# Opposition Brief — Carmena v. Georgia-Pacific Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1001

## Text

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No. 02-298 j SEP 30 2 |

IN THE a

Supreme Court of the Hnited 7

RICHARD CARMENA, CARL DILLON,

and JOHNNY HUGGINS,
Petitioners,
v.
GEORGIA-PACIFIC CORP.,
Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COuRT OF APPEALS FOR THE FirtH Circuit

BRIEF IN OPPOSITION-

Rosert H. BucKLER
Counsel of Record
EvaN H. Pontz
SETH T. Forp
TROUTMAN SANDERS LLP
Attorneys for Respondent
Bank of America Plaza
600 Peachtree Street, NE
Suite 5200
Atlanta, GA 30308-2216
(404) 885-3000

176519 cr

COUNSEL PRESS
(800) 274-3321 * (800) 359-6859

i
QUESTIONS PRESENTED

1. Whether Petitioners offered sufficient evidence to
support their claims of disparate treatment.

2. Whether Petitioners’ claims of breach of the collective
bargaining agreement are preempted by the Labor
Management Relations Act, and, if not, whether Petitioners
offered sufficient evidence that Georgia-Pacific breached the
collective bargaining agreement by failing to promote
Petitioners.

3. Whether the district court properly exercised its
discretion by refusing to reopen discovery.

4. Whether Petitioners failed to submit any evidence
which would support a claim of disparate impact.

ADDITIONAL QUESTIONS PRESENTED

5. Whether Petitioners’ claims of discriminatory
promotions with respect to the July 1996 posting are time
barred under Title VII and 42 U.S.C. § 1981.

6. Whether Petitioners’ Title VII claims regarding the
April 1997 converting mechanic positions and December
1999 general mechanic positions are barred due to Petitioners’
failure to exhaust administrative remedies.

it

LIST OF PARTIES TO THE PROCEEDINGS
AND CORPORATE DISCLOSURE STATEMENT

Petitioners Richard Carmena, Carl Dillon and Johnny
Huggins were Plaintiffs and Petitioners in the proceedings
below.

Respondent Georgia-Pacific Corporation was Defendant
and Appellee in the proceedings below.

Pursuant to Rule 29.6 of the Rules of this Court,
Respondent states as follows:

Georgia-Pacific Corporation is incorporated in the State
of Georgia. Georgia-Pacific Corporation has no parent
company and no publicly held company owns 10 percent or
more of its stock.

ll

TABLE OF CONTENTS

Page
Questions Presented ........-... sees eee eeees i
Additional Questions Presented ............-.-- i

List of Parties to the Proceedings and Corporate
Disclosure Statement ...........eseeeseeees il
Ce ae er eee ree lil
Table of Cited Authorities ...........-..-5.-00-- Vi
ESS Per ere er ee eee e eee eee ee eee 1
Counterstatement of the Case ...........--.+--- 3

A. Updating General Mechanics’ and Converting
Mechanics’ Qualifications ............-. 3

B. The July 1996 Posting For General Mechanic
EP ee eer ee Tr ee eee ee 6

C. The April 1997 Posting For Converting
Mechanic Positions ............-+-++0+- 8

D. The December 1999 Posting For General
Mechanic Positions ............-++se8-: 9
Reasons for Denying the Petition ............--. 11

I. Petitioners Failed To Offer Sufficient
Evidence To Support Their Claims Of
Disparate Treatment ..........---++++-- 11

Il.

Il.

IV.

iv

Contents

A. Petitioners Failed To Present A
Prima Facie Case Of Employment
Discrimination Regarding The Three
Positions At Issue. .... 6... ece cess

B. Petitioners Offered No Evidence That
Georgia-Pacific’s Legitimate, Non-
Discriminatory Reason For Not Offering
Petitioners The Jobs At Issue Was A
Pretext For Discrimination. .........

Petitioners Claims Of Breach Of Collective
Bargaining Agreement Are Barred By The
Labor Management Relations Act And
Unsupported By Record Evidence. .......

A. Petitioners’ Claims Are Preempted and
Barred By The Labor Management
PO ES oi Si econ

B. Georgia-Pacific Did Not Breach The
Collective Bargaining Agreement By
Failing To Award Positions To
UE. ee ee es pare cs

The District Court Properly Exercised Its
Discretion By Refusing To Re-Open
Discovery For An Additional Eight-Month
PS Ss. whee bees CW a eae ee ea es

Petitioners Failed To Submit Any Evidence
Which Would Support A Claim Of Disparate
ES ke Sey Sk eee oh ers ee es

Page

11

15

ti

17

19

20

22

Contents
Page

V. Petitioners’ Claims Are Procedurally Barred. . 26

A. Petitioners’ Claims Of Discrimination
With Respect To the July 1996 Positions
Are Time-Barred Under Both Title VII
ond Sections: TFB. 50k sos euxnsteueees 26

B. Petitioners’ Title VII Claims Regarding
the April 1997 Converting Mechanic
Positions and the December 1999
General Mechanic Positions Are Barred
Because Petitioners Failed To Exhaust
Administrative Remedies For These
CUMS. gv ns bax nnee ieee 28

1. April 1997 Converting Mechanic
POSRIOUE ooo cu dee eee ieasees 28

2. 1999 General Mechanic Positions .. 29

Comesioe .. ns bk ve warn teas ee se eee 30

vi

TABLE OF CITED AUTHORITIES

Page
Cases:
Allen y. First Nat’l Bank of Atlanta, 169 F.2d 221 :
(Sth Ci. TONE) vn i ss sxseee ae eee «i
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105
S. Ct. 1904, 85 L. Ed. 2d 206 (1985) ....... 17, 18, 19
Bienkowski v. American Airlines, Inc., 851 F.2d 1503
(Sth Coe. WORE ov i sacuie see, Sees 14
Black vy. City of Akron, 831 F.2d 131 (6th Cir. 1987)
Cn seenewtsbeee eee kine ene eel awe ae 24-25
Britt v. Grocers Supply Co., 978 F. 2d 1441 (5th Cir.
FFE) nk cskscisyisaccueeee eee 19
Brown vy. General Services Admin., 425 U.S. 820,
96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976) ....... 28
Cabrol v. Town of Youngsville, 106 F.3d 101 (Sth
fs I ye A ee ee 11
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct.
2o48, 91 LL. BE. 20 SOS CUP ceca cueseeee es 11
Chardon v. Fernandez, 454 U.S. 6, 102 S. Ct. 28,
FOL. Be. SEO Cees sc de os eee 26
Clady v. County of Los Angeles, 770 F.2d 1421
(Ol Cae. FS avi ose ciec eee 24

Clark v. Resistoflex Co., 854 F.2d 762 (Sth Cir. 1988)
sw ob wc 5 Siew oe ako eg 26

vil

Cited Authorities
Page
Cramer v. Consolidated Freightways, Inc., 209 F.3d
1122 (9th Cir. 2000) ....... cece eee ee eee eee 19
Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (Sth Cir.
COD ei ccv nu rnkssscbncdavenaessaveess ves 12
Deines v. Texas Dept. of Protective and Regulatory
Servs., 164 F.3d 277 (Sth Cir. 1999) .......--. 14. 20
Delaware State College v. Ricks, 449 U.S. 250,
66 L. Ed. 2d 431, 101 S. Ct. 498 (1980) ....... 26
Dorsey v. Pinnacle Automation, Inc., 278 F.3d 830
(Sth Cir. 2002) .........ceeeeeeee er ereecees 14, 20
Edelman v. Lynchburg College, 122 S. Ct. 1145, 192
L. Ed. 2d 188 (2002) ......... eee eeeeecevees 28
Evans vy. Techs. Apps. & Serv. Co., 80 F.3d 954
(4th Cir. 1996) ........ cece cece cece erereeee 14
Frazier v. Consolidated Rail Corp., 851 F.2d 1447
(D.C. Cir. 1988) ........ cece e cece vvcecceces 25
Frazier v. Garrison I.S.D., 980 F.2d 1514 (Sth Cir.
SO envi coco bes tec tovecsadescuenetnses 14, 20
Goodman v. Lukens Steel Co., 482 U.S. 656, 107
S. Ct. 2617, 96 L. Ed. 2d 572 (1987) ........--- 26

Gore v. Trans World Airlines, 210 F.3d 944 (8th Cir.
EE oaks bias oo db cota es seveceneevecenes 19

viii

Cited Authorities
Page
Griggs v. Duke Power Co., 401 U.S. 424, 91 §. Ct
849, 28 L. Ed. 2d 158 (1971) ....... 23
Harris v. Amoco Production Co., 768 F.2d 669
ls 2S are 22
Hazelwood Sch. Dist. v. United States, 433 U.S. 299.
97 S. Ct. 2736, 53 L. Ed. 24 768 (1977) 25
International Brotherhood of Teamsters » United
States, 431 U.S. 324, 97 §. Ct. 1843, $2 L. Bd. 2d
396 (1977) ..... : 23
Jackson v. Seaboard Coastline R. Co., 678 F.2d 992
(1ith Cir. 1982) .. 9
Jones v. Gerwens, 874 F.2d 1534 (iith Cie 1989)
rere er i4
Jones v. Pepsi-Cola Metro. Bottling Co., 871 F. Sapp
305 (E.D. Mich. 1994) 24
Kumho Tire Co. v. Carmichael, $26 U.S. $74.
119 S. Ct. 1167, 143 L. Ed. 24 238 (1999) 25
LaPierre v. Benson Nissan, lac... 96 F.34 444
(5th Cir. 1996) 12
Livadas v. Bradshaw, $12 U.S. 107, 114 §. Ct. 2068
ee 17, 18

Matsushita Elec. indus. Co., Lid. « Zenith Radic
Corp., 475 U.S. 574, 106 §. Ct. 1348, 89 L. Bd
24 538 (1986) 1

e4 Beater

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P haere Pedienee Gharmdend 4 OF : Tet
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a Lae oe ho. ee eae erent -_ + 000s
Prune > 258 or 6 a4 P¢ :
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Peeve vee ro Fate bee 4 die
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é \ "edad

Cited Authorities

Page

Seavedra v. Murphy Oil USA, 930 F.2d 1104
(Sth Cor. 1991) senna
Seales » Slater, 181 F.3d 703 (Sth Cir. 1999) .....12, 15

Suuth » Phillips, 455 U. S$. 209, 102 S. Ct. 940,
71 L. Bd 24 78 (1982) me il

Sole Serve Corp. » Westowne Assoc., 929 F.2d 160
(St Cur, 1991) 20
Sone © Hiraoka, 920 F 24 1451 (9th Cir. 1990) 29

S. Mary’ Honor Center « Hicks, $09 US. $02.
1553S. Cu. 2742, 125 L. Bd. 2d 407 (1993) 14, 16

Srrouss © Mich. Dept. of Corr., 250 F.3d 336
(6h Cu 2001) 29

Texas Dept. of Community Affairs v. Burdine,
450 US. 248, 101 S. Ci. 1089, 67 L. Ed. 24 207
(1981) 1$, 23

Used Black Firefighters of Norfolh + Hirst,
O04 F 26 844 (4 Cour 1979) 29

Vepentch «© Republic Nations! Bank of Daiias,
723 F.2d 1195 (Se Coe 1984) 29

Wehon + Bisco Indus, Inc, 119 F346 368 (Sth Ci
1997) 14

Wards Cove Packing Co. + Antonio, 490 US. 642,
109 & Cy 2115, 104 L. Ba. 24 733 (1989) 23

xt

Cited Authorities

Page

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

108 S. Ct. 2777, 101 L. Ed. 2d 827 (1988) ..... 24
Williams v. Conoco, Inc., 860 F.2d 1306 (Sth Cir.

BED. cadccetéesecesvedoes ee ee 26
Williams v. Tallahassee Motors, Inc., 607 F.2d 689

(Sa Clg. 1979) 2. cccccccccccccccccccscccees 24
Wise v. E. Dupont de Nemours & Co., 58 F.3d 193

(Sia Cle. 1995) 0. ccccccccccccccccccccscsess 11
Young v. City of Houston, 906 F.2d 177 (Sth Cir.

1990) 4: pe eee 29
Statutes:
Civil Rights Act of 1964, 42 U.S.C. § 1981 ..... passim
42 U.S.C. § 1981(aX1) ee 23
42 U.S.C. § 2000e-S(eX(1) | 26
42 U.S.C. § 2000e-5(M1) 29
Labor Management Relations Act (LMRA),

29 U.S.C. §§ 141-197 2,27, 18

La. Civ. Code. Art. 3492 26

xii

Cited Authorities
Page

Rules:
Pl ee GA Oe BO vvccccctvauress caayeeuseauen 21
ee 6S SS RTT Cr ee 11
Other Authority:
Employment Discrimination Law 3rd Ed., B.

Lindemann and P. Grossman ................ 23, 25

28 C.F.R. § 1601-12(b) (1997) ................. 28

|

The Petition for a Writ of Certiorari should be denied
because the decision below represents a routine application
of settled employment discrimination law and does not
present any issue of general importance. Moreover, the Fifth
Circuit Court of Appeals’ affirmation of the District Court’s
summary judgment may be upheld on numerous alternative
grounds, which neither conflict with the decisions of any
other Circuit nor raise any issues that implicate the
supervisory power of this Court.

INTRODUCTION

Petitioners Richard Carmena, Carl Dillon and Johnny
Huggins are currently employed in the Production
Department of Georgia-Pacific’s Port Hudson, Louisiana
Pulp and Paper Mill. Petitioners filed their Complaint under
Title VII of the Civil Rights Act of 1964 (“Title VII") and
42 U.S.C. § 1981. They allege that due to their race (African-
American), Georgia-Pacific intentionally discriminated
against each of them by failing to offer them three (3) specific
jobs they applied for in the Mill’s Maintenance Department.
These three jobs were: (1) positions as General Mechanics
posted in July 1996; (2) positions as Converting Mechanics
posted in April 1997; and (3) positions as General Mechanics
posted in December 1999.

There are numerous alternative reasons why summary
judgment against Petitioners’ claims was properly entered
and affirmed. All are supported by fundamental tenants of
employment law. First, Petitioners did not meet their burden
of establishing a prima facie case of discrimination, as set
forth in this Court’s opinion in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Indeed, undisputed record evidence demonstrates that
Petitioners were not qualified for any of the three positions
they sought since they each failed objective tests required as
part of the application process. Likewise, the Petition should
also be denied because Petitioners did not offer any evidence

2

to rebut Georgia-Pacific’s articulated legitimate, non-
discriminatory reasons (their failure to pass the required tests)
for not offering Petitioners the positions at issue.

Petitioners’ real complaint in this matter has been that
Georgia-Pacific should have awarded them the disputed
mechanics positions according to strict, Mill-wide seniority, and
Georgia-Pacific’s failure to do so breached the Collective
Bargaining Agreement (CBA). Even assuming Georgia-Pacific
breached the CBA (it did not), Petitioners’ claims are also
preempted by the Labor Management Relations Act, 29 U.S.C.
§ 141 et seq. Further, Petitioners’ argument that they were not
allowed adequate discovery is belied by the record evidence
and premised upon an abuse of discretion argument entirely
unworthy of this Court’s review. In any event, Petitioners’
assertion that this action should have been analyzed under a
disparate impact theory does nothing to support the Petition, as
the record is void of any evidence of disparate impact. Simply
stated, Petitioners failed to submit evidence, of any kind, which
could establish that Georgia-Pacific intentionally discriminated
against them on the basis of their race.

Finally, Petitioners’ claims also fail pursuant to well-
established procedural bars, which Petitioners fail to even
address. Because the undisputed record evidence indicates that
Petitioners knew more than a year before they filed this action
and more than 300 days before filing their EEOC charges that
they had not been awarded the positions posted in July 1996,
their claims with regard to the July 1996 posting are time barred
under both Title VII and 42 U.S.C. § 1981. Likewise, Petitioners’
Title VII claims are barred for failure to exhaust administrative
remedies because (1) they never filed an EEOC Charge with
regard to their claims of discrimination involving the April 1997
Converting Mechanic positions, and (2) they did not received
Notices of Right to Sue from the EEOC with regard to their
claims of discrimination involving the December 1999 General
Mechanic positions.

3

Petitioners’ claims are barred by numerous alternative
legal principles which are neither novel, complex nor
disputed, their Petition for Writ of Certiorari should be
denied.

COUNTERSTATEMENT OF THE CASE'

Georgia-Pacific Corporation (“Georgia-Pacific”) is a
manufacturer and distributor of forest products — including
paper and building products. In the mid 1980’s, Georgia-
Pacific began modernizing its Port Hudson Pulp and Paper
Mill (“the Mill”) near Baton Rouge, Louisiana, where
Petitioners are currently employed. (Aff. of Cliff Andrews
4 3, R. at 862.) In doing so, it updated its processing
equipment and added a new Fine Paper Machine as well as a
Fine Paper Converting Operation. (/d.) The modernization
of equipment continued into the 1990’s, and many of the
new machines operated on a computer-based control system
that allowed for computerized control of the operation of
the equipment. (/d.) This new equipment was far more
technical and computerized than the equipment previously
used. (/d.) The Mill was, therefore, required to upgrade the
qualifications and skills of mechanics hired to maintain and
repair this equipment. (Andrews Aff. q 6, R. at 858.)

A. Updating General Mechanics’ and Converting
Mechanics’ Qualifications

There are two different groups of employees responsible
for maintaining and repairing the pulp and paper production
equipment at the Mill. (Andrews Aff. { 4, R. at 860.)
The first, known as Converting Mechanics, generally work
on basic production equipment, such as “sheeters,” which
are machines that cut paper from large industrial rolls into

1. The Statement of Facts set forth in the Petition is unsupported
by any record citation and seriously misrepresents the record.
Accordingly, Georgia-Pacific provides this Counterstatement, setting
forth the facts and record citations pertinent to the Fifth Circuit’s
affirmation of the district court’s summary judgment decision.

4

their final product size. (Jd.) Converting Mechanics perform
preventative maintenance on these and other production
machines, trouble-shoot the equipment, replace worn out or
broken parts, make adjustments to the machines’ performance
and repair the machines when they malfunction or break
down. (/d.) Because the newer machines that were installed
in the Mill had computer-controlled drives and hydraulic
systems, the Converting Mechanics needed more skills in
electrical and instrumentation work to maintain and repair
these machines, in addition to skills in mechanical crafts such
as pipefitting, millwrighting ani welding. (/d.)

The other group of employees responsible for
maintaining and repairing the Mill’s production equipment
are the General Mechanics, who generally work with
larger and more complex machinery than those serviced
by Converting Mechanics. (Andrews Aff. 9 5, R. at 859.)
The General Mechanic positionis considered a higher level
job classification than the Converting Mechanic position, and
General Mechanics receive a higher rate of hourly pay due
to the more skilled nature of the position. (/d.) The General
Mechanics’ equipment is generdly more dangerous because
they utilize higher temperature, 1igher pressure, and various
chemicals in producing pulp and paper. (/d.) Just like
Converting Mechanics, General Mechanics perform
preventative maintenance on the production machines,
trouble-shoot the equipment, r:place worn out or broken
parts, make adjustments to the nachines’ performance and
repair the machines when they nalfunction or break down.
(/d.) Many of the maintenance and repair needs of the
equipment serviced by General Mechanics are not visually
identifiable by mere inspection. hstead, the maintenance and
repair issues involve chemical >r electrical processes that
General Mechanics have to anticpate, prevent, diagnose and
fix when they occur. (/d.) The modern machines installed in
the Mill that the General Methanics service also have
computer-controlled drives ard sophisticated technical

5

systems. (/d.) Thus, just like Converting Mechanics, the
General Mechanics needed more skills in electrical and
instrumentation work to maintain and repair these machines,
in addition to skills in mechanical crafts such as pipefitting,
millwrighting and welding. (/d.) Performing this work on
these new machines required even higher levels of skills in
electrical and instrumentation work than was required of
Converting Mechanics. (Jd.)

After the modernization of the equipment in the Mill
had been accomplished, an evaluation of the skills needed in
General Mechanics and Converting Mechanics showed that
these employees’ work skills could best be classified
according to two categories: (1) basic education requirements
(reading, writing, and mathematics), and (2) technical craft
knowledge combined with hands-on craft skills. (Andrews
Aff. 97, R. at 857.) To test basic education requirements,
Georgia-Pacific decided to utilize the Test of Adult Basic
Education (““TABE”). (/d.) This is a standardized test used
for preparation by individuals seeking to obtain their high
school general equivalency degree (GED). (/d.) Individuals
would need to receive a passing score on the test of 12.9,
which represents an equivalent knowledge and educational
level of a high school graduate. (/Jd.) The test was
administered by The State of Louisiana’s Christa McAuliffe
Adult Education Center (“the Center’) in Baton Rouge, not
by Georgia-Pacific. (Jd.) The Center would send Georgia-
Pacific a list of all employees who took the TABE and
whether they received a passing score or not. (/d.) The Center
also provided adult education courses for employees who
failed the test but wanted additional education to retake the
test. (/d.)

With regard to the technical craft knowledge and hands-
on craft skills, existing highly skilled mechanic employees
at the Mill were selected by their Union Local, at Georgia-
Pacific’s request, to identify what craft skills and what levels
of proficiency in these skills were necessary to perform the

6

General Mechanic and Converting Mechanic jobs. (Andrews
Aff. 9, R. at 856.) With this information, Georgia-Pacific
worked with a technical consulting company and a craft
training school to develop a written craft test and a hands-on
craft skills test to identify individuals who possessed the
requisite craft skills in the electrical, instrumentation,
pipefitting, millwrighting and welding crafts to perform the
General and Converting Mechanic jobs. (/d.)

B. The July 1996 Posting For General Mechanic Positions

Due to retirements and terminations of General
Mechanics at the Mill during the mid-1990’s, by 1996 the
Mill needed additional General Mechanics for its
Maintenance Department. (Andrews Aff. 9 7, R. at 857.)
Therefore, on July 12, 1996, an Hourly Job Posting form
was posted at the Mill seeking applicants for General
Mechanic positions. (Andrews Aff. J 10; R. at 856-857; Aff.
of Fred Woods { 4, R. at 839; Statement of Uncontested
Material Facts filed May 15, 2000 (hereinafter “SUMF”),
{1 7-8, R. at 884; Dep. of Richard Carmena at 241, R. at
808; Dep. of Carl Dillon at 62, 112, R. at 803, 793; Dep. of
Johnny Huggins (Vol. II) at 176, R. at 775; Exhibit 3 of
Petitioners’ Combined Deposition Exhibits (hereinafter
“Petitioners Dep. Ex.”), R. at 760-767.) As set forth in the
July 1996 job posting, the position of General Mechanic
required: (1) certain minimal levels of background craft
education and craft work experience; (2) a score of at least
12.9 on the Test of Adult Basic Education (TABE); and
(3) sufficient scores on the written craft test and hands-on
craft test to prove that the applicant possessed appropriate
knowledge and skill levels in the skilled crafts necessary to
perform the General Mechanic job, including electrical and
instrumentation skills, and the mechanical skills of
pipefitting, millwrighting, and welding. (Andrews Aff. § 10,
R. at 856-857; Woods Aff. 9 4, R. at 839; Petitioners Dep.
Ex. 3, R. at 760-767.) Petitioners Richard Carmena, Carl
Dillon, and Johnny Huggins, who were all employees in the

aihittd

7

Mill’s Production Department, were three (3) of the seventy-
one (71) individuals who applied for the posted July 1996
General Mechanic positions by signing the Job Posting form.
(Andrews Aff. § 11, R. at 856; Woods Aff. 75, R. at 839;
Carmena Dep. 235, R. at 811; Dillon Dep. 229, R. at 788;
Huggins Dep. (Vol. II) 219, R. at 773; Petitioners’ Dep. Ex.
12, R. at 747-750; SUMF ¥ 10, R. at 884.)

The selection process for filling the July 1996 General
Mechanic positions proceeded in steps. (Andrews Aff. ¥ 12,
R. at 856; Woods Aff. J 6, R. at 839.) First, Georgia-Pacific
screened all of the applications to determine which applicants
had the required preliminary education and experience as
set forth in the job posting. (/d.) All three of the Petitioners
satisfied the initial, minimal education and experience
requirements of the General Mechanic positions, and they
proceeded to the testing process. (/d.)

Petitioner Carmena did not score a 12.9 on his first time
taking the TABE. (Andrews Aff. ¥ 13, R. at 856; Woods Aff.
47, R. at 838.) However, Carmena was permitted to retake
the test after attending refresher adult education classes, and
he passed the TABE on his second try, in time to be
considered for the July 1996 General Mechanic positions.
(Id.) In contrast, neither Petitioners Huggins nor Dillon
passed the TABE, and neither of them attempted to retake
the test — which they were permitted to do — to try to qualify
for the July 12, 1996 General Mechanic positions, even
though they knew they had to pass the TABE to qualify for
the jobs. (Andrews Aff. 4 13, R. at 856; Woods Aff. { 7,
R. at 838; SUMF 4 12-13, R. at 883; Dillon Dep. 65-67,
138, 221-223, R. at 799-801, 792, 788-790; Huggins Dep.
(Vol. I) 195-98 and (Vol. II) 140-47, R. at 782, 776-777.)
None of the three Petitioners received the minimum passing
scores on the written craft test or the hands-on craft skills
test. Andrews Aff. J 14, R. at 855; Woods Aff. 4 8, R. at 837.)
Thus, Petitioners were not qualified for the General Mechanic
positions. (/d.) Accordingly, when Georgia-Pacific completed

8

its selection process for the July 1996 General Mechanic
positions, the available positions were offered to qualified
applicants who had passed the TABE, the written skills test,
and the hands-on test. (Jd.) The decision not to offer the
Petitioners these positions was based on their failure to pass
the required tests establishing their qualifications to perform
the General Mechanic job. (/d.) Both Caucasian employees
and African-American employees who failed to pass the
TABE, the written test and/or the hands-on test were deemed
not qualified for General Mechanic positions. (/d.)

C. The April 1997 Posting For Converting Mechanic
Positions

All eight of the qualified employees who were offered
and accepted the July 1996 General Mechanic positions were
already working as Converting Mechanics in the Mill’s
Maintenance Department. (Andrews Aff. 4 18, R. at 853;
Woods Aff. 9 9, R. at 837.) Because of this, filling the July
1996 General Mechanic positions was going to result in
openings for eight Converting Mechanics. Thus, an Hourly
Job Posting form was posted in April 1997 seeking applicants
to fill these soon-to-be vacant Converting Mechanic
positions. (/d.) Petitioners each applied for the posted April
1997 Converting Mechanic positions. (/d.)

The selection criteria for the April 1997 Converting
Mechanic positions was similar to that used for the July 1996
General Mechanic positions. (Andrews Aff. ¥ 19, R. at 852;
Woods Aff. 4 10, R. at 837.) The April 1997 Converting
Mechanic positions required: (1) certain minimal levels of
background craft work education and craft work experience;
(2) a score of at least 12.9 on the TABE; and (3) sufficient
scores on the written craft test and hands-on test to prove
that the applicant possessed appropriate knowledge and skill
levels necessary to perform the Converting Mechanic job.
(/d.) While each of the Petitioners met the education and
experience requirements for the positions, once again neither

rma

9

Petitioners Huggins nor Dillon passed the TABE, and neither
of them attempted to retake the test — which they were
permitted to do — to try to qualify for the Converting
Mechanic positions, even though they knew they had to pass
the TABE to qualify for the jobs. (Andrews Aff. ¢ 20, R. at
852; Woods Aff. ¥ 11, R. at 836; SUMF $f] 13-14; Dillon
Dep. 65-67, 138, 221-223, R. at 799-801, 792, 788-790;
Huggins Dep. (Vol. I) 195-98 and (Vol. II) 140-47, R. at 782,
776-777.) Furthermore, all three of the Petitioners also failed
to receive the minimum passing scores on the written craft
test and the hands-on craft skills test. (Andrews Aff. ¢ 20,
R. at 852; Woods Aff. ¢ 11, R. at 836.) Thus, Petitioners were
not qualified for the Converting Mechanic positions. (/d.)
Accordingly, when Georgia-Pacific completed its selection
process for the April 1997 Converting Mechanic positions,
the available positions were offered to qualified applicants
who had passed the TABE, the written skills test, and the
hands-on test. (/d.) The decision not to offer Petitioners these
positions was based on their failure to pass the required tests
establishing their qualifications to perform the Converting
Mechanic job. (/d.) Both Caucasian employees and A frican-
American employees who failed to pass the TABE, the written
test and/or the hands-on test were deemed not qualified for
the Converting Mechanic positions. (/d.)

D. The December 1999 Posting For General Mechanic
Positions

In late 1999, the Mill again needed additional General
Mechanics. (Andrews Aff. ¢ 21, R. at 851; Woods Aff. ¢ 12,
R. at 836.) A General Mechanic Job Posting form was posted
at the Mill in December 1999, and Petitioners cach applied
for the posted positions. /d. The requirements for selection
as a General Mechanic again were: (1) certain minimal
levels of background craft work education and crafi
work experience; (2) a passing score on the TABE; and
(3) sufficient scores on the written craft test and hands-on
craft test to prove that the applicant possessed appropriate

knowledge and skill lewels im chilled crafts seceesery to
perform the General Mechamec pod. om bademg thectraciel and
instrumentation skills, and the mechanical ehille of

pipefitting. millwrighting. and welding (Ad )

While each of the Petitioners met the edecetion and
cipenence requitements for the December 1999 Gomera!
Mechanix potstoms ome agast merther Petetnomert Maggot
nor Dillon passed the TABE. amd mevther of them: schemypned
to retake the test — whoch they were permetted to do | te
try to qualify for the Ceemeral hex frame prometaceme eer hong
they knew they had to pase the TABE to qualify for the pote
Andrews Aft. 4 22, BR. at 851, Woods AM 415, R. a BS,
SUMP Fj 13-14, R. ot 76, Dillon Dep. 65-67, 134, 27).
223, R. at 799-801, 792, 7ES-790, Haggees Dep (Vel I) 19%.
98 and (Vol. II) 140-47, BR. at TE, 776-777). Parte, of
three of the Petstoomers sleo fashed to texeree Che stestertnete
Pareng Kore om the written craft teet end Ghee hemde om cree
skills test. (Andrews Afl 4 22, BR. af 851, Weeds A@ 4 1),
R. at 635.) Thes, Petitioners were act qualified Gr Ge
General Mecham potstaome (Jd) le w&dtxom Pemenener
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12

- the Circuits. The case at hand involves nothing more than a
routine application of that framework to a record, which
contains no evidence of discrimination.

It is well established that the first step in the burden
shifting process requires Petitioners to offer evidence
sufficient to establish a prima facie case of discrimination.
Id.; Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000).
To establish this prima facie case of race discrimination,
Petitioners must show: (1) they are members of a protected
group; (2) they applied for the positions at issue and were
qualified for these positions; (3) they were rejected for the
positions; and (4) Georgia-Pacific either hired individuals
outside the protected class or continued to seek applicants
with the Petitioners’ qualifications. /d.; Scales v. Slater, 181
F.3d 703, 708 (Sth Cir. 1999); LaPierre v. Benson Nissan,
Inc., 86 F.3d 444, 448 (Sth Cir. 1996); Davis v. Chevron
U.S.A., Inc., 14 F.3d 1082, 1087 (Sth Cir. 1994).

The undisputed record evidence demonstrates that
Petitioners did not establish a prima facie case of
discrimination because they were not qualified for the three
Maintenance Department positions they sought. While
Petitioners applied for the July 1996 General Mechanic
positions, the April 1997 Converting Mechanic positions, and
the December 1999 General Mechanic positions at the Mill,
the uncontroverted record evidence shows that they did not
meet the minimal qualifications set by Georgia-Pacific for
these jobs. It is uncontested that Dillon and Huggins failed
to receive the required passing score on the TABE, which
was a prerequisite qualification for all three of the jobs.
(Andrews Aff. {4 13, 20, 22, R. at 856, 852, 851; Woods
Aff. 79 7, 11, 13, R. at 838, 836, 835; SUMF ff 13-14, R. at
876.) In fact, Dillon and Huggins admitted in their
depositions that when the selection process was open for a!]
three of these jobs, neither of them had passed the TABE,
and neither of them even sought to retake the test after they

13

first failed it, which they were allowed to do. (Dillon Dep.
65-67, 138, 221-223, R. at 799-801, 792, 788-790; Huggins
Dep. (Vol. I) 195-98 and (Vol. II) 140-47, R. at 782, 776-
777.) Thus, Dillon and Huggins were not qualified for the
three jobs.

Likewise, it is undisputed that none of the Petitioners
achieved the required passing score on the written crafts test
and the hands-on crafts skills test, which also were
prerequisite qualifications for all three jobs. (Andrews Aff.
q{{ 10, 14, 19-20, 21-22; R. at 856-857, 855, 851-52; Woods
Aff. Jf 4, 8, 10-13, R. at 839, 838, 835-37.) Thus, Petitioners
simply were not qualified for any of the three Maintenance
Department positions which they sought. (/d.) Indeed,
Petitioners freely admit that they cannot perform the various
tasks listed in the job postings as prerequisites for the jobs.
(Carmena Dep. 238-241, R. at 808-810; Dillon Dep. 221,
R. at 790; Huggins Dep. (Vol. II) 185-86, 258-262, R. at 774,
771.) Petitioners’ failure to pass these tests establishes that
they were not qualified for the positions and accordingly
were properly not offered them. (Andrews Aff. J] 14, 20,
22; R. at 855, 852, 851, Woods Aff. J 8, 11, 13, R. at 838,
835, 837.) Because the undisputed record evidence
establishes that Plaintiffs were not qualified, they did not
establish a prima facie case of race discrimination.

Petitioners have consistently asserted that the tests “have
never been shown to assert any legitimate Georgia-Pacific
business purpose.” ” (Pet’rs’ Br. at 14.) However, such an

2. Petitioners further try to suggest some improper or
discriminatory motive behind the establishment of the testing criteria
for these jobs by asserting — without any support — that the criteria
were set unilaterally by Georgia-Pacific. (See Pet’rs’ Br. at 14.) This
assertion is incorrect and unsupported by any record evidence.
Pursuant to the CBA and general principles of labor law, Georgia-
Pacific does not and cannot change terms and conditions of unionized
employees’ employment unilaterally. (Pet’rs’ Dep. Exh. 14 at Art. I,

(Cont'd)

14

argument contributes nothing to a cognizable claim of
discrimination, and does not assist Petitioners in setting out
their prima facie case. Indeed, it 1s well-settled that
employment discrimination laws do not protect employees
from personnel decisions with which they disagree, and they
are not intended to transform courts into personnel managers.
See, e.g., Dorsey v. Pinnacle Automation, Inc., 278 F.3d 830,
836 (8th Cir. 2002); Deines v. Texas Dept. of Protective and
Regulatory Servs., 164 F.3d 277, 281 (Sth Cir. 1999); Jones
v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989). Rather,
employment discrimination laws only protect employees
from decisions that are unlawfully motivated by the
employees’ status as members of protected classes. I/d.;
Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1508
(Sth Cir. 1988). The employer, not the employee, determines
the qualifications for a particular job. See, e.g., Deines, 164
F.3d at 281 (citing Walton v. Bisco Indus., Inc., 119 F.3d 368,
372 (Sth Cir. 1997). An employer may utilize whatever
method it chooses to identify which applicants are qualified
for a job as long as those methods are nondiscriminatory.
Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 960 (4th Cir.
1996); Frazier v. Garrison I.§.D., 980 F.2d 1514, 1525
(5th Cir. 1993); Moore v. Southwestern Bell Telephone Co.,
593 F.2d 607, 608 (Sth Cir. 1979).

Employment discrimination laws do not allow Petitioners
to establish that they are qualified merely because they say
they are. No matter how steadfast their belief that they were
qualified for the job openings, the undisputed fact remains

(Cont’d)

§ 2). Thus, these job criteria, along with other changes affecting
unionized employees’ employment conditions, were negotiated with
the Union before they were implemented. (/d.) Petitioners offered
no evidence that any change was made unilaterally, and Petitioners,
not Georgia-Pacific, bear the burden of proof on this and every other
aspect of their discrimination claims. St. Mary’ Honor Center v.
Hicks, 509 U.S. 502, 113 S. Ct. 2742-48, 125 L. Ed. 2d 407 (1993).

15

that they did not meet the qualifications Georgia-Pacific had
established for these positions. Petitioners failed to state a
prima facie case of race discrimination as to any of the three
positions at issue because they were not qualified for the
jobs. Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); Scales v.
Slater, 181 F.3d 703, 711-712 (Sth Cir. 1999). This well-
settled principle of law simply does not merit review.

B. Petitioners Offered No Evidence That Georgia-
Pacific's Legitimate, Non-Discriminatory Reason
For Not Offering Petitioners The Jobs At Issue Was
A Pretext For Discrimination.

Even if there were some novel factual issue or conflicting
legal precedent meriting this Court’s review of Petitioners’
qualifications (which there is not), the Petition should
nevertheless be denied because Petitioners failed to offer
evidence to rebut the legitimate, non-discriminatory reason
offered by Georgia-Pacific to explain why Petitioners were
not offered the positions they sought. Reeves, 120 S. Ct. at
2106; Nowlin v. Resolution Trust Corp., 33 F.3d 498, 507
(Sth Cir. 1994). Georgia-Pacific has shown that it did not
offer the three positions to Petitioners because they did not
pass the tests for these positions. (Andrews Aff. J 14, 20
22; R. at 856, 852, 851; Woods Aff. 49 8, 11, 13, R. at 838,
836, 837.) This is a legitimate, non-discriminatory reason
that satisfies Georgia-Pacific’s responsibility under the
burden-shifting analysis. (/d.)

Since Georgia-Pacific met its burden, Petitioners
were left with the “ultimate burden” of offering sufficient
evidence on which a factfinder could conclude that Georgia-
Pacific “intentionally discriminated against” them. Reeves,
120 S. Ct. at 2106. Petitioners could have satisfied this
ultimate burden by offering sufficient evidence showing that
the legitimate reasons offered by Georgia-Pacific were not
its true reasons, but were a pretext for discrimination. Jd.

16

(citing St. Marys Honor Center, 509 U.S. at 507-508.
“It is not enough . . . to disbelieve the employer; [there must
be sufficient evidence upon which] the factfinder [can
reasonably] believe the Petitioners’ explanation of intentional
discrimination.” Jd. at 2108 (emphasis in original). Thus, to
have avoided summary judgment, Petitioners were required
to present evidence that both (1) rebutted Georgia-Pacific’s
non-discriminatory reason; and (2) created an inference that
race was a determinative factor in the challenged decisions.
Id.; Rhodes v. Guiberson Oil Tools Div., 75 F.3d 989, 994
(5th Cir. 1996). Petitioners offered no record evidence on
either of these points.

Here, Petitioners offered no evidence to suggest that they
were discriminated against or in any way treated differently
due to their race or that the stated reason they did not get the
jobs they sought — their lack of passing the qualification
tests — was a pretext for discrimination. Georgia-Pacific
chose job qualifications criteria that it reasonably decided
were necessary for General Mechanic and Converting
Mechanic positions. (Andrews Aff. Jf 3-9, R. at 856-860.)
These criteria were undisputedly applied to all applicants,
regardless of race, and various employees of all races were
deemed not qualified for the jobs at issue because of their
failure to meet these criteria. (Andrews Aff. J 14, 20, 22;
R. at 855, 852, 851; Woods Aff. Ff 8, 11, 13, R. at 838, 836,
835.) Only employees who satisfied the qualification criteria
were Offered the jobs Petitioners sought. (/d.) Petitioners even
recognize that the selection process adversely affected non-
African-Americans as well; Petitioners state that each of the
required tests were unfair to anyone who did not pass them.
(Dillon Dep. 63, 69, R. at 802, 798; Carmena Dep. 179-80,
222-23, R. at 815-16; 813-14; Huggins Dep. (Vol. I) 25, 37,
R. at 784, 783.) This is not evidence of discrimination.
This is just more evidence that Petitioners did not pass the
qualification tests all applicants had to pass to be eligible
for the jobs at issue. Because Petitioners failed to present

17

evidence that Georgia-Pacific’s stated reason for its decisions
was pretext for race discrimination, the lower courts’
decisions were correct, and the Petition should be denied.

II. Petitioners Claims Of Breach Of Collective
Bargaining Agreement Are Barred By The Labor
Management Relations Act And Unsupported By
Record Evidence.

A. Petitioners’ Claims Are Preempted and Barred By
The Labor Management Relations Act.

Petitioners bring their action as a race discrimination
action under Title VII and § 1981 for intentional
discrimination. The real gravamen of this action, however,
is Petitioners’ claim that Georgia-Pacific violated provisions
of the collective bargaining agreement (CBA) that binds both
the Company and the Union Locals that represent hourly
employees (including Petitioners) at the Mill.’ As such, this
cause of action is preempted by the Labor Management
Relations Act (“LMRA”), 29 U.S.C. §§ 141-197, and
accordingly must be dismissed as a matter of law. Allis-
Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 213, 105 S. Ct.
1904, 85 L. Ed. 2d 206 (1985); Livadas v. Bradshaw, 512
U.S. 107, 122-23, 114 S. Ct. 2068 (1994).

Petitioners clearly assert in their brief that “when the
African-Americans began obtaining seniority, Georgia-
Pacific unilaterally breached the CBA. This is circumstantial
evidence of intentional discrimination.” (Petitioners Br. ai
18.) While these allegations have no merit, such assertions
by Petitioners show that the actual purported legal basis for
Petitioners’ lawsuit is their claim that Georgia-Pacific
violated provisions of the CBA. The LMRA, however,

3. Petitioners state that “the Plaintiffs were denied the
opportunity to present [the CBA].” (Pet’rs’ Br. at 18.) This assertion,
however, is absolutely false, as it cannot be disputed that the CBA
was introduced into the record. (See Pet’rs’ Dep. Exh. 14, R. at 746.)

18

governs the relationship between Georgia-Pacific and the
local Union, of which Petitioners are members, and resolving
their claims about violations of the CBA requires this Court
to interpret the CBA. Petitioners repeatedly ask the Court to
do so. However, the LMRA preempts such action and
accordingly, preempts Petitioners’ claims. Petitioners’ proper
remedy was to file a grievance asserting that Georgia-Pacific
unilaterally modified the CBA and therefore breached the
agreement. If the Union refused to pursue that grievance,
Petitioners could then file an action under § 301. Allis-
Chalmers, 471 U.S. at 213; Livadas, 512 U.S. at 122-23.

Indeed, Section 301 of the LMRA provides that the
federal courts have jurisdiction over “[s]uits for violation of
contracts between an employer and a labor organization
representing employees in an industry affecting commerce
as defined in this Act.” 29 U.S.C. § 185. According to the
well-settled precedent of this Court, when resolution of a
claim is “substantially dependent upon analysis of the terms
of an agreement made between the parties in a labor contract”
or “inextricably intertwined” with the terms of a labor
agreement, then the claim is entirely preempted by the
LMRA. Allis-Chalmers, 471 U.S. at 220, 213.

Petitioners note without analysis or conclusion that a
defense which “only tangentially” implicates a CBA does
not preempt a claim. (Petitioner’s Br. at 17.) Yet, resolving
Petitioners’ instant claims requires the interpretation of
specific terms of the CBA between Georgia-Pacific and the
United Paperworkers International Union. (See Petitioners’
Dep. Exh. 14, R. at 746.) Article V of the CBA, entitled
“Grievance Procedure,” expressly governs the very same
terms and conditions of employment about which Petitioners
complain. As Petitioners have admitted, Article V requires
that employees who believe their rights under the CBA have
been violated must use the grievance procedure provided for
in the CBA. (Dillon Dep. 235-236, R. at 152; Huggins Dep.
(Vol. II) 225-227, R. at 772.) The CBA seis out a detailed

19

three-step grievance solution process leading to arbitration
by the Union. (See Petitioners’ Dep. Exh. 14, R. at 746.)
Furthermore, regarding Petitioners’ specific claims that they
were denied three transfers to positions over employees with
less seniority and that the minimal qualifications that were
required for the positions were improper under the CBA, the
CBA expressly governs the issues which these claims address.
(/d.) Simply stated, Petitioners claim that they should have
been awarded the positions at issue based on the terms of
the CBA, and those terms expressly govern Petitioners’
claims. Thus, by the undisputed facts and law cited above,
Petitioners’ lawsuit is preempted by the LMRA and the CBA
governing the relationship between Georgia-Pacific and
Petitioners’ Union. This principle of law is neither novel nor
disputed.’

B. Georgia-Pacific Did Not Breach The Collective
Bargaining Agreement By Failing To Award
Positions To Petitioners

Even assuming that Petitioners’ claims of breach of the
CBA are not preempted and barred (which they are),
Petitioners have offered no evidence that Georgia-Pacific
breached the CBA by failing to promote Petitioner. According
to Petitioners, the jobs at issue should have been awarded
strictly on Mill seniority and without regard to testing or other
qualifications. (See Petitioners Br. at 29). Neither the law
nor the CBA requires Georgia-Pacific to award the jobs to
persons who in its reasoned judgment are not qualified.
The CBA specifically states that Georgia-Pacific is entitled

4. Despite Petitioners’ assertion to the contrary, there is no lack
of continuity within Fifth Circuit opinions regarding LMRA
preemption. !ndeed, the principles set forth in Allis-Chalmers have
been consistently applied throughout the Fifth Circuit and other
Circuits as well. See, e.g., Gore v. Trans World Airlines, 210 F.3d
944, 950 (8th Cir. 2000); Cramer v. Consolidated Freightways, Inc.,
209 F.3d 1122 (9th Cir. 2000); Britt v. Grocers Supply Co., Inc., 978
F.2d 1441, 1452 (Sth Cir. 1992).

20

to manage “its business, operations, and affairs.”
(See Petitioners’ Deposition Exhibit 14 at Art. IV, § 3, R. at
746.) Moreover, it is well settled that an employer has the
right to determine what is required to perform a job, and to
identify those persons who are qualified. See, e.g., Dorsey,
278 F.3d at 836; Evans, 80 F.3d at 960; Deines, 164 F.3d
at 281; Frazier, 980 F.2d at 1525; Moore, 593 F.2d at 608.
It is undisputed that Georgia-Pacific needed to hire persons
who had the skills necessary to maintain and repair highly
technical, computer-based equipment. (Andrews Aff. 4 3-
9, R. at 856-60.) Contrary to Petitioners’ assertions, the law
simply does not require Georgia-Pacific to pass up qualified
persons and hire unqualified persons, based solely on race
or seniority or any other criteria which Plaintiffs would have
Georgia-Pacific use. Deines, 164 F.3d at 281. There is no
novel or conflicting legal precedent in this regard, and the
Petition should therefore be denied.

III. The District Court Properly Exercised Its Discretion
By Refusing To Re-Open Discovery For An Additional
Eight-month Period.

In an effort to manufacture error by the District Court,
Petitioners argue that “the lower court inappropriately
ruled that discovery was time-barred.” (Pet’rs’ Br. at 19.)
Petitioners’ argument is entirely without merit, as the District
Court properly exercised its discretion by refusing to re-open
discovery during the final, dispositive stages of this action
and by refusing to accommodate Petitioners’ repeated
attempts to engage in untimely discovery.

In January, 2001, Petitioners decided that they wanted
to reopen the discovery period in this case for an additional

5. A review of the District Court’s decision regarding
Petitioners’ belated requests for discovery before granting summary
judgment is limited to whether the District Court’s decision was an
abuse of discretion. See, e.g., Solo Serve Corp. v. Westowne Assoc.,
929 F.2d 160, 167 (Sth Cir. 1991).

21

period of eight (8) months. (See Petitioners’ Motion to Set
Status Conference, R. at 376.) Quite reasonably, the District
Court denied Petitioners’ motion as untimely. Indeed,
Petitioners’ request came only after they already had over
ten (10) months — from April 9, 1999 through February 15,
2000 — to conduct discovery in this case. (Amended
Scheduling Order, R. at 97.) Moreover, Petitioners did not
decide they wanted additional discovery until almost a year
after discovery had closed and seven (7) months after
Petitioners new counsel had entered her appearance in this
case. (See May 15, 2000 Entry of Appearance of Donna
Grodner, R. at 170.)

It was Petitioners’ burden under both Rule 16 of the
Federal Rules of Civil Procedure and the scheduling orders
entered by the District Court to show good cause for an
extension of the discovery period. See Fed. R. Civ. P. 16(b)
(“a schedule shall not be modified except upon a showing of
good cause”); Saavedra v. Murphy Oil USA, 930 F.2d 1104,
1107 (Sth Cir. 1991) (good cause requirement of scheduling
order must be met). Petitioners did not show good cause
because they could not offer a good reason for their egregious
delay in seeking discovery. To the contrary, Petitioners argued
to the District Court, as they have on appeal, that discovery
should have been reopened simply because “[Petitioners’ |
previous attorneys took not one deposition and failed to
follow up on their document requests.” (Pet’rs’ Br. at 19.)
Clearly, Petitioners’ own decision not to take depositions
during the ten-month discovery period neither explains their
delay in seeking discovery nor justified reopening the
discovery period in such a belated fashion.°

6. Petitioners argue that they should not be blamed for their
delay in seeking discovery because “there was no dalliance” on the
part of their current counsel. (Petitioners’ Br. at 19.) However, it is
well established that Petitioners may not escape the consequences of
their delay by blaming the counsel whom they have chosen as

(Cont'd)

22

The District Court’s orders, discovery rulings, and
deadlines have long been recognized as essential to a fair
and impartial judicial process. See Allen v. First Nat'l Bank
of Atlanta, 169 F.2d 221, 224 (Sth Cir. 1948); Harris v. Amoco
Production Co., 768 F.2d 669, 684 (Sth Cir. 1985). All
litigants must meet the Court’s deadlines and follow the
Court’s orders, and the District Court’s application of this
fundamental rule of law was not an abuse of its discretion
and simply does not merit review by this Court.

IV. Petitioners Failed To Submit Any Evidence Which
Would Support A Claim Of Disparate Impact.

Petitioners assert that the lower courts erred by failing
to analyze Petitioners’ claims “as a disparate impact case.”
(Pet’rs’ Br. at 21). Specifically, Petitioners argue that the
qualification tests that they did not pass are discriminatory
because they had a disparate impact on them as African-

(Cont'd)

representatives. Pioneer Investment Services Company, Petitioner v.
Brunswick Associates Limited Partnership, 507 U.S. 380, 397, 113
S. Ct. 1489, 1499, 123 L. Ed. 2d 74 (1993)). Indeed, contrary to
Petitioners’ assertion that they were, “for all purposes” pro se,
Petitioners were represented by counsel throughout the discovery
period. (Pet’rs’ Br. at 19; April 13, 2000 Order granting Mot. to
Withdraw As Counsel, R. at 115.) Moreover, Petitioners’ current
counsel had been in this case for seven (7) months before untimely
requesting that discovery be re-opened. Therefore, all of the fault
for waiting so long after discovery closed to try to seek more
discovery cannot be placed at the feet of Petitioners’ previous counsel.

7. Petitioners’ initial Complaint and Amended Complaint assert
that they were treated differently and not offered jobs because of
their race. As discussed in Part I of this brief, this is a claim for
intentional discrimination based on a disparate treatment theory —
one that fails in this instance. While Georgia-Pacific strongly contends
that Petitioners have never properly asserted a disparate impact claim
regarding any aspect of their employment, any such claim was
properly dismissed because Petitioners failed to offer any evidence
to support that claim.

23

Americans. However, it is a fundamental tenant of
employment law that to state a legitimate “adverse impact”
claim under Title VII, Petitioners are required to show that a
specific, facially neutral employment practice or policy has
a statistically significant, disproportionate negative impact
which is not justified by legitimate business considerations.*
International Brotherhood of Teamsters v. United States, 431

U.S. 324, 335 n.15, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977);
Griggs v. Duke Power Co., 401 U.S. 424, 430-32, 91 S.Ct

849, 28 L. Ed. 2d 158 (1971); Wards Cove Packing Co. v.
Antonio, 490 U.S. 642, 655, 109 S. Ct. 2115, 104 L. Ed. 2d
733 (1989); Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 252 n.5, 101 S. Ct. 1089, 67 L. Ed. 2d 207
(1981); Rivera v. City of Wichita Falls, 665 F.2d 531, 545
(Sth Cir. 1982); see also Employment Discrimination Law,
3rd Ed., B. Lindemann & P. Grossman, et al., at pp. 89-103.
Because Petitioners failed to present any evidence of
disparate impact, their assertion that the district court should
have analyzed their claims under that theory 1s moot and does
not deserve this Court’s review.

Indeed, Petitioners specificaliy admit that they “were
unable to show that Georgia-Pacific’s [qualification testing}
scheme. . . served no legitimate purpose.” (Pet’rs’ Br. at 20.)
Moreover, despite Petitioners’ arguments to the contrary, the
record in this case contains absolutely no relevant statistical
evidence showing any significant statistical disparity between
workers of different races due to a specific employment
practice or policy of Georgia-Pacific. Rather, Petitioners
attempt to support their claims of discrimination with
inapplicable and irrelevant numbers which have been
repeatedly and universally rejected as a basis for proving

8. Section 1981 requires a showing of intentional
discrimination, and the disparate impact form of proof therefore
does not apply to Petitioners claim under that statute. See 42 U.S.C.
§ 1981(a)(1) (disallowing disparate impact claims).

24

discrimination on the grounds that they are not statistically
significant.’

Specifically, Petitioners’ comparison of raw numbers of
African-Americans and non-African-Americans who applied
for and received each of the three positions at issue
demonstrates absolutely nothing. Rather, the small samples
used within Petitioners’ comparison do not establish any
disparate impact, and are directly at odds with the controlling
precedent of every circuit. Petitioners argue that selecting
one (1) of six (6) blacks tested and seven (7) of twenty-three
(23) whites tested in connection with the 1996 posting does
not meet a “4/Sths test” which they claim establishes
discrimination. (Pet’rs’ Br. at 9.) However, this “4/5ths test”
has been roundly criticized, Watson v. Fort Worth Bank &
Trust, 487 U.S. 977, 995, 108 S. Ct. 2777, 2789, 101 L. Ed.
2d 827 (1988); Clady v. County of Los Angeles, 770 F.2d
1421, 1428 (9th Cir. 1985) (noting that the 4/Sths test “has
been sharply criticized by courts and commentators”), and it
is absolutely meaningless in cases such as this one where
the sample size (the total raw numbers of successful job
applicants versus total applicants) is too small to have any
probative value. See Williams v. Tallahassee Motors, Inc.,
607 F.2d 689, 693 (Sth Cir. 1979). In fact, the group of only
twenty-nine employees tested by Georgia-Pacific in 1996 and
utilized within Petitioners’ comparison is even smaller than
samples routinely held to be too small to provide a reliable
basis for statistical analysis under the “4/5 test.” See Black

9. In fact, Petitioners note that the District Court had only one
“concern” in rendering summary judgment in favor of Georgia-
Pacific: that supposedly no African-Americans who applied for the
three positions at issue could meet the qualifications. (Pet’rs’ Br. at
13-14.) Yet, even that single concern is based on Petitioners’
mischaracterization of the evidence, Petitioners admit that African-
Americans were awarded some of the positions at issue. (See Pet’rs’
Br. at 8, 11) (one African-American awarded position posted in 1996,
one African-American awarded position posted in 2000, and one
African-American transferred in 2000).

25

v. City of Akron, 831 F.2d 131, 134 (6th Cir. 1987) (sample
size of 75 too small for application of the 4/5 test); Frazier
v. Consolidated Rail Corp., 851 F.2d 1447, 1451 (D.C. Cir.
1988) (samples of 11 and 70 too small); Jones v. Pepsi-Cola
Metro. Bottling Co., 871 F. Supp. 305 (E.D. Mich. 1994)
(189 is too small).

Moreover, Petitioners failed to offer any testimony which
shows that these raw numbers (regarding job applicants) are
statistically significant — in other words, that these numbers
cannot be the result of random chance.'® Employment
Discrimination Law, 3rd Ed. at 90-91. All relevant case law
indicates that the raw numbers offered by Petitioners are
useless without some probative evidence that shows that the
numbers are statistically significant and which rules out the
possibility that the end results of the decisions they illustrate
result from random chance. /d.; Hazelwood Sch. Dist. v.
United States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d
768 (1977); Rendon v. AT&T Technologies, 883 F.2d 388,
398 (Sth Cir. 1989). Accordingly, these raw numbers of job
applicants to the 1996 position simply do not constitute any
evidence of a racially disparate impact or of intentional

10. Petitioners assert that “the trial court improperly made a
credibility determination that Georgia-Pacific’s two affidavits . ..
were entitled to more credibility than an expert opinion. . .” (Pet’rs’
Br. at 15.) Yet, Petitioners’ attempts to include expert testimony in
this case were untimely, as the District Court had already denied
Petitioners previous untimely attempts to include purported expert
testimony. In addition, a cursory review of Petitioners’ proposed
expert report shows that it fails to meet the criteria for expert
testimony established by Kumho Tire Co. v. Carmichael, 526 U.S.
574, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Indeed, the report
begins with the expert's recognition that he did not have sufficient
information to make a proper analysis of the job criteria at issue,
and then goes on for four pages to list sixteen (16) significant areas
of information (many including multiple subparts) needed for a
properly rendered opinion. Thus, the “expert” report is of no
assistance whatsoever to a consideration of Petitioners’ claims.

26

discrimination. As such, Petitioners’ argument that the lower
courts should have analyzed their claims under a disparate
impact theory does not merit this Court’s review.

V. Petitioners’ Claims Are Procedurally Barred.

A. Petitioners’ Claims Of Discrimination With Respect
To the July 1996 Positions Are Time-Barred Under
Both Title VII and Section 1981.

Petitioners’ claims of discrimination with respect to the
July 1996 posting are time-barred under both Title VII and
§ 1981.!' Title VII requires that Petitioners file a complaint
with the EEOC or state administrative agency within 300
days “after the alleged unlawful employment practice
occurred.” 42 U.S.C. § 2000e-5(e)(1); see also, Delaware
State College v. Ricks, 449 U.S. 250, 256, 66 L. Ed. 2d 431,
438-39, 101 S. Ct. 498 (1980). Likewise, a one year
limitations period for personal injury claims in Louisiana is
applicable to Petitioners’ claims of discrimination under
§ 1981. See Goodman v. Lukens Steel Co., 482 U.S. 656,
107 S. Ct. 2617, 96 L. Ed. 2d 572 (1987); La. Civ. Code.
Art. 3492. Pursuant to the precedent of this Court, the
applicable limitations periods for both Title VII and § 1981
claims begin to run from the time Petitioners knew or should
have known that an adverse decision had been made.
Delaware State College, 449 U.S. 250, 101 S. Ct. 498, 66 L.
Ed. 2d 43 (1980); Chardon v. Fernandez, 454 U.S. 6, 102 S.
Ct. 28, 70 L. Ed. 2d 6 (1981); Williams v. Conoco, Inc., 860
F.2d 1306, 1307 (Sth Cir. 1988); Clark v. Resistoflex Co.,
854 F.2d 762, 765 (Sth Cir. 1988) (cause of action accrues
under § 1981 from the time an employee “knew or should
have known” of the employer’s decision).

11. The procedural arguments presented in Section V, supra,
were raised before both the lower courts. However, the District Court
denied the Summary Judgment motion in which the arguments were
presented, and the Fifth Circuit assumed arguendo that no procedural
bars existed to Petitioner’s claims.

27

Here, Petitioners filed EEOC charges on May 29, 1998
and filed their Complaint with the District Court on
November 30, 1998. (Carmena Dep. 129-132, R. at 819-822;
Dillon Dep. 81-82, R. at 796-797; Huggins Dep. (Vol. I) 202-
204, R. at 781; Petitioners’ Dep. Exs. 7, 18 and 27, R. at
761, 724, 712; SUMF ¥ 21-22, R. at 881; Andrews Aff. § 23,
R. at 850; Woods Aff. 9 14, R. at 834.) Thus, Petitioners’
Title VII claims to the July 1996 positions are time barred if
they knew that they were not awarded the positions more
than 300 days before May 29, 1998 or, in other words, if
they knew they were not selected before August 2, 1997.
Likewise, Petitioners § 1981 claims to the July 1996 positions
are time barred if they knew they were not awarded the
positions more than a year before filing their Complaint or,
in other words, if they knew they were not selected before
November 30, 1997.

The undisputed facts of record clearly demonstrate that
Petitioners each knew (or should have known) that they were
not selected for the July 1996 positions long before either
August 2, 1997 or November 30, 1997. Both Dillon and
Huggins knew that a TABE score of at least 12.9 was required
to qualify for the General Mechanic position, and both knew
as early as September 1996 that they had not passed the test
in their only attempt at doing so. (Dillon Dep. 65-69, R. at
798-801; Huggins Dep. Vol. I: 198, R. at 782.) Moreover,
Carmena does not dispute that he received a September 11,
1997 memo notifying him that he was not selected for the
General Mechanic position. (Carmena Dep. at 107, R. at
1054.) Finally, all three Petitioners specifically complained
to management of discrimination in connection with the
General Mechanic position by at least July of 1997. (Carmena
Dep. 83-84, 91-92, R. at 156; Huggins Dep. Vol II: 135,
R. at 156 & Petitioners’ Dep. Ex. 15; Dillon Dep. 76-78, R.
at 156.) Because Petitioners each knew they were not selected
for the position posted in July 1996 long before the
limitations period applicable to claims under Title VII and

28

§ 1981, their claims are time-barred according to the well-
established precedent of all Circuits.

B. Petitioners’ Title VII Claims Regarding the April
1997 Converting Mechanic Positions and the
December 1999 General Mechanic Positions Are
Barred Because Petitioners Failed To Exhaust
Administrative Remedies For These Claims.

Exhaustion of administrative remedies is an absolute
prerequisite to recovery under Title VII. See, e.g., Brown
v. General Services Admin., 425 U.S. 820, 96 S. Ct. 1961,
48 L. Ed. 2d 402 (1976); Rhodes v. Guiberson Oil Tools Div.,
927 F.2d 876, 878 (Sth Cir. 1988). Because Petitioners failed
to pursue remedies through the EEOC prior to filing a Title
VII claim regarding either the 1997 Converting Mechanic
positions or the 1999 General Mechanic positions, the District
Court properly rendered summary judgment as to Petitioners’
claims for those positions, and the Petition should be denied.

1. April 1997 Converting Mechanic Positions

Petitioners each filed two EEOC Charges alleging
discrimination by Georgia-Pacific. Petitioners’ claims of
discrimination based on their not being offered the April 1997
Converting Mechanic positions were not included in either
their first EEOC Charges filed in 1998, or their second EEOC
Charges, filed in 2000. (Pet’rs’ Dep. Exs. 7-8, 18-19, and
27-28; R. at 753-761; SUMF ¥ 21-22, R. at 881; Andrews
Aff. | 23 and Ex. A, R at 850 and 848; Woods Aff. J 14 and
Ex. A, R. at 834 and 832.) Title VII claims that are not
contained in Petitioners’ EEOC Charges cannot be added to
the Petitioners’ Title VII lawsuits emanating from those
Charges. A court may only address those claims that were
asserted in the EEOC Charges or which could reasonably be
expected to grow out of the scope of the EEOC’s investigation
of the Charges. Edelman v. Lynchburg College, 122 S. Ct.
1145, 1148 n.2, 192 L. Ed. 2d 188 n.2 (2002) (quoting
29 C.F.R. § 1601-12(b) (1997)); Strouss v. Mich. Dept. of

29

Corr., 250 F.3d 336, 342 (6th Cir. 2001); Sosa v. Hiraoka,
920 F.2d 1451, 1456 (9th Cir. 1990); Young v. City of
Houston, 906 F.2d 177, 179 (Sth Cir. 1990); Vuyanich v. .
Republic National Bank of Dallas, 723 F.2d 1195, 1198-1201
(Sth Cir. 1984), cert. denied, 469 U.S. 1073, 105 S. Ct. 567,
83 L. Ed. 2d 507 (1984); Because Petitioners never filed an
EEOC Charge regarding the April 1997 Converting Mechanic
positions, they are barred from bringing Title VII claims for
these positions.

2. 1999 General Mechanic Positions

In the EEOC Charges Petitioners filed in 2000, they
allege that Georgia-Pacific discriminated against them by not
offering them General Mechanic positions posted in
December 1999. (Andrews Aff. § 23 and Ex. A, R. at 850
and 848; Woods Aff. § 14 and Ex. A, R. at 834 and 832.)
However, the EEOC investigations as to these Charges were
still pending throughout Petitioners’ suit in District Court,
and Petitioners never introduced evidence that they had been
_ issued Right to Sue Notices on the claims contained in these
Charges. (/d.) Petitioners bear the burden of proof in this
regard. Jackson v. Seaboard Coastline R. Co., 678 F.2d 992
(11th Cir. 1982); United Black Firefighters of Norfolk v. Hirst,
604 F.2d 844 (4th Cir. 1979) Therefore, any Title VII claims
covered by these Charges are not ripe for judicial
consideration. 42 U.S.C. § 2000e-5(f)(1); Pinkard v. Pullman
Standard, 678 F.2d 1211, 1218 (Sth Cir. 1982).

30
CONCLUSION

This case presents no issue that merits this Court’s
attention or review, and the Petition should be denied.

Respectfully submitted, ;

RosBert H. BUCKLER
Counsel of Record
EvaN H. Pontz
SETH T. Forp
TROUTMAN SANDERS LLP ;
Attorneys for Respondent i
Bank of America Plaza :
600 Peachtree Street, NE

Suite 5200

Atlanta, GA 30308-2216 :
(404) 885-3000

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0309%3A3. Public record. Not legal advice.