Opposition Brief — Ual Corp., Dba United Airlines v. Fielder

No. 00-1397 UN 4 2001

In The

Supreme Court of the United States

+

UAL CORPORATION, dba UNITED AIRLINES,

Petitioner,

Vv.

JOANNE FIELDER,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF IN OPPOSITION

¢

THAb M. Guyer

Counsel of Record

T.M. Guyer & Frienps, P.C.

225 West Main Street

Medford, OR 97501

(541) 773-9656

June 2001

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 *,

OR CALL COLLECT (402) 342-2831

RESTATEMENT OF QUESTION PRESENTED,

AND STATEMENT OF RELATED

QUESTIONS NOT PRESENTED

The question presented by the petition can be fairly

restated as follows:

Whether the Ninth Circuit correctly held that

the discovery injury rule does not bar recovery

for otherwise untimely claims where a related

continuing discriminatory or retaliatory act, or

related continuing discriminatory or retaliatory

unlawful employment practice has occurred within

the 300 day EEOC filing deadline.

The single question presented by the petition is nar-

row, and does not seek review of the following questions

resolved by the court below:

(1) Whether discriminatory retaliation by co-

employees may create vicarious liability for an

employer that knowingly fails to abate it.

(2) Whether retaliatory acts not rising to the

level of ultimate employment decisions or tradi-

tional adverse personnel actions may in and of

themselves be actionable retaliatory discrimina-

tion under 42 USC 2000e-3(a), irrespective of the

preexistence of a hostile work environment.

(3) Whether the same discrete act or failure to

act by an employer may be simultaneously

actionable as both sex discrimination under sec-

tion 2000e-2(a)(1), and as retaliatory discrimina-

tion under section 2000e-3(a). }

(4) Whether a constructive discharge may be

actionable as sex discrimination under section

2000e-2(a)(1), or as retaliatory discrimination

under section 2000e-3(a), where a continuing

hostile work environment exists by virtue of the

li

RESTATEMENT OF QUESTION PRESENTED,

AND STATEMENT OF RELATED QUESTIONS

NOT PRESENTED - Continued

employer’s failure to abate it, combined with

subsequent discriminatory or retaliatory acts

occurring within the 300 day EEOC filing dead-

line.

If this Court decides to grant certiorari, it should consider

requiring the petitioner to brief one or more of the above

unraised issues.

lil

TABLE OF CONTENTS

Page

RESTATEMENT OF QUESTION PRESENTED, AND

STATEMENT OF RELATED QUESTIONS NOT

Pav. Sci RaeCCNds cebGkawaeedbebseose ees

ADDITIONAL STATUTORY PROVISIONS

Pic. Liat eas vb daws eee Kdkecs beck eee

A. Fielder’s Employment at United and the Nature

EN SoG 8A ss RA dobwn wenedsncesceecs

ef NN 65 5 vs scare esksasadeecsenesene

REASONS FOR GRANTING THE WRIT ...........

I. THE DECISION OF THE COURT OF APPEALS

SQUARELY CONFLICTS WITH OTHER CIR-

CUITS’ NARROW APPROACHES TO THE

CONTINUING VIOLATION DOCTRINE.......

Il. THE DECISION OF THE COURT OF APPEALS

Se PUREE UIE 6:6 cc cc cctncdncecancsens

A. Overview of the Ninth Circuit’s Test of

ee ee

B. The Berry Rule as Originally Formulated

EE Nv ect seucntaceeseesivedacn

C. The Berry Rule Two Decades Later in the

Sica htoecuGbau neds ees Hannes

D. The Berry Rule and its Even More Harsh

Applications in Other Circuits ............

Ill. THE SCOPE OF ANY “CONTINUING VIOLA-

TION” EXCEPTION TO SECTION 706(E) IS AN

IMPORTANT AND FREQUENTLY LITIGATED

ISSUE, BUT THE TEXT AND LEGISLATIVE

HISTORY OF TITLE VII ITSELF PROVIDES THE

GUIDANCE FOR AFFIRMING THE DECISION

18

23

iv

TABLE OF CONTENTS - Continued

Congressional Guidance .................. 26

B. Applicable Supreme Court Cases on Proper

Approaches on Limitations Issues......... 28

C. Applicable Supreme Court Cases on

Continuing Violation Doctrine and Discov-

Vv

TABLE OF AUTHORITIES

Page

Cases

Basemore v. Friday, 478 U.S. 385 (1986)............... 29

Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) ...... 19

Burnett v. Grattan, 468 U.S. 42 (1984)................ 28

Crawford v. Western Electric Co., 614 F.2d 1300 (5th

GE ROOD nx4a00s coun Sesnesadeeeneenn 12

DelCostello v. International Brotherhood of Teamsters,

GOR Si. TSE COE vc ek 09044 ba hbceee nee 28

Goodman v. Lukens Steel Co., U.S. 656 (1987)......... 27

Gregory v. Daly, 243 F.3d 687 (2nd Cir. 2001)........ 19

Hanover Shoe v. United Shoe Mach. Corp., 392 U.S.

SRS CN x kn seh nancnvccdaeedieeee see 30

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) .... 28

Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997)........ 28

Lorance v. AT&T Technologies, Inc., 490 U.S. 900

(RROD 4s 00s ecbvaneddeusdsnadassaeieiteee eee 27

Miller v. Maxwell’s Int'l, 991 F.2d 583 (9th Cir. 1993) .... 19

Rotella v. Wood, 528 U.S. 549 (2000) ................. 20

United States v. Georgia Power Co., 474 F.2d 906 (5th

COE OVOP avs Kahin deceetosandacakeee eee 11

United States v. Kubrick, 444 U.S. 111 (1979) ......... 28

Waltman v. International Paper Co., 875 F.2d 468

Coe CE I iisiass cicckecededaweuiee eee 15

vi

TABLE OF AUTHORITIES - Continued

Page

Webb v. Cardiothoracic Surgery Assocs. of N. Tex.,

P.A., 199 FSG Sha GU Git, Bec cccccctccscscees 18

Wilson v. Garcia, 471 U.S. 261 (1985).............60.. 28

STATUTES |

42 UGC Sec. G08 i viccciksccseddecesccccueaaseseenens 27

42 UGE Gat. BOGRW ssc ccccccncacvegauseneseeete 2, 26

42 UBC Gace. TRUER iss odscsc0dindsceasesk eee 27

42 UBC See. TGR osc cnccecsecnctscaccosasaavsieel 2, 26

42 USC See. M0GNM. «ic. ..<ccss8seee ee 1, 27

42 UGC Sec. BOG ROD ican ic ccécavccceccenveusesseeeneee 1

42 UGE Sac. ARGS ois skicnscvcevcctcssccessaun 1, 26, 27

42 USC Sac. BIRR GIA) 0 60sececccceceseeussaeeew 27

42 USC Sec. BOGS CINE). ssc ecessdsisacenncenavens 26

42 UGG Sac. SERS « sencetscnssuiusceaseunes eeu 29

OTHER AUTHORITIES

Act Mar. 24, 1972, P.L. 92-261, 86 Stat. 113 .......... 26

1

ADDITIONAL STATUTORY PROVISIONS INVOLVED

In addition to the single statutory provision identi-

fied by the petitioner governing timely filing of EEOC

charges, the following statutory provisions are also

involved:

42 USC Sec. 2000e-2. Unlawful employment practices

(a) Employer practices

It shall be an unlawful employment practice for an

employer -

(1) *** to discharge any individual, otherwise

to discriminate against any individual with

respect to his * * * terms, conditions, or privi-

leges of employment, because of such individ-

oe” aa *

42 USC Sec. 2000e-3. Other unlawful employment prac-

tices

(a) Discrimination for making charges * * *

It shall be an unlawful employment practice for

an employer to discriminate against any of his

employees * * * because he has opposed any

practice made an unlawful employment practice

by this subchapter *** .

42 USC Sec. 2000e-5. Enforcement provisions

* * *

(e) Time for filing charges; * * * seniority sys-

tem

(2) For purposes of this section, an unlawful

employment practice occurs, with respect to a

seniority system * * * when the seniority system

is adopted, when an individual becomes subject

to the seniority system, or when a person

aggrieved is injured by the application of the

seniority system or provision of the system.

(g) Injunctions; * * * accrual of back pay;

(1) If the court finds that the respondent has

intentionally engaged in * * * an unlawful

2

employment practice charged in the complaint,

the court may * * * order * * * any other equitable

relief as the court deems appropriate. Back pay

liability shall not accrue from a date more than

two years prior to the filing of a charge with the

Commission. * * *

42 USC Sec. 1981a. Damages in cases of intentional

discrimination in employment

(a) Right of recovery

(1) Civil rights

In an action brought by a complaining party

under section 706 or 717 of the Civil Rights Act

of 1964 (42 USC 2000e-5, 2000e-16) against a

respondent who engaged in unlawful inten-

tional discrimination * * * (42 USC 2000e-2,

2000e-3, 2000e-16), * * * the complaining party

may recover compensatory and punitive dam-

ages as allowed in subsection (b) of this section,

in addition to any relief authorized by section

706(g) of the Civil Rights Act of 1964, from the

respondent.

42 USC § 1988 [Application of Analogous Federal and

State Limitations]

The jurisdiction in civil * * * matters conferred

on the district courts by the provisions of this

chapter * * * for the protection of all persons in

the United States in their civil rights, and for

their vindication, shall be exercised and

enforced in conformity with the laws of the

United States, so far as such laws are suitable to

carry the same into effect; but in all cases where |

they are not adapted to the object, or are defi-

cient in the provisions necessary to furnish suit-

able remedies * * * statutes of the State * * * shall

be extended to and govern the said courts in the

trial and disposition of the cause * * *

| |

3

ADDITIONAL STATEMENT

The respondent adds the following facts, from the

record below, and challenges certain misstatements of the

record:

A. Fielder’s Employment at United and the Nature

of Her Claims:

(1) Scope of the Amended Complaint: The petition

makes the following misstatement of the record at page 7:

In response to Fielder’s claim that the continu-

ing violation doctrine allowed her to recover for

alleged incidents dating back to 1984, the dis-

trict court turned to the three Berry facti»s.

Respondent has not taken the position that sne could

“recover for alleged incidents dating back to 1984”. Her

amended complaint specifically alleges that the hostile

working condition commenced with the obscene phone

calls on February 15, 1993. Her complaint references none

of the earlier acts of sexual harassment, intimidation, and

retaliation prior to that date. The earlier acts appear in

the record in the context of background information pre-

sented by both parties during the summary judgment

proceedings.

(2) Linkage of the Continuing Sex Discrimination and

Retaliation: The petition makes the following misstate-

ment of the record at page 13:

** * Fielder complained principally about sexual

harassment, and to a lesser extent coworker

retaliation, before the limitations period, but

complained only about the transfer of a co-

worker and one incident she characterizes as

retaliation (Bibler’s reprimand) that allegedly

occurred within the limitations period.

The amended complaint, and the Ninth Circuit’s treat-

ment of it, is not an assertion of employer liability for

failing to prevent the sexual comments, touching and

phone calls. As the petition correctly states at pages 4 to 5:

4

Fielder did not claim to have experienced any

sexual harassment at all after February 1993,

App., infra, 71a, but she did contend that several ~—

of her coworkers, including Reynolds, retaliated

against her for reporting Chmelir to Bibler and to

the police, id. at 6a, 59a. [Emphasis added.]

Ms. Fielder contends United is liable to her for sex dis-

crimination due to its continuing failure to abate the

hostile environment through the readily available means

of either isolating Chmelir from her, or by granting her

transfer to Portland or Seattle. This failure to remedy in

April 1994 and after is the discrimination “because of

sex”, not the sexual comments, touching and phone calls

in and prior to February 1993. United’s giving the avail-

able transfer position to another employee within the 300

day EEOC filing period is linked by her and the Ninth

Circuit as the continuing unlawful employment practice

because of sex. As the court below stated in Fielder at 987

regarding its understanding of the respondent’s positions

regarding the transfer’s continuing violation linkage to

sex discrimination:

We turn now to United’s refusal to transfer

Fielder. The refusal to transfer her may be evi-

dence that United failed to take steps reasonably

calculated to remedy a hostile work environ-

ment, see Burrell, 170 F.3d at 955, and this

constitutes an overt act. Fielder expressed a

willingness to move to a different city so that

she could continue to work for United. She

offered to remedy the problem by transferring,

but United declined to take any action, thereby

maintaining the status quo hostile environment.

The brute fact is that a person with less seniority

received the transfer. The transfer issue, too,

presents a jury question on the issues of discrimi-

nation and retaliation. [Emphasis added].

Similarly, it is the failure to remedy the co-worker retalia-

tion following her report to the employer and the police in

February 1993 that is basis of her retaliation claims, not

5

the comments, refusals to coordinate duties, and ostraciz-

ing by her colleagues per se. United’s giving the available

transfer position to another employee within the 300 day

EEOC filing period, and the effective revocation of her

gate and workplace access privileges via the “poor judg-

ment” reprimand, are linked by her and the Ninth Circuit

as the continuing unlawful employment practice of retal-

iation both directly by Bibler (who is United), and indi-

rectly in catering to co-workers who objected to Ms.

Fielder’s mere presence within the 300 day EEOC filing

period. As the court below stated in Fielder at 986-87

regarding its understanding of the respondent’s positions

on the reprimand’s continuing violation linkage to unlaw-

ful employer retaliation:

It is also a disputed issue of fact whether

Bibler’s reprimand encouraged retaliatory

behavior against Fielder by her co-

workers. * * * If a jury finds that Bibler’s repri-

mand was an act of retaliation, it becomes an

issue of fact whether the retaliation was of the

same kind alleged before the 300-day period.

The retaliatory acts by management, before the

period of limitations, were Bibler’s refusal to

prevent M.C. from bidding onto Fielder’s shift

before the diversion agreement, acting manager

S.R.’s refusal to give her required job assistance

and supervisor R.M.’s screaming at Fielder that

she had her “head up her ass,” telling her she

was neurotic and sick and later telling her she

was not welcome in the airport coffee shop. * * *

As the court below stated in Fielder at 987 regarding its

understanding of the respondent’s positions on the trans-

fer’s continuing violation linkage to unlawful employer

retaliation: “The transfer issue, too, presents a jury ques-

tion on the issues of discrimination and retaliation.”

(Emphasis added.)

(3) Scope of the Remediation Sought from United: The

petition makes the following misstatement of the record

at page 5:

6

In April 1994, Fielder allegedly became con-

cerned that Chmelir might attempt to bid onto

her shift once his criminal diversion agreement

expired. She claims that she discussed this con-

cern with Bibler, seeking his assurance that

Chmelir would be denied access to the same

shifts that she was working.”

In April 1994, Ms. Fielder did not demand that Chmelir

be “denied access to the same shifts that she was work-

ing”. She knew Bibler would not do that absent a criminal

court order. As the letters of her first lawyer, James

Mueller, successfully demanded, in 1993, before the crim-

inal court diversion was in effect, Ms. Fielder had an

employment expectation that the criminal offender would

be isolated from her. Hence, she sought to make an alter-

native demand on Bibler in April 1994 that if Chmelir was

allowed to work on her shift, that at least United should

make reasonable efforts to keep him away from her dur-

ing such shifts. As the majority noted in its recitation of

the facts at Fielder at 980-81:

Fielder went to Bibler and asked him “please,

when the diversion agreement is up, please keep

him away from me. I’m very much afraid of

him.” E.R. at 15. When M.C.’s criminal diversion

program was coming to an end, she tried to

arrange a meeting with Bibler, M.C. and others

to work out an agreement regarding M.C.’s con-

duct if he were allowed to work on her shift.

Fielder testified that she “wanted to iron out

some safeguards for me, so that I could feel

comfortable with M.C. on my shift. I had finally

realized that there was nothing else I could do

to keep him off of my shift. So I thought, perhaps,

if we have some concrete rules and regulations on

paper, that everyone agrees to and signs, that we

could work together.” E.R. at 17. Bibler refused to

hold the meeting. * * * Fielder was warned by

M.C.’s diversion officer that he is “one of the

scariest of his types, because he’s smart enough

7

to walk with one foot on both sides of the line.”

Plaintiff Depo. at 252. Fielder testified that because

of that statement and her past experiences, she was

extremely worried that he might hurt her. As a

result of Bibler’s refusal to have the meeting or

otherwise guarantee her safety, Fielder went on

medical leave April 20, 1994. She told Johnson

she was leaving and that “there was just too

much that had gone on, and she would not work

at the Medford station again.” E.R. at 27.

Because her request for transfer was still pend-

ing, it is unclear if Fielder meant she would

never work for United again or not in United’s

Medford station.

B. Proceedings Below

The dissenting judge in the proceedings below nei-

ther advocated, nor even mentioned, the appropriateness

of application of the Berry factors to hostile work environ-

ment cases. Indeed, his dissent was most stinging over

conflicting views with the majority as to the facts, not the

law. The dissent stated in Fielder at 993:

The majority is simply making up facts, simply

making them up, to concoct a reason to get

around the statute of limitations, when it says

that “United’s refusal to transfer Fielder” dur-

ing the 300 days was one of “two overt acts”

within the 300 days that would “trigger the

operation of a continuing violation theory * * * ”

The dissent opinion may add-moral support to the peti-

tioner in its cause before this Court. But it offers little

help on what the law is or should be for continuing

violation jurisprudence.

8

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE COURT OF APPEALS

SQUARELY CONFLICTS WITH OTHER CIRCUITS’

NARROW APPROACHES TO THE CONTINUING

VIOLATION DOCTRINE

Based upon the thorough and compelling petition as

to the existence of a profound conflict within the circuits,

and even within the panels of the circuits, there is no

good faith basis upon which the respondent can argue the

writ should not be granted on this ground, save one: The

petition simply fails to present the scope of questions for

review that should be before this Court to do justice to

the limitations issue in the hostile work environment

context of this case.

Il. THE DECISION OF THE COURT OF APPEALS IS

NOT ERRONEOUS

A. Overview of the Ninth Circuit’s Test of

Relatedness: As to the ground of erroneous decision as

the basis for granting the writ, it is insufficient. The Ninth

Circuit single prong rule that the continuing violation

doctrine applies to allow actionability on otherwise

untimely wrongs if they are closely related acts to those

which are timely is strikingly in conformity to the deci-

sions of this Court, both as to substance and as to sim-

plicity. (See Section III.C. below) As the majority below

articulated its rule in Fielder at 987-88:

Generally, to determine whether the continuing

violation doctrine applies, the question boils

down to whether sufficient evidence supports a

determination that the alleged discriminatory

acts are related closely enough to the acts out-

side the limitations period.

(Citation, ellipses and brackets omitted.) This single

prong test contains the first two prongs of the Berry rule,

similarity and continuity. It is the third prong of the Berry

test, as misconstrued by the later panels of the Fifth

9

Circuit and other courts sinee Berry itself, that should

earn the disapproval of this Court for effectively evis-

cerating the continuing violation exception to timeliness

with the wholly distinct injury discovery rule. Indeed,

factor three of the Berry rule, which was explicitly formu-

lated as a part of a non-exclusive test solely for measur-

ing relatedness, has for many courts become a single prong

test of both timeliness and repose. As the petition itself

unwittingly reveals in its comprehensive review of div-

erse circuit law, outside of rote repetition of its first two

factors, the Berry rule is now only its third prong. Indeed,

some courts, attracted by the illusory Berry bright line,

simply demure to the existence of the first two factors,

and dismiss actions on a hostile environment 180 or 300

days from its inception.

Figuratively, some courts deploy the “most impor-

tant” Berry prong in a way which views a hostile environ-

ment as nothing more than another “discrete act” in the

form of a shrink-wrapped collection of words and acts

which come in two measurable maximum sizes: the 180

day pack, or 300 day pack. Each plastic package bears a

clear expiration date for being forever discarded, which is

180 or 300 days from the date a woman first felt herself to

be a victim. If a woman has been groped each day for a

calendar year in a 180 jurisdiction, there are three sepa-

rate and distinct packages, the first two having 180 units

each, and the third with only five units. The Berry prong

then dictates that the first two packages are dismissed as

stale. The smaller third pack is then scrutinized for sever-

ity, and easily dismissed if five episodes are insufficient.

The first two 180 day packs may well be used as “back-

ground information”, but not as elements of a current

violation to allow recovery for the expired claims. By

contrast, the Ninth Circuit will allow a jury to open and

empty all three packages into a single trial record, and

award relief for every act of groping tolerated by the

employer.

10

B. The Berry Rule as Originally Formulated and

First Tested: |

In 1983, the Fifth Circuit was a leader, if not the

leader, among the circuits in expanding the use of statute

of limitations exceptions to protect the classes identified

by Title VII as the historical victims of discrimination.

The Berry decision relied upon Fifth Circuit precedents,

and those of other circuits, in bolstering its jurisprudence

that the EEOC administrative filing deadline could not be

viewed as restrictively as a true statute of limitations,

either in measuring the existence of a claim or the time

for which a remedy could be awarded. The Berry court

explained the following at 979-80, and in note 12:

The courts, however, have frequently utilized

the theory of a “continuing violation” in apply-

ing this limitation. This theory, the precise con-

tours and theoretical bases of which are at best

unclear, relieves a plaintiff who makes such a

claim from the burden of proving that the entire

violation occurred within the actionable period.

To establish a continuing violation for these pur-

poses it is said that the plaintiff must show “a

series of related acts, one or more of which falls

within the 180 day period... .” B. Schlei & P.

Grossman, Employment Discrimination Law, 232

(Supp.1979), * * *

+ +

The theory may also be relevant to a plaintiff’s

remedy, for it has been stated that “once having

shown discrimination continuing into the

actionable period, . . . the plaintiffs may also

recover for portions of the persistent process of

illegal discrimination that antedated the limita-

tions period. * * * Such recovery, however, has

been limited to a period of two years prior to

the filing of a charge with the EEOC. 42 USC

§ 2000e-5(g). * * *

11

In distinguishing the effect of the EEOC filing dead-

line from the temporal limitations on available remedies,

the Berry court explained at note 12:

This Court held in United States v. Georgia Power

Co., 474 F.2d 906, 922 (5th Cir.1973), that the

“limitations period” applicable to an award of

back pay relief was not the 180-day period (90 days

at that time) in which an EEOC charge must be

brought. It held that Title VII was silent on the

proper period and looked to the analogous state

statute of limitations to determine what length

of time was appropriate. As noted below, Con-

gress amended Title VII in 1972 to limit back

pay awards to a period of two years before the

filing of a charge with the EEOC. 42 USC

§ 2000e-5(g).

This invocation of United States v. Georgia Power Co., effec-

tively finding a statute of limitations of two years before

even getting into the application of continuing violation

theory to extend the reach of claims and remedies even

beyond, is particularly important in understanding the

Berry court's reasoning. The Fifth Circuit in Georgia Power

decided as a matter of first impression for itself that, even

prior to the 1972 amendments, the EEOC filing deadline

could not be used to limit the claim for relief or the

period for which damages were awardable. In rejecting

the same argument now made by UAL in its petition,

Georgia Power held as follows at 922-24 that the analogous

two year state back pay limitations should control, and

that in addition to the nature of a continuing violation,

the discovery injury rule “too” could be considered:

The limitations period to be applied under Title

VII is a question of first impression upon which

the statute itself is silent. Though private com-

plaints must be filed before the EEOC within 90

days, we cannot agree with the company that

this period is the proper measure. This deadline

is designed primarily to enhance the possibility

12

of informal, out-of-court resolution of employ-

ment discrimination complaints through prompt

administrative action. It is in no sense a limita-

tion on the period for which one may receive

back pay relief. Employment discrimination

may as readily be a continuing course of con-

duct as a single event. Then too, an affected

individual may not be aware of the discrimina-

tory impact of certain employment practices

until a pattern emerges as a result of the

cumulation of numerous events over a substan-

tial period of time. The remedial purposes of the

Act would be frustrated were financial redress

to be always limited to the 90-day period pre-

ceding the filing of a complaint.

+ + *

Title VII and similar statutes created new causes

of action which did not exist at common law or

under state statutes. In respect to those causes of

action which have no close analogies in state

law, civil rights statutes have generally been

held governed by the limitation on liabilities

created by statute. * * * However, where federal

laws create rights to back pay as part of general

remedial relief, courts have generally applied

the appropriate state statute of limitations gov-

erning actions for unpaid wages.

Secondly, in relying upon the prior Fifth Circuit case

of Crawford v. Western Electric Co., 614 F.2d 1300, 1309 (5th

Cir.1980), the Berry court set the stage for use of the

continuing violation theory to expand not just the timeli-

ness of claims brought within the EEOC filing deadline,

but to expand the timeliness of claims beyond the two

year statute of limitations period. Crawford at 1309 (the

page invoke by Berry). It is against this well-established

jurisprudence in the Fifth Circuit that the meaning and

application of the Berry factors should now be under-

stood.

13

After the Berry court expressly traced its jurispru-

dence as rejecting the EEOC filing deadline as being

synonymous with a statute of limitations, it grappled

with the problem of how to decide what kinds and com-

plexions of “discriminatory acts” are “related closely

enough” to those raised in the EEOC charge. The object of

the analysis was to determine whether acts or injuries

occurring up to two year before the charge can fairly be

understood to have been encompassed within the charge.

The Berry court explained the factors were to be used for

identifying relatedness, not timeliness. Under the facts of the

case it was remanding, the inquiry concerned not an

Equal Pay Act claim as such, but a Title VH claim of

assignment of “unequal work” to the plaintiff, because of

her sex. Her claim was that she was given a heavier

workload than male professors throughout the entire

period of her employment contract, both before, during

and after the filing of her EEOC complaint. However, the

Berry court viewed the record below as too incomplete in

understanding exactly which assignments, duties and respon-

sibilities may have been unequal, and which might have

been equal with the male professors. The Berry court

focused on the need for a record portraying the continu-

ity and similarity of tasks, or conversely, which alleged

tasks or assignments were not a part of the pattern at all,

but might instead be “discrete acts”. The Berry court

explained at 980:

The court correctly construed the discharge, per

sé, aS not constituting a continuing violation

which would have extended the time for filing.

It was a discrete act of discrimination, and Berry

was obliged to seek relief from it within the

statutory 180-day period. Delaware State College

v. Ricks, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d

431 (1980); Chardon v. Fernandez, 454 U.S.-6, 102

S. Ct. 28, 70 L. Ed. 2d 6 (1981). Nor could the

work load and salary discrimination alleged by

- Berry following LSU’s decision not to rehire her,

which are discussed below, transform this action

14

into a continuing violation. * * * Similarly, LSU’s

failure to rehire was a discrete act which was

not part of a continuing violation.

Instead, the Berry court looked to whether the unequal

workload might be a “continuing violation in and of

itself”. The Berry court never even questioned the con-

tinuing actionability of any pattern which had continuity

and similarity. For example, the Berry court noted that

discriminatory compensation which repeated from one

paycheck to another would be a continuing violation,

irrespective of whether the employee knew from the first

check that discrimination was at work. In such a case, the

court would not be concerned with the EEOC filing dead-

line as limiting how far back the claim or remedy would

reach — that would be the function of the statute of

limitations (two years in Georgia). The Berry court stated

at 980-981:

To the extent that Berry’s Title VII claim is not

that she suffered salary discrimination of the

Equal Pay Act variety, but “work load discrimi-

nation” per se, which we have held not to be

actionable under the Equal Pay Act, we are

unable to determine whether she has made out a

continuing violation. * * * This issue, although

raised by Berry, was not focused on by the par-

ties or the court, leaving the record devoid of

potentially important facts and legal argument

on the point. Thus, we also remand the question

of whether the “work load discrimination” of

which Berry complains constituted a continuing

violation extending into the 180-day period.

It was only at this point that the Berry court formulated

the Fifth Circuit’s three prong test, remanding the case

for its application as a means of determining relatedness.

The court stated at 981-82:

Courts have not formulated a clear standard for

determining when alleged discriminatory acts are

related closely enough to constitute a continuing

15

violation and when they are merely discrete, iso-

lated, and completed acts which must be

regarded as individual violations. * * * This

inquiry, of necessity, turns on the facts and con-

text of each particular case. Relevant to the

determination are the following three factors,

which we discuss, but by no means consider to be

exhaustive. * * * As noted, the particular context

of individual employment situations requires a

fact-specific inquiry by a trial judge which can-

not be easily reduced to a formula. We feel,

however, that consideration of the above factors

will generally be appropriate, and we leave their

application here, as well as whether trial on the

merits is required for their resolution, in the

first instance to the district court.

(Emphasis added, citations and footnotes omitted.)

Had the Berry court used what is now called the

“Berry rule”, Professor Berry’s Title VII “unequal work”

claim would have easily been dismissed with the obser-

vations that this condition commenced, and was known

and complained about by her long before the EEOC filing

deadline. This result would have been repugnant to anal-

ysis of the Berry panel. Indeed, the first reported try out

of the Berry rule within the Fifth Circuit resulted in a

futile exercise of logic to give wide berth to the third

prong in the context of a hostile work environment claim,

and as with the Fielder decision, resulted in biting dissent

against the majority for its obviously strained effort to

avoid its application. That case was Waltman v. Interna-

tional Paper Co., 875 F.2d 468 (5th Cir. 1989), unmentioned

by the petitioner, but cited by the majority in Fielder at

986. Like Ms. Fielder, Ms. Waltman was sexually harassed

by male co-workers, and she complained about it to her

supervisors repeatedly far outside of the EEOC filing

deadline. Employer investigations and reprimands were

undertaken, multiple offenders were involved, she

demanded shift transfers away from harassers, workers

16

were assembled to learn the employer’s sexual harass-

ment policies, and the overt sexual acts ceased. These

events all unfolded in 1982, 1983, and 1984, and until she

finally resigned in 1985 after getting mental health treat-

ment.

The district judge counted back the days from the

EEOC filing, and arrived at cut-off date for actionability

in October 1984, finding all of the acts in 1982, 1983 and

the first ten months of 1984 to be stale. The Waltman

majority, however, was undeterred by Berry, though giv-

ing that case great attention. First, the majority stopped

just short of finding Berry inapposite and outdated by

this Court’s decided determination in the hostile environ-

ment arena, stating at 476:

It is noteworthy that since this court’s decision

in Berry, the Supreme Court decided Meritor

Savings Bank, which established that a plaintiff

can bring a claim for sexual harassment based

on acts that created a “hostile environment.”

The Meritor Savings Bank decision is relevant to

the continuing violation theory because a hostile

environment claim usually involves a continu-

ing violation. In a hostile environment, an indi-

vidual feels constantly threatened even in the

absence of constant harassment. Thus, in look-

ing at the frequency of harassment, the focus

should not be a mechanical calculation. Rather,

in light of Meritor Savings Bank, the court should

review the pattern and frequency of the harass-

ment and determine whether a reasonable per-

son would feel that the environment was hostile

throughout the period that formed the basis of the

plaintiff's claim.

(Emphasis added.)

Secondly, the Waltman majority distinguished use of

the third Berry prong as a measure of “permanence”

between discrete single acts such as notification of denial

of a promotion and the existence of a hostile work envi-

ronment. It was at this juncture that the majority either

17

could not grapple with or tolerate use of the third prong

to affirm dismissal of Waltman’s multi-year ordeal. For in

spite of clear evidence that Waltman had long since real-

ized and complained about the hostile environment, and

the failure of the employer to abate it, the majority

refused to reverse, cryptically stating at 476:

Acts of harassment ‘that create an offensive or

hostile environment generally do not have the

same degree of permanence as, for example, the

loss of promotion. If the person harassing a

plaintiff leaves his job, the harassment ends; the

harassment is dependent on a continuing intent

to harass. In contrast, when a person who denies

a plaintiff a promotion leaves, the plaintiff is

still without a promotion even though there is

no longer any intent to discriminate. In this

latter example, there is an element of perma-

nence to the discriminatory action, which

should, in most cases, alert a plaintiff that her

rights have been violated. We find that in the

instant case, there is a material issue whether

the acts of sexual harassment, had the Berry

quality of “permanence” that would alert Walt-

man that her rights had been violated.

Understandably, the dissent found the majority to be

easy prey on grounds of the Berry third prong if under-

stood to be a factor of timeliness rather than relatedness,

which is how the majority unfortunately discussed it. The

dissent stated at 487, note 14:

I also disagree with the majority’s holding that

Waltman may prove a continuing violation of

Title VII so as to avoid its 180-day limitations

period. The impact in this case is not significant,

because one or two physical incidents involving

her occurred within the 180-day period. If her

claims are actionable, no limitations bar exists. The

majority’s holding, however, points up a serious

inconsistency in Waltman’s claim. How can she

have been so unaware that her environment at

IPCO was pervasively and severely hostile, that

18

a continuing violation occurred? Unlike Abrams

v. Baylor College of Medicine, 805 F.2d 528 (5th Cir.

1986), and cases where the discriminatory con-

duct is hidden from the plaintiff, Waltman had

to know that she was being psychologically

abused. If she did not, the credibility of her

claim diminishes.

(Emphasis added.)

Thus, like so many of the courts referenced in

United’s petition, the Waltman dissent used Berry factor

three in shrink wrapping the victim’s environment into

two discrete packages on either side of the EEOC filing

deadline. The first package standing alone was stale, and

could thus be dismissed. The second package contained

only “one or two physical incidents”, and thus lacked the

severity and pervasiveness when viewed standing alone.

And, said the dissent, even if these physical incidents

were severe enough, they still could not be used to link

the first package with the timely second one, but would

simply be actionable on their own.

C. The Berry Rule Two Decades Later in the Fifth

Circuit: What is most significant about Waltman is not the

majority’s failure or refusal to apply the third factor, but

how the dissent would have used it to isolate continuing

hostile environment claims into discrete periods by

deploying the Berry third prong as a dispositive discov-

ery injury rule. Some circuits, including the Fifth Circuit |

in a recent case, have used the third Berry prong as a

discovery injury rule which begins the clock running not

on the last overt acts of harassment, but on the earliest

ones. Petitioner puts heavy emphasis on Webb v. Cardio-

thoracic Surgery Assocs. of N. Tex., P.A., 139 F.3d 532, 537

(5th Cir. 1998), and respondent does likewise to demon-

strate how courts now deploy the Berry discovery injury

prong to start the clock on hostile work environment

cases even before the unlawful employment practice claim has

accrued under Title VII. To understand the perversion of

the Berry prong into a bar far more onerous than even the

harshest application of the discovery injury rule, three

19

settled aspects of Title VII actionability must be high-

lighted.

(1) Acts of Sexual Harassment and Co-Worker Retalia-

tion are not Actionable Until the Employer Commits the

“Unlawful Employment Practice” of Failing to Remedy: It is

by now well settled that even the most offensive sexual

acts and the resulting hostile work environment are not

actionable unless and until (a) the employer knows of,

and (b) fails to take the necessary steps to remediate it.

Burlington Indus. v. Ellerth, 524 U.S. 742, 764 (1998). As

there is no employer vicarious liability for the unsanc-

tioned acts of coworkers, the failure to remediate after

chargeable knowledge of the hostile working conditions

is an indispensable element of unlawful employment

practice claims. As the court below stated in Fielder at

985: “Employers may be held vicariously liable for failing

to remedy sexual harassment by employees when man-

agement knew or should have known of the harassing

behavior.” Indeed, Title VII restricts claims only to the

“employer”, and provides no cause of action against the

co-employee harasser himself. Miller v. Maxwell's Int'l,

991 F2d 583, 587 (9th Cir 1993) (“Because Congress

assessed civil liability only against an employer under

Title VII, this court has held that “individual defendants

cannot be held liable for back pay”); and Gregory v. Daly,

243 F.3d 687, 689 n. 1 (2nd Cir. 2001) (holding that indi-

vidual supervisory employees may not be held liable

under Title VII).

(2) There is No Title VII Hostile Environment Claim

Absent Both Objective and Subjective Severity: While the

subjective state of mind of the victim is a requirement of

the severity factor, the severity element of hostile work

environment has both a subjective and objective require-

ment. As the court observed in Gregory v. Daly, 243 F.3d

687, 691-92 (2nd Cir. 2001), an actionable hostile environ-

ment is one “(1) that is “objectively” severe or pervasive —

that is, if it creates “an environment that a reasonable

person would find hostile or abusive” [the “objective”

requirement], * * * and (2) that the plaintiff “subjectively

20

i.

perceives” as hostile or abusive [the “subjective” require-

ment]”, citing Harris v. Forklift Systems, 510 U.S. 17, 21-22

(1993) (“Conduct that is not * * * objectively hostile or

abusive * * * is beyond Title VII’s purview. Likewise, if

the victim does not subjectively perceive the environment

to be abusive, * * * there is no Title VII violation.)

(3) Neither the Discovery Injury Rule, nor any Other

Time Trigger, Has any Application before the Unlawful

Employment Practice is Complete: Where federal statutes

are silent on a limitations period, there can be competing

principles and rules on what the period should be, and

what events or knowledge are required to commence the

clock. “How long is too long is, of course, a matter of

judgment based on experience, and * * * Federal courts, to

be sure, generally apply a discovery accrual rule when a

statute is silent on the issue”. Rotella v. Wood, 528 U.S.

549, 555 (2000). Nonetheless, it is the simple but “cardinal

principle that a limitations period does not begin to run

until the cause of action is complete.” Rotella v. Wood, 528

U.S. at 559, n. 4. That the discovery injury rule is effective

upon “discovery of the injury, not discovery of the other

elements of a claim” Rotella v. Wood, 528 U.S. at 555, is

immaterial where the “other elements” have yet to occur.

With these hopefully solid premises in mind, it is stunning

that the Fifth Circuit in Webb, and the petitioner here,

unhesitatingly conclude that the third Berry prong can effec-

tively begin the running of the Title VII limitations period

simply when the plaintiff subjectively considers herself a

victim, before she has even complained to the employer,

where the employer brings prompt remedy to the com-

plaint, and the cause of action is not yet complete. Here

are the facts which the plaintiff in Webb at 535 alleged

happened to her before she ever reported them to the

employer such as to trigger employer liability:

Webb alleges that Mack began sexually harass-

ing her in the spring of 1991, when she began

working as his secretary. * * * Mack’s offensive

conduct included touching Webb on the shoul-

der when he spoke to her and standing so close

21

to her that he would rub against her shoul-

on ***

In January of 1993, both Webb and Mack,

together with other CSANT personnel, attended

a business meeting in San Antonio. According to

Webb, late one evening at a bar Mack

approached her, hugged her, and whispered his

hotel room number into her ear several times.

Mack allegedly asked Webb to meet him there.

Later, after everyone had left the bar and

returned to the hotel, Mack telephoned Webb in

her room and asked why she had not come to

his room. * * *

In February of 1993, Mack called Webb into his

office. According to Webb, Mack asked her to

close the door to the office and to sit on his side

of the desk. Webb complied with this request.

Mack then discussed several problems that he

was having related to CSANT and conveyed to

Webb that he was “feeling down.” * * * Webb

then stood to leave, at which time Mack thanked

her for listening and allegedly placed his hand

on her leg and touched the inside of her thigh

under her skirt. Before January of 1995, Webb

had not complained to-any CSANT personnel

regarding Mack’s behavior.

Thus, no matter how serious this sexual harassment by

Mack is considered to be, the law is clear that no Title VII

cause of action for an unlawful employment practice

could have been complete until Webb notified her

employer or otherwise demanded relief. Yet, deploying

the third Berry factor, the Webb court at 538 concluded as

a matter of law that the Title VII limitations period was

triggered by the unreported incidents in 1993:

Here, the summary judgment evidence reflects

that Webb was immediately aware of the sever-

ity of Mack’s conduct in January and February

of 1993. The district court based its decision on

Webb’s own deposition testimony describing

22

her perception of Mack’s conduct. Webb stated

that she knew that Mack’s January 1993 conduct

was sexual in nature when he tried to get Webb

to come to his hotel room in San Antonio. Fur-

ther, she stated that she was offended by his

behavior. Webb also understood Mack’s conduct

at the February 1993 meeting to be a sexual

gesture. After this meeting, Webb was “shocked

and frightened.” Even if the January incident at

the bar and hotel in San Antonio was insuffi-

cient to put Webb on notice that her employ-

ment might be affected by Mack’s conduct,

when the incident in Mack’s office occurred

only weeks later, Webb was on notice that

Mack’s conduct would affect her employment.

Based on this factual predicate, we agree with

the district court that Webb needed no addi-

tional facts after these two encounters to under-

stand that Mack was sexually harassing her.

Webb’s full knowledge of Mack’s acts in January

and February of 1993 therefore triggered Webb’s

duty to assert her rights.

The court held the claim untimely despite the legal

conclusion at 536 that “Dr. Mack could not be held indi-

vidually liable because he did not qualify as an

‘employer’ under Title VII”, without any express legal

conclusion that the 1993 incidents met the objective

requirement of severity and pervasiveness, despite the

fact that she had not asked the employer to abate Mack’s

conduct, and with no analysis whatsoever as to whether

any actionable hostile environment had ever existed,

much less whether it persisted into 1995. Assuming the

correctness of the recited facts, no limitation argument at

all was necessary to dismiss Webb’s claim. Instead, the

court could have, and should have ruled that she sub-

stantively had no Title VII claim because no hostile envi-

ronment existed at all either when she complained to the

employer, or within the EEOC filing time. The court

simply should have ruled that by the time she triggered

23

any employer responsibility with her complaints, no hos-

tile condition existed for the employer to remedy.

Yet, it is precisely seizure on the illusory bright line

of the third Berry factor that leads courts to ignore the

most fundamental and substantive legal principles of

hostile work environment claims. The trial court, and the

petition in this case demonstrate exactly this pitfall. At

page 13 of the petition, United correctly recites that:

Unlike the plaintiff in Webb, who apparently did

not appreciate during the limitations period that

her supervisor’s behavior might be violative of

Title VII, Fielder specifically complained of sex-

ual harassment to both her coworkers and her

supervisor Bibler long before the limitations

period ran. Id. at 58a. Shortly thereafter, Fielder

retained an attorney, who advised United dur-

ing the limitations period that he believed

Fielder was being retaliated against. Id. at 4a-5a,

7a.

Neither the district court below nor the petitioner here

gave any significance to the facts that she neither had nor

claimed any right of action against United for an unlaw-

ful employment practice for the 1992 and 1993 sexual

conduct of Chmelir or Reynolds precisely because United

did remedy that conduct after she complained in Febru-

ary 1993. Instead, using the third Berry prong, petitioner

argues the clock began running with the lawyer letters,

irrespective that she had no action against either her

individual co-worker or United at that time.

D. The Berry Rule and its Even More Harsh Appli-

cations in Other Circuits: The petition meticulously doc-

uments that the third Berry prong, or its analog, have

predominated the limitations jurisprudence of several cir-

cuits, in some instances where the third prong, without

more, is the test. The petition unabashedly depicts this,

correctly referencing the third Berry prong as the “notice

rule” it has become in its several variants, in the follow-

ing analysis:

24

[At page 14:] The Third, Sixth, Tenth, and Elev-

enth Circuits have applied the Berry factors in

the same manner as the Fifth Circuit, placing

particular emphasis on the third factor -

whether the degree of permanence was suffi-

cient to put the plaintiff on notice of her duty to

prosecute her claim.

[At page 15:] The First and Seventh Circuits, and

the Federal Circuit in a related context, have

each effectively boiled Berry down to a one-

factor test that permits the continuing violation

doctrine to be invoked only if a reasonable per-

son in the plaintiff’s position would not have

immediately appreciated the unlawful nature of

the conduct antedating the limitations period.

[At page 12, note 2:] The Second Circuit has not

acknowledged the Berry test, but its own

approach to the continuing violation theory

closely parallels the three-factor Berry anal-

ysis. * * * See Van Zant v. KLM Royal Dutch

Airlines, 80 F.3d 708, 713 (2d Cir. 1996) (“There is

y no reason to defer the accrual of [plaintiff’s

harassment] claim to the time she received

notice of all discrete acts that might make uy her

discrimination claim.”).

[At page 16, note 3:] The notice rule of the First,

Seventh, and Federal Circuits is consistent with

this Court’s “emphatic” guidance that causes of

action accrue, and the limitations period begins

to run, on the plaintiff’s “discovery of the injury,

not discovery of the other elements of a claim.”

Rotella v. Wood, 528 U.S. 549, 555 (2000).

[At page 17:] Under the notice rule of the First,

Seventh, and Federal Circuits, evidence that the

plaintiff perceived herself to be a victim of

harassment before the limitations period

expired will be fatal to a continuing violation

claim.

lll

25

Indeed, to show how far the Berry third prong is permeat-

ing the federal judiciary, petitioner identifies only one

circuit as approaching the permissiveness of the Ninth

Circuit, noting on page 18, note 4 the “last incident of

harassment” rule of the Eighth Circuit.

Ill. THE SCOPE OF ANY “CONTINUING VIOLA-

TION” EXCEPTION TO SECTION 706(E) IS AN

IMPORTANT AND FREQUENTLY LITIGATED

ISSUE, BUT THE TEXT AND LEGISLATIVE HIS-

TORY OF TITLE VII ITSELF PROVIDES THE

GUIDANCE FOR AFFIRMING THE DECISION

BELOW

The petitioner is nowhere more incorrect than when

it contends at page 20 that the “broad continuing viola-

tion exception adopted by the Ninth Circuit is inconsis-

tent with the plain meaning and purpose of Section

706(e). The statute does not expressly provide an

extended limitations period for continuing violations of

Title VII.” Furthermore, the petitioner is wrong in ques-

tioning whether “some limited form of a continuing vio-

lation exception could be grafted onto the statute”

consistent with Congressional intent and this Court’s pre-

cedents, other than “the doctrines of equitable tolling and

equitable estoppel, and the discovery rule”, and then

only if “strictly enforced, subject only to certain narrow

exceptions”. Ibid at 22. No fair reading of this Court’s

cases can sustain the petition’s assertion at page 23 that

the Court “has consistently refused to recognize an equi-_

table tolling rule, like the continuing violation rule of the

court below, that would extend the limitations period for

putative plaintiffs who knowingly fail to prosecute their

claims in a timely fashion.” Both the text of Title VII and

the legislative history urge a far less restrictive approach

than that urged by petitioner, and adopted by some cir-

cuit panels under the misguided constructions of the rule

adopted by the Berry court in 1983.

26

This Court fundamentally must resolve the issues

raised by the petition, today or another, by one of two

approaches that currently predominate for making the

complex and tough choices in limitations law. Judicial

choices are necessitated because of Congress’ venerated

and determined view that the judicial branch is better

situated than the legislative to wisely formulate and

apply limitations rules of decision to effectuate the pro-

found political, legal and cultural values insisted upon by

this nation. Were Congress to have delegated this crucial

governing power (e.g., 42 USC sec. 1988) to the executive

branch, this Court would be firm in its jurisprudence that

the executive must vigorously embrace this delegated

power. Yet, this Court is hesitant in accepting the delega-

tion. The power is there, the legislative guidance is there.

The Constitution has reserved Congress’ legislative veto

should the Court go too far, but as shown below, that veto

has always been used when this Court hasn’t gone far

enough in permissively adjusting time limitations for

effectuating civil rights values.

A. Congressional Guidance: In addition to its own

initiatives in doubling EEOC filing deadlines from 90 to

180 days, with most plaintiffs being legislated into 300

day states, Congress has at least twice amended Title VII

to reduce unjust case fatalities at the hands of restrictive

time limitations.

(1) In 1972, Congress amended the 1964 Civil Rights

Act to allow back pay awards to two years, preventing

some courts from continuing to use EEOC filing dead-

lines as the limitations period for what was then the only

compensating money judgment a plaintiff could win. Act Mar.

24, 1972, P.L. 92-261, 86 Stat. 113 (amending 42 USC sec.

2000e-5(g)(1)). It is this amendment, in conjunction with

the delegation of 42 USC sec. 1988, that the Court should

now find to be the federal two year statute of limitations

for the award of any money judgment under Title VII

(other than costs and fees), i.e., back pay and punitive

damages provided under 42 USC sec. 1981a for non-

economic injuries to Title VII plaintiffs. (See below.)

27

(2) With the Civil Rights Act of 1991, Congress

amended 42 USC sec. 2000e-5(e)(2) to expand the time

limitation within which an employee could challenge,

and thereby be compensated for, a discriminatory

seniority policy. Overruling Lorance v. AT&T Technologies,

Inc., 490 U.S. 900 (1989), which held the EEOC filing

deadline to be triggered on the date a facially non-dis-

criminatory policy is “adopted”, Congress dramatically

extended the limitations trigger to the latest date of when

the policy “is adopted, when an individual becomes sub-

ject to the seniority system, or when a person aggrieved

is injured by the application” of it. Congress was unper-

suaded by the Lorance Court’s balance of interests and

rationale grounded in Delaware State College v. Ricks, 449

U.S. 250.

Also it must be noted that with the Civil Rights Act

of 1991, Congress amended 42 USC sec. 1981 by adding a

new remedy section, 1981a. Without any reference to the

EEOC filing deadline provided in section 2000e-5(e)(1),

section 1981a(a)(1) directed:

In an action brought by a complaining party

under section 706 or 717 of the Civil Rights Act

of 1964 (42 USC 2000e-5, 2000e-16) against a

respondent who engaged in unlawful inten-

tional discrimination * * * (42 USC 2000e-2,

2000e-3, 2000e-16), and provided that the com-

plaining party cannot recover under section

1981 of this title, the complaining party may

recover compensatory and punitive damages as

allowed in subsection (b) of this section, in addi-

tion to any relief authorized by section 706(g) of

the Civil Rights Act of 1964, from the respon-

dent.

At-the time this new damages remedy was enacted in

section 1981a, Congress was presumably aware that this

Court had already held that the statute of limitations for

section 1981 actions would be the analogous state stat-

utes, most of which are two or three years, Goodman v.

Lukens Steel Co., 482 U.S. 656 (1987); and that a state

28

human rights agency’s six month EEOC-type limitations

period would be inappropriate in limiting section 1981

claims. Burnett v. Grattan, 468 U.S. 42 (1984).

B. Applicable Supreme Court Cases on Proper

Approaches on Limitations Issues: This Court can either

affirmatively adopt a period or rule of limitations, or

eliminate one or more of those advocated by the circuits.

Under the grant of power to this Court by 42 USC sec.

1988, the approach used to decide limitations periods and

accrual rules in civil rights claims (sections 1983 and

1981) is to select one from an analogous federal statute,

and only if one is unavailable, from state statutes. Wilson

v. Garcia, 471 U.S. 261 (1985) (“First, courts are to look to

the laws of the United States so far as such laws are

suitable * * * . If no suitable federal rule exists, courts

undertake the second step by considering application of

state * * * law”). When deciding limitations periods and

accrual rules under other federal statutes (including

RICO, NLRA, and the Federal Tort Claims Act), this

Court has usually engaged not in a process of selection,

but one of explicit “elimination” from the diverse rulings

of the circuits. Rotella v. Wood, 528 U.S. 554 (RICO); Klehr

v. A.O. Smith Corp., 521 U.S. 179 (1997) (RICO); and United

States v. Kubrick, 444 U.S. 111 (1979) (Federal Tort Claims

Act discovery rule), and DelCostello v. International Broth-

erhood of Teamsters, 462 U.S. 151 (1983) (declining to apply

a state statute of limitations to NLRA claim in favor of

analogous federal statute). Respondent urges this Court

to use the affirmative adoption approach, and borrow the

back pay two year period as the effective statute of lim-

itations for all money judgments under Title VII. Alter-

natively, the Berry third prong discovery rule should be

eliminated in affirming the judgment below.

C. Applicable Supreme Court Cases on Continu-

ing Violation Doctrine and Discovery: Contrary to the

arguments of the petitioner, this Court has applied the

continuing violation doctrine in civil rights cases, and did

not allow a discovery rule to bar recovery. These cases are

antithetical to petitioner’s restrictive approach. In Havens

29

Realty Corp. v. Coleman, 455 U.S. 363 (1982), a fair housing

organization deployed “testers” to detect racial “steer-

ing” over a period of several years by the defendant. This

Court rejected the defendant’s argument that the civil

rights action was time barred under § 812(a) of the Fair

Housing Act, 42 USC § 3612(a), which requires that a civil

suit be brought within 180 days after the alleged occur-

rence. Although five different specific incidents were

alleged, four occurred earlier than the 180 days limita-

tions, and the housing organization knew of the discrimi-

nation from the earliest testing. Adopting a continuing

violation theory triggered by a last act rather than a

discovery rule, the Court held at 380-81:

Where the challenged violation is a continuing

one, the staleness concern disappears. Peti-

tioners’ wooden application of § 812(a), which

ignores the continuing nature of the alleged vio-

lation, only undermines the broad remedial

intent of Congress embodied in the

Act, * * * [W]e therefore conclude that where a

plaintiff, pursuant to the Fair Housing Act, chal-

lenges not just one incident of conduct violative

of the Act, but an unlawful practice that con-

tinues into the limitations period, the complaint

is timely when it is filed within 180 days of the

last asserted occurrence of that practice.

In Bazemore v. Friday, 478 U.S. 385 (1986), a state

Extension Service previously divided into a “white

branch” and a “Negro branch,” were subsequently

merged into a single organization, but, some disparities

remained between the salaries of white and black person-

nel. Years later, some of the affected black employees

sued under Title VII for back pay. This Court held that

recovery could not be barred simply because the discrim-

inatory salary structure existed even before Title VII was

extended to state government employers in. 1972. The

Court termed the circuit court ruling to the contrary as

“too obvious to warrant extended discussion”, id. at 395,

and held that: “Each week’s paycheck that delivers less to

30

a black than to a similarly situated white is a wrong

actionable under Title VII, regardless of the fact that this

pattern was begun prior to the effective date of Title VII.”

Similarly in Hanover Shoe v. United Shoe Mach. Corp.,

392 U.S. 481, 502 (1968), this Court rejected a limitations

argument that an antitrust case must be filed within the

prescribed limitations period, even though the damages

repeated year after year. The Court held with a brevity

that common sense yields:

We are not dealing with a violation which, if it

occurs at all, must occur within some specific

and limited time span. * * * Rather, we are

dealing with conduct which constituted a con-

tinuing violation of the Sherman Act and which

inflicted continuing and accumulating harm on

Hanover. Although Hanover could have sued in

1912 for the injury then being inflicted, it was

equally entitled to sue in 1955.

CONCLUSION

The respondent seeks a denial of the writ of certiorari

both because the decision below is correct, and because

the petition fails to present the range of necessary ques-

tions for proper review. Alternatively, if the writ is

granted, the additional questions enumerated above

should be ordered to be addressed by the parties.

Respectfully submitted,

THap M. Guyer

Counsel of Record

T.M. Guyer & Frienps, P.C.

225 West Main Street

Medford, OR 97501

(541) 773-9656

JUNE 2001