Petition — Berlitz Schools of Languages of America, Inc. v. Bartelt

R38-loeé a a a

No. ..-... WUL 25 1983

IN THE :

Supreme Court of the United|States.-.<°""

October Term, 1983

BERLITZ SCHOOLS OF LANGUAGES OF AMERICA, INC.,

Petitioner,

VICK! BARTELT,

Respondent.

BERLITZ SCHOOLS OF LANGUAGES OF AMERICA, INC..

Petitioner,

VS.

LyDIA MELSEN,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

LAWRENCE J. GARTNER, Esq.

Counsel of Record

LITTLER, MENDELSON, FASTIFF & TICHY

A Professional Corporation

1925 Century Park East, Suite 850

Los Angeles, CA 90067

(213) 553-0308

MELINDA SWEET, Esq.

MACMILLAN, INC.

866 Third Avenue

New York, NY 10022

(212) 702-2000

Attorneys for Petitioner

Parker & Son. Inc., Law Printers, Los Angeles. Phone 724-6622

i

Questions Presented.

1. Cana female employee who alleges that she replaced

a male employee at less pay for equal work claim a con-

tinuing violation of Title VII of the Civil Rights Act of 1964

every time she subsequently receives a paycheck?

2. Can an employee allege an equal pay for equal work

violation under Title VII of the Civil Rights Act of 1964 if

the claim would not constitute a violation of the Equal Pay

Act of 1963?

TABLE OF CONTENTS

Page

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akc clasiesabsdccccccanssacevensssescouecess 3

Statutory Provisions Involved ..................ccceseeeeees 3

ries asesasccsscccccsscscesscserencs 5

Reasons for Granting the Writ ................cccceseeeeees 7

A. The Decision of the Court of Appeals Nullifies

the Timeliness Requirements Contained in Sec-

MIE WE cscsccscccsscvcsssesccecness 8

B. Failure to Apply Equal Pay Act Standards to

Equal Pay Claims Brought Under Title VII Will

Permit Inconsistent Results Depending Upon the

REMI sasicccccscsccscesccosvcccosecses 14

EE 19

Appendix A. Opinion of the United States Court of

Appeals for the Ninth Circuit ................ App. p. 1

Dissent of Poole, Circuit Judge ...............ccceeee es 9

Appendix B. Order Denying Petition for Rehearing

and Rejecting Suggestion for Rehearing en Banc

eee

TABLE OF AUTHORITIES

Cases Page

Chardon v. Fernandez, 454 U.S. 6 (1981) .......... 9,

Corning Glass Works v. Brennan, 417 U.S. 188 (1974)

CEE EEE EEE EEE EHH HEHEHE HEHEHE

Vojesecuonndsaudenphasdeaausiedueinehteesia hoeenbeeaahian 15,

Delaware State College v. Ricks, 449 U.S. 250 (1980)

Suk eadauy neh iin hnsecd Oiligneea\ie anata Mek Men aa bnieee 9, 10, 11,

Goldmann v. Sears, Roebuck & Co., 607 F.2d 1014

(Ist Cir. 1979), cert. denied, 445 U.S. 929 (1980)

Gunther v. County of Washington, 623 F.2d 1303 (9th

COD FFI deeitasbcccakie racbacchaeaeaietierstaacrver 17,

Heymann v. Tetra Plastics Corp., 640 F.2d 115 (8th

Ce, TIRED i vevapisaacanvsdedypbeminvcatehsthelsmtiacdeuphene

International Brotherhood of Teamsters v. United States,

SOE BAe ae FD rcnrccntatcicukcessdctacbetancess 12,

Jenkins v. Home Insurance Company, 635 F.2d 310

COG: GER sittin esomcebtedcpcenstceciitettunnss 8,

Jewett v. International Telephone and Telegraph Corp.,

GSS FG BP GRR Ge. BIDE) cd cthencecsccccccntcsennanes

Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir.

PORE <cccncnnscivcnns dibiniietuaas ie dserduuindcanetiinkendee

SOE T) dice csvureansdcencboncsvensahexsanvensanselexaiastnonnys

eee eee eee eee eee eee eee eee eee eee eee eee eee ee

Mohasco Corp. v. Silver, 447 U.S. 807 (1980) ........

Patterson v. General Motors Corp., 631 F.2d 476 (7th

Cir. 1980), cert. denied, 451 U.S. 914 (1981) ......

14

14

iV

Page

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

Cy I ltesiccbsanssedacdiavsssiassecathsscensesesstas

Staz v. ITT Financial Corp., 619 F.2d 738 (8th Cir.

PE par cclenvacnassandnsdcatapsbudeusinessestysonersseas 8,

Texas Department of Community Affairs v. Burdine,

TE aa EAD. Sadeioidanavicissincsinvecdnixsessias

Trabucco v. Delta Airlines, 590 F.2d 315 (6th Cir. 1979)

sci pbadeMlsisidiesdsdaaduibassunvinssscaernimeelesentans 12,

Ss cea es 9, 10,

Rule

eee eee eee eee eee eee eee eee eee eee eee eee eee eee eee eee eee eee eee eee

Statutes

Civil Rights Act of 1964, Sec. 706(e) (42 U.S.C.

DPN sc occccaccesasedcensies 3, 45 Bs Oe, 82,

United States Code, Title 28, Sec. 1254(1) .............

United States Code, Title 29, Sec. 206(d)(1) ....... 4,

United States Code, Title 42, Secs. 2000e et seq. (Civil

Rights Act of 1964, Title VII) ............cccceceeeeeees

United States Code, Title 42, Sec. 2000e-2(h) ..... a,

13

IN THE

Supreme Court of the United States

October Term, 1983

BERLITZ SCHOOLS OF LANGUAGES OF AMERICA, INC.,

Petitioner,

vs.

VICKI BARTELT,

Respondent.

BERLITZ SCHOOLS OF LANGUAGES OF AMERICA, INC.,

Petitioner,

vs.

LYDIA MELSEN,

Respondent.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit.

eed

Petitioner, Berlitz Schools of Languages of America, Inc.

(hereinafter referred to as ‘‘Berlitz’’),' respectfully petitions

for a Writ of Certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit reversing the

grant of summary judgment to Berlitz in two actions brought

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000¢e ef seq. (hereinafter referred to as ‘‘Title VII'’), and

remanding to the District Court for further proceedings.

Opinions Below.

The opinion of the Court of Appeals reversing the grant

of summary judgment and remanding is reported at 698

F.2d 1003 and appears at Appendix A, infra, pages 1 to

11. The order of the Court of Appeals denying Berlitz’

petition for rehearing and rejecting Berlitz’ suggestion for

rehearing en banc appears at Appendix B, infra, page 12.

‘Pursuant to this Court’s Rule 28.1, Berlitz states that it is wholly

owned by Macmillan, Inc. Domestic subsidiaries and affiliates of Berlitz

are the tng Abrasive Action, Inc.; Associated Mailers, Inc.;

Bradbury Press, Inc.; Business Mailers, Inc.; Collier Macmillan Inter-

national, Inc.; Convenient Ticket Com y; Gump’ s, Inc. (California);

Gump's, Inc. (Texas); Katharine Gibbs School (Incorporated) (New

York); Katharine Gibbs School (Incorporated) (Connecticut); Katharine

Gibbs School ( ted) (Maryland); Katharine Gibbs School (In-

corporated) (Massachusetts); Katharine Gibbs School ( )

(New Jersey); Katharine Gibbs School (Incorporated) ce Island);

Katharine Gibbs School — Huntin (incorporated); G. ae er

Inc.; LaSalle Extension University Lex

Inc.; Macmillan Book Clubs, ; Macmillan Capital :

Macmillan Charter, Inc.; Macmillan Financial Corporation; i

Investment Corporation; Performing Arts, Inc.; Macmillan

Ticket | ee eae Cee See. Inc.; P.F.

Collier, Inc.; P.F. Collier Export Company; Rate and Data

, Inc.; The Berlitz Schools of of East Asia, Inc.; The

Berlitz Schools of of New York, Inc.; U.S. School of Music,

Inc; Crowell , Inc.; Front & Brown Corp.; Glencoe Pub-

dulbashe

Jurisdiction.

The opinion of the Court of Appeals was entered on

February 8, 1983. The Court of Appeals filed its order

denying Berlitz’ petition for rehearing and rejecting the sug-

gestion for rehearing en banc on April 28, 1983. The ju-

risdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

Statutory Provisions Involved,

United States Code, Title 42, Section 2000e-5(e)

A charge under this section shall be filed within one

hundred and eighty days after the alleged unlawful

employment practice occurred and notice of the charge

(including the date, place and circumstances of the

alleged unlawful employment practice) shall be served

upon the person against whom such charge is made

within ten days thereafter, except that in a 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 or to institute criminal

proceedings with respect thereto upon receiving notice

thereof, such charge shall be filed by or on behalf of

the person aggrieved within three hundred days after

the alleged unlawful employment practice occurred, or

within thirty days after receiving notice that the State

or local agency has terminated the proceedings under

the State or local law, whichever is earlier, and a copy

of such charge shall be filed by the Commission with

the State or local agency.

United States Code, Title 42, Section 2000e-2(h)

Notwithstanding any other provision of this sub-

chapter, it shall not be an unlawful employment prac-

tice for an employer to apply different standards of

compensation, or different terms, conditions, or priv-

pas

ileges of employment pursuant to a bona fide seniority

or merit system, or a system which measures earnings

by quantity or quality of production or to employees

who work in different locations, provided that such

differences are not the result of an intention to dis-

criminate because of race, color, religion, sex, or na-

tional origin, nor shall it be an unlawful employment

practice for an employer to give and to act upon the

results of any professionally developed ability test pro-

vided that such test, its administration or action upon

the results is not designed, intended or used to dis-

criminate because of race, color, religion, sex or na-

tional origin. It shall not be an unlawful employment

practice under this subchapter for any employer to dif-

ferentiate upon the basis of sex in determining the

amount of the wages or compensation paid or to be

paid to employees of such employer if such differen-

tiation is authorized by the provisions of section 206(d)

of Title 29.

United States Code, Title 29, Section 206(d)(1)

No employer having employees subject to any provi-

sions of this section shall discriminate, within any es-

tablishment in which such employees are employed,

between employees on the basis of sex by paying wages

to employees of the opposite sex in such establishment

at a rate less than the rate at which he pays wages to

employees of the opposite sex in such establishment

for equal work on jobs the performance of which re-

quires equal skill, effort, and responsibility, and which

are performed under similar working conditions, except

where such payment is made pursuant to (i) a seniority

system; (ii) a merit system; (iii) a system which meas-

ures earnings by quantity or quality of production; or

(iv) a differential based on any other factor other than

sex: Provided, That an employer who is paying a wage

a

rate differential in violation of this subsection shall not,

in order to comply with the provisions of this subsec-

tion, reduce the wage rate of any employee.

Statement of the Case.

Berlitz is in the business of teaching foreign languages

and providing translation services at schools located

throughout the United States. Each school is headed by a

Director who is primarily responsible for its overall operation.

In January 1975, Respondent Lydia Melsen (hereinafter

referred to as ‘‘Melsen’’) was appointed Acting Director of

the school located in Oakland, California, replacing Walter

Haeussler, the previous Director. More than three years

later, Melsen filed a charge of discrimination with the Equal

Employment Opportunity Commission, dated November 14,

1978, in which she claimed that she had been denied equal

pay for equal work. She subsequently filed an action under

Title VII on May 1, 1979.

In July 1977, Respondent Vicki Bartelt (hereinafter re-

ferred to as ‘‘Bartelt’’) was transferred to the school located

in Palo Alto, California to become Director, replacing

Gunther Barth, the previous Director. Nearly two years

later, she filed a charge with the Equal Employment Op-

portunity Commission, dated April 11, 1979, in which she

claimed that she had been denied equal pay for equal work.

She subsequently filed an action under Title VII on January

14, 1980.

In their respective complaints, Melsen and Bartelt alleged

denial of equal pay for equal work, in comparison both to

the individual male school directors whom they had replaced

and to other male school directors employed at schools in

different locations.

After completion of discovery, Berlitz moved for sum-

mary judgment in each lawsuit on October 30, 1980. The

—

grounds for Berlitz’ motions were, inter alia: (1) that Melsen

and Bartelt had failed to file timely charges of discrimination

alleging equal pay violations in comparison with their re-

spective predecessors; and (2) that Melsen and Bartelt could

not advance equal pay claims in comparison to male school

directors employed at schools in different locations.

On January 6, 1981, the United States District Court for

the Northern District of California issued an Order Granting

in Part and Denying in Part Defendant’s Motion for Sum-

mary Judgment in Melsen’s lawsuit. Judgment was entered

in favor of Berlitz on May 8, 1981.* On January 6, 1981,

the District Court also issued an Order Granting Defendant’s

Motion for Summary Judgment in Bartelt’s lawsuit. Judg-

ment was entered in favor of Berlitz on February 5, 1981.

Melsen and Bartelt appealed the judgments to the United

States Court of Appeals for the Ninth Circuit. On June 19,

1981, the cases were ordered consolidated for appeal.

On February 8, 1983, the Court of Appeals rendered its

decision, with Judge Poole dissenting, reversing the grant

of summary judgment to Berlitz and remanding the case to

the District Court. On February 18, 1983, Berlitz petitioned

for rehearing and suggested rehearing en banc, arguing that

the opinion of the Court of Appeals was at odds with ap-

plicable decisions of this Court and with previous decisions

of the Court of Appeals. Berlitz’ petition and suggestion

was denied by the Court of Appeals on April 28, 1983.

*The District Court granted summary judgment on Melsen’s equal

pay claims but denied summary judgment on a retaliation claim. When

the retaliation claim was subsequently dismissed with prejudice by stip-

ulation of the parties, judgment was entered in favor of Berlitz.

pas, ae

REASONS FOR GRANTING THE WRIT.

This case presents two significant issues concerning lit-

igation of equal pay claims under Title VII rather than the

Equal Pay Act. The first concerns the point at which the

time period for filing a Title VII charge of discrimination

begins to run where an employee alleges denial of equal

pay for equal work in comparison to her predecessor. Berlitz

argued, and the District Court agreed, that in such circum-

stances the time limitation specified in Section 706(e) of

Title VII, 42 U.S.C. § 2000e-5(e), begins to run at the point

when the aggrieved party replaces his or her predecessor.

Because Melsen and Bartelt filed their charges of discrim-

ination substantially more than 300 days after replacement

of their predecessors, their claims were time-barred. The

Court of Appeals reversed, holding that a policy of paying

lower wages to female employees constituted a continuing

violation and that both Melsen and Bartelt therefore filed

charges within 300 days of the payment of an allegedly

discriminatory wage. App. A at 3.

The second issue concerns what standards govern an equal

pay claim when brought under Title VII rather than the Equal

Pay Act. Berlitz argued, and the District Court agreed, that

Melsen and Bartelt could not advance equal pay claims in

comparison to male directors employed in different estab-

lishments. The Court of Appeals reversed this ruling. Al-

though it agreed that the single establishment restriction

contained in the Equal Pay Act would have prevented Mel-

sen and Bartelt from pursuing their equal pay claims under

that statute, the Court of Appeals held that the single es-

tablishment requirement did not apply to such equal pay

claims when brought under Title VII. /d. at 7-8.

=

A. The Decision of the Court of Appeals Nullifies the

Timeliness Requirements Contained in Section

706(e) of Title VII.

In their Title VII lawsuits, Melsen and Bartelt first alleged

denial of equal pay for equal work in comparison to their

male predecessors. On this claim, the District Court granted

summary judgment because Melsen and Bartelt had not filed

charges of discrimination until considerably more than 300

days after replacing their male predecessors at allegedly

lesser compensation.

Pursuant to Section 706(e) of Title VII, 42 U.S.C.

§ 2000e-5(e), Melsen and Bartelt were required to file

charges of discrimination no more than 300 days after the

occurrence of the alleged discrimination.» Mohasco Corp.

v. Silver, 447 U.S. 807, 810 (1980). What is at issue herein

is when this time period began to run. Berlitz argued, and

the District Court agreed, that the 300 days began running

when Melsen replaced Walter Haeussler, at allegedly lower

compensation for allegedly equal work, and when Bartelt

replacus Gunther Barth, at allegedly lower compensation

for allegedly equal work.

The Court of Appeals reversed the District Court’s ruling.

Relying on Jenkins v. Home Insurance Company, 635 F.2d

310 (4th Cir. 1980), and Satz v. ITT Financial Corp., 619

F.2d 738 (8th Cir. 1980), and referring to a previous de-

cision in Reed v. Lockheed Aircraft Corp., 613 F.2d 757

(9th Cir. 1980), the Court of Appeals held that a policy of

paying lower wages to female employees on each payday

constituted a continuing violation and that both Melsen and

Bartelt had, therefore, filed charges within 300 days of the

‘Because the alleged discrimination occurred in California, a deferral

state, Melsen and Bartelt were the beneficiaries of the extended time

period contained in 42 U.S.C. § 2000e-S(e).

a

payment of an allegediy discriminatory wage. App. A at 3.

This Court specifically analyzed application of the time

limitations contained in 42 U.S.C. § 2000e-5(e) in Dela-

ware State College v. Ricks, 449 U.S. 250 (1980); accord,

Chardon v. Fernandez, 454 U.S. 6 (1981). The Court has

also discussed the concept of continuing violations under

Title VII in United Air Lines, Inc. v. Evans, 431 U.S. 553

(1977). In reversing the District Court, the Court of Appeals

failed to apply correctly the analysis set forth in these au-

thorities; indeed, these decisions of the Court were not even

referred to in the opinion of the Court of Appeals.

The result is a holding which, as described in the dissent,

is ‘‘quite unsupported by logic or policy or anything in the

language of Title VII.’’ App. A at 9. By gerrymandering

two discrete acts of alleged discrimination — the replace-

ment of two male school directors at alleged lower pay for

alleged equal work — into a ‘“‘policy’’ of discrimination,

the Court of Appeals essentially nullified the timeliness

requirements contained in 42 U.S.C. § 2000e-5(e). The ef-

fect of its ruling is to eliminate any time limit at all for

filing such equal pay charges under Title VII. This contra-

dicts the purpose of the time requirements contained in 42

U.S.C. § 2000e-5(e), which is to ‘protect employers from

the burden of defending claims arising from employment

decisions that are long past.’’ Delaware State College v.

Ricks, supra, 449 U.S. at 256-57.

This Court first addressed the issue of timeliness and

continuing violations under Title VII in United Airlines,

Inc. v. Evans, supra. In that case, the Court rejected the

contention of a female flight attendant that her loss of sen-

iority based upon past actions of her employer constituted

a ‘‘continuing violation’’ of Title VII. The Court held that

the continuing effects of a past act of discrimination did not

form the basis for a Title VII claim if that past act had not

os

been timely challenged. The Court thus stated that:

Respondent is correct in pointing out that the se-

niority system gives present effect to a past act of

discrimination. But United was entitled to treat that

past act as lawful after respondent failed to file a charge

of discrimination within the 90 days then allowed by

§ 706(d). A discriminatory act which is not made the

basis for a timely charge is the legal equivalent of a

discriminatory act which occurred before the statute

was passed... .

Respondent emphasizes the fact that she has alleged

a continuing violation. United’s seniority system does

indeed have a continuing impact on her pay and fringe

benefits. But the emphasis should not be placed on

mere continuity; the critical question is whether any

present violation exists. She has not alleged that the

system discriminates against former female employees

or that it treats former employees who were discharged

for a discriminatory reason any differently than former

employees who resigned or were discharged for a non-

discriminatory reason. In short, the system is neutral

in its operation.

United Air Lines, Inc. v. Evans, supra, 431 U.S. at 558.

Following United Air Lines, the Court analyzed in Del-

aware State College v. Ricks, supra, the point at which the

time periods specified in 42 U.S.C. § 2000e-5(e) begin to

run. The Court held that the time within which a college

professor had to file a charge alleging discriminatory denial

of tenure began to run when he was formally notified of the

denial of tenure, not from his last day of work. The Court

Stated that:

Determining the timeliness of Ricks’ EEOC com-

plaint, and this ensuing lawsuit, requires us to identify

precisely the ‘‘unlawful employment practice’’ of which

he complains. Ricks now insists that discrimination

| oe

motivated the College not only in denying him tenure,

but also in terminating his employment on June 30,

1975. .. . In effect, he is claiming a ‘‘continuing vi-

olation’’ of the civil rights laws with the result that the

limitations periods did not commence to run until his

one-year ‘‘terminal’’ contract expired. This argument

cannot be squared with the allegations of the complaint.

Mere continuity of employment, without more, is in-

sufficient to prolong the life of a cause of action for

employment discrimination. {Citation omitted.] If Ricks

intended to complain of a discriminatory discharge, he

should have identified the alleged discriminatory acts

that continued until, or occurred at the time of, the

actual termination of his employment. But the com-

plaint alleges no such facts.

Delaware State College v. Ricks, supra, 449 U.S. at 257

(emphasis added).

Observing that ‘‘termination of employment at Delaware

State is a delayed, but inevitable, consequence of the denial

of tenure,’’ the Court further held that, in order to have the

time period for filing a charge run from his last day of

employment, Ricks would have had to allege and prove that

his manner of termination differed from that of other pro-

fessors who had been denied tenure. Delaware State College

v. Ricks, supra, 449 U.S. at 257-58. The Court’s decision

in Chardon v. Fernandez, supra, reaffirmed this analysis.

The District Court properly applied the United Airlines

and Delaware State College analysis to the instant cases.

The unlawful employment practice of which Melsen and

Bartelt complain is their replacement of male predecessors

at allegedly lower compensation for allegedly equal work.

Any effect on their subsequent compensation was simply

‘‘a delayed, but inevitable, consequence’’ of the compen-

sation first set upon replacement of their male predecessors.

Delaware State College v. Ricks, supra, 449 U.S. at 257-

=,

58; see Trabucco v. Delta Airlines, 590 F.2d 315, 316 (6th

Cir. 1979). Once their salaries were set, the mere fact that

Melsen and Bartelt continued to receive the same paycheck

again and again did not constitute a continuing violation.

There was no allegation that after replacement of their male

predecessors, Melsen’s and Bartelt’s salaries were modified

in a manner different from that of other school directors.

Rejecting such an analysis, the Court of Appeals instead

relied upon the purported existence of a ‘‘policy of paying

lower wages to female employees on each payday.’’ App.

A at 3. The difficulty with this assertion is that there is no

identification of what this purported policy is, whom it is

alleged to have affected, or when it was purportedly in

existence. Neither Melsen nor Bartelt ever alleged that any-

one else at Berlitz had been discriminated against in a similar

manner, and neither alleged any type of unlawful discrim-

ination other than denial of equal pay, with the exception

of Melsen’s claim of retaliation which was subsequently

dismissed with prejudice by stipulation.

As pointed out in the dissent to the opinion below, the

Court of Appeals has used this assertion of a ‘‘policy’’ to

skirt the requirement for filing charges within 300 days of

the alleged discriminatory act. As the dissent states:

The majority seeks shelter for this rationale by call-

ing two discrete situations cumulatively a ‘‘policy.”’

These are two separate cases which were not, when

challenged on summary judgment, augmented by ap-

propriate evidence sufficient to justify the terminology

of ‘‘policy’’ or ‘‘practice’’ as we know those words.

Id. at 10.

Certainly something more needs to be alleged and proven

than two discrete acts of discrimination to constitute a policy

sufficient to overcome the purpose intended by 42 U.S.C.

§ 2000e-5(e). In International Brotherhood of Teamsters v.

| a

United States, 431 U.S. 324, 336 (1977), for example, this

Court defined a pattern and practice of discrimination as

‘*more than the mere occurrence of isolated or ‘accidental’

or sporadic discriminatory acts’’ but rather *‘the company’s

standard operating procedure — the regular rather than the

unusual practice.’’ See Jewett v. International Telephone

and Telegraph Corp., 653 F.2d 89, 91-92 (3rd Cir. 1981).

Reliance by the Court of Appeals on Jenkins v. Home

Insurance Co., supra, and Satz v. ITT Financial Corp.,

supra, is misplaced. In both cases, a present and continuing

equal pay violation on a paycheck by paycheck basis was

found to have been alleged because the equal pay compar-

ison was made between male and female employees who

continued in their employment. Thus, at each paycheck, an

equal pay comparison could arguably be made between pres-

ent employees and a present equal pay violation alleged.

Such was not the case in the instant lawsuits with respect

to Melsen’s and Bartelt’s predecessors; their employment

as directors ceased when Melsen’s and Bartelt’s began.

The practical consequences of the Court of Appeals’ rul-

ing on this issue is to eliminate any time requirement at all

for filing such charges of discrimination, thus nullifying

Section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e). Under

its continuing violation theory, an employee could con-

ceivably claim an equal pay violation based upon a com-

pensation decision made as much as 15 or 20 years before

merely because the employee continued to receive a pay-

check. As the dissent notes, the majority opinion holds that:

[I}f a member of a protected class is hired at a dis-

criminatory wage, that person presumably may wait

for years and years before bringing charges because

each pay check tendered by the employer constitutes

a ‘‘continuing violation’’ of the original act of

discrimination.

App. A at 9.

mitiiin

For this reason, reliance by the Court of Appeals below

on a continuing violation theory appears to be at odds with

a number of other appellate decisions which apply the time

limitations contained in 42 U.S.C. § 2000e-5(e) to various

employment situations. See, e.g., Heymann v. Tetra Plas-

tics Corp., 640 F.2d 115, 120, 123 (8th Cir. 1981) (failure

to timely challenge initial job assignment and layoff); Gold-

man v. Sears, Roebuck & Co., 607 F.2d 1014, 1017-19

(1st Cir. 1979), cert. denied, 445 U.S. 929 (1980) (dismissal

of claims of discriminatory transfer as untimely despite al-

legations of repeated requests for return to original position);

Martin v. Georgia-Pacific Corp., 568 F.2d 58, 61-62 (8th

Cir. 1977) (untimely challenge to alleged denial of transfer

based on seniority); Trabucco v. Delta Airlines, supra (dis-

missal of lawsuit charging discriminatory reclassification

from teletype operator to transportation agent because of

failure to file a timely EEOC charge); Milton v. Weinberger,

645 F.2d 1070, 1074-77 (D.C. Cir. 1981), and Patterson

v. General Motors Corp., 631 F.2d 476, 483-85 (7th Cir.

1980), cert. denied, 451 U.S. 914 (1981) (both rejecting

arguments that denial of promotion constituted a continuing

violation).

This Petition should, therefore, be granted in order to

review the opinion of the Court of Appeals on the timeliness

issue, because its ruling effectively nullifies the require-

ments of 42 U.S.C. § 2000e-5(e) based upon a continuing

violation theory which is at odds with applicable decisions

of this Court.

B. Failure to Apply Equal Pay Act Standards to Equal

Pay Claims Brought Under Title VII Will Permit

Inconsistent Results Depending Upon the Statute

Sued Under.

In addition to equal pay claims in comparison to their

predecessors, Melsen and Bartelt also alleged that they had

been denied equal pay in comparison to male directors em-

—

ployed at Berlitz schools in different locations. In its opin-

ion, the Court of Appeals agreed that such claims would

not constitute a violation of the Equal Pay Act because the

comparison was not asserted between employees of a ‘‘sin-

gle establishment.’’ App. A at 7-8. However, because Mel-

sen and Bartelt brought their equal pay claims under Title

VII, rather than the Equal Pay Act, the Court of Appeals

held that the single establishment criterion did not apply,

and it therefore reversed the District Court’s grant of sum-

mary judgment. /d. at 8.

The issue of whether Equal Pay Act standards govern

equal pay claims brought under Title VII has not been con-

sidered by this Court. Contrary to the implication in the

opinion below, id., this question was not decided in County

of Washington v. Gunther, 452 U.S. 161 (1981). Rather,

the sole issue considered in Gunther was whether sex-based

compensation claims other than equal pay claims could be

brought under Title VII. County of Washington v. Gunther,

supra, 452 U.S. at 163, 166, n.8. By the time the Gunther

litigation had reached this Court, the plaintiff's equal pay

claims were no longer at issue. /d. at 165.

Resolution of this issue is necessary to avoid future mis-

application of the Court’s Gunther decision and to eliminate

present uncertainties as to what standards apply to equal

pay claims brought under Title VII. If allowed to stand, the

decision below permits advancement of equal pay claims

under Title VII which would be invalid under the Equal Pay

Act, resulting in inconsistent results on the same claim de-

pending upon the statute sued under.

It should be clear that the instant lawsuits involve only

claims of denial of equal pay and not claims of other types

of sex-based compensation discrimination. An unfortunate

imprecision in the language used by the Court of Appeals

to describe the issue raised and the precise nature of Mel-

peat oes

sen’s and Bartelt’s claims might leave a contrary impression.

For example, the Court of Appeals defined the issue as

follows:

The district court also granted summary judgment on

the ground that, as a matter of law, the data concerning

the salaries of male directors at other Berlitz schools

would not establish a violation of Title VII because it

did not show that the employer discriminated in the

payment of wages to employees within a single estab-

lishment, a requirement of an Equal Pay Act violation.

See 29 U.S.C. § 206(d) (1976).

The premise underlying this ground for dismissal is

that a sex-based wage discrimination claim may be

brought under Title VII only if the evidence supporting

the charge would establish a violation of the Equal Pay

Act.

App. A at 4 (emphasis added).

Notwithstanding this language, only claims of denial of

equal pay for equal work were advanced in these cases. The

charges of discrimination filed by Melsen and Bartelt spe-

cifically alleged equal pay violations.* Equal pay claims

were alleged in their complaints and in the pretrial papers

filed with the District Court.* In fact, in their opening brief

“The description by the Court of Appeals of Melsen’s charge of

discrimination as ‘‘charging Berlitz with discriminating against her in

the payment of wages based on her sex,’’ App. A at 2, is inaccurate

ig of its lack of precision. Melsen’s charge specifically alleged

that:

I have been paid lesser salaries, commissions and bonuses as a

female employee than male employees for doing substantially

equal work, requiring substantially equal skill, effort and respon-

sibility, performed under similar working conditions.

I file this complaint on behalf of myself and past, present and

future female employees who have been denied equal pay for

equal work.

The language of Bartelt’s charge is virtually identical.

*Both complaints alleged payment of lesser salaries, commissions and

bonuses as a female employee than male employees for doing substan-

tially equal work requiring substantially equal skill, effort and

responsibility.

oa, een

to the Court of Appeals, Melsen and Bartelt stated that

‘*Appellants bring their action pursuant to Title VII and

allege that they were denied equal pay for equal work while

employed at Respondent Berlitz Schools of Languages’’

(Emphasis added. )

Since only equa! pay claims are at issue in this case, the

question remains whether such claims, when brought under

Title VII, must satisfy Equal Pay Act requirements. The

ruling of the Court of Appeals below that they do not con-

tradicts language contained in an appellate decision from

the same Circuit, thus creating considerable confusion. In

its first opinion in Gunther v. County of Washington, 623

F.2d 1303 (9th Cir. 1979), the Court of Appeals for the

Ninth Circuit stated that *‘we hold that Equal Pay Act Stan-

dards apply in Title VII suits when plaintiffs raise a claim

of equal pay.° Jd. at 1313. In its opinion denying rehearing,

the Court of Appeals again held that:

{[W]hen a discrimination claim is based on a theory

that the plaintiffs are denied equal pay for equal work,

Equal Pay Act standards are applicable. When a claim

of discrimination is not based on an equal work theory,

it must be analyzed separately under Title VII.

Id. at 1318 (citation omitted).

The rationale for this previous Ninth Circuit ruling in its

Gunther decision was the avoidance of inconsistencies be-

tween the Equal Pay Act and Title VII when only equal pay

claims are at issue. As that opinion stated:

The cases considering the relationship between Title

VII and the Equal Pay Act have involved claims that

females were being denied equal pay for equal work.

See, e.g., Di Salvo, 568 F.2d 593; Orr v. MacNeill,

*The opinion further held that ‘‘decisions interpreting the Equal Pay

Act are authoritative where plaintiffs suing under Title VII raise a claim

of equal pay.’’ /d.

—"

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

construed the two statutes harmoniously; any other ap-

proach may have produced different results depending

on whether a plaintiff labeled his cause of action as

being brought under ‘‘Title VII’’ or under the ‘‘Equal

Pay Act.”’

Id. at 1311.’

This Court’s discussion in its Gunther decision of the

legislative history of the Bennett Amendment to Title VII

supports such reasoning. As the Court noted, the Bennett

Amendment was incorporated into Title VII as a result of

Congressional concern over the potential inconsistencies be-

tween Title VII and the Equal Pay Act. See, County of

Washington v. Gunther, supra, 452 U.S. at 171-76. To

allow equal pay claims under Title VII which could not be

brought under the Equal Pay Act totally ignores such

congressional concerns.*

Because of the substantial uncertainty as to what standards

apply to equal pay claims when brought under Title VII and

how such claims are to be adjudicated, review of this issue

by the Court would be highly desirable.

’The opinion further noted that, ‘‘{wJhen plaintiffs raise a claim under

Title VII of discriminatory compensation in the absence of an allegation

that they perform substantially equal work, no conflict with the Equal

Pay Act arises because the Equal Pay Act is inapplicable.’* /d. at 1313.

‘Failure to resolve the question of what standards govern equal pay

claims brought under Title VII will cause additional confusion in con-

junction with the litigation of such claims. For example, different stan-

dards of proof apply under Title VII and the Equal Pay Act. Compare,

Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

252-253 (1981), with Corning Glass Works v. Brennan, 417 U.S. 188,

195-196 (1974). Indeed, the Ninth Circuit has recently ruled in Kouba

v. Allstate Insurance Co., 691 F.2d 873, 875 (9th Cir. 1982), that the

Equal Pay Act burden of proof applies to equal pay claims brought

— Title VII, a decision which is at odds with the thrust of the opinion

below.

= =

Conclusion.

In order to resolve serious questions regarding the liti-

gation of equal pay claims under Title VII, Berlitz respect-

fully requests that the Court grant its Petition for a Writ of

Certiorari in order to review the decision of the Court of

Appeals below.

Respectfully submitted,

LAWRENCE J. GARTNER, Esq.

Counsel of Record

LITTLER, MENDELSON, FASTIFF &

TICHY,

A Professional Corporation

MELINDA SWEET, EsQ.

MACMILLAN, INC.

Attorneys for Petitioner

APPENDIX A

Opinion

United States Court of Appeals for the Ninth Circuit.

Vicki Bartelt, Plaintiff-Appellant, v. Berlitz School of

Languages of America, Inc., Defendant-Appellee. No. 81-

4064, DC. NO. C80-0104-RHS.

Lydia Melsen, Plaintiff-Appellant, v. Berlitz School of

Languages of America, Inc. Defendant-Appellee. No. 81-

4287, DC. No. C79-1033-RHS.

Filed: Feb. 8, 1983.

Argued and Submitted—April 14, 1982.

Appeal from the United States District Court for the

Northern District of California, Robert H. Schnacke, Dis-

trict Judge, Presiding.

BEFORE: GOODWIN, FLETCHER, and POOLE, Cir-

cuit Judges.

FLETCHER, Circuit Judge:

Lydia Melsen and Vicki Bartelt brought separate actions

against their former employer, Berlitz Schools of Languages

of America, Inc. (Berlitz) under Title Vil of the Equal

Employment Opportunity Act, 42 U.S.C. § 2000e et seq.

Both alleged that Berlitz discriminated against them as di-

rectors of Berlitz’s schools by paying them lower salaries,

commissions, and bonuses than either former male directors

at their respective schools or male directors currently em-

ployed at other Berlitz schools. The district court granted

Berlitz’s motions for summary judgment. We reverse and

remand both actions for further proceedings.

I

FACTS

Berlitz is a New Jersey-based corporation that operates

language schools throughout the country. In 1968, Melsen

began working for Berlitz in its Oakland school. In 1973,

x an

she became assistant director, and in 1975, she replaced

Walter Haeussler as acting director. She remained as di-

rector of the Oakland school until her termination in 1979.

Bartelt was hired by Berlitz as a management trainee in

1973 in the East Detroit school. In 1977, she transferred to

the Palo Alto school and replaced Gunther Barth as director.

She remained director until her termination in 1979.

In 1978, Melsen filed a charge of sex discrimination with

the Equal Employment Opportunity Commission (EEOC),

charging Berlitz with discriminating against her in the pay-

ment of wages based on her sex. Bartelt filed a similar

charge with the EEOC in 1979.

In 1979, Melsen and Bartelt filed separate suits in district

court. Both alleged that Berlitz violated Title VII by paying

them less compensation than either their male predecessors

or present male directors at other Berlitz schools for per-

forming substantially equal work. At a hearing on Berlitz’s

motions for summary judgment, the district court ruled that:

(1) neither Melsen nor Bartelt had filed a timely complaint

with regard to charges that their compensation was less than

their male predecessors because neither had filed a com-

plaint with the EEOC within 300 days of their replacement

of the former directors; and (2) neither could advance equal

pay claims under Title VII based on a comparison with male

directors employed in other Berlitz schools. The court granted

summary judgment to Berlitz in both actions. Melsen’s and

Bartelt’s appeals were consolidated by order of this court.

We note jurisdiction under 28 U.S.C. § 1291 (1976).

II

DISCUSSION

A. STANDARD OF REVIEW

Summary judgment is proper only when, viewing the

evidence in the light most favorable to the nonmoving party,

there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56.

daitiihin

B. TIMELINESS

The district court granted summary judgment in part be-

cause it found the plaintiffs’ claims based on a comparison

of their wages with their predecessors’ wages time-barred.

Section 706(e) of Title VII, 42 U.S.C. § 2000e-S(e), re-

quires that a discrimination charge be timely filed with the

EEOC. Where, as here, there is a qualified state compliance

agency, that time period is 300 days from the date of the

alleged discriminatory act. See Williams v. Owens-Illinois,

Inc., 665 F.2d 918, 923 n.2 (9th Cir. 1982).

Berlitz argues that because Melsen and Bartelt began

working as directors for Berlitz more than three hundred

days before they filed a charge with the EEOC, their charges

were untimely. We disagree. The policy of paying lower

wages to female employees on each payday constitutes a

‘‘continuing violation.’’ Jenkins v. Home Insurance Co.,

635 F.2d 310 (4th Cir. 1980); Satz v. [TT Financial Corp.,

619 F.2d 738, 743-44 (8th Cir. 1980). See Reed v. Lockheed

Aircraft Corp., 613 F.2d 757, 759-61 (9th Cir. 1980). We

conclude that the claims are timely because each plaintiff

filed charges with the EEOC within three hundred days of

a payment of allegedly discriminatory wages. '

'‘Berlitz's primary argument is that the limitations period should run

from the date the plaintiffs became directors because it was at this time

that their allegedly discriminatory wages were set. In the alternative,

however, Berlitz argues that the period for filing commenced at the

time that the male predecessors left their positions. In advancing this

argument, Berlitz makes two assumptions. First, it assumes that in order

to state an ee pay for > sev work’* claim under Title VII, the

plaintiff must allege facts sufficient to establish an Equal Pay Act vi-

olation. Second, Berlitz assumes that an Equal Pay Act claim must be

based on a comparison between the wage rates of current employees

within the establishment. From these premises Berlitz argues that the

last day that plaintiffs’ predecessors were ‘‘employees’’ was the last

day that a Title VII violation existed. According to Berlitz's theory,

plaintiffs had three hundred days from that date to file a charge with

the EEOC.

We reject Berlitz's alternative argument because it is an irrational

distortion of both statutes. This reasoning would lead one to conclude

that if the predecessor employee left more than three hundred days

before the replacement arrived, the replacement could never file a timely

(footnote continued on following page)

aw ee

C. THE SINGLE ESTABLISHMENT REQUIREMENT

The district court also granted summary judgment on the

ground that, as a matter of law, the data concerning the

salaries of male directors at other Berlitz schools would not

establish a violation of Title VII because it did not show

that the employer discriminated in the payment of wages to

employees within a single establishment, a requirement of

an Equal Pay Act violation. See 29 U.S.C. § 206(d)(1976).

The premise underlying this ground for dismissal is that

a sex-based wage discrimination claim may be brought un-

der Title VII only if the evidence supporting the charge

would establish a violation of the Equal Pay Act. The Equal

Pay Act addresses the problem of discrimination in the pay-

ment of wages based on the sex of the employee. It makes

it unlawful for employers to pay different wage rates, based

on the sex of the employee, to employees in the same es-

tablishment who perform equal work. See Corning Glass

Works v. Brennan, 417 U.S. 188 (1974).- The coverage of

charge with the EEOC. The time would have expired before any vio-

lation occurred.

We further note that under the Equal Pay Act plaintiffs need not rely

solely on a discriminatory wage differential between current employees

to establish a violation, but may make comparisons to prior employees.

See County of Washington v. Gunther, 452 U.S. 161 (1981) (Rehnquist,

J. dissenting) at 179 n.19; id. at 201-02. Thus even if it were necessary

for the plaintiffs in this case to meet the criteria of the Equal Pay Act

to state a claim under Title VII, a theory we reject, see discussion infra,

that requirement has been met here.

*The Equal Pay Act was enacted as an amendment to the Fair Labor

Standards Act of 1938, 29 U.S.C. §§ 201-19. It provides, in relevant

part:

No employer having employees subject to any provisions of this

section shall discriminate, within any establishment in which such

employees are employed, between employees on the basis of sex

by paying wages to employees in such establishment at a rate less

than the rate at which he pays wages to employees of the opposite

sex in such establishment for equal work on jobs the performance

of which requires equal skill, effort, and responsibility, and which

are performed under similar working conditions, except where

such payment is made pursuant to (i) a seniority system; (ii) a

merit system; (iii) a system which measures — by quantity

or quality of production; or (iv) a differential b on any other

factor other than sex.

29 U.S.C. § 206(d)(1)

a

Title VII with respect to discrimination on account of sex

is much broader. Title VII makes it an unlawful employment

practice for an employer ‘‘to discriminate against any in-

dividual with respect to his compensation, terms, condi-

tions, or privileges of employment because of such indi-

vidual’s .. . sex. . ."’ 42 U.S.C. § 2000e-2(a). We note

that the district court decided this case before the Supreme

Court’s decision in County of Washington v. Gunther, 452

U.S. 161 (1981) (Rehnquist, J. dissenting), which addressed

the relationship of Title VII to the Equal Pay Act. Gunther

rejected the assumption upon which the district court dis-

missed these actions.

In Gunther, the Supreme Court held that plaintiffs, four

female prison guards, could bring claims of differential com-

pensation under Title VII even though they could not satisfy

the equal work standard of the Equal Pay Act. The Court

rejected the argument that the Bennett Amendment to Title

VII restricted Title VII’s prohibition of sex-based wage dis-

crimination claims to claims of ‘equal pay for equal work:’”’

In practical terms, [accepting this argument] means that

a woman who is discriminatorily underpaid could ob-

tain no relief—no matter how egregious the discrimi-

‘The Bennett Amendment provides:

It shall not be an unlawful employment practice under this sub-

chapter for any employer to differentiate upon the basis of sex in

determining the amount of wages or compensation paid or to be

paid to a of such employer if such differentiation is

authorized by the provisions of section 206(d) of Title 29 [the

Equal Pay Act].

42 U.S.C. § 2000e-2(h).

_—

nation might be—unless her employer also employed

a man in an equal job in the same establishment, at a

higher rate of pay. Thus, if an employer hired a woman

for a unique position in the company and then admitted

that her salary would have been higher had she been

male, the woman would be unable to obtain legal re-

dress under petitioners’ interpretation. . . . Congress

surely did not intend the Bennett Amendment to in-

sulate such blatantly discriminatory practices from ju-

dicial redress under Title VII.

Gunther, 452 U.S. at 178-79.

Instead, the Gunther Court interpreted the Bennett

Amendment as requiring only the incorporation of the four

affirmative defenses of the Equal Pay Act into Title VII.*

Thus, when faced with a sex-based wage discrimination

claim brought under Title VII, the employer may success-

fully defend its action by showing that: (1) the compensation

was paid pursuant to a seniority system; or (2) the payments

were made pursuant to a merit system; or (3) the compen-

sation was paid pursuant to ‘‘a system which measures earn-

ings by quantity or quality of production;”’ or (4) the pay-

ments were based on any other factor other than sex. 29

U.S.C. § 206(d); see Gunther, 452 U.S. at 168-69.

Berlitz argues that the Supreme Court in Gunther did not

specifically address claims based on an ‘‘equal pay for equal

work’’ theory. When this theory is the vasis for the claim

under Title VII, Berlitz argues that the employer's action

must constitute an Equal Pay Act violation. Otherwise, the

result will be to subvert the scheme of the Equal Pay Act,

*The court based its conclusion that the Bennett Amendment did not

preclude the plaintiffs’ Title VII claims on: (1) the language of the

Bennett Amendment; (2) the legislative history of the adoption of the

Amendment, and (3) the remedial purposes of the Equal Pay Act and

Title VII.

Gunther, 452 U.S. at 168-80.

aa,

which Congress carefully designed to handle ‘‘equal pay

for equal work’’ problems. The point of Gunther, however,

is that Title VII's statutory scheme covers claims of sex-

based wage discrimination, whether or not those claims also

fall under the Equal Pay Act. Berlitz’s view is contrary to

the rationale of Gunther and the Supreme Court’s pro-

nouncement that courts must ‘‘avoid interpretations of Title

VII that deprive victims of discrimination of a remedy,

without clear congressional mandate.’’ Gunther, 452 U.S.

at 178.

Moreover, contrary to Berlitz’s assertions, the failure to

read the ‘‘single establishment” restriction of the Equal Pay

Act into Title VII will not result in numerous legal and

practical problems nor will it thwart the sound policies of

the Equal Pay Act. An Equal Pay Act challenge differs in

important respects from an action brought under Title VII.

Title VII contains a comprehensive scheme of administrative

remedies that must be exhausted before suit is filed. 42

U.S.C. § 2000e-5. No administrative exhaustion is required

under the Equal Pay Act.

Furthermore, the different statutes provide different rem-

edies. Although Title VII authorizes a backpay remedy,

under the Equal Pay Act, double back pay awards are au-

thorized. Compare 42 U.S.C. § 2000e-5(g) with 29 U.S.C.

§ 216(b)(Supp. II 1978). The back pay recovery period in

many cases will be longer under the Equal Pay Act than

under Title VII. Compare 29 U.S.C. § 255 (1976)(employer

who commits willful violation is liable for back pay for up

to three years before suit is filed) with 42 \'.S.C § 2000e-

5(g) (recovery period limited to two years before date charges

filed with the EEOC),

For these reasons, we reject Berlitz’s approach. We agree

that a comparison of plaintiffs’ salaries with the salaries

paid to male directors at other Berlitz schools is not between

— oe

employees of a ‘single establishment,’’ and hence that Mel-

sen and Bartelt would not be able to establish a violation

of the Equal Pay Act by relying on this data. But plaintiffs

have not brought an action under the Equal Pay Act. Title

VII does not contain a ‘single establishment’’ limitation.

See Gunther, 452 U.S. at 171. We hold that the evidence

of the salaries of male directors at other Berlitz schools,

which supports plaintiffs’ sex-based wage discrimination

claims, may be introduced to support a claim under Title

VII even though it would not support an Equal Pay Act

claim. It was error for the district court to grant summary

judgment to Berlitz.

IV

CONCLUSION

Plaintiffs’ claims based on a comparison of their salaries

with their predecessors’ are not time-barred. Evidence that

Berlitz paid lower wages to plaintiffs than to male directors

at other Berlitz Schools may be used to establish a sex-

based wage discrimination claim under Title VII.

We REVERSE the grant of summary judgment to Berlitz

and REMAND the case to the district court for further pro-

ceedings consistent with this opinion.

—

MELSEN V. BERLITZ SCHOOLS, No. 81-4287.

BARTELT V. BERLITZ SCHOOLS, No. 81-4067.

Filed: Feb. 8, 1983.

POOLE, Circuit Judge, dissenting.

I respectfully dissent for the reason that the claims of sex

discrimination were untimely and thus the district court was

correct in its grant of summary judgment.

The appellants claimed sex discrimination in that they

were hired to fill jobs vacated by males and that from the

outset they were paid less for the same work. But neither

filed charges with the Equal Employment Opportunity Com-

ission [sic] within the maximum 300 days as required by

Section 706 of Title VII, 42 U.S.C. 2000-S(e). Nothing in

this record implicates ‘‘equitable tolling’’ or other reason

for this delay.

Melsen was first employed by Berlitz in 1968. She re-

placed a male Director at the Oakland school in January,

1975, at a rate of compensation lower than that paid her

predecessor. But she did not file charges with EEOC until

November 14, 1978, nearly four years later. Bartelt replaced

a male as Director at the Palo Alto school in July, 1977.

She did not file a charge until April 11, 197.., 21 months

later.

My difference with the majority is obvious. They have

neatly skirted the requirement of filing charges within 300

days by an expedient: they hold that if a member of a

protected class is hired at a discriminatory wage, that person

presumably may wait for years and years before bringing

charges because each pay check tendered by the employer

constitutes a ‘‘continuing violation’’ of the original act of

discrimination.

This holding seems to me quite unsupported by logic or

policy or anything in the language of Title VII. It does not

= =

Square with other cases. The majority has successfully re-

written the statute without waiting for a tardy Congress.

This is troublesome. The view adopted today may seem

better than the statutory policy but I do not understand such

code updating to be our function. Nor does that view seem

to comport with what the Supreme Court has stated in United

Air Lines v. Evans, 431 U.S. 553 (1977), where Justice

Stevens wrote:

A discriminatory act which is not made the basis for

a timely charge.

Respondent emphasizes the fact that she has alleged a

continuing violation. United’s seniority system does

indeed have a continuing impact on her pay and fringe

benefits. But the emphasis should not be placed on

mere continuity. The critical questions is whether any

present violation exists. (Emphasis original.)

431 U.S. 558

The majority seeks shelter for this rationale by calling

two discrete situations cumulatively a ‘‘policy.’’ These are

two separate cases which were not, when challenged on

summary judgment, augmented by appropriate evidence

sufficient to justify the terminlogy [sic] of ‘‘policy’’ or

‘‘practice’’ as we know those words. But we need not wran-

gle over arcane contentions of evidence because it is clear

that the majority's position is that each subsequent salary

payment as to each single receipient [sic] generates another

violation (whether styled ‘‘new’’ or ‘‘further’’ or mere con-

tinuum), In whatever form it is wrapped, the holding bends

the statute to accomplish a result, on the argument that the

Supreme Court has not explicitly said that there is no such

thing as continuing violation,

One cannot well read the majority or dissent in Mohasco

Corp. v. Silver, 447 U.S. 807, (1980), without concluding

that basic to Title VII is a purpose of requiring claims to

a) on

be raised while they are temporally and seasonably fresh.

Discrimination claims are committed to administrative pro-

cessing in the first instance so that they may be resolved

administratively if possible, on the theory that securing the

substance of civil rights is the objective rather than pro-

tracted and stale litigation. It may well be that enlargement

of the time for filing charges, as the majority now sanctions,

will prove a salutary event, should it survive. The problem

is that we do not write on a clean slate and ours is hot the

role of convenient emendation even in support of the most

noble of causes.

a ae

APPENDIX B

Order

United States Court of Appeals for the Ninth Circuit.

Vicki Bartelt, Plaintiff-Appellant, vs. Berlitz Schools of

Languages of America, Inc., Defendant-Appellee. No. 81-

4064, D.C. No. C79-1033-RHS.

Lydia Melsen, Plaintiff-Appellants, vs. Berlitz Schools

of Languages of America, Inc., Defendant-Appellee. No.

81-4287, D.C. No. C80-0104-RHS.

Filed: April 28, 1983.

Before: GOODWIN, FLETCHER, and POOLE, Circuit

Judges.

The majority of the panel in the above case has voted to

deny the petition for rehearing, and Judges Goodwin and

Fletcher have voted to reject the suggestion for rehearing

en banc.

The full court has been advised of the suggestion for an

en banc rehearing, and no judge of the court has requested

a vote on the suggestion for rehearing en banc. FRAP 35(b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.