Opposition Brief — Cicirello v. New York Telephone Co.

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No. 89-356 : ¢)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

ADELINA CICIRELLO,

is Petitioner,

NEW YORK TELEPHONE COMPANY,

‘Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF RESPONDENT :

NEW YORK TELEPHONE COMPANY IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Of Counsel: MARK S. DICHTER *

MorRGAN, LEWIS SARAH A. KELLY

& BOcKIUS 2000 One Logan Square

Philadelphia, PA 191038

(215) 968-5291

LON S. BANNETT

NEW YORK TELEPHONE COMPANY

1095 Avenue of the Americas

New York, NY 10088

(212) 395-6496

Attorneys for Respondent

Dated: September 27, 1989 * Counsel of Record

RES AS EA IE NETL OSI IIIT ELIE TET ET ETE LID TELE TE,

WILSON - Epzs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

COUNTERSTATEMENT OF QUESTION PRESENTED

Whether the court of appeals correctly affirmed the

Order of the district court dismissing petitioner’s com-

plaint for the reason that she was without standing to

bring an action to enforce a consent decree to which she

was not a party.

(i)

ii

PARTIES BELOW

Petitioner Adelina Cicirello was the appellant in the

Court of Appeals and the plaintiff in the District Court.

Respondent New York Telephone Company was the ap-

pellee in the Court of Appeals and the defendant in

District Court.

Respondent New York Telephone Company has the fol-

lowing parent companies, non-wholly owned subsidiaries

and affiliates:

NYNEX Corporation (parent)

NYNEX Service Company (non-wholly-owned

subsidiary).

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTION PRE-

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TABLE OF AUTHORITIES ..20002.02....2.....c.cceccceesceeeeseeees

JURISDICTION AND OPINIONS AND JUDG-

EE

COUNTERSTATEMENT OF THE CASE...................

A. The Matter In The Courts Below........................

B. Brennan v. American Telephone and Telegraph

Co. And Cicirello’s Other Actions Against New

York Telephone Company ......................-.........-...

1. Brennan v. American Telephone and Tele-

EE SESE TRI ESY 1S

a et a a

RI anni basdailind linn th aniomnpstnsgnntdacvassdnnciensevncontienniien

REASONS FOR DENYING THE WRIT ..................... ‘

I. Certiorari Should Be Denied Because The Courts

Below Correctly Decided That Cicirello Lacked

Standing To Enforce The Consent Decree Be-

cause She Was Not A Party To The Decree And

Because The Decree Did Not Provide For En-

forcement By Non-Parties .....0000...0000.-.00oo.

II. The Court’s Decision In Martin v. Wilks Does

Not Affect The Lower Courts’ Disposition Of

ES ES eae

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Page

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iv

TABLE OF AUTHORITIES

CASES Page

Blue Chip Stamps v. Manor Drug Stores, 421 U.S.

723 (1975) .... 6-7, 10

Brennan v. American Telephone and Telegraph

Co., Civil Action No. 74-1342 (E.D. Pa. 1974) .... 2, 3-4,

13, 14

Byrd v. Long Island Lighting Co., 565 F. Supp.

FS SF 8 A RERRRICR RENE kaw ce eee 12

Cicirello v. New York Telephone Co., No. 87 Civ.

1498-CLB (S.D.N.Y. 1981) .............. 4,5

Cicirello v. New York Telephone Co., No. 13251-

Re EE 3. OnE 4-5

Cicirello v. New York Telephone Co., C.A. 83-Civ.-

I eee eT Ee mT» 5, 12, 14

Cicirello v. New York Telephone Co., 97 A.D.2d

990, 468 N.Y.S.2d 962 (19838) —...0002-.- ee... 5

Cicirello v. New York Telephone Co., No. 84-7935

AE SSR Lae en ee aC 5

Cicireilo v. New York Telephone Ce., Civil Action

No. 86-3366 (E.D. Pa. 1989) ....... S ditesidci bia sass 1-2

Cicirello v. New York Telephone Co., No. 89-1100

(8d Cir. 1989) -.............. 1

EEOC v. International Union of Operating Engi-

neers, Local Union #8, 416 F. Supp. 728 (N.D.

a 8

Firefighters Local Union No. 1784 v. Stotts, 467

ee 8

H.F. Allen Orchards v. United States, 749 F.2d

1571 (Fed. Cir. 1984), cert. denied, 474 US.

Ee eee Sen ee 10, 11

Hameed v. International Ass’n of Bridge, Struc-

tural and Ornamental Iron Workers, Local

Union No. 396, 637 F.2d 506 (8th Cir. 1980) -..... 8

Jones v. Local 520, Int’l Union of Operating Engi-

. neers, 603 F.2d 664 (7th Cir. 1979), cert. denied,

3S) UC ee ee ee 11

Manor Drug Stores v. Blue Chip Stamps, 492 F.2d

136 (9th Cir. 1978), rev’d, 421 U.S. 723 (1975)... 6

Martin v. Wilks, 109 S. Ct. 2180 (1989) -........ 5, 18, 14, 15

Vv

TABLE OF AUTHORITIES—Continued

Perdue v. Roy Stone Transfer Corp., 690 F.2d

I 11-12

Rule v. International Ass’n of Bridge, Structural

and Ornamental Ironworkers, 568 F.2d 558 (8th

Cir. 1977) 8

South v. Rowe, 759 F.2d 610 (7th Cir. 1985) _......... 10-11

United States v. Armour & Co., 402 U.S. 678

RESIS RE or a Pras oda rR Rd Se le 7-8, 10

STATUTES .

28 U.S.C. § 1254 (1) ........ 1

ET NEE en er 11

42 U.S.C. § 2000e-5(b) (Title VII) ...... 0. passim

Supreme Court Rule 17 ..00....... een - 15

IN THE .

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-356

ADELINA CICIRELLO,

e Petitioner,

NEW YORK TELEPHONE COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF RESPONDENT

NEW YORK TELEPHONE COMPANY IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondent New York Telephone Company (“NYTC”)

respectfully requests that the Court deny the Petition for

Writ of Certiorari in this matter, seeking review of the

judgment of the United States Court of Appeals for the

Third Circuit entered on June 8, 1989.

JURISDICTION AND OPINIONS AND

JUDGMENTS BELOW

Jurisdiction of the Court is pursuant to 28 U.S.C.

§ 1254(1). The judgment of the Court of Appeals for

the Third Circuit in Cicirello v. New York Telephone Co.,

No. 89-1100, was entered on June 8, 1989. The Memor-

andum and Order of the United States District Court for

2

the Eastern District of Pennsylvania in Cicirello v. New

York Telephone Co., Civil Action No. 86-3366, were en-

tered on January 4, 1989. Both are reproduced in peti-

tioner’s appendix at A-1 through A-26.

COUNTERSTATEMENT OF THE CASE

A. The Matter In The Courts Below

In this action, filed on June 9, 1986, Petitioner Ade-

lina Cicirello (“Cicirello”) has complained that her fer-

mer employer, Respondent New York Telephone Company

(“NYTC”), never paid her benefits which she alleged were

due her pursuant to a Consent Decree among the Equal

Employment Opportunity Commission (“EEOC”) and

various other government-plaintiffs and American Tele-

phone and Telegraph Company (“AT&T”) and several

of its operating companies, including NYTC. Cicirello

was not a party to that Consent Decree, and the Consent

Decree provided for enforcement only by the parties.

The Decree was entered in the United States District

Court for the Eastern District of Pennsylvania on May

30, 1974 in Brennan v. American Telephone and Tele-

graph Co., Civil Action No. 74-1342. The Decree expired

by its express terms on May 30, 1979, almost seven years

to the day before the commencement of this action in the

district court. The Decree is reproduced in respondent’s

appendix at la to 16a.

In her Amended Complaint, Cicirello alleged that, pur-

suant to the terms of the Consent Decree, NYTC was to

upgrade the salaries of individuals against whom it had

allegedly discriminated, make payments of back pay to

such individuals and institute non-discriminatory promo-

tion policies. Cicirello, a former managerial employee

with NYTC, alleged that she was one of the individuals

covered by the Consent Decree. She contended that

NYTC violated the Decree as it allegedly pertained to

her in that it did not pay her back pay, did not afford

3

her the opportunity of promotion and did not inform her

of any program being instituted pursuant to the Consent

Decree.

NYTC moved to dismiss Cicirello’s claims because by

its own terms the Consent Decree expired on May 30,

1979, seven years before Cicirello filed this action. NYTC

also argued that Cicirello did not have standing to bring

this action. The district court granted NYTC’s Motion

to Dismiss Cicirello’s action in its entirety. Specifically,

the district court held that Cicirello did not have stand-

ing to enforce a Consent Decree to which she was not a

party, and which by its own terms provided for enforce-

ment only by the government-parties to the Decree. (Pe-

titioner’s Appendix at A-4 to A-25).' The Court of Ap-

peals for the Third Circuit affirmed the order of the

district court for the reasons given by the district court.

(Petitioner’s Appendix at A-2).

B. Brennan v. American Telephone and Telegraph Co.

And Cicirello’s Other Actions Against New York

Telephone Company

1. Brennan v. American Telephone and Telegraph Co.,

et al.

On May 30, 1974, the then-Secretary of Labor, the

Equal Employment Opportunity Commission and the

United States joined as plaintiffs in a nationwide employ-

1 During the pendency of this action before the district court,

Cicirello filed an Amended Complaint alleging that NYTC fraudu-

lenty concealed the Consent Decree from her. NYTC argued below

that not only did Cicirello lack standing, but that her claims were

barred by the doctrine of laches because she did not begin the

instant action until seven ye rs after she learned of the Consent

Decree, and in addition that she failed to plead fraudulent conceal-

ment with the specificity required by law. Because they decided that

Cicirello did not have standing, the courts below did not reach

NYTC’s other arguments. (Petitioner’s Appendix at A-1 to A-26).

4

ment discrimination action against American Telephone

and Telegraph Company and numerous of its operating

companies, including NYTC, in the United States Dis-

trict Court for the Eastern District of Pennsylvania,

Civil Action No. 74-1342. The complaint in that action

alleged, inter alia, that certain pay and promotional prac-

tices applicable to managerial employees were discrimi-

natory on the basis of sex. On May 30, 1974, NYTC and

the other defendants answered the complaint in that ac-

tion and filed a proposed Consent Decree which was sub-

sequently approved by the court. That Decree expired by

its own terms on May 30, 1979. (1a to 16a).

2. Cicirellol

In March, 1981, Cicirello commenced an action against

NYTC in the United States District Court for the South-

ern District of New York alleging, inter alia, that NYTC

had violated the Consent Decree. Cicirello v. New York

Telephone Co., No. 81 Civ. 1493-CLB (S.D.N.Y.) (here-

inafter “Cicirello I”). On June 19, 1981, that court is-

sued an order dismissing Cicirello’s complaint, holding,

inter alia, that “Necessary proceedings, if any, to enforce

the ‘Consent Decree’ of the United States District Court

for the Eastern District of Pennsylvania made in 1974

under docket number 74-1342, should be taken in that

Court.” (17a to 18a).

3. Cicirello II

Rather than heeding the order of the federal district

court for the Southern District of New York, Cicirello

commenced an action in June, 1982 in the New York

Supreme Court, Nassau County, alleging that NYTC had

fraudulently violated the Consent Decree. Cicirello v.

New York Telephone Co., No. 18251-1982 (N.Y. Sup. Ct.

—Nassau County) (hereinafter “Cicirello II’’). On De-

5

cember 6, 1982, the New York Supreme Court issued an

order dismissing Cicirello’s complaint for the same rea-

sons as set forth in the opinion in Cicirello I. (19a to

20a). The decision of the New York Supreme Court sub-

sequently was affirmed by the Appellate Division, Second

Department. Cicirello v. New York Telephone Co., 97

A.D.2d 990, 468 N.Y.S.2d 962 (1983).

4. Cicirello III

On or about April 22, 1983, Cicirello again commenced

an action against NYTC in the United States District

Court for the Southern District of New York. Cicirello

v. New York Telephone Co., C.A. 83-Civ.-8114 (S.D.N.Y.)

(hereinafter “Cicirello III”). In her complaint, Cicirello

alleged that NYTC retaliated against her for filing a

charge of discrimination with the Equal Employment Op-

portunity Commission by allegedly intimidating and har-

assing her and demoting her. The court granted NYTC’s

motion for summary judgment holding, inter alia, that

Cicirello had become ill and left work before any demo-

tion took effect. (21a to 27a). The United States Court

of Appeals for the Second Circuit affirmed in an order

entered March 5, 1985. Cicirello v. New York Telephone

Co., No. 84-7935 (2d Cir. March 5, 1985).

SUMMARY OF REASONS FOR DENYING THE WRIT

The standard for granting certiorari has not been met

in this case because the courts below correctly applied the

rule that a consent decree is to be interpreted in ac-

cordance with its terms. The courts below held that the

decree in question did not contemplate enforcement by

non-parties. There is no need to alter this rule in light

of the Court’s recent decision in Martin v. Wilks, 109

S. Ct. 2081 (1989), because, unlike the decree in that

case, the decree in question did not operate to deprive

Cicirello of any rights.

6

REASONS FOR DENYING THE WRIT

I. Certiorari Should Be Denied Because The Courts Be-

low Correctly Decided That Cicirello Lacked Standing

To Enforce The Consent Decree Because She Was Not

A Party To The Decree And Because The Decree Did

Not Provide For Enforcement By Non-Parties.

The district court dismissed Cicirello’s Amended Com-

plaint on the specific ground that Cicirello had no stand-

ing to enforce a consent decree to which she was not a

party. The district court correctly held, and the Third

Circuit correctly affirmed, that under the terms of the

Consent Decree only the parties to the Decree had stand-

ing to enforce its provisions. The parties to the Consent

Decree at issue here were the Secretary of Labor, the

Equal Employment Opportunity Commission, the United

States of America, the American Telephone and Tele-

graph Company and several regional Bell operating com-

panies. Cicirello was not a party to the Consent Decree.

The courts below properly relied on this Court’s pre-

eminent statement of the law regarding standing to en-

force consent decrees. In Blue Chip Stamps v. Manor

Drug Stores, 421 U.S. 723, 750 (1975), this Court held:

[A] well-settled line of authority from this Court

establishes that a consent decree is not enforceable

directly or in collateral proceedings by those who are

not parties to it even though they were intended to

be benefited by it.

As the district court below pointed out, the rationale

for this rule was correctly stated by the dissent in the

Ninth Circuit’s decision in Blue Chip Stamps. In that

dissent, Judge Hufsteadler pointed out that allowing non-

parties to a consent decree to sue increases potential ex-

posure to litigation and impairs the public policy inter-

ests favoring the settlement of litigation. Manor Drug

Stores v. Blue Chip Stamps, 492 F.2d 136, 144 n.3 (9th

Cir. 1973) (Hufsteadler, J., dissenting).

7

Cicirello has attempted to distinguish Blue Chip Stamps

from her own case by arguing that there are stronger

policy reasons for allowing standing to a non-party to a

civil rights consent decree, as opposed to one in a securities

case. In Blue Chips Stamps, a plaintiff who was discour-

aged from purchasing stock by the wrongful action of

the defendant in violation of the federal securities iaws

attempted to recover by enforcing a consent decree which

redressed the defendant’s wrongful acts. Blue Chip

Stamps is factually analogous to Cicirello’s case except

that the plaintiff was seeking to enforce rights under a

different statute. Cicirello has not explained why the

“remedial purpose” of Title VII should be distinguished

from the “remedial purpose” of the federal securities

laws.

The primary rule for deciding how to interpret a con-

sent decree was announced by this Court in United States

v. Armour & Co., 402 U.S. 673 (1971). In that case, this

Court wrote, “the scope of a consent decree must be dis-

cerned within its four corners, and not by reference to

what might satisfy the purposes of -one of the parties to

it... [or by what] might have been written.” 402 U.S.

at 682. In United States v. Armour & Co., this Court

recognized that consent decrees are generally entered into

only after careful negotiation has produced an agreement

on precise terms. Because the parties waive their rights

to litigate the issues covered by the consent decree, this

Court has held that such a decree must be construed ex-

actly as it is written. 402 U.S. at 681-82.

Thus, according to Armour & Co., where a consent

decree contains specific provisions as to who may enforce

the decree, a court determining how to enforce the decree

is limited to interpreting those provisions. This rule has

been applied in several cases involving interpretation of

enforcement provisions of civil rights consent decrees,

8

and the question of standing to enforce those decrees.?

For example, the Eighth Circuit interpreted a provision

of an employment discrimination consent decree which

allowed “plaintiff United States” to enforce noncompli-

ance to mean that third party beneficiaries of the decree

had no standing to sue. Rule v. International Ass’n of

Bridge, Structural and Ornamental Ironworkers, 568 F.2d

558, 565 n.10 (8th Cir. 1977), affirming in pertinent part

Rule v. International Ass’n of Bridge, Structural and

Ornamental Iron Workers, 423 F. Supp. 373, 381 (E.D.

Mo. 1976). Accord Hameed v. International Ass’n of

Bridge, Structural and Ornamental Iron Workers, Local

Union No. 396, 687 F.2d 506 (8th Cir. 1980) (reaching

same result in a case interpreting the same consent de-

cree). Similarly, in EEOC v. International Union of Op-

erating Engineers, Local Union #8, 416 F. Supp. 728,

732 (N.D. Cal. 1975), the district court, relying on the

rule that relief under a consent decree must be based on

language that is explicitly within the four corners of the

decree, held that private plaintiffs who were not parties

to the consent decree had no standing to enforce it.

The enforcement language of the Consent Decree in

this case, relied on by the district court, provided that

“(t]he government plaintiffs shall endeavor to coordinate

their efforts to assure compliance with this Decree,” and

“(t]he government will promptly notify the Bell Company

involved and A.T.&T. of any problems of noncompliance

with this Decree which they believe warrant investigation.

2The Armour & Co. rule was applied by this Court in an employ-

ment discrimination consent decree context in Firefighters Local

Union No. 1784 v. Stotts, 467 U.S. 561, 574 (1984). There, the

Court confirmed that even in the context of enforcement of an em-

ployment discrimination consent decree, the express provisions of

that decree had to be given effect. 467 U.S. at 574. The Court held

that the district court could not rely on the broad remedial purposes

of Title VII to improperly modify the consent decree by issuing an

injunction that exceeded the scope of the decree. 467 U.S. at 572-76.

9

Such Company will be given 60 days to investigate the

complaint and conciliate with the government regarding

the taking of any appropriate corrective action. At the

end of this period, the government, if not satisfied, may

seek an appropriate resolution of the question by the

Court.” (Petitioner’s Appendix at A-21 to A-22) (em-

phasis added).

In discussing the enforcement language of the Consent

Decree as it related to individual employees, the district

court properly noted,

[To] the extent that the Decree envisaged pursuit

by individual employees of their own remedies, it

seems apparent that such cases were not seen as

arising under the Agreement. Thus Section I.B.I.B.

provides: “Acceptance by any person of individual

relief ordered in Part A [promotion and back pay

remedies sought by plaintiff Cicirello] shall consti-

tute a waiver and release by such person of any

claims for alleged violations of Title VII of the Civil

Rights Act of 1964, .. . Executive Order 11246, ...

or any applicable state fair employment practice

laws or regulations based upon occurrences prior to

the date of this Decree as respects [sic] those issues

dealt with in the Decree.” The Decree evidently con-

templated separate litigation of private causes of

action by plaintiffs who did not, whether because of

ineligibility, error by the parties in enforcement, ac-

tual fraudulent exclusion, or other reason, directly

benefit from its provisions.

(Petitioner’s Appendix at A-22 to A-24) (emphasis in

original). The district court correctly reasoned that this

language provided for only the government to seek judi-

cial enforcement of the Decree, and envisioned pursuit of

other remedies under the civil rights laws by individual

employees who did not receive relief under the Decree,

separate and apart from the governr:ent’s enforcement

of the agreement, (Petitioner’s Appendix at A-22 to

A-24),

10

Although some courts have not applied Blue Chip

Stamps’ general rule, that only parties to a consent decree

may enforce its terms, to non-party beneficiaries of con-

sent decrees affecting civil rights, these cases acknowledge

the general rule that a consent decree should be construed

as a contract. In the absence of clear enforcement lan-

guage for the court to interpret, these cases have relied

on general principles of contract which would permit

third-party beneficiaries to sue. For example, in H.F.

Allen Orchards v. United States, 749 F.2d 1571 (Fed.

Cir. 1984), cert. denied, 474 U.S. 818 (1985), relied on

by Cicirello for its holding that certain farmers had

standing to enforce a consent decree, the court recognized

that the Armour rule applies. “A consent decree is con-

strued as a contract for enforcement purposes, and aids

to construction, such as circumstances surrounding for-

mation of the decree and the technical meanings words

may have had to the parties, may be considered.” 749

F.2d at 1574.

Cicirello has cited five cases for the proposition that

a civil rights consent decree may be enforced by a non-

party. However, these cases are either inapposite or have

specific factual circumstances which led the courts to so

interpret the consent decrees at issue. For example, in

South v. Rowe, 759 F.2d 610 (7th Cir. 1985), the con-

sent decree provided for a prison to maintain certain law

library services. The inmate-party who sought the con-

sent decree was no longer an inmate when the decree

was finally negotiated and signed. The decree specifically

provided, however, that the court was to retain jurisdic-

tion to enforce the decree for a two-year period. Thus,

the court reasoned that the only explanation for a con-

tinued enforcement period, after the inmate-party to the

decree was released from prison, was for the benefit of

current inmates. The court specifically relied on the rea-

soning that a consent decree is a form of contract and

11

that, where the intent of the parties as expressed in the

language of the decree is ambiguous, a court may con-

sider extrinsic evidence as to the intent of the parties.

759 F.2d at 611-13.

The farmers who sought to enforce the consent decree

at issue in H.F, Allen Orchards v. United States, 749

F.2d 1571, 1573 (Fed. Cir. 1984), cert. denied, 474 U.S.

818 (1985), were dues-paying members of an association

which was a party to the decree and which had sought

the decree on its members’ behalf. 749 F.2d at 1573.

The court held that the party was thus only a surrogate

for the aggregation of its members. Also, the decree pro-

vided that the government should make certain informa-

tion available to the farmers and that they would pay the

government directly for this information. The court also

relied on this fact in interpreting the decree to provide

for enforcement directly by the farmers. 749 F.2d at

1576.

In Jones v. Local 520, Int’l Union of Operating Engi-

neers, 603 F.2d 664 (7th Cir. 1979), cert. denied, 444

U.S. 1017 (1980), the complaint stated a cause of action

under 42 U.S.C. § 1981, as well as a claim under the con-

sent decree. The appeals court relied principally on the

right of plaintiffs to sue for deprivation of their civil

rights under 42 U.S.C. § 1981, when it remanded the

case to the district court, and not on an interpretation

of how the consent decree should be enforced. The dis-

trict court specifically noted this fact in its decision in

the case on remand. See Jones v. Local 520, Int’l Union

of Operating Engineers, on remand, 524 F. Supp. 487,

490 (S.D. Ill. 1981). In Perdue v. Roy Stone Transfer

Corp., 690 F.2d 1091 (4th Cir. 1982), the plaintiff who

sought to enforce a private conciliation agreement

reached among her emp.oyer, herself and the EEOC un-

der the EEOC’s statutory conciliation authority, 42

12

U.S.C. § 2000e-5(b), was actually a party to that agree-

ment. In Perdue, the court also found it significant that

the plaintiff forbore to press her Title VII claims be-

cause of her reliance on the consent decree. If the court

did not allow her to sue to enforce her settlement agree-

ment, she would forever lose her right to sue in federal

court, a result the court found would be inequitable.

However, as discussed in Section II, infra, Cicirello did

not lose her right to sue. The Consent Decree at issue

specifically preserved Cicirello’s right to bring a Title

VII claim. Indeed, she brought such a claim in Cicirello

III, and NYTC was granted summary judgment. (21a

to 27a).

Finally, in Byrd v. Long Island Lighting Co., 565 F.

Supp. 1455 (E.D.N.Y. 1983), the court held, without

referencing or attempting to distinguish this Court’s

precedent with respect to t Dnird party enforcement of con-

sent decrees, that a member of a class designated in a

private EEOC conciliation agreement could seek judicial

enforcement of that agreement. Even ignoring the fact

that the court admitted it could find no judicial support

for its specific holding, the agreement at issue in Byrd

was a private EEOC conciliation agreement (as was the

agreement in Perdue), not a consent order entered by the

court. 565 F. Supp. at 1469-70.

Cicirello’s arguments ignore the fact that the funda-

mental principle to be applied in this case is that consent

decrees should be interpreted according to their precise

terms. Because the courts below correctly ruled that the

decree at issue here did not provide for enforcement by

non-parties, and that Cicirello therefore had no standing

to enforce the decree, Cicirello’s Petition for Certiorari

should be denied.

13

II. The Court’s Decision In Martin v. Wilks Does Not

Affect The Lower Courts’ Disposition Of Cicirello’s

Case.

Cicirello argues that the Court’s recent decision in

Martin v. Wilks, 109 S. Ct. 2180 (1989), “suggests that

non-parties affected by [a] consent decree have standing

to seek relief with respect to matters concerning such

consent decrees.” (Petition at p. 12}. However, Martin

v. Wilks presented a different question to the Court than

that posed by Cicirello. In Martin v. Wilks, white fire-

fighters claimed that they were being deprived of their

legal right not to be subject to discrimination by virtue of

employment decisions made under consent decrees in-

tended to benefit black firefighters. The white firefighters

were not beneficiaries of the decrees. Rather, they sought

to collaterally challenge enforcement of the consent de-

crees because they allegedly resulted in a violation of

their statutory rights. The Court decided that the white

firefighters were entitled to bring their own separate dis-

crimination claims, challenging the employment decisions

taken pursuant to the consent decrees.

Cicirello argues that, like the respondents in Martin »v.

Wilks, she was a “stranger” to the consent decree at issue

(Petition at p. 23), yet this argument is simply incon-

sistent with her argument that she was an intended

beneficiary of the Brennan v. American Telephone &

Telegraph Co. consent decree. As an intended beneficiary,

Cicirello is in a completely different position than the

Martin v. Wilks respondents. The decisions made pur-

suant to the consent decrees in Martin v. Wilks acted to

deprive those respondents of their legal rights. The dis-

trict court in Martin v. Wilks had ruled that the respond-

ents in that case could not pursue separate statutory dis-

crimination claims, where such claims had the effect of

attacking decisions made under the consent decrees. This

Court’s decision in Martin v. Wilke operated to permit

plaintiffs to enforce their statutory rights.

14

On the contrary, Cicirello seeks to enforce rights which

she claims were created by the Consent Decree in Bren-

nan v. American Telephone & Telegraph Co. That decree

expressly provided for the enforcement of Cicirello’s stat-

utory rights, and in addition specifically preserved

Cicirello’s right to bring her own separate Title VII ac-

tion, as long as she had not accepted the individual relief

provided by the Consent Decree. The Consent Decree

specifically contemplated that if individuals sought their

own remedies, these cases would arise pursuant to sep-

arate claims brought by the individuals under Title VII,

as the district court noted in its opinion. (Petitioner’s

Appendix at A-22 to A-23).

Cicirello was aware of her rights under Title VII and

of the EEOC’s administrative machinery for enforcement

of those rights. (See Cicirello’s Affidavit, 28a to 34a).

Indeed, Cicirello brought her own action against NYTC

under Title VII, based on a theory of constructive dis-

charge, and New York Telephone Company was granted

“summary judgment in that action. (See Cicirello III, 21a

to 27a).

Clearly, Cicirello’s petition does not present an issue

which needs to be re-evaluated in light of the Court’s

Martin v. Wilks decision. There is no need in this case,

involving a consent decree which, in addition to creating

an additional mechanism for enforcement of Cicirello’s

statutory rights, preserved Cicirello’s right to bring her

own cause of action, to allow a collateral enforcement

proceeding by a non-party to the Decree.

15

CONCLUSION

The courts below correctly held that Cicirello does net

have standing to enforce a Consent Decree to which she

was not a party. This Court’s recent decision in Martin

v. Wilks dealt with the right of a person to collaterally

attack a consent decree where that consent decree al-

legedly interfered with that person’s statutory rights

rather than, as here, where a non-party seeks to enforce

rights allegedly created by a consent decree. Conse-

quently, that decision does not justify re-evaluation of the

decisions below. Therefore, there are no “special and

important reasons,” pursuant to Supreme Court Rule 17,

for granting certiorari in this case, and the Petition

should be denied.

Respectfully submitted,

Of Counsel: MARK S. DICHTER *

MorGAN, LEWIS SARAH A. KELLY

& BOcKIUS 2000 One Logan Square

Philadelphia, PA 19103

(215) 963-5291

LON S. BANNETT

NEW YORK TELEPHONE COMPANY

1095 Avenue of the Americas

New York, NY 10038

(212) 395-6496

Attorneys for Respondent

Dated: September 27, 1989 * Counsel of Record

APPENDIX

la

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 74-1342

PETER J. BRENNAN, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

and

UNITED STATES OF AMERICA,

- Plaintiffs,

AMERICAN TELEPHONE AND TELEGRAPH COMPANY, NEW

ENGLAND TELEPHONE AND TELEGRAPH COMPANY, THE

SOUTHERN NEW ENGLAND TELEPHONE COMPANY, NEW

YORK TELEPHONE COMPANY, NEW JERSEY BELL TELE-

PHONE COMPANY, THE BELL TELEPHONE COMPANY OF

PENNSYLVANIA AND THE DIAMOND STATE TELEPHONE

COMPANY, THE CHESAPEAKE AND POTOMAC TELEPHONE

COMPANY, THE CHESAPEAKE AND POTOMAC TELEPHONE

COMPANY OF MARYLAND, THE CHESAPEAKE AND POTO-

MAC TELEPHONE COMPANY OF VIRGINIA, THE CHESA-

PEAKE AND POTOMAC TELEPHONE COMPANY OF WEST

VIRGINIA, SOUTHERN BELL TELEPHONE AND TELEGRAPH

COMPANY, SOUTH CENTRAL BELL TELEPHCNE CoM-

PANY, THE OHIO BELL TELEPHONE COMPANY, CIN-

CINNATI BELL INC., MICHIGAN BELL TELEPHONE CoM-

PANY, INDIANA BELL TELEPHONE COMPANY, INCORPO-

RATED, WISCONSIN TELEPHONE COMPANY, ILLINOIS BELL

TELEPHONE COMPANY, NORTHWESTERN BELL TELE-

PHONE COMPANY, SOUTHWESTERN BELL TELEPHONE

COMPANY, THE MOUNTAIN STATES TELEPHONE AND

TELEGRAPH COMPANY, PACIFIC NORTHWEST BELL TELE-

PHONE COMPANY, THE PACIFIC TELEPHONE AND TELE-

GRAPH COMPANY AND BELL TELEPHONE COMPANY OF

NEVADA, Defendants,

2a

CONSENT DECREE

The Equal Employment Opportunity Commission (here-

inafter, EEOC, the Secretary of Labor (hereinafter, the

Secretary), and the United States of America having filed

their Complaint herein, the EEOC pursuant to Sections

706(f) (1) and 707(e) of Title VII, of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e et seg. (here-

inafter, Title VII), the Secretary pursuant to Sections

6(d), 15(a) (2) and 17 of the Fair Labor Standards Act

of 1938, as amended, 29 U.S.C..§§ 201 et seg. (herein-

after, the Equal Pay Act), and the United States pur-

suant to Executive Order 11246, as amended (hereinafter,

the Executive Order), and the Defendants having filed

their Answer denying the allegations in the Complaint,’

and the parties having waived hearings and findings of

fact and conclusions of law, the following order is en-

tered without any admission by any of the Defendants

or finding by the Court of any violation by any of the

Defendants of any of the above-mentioned statutes or

Executive Order, or any regulations adopted pursuant

thereto.

Now, therefore, it is ORDERED, ADJUDGED AND

DECREED as follows:

1 Defendants assert that venue in the present action is improper

as to all Defendants except the Long Lines Department of the

American Telephone and Telegraph Company, and The Bell Tele-

phone Company of Pennsylvania. However, all Defendants have

waived objections to venue for the limited purpose of the entry of

this Decree. By submitting to the jurisdiction of this Court_and

waiving objections to the venue of this action solely for the pur-

pose of the entry of this Decree, all Defendants preserve their

rights to object to the appropriateness of jurisdiction and venue

in all other actions or as to any other claims brought in this or

any other federal judicial district,

3a

PART A

I. MANAGEMENT PROMOTION PAY PLAN

Definitions: °

a

“Salary Band” is a category with a stated mini-

mum and a stated maximum salary rate which

includes a number of management positions de-

termined by the respective Company to be of

comparable value for compensation purposes.

“Salary Zone” is a geographic area of a Com-

pany’s operation within which compensation rates

are separately determined.

“Most favored sex” means the sex having the

higher average rate of pay on promotions to a

salary band (or job for back pay determinations)

during the respective study periods (July 1, 1972

to June 30, 1973;? or June 1, 1972 through May

31, 1974).

“Least favored sex” means the sex having the

lower average rate of pay on promotions to a

salary band (or job for back pay determinations)

during the study period.

“Through Promotion” limits the employees in-

cluded in the calculation required to establish a

minimum entry rate, and the employees entitled

to back pay pursuant to Section II, C., below, to

those employees entering a management band as

a result of a promotion® from any position or

2 For establishing the minimum entry rate for each salary band,

the study period with respect to New England Telephone and Tele-

graph Company shall be January 1, 1973 to June 30, 1973.

8In Wisconsin Telephone Company and The Ohio Bell Telephone

Company “promotion” includes only reassignments which entitle

the employees to a promotional salary increase consistent with the

promotion pay practices of those Companies.

A.

Aa

band with a lower maximum rate.‘ Neither cal-

culation shall include employees entering as new

hires, entering through lateral transfer, or tempo-

rarily promoted.

6. “Temporarily Promoted” means a promotion in

which the employee does not assume all the duties

and responsibilities of the assigned position or a

promotion for a specific period of time which

is not a permanent assignment.

In each Operating Telephone Company, A.T. & T.

Long Lines, and A.T. & T. General Departments,

job evaluation is the primary vehicle by which man-

agement positions (excepting certain professional or

other specialized positions) are classified into various

salary bands.°®

No later than June 30, 1975, each Company will

have completed its job evaluation study in manage-

ment levels 1 and 2 (as described in A above) and

shall have ,laced each position in the salary band

for which it qualifies, based on the evaluation re-

sults. Upon placement in a new salary band, salaries

of employees below the minimum (dollar) entry rate,

as described below, of the band will be brought to

the minimum (dollar) entry rate.

Within each Operating Telephone Company, A.T. &

T. Long Lines, and A.T. & T. General Departments,

a minimum (dollar) entry rate shall be established

for each salary band in management levels 1 and 2

4 Maximum rates means the highest attainable salary rate for

completely satisfactory performance and does not include salary

rates attainable only for outstanding performance.

5 Defendants note that their purpose in establishing minimum

entry rates by salary bands rather than jobs is based on salary

administration and personnel reasons, and Defendants deny that

these bands are required for compliance with the Equal Pay Act,

Title VII or the Executive Order.

5a par

for each salary zone, based on a study of entry

rates paid in all salary zones (converted into per-

centages of zone maximum rates at the time of

promotion) to the most favored sex entering that

salary band through promotion during a study period

between July 1. 1972 and June 30, 1973. The mini-

mum (dollar) entry rate for each salary band shall

equal the average salary rate of the most favored

sex who entered the band through promotion during

the study period of July 1, 1972 to June 30, 1973.

The minimum entry rate shall be a separate dollar

-amount for each salary zone. Where fewer than

five employees of each sex were promoted to a

salary band during the study period, the study

period shall be expanded in the following manner so

that the base of employees studied shall include five

employees of each sex: (1) first, to post-study periods

in chronological order up to the date of this Decree;

and (2) if necessary, to pre-study periods in re-

verse chronological order, not to exceed two years

prior to July 1, 1972. Where no reasonable sex-mix

(minimum of five of each sex) can be obtained by

expanding the base p2riod, the minimum entry rate

for any salary band shall be established as de-

scribed above, providing at least one employee of each

sex was promoted to the band in question. When a

study discloses no promotion of employees of one

sex, the minimum entry rate shall be established at

85% of the maximum rate for the salary zone ex-

pressed in dollars. In no instance shall the mini-

mum (dollar) entry rate established for a salary

band by any method exceed 85% of the maximum

rate for the salary zone.

D. In each Operating Telephone Company, A.T. & T.

Long Lines, and A.T. & T. General Departments,

salaries of employees below the minimum (dollar)

entry rate in any salary band in management levels

G.

6a

1 and 2 shall be adjusted upward to the minimum

rate as of the first day of the first full calendar

month following the date of this Decree.

In each Operating Telephorie Company, A.T. & T.

Long Lines and A.T. & T. General Departments, no

employee entering a given salary band in manage-

ment levels 1 and 2 through promotion in the future

shall be paid a salary less than the minimum (dollar)

entry rate, upon promotion to that band.

When and if a salary structure (the combined salary

bands in a management level) in management levels

1 and 2 are revised in any Company covered by this

Decree, the minimum (dollar) entry rates for the

salary bands in the revised structure shall conform

to the greatest extent possible with the pattern of

rates established in the salary bands existing on the

date of this Decree. The minimum (dollar) entry

rate for each new salary band shall be at least as

high as the minimum rate of the band in which the

majority of the employees in the new band were

previously located, subject to the 85% limitation de-

scribed in C above. Minimum (dollar) entry rates

established under this Decree shall not be decreased

in corresponding salary bands in the revised structure

as a result of such restructuring. ~

Except as specifically modified by the Management

Promotion Pay Plan set forth herein, the manage-

ment pay practices of any Operating Telephone Com-

pany, A.T. & T. Long Lines or A.T. & T. General

Departments are not affected by this Decree.

Exceptions:

1. The minimum (dollar) entry rate for the ap-

plicable salary band and salary zone need not

apply to an employee initially hired into man-

agement levels 1 or 2. However, within two

Ta

years from an employees’ initial employment in

management levels 1 or 2, a Company shall com-

pensate each such employee at least at the mini-

mum rate established for the applicable salary

band and salary zone.

2. In The Ohio Bell Telephone Company, [Illinois

] Bell Telephone Company, the Long Lines Depart-

ment of the American Telephone and Telegraph

7 Co., and The Pacific Telephone and ‘Telegraph

Company (and Bell Telephone Company of Ne-

vada), which have implemented management pro-

motion pay plans which the parties agree are at

least as favorable to employees as the promotion

pay plan set forth above, continued use of their

respective plans complies with the requirements

of Title VII, the Equal Pay Act, and the Execu-

tive Order, provided that either their own promo-

tion pay plan, a combination of their own plan

and the plan set forth above, or the plan set

forth above, is applicable to management levels

1 and 2.

8. The minimum (dollar) entry rate for the ap-

plicable salary band and salary zone shall not

apply to employees temporarily promoted; pro-

vided, however, that where an employee has oc-

eupied a position for more than sixty calendar

days, the promotion shall no longer be considered

temporary and the employee shall be brought to

the applicable minimum entry rate. _

II. BACK PAY

In each Operating Telephone Company, A.T. & T. Long

Lines and A.T. & T. General Departments, back pay

awards shall be granted to certain employees under this

Decree (limited as noted, Section II, E, below). Such

awards shall be limited to situations and time periods in

8a

which employees in management levels 1 and 2, of both

sexes have been engaged in performance of equal work;

that is, jobs involving substantially the same duties, the

performance of which require equal skill, effort and re-

sponsibility, and which are performed under similar work-

ing conditions.

A.

Such awards shall be based on an examination in

each Company of entry rates in positions within the

same salary band which have the same first two

digits of Bell System status codes and the same Bell

System job duties codes (as revised and verified by

each Company) on a Company-wide basis,’ during

the period from the first day of the first full calendar

month following the date of this Decree to two years

prior to that date. Within 90 days from the date of

this Decree, each Company shall furnish the govern-

ment Plaintiffs with a list of all positions in man-

agement levels 1 and 2, which are in the same salary

bands, have the same first two digits of the Bell Sys-

tem status codes and the same Bell System job duties

code, and which the Company contends do not involve

“equal work,” as defined above. For each group of

such management positions on the list furnished to

the government Plaintiffs, each Company will pro-

vide a summary of the bases on which it has de-

termined that such positions do not involve “equal ~

work.” The government Pleaintiifs shall, within 60

days from the receipt of such lists, review the list-

ings and conduct such investigations as they deem

appropriate to verify the information provided and

the accuracy of the Company’s determination. In

7 Defendants note that their agreement herein to pay back pay

and establish minimum entry rates on a “Company-wide” basis by

Defendants is based on salary administration and personnel reasons

and Defendants deny that jobs in different “establishments” or

“locations” may be compared under the Equal iad Act, Title VII,

or the Executive Order.

oe Ae aa = 0 aang eR a + cine

9a

the event of a disagreement as to any determination

made by any Company, the government Plaintiffs

shall follow the procedure provided in PART B, Sec-

tion II, C, below. As to any management positions

for which the procedures of PART B, Section II, C,

below are invoked, the payment of back pay shall

be made within 30 days of the final resolution of

such procedures.

Each Company shall calculate a minimum (dollar)

entry rate for each job (as determined in Section

II, A, above) into which employees of both sexes

have been promoted, in management levels 1 and 2.

The calculation shall be made in the same manner as

provided in Section I, C, above. The minimum rate

shall be a separate (dollar) amount for each salary

zone.

Any employee who entered a job in »management

levels 1 or 2 through promotion, who was a member

of the least favored sex as defined above, and who

was employed in such a job after two years prior to

the first full calendar month following the entry of

this Decree at a rate of pay below the minimum

(dollar) job entry rate calculated for the job pur-

suant to Section II, B, above, shall receive an amount

equal to the difference between the minimum job

entry rate for the applicable job and the individual’s

salary rate(s).

Back pay awards shall be granted for the period of

time such employee has been performing a job which

qualifies for an award since two years prior to the

first day of the first full calendar month following

the entry of this Decree.

Back pay awards for The Pacific Telephone and Tele-

graph Company (including Bell Telephone Company

of Nevada), The Mountain States Telephone and

Telegraph Company, The Ohio Bell Telephone Com-

10a

pany, the Long Lines Department of the American

Telephone and Telegraph Company, and Illinois Bell

Telephone Company, which have introduced alterna-

tive entry rate plans shall be limited to the period

of time and management level(s} to which such

plans did not apply during the period provided in

C and D above. ,

PART B

I. EFFECT OF DECREE

A. As to the specific issues identified in the Com-

plaint and Decree, compliance with the terms of this

Decree resolves all existing questions among the parties

of the Bell Companies’ compliance, for acts or practices

occurring prior to the date of this Decree, with the

requirements of Title VII of the Civil Rights Act of 1964,

as amended, the Equal Pay Act of 1963, as amended, and

Executive Order 11246, as amended. Moreover, compliance

‘with the terms of the Decree in the future will. constitute

compliance with such laws, orders, and regulations as re-

spects those issues specifically dealt with in the Decree.

B. Acceptance by any person of individual relief or-

dered in PART A, Section II of this Decree shall con-

stitute a waiver and release by such person of any claims

for alleged violations of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. §§ 1981, 1983, Executive

Order 11246, as_amended, or any applicable state fair

employment practice laws or regulations based upon

occurrences prior to the date of this Decree as respects

those issues dealt with in the Decree.

C. As to the specific issues resolved in this Decree,

. the parties agree to continue the procedures and agree-

ments implemented pursuant to PART B, Section I, A-B,

of the Memorandum of Agreement of January 18, 1973,

. entered between these same parties with respect to non-

management employees.

lla

D. The Plaintiffs further agree:

1) That they will not, in any claim action or pro-

ceeding (including rate cases), involving any of

the Defendants, initiate, encourage, fund, inter-

vene in support of or advocate by amicus brief

or otherwise, a position inconsistent with this

Decree. se 3

2) That EEOC will advise its Regional and Dis-

trict offices, as well as state and local agency

grantees, and the Department of Labor will

advise its Regional and District offices and con-

tract compliance agencies, that the Decree will

bring the Bell Companies into compliance with

Title VII, the Equal Pay Act, and the Execu-

tive Order requirements as to the specific issues

identified in the Decree and that, to the limit

of EEOC’s contractual power to insure such a

result, such Companies shall not be the subject

of enforcement programs funded by EEOC, as

to the matters covered herein.

3) That any actions taken by EEOC Regional or

District offices or Department of Labor Re-

gional or District offices or OFCC field offices

which any Bell Company believes to be incon-

sistent with the terms of this Decree may be

brought to the attention of the national head-

quarters of the EEOC, Department of Labor,

or OFCC, as appropriate, and such national

headquarters shall become the party with whom

such Bell Company may resolve such compli-

ance issues.

II. COMPLIANCE PROCEDURES

A. The government plaintiffs shall endeavor to co-

ordinate their efforts to assure compliance with this

Decree and shall develop such procedures as may be

appropriate to this end,

12a

B. As to the issues resolved in this Decree, the parties

agree that Defendant Companies shall provide the follow-

ing reports within 8 months of the date of this Decree:

1) By each Company, a list of employees by race

and sex paid back wages under PART A, Sec-

tion II, and the amount paid to each;

2) By each Company, a list of employees by race

and sex accorded wage raises pursuant to

PART A, Section I, D.

Nothing in this Decree shall limit the right of the Depart-

ment of Labor to make investigations under Section 11

of the Fair Labor Standards Act nor the right of EEOC

to investigate charges pursuant to Section 706(b) of

Title VII.

C. The government will promptly notify the Bell

Company involved and A.T. & T.® of any problems of non-

compliance with this Decree which they believe warrant

investigation. Such Company will be given 60 days to

investigate the complaint and conciliate with the govern-

ment regarding the taking of any appropriate corrective

action. At the end of this period, the government, if not

satisfied, may seek an appropriate resolution of the ques-

tion by the Court.

III. DURATION OF THE DECREE

A. The Court retains jurisdiction of this action for

entry of such orders as are necessary to effectuate the

provisions of this Decree. The term of this Decree shall

©The responsibility of A.T.&T., apart from responsibility for

the compliance of its own departments, shall be limited to: (1)

in case of an irreconcilable conflict between the government and

an individual Bell Company, to use its good offices to aid in achiev-

ing a resolution of such conflict; (2) the provision of advice to

its associated telephone companies as to the meaning of the Decree

and the procedures for compliance; and (3) the coordination of re-

ports required by PART B, Section II, B.

13a

be five years from this date, but as to the specific issues

dealt with herein, the Defendants are permanently en-

joined from violating the provisions of the Equal Pay

Act, Title VII, and the Executive Order. Upon certifica-

tion to this Court that the payment of back wages ordered

in PART A, Section II, has been made, that portion of

this Decree will be dissolved as having been satisfied.

Defendants waive none of their rights to move for dis-

solution or modification of this Decree at any time in

addition to those specifically provided for in Subsection

B below.

B. Opinion letters have been issued by the General

Counsel of EEOC and the Wage and Hour Administrator

and are attached hereto as Exhibits A and B, respec-

tively. Should either opinion or portion thereof be with-

drawn or overruled, the Plaintiffs will, at the request of

the Defendant(s) affected by such withdrawal or over-

ruling, join such Defendant(s) in moving the Court to

dissolve any portion of the Decree which involves the

issue or issues with respect to which the opinion letter

has been withdrawn or modified, and to strike any portion

of the pleadings in this action relevant thereto, and such

motion shall be granted.

SO ORDERED:

/s/ A. Leon Higginbotham

Judge

United States District Court

Consent to the entry of the foregoing Decree is hereby

granted.

14a

AMERICAN TELEPHONE AND

TELEGRAPH COMPANY, for

itself and on behalf of its

associated telephone com-

panies as set forth herein.

By: /s/ Charles Ryan

CHARLES RYAN

/s/ Clark G. Redick

CLARK G. REDICK

American Telephone and

Telegraph Company

195 Broadway

New York, New York 10017

Bernard G. Segal

Irving R. Segal

Kimber E. Vought

1719 Packard Building

Philadelphia, Pennsylvania

19102

Schnader, Harrison, Segal & Lewis

1719 Packard Building

Philadelphia, Pennsylvania 19102

Of Counsel

Thompson Powers

James D. Hutchinson

Ronald 8. Cooper

1250 Connecticut Avenue,

N.W.

Washington, D.C. 20036

Steptoe & Johnson

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

Of Counsel

15a

William A. Carey

General Counsel

William L. Robinson

Associate General Counsel

Isabelle R. Cappello

Assistant General Counsel

Ethel Ollivierre

Attorney

C. Daniel Karnes

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

William J. Kilberg

Solicitor of Labor

Carin Ann Clauss

Associate Solicitor

Karl W. Heckman

Attorney

UNITED STATES DEPARTMENT

OF LABOR

16a

J. Stanley Pottinger

Assistant Attorney General

David L. Rose

Attorney

James S. Angus

Attorney

~ - Robert E. J. Curran

United States Attorney

UNITED STATES DEPARTMENT

OF JUSTICE

Endorsement _

81 Civ. 1493-CLB

ADELINA F., CICIRELLO,

Plaintiff

Vv.

NEW YORK TELEPHONE COMPANY,

Defendant

The within motion is granted and this action is dis-

missed. ;

Necessary proceedings, if any, to enforce the “Consent

Decree” of the United States District Court for the East-

ern District of Pennsylvania made in 1974 under docket

number 74-1342, should be taken in that Court.

Failure to have received a “right to sue” letter from

the EEOC precludes jurisdiction in this Court to enter-

tain a claim founded on Title VII of the Civil Rights Act

of 1964. That an official of that agency was derelict in

his duty to plaintiff, if true, is unfortunate, but does not

authorize this Court to waive the jurisdictional require-

ment.

Absent diversity or the presence of a federal claim

supplying pendent jurisdiction, this Court will not hear

claims pleaded under the New York Human Rights Law.

In her memorandum of law submitted on this motion,

plaintiff seeks leave to amend her complaint to allege a

claim within 42 U.S.C. § 1981 or 1983. No purpose would

be served by any such amendment under the relevant

facts of this case.

18a

The Clerk shall enter a final judgment dismissing this

action without costs and without prejudice to plaintiff’s

rights, if any, under the Consent Decree of the United

States District Court for the Eastern District of -Penn-

sylvania.

So Ordered.

Dated: New York, New York

June 19, 1981

/s/ Charles L. Brieant

CHARLES L. BRIEANT

U. S. D. J.

Oat ae as imiewt.

19a

SHORT FoRM ORDER

SUPREME COURT—STATE OF NEW YORK

Present: HON. HENDERSON W. MORRISON, Justice

SPECIAL TERM, PART 1

NASSAU COUNTY

Index Number 13251, 1982

Motion Date Sept. 29, 1982

Motion Cal. Number 29

ADELINA F. CICIRELLO,

~ Plaintiff,

-against-

NEW YORK TELEPHONE COMPANY,

Defendant.

The following papers numbered 1 to 10 read on this

motion

Papers Numbered

PN re Ba ois vive bikin Ces céoe ss euews

PS ce es cacwvcbsinnceae

ee oly bo ns wba keene

Upon the foregoing papers it is ordered that this

motion by defendant for dismissal of the complaint is

granted.

Although movant cites only CPLR 3211(a)7, the Court

has considered the impact of CPLR 3211(a)2 despite the

movant’s failure to cite that subdivision,

20a

Despite plaintiff’s adjectival and adverbial embellish-

ment of the first cause of action, the fraudulent charac-

terization of defendant’s alleged violation of the consent

order of the U. S. District Court (E.D.Pa.) must be

viewed as merely accidental rather than substantial. The

essence of the cause of action remains defendant’s alleged

non-compliance with the terms of the decree.

As indicated by Judge Brieant in dismissing an earlier

action commenced by plaintiff in the U. 8S. District Court

for the Southern District of New York:

“Necessary proceedings, if any, to enforce the ‘Con-

sent Decree’ of the United States District Court for

the Eastern District of Pennsylvania * * * should be

taken in that Court.”

That determination was clearly consistent with the long-

standing rule that “(i)t is primarily for the court which

issued an injunction to determine its meaning and

whether the conduct complained of is a violation of it.

(Matter of New York & Westchester Town Site Co., 145

App Div 630)”. (Matter of Rothko, 84 Mise 2d 830, 863,

modified on other grounds 56 AD 2d 499, affirmed 43

NY 2d 305). The first cause of action is, therefore, not

properly before this Court.

The second cause of action fails because of its total

dependence upon the first and further, because there is no

separate cause of action for punitive damages (Kelly v

CBS, Inc., 59 AD 2d 686; Thalzr v North River Insurance

Company, 63 AD 2d 921).

There is no basis in law or in fact for plaintiff’s claim

that she has been deprived of a hearing to which she was

allegedly entitled. The third cause of action is, therefore,

legally insufficient.

Dated /s/ Hon. Henderson W. Morrison

J.S.C,

2la

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

83 Civ. 3114 (KTD)

ADELINA F. CICIRELLO,

f Plaintiff,

-against-

NEW YORK TELEPHONE COMPANY,

Defendant.

MEMORANDUM & ORDER

APPEARANCES:

JACOB RABINOWITZ, Esq.

Attorneys for Plaintiff

535 Fifth Avenue

New York, New York 10017

Of Counsel: Sol Mermelstein, Esa.

MICHAEL HERTZBERG, ESQ.

Attorney for Defendant

1095 Avenue of the Americas

New York, New York 10036 ~~

KEVIN THOMAS DUFFY, D.J.:

Plaintiff, Adelina F. Cicirello, brought this action under

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

§ 2000e et seg. (“Title VII”), alleging that defendant,

New York Telephone Company (“Telco”), retaliated

against her because she had filed sex discrimination

charges with the Equal Employment Opportunity Com-

mission (“EEOC”) and had commenced two prior ac-

tions against Telco. Telco moves for summary judgment

pursuant to Rule 55 of the Federal Rules of Civil Pro-

22a

cedure. Cicirello opposes Telco’s motion and further asks

for an order requiring Telco to comply with her discovery

requests. For the reasons set forth below, Telco’s motion

for summary judgment is granted.

FACTS

A. Prior EEOC Proceedings and Actions

Cicirello, who had been an employee with Telco for

over thirty years, brought her first action against Telco

in this eourt in March 1981. In that action, Cicirello

alleged that Telco had (1) violated an expired 1974 Con-

sent Decree of the United States District Court for the

Eastern District of Pennsylvania, and (2) discriminated

against her because of her sex. Judge Brieant dismissed

the action because (1) an attempt to enforce the Consent

Decree could be brought only in the Eastern District of

Pennsylvania, and (2) Cicirello had never filed a sex

discrimination charge with the EEOC and therefore

failed to meet the court’s jurisdictional requirements.

Cicirello v. New York Telephone Co., Telco’s Memoran-

dum of Law In Support Of Defendant’s Motion for

Summary Judgment, Exh. A (Endorsement, 81 Civ. 1403,

June 19, 1981).

Cicirello then filed a charge with the EEOC on Febru-

ary 5, 1982, alleging that Telco had discriminated against

her because of her sex. After receiving from the EEOC

a Notice of Right to Sue, Cicirello failed to commence a

discrimination action within ninety days and thus for-

feited her right to bring an action for discriminatory

conduct allegedly occurring prior to February 5, 1982.

Finally, in June 1982, Cicirello commenced an action

in New York Supreme Court, Nassau County, claiming

that Telco had fraudulently violated the expired 1974

Eastern District of Pennsylvania Consent Decree. The

court dismissed the action for the same reason Judge

Brieant dismissed the first action,

23a

B. This Action

- On October 1, 1982, after being informed by Telco that

she was going to be demoted and transferred to the

company’s Hempstead office on October 3, 1982, Cicirello

became ill and left work. She then exhausted the fifty-

two weeks of company disability benefits to which she

was entitled and was immediately retired on a service

pension effective October 10, 1983.

On October 11, 1982, while receiving disability benefits

and prior to her retirement, Cicirello filed a second charge

with the EEOC, this time alleging that Telco had un-

lawfully retaliated against her for her filing of the Febru-

ary 5, 1982 sex discrimination charge. On January 25,

1983, the EEOC issued a determination stating that

“Te]xamination of the evidence in the record indicates

that there is not reasonable cause to believe that this

allegation is true.” Telco’s Answer, Exh. D. On this

date, the EEOC also issued a Notice of Right to Sue

with regard to the matters raised in the retaliation

charge. Based on this Notice of Right to Sue, in April,

1983 Cicirello commenced the instant action.

Cicirello alleges that in retaliation for filing EEOC

charges and commencing actions Telco, inter alia, con-

tinually intimidated and harassed her, unjustily demoted

and transferred her, and gave her harsh and unfair

evaluations. Cicirello seeks (1) a declaratory judgment

that the complained of acts, policies, practices and pro-

cedures of Telco are discriminatory and unlawful em-

ployment practices in violation of Title VII; (2) equita-

ble and injunctive relief to correct the conditions com-

plained of; (3) all back wages, lost fringe benefits, and

monetary damages resulting from Telco’s practices; and

(4) all of the costs of this action.

DISCUSSION

A summary judgment motion will not be granted if

there exists a genuine issue as to any material fact.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

24a

Furthermore, it is the movant’s burden to establish that

no disputed material fact exists and that it is entitled

to judgment as a matter of law. Jd. For the following

reasons, I find that Telco has met its burden of proof

and as a matter of law is entitled to summary judgment.

For the purposes of Telco’s motion for summary judg-

ment, the most significant issue is whether Cicirello was

in fact demoted from Management Assistant to Service

Assistant on October 1, 1982. It is undisputed that on

October 1, 1982, Cicirello was informed by Telco that

she was to be demoted to the position of Service Assistant

and transferred to the company’s Hempstead office on

October 3, 1982. Affidavit of Charles Swetz § 5. Cicirello

argues that she was demoted when she was notified of

the personnel action. Telco, however, asserts that the

demotion never became effective because Cicirello’s ab-

sence due to her disability began on October 1, 1982

and she retired immediately thereafter. Furthermore,

Telco has provided overwhelming proof tending to show

that Cicirello was not demoted on October 1, 1982.

First, Cicirello admits that Telco did not officially

change her job title as of October 1, 1982. Supplementary

Affidavit of Adelina F. Cicirello, at 2. Company records

also uniformly reflect that after October 1, 1982, Cicirello

retained her Management Assistant title. Second, Cici-

1 Cicirello’s Employee Service Record shows that as of the date

of the last entry, posted on October 22, 1983, her job title remained

Management Assistant. Supplementary Affidavit of Michael Hertz-

berg, Exh. A. This Service Record, which reflects all payroll changes

affecting Cicirello from 1974 through the date of her retirement

in 1983, contains no entry in 1982 regarding any demotion of

- Cicirello or reduction in her pay rate despite the fact that her

prior demotion and salary reduction in 1978 is reflected in the

document. In addition, a Bell System Employee Injury and Illness

Report which was filled out over two months after Cicirello’s

alleged demotion still shows her job title as Management Assist-

ant. Supplementary Affidavit of Michael Hertzberg, Exh. B.

The computerized calculation of her pension, dated October i7,

1983, shows that Cicirello’s pension payments were based on her

25a

rello admits that her salary was never reduced as of

October 1, 1982, or any subsequent date. Jd. Third,

Cicirello does not deny that her disability benefits and

pension payments were based on her salary as a Man-

agement Assistant.

Consequently, it is clear that the effective date of

Cicirello’s demotion was to be October 3, 1982 but that

she left before then. Thus, Cicirello’s claim that Telco

retaliated against her by demoting and transferring her

is wholly without support and Telco’s motion for sum-

mary judgment dismissing this claim is granted.

Cicirello alleges also that Telco retaliated against her

by intimidating and harassing her, giving her a “G-

minus” evaluation, and threatening her with dismissal.

The issue arises whether Cicirello’s retirement has ren-

dered these claims moot.

The Supreme Court has frequently stated that “fed-

eral courts are without power to decide questions that

cannot affect the rights of litigants in the case before

them.” North Carolina v. Rice, 404 U.S. 244, 246 (1971) ;

see also Oil Workers Union v. Missouri, 361 U.S. 363,

367 (1960). It is evident that “[t]he rule in federal

cases is that an actual controversy must be extant at all

stages of review, not merely at the time the complaint

is filed.” Steffel v. Thompson, 415 U.S. 452, 459n.10

(1974). _

It is not disputed that Cicirello was paid all of her

fifty-two weeks of eligibility for disability benefits. Nor

salary as a Management Assistant. Supplementary Affidavit of

Michael Hertzberg, Exh. C. Indeed, Cicirello’s annual pay at re-

tirement is shown as $26,400, which is higher than her $25,550

salary as of October 1, 1982. This is because, in accordance with

Telco’s pension plan, salary increases which are withheld during

periods of disability are credited to employees for purposes of

pension calculations. Supplementary Affidavit of Michael Hertzberg,

| 5(d).

|

26a

is it disputed that she has remained totally disabled for

work since that time.? Consequently, at the least, Cicirello

can no longer be considered an active employee of Telco.®

In addition, based on the papers submitted, there can be

no reasonable expectation that Cicirello will resume em-

ployment with Telco and that Telco will have an occasion

to take any action, retaliatory or otherwise, against

Cicirello.

With respect to Cicirello’s prayer for declaratory re-

lief in particular, given the severance of Cicirello and

Telco’s employment relationship, it would be inappropri-

ate for this court te issue a declaratory judgment or any

other form of injunctive or equitable relief. “For a

declaratory judgment to issue, there must be a dispute

which ‘calls, not for an advisory opinion upon a hypo-

thetical basis, but for an adjudication of present right

upon established facts.’” Ashcroft v. Mattis, 431 U.S.

171, 172 (1977) (per curiam), quoting Aetna Life Ins.

Co. v. Haworth, 300 U.S. 227, 242 (1987). As Cicirello

2 Telco characterizes Cicirello as being “retired.” Cicirello, al-

ternatively, argues that her “retirement was effected” by Telco

unilaterally and that this should not have been done. Whether

Cicirello’s contention is true or not is irrelevant because it is un-

disputed that she is presently unable to work and she has given no

indication that she will be able to work in the near future.

8 At the most, Telco was entirely justified in retiring Cicirello.

It is Telco’s routine and uniform policy to retire a disabled em-

ployee on a service pension if the employee qualifies for such

treatment. Telco’s Employee Benefits Administrative Guide spe-

cifically provides: “Employees with fifteen or more years of service

who exhaust benefits will, if disability continues, be treated as

pension cases, and handled in accordance with Part IV of this Guide

[Retirement and Pensions].” Supplementary Affidavit of Michael

Hertzberg, 6. Although Cicirello complains that Telco should

not have unilaterally effected her retirement, she proposes no viable

alternative. After her one year sickness absence, Cicirello remained

totally disabled and could no longer receive disability benefits. As

a result, Telco’s only choice was to retire Cicirello and provide her

with a pension.

27a

~

is no longer an employee of Telco, her request for a

declaratory judgment is, in actuality, a request for an

advisory opinion, and must therefore be denied. Further-

more, injunctive relief in this case would also be meaning-

less given that there is no longer a continuing employ-

ment relationship between the parties.

Finally, Cicirello’s claim for compensatory damages re-

sulting from “humiliation, embarrassment and mental

stress,” Complaint 16, must also be dismissed. It is a

widely held rule that “[d]amages for individual losses

are not recoverable under a Title VII claim.” * Davidson

v. Yeshiva University, 555 F. Supp. 75, 80 (S.D.N.Y.

1982) ; see, e.g., Great American Federal Savings & Loan

Association v. Novotny, 442 U.S. 366, 374-75 (1979);

Johnson v. Georgia Highway Express, 417 F.2d 1122,

1125 (5th Cir. 1969) ; Smith v. Hampton Training School

for Nurses, 360 F.2d 577, 581 (4th Cir. 1966) (en banc).

Accordingly, Telco’s motion for summary judgment is

granted and Cicirello’s request for an order requiring

Telco to comply with her discovery requests is denied as

moot. -

SO ORDERED.

DATED: New York, New York

October 10, 1984

KEVIN THOMAS DurFFy, U.S.D.J.

4 Cicirello claims to have lost backpay. If this were true, it would

be recoverable under Title VII. See Great American Federal

Savings & Loan Association v. Novotny, 442 U.S. at 374 (“[Title

VII} provides for injunctive relief, specifically including backpay

relief.”). However, Cicirello does not claim that her salary or her

benefits were ever reduced by Telco and thus any claim for back-

pay is patently unjustified.

28a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

81 Civ. 1493 (CLB)

ADELINA F. CICIRELLO,

Plaintiff,

-against-

NEW YORK TELEPHONE COMPANY,

Defendant.

AFFIDAVIT IN OPPOSITION

STATE OF NEW YORK, )

) ss.:

COUNTY OF NEW YORK _)

ADELINA F. CICIRELLO, being duly sworn, deposes

and says:

I am the plaintiff in the within action and submit this

affidavit in opposition to defendant’s motion to dismiss

my complaint previously served upon them. I refer the

Court to the Memorandum of Law submitted herewith

and prepared by my attorney for the legal basis of my

argument. This affidavit will concern itself with the

. facts incident to the matter and my cause of action.

WORK HISTORY AND FACTUAL BASIS TO CLAIM.

I have been a faithful employee of the defendant for

thirty years. By reason of my performance during the

early and mid-portions of my employment, I was raised

to managerial level in and around May, 1969.

29a

During the mid to late seventies, I failed to receive

proper and usual salary raises and merit increases by

reason of what I now claim in my complaint to be a

course of conduct by the defendant to evade the effect of

a consent decree entered into between defendant and its

affiliated companies in or around 1974. A copy of the

Consent Decree entered into in the District Court of

Pennsylvania is annexed to a copy of the complaint, both

documents annexed to the primary moving papers sub-

mitted by defendant.

I refer the Court to an examination of the general

allegations of discrimination outlined in my complaint.

At this posture, I will briefly discuss the specifics con-

cerning my claim.

As in many bureaucratic large corporate structures,

salary increases granted by the defendant are deter-

mined by a rating system and various levels. During

1975, I was unusually placed at a “G minus” salary

rating instead of the G salary level that I had been op-

erating at for most of my employment career with the

phone company. Coincidentally, I had not received a cost

of living salary increase for two years prior thereto.

It is coincidental because the time frame coincides with

the discrimination action which gave rise to the afore-

mentioned Consent Decree.

In November of 1975, and in the course of my man-

agerial duties, I issued a caution to an operator, said

caution mandated by the operator’s actions. Said op-

erator complained to my supervisor who requested that

I remove the caution. I was threatened with retaliatory

action if I did not remove it from the employee’s record.

Shortly thereafter, I was given a “G minus” rating which

I firmly believe was attributable solely to the above

named incident. It is interesting to note that this rat-

ing was based on a mere three month period although

I had been in this managerial pesition for ten months.

30a

I disputed the rating, but my supervisor refused to dis-

cuss the issue or change it. I was told that there would

be a new rating and evaluation within six months. Need-

less to say, in December, 1976, after about eight months,

I sought a new evaluation, but was deliberately delayed;

all by reason of their alleged plan to keep my salary

at the lowest level possible. .

Finally, after fourteen months, my supervisor gave me

a “U” rating. From its very sound, it was of course a

harsh commentary on my work. After extensive talks,

the appraisal was changed to a “G minus”, but I was

not given any salary increase for merit or cost of living.

In May, 1978, I again received an unsatisfactory rat-

ing and attempted to discover the reasons thereof by

speaking to the Division Manager. I was “stonewalled”.

As was the case with my previous ratings, I had no

opportunity or procedure to seek review of these ratings.

I could not turn to a impartial third party for neutral-

ity. The only parties giving the ratings were the super-

visors who actually participated in the review process.

Finally, in December of 1978 after being demoted, I

was loaned by the defendant to the National Alliance of

Business, an outside company who utilizes some of the

phone company’s employees.

As implied by the bringing of my action, I am not one

to sit by in the face of such harsh treatment. I firmly

believed that something was up and by this time con-

sulted with my attorney to investigate this matter. It

was at this time, early 1979, that I first learned of the

Consent Decree, and only after the writing of numerous

letters by your deponent and my attorney. I felt that

something was amiss because for six years prior to the

time that I started receiving the unsatisfactory ratings,

I had received a “G” rating which is deemed satisfactory.

I reiterate that it is highly coincidental that the unsatis-

3la

factory ratings started in and around the time of the

entry of the Consent Decree. By giving the unsatisfac-

tory ratings, the defendant managed to keep me at a low

management level preventing me from obtaining the ben-

efits outlined for me and others similarly situated in the

Consent Decree.

The gravaman [sic] of my complaint revolves around the

defendant’s action in doing those things necessary to

prevent me from obtaining my proper salary in line with

their promises outlined in the Decree. I therefore was

not given equal pay and equal treatment. I believe I was

the subject of unusually harsh rating systems, and upon

questioning same, I was denied the right to a fair hearing

and review with respect to my ratings.

I had no full knowledge of the Consent Decree and

provisions contained therein until in and around the Sum-

mer of 1979. I was directly affected and covered by the

Decree and by the terms of the Decree itself, Subdi-

vision 2, the American Telephone and Telegraph Com-

pany and its affiliates were to fully advise all covered

persons of the terms of the Decree. This was never done

in my case.

FUTILITY OF ADMINISTRATIVE PROCEDURES.

I and my attorney both knew of the existence of the

Equal Opportunity Employment Commission (EEOC) and

that there are certain administrative procedures which

must be followed prior to the institution of an actual

lawsuit. I and my attorney, in and around the time of

the learning of the existence of the Consent Decree in

1979, started writing letters and making requests of the

EEOC and other agencies. I annex hereto and mark as

Exhibit A a series of letters by myself, my attorney, and

responses thereto which clearly indicate how I have been

frustrated in attempting an administrative grievance

procedure.

32a

An examination of the letters will show that both the

letters and my complaint were shuffled around from

agency to agency. The United States Department of

Labor referred me to the EEOC. I was further referred

to the Solicitor of Labor who then later, again, referred

me to the EEOC. The last two letters, dated 1981, again

referred me to the EEOC for the filing of a claim. This

is most interesting and unusual because, as will herein-

after be set forth and as explained in the accompanying

affidavit by Daniel D. Abramtsov, Esq., I made a specific

attempt at filing a claim with the EEOC, all to no avail.

In the early part of 1980, realizing that I had to file

a charge with the EEOC, I visited the offices of that

agency located at 90 Church Street, New York, New

York. I met with a person in charge of taking informa-

tion for claims. She requested further information sub-

sequently supplied to her by my attorney. After a period

of time had passed, my attorney contacted her and she

called him back. EEOC could do nothing for her.

Failing to believe the truth of this, I personally re-

quested a meeting with Mr. Mercado, the District Di-

rector of said agency. I fully explained to him the facts

and my claims of discrimination. After a lengthy con-

ference dated 6/80/80 [sic], he explained that his agency

could do nothing for me and even referred me to the Na-

tional Labor Relations Board. He failed to give me a

“right to sue” letter or any other document, but merely

explained that his agency could not help me.

It is clearly shown that I have made every attempt

possible to exhaust administrative procedures in an ef-

fort to resolve my claim of discrimination. I have been

met with frustration, and by reason of the futility in

further seeking such administrative help, such frustra-

tion and futility having extended over a period of one

and one-half years, it was necessary to bring the within

action.

sii

33a

THE COMPLAINT AND THE INSTANT MOTION.

The attorneys for defendant did not attack the sub-

stance of my allegations, but wish to dismiss my com-

plaint on procedural grounds. It is true that I did not

receive a “right to sue” letter, but as demonstrated in

the accompanying Memorandum of Law, such is not

always necessary. Furthermore, by reason of the fact

that I was clearly a party intended to benefit from the

Consent Decree, I must be deemed a third party bene-

ficiary of the contract and my contract claim and my

claim of fraud for failing to fully advise me of the Con-

sent Decree, cannot and must not be dismissed.

As for the Statutory Title 7 claim of discrimination,

it is respectfully requested that the Court acknowledge

my frustration involved in the fact that Mr. Mercado and

the EEOC did not give me a “right to sue” letter even

after attempting to file a claim. However, in the alterna-

tive, if this Court decides that the said procedural failure

of having received such a letter from the agency, based

on all the facts as set forth herein, is sufficient grounds

to dismiss my Title 7 claim, it is requested that the Court

grant me leave to amend my complaint to allege viola-

tions of my rights reserved to other pertinent Civil Rights

sections, such as Section 1981, Section 1982 and the like.

I am advised by my attorney and I verily believe it to be

true that leave to amend is freely given and the defend-

ant can suffer no prejudice because their motion seeks

to dismiss my complaint on mere technicalities, and not

~on the substance and merits.

I state with no reservation that it is my firm belief

that I have been discriminated against by the defend-

ant. Substance should win out over form. The defend-

ant’s motion should be denied or I be given leave to re-

plead within this Court, the district wherein the defend-

ant maintains its principal place of business and in this

State wherein both parties reside.

34a

WHEREFORE, for all of the foregoing reasons, it is

respectfully requested that the Court deny defendant’s

motion in all respects.

/s/ Adelina F. Cicirello

ADELINA F. CICIRELLO

Sworn to before me this 9th day of June, 1981.

/s/ Daniel D. Abramtsov

Notary Public

y ) eee