Reply Brief — Long v. Illinois Central Railroad

_ LIBRARY,

COURT.U. SB.

Ne C6 | ‘

ae: IN THE

SUPREME COURT OF THE. UNITED STMT

- ‘ | OCTOBER TERM, 1961.

~ LAWRENCE J. LONG, ©. =

<a | Petitioner, oe ;

ILLINOIS CENTRAL RAILROAD COMPANY,

a Corporation,

Respondent. oS ag

REPLY BRIEF

In Support of. Petition for Writ of Certiorari.

—

eee

_ JOHN ALAN APPLEMAN,

» The Maples, -

e Urbana, Illinois,

iy t. DWIGHT H. DOSS, ..

a tue a Monticello, Illinois,

. JO B. GARDNER,

Monett, Missouri, .

Attorneys for. Petitioner. ~~

JOHN ALAN APPLEMAN,

Of Counsel.

°»!

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- TABLE OF AUTHORITIES. .

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Allon v. Meyer, 14 IIL 2d 2S4, Int XN. Ea GE ?

- Brandgi» Machinery ‘& Supply Co. ve ©. . | McNeely

General Contracting & Equipment nie i Ine :

18 TL. App. 2d 396 at 309, loz N.- KE. 2d SEW). 2

Brothe rhood’ of Railroud Trainmen vy. Howard, 345

US. TOR ee eee ete eee eee eees see ceceecceceneeee 7

| Payne case, 13 IL App. 2d 100. . 6.0 e eee ee ts

Union Pacific Railroad Company v. Pricé, 360 US

Cd pacstheereseerus evecenuen Gesenee geeutdeecpene ss

W. T. Iverson & Co., Inc., % Dunham Manufarturing

Company, 18 I} l. App. 2d 404. at 425, 152 N.-E. 2d

615 Davee secceseoetn eet aecaéaposeneeosdsaes -eeeeoee

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IN THE .

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1961.

LAWRENCE J. LONG:

W i . Petitioner,

v.

P* ILLINOIS CENTRAL RAILROAD COMPANY,

, ° @ Corporation, .

° Pt Respondent. a ho

J me ha

» ens of Petition for Writ of Certiorari.

l ‘apologize for the delay in’ the filing of this Reply ;

Brief. Apparently, the Brief of the Railroad Company

wae delivered during my absence in, delivering some lee-

tures to the College of Law at the University of West

Virginia, so that it was April 20 when I first sagg it~ Brief

Ordinarily, no fteply wold be Hecessary. ~ However, iti

thix case the Brief ofthe Railroad Company unfortunately:

céntains some errors which could bye tiisteadjne to this

4

Court if not corrected.

Upon page 4. reference is made to an affidavit ‘of one

John, F. Jack~on, with refergenee being made to aan Ave li-

;

«ff

-tional Abstract. We were not aware of the filing of any

. P

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“ue ‘h Addition Abstract an this Court, and. none has oon |

served Upon, Us. "However we have searched the record

and find: that an ‘affidavit ofthis’ individual was attached

to ani early motion by, the Railroad Company inthe Cir- :

enit Court of Champaign County, That motion was argued

armel deniea. Thereafter, the Railroad Company filed “an

i Xuswer which appears in the “Abstract, pages 110-122, and

the Jackson affidavit was not refiled. Certain portions of

* this Answer, the plaintiff moved fo strike ( Abst. 123, 124).

and dur Notice of Appeal “preserved the error of the trial

court in failing to’ strike the objectionable conelus lows Con:

tained in such Answer,

The defendant railroad took no CLOSS- appeal from the

order of She trial court denying its motion to disiniss the

action, which was supported -by the Jackson affidavit.

Under Illinois law, the-filing of an, answer after a motion

has heer denied waives any, matters contained: iv the mo-

tiow. Thus it was stated in W. T. Iverson & (o., Ine. ve

pia 2 Mauufacturing Company, 18 Til. App. 2d 404 at

y, TaDIN. EB. 2d 615: Mae ‘

* * * the original pleading ceases to he a part of

- the record. being in effect abandoned or Withdrawn,

with ‘the result that the. subsequent proceedings in

the case are to be regarded as based upon the amended

plead ding,which will:not be aided by anything in the’

prior pleadings. ion Aisi iting cases.)

es the same effeet ir Brandeis Machinery & Supply Co.

AL MeNeely General Cemtracting & Equipment Com

pany, Tafe., Is TH. App. 24 396 at 399, 152 X..E. 2d. 890,

_ pointing out that euch matters are ttwaived hy pleading

overs ; ; (a : te Ps

The Railroad ( ‘ompany. citing Allen v. Meyer, 14 TIL

284 42 N..E. 2d 576. argues that where heth parties move

for aw summary pudcanenit. sneha judgment should: be en-

Gu.

oe .

* : , - —

‘tered in favor of one or the other... That case is careful

to point out. (14 TH. 2d 24 at 292) that this result follows

only: “Wherein is presented no genuine isstle as 10 any.

naterial fact * ris ; ‘

It ix Our feeling that a sammary judgment, upon “this

record, probably could be entered tor the plaintiff? for the

following. reasons: Lawrence Long ‘had paissed satixtac-

torily every Holmgren W orsteds test: given to him until

Tod: in. 1954 Dr. Marvel, of Clinton, disqualitied him not

on the hasis of that type of test, but on the basis of an

[<hihara test and sent him-to Chicago: if the Tshihara test

Was not a proper test and the defendant Railroad Com-

pany had no right to changy its method of testing except

hy compliance with the requirements of the Ri rilway Labor

Act, then the defendant hi ul no right to disqualify Law-

rence Long on the: basis‘of sich test nor to require hin

to take further ex Naminzitions’ nor to require a field) fost:

in all events, the defertdant railroad: wouldShave no right

to impose a condition of an arbitrary field test whic ‘h was

whoily under its supervis sion and control, and whic lr it

— waived as to employees less qualified than the plautitt-

here, “Also, from a .purely legal, point sot view, it is not

necessary for an employee who has been wrongfully ilis- °

vee harged first to exhaust the remedies ot the Railroad Ad-

justment Boar indeed @uch wonld be an election of

remedies which woul | prevent him. fromeseeking a. judic ial

remedy. e

° *.

If this Court fgrees With our position as to the above

matters, then a:summary judgiment in fiver of the plaim-

tiff could be rendered. The one place in, whie h a’ factual

que ‘tion may lave. to he determined by a jury is this:

Assuming that it ‘hecomes material as fo whether Law-

Tence Long failed it Holmure ne Worstedls tast adininivtered

she erin then we-eontend, and have contended, that:

euch insxoKe~ a question of fact. tor the jury. *The Rail-

road Company cannot take away: from the jury the right

to determine the credibility of any witness, DY substituring

an affidavit attached to a motion for the testimony of that

person in open court. Tn this instance, as we have pointed

out earlier, Dr. Murray was an employee of the defendant

railroad; he was subject to. its supervision and had a

definite incentive to give a report favorable, to its posi-

tion; it was undisputed that a defect in color perteption

is congenital in nature which neither. becomes better nor

worse as one proceeds through life; Dr, Afurray admitted

that Lawrence Long had passed sugeeetully over a-period

of his thirty years of employme witonine-of such tests and

that ench of them showed: him te be & auatitied to carry on

his work either as an engineer or aa a fireman.

ir a defendant eduld,; by * the dimple procedure of filings

* . f

a motion for sunuuary judgment, and attaching the ‘affi- *

dayit of Witllesses W hose testimony will not stand + search.

ing CYOSS-CNi wnination or the scrutiny at a jury, deprive

an employee of the opportunity of having a jury determine

‘the aceuracy of the testimony ot such witness, ther the.

judictel remedy has become a mockery. Our counter-

affidavits .show the weaknesses in the testimony of this

witness, and indeed his entire deposition is attac shed to

the origina) motion of the Railroad Conipany. Such depo-

sition contains within it the substance for. Impeae ‘Hinent:

and discrediting ot the Murray ‘affidavit.

Upon pase rT of defendant's Briet . it states:

‘The only real nanterial isste in this ense is ciel

or did not the plaintitl have det ‘eoctive color percep

tion” and, yep dinne, if tne ans aolefect suffiete mthy

substantial te render him ineapable of performing

bis’ lirtites.

Thix dias never been adjudicated by any legal or proper

test. Tt is analegenms. ina criminal ease, to saving:

“The only question in this case is whether or not

the defendant held up and rebbtd a national bank.” |

It the conviction had heen obtained by the use or ine.

proper and illegal evidence, this Court wotld reverse a

Conviction With instructions to disregard. the improper

evidence and for the issue to be determined: in accoredane’

with, legal procedares, The plaintiff in this care, as a ratl-

road employee having over thirty wears of service, is en

titled to am equal protection of his property rights. Again,

the determination of Love's ability to perform his vduties

mitist be ade upon a fair and won-arbitrary basis; it must

bie aeeord ing to legal test= vehich have been yecounized fae:

tween the enmiplover mane it eniployers over ‘the decades ot

his wiplovment. and wpen which test~ he was accepted? for

eervice and satisfactorily performed his duties, without. at

single error or omission. It cannet bie yet the basis of

tests suddenly changed by the unilateral action of the

employer, so as to require the imposition dt aucarbitrary

field test which it) waived as to employees having peer

work records, but which it had retnsed te waive in the

instance of the plaintiff for the sole reason thateit wanted

to eliminate him as am employee, heeanse of. an adverse

report which he made while aiding thie Interstate Con-

merce Commission. It will be noted that in no place in

this Brief does the Railroad Company deny the truth of

this charge. J

: .

The principal contention of the defendant iS that, m-

der [lineis. law, the plaintit? i- barred frevs pursning his

remedy in coirt nntil he has e<hansted his administrative

pemedies ynder the contract. mnt, at thi- point, the Rail-

ronel Cooney any falls into cart rileter (ent frysjeun,

To achat administrative remedies does the: Railroad |

Company refer? Tt- Visenssion it completely ambiguons,

The work contract does net roake reference to, anv Te-

; ;

eee Wales

quirement. of proceeding. before ~ Railroad Ndjustment

Board, In the Payne ease, in IL App. 2d 105, the

express contract of the parties previded for ai deter-

mination of disputes” as follows: (1) appeal to the

district representative; (2) appeal to the assistant to the

‘Vice-president; (3) appeal to the National Railroad Ad-

Justment, Board. In the Koppal case the contract likewise

provided a proceedure for appeal from a determination

“by a hearing officer, Our contract does not have any such

requirement and does not spell out any remM@liex within

the organization to be exhanste ‘dl although. the depositions

show ‘clearly that Lawrence Long did appeal first to his

district superintendent, then to the personnel snpervisor,

‘the vice-president, and the president —all without avail.

_ And, under the decisions of this“ ‘ourt, as apap out in

.

Union Pacifie Railroad ompany v. Price, 360 U.S. GOL,

Lawrence Loire had. sulunitted hiv controve ‘rsy to vr I: =

road Adjustment Board. such would have heen a binding

election of rentedies. which would have prevented him

from submitting his controversy to a court, aul. jury .

Clearty, then, the defendavit Railroad Company is in

error in believing—as did the Appellate Court of Llinois

that the employee had ‘x duty to seek ca remedy first

‘ “from the Railroad Ailiustment Board. The ouly other ad-

ministrative remedy to which it could gueaee.: have ref-

erence would’ be the taking of-a ‘field test’. “We say that

we fn Long is not required 1 take a tie ld test in thix.

casé because: (1) he was not disqualitied by proper medi-

Cal tests, when the defe dant railroad changed from the

Holmgren Worsteds test to the Ishihara test, Withs. it com-

plying with. the. statutory provisions; (2) the Aest asset

forth’ by the Railroad « ompany ix not a fair one, when a

one hundred per cent) performance js required, the .em-

ployee is not permitted to have a disinterested expert:

present, and it isewholly and exelusive ‘ly within the control

oft the Raiftoad Compauy: (2) this is particnlarly trie

When the field test was waived in the instance of all other

employees, even those with. imperteet: records. and wheh

the Railroad. Company does not deny that its Objective

wis te, effectuate a malicious dixcharie Of the plaintitf

As this Court Sve out in Brotherhood of Railroad.

Trainmen v. Howard, : "LS. 768, the courts have a right

to grant a judicial stoi fo protect any worker or group

of workers fron discrimination practiced against then.

We submit. that, even though the Howard ease involved

the protection of colored workmen against tiserimination

iy faver of white workmen, a capable and honorable ens:

ployee such as Long is entitled to be free trom diserimi-

natiog par acticed against him hy the railroud. The em

plovees in the. Howard case were not discharged, but were

in effect replaced hy others so that they were unabh le te

work, and this was held to te eaqniive lent te gt ise barge.

The defendant: Railroad, Monsey his ated that in

effect Hogg Tas not heen dise harge dy amd that the pols tintitt,

himself has: not. regarded himself! as. having. been dis

charged. We think this is ‘inace urate, Lawre nee Long

ofered repeatedly to do wuything whie th Was reasonable

even to surrendering his Tights as a locomotive engines

and to werk o dyoas a fireman. if the. Radroad Compan

insisted mer this. But, when the “Hit Was filed. the plain

Aifffset forth ener story in his Amended Complaint

(Abst. 1-7) alleging that beste" °° has been dey rived ot

his, income from the time of his wrongtul disqualitiention

to the present amd wikk be so pernianently deprived

shereot ,

- The relief which he asks in his Complaint. and te which

the defendant has filed an Answer, is based clearly upon

the theery of -vrongful discharge, It states: .

7 Wherefore, the plaintiff, Lawrenee J. Long, prays

vetual ane punitive damages against The defendant,

.

e

Illinois Central Railtoad Company, a ‘corporation, int

the sum of Two Hundred Fifty’ Thousand Dollars

($250,000) and ebsts, and demands trial by jury."’

(Abst 7)

‘

With reference to the only other point, the Railroad

. Company insists that it had the right te change the tests

at any time, without giving the notice required by the

Railway Labor Act. The Railroad Company is not in a

position toinsist on the one ham that the various Rules

contained contractual provisiot binding upon the plaintiff

-which he was required to fulfil and vet contend on

the other hand that they were not “‘confractual’’ provi-

sions at all. We believe it was the contemplation of the

Railway Labor Act that the terms and conditions of the.

employment gould not be changed without giving notice .

—_ and having a hearing in, Which both, management ‘and

labor would be represe onto.

The defendant cites certain .dpcisions of the Railroad:

Adjustment ‘Board. We do not feel any of ‘those are-rele-

vant. There is ne question but. that any employer has a

right to establish certain phy sical standards for the proper

performance of duties by employees. But where it has.

established the stamlards, and continued them tor dee ‘ades,

it may not suddenly change those standards to disqualify

employees properly pe trforming thei cates,owithout a

reasonable compliance with the law and without making

an-equitgble and uniform application of those standards.

The por at seareely ‘ean contend: solemnly -that it his

only the intefests of the-traveling publies in mind, or a

regard for public satety, when its officers have admitted

(Abst. 60-66) that. they know that Lawrence Long can

perform the duties of his employment, that he has done -

so with absolute safety for over three deeades, that he .

_, has never migned a signal, that he had a perfeet record,

that the acuity of his vision had prevented a possible bad

"

accident just the vear before he was discharged, ‘and thiyt

the real reason for wanting to discharge Winn was that:

“during the pe riod of tine thie plaintil was eri

ployed by the Interstate Commerce Corimission. cer

tain instances arose in Which the plaintiff. wae ve

quired to report the defendant railroad company tor

rebating and other matters whieh caased a certam

hostility to exist between the officials of the said Rail

road Company and the plaintiT as a result of which ———~

the defendant Railroad “Con ae.

}

plovees and officers, rite wilfulby ane trali

clously to lisequilit'y the: golaingtitY trem servies & %.7"

To permit the decision of Ke I lineis Court te. stand

would be, in effect, te nullity Ale Moore case. A railroad,

simply by failing to nse thie word Stdischarge™, could pre

vert ga railroad: employee from ever securing a fudieia!

remedy. The deecision-from. which an appeal ts taken ts-n

misconstruction of the federal law. “The result) ts onerous

und unfair. Lawrence Lone is entitles! te the protec tive of

his property rights; indeed, they are guarantesd te hine by

the Constitution of the United States. Tle ts entitled te be

treated with the siete fairness as, other emplovers, and te

stand npn the terms of the contract under whieh he was

employed. * If thi- Court agrees with us that th® Ratlresd

Company had ne right to change these tests Withenat con

plianee with law, then his ischarge was wrengtul: he eqn

not be reqitired to take the arbitrary field test, in ans’

events, which is not eequired of other emplovees. Awl he

is entitled to have ‘a Jury pass upon the sdestion of dam -

ages suffered by him. by reason of suche wrongtut di-

charge—and, if a question of credibility i< presented as te

any witness, ineluding Dr. Murray, this al-e should be de-

termined by a jury. 7 E ;

%

eas OE hath vas Se /

CONCLUSION:

W er respectfully pare that the defendant Railroad Com-

pany has not adequately answered. the Petition for Writ

of Certiorari, and we carnestly pray ‘that sue th Petition be

allowed.

Respectfully submitted,

JOHN ALAN APPLEMAN,

—

PMAGHT HH. Oss,

“JO B. GARDNER,

Attorneys for Pe tiftoner.

JOHN ALAN APPLEMAN, - Petes

The Maples, — | gr | Aes

Urbana, Illinois, | |

of Counsel,

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