Petition for Writ of Certiorari — Plott v. General Motors Corp.

Supreme Court, U.S.

¢ FILED

\

951466 mar 1 519%

OFFICE OF It GLERR

In The

Supreme Court of the Anited States

~

October Term, 1995

CHRIS R. PLOTT,

Petitioner,

VS.

GENERAL MOTORS CORPORATION, PACKARD

ELECTRIC DIVISION,

Respondent.

Petition for Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

MICHAEL D. ROSSI

Counsel of Record

GUARNIERI & SECREST

Attorneys for Petitioner

151 East Market Street

P.O. Box 4270

Warren, Ohio 44482

(330) 393-1584

8474

M Aagstae (800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21

ervices, inc.

i.

QUESTION PRESENTED FOR REVIEW

Whether, for purposes of the Title VII “immunity”

defense provided in 42 U.S.C.§2000e-12(b)(1), an

EEOC Conciliation Agreement employer makes a good

faith attempt to comply with that Agreement's affirmative

action percentage goals, for the advancement of its

minority and female employees, where its action is

designed to and does advance double that goal in

female employees.

ii.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .......

OPINIONS BELOW .......... ne ee

RSs eye | I oi td Le ae

STATUTORY PROVISIONS INVOLVED........

STATEMENT GF FG Geeee oor eee ess

ARGUMENT ... < «0s ac eee eee te

The U.S. Court of Appeals for the Sixth Circuit

Has Decided an Important Question of Federal

Law Which Has Not Been, But Should Be

Sottiod By Tris Cae i ae ees oe se wn

CONCLUSION ..... i056 ees

APPENDIX:

Opinion and Order, of the U.S. Court of Appeals

for the Sixth Circuit, Affirming the District Court's

Summary Judgment Dismissal of This Action

(Decemier 20, Tile .« veen ak eaecen san.

Memorandum and Order, of the U.S. District

Court for the Northern District of Ohio (E.D.),

Granting Respondent's Motion for Summary

Judgment and Dismissing the Action (August 11,

1906) . wk ees oe A18

iii.

TABLE OF AUTHORITIES

Cases

Steelworkers of America V. Weber,

443 U.S. 193, 208, 61 | Ed.2d 480, 492

eee ee 8,9, 11, 12

Statutes

28 U.S.C.§1254(1) ...--- eee a

42 U.S.C.§2000e-2(a) ..----- seer 3,7

42 U.S.C.§2000e-2(d) ...----- sere ae

42 U.S.C.§2000e-12(b) ...-- +--+: 45,7

Rules

Federal Civil Rule 56......-----++sstct? 5

Supreme Court Rule RN 02 2 ee ep ale © #8 2

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

CHRIS R. PLOTT,

Petitioner

VS.

GENERAL MOTORS CORPORATION,

PACKARD ELECTRIC DIVISION,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

Electronic Citation: 1995 FED App. 0368P

(6th Cir.)

File Name: 95a 0368 p.06

2

JURISDICTION

The Sixth Circuit Court of Appeals' Opinion and

Order was entered December 20, 1995.

The jurisdiction of this Court is invoked under

28 U.S.C.§1254(1); and the timeliness of Petitioner's

filing is governed by Supreme Court Rule 13.1.

3

STATUTORY PROVISIONS INVOLVED

42 U.S.C.§2000e-2(a) states:

“Employer practices

it shall be unlawful employment practice for

an employer --

(1) to fail or refuse to hire or to

discharge any individual, or otherwise

to discriminate against any individual

with respect to his compensation,

terms, conditions, or privileges of

employment, because of such

individual's race, color, religion, Sex, OF

national origin; or

(2) to limit, segregate, or classify

his employees or applicants for

employment in any way which would

deprive or tend to deprive any

individual of employment opportunities

or otherwise adversely affect his

status as an employee, because of

such individual's race, color, religion,

sex, or national origin.”

42 U.S.C.§2000e-2(d) states:

“Training programs

it shall be an unlawful employment practice

for any employer, labor organization, or joint

labor-management committee controlling

4

apprenticeship or other training or retraining,

including on-the-job training programs to

discriminate against any individual because

of his race, color, religion, sex, or national

Origin in admission to, or employment in,

any program established to provide

apprenticeship or other training."

But 42 U.S.C.§2000e-12(b)(1) provides:

"In any action or proceeding based on any

alleged unlawful employment practice, no

person shall be subject to any liability or

punishment for or on account of (1) the

commission by such person of an unlawful

employment practice if he pleads and

proves that the act or omission complained

of was in good faith, in conformity with, and

in reliance on any written interpretation or

opinion of the Commission, . . ."

5

STATEMENT OF THE CASE

This is a Title VIl reverse discrimination action

that was dismissed on summary judgment. That

dismissal was affirmed on appeal. Petitioner now

seeks plenary, certiorari review by this Court.

In 1983, after conducting an investigation of

Respondent, GENERAL MOTORS' ("GM")

employment practices, the Equal Employment

Opportunity Commission ("EEOC"), GM and an

employee union entered into a Conciliation

Agreement that provided a variety of remedial

employment goals. Among those goals was a

Stipulation that GM “make good faith efforts to

assure that minorities are at least 15.5% of those

chosen for apprenticeship openings, and women are

at least 12.0%." Further, GM would “provide pre-

apprentice training for minorities and women at

selected facilities where openings are anticipated in

the foreseeable future."

In 1984, EEOC provided GM with the following

“opinion,” qualified under section 713(b) of Title Vil,

42 U.S.C.§2000e-12(b):

"... itis the opinion of the Commission that

any action or omission of General Motors

Corporation . . ., or any of [its] officers,

agents or employees, that i: or shall be

taken in a good faith attempt to comply with

cea acai

6

the affirmative action or other provisions of

the Conciliation Agreement . . . will not

constitute a violation of any of the provisions

of Title Vil."

In 1987, the Petitioner, an unskilled white male

employee at GM's Packard Electric Division,

successfully tested for admission into the skilled

trades apprentice program. However, he was not

admitted to the program because the group of

~_ successful applicants did not contain the percentage

numbers of minorities and femaies stipulated in the

Agreement.’ As a result, GM revised the test and

retested all applicants. Petitioner again successfully

tested for admission but, again, the revised test

results did not produce the stipulated percentages of

minorities and females.

GM then decided to implement a "pre-apprentice

training" program designed to increase the numbers

of the minoriti2s and females for the apprenticeship

openings. All twenty-three (23) minorities and female

applicants were alone provided that training, on the

completion of which they were permitted to take a

pre-apprentice training exam and retake the revised

test, for the purpose of increasing their previous

scores.

1 I.e., six (6) minorities, and five

(5) females for the forty (40) available

apprenticeship openings.

7

When GM invited those twenty-three (23)

trainees, it expected twenty (20) of their number to

advance to the openings after pre-apprentice

training. In fact, seventeen (17) trainees so

advanced, six (6) minorities and eleven (11)

females, after their new scores were integrated into

the list of previous, white male applicant scores. GM

then admitted all seventeen (17) trainees to the

revised, top forty (40) openings. As a result,

Petitioner was displaced by some of the new scores

and no longer qualified for an apprenticeship.

Under 42 U.S.C.§2000e-2(a) and (d), Petitioner

brought and maintained this action to remedy GM's

unlawful, discriminatory employment practice in

substantiallyexceeding the Conciliation Agreement's

percentage goals for its female employees, through

the pre-apprentice training program, as so

implemented. Among GM's defenses, the Sixth

Circuit Court of Appeals found its 42 U.S.C.§2000e-

12(b)(1) “immunity” defense to be dispositive,

adding that GM's decision to advance all eleven (11)

female trainees “did of result in a_ significant

deviation from the Agreement's goals and is well

within the terms of the Agreement." (Emphasis

added)

8

ARGUMENT

The U.S. Court of Appeals for the Sixth

Circuit Has Decided an Important Question of

Federal Law Which Has Not Been, But Should Be

Settied By This Court.

This case presents the opportunity to better

define the “line of demarcation, between permissible

and impermissible affirmative action plans," drawn in

Steelworkers of America v. Weber, 443 U.S. 193,

208, 61 L.Ed.2d 480, 492 (1979).

The two Title Vil cases present a number of

similarities:

(1) In Weber, supra, management and labor

negotiated the voluntary affirmative action plan

percentage goal contained in the master collective

bargaining agreement. Here, the Conciliation

Agreement's percentage goals, to have been met

through the "“pre-apprentice training" program,

resulted from the negotiated efforts of management,

labor and the EEOC;

(2) Both agreements provided minimum

“percentage” goals for the advancement of protected

class(es) members. In Weber, ". . . at least 50% of

the new trainees were to be black until the

percentage of black skilled craftworkers in the

Gramercy plant approximated the percentage of

9

blacks in the local labor force." Here, Respondent

was to have made “good faith efforts to assure that

minorities are at least 15.5% of those chosen for

apprenticeship openings, and women are at least

12.0%;" and

(3) Neither Webers plan nor Respondent's

program required the discharge of white workers

and their replacement with new black [and female]

hirees; created an absolute bar to the advancement

of white [male] employees; or was anything other

than a temporary measure, not intended to maintain

racial [gender] balance, but simply to eliminate a

manifest racial imbalance [settle claims of racial and

gender discriminatory employment practices].

In one significant respect, however, the cases

part company. In Weber, the affirmative action

plan's implementation strictly tracked the bargaining

agreement's “at least 50%" goal, i.e., of the thirteen

(13) craft trainees selected, seven (7) were black

and six (6) white. Here, while the Conciliation

Agreement stipulates to “at least 12.0%" females to

be chosen for apprenticeship, Respondent actually

chose eleven (11) females, i.e., 27.5% of the forty

(40) available openings, through its "pre-apprentice

training” program.

The question is at hand: For Title VII's “good

faith attempt" immunity purposes, and with a

Conciliation Agreement's percentage goals qualified

10

by the adjective, “at least," is there no demarcation

line to be drawn between the permissible and

impermissible implementation of such an affirmative

action plan? Below, at p. 7 of its Opinion, the

intermediate appellate court suggested, but avoided

drawing that line:

“Alternatively, as Plott suggests, GM could

have admitted the minimum number of

women necessary to. satisfy the

Agreement's goals, by selecting only the top

five women. However, the Agreement

Clearly allowed GM to exceed the

percentage target; it required ‘at least

12.0%' women and stated that ‘[t]he goals

contained in this Agreement are not

intended to operate as a quota or ceiling

upon the employment of minorities or

women.’ It also noted that ‘[a]ttainment of

these goais is predicated on the assumption

that some facilities will meet the goals,

some facilities will exceed the goals, and

some facilities will not meet the goals.’

Trimming the number of females to five from

? Despite the stated "assumption," the

record is devoid of any evidence of "pre-

apprentice" training at any other of

Respondent's facilities. Indeed and

Supra, "... this was the first time the

program was offered, ..."

ll

the group of eleven who qualified after

participating in pre-apprentice training not

only was not required by the Agreement but

also would detract from achieving the

purpose of the pre-apprentice training

program and the Agreement itself. In short,

anything /ess than 12% would have violated

the Agreement's terms, but GM could admit

more than 12% women and still be in

compliance. GM decided to award

apprenticeships to each of the eleven

women whose participation in the training

program--a program specifically designed to

foster the skills an apprentice would need--

had earned her a place among the top forty

candidates. Such a decision did not result in

a significant deviation from the Agreement's

goals and is well within the terms of the

Agreement." (Emphasis added.)

Concluding, is there any such line to be drawn

where the percentage goal qualifier, “at least,” is,

literally, no qualifier at all? Does “at least" mean no

“significant deviation from" a particular percentage

goal, as the Court of Appeals would imply; and, if

so, where is that "significant deviation" line to be

drawn? Or, not unlike Webe?s implementation,

supra, does “at least" really mean meeting or, in

case of a fraction, rounding to the next protected

class(es) member, in exceeding the percentage

goal?

12

CONCLUSION

Due to the importance of the question

presented, supra, and its ready invitation to develop

the ratio decidendi of Weber, supra, in America's

workplace, the Petition should be GRANTED for

merits review.

Respectfully submitted,

MICHAEL D. ROSSI (#0005591)

Counsel of Record

GUARNIERI & SECREST

151 East Market Street

P.O. Box 4270

Warren, Ohio 44482

(330) 393-1584

Attorney for Petitioner

Al

APPENDIX

OPINION AND ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

(Filed December 20, 1995)

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

Electronic Citation: 1995 FED App. 0368P

(6th Cir.)

File Name: 95a 0368 p.06

No. 94-3952

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHRIS R. PLOTT,

Plaintiff-Appellant,

V.

GENERAL MOTORS CORPORATION

PACKARD ELECTRIC DIVISION,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF OHIO

a

A2

Before: KENNEDY and MOORE, Circuit Judges;

JOHNSTONE, Senior District Judge.”

KAREN NELSON MOORE, Circuit Judge.

Plaintiff appeais a summary judgment dismissing his

Title Vil reverse discrimination suit « against

defendant General Motors Corporation ("GM"). We

affirm for the reasons that follow.

a

A.

In 1983, after a national investigation of GM's

employment practices by the Equal Employment

Opportunity Commission (the "EEOC"), GM and the

EEOC entered into a Conciliation Agreement (the

“Agreement") covering GM facilities nationwide.

Although GM denied all allegations of discrimination,

the Agreement set various remedial employment

goals. The provision relevant to this case required

GM to “make good faith efforts to assure that. . .

minorities are at least 15.5% of those chosen for

apprenticeship openings, and women are at least

12.0%." In addition, the Agreement directed GM to

“provide pre-apprentice training for minorities and

* The Honorable Edward H. Johnstone,

Senior United States District Judge for

the Western District of Kentucky, sitting

by designation.

A3

women at selected facilities where openings are

anticipated in the foreseeable future."

In 1987, Chris R. Plott, an unskilled white male

employee at GM's Packard Electric Division,

successfully tested for admission into a skilled

trades apprentice program at GM. However, Plott

was not admitted into the program because the

group of successful applicants for the forty available

apprenticeships did not contain the percentage of

women and minorities required under the

Agreement. To remedy this problem and purge the

selection process of any discriminatory impact, GM

revised the test and offered the revised version to

applicants. Plott again had one of the top forty

scores, but the group once more failed to include

the requisite percentage of women and minorities.

GM therefore decided to institute a pilot two-

week pre-apprentice training program designed to

develop the skills necessary to qualify for an

apprenticeship. Any woman or minority who had

come within twelve points of the score needed to

qualify on the revised test was invited to participate

in the program. At the end of the training, the

trainee took a pre-apprentice training exam, a high

score on which entitled the trainee to a seven-point

increase in his or her score on the revised

apprenticeship test. In addition, each trainee was

allowed to retake the revised test; GM anticipated

A4

that a second try would result in a five-point

increase over the trainee's previous score.

After the women and minorities had completed

the training program and retaken the revised test,

their new scores were integrated into the list of

scores that Plott and other white male applicants

had previously achieved. The result was that the

number of minorities in the top forty exactly equaled

the percentage needed under the Agreement, and

the number of women exceeded the requisite

percentage. GM then admitted everyone in the new

top forty. Plott was displaced by some of the new

scores and no longer qualified for an apprenticeship.

After meeting the procedure requirements for a

Title Vil claim and receiving a right-to-sue letter from

the EEOC, Plott filed suit in federal district court.

The district judge awarded GM judgment on the

pleadings, but this court reversed, finding that Plott

should have been allowed to file an amended

complaint. See Plott v. General Motors Conrp.,

Packard Elec. Div., No. 92-3166 (6th Cir. March 5,

1993) (unpublished disposition). On remand, Plott's

second amended compiaint alleged two violations of

section 703 of Title Vil, 42 U.S.C.§2000e-2. First,

Plott claimed that because a particular provision of

the Conciliation Agreement was facially

discriminatory, the adoption of the Agreement was

A5

itself an illegal act. Second, he alleged that GM

violated Title VIl by exceeding the Agreements

terms in its implementation of the pre-apprentice

training program. He sought monetary relief of

$100,000 and attorney fees.

The district court granted GM's motion for

summary judgment. Plott appeals the summary

judgment and also appeals the district judge's

refusal to allow additional discovery.

We review grants of summary judgment de

novo, viewing all facts and inferences drawn

therefrom in the light most favorable to the

appellant. City Management Corp. v. U.S. Chem.

Co., 43 F.3d 244, 250 (6th Cir. 1994). Reversal is

warranted if the appellant can demonstrate the

existence of a genuine issue of material fact. /a.

A.

Plott first claims that the actual adoption of the

Agreement violated Title Vli. In order to show that

the adoption of an EEOC conciliation agreement

was an independent act of discrimination, a party

must demonstrate that the agreement constitutes a

bad faith attempt to bestow unequal employment

benefits. See EEOC v. McCall Printing Corp., 633

F.2d 1232, 1238 (6th Cir. 1980); see a/so Mercante/

A6

v. State of La., Dep't of Transp. and Dev., 37 F.3d

197, 200-202 (5th Cir. 1994) (following McCa/h;

Carey v. U.S. Postal Serv., 812 F.2d 621, 624-25

(10th Cir. 1987) (same). In support of his claim, Plott

points to the provision that instructs GM to "make

good faith efforts to assure that . . . minorities are at

least 15.5% of those chose for apprenticeship

openings and women are at least 12.0%." He

argues that this provision represents a bad faith

attempt to bestow unequal benefits because the

inclusion of the phrase “at least" technically allows

the plan to produce an apprentice class composed

entirely of women and minorities.

No evidence in this case shows that GM joined

in adopting this provision in order to provide unequal

employment benefits to women and minorities.

Moreover, the “at least" language, standing alone,

does not evidence such an intent. In fact, the first

Supreme Court case on affirmative action under

Title Vil approved a plan that contained similar

language. See United Steelworkers of Am. v.

Weber, 443 U.S. 193, 224 n.3 (1979) (Rehnquist, J.,

dissenting) (noting that plan provided that “af a

minimum, not less than one minority employee will

[qualify] for every non-minority" (emphasis added)).

Aside from his reading of this clause, Plott has

offered no basis for his allegation that the

Agreement was adopted in bad faith to provide

unequal benefits. Summary judgment on this point

was therefore correct.

eR cle RE Rd a al RR Ore eet oneal Ne

Oi DO TE ale ee Mt ee ate ee ek

A7

Plott next contends that GM's affirmative action

program was unlawfully discriminatory because it

exceeded the Conciliation Agreement's goals. To

support this argument, he points to the fact that GM

admitted an apprentice class that was 27.5% female

even though the Agreement only required 12%. Had

GM not overshot the Agreement's goals with respect

to females, Plott argues, he would have secured an

apprenticeship. Plott admits that GM did not exceed

the Agreement's goals with respect to minorities,

and therefore does not allege race discrimination in

the implementation of the Agreement.

The proper inquiry is whether GM's pre-

apprentice training program constituted a good faith

attempt to comply with the Agreement's affirmative

action provisions, not whether there were more

women actually admitted to the apprentice program

than the minimum number required under the

Agreement. Pursuant to section 713(b) of Title VIl,

42 U.S.C.§2000e-12(b),

[iJn any action or proceeding based on any

alleged unlawful employment practice, no

person shall be subject to any liability or

punishment for or on account of (1) the

commission by such person of an unlawful

employment practice if he pleads and

proves that the act or omission complained

A8

of was in good faith, in conformity with, and

in reliance on any written interpretation or

opinion of the [EEOC]... . Such a defense,

if established, shall be a bar to the action .

This section insulates employers from liability for

decisions made in reliance on an EEOC opinion.

In the year following the adoption of the

Conciliation Agreement, the EEOC sent GM a letter

stating that

[it] is the opinion of the Commission that

any action or omission of General Motors

Corporation . . ., or any of [its] officers,

agents or employees, that is or shall be

taken in a good faith attempt to comply with

the affirmative action or other provisions of

the Conciliation Agreement . . . will not

constitute a violation of any of the provisions

of Title VII.

The letter met all the requirements of

29 C.F.R.§1601.93 (1995) and therefore qualified as

an EEOC opinion under section 713(b).

Consequently, as long as GM acted in good faith in

attempting to comply with the Agreement, it did not

violate Title Vil. See Albemarle Paper Co. v. Moody,

422 US. 405, 423 n.17 (1975) (noting that good

A9

faith reliance on EEOC opinion conveys complete

immunity in Title VII actions).

In this case there is no evidence to suggest that

GM acted in bad faith. In fact, Plott admitted in his

deposition that he believed that the program was a

good faith attempt to meet the Agreement's goals.

Indeed, it is difficult to see what stage of GM's

decisionmaking process could be attacked as

lacking in good faith. When GM first administered its

apprenticeship test, the top forty candidates did not

include enough women and minorities to satisfy the

Agreement's goals; only three women and no

minorities were included in the top forty. GM

therefore revised the test to purge it of any

discriminatory impact. The revised test, however,

again produced a _ class with _ insufficient

percentages. GM then followed the Agreement's

explicit instruction to institute pre-apprentice training,

and solicited only those female and minority

candidates whose scores had been close enough to

the top forty that the training program could

reasonably be expected to develop the skills

necessary for them to secure and succeed in an

apprenticeship.

The pre-apprentice training program was a

success. After the program, eleven women qualified

as apprentices. In retrospect, it could be argued that

GM might have invited fewer women to participate

in the training, in order to meet the exact minimum

Al10

_number in the Conciliation Agreement of five

females. However, this was the first time the

program was Offered, and GM had no way of

knowing how successful it would be or how many

participants would ultimately qualify. Alternatively, as

Plott suggests, GM could have admitted the

minimum number of women necessary to satisfy the

Agreement's goals, by selecting only the top five

women. However, the Agreement clearly allowed

GM to exceed the percentage target; it required “at

least 12.0%" women and staied that "“[t]he goals

contained in this Agreement are not intended to

operate as a quota or ceiling upon the employment

of minorities or women." It also noted that

"[a]ttainment of these goals is predicated on the

assumption that some facilities will meet the goals,

some facilities will exceed the goals, and some

facilities will not meet the goals." Trimming the

number of females to five from the group of eleven

who qualified after participating in pre-apprentice

training not only was not required by the Agreement

but also would detract from echieving the purpose of

the pre-apprentice training program and the

Agreement itself.

In short, anything /ess than 12% would have

violated the Agreement's terms, but GM could admit

more than 12% women and still be in compliance.

GM decided to award apprenticeships to each of the

eleven women whose participation in the training

program--a program specifically designed to foster

the skills an apprentice would need--had earned her

All

a place among the top forty candidates. Such a

decision did not result in a significant deviation from

the Agreement's goals and is well within the terms

of the Agreement.

Here, as the district court noted, the Agreement

was reached to remedy under-representation of

women and minorities. It does not take away

seniority rights of white male employees, does not

require replacement of white male employees, and

does not prevent white male employees from

participating in the apprenticeship program. See

Johnson v. Transportation Agency, 480 U.S. 616,

638 (1987); United Steelworkers of Am. v. Weber,

443 U.S. 193, 208 (1979). Under these

circumstances, then, there is no genuine issue of

fact material to a claim of bad faith. In fact, GM's

conduct appears to be a reasonable attempt to

comply with the terms of a federally approved

affirmative action plan. The district court properly

granted defendant summary judgment.

The final issue is whether the district court's

refusal to allow Plott additional discovery is

reversible error. Plott filed a motion for additional

discovery and also submitted an affidavit under

Federal Rule of Civil Procedure 56(f), requesting

more time to learn the details of a local GM

Al2

affirmative action plan and to obtain a list of the

names of those who secured apprenticeships.

A.

Before ruling on summary judgment motions, a

district judge must afford the parties adequate time

for discovery, in light of the circumstances of the

case. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 n.5, 257 (1986) (stressing importance of

allowing ample time for discovery); Ce/otex Corp. v.

Catrett, 477 U.S. 317, 322, 326 (1986) (same).

Parties who suffer an adverse summary judgment

may base their appeals on the lack of opportunity to

discover evidence necessary to establish a genuine

issue Of materiai fact. Generally, however, we

decline to review a claim that is presented for the

first time on appeal. See 7aft Broadcasting Co. v.

United States, 929 F.2d 240, 243-44 (6th Cir. 1991);

see also Roush v. KFC Nat! Management Co., 10

F.3d 392, 397 (6th Cir. 1993) (considering whether

district court had opportunity to rule on issue being

appealed), cert. denied, 115 S. Ct. 56 (1994); Young

v. Langley, 793 F.2d 792, 794 (6th Cir.) (same),

cert. denied, 479 U.S. 950 (1986). In the discovery

context, before seeking appellate review the parties

normally should have given the district court a

chance to address their need for furthier discovery

prior to summary judgment.

Al3

In practice, this means that appeals alleging

inadequate opportunity for discovery come in two

distinct forms after adverse summary judgment. The

first consists of a challenge to a particular adverse

discovery ruling, such as a denial of a motion to

extend the discovery period. See, e.g. Wayne v.

Village of Sebring, 36 F.3d 517, 530 (6th Cir. 1994)

(denial of motion to conduct additional discovery

after cut-off date), cert denied, 115 S. Ct. 2000

(1995); Woods v. McGuire, 954 F.2d 388, 391 (6th

Cir. 1992) (denial of request for additional discovery

time); Elvis Presley Entemprises, Inc. v. Elvisly

Yours, Inc., 936 F.2d 889, 892-894 (6th Cir. 1991)

(denial of request to depose witnesses); Criss v.

City of Kent, 867 F.2d 259, 261 (6th Cir. 1988)

(denial of request to depose witnesses); see a/so

Tarleton v. Meharry Medical College, 717 F.2d

1523, 1534-35 (6th Cir. 1983) (reversing summary

judgment because district court failed to rule on

motion to extend time for discovery).

) The second type of appeal is a more general

| claim that the district court acted prematurely by

granting summary judgment before discovery was

complete. In these cases, the district court did not

refuse to allow requested discovery; the only

adverse ruling on which the appellant can base its

appeal is the summary judgment itself. Under these

circumstances, in order to preserve the argument

that the grant of summary judgment was too hasty

and precluded necessary discovery, the appellant

a ee

Al4

must have complied with the strictures of Federal

Rule of Civil Procedure 56(f), under which the

district court may defer summary judgment, pending

discovery, if the non-movant submits affidavits

Stating that “the party cannot for reasons stated

present by affidavit facts essential to justify the

party's opposition." See, eg., White's Landing

Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 231-32

(6th Cir. 1994) (reversing summary judgment in light

of appellant's Rule 56(f) affidavit); Glen Eden Hosp.,

Inc. v. Blue Cross and Blue Shield of Mich., Inc.,

740 F.2d 423, 428 (6th Cir. 1984) (holding that

summary judgment was premature given opposing

party's Rule 56(f) affidavit). In other words, if the

appellant has not filed either a Rule 56(f) affidavit or

a motion that gives the district court a chance to rule

on the need for additional discovery, this court will

not normally address whether there was adequate

time for discovery. See Klepper v. First Am. Bank,

916 F.2d 337, 343 (6th Cir. 1990) (affirming grant of

summary judgment despite insufficient discovery

opportunity where appellant never filed Rule 56 (f)

affiaavit); Emmons v. McLaughlin, 874 F.2d 351,

356-57 (6th Cir. 1989) (affirming summary judgment

due to lack of adequate Rule 56(f) affidavit);

Shavmoch v. Clark Oil and Refining Corp., 726 F.2d

291, 294 (6th Cir. 1984) (holding that, absent Rule

56(f) affidavit, the district court was entitled to rule

on a summary judgment motion at any time).

Al5

Regardless of which form the appeal takes, this

court has generally applied the abuse of discretion

standard, although the case law reveals several

different permutations of this standard. Compare,

€.9., Bush v. Rauch, 38 F.3d 842, 849 (6th Cir.

1994) ("abuse of discretion"); Woods, 954 F.2d at

391 (same); Emmons, 874 F.2d at 359 (same); Glen

Egen, 740 F.2d at 428 (same), with Criss, 867 F.2d

at 261 (“clearly an abuse of discretion), with Wayne,

36 F.3d at 530 (“abuse of discretion resulting in

substantial prejudice™ (quoting E/vis, 936 F.2d at

893)). A number of different factors are applicable to

such claims, such as (1) when the appellant learned

of the issue that is the subject of the desired

discovery, see Woods, 954 F.2d at 391; (2) whether

the desired discovery would have changed the ruling

below, see Gordon v. Barnes Pumps, Inc., 999 F.2d

133, 138 (6th Cir. 1993); E/vis, 936 F.2d at 894:

Fihodes v. McDannel, 945 F.2d 117, 119 (6th Cir.

1991), cert denied, 502 U.S. 1032 (1992);

Shavmoch, 726 F.2d at 294; (3) how long the

discovery period had lasted, see Woods, 954 F.2d

at 391; Emmons, 874 F.2d at 359 n.8; (4) whether

the appellant was dilatory in its discovery efforts,

see Frank v. DiAmbrosi, 4 F.3d 1378, 1384 (6th Cir.

1993); McTighe v. Mechanics Educ. Soc'y of Am.,

Local 19, 772 F.2d 210, 213 (6th Cir. 1985); and (5)

whether the appellee was responsive to discovery

requests, see 7arleton, 717 F.2d at 1534-35; Glen

Eden, 740 F.2d a* 428.

Al6

Applying these various factors to this case, we

conclude that the district court did not abuse its

discretion in denying Plott's motion for additional

discovery and refusing to defer summary judgment

under Rule 56(f). First, Plott was dilatory in his

efforts to secure the information on which he bases

his claim. He first learned of a local affirmative

action plan at least three weeks before the end of

the discovery period, but did not request any

information during the remaining time. His need to

know the names of those who had secured

apprenticeships became apparent even earlier in the

discovery process. Second, even if Plott had

received the materials he wanted, this case's

outcome would be the same. Section 713(b) of Title

Vil grants GM immunity for the employment

decisions at the core of this litigation, and the

additional information Plott sought was irrelevant to

section 713(b)'s application.

In fact, the only evidence in the record that

supports Plott's claim is that GM was not

cooperative during discovery. Under different

circumstances, such uncooperative behavior might

merit reversal. In this case, however, even the most

forthcoming responses would not have changed the

ultimate result. Therefore, in the context of review

for abuse of discretion, the district court's discovery

rulings do not constitute reversible error.

wiennerenslienas acm Seni

ony

Al17

For the foregoing reasons, we AFFIRM the

judgment of the district court.

PANE MAIDA RSV en LI, ther

vO Bh rN Re oO Ts WR,

SN eran AOD YEAR

Als

MEMORANDUM AND ORDER OF THE

UNITED STATES DISTRICT COURT

(Filed August 11, 1994)

Case No. 88-CV-3708-Y

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHRIS R. PLOTT,

Plaintiff

V.

GENERAL MOTORS CORPORATION, et al.,

Defendants.

MEMORANDUM AND ORDER

According to the second amended complaint,

the Plaintiff, a white male, was employed by

defendant, General Motors Corporation, as an

unskilled worker. In October 1983, the defendant

entered into a Conciliation Agreement with the Equal

Employment Opportunity Commission (EEOC)

providing for an affirmative action plan that gave

preference to minority and female emnloyees, over

Al9g

white male employees, in admission to its

apprenticeship skilled trades program. Plaintiff

alleges that the Conciliation Agreement was made

in bad faith in that it was an attempt to bestow

unequal employment benefits under the guise of

remedying discrimination. In January 1987, Plaintiff

successfully tested for admission into the program

but the test was disregarded because the number of

successful minority and female employees was less

than stipulated to in the Conciliation Agreement.

After modification, Plaintiff successfully retested

for admission into the program but the successful

minority and female employees were again below

the required amount. As a result, all minority and

female employees were given a special course of

instruction before taking the test a third time. The

number of successful minority and female

employees now substantially exceeded the amount

required by the Conciliation Agreement, resulting in

plaintiff being considered unsuccessful. Plaintiff

brought this action under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §2000e ef seg. Defendant

has filed a motion for summary judgment.

42 U.S.C. §2000e-12(b) provides in pertinent

part:

In any action or proceeding based on any

alleged unlawful employment practice, no

person shall be subject to any liability or

A20

punishment for or on account of (1) the

commission by such person of an unlawful

employment practice if he pleads and

proves that the act or omission complained

of was in good faith, in conformity with, and

in reliance on any written interpretation or

opinion of the Commission. Such a defense,

if established, shall be a bar to the action.

On October 31, 1983, General Motors and the

EEOC entered into a Conciliatory Agreement to

resolve charges of discrimination against the

Corporation. The Agreement provided that the

Corporation would choose 15.5% minorities and

12% females for apprenticeship openings. It further

provided that the goals were not intended as a

quota or ceiling upon the employment of minorities

or females and that some General Motors facilities

would exceed those goals.

After the initial tests and before any Pre-

Apprentice Training occurred, Plaintiff's test scores

placed him 28th on the list for the electrician

apprentice trade and 28th position on the list for the

tool and die apprentice trade. Only 10 electrician

apprentices were chosen se Plaintiff did not qualify

for that class.

General Motors received a letter from the acting

General Counsel of the EEOC. The letter stated in

part:

A21

This letter is in response to your request of

October 31, 1983, is written pursuant to

Section 713(b) of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. 2000e-

12(b), and is an “opinion letter" on behalf of

the Equal Employment Opportunity

Commission within the meaning of the

Commission's Procedural Regulations

Section 1601.33. ...

It is the opinion of the Commission that any

action or omission of Generai Motors

Corporation ("the Corporation") or the

International Union, United Automobile,

Aerospace and Agricultural Implement

Workers of America (“the Union"), or any of

their officers, agents or employees, that is

i or shall be taken in a good faith attempt to

comply with the affirmative action or other

| provisions of the Conciliation Agreement

dated October 31, 1983, between the

Commission, the Corporation, and the Union

settling the above-numbered case will not

constitute a violation of any of the provisions

of Title Vil.

Terry McDougall, Assistant Director of Labor

Relations for the North American Operations stated

in his affidavit that he was the person that made the

decision to allow General Motors to proceed with the

pre-Apprentice Training Program. In making that

ee ee Se Le ws CEPTS S OS

A22

decision he relied on that letter believing that he

was acting in conformity with the Conciliation

Agreement.

There is no indication of bad faith in the record.

General Motors acted inn accordance with the

Conciliation Agreement which allowed it to exceed

the stated goals for the percentage of minorities and

females chosen to participate in the apprenticeship

programs. In fact, Plaintiff, at his deposition, agreed

that General Motors actions were taken in good

faith. His affidavit states otherwise, but a factual

dispute cannot be created by filing an affidavit that

contradicts earlier testimony. Dotson v. U.S. Postal

Service, 977 F.2d 976, 978 (6th Cir. 1992). Pursuant

to 42 U.S.C. §2000e-12(b), defendant had immunity

for its conduct taken in good faith. A/oemarle Paper

Company v. Moody, 422 U.S. 405, 423, n. 17, 95 S.

Ct. 2362, 2374, 45 L.Ed.2d 280 (1975).

In Johnson v. Transportation Agency, Santa

Clara County, California, 480 U.S. 616, 107 S.Ct.

1442, 94 L.Ed.2d 615 (1987), a male employee was

passed over for promotion in favor of a female

employee, even though he had a higher test score.

The Court held that the defendant did not violate

Title Vil by taking an employee's sex into account,

as the decision was made pursuant to an affirmative

action plan directing that sex be considered to

remedy under-representation by women and

minorities and it did not necessarily restrain the

A23

rights of male employees or create an absolute bar

to their advancement.

In the present case, the plan does not take

away any seniority rights of white male employees,

does not require discharge or replacement of a male

employee by a female or minority employee and

does not prevent white male employees from

Participating in the apprentice training program. Most

of the employees selected for the apprentice training

program were white males.

In United Steelworkers of America, AFL-C/O-

CLC v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61

L.Ed.2d 480 (1979), the Union and Kaiser Aluminum

& Chemical Corporation entered into a collective

bargaining agreement that included an affirmative

action plan that required that at least £0% of the

openings in the in-plant craft training program be

filled by black employees. The result was that the

most senior black employees selected had less

seniority than white employees who were rejected.

The Court held that Title VII's prohibitions against

discrimination did not prevent private, voluntary,

race-conscious affirmative action plans. /o. 99 S.Ct.

at 2730.

[T]he plan does not unnecessarily trammel

the interests of the white employees. The

plan does not require the discharge of white

workers and their replacement with new

A24

black hirees. Cf. McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273, 96 S.Ct. 2574,

49 L.Ed.2d 493 (1976). Nor does the plan

create an absolute bar to the advancement

of white employees; half of those trained in

the program will be white. Moreover, the

plan is a temporary measure; it is not

intended to maintain racial balance, but

simply to eliminate a manifest racial

imbalance. Preferential selection of craft

trainees at the Gramercy plant will end as

soon as the percentage of black skilled

craftworkers in the Gramercy plant

approximates the percentage of blacks in

the local labor force. /d.

The affirmative action plan in the present case

satisfies the Weber standard. The General Motors

division involved in this case is composed of

approximately 45 to 50% minorities and females. All

employees were eligible for the apprentice training

program. The goals set forth in the Conciliation

Agreement were designed to eliminate racial and

gender imbalance. The affirmative action plan does

not restrain the interests of white males. Therefore,

Title Vil has not been violated.

Plaintiff argues Defendant appropriately set

goals and then inappropriately substantially

exceeded those goals. The required number of

women was seven. Eleven were chosen for the

eS aaa

A25

apprentice training program. Plaintiff asserts that he

should have been admitted to the tool and die

program. Assuming that four females that exceeded

the required number seven were placed into the too!

and die program, Plaintiff would have moved from

38th on the list for 30 to 34." Even if the number of

females selected for that program met the goals set

forth in the Conciliation Agreement, Plaintiff would

not have qualified. Therefore, Plaintiff's argument

fails.

Accordingly, defendants' motion for summary

judgment is granted.

IT IS SO ORDERED.

/s/ George W. White

United States District Judge

*" After the Pre-Apprentice Training

Program with new test scores, plaintiff

dropped from the 28th position to 38 on

the tool and die list.

A26

ORDER OF THE UNITED STATES

DISTRICT COURT

(Dated August 11, 1994)

Case No. 88-CV-3708-Y

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHRIS R. PLOTT,

Plaintiff

V.

GENERAL MOTORS CORPORATION, et al.,

Defendants

ORDER

Pursuant to this Court's Memorandum and Order

filed contemporaneously with this Order,

IT IS ORDERED that defendants’ motion for

summary judgment is granted. This case is hereby

dismissed.

IT IS SO ORDERED.

/s/ George W. White

United States District Judge