Opposition — Ernst v. Indiana Bell Telephone Co.

No. 83-687 —

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

CLIFFORD B. ERNST, JR.

Petitioner,

versus

INDIANA BELL TELEPHONE COMPANY,

INCORPORATED and COMMUNICATIONS

WORKERS OF AMERICA, LOCAL 5703,

Respondents.

ON PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT,

INDIANA BELL TELEPHONE COMPANY,

INCORPORATED.

WILLIAM E. ROBERTS

HENRY C. RYDER

GREGORY J. UTKEN

Suite 2020, One Indiana Square

Indianapolis, Indiana 46204

Counsel for Respondent,

Indiana Bell Telephone

Company, Incorporated

SSS

SS EE TE a a I EL I I ECTS ET AF ITT

Western Newspaper Publishing Co., inc., 537 E. Ohio St., Indianapolis, IN

TABLE OF CONTENTS

ee ING oa Sw os i dc vodas ve

es of Arama. 5 ok es ni ieee

Reasons for Denying the Writ....................

ROE EEE TT EEE es Fi

IIR Ski's slew’ a sas. «s aw ake wale

Marston v. LaClede Cab Co., Slip Opinion

No. 83-1098C(1) (October 6, 1983, E.D. Mo.)

ii

TABLE OF AUTHORITIES

PAGE

Statutes:

Federal Statutes and Regulations:

Section 301 of the Labor-Management Relations

Act, 29 U.S.C. § 185(a) (1947)... ............ 2, 3, 4, 5,7

Section 5Us(a) of the Rehabilitation Act,

29 U.S.C. § 793(a) (1973) ............ 2,9, 10, 11, 12, 13

Section 504 of the Rehabilitation Act,

et ee Ll Sy neers 13

Section 10(b) of the National Labor Relations Act,

USL. GROG US). oss ie. 8

Section 601 of the Civil Rights Act

of 1964, 42 U.S.C. § 2000d (1964) ................ 13

41 Code of Federal Regulations (“CFR”) § 60-741

WEE Siiiewics secs ceuss ctkoowee bast ernie 13

Indiana Statutes:

Indiana Code § 34-4-2-13 (1969).................. 3,5

Cases:

United States Supreme Court:

Auto Workers v. Hoosier Corp., 383 U.S. 696

EE i shire noc oe-Khe new > hb unien Ramee sae 4,5

California v. Sierra Club, 451 U.S. 287 (1981)..... 9,11

Cannon v. University of Chicago, 441 U.S. 675

I Penh Beds Cs 63 oa OA ee he oe 9,10, 11

Chevron Oil Co., v. Huson, 404 U.S. 97

SEE Sides hd we cow S vk oi keen tae ys Cee 6,7

Cort v. Ash, 422 U.S. 66 (1975) ............... 2,9,11

Davis v. Passman, 442 U.S. 228 (1979) ........... 11

DelCostello v. International Brotherhood of

Teamsters, 51 U.S.L.W. 4693 (1983). ..... 2, 3, 6, 7, 8,9

Lau v. Nichols, 414 U.S. 563 (1974) .............. 13

Middlesex County Sewerage Authority v.

National Sea Clammers Assoc., 453 U.S. 1

SERS eS RS gi A olen age a enuraee q

Touche Ross & Co., v. Redington, 442 US.

I ts sie Rey, NIE oe eae 9,11

Transamerica Mortgage Advisors, Inc. v. Lewis,

PI 50 Se Fea ae 9,11

United Parcel Servcice, Inc. v. Mitchell, 451 U.S.

I eri Se Ba ee 4, 5, 6,7, 8,9

Universities Research Association, Inc. v. Coutu,

I a ea 6 ae 11

Circuit Courts of Appeals:

Beam v. Sun Ship Building & Dry Dock Co.,

GTO De BOTT Grd Cir. TOGRD ann os ne ccc cess. a

Curtis v. Teamsters Local 299, 716 F.2d 360

IIS oh as oly gig teeta ee wa 6

Davidson v. Roadway Express, Inc., 650 F.2d 902

«lk ER Se eer ee eee ore 5

Davis v. United Airlines, 662 F.2d 120

(2nd Cir. 1981), cert. denied, 102 S.Ct. 2045

RR is ee et CO ees kus 10,12

Fisher v. City of Tucson, 663 F.2d 861

(9th Cir. 1981), cert. denied, 103 S.Ct. 178 (1982) .. 9,12

Hoopes v. Equifax, Inc., 611 F.2d 134

I Oo ok Vv sks bok pene as 62% eae 10

Lawson v. Local Union 100, 698 F.2d 250

I on soa rah 5 Os oc Seopa es a cdaa et 8

Lloyd v. Regional Transportation Authority,

548 F.2d 1277 (7th Cir. 1977)..............0...4. 13

Metz v. Tootsie Roll, Inc., 715 F.2d 299 (7th Cir.

ENR yn? ren PNT ene a nea 6

Perez v. Dana Corp., 98 L.C. 410,484 (3rd Cir.,

mentemiver 26, 1000)... :.. 60. sa aR 6,8

iv

Rogers v. Frito Lay, Inc., 611 F.2d 1074 (5th Cir.),

cert. denied, 449 U.S. 889(1980)............... 10, 12

Simon v. St. Louis County, 656 F.2d 316

(8th Cir. 1981), cert. denied, 455 U.S. 976

Es Seslk «aad n dds 0 Vie ta nde tae be heeeeet 10

Simpson v. Reynolds, 629 F.2d 1226

FURS See occ a eee HERA 10, 11,13

Storck v. International Brotherhood of

Teamsters, 712 F.2d 1194 (7th Cir. 1983) ......... 6

District Courts:

James v. Communication Workers Local 3204,

113 LRRM 3386 (N.D. Ga. 1983)................. 6

Marston v. LaClede Cab Co., Slip Opinion

No. 83-1098C(1) (October 6, 1983, E.D. Mo.) ....... 5

IN THE

- SUPREME COURT OF THE UNITED STATES

October Term, 1983

No. 83-687

CLIFFORD B. ERNST, JR.

Petitioner,

versus

INDIANA BELL TELEPHONE COMPANY,

INCORPORATED and COMMUNICATIONS

WORKERS OF AMERICAN, LOCAL 5703,

Respondents.

ON PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

Ww

BRIEF IN OPPOSITION FOR RESPONDENT,

INDIANA BELL TELEPHONE COMPANY,

INCORPORATED.

entere i in this action on July 28, 1983.

SUMMARY OF ARGUMENTS

I.

The Writ should be denied because Petitioner has failed

to present any argument within the parameters of United

States Supreme Court Rule 17, Considerations Governing

Review On Certiorari, but rather merely argues the merits

of his position.

II.

The Writ should be denied on the issue of the retroactivi-

ty of DelCostello v. International Brotherhood of Team-

sters because, in the final analysis, that question is of only

hypothetical significance in the instance case. Prior to the

DelCostello decision, an Indiana plaintiff's Section 301 claim

against his employer was governed by Indiana’s 90-day

statute of limitations for vacating arbitration awards. Peti-

tioner’s Section 301 claim, therefore, is barred by that

90-day statute of limitations, if not by DelCostello’s six-

month statute of limitations.

Il.

The Writ should also be denied on the issue of the

retroactivity of DelCostello because there is no conflict

among federal courts of appeals on this point. Additionally,

there is no important federal question to be decided because

DelCostello did not represent a “clean break” with past law;

therefore, it was not fundamentally unfair to apply the six

month statute of limitatons retroactively.

IV

The Writ should likewise be denied on the issue of

whether there is a private cause of action under 29 U.S.C. §

793(a) since every circuit court which has been presented

with the opportunity of applying the Cort v. Ash, 442 U.S.

66 (1975), criteria to the language of that statute has found it

inappropriate to imply a private remedy. Four of those deci-

sions have been denied certiorari by this Court. Further-

more, there is no important federal question to be resolved.

3

V.

The issue of whether there was a genuine issue of

material fact presented by Petitioner so as to preclude sum-

mary judgment is one which does not rise to the level of a

question worthy of granting a Writ of Certiorari.

ARGUMENT

I

The Writ Should be Denied Because Petitioner Only

Argues The Merits Of The Issues He Raises And Does

Not Set Forth What Considerations Warrant Granting

His Petition.

Review on Writ of Certiorari is a matter of judicial discre-

tion and is granted only when there are special and impor-

tant reasons for so doing. United States Supreme Court

Rule 17 references the types of reasons to be considered in

granting review. Nowhere in his Petition does Petitioner ad-

dress those reasons that make review appropriate; rather,

he merely argues the merits of his position on the issues he

raises.

Il.

The Writ Should Be Denied On The Issue Of The

Retroactivity of DelCostello v. International Brother-

hood Of Teamsters Because It Is Academic In The In-

stance Case. Even If DelCostello Had Not Been Ap-

plied, Petitioner's Section 301 Claim Would Have Been

Barred By The Much Shorter Limitations Period

Found In Indiana Code § 34-4-2-13.

Petitioner contends that retrcactive application of the six

months’ statute of limitations prescribed by this Court in

DelCostello v. International Brotherhood of Teamsters, 51

U.S.L.W. 4693 (1983), would “work a severe hardship ... and

cause a substantial injustice upon” him. [Petition at 9] In

support of this allegation, he claims that the controlling

decision prior to DelCostello was Auto Workers v. Hoosier

4

Cardinal Corp., 383 U.S. 696 (1966), and that Hoosier Car-

dinal provided for a six year statute of limitations in suits

brought by an employee against his employer and union

pursuant to Section 301(a) of the Labor-Management Rela-

tions Act, 29 U.S.C. § 185(a) (1947), for breach of contract

and breach of the duty of fair representation. This is inac-

curate.

Contrary to Petitioner's claim, the controlling authority

regarding the statute of limitations for hybrid Section

301/fair representation claims prior to DelCostello was this

Court’s decision in United Parcel Service, Inc. v. Mitchell,

451 U.S. 56 (1981). In Mitchell, this Court addressed the

issue of which of two state statutes of limitation was prop-

erly borrowed and applied to an employee's action against

his employer under Section 301. Analogizing such a claim to

an action to vacate an arbitration award, this Court held

that the proper statute of limitations was the New York

90-day state statute for vacating an arbitration award. Any

other characterization of the action, this Court commented,

overlooked the fact that “an arbitration award stands be-

tween the emplovee and any relief which may be awarded

against the company.” /d. at 63 n.4.

Indeed, in his concurring opinion Justice Stewart

distinguished the Court's earlier decision in Hoosier Car-

dinal as one which involved a garden variety breach of con-

tract damage suit brought by the union against an employer

under Section 301. As such, the suit in Hoosier Cardinal had

net implicated “‘those consensual processes that federal

labor law is chiefly designed to promote —the formation of

the agreement and the private settlement of disputes under

it.’” Id. at 66, quoting 383 U.S. at 702 (Stewart, J., concur-

ring) (emphasis by Justice Stewart). That situation, he con-

cluded, was distinct from the one presented in Mitchell for

two reasons. First, because Mitchell was a suit which

sought to set aside a final and binding arbitration decision,

it did not pose a direct challenge to “‘the private settlement

of disputes under [the collective bargaining agreement].’”

451 U.S. at 66. Moreover, because the plaintiff necessarily

5

had to prove that he was unfairly represented by the union

before he could reach the merits of his Section 301 claim

against the employer, the suit was best described as “an

amalgam of Section 301, which has no limitations period,

and the NLRA.” Jd. at 67.

After this Court's decision in Mitchell, therefore, it was

beyond doubt that the controlling authority in hybrid Sec-

tion 301/fair representation suits was Mitchell, not Hoosier

Cardinal. Foliowing Mitchell, the United States Court of

Appeals for the Seventh Circuit held in Davidson v. Road-

way Express, Inc., 650 F.2d 902 (7th Cir. 1981), cert. denied,

455 U.S. 947 (1982), that an employee's Section 301 claim

against his employer and union brought in Indiana was

governed by Indiana's 90-day statute of limitations for

vacating arbitration awards. Indiana Code § 34-4-2-13

(1969).*

In the final analysis, therefore, the question of whether

DelCostello is entitled to retroactive application is of only

hypothetical significance in the instant case, since Peti-

tioner’s Section 301/fair representation claim is barred

under the previous statute of limitations. Faced with this

identica! circumstance, the district court in Marston v.

LaClede Cab Co., Slip Opinion No. 83-1098(C\(1) (October 6,

1983, E.D. Mo.), made the following comment:

‘(T]his Court declines tc pass on plaintiff's contention

that DelCostello should not be applied retroactively,

because the issue, fascinating as it may be, is only of

hypothetical importance in this case. It is true that

DelCostello changed the prior law, which was Mitchell,

but application of Mitchell to this case would result in

borrowing the [state] statute of limitations for vacating

arbitration awards. Under that statute, the period of

limitations applicable to plaintiff's federal claims .. . is

ninety (90) days.”

*The district court in this case granted Indiana Bell's Motion for Sum-

mary Judgment, in part, because of the Indiana 90-day statute of limita-

tions. 30 FEP Cases 1248 (S.D. Ind. 1981).

Id. at 3-4. (See Appendix at 4a-5a). Accord Perez v. Dana

Corporation, 98 L.C. 410,484, 19,399 (3rd Cir., September 28,

1983) (“[I]n [Mitchell], the applicable state statute of limita-

tions was only ninety days. [Plaintiff] obviously could not

have relied on those cases in waiting twenty-three months

to file this suit. Even if DelCostello constituted a clean

break from the positions taken in [past] cases ... it did not

overrule past precedent on which [plaintiff] may have

relied’); James v. Communication Workers Local 3204, 113

LRRM 3386 (N.D. Ga. 1983).

Ill.

The Writ Should Also Be Denied On The Issue Of The

Retroactivity Of DelCostello Because There Is No Con-

flict Among Federal Courts Of Appeals Nor Is It Such

An Important Question Of Federal Law As To War-

rant A Decision By This Court.

Even if the issue of retroactivity is not considered to be

academic in this case, the bases traditionally considered by

this Court in granting review of a writ of certiorari are not

present.

First, there is no conflict among federal courts of appeals

as to whether DelCostello should be applied retroactively.

Those appellate courts that have been confronted with Sec-

tion 301 claims since DelCostello have applied it retroac-

tively. The United States Court of Appeals for the Seventh

Circuit did so in this case and subsequently in two others.

See Metz v. Tootsie Roll, Inc., 715 F.2d 299 (7th Cir. 1983);

Storck v. International Brotherhood of Teamsters, 712 F.2d

1194 (7th Cir. 1983). The only other federal circuit courts of

appeals discussing DelCostello, the Third and Sixth Cir-

cuits, have applied it retroactively. See Perez v. Dana

Corp., 98 L.C. 410,484 (3rd Cir., September 28, 1983); Curtis

v. Teamsters Local 299, 716 F.2d 360 (6th Cir. 1983). In

Perez, the Third Circuit applied the test set forth by this

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

determining whether retroactive application was proper,

and expressly held that DelCostello, even though “decided

subsequent to Mitchell and during the pendency of this ap-

peal, applie[d] retroactively.” 98 L.C. at 19,397. The Sixth

Circuit, while dismissing the complaint because of a pro-

cedural error, did “note that the disposition in this case

would have been consistent with the recent Supreme Court

opinion in DelCostello. .. .” 716 F.2d at 361.

Furthermore, the issue of retroactivity is not such an im-

portant question of federal law as to require this Court’s

review. The standard for determining whether a judicial

decision is entitled to retroactive application was codified

by this Court in Chevron Oil, which established the follow-

ing three-part test:

“First, the decision to be applied non-retroactivtty

must establish a new principle of law, either by over-

ruling clear past precedent on which litigants may

have relied, [citation omitted] ur by deciding an issue of

first impression whose resolution was not clearly

foreshadowed [citation omitted]. Second, it has been

stressed that ‘we must . . . weigh the merits and

demerits in each case by looking to the prior history of

the rule in question, its purpose and effect, and

whether retrospective operation will further or retard

its operation. [citation omitted} Finally, we have

weighed the inequity imposed by retroactive applica-

tion, for ‘[w]here a decision of this Court could produce

a substantial inequitable result if applied retroactively,

there is ample basis in our cases for avoiding the “in-

justice or hardship” by a holding of non-retroactivity.’”

[citation omitted].

Id. at 106-107. As noted earlier in Section II, prior to

DelCostello this Court’s decision in Mitchell was the con-

trolling authority with respect to the statute of limitations

applied in employee suits brought under Section 301. Even

after Mitchell, however, the issue of the statute of limita-

tions to apply was not finally resolved, since this Court did

not consider whether the six month federal statute of limita-

8

tions found in Section 10(b) of the National Labor Relations

Act, 29 U.S.C. § 160(b) (1947), might apply to such hybrid ac-

tions. See Perez v. Dana Corp., supra, 98 L.C. at 19,401 n. 7

(“The circuits could not agree on whether the same statute

of limitations governed both the action against the

employer and the action against the union”).

In light of the above, it can hardly be argued that this

Court's decision in De/Costello represented a “clean break”

with the past, or that it would be fundamentally unfair to

apply the standard established in DelCostello. Indeed, Mit-

chell actually represented a more severe departure from

previous Section 201 analysis, and yet Mitchell was given

retroactive application by courts confronted with the issue

of retroactivity. In Lawson v. Local Union 100, 698 F.2d 250

(6th Cir. 1983), for example, the Sixth Circuit rejected the

claim that Mitchell should not be applied retroactively. The

Sixth Circuit stated that:

“As Mitchell makes clear, the law on the limitations

question in Section 301 wrongful discharge and unfair

representation cases has been in a state of confusion

for some time. This Circuit and other circuits, prior to

Mitchell, had adopted various state statutes of limita-

tions, depending on the peculiarities of the limitations

law of the state in question and the arguments of

counsel in the particular case . . . [W]e do not believe

that Mitchell represents the kind of ‘clean break’ with

past precedent contemplated in Chevron and [United

States v. Johnson, US. (1982)]. Mitchell was

simply a ‘clarification, an attempt to impose a single

policy and a single rule in a legally chaotic situation...

We do not think that a ‘clean break’ occurs every time

the Supreme Court clarifies the law by resolving an

issue on which there is circuit conflict and confusion.

To so hold would reverse the regular common law rule,

applied in Chevron and Johnson, that we should not

normally have one law for old cases and another jaw for

new cases. We note also that both this Circuit and

others have assumed that the Mitchell rule applies

retroactively (citations omitted].”

Id. at 254. In fact, in her dissenting opinion in DelCostello,

Justice O'Connor commented that, “It is quite appropriate

to apply Mitchell retroactively. Mitchell did not represent a

‘clear break’ with past law. .’. .” 51 U.S.L.W. at 4700 n. 2

(O'Connor, J., dissenting).

The guidelines for retroactivity, therefore, have already

been established and tliat issue does not rise to the level of

importance requiring this Court to address it.

IV.

The Writ Should Likewise Be Denied On The Issue Of

Whether There Is A Private Cause of Action Under 29

U.S.C. § 793(a) Since There Is No Conflict Among

Federal Courts of Appeals Nor Is That Issue Such An

Important Question Of Federal Law Requiring This

Court’s Attention.

Whether it is appropriate to imply a private cause of ac-

tion where none is expressly granted is a question con-

trolled by the analysis set forth by this Court in Cort v. Ash,

422 U.S. 66 (1975), and its progeny. See Middlesex County

Sewerage Authority v. Natwnal Sea Clammers Assoc., 453

U.S. 1 (1981); California v. Sierra Club, 451 U.S. 287 (1981);

Transamerica Mortgage Advisers, inc. v. Lewis, 444 U.S. 11

(1979); Touche Ross & Co. v. Redington, 442 U.S. 560 (1979);

and Cannon v. University of Chicago, 441 U.S. 675 (1979).

Each of the six circuit courts which have been presented

with the opportunity of applying the Cort criteria to the

language of Section 503 have found it inappropriate to imply

a private remedy, and four of those decisions were denied

certiorari by this Court.* See Beam v. Sun Ship Building &

Dry Dock Co., 679 F.2d 1077 (3rd Cir. 1982); Fisher v. City of

Tucson, 663 F.2d 861 (9th Cir. 1981), cert. denied, 103 S.Ct.

*This point, more than any other, als: speaks to the fact that this issue is

not of the significance or magnitude to require review by this Court.

10

178 (1982); Davis v. United Airlines, 662 F.2d 120 (2nd Cir.

1981), cert. denied, 102 S.Ct. 2045 (1982); Simon v. St. Louis

County, 656 F.2d 316 (8th Cir. 1981), cert. denied, 455 U.S.

976 (1982); Simpson v. Reynolds Metals Co., 629 F.2d 1226

(7th Cir. 1980); Rogers v. Frito Lay, Inc., 611 F.2d 1074 (5th

Cir.), cert. denied, 449 U.S. 889 (1980); Hoopes v. Equifax,

Inc., 611 F.2d 134 (6th Cir. 1979). No conflict exists among

the circuits.

Furthermore, the issue of whether an implied private

cause of action is appropriate under Section 503 is not such

an important question of federal law that this Court need

address it. The criteria for determining if an implied private

cause of action exists are well settled.

In Cort, the following principles were established for

determining whether it was proper to imply a private

remedy where the statute itself provides no guidance:

“First is the plaintiff ‘one of the class for whose

especial benefit the statute was enacted,’ [citation

omitted]—that is, does the statute create a federal

right in favor of the plaintiff? Second, is there any in-

dication of legislative intent, explicit or implicit, either

to create such a remedy or to deny one? [citation omit-

ted] Third, is it consistent with underlying purposes of

the legislative scheme to imply such a remedy for the

plaintiff? [citations omitted] And finally, is the cause of

action one traditionally relegated to state law, in an

area basically the concern of the states, so that it would

be inappropriate to confer a cause of action based sole-

ly on federal law? [citations omitted].”

422 US. at 78.

As this Court further explained in Cannon v. University

of Chicago, supra:

“(T]he fact that a federal statute has been violated and

some person harmed does not automatically give rise

to a private cause of action in favor of that person. In-

stead, before concluding that Congress intended to

make a remedy available to a special class of litigants, a

11

court must carefully analyze the four factors that Cort

identifies as indicative of such an intent.”

441 U.S. at 688. Cases decided by this Court subsequent to

Cort and Cannon have emphasized that the “ultimate issue

is whether Congress intended to create a private right of ac-

tion [citations omitted]; but the four factors specified in Cort

remain the ‘criteria through which this intent [can] be

discerned.’ California v. Sierra Club, supra, at 287, citing

Universities Research Association, Inc. v. Coutu, 450 U.S.

754, 771-772 (1981); Transamerica Mortgage Advisers, Inc.

v. Lewis, supra, at 23-24; Touche Ross & Co. v. Redington,

supra, at 575-576; Davis v. Passman, 442 U.S. 228, 241 (1979).

The Seventh Circuit's opinion in Simpson v. Reynolds

Metals Co., 629 F.2d 1226 (7th Cir. 1980), is a thorough

analysis of the wording of Section 503 and its legislative his-

tory. In concluding that a private cause of action was inap-

propriate, the Seventh Circuit carefully evaluated each of

the Cort criteria. It observed that Section 503 did not make

discrimination against handicapped persons illegal, but only

imposed an obligation on federal agencies administering

federal contracts to incorporate an affirmative action

clause. The Seventh Circuit went on to state that the

language found in Section 503 fell squarely within this

Court’s observation in Cannon that:

“There would be far less reason to infer a private rem-

edy in favor of individual persons if Congress, instead

of drafting [the statute] with an unmistakable focus on

the benefited class, had written it simply as a ban on

discriminatory conduct by recipients of federal funds

or as a prohibition against the disbursement of public

funds to educational institutions engaged in discrimina-

tory practices.”

Id. at 1240, quoting 441 U.S. at 690-693. The Seventh Circuit

thus concluded that while Section 503 did identify “a par-

ticular class to be benefited . . . the lack of [any] duty-

creating language in Section 503 makes implication of a

private judicial remedy difficult.” 629 F.2d at 1240. See Can-

12

non, supra, at 690 n. 13 (“Not surprisingly, the right or duty

creating language of the statute has generally been the

most accurate indicator of the propriety of implication of a

cause of action”).

The Seventh Circuit next examined the legislative his-

tory surrounding Section 503. Respondent will not recite

that lengthy discussion. It speaks for itself and has been

carefully exhumed for review by other circuit courts as

well. See Fisher v. City of Tucson, supra; Davis v. United

Airlines, supra; Rogers v. Frito Lay, Inc., supra. Suffice it

to say that the Seventh Circuit concluded that:

“With the exception of the language from [one] Senate

Report, we find all these excerpts from the legislative

history ambiguous in their reference to Section 503.

-_**

“We are left without any indication that, contemporan-

eous with its adoption of Section 503, Congress in-

tended to extend a private remedy to handicapped in-

dividuals allegedly harmed by their employer's failure

to comply with his affirmative action obligation as a fed-

eral contractor. At most, we are faced with an assump-

tion on the part of a legislative committee in 1978 that

five years earlier Congress had created a private right

of action to enforce Section 503. Such an assumption

cannot be relied upon as a faithful indicator of prior

Congressional intent.”

629 F.2d at 1242-1243.

Finally, the Seventh Circuit determined that implying a

cause of action would not meaningfully advance the pur-

poses of the legislation. It stated that:

“Section 503(b) provides an express administrative

remedy for a handicapped individual who believes he

has been injured by a contractor's failure to comply

with Section 503(a) and the regulations implementing

that Section. This fact insofar as it discloses the under-

lying purposes of the legislative scheme suggests that

the implication of a private right in favor of [the plain-

13

tiff], would be inconsistent with the scheme.”

629 F.2d at 1243.

The fact that every circuit court which has decided the is-

sue, both before and after the Seventh Circuit’s Simpson de-

cision, has reached the identical result demonstrates that

the decision is grounded on sound policy and analysis.

Petitioner's citation of the Seventh Circuit's decision in

Lloyd v. Regional Transportation Authority, 548 F.2d 1277

(7th Cir. 1977), is not to the contrary. [Petition at 12] Lloyd

made reference to 29 U.S.C. § 794 [Section 504], not Section

503, and is taken entirely out of context. In Lloyd, the

Seventh Circuit found that a private cause of action was

properly implied into Section 504 because its language

closely tracked that of Section 601 of the Civil Rights Act of

1964, 42 U.S.C. § 2000d, which this Court has held provides a

private cause of action. See Lau v. Nichols, 414 U.S. 563

(1974). In addition, the Seventh Circuit noted that as of the

time the suit was commenced no administrative remedy was

available to the plaintiffs under Section 504. The court

stated that “[w]ithout the benefit of any regulations, it is dif-

ficult to perceive what relief could have been afforded at

{the administrative] stage.” 548 F.2d at 1287.

Lloyd, then, is entirely distinguishable from the Simpson

holding. Not only is the language of Section 504 different

from Section 503, but extensive regulations have been

promulgated to give full effect to the prohibitions of Section

503. See 41 CFR § 60-741 et seq.

Accordingly, since the Seventh Circuit’s opinion in Simp-

son properly applies well established criteria, and since

there is not one circuit court decision in disagreement with

Simpson, Petitioner's request for certiorari on this issue

should be denied.

V.

Whether There Were Genuine Issues of Material Fact

Presented By Petitioner So As To Preclude Summary

Judgment Is Not An Issue That Properly Warrants

Consideration By This Court.

14

The last issue Petitioner raises is whether the district

court’s grant of summary judgment against him was ap-

propriate. Such a routine and common question does not

rise to the level of the character of reasons for which this

Court grants a writ of certiorari. Additionally, for the

reasons set forth in Section II above, this issue is academic

and need not be addressed.

CONCLUSION

Petitioner has failed to articulate any reasons or consider-

ations of the character specified in Supreme Court Rule 17

that would suggest the Court should exercise its judicial

discretion and grant review. Furthermore, when one scru-

tinizes the appropriate considerations it is abundantly clear

that the Writ for Certiorari should be denied.

Respectfully submitted,

William E. Roberts

Henry C. Ryder

Gregory J. Utken

Suite 2020, One Indiana

Square

Indianapolis, Indiana 46204

Counsel for Respondent,

Indiana Bell Telephone

Company, Incorporated

la

APPENDIX

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 83-1098C(1)

DONALD MARSTON,

Plaintiff,

vs.

LACLEDE CAB COMPANY and

TEAMSTERS LOCAL UNION NO. 688,

Defendants.

ORDER

IT IS HEREBY ORDERED that defendants’ motions for

summary judgment on Court I of plaintiff's complaint,

based upon the bar of the statute of limitations, be and are

granted.

IT IS FURTHER ORDERED that Count I of plaintiff's

complaint be and is dismissed with prejudice.

IT IS FURTHER ORDERED that Count II of plaintiff's

complaint be and is remanded to the Circuit Court of the

City of St. Louis, State of Missouri.

IT IS FURTHER ORDERED that defendant Laclede

Cab’s motion to strike be and is denied as moot.

/s/ John F. Nagle

UNITED STATES DISTRICT JUDGE

Dated: October 6, 1983

2a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 83-1098C(1)

DONALD MARSTON,

Plaintiff

vs.

LACLEDE CAB COMPANY and

TEAMSTERS LOCAL UNION NO. 688,

Defendants.

MEMORANDUM

This case is now before this Court on the motions of

defendants for judgment on the pleadings or, in the alter-

native, for summary judgment, with respect to Count I of

plaintiff's complaint. Defendants argue that Count I is

barred by the statute of limitations.

Plaintiff’s cause of action arises out of his discharge from

employment by defendant Laclede Cab Company (Laclede).

The factual allegations are as follows. Plaintiff, who worked

as a dispatcher for Laclede, was discharged on February 12,

1982. The alleged reasons for plaintiff's discharge were 1)

plaintiff's “dishonesty”, on February 10, 1982, in telling a

Laclede Cab driver that plaintiff did not know the telephone

number of the fire department when the driver requested

it; and 2) plaintiff's lack of compassion in refusing to give

the telephone number when a cab (belonging to a competitor

of Laclede) was on fire. Plaintiff grieved his discharge and

requested a service letter. The grievance was carried

through step four (4) of the grievance procedure provided

by the collective bargaining contract between defendants

and covering plaintiff. Step four (4) is a two (2) man Adjust-

ment Board consisting of one union and one company

representative. On February 21, 1982, plaintiff was in-

formed by his Shop Steward, a member of defendant

3a

Teamsters Local Union No. 688 (Teamsters), that the Ad-

justment Board found in favor of Laclede. Sometime around

the end of March, 1982,’ plaintiff was informed by the

Business Agent for Teamsters that plaintiff's grievance

would not be taken to arbitration. Around the same time

Laclede responded to plaintiff's request for a Service Let-

ter with the statement that plaintiff was discharged on ac-

count of dishonesty in connection with the February 10,

1982, telephone number incident. Thereafter, on April 5,

1982, plaintiff requested a meeting of Teamsters’ Executive

Board to discuss his grievance and on May 27, 1982, the Ex-

ecutive Board denied his request.

On Apri! 14, 1983, plaintiff filed the complaint in the Cir-

cuit Court for the City of St. Louis, State of Missouri. In

Count I plaintiff alleges that Laclede’s discharge of plaintiff

was based on arbitrary and capricious grounds in violation

of the collective bargaining agreement and that Teamsters

violated its duty of fair representation of plaintiff in refus-

ing to take his grievance to arbitration. In addition, Count I

alleges a conspiracy between Laclede and Teamsters to

discharge plaintiff on arbitrary grounds. All the acts in

Count I are alleged to be violations of the Labor Manage-

ment Relations Act of 1947 (LMRA). 29 U.S.C. §§ 141 et seq.

Count II is based upon Missouri's Service Letter statute,

R.S.Mo. § 290.140 (1982), and alleges that the reasons given

by Laclede for plaintiff's discharge were false.

Defendants removed the case to this Court, under 28

U.S.C. § 1441, on the ground that this Court has original

jurisdiction under section 301 of the LMRA, 29 U.S.C. § 185,

over Count I of plaintiff's complaint and pendent jurisdic-

tion over Count II. Defendants then moved for summary

judgment in their favor on Count I on the ground that it is

barred by the applicable statute of limitations.

‘In paragraph 9 of plaintiff's complaint the date is described as a few days

after “March 25, 1983.” However, it is clear from other allegations in the

complaint and the memoranda of the parties that March 25, 1982, is what

was intended.

4a

Under Rule 56 of the Federal Rules of Civil Procedure, a

movant is entitled to summary judgment if he can “show

that there is no genuine issue as to any material fact and

that [he] is entitled to a judgment as a matter of law.”

Fed.R.Civ.P. 56(e). See also Poller v. Columbia Broad-

casting System, Inc., 368 U.S. 464 (1962). In passing upon a

Rule 56 motion for summary judgment, a court is required

“to view the facts in the light most favorable to the party

opposing the motion.” Vette Co. v. Aetna Casualty and

Surety Co., 612 F.2d 1076, 1077 (8th Cir. 1980).

In DelCostello v. International Brotherhood of

Teamsters, 51 U.S.L.W. 4693 (June 8, 1983), the Supreme

Court considered the question of what period of limitations

should govern in an employee's hybrid section 301/fair

representation suit against an employer and a union.

Earlier, in United Parcel Service, Inc., v. Mitchell, 451 U.S.

56 (1981), the Court held that a state statute of limitation for

vacation of an arbitration award, rather than a state statute

for an action on a contract, should govern in a section 301

suit against an employer. However, in DelCostello the

Court effectively overruled Mitchell and held that the six

(6)-month period of limitations provided in section 10(b) of

ihe Nationa] Labor Relations Act, 29 U.S.C. § 160(b), should

govern in hybrid section 301/fair representation suits both

as to the claim against the employer and the claim against

the union.

Defendants rely on DelCostelio to support their conten-

tion that Count I of plaintiff's complaint is time-barred. It is

the opinion of this Court that no genuine issue of material

fact exists with respect to the statute of limitation question

and, therefore, summary judgment is appropriate. The legai

issues raised by defendants’ motions and plaintiff's reply

are as follows: 1) whet aer DelCostello should apply retroac-

tively; and 2) when did plaintiff's causes of action under

Count I accrue.

Plaintiff raises the retroactivity question because

DelCostello was decided nearly two (2) months after plain-

tiff filed his complaint in state court. However, this Court

5a

declines to pass on plaintiff's contention that DelCostello

should not be applied retroactively, because the issue,

fascinating as it may be, is only of hypothetical importance

in this case. cf. Storck v. Int'l Brotherhood of Teamsters,

712 F.2d 1194 (7th Cir. 1983). It is true that DelCostello

changed prior law, which was Mitchell, but application of

Mitchell to this case would result in borrowing the Missouri

statute of limitations for vacating arbitration awards.

Under that statute, R.S.Mo. § 435.405.2, the period of limita-

tions applicable to plaintiff's federal claims in Count I is

ninety (90) days.’

Plaintiff contends, relying on Butler v. Local Union 823,

Int'l. Brotherhood of Teamsters, 514 F.2d 442 (8th Cir.),

cert. denied, 423 U.S. 924 (1975), that prior to DelCostello

the Missouri five (5)-year statute of limitations for breach of

contract actions would have applied to plaintiff's claims.

This Court rejects plaintiff's argument because Mitchell in

effect overruled Butler's choice of a state statute of limita-

tions and borrowed a statute which typically provided a

much shorter period. Arguably after Mitchell it was not

clear which limitations period applied to a fair representa-

tion claim against a union. See DelCostello, 51 U.S.L.W. at

4694 n.1. However, Butler held that the period applicabie to

a section 301 claim also applies to a fair representation

claim, 514 F.2d at 448, and Mitchell did not affect that por-

tion of the Eighth Circuit’s holding. Accordingly, in this cir-

cuit at least, after Mitchell and prior to DelCostello the

period applicable to a hybrid section 301/unfair representa-

tion claim was the ninety (90)-day period in R.S.Mo. §

‘Prior to DelCostello, the period of limitations for vacating arbitration

awards would have applied from the time plaintiff's claims accrued under

federal law, even though plaintiff's grievance was never in fact taken to

arbitration. Hunt v. Missouri Pacific R.R., 561 F. Supp. 310, 314 (E_D.

—— Stahiman v. Kroger Co., 542 F. Supp. 1118, 1120 (E.D. Mo.

1982).

R.S.Mo. § 435.405.2 to all contracts entered into after August 13,

1980. Stahiman, 542 F. Supp. at 1120 n.1. The contract in this case was

entered into on December 1, 1980.

6a

435.405.2. Under DelCostello the period is six (6)-months or

double that which plaintiff was entitled to prior to Del-

Costello. In light of this conclusion, it is unlikely that plain-

tiff wishes to contend that DelCostello should not be ap-

plied retroactively, and this Court does not reach that issue.

With respect to the issue of accrual, it is settled that a

hybrid section 301/fair representation claim against both an

employer and a union accrues on the date the employee's

grievance is finally rejected and his opportunity to gain

reinstatement through the contractual grievance procedure

is aborted. Butler, 514 F.2d at 449; Collins v. American

Freight System, Inc., 559 F. Supp. 1032, 1036 (W.D. Mo.

1983); Wilcoxen v. Kroger Food Stores, 545 F. Supp. 1019,

1021 (E.D. Mo. 1982); Stahlman v. Kroger Co., 542 F. Supp.

1118, 1120 (E.D. Mo. 1982); Lincoln v. District 9 of the Inter-

national Association of Machinists and Aerospace Workers,

539 F. Supp. 1346, 1348 (E.D. Mo. 1982); Fields v. Babcock &

Wilcox, 108 LRRM 3150, 3151 (W.D. Pa. 1981). The validity

of this accrual rule was not affected by the Supreme Court's

decisions in either Mitchell or DelCostello. In the case at

bar, plaintiff's grievance was finally rejected around the

end of March, 1982, when plaintiff was informed that his

grievance would not be taken to arbitration. Plaintiff cites

Smith v. International Ladies Garment Workers Union, 537

F. Supp. 347, 349 (M.D.AI. 1981), for the proposition that his

claim did not accrue until defendants’ last contact with the

grievance filed by plaintiff, and argues that under this

theory his claim did not accrue until May 27, 1982. Plaintiff

concedes, however, that under either date his claim was not

filed within six months thereafter and is thus time-barred if

his claim accrued on either date.

As a last resort, plaintiff asserts that his claim should not

be deemed to have accrued:

until he had exhausted all of his administrative rem-

edies as set forth in Section 10(B) (sic)... , or until the

grievance was arbitrated or Plaintiff was given an ex-

planation as to why the grievance would not be ar-

bitrated.

7a

“Plaintiff's Trial Brief” at 3-4. This Court rejects the latter

two alternatives as illogical, frivolous and without merit. No

arbitration has ever occurred and plaintiff has never been

given an explanation as to why his grievance was not taken

to arbitration. Plaintiff's argument is self-defeating in that

it would logically lead to the conclusion that his claim has

not accrued to this date. See also, supra, note 2. With

respect to plaintiff's first alternative, plaintiff impliedly

argues that in adopting the six (6)-month period of limitation

in section 10(b) for hybrid section 301/fair representation

claims, the Supreme Court in DelCostello also adopted the

full panoply of section 10(b) N.L.R.B. procedures as condi-

tions precedent to such suits. This Court cannot find sup-

port for plaintiff's argument in either the language or ra-

tionale of the Supreme Court’s opinion in DelCostello.

Accordingly, this Court finds that plaintiff's claims in

Count I accrued, at the latest, on or about May 27, 1982, and

that such claims are barred by the applicable six (6)-month

period of limitations. Defendants’ motions for summary

judgment be and are granted.

Plaintiff's remaining Count II is a state law claim over

which this Court lacks original jurisdiction. Under 28 U.S.C.

§ 141(c) this Court has discretion to “remand all matters not

otherwise within its original jurisdiction.” Therefore, plain-

tiff's only remaining count, Count II, be and is remanded to

the Circuit Court of the City of St. Louis, State of Missouri.

/s/ John F. Nagle

UNITED STATES DISTRICT JUDGE

Dated: October 6, 1983

. a