Petition for Writ of Certiorari — Chambers v. American Trans Air, Inc.

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

Supreme Cour, WS.

, su & D

94 S47 AUG 2 199%

QEFI@E OF THE CLERK

NO.

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1994

BECKY CHAMBERS, Petitioner,

vs.

AMERICAN TRANS AIR, INC., Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

GORDON B. DEMPSEY, P.C.

2908 Green Hills Ln, S. Dr.

Indpls, IN 46222

317-925-8000

Counsel for Petitioner

STATEMENT OF THE ISSUES

1. Whether, ina Title VII action, it

is abuse of discretion to grant summary

judgment on a motion filed less than 4

months after suit, in the presence of (a)

extensive procedural activity during said

period, (b) completion by plaintiff of the

deposition of her supervisor, (c) pending

written discovery by plaintiff aimed at

details of to plaintiff’s work area, and

(d) an 18 page Rule 56 (f) affidavit ten-

dered while a motion for enlargement is

9ending, documenting severe and widespread

discrimination, in both the section of

plaintiff and the company as a whole? In

this context, how Rule 56 (f) will apply?

2. To what degree of specificity an

EEOC promotions claim must by articulated,

to preserve it for suit?

3. To what extent a party should be

expected to articulate arguments on appeal

under Harris vs. Forklift Systems, Inc, 114 |

S. Ct. 367 (1993), when not in play in the

district court’s decision, to preserve a

hostile environment claim?

4. To what extent the defendant or

lower courts can ignore a plaintiff’s

articulation of the events in her section

in her deposition, in finding no claim for

constructive discharge may be pursued?

5. Whether, in cases unlike East Tex.

Motor Freight vs. Rodriguez, 431 U.S. 395,

the trial court should be required to allow

substitution of class representatives?

6. What will be the retroactivity of

the 1991 Civil Rights Act, in this case in

a Rule 11 context? And should Rule 11

sanctions be available, for seeking

punitive or liquidated damages, where

plaintiff did not pursue a broad theory

unavailable to her, nor did she _ seek

damages unavailable on the facts alleged?

fia

PARTIES

Listed in the caption.

TABLE OF CONTENTS

Table of Authorities

Reference to Reports

Statement of Jurisdiction

Statutes

Statement of the Case

Procedural

Factual

Jurisdiction of the District Court

Argument

Rule 56 (f) and discovery

Failure to Promote

Wage Discrimination

Workloads and Hostility

Constructive Discharge

Class Certification

Rule 11

Appendices

A. 7th Circuit Opinion

(pages 1-33) |

B. District Court Entries

(pages 1-147)

May 8, 1991 1

May 23, 1992 32 |

Oct. 20, 1992 85 :

Dec. 2, 1992 i335

e, 7th Circuit Order Denying :

Rehearing (pages 1-2)

D. Affidavits |

(pages 1-45)

Ed Latimer 1 :

Gordon B. Dempsey 9 :

5. March 1, 1989 Motion for

Enlargement

iii

TABLE OF AUTHORITIES

CASES

American Nurses Ass’n v. Illinois,

783 F.2d 716 alsa

Assily vs. Tampa General Hospital, M.D.

Fla. 1992, 791 F Supp 862 49

Atonio vs. Wards Cove Packing Co.,

Inc., 10 Fed 3rd 1485 (9th Cir.

1993) 44

Babrocky vs. Jewel Food Co,

Retail Meat Cutters Union, 773 Fed.

2d 857, 864 (7th Circuit, 1985) 36-38

Barthel, et al vs. Illinois Central,

(Ill. 1978), 384 N.E. 2d 316 47

Berrigan vs. Greyhound, 782 F. 2d

295 (1986) 34

Bohen vs. East Chicago, Indiana,

799 F. 2d 1180 53

Bradley vs. School Bd of City of

Richmond, 416 U.S. 669, 715-716 50

Carter vs. AT & T Communications,

759 F. Supp. 155, (S.D.N.Y. 1991) 27,33

Celotex v. Catrett, 477

U.S. 317 22,312,323

Consor vs. Occidental Life, DC Tex

1979, 469 F Supp 1110 47

Cowan vs. J.C. Penney, 790 F. 2d

1529 (llth Cir, 1986) 34

East Texas Motor Freight vs.

Rodriguez, 431 U.S. 395 48

Fields vs. Cummins Employees

Federal Credit Union, 540 N.E. 2d

631 (Ind. Ct. App. 1989) 51

First National Bank vs. Cities

Service Co., 391 U.S. 253 32

Garrett vs. City and County of

San Francisco, 818 F.2d 1515 (9th

Cir. 1987) 33

Glen Eden Hospital Inc. vs. Blue

Cross/Blue Shield of Michigan, Inc., 32

740 F 2d 423 (1984)

Harris vs. Forklift Systems, Inc.,

114 S. Ct. 367 (1993) 41-45

Holland vs. Jefferson Nat’l Life

Ins. Co., 883 F 2d 1307, 1312

(7th Circuit, 1989) 33

Huddleston vs. Roger Dean Chevrolet,

845 F. 2d 900 (llth Cir, 1988) 53

Hutchison vs. Amateur Electronics

Supply, Inc., 840 F. Supp. 612,

619 (E.D. Wis 1993). 50

Jenkins vs. Blue Cross Mutual Hosp.

Ins. Co., 538 F. 2d 164, 167 (7th Cir,

1976) 36-38

paeneee een

Kopp vs. Samaritan Health System,

Inc., 13 Fed 3rd 264 (8th Cir. 1993) 44

Love vs. Turlington, DC Fla 1984,

733 F 2d 1562 47

Martin vs. D.C. Metropolitan Police |

Dept., 812 F. 2d 1425, 1436

'o.G. Car. 1987) 22,26,28

Martin vs. Thompson Co, CA Ala 1973,

486 F 2d 510 47

Matsushita Electric vs. Zenith Radio,

475 U.S. 574 35

Meritor Savings Bank vs. Vinson,

477 U.S. 57 40-45

Mestever vs. Wisconsin Phy-sician,

905 F. 2d 1077 at 1081

(7th Cir 1990) 54

Otto vs. Variable Annuity, 814 F. 2d

1127 (7th Cir 1986) 26

Price Waterhouse vs. Hopkins, 490

U.S. 228 28

Rush vs. McDonald’s Corp., (7th

Circuit, 1992), 996 F. 2d 1104. 36-38,51

Saxton v. AT & T, 10 Fed 3rd 526. 44

Swanson vs. Elmhurst Chrysler,

N.D. Ill, 882 F. 2d 1235 53

Taylor v. Kerr DCNY, 1977, 73 FRD 691 48

Thompson vs. Duke, 940 F. 2d 195 54

Thorpe vs. Housing Authority of

City of Durham, 393 U.S. 268 50

U.S. Parole vs. Geraghty, 445 U.S.

388, at 404 (1989) 47

Washington vs. Wayman, DC New York

1971, 54 FRD 266

Young vs. Lane, 922 Fed 2d 370

(1991) 48

OTHER AUTHORITIES

Newberg, Class Actions, Sec. 24.31. 47

Wright, Miller & Kane, Federal

Practice and Procedure, Civil

2d, Sec. 2740 (1983) 28, 33

Wright, Miller and Cooper,

p. 420, n. 52 48

REPORTS AND OPINIONS

The 7th Circuit opinion was reported at 17

Fed 3rd 998.

vii

GROUNDS FOR JURISDICTION

as The original district court

judgments were May 8 and 28, 1991, with a

motion to correct errors denied by order

docketed December 4, 1992, and the notice

of appeal filed January 5, 1993. The 7th

Circuit issued its opinion February 28,

1994. A Petition for Rehearing and a

Suggestion for Hearing In Banc were denied

May 4, 1994. Defendant filed a Motion to

Amend the opinion on May 6, and plaintiff

responded. The Motion was granted and a

modified opinion issued May 18, 1994.

a Jurisdiction for certiorari is

based on 28 U.S. Code 41 and 1254.

viii

STATUTES INVOLVED

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

Code Sec. 2000e-2.

employer practices

(a) It shall be an 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, con-

ditions or privileges of employment, be-

cause of such individual’s race, color,

religion, sex or 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 oppor-

tunities or otherwise adversely affect his

status as an employee, because of such

individual’s race, color, religion, sex or

national origin.

STATEMENT OF THE CASE

A. Procedural.

The Complaint, alleging Title VII

discrimination based on sex, along with a

Petition to Certify as a Class Action and

Supporting Brief, was filed October 11,

1988. Jurisdiction was based on 42 U.S.

Code Sec. 2000e et seq, Title VII of the

Civil Rights Act, and 28 U.S. Code Sec.

1331, providing for jurisdiction over cases

involving federal questions.

Plaintiff also filed on October 26,

1988, a Petition to Restrict Solicitation

of Exclusions or Individual Settlements,

and a Petition for an Order Prohibiting

Destruction or Removal of Records.

Defendant responded as to exclusions or

settlements November 8, 1988, and Plaintiff

filed a rebuttal November 21.

After obtaining enlargement, Defendant

answered the Complaint November 21, 1988,

and upon Motion of the same day, obtained

an enlargement to January 13, 1989 in which

to respond to Plaintiff’s Petition for

Class Certification. On January 8, 1989,

Plaintiff petitioned for enlargement of

time in which to move for a Rule 23 (c) (1)

determination, and was allowed to March 30,

i389.

On January 12, 1989, Defendant filed

its Motion for Summary Judgment, Memorandum

in Support, Evidence in Support, and Facts

as to Which There is No Genuine Issue and

Proposed Conclusions of Law; Motion to

Strike Affidavit; Memorandum in Opposition

to Petition for Class Certification; and

Motion to Strike Claims for Exemplary

Damages and Liquidated Damages.

On January 13, 1989, Defendant filed

its Request for Reconsideration of the

enlargement granted Plaintiff as to Rule 23

Motion for Stay of Discovery on Class

Issues. Plaintiff responded to the Request

and Motion for Stay January 31, and

obtained by order of January 30, an

enlargement to February 29, 1989 in which

to respond to the summary judgment motion.

At a February 1 hearing, the Court

vacated the order setting the March 30 date

in which to "move for class certification";

stayed discovery on class issues; denied

the petition to restrict solicitation; and

denied the petition for an order prohibit-

ing destruction or removal of records.

Plaintiff on March 1 filed her

Response to Motion to Strike, Motion for

Enlargement of Time as to Summary Judgment

(an Exhibit hereto), and Response to Motion

to Strike Claims for Exemplary and

Liquidated Damages. Defendant responded as

to the enlargement as to summary judgment

March 3, and on March 7 moved to strike

Plaintiff’s First Request for Discovery.

Plaintiff in turn filed her Reply as to

enlargement relating to summary judgment,

Motion for Leave to File Rule 56(f )

Affidavit out of Time, and extensive

Evidence in Support of Motion for

Enlargement of Time to Respond to Motion

for Summary Judgment, on March 10, 1989.

Also on March 10, Defendant filed its

Reply to Plaintiff’s Response to Motion to

Strike Affidavit. On March 13, Defendant

filed its Opposition to Plaintiff’s Motion

for Leave to file Rule 56 (f) affidavit out

of Time. A Court entry of March 17, 1989

showed the Motion of Defendant to Strike

the Claims for Exemplary and Liquidated

Damages granted. On March 20, the Court

made an entry granting in part and denying

in part the Motion for Enlargement as to

Summary Judgment. Defendant on March 21,

1989 filed its Rule 11 Motion for Sanctions

eal

and Supporting Memorandun.

On April 7 and 12, 1989, the Court

made an entry addressed to discovery

disputes and gave plaintiff until May 10,

1989 in which to respond to the Rule 11

Motion. Plaintiff on April 19 filed her

Brief as to the Timeliness Issue in the

Summary Judgment Motion, and Motion to

Publish Depositions. On April 24, Plain-

tiff amended her first discovery request,

and Defendant withdrew its Motion to Strike

Plaintiff’s first request for discovery on

April 25.

The Response of Plaintiff to the Rule

11 Motion was filed May 11, 1989. Defendant

filed its Response to the Reply Brief on

timeliness May 12, and its reply as to Rule

11 May 19.

On June 6, 1989, the Court served a

Notice of Request for Information. This

alleged that the judge belonged to Ambas-

Sadaire Travel Club, which operated out of

the ATA Building, and as a member of that

Club flew on planes with "American Trans-

Air" on the fuselage. On June 20, 1989,

ATA disclosed that Ambassadair Travel Club,

Inc. and American Trans Air, Inc. were two

of five wholly owned subsidiaries of Anm-

tran, Inc., 100% of the shares of which

were owned by one man; all operating from

the same building; and with all Ambas-

sadaire flights taken on American Trans Air

planes. Defendant also filed a Supplemental

Memorandum in Opposition to the Petition

for Class Certification June 5, 1990.

On May 8, 1991, the Court allowed pub-

lication of depositions, and granted in

part and denied in part the order for sun-

mary judgment as to timeliness. On May 23,

it made an additional entry on the Motion

of Plaintiff for Enlargement of Time, Mo-

tion for Leave to file Rule 56 (f) Affi-

ES a ee

davit Out of Time, the Petition for Class

Certification, the Motion to Strike Affi-

davit, and the Motion for Summary Judgment.

Plaintiff filed on June 7, 1991, her

Motion for Rule 59 and 60 relief. Defen-

dant responded, after receiving enlarge-

ments, July 12, 1991. Also after en-

largements, Plaintiff filed her reply

August 27, 1991.

The Court made an entry October 20,

1992 discussing the Rule 59 and 60 Motions

and the Rule 11 Motion of Defendant, and

Defendant made its verified submission

requested by the Court October 30. Plain-

tiff filed her response to the submission

November 16, and Defendant replied November

24. The Court made its entry as to the

amount of sanctions December 2, 1992.

Plaintiff filed her Notice of Appeal

January 4, 1993, and her jurisdictional

statement the same day. Jurisdiction on

appeal was based on 28 U.S. Code Sec. 1291.

The Trial Court made its Nunc Pro Tunc

Entry January 8, 1993. After briefing on

an issue of timeliness of appeal, the

Court of Appeals made a March 31, 1993

entry on that issue. After briefing, oral

argument occurred October 29, 1993. The

Court of Appeals issued an opinion February

28, 1993. Enlargement was obtained and

then a Petition for Rehearing and a

Suggestion for Hearing In Banc filed, and

denied May 4, 1994. Defendant filed a

Motion to Amend the opinion on May 6,

seeking to remove the name of the company

president from the opinion at certain

points, and plaintiff responded. The

Motion was granted May 18, 1994, the

opinion was modified, and the changes are

reflected in the copy of said opinion

submitted herewith.

B. Factual.

Most of the Appendix references below

are to Appendices A-E to this Petition.

(Any references to "Sh A" and "Se A" below

are to the short separate appendixes

respectively, of Chamber’s Brief to the 7th

Circuit, not appended to this Petition, and

there are some references to depositions,

also not made appendixes to this Petition,

in case the Court looks at those items.)

Becky Chambers was a young single

female employee of American Trans Air, Inc.

("ATA"), one of the largest ' charter

airlines in the world, with headquarters in

Indianapolis, Indiana. She worked there

from October, 1982 to July, 1987, most

recently as a crew planner. Se A l,

Complaint. Chambers was demoted from the

position of Contract Administrator

Supervisor, and further asserts a less

qualified male was promoted over her in

1983 (App D, p. 11). She was at another

time in 1983, given the duties of Contract

Supervisor, but no pay increase. (App D, P-

11, para. 5 and 6; SeAl, Pp- 6) She got

no pay increase when promoted in August

1986 to Crew Planner, or in November or

December of 1986, when she acted as Senior

Crew Planner. (Sh Al, p. 6) A Lon Lett

was also promoted over her, she asserts,

March 20, 1987. (Sh Al, p. 6). On

another occasion, a new male crew planner,

John Petreiksen, was ired at a sa

higher than hers. (Dep Becky Chambers, se

A 5, p- 226) She was required to supervise

the work of males she had trained, without |

the status or pay. (App. D, p. 16; ShAl,

pp. 174, 270, 299, 305).

In addition to the above, Ms. Chambers

asserts that the company was beset by

chauvinism at the highest levels, and this

was true on lower levels as well as in

management. She further asserts females

—: CU

cee eeee en

were referred to in vulgar sexist language

by the highest levels. (EEOC claim

narrative, set forth verbatim below). See

also App. D, pp. 1-7, Atfidavit of VP and

General Mgr Ed Latimer, revealing how the

president of the company referred to women

in administration as "cunts", and called

the head flight attendant the "head screw"

(pars. 12-14). The complaints beyond

payroll and promotion have been described

as heavier workloads, harsher discipline,

and an overtly hostile atmosphere, as

detailed below. Plaintiff felt a sexist

mentality pervaded the company. The above

affidavit of Ed Latimer, who remained Vice

President and General Manager of ATA until

late 1987, also stated that females were

laid off while on maternity leave and not

allowed to return (par. 7); male managers

were paid considerably larger incomes than

female for comparable work (par.8); the

president of the company had said they

needed _a man as manager of interlining,

though women fill the position at many

airlines (par. 9); the vice president for

maintenance and engineering kept women at

the bottom of the hierchy in maintenance,

and resisted appointment of a more

qualified woman to a computer slot in favor

of two men (par. 10); women in operations

tended to be paid much less than men (par.

Ai}.

Additionally, observations of co-

workers included (1) numerous examples of

women replaced by men paid double the

amount the women were paid, (2) women who

had comparable responsibilities, but were

given clerical titles and correspondingly

lower pay than men with the same respon-

sibilities; (3) women who were replaced or

demoted while on maternity leave, vacation

or out of town on business, after infrac-

tions which for men resulted only in verbal

or written warnings; (4) only men were

given large raises by the president of

the company, who called them in personally

to give them; (5) men hired later than

women for identical positions, with no

experience, were paid more than the women;

(6) men were given more favorable hours to

attend school or work overtime, while women

were not; (7) many positions were not

posted, and the company had a policy never

to post upper level positions; (8) none of

the top 26 positions were occupied by women

the first 14 years of the company’s

existence, (9) a male supervisor locked the

door of the women’ estroom, so a key had

to be requested from him; and (10), in

Clerical departments, almost exclusively

female, the supervisors were generally

male. (Affid of Gordon Dempsey, App. D, p.

41). These points were established in

interview notes, offered to the Court for

in camera review (1d).

Ms Chambers herself testified in

deposition to the unbalanced workload

between men and women (Dep Becky Chambers,

SE A 5, pp 80-84); that women were

reprimanded for things men were not (id, p.

79,80); that men were allowed to travel to

visit their accounts, but women were not

(id, p. 79); that Ms Chambers was demoted

on pretextual grounds, with a less

qualified male put in a supervisory

position (id, 73, 92-94, 113-115, 117, 119-

120, 133) [App-_D, para. 4, pp. 10-11)];

and that unequal pay was part of the

problem (Se A, _ PppPp- 205, 2586). She

complained about it several times (id, 87,

258, 275). As of June of 1987, Ms Chambers

was being paid less than the newest and

highest paid planner, who was male. (id, p.

226). Co workers confirm the gross

———————EOewe

imbalance of work between female and male

crew planners in Ms Chambers’ work area.

(App. D, p. 41). Ms Chambers also

testified that she was harassed by her

Supervisor, another young Single female,

who was erall ast Oo her because Ms

Chambers was _a_ single woman. (App. D,

para. 9, pp. 17-21); Dep of Becky

Chambers, Se A 5, Ppp. 173-179, 213, 215,

232). Ms Chambers was characterized by co

workers as tending to keep to herself, but

generally getting along, and Ms Knowles as

gregarious, and active in her relationships

with male superiors. (App. D., Affidavit

of Gordon Dempsey, para. 14 [a], p. 40 et

seq; and Dep of Becky Chambers, Se A 5, p.

182). Particulars include; (1) John

Piburn, supervisor of both Ms. Knowles and

Ms Chambers, was always touching women, and

the rumors were that a woman had to become

romantically involved with him to get

anywhere; (2) Ms Knowles liked the men and

made an effort to get along with them, but

indicated to women that dealing with them

was a "hassle"; (3) Laura Knowles was

"flirty", "slept around" and that the

(male) crews liked her; (4) Ms. Knowles

predecessor in her position, Bob Gray,

first, was paid twice what Ms Knowles was

paid, and second, was terminated fer sex

harassment. (App. D, id). Ms Chambers

testified that Ms Knowles went out of her

way to give undesirable trips to female

flight attendants she did not like, but had

no information she did this with males

(Dep, Se A5, p. 176). In her Deposition,

Ms. Chambers described Ms. Knowles as

"loose". (App. B, id pp. 38-40).

Ms. Knowles testified that she often

had non-boyfriend male, rather than female,

roomates in her apartment (Dep Ms. Knowles,

Se A 6, pp 9, 107); Ms Knowles also

testified that Piburn came onto female

employees, was always touching them and

trying to get them to go to dinner with

him, though married. (id, pp. 125,126)

(id, pp. 38-40). (App. D, pp. 38-40).

Ms. Chambers wrote a June 29, 1987

memo insisting that certain conditions,

including unequal pay and unbalanced work

load, be corrected, or she would resign.

(Se A 7). She resigned, although that is

not what she wanted (Dep of Becky Chambers,

Se A 5, pp. 209, 245). ( Single

female secretary, Sharon Sircy, quit in

tandem.) Ms Chambers felt the conditions

were allowed to become very difficult,

because Ms Knowles felt threatened, and

hoped she would quit. (App. D, Affidavit of

Gordon Dempsey, para. 9, p. 19; para. 13,

Pp- 31; Dep of Becky Chambers, Se A 5, pp

273-279, 2333, 225, 232). Chambers filed

her EEOC (Se A 2) charge January 5, 1988.

The narrative read:

"I started at American Trans Air about

five years ago, and was put in scheduling

about a year and a half ago. I trained

atleast 3 males, who started after me. A

pattern developed in which I would be

required to check their work and do part of

it, but they were paid more money, probably

averaging $2,000 to $3,000 per year more.

In about late June, 1987, I wrote asking

that the inequity be corrected, along with

an inequity relating to a co-employee, if

I were to continue working there. On July

9, I was advised to leave at once, although

my last day would be shown as July 16,

1987.

Witnesses formerly in management will

confirm chauvinism at the highest levels of

the company, and a pattern of paying women

less money for comparable positions or

responsibility. This is true both on lower

levels and in management. The undersigned

has taken statements showing that not only

were women given unequal pay for comparable

positions, but females, including those in

management, were routinely referred to in

vulgar sexist language in their absence, by

the highest levels of management."

Chambers sought and obtained a notice

of right to sue July 13, 1988, and

commenced this suit (SE A 1) October 11,

1988.

The facts, relating to the acts or

omissions for which Rule 11 assessments

occurred, are as follows: The Complaint

filed in October, 1988 sought exemplary and

liquidated damages, for humiliation and

emotional distress (Se A 1). In its

answer, ATA denied that such relief was

due. In the November 19 and 21 deposition

of Ms. Chambers, ATA delved into the

distress that would support the liquidated

and exemplary damages clain. It gave no

indication to counsel there could be no

factual issue, and made no request prior to

or during the deposition, that they be

dropped.

ATA wrote counsel a letter January 6,

1989, alleging 6 paragraphs of Rule 11

violations, with the claims of exemplary or

liquidated damages itemized as paragraph 5.

(Se A 8, Ex A to ATA’s Rule 11 Motion).

The undersigned called Mr. Utken the first

business day after the letter was mailed,

January 9, to attempt to go over the letter

point by point. Mr. Utken cut off the

conversation, prior to reaching paragraph

5, and said we would have to complete the

conversation "another day." Three days,

later, he filed ATA’s Motion to Strike

Claim for Exemplary and Liquidated Damages.

(Se A 9, Response of Plaintiff to Rule 11

Motion, p. 1)

Chambers obtained an enlargement in

which to respond to several motions,

including the motion to strike, and formal-

ly withdrew the claims for liquidated and

exemplary damages March 1, 1989 at the time

she filed other papers due in the case.

The withdrawal was based on an acknow-

ledgement that their inclusion was a

drafting oversight. (id, p. 33: SRA 3,

Entry of October 20, 1992, page 17). There

is no other evidence of any active pursuit

of the liquidated or exemplary damages

a i |

Claims by Chambers after ATA’s January 6

letter, or active defense by ATA, prior to

the withdrawal by Chambers in tandem with

other pleadings.

ARGUMENT

I. RULE 56(f).

The Court should grant Certiorari in

this case to set out meaningful limits, on

abrupt summary judgments in Title VII

cases.

It should clarify that (1) Rule 56(f)

affidavits are not to be treated as

mandatory to obtain enlargement, in the

absence of a discovery cutoff, or in the

early stages, of a Title VII case. It

Should also clarify that, (2) when

affidavits are required, in a Title VII

case, the duty of the nonmoving party is

not to produce affidavits in admissable

form from all pertinent witnesses, but to

disclose in a pleading, subject to the

requirements of Rule 11 when signed by

counsel, evidence available to said party

at the time. The Court should clarify that

(3) nonmoving parties are not required to

characterize the evidence then available as

inadequate, to seek additional discovery.

Finally, that (4) particular caution is

required in Title VII cases, and on facts

like these, as set forth below, the

required caution did not occur.

In broad terms and as related to the

above points, the opinion of February 28,

1994 contravenes Celotex v. Catrett, 477

U.S. 317, 322, and related cases set forth

below, because Chambers was conforming to

the reasonable requirements of the rule, to

avert summary judgment before “adequate

time for discovery." See Martin vs. D.C.

Metropolitan Police Dept., 812 F. 2d 1425,

1436

(D.c. Cir. 1987), where Judge Ginsburg

that summary judgment is inappropriate

until all discovery has been completed,

especially where crucial facts are in the

possession of the moving party.

Suit was filed October 11, 1988.

Various activity occurred in the case,

during the 3 months prior to the summary

judgment motion of January 12, 1989--

Plaintiff had (1) completed the substantial

investigation reflected in the various

witness statements referenced in the Rule

56 (f) affidavit (App. D, pp. 40-43), (2)

taken the deposition of Ms Knowles, (3)

prepared, modified and served written

interrogatories, (4) filed a emotion

designed to preserve documents, and (5)

dealt with various procedural motions

generated by ATA, during the period since

filing suit in October, 1988 (see Statement

of Case, Procedural above, also set forth

in Chambers’ response to the Rule 11

Motion, Se A 9).

Chambers got one enlargement to March

1, 1989. Her Motion of that date for

additional enlargement is App. ° That

motion--

a. Pointed out at paragraph 1, the

failure of defendant to ferret out any of

the underlyin f i with written

discovery or depositions, other than one

deposition of Ms Chambers, and

b. Pointed out at paragraphs 6 and 7

the pending discovery relating to Ms

Chambers individually, and pointed out how

it was directed at (1) statistical patterns

in Ms Chambers section, related sections,

or sections requiring comparable tasks, (2)

facts that could tie Ms Chambers specific

experiences to the notable animus at the

top, (3) specific similar occurrences, and

(4) details of relationships of persons

controlling Ms Chambers or her section, all

of which would be essential to fill the

gaps.

Page 22 of the Brief of Chambers to

the 7th Circuit points out additional

factors known to the Court then--there was

no discovery cutoff, or trial date. The

court on February 1, 1989, had required

Chambers to alter her written discovery

directed at defendant. Chambers had class

and individual aspects of the claim to

address, and could not know what the

arguments for summary judgment would be,

and thus what discovery would be required

{atleast not comprehensively) to rebutt

them, before seeing the Motion.

Chambers tendered her extensive

affidavit of counsel March 10, 1989, before

any ruling on her March 1 Motion. (Se A 4).

As to (1)--Rule 56 (f) affidavits not

mandatory before discovery cutoff or in

early stages.

Even the 7th Circuit has not held that

a Rule 56(f) "affidavit" is the exclusive

basis for enlargement of time in which to

respond to summary judgment. That would be

anomalous at best, since an affidavit is

not required to get summary judgment

itself. Otto vs. Variable Annuity, 814 F.

2d 1127 (7th Cir 1986), cited by the Court

at page 4 of the February 28, 1994 opinion,

does not hold that failure to assert

grounds in affidavit format is fatal. It

was based on failure of the Motion for

enlargement to show, among other things,

how the discovery might help resist the

motion. Page 1138.

See Martin vs. D.C. Metropolitan

Police Dept., 812 F. 2d 1425

(D.C. Cir. 1987). The factual basis for

the motion for enlargement was set forth in

a Motion (see p. 1435)--Judge Ginsburg

found the factual basis insufficient to

rebutt the summary allegations, but not

based on the fact they were not in

affidavit form. She did reverse, and

required additional time for discovery on

the summary judgment issue, even though

governmental immunity was in play. ‘See

ftnote 22 of Judge Ginsburg, as to the

dynamics.

See American Nurses Ass’n v. Illinois,

783 F. 2d 716, 729, cited in fact in the

February 28, 1994 opinion. The court in

that case pointed out the proper course is

to ask for more time (not saying by

affidavit), and there, the plaintiff

apparently did not ask.

In view of The special importance of

latitude in discovery in Title VII cases,

reiterated in Carter vs. AT & T

Communications, 759 F. Supp. 155, (S.D.N.Y.

1991), at 159, citing Price Waterhouse vs.

Hopkins, 490 U.S. 228, 247, n. 12, this

Court should adopt the DC Circuit view, and

articulate that affidavits should not be

required, before a discovery cutoff, or in

the early stages, of a Title VII case.

As to (2), nature of affidavit when

required--

A Rule 56 affidavit need not present

proof, but should show the existence of the

proof. For purposes of Rule 56 (f), an

affidavit of counsel, showing the Court

what evidence the nonmoving party has, is

a common practice. Wright, Miller & Kane,

Federal Practice and Procedure, Civil 2d,

Sec. 2740 (1983). Cited at p. 19 of Se A

4. See also 116 F.R.D. 166. And Martin,

supra. Para. 14 of Se A 4 addressed the

witness statements, and discovery needed,

in-detail.

The statement of the 7th Circuit that

Chambers "never put forth any evidence" is

incorrect under the Martin approach, as is

the assertion that Chambers was claiming it

was "unrealistic to expect her to be able

to come forward with facts." Where many

witnesses have been interviewed, as here,

it is unweildy to try to obtain affidavits

from all of them. If the Court or opposing

counsel felt that should be necessary, even

after tendering the notes to the Court (Se

A 4, para. 14 (d), just to support further

discovery, it could be required.

As to (3), alternative arqument

allowed--

The language in Rule 56 (f) causes

recurrent rhetorical problems. The 7th

Circuit appeared to embrace the view that

the nonmoving party must pursue only one

alternative or the other, as the district

court apparently saw the matter. They read

the phrase

"should it appear from the affidavits of a

party opposing.." to mean that a nonmoving

party cannot seek additional time under

Rule 56(f), without characterizing the

evidence available thus far as inadequate.

Since a nonmoving party cannot know many

times whether the court’s view of

"adequate" conforms to that of the

nonmoving party, it seems reasonably clear

the nonmoving party should be allowed to

proceed in the alternative. The phrase

should be read to mean appear to the court.

If the court views the disclosures before

it as sufficient to show summary judgment

should be denied and denies it, no

enlargement is needed. If insufficient or

possibly insufficient, time would normally

be allowed, especially in the early stages,

and in the absence of a discovery cutoff.

Should not this Court go ahead and say

that?

(7%

PY 4

where the caution shown is inadequate--

This Court should adopt a period, or

criteria, which create an inference of

adequate time under Celotex. In this case,

the Court decided 5 months--as the Court

said, enough time to complete “atleast some

discovery"--was adequate. Chambers submits

that especially with (1) no discovery

cutoff, (2) no trial date, (3) the

extensive activity and submissions during

the 5 months, (4) the amount of information

in the Rule 56 (f) affidavit supporting a

claim on the merits, and (5) the short

period since filing, it was abuse of

discretion to deny further discovery in

this case. The timing threshold for

Summary judgment--after adequate time for

discovery, per Celotex--was never reached.

The Court has in effect said--

Chambers had enough time to do atleast some

discovery. The summary judgment is based

on her deposition. So she can’t do any

more discovery, in spite of the problems

with Piburn, with the predecessor to Laura

Knowles, Mr._Gray, with Ms Knowles herself,

and the pattern all the way to the top.

(App. D, pp. 38-41).

Its not reasonable, under the rule or

the cases applying it.

See Glen Eden Hospital Inc. vs. Blue

Cross/Blue Shield of Michigan, Inc., 740 F

2d 423 (1984) in which the 6th Circuit

reversed, for failure to allow completion

of discovery. The court noted that if

there was "inactivity", it was not

plaintiff’s fault. (Here, the activity was

Substantial). The court at page 428 cited

First National Bank vs. Cities Service Co.,

391 U.S. 253, in which 5 years had lapsed.

In Celotex, supra, it was several years.

See American Nurses Ass‘n v. Illinois, 783

See American Nurses Ass/’n v. Illinois, 783

F. 2d 716, cited in fact in the Feruary 28,

1994 opinion. That case involved a

plaintiff which had "sat on its hands" for

"years".

Cartes also pointed out that

enlargements are to be allowed “with a

spirit of liberality", citing 10A Wright,

Miller & Kane, Federal Practice be

Procedure, sec. 2740 at 532 (1983) [even

outside Title VII]. See also Holland vs.

Jefferson Nat’l Life Ins. Co., 883 F 2d

1307, 1312 (7th Circuit, 1989).

See also Cowan vs. J.C. Penney, 790 F.

2d 1529 (11th Cir, 1986), where plaintiff

brought to the cCourt’s attention that

discovery was outstanding, as here. In the

lst Circuit, see

Berrigan vs. Greyhound, 782 F. 2d 295

(1986)--if information is in the hands of

the defendant, and there is a fair

likelihood the plaintiff would obtain

material information, summary judgment is

to be denied.

Chambers submits that Judge Ginsburg

set the correct tone in Martin, and the

other cases cited are consistent with it.

The opinion of February 28 herein is not.

This court should hold that summary

judgment will be reversed, when applied to

a Title VII case, in the posture of this

one.

Chambers adds a comment about Celotex,

probably the case cited more than any other

in the U.S. on summary judgment, and

Matsushita Electric vs. Zenith Radio, 475

U.S. 574, 587. Matsushita says summary

judgment shall be granted if the evidence

"could not lead a rational trier of fact to

find for the nonmoving party."

The standard is in reality largely

arbitrary, and to that extent, transfers

enormous power away from the jury and to

the district, and the appellate, judges.

What percent chance is "rational"? Some

judges will and do treat the standard as an

invitation to decide the case, and will

conclude that a "rational" trier of fact is

one who agrees with them. The point is not

to suggest that relationships to defendant,

its counsel or both, gain ascendency, here

or in general.

ai. j to te.

The 7th Circuit omitted part of the

EEOC claim language. The first paragraph

said Ms Chambers trained males, and then

had to check their work, or actually do it,

while being paid less money. (Set forth

veratim above). Also, Brief of Chambers to

the 7th Circuit, p. 23. It is highly

unlikely an investigator could look into

that, without looking at promotions.

The opinion of February 28 fails to

follow Babrocky vs. Jewel Food Co, Retail

Meat Cutters Union, 773 Fed. 2d 857, 864

(7th Circuit, 1985) Rush vs. McDonald’s

Corp., (7th Circuit, 1992), 996 F. 2d 1104,

or especially Jenkins vs. Blue Cross Mutual

Hosp. Ins. Co., 538 F. 2d 164, 167 (7th

Cir, 1976). Pages 7 and 8 of Chambers’

Reply Brief to the 7th Circuit. This Court

should find that the purpose of the EEOC

claim is to set forth the operative facts,

to put the EEOC on notice of what to

investigate, and anything reasonably likely

to be observed in the course of such

investigation, may be included in the

subsequent civil complaint.

In Rush vs. McDonald’s Corporation,

(7th Circuit, 1992), 996 Fed 2d 1104,

located by Chambers in preparing her Reply

Brief. Rush alleged only termination

because she was black, in her EEOC charge

(page 1110 and n. 9). At the same time,

she submitted a 3 page separate affidavit

in support. The affidavit contained 3

sentences about a white person who had

advanced quickly, and asserted blacks

advanced less quickly. (p. 1110, and n.

23). Her Title VII suit alleged

termination, promotion, benefits, and

harrassment. This Court found’. the

termination, promotion and benefits to be

reasonably related.

In Jenkins vs. Blue Cross Mutual Hosp.

Ins. Co., 538 F 2d 164, 167 (7th Cir,

1976), an EEOC charge alleging a black

woman was fired "because of her Afro

hairstyle", was held to support a sex

discrimination claim. She mentioned in her

narrative that she was a leader of the

women, and the possibility a white woman

may have been denied a promotion for

associating with her. Though the claim on

its face was for race, this Court found the

reference in the narrative supported a

later suit based on sex. See Babrocky,

supra, at 864. Both Babrocky and Jenkins

were cited to the trial court at page 14 of

Se A 4, p. 14. If this Court articulates

the point sought, it will leave the 7th

circuit within the parameters of its own

prior decisions.

Chambers submits the Triai Court could

narrow Chambers claims so severely, only by

at "cr " analysis.

III. Wage Discrimination.

inability to show wage discrimination may

be due to the granting of summary judgment,

before Chambers had completed much

discovery. (App. A, pp. 20-23). See I

above.

IV. Heavier Work Loads, Hostile

Environment.

The first paragraph of the EEOC charge

raises heavier work loads. See II above--

having to basically supervise, while being

paid less, or no more than the males in her

section. Complaint, para. 11 (b). These

were documented in the statement of the

case, factual, above.

The Court acknowledges in the February

28 opinion (App. A, p. 23) that there is

perhaps enough evidence in the record to

survive summary judgment, as to hostile

envi ent, but stresses that the

argument was "not developed by Chambers on

appeal." ‘The trial court granted summary

judgment as to hostile environment, based

solely on the trial court’s view that it

was not embraced in the EEOC charge. (App-

B, p- 29, p. 61). Chambers did not argue

the elements of Meritor Savings Bank vs.

Vinson, 477 U.S. 57, and related cases,

because whether such elements were present

was not the basis of the summary judgment.

Normally, on appeal, a party should not be

required to cite law and evidence for every

aspect of her claim, whether it formed the

basis for the summary judgment or not.

Plaintiff did cite various cases addressed

to the reason relied upon by the trial

court (i.e., time barred) at pages 18-20 of

her Brief. She also pointed out that the

EEOC charge alleged chauvinism at the

highest levels; that women were referred to

in vulgar sexist language; and discussed at

the bottom of page 19, the harsh and

"rough" treatment as a manifestation of the

chauvinisn. She further addressed the

reasons relied upon by the trial court, at

pages 11-12 of her Reply Brief.

Chambers should, however, be allowed

to proceed as to hostile environment, under

Meritor, supra, and Harris vs. Forklift

Systems, Inc., 114 S. Ct. 367 (1993). The

case at hand was argued October 29, 1993,

and Harris was handed down November 39,

1993. arris

affirmed the holding in Meritor that when

the workplace is permeated with

"discriminatory intimidation, ridicule and

insult" that is "sufficiently severe or

pervasive to alter the conditions of the

victim’s employment and create an abusive

working environment", Title VII is

violated. (Harris, p. 370).

Harris went on, however, to also hold

that the conduct need not cause a "tangible

psychological injury." The conduct must

create an environment that a reasonable

person would find hostile or abusive, and

the victim must subjectively perceive the

environment to be abusive, but no "tangible

psychological injury"

must be shown. (370, supra).

The affidavit of Exec. vV.P. and

General Mgr. Ed Latimer (App. D, pp. 1-8)

shows an environment a reasonable person

would find abusive. So do various

statements by fellow workers, placed before

the Court in the affidavit of counsel,

enumerated above. The testimony of

Chambers in deposition, also articulated in

the Statement of the Case, Factual above,

including her -view that she was targeted

because she was a single woman, and the

fact Ms Knowles felt threatened) would

support a finding by the trier of fact,

that Ms. Chambers subjectively perceived

the environment as abusive toward her

personally. See also the cited problems

with Laura Knowles, Gray and Piburn, and

the discussion in para. 11 of the affidavit

of counsel, relating to attempts by ATA to

inaccurately characterize Chambers’

testimony.

The above deposition cites aside,

Chambers also notes that the Court in

Harris did not say the plaintiff had to

perceive the abuse aS due to the

discriminatory environment, just that she

had to perceive the environment as abusive.

If the environment was abusive to the

plaintiff, and other evidence shows it to

be caused in significant part by the

discriminatory factors, that should

suffice. If the father abuses' the

daughter, and the daughter abuses her

younger sister, the younger sister may or

may not know why it is occurring. The

pattern here is evident from the top down,

and Chambers should also be allowed to

discover. Even if the totality of

circumstances as of March 1, 1989 had not

indicated a good case, one must be able to

obtain discovery to know them, before it

can be determined. Saxton v. AT & T, 10

Fed 3rd 526.

Note Harris has not been read to be

limited to "sexual" or "harrassment". See

Atonio vs. Wards Cove Packing Co., Inc., 10

Fed 3rd 1485 (9th Cir. 1993), re race, and

Kopp vs. Samaritan Health System, Inc., 13

Fed 3rd 264 (8th Cir. 1993), addressing

abusive, nonsexual behavior.

It is difficult to conjecture what

mixes of fact and law the Court will seize

upon as deserving attention, in a Petition

for Certiorari. This case might be viewed

as timely, in the wake of Harris. The

whether the perceived abusive atmosphere

must be tied in the mind of the worker, to

the underlying discriminatory factors.

Where the Court on Appeal suggested there

was enough evidence in the record to

support the claim for hostile environment,

this Court may feel the need to intervene,

to prevent the failure to brief that point

on appeal from working against the female

employees, when the point was never part of

the trial court’s basis for granting

Summary judgment, and therefore, there was

no reason for Chambers to discuss Meritor

or Harris in her brief on appeal.

Vv. ive Di arge.

The Court on appeal has stated that

Chambers cannot show the conditions were

discriminatory, because she testified she

could not attribute them to sex

discrimination (App A, p. 27). There may

have been certain instances or aspects as

to which that was true, but see the various

deposition cites rebutting that, above.

The "showdown" was a fairly predictable

result of the atmosphere pervaded with

sexuality (Mi s Lbu a

Knowles) and the obvious threat Chambers,

as a young single attractive female,

therefore posed to Knowles. This

combination does not even support

discovery??

VI. Class Certification.

Allowing discovery, and/or recognizing

one or more Claims without such discovery,

should bring reversal of the certification

denial. The Court may also see this as an

appropriate case, in which to clarify (1)

stiietieibion of class representatives as

the normal course, even if not reversed on

the above grounds, and (2) the rights of

prospective class members to proceed, on

failure of this action.

Even if reversal did not occur as to

Ms Chambers, that should not be dispositive

on the separate issue, of whether (1) the

Class claim may be pursued, or (2) Ms

Chambers may litigate on behalf of the

Class. Newberg, Class Actions, Sec. 24.31.

Rule 23 (a). U.S. Parole vs. Geraghty, 445

U.S. 388, at 404 (1980). See Martin vs.

Thompson Co, CA Ala 1973, 486 F 2d 510, in

which the class had not been certified.

Consor vs. Occidental Life, DC Tex 1979,

469 F Supp 1110, confirms at footnote .

that whether certification had occurred is

beside the point. The fact that the

individual may act for the class, though

her claim may no _ longer exist, was

confirmed in Love vs. Turlington, DC Fla

1984, 733 F 2d 1562, and Barthel, et al vs.

Illinois Central, (Ill. 1978), 384 N.E. 2d

316, 322. See annotation paragraphs 524,

534 and 536 to USCA Rule 23. The 7th

Circuit addressed the issue in ftnote 7 of

Young vs. Lane, 922 Fed 2d 370, 373 (1991).

The correct step is to allow sub-

stitutes. Rule 23 (a). Taylor v. Kerr

DCNY, 1977, 73 FRD 691. Wright, Miller and

Cooper, p. 420, n. 52. Chambers sought a

hearing on substitution of class repre-

sentatives at the end of her Rule 59

Motion, and the normal course is for the

trial court to allow that.

ATA cited in its brief to East Texas

Motor Freight vs. Rodriguez, 431 U.S. 395.

In that case, the potential plaintiff did

not even move for certification by the time

of trial. Also, plaintiff was a city bus

driver, not a line driver, and a stipula-

tion of no discrimination in hiring

basically prevented him from representing

the line drivers. The case is not con-

parable. Chambers is not categorically

distinct form other female employees.

This case is an opportunity for the

Court to establish a presumption, that the

trial court should allow substitution of

Class representatives, where, unlike in

East Texas, the individual whose claim has

failed is fairly representative.

VII. Rule 11.

The Rule 11 order, issued for seeking

exemplary and liquidated damages under

Title VII, was entered December 4, 1991,

along with the summary judgment on the

remainder of the claim, after a November,

1991 effective date, for the statute

allowing compensatory and punitive damages

in Title VII actions, 42 U.S.C. 1981(a).

The new sec. 1981 provision has been held

applicable retroactively, to pending cases

that arose from conduct before the statute

was passed. i vs. nera

Hospital, M.D. Fla. 1992, 791 F Supp 862.

The issue was also addressed in Hutchison

vs. Amateur Electronics Supply, Inc., 840

F. Supp. 612, 619 (E.D. Wis 1993).

Even if the summary judgment as to the

remaining issues had been final as of the

November, 1991 statutory effective date, or

the Rule 11 judgment had been entered by

then, neither of which is true, a change in

the law pending appeal, relating to fees,

would be given effect. Bradley vs. School

Bd of City of Richmond, 416 U.S. 669, 715-

716. At worst, the Court would be con-

trolled by the statute in effect when it

rendered its decision, December 4, 1991.

Tho vs. H in ity of Cit f

Durham, 393 U.S. 268, 282. Bradley and

Thorpe were cited in Hutchison.

ese

sought damages not available on those

facts, Rule 11 should not apply to a damage

prayer. Title VII was available to

Chambers as a legal vehicle, and even if

the 1991 Act were unavailable to her, she

could have obtained punitive damages under

the law of Indiana on these facts. AS

addressed in Rush vs. McDonald’s Corp (7th

Cir 1992), 996 F. 2d 1104, 1122, Chambers

could recover punitive damages for

infliction of emotional distress from the

supervisor who aggrieved her, under Indiana

common law. She has alleged Knowles was on

her, and trying to get her to quit. And it

was not clear until Fields vs. Cummins

Employees Federal Credit Union, 540 N.E. 2d

631 (Ind. Ct. App. 1989), that a respondeat

superior recovery from the eaployer for

such tort, was barred by the workers cor-

pensation statute. Fields was cited at

page 1122 of Rush, and was handed down July

6, 1989, 4 months after Chambers dismissed

her claim for exemplary or liquidated

damages, from infliction of emotional

distress. Thus, under Rush, there was no

Rule 11 violation by Chambers. She dis-

missed before Fields, and Rush dismissed

some months after.

Chambers would have been required to

separate the common law claim out from the

Title VII count. But as she reads page

1122 of Rush, she was not at the time

seeking relief, that could not be recovered

from this defendant. The claim was not

"clearly barred by existing law." She did

have available a good faith argument to

seek such relief, but had it under the

wrong count.

The courts, in the 7th Circuit and

elsewhere, were somewhat tentative on the

punitive damages issue under Title VII, on

other grounds, around the time suit was

;

}

hese cinta

filed. The district court case of Bohen

vs. East Chicago, Indiana, 799 F. 2d 1180

showed at page 1244 that until the later

appellate opinion in Bohen came down in

August, 1986, the 7th Circuit had not

determined whether damages could . be

assessed. In Huddleston vs. Roger Dean

Chevrolet, 845 F. 2d 900 (11th Cir, 1988)

damages were allowed in a Title VII case.

Huddleston was cited and relied on in

Swanson vs. Elmhurst Chrysler, N.D. [I1l,

not reversed until August 16, 1989, at 882

F. 2d 1235.

Also, the 7th Circuit opinion in Bohen

characterized damages as unavailable in

Title VII cases "that do not result in

discharge." 799 F. 2d at 1184. If Char-

bers could show constructive discharge,

this language would appear on its face to

raise an inference allowing damages. While

much of the ambivalence in the courts about

—

damages centered around nominal damages, as

a vehicle for other remuneration, the un-

certainty led to the 1991 Act, which did

allow legal damages.

For class members, the punitive and

compensatory damages should also be

available for damages before 1991, for any

class certified after the effective date.

Reversing the Rule 11 assessment would

also be consistent with the new Rule, which

requires notice and an opportunity to res-

pond. Chambers reacted quickly here.

While some of these arguments were not

raised earlier, even the 7th circuit has

acknowledged the Court should consider

later arguments. Thompson vs. Duke, 940 F.

2d 195, and Mestever vs. Wisconsin Phy-

sician, 905 F. 2d 1077 at 1081 (7th Cir

1990).

Rial = = on a

apply. Also, here Rule 11 interfaces with

the retroactivity question as to the 1991

ae® .

Respectfully submitted,

Fa,

eg ee

Gordon B. Dempsey

Attorney of Record for

Becky Chambers

APPENDIX A

7th Circuit Opinion

Orne Se 8

BECKY CHAMBERS,

Plaintiff-Appellant,

Vv.

AMERICAN TRANS AIR, INC.,

Defendant-Appellee.

No. 93-1057.

United States Court of Appeals,

Seventh Circuit.

Argued Oct. 29, 1993.

Decided Feb. 28, 1994.

Rehearing and Suggestion for Rehearing

In Banc Denied May 4, 1994.

As Modified May 18, 1994.

Before CUMMINGS and CUDAHY, Circuit

Judges, and LEINENWEBER, District Judge.

The Honorable Harry 0D. Leinenweber,

District Judge of the United States

District Court for the Northern District of

Illinois, Eastern Division, is Sitting by

designation.

CUDAHY, Circuit Judge. Becky Chambers

brought this Title VII action against her

employer, American Trans Air, Inc. (ATA).

Chambers worked for ATA from October 1982

until July 1987, first as 4a contract

administrator and later as a crew planner.

In June 1987, Chambers wrote a letter to

her supervisor tendering her resignation,

effective July 18, "pending correction" of

two areas. Specifically, she demanded a

pay increase, and that the company hire

additional crew planners.

Rather than bowing to her demands,

Chambers’ supervisor accepted her

resignation. After filing a charge with

the Equal Employment Opportunity Commission

(EEOC), Chambers brought this suit,

claiming violations of Title VII, 42 U.S.C.

s 2000e et seq. As the district court

interpreted her complaint (and Chambers

does not here object to this

interpretation), it asserts seven claims,

averring that Chambers was twice denied

promotions and three times denied pay

increases to which she was entitled. She

also alleged that she was subject to

"heavier workloads, harsher discipline ...

and overt hostility from her supervisor" on

account of her sex, and that she was

constructively discharged. She also sought

certification as a class action. ATA moved

for, and the district court ultimately

granted, summary judgment against Chambers

on each of these claims. Having no

individual claim, the court also found that

Chambers could not serve as a class

representative. Finally, the court

sanctioned Chambers’ attorney under

Fed.R.Civ.P. 11 for pressing a claim for

liquidated and exemplary damages when Title

VIl permitted no such relief. We affirm

in all respects.

I. Rule 56(f)-

[1] A party opposing a motion for summary

judgment must "designate ‘specific facts

showing that there is a genuine issue for

trial.’ " Celotex Corp. vV- Catrett, 477

U.S. 317, 324, 106 S.Ct. 2548, 2553, 91

L.Ed.2a 265 (1986) (quoting Fed.R.Civ.P.

56(e)). The opposing party will typically

do this by submitting affidavits showing

that material facts are in dispute. The

court

here found that Chambers failed to show the

existence of a material dispute. But that

is not surprising, because Chambers never

put forward any evidence purporting to do

so. Instead, Chambers twice asked for more

time, though she never explained (as the

rules require) why more time was necessary.

The court therefore examined the record in

the case as it then existed, found that

Chambers had not shown the existence of a

material factual dispute and entered

summary judgment. Whether summary

judgment was appropriate, then, turns (at

least in part) on whether the court was

within its discretion in deciding the

Summary judgment motion when it did.

Chambers’ response to ATA’s motion for

Summary judgment was less than artful. She

first asked for an extension of time to

respond, until February 29, 1989, and the

court granted the extension. But that date

did not exist. When she did respond on

March 1 (which the court treated as

timely), she asked for

another extension of time. ATA opposed

that motion.

Federal Rule of Civil Procedure 56

gives a party opposing a motion for summary

judgment two choices. It can either

——————— rere

respond, filing an affidavit showing the

existence of a triable issue of fact,

Fed.R.Civ.P. 56(e), or, if it appears "from

the affidavits of a party opposing the

motion that he cannot for reasons stated"

show the existence of an issue of fact, the

court may allow further discovery.

Fed.R.Civ.P. 56(f).

The first time that Chambers asked for

an extension of time, the court apparently

overlooked her failure to submit an

affidavit explaining why more time was

needed. But, when Chambers asked for a

second extension of time, ATA objected,

arguing that Rule 56(f) required Chambers

to submit an affidavit explaining why more

time was necessary. Chambers responded to

this argument by moving to file a Rule

56(f) affidavit out of time, all the while

insisting that she already had enough

evidence to show the existence of a

SRE

material issue of fact. The court

responded by giving Chambers another 30

days to address the question whether her

action was barred by the statute of

limitations, but otherwise reserved

judgment. The court ultimately granted

summary judgment in

part, finding that some of Chambers’ claims

were barred by the statute of limitations.

As to those claims that were not, the court

denied her motion to file a Rule 56(f)

motion out of time as well as her motion

for an extension of time. It then treated

Chambers’ proffered Rule 56(f) affidavit as

a Rule 56(e)

response to the motion for summary

judgment and proceeded to decide the

summary judgment motion. It ultimately

granted summary judgment in favor of ATA on

the remaining claims.

Chambers here contends that the district

court abused its discretion in denying her

motion for an extension of time. It is

unrealistic, Chambers argues, to expect

Title VII plaintiffs represented by busy

attorneys in small law firms to respond to

motions for summary judgment before they

have completed

discovery. But as this court has noted,

the "fact that discovery is not

complete--indeed, has not begun--need not

defeat the motion. A defendant may move

for summary judgment at any time."

American Nurses Ass‘’n v. Illinois, 783 F.2d

716, 729 (7th Cir.1986).

While a motion for summary judgment should

not be granted unless it is abundantly

clear that no material issue of fact

exists, Rule 56 requires the party opposing

a summary judgment motion to come forward

with some evidence showing the existence of

such a factual dispute. If a party cannot

present "facts essential to justify his

opposition," Rule 56(f) requires that it

explain why. The court is then permitted

to deny the motion for summary judgment,

allow further discovery, or "make such

other order as is just."

Fed.R.Civ.P. 56(f). Chambers’ counsel says

that it is unrealistic to expect her to be

able to come forward with facts. Even if

this doubtful assertion is correct, Rule

56(f) expressly sets up a device by which

counsel is’ permitted to advance this

argument, the Rule 56(f) affidavit.

Because Chambers’ failed to file a timely

Rule 56(f) affidavit, the court’s refusal

to give Chambers any

further time for additional discovery was

not an abuse of discretion. See Otto v.

Variable Annuity Life Ins., 814 F.2d 1127,

1138 (7th Cir.1986), cert. denied, 486 U.S.

1026, 108 S.Ct. 2004, 100 L.Ed.2d 235

(1988).

Satisfied that the court was not required

to wait for Chambers to proffer any

further evidence before ruling on the

motion for summary judgment, the question

is whether, on the evidence the court had

before it, there existed a triable issue of

material fact. As noted, the district

court interpreted Chambers’ complaint as

asserting seven different claims: two

claims for failure to promote (1983 and

1987), three claims for failure to receive

a pay |

increase (1983, August 1986, December

1986), one "constructive discharge" claim

and one claim that she was subjected to

"harsher discipline, heavier work loads and

overt hostility" from her supervisor on

account of her sex. The court granted

summary judgment on some claims on statute

of limitations grounds and

on the rest for failure to show a genuine

issue of material fact.

II. Failure to promote.

With respect to the 1983 denial of

promotion claim, the district court found

that Chambers’ claim was barred by the

statute of limitations. Under Title VII,

a plaintiff must file a claim with the

Equal Employment Opportunity Commission

(EEOC) "within one hundred and eighty days

after the alleged unlawful employment

practice occurred" or be barred. 42 U.S.c.

Ss 2000e-

5(e). See Alexander v. Gardner-Denver

Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019,

39 L.Ed.2d 147 (1974). Chambers filed her

EEOC charge on January 5, 1988, and any

Claim for discrimination that occurred

before March 11, 1987 is therefore

time-barred.

She argues, however, that her failure to

promote claim from 1983 should nonetheless

survive on a "continuing violation" theory.

That doctrine contemplates that activity

occurring beyond the limitations period can

be challenged if it is part of a pattern of

discrimination that extended into the

limitations period. See generally Douglas

Laycock, "Continuing Violations, Disparate

Impact in Compensation, and Other Title VII

Issues", 49 Law & Contemp.

Probs. 53 (1986). But we need not decide

the "continuing violation" question

because, even if the 1983 claim is not

time-barred, it is outside the scope of

Chambers’ EEOC charge.

Filing an EEOC charge, of course, is a

prerequisite to suit under Title VII, in

order for the EEOC to have a chance to

settle disputes before lawsuits are

undertaken. Alexander, 415 U.S. at 44, 94

S.C&. OG 2047 As a result, to prevent

circumvention of the EEOC’s investigatory

and conciliatory role, only those claims

that are fairly encompassed within an EEOC

charge can be the subject of a resulting

lawsuit. See Babrocky v. Jewel Food Co. &

Retail

_Meatcutters, 773 F.2d 857, 863 (7th

Cir.1985). Accord Schnellbaecher v. Baskin

Clothing Co., 887 F.2d 124 (7th Cir.1989).

Chambers’ EEOC charge complains only about

unequal compensation, not failure to

receive promotions. The charge alleges

that male employees "were paid more money,"

and that Chambers "wrote asking that the

inequity be corrected."

Although Chambers argues_ that this

incorporates pay inequities resulting from

promotion denials, promotion is not

mentioned nor do we think it is fairly

implied. Therefore, since failure to

promote is outside the scope of the charge,

;

summary judgment was correctly entered

against Chambers on her claims that she was

denied promotions to which she was

entitled, both in 1983 and in

1987.

III. Wage discrimination.

Chambers claims that there were three

wage increases that

she should have received but did not, on

account of her sex, one in 1983 and one in

1986. The district court found that one of

Chambers’ three wage discrimination

claims--the one in 1983--was barred by the

statute of limitations. Pay increases are

typically continuing violations, because

each pay check at a discriminatory rate is

seen as the basis for a separate clain.

Bazemore v. Friday, 478 U.S. 385, 395-96,

106 S.Ct. 3000, 3006, 92 L.Ed.2d 315

(1986). But here Chambers was briefly

promoted (without a pay increase) in 1983,

and then demoted back to her previous

position. The district court therefore

correctly concluded that this allegedly

discriminatory action had no continuing

effect inside the limitations period.

But even if the claim were not time

barred, summary judgment was appropriate

for the same reasons that the court granted

summary judgment on the two 1986 claims:

Chambers has failed to show a material

factual dispute. In this connection,

Chambers simply puts forward no evidence of

a pay inequity. Plaintiff’s brief

essentially admits as much, insisting that

it should be allowed further discovery to

adduce supporting evidence. "There were

probably various wage decisions about her,

of which she had no personal knowledge.

Ms. Chambers must be allowed, at a minimun,

to compare herself to males of similar

experience and ability." P1l.Br. at 28.

a EOI 85S fe Nel i

But as noted, in light of the plaintiff’s

Rule 56 deficiencies, the district court

was within its discretion

in granting summary judgment without

allowing further discovery.

The plaintiff’s claim is that she was

entitled to three pay increases, but was

denied them on the basis of her sex. A

plaintiff claiming disparate treatment must

(1)- put forward direct evidence of illegal

motive linked to the challenged employment

decision, or (2) establish illegal motive

indirectly through the three-step model of

McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 $.Ct. 1817, 36 L.Ed.2d 668 (1973).

As a first step in the McDonnell Douglas

process, Chambers must show that as a

female she was treated differently than a

similarly situated male.

There are some affidavits showing general

gender discrimination at ATA. For example,

Re ss te

Edward Latimer, a former vice president of

ATA, testified in an affidavit that sexism

waS pervasive in the corporation, and that

some women managers were paid less than

male managers in comparable positions. But

there is no link —_— this information to

employment decisions involving Chambers.

Liability under Title VII does not turn on

the bigotry of company managers unless that

bigotry resulted in injury to the

plaintiff. A showing of other instances of

discrimination in the company may have

evidentiary value, but it is not a

substitute for a showing of injury to the

plaintiff. There therefore needs to be a

link between an ATA’s manager’s alleged

prejudice, and the decisions that Chambers

is challenging. See Shager v. Upjohn, 913

F.2d

398, 405 (7th Cir.1990).

Lacking direct evidence, we turn to the

;

]

question whether, under the burden-shifting

analysis set out in McDonnell Douglas,

Chambers can survive the summary judgment

motion. We find that she cannot. Because

there is no evidence in the record showing

that Chambers was treated any differently

than a similarly situated male, based on

the record Chambers cannot make out a prima

facie case of discrimination. This, of

course, may be due to the fact that the

court decided the summary judgment motion

before Chambers conducted much discovery.

The record contains no evidence of what any

of ATA’s employees were paid. Chambers is

therefore unable to point to payroll

records, pay stubs or any other evidence to

suggest that she was paid less than

Similarly situated men.

Nor is it even clear that, had the court

allowed the plaintiff an opportunity for

further discovery, it would have helped

Oi: i sl

Chambers’ case. As the district court

noted, Chambers herself testified in a

deposition that she had no reason to

believe that she failed to receive any of

the three wage increases because she is a

woman. While this statement would not

entitle ATA to summary judgment ae; in

fact, the rest of the record contained

evidence sufficient to

create a triable issue ie iineies fact, in

the absence of any such evidence the

district court correctly granted summary

judgment in favor of the defendant on these

claims.

IV. Hostile environment.

Chambers also alleges that she was

subject to "harsher discipline, heavier

work loads and overt hostility" from her

Supervisor. Title VII, of course, is not

limited to economic discrimination, but

rather is intended "to strike at the entire

EEE

spectrum of disparate treatment of men and

women in employment, which includes

requiring people to work in a

discriminatorily

| hostile or abusive environment." Meritor

Savings Bank v. Vinson, 477 U.S. 57, 64,

106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986).

The Court recently reaffirmed this

principle, and rejected the rule, adopted

by a number of circuit courts, under which

an employee needed to show that she

suffered psychological harm in order to

make out a hostile work environment clain.

Harris v. Forklift Systems, --- U.S. ~~~",

114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

The EEOC’s new proposed guidelines

emphasize that "title VII affords employees

the right to work in an environment free

from discriminatory intimidation, insult,

and ridicule." 58 Fed.Reg. 51266, 51267

(1993) (proposed 29 C.F.R. ss 1609.1,

ee ee

1609.2). Thus, under the _ proposed

guidelines, harassing “conduct may be

challenged even a2 the complaining

employee(s) are not specifically intended

targets of the conduct." Id. (proposed 29

C.F.R. Ss 1609.1(e)).

Chambers insisted that she was subjected

to "harsher discipline, heavier work loads

and overt hostility” from her supervisor.

The district court granted summary judgment

for ATA on all of these claims, concluding

that these issues were first raised in

Chambers’ reply brief. We agree that no

allegation of harsher discipline or heavier

work loads appears in her complaint or EEOC

charge. But we disagree with this

conclusion insofar as it relates to the

allegation of "overt hostility."

Chambers’ EEOC charge alleges that

"females, including those in management,

were routinely referred to in vulgar sexist

language in their absence, by the highest

levels of management." In our view, this

allegation fairly raises the issue of

"hostile work environment."

In addition, the record contains some

evidence to support this charge. For

example, Edward Latimer, the former vice

president of ATA, said in his affidavit,

that the CEO of the company "routinely

referred to the chief stewardess as the

‘head screw’." Latimer’s affidavit also

alleges that the CEO referred to other

female employees in sexist, vulgar and

patently offensive terms. We therefore

find that Chambers did fairly allege a

hostile work

environment claim in her EEOC charge, and

that there is perhaps enough evidence in

the record on this account for her to

survive the motion for summary judgment.

But even so, Chambers has not pursued a

TLE REISS se ie Toe EEE a ...

00, OEE

See eee

hostile work environment

Claim on appeal. Chambers’ attorney argued

primarily (and in our view unpersuasively)

that the language in Chambers’ EEOC charge

alleging that she was "required" to check

the work of co-employees raised the issue

of harsher discipline and heavier work

loads. P1.Br. at 18-20. Chambers’

appellate brief also contends that because

the EEOC charge alleges "chauvinism," the

"overt

hostility" claim is preserved.

As noted, there may be evidence in the

record supporting a hostile work

environment claim under the framework the

Supreme Court laid out in Meritor and

refined in Harris. But while the passing

references on appeal to "overt hostility"

can be viewed as an attempt to raise this

issue, they are insufficient. "A party

urging us to reverse a district court’s

judgment has an obligation to argue why we

should reverse that judgment, and to cite

appropriate authority to support that

argument." United States v.

Berkowitz, 927 F.2d 1376, 1384 (7th

Cir.1991). Chambers’ counsel never once

cited to Meritor or any other hostile work

environment case. "We repeatedly have nade

clear that perfunctory and undeveloped

arguments, and arguments that are

unsupported by pertinent authority, are

waived." Berkowitz, 927 F.2d at

1384. While there may be, on these facts,

enough evidence of hostile work environment

to entitle a plaintiff to go to trial, the

papers filed both in the district court and

on appeal make only passing reference to

this claim. While the arguments below may

have sufficed to preserve the issue for

appeal, we will not reverse the entry of

summary judgment based on skeletal snippets

argument without citation to authority.

V. Constructive discharge.

The district court’ granted summary

judgment on Chambers’ claim that she was

constructively discharged. In her letter

of resignation, Chambers indicated that she

would resign unless she received a pay

increase and additional crew planners were

hired. But in order to state a claim for

constructive discharge, a plaintiff needs

to show that her working conditions were so

intolerable that a reasonable person would

have been compelled to

resign. H Vv. lona a

Society, 819 F.2d 824 (7th Cir.), cert.

denied, 484 U.S. 964, 108 S.Ct. 454, 98

L.Ed.2d 394 (1987). The district court

found as a matter of law that the

conditions were not so intolerable so as to

require a reasonable person to resign.

Entry (May 23, 1991) at 21.

We affirm for a slightly different

reason. The constructive discharge

doctrine is a judicially-created response

to the fact that Title VII, as originally

enacted, afforded no damages remedy to a

harassment victim for emotional trauma or

even for medical expenses she may have

incurred. Thus, courts have said that

where conditions are so intolerable that a

reasonable person would feel compelled to

resign, a plaintiff may do that, and then

sue for reinstatement and back pay.’

Where work conditions are intolerable,

under the constructive discharge doctrine

a plaintiff can resign, and then bring suit

against her employer as if she were fired.

But to be actionable under Title VII the

work conditions need to be more than merely

The Civil Rights Act of 1991, in any event, amends Title

allow a damages remedy.

e |

intolerable--they need to be intolerable in

a discriminatory way. Chambers demanded

that she receive a pay increase and that

the company hire additional workers. The

district court found that the company’s

refusal to acquiesce did not, as a matter

of law, make Chambers’ working conditions

intolerable. Perhaps that is correct, but

even more fundamentally, as we explained in

our discussion of Chambers’ wage claims (at

6-8), there is no showing that ATA’s

decisions were discriminatory. Here too,

Chambers testified in her deposition that

none of these conditions had anything to do

with her sex and that she had no facts

Suggesting that they did. That being the

case, those conditions, even if

intolerable, do not give rise to a cause of

action under Title VII. VI. Class

certification.

Having entered Summary judgment in favor

of ATA on all of

Chambers’ individual claims, the district

court denied Chambers’ motion for class

certification as moot. Because we affirm

the entry of summary judgment, we follow

suit on the class action certification. An

individual bringing an action on behalf of

a class must be a member of the class and

"possess the same

interest and suffer the same injury" as

members of the class. E.g. Schlesinger v.

Reservists Committee to Stop the War, 418

U.S. 208, 216, 94 S.Ct. 2925, 2929-30, 41

L.Ed.2d 706 (1974). Having no individual

cause of action, Chambers cannot represent

a class.

VII. Sanctions.

The district court imposed Rule 11

sanctions in the amount of $1,517 against

Chambers’ attorney for pressing a Claim for

liquidated and exemplary damages. When the

ree ee

complaint was filed in 1988 (before the

Civil Rights Act of 1991), it was clear

that Title VII did not allow the recovery

of liquidated and exemplary damages. Bohen

v. East Chicago, Indiana, 799 F.2d 1180,

1184 (7th Cir.1986). Rule 11 requires

that all pleadings be signed, and that the

Signature "constitutes a certificate by the

Signer that ... to the best of the signer’s

knowledge, information, and belief formed

after reasonable inquiry it is well

grounded in fact and warranted by existing

law or a good faith argument for the

extension, modification, or reversal of

existing law." Gordon Dempsey,

Chambers’ attorney, conceded that he did

not make a reasonable inquiry into the

legal basis for the claim before filing the

complaint, describing tthe claim for

liquidated and exemplary damages as a

"drafting oversight." On ATA’s motion, the

district court imposed sanctions against

him, concluding that Rule 11 sets

out an objective test, and observing that

an "empty head but a pure heart is no

defense." Entry (October 20, 1992) at 18

(quoting Thornton v. Wahl, 787 F.2d 1151,

1154 (7th Cir.), cert. denied, 479 U.S.

851, 107 S.Ct. 181, 93 L.Ed.2d 116 (1986)).

Dempsey responds in his appellate brief

by saying that the district court, in

attributing his error to an "empty head,"

was "a bit harsh". Pl.Br. at 32. Dempsey

continues (referring to himself in the

third person) in his own defense:

Ms. Chambers’ lawyer was within 3 points

of the cut-off for National Merit finalist,

a state debate champion, recipient of a

George F. Baker Trust Fund (see letterhead,

Harvard Business School) full scholarship

to one of the 3 or 4 most selective

colleges in his state [Wabash,

interestingly, an all male

college] and a stronger student there GPA

wise than all but one of his Classmates and

fraternity brothers now practicing with

ATA’s highly prestigious law firm, Baker &

Daniels. He was a stronger student by the

Same standard, than all but one of his

Classmates now practicing with any of the

state’s 3 largest law firms. He had 2

varsity letters in a collision sport, and

was president of what may well have been

the strongest fraternity on campus. He

Scored in the 95th percentile on the

general background portion of his law

boards. He was trained at a law school,

where the average LSAT’s are shown as

exceeded by only 4 schools, in the U.S.

News survey of March 19,1990 [Duke]. He has

tried 31 jury trials in various parts of

Indiana, and chaired 4 trial seminars,

attended by 50-350 lawyers.

Id. at 33 (brackets in original).

But unfortunately for Mr. Dempsey, this

long list of accolades and accomplishments

provides no defense. As we noted in

Thornton, the "[tJest under Rule 11 is

objective." The point is that "every

lawyer must do the necessary work to find

the law before filing the brief."

Thornton, 787 F.2d 1151, 1154 (7th

Cir.1986). That admonition applies even to

lawyers who have two varsity letters in a

collision sport and who were presidents of

their fraternities. Mr. Dempsey failed to

comply with the rule’s clear edict, and

the district court was correct to impose

sanctions.

ATA finally moves this court to sanction

Dempsey pursuant to

Fed.R.App.P. 38 for bringing this appeal.

But Rule 38 sanctions are appropriate only

= — 6 UD ——_= we

CNT REE ee . ers

when an appeal is frivoious. While we

affirm the district court, we do not find

the appeal to be a frivolous one, and

therefore decline the invitation to impose

Rule 38 sanctions.

VIII. Conclusion.

For the reasons explained herein, the

judgment of the district court and the

order imposing Rule 11 sanctions are

AFFIRMED. The request for Rule 38

sanctions is DENIED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

APPENDIX B

District Court Entries

——— ae i

UNITED STATES DISTRICT CouRT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

BECKY CHAMBERS,

Plaintiff,

vs. IP 88-1203-c

AMERICAN TRANS

AIR, INC.,

Fe ae eet et ee ee ee ee

Defendant.

PART DEFENDANT’S MOTION FO

I. Introduction

This cause comes before the court on

Plaintiff Becky Chambers’s Motion for

Class Certification and on defendant

American Trans Air, Inc.’s Motion for

Summary Judgment. Plaintiff Chambers,

who used to be an employee of Americar

Trans Air, Inc. (ATA), filed a complaint

On October 11, 1988, against her former

employer alleging sex discrimination in

violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C.

§§ 2000e - 2000-17. The complaint

alleges that ATA discriminated against

Chambers on the basis of sex "with

respect to compensation, terms,

condition, privileges and opportunities

of employment" and that this resulted in

constructive discharge. See Plaintiff’s

Complaint, qq 8-9. The plaintiff also

filed a Petition to Certify Action as

Class Action with a supporting brief.

In response to the petition for

class certification, ATA filed

Defendant’s Memorandum in Opposition to

Petition for Class Certification, as well

as a supplemental memorandum. The

defendant argues that the plaintiff does

not meet any of the prerequisites for the

certification of a class action under

Federal Rule of Civil Procedure 23.

;

| Furthermore, ATA filed a Motion for

, Summary Judgment arguing that the

; plaintiff’s individual claims are barred.

| If the plaintiff’s individual claims

4 cannot survive a summary judgment motion,

then she is clearly not an adequate class

representative, making class

certification inappropriate. While the

defendant’s motion for Summary judgment

raises several arguments, this court

ordered the parties to complete the

whether the discrimination charge was

timely filed with the Equal Employment

Opportunity Commission (EEOC). The

issues raised in the rest of the motion

for summary judgment were taken under

advisement pending a ruling on the

timeliness issue. Entry On Motion For

: briefing as to the issue regarding

Respond To Summary Judgment Motion, March

20, 1989. Thus, this entry will only

address the merits of the timeliness

issue raised in the defendant’s summary

judgment motion. This court will not

address the Motion For Class Cerification

until the entire summary judgment motion

is decided, which will determine if the

plaintiff has any viable individual

claims. This court has jurisdiction over

this cause of action pursuant to 42

U.S.C. § 2000e-59(f)(3).-

Il. Standard of Review

Summary judgment, pursuant to

Federal Rule of Civil Procedure 56, is

properly granted only when there is no

genuine issue of material fact and the

moving party is entitled to judgment as a

matter of law. Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). In making this

determination, this court views the

record in the light most favorable to the

party opposing the motion. See Morgan v.

Harris Trust & Sav. Bank, 867 F.2d 1023,

1026 (7th Cir. 1989) (per curiam). The

moving party has the initial burden of

demonstrating that absence of a genuine

issue of material fact. Cc t me

477 U.S. at 323. The non-moving party

must then "’set forth specific facts

showing that there is a genuine issue for

trial.’" Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986) (quoting

Fed. R. Civ. P. 56(e)). The non-movant

cannot rely on conclusory allegations.

Cain v. Lane, 857 F.2d 1139, 1142 (7th

Cir. 1988).

"‘A]t the summary judgment stage the

judge’s function is not. . - to weigh

the evidence and determine the truth of

the matter but to determine whether there

is a genuine issue for trial." Anderson,

477 U.S. at 249. A court must enter

summary judgment against the non-moving

party if, after adequate time for

discovery, the party "fails to make a

showing sufficient to establish the

existence of an element essential to that

party’s case, and on which that party

will bear the burden of proof at trial."

Celotex Corp., 477 U.S. at 322. "In such

a situation, there can be ‘no genuine

@ i M@i EnpmptewwmwtPtPteieeeeqgeEe«getieet'sewnta- a a

issue as to any material fact,’ since a

complete failure of proof concerning an

essential element of the nonmoving

party’s case necessarily renders all

other facts immaterial." Id. at 322-23.

Furthermore, a factual dispute must be

outcome determinative to preclude summary

judgment. Donald v. Polk County, 836

F.2d 376, 379 (7th Cir. 1988). Thus, the

mere assertion of a factual dispute

cannot defeat the motion for summary

judgment. Anderson, 477 U.S. 242.

"Where the record taken as a whole could

not lead a rational trier of fact to find

for the non-moving party, there is no

‘genuine issue for trial.’" Matsushita

475 U.S. 574, 587 (1986). The Seventh

Circuit has interpreted the language in

Matsushita to mean that a summary

judgment motion should be treated "like a

trial motion for a directed verdict and

that ‘genuine’ allows some quantitative

determination of the sufficiency of the

evidence." Collins v. Associated

Pathologists, Ltd., 844 F.2d 473, 476

(7th Cir.), cert. denied, 488 U.S. 852

(1988); see also Herman v. City of

Chicago, 870 F.2d 400, 404 (7th Cir.

1989); Spellman v. Commissioner of

Internal Revenue, 845 F.2d 148, 152 (7th

Cir. 1988). "The trial court still

cannot resolve factual disputes that

could go to a jury at trial, but weak

factual claims can be weeded out through

summary judgment motions." Collins, 844

F.2d at 476.

Summary judgment is frequently not

an appropriate resolution in a Title VII

case. See Holland v. Jefferson Nat’1l

Life Ins. Co., 883 F.2d 1307, 1312 (7th

ithe Bee oe ee

Cir. 1989); Powers v. Dole, 782 F.2d 689,

694 (7th Cir. 1986). However, summary

judgment is not automatically

inappropriate simply because issues of

discriminatory motive or intent are

raised. See Holland, 883 F.2d at 1312.

As the Seventh Circuit has counselled, a

court must approach a question of summary

judgment in a discrimination case with

special caution. Id. at 1313.

III. Background

Plaintiff Chambers alleges in her

complaint that she was discriminated

against with respect to "compensation,

terms, conditions, privileges and

opportunities of employment" and that she

was constructively discharged. The

plaintiff testified in her deposition

that "terms, conditions [and] privileges"

referred only to her compensation, and

nea!

"opportunities of employment” referred

only to promotions. In June 1987,

Chambers informed ATA that she would

resign from her job unless ATA corrected

its allegedly discriminatory conduct.

According to the plaintiff’s complaint,

ATA "refused to refrain from said illegal

acts, practices and conduct” and so

Chambers was "compelled to resign her

position at [ATA], or was terminated."

In the Plaintiff’s Brief In Reply To

Motion For Summary Judgment Issue:

Timeliness Of Charge, the plaintiff also

asserted that she was subjected to

"heavier workloads, harsher discipline,

. . and overt hostility from her

supervisor, because of her sex.”

Specifically, Chambers challenges

two promotion decisions--one promotion of

a lesser qualified male to Contract

Administrator Supervisor in 1983 and a

second promotion when Lon Lett was made

Crew Planning Supervisor on March 20,

1987. Chambers also identified three

times when she believed that she should

have been given a pay increase: the

first time was in 1983 when she was

promoted to Contract Supervisor, the

second time was in August 1986 when she

went from a Crew Planner in Training to

Crew Planner, and the third time in

November-December 1986 when she acted as

"senior" Crew Planner and when Lett left

around Christmas.

On June 29, 1987, Chambers submitted

a written resignation stating that she

would resign on July 16, 1987, unless her

Salary was increased by $500.00 per year

more than the currently highest Crew

Planner and unless one or two more full-

time Crew Planners were hired. The

letter sets forth Chambers’s factors

prompting her tender of resignation: the

part-time temporary help was incompetent;

management was not responding to

complaints; the work load was unbalanced;

the part-time temporary help took days

off during the busiest times; previously

promised help was not received; a verbal

warning to the entire group should have

been done on an individual basis; and

there were conflicts with scheduling. On

July 8, 1987, Chambers’s resignation was

accepted, and this was the last day that

she worked for ATA.

On January 5, 1988, Chambers, by

counsel, filed a charge of sex

discrimination with the EEOC. On January

7, 1988, proceedings were instituted with

a parallel state agency, the Indiana

. 2 . .

Civil Rights Commission. At her request,

the EEOC issued a Notice of Right to Sue

on July 13, 1988. Chambers filed this

cause of action on October 11. 1988.

IV. Timeliness of EEOC Charge

The filing of charges with the EEOC

and the receipt of a right to sue letter

are necessary prerequisites to pursuing

any Title VII claim in federal district

court. Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974); Movement for

Opportunity & Equality v. General Motors

Corp., 622 F.2d 1235, 1238 (7th Cir.

1980). Timely filing with the EEoc is

not a jurisdictional prerequisite to the

maintenance of a Title VII suit; however,

the time requirements do function like

statutes of limitations that may bar

untimely claims. Zipes v. Trans World

Airlines, Inc., 455 U.S. 385 (1982)

(involving administrative deadlines in

suits against private employers); cf.

Rennie v. Garrett, 896 F.2d 1057 (7th

Cir. 1990) (overruling Sims v. Heckler,

725 F.2d 1143 (7th Cir. 1984) and

extending Zipes to cover suits against

federal employers).

Generally, a claimant must file a

Title VII claim with the EEOC within 180

days of the occurrence of the alleged

unlawful employment practice. 42 U.S.C.

§ 2000e-5(e). However, if the claimant

initially institutes a proceeding with a

state or local agency that possesses the

authority to grant or seek relief from

the alleged discrimination, the time

limit for filing with the EEOC is

extended to 300 days after the

discriminatory act. Id.; e.g. E.-E.0.C.

v. Commercial Office Prods. Co., 486 U.S.

’

‘

‘i

‘

107, 109-110 (1988); Sofferin v. American

Airlines, Inc., 923 F.2d 552, 553 (7th

Cir. 1991). The plaintiff argues and the

defendant no longer disputes that the

300-day time period applies to the

plaintiff’s claim. Chambers filed her

charge with the EEOC on January 5, 1988;

thus, any claim for acts occurring prior

to March 18, 1987, fall outside the 300-

day period. The defendant does argue,

however, that all allegedly

discriminatory actions that took place

prior to March 18, 1987 are barred; while

the plaintiff argues that such acts are

not barred because they are "continuing

violations."

An exception to the limitations

period is made for "continuing

violations;" however, this concept was

narrowed and redefined in United Air

Lines, Inc. v. Evans, 431 U.S. 553

(1977). In Evans, United Airlines’s

seniority system was challenged as

discriminatory in violation of Title VII.

The Court rejected the argument that

present effects of past discriminatory

acts occurring outside the EEOC filing

period could be the basis for recovery

under Title VII. The dispositive inquiry

was determining whether a present

violation existed. Id. at 558. The

Court wrote as follows:

Respondent emphasizes the

fact that she has alleged a

continuing violation. United’s

seniority system does indeed

have a continuing impact on her

pay and fringe benefits. But

the emphasis should not be

place on mere continuity; the

critical question is whether

any present violation exists.

Id. (emphasis in original).

Furthermore, the filing period runs

from when the employee is notified of a

discriminatory employment decision, not

from when the employee is affected.

Delaware State College v. Ricks, 449 U.S.

250 (1980) (holding that the crucial

point for determining the running of the

limitations period is the time of the

discriminatory acts, not the time at

which the consequences of the acts become

most painful); Dugan v. Ball State Univ.,

815 F.2d 1132, 1134 (7th Cir. 1987): ct.

Lowell v. Glidden-Durkee, 529 F. Supp. 17

(N.D. Ill. 1981) (applying Ricks to

allegations of constructive discharge).

Furthermore, a claim that a

discriminatory act occurred prior to the

statute of limitations, but had an effect

that occurred during the limitations

period, is not timely. Lorance v. AT & T

Technologies, Inc., 490 U.S. 900 (1989).

The Seventh Circuit Court of Appeals

has set forth the following three

Situations to which a continuing

violation theory may be applied.

In the first situation,

"continuing violation" is the

term used to describe the rule

that a violation of Title VII

occurs, and triggers the time

limit for filing a charge, when

the employee knew or should

have known that he or she was

discriminated against. This

rule is applied in cases,

usually involving hiring or

promotion practices, where the

employer’s decision-making

process takes place over a

period of time, making it

difficult to pinpoint the exact

day the "violation" occurred. .

The second situation is

[when] the employer’s express,

openly espoused policy was

alleged to be discriminatory. .

In the third situation,

the plaintiff charges that the

employer has, for a period of

time, followed a practice of

discrimination, but has done so

covertly, rather than by way of

an open notorious policy ...

- In such cases the challenged

practice is evidenced only by a

series of discrete allegedly

discriminatory, acts.

Stewart v. CPC Int’l, Inc., 679 F.2d 117,

120-21 (7th Cir. 1982).

Chambers has alleged that she was

discriminated against in violation of

Title VII with respect to her wages,

discharge and promotions. This court

will address each allegation separately

to determine if she has sufficiently

alleged a continuing violation or has

otherwise met the 300-day filing

requirements.

First, Chambers testified in her

deposition that she believed that there

were three times that she should have

been given a pay increase: the first

time was in 1983 when she was promoted to

Contract Supervisor, the second time was

in August 1986 when she went from a Crew

Planner in Training to Crew Planner, and

the third time in November-December 1986

when she acted as "senior" Crew Planner

and when Lett left around Christmas. Her

last salary increase prior to her

resignation in July 1987 was in October

1986, when she received an increase of

$2,000.00.

Generally, discrimination in the

payment of wages is a continuing

violation. See, e.g., Bazemore v.

Friday, 478 U.S. 385, 395-96 (1986) (per

curiam) ("Each week’s pay check that

delivers less to 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."); Jenkins v. Home Ins. Co., 635

F.2d 310 (4th Cir. 1980) (although

defendant contended that the filing

Period commenced when Plaintiff learned

about a wage discrepancy, court held that

wage discrimination was a continuing

violation that continued through every

two-week pay period); Danielson v. DuPage

4rea Vocational Educ. Auth., 595 F. Supp.

27 (N.D. Ill. 1984). Thus, each pay

check at the allegedly discriminatory

rate may be the basis for a separate

violation under Title VII as long as the

employee is paid at that rate during the

limitations period. cf, Orahood v. Board

of Trustees, 645 F.2d 651 (8th Cir. 1981)

(alleged violation as to Orahood’s pay

when she was acting director ceased when

she returned to her former position, so

there was no present violation on which

to base the continuing violation

allegations).

It appears from the record that

Chambers’s pay checks during the 300 day

filing period, i.e., after March 18,

1987, were at the allegedly

discriminatory rate. Thus, she has

sufficiently stated a timely salary

discrimination claim because the last act

of alleged discrimination, i.e., the

receipt of a discriminatory pay check,

occurred within 300 days of the filing of

the EEOC charge. She has alleged the

requisite present violation of the

statute on which to base a continuing

violation as to the two instances in 1986

when she felt that she did not receive a

pay raise due to her sex. However,

Chambers has not sufficiently shown that

the lack of a raise in 1983 was connected

to this alleged pattern of discrimination

three years later. In 1983, Chambers was

employed in contract administration at

nee OTS

ATA; in 1986, she was in crew planning.

There is no indication that the person

who made the decision (or failed to make

the decision)* whether to give Chambers a

raise in 1983 was also the person who

made such decisions as to Chambers in

1986. Furthermore, Chambers was Contract

Supervisor for only a 90-day probationary

period in 1983 after which she was

demoted back to her previous position.

If Chambers was discriminated against in

1983 as to her wages, then this violation

ceased as soon as she was demoted. See

id. Thus, the 1983 wage discrimination

Claim is barred by the limitations

period; the 1986 wage discrimination

claims while Chambers was employed in

* It appears that Chambers did not

actively request a pay raise as to at

least some of these incidents, but rather

that she felt that she deserved a raise

due to increased responsibility and ATA

did not offer her such a raise.

crew planning are not barred by the

limitations period since they are

continuing violations and her receipt of

pay checks after March 18, 1987, provide

the requisite present violation during

limitations period.

With regard to the constructive

discharge claim, Chambers informed her

employer in a writing dated July 29,

1987, that unless she received an

increase in salary, then she would

resign. ATA accepted her resignation on

July 8, 1987, and that was the last day

that Chambers worked for ATA. As

discussed earlier, the filing period

commences on the date that an employee is

notified of his or her impending

discharge. See Ricks, 449 U.S. 250;

Chardon v. Fernandez, 454 U.S. 6 (1981)

(per curiam). Furthermore, this "date of

notification" rule also applies to cases

involving allegations of constructive

discharge. Lowell, 529 F. Supp. 17.

The defendant argues that the

constructive discharge claim fails

because it is based upon an ultimatum by

Chambers that ATA rectify its past Title

VII violations that occurred outside of

the filing limitations or she would

resign. As ATA points out, the Supreme

Court has held that "[mjere requests to

reconsider . . . cannot extend the

limitations periods applicable to the

Civil rights laws." Ricks, 449 U.S. at

261, n.15. In this case, however,

Chambers’s decision to resign was not

merely based upon prior alleged

discriminatory acts that occurred outside

the statutory time period. This court

has already held that the Plaintiff’s

compensation discrimination claims

regarding her 1986 wages were continuing

violations that were based upon acts,

i.e., receipt of pay checks, occurring

within the statutory time period. Thus,

her constructive discharge claim does not

operate to expand the limitations period,

but rather is based upon acts that fell .

within the statutory time period.

Furthermore, her resignation was clearly

within the 300-day time period, which

makes her constructive discharge claim

timely.

The plaintiff complains that she was

discriminatorily denied two promotions:

cne promotion of a lesser qualified male

to Contract Administrator Supervisor in

1983 and a second promotion when Lon Lett

was made Crew Planning Supervisor on

March 20, 1987. The defendant

acknowledges that the March 20, 1987,

promotion claim is timely.” Thus, this

court will only address the timeliness of

the 1983 promotion. The denial of

promotion (or demotion) in 1983 obviously

occurred more than 300 days from the

filing of her EEOC charge in 1988; thus,

it is barred unless it is deemed to be a

"continuing violation." The plaintiff,

however, has failed to show that the 1983

promotion was part of a pattern of

discriminatory acts that would support a

continuing violation theory. In 1983,

* The defendant notes that Lett was

promoted to this position in March and

demoted in April. The position was not

filled after Lett’s demotion.

Furthermore, it appears that Chambers did

not believe that anyone should have been

promoted to supervisor since it was only

a two-person department. While these

facts may very well go to the merits of

Chambers’s claim, this court is only

addressing the timeliness hurdle in this

entry, of which the plaintiff has

Cleared.

Chambers was denied an opportunity to

fill (or continue to fill) a specific

higher-level position. This was not a

situation in which an employee was denied

a series of promotions or was regularly

denied a promotion that was continually

available to those in her position.

Rather, this was a discrete, individual

instance that, if discriminatory,

commenced the running of the statutory

filing period. See Patterson v. General

Motors Corp., 631 F.2d 476 (7th Cir.

1980), cert. denied. 451 U.S. 914 (1981)

(holding that two applications for

promotion that were denied for allegedly

discriminatory reasons did not constitute

a continuing violation). Thus, the 1983

promotion claim is time barred.

Finally, the plaintiff complains

that she was subjected to harsher

discipline, heavier work loads and overt

hostility from her supervisor. The

defendant argues, however, that Chambers

only raised these claims in her response

brief to the motion for summary judgment,

not in her EEOC charge or her complaint

in this cause. This court agrees with

the defendant that the plaintiff did not

raise these claims in the EEOC charge or

judicial complaint, and thus, it follows

that these allegations are barred as

untimely.

V. Conclusion

Based upon the above-stated reasons,

this court GRANTS the defendant’s motion

for summary judgment as to the

Plaintiff's failure-to-promote Claim and

discriminatory wage claim based upon acts

that occurred in 1983 because such claims

are time-barred. The court also GRANTS

the defendant’s motion for summary

judgment as to any claims that the

plaintiff may have tried to assert

regarding allegations of harsher

discipline, heavier work loads and overt

hostility from supervisors; these claims

are also time-barred. This court DENIES

the defendant’s motion for summary

judgment on the timeliness issue as to

the remaining specific allegations of

discrimination based upon this court’s

determination that the plaintiff has met

the statutory filing requirement as to

these acts. The remaining issues raised

by the defendant in its motion for

summary judgment will be addressed in a

later entry after this court has ruled on

the plaintiff’s Motion For Enlargement Of

Time Within Which To Respond To Summary

Judgment, which was taken under

Ln 2 4D £5 2.

foe tet

advisement pending the issuance of this

entry.

Dated this day of May 1991.

John Daniel

Tinder, Judge

United

States District Court

Copies to:

Gregory J. Utken

David W. Miller

Baker & Daniels

300 North Meridian, Suite 2700

Indianapolis, Indiana 46204

Gordon Dempsey

Virginia B. Fischer

Sutherlin & Dempsey

2855 One American Square

Box 82050

Indianapolis, Indiana 46282

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

BECKY CHAMBERS,

Plaintiff,

vs. IP 88-1203C

)

AMERICAN TRANS AIR, +)

)

Inc.

Defendant.

ENTRY REGARDING MOTION FOR ENLARGEMENT OF

TIME IN WHICH TO RESPOND TO SUMMARY

I. Introduction

This cause comes before the court on

several motions filed by plaintiff Becky

Chambers and defendant American Trans

Air, Inc. (ATA). This entry will address

first the plaintiff’s Motion For

Enlargement Of Time In Which To Respond

To Summary Judgment and Motion For Leave

To File Rule 56(f) Affidavit Out Of Time.

The ruling on these two motions will set

the course for the disposition of most of

the other pending motions in this case.’

* The only motion in this case that

is not addressed in this entry is

Defendant’s Verified Motion And

Supporting Memorandum Under Federal Rule

Of Civil Procedure 11 And 28 U.S.C. §

1927. This court has taken this fully

briefed motion under advisement as of

June 2, 1989 and will rule on the motion

in a subsequent entry.

Il. Procedural Background

Plaintiff Chambers, who used to be

an employee of defendant ATA, filed a

complaint on October 11, 1988, against

ATA alleging sex discrimination in

violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C.

§§ 2000e - 2000-17. On January 12, 1989,

the defendant filed a Motion For Summary

Judgment raising several arguments on

which it based its request for judgment

as a matter of law. One of the

defendant’s theories was that the

plaintiffs’ Title VII claims should fail

because they were not the subject of a

timely charge before the Equal Employment

Opportunity Commission (EEOC). On

January 27, 1989, the defendant filed a

Petition For Enlargement Of Time

requesting that this court allow the

plaintiff until February 29, 1989 to

respond to the motion for summary

judgment. This court granted the

petition by signing the plaintiff’s

accompanying order. On March 1, 1989,

the plaintiff filed a second Motion For

Enlargement Of Time Within Which To

Respond To Summary Judgment. The

plaintiff requested an additional thirty

days to respond to the timeliness issue

and even more time to respond to the

balance of the summary judgment motion

upon completion of discovery of the

plaintiff’s individual claims. The

defendant opposed the second motion for

enlargement by arguing, in part, that the

motion was filed late and did not state

any reasons that would constitute

"excusable neglect" under Federal Rule of

Civil Procedure 6(b). Furthermore, the

defendant argued that the plaintiff’s

failure to obtain discovery was her own

fault, that the motion for summary

judgment was based, in part, on the

plaintiff’s own deposition testimony, and

that she did not comply with Federal Rule

of Civil Procedure 56(f) by failing to

file an affidavit establishing the

reasons why she could not present facts

essential to her summary judgment

response without additional discovery.

Consequently, the plaintiff filed a

Motion For Leave To File Rule 56(f)

Affidavit Out Of Time. Counsel’s

affidavit was twenty pages in length with

four exhibits attached. The defendant

filed an opposition to the filing of the

Rule 56(f) affidavit.

In ruling on the second motion for

enlargement, this court acknowledged that

February 29, 1989, was a nonexistent

@ MM EEeEeB Be EB EE Bea Sa Se

date--the source of the confusion as to

whether the plaintiff’s second motion for

enlargement filed on March 1, 1989, was

timely. The court, however, granted the

plaintiff thirty days from March 20,

1989, to file a response to the

timeliness issue raised in the summary

judgment motion. With respect to the

rest of the issues raised in the summary

judgment motion, this court took under

advisement the motion for enlargement

pending a decision on the timeliness

issue. On May 8, 1991, this court issued

its Entry Granting In Part And Denying In

Part Defendant’s Motion For Summary

Judgment With Respect To Timeliness

Issue. Because part of the plaintiff’s

discrimination claims survived the

defendant’s motion for summary judgment

as to the timeliness issue, this court

will now address the remaining motions.

This court has jurisdiction over this

cause of action pursuant to 42 U.S.C. §

20003-59(f)(3)-

III. Plaintiff’ io nt

or #1 niles

Summary Judgment and Motion For Leave To

File Rule 56(f) Affidavit Out Of Time

Civi e

The defendant argues that this court

should deny the plaintiff’s second motion

for enlargement because it does not meet

the requirements of Federal Rule of Civil

Procedure 6(b). That rule states, in

part, as follows:

When by these rules or by

a notice given thereunder or by

order of court an act is

required or allowed to be done

at or within a specified time,

the court for cause shown may

at any time in its discretion

(1) with or without motion or

notice order the period

_ enlarged if request therefor is

made before the expiration of

the period originally

prescribed or as extended by a

previous order, or (2) upon

motion made after the

expiration of the specified

period permit the act to be

done where the failure to act

was the result of excusable

megliect ... .

Fed. R. Civ. P. 6(b). The defendant

argues that the plaintiff’s first

enlargement extended the period for the

filing of a response to the last day of

February. Since February 29, 1989, did

not exist, the last day of the time

period should have been February 28,

1989. Not surprisingly, the plaintiff

argues that March 1, 1989, was the last

day of the enlargement period, which

would mean that the second motion was

timely filed.

As stated by the Entry dated March

20, 1989, attempting to analyze what I

meant, if anything, by signing the

plaintiff’s tendered order enlarging the

time period to a nonexistent date would

be fruitless. This court allowed the

enlargement in order for the plaintiff to

respond to the timeliness issue raised in

the summary judgment motion without

requiring the plaintiff to show excusable

neglect, which assumes that the second

enlargement was timely filed. Thus, with

respect to the balance of the motion for

enlargement, which was taken under

advisement, this court also finds that it

was timely filed, and the plaintiff has

met the requirements of Federal Rule of

Civil Procedure 6(b).

B. Requirements of Federal Rule of

Civil Procedure 56(f)

The defendant next argues that the

plaintiff’s motion for enlargement did

’

not meet the requirements of Federal Rule

of Civil Procedure 56(f), which provides

as follows:

Should it appear from th

affi it a fe) i

the court may refuse the

application for judgment or may

order a continuance to permit

affidavits to be obtained or

depositions to be taken or

discovery to be had or may make

such other order as is just.

Fed. R. Civ. P. 56(f) (emphasis added).

The plaintiff’s second motion for

enlargement, which did not have any

affidavits attached as required by the

rule, requested that this court extend

the time period for a response to be

filed to the summary judgment motion

until after the plaintiff had completed

discovery on the plaintiff’s individual

claims. The motion stated that discovery

requests served on the defendant on March

1, 1989 would more likely than not lead

to information relevant to the issues

raised in the motion for summary

judgment. However, the motion stated

that plaintiff’s counsel had drafts of

proposed discovery relating to Chambers’s

claims as of February 1, 1989. The

motion states that "it is not reasonable

to compel Plaintiff to resist summary

judgment based on such information as

Plaintiff has at this juncture.”

However, the motion also states that

"Plaintiff stresses that Plaintiff now

possesses substantial evidence which in

Plaintiff’s view should rebut the

inferences and arguments in the Motion of

Defendants for Summary Judgment ... ."

a a ee ee ee ee ee ee ee

This court also notes that this

cause was filed on October 11, 1988,

which afforded the plaintiff almost five

months to conduct at least some

discovery. Furthermore, the defendant’s

motion for summary judgment is based

almost entirely on facts gleaned from

Chambers’s own complaint and deposition,

not on facts that were only known to

defendant.

After the defendant pointed out that

the plaintiff’s motion did not meet the

requirements of Federal Rule of Civil

Procedure 56(f), plaintiff’s counsel

filed a Motion For Leave To File Rule

56(f) Affidavit Out Of Time with a

proffer that more closely resembled a

responsive brief than an affidavit. The

"affidavit" set forth "facts"

corresponding to the numbered paragraphs

set forth in the defendant’s Facts As To

Which There Is No Genuine Issue And

Proposed Conclusions Of Law that was

submitted with the motion for summary

judgment. The affidavit also included

legal arguments and conclusions,

including citations to cases.

In paragraph 14, plaintiff’s counsel

stated as follows:

14. I believe that the

facts submitted in this

affidavit should be sufficient

by themselves to show summary

judgment should be denied;

however, there are facts which

I do not yet have access too,

or have been unable to present

to the Court, which would

bolster the evidentiary facts

presented so far, and which

justify holding the summary

judgment motion in abeyance

until the completion of

discovery, as authorized by

FRCP 56(f).

No where in the affidavit did plaintiff’s

counsel state why he could not present

"facts essential to justify ...

opposition" to the summary judgment

motion within the applicable time period.

Fed. R. Civ. P. 56(f). Indeed, as the

defendant points out, the plaintiff, by

counsel’s affidavit, presents facts and

legal arguments that the plaintiff

believes are sufficient to withstand

Summary judgment. This undermines the

plaintiff’s assertion that she needs an

enlargement of time to discover

additional facts "essential" to her

opposition of the summary judgment

motion.

A party opposing a motion for

Summary judgment generally has two

options: respond to the motion pursuant

to Federal Rule of Civil Procedure 56(e)

by setting forth facts that show a

genuine issue for trial or file an

affidavit pursuant to Federal Rule of

Civil Procedure 56(f) setting forth valid

reasons why the party cannot present the

necessary opposing facts. The purpose of

Federal Rule of Civil Procedure 56(f) is

to provide a safeguard against a

premature grant of summary judgment. 10A

C. Wright, A. Miller & M. Kane, Federal

Practice & Procedure § 2740 (1983).

While technical mistakes are generally

overlooked by courts in applying the

spirit of subdivision (f), liberal

application of the rule does not help

parties who have not complied with the

rule because of their own lack of

diligence. Id. at 532-35. "The most

obvious indication of lack of diligence

is a failure on the part of the nonmovant

to present affidavits under either

subdivision (e) or (f). In this

situation the court may accept the facts

alleged in the movant’s affidavits as

true, and if they constitute a sufficient

basis for Summary judgment, the motion

will be granted." Id. at 535; see also

Adickes v. S. H. Kress & Co., 398 U.S.

144, 160-61 (1970) (dictum).

In Hebert v. Wicklund, 744 F.2d 218

(lst Cir. 1984), the First Circuit found

that the district court acted within its

discretion in ruling that an opposition

to a summary judgment motion asking for

further discovery time, an undocketed

letter from counsel, and an untimely

affidavit from a nonparty were not

functional equivalents of a Rule 56(f)

affidavit. The First Circuit

distinguished a Fifth Circuit en banc

decision in which that court of appeals

found that a non-affidavit letter was

sufficient under Federal Rule of Civil

Procedure 56(f). Littlejohn v. Shell Oil

Co., 483 F.2d 1140, 1146 (5th Cir.) (en

banc), cert. denied, 414 U.S. 1116

(1973). In Littlejohn, however, the

letter had been docketed, was timely, and

referred to the specific facts and the

likely source of those facts that were

needed to successfully oppose the motion

for summary judgment.

The First Circuit revisited the

issue of compliance with Federal Rule of

Civil Procedure 56(f) in Paterson-Leitch

Co. v. Massachusetts Mun. Wholesale Elec.

Co., 840 F.2d 985 (1st Cir. 1988). In

Paterson-Leitch, the court of appeals

stated "substantial" rather than

"hypertechnical compliance” would be

sufficient for a party to obtain the

benefits of Rule 56(f). Id. at 988. The

First Circuit set forth the following

a ae

guidelines for a court to consider in

determining whether a party has

substantially complied with subdivision

(f): (1) the alternative proffer should

be written; (2) it should be timely,

i.e., served with the response to the

motion or filed at the earliest

practicable date; (3) the statement, if

not by affidavit, should be in some

authoritative form, such as under penalty

of perjury or subject to Federal Rule of

Civil Procedure 11; (4) the proffer

should articulate some plausible basis

for the party’s belief that certain

discoverable material facts, which will

be sufficient to raise a genuine dispute

precluding summary judgment, exist that

have not yet been obtained; (5) the party

Should show that such facts can be

obtained within a reasonable period of

time; and (6) the litigant must

demonstrate that good cause existed for

failing to conduct the discovery earlier.

Id.

The Seventh Circuit evaluated a

motion for continuance and post-deadline

submissions that were not in formal

compliance with Federal Rule of Civil

Procedure 56(f) in Pfeil v. Rogers, 757

F.2d 850 (7th Cir. 1985), cert. denied,

475 U.S. 1107 (1986). In Pfeil, the

defendants moved for summary judgment

after the parties had engaged in

discovery. The plaintiff submitted two

affidavits in response to the motion, and

the defendant replied. The district

court warned the parties that it would

not consider any other evidence or

arguments after the defendants filed

their reply brief; however, the plaintiff

did submit several affidavits and briefs

after the filing deadline. The

plaintiff’s own affidavit stated that the

other affidavits contained information

that was newly discovered evidence of

which the plaintiff had no knowledge

before the court’s filing deadline. The

district court refused to consider the

materials submitted after the filing of

the reply brief and granted Summary

judgment in favor of the defendants. On

appeal, the Seventh Circuit cited to

Littlejohn and stated that "[a] court may

disregard a failure to formally comply

with Rule 56(f) if the Opposing party’s

request for a continuance Clearly sets

out the justification for the

continuance." Pfeil, 757 F.2d at 856.

Thus, the court found that the

Plaintiff’s motion for a continuance,

with attached affidavits that recited the

justification for the continuance, was in

compliance with subdivision (f), even

thought it was submitted after the filing

deadline imposed by the district court

and was incorrectly labeled a "Motion and

Memoranda for Extension of Time to File

affidavits Pursuant to Rules 59(c) and

60(b)." Id. at 854. However, the court

went on to affirm the district court’s

denial of the motion for continuance

because the plaintiff could have

discovered the evidence earlier. The

failure to secure the discoverable

evidence was due to the plaintiff’s own

lack of diligence; thus, it was not an

abuse of discretion for the district

court to refuse the continuance for the

plaintiff to obtain such information.

Id. at 857.

In this case, Chambers filed a

motion for continuance, signed by her

attorney, within the time period, but did

not present a timely affidavit giving any

reasons to show why she did not have

essential evidence to contradict ATA’s

motion for summary judgment. In fact,

the motion for enlargement admitted to

the contrary that the plaintiff already

possessed "substantial evidence" that

would "rebut the inferences and

arguments" raised in the summary judgment

motion. See Otto v. Variable Annuity

Life Ins., 814 F.2d 1127, 1138 (7th Cir.

1986) ("Rule 56(f) permits a party who

has no specific evidence contradicting an

opponent’s motion for summary judgment to

Survive the motion by both presenting

valid reasons for the lack of proof and

showing how postponement of a ruling will

enable the non-movant to rebut the

movant’s showing."), cert. denied, 486

U.S. 1026 (1988). Even the affidavit,

which the plaintiff seeks leave to file,

admitted that plaintiff’s counsel already

knev. facts as set forth in the affidavit

that he believed were "sufficient by

themselves to show summary judgment

should be denied."

Furthermore, the plaintiff had a

reasonable time--almost five months--

within which to pursue discovery, at

least with respect to Chambers’s

individual claims. During this time, it

appears that plaintiff’s counsel’s

attempts at discovery were limited. Cf.

McTi Vv. ic uc. Soc’y, 772

F.2d 210, 213 (6th Cir. 1985) (holding

that summary judgment was not improper

simply because discovery was incomplete

when motion for summary judgment was

filed two months after filing of lawsuit,

court had ordered a five-month discovery

deadline, and nonmovant only attempted to

pursue discovery after Summary judgment

was granted).

Plaintiff’s counsel has tested the

boundaries of compliance with procedural

rules more than once in this cause of

action. See Entry, April 7, 1989 (Judge

Magistrate Godich’s entry discussing

compliance with Southern District of

Indiana Local Rule 14(c)); Entry On

Motion For Enlargement Of Time Within

j fe) J e

orn March 29, 1989 (Judge Tinder’s

entry discussing compliance with Federal

Rule of Civil Procedure 6(b)). While

this court does not want to exalt form

over substance, it is necessary to strike

a balance between requiring meticulous

compliance with the rules, which may

result in harsh results for litigants,

versus allowing, and thus encouraging,

sloppy lawyering, which needlessly saps

the strength and time of the judiciary as

well as that of the opposing party.

To this end, this court holds that

the plaintiff and her counsel, by

affidavit--even assuming that it was

timely filed--have not sufficiently

stated their reasons for needing

additional discovery in order to oppose

the defendant’s motion for summary

judgment. To the contrary, the plaintiff

has stated that she has "substantial

evidence" that "should rebut" the

defendant s motion. Indeed, plaintiff’s

counsel sets forth in detail such

evidence in his affidavit, of which he

seeks leave to file. Thus, the plaintiff

does not show that she believes that she

needs a continuance to discover

"essential facts" that are necessary to

her response. Furthermore, the plaintiff

does not explain why she did not or could

not obtain such facts through discovery

during the almost five months before her

second motion for enlargement was filed.

In other words, the plaintiff proffered

no good cause for her failure to have

conducted such discovery earlier. Thus,

to the extent that the plaintiff requests

a continuance to conduct discovery in

order to respond to the motion for

Summary, this request is DENIED.

However, this court GRANTS the

plaintiff’s Motion For Leave To File Rule

56(f) Affidavit Out Of Time and will

treat the "affidavit" as a response to

the defendant’s motion for summary

judgment. While the facts of another

case may require this court to strike the

balance between form and substance

differently, the above holding in this

case allows this court to consider the

arguments that the plaintiff, by counsel,

raises in the affidavit, while not

encouraging cavalier disregard of the

procedural rules, which are intended to

provide for an orderly and fair proceeding.‘

‘ It should be noted that this

court could have issued a ruling on the

motion for summary judgment without the

benefit of the plaintiff’s untimely

response. The local rule that sets forth

the time schedule for briefing a summary

judgment motion states that "[fJailure to

file an answer brief or reply brief

within the time prescribed shall subject

the motion to summary ruling." S.D. Ind.

R. 9(a). With regard to determining

whether material facts are controverted,

the local rules provide, in part, as

follows:

In determining the motion

for summary judgment, the court

will assume that the facts as

Claimed by the moving party are

admitted to exist without

controversy, except as and to

the extent that such facts are

actually in good faith

controverted in the "statement

(continued...)

*(...continued)

of genuine issues" filed in

opposition to the motion, as

supported by the depositions,

answers to interrogatories,

admissions, and affidavits on

file.

S.D. Ind. R. 11.

These local rules, however, must be

juxtaposed against the backdrop of

Federal of Civil Procedure 56, which

provides, in part, as follows:

When a motion for summary

judgment is made and supported

as provided in this rule, an

adverse party may not rest upon

the mere allegations or denials

of the adverse party’s

pleading, but the adverse

party’s response, by affidavits

or as otherwise provided in

this rule, must set forth

specific facts showing that

there is a genuine issue for

trial. If the adverse party

does not so respond, summary

judgment, if appropriate, shall

be entered against the adverse

party.

Fed. R. Civ. P. 56(e) (emphasis added).

Thus, this court may not automatically

(continued...

Iv. Motion for Summary Judgment

Chambers’s alleges that she was

discriminated against by ATA in violation

of Title VII with respect to her wages,

discharge and promotions. The defendant

filed a motion for summary judgment

*‘(...continued)

grant summary judgment in favor of a

movant because the opposing party has

failed to respond; rather, I would first

determine whether summary judgment is

"appropriate." To the extent that the

moving party had the burden of proof on

any of the relevant issues, then this

court would have to determine whether

"the facts specified in or in connection

with the motion entitle the moving party

to judgment as matter of law." To the

extent that the moving party did not have

the burden of proof on any of the

relevant issues, then this court would

determine whether "the deficiencies in

the opponent’s evidence designated in or

in connection with the motion entitle the

moving party to judgment as a matter of

law." Anchorage Assocs. v. Virgin

Islands Bd. of Tax Rev., 922 F.2d 168,

175 (3rd Cir. 1990); see also Celotex

Corp. v. Catrett, 477 U.S. 317 (1986).

raising several arguments. One of the

arguments was that Chambers’s employment

discrimination claims should fail because

they were not made the subject of a

timely EEOC charge. This issue was fully

briefed by the parties and ruled upon by

this court in an entry dated May 8, 1991.

The court held that the plaintiff’s

failure-to-promote claim and

discriminatory wage claim based upon acts

that occurred in 1983 were time-barred.

The court also held that any claims that

the plaintiff may have tried to assert

regarding allegations of harsher

discipline, heavier work loads and overt

hostility from supervisors were also

time-barred. This left the plaintiff

with the following claims: 1) a

constructive discharge claim; 2) two wage

discrimination claims--in August 1986

when Chambers went from a Crew Planner in

Training to Crew Planner; and in

November-December 1986 when she acted as

"senior" Crew Planner and when Lon Lett

left around Christmas 1986; and 3) one

promotion claim--on March 20, 1987, when

Lett was made supervisor in Crew

Planning. These claims will now be

analyzed in light of the remaining

arguments raised in the summary judgment

motion.

A. § d ° vi

Summary judgment, pursuant to

Federal Rule of Civil Procedure 56, is

properly granted only when there is no

genuine issue of material fact and the

moving party is entitled to judgment as a

matter of law. Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). In making this

determination, this court views the

record in the light most favorable to the

party opposing the motion. See Morgan v.

Harris Trust & Sav. Bank, 867 F.2d 1023,

1026 (7th Cir. 1989) (per curiam). The

moving party has the initial burden of

demonstrating that absence of a genuine

issue of material fact. Celotex Corp.,

477 U.S. at 323. The non-moving party

must then "set forth specific facts

showing that there is a genuine issue for

trial." Vv j e.

477 U.S. 242, 250 (1986) (quoting Fed.

R. Civ. P. 56(e)). “"f[A]t the summary

judgment stage the judge’s function is

not .. . to weigh the evidence and

determine the truth of the matter but -

determine whether there is a genuine

issue for trial." Id. at 249. A court

must enter summary judgment against the

non-moving party if, after adequate time

for discovery, the party "fails to make a

showing sufficient to establish the

existence of an element essential to that

party’s case, and on which that party

will bear the burden of proof at trial."

Celotex, 477 U.S. at 322. "In such a

situation, there can be ‘no genuine issue

as —_— material fact,’ since a

complete failure of proof concerning an

essential element of the nonmoving

party’s case necessarily renders all

other facts immaterial." Id. at 322-23.

Furthermore, a factual dispute must be

outcome determinative to preclude summary

judgment. Donald v. Polk County, 836

F.2d 376, 379 (7th Cir. 1988). Thus, the

mere assertion of a factual dispute

cannot defeat the motion for summary

judgment. Anderson, 477 U.S. 242.

Summary judgment is frequently not

an appropriate resolution in a Title VII

case. See Holland v. Jefferson Nat’l

Life Ins. Co., 883 F.2d 1307, 1312 (7th

Cir. 1989); Powers v. Dole, 782 F.2d 689,

694 (7th Cir. 1986). However, summary

judgment is not automatically

inappropriate simply because issues of

discriminatory motive or intent are

raised. See Holland, 883 F.2d at 1312.

As the Seventh Circuit has counselled,

this court must approach a question of

Summary judgment in a discrimination case

with special caution. Id. at 1313.

B. Promotion Claim

The defendant argues that the

plaintiff’s remaining promotion claim

should be barred because it was not made

the subject of any EEOC charge. The

plaintiff argues that her EEOC charge,

which alleged that she and other women

were paid less than men who had

comparable responsibility”, was

sufficient to encompass her charge of

discriminatory promotions because such

discriminatory promotion decisions in

favor of men over women "is one vehicle

by which such unequality in pay is

realized."

The filing of charges with the EEOC

and the receipt of a right to sue letter

are necessary prerequisites to pursuing

any Title VII claim in federal district

court. Alexander v. Gardner~-Denver Co.,

415 U.S. 36 (1974); Movement for

Opportunity & Equality v. General Motors

Corp., 622 F.2d 1235, 1238 (7th Cir.

5 Chambers’s EEOC charge stated, in

part, that "[w]jitnesses formerly in

management will confirm chauvinism at the

highest levels of the company, and a

pattern of paying women less money for

comparable positions or responsibility.

This is true both on lower levels and in

management."

1980). The nature of the charge before

the EEOC affects the permissible scope of

the complaint. "Allowing a complaint to

encompass allegations outside the ambit

of the predicate EEOC charge would

circumvent the EEOC’s investigatory and

conciliatory role, as well as deprive the

charged party of notice of the charge. .

» «* v. Jewel F 2 Retail

Meatcutters Union, 773 F.2d 857, 863 (7th

Cir. 1985). The only claims that are

cognizable are those in the EEOC charge

and those that are "‘like or reasonably

related to the allegations of the charge

and growing out of such allegations. ’*"

Id. at 864 (quoting Jenkins v. Blue Cross

Mut. Hosp. Ins., Inc., 538 F.2d 164, 167

(7th Cir.) (en banc), cert denied, 429

U.S. 986 (1976)); see also Schnellbaecher

vy. Baskin Clothing Co., 887 F.2d 124, 127

(7th Cir. 1989); Gamble v. Birmingham Ss.

R.R. Co., 514 F.2d 678, 687-89 (5th Cir.

1975); Flesch v. Eastern Pennsylvania

Psychiatric Inst., 434 F. Supp. 963, 970

(E.D. Pa. 1977). Thus, while the extent

of an EEOC investigation may help define

the scope of the charge, it will not

necessarily defeat a complaint where the

complaint contains allegations that are

like or reasonably related to the EEOC

charge. Schnellbaecher, 887 F.2d at 127.

The plaintiff’s EEOC charge

complains that ATA pays “women less [than

men] for comparable positions or

responsibility." While the language in

the EEOC charge and the. subsequent court

complaint need not be identical, this

court finds the plaintiff’s focus in her

EEOC charge is directed at the

discrimination in wages between males and

females who have similar positions or

responsibilities. She does not allege

any facts that would cause the EEOC to

investigate possible discrimination in

Chambers’s promotional opportunities.

See Babrocky, 773 F.2d at 864 n.2 (noting

that the proper inquiry to determine what

is like or reasonably related to the EEOC

charge is what EEOC investigation could

reasonably be expected to grow from the

original charge). Thus, this court holds

that the plaintiff’s remaining promotion

Claim is barred because it was not raised

in the EEOC charge.

C. Constructive Discharge Claim

The plaintiff submitted a letter of

resignation to her supervisor in which

She expressed her intent to resign unless

her salary was inc-eased $500.00 per year

more than "the currently highest (and

newest) Crew Planner" and one or two more

full time FA Planners were hired. The

letter sets forth the factors that

prompted her resignation: part time

temporary employees were incompetent;

management was not unresponsive to

complaints; work load was unbalanced;

part time help took days off during the

busiest times; previously promised help

was not received; a verbal warning to the

entire group should have been done on an

individual basis; and conflicts in

scheduling existed. On July 8, 1987, ATA

accepted Chambers’s resignation, and this

was the last day that she worked for ATA.

The plaintiff argues that her

"resignation" was really a constructive

discharge for which she should be

compensated.

In order for the plaintiff to state

a constructive discharge claim, she must

]

)

;

establish that the working conditions

were so intolerable that a reasonable

person would have been compelled to

resign. See Henn v. National Geographic

Soc‘y, 819 F.2d 824 (7th Cir.), cert.

denied, 484 U.S. 964 (1987); Martin v.

Citibank, 762 F.2d 212 (2d Cir. 1985).

Even if working conditions are

discriminatory, they may not be

sufficient to support a constructive

discharge clain. Geisler v. Folsom, 735

F.2d 991, 996 (6th Cir. 1984); Miller v.

Illinois, 681 F. Supp. 538, 544 (N.D.

Ill. 1988). Even accepting as true the

plaintiff’s reasons for her resignation

cited in her letter, this court finds as

a matter of law that the plaintiff has

not established that the working

conditions of which she complained of in

her letter were so intolerable as to have

forced a reasonable person to have quit.

Compare Henn, 819 F.2d 824 (resignation

due to "silent treatment" by employer and

threat not constructive discharge as

matter of law); v. Pow Elec.

Mfg., 617 F.2d 61 (5th Cir. 1980)

(resignation due to lower pay resulting

from sex discrimination not constructive

discharge); Miller, 681 F. Supp. 538

(resignation due to "harassing" telephone

calls, undercutting plaintiff’s

effectiveness, not authorizing motor pool

car, etc. not constructive discharge as a

matter of law) with Goss v. Exxon Office

Sys. Co., 747 F.2d 885 (3d Cir. 1984)

(sufficient for constructive discharge

that plaintiff was verbally abused and

threatened and forcibly transferred to a

lower position as the result of sex and

pregnancy discrimination); Meyer v. Brown

& Root Constr. Co., 661 F.2d 369 (5th

Cir. 1981) (constructive discharge found

when pregnant employee was involuntarily

transferred to heavy manual labor that

posed substantial risks to her health).

D. Wage Discrimination Claims

The plaintiff has two wage

discrimination claims that were timely

filed. Chambers alleges that in August

1986 when she was promoted from Crew

Planner in Training to Crew Planner that

she should have received a Salary

increase. Chambers also alleges that in

November-December 1986 when she acted as

"senior"* Crew Planner and when Lon Lett

left around Christmas 1986 that she

Should have received a Salary increase.

°* Chambers acknowledges in her

deposition that there is no formal

position or title as "senior" Crew

Planner.

In order for Chambers to survive

summary judgment on her Title VII wage

discrimination claims, she must show that

but for the fact that she is female, she

would have received salary increases.

The burden is on the plaintiff to prove

discriminatory motive and intent by her

employer. This showing may be made

either by direct proof of discriminatory

intent or by the methoa of indirect proof

as set forth in Texas Department of

Co j j Vv i , 450 U.S.

248, 252-56 (1981) and McDonnell Douglas

¢ - V.- G , 411 U.S. 792, 802-05

(1973). See Lynch v. Belden & Co., 882

F.2d 262, 268 (7th Cir. 1989), cert.

denied, 110 S. Ct. 1134 (1990). Direct

evidence of a discriminatory motive

consists of actions or remarks by the

defendant that reflect a discriminatory

attitude in the employment decision-

making process. See Crader v. Concordia

College, 724 F. Supp. 558, 564-65 (N.D.

Tll. 1989). The indirect method of proof

as outlined in Burdine and McDonnell

Douglas Corp. allows a plaintiff to raise

an inference of discriminatory intent

when there is no direct evidence

available. See Lynch, 882 F.2d at 269.

Under this indirect method, the plaintiff

first has the burden of proving by the

preponderance of the evidence a prima

facie case of discrimination. Burdine,

450 U.S. at 252-53. If the plaintiff

succeeds in proving the prima facie case,

a rebuttable presumption arises, and the

burden shifts to the defendant to

articulate some legitimate,

nondiscriminatory reason for its

employment action. Id.; McDonnell

Douglas Corp., 411 U.S. at 802. Should

the defendant carry this burden, the

presumption raised by the prima facie

case is rebutted. Burdine, 450 U.S. at

255. The plaintiff must then prove by a

preponderance of the evidence that the

legitimate reasons offered by the

defendant were not its true reasons, but

were merely a pretext for discrimination.

Id. at 252-53; see also Reeder-Baker v.

Lincoln Nat’l Corp., 834 F.2d 1373, 1376-

77 (7th Cir. 1987); Collins v. Illinois,

830 F.2d 692, 698 (7th Cir. 1987).

The record in this case fails to

reveal any direct evidence of

discrimination on the basis of sex

regarding the plaintiff’s salary level.

Thus, Chambers can prevail only by

utilizing the McDonnell Douglas Corp.--

Burdine method of indirect proof. In

this case, however, the plaintiff

testified in her deposition in that she

had no reason to believe that she failed

to receive any wage increases because of

her sex.’ The plaintiff points to other

portions of her deposition in which she

supposedly sets forth evidence regarding

discriminatory practices by the

defendant.* However, the cited

deposition testimony either does not

address the two promotion claims at issue

here or it is insufficient for the

For example, the plaintiff

testified as follows:

Q. Do you have any reason to

believe that you did not get

these three raises you talked

to us about because of your

sex?

A. I don’t know.

Q. Do you have any facts or

evidence that would indicate

that you didn’t get these three

raises because of your sex?

A. No.

* See page 6 of Affidavit Of Gordon

B. Dempsey on which plaintif‘’s counsel

sets forth numerous citations to the

plaintiff’s deposition.

plaintiff to establish by a preponderance

of the evidence that she was not granted

a wage increase because of her sex,

especially in light of her admission that

sex was not a factor in whether she

received wage increases in 1986.”

Furthermore, Chambers testified that she

never requested raises during the time in

question nor did she complain to ATA.

Personnel of sex discrimination ith

regard to her wages in 1986 or when she

resigned. The plaintiff has failed to

make a prima facie case regarding her

discriminatory wage claims; thus, these

claims fail on the merits.

V. Conclusion

: This court notes that the

plaintiff did receive a wage increase in

October 1986 from $17,000.00 to

$19,000.00.

. = 3

Based upon the reasons given above,

this court holds that the plaintiff’s

promotion claim is barred because it was

not included in the Chambers’s EEOC

charge, her destructive discharge claim

is barred because a reasonable person

would not have been compelled to resign

based upon Chambers’s working conditions,

and her two wage discrimination claims

fail on the merits. All of Chambers’s

other claims were barred as untimely in a

previous entry dated May 8, 1991. Thus,

this court will GRANT the defendant’s

motion for summary judgment and will

enter judgment in favor of the defendant

in an accompanying order.’*°

motion for summary judgment, this court

DENIES as moot the plaintiff’s Petition

For Class Certification and the

defendant’s Motion To Strike Affidavit.

Dated this | day of May

1991.

John Daniel Tinder, Judge

United States District Court

Copies to:

Gregory J. Utken

David W. Miller

Baker & Daniels

300 North Meridian, Suite 2700

Indianapolis, Indiana 46204

Gordon Dempsey

Virginia B. Fischer

Sutherlin & Dempsey

2855 One American Square

Box 82050

Indianapolis, Indiana 46282

BECKY CHAMBERS,

AMERICAN TRANS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

Plaintiff,

vs. IP 88-1203-C

AIR, INC.,

ee a ee ee

Defendant.

SUMMARY JUDGMENT IN FAVOR OF DEFENDANT

This court, having this day issued its

Entry Regarding Motion for Enlargement of

Time in Which to Respond to Summary

Judgment, Motion for Leave to File Rule

56(f) Affidavit Out of Time, Petition for

Class Certification, Motion to Strike

Affidavit, And Motion for Summary

Judgment in the above-captioned cause of

action, now therefore, in acordance

therewith,

ORDERS AND DECREES that plaintiff

Becky Chambers takes nothing by way of

her complaint and judgment is entered in

favor of defendant American Trans Air,

Inc., and against plaintiff Becky

Chambers.

All of which is ordered this

23rd day of May, 1994.

John Daniel Tinder, Judge

United States District Court

Copies to:

Gregory J. Utken

David W. Miller

Baker & Daniels

300 North Meridian, Suite 2700

Indianapolis, Indiana 46204

Gordon Dempsey

Virginia B. Fischer

Sutherlin & Dempsey

2855 One American Square

Box 82050

Indianapolis, Indiana 46282

BECKY CHAMBERS,

AMERICAN TRANS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

Plaintiff,

vs. IP 88-1203-C

AIR, INC.,

Defendant.

ENTRY DISCUSSING DEFENDANT’S MOTION FOR

Ss 2 6

MOTION AND/OR MOTION TO ALTER OR AMEND

JUDGMENT _

On October 11, 1988, Becky Chambers

filed a complaint against American Trans

Air, Inc. ("ATA") alleging sex

discrimination in violation of Title VII

of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et seg. Ms.

Chambers’ complaint alleged that ATA

discriminated against her on the basis of

sex "with respect to compensation, terms,

conditions, privileges and opportunities

of employment" and that this resulted in

a constructive discharge. Ms. Chambers

also filed a Petition to Certify Action

as Class Action with a supporting brief.

ATA responded that the petition did not

meet any of the prerequisites for the

certification of a class action under

Rule 23 of the Federal Rules of Civil

Procedure. ATA also moved for summary

judgment arguing that Ms. Chambers’

claims of discrimination were barred.

This court granted partial summary

judgment in favor of ATA on May 8, 1991,

and granted summary judgment in favor of

ATA as to the remaining issues on May 23,

1991.

On March 21, 1989, ATA motioned for

sanctions against Ms. Chamber’s counsel,

Gordon Dempsey, seeking the reasonable

expenses, including attorney’s fees,

incurred by ATA because of the filing and

pursuit of certain claims and pleadings

pursuant to Rule 11 of the Federal Rules

of Civil Procedure and/or 28 U.S.C. §

1927. The motion was taken under

advisement as of June 2, 1989; the court

will now consider that motion.

The court will initially address Ms.

Chamber’s motions for relief from the

judgment entered against her on May 8,

1991 under Rule 60(b) of the Federal

Rules of Civil Procedure, and for a new

trial and/or to alter or amend the

Summary judgment entered against her on

May 23, 1991 pursuant Rule 59 of the

Federal Rules of Civil Procedure, which

were filed on June 7, 1991.

Ms. Chamber’s Rule 60(b) Motion for

Relief from Judgment

—

Ms. Chambers alleges that there are

several errors in the court’s judgment in

favor of ATA on May 8, 1991. In that

ruling, the court held that Ms. Chambers’

claims of discriminatory denial of

promotion and pay increase in 1983 and

claims of harsher discipline, heavier

work loads, and hostility from her

supervisor were time-barred. Ms.

Chambers requests the court to set aside

that judgment under Rule 60(b) of the

Federal Rules of Civil Procedure.”

+ Rule 60(b) provides that the

court may relieve a party from a final

judgment for the following reasons: (1)

mistake, inadvertence, surprise, or

excusable neglect; (2) newly discovered

evidence which by due diligence could not

have been discovered in time to move for

a new trial under Rule 59(b); (3) fraud,

misrepresentation, or other misconduct of

an adverse party; (4) the judgment is

void; (5) the judgment has been

satisfied, released or discharged, or a

prior judgment upon which it is based has

been reversed or otherwise vacated, or it

is no longer equitable that the judgment

(continued...)

"Relief from a judgment under Rule

60(b) is an extraordinary remedy and is

granted only in exceptional

circumstances." Reinsurance Co. of

America, Inc. v. Administratia

Asigurarilor de Stat, 902 F.2d 1275, 1277

(7th Cir. 1990); United States v. one

1979 Rolls-Royce Corniche Convertible,

770 F.2d 713, 716 (7th Cir. 1985); Wilson

v. Studebaker-Worthington, Inc., 699 F.

Supp. 711, 715 (S.D. Ind. 1987). Whether

to grant relief under Rule 60(b) is

addressed to the sound discretion of the

district court. Williams v. Hatcher, 890

F.2d 993, 995 (7th Cir. 1989); One 1979

Rolls-Royce Corniche Convertible, 770

F.2d at 716.

“*(...continued)

Should have prospective application; or

(6) any other reason justifying relief

from the operation of the judgment. Ms.

Chambers’ motion fails to specify under

which subsection she is proceeding.

Ms. Chambers takes issue with the [

court’s statement that class

certification is inappropriate where the

plaintiff’s individual claims cannot |

survive a summary judgment motion. It is

well settled that a class action should

be dismissed if the class |

representative’s individual claims are

found to be without merit prior to

certification of the class. See East

Texas Motor Freight System, Inc. v.

Rodriguez, 431 U.S. 395, 403 (1977);

Walker v. Jim Dandy Co., 747 F.2d 1360,

1364-65 (llth Cir. 1984); Everitt v. City

of Marshall, 703 F.2d 207, 210 (5th

Cir.), cert. denied, 464 U.S. 894 (1983).

Ms. Chambers’ complaint alleged that

she was discriminated against with

respect to "compensation, terms,

conditions, privileges and opportunities

of employment" and that she was

constructively discharged. In her

deposition, Ms. Chambers testified that

the allegation of discrimination referred

only to promotions. Ms. Chambers

challenged two promotion decisions, which

occurred in 1983 and 1987. In finding

that Ms. Chambers was barred from

challenging the 1983 decision because it

was not timely filed with the Equal

Employment Opportunity Commission (EEOC),

see 42 U.S.C. § 2000e-5(e),*? the court

‘2 Under 42 U.S.c. § 2000e-5(e),

the claimant must file a Title VII claim

with the EEOC within 180 days of the

occurrence of the alleged unlawful

employment practice. However, if the

Claimant initially institutes a

proceeding with a state or local agency

that possesses the authority to grant or

Seek relief from the alleged

discrimination, the time limit for filing

with the EEOC is extended to 300 days

after the discriminatory act. Ms.

Chambers filed her charge with the EEOC

on January 5, 1988; thus, any claim for

acts occurring prior to March 18, 1987

fall outside the 300-day period.

determined that the "continuing

violation" exception did not apply. See

United Air Lines, Inc. v. Evans, 431 U.S.

553, 558 (1977) (holding that present

effects of past discriminatory acts

occurring outside the EEOC filing period

could not be the basis for recovery under

Title VII; dispositive inquiry is whether

present violation exists); Stewart v. CPC

Int’l, Inc., 679 F.2d 117, 120-21 (7th

Cir. 1982) (noting that "[a]t least one

discriminatory act must have occurred

within the charge-filing period” and that

prior discriminatory acts are not

relevant unless the plaintiff can show

that the discrimination is "presently"

continuing).

The court considered Ms. Chambers’

allegations that she was discriminated

against with respect to her wages,

discharge and promotions to determine

whether she had sufficiently alleged a

continuing violation or had otherwise met

the 300-day filing requirement. [In her

Rule 60(b) motion, Ms. Chambers asserts

that the court erred in determining that

the "continuing violation" exception did

not apply to the alleged discriminatory

acts which occurred in 1983. She asserts

that the discriminatory practices which

occurred at that time and within the 300-

day period "suggest an ongoing pattern to

be flushed out through discovery." Ms.

Chambers admits, however, that as

individual events, the 1983 claims of

failure to promote or grant a raise might

be time-barred.

Upon review of the judgment, the

court finds that it correctly applied the

criteria used to determine whether

discriminatory conduct constitutes a

continuing violation. With regard to Ms.

Chambers’ 1983 failure to promote and

wage discrimination claim, the court

found that Ms. Chambers had failed to

show that the lack of a raise in 1983 was

connected to the alleged pattern of

discrimination in 1986. The court found

that there was no indication that the

person who decided whether to give Ms.

Chambers a raise in 1983 was also the

person who made such decisions in 1986,

and that any discrimination which

occurred when Ms. Chambers was employed

as Contract Supervisor in 1983 ceased

when she was demoted back to her previous

position after 90 days. Ms. Chambers’

mere assertion that the alleged

discrimination in 1983 is connected to

the alleged discrimination which occurred

PP =e + FF ei Fe Tel llUrUEerErClC cell ULeETlCUUEe.lClLUllCe.lC Sl

in 1986 is insufficient to Support her

motion for relief from judgment.

The court also found that Ms.

Chambers’ claims of heavier workloads,

harsher discipline, and overt hostility

from her supervisor were time-barred

because they were not raised in her EEOC

charge or complaint. See Schnellbaecher

v. Baskin Clothing Co., 887 F.2d 124, 127

(7th Cir. 1989); Babrocky v. Jewel Food

Co. & Retail Meatcutters Union, 773 F.2d

857, 863 (7th Cir. 1985).

Ms. Chambers correctly cites Sanchez

v. Standard Brands, Inc., 431 F.2d 455,

466 (5th Cir. 1970) for the proposition

that a judicial complaint is limited not

by the charge but by the scope of the

EEOC investigation which can reasonably

be expected to grow out of the charge of

discrimination. The "scope of the

charge" doctrine allows a plaintiff to

make allegations in her complaint that

may not have been specifically alleged in

the EEOC charge but which reasonably

could have grown out of an investigation

of that charge. Ms. Chambers asserts

that the EEOC charge suggested claims of

harsher discipline, heavier work loads,

and overt hostility, and that those

conditions could have been observed in

the EEOC investigation. Even so,

however, the scope of the charge doctrine

is not applicable to this case because

Ms. Chambers did not allege these claims

in her complaint. The claims were first

raised in Ms. Chambers’ reply to ATA’s

motion for summary judgment.

Ms. Chambers submits that her

complaint sets forth these claims.

Paragraph 8 of the complaint states that:

Plaintiff was discriminated

against by Defendant with

respect to compensation, terms,

conditions, privileges and

opportunities of employment and

has been subject to those

illegal acts, practices and

conduct alleged in Paragraph 11

of the Complaint.

Paragraph 11 states in relevant part

that:

Plaintiff was required by

Defendant to check the work of

males she had trained and,

despite the comparable or

greater responsibility of her

position, Defendant paid her

less than the males whose work

she reviewed.

As the court noted, during her

deposition, Ms. Chambers stated that the

phrase "with respect to compensation,

terms, conditions, privileges and

opportunities of employment" related to

compensation and promotion. Paragraph 11

also states facts related to Ms.

Chambers’ discriminatory wage and

promotion claims.

Ms. Chambers also points to

Paragraphs 12 and 13. Paragraph 12

states that "Defendant has exhibited

chauvinism at the highest levels in the

company." Paragraph 13 provides that:

Defendant has demonstrated its

discriminating attitude toward

its female employees in that

females, including those in

management, were routinely

referred to in vulgar sexist

language in their absence, by

the highest levels of

management.

Neither of these allegations states

claims that Ms. Chambers was subjected to

harsher discipline, given heavier work

loads, or subjected to overt hostility by

her female supervisor.

The court properly granted summary

judgment in favor of ATA with regard to

Ms. Chambers’ failure to promote and

discriminatory wage claims based on acts

which occurred in 1983, and her

allegations of harsher discipline,

heavier work loads, and overt hostility

because the claims were time-barred.

Therefore, Ms. Chambers’ 60(b) motion for

relief will be DENIED.*

Ms. Chamber’s Rule 59 Motion for a New

Trial

a Ju nt

Ms. Chambers seeks relief form the

court’s May 23, 1991 ruling under Rule

59(a) and (e) of the Federal Rules of

Civil Procedure. Specifically, she seeks

relief from: (1) the denial of her Motion

for Enlargement of Time within which to

** Ms. Chambers requests the court,

in the alternative, to permit completion

of discovery and a trial or reverse,

alter, or amend the May 8, 1991 judgment

under Rule 59 of the Federal Rules of

Civil Procedure. However, she failed to

present any argument or authority for

such relief; therefore, the court will

not consider Ms. Chambers’ request for

relief under Rule 59 with regard to that

judgment.

Respond to Summary Judgment in which she

requested time to conduct additional

discovery; (2) rulings that (a) her

promotion claim is time-barred, (b) her

constructive discharge claim is

insufficient as a matter of law, and (c)

she failed to establish a prima facie

case regarding her discriminatory wage

claims; and (3) the ruling that her

Petition for Class Certification is moot.

A motion for a new trial or an

amendment or alteration of judgment is

made under Rule 59 of the Federal Rules

of Civil Procedure. In determining

whether a new trial is warranted under

Rule 59(a), the district court must

decide whether the trial was unfair to

the moving party. Forrester v. White,

846 F.2d 29, 31 (7th Cir. 1988); Davis v.

FMC Corp., 771 F.2d 224, 232-33 (7th Cir.

100

1985). Whether to grant a new trial is

within the discretion of the district

court. Id.; Roggow v. Mineral Processing

Corp., 894 F.2d 246, 249 (7th Cir. 1990).

A motion to amend or alter a final

judgment under Rule 59(e) cannot be used

to raise arguments which could, and

should have been made before the district

court entered the final judgment. Woods

v. Michigan City, Indiana, 940 F.2d 275,

280 (7th Cir. 1991) (citation omitted).

Whether to grant or deny a Rule 59(e)

motion is within the district court’s

discretion. See id.

After filing its motion for summary

judgment, ATA filed a Petition for

Enlargement of Time requesting that the

court allow Ms. Chambers additional time

to respond to the motion for summary

judgment. The court granted the

101

petition. Ms. Chambers subsequently

filed a Motion for Enlargement of Time

within which to respond to summary

judgment. In that motion, Ms. Chambers

requested an additional thirty days to

respond to the timeliness issue and time

to respond to the balance of the summary

judgment motion upon completion of

discovery of her individual claims.

ATA opposed the motion and argued

that Ms. Chambers’ failure to obtain

discovery was her own fault, that the

motion was based, in part, on Ms.

Chambers’ own deposition testimony, and

that she did not comply with Rule 56(f)

of the Federal Rules of Civil Procedure

by filing an affidavit establishing why

she could not present facts essential to

her summary judgment response without

additional discovery. Ms. Chambers then

102

filed a Motion for Leave to File Rule

56(f) Affidavit Out of Time.

The court found that Ms. Chambers’

motion for enlargement was timely, but

that it did not meet the requirements of

Rule 56(f). "Rule 56(f) permits a party

who has no specific evidence

contradicting an opponent’s motion for

summary judgment to survive the motion by

both presenting valid reasons for the

lack of proof and showing how

postponement of a ruling will enable the

non-movant to rebut the movant’s

showing." . Vari j ife

Ins., 814 F.2d 1127, 1138 (7th Cir.

1986), cert. denied, 486 U.S. 1026

(1988). Therefore, under Rule 56(f), Ms.

Chambers was required to file an

affidavit establishing the reasons why

she could not present facts essential to

103

her summary judgment response without

additional discovery.

Ms. Chambers’ subsequent Rule 56(f)

affidavit failed to state why she could

not present facts essential to oppose

ATA’s summary judgment motion within the

applicable time period. In fact, the

affidavit stated that the facts in the

affidavit "should be sufficient by

themselves to show summary judgment

should be denied," and Ms. Chambers’

mot

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.