Opposition Brief — Lang v. Kohl's Food Stores, Inc.

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

Supreme Court, US.

FILED

@ DEC - 4 2000

No. 00-716

i CLERK

jn The

Supreme Court of the United States

SHIRLEY A. LANG, et al.,

Petitioners,

KOHL’S FOOD STORES, INC. and

THE GREAT ATLANTIC AND PACIFIC TEA

COMPANY, INC.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For the Seventh Circuit

OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

John W. Powers*

Marcia Andersen Mahoney

Laura A. Lindner

SEYFARTH SHAW

55 East Monroe Street

Suite 4200

Chicago, Illinois 60603

(312) 346-8000

*Counsel of Record

COUNTERSTATEMENT OF THE

QUESTION PRESENTED

Did the Court of Appeals properly exercise its appellate

review authority to affirm summary judgment in favor of

Respondents on the ground that Petitioners had failed to

present sufficient evidence to demonstrate that Respon-

dents’ articulated reasons for the wage differentials between

bakery, deli and produce department employees were

pretextual?

STATEMENT REQUIRED BY SUP. CT. R. 29.6

Kohl’s Food Stores, Inc. is a wholly-owned subsidiary of

The Great Atlantic & Pacific Tea Company, Inc. (“A&P”’’).

A&P has no parent company, and no publicly held company

owns ten percent or more of A&P’s stock.

iii

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF THE

UPR ES F UEIIC TIED ccestosccssccarseressccsscnaninssansnsnapeoninenatel i

STATEMENT REQUIRED BY

Se Ne SI ecenidieeitacsedatdlndiilinsccithaieiaicei neice ee i ii

IIT siitcchincitinith tncticiasiitdintinnscinapptinskddinniimiauinabddanial 1

COUNTERSTATEMENT OF THE CASE ....0.............c00000. 2

i Re MIE ricaienssssinisitsesiseinissinininmnasbeansassal 2

1. The Differences Between Produce,

Bakery and Deli Department

IIT asinidininerinn(abiilidoeiniinitbieaiidiatoadiiealsdciiiindiacnbaneienibaniaia 2

se I MINN" cccisniskistisieniievnnssciniibansinionsahbua 3

i IIE ccletuteendeenstehnisniensasinincenctnintnaceigsbanunthitndibisis 4

1. The District Court Proceedings ........................ 4

2. Seventh Circuit Proceedings .................:c:ss00000 6

REASONS FOR DENYING THE WRIT ...............0....000000. 7

I. PETITIONERS FAILED TO RAISE THE

QUESTION PRESENTED FOR REVIEW

Be HE PEM SIREN cccrntecnctatnnsseiumnencesennnscsscsins 7

Il. PETITIONERS ARE MERELY SEEKING

REVIEW OF THE LOWER COURT’S

FACTUAL EVALUATION OF THEIR

EE SO MNIUNED sthicsiviitiinninnscdesmestavehenssccsactinn 9

Ill. THE RECORD “TAKEN AS A WHOLE”~

DOES NOT SUPPORT A REASONABLE

INFERENCE OF INTENTIONAL

SEX-BASED PAY

I ia cei cttiniatasincenencicntniesions 10

B. Petitioners’ “‘Steering”’ Evidence Has

BNO PPrebetiwe Vee .....2:.cccscccccccccscesecccsscssscsesss 11

C. Petitioners’ Pretext Evidence Did Not

Establish That Kohl’s Proffered

Reason For The Wage Differential Was

Unworthy of Credence ..................:ccccccssesssesees 15

CISA AAEEELITN snnsctasndaccseniccbiieuipiiaaienniaibantasindinddadbiniaianalids 18

TABLE OF AUTHORITIES

CASES Page

Adickes v. S.H. Kress & Co., 398 UJ.S. 144

CRUG <corascsistasaidoonsthlahivensiesnncnonapvanahabsapstabmclianialhicesypsaecerceat 8

American Nurses Ass’n. v. Illinois, 783 F.2d 716

(Ob B®) 2.0.62 11

Anderson v. Baxter Healthcare Corp., 18 F3d 1120

CF Cee 6 22 ee 7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

CITT. wisnentsnssienaninsenindanetiabieigiaiamnaeiaiibalindaasbaitaniaa mena aaha 10

Box v. A&P Tea Co., 772 F.2d 1372

CO Cie BID svancsnnchisinsniittetdiatinticaininioieciiiataliaactass cia oe 8

County of Washington v. Gunther, 452 U.S. 161

COPIED - awiesnncstnsndgheipdsindikatepitseiasaiaeiisidsdeahidiansaaatioandininailiianidaassiad 11

EEOC v. Mitsubishi Motor Mfg., of Am., Inc., 990

B Ehemppe. | BS ABD. TA, BI civccscssccnsanseestinceiinsiictccaraiccnoncs 8

FTC v. Grolier, Inc., 462 U.S. 19 (1983) ....ce.ccccsessscsseccseeseee 8

Furnco Constr. Corp. v. Waters, 438 U.S. 567

CERI D UND chins einscniiiiinstplieietiesteimnerttiiiam clear ha thabispiti psaehpahhikarcetibiceioads 8

Godwin v. Hunt Wesson, Inc., 150 F3d 1217

PG Se sii ne 17

Goodman v. Lukens Steel, 482 U.S. 656

GIT Anesinstnechsiisiniinsial A ciddnsiienshandiieetciasinlemade Dealindgiet diaiaastacelastaa 9

Graver Mfg. Co. v. Linde Co., 336 U.S. 271

CAPUEED esssnciiiiainbtinitcauiapeaibeisnctihaiaieimapsabdlicacatesiaiuabialieiini casaiceakek ads 9

Lords Landing Village Condominium Council of

Unit Owners v. Continental Insurance Company,

ae RA Se CUD eiicctidaatecnniisinaccbeiplealniatoldianliaintscounssiad 8

McCoy v. WGN Continental Broadcasting Co.,

Se Ree Be PU si secchieech sates cnstiavnbociccnsnsoned 17

McDonnell Douglas v. Green, 411 U.S. 792

CI PUUTE : sccsiclnessiediistutahesaaisvvecishindciateissnleliaatalcddpladialailpondadisabiistshicticiaedcada 14

Meiressone v. Marriott Corp., 124 ER.D. 619

SE Re PRR peer Reh ae RI a ETE! 8

Merrick v. Farmers Ins. Group, 892 F.2d 1434

I HI Gatcsnesiaceanstnieintaedid bee 17

Page

Orlowski v. Dominick’s Finer Foods, Inc.,

ve Ps ee, Ft 8: 8

Reeves v. Sanderson Plumbing Products, Inc.,

US. MO yn 1,7

Teamsters v. United States, 431 U.S. 324

COTE? anoctcninacitnninsbuntieintipibiiicidmmenidaiiiduaianiitatdasiaieliilinidiiieacsinaiaa 12

Watson v. Fort Worth Bank & Trust, 487 U.S. 977

CRITI scccccccccicctinciciitininitiiiaicssasisesaliaissidiaiiiadtesatiasceliaias staan 13

STATUTES

29 U.S.C. § 206, et seg. (Equal Pay Act) ...........:cccccccecseeeeeees 4

SD CEG, © BOGE cccccctsieceisssecsiititdiniitaiiiineiitaiiiadicmauansdl 4

42 U.S.C. § 2000e, et seg. (Title VII of the Civil

Bate Bal) caccocccccnsssscsiccssscsesecsctninssnnstntanecesstaseasenianainiiiael 4

RULES

Beam. Ch. FR, BD cccsccacsecssnssesscsscccsscionssscnsssenteenseintescndiammaneialiia 9

Bid. TR. Barth. BR BID ccccccnscscssestccntnstssnssenssesncnmnianiabiaamma 8

Rf, ewe 4

Bee, Fe. Gite TS Gee ccccssccnsentctntncccntsenstssisnemeiiiee 10

Se Ee | fF a ee 10

Boverttn Cosel TOD BD cccccececcccdiccccnscncsnstnianessmessinusinsnas 8

INTRODUCTION

Respondents, Kohl’s Food Stores, Inc. and The Great

Atlantic & Pacific Tea Company, Inc., respectfully oppose the

Petition for a Writ of Certiorari to review the judgment of the

United States Court of Appeals for the Seventh Circuit in

this case. The Petition should be denied because the question

presented does not involve conflicting decisions of courts of

appeals or an important question of federal law; nor was the

decision of the court below premised on an erroneous legal

standard.

Petitioners assert that this Court’s decision in Reeves v.

Sanderson Plumbing Products, Inc., __ U.S. —, 120 S. Ct.

2097 (2000) created a new controlling precedent requiring a

re-examination of the factual record. But, Reeves did not

change the law in the Seventh Circuit. Therefore, the Peti-

tion simply seeks further appellate review of the lower

courts’ concurrent application of Reeves’ principles to the

undisputed facts in this case. Moreover, because Petitioners

failed to raise their Reeves argument in the Seventh Circuit,

it is inappropriate for them to raise it here.

COUNTERSTATEMENT OF THE CASE

A. Factual Background!

Kohl’s Food Stores, Inc. (“‘Kohl’s’’) owns and operates

retail grocery stores in the state of Wisconsin. Kohl’s is a

wholly-owned subsidiary of The Great Atlantic & Pacific Tea

Company, Inc. (App. 21-22; R. 194 9 1).

1. The Differences Between Produce, Bakery

and Deli Department Jobs

Each store has a produce department, bakery depart-

ment, and deli department (R. 194 1 10). Bakery employees’

primary functions are baking and packaging pre-baked goods

(App. 40-41; R. 194 917 167-169). Deli employees’ primary

function is to serve customers, e.g., slice meats and cheeses

and fill containers with salads based on customer requests

(App. 35; R. 194 17 106-107). Produce employees are respon-

sible for maintaining the freshness of highly perishable

fruits and vegetables (App. 26-28; R. 194 19 40-44, 50-51).

As found by the jury, the diverse work performed by the

managers and clerks in these departments requires substan-

tially different skill, effort and responsibility, and is per-

formed under dissimilar working conditions. For example:

¢ Produce department employees are required to lift,

carry and stock thousands of pounds more product each

week than their bakery and deli counterparts. They also

unload their own deliveries; bakery and deli employees gen-

erally do not (App. 29-31, 36-38, 43-44; R. 194 99 77-80,

95-96, 114-117, 137-144, 181-185, 186-190).

1 The facts are fully set forth in the district court’s decision granting

summary judgment on the Title VII class claim. Set forth below is a

summary of the facts which relate to the issue raised in the Petition for

a Writ of Certiorari.

¢ Produce employees have far greater financial

responsibilities since the produce departments typically gen-

erate more than twice the revenue and twice the profit gen-

erated by either the bakery or deli departments in the same

stores (App. 51; R. 194 17 210-216).

¢ Unlike bakery and deli employees, produce employ-

ees cannot rely on fixed “‘sell-by’’ dates to determine when to

discard product (and thereby impact the store’s profit mar-

gin). They have to independently judge the freshness and

saleability of each perishable fruit and vegetable on their

shelves (App. 27-28, 38, 43; R. 194 919 41-43, 120, 177).

2. Kohl’s Wage Scheme

Wages are set by collective bargaining between Kohl’s

and the United Food and Commercial Workers Union

(““UFCW’’) (R. 194 9 18). Produce and bakery employees are

represented by Local 1444, and deli employees are primarily

represented by Local 73A (App. 45; R. 194 1 12).

Bakery and deli clerks are a subset of employees classi-

fied as “department clerks’”’ in the labor agreements. All

department clerks, regardless of their sex, are paid according

to the same wage scale. Produce clerks, on the other hand,

are a subset of employees classified as “‘regular clerks.” All

regular clerks, regardless of their sex, are similarly paid

according to the same wage scale (App. 47; R. 194 17 14-15).

In 1995 and 1998, both Locals 1444 and 73A negotiated

higher wage rates for regular clerks than department clerks

(App. 49). During the relevant time period, approximately

63% of the higher-paid regular clerks were women

(R. 194 71 219).

The UFCW Locals which represent all Plaintiffs agreed

to the wage rates at issue. Local 1444, which represents both

produce and bakery managers, never proposed equalizing

their wages. Local 73A, which represents deli employees,

only proposed equalization for deli managers after this litiga-

tion was filed in 1998. With respect to clerks, in 1995 and

1998, the UFCW Locals offered wage proposals that would

have equalized the wages of department and regular clerks

(App. 49; R. 194 7 201).

Kohl’s did not agree to any equalization proposals

(1) because the Union did not press them and (2) Kohl’s

believed produce employees shouldered greater financial

responsibility, exercised substantially greater independent

judgment, and exerted substantially more physical effort

than bakery and deli employees (App. 76; R. 194 9 206).

Additionally, market pressure did not drive Kohl’s to equal-

ize the wages because several of Kohl’s largest competitors

historically maintained the same wage differential between

bakery, deli and produce employees (App. 50; R. 194

1 206-208).

B. Proceedings

1. The District Court Proceedings

Petitioners’ Complaint contained across-the-board alle-

gations that Respondents discriminated against them on the

basis of their gender by denying them opportunities for

placement, training, promotion and compensation in viola-

tion of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e, et seg. (“Title VII’’), and wage discrimina-

tion under the Equal Pay Act, 29 U.S.C. § 206, et seq.

ty ‘EP A’’),

Pursuant to Fed. R. Civ. P 23(b)(2), the district court

certified for class treatment only Petitioners’ claim of dis-

criminatory compensation under Title VII (R. 116). The dis-

trict court also allowed the EPA claim to proceed as an opt-in

representative action pursuant to 29 U.S.C. § 216(b) (R. 116).

Prior to trial, the district court granted summary judg-

ment to Respondents on the class-wide Title VII compensa-

tion claim, holding that, regardless of whether the jobs in

question were substantially equal, Petitioners had failed to

present persuasive evidence that Respondents intentionally

paid bakery and deli employees less than produce employees

because of the gender composition of these departments

(App. 74-78). At the same time, the district court also

granted summary judgment on the individual claims of the

15 named plaintiffs, leaving for trial only the EPA claim of

wage discrimination (R. 255). In reaching these decisions,

the district court expressly rejected evidence that Petitioners

now ask this Court to consider:

[T]he job preference statistics relied on by plaintiffs

are of little persuasive value. Among other things,

these statistics reveal that female hirees who

expressed no job preference on their application

were much more likely to be assigned to either a

bakery or deli department and much less likely to

end up in produce than their male counterparts.

Nevertheless, plaintiffs gloss over several crucial

points, not the least of which being that some of

them, as department managers, ‘are responsible for

making many of the allegedly discriminatory

employment decisions that constitute plaintiffs’

gender steering claim.’ See Op. and Order on Class

Cert, Dkt. #116, at 24. As observed by defendants,

the application statistics also show that the phe-

nomenon characterized by plaintiffs as ‘steering’ is

partially the result of self-selection; 279 of the

630-woman sample stated a preference for the

bakery or deli departments, compared to just 24 of

the 224 male applicants. Finally, these statistics do

not account for other factors capable of influencing

job assignments such as the positions and shifts

that were available at the time applications were

filed or any preferences expressed by applicants

during the rest of the application process. See People

Who Care v. Rockford Bd. of Educ., 111 F3d 528,

537-38 (7% Cir. 1997) (statistical study that ‘fails to

correct for salient explanatory variables, or even to

make the most elementary comparisons, has no

value as causal explanation and is therefore inad-

missible in federal court.’)

(R. 255 at 15-16).

On August 13, 1999, a unanimous jury returned a ver-

dict in favor of Respondents, finding that Petitioners had

failed to prove that the jobs of bakery and deli clerks and

managers required substantially the same skill, effort and

responsibility under similar working conditions as their pro-

duce department counterparts (R. 297).

In their post-trial pleadings, Petitioners sought, inter

alia, reconsideration of the district court’s dismissal of the

Title VII compensation claims (R. 304). Petitioners argued

that the district court had failed to consider their so-called

“steering” evidence (Jd. at 7-9). By order dated August 30,

1999, the district court denied the request for reconsidera-

tion (App. 16-18).

2. Seventh Circuit Proceedings

On June 22, 2000, an undivided panel of the Seventh

Circuit affirmed both the jury’s verdict on the EPA claim and

the district court’s summary judgment ruling on the Title

VII claim. In an opinion by Judge Easterbrook, joined by

Judges Bauer and Rovner, the court observed that the jury’s

verdict on the inequality of the jobs in question made Peti-

tioners’ Title VII claim untenable in the absence of proof of

discriminatory hiring, i.e., steering (App. 4). The court then

rejected Petitioners’ steering evidence as being insufficient

to demonstrate intentional discrimination, holding: “‘Plain-

tiffs disavow a steering claim but contend that Kohl’s history

is informative on the wage-discrimination claim. The district

judge did not see how, neither do we’”’ (App. 4-5).

On July 6, 2000, Petitioners filed a petition for rehearing

in the Seventh Circuit on the Title VII claim, arguing, as they

did in the district court, that the panel had failed to credit

their ‘key evidence”’ of alleged discriminatory steering in

the 1990’s. See Appellants’ CA Pet. for Reh’g at 1.

On August 3, 2000, the Seventh Circuit denied the peti-

tion for rehearing.

REASONS FOR DENYING THE WRIT

I. PETITIONERS FAILED TO RAISE THE

QUESTION PRESENTED FOR REVIEW

IN THE COURT BELOW

Petitioners argue that this Court should grant their

Petition because this Court’s decision in Reeves v. Sanderson

Plumbing Products, Inc., _ U.S. —, 120 S. Ct. 2097 (2000),

changed the legal standard for granting summary judgment

in employment discrimination cases and the court of appeals

below applied the wrong standard in affirming summary

judgment for defendants on the Title VII pay discrimination

claim. While Respondents do not agree with this characteri-

zation of the Seventh Circuit’s decision, this is not a ‘‘com-

pelling”’ reason for this Court’s review on a writ of certiorari.

Sup. Ct. R. 10. The Petition is not based on conflicting deci-

sions of courts of appeals; nor does it raise an “important

question of federal law.” Id. Moreover, the Petition is pre-

mised on an argument that Petitioners never raised below

and have therefore waived before this Court.

Petitioners criticize the Seventh Circuit for not consid-

ering Reeves, suggesting that the appellate court somehow

overlooked Reeves because it was issued ten days before the

court of appeals’ decision. Yet, there was no need for the

Seventh Circuit to cite Reeves. Petitioners did not cite Reeves

in the Seventh Circuit proceedings and, in any event, Reeves

did not change the law in the Seventh Circuit. See Reeves,

120 S. Ct. at 2104 (citing Anderson v. Baxter Healthcare

Corp., 13 F3d 1120 (7* Cir. 1994)).

Reeves was decided on June 12, 2000, ten days before the

original decision issued by the court of appeals and

twenty-four days before Petitioners filed their petition for

rehearing. Indeed, Petitioners did not even mention Reeves

in their petition for rehearing. Additionally, nearly two

months passed between this Court’s Reeves decision and the

Seventh Circuit’s denial of rehearing. At no time during this

window did Petitioners file a motion in the Seventh Circuit

seeking supplemental briefing to make their Reeves argu-

ment or submit a citation of supplemental authority pursu-

ant to Fed. R. App. P 28(j) and Circuit Rule 28(e).

Petitioners offer no excuse for their silence below. They

cannot claim that they were unaware of the Reeves decision,

as it was widely publicized and Petitioners’ counsel have

extensive experience in both individual and class action

employment litigation. See, e.g., Furnco Constr. Corp. v.

Waters, 438 U.S. 567 (1978); Box v. A&P Tea Co., 772 F.2d

1372 (7™ Cir. 1985), cert. denied, 478 U.S. 1010 (1986);

Meiressone v. Marriott Corp., 124 FR.D. 619, 625 (N.D. II.

1989) (describing Petitioners’ law firm as “‘a leader in the

employment discrimination field”’)); Orlowski v. Dominick’s

Finer Foods, Inc., 172 ER.D. 370 (N.D. Ill. 1997); EEOC v.

Mitsubishi Motor Mfg., of Am., Inc., 990 F. Supp. 1059 (C.D.

Til. 1998).

Having failed to raise the question presented for review

in a timely fashion in the court of appeals, Petitioners are not

entitled to review in this Court in the absence of extraordi-

nary circumstances, none of which have been asserted or

exist in this case. Adickes v. S.H. Kress & Co., 398 U.S. 144,

147 n.2 (1970); Kosak v. U. S., 465 U.S. 848, 850 n.3 (1984);

FTC v. Grolier, Inc., 462 U.S. 19, 23 n.6 (1983).?

2 The decision in Lords Landing Village Condominium Council of

Unit Owners v. Continental Insurance Company, 520 U.S. 893 (1997),

relied on by Petitioners, does not dictate a different result. There the

petitioners in a diversity case raised the new state supreme court

ruling in the court of appeals, thereby preserving the issue for review

in this Court.

Il. PETITIONERS ARE MERELY SEEKING REVIEW

OF THE LOWER COURT’S FACTUAL

EVALUATION OF THEIR PRETEXT

EVIDENCE

This Court uniformly disfavors petitions which primar-

ily present questions of fact. See United States v. Johnston,

268 U.S. 220, 227 (1925) (‘“‘We do not grant a certiorari to

review evidence and discuss specific facts.””); Sup. Ct. R. 10

(“‘A petition for writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law’’). This is

particularly true where the findings of the district court

receive the concurrence of the court of appeals. In such situa-

tions, the Court has often held that ‘“‘a court of law, such as

this Court is, rather than a court for correction of errors in

fact finding, cannot undertake to review concurrent findings

of fact by two courts below in the absence of a very obvious

and exceptional showing of error.’’ Graver Mfg. Co. v. Linde

Co., 336 U.S. 271, 275 (1949); Goodman v. Lukens Steel Co.,

482 U.S. 656, 665 (1987).

As demonstrated by the substantial factual discussion in

the Petition, that is precisely what Petitioners seek in this

case. They chant the mantra of “‘new legal precedent,’ but

the true import of their argument is their dissatisfaction

with the courts’ rejection of their steering and pretext evi-

dence as insufficient to create a triable issue of fact. Because

Petitioners repeatedly put this evidence before the district

court and the Seventh Circuit and called specific attention to

it when they sought reconsideration/rehearing in both

courts, there is no question the lower courts considered and

rejected the evidence. As discussed in Section III below, the

same factual evaluation of the evidence would be required

under Reeves as was applied in the lower courts. Thus, Peti-

tioners’ reliance on Reeves does not get them around the fact

that a re-review of the factual findings is all that is being

sought here.

Ili. THE RECORD “TAKEN AS A WHOLE” DOES

NOT SUPPORT A REASONABLE INFERENCE

OF INTENTIONAL SEX-BASED PAY

DISCRIMINATION

While Reeves involved a judgment as a matter of law

under Fed. R. Civ. P. 50, this Court reiterated that the stan-

dard for summary judgment under Fed. R. Civ. P 56 “ ‘mir-

rors’ the standard for judgment as a matter of law, such that

‘the inquiry under each is the same.’ ”’ 120 S. Ct. at 2097

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51

(1986)). In the context of summary judgment under Rule 56,

a court must review the record “taken as a whole,”’ giving

“‘credence to the evidence favoring the nonmovant as well as

that ‘evidence supporting the moving party that is uncontra-

dicted and unimpeached.’ ”’ Id. (citations omitted).

This Court emphasized that simply because a plaintiff

offers some evidence challenging the pretextual nature of the

defendant’s asserted reason for its actions, judgment as a

matter of law (and, by analogy, summary judgment) is not

precluded. ‘‘[T]here will be instances where, although the

plaintiff has established a prima facie case and set forth

sufficient evidence to reject the defendant’s explanation, no

rational factfinder could conclude that the action was dis-

criminatory.”’ Id. ““Whether [summary judgment] is appro-

priate in any particular case will depend on a number of

factors. Those include the strength of the plaintiff's prima

facie case, the probative value of the proof that the

employer’s explanation is false, and any other evidence that

supports the employer’s case and that may be properly con-

sidered on a motion for [summary judgment].”’ Id.

A. Petitioners Are Barely Able To

State A Prima Facie Case

Petitioners’ prima facie case of sex-based pay discrimi-

nation was weak. In the absence of direct evidence of inten-

tional discrimination, plaintiffs alleging pay discrimination

under Title VII must establish a prima facie case by demon-

strating that they were denied equal pay for “‘equal work’’ as

defined by the Equal Pay Act. See American Nurses Ass’n. v.

Illinois, 783 F-2d 716, 722 (7" Cir. 1986) (di ing County

of Washington v. Gunther, 452 U.S. 161 (1981)). In denying

summary judgment on the Equal Pay Act claim, the district

court repeatedly commented on how it was a close question

whether the jobs in the bakery, deli and produce departments

constituted “equal work.’’’

B. Petitioners’ “Steering” Evidence

Has No Probative Value

Against the backdrop of a weak prima facie case, the

probative value of Petitioners’ evidence of discriminatory

intent and/or pretext was even weaker. Petitioners’ “‘ani-

mus”’ evidence consisted primarily of decades-old hiring

practices and sex-segregated wage classifications in collec-

tive bargaining agreements, many of which predated the

passage of Title VII, which both the district court and the

court of appeals fully considered and rejected as being proba-

tive of nothing in the 1990’s. The Seventh Circuit aptly sum-

marized the insignificance of this dust-covered evidence:

Plaintiffs make much of evidence that until the late

1960’s Kohl’s not only discouraged women from

applying for certain positions but also had

sex-segregated wage classifications. This practice is

long gone, and no vestige of the discrimination sur-

vives. Wage schedules were merged 31 years ago, -

3 Ultimately, the jury concluded that these jobs did not involve equal

work. This result was foreshadowed by the district court’s observa-

tions of the distinctions between the jobs: “‘Differences in the content

of these tasks [performed by bakery, deli and produce employees] raise

questions whether they are substantially equal’’ (App. 67); “‘produce

managers may use more skill [than bakery and deli managers] when

minimizing shrink and placing orders” (App. 68); “whether the pro-

duce, deli and bakery positions require substantially the same effort is

a closer question” (App. 69); “whether the manager jobs are substan-

tially equal in responsibility represents yet another close question”

(App. 69); produce department refrigerated working conditions

“‘might represent the kind of sustained intensity that would justify a

wage differential’ (App. 73).

and ... women hired during the discriminatory

period today receive the same wages as men hired at

the same time.

(App. 4).

Petitioners’ purported evidence of sex-based ‘“‘steering”’

in the 1990’s was even less probative. Even though they

implicitly acknowledge that this evidence was insufficient to

support either their individual or class-wide claims of steer-

ing, Petitioners nonetheless persist in insisting that this

same evidence was enough to get them a trial on their

class-wide wage discrimination claim. Petitioners’ continued

arguments in this regard demonstrate a fundamental misun-

derstanding of what actual “‘steering’’ evidence is.

Petitioners never identified a single female job applicant

who, during the actionable period, sought and was denied a

produce job or who was discouraged from applying for a

produce job or from whom notice of available openings in

produce jobs was withheld. To the contrary, each of the fif-

teen named plaintiffs uniformly testified that no one at

Kohl’s ever did or said anything which led them to believe

that they could not be produce employees (R. 209 at 3). There

is also no evidence of any written policy, position description

or job application barring women from seeking produce posi-

tions, e.g., ‘‘males only.’’ Compare Teamsters v. United

States, 431 U.S. 324, 356 (1977) (“‘whites only” sign on the

hiring office door). Likewise, Petitioners offered no evidence

to suggest that the hiring managers in the various stores

were instructed by their corporate superiors to direct female

applicants into bakery and deli positions. Correspondingly,

there was no evidence that any male employee was discour-

aged from applying to the bakery or deli departments or that

4 A particular irony of Petitioners’ steering argument is that, given the

decentralized hiring process, it would have been the female class mem-

bers themselves (who were bakery and deli managers) who were

responsible for hiring their own predominantly female workforces.

bakery and/or deli managers were discouraged from hiring

men into their departments (R. 209 at 11).5

Lacking any evidence of actual steering, Petitioners,

instead, relied on raw statistical data as a proxy, claiming

that a rational fact finder could infer intentional discrimina-

tion from such data. This Court has cautioned that statistics

“come in [an] infinite variety and, like any other kind of

evidence, they may be rebutted. In short, their usefulness

depends on all of the surrounding facts and circumstances.”

Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 n.3

(1988) (quoting Teamsters, 431 U.S. at 340). Petitioners’ sta-

tistical evidence was fraught with deficiencies, rendering it

virtually useless in supporting a “‘steering’’ argument. See

R. 255 at 15-16.

Petitioners’ assertions that the district court failed to

consider their steering evidence is contrary to the record.

(Pet. 7, n.3).6 The district court contemporaneously consid-

ered Respondents’ motions for summary judgment on Peti-

tioners’ class claims and on Petitioners’ individual claims.

Petitioners relied on the same steering evidence in opposing

5 Petitioners take great umbrage with the Seventh Circuit’s observa-

tion that the jury’s verdict on the Equal Pay Act theory effectively

made their Title VII claim moot. The point the appellate court made

was simple (and consistent with Reeves). Without some sort of direct

evidence of actual steering, Petitioners would need far more than their

flimsy raw statistics to show that intentional gender discrimination

was the motivation for paying different wages to unequal jobs.

6 Somewhat inconsistently, Petitioners also assert that the district

court did consider their evidence but applied the wrong legal standard.

For example, they claim the trial court rejected their historical evi-

dence because the statistics were not “‘shocking’’ (Pet. 7). To the con-

trary, the district court simply took exception to the label of

“shockingly segregated” which Petitioners had sought to apply to

their statistics, noting that 20% of the produce clerks were women

(App. 75). Similarly, when the district court said that Petitioners’

animus evidence did not ‘‘compel”’ a finding of wage discrimination,

the court was merely characterizing the evidence as indirect, rather

than direct, evidence for purposes of applying the indirect, burden-

shifting method of proof paradigm established in McDonnell Douglas

v. Green, 411 U.S. 792 (1973).

both motions. Therefore, in granting summary judgment on

the class wage claim, the district court did not have to repeat

the detailed analysis of the steering evidence set forth in its

decision on the individual claims (R. 255 at 15-16). Moreover,

Petitioners conveniently ignore the fact that they moved for

reconsideration of the dismissal of their Title VII claim rely-

ing principally on their so-called “‘steering’’ evidence

(R. 304). In denying the request for reconsideration, the dis-

trict court considered the rehashed evidence, but concluded:

‘Nothing in plaintiffs’ present submission convinces me that

it is necessary to revisit those claims” (App. 16-17).

In addition to the inherent deficiencies in Petitioners’

statistics, the record contains numerous other undisputed

evidence that undermined Petitioners’ gender segregation/

steering evidence, to wit: From 1995 to 1998:

* 20% of the produce clerks were women (App. 75; R.

194 4 221).

¢ Jobs in the higher-paid regular clerk classification,

which includes produce clerks, have been predomi-

nantly held by women (R. 194 4 219).

* Of all employees in clerk positions, a roughly equal

number of men and women have held a higher-paid

regular clerk job (R. 194 9 218).

* 52.6% of female applicants desired bakery or deli

positions (R. 86 7 5).

* Among all applicants who expressed preferences for

particular jobs, a higher percentage of women

(52.6%) than men (48%) received a job they

requested (R. 86 1 6).

* The average pay rates of women in clerk positions

generally exceeded the average pay rates of men in

clerk positions in more than half of the years since

1983 (App. 49; R. 194 4 222).

* Since October 1992, the negotiated hourly wages of

bakery and deli managers have increased at a

higher rate than the hourly wages of produce man-

agers (App. 49-50; R. 194 7 202).

* Department clerks have received greater percent-

age wage increases than regular clerks at the same

pay levels (App. 49; R. 194 1 203).

C. Petitioners’ Pretext Evidence Did Not

Establish That Kohl’s Proffered Reason

For The Wage Differential Was Unworthy

of Credence

Petitioners admit that their only evidence of pretext con-

sisted of their attempts to impeach the credibility of Kohl’s

labor negotiator, Dan Daley. They do not contend that the

courts below failed to consider this evidence. They simply

disagree with the courts’ assessment that their impeach-

ment efforts were insufficient to support a reasonable infer-

ence of pretext. |

Here, again, Petitioners claim Reeves offers them salva-

tion with its statement that, at the summary judgment stage,

a court must disregard any evidence offered by the moving

party that has been contradicted or impeached. However, in

this case the lower courts did not violate this teaching of

Reeves. Rather, they concluded that Petitioners had failed in

their attempts to discredit Daley’s testimony, thereby leav-

ing it unimpeached and uncontradicted.

Petitioners have mischaracterized Daley’s so-called

“admissions”’ as being misrepresentations of material facts.

A brief, but truer, review of the record demonstrates that

Petitioners have not accurately described the evidence to this

Court.’

7 Unfortunately, this is not the first time in this litigation that Peti-

tioners have misrepresented the record evidence to avoid an adverse

result. See District Court Order Granting Summary Judgment on

Plaintiffs’ Individual Claims (“[TJhere are troubling contradictions

between deposition testimony provided by plaintiffs and representa-

tions made on plaintiffs’ behalf by their counsel’’) (R. 255 at 13-14).

Petitioners’ mischaracterizations of Daley’s deposition

testimony are myriad:

* Daley did not testify that he developed Kohl’s rea-

sons for the pay differential after the wage rates were negoti-

ated (Pet. at 6). He simply testified that he never explained

them to anyone at Kohl’s, although he discussed the relative

contributions of the various departments with lead negotia-

tor John Rogers (R. 215 at 233-35).

* While Daley acknowledged that Kohl’s did not have

any documents specifically stating the reasons for the pay

differential, Kohl’s, through Daley, produced numerous doc-

uments which contain evidence of the differences between

departments in sales, gross profitability, product freshness,

product weight and shipments (R. 212 1 63).

¢ Daley did not testify that physical effort, financial

contribution, and independent judgment did not account for

the pay disparity. Rather, he could not state what percentage

of the pay disparity was specifically attributable to each of

these individual factors (R. 215 at 246).

Daley’s error as to when in the 1990’s the union pro-

posed wage restructuring does nothing to discredit his testi-

mony as to why Kohl’s maintained the wage differential.

Similarly, the fact that Daley lacked personal knowledge but

had only been told by the unions that the wage gap arose in

the 1960’s when grocery stores first incorporated bakeries

and delis inside the stores is irrelevant to the issue of why

Kohl’s paid bakery and deli employees different from pro-

duce employees in the 1990’s.

These kinds of attack on a decisionmaker’s credibility

are insufficient to impeach his substantive testimony con-

cerning the employer’s rationale for its actions. When the

record clearly demonstrates that differences in effort,

responsibility, revenue and profitability exist between the

jobs in question, and these are the articulated reasons for the

wage differential, Petitioners had to do more than criticize

the documentation or lack of communication on the issue to

show pretext. As the district court observed, Daley did not

have to give the union a complete explanation of all the

reasons for the wage disparity in 1995 “‘because he was

neither asked to do so nor pressed for additional information

after his initial response. . . . [A]bsent some other compelling

motivation, such as a lawsuit, Daley had no reason to volun-

teer more detail. There is nothing inherently suspicious

about his silence on the matter.” (App. 78). See also Godwin

v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9% Cir. 1998)

(“‘[slimply because an ‘explanation comes after the

of litigation does not make it inherently incredible’’); Mer-

rick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9% Cir. 1990)

(fact that the employer did not document its reasons for not

promoting the plaintiff until after the plaintiff sued failed to

establish pretext); McCoy v. WGN Continental Broadcasting

Co., 957 F.2d 368, 373 (7" Cir. 1992) (refusing to give sub-

stantial weight to a position initially asserted in an adminis-

trative proceeding because “‘myriad factors undoubtedly

influence the positions taken in such a forum’’).

CONCLUSION

Not every summary judgment case can or should be

reviewed by this Court. Nor should such cases be remanded

for further consideration in the court of appeals just because

a new decision has issued in this Court which neither alters

the legal standard, nor the outcome, in the courts below.

Given the commonplace nature of the summary judgment

proceedings here, if certiorari is granted or remand ordered

in this case, there would be hundreds of summary judgment

cases which this Court would similarly have to consider.

Accordingly, and for all the foregoing reasons herein, the

Petition for a Writ of Certiorari should be denied.

Respectfully submitted,