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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 1001

## 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

i

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

ii

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

iv

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

vi

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.

ix

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,

ee

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

(c) (1) determination, and also filed a

2

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-

5

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-

6

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

7

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.

a

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

9

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

10

—: 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

11

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-

12

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

13

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

14

———————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

15

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

16

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.

17

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

18

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,

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

a

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.

27

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

28

5

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

29

"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?

30

(7%

PY 4
Wo

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

31

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

32

ee

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 Garrett vs. City and County

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

1987), reversing for failure to allow
discovery, even where it was uncontroverted
that the terminated fireman/ plaintiff had
taken some silver dollars from a fire
scene.

(Were white firemen being reported and

33

fired for such pilferage?).

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,

34

rr

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

a2

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

36

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,

37

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.

38

me

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

39

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

40

"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

41

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

42

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

43

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

a4

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

45

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

46

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

47

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-

48

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

49

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

51

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

52

;
}

4
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

8

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

10

|

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

11

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

12

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,

13

i
:
;

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,

14

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.

15

i

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,

16

i

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

17

;
]
i
i
6

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

18

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

19

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,

20

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

21

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

22

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

23

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

24

of

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.

25

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.

26

|
e |
.
i
:
:

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

27

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

28

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

29

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

30

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,

31

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

32

|

= — 6 UD ——_= we

CNT REE ee . ers

Et

a

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

33

a

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.

e
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

10

j

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-

11

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

ia

. 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)

13

(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.

14

4
’
‘
3
a
a
u
‘i
!
'
:
:
‘
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

15

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).

16

q

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).

a

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 ...

18

- 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

19

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).

21

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

22

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.

23

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

24

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

25

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

26

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.

27

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

28

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

29

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

30

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

31

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

32

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.

33

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

34

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

35

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

36

@ 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.

37

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

38

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

39

3

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

40

3
,
:
’
.
.

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

41

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 ... ."

42

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

43

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

44

"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

45

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

46

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

47

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

48

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

49

tn

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

50

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

51

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

52

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,

53

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

54

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 l

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0508%3A1. Public record. Not legal advice.