Petition — Draper v. United Automobile, Aerospace & Agricultural Implement Workers, Local 387

[ore “supreme Oe

FILED

APR 5 1984

R L. STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

WILLIE L. DRAPER,

Petitioner,

vs.

UNITED AUTOMOBILE, AEROSPACE

AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, LOCAL 387,

JESSE GREGORY; FORD MOTOR CO.,

WOODHAVEN STAMPING PLANT; AND

FRANK DOYLE

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

FROM THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT |

WILLIE L. DRAPER

P.O. BOX 15540

DETROIT, MICHIGAN 48215

TELEPHONE: (313) 933-6953

co-_- ~

QUESTIONS PRESENTED FOR REVIEW

Was the granting of summary judgment

based on laches, statute of limitations,

lawful, where, time a material issue of fact,

disputed less than three in issue

Appendixes A and B.

Further, was it “constructive contempt*

by non-compliance with court‘s subpeona, what

is fair procedure?

Is it “denial of a meaningful opportu-

nity to be heard to grant motion not in

procedural compliance with rules and thereby

effecting a substantial right VII Amendment

to the United States Constitution?

Was substantial justice rendered where

affidavits were made in bad faith, no

discovery or cross examination of parties

making affidavits and Court asserting good

faith of union?

Was the acts of the Respondent union

(conspiracy) a breach of duty of fair

representation?

ity

Pe

4

Is continuing racial discrimination

against minorities (blacks) a breach of

contract by Respondents and is there

remedy under Title VII of the 1964 Civil

Rights Act?

What is the requirements of the

settled principle of "due process"?

Note United States Court of Appeal

Opinion (1978); and Appendixes E and B.

ws

b;

2 E

: a

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......

PETITION POR WRIT OF CERTIORARI. .

QUESTIONS PRESENTED. .......

CURR ks as oe ce ce cw

GROUNDS FOR JURISDICTION. ....

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE. ......

REASONS POR GRANTING a

Sn > 6 skh iene es oes

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX E

ou > Fe WY WY KN FE

TABLE OF AUTHORITIES

VII, XIII, XIV Amendment

Title VII of the 1964 Civil Rights

Act. Title XXVIII. United States

Code, Section 1254(1}) .....+«-+-e«-+« -4

Statutes

Equal Employment Opportunity Act

CF1972

212 USC2QQ0E-2(A)(1)(2) ... .-

42 USC 2Q0Q00E-2(C) (1) (2) (3). . .

29 USC Sec. 401, 610, 2, 530. .

29 USCA 411, 412, 185 Se ae °

42 USC Sec. 1985, 1983, 1981. .

“kK =

“te, wh oe ae

6) we we

a

hi & b> &

Cases

Zamora vs. Massey-Ferguson

336 F.Supp. sat Toyz) - ee. <. & e -

Patrick vs. I.D. Packin

Company ne 308 F-fupp.

o 7. 7

7 . 7 7 7 . . o . 7. 7 _ 5

Lummus vs. N.L.R.B.

2d 728 (1964). - . . + . 7 * . . 5

Vice vs. Si i

oe oR, ge ee ae 5

al Employment peuple

Tenion vs. Sippi College

(19 80) 7 7 7. >. . >. > 7 > ° 5

Hickman vs. Taylor

329 Us 495. * a . ¥ 7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

No.

WILLIE L. DRAPER,

Petitioner,

vs.

UNITED AUTOMOBILE AEROSPACE

AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA, LOCAL 387, JESSE

GREGORY; FORD MOTOR COMPANY,

WOODHAVEN STAMPING PLANT AND

FRANK DOYLE

Respondents.

a

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

The Petitioner, WILLIE L. DRAPER,

respectfully prays that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals

for the Sixth Circuit entered on 12

December 1983.

. Rar

QUESTIONS PRESENTED

Was the granting of summary judgment

based on laches, statute of limitations,

lawful, where, time a material issue of fact,

disputed less than three in issue

Appendixes A and B.

Further, was it "constructive contempt"

by non-compliance with court's subpeona, what

is fair procedure?

Is it “denial™ of a meaningful opportu-

nity to be heard to grant motion not in

procedural compliance with rules and thereby

effecting a substantial right VII Amendment

to the United States Constitution?

Was substantial justice rendered where

affidavits were made in bad faith, no

discovery or cross examination of parties

making affidavits and Court asserting good

faith of union?

Was the acts of the Respondent union

(conspiracy) a breach of duty of fair

representation?

Bis, fern, AS Brg : A> 4 : vx

; Net. ‘on ay aS ape ey Roth aoe = ase)” he ttyl ees «9 Hg a

Me LE Te UR et Rm Bn age Cee to.” RRRMR ee On

Is continuing racial discrimination

against minorities (blacks) a breach of

contract by Respondents and is there

remedy under Title VII of the 1964 Civil

Rights Act?

What is the requirements of the

settled principle of “due process"?

Note U..ited States Court of Appeal

Opinion (1978); and Appendixes E and B.

OPINION BELOW

The Court of Appeals entered its

Memorandum decision affirming the

Summary Judgment granted the respondent

by the Honorable Judge Ralph B. Guy in

the United States District Court, Eastern

District of Michigan, Southern Division;

and denying petitioner motion for

Injunctive Relief copies herewith attached.

JURISDICTION

On 12 December 1983, the Court of

Appeals entered judgment affirming the

Summary Judgment on behalf of the

respondents granted in the District

Court. The jurisdiction of this court

is invoked under Title 28, United States

Code, Section 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

United States Constitutional

Amendments VII, XIII, XIV.

STATEMENT OF THE CASE

An appeal of the Summary Judgment

based on the doctrine of laches.

Plaintiff-Appellant alleges racial

discrimination by the Defendents-

Appellees his Union (UAW) and Employer,

Pord Motor Company in violation of Title

VII of Civil Rights Acts of 1964 as

_ amended by the Equal Enployment

Opportunity Act of 1972, 42 U.S.C. 20003,

29 U.S.C. 401 Section 610, 29 U.S.C. 401

Section 2, 29 U.S.C.A. 411, 29 U.S.C.A.

412, 29 U.S.C.A. 185, 42 U.S.C. Section

1985, 42 U.S.C. Section 1983, Zamora y.

Massey-Perguson, 336 F.Supp. 588 (1972),

Patrick v. I.D. Packing Company, Inc.,

308 F.Supp. 821 (1969), Lumous v.

N.L.R.B., 339 F.2d 728 (1964) and Vica

v. Sipes, 386 U.S. 172 (1964).

REASON FOR GRANTING THE WRIT

Petitioner filed the timely complaint

on 4/12/74. The complaint was within the

filing dates required by the statute. |

The E.E.0.C. failed to mail the Right To

Sue letter until requested by the

Appellant-Petitioner in 1982.

This case has been in the Federal

Court and State Courts until 8/31/79.

Dismissed 8/31/79 and refiled under

Title VII 4/19/82.

Petitioner served the Respondents with

Subpeonas to appear on December 2, 1982.

Respondents failed to appear as ordered

by subpoena. For oral deposition

petitioner relies on Equal Baployment ag

ll mu > _ Al S J

¢ oo CAE. 3) LET Ne *\ ae a

Opportunity Commission v. Mississippi a.

“oes

5 ee

— — Pp. : is 8

sation Lie <e ah

oe 7+ sr ” ~

4 w- lg -- Ca

ee oe

College cite as 626 F.2d 477 (1980).

EEOC sought enforcement of a subpoena

issued in connection with its investiga-

tion of a charge of discrimination filed

against a college owned, controlled and

operated by a religious institution. The

United States District Court for the

Southern District of Mississippi,

William Harold Cox, J., 451 F. Supp. 564,

denied enforcement, and EEOC appealed.

The Court of Appeals, Charles Clark,

Circuit Judge, held that: (1) white

female could not charge college with

discriminating against blacks without

establishing that she could satisfy

standing requirements of Article III to

bring court action against it under Title

VII; (2) Title VII had no application to

employment practices of religious

educational institution that discriminated

on basis of religion regardless of whether

religious discrimination was pretext for

some other type of discrimination; (3)

relationship between religious educational

institution and its faculty was not

exempt from coverage of Title VII; and

(4) application of Title VII to college

violated neither the establishment clause

nor the free exercise clause of the First

Amendment. 626 P.2d 482 Rogers v. EEOC,

454 P.2d 234 (Sth Cir. 1971), cert.

denied, 406 U.S. 957, 92 S. Ct. 2058,

32 L.Ed. 2d 343 (1972), Judge Goldberg,

without the concurrence of either of the

two other panel members, concluded that

an employee could charge her employer

under Section 703 with discrimination

that: although not directed towards her,

had the effect of creating a “working

environment heavily charged with dis-

crimination. Judge Goldberg observed

that Section 703(a} (1) of Title VII

prohibits discrimination with respect

to “compensation, terms, conditions

or privileges of employment" and reasoned

© : i!

; ah ¢ » eves ‘ Oy oO eG

Pe ty ees. Oe IN Ne Be ge ee, ste Ue Re es

that Congress intended to encompass within

Title VII subtle discriminatory practices

that, while not directed toward the charging

employee, affected the employee by creating

® working environment “polluted* with

discrimination. Id. at 237-39.

CONCLUSION

To summarize our holdings, we conclude

that (1) Summers cannot charge the

College with discriminating against blacks

without establishing that she could

satisfy the standing requirements of

Article III of the Constitution to bring

a court action against it under Title VII;

(2) Section 702 of Title VII, excludes

from the application of the Act any

employment practices of a religious

educational institution that discriminate Re

on the basis of religion regardless of — 4

whether the religious discrimination is .

y

a pretext for some other type of discrini-

nation; (3) McClure v. Salvation Army,

exempts from the coverage of Title VII

only the relationship between a church and

its minister and does not apply to the

relationship between a religious educational

institution and its faculty; and (4) the

application of Title VII to the College

violates neither the establishment clause

of the free exercise clause of the First

Amendment. We vacate the district court's

findings of fact, its conclusions of law,

and its initial opinion and remand for

further proceedings consistent with this

opinion. We specifically note that on

remand the district court should deter-

mine whether Summers‘ charge of race

discrimination was timely filed and

should allow the parties to present

further evidence demonstrating which

employment practices of Mississippi

College are exempt from the coverage of

Title VII under Section 702 as construed

by this opinion. We leave for resolution

by the district court on remand the question

« ?

ee nd

ee eS a i

of what portions of the EEOC‘s subpoena

should be enforced. 329 U.S. 495 Hickman v.

Taylor, as a device for ascertaining the

facts, or information as to the existence

or whereabouts of facts, relative to those

issues. Thus, civil trials in the federal

courts no longer need be carried on in the

dark. The way is now clear, consistent

with recognized privileges, for the parties

to obtain the fullest possible knowledge

of the issues and facts before trial.

Por the foregoing reasons, petitioner

Willie L. Draper respectfully requests that

a writ of certorari issue to review the

judgment of the United States Court of

Appeals for the Sixth Circuit.

Respectfully submitted,

P.O. Box 15540

Detroit, Michigan 48215

Telephone: (313) 933-6953

DATED: 2 April, 1984.

' Mica A © 4

APPENDIX A

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

OPERATION P.U.S.H: METROPOLITAN

DETROIT (PEOPLE UNITED TO SAVE

HUMANITY) AN UNINCORPORATED

ASSOCIATION,

and

WILLIE DRAPER, JAMES ELLISON,

DELLA HILL, DAVE JEMISON, LEROY

KELKER, CHARLES MCWILLIAMS,

LEON POLITE, JEROME RANDALL

AND BIRK WALKER, ON BEHALF OF

THEMSELVES AND ON BEHALF OF THE

CLASS OF PERSONS SIMILARLY

SITUATED,

Plaintiffs,

vs.

PORD MOTOR CO. (WOODHAVEN STAMPING

PLANT) ,=A DELAWARE CORPORATION,

and

INTERNATIONAL UNION, UNITED

AUTOMOBILE AEROSPACE AND AGRI-

CULTURAL IMPLEMENT WORKERS OF

AMERICA, (UAW), LOCAL 387, AN

UNINCORPORATED VOLUNTARY ASSOCIATION,

Defendants.

Wayne County Circuit Court

Civ. Act. No. 77-705367

U.S. Dist. Court

Civ. Act. No. 77-70620

es Pe , Mar. 15, 1977

ae =

‘Ser ies). an

Butzel, Long, Gust, Klein & VanZile

by: John B. Weaver (P22061)

and: Donald B. Miller (P23417)

1881 Pirst National Building

Detroit, Michigan 48226

(313) 963-8142

Attorneys for Defendant

Ford Motor Company

NOTICE OF FILING Joinder of Defendant

Ford Motor Company in removal petition of

Defendant, International Union, United

Automobile Aerospace and Agricultural

Implement Workers of America (UAW) Local 387.

=)

&

APPENDIX B

PILE WITH ASSIGNMENT CLERK ONLY

Praecipe For Motion and

Order/Judgement

WILLIE DRAPER, et al, The Circuit Court

for the County of

Plaintiffs, ' Wayne, State of

Michigan

vs.

FORD MOTOR COMPANY AND

INTERNATIONAL UNION, UNITED Civil Action No.

AUTOMOBILE AEROSPACE AND 77-705 367 CZ

AGRICULTURAL IMPLEMENT

WORKERS OP AMERICA (UAW),

LOCAL 387,

Defendants.

TO THE ASSIGNMENT CLERK: Please place

Defendant Ford Motor Company's renewed

Motion to Dismiss For Pailure to Prosecute

on the motion calendar for (Date) Friday,

August 31, 1979 at 2:00 p.m. This motion is

to be heard by Judge John D. O'Hair

TO COURT CLERK: Have the following Order/

Judgment completed and signed by Judge and

check 1 or 2 below, whichever is

applicable

ORDER/ JUDGMENT

Dated: August 31, 1979

7_/ 1. IT IS HEREBY ORDERED that the

aforesaid motion be and the same

is hereby denied

/&/ 2. IT IS HEREBY ORDERED that the

aforesaid motion be and the same

is hereby granted, AND IT IS

PURTHER ORDERED AND ADJUDGED

Dismissal without prejudice

Filed James R. Killeen, Wayne County Clerk

August 31, 1979. Circuit Judge John D. O‘Hair

Approved as to Form and Substance

By Counsel for Donald B. Miller

Defendant's Attorney

eee eta eh i Bie ae i ae a tae

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLIE L. DRAPER,

Plaintiff,

Civil Action No.

vs. 82-71392

UNITED AUTOMOBILE AEROSPACE

AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, LOCAL

387, JESSE GREGORY; PORD

MOTOR COMPANY, WOODHAVEN

STAMPING PLANT; AND FRANK

DOYLE,

Defendants,

=

ORDER GRANTING DEFENDANT'S

MOTIONS POR SUMMARY JUDGMENT

This matter is before the court on

Defendant*s Motions Por Summary Judgment.

The Court has reyiewed the motion and

briefs filed in support thereof and in

opposition thereto and, in accordance with

the bench opinion rendered following oral

arguments of the parties on December 22, 1982; ‘

IT IS ORDERED that Defendants‘ Motion for

Summary Judgment are hereby granted.

RALPH B. GUY, JR.

DATED: Dec. 27, 1982. By: Mary A. Evers

< 5

ia 4% we oe y eae

ey ASE, et ee Re URE Ob Le on!

NO. 83-1067

UNITED STATES CQURT OF APPEALS

POR THE SIXTH CIRCUIT

PILED: December 12, 1983

John P. Hetlman, Clerk

WILLIE L. DRAPER, )

)

Plaintiff-Appellant,)

)

vs.

UNITED AUTOMOBILE, AERO- )}

SPACE AND AGRICULTURAL )

IMPLEMENT WORKERS OF )

AMERICA, LOCAL 387, )

JESSE GREGORY; FORD )

MOTOR COMPANY, WOODHAVEN )

STAMPING PLANT; AND )

PRANK DOYLE, )

)

)

Defendant-Appellees.

)

BEPORE: LIVELY, Chief Judge; JONES, Circuit

Judge; and CELEBREZZE, Senior

Circuit Judge

This pro se plaintiff requests the Court

to issue an injunction ordering several

union officials to cease and desist their

harassment and discriminatory actions

directed against the plaintiff. The

plaintiff, an employee of the Ford Motor

Company, is appealing from a summary judgment

awarded in the defendants‘ behalves after

0g Es OTD SY SREY nee > Sane” ome 2 A Tag Shy ANS nt tbatl ss nated 3 aes

hearing was conducted before Judge Guy on

plaintiff‘*s amended complaint filed under

42 U.S.C. §§1981, 1983 and 1985(3);

29 U.S.C. §185; 29 U.S.C. §§ 401, 411,

412 and 530, and Title VII.

The plaintiff raised many allegations

in his amended complaint which was in

excess of one hundred paragraphs relating

to his employment with Ford and his

relationship with the union between the ;

years 1974 and 1978. He primarily complained |

that he was not given a fair amount of over-

time work which he was entitled to while he

was an elected committeeman in 1974.

Plaintiff also claimed that a union committee-

man assaulted him in March of 1974 when he

complained about the lack of overtime work.

Plaintiff raised many other charges relating

to wrongful disciplinary measures, denial

of promotions, the theft of his car, denial

of free speech at union meetings, distri-

bution of defamatory literature, improper

assignments of work, improperly held

elections and denial of counsel at grievance

hearings.

Upon a careful review of the district

court record, especially of the transcript

of the hearing conducted on the defendants‘

motions for summary judgment, this Court

concludes that the district court

properly entered summary judgment for the

defendants as there is ample support for

the entry of the judgment in their favar

even while the Court construes the evidence

in a light favorable to this pro se plain-

tiff. Bouldis v. U.S. Suzuki Motor Corp.,

711 F.2d 1319, 1324 (6th Cir. 1983);

Smith v. Pan Am World Airways, 706 F.2d

771, 773 (@th Cir. 1983) (Per Curian).

The Plaintiff‘*s §1983 claim was properly

denied because he utterly failed to show

that the defendants acted under color of

state law. Coffy v. Multi-County

Narcotics Bureau, 600 P.2d 570, 579 (6th

Cir. 1979). His §1985(3) claim was also

properly dismissed as allegations

Ba es a “Aik et tik

;> a A re in Y rare _- * het ® os «' pat "a s. - ¥

Supporting a §1985(3) claim of employment

discrimination may only be considered under

Title VII. Great American Ped. S. & L. Asan.

v. Novotny, 442 U.S. 366 (1979). Plaintiff's

Claims as brought under 29 U.S.C. §185 and

42 U.S.C. §1981 were also dismissed for being

time-barred under the applicable statute

of limitations. Regardless of whether the

six month time limitation contained in the

NLRA or the three year time limitations

applicable under Michigan state law is

applied in this case, the plaintiff's §185

Claim is time-barred; and his §1981 claim

is absolutely time-barred under the three

year statute of limitations which has

been held to govern the timeliness of

civil rights complaints. Geromette v.

General Motors Corp., 609 F.2d 1200, 1201

(6th Cir. 1979). The plaintiff was also

required to exhaust his internal union

remedies before agserting his claims

under the Labor Management Reporting and

Disclosure Procedure Act, 29 U.S.C. §4Q1l.

See 29 U.S.C. §41ll(a) (4); Stelling v.

IBEW, Local 1547, 587 F.2d 1379, 1339-

1390 (9th Cir. 1978), cert. denied,

442 U.S. 944 (1979). Finally, the district

court also reasonably and cautiously applied

the doctrine of laches to bar plaintiff's

Title VII claims in this case. The court

properly considered unavailability of

witnesses, changed personnel, and loss

of pertinent records in its determination

that the defendants would suffer undue

prejudice if plaintiff were allowed to

pursue his Title VII claims. Abermarle

Paper Co. v. Moody, 422 U.S. 405 (1975);

EEOC v. Dresser Industries, Inc., 668

F.2d 1199 (llth Cir. 1982). The court

also did not abuse its discretion in

restricting plaintiff‘s discovery until

after it could rule on the defendants‘

summary judgment motions.

For these reasons, this panel unanimously

agrees that oral argument is not necessary P

in this appeal. Rule 34(a), Federal Rules

of Appellate Procedure. The plaintiff's

motion is, accordingly, denied and the

district court's judgment is hereby affirmed

pursuant to Rule9(d)3, Rules of the Sixth

Circuit.

ENTERED BY ORDER OF THE COURT

Clerk