Opposition Brief — United Telecommunications, Inc. v. Saffels

Office-Su

Q) Supe Court, UA.)

No. lo. 84-1002 tie on oe

In the Supreme Court of the nited fofesves.

OCTOBER TERM, 1984

UNITED TELECOMMUNICATIONS, INC., et al.,

Petiticners,

vs.

DALE E. SAFFELS, United States District

Judge for the District of Kansas,

Respondent,

PHYLLIS WILSON HOFFMAN and EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION,

Respondents and Real Parties in Interest.

On PETITION FOR A WRIT OF CERTIORARI

TO THE United States Court or APPEALS

FOR THE TENTH CIRCUIT

BRIEF OF RESPONDENT

PHYLLIS WILSON HOFFMAN IN OPPOSITION

Davin J. WAXSE

(Counsel of Record)

SHoox, Harpy & Bacon

40 Corporate Woods, Suite 650

9401 Indian Creek Parkway

Overland Park, Kansas 66210

(913) 451-6060

Exinor P. SCHROEDER

University of Kansas School

of Law

Lawrence, Karisas 66045

KAREN PLAX

8800 Blue ‘Ridge Parkway

Suite 206

Kansas City, Missouri 64138

_ Attorneys for Respondent

—————— ——————S=_==

E. L. Mawpprmads, Iyc., 926 Cherry Strest, Kences City, Mo. 64106, (816) 421-8080

QUESTION PRESENTED

Whether the Equal Empioyment Opportunity Com-

mission may seek relief for individuals in addition to the

private plaintiff when it intervenes permissively in a

private Title VII class action pursuant to Section 706(f)

(1) of the Civil Rights Act of 1964, as amended.

LIST OF PARTIES

Parties to the proceedings in the United States Court

of Appeals for the Tenth Circuit were: Phyllis Wilson

Hoffman; The Honorable Dale E. Saffels, United States

District Judge for the District of Kansas; the Equal Em-

ployment Opportunity Commission; and United Tele-

communications, Inc., and the following of its subsidiaries:

United System Service, Inc.

Carolina Telephone & Telegraph Company

United Telephone Cormpany of Ohio

Capital City Telephone Company

United Telephone Company of Iowa

United Telephone Company of Kansas, Inc.

United Telephone Company of Minnesota (Pioneer

United)

United Telephone Company of Missouri

United Telephone Company of Arkansas

Mid-State Telephone Company

United Telephone Company of Florida

United Telephone Company of the Northwest

California-Oregon Telephone Company

East Peninsula Telephone Company

Florida Telephone Corporation

New Jersey Telephone Company

United Telephone Company of Pennsylvania (Peoples)

Gulf States-United Telephone Company (Palestine &

Navasoto merged into)

Palo Pinto Telephone Company, Inc.

United Telephone Company of Indiana, Inc.

United Telephone Company of Michigan (Augusta)

Ill

United Inter-Mountain Telephone Company

United Telephone Company of the Carolinas, Inc.

Keller Telephone Company

Alexandria Telephone Cable Company

Blacktown Telephone Company (Subsidiary of United

Telecommunications, Inc. operated by United

Telephone Company of Pennsylvania)

North Electric Company

ULI Leasing, Incorporated

North Electric Company Supply Division

Rixon Electronics, Inc.

United Computing Systems, Inc.

UCS, Inc.

United Business Communications

Central Kansas Power Company, Inc.

National Datacenter

CITICOM, Inc.

National Laboratory of Urban Communications, Inc.

The Citizens Ice Company

TABLE OF CONTENTS

Ug te ys - ee I

Sy ee Ce adi rctatecsicncoesevscinathenincbvsnnianincetilascaatinns a

pe et gs | nc eee IV

Re CN ie Uininicinnnaisibansinrmnscsnccrobscnnicisineindaoeacsenes 1

cee we | ge dpc ft! | nero nen 2

REASONS FOR DENYING THE WRIT ........................ 3

FN webissthisipeticinnicnnasnicstennehdesininssaniiebiiiiasiatidasinlann 4

I. The District Court’s Order of April 11, 1984,

Is Totally Consistent With the Plain Mean-

ing and Purpose of Section 706(f)(1) ... ........ +

A. Only the Intervention Provisions of the

Statute Apply to This Case ........................ 4

B. EEOC May Represent the Public Interest

When It Intervenes .........................+--ccccc-csese- 5

C. The District Court’s Ruling Will Not Cause

O ROG CE TAT RTIOR nnn cece csencccssenens 10

II. The Tenth Circuit Was Correct in Finding

Mandamus Inappropriate in This Case ........ 11

SI UIPININT ‘seiiiscicncntessiesnh snscialinitsslisnscaciandsiigiesia ssesliaiee

III «ati aicaiencichiipciciieakaelta a aia E a ac Al

TABLE OF AUTHORITIES

Cases

Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33

SUITE. ssuisscomssigpcirncsidhaticeildepiewsienenrcouvedenbiceeietenia aebicipdadiabteiiacibas caenicniedl 11, 12

Bankers Life & Casualty Co. v. Holland, 346 U.S. 379

SAIPUUNED : sscisscisiunciatsiaibdieainiinniinsiniuetiabiinieeccindiiaiaihaditietibidlibldaSskaias 12

Vv

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541

SUOMI. scosibanseisebchasshacsbapncitelbdeivoulacaittiien ae

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) . 12

EEOC v. Continental Oil Co., 548 F.2d 884 (10th Cir.

SOET) nussiciciidcnnine seaman 8-9

EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th

Cir.), cert. denied, 423 U.S. 994 (1975) -........22.....---- 9

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368

CITED cnccthsnsislietesescialbiieciabanbuigiiceaamsniengietindenies 12

General Telephone Co. of the Northwest, Inc. v. EEOC,

446 U.S. 318 (1980) ..................--.-. 5, 6, 8, 9, 10

Hadley Memorial Hospital, Inc. v. Schweiker, 689 F.2d

905 (10th Cir. 1982) -................. 13

Horn v. Eltra Corp., 686 F.2d 439 (6th Cir. 1982) ........ 8

Johnson v. Nekoosa-Edwards Paper Co., 588 F.2d 841

(8th Cir. 1977), cert. denied sub nom. Nekoosa Pa-

pers, Inc. v. EEOC, 434 U.S. 920 (1977) -..0.000... 8

Kerr v. United States District Court, 426 U.S. 394

CUD ieciuccseaiedaiatonaen —

Mills v. Bartenders International Union Local No. 41, 21

pe RR 8: fs S| PREncmr ene amen nano maen 9

Nixon v. Fitzgerald, 457 U.S. 731 (1982) ....................--- 12

Occidental Life Insurance Co. of California v. EEOC,

432 U.S. 355 (1977) .............. 7

United States v. Duell, 172 U.S. 576 (1899) ...................- 12

Statutes

Section 706 of Title VII of the Civil Rights Act of 1964,

as amended (42 U.S.C. §§ 2000e-5) —.....002... passim

Rules

Federal Rule of Civil Procedure 23 ~......0......022002022222.-.. 6

ee . t S ne CE nee 4

VI

Miscellaneous

Annual Report of the Director of the Administrative

Office of the United States Courts 000000 i0-11

L2G Comme TUITE asses ene sss esenncsn sneeneenseneneescinse 6,7

Equal Employment Opportunity Commission

15th Annual Report

ee SE TS eects 11

17th Annual Report

House Report No. 92-238, 92d Cong., Ist Sess. (1971) .... 7

Sape & Hart, Title VII Reconsidered: The Equal Em-

ployment Opportunity Act of 1972, 40 Geo. Wash. L.

Rev. 824 (1972)

Senate Report No. 92-681, 92d Cong., 2d Sess. (1972) .... 6

7A C. Wright & A. Miller, Federal Practice and Pro-

cedure, §§ 1913, 1922 (1972 and Supp. 1984)

No. 84-1002

In the Supreme Court of the United States

OCTOBER TERM, 1984

UNITED TELECOMMUNICATIONS, INC., et al.,

Petitioners,

VS.

DALE E. SAFFELS, United States District

Judge for the District of Kansas,

Respondent,

PHYLLIS WILSON HOFFMAN and EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION,

Respondents and Real Parties in Interest.

On PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES CourRT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF OF RESPONDENT

PHYLLIS WILSON HOFFMAN IN OPPOSITION

OPINIONS BELOW

The April 11, 1984, Memorandum and Order of the Dis-

trict Court is unreported. It is reproduced at Appendix B,

pp. 6a-10a, of the Petition. The opinion of the Court of

Appeals for the Tenth Circuit is reported at 741 F.2d 312

(10th Cir. 1984).

STATEMENT OF THE CASE

On November 5, 1976, Phyllis Wilson Hoffman filed

this suit in the United States District Court for the Dis-

trict of Kansas on behalf of herself and all other persons

similarly situated against United Telecommunications, Inc.

and 38 of its subsidiaries. She alleged that defendants

had discriminated againsi ‘er and all other members of

the class she represents on the basis of sex in violation

of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. §§ 2000e, et seq. See Pet. A. 25a-41a.1 Hoffman

had complied with all statutory prerequisites to her suit.

See Resp. A. Al-A4. On June 30, 1977, the Equal Employ-

ment Opportunity Commission (“EEOC”) filed a Certif-

icate of General Public Importance, Resp. A. A5, and

moved to intervene in Hoffman’s action. See Pet. A. 42a-

54a. On September 21, 1977, the District Court granted

EEOC’s motion.?

After defendants resisted discovery and jurisdiction

for over seven years, on December 8, 1983, the District

Court entered an order upholding personal jurisdiction

1. References to “Pet, A.” refer to the appendices attached

to the Petition for Wiit of Certiorari. References to “Resp. A.”

refer to the appendices attached to this Brief in Opposition.

2. The District Court’s order stated:

The court finds that the EEOC’s application for intervention

is timely; that intervention will cause, if anything, no more

than the ordinary and minimal delay and prejudice that

often attends addition of a new party to a lawsuit; that

EEOC intervention may be helpful in illuminating the issues

herein and expediting resolution of the respective claims of

the parties; that the case is one of general public importance;

and that the claims of the EEOC involve questions of law

and fact common to those of the main action. Accordingly,

the EEOC’s motion to intervene shall be sustained and the

clerk is hereby directed to file the intervenor’s complaint.

(Emphasis supplied. )

3

over all defendants. 575 F.Supp. 1463 (D. Kan. 1983). On

January 27, 1984, Hoffman and EEOC filed a joint Motion

to Deem EEOC as Representative of the Class described

in Hoffman’s complaint. Their reasons for the motion were

to “expedite this matter by avoiding the discovery and

hearings necessary to obtain a determination pursuant to

Rule 23 of the Federal Rules of Civil Procedure.” Memo-

randum in Support of Plaintiff and Plaintiff-intervenor’s

Motion to Deem EEOC as Representative of the Class at 4-

5. Since EEOC had been permitted to intervene for all

purposes and since the scope of the litigation was not being

enlarged, the parties hoped to move the case along by

preventing further delay on purely procedural matters. On

April 11, 1984, the District Court granted the joint motion.

On June 8, 1984, defendants petitioned the United States

Court of Appeals for the Tenth Circuit for a writ of manda-

mus. On August 7, 1974, the Court of Appeals dismissed

defendants’ petition for want of jurisdiction.

REASONS FOR DENYING THE WRIT

The Petition for Writ of Certiorari mischaracterizes

the issue involved in the Tenth Circuit’s opinion and ac-

cordingly misstates the applicable law. This case is a

private Title VII class action in which the District Court

has permitted EEOC to intervene pursuant to Section

706 (f) (1) of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-5(f) (1). EEOC met the only statutory pre-

requisite to intervention when it filed a certificate of gen-

eral public importance. Resp. A. A5. EEOC is now en-

titled to fulfill its role, recognized by this Court, of acting

in the public interest in preventing and remedying em-

ployment discrimination. This may include seeking relief

for individuals other than the charging party. Neither

4

the statute, the legislative history, nor the decisions of this

Court require the completion of any further administrative

procedures. The prerequisites that petitioners wouid have

this Court apply would be meaningless at this point in the

litigation, and, in any event, they have no logical relation-

ship to the form of relief sought. As discussed below,

petitioners have failed to present any “special and impor-

tant reasons” justifying review by this Court. Supreme

Court Rule 17.1.

The writ should also be denied because mandamus is

not appropriate in this case. The Petition is a blatant at-

tempt to avoid the command of the final decision rule

and should be rejected.

ARGUMENT

I. The District Court’s Order of April 11, 1984, Is

Totally Consistent With the Plain Meaning and

Purpose of Section 706(f)(1).

A. Only the Intervention Provisions of the Stat-

ute Apply to This Case.

Petitioners mislead this Court by their constant at-

tempts to characterize this action as a direct suit by EEOC.

Petitioners insist on describing this case as if it were two

separate Title VII proceedings, one filed by respondent

Hoffman, and one filed by EEOC, which were consolidated

for discovery and trial. Thus, the entire basis for the

Petition is petitioners’ insistence that this proceeding is

defective because EEOC has not complied with those pro-

visions of § 706 that contain the prerequisites to direct

suit by EEOC. This is not, however, a consolidated pro-

ceeding, but rather a private Title VII class action filed

5

by respondent Hoffman in which EEOC has intervened

pursuant to other, separate provisions of § 706.

The plain language of the statute provides absolutely

no support for petitioners’ contention that the prerequisites

for direct suit by EEOC apply when EEOC has intervened

in a private action. Indeed, the statute could hardly be

clearer. Title VII contemplates two avenues by which

EEOC may enforce the Act in the federal courts. First,

it may file a direct action in its own name. As a prereq-

uisite to such an action, §§ 706(b) and 706(f)(1) pre-

scribe the administrative prerequisites of a reasonable

cause finding and conciliation. Second, EEOC may, with

leave of court, intervene permissively in a pending Title

VII action brought by a private party. In that case,

§ 706(f) (1) also prescribes an administrative prerequisite,

the certification by EEOC that the case is of general public

importance. At no point in these proceedings have pe-

titioners disputed that EEOC has fulfilled the prerequisite

to intervention in this suit. See Resp. A. A5. No pos-

sible r-ading of Title VII could result in a finding that

EEOC has not complied with all applicable requirements

to intervention.

B. EEOC May Represent the Public Interest

When It Intervenes.

Petitioners’ second error is their assertion that when

EEOC intervenes in a private action, it may not fulfill

its statutory role of protecting the public interest without

also complying with the administrative prerequisites to

a direct suit. Neither the statute nor this Court’s de-

cisions support petitioners’ position. As this Court stated

in General Telephone Co. of the Northwest, Inc. v. EEOC,

446 U.S. 318 (1980), “the clear purpose of Title VII,” id.

at 324, requires that “{w]hen the EEOC acts, albeit at the

behest of and for the benefit of specific individuals, it acts

also to vindicate the public interest in preventing em-

ployment discrimination,” id. at 326 (emphasis added),

and that forcing EEOC to comply with the requirements

of Federal Rule of Civil Procedure 23 “might disable the

enforcement agency from advancing the public interest

in the manner and to the extent contemplated by the

statute.” Id. at 331. Although General Telephone of the

Northwest happened to involve a suit brought by EEOC

in its own name, its rationale applies equally to private

suits in which EEOC has been permitted to intervene.

There is no indication in this Court’s opinion in General

Telephone of the Northwest that the fulfillment of one

set of statutory prerequisites to suit—the reasonable cause

and conciliation requirements—could substitute for Rule

23, while the other prerequisite—the certification of gen-

eral public importance—could not. Moreover, there is

nothing in the language of § 706(f)(1) to support pe-

titioners’ contention that compliance with the requirements

for intervention somehow limits EEOC to seeking relief

only for the named private plaintiff. Indeed, the legislative

history of the intervention provision of § 706(f)(1) in-

dicates that its purpose is “to protect the Commission’s

interest in a case where [a] private litigant is involved.”

118 Cong Rec. 4814 (1972).* That interest, as this Court

recognized in General Telephone, is the public interest,

which can require the representation of more than the

3. There is almost no legislative history dealing with the

EEOC’s right to intervene. The issue was not discussed during

the Senate and House debates on the 1972 amendments. Most

of the proposed bills contained the intervemtion power, and the

conference committee report, which adopted the intervention

provision of § 706(f)(1), did not comment on it. S. Rep. No.

92-681, 92d Cong. 2d Sess. (1972). See generally Sape & Hart,

Title VII Reconsidered: The Equal Employment Opportunity Act

of 1972, 40 Geo. Wash. L. Rev. 824, 874-75 (1972).

7

specific individuals who filed charges with EEOC or who

filed svit in federal court.

The administrative prerequisites to suit have nothing

tc do with the form of relief ultimately sought by EEOC

or with the number of victims of discrimination whose

interests are ultimately represented by EEOC. Their only

relationship is the same that exists in any civil action

between compliance with a requirement such as the stat-

ute of limitations and the relief sought by a plaintiff.

Suit must be filed in time, or else no relief may be sought

at all, but once a timely suit has been filed, the statute

of limitations becomes legally irrelevant to whether or

how much plaintiff recovers. Similarly, once the admin-

istrative procedures applicable to the manner in which

EEOC becomes a litigant have been fulfilled, they are

legally irrelevant to the nature of the relief sought by

EEOC

The purpose of the reasonable cause and conciliation

prerequisites to direct suit by EEOC is to attempt to

achieve voluntary compliance “in an informal, noncoercive

fashion,” and to avoid litigation by exploring settlement

alternatives, ‘whenever possible . . . before suit is brought

in federal court.” Occidental Life Insurance Co. of Cali-

fornia v. EEOC, 432 U.S. 355, 368 (1977). Congress was

fully aware of the enormous backlog in the EEOC’s case-

load at the time of the 1972 amendments to Title VII

that gave EEOC the right to file suit, see, e.g., House

Report No. 92-238, at 12-13, 92d Cong., Ist Sess. (1971).

and, therefore, it retained the private cause of action.

Congress also, however, envisioned a time when the back-

log would be eliminated and EEOC would be the primary

enforcer of the Act. “It is hoped that recourse to the

private lawsuit will be the exception and not the rule .. .”

118 Cong. Rec. 7168 (1972) (section-by-section analysis

of Conference Report). Unfortunately, congressional hopes

have not yet been met, and most Title VII suits are filed

by private plaintiffs. Considerations of the voluntary

compliance that might be achieved if EEOC is the only

potential plaintiff no longer exist when the charging party

has exercised her statutory right to sue, as respondent

Hoffman has done here. Litigation can no longer be

avoided, and, therefore, the rationale of the conciliation

requirement has been rendered meaningless in such cases.

Congress recognized this possibility by establishing the

EEOC’s right to intervene in private suits and requiring

only that EEOC certify that its intervention is in the

public interest.

Petitioners cannot point to any statutory purpose that

would be served by compliance with the now inapplicable

prerequisites to direct EEOC suit.* Not only is the only

identifiable purpose of the prerequisites to direct suit

absent when EEOC has intervened in pending litigation,

but limiting General Telephone of the Northwest to direct

EEOC suits would thwart the effective enforcement of

Title VII. In the Tenth Circuit, the filing of a private

Title VII action cuts off EEOC’s ability to bring a direct

suit based on the private plaintiff’s charge and relegates

the Commission to intervention in the private suit.° EEOC

4. It should be noted that on several occasions, respondent

Hoffman and EEOC have suggested the solution of the Eighth

Circuit in a similar case, a sixty-day stay pending conciliation.

See Johnson v. Nekoosa-Edwards Paper Co., 588 F.2d 841 (8th

Cir. 1977), cert. denied sub nom. Nekoosa Papers, Inc. v. EEOC,

434 U.S. 920 (1977). Petitioners have never responded to these

offers. Moreover, representatives of EEOC met with petitioners

as early as 1979 in an attempt to conciliate, with no success.

5. This fact alone serves to distinguish the footnote in

Horn v. Eltra Corp., 686 F.2d 439, 441 n.1 (6th Cir. 1982), on

which petitioners rely. Horn was an appeal by EEOC from an

order revoking its status as a permissive intervenor. While the

(Continued on following page)

.v. Continental Oil Co., 548 F.2d 884 (10th Cir. 1977). Since

a charging party may demand a right-to-sue letter and

file suit at any time following the expiration of 180 days

from the date the charge is filed, private suits involving

issues Of public concern may well be filed long before

EEOC has had an opportunity to complete its adminis-

trative process. Mills v. Bartenders International Union

Local No. 41, 21 F.E.P. 42 (N.D. Cal. 1975). To hold that

General Telephone of the Northwest applies only to EEOC

suits in its own name would be to subject the agency’s

ability to further the statutory purpose of effective en-

forcement of Title VII to the actions or inactions of charg-

ing parties, who are not within the Commission’s control.

In 1976, when plaintiff exercised her right to demand

a right-to-sue letter and file her private Title VII action,

the EEOC’s backlog of unprocessed charges was notorious.°

A plaintiff who believed she had a meritorious case, as

does respondent Hoffman, would have been ill-advised to

allow evidence to become stale or witnesses to disappear

while waiting for EEOC to act. By obtaining her right-

to-sue letter and filing this action, plaintiff followed the

prudent course, but once she did so, EEOC was no longer

free to file its own direct action. In allowing plaintiffs

Footnote continued—

appeal was pending, the private plaintiff’s claim was settled,

and the Sixth Circuit dismissed the appeal as moot. In the Sixth

Circuit, however, a private Title VII action does not bar a subse-

quent direct EEOC suit based on the same charge. See EEOC v.

Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir.), cert. denied,

423 U.S. 994 (1975). Even if there were a statutory purpose

for conciliation once suit has been filed, it makes little sense

to require the completion of prerequisites to a suit that cannot

be brought.

6. In December 1977, the EEOC had a backlog of 99,000

charges. Equal Employment Opportunity Commission, 17th

Annual Report 12 (1984).

10

to sue before completion of EEOC’s processes, Congress

cannot have intended to eliminate EEOC’s later ability

to enforce the Act in the public interest. For this reason.

it provided that EEOC may intervene in private suits.

It would violate the rationale and the public policy con-

siderations of General Telephone of the Northwest to hold

that EEOC may not represent the public interest under

these circumstances.

C. The District Court’s Ruling Will Not Cause a

Flood of Litigation.

Petitioners contend that the district court’s decision

will cause a flood of Title VII litigaticn. This is not true.

First, once EEOC has complied with the prerequisites for

intervention under § 706(f)(1), the decision whether it

will be permitted to intervene and, if so, under what con-

ditions, are left to the discretion of the district court. As

with any permissive intervention, the court may always

control the extent of the intervenor’s participation. See

generally 7A C. Wright & A. Miller, Federal Practice and

Procedure, §§ 1913, 1922 (1972 and Supp. 1984). Second,

fears of massive EEOC litigation cannot be based on cur-

rent data concerning the agency’s activity. During the

twelve-month period ending June 30, 1982, 7,689 employ-

ment civil rights cases were filed in the federal courts.

Annual Report of the Director of the Administrative Office

of the United States Courts 135 (1983), contained in Re-

ports of the Proceedings of the Judicial Conference of the

United States (1983). By comparison, in fiscal year 1982,

EEOC filed 101 direct suits under Title VII, and intervened

in only two private suits. Equal Employment Opportunity

Commission, 17th Annual Report 25 (1984). In the year

ending June 30, 1981, there were a total of 6,245 Title VII

cases filed in the federal courts, Annual Report of the

11

Director of the Administrative Office of the United States

Courts, supra at 135; in fiscal year 1981, EEOC filed 229

direct suits and intervened in six private suits, Equal Em-

ployment Opportunity Commission, 16th Annual Report

25 (1982). In the year ending June 30, 1980, there were

5,117 Title VII suits filed in the federal courts, Annual

Report of the Director of the Administrative Office of the

United States Courts, supra at 135; in fiscal year 1980,

EEOC filed 200 direct suits and intervened in 10, Equal

Employment Opportunity Commission, 15th Annual Report

14 (1982). The supposed “unlimited scope of the EEOC’s

litigating zeal” that petitioners decry, Pet. 16, simply is

not borne out by the facts. There is no basis to believe that

EEOC will not marshal its resources wisely and select its

cases carefully. Third, if the result of this clear reading

of the intervention provisions of Title VII and their legis-

lative history leads to more federal court litigation than

would the unsupportable interpretation advanced by peti-

tioners, the appropriate forum to petition is not this Court,

but Congress.

II. The Tenth Circuit Was Correct in Finding Manda-

mus Inappropriate in This Case.

Finally, under the decisions of this Court, the Tenth

Circuit was clearly correct in holding that mandamus is

not appropriate under the circumstances of this case.

In Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35

(1980), this Court narrowly confined the use of the writ

by ruling that “[o]nly exceptional circumstances amounting

to a judicial usurpation of power, will justify the invoca-

tion of this extraordinary remedy.”’

The primary reason for restricting the use of manda-

mus is the congressional policy underlying the final deci-

12

sion rule.’ It is “in the interest of the fair and prompt

administration of justice to discourage piecemeal litiga-

tion.” Kerr v. United States District Court, 426 U.S. 394,

403 (1976). “It has been Congress’ determination since

the Judiciary Act of 1789 that as a general rule appellate

review should be postponed until after final judgment

has been rendered by the trial court.” Allied Chemical

Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). To protect

the integrity of the final judgment rule and confine the

use of mandamus to extraordinary circumstances, this

Court has required that a party seeking issuance of the

writ “have no other adequate means to obtain the relief

he desires .. . and that he satisfy the burden of showing

that [his] right is clear and indisputable.” Allied Chem-

ical Corp. v. Daiflon, Inc., 449 U.S. at 35, quoting Bankers

Life & Casualty Co. v. Holland, 346 U.S. 379, 384 (1953),

and United States v. Duell, 172 US. 576, 582 (1899) (in-

7. Petitioners claim that this Court should review the de-

cisions of the District Court and the Tenth Circuit because they

are “for all practical purposes” final. Pet. 15 n.5. Apparently,

petitioners are referring to the “collateral order doctrine” of

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949),

under which a “small class” of orders that do not end the liti-

gation may nevertheless be appealable as “final.” There are

three requirements for application of the collateral order doc-

trine. “[{T]Jhe order must conclusively determine the disputed

question, resolve an important issue completely separate from

the merits of the action, and be effectively unreviewable on

appeal from a final judgment.” Coopers & Lybrand v. Livesay,

437 U.S. 463, 468 (1978). Without even discussing the first two

factors, it is clear that the third is not met in this case. As-

suming that the District Court’s ruling was erroneous, any

resulting harm to petitioners can be corrected on appeal from

a final judgment. This is not a situation in which “denial of

immediate review would render impossible any review what-

soever.” Compare Coopers & Lybrand v. Livesay, supra (no

immediate appeal from order decertifying class action) and

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981) (no

immediate appeal from pretrial denial of motion to disqualify

counsel in civil case) with Nixon v. Fitzgerald, 457 U.S. 731

(1982) (order denying claim of absolute immunity is appeal-

able under Cohen).

13

ternal quotation marks omitted for simplicity). As the

Tenth Circuit has noted:

For mandamus to issue there must be (1) a clear

right in the plaintiff to the relief sought; (2) a plainly

defined and preemptory duty on the part of the de-

fendant to do the action in question; and (3) no other

adequate remedy available.

Hadley Memorial Hospital, Inc. v. Schweiker, 689 F.2d

905, 912 (10th Cir. 1982). None of these factors is present

here.

CONCLUSION

The decisions of the District Court and the Court of

Appeals for the Tenth Circuit were correct. Petitioners

have failed to show that these rulings were erroneous

in any respect.

Respectfully submitted,

Davin J. WAXSE

(Counsel of Record)

SHooK, Harpy & BAcon

40 Corporate Woods, Suite 650

9401 Indian Creek Parkway

Overland Park, Kansas 66210

(913) 451-6060

ELINOR P. SCHROEDER

University of Kansas School

of Law

Lawrence, Kansas 66045

KAREN PLAX

8800 Blue Ridge Parkway

Suite 206

Kansas City, Missouri 64138

Attorneys for Respondent

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TKC6-0227

CHARGE OF DISCRIMINATION (Continued)

NAME: Ms. Phyllis J. Wilson

United Telecommunications, Inc., previously known

as United Utilities, Inc. and United Systems Services,

Inc., the parent company and its subsidiaries and divisions

throughout the United States have also engaged in a wide-

spread policy of discrimination in employment practices

against women as a group. The discriminatory actions

relate to and include hiring, promotion, compensation,

terms and privileges of employment as well as training

practices. Women in or eligible for managerial level

positions are particularly discriminated against.

The discriminatory practices include, but are not lim-

ited to, the following:

1. Women are paid less than men for substantially

similar work.

2. Women have lower salaries than men because of

inequality based on sex in work assignments and promo-

tional opportunities.

3. From Grade 14 of company job classifications up

to the highest grade there are significant disparities in the

number and percentage of women versus men employed.

This is a direct result of the company’s differentiation

on the basis of sex.

4. Men are generally given job classifications which

include more responsibility whereas women are allocated

positions with responsibility levels below; their capabilities.

5. The management development programs available

within and outside the company include few women and

A4

the criteria for entering such programs are vague allowing

almost total discretion as to which employees are eligible.

6. Female applicants are channeled into the lowest

paying job categories generally as operators or in clerical

positions while men are recruited into higher-paying more

prestigious jobs.

7. Among the obstacles to upward mobility within

the company for women employees are the obscure and

informal procedures of promotion and assignment to those

departments with opportunities for progression to man-

agement level positions. The company does not post job

openings or in other ways make available management

openings known to women employees.

8. Women are not given adequate craft and tech-

nical training.

The above-named employer has also discriminated on

the basis of religion against Jews as a group in employ-

ment practices relating to and including hiring, promotion,

compensation, terms and privileges of employment as well

as training practices. Jews in or eligible for managerial

level positions are particularly discriminated against.

—

A5

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

PHYLLIS WILSON HOFFMAN, et al.,

Plaintiff,

and

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Applicant for Intervention,

Case No.

76-223-C2

vs.

UNITED TELECOMMUNICATIONS,

INC., et al.,

Defendants.

Nee ee Nee eee eee ee”

CERTIFICATE OF GENERAL

PUBLIC IMPORTANCE

The U.S. Equal Employment Opportunity Commis-

sion has authorized the undersigned, the General Counsel

of the Commission, to certify to the Court and I hereby

certify that the Commission has determined this action

to be of general public importance in accordance with

706(£)(1) of Title VII of the Civil Rights Act of 1964, as

amended by the Equal Employment Opportunity Act of

1972, 42 U.S.C. Section 2000e-5(f) (1) (Supp. V, 1975).

Respectfully submitted,

/s/ Abner Sival

Abner W. Sibal

General Counsel