Petition — Owens-Illinois, Inc. v. Williams

82-419

In the Supreme Co

OF THE

Ocroner Term, 1982

Owens-Iiuio1, Ivc.,

Petitioner,

vs.

Foro Wiu1aMs, In., et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Ninth Circuit

Morcensvetn, Lapp & Jupevirer

Marvin D. Morcensre1n

COUNSEL OF RECORD

Jerrazy R. WILAaus

255 California Street, Suite 800

San Francisco, California 94111

(415) 421-9320

R. Jerrrey Brxuer

Owens-Itu1no1s, Inc.

One SeaGate Plaza

Toledo, Ohio 43666

(419) 247-5000

Paul, Hastinos, Janorsxy & WaLKER

Lioyp Surren

230 Peachtree Street, N.W.

Suite 1100

Atlanta, Georgia 30303

(404) 588-9900

BOWNE OF GAN FRANCIOCO, INC. * ISO NINTH OT. © 6.F..CAB4IOB © (418) 664-8000

QUESTIONS PRESENTED

1. May a Court of Appeals set aside findings of fact

made by the District Court in an employment discrimina-

tion case where those findings (1) were not found to be

clearly erroneous under Rule 52(a) of the Federal Rules of

Civil Procedure, and (2) were not the result of legal errors

made by the District Court?

2. Did the Court of Appeals err in retroactively apply-

ing the 300-day limitation period to this employment dis-

crimination class action where the District Court had ap-

plied the 180-day limitation period followed in the Ninth

Circuit at the time of the District Court’s decision?

B. Proceedings in District Court

C. Opinion of the Court of Appeals

Reasons for granting the wrieet:!

I

The decision of the Court of Appeals conflicts with

this Court’s opinion ii. «lman-Standard v. Swint ....

(a) The District Court’s relevant labor market

determination did not influence any findings of

fact

_ (b) The District Court’s ruling on the collective

bargaining agreement did not influence any

. IT AO eee

II

The Court of Appeals decision on the statute of limi-

tations violates the standards for retroactive appli-

cation established by this Court in Chevron Oil Co.

v. Huson

(a) The District Court followed the 180-day rule

in effect in the Ninth Circuit at the time of the

District Court’s decision

(b) The 300-day rule of Reed v. Lockheed Aircraft

Corp. should not be applied retroactively to the

present case

Conclusion

11

14

15

16

8 &

TABLE OF AUTHORITIES

Page

Board of Trustees of Keene State College v. Sweeney,

439 U.S. 24 (1978) 7

Chevron Oil Co. v. Huson, 404 U.S. 97 (197)

3 4, 15, 16, 18, 19, 20

Dothard v. Rawlinson, 433 U.S. 321 (1977 11,12

Hazelwood School District v. United States, 433 U.S.

D * 7, 8, 11

Kelley v. Southern Pacific Co., 419 U.S. 318 (1974) — 13

Kirk v. Rockwell International Corp., 578 F.2d 814

(9th Cir. 1978), cert. denied 439 U.S. 1004 (1978) 19

Lynn v. Western Gillette, Inc., 564 F. 2d 1282 (9th Cir.

1977) 19

Northern Pipeline Construction Co. v. Marathon Pipe

Line Co. U.S. 50 U.S.L.W. 4892 (June 28,

5, aeRO ‘i 20

Owens v. Commercial Union Fire Ins. Co., 211 F.2d

488 (4th Cir. 1954) 13

Pullman-Standard v. Swint, 456 U. S. , 50 U.S.L.W.

4425 (April 27, 1982) un passim

Reed v. Lockheed Aircraft Corp., 613 F.2d 757 (9th

Cir. 1980) 17, 18, 19

Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352

. 18

Rodriguez v. Southern Pacific Transportation Co., 587

F. 2d 980 (9th Cir. 1978) BT OR Oe 17, 19

Teamsters v. United States, 431 U.S. 324 (1977) ........ 7

Texas Dept. of Community Affairs v. Burdine, 450

U.S. 248 (1981) 7

Wiltshire v. Standard Oil Co., 652 F.2d 837 (9th Cir.

1981) 19

Taste or AvTHorIties

Statutes

Page

28 U.S.C, § 1254(1) 2

42 U.S. C.:

91981 (Civil Rights Act of 1866) 2

§ 2000e, et seq. (Title VII of the Civil Rights Act of

APES REE eee «RT PR 2

§ 2000e-2(h) er eee 10, 14

§ 2000e-5(e) 15 reer 2, 16

§ 2000e-5 (f) (3) — 2

Rules

Federal Rules of Civil Procedure:

Rule 23 (b) (2) an 4

. 9, 10, 11, 13, 15

Rule 52(a) . i, 2, 3, 9, 10

vi

No.

In the Supreme Court

United States

Ooronnn Tann, 1982

Owens-Luuinors, IN.,

Petitioner,

vs.

Foo Wru1aMs, In., et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Ninth Circuit

- Owens-Illinois, Inc. respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in the case of Floyd

Williams, Jr., et al. v. Owens-Illinois, Inc., entered on

January 11, 1982, and amended on June 11, 1982.

OPINIONS BELOW

The opinion of the District Court is reported at 469

F. Supp. 70 (N.D. Cal. 1979) and is reprinted as Appen-

dix A. The opinion of the Court of Appeais is reported at

665 F. 2d 918 and is reprinted as Appendix B. The order

amending the Court of Appeals’ opinion and denying re-

hearing is reported at 28 FEP 1820 and is reprinted as

Appendix C.

JURISDICTION

The Court of Appeals entered judgment on January 11,

1982. On June 11, 1982, the Court denied a petition for

rehearing, but amended its opinion. This Court has juris-

diction to review the judgment below pursuant to 28 U.S.C.

§ 1254(1). The District Court had jurisdiction of this

action under 42 U.S.C. § 2000e-5(f) (3).

STATUTES

The following relevant statutory provisions are reprinted

at Appendix D:

1. Rule 52(a), Federal Rules of Civil Procedure;

2. Section 706(e) of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 5 2000e-5(e).

STATEMENT OF THE CASE

A. INTRODUCTION

Respondents are three of the plaintiff-intervenors who

brought this class action on behalf of themselves and other

black and female employees or former employees at the

Oakland, California plant of the petitioner, Owens-Illinois,

Inc. (“the Company”). The suit alleged unlawful employ-

ment discrimination on the basis of race and sex under

the Civil Rights Acts of 1866 and 1964, 42 U.S.C. 6 1981

and 42 U.S.C. § 2000e, et seq., respectfully. After an eight-

week trial, the District Court entered extensive findings of

fact with respect to both the individual claims“ of dis-

crimination and the claims of discrimination against the

separate classes of black and female employees. (Appen-

‘Judgments on the individual claims were not appealed by either

party and are not pertinent to this petition.

dix (“App.”) A at 2-11, 12-26, 27-70.) The District Court

found no discrimination against the black or female classes

except in the promotion or assignment of females to cer-

tain supervisory and managerial jobs. (App. A at 11-12,

26.) The respondents, on behalf of both classes appealed

the judgments against the black and female classes.

The Court of Appeals affirmed in part, reversed in part

and remanded. In doing so, the Court of Appeals com-

pletely ignored the District Court’s extensive findings of

fact and failed to apply to them the “clearly erroneous”

standard of review, as required by Rule 52(a) of the Fed-

eral Rules of Civil Procedure and this Court’s recent deci-

sion in Pullman-Standard v. Swint, 456 U.S., 50

U.S.L.W. 4425 (April 27, 1982). The only clear reference

to the findings of fact came in an amendment to the

opinion which the Court issued in response to the Com-

pany’s petition for rehearing. The Court simply indicated,

without analysis or explanation, that the District Court

must “redetermine” or “reconsider” all of its findings in

light of certain errors identified in the Court of Appeals’

original opinion. (App. C at 2-4.) Petitioner contends that

these legal errors manifestly do not affect the validity of

any factual finding and, therefore, the Court of Appeals’

complete failure to address the findings directly conflicts

with this Court’s decision in Pullman-Siandard, and com-

pletely undermines the mandate of Rule 52(a) that find-

ings of fact shall not be set aside unless clearly erroneous.

In addition, the Court of Appeals extended the relevant

limitations period by 120 days, holding that the District

Court should have applied a limitations period of 300 days

prior to the filing of the initial charge of discrimination,

instead of the 180-day period applied by the District

4

Court. (App. B at 51-54, n. 2.) This retroactive application

of the 300-day rule, which was adopted by the Ninth

Circuit only after the decision of the District Court below,

is in direct conflict with the standard for retroactive appli-

cation of judicial decisions established by this Court in

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

For the foregoing reasons, as more fully explained

herein, a writ of certiorari should be issued to review the

Court of Appeals’ judgment.

B. PROCEEDINGS IN DISTRICT COURT

The complaint in this action alleged employment dis-

crimination on the basis of race and sex in the areas of

initial job assignments, promotions, terminations, wages,

and treatment on the job. The District Court certified two

separate employee classes under FRCP 23(b)(2): (1) all

blacks employed at the Oakiand plant after March 7, 1971;

aud (2) all women employed at the plant after March 23,

1974. The class included both hourly employees, whose

terms and conditions of employment were controlled by

eight separate and distinct collective bargaining agree-

ments, and salaried employees, who were not covered by

labor agreements. Separate issues were raised relating to

the filling of job vacanzies within the hourly workforce,

promotions to salaried positions from hourly positions, and

filling of job vacancies within the salaried workforce. The

classes did not include applicants for employment.

After a lengthy trial in which some 80 witnesses testified

and hundreds of documentary exhibits were introduced

into evidence, the District Court entered separate findings

of fact and conclusions of law as to each class. With re-

spect to the class of black employees, the District Court

5

entered twenty specific findings of fact addressing the

issues of job assignments, promotions, pay, and termina-

tions, and concluded that the Company did not engage in

any discrimination against black employees. The District

Court specifically found that any differences in the treat-

ment of black and white employees were based upon

legitimate, non-discriminatory factors, such as qualifica-

tions, seniority, and available job vacancies. (App. A at

4, 6, 7.)

The District Court made some thirty-three separate find-

ings of fact with respect to the class of female employees,

largely paralleling the findings relating to the class of black

employees. (App. A at 12-26.) The District Court ac-

knowledged that in some areas of the plant few women

were employed, but it found that this was due to the low

rate of turnover, the lack of interested applicants, and the

lack of qualifications. (App. A at 16, 18, 20-21.) In general,

the District Court found that with the exception of super-

visory and managerial jobs, jobs were awarded to females

in a non-discriminatory manner, based upon qualifications,

seniority, and applications.

The District Court did find that the Company unduly

limited the access of females to supervisory and manage-

ment jobs, and that it had a pattern or practice of promot-

ing males to these positions instead of qualified females.

The Court found that although there were qualified fe-

males available for these positions, the candidates were

selected by male supervisors and managers who had never

chosen a female for promotion into one of these jobs.

(App. A at 23-26.)

Based upon the foregoing findings, the District Court

entered conclusions of law holding that the class of black

6

employees had not been discriminated against and that the

female class had been discriminated against only in pro-

motion and assignment to supervisory and management

positions. (App. A at 11-12, 26.) The respondents, on be-

half of both classes, appealed these and certain other

adverse determinations.

The Court of Appeals reversed and remanded the judg-

ments against both classes. Although the Court of Appeals

separated the two classes in its analysis of the District

Court opinion, it did not separately discuss the various

issues of discrimination as the District Court had done in

its findings of fact. And, the Court did not even mention

the findings until it amended its original opinion in re-

sponse to the Company’s petition for rehearing.

With respect to the claims of race discrimination, the

Court of Appeals first concluded that plaintiffs had pre-

sented sufficient evidence to establish a prima facie case

of discrimination if the releva labor market was either

the one urged by plaintiffs or one of greater minority

representation. The Court referred to the two job assign-

ment aspects of plaintiffs’ statistical study: that although

blacks comprised 27% of the new hires, most of the blacks

hired were service workers, and that only 11% of the

craftsmen hired were black. (App. B at 17.)

The Court of Appeals then indicated that the Company

failed to rebut the statistical case presented by the plain-

tiffs, finding that the Company’s alternative studies did

not negate the plaintiffs’ evidence. (App. B at 17.) How-

ever, the Court of Appeals never mentioned the Company’s

non-statistical evidence or the District Court’s finding of

7

fuct that [iln the initial assignment of new hires, Owens-

Illinois did not discriminate against Black employees. The

evidence established that the assignment of new employees

was based upon job openings and qualifications of the em-

ployee without regard to the race of the employee.” (App.

A at 4.) This finding of an absence of discrimination di-

rectly rebutted any prima facie case of discrimination.

Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248 (1981); Board of Trustees of Keene State College v.

Sweeney, 439 U.S. 24 (1978) ; Hazelwood School District v.

United States, 433 U.S. 299 (1977); Teamsters v. United

States, 431 U.S. 324 (1977).

The Court of Appeals next referred to what it character-

ized as the Company’s primary defense: that many of the

wage and promotion practices were mandated by collec-

tive bargaining agreements. (App. B at 18.) The trial court

had ruled at a pre-trial conference that “any personnel

activity, practice or procedure” compelled by a collective

bargaining agreement would be deemed non-discriminatory

and that the court would not alter or modify any provision

of the agreements. This ruling was based upon the failure

of plaintiffs to join as defendants the union parties to the

eight labor agreements. The Court of Appeals held this

ruling to be erroneous as a matter of law, indicating that

an agreement permitting an employer to discriminate does

not bar claims of unlawful conduct. (App. B at 18.)

The Court of Appeals then returned to the relevant

labor market determination referred to by the District

Court; and concluded that it was error to select Alameda

County as the labor market from which it would be antici-

pated that the Oakland plant would hire employees. (App.

B at 21.) Accordingly, the claims of the black class were

-_

remanded to determine the appropriate Jefinition cf the

relevant labor market.

The Court of Appeals never stated to what issue (e. .,

job assignments, promotions, or terminations) the labor

market determination pertained. Since it cited this Court’s

decision in Hazelwood School District v. United Stout es, 433

U.S. 299 (1977) (App. B at 24), the Court presumably

considered the labor market pertinent to claims of hiring

discrimination. Yet, this was not a hiring discrimination

case. The class certifications both were limited to current

or former employees. They did not include applicants for

hire or others who desired employment with the Company,

and the issues submitted to the jury did not include hiring

discrimination. The issues in the case were limited to job

assignments, promotions, pay, and terminations, none of

which are influenced by the definition of the relevant labor

market. In fact, throughout its decision, the Court of

Appeals never describes the discrimination issues with

any precision, choosing instead to lump ‘ogether as identi-

cal issues questions concerning placements, promotions,

pay and terminations, both as to employees covered by

labor agreements and those not covered.

The Court of Appeals’ approach to the sex discrimina-

tion issue paralleled its decision on the race claims. The

Court reviewed plaintiffs’ statistical evidence, which was

addressed almost exclusively to the initial job assignment

of females within the plant and to claimed disparities

in wages between men and women. Ignoring again the

District Court’s factual findings on the job assignment

issue, as well as findings on all other i.sues, the Court of

‘Appeals reversed and remanded the entire sex discrimina-

tion case, directing redetermination of the relevant labor

a

market, (App. B at 36-37.) And, again, the Court of Ap-

peals did not state what issues were related to the labor

market determination, or on what issue a prima facie case

could be established with a proper market determination.

The Court never examined the District Court’s extensive

findings of fact to determine whether they would have

rebutted any conceivable prima facie case.

In sum, the Court of Appeals’ original opinion com-

pletely ignored the District Court’s findings of fact on all

issues. The Company sought rehearing, specifically urging

the application of Rule 52(a) to the District Court's find-

ings and, in a letter brief, calling attention to this Court's

intervening decision in Pullman-Standard v. Swint. The

Court of Appeals then amended its opinion, seizing upon

the District Court's possible legal errors as justification

for requiring redetermination of all findings of fact. The

Court of Appeals never analyzed whether such errors could

have actually influenced the findings of fact, choosing in-

stead to maintain its blanket remand of the class judg-

ments.

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE COURT OF APPEALS CON.

FLICTS WITH THIS COURT'S OPINION IN PULL-

MAN-STANDARD v. SWINT.

In its original opinion, the Court of Appeals did not

mention Rule 52, did not mention the “clearly erroneous”

standard, and did not mention a single District Court find-

ing of fact. The amendment does not bring the opinion into

compliance with Pullman-Standard v. Swint and Rule 52

merely because the Court then suggests that its failure to

iP peal

10

review the findings was occasioned by two District Court

errors of law. The findings are totally unrelated to the legal

determinations set aside by the Court of Appeals. To al'ow

these errors to form the basis for a remand undermines

the holding in Pullman-Standard v. Swint that findings of

fact in employment discrimination actions must be ac-

ceptea by an appellate court unless found to be clearly

erroneous.

In Puliman-Standard v. Swint, the trial court found

that a plant seniority system had been adopted and main-

tained for purposes wholly independent of any discrimina-

tory intent, and thus was a “bona fide” seniority system

under Section 703 (h) of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-2(h). The Court of Appeals for

the Fifth Circuit reversed the district court’s judgment

based upon its disagreement with the lower court’s deter-

mination as to the motivation of the parties who nego-

tiated and adopted the seniority system, but the court of

appeals did not expressly hold those findings to be clearly

erroneous under Rule 52(a). This Court held that it was

error for the court of appeals to reverse the lower court

without determining that the findings of fact were clearly

erroneous.

In the Pullman-Standard opinion, this Court noted that,

while the court of appeals had correctly stated the con-

trolling stradard of Rule 52, it had done so only at the

very end of its opinion, and “had not expressly referred to

or applied Rule 52 in the course of disagreeing with the

Diet riet Court’s resolution of the factual issues. 50

J. S. L. W. at 4430. Rather, the court of appeals made an

independent determination of the motivation of the parties

in adopting the seniority system, which it characterized as

a Niitdid zg y

11

the ultimate fact” in that case. In holding thie approach

to be error, this Court defined the mandate of Rule 52

as follows:

“Rule 52 broadly requires that findings of fact not be

set aside unless clearly erroneous. It does not make

exceptions or purport to exclude certain categories

of factual findings from the obligation of a Court of

Appeals to accept a district court’s findings unless

clearly erroneous. It does not divide facts into cate-

gories ; in particular, it does not divide findings of fact

into those that deal with ‘ultimate’ and those that deal

with ‘subsidiary’ facts.”

50 U.S.L.W. at 4429.

Under Pullman-Standard, the Court of Appeals here

could not ignore the trial court’s extensive findings of fact.

The Court of Appeals’ amendment purported to ground

the remand upon possible legal errors, without demonstrat-

ing how the errors identified could have conceivably im-

pactca those findings. On closer analysis, it becomes clear

that the Court of Appeals simply ignored the findings of

fact, the requirements of Rule 52, and Pullman-Standard

v. Swint.

(a) The District Court’s Relevant Labor Market Deter-

mination Did Not Influence Any Findings of Fact.

The Court of Appeals never explained the significance

of the relevant labor market determination in the context

of this case. The Court cited Hazelwood School District v.

United States, 433 U.S. 299 (1977), and Dothard v. Rawlin-

son, 433 U.S. 321 (1977), in the course of discussing the

labor market determination, but both these cases involved

only claims of hiring discrimination. In Hazelwood, the

government asserted that the defendant school district

*

12

was engaged in a “pattern or practice” of discrimination

in hiring school teachers. A comparison of the percentage

of minority teachers hired to the percentage available in

the relevant labor market was an essential element of

establishing a prima facie case of hiring discrimination.

And Dothard involved a class of female applicants who

claimed discrimination in the application of a uniform

hiring requirement. Neither case indicated that external la-

bor market analyses are appropriate for job assignment,

promotion, pay and termination issues.

The trial court’s findings of fact with respect to both the

biack and female classes do not purport to be based in any

respect upon relevant labor market calculations. The fin4-

ings address the existence of differences in treatment be-

tween black and white employees and between male and

female employees. In some instances, no differences in

treatment were found, such as in the wages paid to black

and white salaried employees. In other situations, such as

the assignment of fema'es to hourly jobs, the findings ac-

knowledge the absence or under-representation of women

in certain positions.

The District Court then dealt with the Company’s evi-

dence that any differences in treatment were based on

legitimate, non-discriminatory factors, finding that this

evidence proved an absence of discrimination in all areas

except one. Whether the relevant labor market is Alameda

County or the City of Oakland will simply not change

the fact that job assignments and promotions were

based upon available job vacancies, qualifications and se-

niority, and not race or sex. Nor will the correct market

analysis somehow change the findings that black salaried

employees were paid amounts equal to white employees

13

for similar work and that no black employee was paid less

than required by a bona fide job evaluation system.

The Court of Appeals’ labor market discussion is even

more perplexing when applied to the claims of sex discrim-

ination. The District Court did not even purport to analyze

the claims of the female class against any labor market. The

reason, of course, was clear. This case did not involve hir-

ing discrimination issues. In any event, a proper labor mar-

ket determination will not change the existence of the legit-

imate, non-discriminatory factors for the absence of females

in certain jobs. The proven lack of interest of females in

certain undesirable jobs in the plant, the low rate of turn-

over in certain jobs, and the use of seniority and qualifica-

tions in awarding the jobs, are not dependent in any way

on the definition of the labor market from which the Com-

pany could be expected to draw its employees.

Petitioner does not dispute the general rule that findings

of fact should be redetermined where errors of law have

manifestly influenced and controlled the findings. Pullman-

Standard v. Swint, supra; Kelley v. Southern Pacific Co.,

419 U.S. 318 (1974); Owens v. Commercial Union Fire

Ins. Co., 211 F.2d 488 (4th Cir. 1954). But, as we have

shown, the relevant labor market error purportedly made

by the District Court did not influence any findings of fact.

To permit the findings to be ignored without any analysis

of the actual impact of the legal error completely under-

mines this Court’s opinion in Pullman-Standard v. Swint

and the standard of review under Rule 52.

14

(b) The District Court’s Ruling on the Collective Bar-

gaining Agreement Did Not Influence Any Findings

of Fact.

In its original opinion, the Court of Appeals concluded

that the District Court erred in its pretrial ruling that any

personnel activity, practice or procedure compelled by a

collective bargaining agreement would be deemed non-dis-

criminatory. The obvious purpose of this ruling by the

District Court was to avoid reformation of any of the eight

labor agreements without the presence in the litigation of

the labor union parties to these agreements. In its amend-

ment to the opinion, the Court of Appeals acknowledged

that §703(h) of Title VII, 42 U.S.C. § 2000e-2(h), allows

certain defenses for actions taken pursuant to a bona fide

seniority system, but held that the District Court’s ruling

went beyond the scope of these defenses. The Court of Ap-

peals, again without identifying any specific findings of

fact, directed the District Court to redetermine any finding

based upon this pre-trial ruling.

The District Court manifestly did not base any finding

upon its labor agreement ruling. Initially, the labor agree-

ments covered only the hourly workforce and, therefore,

no finding relating to salaried positiors could possibly have

been influenced by the collective bargaining issues. And,

as the Court of Appeals pointed out, the labor agree-

ment issue related to wages and promotions and not to job

assignments or terminations. Moreover, the District Court

made a specific finding, based upon evidence presented at

trial, that the labor agreements were not discriminatory.

The Court found that the agreements did not adversely

impact or affect members of the black class, and did not

have the effect of denying any job, promotion, pay in-

15

crease, or any other term or condition of employment to

any person because of race. Similar findings were made

with regard to the sex discrimination issues. At no point in

its findings did the District Court defer to its pretrial

ruling on the labor agreements.

The effect of the Court of Appeals’ remand is to establish

a standard of review allowing the disregard of findings of

fact whenever a trial court makes a legal error, irrespec-

tive of whether the error actually influences any finding.

Such a standard is particularly burdensome in a case such

as this where the findings are based upon consideration of

some eight weeks of testimony and hundreds of documen-

tary exhibits. The indiscriminate remand of all the District

Court findings nullifies the purpose of Rule 52 and the

import of Pullman-Standard v. Swint, The Court should

grant certiorari to ensure the viability of the “clearly er-

roneous” standard by precisely defining the nature of the

legal errors that may permit the disregard of factual find-

ings. This case presents un excellent opportunity to address

this issue.

THE COURT OF APPEALS DECISION ON THE STAT.

UTE OF LIMITATIONS VIOLATES THE STAN.

DARDS FOR RETROACTIVE APPLICATION ES.

TABLISHED BY THIS COURT IN CHEVRON OIL

00. v. HUSON.

The Court of Appeals held that the District Court erred

in applying the 180-day statute of limitations in determin-

ing the class period. It held that the 300-day limit should

have been applied. (App. B at 11, 51 n. 2.) However, the 300-

lad

ae Wes

day rule was not adopted by the Ninth Circuit until after

the decision of the District Court in this case. The decision

of the District Court, at the time it was filed, followed the

rule in the Ninth Cireuit that the limitation period should

be computed by subtracting 180 days from the date of the

initial complaint filed with the EEOC. Under the decision

of this Court in Chevron Oil Co. v. Huson, 404 U.S. 97

(1971), the subsequently-adopted 300-day rule of this Cir-

cuit should not have been applied retroactively, and the

Court of Appeals’ decision in this regard should be re-

versed.

(a) The District Court Followed the 180-Day Rule in

Effect in the Ninth Circuit at the Time of the District

Court's Decision.

The District Court opinion in this matter was filed on

January 8, 1979. The District Court held that the statute

of limitations used in determining the actionable class

period should be computed by subtracting 180 days from

the filing of the initial EEOC complaint for the respective

black and female classes. In this holding, the District Court

followed the clear language of § 706(e) of Title VII (42

U.S.C. § 2000e-5(e)), which states in relevant part:

“A charge under this Section shall be filed within 180

days after the alleged unlawful employment practice

occurred . . . except that in the case of an unlawful

employment practice with respect to which the person

aggrieved has initially instituted proceedings with a

State or local agency with authority to grant or seek

relief from such practice . . such charge shall be filed

by or on behalf of the person aggrieved within 300

days after the alleged unlawful employment practice

occurred... .”

In Rodriguez v. Southern Pacific Transportation Co., 587

F.2d 980 (9th Cir. 1978), the Ninth Cireuit affirmed the

District Court's application of the 180-day limitations po-

riod to a Title VII action. The Ninth Circuit held:

“{I]n Olson v. Rembrandt Printing Co., 511 F.2d

1228, 1231-33 (8th Cir. 1975), the only circuit court to

address the issue had carefully explored the legisla-

tive history and policy of the statutes and had adopted

the position urged in this case by Gouthern Pacific. Ac-

cord, Wiltshire v. Standard Oil Co. of California, 447

F.Supp. 756 (N.D. Cal. 1978). The district court con-

cluded that the Eighth Circuit had stated the better

view in Olson and that there was no reason to set aside

judgment of dismissal. Because the district court's

interpretation of the statutory jurisdictional require-

ments had substantial support at the time of the denial

of the motion, we cannot say that it abused its discre-

tion in declining to set aside its judgment of dismissal.”

587 F.2d at 981.

Thus, not only did the District Court’s application of the

180-day rule have “substantial support at the time of [its

decision]”, but it followed the clear authority of the Ninth

Circuit in Rodriguez v. Southern Pacific Transportation Co.

In Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759

(9th Cir. 1980), decided over a year after the District

C.rt’s opinion in this action, the Ninth Circuit adopted

the 300-day rule. As will be demonstrated below, this rule

should not be applied retroactively to this case.

(b) The 300-Day Rule of Reed v. Lockheed Aircraft

Corp. Should Not Be Applied Retroactively te the

Present Case.

In Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107 (1971),

this Court set forth the criteria to be considered in deter-

mining the retroactive effect of a judicial decision:

1. The decision to be applied nonretroactively muct

establish a new principle of law, either by overrelins

clear past precedent on which litigants may have re-

lied, or by deciding an issue of first impression whose

resolution was not clearly foreshadowed.

2. The court must consider the prior history of the

rule in question, its purpose and effect, and whether

retroactive application will further or retard its opera-

tion.

3. The court must weigh the inequity imposed by

retroactive application, for [where a decision of this

Court could produce substantial inequitable results if

applied retroactively, there is ample basis in our cases

for avoiding the ‘injustice or hardship’ by a holding of

non-retroactivity.”

In Chevron, the Supreme Court held that its decision in

Rodrigue v. Aetna Casualty d Surety Co., 395 U.S. 352

(1971), holding that state statutes of limitations apply to

federal actions under the Outer Continental Shelf Lands

Act, should not be applied retroactively. This Court noted

that its decision in Rodrigue effectively overruled a long

line of Court of Appeals decisions, which for over a year

had represented the law of the case in the district court.

For these reasons, the Supreme Court in Chevron held that

its Rodrigue decision should not be applied retroactively.

When the Chevron factors are considered in the present

case, it is clear that the 300-day rule of Reed v. Lockheed

Aircraft Corp. should not be applied retroactively to this

ease. The first criterion of Chevron is met in this case.

At the time of the District Court opinion, the 180-day rule

was well established in the Ninth Circuit. Rodriguez v.

Southern Pacific Transportation Co., 587 F.2d 980 (9th

Cir. 1978); see also Kirk v. Rockwell International Corp.,

578 F.2d 814 (9th Cir. 1978), cert. denied 439 U.S. 1004

(1978) ; Lynn v. Western Gillette, Inc., 564 F.2d 1282 (9th

Cir. 1977). The 300-day rule had not been “clearly fore-

shadowed,” as required by Chevron, but in fact was a com-

plete reversal cf previous Ninth Cireuit law.

Second, the purpose of the 300-day rule will not be

furthered by applying it retroactively to a case such as

this. The rule, being one of limitations, is designed “to pro-

vide a predictable time period that strikes a fair balance

between a claimant’s right to a reasonable time within

which to commence litigation, and a defendant's right not

to be required to defend stale claims.” Wilishire v. Stand-

ard Oil Co., 652 F.2d 837, 841 (9th Cir. 1981). Not only

will the purpose of this rule not be furthered by retro-

active application, but its purpose would be thwarted if

Owens-Illinois were now required to defend against a new

set of charges occurring between eight and ten years

ago. (The classes of black and female employees would be

allowed to go back to November 7, 1970, and November 23,

1973, respectively, under the decision of the Court of Ap-

peals.)

Finally, the equities of this case require that this deci-

sion not be applied retroactively. The inequity to be done

by completely undoing an eight week trial, involving doz-

ens of witnesses, hundreds of exhibits, and thousands of

-

423 ithe 3

*

pages of transcript, would far outweigh the benefits of

retroactive application, which would simply add to the

classes of employees certified below persons employed at

the Owens-Illinois Oakland plant for an additional 120

days, none of whom ever even filed an EEOC charge com-

plaining of discrimination.

Thus, the decision of the Court of Appeals to apply the

300-day rule retroactively conflicts with this Court’s deci-

sion in Chevron Oil v. Huson, supra, which was most re-

cently approved in Northern Pipeline Construction Co. v.

Marathon Pipe Line Co., .... U.S. ..., 50 U.S. L. W. 4892 (June

28, 1982). A writ of certiorari should be issued to bring the

decision of the Court of Appeals into conformity with these

decisions.

CONCLUSION

For the foregoing reasons, Owens-Illinois respectfully

submits that a writ of certiorari should issue to review

the decision of the Court of Appeals.

Dated: September 9, 1982

Respectfully submitted,

Morcenstety, Lapp & JusELIRER

Marvin D. Morcenstrein

COUNSEL OF RECORD

Jerraey R. Wo11Ms

R. Jerraey Binn

Pat, Hastives, Jaxorsxr & Wann

Lord Surrer

*

PAE.