127 (1982); Chappell v. Emco Machine Works

Co., 601 F. 2d 1295, 1302-1303 (5th Cir.

1979).

III. THE ELEVENTH CIRCUIT CORRECTLY HELD

THAT NEITHER THE 1963 TERMINATION NOR

THE ALLEGED SUBSEQUENT DISCRIMINATORY

REFUSALS TO REHIRE PETITIONER ARE CON-

TINUING VIOLATIONS UNDER TITLE VII

Petitioner's contention that her suit

was based on a continuing violation is unsup-

ported and incorrect. Petitioner's com-

plaint involves the pre-Act termination of

her employment in 1963 and her deposition

revealed that she also claims to have been

discriminatorily refused re-employment in

March 1964; September 1964; September 1965;

October 1968; and January 1980. However, as

19

the Eleventh Circuit correctly held, the

mere fact that she was fired and subsequently

allegedly denied employment fails to make

out a claim of continuing violation. See

United Airlines, Inc. v. Evans, 431 U.S. 553,

557-558 (1977); Hodge v. McLean Trucking

Company, 607 F.2d 1118 (5th Cir. 1979);

Bracamontes v. Amstar Corp., 576 F.2d 61 (5th

Cir. 1978); Molybdenum Corp. of America v.

EEOC, 457 F.2d 935 (10th Cir. 1952); Smith

v. Office of Economic Opportunity for State

of Arkansas, 538 F.2d 226 (8th Cir. 1976).

Even assuming arguendo that each alleged

refusal to rehire petitioner was a separate

act of discrimination, under the circum-

stances of this case her failure to timely

file an EEOC charge based on the alleged Jan-

uary 1980 application bars her claim under

Title VII. Guatam v. First National City

Bank, 425 F. Supp. 579, 582 (S.D. N.Y.

1976) cert. denied 440 U.S. 919 (1976).

Thus, as the Eleventh Circuit concluded, the

20

deadline for filing a timey charge with the

EEOC has passed.

IV. THE DECISION BELOW FAILS TO PRESENT ANY

REAL CONFLICT QUESTION SINCE NO ACTUAL

CONFLICT EXISTS BETWEEN THE DECISION

BELOW AND PRIOR HOLDINGS OF THIS COURT

OR OTHER CIRCUITS AND, IN ADDITION, THE

ELEVENTH CIRCUIT'S AFFIRMANCE OF THE

DISMISSAL FOR FAILURE TO FILE WAS NOT

BASED ON AN IMPERMISSIBLE JURISDIC-

TIONAL ANALYSIS.

A recent decision by this Court, Zipes

v. Trans World Airlines, Inc., 450 U.S. 139,

(1982), (held that filing a timely charge

with the EEOC is not a jurisdictional pre-

requisite to suit in federal court, but a

requirement that, like a statute of limita-

tions, is subject to equitable modification)

moots Petitioner's argument that there is

presently a split in the Circuits regarding

the nature of the EEOC filing requirement

which needs to be resolved by this Court.

P.B. 10. The split was, in fact, resolved by

Zipes prior to the filing of the Petitioner's

brief.

21

Furthermore, the Eleventh Circuit

explicitly ‘considered Petitioner's claims in

light of the “equitable modification" stand-

ard previously articulated in Coke v.

General Adjustment Bureau, Inc., 640 F.2d

584, 591, n. 14 (5th Cir. 1981) (en _ banc)

(cited with approval in Zipes, 102 S. Ct. at

1132-1135 n.7, n.12 and n.14). The Eleventh

Circuit opinion below carefully addressed

and rejected Petitioner's "tolling" argu-

ments (e.g. allegations of a continuous vio-

lation and benefits sought to be derived from

a prior class action suit brought by an

alleged member of Petitioner's alleged

"class"). Such reasoning would have been

gratuitous if the filing reqirement had been

strictly construed by the Elerenth Circuit

as “jurisdictional.” Thus, contrary to

Petitioner's unsubstantiated assertions, the

law of the Fifth and Eleventh Circuits is in

harmony with the holdings of this Court. As

a result, there is no basis for this peti-

22

tion, since any conflict which existed prior

to Zipes has been resolved and the Eleventh

Circuit's determination that Petitioner's

Title VII claim was properly dismissed for

failure to file was not, in fact, based on an

impermissible “jurisdictional” analysis.

CONCLUSION

Due to the extraordinarily frivolous

nature of Petitioner's request for certior-

ari, Respondent requests that this Court

award Respondent its reasonable attorneys'

fees, expenses and costs pursuant to U.S.

Supreme Court Rules 49.2 and 50. Peti-

tioner's counsel has pursued this appeal and

continued to litigate after it was clearly

futile to do so; thereby, wasting the scarce

resources of this Court and of Respondent.

Due to this flagrant abuse of the judicial

system by Petitioner's attorney, Respondent

submits that it is appropriate to assess

reasonable fees and expenses against Peti-

tioner's Counsel in order to deter this and

23

other attorneys from engacing in frivolous

and wasteful appellate litigation. Such an

award could be made pursuant to Supreme Court

Rules 49.2 and 50 and pursuant to the inher-

ent power of this Court to impose sanctions

to achieve an orderly and expeditious

disposition of cases. See generally Roadway

Express _v. Piper, 447 U.S. 752 (1980);

National Hockey League v. Metropolitan

Hockey Club, Inc., 427 U.S. 639 (1976); Note,

The Emerging Deterence Orientation In The

Imposition Of Discovery Sanctions, 91 Harv.

L. Rev. 1033, 1054 (1978).

For the foregoing reasons, Respondent

respectfully requests that the Court decline

to grant review on certiorari in this matter

and respectfully prays that the judgment

below be affirmed and that the Court award

Respondent reasonable attorneys’ fees,

expenses, and costs incurred on this appeal.

24

Respectfully submitted,

GUY O. FARMER, II

COUNSEL OF RECORD

Smith & Hulsey

500 Barnett Bank Building

Jacksonville, Florida 32202

904/359-7700

AND

KEVIN M. SMITH

Smith & Hulsey

500 Barnett Bank Building

Jacksonville, Florida 32202

904/359-7700

COUNSEL FOR RESPONDENT

GILMAN PAPER COMPANY

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