Opposition Brief — New York City Housing Authority v. Owens
Supreme Court brief1991
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QUESTIONS PRESENTED
1. Whether this Court should overlook prudential
concerns of efficiency and expediency and take jurisdiction over
this interlocutory appeal, when the disposition of the district
court after remand might render the appeal moot.
2. Whether the court of appeals properly reversed the
district court's holding that a state court ruling collaterally
estopped respondent from producing evidence on an element of her
prima facie case, when the issue ruled on by the state court was
not identical to the issue in respondent's prima facie case and
when New York State law would not have collaterally estopped
respondent from producing evidence on that issue.
3. Whether the court of appeals properly reversed the
district court's holding that the court had no jurisdiction over
respondent's claim of retaliation that had not been filed with
the Equal Employment Opportunity Commission ("EEOC"), when the
retaliatory act occurred explicitly in response to the filing of
the EEOC charges and the unfiled retaliation claim was reasonably
related to the previously filed charges of discrimination.
ii
PARTIES TO THE PROCEEDING
All the parties to this proceeding are set forth in the
caption.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED
PARTIES TO THE PROCEEDING
TABLE OF AUTHORITIES
OPINIONS BELOW
JURISDICTION
STATUTES INVOLVED
STATEMENT OF THE CASE
A. The Lower Court oe On The Merits
Of Owens' Claims eo © isl Se tehvete
1. The Age Discrimination Claim
2. The Retaliation Claim
B. The District Court's Second Opinion And
The Reversal By The Court Of Appeals
REASONS FOR DENYING THE WRIT
I. THE INTERLOCUTORY COURT OF APPEALS DECISION
IS NOT YET RIPE FOR REVIEW BY THIS COURT
II. THE COURT OF APPEALS PROPERLY DETERMINED
THAT OWENS WAS NOT COLLATERALLY ESTOPPED
FROM PRESENTING A PRIMA FACIE CASE OF AGE
DISCRIMINATION, AND NO SPECIAL CIRCUMSTANCES
JUSTIFY FURTHER REVIEW BY THIS COURT .
A. The Court of Appeals Correctly Held
That Plaintiff Was Not Collaterally
Estopped From Proving That She Was
Qualified For The Position From Which
She Was Terminated ......
B. The Standard Applied By The Court Of
Appeals In Determining That Owens Was
Not Collaterally Estopped From Proving
The Prima Facie Element Of Qualification
Is Consistent With The Test Of Other
Peeeeee se a aa el ss we ele 6) ees
10
13
13
19
iv
Cc. The Test For Qualification That The
Housing Authority Would Have This
Court Adopt Is Contrary To The Well-
Established Precedent Of This Court. .
III. THE COURT OF APPEALS PROPERLY DETERMINED
THAT THE DISTRICT COURT ERRED IN FAILING TO
FIND JURISDICTION OVER OWENS' CLAIM OF
RETALIATION WHICH WAS REASONABLY RELATED TO
HER EEOC CHARGES OF DISCRIMINATION ... .
ee Si be a a a a
21
25
37
TABLE OF AUTHORITIES
STATUTES
28 U.S.C. § 1254(1)
29 U.S.C. § 623(d)
a9 U.S.C. § 622 OS OOM. « «+ e we oe we te ee le
42 U.S.C. § 2003e-3
N.Y. Civ. Prac. L. & R. § 7308(3)-(4)
(McKinney 1981) ae a ee ee
CASES
Aronberg v. Walters, 755 F.2d 1114
(4th Cir. 1985) ones
Baker v. Buckeye Cellulose Corp.,
856 F.2d 167 (11th Cir. 1988)
Board of Educ. of the Manhassett Union Free
School Dist. v. New York State Human
Rights Appeal Bd., 106 A.D.2d 364,
482 N.Y.S.2d 495 (2d Dep't 1984)
Brotherhood of Locomotive Firemen & Enginemen
v. Bangor & Aroostook R.R. Co., 389 U.S.
327 (1967) ey rataes vate tee etlt
Brown v. Hartshorne Public School Dist. #1,
864 F.2d 680 (10th Cir. 1988)
Brown v. Parker-Hannifin Corp.,
746 F.2d 1407 (10th Cir. 1984)
Christianson v. Colt Indus. Operative Corp.,
2% SS 2s. | rarer eee
D'Arata v. New York Cent. Mut. Fire Ins. Co.,
76 N.Y.2d 659, 564 N.E.2d 634,
S62-H. 9.0520 84 C2008) 6 ct kw 4 lt ee
Danielson v. City of Lorain, No. 90-3666,
1991 U.S. App. Lexis 15252 (6th Cir.
i aes Wee sa a? of a, ee ee at eee: es
32
28,
17
11
ai,
24
12
14,
24
32
31
15
vi
DeCintio v. Westchester County Medical Ctr.,
821 F.2d 111 (2d Cir.), cert. denied,
464 U.8. 965 (2987) «© «© e+ es ee eee wesee
Delgado v. Lockheed-Georgia Co.,
S25 7.26 644 (220R Cig. 1967) . «© «© « © © 2 fe
spi ni tates si
379 GU... BOS CEPGRP' ss «© ow ew we ee we we eee
Goodman v. Heublein, Inc., 645 F.2d 127
(2d Cir. 1981) a Ae ae ee ae ee we oe
Gupta v. East Texas State Univ.,
Te Se Pie eo ae a ee ee
Halsell v. Kimberly-Clark Corp.,
683 F.2d 285 (8th Cir. 1982),
cert. denied, 459 U.S. 1205 (1983) .... .
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,
240 U.Bs San €2Paes « 6 ew ee ew ee we wee ee
Hill v. Coca Cola Bottling Co.,
786 ¥.20 560 (26 Cie. 1966) . + + ee ee
International Bhd. of Teamsters v. United States,
yw AR Sr 2 a eer
Jalil v. Avdel Corp., 873 F.2d 701
(3d Cir. 1989), cert. denied,
U.S. ~ Bee Oe CEs Fae {3990} « «© «© we wo
King v. Seaboard Coast Line R.R. Co.,
538 F.2d 581 (4th Cir. 1976) oe a ee ee ee ee
Kirkland v. Buffalo Bd. o duc.,
G42 7.0m bees toe Cats BOBO) wt ttt
Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. G@e (2949) «© « we we eevee ee ee @
Loe v. Heckler, 768 F.2d 409 (D.C. 1985) ... .
Loeb v. Textron, 600 F.2d 1003 (lst Cir. 1979) .
Love v. Pullman Co., 404 U.S. 522 (1972) 0° «
Lovelace v. Sherwin-Williams Co.,
681 F.2d 230 (4th Cir. 1982),
cert. denied, 459 U.S. 1205 (1983) ..... .
17
19
29, 31
23
11
17, i9
18, 19,
23
vii
arrese v. American Academy of Orthopaedic
puree, 470 Usb: 275 teenth hl hl hl hl hl hl 14
McDonnell Douglas Corp. v. Green,
ee Pe ee a ea ae ee ee ee ee
ina- oz v. R.J. Reynolds Tobacco Co.,
S96 7.26 5 (300 Cile Beeee 2 6 se ee we th ee th tl «CU
Meiri v. Dacon, 759 F.2d 989 (2d Cir.),
cert. denied, 474 U.S. 829 (1985) . . ..-«-e«ee- gas a8
Michael v. United States,
454 0.8. S80 (Coens see a es ee ee ee! CU
Mlinaric v. Parker Hannifin Corp.,
No. 87-3112, 1988 U.S. App. Lexis
10694 (6th Cir. filed Aug. 5, 1988) ........ 28, 33
Montana v. First Fed. Sav. & Loan Ass'n,
S69 F.2G 106 (26 Civic pee ee ele ea 6 + se es 14
Oubichon v. North American Rockwell Corp.,
482 F.26 S69 (Oth City sere bees «see sO, 3S
Owens v. New York City Housing Authority,
934 7.24 405 (36 Cat. see wees & «sw 2 es passim
Owens v. New York City Housing Authority,
No. 84 Civ. 4932, slip. op.
(S.D.N.¥. April 33, 2000) aoe wow eee ee ee tl!) 6h
Owens v. New York City Housing Authority,
No. 84 Civ. 4932, slip. op.
($.D.N.¥. July Ji, 2987) ae ee ee ese th etl lt ltl lh
Oxman v. WLS-TV,
$46 F.2d 448 (7th Cie. 1006) 2.5 eb ot te te 6
Schwartz v. Public Adm'r, 24 N.Y.2d 65,
246 N.E.2d 725, 298 N.¥.S.2d 955 (1969) .....-s 14
Sherman v. Standard Rate Data Serv., Inc.,
709 F. Supp. 1433 (8.0. 2eee Beee 6 «ee et hl hl e!€CUD
State Div. of Human Rights v. Syracuse,
57 A.D.2d 452, 394 N.Y.S.2d 948
(4th Dep't 1977), aff'd men.,
43 N.Y.2d 958, 375 N.E.2d 409,
404 N.Y¥.8.2G 343 (O0PR es eee ee se we ee oe «62
viii
Steffen v. Meridian Life Ins. Co.,
859 F.2d 534 (7th Cir.
cert. denied, 491 U.S.
Stewart v. United States Immigration and
1988),
907 (1989)
Naturalization Serv., 762 F.2d 193
(2d cir. 1985) . . . . . . : . . . . . . _ .
Texas Dep't of Community Affairs v. Burdine,
Se ee. See ee cas es se ee ke we 8
United St s v. General Motors Co
323 U.S.
Urie v. Thompson,
373 (1945)
Waiters v. Parsons,
Walters v.
337 U.S. 163 (1949
)
College,
Washington v. Washington State Commercial
Passenger Fishing Vessel Ass'n,
616 F. Supp.
729 F.2d 233 (3d Cir. 1984)
President & Fellows of Harvard
471 (D. Mass. 1985) . .
443 U.S.
658 (1979) esos
Wentz v. Maryland Casualty Co.,
(8th Cir.
Wilkins v.
1989)
Eaton Corp.,
(6th Cir.
1986) ..
790 F.2d 515
Zipes v. Trans World Airlines, Inc.,
455 U.S.
385 (1982)
869 F.2d 1153
27,
32
23;
11
12
27,
26,
12
23
34
32
15,
32,
28,
31
22
36
32
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1991
No. 91-498
NEW YORK CITY HOUSING AUTHORITY, HENRY
BRESKY, JOHN ARAKEL, LEO LIEBERMAN, LARRY
LEFKOWITZ, CYRIL GROSSMAN and RITA COSS,
Petitioners,
Vv.
CATHERINE OWENS,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
RESPONDENT CATHERINE OWENS'
BRIEF IN OPPOSITION
Respondent Catherine Owens ("Owens") opposes granting
the Petition of the New York City Housing Authority (the "Housing
Authority") for writ of certiorari seeking review of the judgment
of the United States Court of Appeals for the Second Circuit
entered in this case.
OPINIONS BELOW
The opinion of the Court of Appeals for the Second
Circuit (Walker, J., joined by Oakes and Wexler, JJ.) is reported
at 934 F.2d 405. Citations to the district court's opinions and
2
the New York Supreme Court's decision are set forth in the
Petition.
JURISDICTION
Discretionary jurisdiction of this Court to review the
interlocutory judgment of the United States Court of Appeals for
the Second Circuit entered on May 21, 1991, rests on 28 U.S.C.
§ 1254(1).
STATUTES INVOLVED
In addition to the statutes cited in the Petition, the
following statutes are cited herein:
29 U.S.C. § 623(d) states:
It shall be unlawful for an employer to discriminate
against any of his employees .. . because such
individual, member or applicant for membership has
opposed any practice made unlawful by this section, or
because such individual, member or applicant for
membership has made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or litigation under this chapter.
42 U.S.C. § 2003e-3 states:
(a) It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
because he has opposed any practice made an
unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under this subchapter.
N.Y. Civ. Prac. L. & R. § 7803(3)-(4) (McKinney 1981)
states:
The only questions that may be raised in a proceeding
under this article are:
* * *
2; whether a determination was made in violation of
lawful procedure, was affected by an error of law or
was arbitrary and capricious or an abuse of discretion,
3
including abuse of discretion, including apuse of
discretion as to the measure or mode of penalty or
discipline imposed; or
4. whether a determination made as a result of a
hearing held, and at which evidence was taken, pursuant
to direction by law is, on the entire record, supported
by substantial evidence.
STATEMENT OF THE CASE
This is an age discrimination case brought by Catherine
Owens, who at the age of 54 was fired from her job at the New
York Housing Authority and replaced with a much younger person.
When Ms. Owens filed her discrimination complaint with the Equal
Employment Opportunity Commission ("EEOC"), petitioners
retaliated against her by breaking off settlement negotiations
over charges that had been brought against her, charges that Ms.
Owens claimed were motivated by discriminatory animus. The
district court has held that Ms. Owens raised genuine factual
issues precluding summary judgment on the merits, but dismissed
her complaint on procedural grounds. The Second Circuit
subsequently reversed, and that reversal is the subject of this
appeal.'
' Owens for her narrative Statement of the Case adopts by
reference the statement of facts in the opinion below, Owens
v._New York City Housing Authority, 934 F.2d 405, 406-08 (2d
Cir. 1991) ("Owens III"), Petition at A2-A6, and the
statement of facts in the district court opinion, Owens v.
New York City Housing Authority, No. 84 Civ. 4932, slip. op.
at 1-4 (S.D.N.Y. July 31, 1987) ("Owens I"), Petition at
A25-A27. Respondent further corrects the inaccuracies and
omissions in the Petition concerning the holdings and
results in the district court and in the court of appeals
decisions below.
4
The issues in the Petition are not ripe for review by
this Court. Owens instituted these proceedings pro se by filing
a complaint through the pro se clerk of the United States
District Court of the Southern District of New York on July 6,
1984. Present counsel was appointed from the Southern
District's pro bono panel on February 4, 1985. Petitioners'
first motion for summary judgment was denied in its entirety in
1987. Owens I, slip. op. at 15, Petition at A35. Petitioners’
second motion for summary judgment was granted and respondent's
case was dismissed in Qwens v. New York City Housing Authority,
No. 84 Civ. 4932, slip op. at 14 (S.D.N.Y¥. April 23, 1990)
("Owens II"), Petition at A24. The United States Court of
Appeals for the Second Circuit reversed the district court and
remanded for further proceedings not inconsistent with the
court's decision. Owens III, 934 F.2d at 411, Petition at Al2.
A. The Lower Court Holdings On The Merits Of Owens' Claims
Owens' complaint asserts two claims: (1) that
petitioners engaged in discriminatory treatment leading to
respondent's termination in violation of the Age Discrimination
in Employment Act, 29 U.S.C. § 621 et seg. ("ADEA"), and
(2) that petitioners engaged in employment actions against her in
retaliation for her filing of a complaint with the EEOC, in
violation of ADEA, 29 U.S.C. § 623(d), and of Title VII, 42
U.S.C. § 2000e-3(a).* Owens I, slip op. at 1, Petition at A25.
. Owens' complaint originally asserted additional claims under
Title VII that were dropped after the first round of
(continued...)
5
Petitioners first moved to dismiss Owens' complaint for failure
to state a claim and because she was barred by the doctrine of
res judicata from pursuing her age discrimination claim. The
motion was denied in its entirety by the district court in Qwens
I. Qwens I, slip op. at 15, Petition at A35.
1. The Age Discrimination Claim
With respect to the age discrimination claim, the
district court held that Owens had presented sufficient evidence
to preclude summary judgment over the issue of Owens’
qualification for her job, the only disputed element in Owens'
prima facie case under the test enunciated by this Court in
uglas Corp. v. » 411 U.S. 792 (1973).
Petitioners relied on the substance of disciplinary charges that
had been lodged against Owens on June 14, 1983, and which were
the basis of the administrative hearing decision which led to
Owens' discharge from the Housing Authority. The district court
held that the charges did not demonstrate that Owens was
unqualified for purposes of her prima facie showing under
McDonnell Douglas, because the charges primarily related to
misconduct, rather than competence, and such charges of
misconduct were suspect because lodged by her supervisors,
2(...continued)
discovery and prior to the first motion for summary
judgment. Owens I, slip op. at 1, Petition at A25. Because
the retaliatory action of the Housing Authority had been
directed at Owens' EEOC claims under both Title VII and
ADEA, her retaliation claim under Title VII continues even
though the underlying Title VII claims were volun rily
withdrawn by Owens. See id.
6
petitioners John Arakel and Lawrence Lefkowitz, the very persons
who had discriminated against Owens and who had made disparaging
remarks about Owens' age and "entry into menqpause." See Owens
III, 934 F.2d at 408, 410, Petition at A5, A9.°
Further, both the district court and the court of
appeals explicitly found that Owens had successfully called into
question the legitimacy of those disciplinary charges by
challenging her supervisors' motivation for lodging the charges
against her. Owens III, 934 F.2d at 410, Petition at AQ.
2. The Retaliation Claim
Despite a long record of complaints about her
supervisors to a mediation agency, Housing Authority
a@ministrators and the internal office of equal employment
opportunity, disciplinary charges were lodged against Owens on
June 14, 1983. Two weeks later, on June 27, 1983, Owens pro se
filed charges of discrimination with the EEOC. At the heart of
her EEOC complaint was the claim that the disciplinary charges
lodged against Owens by the Housing Authority were motivated by
the discriminatory intentions of her supervisors. The EEOC
charges did not include a claim of retaliation. Petition at A87-
A8s.
; In holding that Owens had made a prima facie showing of
qualification, the district court relied on evidence that
Owens had performed satisfactorily throughout her six year
tenure as a Housing Assistant for the Housing Authority
except for period when she was under the supervision of
petitioners Arakel and Lefkowitz. Owens I, slip op. at 8,
Petition at A30.
+
When the Housing Authority learned that Owens had filed
an EEOC complaint, the attorney for the Housing Authority
retaliated against Owens: As described by the district court:
Moreover, Owens offers direct evidence that the Housing
Authority decided not to offer her a plea bargain
hecause she filed the charges with the EEOC. Michael
Shen, who represented Owens at the disciplinary
hearing, swears that he met with the Housing Authority
attorney Jerome Weisberger in August, 1983 to discuss a
plea bargain that presumably would have preserved
Owens' job. At a second meeting later that month,
however, Weisberger "stated that because Owens had
filed charges with the [EEOC] against the Housing
Authority, plea bargaining was no longer a
possibility."
Owens I, slip op. at 6, Petition at A29 (citation omitted).
B. The District Court's Second Opinion And
he Reversal B he Court a
The court of appeals reversed the district court's
holding that Owens was precluded by a state court decision
confirming a finding of misconduct by a Housing Authority
administrative officer. The court of appeals held that there was
no identity of issue -- a requirement for the application of the
issue preclusion doctrine -- between the state court issue of
misconduct and the issue of job qualification under the McDonnell
Douglas prima facie case test.
We have no doubt that such misconduct may certainly
provide a legitimate and non-discriminatory reason to
terminate an employee. This misconduct is distinct,
however, from the issue of minimal qualification to
perform a job. An individual may well have the ability
to perform job duties, even if her conduct on the job
is inappropriate or offensive.
8
Qwens III, 934 F.2d at 409, Petition at A7-A8.‘
The district court also held in Qwens II that it could
not hear the retaliation claim because Owens had not filed it
with the EEOC and it was not related to her EEOC complaint. In
making this determination, the district court failed to properly
apply the reasonable relationship test established by the Second
Circuit in Kirkland v. Buffalo Board of Education, 622 F.2d 1066
(2d Cir. 1980) (per curiam); Petition at A20-A23. Moreover, the
district court failed even to consider the controlling precedent
of Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 198i),
wherein the Second Circuit had "held that plaintiff's claim that
he was transferred out of the country in retaliation for his EEOC
complaint alleging age discrimination in the failure to promote
him was ‘reasonably related' to the complaint." Qwens III, 934
F.2d at 411, Petition at All (citation omitted). The reversal of
the district court on this point required little comment by the
court of appeals.
REASONS FOR DENYING THE WRIT
The court of appeals correctly reversed the erroneous
decision of the district court on all grounds and remanded the
case for further proceedings on respondent's claims of age
. In making this determination, the court of appeals relied on
the district court holding that Owens had made a prima facie
showing of qualification. This conclusion was based on the
evaluations of Owens' work during her four years at the
Housing Authority when she was not under the supervision of
"Arakel and Lefkowitz, whose relationships with Owens was
admittedly poor." Owens III, 934 F.2d at 408, 410, Petition
at A5, AQ.
9
discrimination and retaliation. This interlocutory judgment of
the court of appeals is not ripe for review by this Court, may be
rendered moot by the disposition of the district court on remand,
and presents no extraordinary reason for this Court to ignore
prudential concerns of economy and efficiency which militate
against granting certiorari to review an interlocutory judgment.
In the first place, the court of appeals' decision that
the lower court erred in holding that respondent was collaterally
estopped from proving her prima facie case of age discrimination
is consonant with the other courts of appeals that have reviewed
this issue. Petitioners nevertheless argue that a summary
affirmance by a state court of an administrative decision of
misconduct should preclude respondent from proffering evidence
necessary to state a prima facie claim of discrimination under
the test established in McDonnell Douglas Corp v. Green, 411 U.S.
792 (1973). This argument is unworthy of review, since 1) the
issue of respondent's misconduct for disciplinary reasons was not
identical to the issue of prima facie qualification for her job
under McDonnell Douglas, and 2) New York state courts would not
preclude respondent from pressing her age discrimination claim in
another New York state court proceeding. Moreover, petitioners'
argument is contrary to numerous prior decisions of this Court,
for it is based on a mischaracterization of the requirements for
a prima facie showing of "qualification" which, if adopted by
this Court, would eviscerate this Court's decisions in McDonnell
Douglas and its progeny.
10
In the second place, the court of appeals correctly
determined that the district court erred in refusing to find
jurisdiction over respondent's retaliation claim arising out of
actions taken directly in response to respondent's filing of her
complaint with the EEOC. Although the retaliation claim, which
arose after respondent's original EEOC filing, was never
separately filed with the EEOC, the court of appeals properly
held that the claim was reasonably related to respondent's
original EEOC filing and thus came within the jurisdiction of the
district court. The court of appeals' reversal was based on the
choice and application of the “reasonable relationship" standard,
a standard that is consonant if not identical to the standards
applied in every other circuit in the country. Petitioners'
mischaracterization of the standard applied by the court of
appeals as the rule that an “unfiled retaliation claim, as a
matter of law, may [sic] be a part of the plaintiff's judicial
complaint," Petition at 20, is at odds with the language and
reasoning of the court of appeals' decision.
POINT I
THE INTERLOCUTORY COURT OF APPEALS DECISION
IS NOT YET RIPE FOR REVIEW BY THIS COURT
The court of appeals has reversed and remanded the case
at bar for further proceedings by the district court.
Petitioners seek certiorari to review an interlocutory order.
This Court, as a matter of efficiency and expediency, has
traditionally refused to hear cases of an interlocutory nature,
11
declaring that the "fact [of the interlocutory nature of the
decision below] itself alone furnished sufficient ground for the
denial of the application." Hamilton-Brown Shoe Co. v. Wolf
Bros. & fo... 240 U.S. 251, 258 (1916). Accordingly, this Court
has held that because "the Court of Appeals remanded the case, it
is not yet ripe for review by this Court." Brotherhood of
Locomotive Firemen & Enginemen v. Bangor & Aroostook R.R. Co.,
389 U.S. 327, 328 (1967). Only in cases where the decision of
the Court has a fundamental effect on the standards that will be
applied in the review of the merits of the case has certiorari
been granted to non-final decisions. Michael v. United States,
454 U.S. 950 (1981) (appeal of interlocutory order dismissed) ;
see United States v. General Motors Corp., 323 U.S. 373, 377
(1945) (interpretation of constitutional provision fundamental to
determination below on merits); Larson v. Domestic and Foreign
Commerce Corp., 337 U.S. 682, 685 n.3 (1949) (determination of
jurisdictional question dependent on outcome of merits).
The present case is neither ripe for review nor is its
furtherance dependent on the resolution of the issues asserted in
the Petition. Neither of the Second Circuit's determinations
will fundamentally affect the district court's review of the
merits of Owens' claims.
Moreover, if the district court does proceed to the
merits and a final judgment unfavorable to petitioners is issued
and affirmed, petitioners may at that time seek review from this
Court. Petitioners are in no way harmed by a denial of the
12
Petition because such a denial is without prejudice and, assuming
the issues are properly preserved, renewal of the questions
presented at a later and more appropriate stage of the
proceedings is always available to petitioners. See Christianson
v. Colt Indus. Operative Corp., 486 U.S. 800, 817 (1988)
(petition for writ of certiorari exposes entire case to review) ;
Urie v. Thompson, 337 U.S. 163, 172-73 (1949); Washington v.
Washington State Commercial Passenger Fishing Vessel Ass'n, 443
U.S. 658, 672 n.19 (1979).
As this Court has stated, the most important competing
considerations when determining whether a court of appeals should
review a non-final decision under 28 U.S.C. § 1291 are "'the
inconvenience and costs of piecemeal review on the one hand and
the danger of denying justice by delay on the other.'" Gillespie
v. United States Steel Corp., 379 U.S. 148, 152-53 (1964)
(citation omitted). In the case at bar, review by this Court at
this time serves neither consideration. The cost and
inconvenience of allowing petitioners to obtain review of such
preliminary matters places a heavy burden on the Title VII/ADEA
grievant before the Court. Indeed, allowing review at this
preliminary stage only adds to the enormous delay already borne
by Owens who has been forced to wait over seven years for an
adjudication of her claims on the merits. Since the opportunity
for review by this Court can be preserved by petitioners, there
is no danger of denying justice to them by a denial of the writ
on this Petition.
13
POINT II
THE COURT OF APPEALS PROPERLY DETERMINED THAT OWENS
WAS NOT COLLATERALLY ESTOPPED FROM PRESENTING A
PRIMA FACIE CASE OF AGE DISCRIMINATION, AND NO SPECIAL
CIRCUMSTANCES JUSTIFY FURTHER REVIEW BY THIS COURT
The court of appeals was correct in reversing the
district court's decision that Owens was not collaterally
estopped from satisfying her prima facie burden of demonstrating
her qualification for the position from which she was dismissed.
In reaching this holding, the covrt of appeals applied the
correct legal standards, both with respect to New York's
collateral estoppel doctrine and with respect to the appropriate
standard for showing qualification.
Contrary to petitioners' assertions, the court of
appeals more than adequately addressed the issue of what factors
disqualify an incumbent employee from continued employment. In
addition, the standard for determining qualification applied by
the court of appeals is consistent with the “employer's
reasonable expectations" test applied both by other circuits and
by the Second Circuit in prior decisions. Moreover, the standard
petitioners propose, in order to preclude Owens from the
opportunity to prove her case, is unsupported even by the cases
cited in the Petition and is contrary to the well-established
teachings of this Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), and Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 252 (1981).
A. The Court Of Appeals Correctly Held That Plaintiff Was Not
Collaterally Estopped From Proving That She Was Qualified
For The Position From Which She Was Terminated
14
In reaching its decision on Owens' ADEA claim, the
court of appeals applied the correct legal standards, both with
respect to New York's collateral estoppel doctrine and with
respect to the meaning of qualification under that test, and no
special circumstances are present which justify further review by
this Court. The issue before the court of appeals was limited to
the correctness of the district court's decision that Owens was
collaterally estopped from presenting a prima facie case of age
discrimination under the McDonnell Douglas test.? wens .
934 F.2d at 408; Petition at A6é (Housing Authority's cross-appeal
on merits of prima facie showing deemed abandoned).
New York State law auetermines the issue preclusive
effect of the prior state judgment on Owens' ADEA claim. Marrese
v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 381
(1985). New York law requires that the issue presented in the
later action be identical to the issue decided in the earlier
adjudication, and resolution of the issue must have been
necessary. In addition, there must have been "a full and fair
opportunity to contest the decision now said to be controlling."
Schwartz v. Public Adm'r, 24 N.Y.2d 65, 71, 246 N.E.2d 725, 729,
298 N.Y.S.2d 955, 960 (1969); see also D'Arata v. New York Cent.
Mut. Fire Ins. Co., 76 N.Y.2d 659, 665-66, 564 N.E.2d 634, 638,
563 N.Y.S.2d 24, 28 (1990).
’ The McDonnell Douglas test is regularly applied to ADEA
actions. See, e.g., Montana v. First Fed. Sav. & Loan
Ass'n, 869 F.2d 100, 103 (2d Cir. 1989).
15
McDonnejl Douglas requires a plaintiff alleging
discriminatory termination to satisfy an initial prima facie
burden by showing that (1) she is within the protected class; (2)
she is qualified for the position; (3) she has been terminated
from her job; and (4) that a younger individual has replaced
her.® Id. The burden of establishing a prima facie case of
discrimination, which constitutes only the first stage of the
three-stage McDonnell Douglas test, "is not onerous." Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981).’
Petitioners argued to the court of appeals, as they do
to this Court, that the state court confirmation of a Housing
Authority administrators' finding of misconduct precludes
respondent from establishing her prima facie qualification and
A minimal showing of qualification is required by the
McDonnell Douglas test, but the McDonnell Douglas
requirements may not be necessary where there is direct
evidence of discrimination. See, e.g., International Bhd.
of Teamsters v. United States, 431 U.S. 324, 358 (1977)
("importance of McDonnell Douglas lies, not in its
specification of the discrete elements of proof there
required, but in its recognition of the general principle
that any Title VII plaintiff must carry the initial burden
of offering evidence adequate to create an inference that an
emplsyment decision was based on a discriminatory criterion
illegal under the Act"). Respondent argued that she had
preser* da sufficient direct evidence to the court of
appeals, which did not need to reach the issue since it
overturned the lower court's collateral estoppel holding.
Owens III, 934 F.2d at 409, Petition at A8.
The ease with which a plaintiff may demonstrate a prima
facie case ought not to be confused with plaintiff's
ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against plaintiff.
This burden remains at all times with the plaintiff. See
infra pp. 22-23.
16
bars her from introducing other evidence of qualification. The
court of appeals correctly rejected this argument, holding that
the issue of misconduct before the state court which reviewed
Owens' disciplinary hearing "was not the same as the one said to
be precluded -- job qualification." OQwens III, 934 F.2d at 409,
Petition at A7. While it recognized that one of the fourteen
disciplinary charges at the disciplinary hearing concerned
competence, the court of appeals noted that "the finding of
incompetence was clearly not necessary to the hearing officer's
conclusion that discharge was an appropriate sanction," and thus
was "without preclusive effect." Owens III, 934 F.2d at 409 n.2,
Petition at A8 n.2. The court of appeals also noted that the
state court did not mention the competence charge; rather, it
upheld the discharge on the grounds of "misconduct" and "gross
insubordination." Owens JII, 934 F.2d at 409, Petition at A7-A8.
The court of appeals determined that the state court could not
have, and in fact did not, pass on Owens' competence to perform
her work and that the state court had made no findings as to .
whether Owens' was qualified for her position.®
o
Article 78 of the New York Civil Practice Law and Rules, the
statute pursuant to which the state court reviewed the
disciplinary hearing, strictly limited that court's standard
of review of Owens' administrative proceeding to issues of
whether the administrative determination was made in
violation of lawful procedure, was arbitrary or capricious
or an abuse of discretion, or was not supported by
substantial evidence. N.Y. Civ. Prac. L. & R. § 7803(3)-
(4) (McKinney 1981). Owens III, 934 F.2d at 410, Petition
at A9-Al10.
ee
17
In making its determination, the court of appeals
correctly applied well-established New York law in holding that
Owens was not collaterally estopped from proving her prima facie
Claim of discrimination. Courts applying New York law invariably
have held that a state court affirmance of an administrative
a findings of employee misconduct is not sufficient to
preclude an employee from filing an action on a discrimination
Claim. Hill v. Coca Cola Bottling Co., 786 F.2d 550, 554 (2d
Cir. 1986) (New York courts would not preclude district court
Title VII action even where state court affirmed misconduct
determination of unemployment review board which had
discrimination claim before it); DeCintio v. Westchester County
Medical Ctr., 821 F.2d 111, 116 n.8 (2d Cir.), cert. denied, 484
U.S. 965 (1987) (Title VII claim not precluded despite finding
pursuant to Section 75 hearing of misconduct and incompetence) ;
State Div. of Human Rights v. Syracuse, 57 A.D.2d 452, 394
N.Y.S.2d 948 (4th Dep't 1977), aff'd mem., 43 N.Y.2d 958, 375
N.E.2d 409, 404 N.Y.S.2d 343 (1978) (permitting appeal from
determination of State Human Rights Appeal Board even though
complainant had lost previous state court challenge to results of
disciplinary hearing); Board of Educ. of the Manhasset Union Free
School Dist. v. New York State Human Rights Appeal Bd., 106
A.D.2d 364, 366, 482 N.Y.S.2d 495, 49° (2d Dep't 1984) (since
“full and fair opportunity to litigate racial slur allegation
- « was not afforded complainant . . . neither [the doctrines
of} res judicata nor collateral estoppel" should be applied).
18
As the court of appeals recognized, Owens' misconduct
may provide a legitimate and non-discriminatory reason to
terminate an employee. This misconduct is distinct, however,
from the issue of prima facie qualification to perform a job.
"An individual may well have the ability to perform job duties,
even if her conduct on the job is inappropriate or offensive.
Accordingly, the finding of misconduct here cannot preclude Owens
from showing her qualific.tion for employment as required by
McDonnell Douglas." Qwens III, 934 F.2d at 409, Petition at A8.
Accordingly, the state court determination did not preclude
respondent from making out her prima facie case on claim
preclusion grounds.
The Petition fails to cite any cases holding that a
plaintiff may be collaterally estopped by a determination of
misconduct outside the forum of a discrimination action. Indeed,
the case law is to the contrary. The Third Circuit's decision in
Jalil v. Avdel Corp., 873 F.2d 701 (3d Cir. 1989), cert. denied,
__ U.S. __, 110 S. Ct. 725 (1990), is factually identical to the
case at bar, and congruent with the Second Circuit's holding.
Jalil involved a plaintiff, who, like Owens, was fired for "gross
insubordination" and unsuccessfully challenged his discharge
before an arbitrator, who found in favor of the employer. A New
Jersey court affirmed the arbitrator's decision. Plaintiff
subsequently brought suit in federal court, and appealed his
dismissal on the grounds of collateral estoppel. Applying the
same reasoning as the court of appeals, the Third Circuit
19
reversed, holding that a state court summary affirmance of an
administrative finding of "gross insubordination" did not
collaterally estop plaintiff from proving qualification. Id. at
707. Accordingly, no novel issue is raised by the Second
Circuit's holding on issue preclusion, and the writ should not be
granted with respect to it.’
B. The Standard Applied By The Court Of Appeals In Determining
That Owens Was Not Collaterally Estopped From Proving The
Prima Facie Element Of Qualification Is Consistent With The
Test Of Other Circuits
The court of appeals used the correct standard of
"qualification" to determine that Owens was not estopped from
meeting her prima facie burden of showing same. There is in fact
no conflict between the decision of the court of appeals below
and the test applied by the various circuits cited in the
Petition.
Petitioners rely principally on Loeb v. Textron, 600
F.2d 1003 (lst Cir. 1979), and the other cases which stand for
the proposition that an employee's performance on the job should
’ Since the lack of identity of issues was dispositive in
Owens' case, the court of appeals did not need to consider
the issue of whether Owens had a full and fair opportunity
to contest the issue of qualification in her Article 78
proceeding. Nonetheless, this is an alternative ground for
rejecting petitioners' contentions which affords this Court
another reason to deny the Petition. See, e.g., Hill v.
Coca Cola Bottling Co., 786 F.2d 550 (2d Cir. 1986), holding
it "unfair to penalize [a Title VII plaintiff) .. . for
employing [New York] state [Article 78]
procedures .. . (which) barely touched on [plaintiff's]
discrimination claim." Similarly, see Delgado v. Lockheed-
Georgia Co., 815 F.2d 641, 647 (11th Cir. 1987) (due to
narrow focus of agency investigation, issue preclusion does
not apply because plaintiffs did not have an adequate
opportunity to litigate age discrimination claim).
ee
20
be reviewed in deciding whether an employee has established her
qualification for purposes of satisfying the McDonnell Douglas
test in cases involving discharge, as opposed to hiring,
decisions. Notwithstanding petitioners' assertions to the
contrary, the court of appeals, and the district court in
rejecting petitioners' first motion for summary judgment on this
very issue, did in fact consider Owens' on-the-job performance,
and not just the basic skills that qualified her to be hired in
the first place. 7
The district court squarely addressed the issue of
qualification in Owens I and found that Owens had made a
satisfactory showing of qualification as part of her prima facie
case. Qwens I, slip op. at 7-10, Petition at A29-A32. This
finding was based not only on Owens' demonstration that she had
the “basic skills" which initially qualified her for the
decision, but also on a careful consideration of the skills Owens
exhibited during her six year work record as a Housing Assistant
for the Authority. Owens I, slip op. at 1-4, Petition at A25-
A27. the court of appeals rélied upon the district court's prior
factual determinations that Owens had satisfied her prima facie
burden of demonstrating qualification:
We note that in the first opinion denying summary
judgment, the district court ruled that by presenting
evidence of "competence," Owens had succeeded in
raising a genuine issue as to her qualification for the
job. The district court denied summary judgment to
defendants on that basis. The conclusion was based on
evaluations of Owens' work by individuals other than
Arakel and Lefkowitz, whose relationship with Owens was
admittedly poor.
21
Qwens III, 934 F.2d at 409, Petition at A8. Contrary to
petitioners' assertion, the test for qualification applied by the
Second Circuit does not conflict with other circuits. Rather,
the appropriate legal standard was followed and correctly applied
in Owens.’
c. The Test For Qualification That The Housing Authority Would
Have This Court Adopt Is Contrary To The Well-Established
Precedent Of This Court
Petitioners fundamentally misunderstand the burden-
shifting framework erected in McDonnell Douglas by failing to
recognize and distinguish among the three different stages of
proof under the McDonnell Douglas test. In the decisions below,
both the district court and court of appeals have found on the
merits that respondent has stated a prima facie case and raised a
genuine issue of fact concerning pretext. Owens I, slip op. at
9-10, Petition at A31-A32; Owens III, 934 F.2d at 409-10,
Petition at A7-A9. In order to avoid the import of these
essentially unreviewable factual findings, petitioners have
contrived a test pursuant to which petitioners, through
allegations of misconduct, can at the prima facie stage of
se Indeed, the court of appeals incorporated the standard for
qualification used by the district court, which relied upon
Meiri v. Dacon, 759 F.2d 989 (2d Cir.), cert. denied, 474
U.S. 829 (1985). Owens I, slip op. at 8, Petition at A30
It is not surprising that the Second Circuit followed
Meiri, its own previous holding, in Qwens III. What is
surprising is that the Petition admits that Meiri states
the correct rule but denies that the court of appeals
applied Meiri in this case. Petition at 15-16. The
decision below does not support petitioners' contention
that the Second Circuit failed to follow its own precedent.
22
McDonnell Douglas preciude respondent from introducing any
evidence to support her prima facie case. The effect of this
maneuver is to forever preclude respondent from introducing
evidence of pretext.
The McDonnell Douglas three stage test permits a
plaintiff who can make out a prima facie case of discrimination
to frame the issue of pretext for the court's review. In the
first stage, a plaintiff's prima facie case creates a rebuttable
presumption that the defendant unlawfully discriminated against
the plaintiff. In the second stage, the burden shifts to the
employer to rebut the proof of discrimination by articulating
some legitimate, non-discriminatory reason for the employee's
discharge. If the employer is able to demonstrate such reasons,
the third stage of the test again shifts the burden to the
employee to show that the articulated reason is pretextual."
Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 252-253.
Pretext is therefore frequently an essential element of a claim
of intentional discrimination.
The court of appeals' holding followed McDonnell
Douglas and Burdine in allowing respondent the opportunity to
" The essential purpose of the McDonnell Douglas division of
"intermediate evidentiary burdens" is to "bring the
litigants and the court expeditiously and fairly -o the
ultimate question." Burdine, 450 U.S. at 253. The
allocation of burdens, the order of presentation of proof
and the creation of a presumption by the establishment of a
prima facie case were established to provide an analytical
framework "intended progressively to sharpen the inquiry
into the elusive factual question of intentional
discrimination." Id. at 255 n.8.
23
frame the issue of pretext in the instant case. Respondent had
proffered sufficient. evidence to the district court to make out
her prima facie case, and petitioners tried but failed to rebut
that showing because respondent raised a genuine issue of fact
that petitioners' rebuttal was pretextual.”
Petitioners now seek certiorari to effect a change in
the law under which an employer may preclude evidence of pretext
by claiming that the employee has not met its legitimate
expectations. Yet not a single appellate court has embraced
petitioners' novel departure from McDonnell. It is noteworthy
that each of the cases cited by petitioners in fact considers
plaintiff's pretext claims.'’ Further, other courts which have
13
The merits of Owens' ADEA showing of qualification were not
before the court of appeals and the Housing Authority
abandoned its appeal of the district court's holding on that
issue. Instead, the court of appeals properly considered
the issue of qualification only in the context of its
collateral estoppel holding.
See, e.g., the cases cited at Petition at 14-16 (Oxman v.
WLS-TV, 846 F.2d 448 (7th Cir. 1988) (found that plaintiff
made out prima facie case; case turned on whether plaintiff
proffered enough evidence to suggest that defendant's
reasons for dismissal were pretextual to survive
defendant's motion for summary judgment); Lovelace v.
Sherwin-Williams Co., 681 F.2d 230, 244 (4th Cir. 1982),
cert. denied, 459 U.S. 1205 (1983) (assumed that plaintiff
met prima facie burden of proving discrimination; case
hinged on whether defendant carried its burden to dispel
the mandatory presumption); Halsell v. Kimberly-Clark
Corp., 683 F.2d 285, 292 (8th Cir. 1982), cert. denied, 459
U.S. 1205 (1983) (case hinged on whether defendant's reason
for termination was a pretext for age discrimination) ;
Wilkins v. Eaton Corp., 790 F.2d 515 (6th Cir. 1986) (found
that plaintiff had satisfied the first stage prima facie
burden under the McDonnell Douglas test; holding hinged on
whether plaintiff could show that the stated reason for his
dismissal was a mere pretext for what was in truth a
(continued...)
24
considered misconduct charges adjudicate the defense in the
context of the defendant's rebuttal to the plaintiff's prima
facie presumption of discrimination. See, e.g., Medina-Munoz v.
R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990)
(defendant's proffered reasons for dismissal, misconduct and
insubordination, considered in the context of defendant's
rebuttal; plaintiff offered opportunity to show pretext); Jalil
v. Avdel Corp., 873 F.2d at 707 (insubordination by itself does
not preclude showing of qualification at the prima facie stage,
but may be raised to rebut plaintiff's prima facie case) ; row
v. Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir. 1984)
(insubordination considered in context of defendant's burden of
articulating a legitimate, non-discriminatory reason for
dismissal).
Thus, the test petitioners now propose would require
this Court to abandon its well-considered and well<gstablished
three stage burden-shifting test and replace it with a test that
both undermines the essential purposes of the McDonnell Douglas
analytical framework and finds absolutely no support in any of
3(...continued)
discriminatory purpose); Danielson v. City of Lorain, No.
90-3666, 1991 U.S. App. Lexis 15252 (6th Cir. July 16,
1991) (unpublished decision, Petition at A36-A42)
(accepted, arguendo, that plaintiff had made out prima
facie case, using "employer's reasonable expectations"
test; employer's poor work performance considered in
context of defendant's rebuttal); Meiri v. Dacon, 759 U.S.
989 (2d Cir.), cert. denied, 474 U.S. 829 (1985) (asserted
that plaintiff's prima facie burden was "de minimis"; found
that plaintiff had established prima facie case; affirmed
the district court's grant of summary judgment because
plaintiff failed to show pretext)).
25
the circuits. Petitioners are therefore unable to establish any
basis for issuance of the writ.
POINT III
THE COURT OF APPEALS PROPERLY DETERMINED THAT THE
DISTRICT COURT ERRED IN F ILING TO FIND JURISDICTION
OVER OWENS' CLAIM OF RETALIATION WHICH WAS
REASONABLY RELATED TO HER EEOC CHARGES OF DISCRIMINATION
The court of appeals properly held that the district
court had jurisdiction to hear Owens’ unfiled claim of
retaliation which was reasonably related to the charges of
discrimination previously filed with the EEOC. This "reasonable
relationship" standard, applied by the court of appeals,-to
determine whether the district court had jurisdiction over the
Claim of retaliation which Owens' had failed to file with the
EEOC, is consonant with the standards applied by every other
circuit in the country. Moreover, every court of appeals'
decision cited by petitioners addressing these facts held, just
as the court of appeals held, that district courts have similar
jurisdiction over reasonably related claims of retaliation even
if those retaliation claims were not filed with the EEOC. Thus,
no confusion over this issue exists in the circuits that would
warrant this Court's attention.
In the Second Circuit, it is well settled that in order
for the district court to have jurisdiction over a charge
asserted under ADEA or Title VII, the charge either must first
have been filed with the EEOC or must be "reasonably related to
the alleyations of an initial claim that was properly filed."
26
Goodman v. Heublein, Inc., 645 F.2d 127, 131 (2d Cir. 1981)
(ADEA); Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066 (2d Cir.
1980) (Title VII). The court of appeals applied this rule to
respondent Owens' retaliation claim and held that it was
""reasonably related' to [her] EEOC filing. . ." Qwens III, 934
F.2d at 411; Petition at A1Q. All courts of appeals that have
considered whether a district court may exercise jurisdiction
over an unfiled claim also consider the relationship between the
unfiled charge and the filed claim by applying the reasonable
relationship test or a version thereof.
There is no conflict in the circuits over the test.
The reasonable relationship test is explicitly Seplied in the
First, Second, Seventh, Eighth, Ninth and Tenth Circuits as well
as the District of Columbia.” See Walters v. President &
Fellows of Harvard College, 616 F. Supp. 471, 475 (D. Mass.
1985)" ("civil action may also include ‘relief for incidents
not listed in his original charge to the EEOC. . . [which are]
like or reasonably related to the allegations of the EEOC
charge'") (citation omitted); Goodman v. Heublein, Inc., 645 F.2d
127, 131 (2d Cir. 1981) ("claimant need not file additional
claims . . . when those claims, arising subsequent to the initial
filing, are reasonably related to the allegations of an initial
” The Petition itself recognfzes that the "reasonable
relationship" standard is explicitly applied in four
circuits, the Sixth, the Eighth, the Ninth and the Tenth,
however, it overlooks the Second and Seventh Circuits as
well as the District of Columbia. Petition at 20.
15 The First Circuit has not addressed this issue.
erect eriaeiil
27
claim that was properly filed"); Steffen v. Meridian Life Ins.
Co., 859 F.2d 534, 544 (7th Cir. 1988), cert. denied, 491 U.S.
U
907 (1989) ("claims are cognizable in a civil action if they are
‘like or reasonably related to the allegations of the charge and
growing out of such allegations'") (citation omitted); Wentz v.
Maryland Casualty Co., 869 F.2d 1153, 1154-55 (8th Cir. 1989)
("claims are cognizable. . . if the allegations in the judicial
complaint are 'like or reasonably related to' the timely filed
administrative charges") (citation omitted) ; Oubichon v. North
American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973) ("the
~
judicial complaint .. - » May enconpass any discrimination like or
-
reasonably related to the allegations of the EEOC charge")
(citation omitted); Brown v. Hartshorne Public School Dist. #1,
864 F.2d 680, 682 (10th Cir. 1988) ("judicial complaint
nevertheless may encompass any discrimination like or reasonable
related to the allegation of the EEOC charge"); Loe v. Heckler,
768 F.2d 409, 420 (D.C. 1985) (holding that post-charge conduct
is reasonably related to previously filed charges and can be
considered by court).
A similar test is applied in four other circuits, the
Third, the Fourth, the Sixth and the Eleventh. See Waiters v.
Parsons, 729 F.2d 233, 237 (3d Cir. 1984) ("relevant test. .. is
whether the acts alleged. . . are fairly within the scope of the
prior EEOC complaint, or the investigation arising therefrom") ;
King v. Seaboard Coast Line R.R. Co., 538 F.2d 581, 583 n.2 (4th
Cir. 1976) (suit filed may encompass "the discrimination stated
28
in the charge itself or developed in the course of a reasonable
investigation of that charge"); Mlinaric v. Parker Hannifin
Corp., No. 87-3112, 1988 U.S. App. Lexis 10694 (6th Cir. filed
Aug. 5, 1988) (unpublished decision, Petition at A43-A50)
(complaint is limited "to the scope of the EEOC investigation
reasonably expected to grow out of the charge of discrimination")
(citation omitted); Baker v. Buckeye Cellulose Corp., 856 F.2d
167, 169 (11th Cir. 1988) ("scope of a judicial complaint is
defined by the scope of the EEOC investigation that ‘can
reasonably be expected to grow out of the charge of
discrimination'") (citation omitted) ."® -
Furthermore, as petitioners concede, the rules of the
remaining courts of appeals do not conflict with the court of
appeals' decision below. Petition at 22. Accordingly, a review
of the courts of appeals cited by petitioners demonstrates
unequivocally that no confusion exists over the test.
Petitioners attempt to create a conflict by
mischaracterizing the court of appeals' reasonable relationship
test as a "per se" rule, a characterization that is unsupported
Petitioners mistakenly emphasize superficial variations in
the language of the courts in an attempt to allege a
conflict. These "variations" are not only insignificant,
but they are not even considered variations by any of the
courts cited by petitioners. In fact, courts use the
varying language interchangeably to refer to the same
factual inquiry. See, e.g., Walters v. President & Fellows
of Harvard College, 616 F. Supp. 471, 475 (D. Mass. 1985).
29
by the language or the thrust of the court of appeals'
opinion.'’ Petition at 22, 23. The court of appeals
specifically held, in accordance with Second Circuit precedent,
that there must exist a reasonable relationship between the
unfiled retaliation charge and the filed charge of
discrimination. Nowhere in the court of appeals' decision does
the court discard the reasonable relationship test. On the
contrary, the court of appeals properly found that Owens'
retaliation charge is reasonably related to the previously filed
charge of discrimination because the "allegations of retaliation
are seen as stemming from the earlier discriminatory incident,
including plaintiff's attempt to vindicate her federal rights
against discrimination." Owens III, 934 F.2d at 411, Petition at
A1l0-All.
Just as there is no conflict in the circuits over the
standard by which an unfiled claim may be brought within the
jurisdiction of the court, no conflict is created by, the court of
" Indeed, the petitioners seem to have confused the decision
below with Gupta v. East Texas State University, 654 F.2d
411 (5th Cir. 1981). Assuming arguendo that Gupta applies a
"per se " rule, petitioners' attempt to align the court of
appeals' decision with the Fifth Circuit decision is
unfounded. Although both circuits held that the district
court could hear the unfiled retaliation claim, the
underlying rationale for those decisions differs
drastically. The Fifth Circuit reasoned that retaliation e
claims which arise subsequent to the initial filing fall
within the ancillary jurisdiction of the court thereby
alleviating the need to exhaust administrative remedies.
Quite different from the Fifth Circuit's grounds, the court
of appeals based its decision on the finding that Owens'
retaliation claim was reasonably related to the initial
charge.
: 30
appeals' application of that standard in finding that Owens'
unfiled claim of retaliation is within the jurisdiction of the
district court. In holding that the retaliation claim is
reasonably related to the charge of discrimination filed, nce*
only was the court of appeals' decision consistent with prior
Second Circuit decisions,'’® but its decision is consistent with
the decisions of other circuit courts faced with the same facts.
In the present case, Owens experienced acts of
discrimination which led her to write letters to her supervisors'
supervisors, contact mediation agencies, contact the Housing
Authority's internal office for equal employment opportunity and
engage in similar conciliatory actions. Owens' complaints were
ineffective in preventing additional acts of discrimination.
Subsequently, the Housing Authority initiated disciplinary
proceedings against Owens and she was forced to file formal
charges with the EEOC. After Owens' EEOC complaint was lodged,
the Housing Authority committed an additional retaliatory act of
disecininetion against her: after beginning settlement
discussions over a possible plea-bargain to compromise the
a The reasonable relationship rule was adopted by the Second
Circuit in Kirkland v. Buffalo Board of Education, 622 F.2d
1066, 1068 (2d Cir. 1980) ("issuance of a ‘right to sue'
letter .. . does permit a court to consider claims of
discrimination reasonably related to the allegations in the
complaint filed with the EEOC"). In Goodman v. Heublein,
Inc., 645 F.2d 127, 131 (2d Cir. 1981), the court of appeals
found jurisdiction over a similar retaliation claim not
filed with the EEOC, recognizing that "we have held that a
claimant need not file additional claims with the federal
administrative agency when those claims, arising subsequent
to the initial filing, are reasonably related to the
allegations of an initial claim that was properly filed."
31
disciplinary charges, counsel for the Housing Authority informed
counsel for Owens that explicitly because Owens had filed a
complaint with the EEOC, the Housing Authority refused to
continue settlement negotiations with Owens. Indeed, this
conduct was reported not by Owens but by Owens' former counsel, a
third party. Owens was eventually terminated as a result of
these charges.
In every case cited by petitioners where the sequence
of events was analogous to the present case, the courts have
consistently held, as the court of appeals did here, that the
unfiled retaliation claim was within the courts' jurisdiction.
Maryland Casualty Co., 869 F.2d 1153
For example, in Wentz v.
(8th Cir. 1989), the Eighth Circuit held that the unfiled
retaliation claim which arose the day after a charge of
Giscrimination was filed with the EEOC, was properly before that
court because the retaliation claim "grew out of the
discrimination charge . . . filed with the EEOC." Id. at 1154.
See also Brown v. Hartshorne Public School Dist. #1, 864 F.2d 680
(10th Cir. 1988) (original filed charge of discrimination based
on school district's failure to hire grievant encompassed, due to
reasonable relationship between claims, subsequent unfiled
allegations of retaliatory discrimination based on school
district's continued refusal to hire grievant); Gupta v. East
Texas State Univ., 654 F.2d 411 (5th Cir. 1981) (court could ©
exercise jurisdiction over grievant's claim of retaliation based
on notification of non-renewal of teaching contract which
32
occurred subsequent to grievant's filing of charge with EEOC);
W Ss Vv. eside Fellows o arvard e, 616 F. Supp.
471 (D. Mass. 1985) (due to relationship between initial charge
and subsequent charge of retaliation, initial charge of
discrimination filed with various commissions encompassed acts of
retaliation, such as involuntary transfer and discharge which
occurred shortly after charge was filed); see also Baker v.
Buckeye Cellulose Corp., 856 F.2d 167 (11th Cir. 1988) (court
could exercise jurisdiction over request for injunctive relief to
enjoin alleced retaliation occurring as a result of
discrimination suit even though retaliation charge never filed);
Aronberg v. Walters, 755 F.2d 1114 (4th Cir. 1985) (court had
jurisdiction over request for injunctive relief preventing future
retaliatory acts, despite fact that no claim for retaliation was
before court); Waiters v. Parsons, 729 F.2d 233 (3d Cir. 1984)
(filed retaliation claim encompassed unfiled claim alleging
discriminatory discharge occurring subsequent to EEOC filing).
" Every case cited by petitioners for the proposition that the
court of appeals' decision conflicts with other circuit
court decisions contains significant factual distinctions
from the case at bar. Indeed, the Seventh Circuit in
Steffen v. Meridian Life Insurance Co., 859 F.2d 534 (7th
Cir. 1988), cert. denied, 491 U.S. 907 (1989), distinguished
those cases "where the alleged retaliation arose after the
charge of discrimination had been filed", as in the case
before this Court, from the cases like Steffen where the
claim of retaliation occurred before the initial filing.
Id. at 545 n.2. In several other cases cited by
petitioners, no causal relationship was established between
the original EEOC filing and the retaliation because of the
intervention of significant and decisive events: Stewart v.
United States Immigration and Naturalization Service, 762
F.2d 193 (2d Cir. 1985) (claimant's suspension due to
(continued...)
33
Furthermore, petitioners mistakenly rely on the Second
Circuit's decision in Stewart v. United States Immigration and
Naturalization Service, 762 F.2d 193 (2d Cir. 1985). Contrary to
petitioners' claims, the decision in Stewart demonstrates the
Second Circuit's cohesion with its sister circuits in applying
the reasonable relationship test and firmly establishes that the
Second Circuit does not apply a per se rule. In Stewart, after
the claimant and two co-workers filed with the EEOC a charge of
race discrimination on the basis of unequal pay, conditions and
performance ratings, claimant shot an individual with his service
revolver while he was off duty. The shooting resulted in several
criminal charges of reckless endangerment and assault being
brought against him. While the criminal charges were pending, he
was suspended. The Second Circuit held that the claimant's
subsequent unfiled charge of retaliation based on the suspension
was not within the court's jurisdiction because the suspension
was not reasonably related to the claimant's race discrimination
9... ..continued)
pending criminal charges relating to improper use of service
revolver found not reasonably related to charge of race
discrimination previously filed); Mlinaric v. Parker
Hannifin Corp., No. 87-3112, 1988 U.S. App. Lexis 10694 (6th
Cir. filed Aug. 5, 1988) (unpublished decision, Petition at
A43-A58) (charge of retaliation based on acts occurring
after two year injury layoff, where initial charge of
discrimination filed with EEOC related to acts occurring
prior to two year injury layoff, were not sufficiently
related to come within court's jurisdiction.); Sherman v.
Standard Rate Data Serv., Inc., 709 F. Supp. 1433 (N.D. Ill.
1989) (claimant signed general release for initial charge
thereby precluding argument that jurisdiction existed over
retaliation charge due to alleged relationship between
original charge and subsequent charge of retaliation.)
34
claim. Thus, the very case relied upon by petitioners to prove
that the Second Circuit applies a per se rule actually proves
just the opposite: the Second Circuit adheres to the reasonable
relationship test and does not apply a per se rule.
Finally, the court of appeals' decision below is
consistent with Congressional intent and the mandates of both
Title VII and ADEA. ADEA provides that "[i]t shall be unlawful
for an employer to discriminate against any of his employees
* .cause such individual, member or applicant for membership
has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or litigation under this
chapter." 29 U.S.C. § 623(d) (West 1985). Title VII has a
Similar provision. 42 U.S.C. § 2003e-3(a) (West 1981). In order
to preserve the remedial purposes of Title VII and ADEA, this
Court has consistently demanded that the technical provisions of
these statutes be construed liberally. In Love v. Pullman Co.,
404 U.S. 522 (1972), this Court declined to read literally a
filing provision of Title VII because "[(t]o require a second
'filing' by the aggrieved party after termination of state
proceedings would serve no purpose other than the creation of an
additional procedural technicality. Such technicalities are
particularly inappropriate in a statutory scheme in which laymen,
unassisted by trained lawyers, initiate the process." Id. at 526.
Accord Zipes v. Trans World Airlines Inc., 455 U.S. 385, 397
(1982). A requirement of separate EEOC filings for each and
every incident occurring after the initial filing would, contrary
35
to the remedial purposes of Title VII and ADEA, erect unnecessary
procedural barriers to private prosecution of certain
discrimination claims. OQOubichon v. North American Rockwell
Corp., 482 F.2d at 571.
The court of appeals remained faithful to the mandates
of Title VII and ADEA by recognizing that in the present case,
where the EEOC was aware of the disciplinary charges pending
while its investigation was underway and where Owens wrote to the
EEOC upen learning of her discharge and the refusal of the
20 4 decision
Housing Authority to negotiate her termination,
requiring her to file a second charge with the EEOC would bar the
relief intended to be available to a grievant such as Owens.
Since as a layperson, Owens had no reason to believe that the
EEOC would not consider the retaliatory conduct in response to
her EEOC filing as part of that investigation, the court of
appeals properly determined that her retaliation claim should be
heard.*' Indeed, a second filing would erect a needless
procedural barrier which only would serve to withhold relief from
the very person intended to be aided by Title VII and ADEA.
20 Petitioners' allegation that Owens first asserted her
retaliation twenty-seven months after the fact, Petition at
24, overlooks evidence in the record before the court of
appeals. that Owens sent a letter on June 5, 1984 to the EEOC
and Housing Authority in which she describes the acts of
retaliation which form the basis of her claim. App. at la.
“ There was no evidence before the court of appeals that the
EEOC had not investigated the plea-bargaining issue in its
investigation of the disciplinary charges themselves, since
the record indicated that the EEOC file was destroyed before
petitioners made their claim that the EEOC had not
investigated the charges. App. at 3a.
36
Finally, petitioners misapprehend the purpose of Title
VII and ADEA by arguing that the failure to file a charge of
retaliation bypasses conciliation and therefore conflicts with
congressional intent. On the contrary, in those cases where the
employer continues to discriminate against the employee after a
charge of discrimination has been filed with the EEOC, it is the
employer's continued acts of retaliation, not the failure to file
an additional charge, which destroys the possibility of
conciliation. Nowhere is this more apparent than in the present
case: Owens filed a charge of discrimination against the Housing
Authority, which filing was met with the Housing Authority's flat
refusal to continue ongoing negotiations with Owens precisely
because she filed a charge with the EEOC. It is exceedingly
peculiar that petitioners rely on the conciliatory policy behind
ADEA and Title VII when its own legal counsel, by ending his
discussion of possible conciliation of the charges against Owens,
demonstrated that upon notification of the EEOC claims, all
conciliation between Owens and the Authority was ended.
Notwithstanding petitioners' invocation of the
conciliation policy, the court of appeals' decision to hear the
retaliation charge is harmonious with other circuits in finding
that "once the EEOC has tried to achieve a consensual resolution
of the complaint, and the discrimination continues, there is
minimal likelihood that further conciliation will succeed."
Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984).
Accordingly, the court of appeals correctly held that Owens'
37
retaliation claim falls within the jurisdiction of the court.
Petitioners' assertion that Owens' failure to file a new charge
with the EEOC hampered conciliation is meritless.
Therefore, the court of appeals properly found that the
claim was reasonably related to the charge of discrimination
previously filed, and, in accordance with its sister circuits and
Second Circuit precedent, correctly held that jurisdiction over
the retaliation claim existed. Any decision to the contrary by
the court of appeals would serve only to encourage the very
conduct that Title VII and ADEA were designed to prevent.
CONCLUSION
For the foregoing reasons, this Court should deny the
petition for a writ of certiorari.
Respectfully submj vf
f
ao
‘
Richard F. Ziegler\* /
Martin Marvet
Gayle S. Slossberg
Cleary, Gottlieb, Steen &
Hamilton
One Liberty Plaza
New York, New York 10006
(212) 225-2000
Attorneys for Respondent
Catherine Owens
* Counsel of Record
October 18, 1991
TABLE OF CONTENTS
Letter from Catherine Owens to the New York
City Housing Authority Personnel Department,
Saeee sane S&S, i966 «© « «+ « « + 6 s-2 0 « *
Letter from Robert L. Williams of the EEOC
[2 Pisses es CES sk lt 8 ek et wee
la
3a
Letter from Catherine Owens to the New York
City Housing Authority Personnel Department,
dated June 5, 1984
June 5, 1984 (Hand Delivered)
145 East 39th Street
New York, New York 10016
New York City Housing Authority
250 Broadway
New York, New York 10007
Attention: Ms. Winona Jones
Director of Personnel
Dear Ms. Jones:
This letter is to inform you that your letter hand delivered
to me May 30th by Mr. Patrick Coleman, Manager of Carver Houses,
is an illegal attempt to remove me from my $23,582 a year job,
which I have conscientiously worked at for 7 1/2 years.
On March 14th Mr. Coleman called me into his office and
advised me that I had been permanently appointed to Carver Houses
(and I have the documentation to prove it). At this time I'd
been working at Carver Houses for one year and thought to be both
capable and competent by the Manager, Assistant Manager, Housing
Assistants and others on the staff. At the same time doing twice
as many annual reviews per quarter as the amount scheduled at
LaGuardia Houses. At this time I had not been found guilty of
any of the charges these two men, John Arakel and Lawrence
Lefkowitz, had made (incompetence and misconduct) against me.
If the legal department wants to retry (try this case for a
second time) and allow the fifteen to twenty witnesses testify
(these witnesses showed up on two separate occasions and were not
allowed to be heard by Mr. Weisberger), this can be arranged.
This entire matter, from its inception, February 1983 until
the present has been a coverup for Mr. Lawrence Lefkowitz. It is
common knowledge that Mr. Lefkowitz, during the entire period I
worked at LaGuardia Houses, was unable to come to work on time
(appeared to have some emotional or physical problems) and as a
result was unable to supervise or check the work (annual reviews,
etc.) of the Housing Assistants. This hearing was an attempt
(which is also common Knowledge) to use me as his scapegoat.
2a
However it couldn't work, his reputation for not coming to work
and then not doing his work once he does arrived is widespread.
The business of finding me guilty after not finding me
guilty and appointing me to Carver Houses permanently is a
retaliation for the case which has been pending at EEOC (Equal
Employment Opportunity Commission) since June 1983 and for the
information I submitted to them at their request. If Mr.
Weisberger wanted me to drop the charges he should have or could
have discussed this with me or my attorney and this could have
been arranged. My charge of discrimination (6/27/83) and my
letter to EEOC dated 3/14/84 are attached for your files.
Retaliation is against the law. And this reversal of their
origi- findings (3/12/84) is illegal. I will continue to report
to work (Carver Houses) as I have conscientiously done for the
past 7 1/2 years.
Ms. Jones I am certain that this attempted illegal procedure
is not your doing, however, as Personnel Director your name is on
the letter addressed to me, therefore, I have addressed this
letter to you.
The two enclosures are to inform you of what is going on. I
don't think the right people are aware of what is being attempted
by some of Housing's employees.
Miss Catherine Owens
enclosures (2)
cc: EEOC
Attorneys
P.S. Ms. Jones: After closing this letter I decided to attach a
short paper I had to research for a Personnel Administration
class for the Spring '84 semester. Dr. Gillespie gave me an
"A" for the paper and also wrote that it was an excellent
report. Her book "Creative Supervision," was used for the
course. The reason I'm enclosing this to you? -- to let you
know that I had no idea about this agency's grievance
procedures and also to advise that this procedure was not
used by Local 237 or NYCHA regarding the problems I had been
experiencing with these two men (supervisors). This whole
matter, if properly handled, could have been resolved at the
pre-formal grievance stage, and wasn't.
Miss Owens
Letter from Robert L. Williams of the EEOC
to Plaintiff's counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
[EEOC NEW YORK DISTRICT OFFICE
Symbol } 90 CHURCH STREET, ROOM 1501
NEW YORK, NEW YORK 10007
(212) 264-7188
January 20, 1988
Cleary, Gottlieb, Steen & Hamilton
One State Street Plaza
New York, New York 10004
Attention: Martha F. Davis
Re: Freedom of Information Act
Request No. 87-12 FOIA # 306-NY
Dear Ms. Davis:
Please be informed that I am unable to grant or deny your
request for records in the Equal Employment Opportunity
Commission case of C. Owens v. N.C.Y. Housing Authority Charge
No. 021-83-3282, as the file has been destroyed in accordance
with our agency records retention program.
I regret any inconvenience that may cause you.
Sincerely,
Robert L. Williams
Regional Attorney
RLW/JA/sla
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.