Opposition Brief — Yellow Freight System, Inc. v. Donnelly

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Supreme

—~ Court, US.

) FILED

No. 89-431 | OCT 19 10s

Ol, JR

CLERK

In THE

Supreme Court of the United States

OcToRER TERM, 1989

Petitioner,

va.

COLLEEN DONNELLY,

Respondent.

RESPONSE OF COLLEEN DONNELLY TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MICHAEL W. RATHSACK

(Counsel of Record)

77 West Washington Street

Suite 508

Chicago, Illinois 60602

(312) 726-5433

Joun J. Henery

JOHN J. HENELY, LTD.

75 East Wacker Drive

Suite 2200

Chicago, Illinois 60601

(312) 263-1733

Attorneys for Respondent

Vibwest Law Printing Co, Chicago 60611, (312) 321-0220

QUESTIONS PRESENTED FOR REVIEW

The questions presented for review are:

(1) Whether state and federal courts have concurrent

sex discrimination cases brought un-

der Title VII of the Civil Rights Act of 1964 [42

U.S.C. See. 2000e, ef seg.) and

TABLE OF CONTENTS

Pace

QUESTIONS PRESENTED ................. i

TABLE OF AUTHORITIES ................. i

OO 1

i 2

STATUTE INVOLVED ..............ccccccss 2

STATEMENT OF THE CASE ............... 2

SUMMARY OF THE ARGUMENT .......... 4

ARGUMENT IN OPPOSITION

TO CHRTBORARE qo... ccc cccccccccccccccces 5

ALTHOUGH THE SEVENTH AND THE

NINTH CIRCUITS NOW DIFFER AS TO

WHETHER STATE AND FEDERAL COURTS

HAVE CONCURRENT JURISDICTION OF

SEX DISCRIMINATION CHARGES BASED

ON TITLE VIL, THAT DIVERGENCE OF

OPINION DOES NOT REQUIRE INTERVEN.

TION BY THIS COURT AT THIS TIME ... 5

THE REVIEWING COURT PROPERLY AP.

FIRMED THE DECISION OF THE TRIAL

COURT WHICH FOUND THAT PLAINTIFF

SATISFIED HER BURDEN OF SHOWING

THAT SHE EXERCISED REASONABLE DILI-

GENCE IN MITIGATING HER DAMAGES.

THERE IS NO CONFLICT BETWEEN THE

CIRCUITS ON THIS POINT .........c000. 9

CONCLUSION TTTTTtresfsfT ll

TABLE OF AUTHORITIES

Cases PAGE

Albemarle Paper Co. v. Moody, 422 U.S. 405, 95

Te cen cccsecceccccs 10

Bradshaw v. General Motors Corp...805 F.2d 110

CTE TT ne ee vc ccecoccceseees 6

Brown v. Reliable Sheet Metal Works,*fnc., 52

EE IES 4

Dyer v. Greif Bros., Inc., 755 F.2d 1391 (9th Cir.

cc ccccccccccccceecece ~

Florida v. Long, _. U.S. ___., 108 S.Ct. 2354,

Se ED GD COED occ cece cccccccceces 7

, Ford v. Nicks, 866 F.2d 865 (6th Cir. 1989) ... 10, 11

For v. Eaton Corporation, 615 F.2d 716 (6th Cir.

Cree a eb edesebescencccccccecece 4

Johnson v. Chapel Hill Independent School Dis-

trict, 853 F.2d 375 (5th Cir. 1988) ......... 10, 11

Jones v. Intermountain Power Project, 794 F.2d

EEE PPT TT TTTTE 7

Kremer v. Chemical Construction Company, 456

U.S. 461, 102 S.Ct. 1883 (1982) ............ 5

Long v. Dept. Admin., Div. of Retirement, 428 So.

2d 688 (Fla. Dist. Ct. of Appeal 1983) ..... 7

Long v. State of Florida, 805 F.2d 1542 (11th Cir.

DP ERAee ee Seeseseceoccocccesccces 7

Valenzuela v. Kraft, Inc., 739 F.2d 434 (9th Cir.

BE EEEES EEE SESE S PETE COT TTETET ET 5, 8

Wheeler v. Snyder Buick, Inc., 794 F.2d 1228 (7th

Peri hecusibebssboceescoscscces 10

28 U.S.C.

42 U.S.C.

Statutes

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No. 89-431

In THE

Supreme Court of the United States

OcTOBER TERM, 1989

YELLOW FREIGHT SYSTEM, INC.,

Petitioner,

vs.

COLLEEN DONNELLY,

Respondent.

RESPONSE OF COLLEEN DONNELLY TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit was handed down on April 28, 1989

and is reported at 874 F.2d 402. The petition for rehear-

ing was denied. The decision of the United States District

Court for the Northern District of Illinois was handed

down on March 17, 1989 and is reported at 682 F.Supp.

374. The Report and Recommendation of the United States

Magistrate and the opinion of the District Court entered

on November 22, 1985 on the issue of jurisdiction were

not reported.

afie

JURISDICTION

This Court has jurisdiction of this matter pursuant to

28 U.S.C. Sec. 1254(1).

STATUTE INVOLVED

The following statutory sections are set out in the peti-

tion:

STATEMENT OF THE CASE

—_——

The facts of this case are drawn from testimony in a

trial conducted before a Magistrate. Defendant Yellow

Freight System, Inc., admitted its liability for sex dis-

crimination under 42 U.S.C. Sec. 2000e [Title VII of the

Civil Rights Act of 1964] and the matter proceeded for

a determination of damages.

Plaintiff applied for work with defendant Yellow Freight

in October of 1982, shortly after moving to the Chicago

area. Tr. 13, 14. She wanted to work in the area where

she lived, and Yellow Freight was four blocks away. Tr.

13, 19. Defendant’s terminal manager informed plaintiff

that Yellow Freight was not hiring but that she would

—3-—

be the first hired when the next opportunity arose. Tr

15. She called the manager every week, as directed, to

with others, that Yellow Freight was . but the

manager told her that they were off rather than

hiring. Tr. 33, 34

with

RGIS, located near her home. She worked there until

June of 1984 when she filed her EEOC complaint and was

then hired by defendant. Tr. 16, 17, 29. She accepted all

the hours that were available to her at RGIS, working

423 hours in 1983 and 371 hours prior to June of 1984,

Tr. 39, 40.

The Magistrate also found that Yellow Freight had begun

hiring numerous persons, all male, in February of 1983.

The Magistrate further found that Yellow Freight had not

carried its burden of showing that plaintiff had failed to

exercise reasonable diligence in securing other employ-

ment. Pet. App. A-27-A-30. The Magistrate further found

that even if defendant had met its burden of proof on that

issue, defendant nonetheless had failed to meet its addi-

tional burden of showing a reasonable likelihood that plain-

tiff might have found comparable work through reasonable

diligence. Pet. App. A-30. Other trucking companies had

hired 90 dock workers during the time in question, but

only one hired women and only five of the 90 were

women. Pet. App. A-30.

The Magistrate recommended back pay from the date that

defendant began hiring [February 8, 1983] in the amount of

$27,656.61; retroactive seniority in the amount of $4,800.00;

pension contributions in the amount of $3,976.00; attor-

neys’ fees of $21,876.00; costs; and prejudgment interest.

SUMMARY OF THE ARGUMENT

Certiorari is not appropriate at this juncture because

the jurisdictional issue has not been developed in adequate

scope by the circuits, with only two circuits having pro-

vided adversarial based analysis. There is also an alter-

nate basis for the court’s finding in that regard which

would require affirmance even if the Court concurred with

petitioner’s contention.

The Seventh Circuit and the Ninth Circuit now differ

on the question of whether state and federalcourts have

concurrent jurisdiction of actions brought under 42 U.S.C.

Sec. 2000e-K(f) [Section 706(f) of Title VII of the Civil

Rights Act of 1964] for sex discrimination. The Seventh

Circuit in this case has found that there is concurrent

state and federal jurisdiction, whereas the Ninth Circuit

in Valenzuela v. Kraft, Inc., 739 F 2d 434 (9th Cir. (1984)

ical Construction Company, 456 U.S. 461, 479, 102 S.Ct.

1883, 1896, fn. 20 @1982)).

However, contrary to Yellow Freight’s argument, the

question remains in a developmental stage and does not

have widespread significance. The division of opinion is

a limited division, and most circuits have not yet had the

opportunity to specifically address the issue. Yellow Freight

contended that three other Circuits [Third, Tenth, and

Eleventh] concur with the Ninth Circuit. However, in

those cases the jurisdictional issue was either not con-

tested or was only mentioned in passing without analysis,

and in one instance the cited case was actually reversed.

—h-—

Until a need arises for unanimity in approach to this

issue, Title VII cases can continue to be resolved in the

various circuits regardless of whether the forum is state

or federal. The issue is not what the law should be, but

rather who should apply the law. The consequence of a

grant of certiorari would, as to most sex discrimination

cases, simply be a determination of the appropriate forum.

In this particular instance, the forum determination might

possibly be determinative of the right to pursue the action

because of the removal scenario. However, in almost al!

other such cases, the posed question lacks the immediate

importance attributed to it by defendant because decisions

on the merits of the cases will be the same regardless of

the forum.

There is currently adequate case law to guide both fed-

eral and state courts in their adjudication of cases brought

under Section 706(f) of Title VII. State courts have cer-

tainly shown the ability to adequately carry out the in-

tent of Congress in other areas of federal legislation, e.g.

42 U.S.C. Sec. 1983. There is no reason to believe that

the same will not be true in this instance, and there is

no need to increase the caseload of the circuit courts when

the current intent appears to be the opposite, e.g., the

increase in the jurisdictional amount in diversity jurisdic-

tion cases.

The absence of analysis in the other cited circuits is re-

flected in the opinion in Bradshaw v. General Motors

Corp., 805 F.2d 110, 112 (8rd Cir. 1986). Plaintiff there

brought suit in state court under state tort theories, 42

U.S.C. Sec. 1981, and Title VII, and the defendant re-

moved to federal court. The question of concurrent juris-

diction was not at issue and thus was not briefed, and

was only raised by the court at oral argument. The re-

viewing court simply held, without analysis, that Title VII

—— oe eee ——

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vested exclusive jurisdiction in the federal courts. The

court went on to note [fn. 3 at 113] that even if concur-

rent jurisdiction existed, the plaintiff was unlikely to

prevail due to the delay in taking action after receiving

the notice of the right to sue from the EEOC. Thus there

was an independent basis for that court’s decision, and

it is questionable as to whether the same result would

hold in another case where the issue was fully briefed.

Yellow Freight also relied on Long v. State of Florida,

805 F.2d 1542, 1546 (11th Cir. 1986). Certiorari was de-

nied as to the plaintiffs’ petition (484 U.S. 820, 108 S.Ct.

78) but was granted as to certain nonjurisdictional ques-

tions raised by defendant (484 U.S. 814, 108 S.Ct. 65) and

this Court subsequently reversed. Florida v. Long, _—

U.S. _... 108 S.Ct. 2354, 101 L.Ed.2d 206 (1988). Florida

had argued in the Eleventh Circuit that plaintiffs’ suit

undér Title VII was barred by res judicata, cn the grounds

that plaintiff had lost similar claims in state court. The

Circuit Court mentioned exclusive jurisdiction only in the

context of applving res judicata, stating without analysis

that res judicata was not applicable because the plaintiff

could not have brought his Title VII claim in state court.

The Eleventh Circuit apparently accepted the Florida ap-

pellate court’s statement in an earlier state court appeal

that the state trial court had properly ignored plaintiff's

Title VII claim because it had no jurisdiction. See Long

v. Dept. Admin., Div. of Retirement, 428 So.2d 688 (Fla.

Dist. Ct. of Appeal 1983).

Finally, in Jones v. Intermountain Power Project, 794

F.2d 546, 553 (10th Cir. 1986), the only question before

the Tenth Circuit was whether state claims could be pen-

dent claims in a Title VII action. The court answered in

the affirmative at 552. The court then noted that its in-

quiry could end there, but discussed the matter further.

oiitn

It ultimately noted that the plaintiff could not otherwise

have all his claims heard together because Title VII claims

could be filed only in federal court, citing Valenzuela with-

out discussion. Again, the question was presented in an

indirect context, apparently without benefit of briefs, and

the holding was dicta.

The only other circuit court opinion was Dyer v. Greif

Bros., Inc., 755 F.2d 1391, 1393 (9th Cir. 1985). The Ninth

Circuit again raised the jurisdictional question itself after

removal! and simply followed the circuit’s prior ruling in

Valenzuela. This subsequent decision by a different panel

was seemingly without enthusiasm, as reflected in the

comment at 1393, that ““Nonetheless, since Valenzuela is

the current law of this circuit by which we are bound,

. .’, and leaves room to question as to whether Valen-

zuela will remain the law.

In summary, only two circuits have reached a reasoned

determination of the jurisdictional question, and one of

those seems unenthusiastic about its own earlier ruling.

For that reason, the jurisdictional question has not re-

ceived the type of thorough inquiry that frequently pre-

cedes review by this Court. If certiorari is deferred until

more circuits have an opportunity to analyze all facets

of the issue, it may well be that the issue will be resolved

with unanimity and without need for supervision. The

question is not yet ripe for certiorari.

Even if certiorari was granted and a reversal subse-

quently occurred, the matter would nonetheless not be

brought to a conclusion. The case would then have to be

remanded for a ruling on Donnelly’s claim that the state

court filing equitably tolled the limitation period. Although

the state court claim did not specifically refer to Title VII,

the allegations were couched in that language and were

based upon the EEOC’s right to sue letters attached as

en Ree eee eae eee

olin

exhibits. The case was removed and the complaint was

amended to add a specific reference to Title VII. Under

Fox v. Eaton Corporation, 615 F.2d 716, 719 (6th Cir. 1980),

cert. denied, 450 U.S. 935, 101 S.Ct. 1401 (1981), a claim filed

in state court can toll the limitations period regardless of

whether concurrent jurisdiction is found. Whether the

Seventh Circuit would agree with Foz, in view of its reason-

ing in the overruled Brown v. Reliable Sheet Metal Works,

Inc., 852 F.2d 932, 934 (1988), is immaterial. The point is

that the court did not have to reach this argument in this

case, and remand for further consideration would be neces-

sary in order to resolve this additional claim.

Il.

THE REVIEWING COURT PROPERLY AFFIRMED

THE DECISION OF THE TRIAL COURT WHICH FOUND

THAT PLAINTIFF SATISFIED HER BURDEN OF SHOW-

ING THAT SHE EXERCISED KEASONABLE DILIGENCE

IN MITIGATING HER DAMAGES. THERE IS NO CON-

FLICT BETWEEN THE CIRCUITS ON THIS-POINT.

The conflict claimed by defendant Yellow Freight does

not exist. In this case, the trial court resolved a factual

question as to whether plaintiff had satisfied her duty to

mitigate her damages. She had searched for other work,

and accepted part-time employment in the area of her

home. She worked as many hours as were available at

that job. The job was a substantial one, and her conduct

was especially reasonable in light of the fact that defen-

dant was falsely telling plaintiff that she would be the

first one hired when hiring resumed. Presumably plain-

tiff thought she would be working for defendant shortly,

and it would have seemed a useless act to take a full time

job elsewhere with the intent to quit immediately upon

hearing from Yellow Freight. In plain language, defen-

elite

dant lied to her about its plan to hire her imminently and

now argues that she should not have relied on their repre-

sentation of imminent employment when considering other

job opportunities.

The Seventh Circuit did not set a new standard in this

regard and certainly did not hold that the employee had

to simply seek other employment. Pet. at 15. Here plain-

tiff did seek other full time work. The Magistrate noted

that Yellow Freight had failed to carry its burden of

showing that Ms. Donnelly failed to exercise reasonable

diligence. It is equally important to note that the Mag:s-

trate also found that Yellow Freight failed to show a rea-

sonable likelihood that Ms. Donnelly would have found

comparable work through reasonable diligence. After all,

the other trucking companies in the area were apparent-

ly also discriminating as only one of them hired women

and that one hired only a very small number of women.

The court below mentioned but did not have to reach this

latter point: defendant’s failure to prove the likelihood

of comparable employment would thus have served as an

alternate basis for affirmance of the damage award.

The damage award was determined by the particular

facts of this case and not by any change in the law by

the Seventh Circuit. The court was bound by the trial

court’s award of damages unless that determination was

clearly erroneous. Albermarle Paper Co. v. Moody, 422

U.S. 405, 424, 95 S.Ct. 2362, 2375 (1975). Under appropri-

ate circumstances, such as were found by the trial court

to exist in this case, part time work can satisfy the

requirement of reasonable diligence. Wheeler v. Snyder

Buick, Inc., 794 F.2d 1228, 1234 (7th Cir. 1986).

This case does not conflict with the holdings of Ford

v. Nicks, 866 F.2d 865 (6th Cir. 1989) and Johnson v.

Chapel Hill Independent School District, 853 F.2d 375 (5th

Cir. 1988). The court in Ford rejected the employer’s

argument that the applicant's ; art time work for her hus-

band [without showing a reason for not getting a better

job] constituted a failure to mitigate damages, noting at

869 that the employer had not shown what she could have

earned if employed full time. The opinion instead rested

on the applicant’s rejection without cause of an equal job

at the same salary. In Johnson, there was evidence of

numerous equal employment opportunities not sought out

by the applicant: rather than seek work, she simply went

to work in a family store without pay. Both cases are fac-

tually and legally distinguishable.

CONCLUSION

SUE

For the reasons stated, respondent Colleen Donnelly re-

quests that the petition for certiorari be denied.

Respectfully submitted,