Opposition Brief — Hopkins v. United Parcel Service, Inc.

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No. 00-409

In The J

Supreme Court of the Anited States

LEVON HOPKINS,

Petitioner,

v.

UNITED PARCEL SERVICE, INC.,

Respondent.

On Petition For Writ Or CERTIORARI

To Tue Onto SuPpREME Court

RESPONDENT'S BRIEF IN OPPOSITION

WINSTON E. MILLER

Counsel of Record

Tony C. COLEMAN

Juice C. Foster

Brown, Topp & HEyBuRN PLLC

400 West MarKET, 32"° FLooR

LouisviLLe, KY 40202-3363

(502) 589-5400

(502) 581-1087 Fax

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

) Lor

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29(b) of the Rules of the Supreme

Court of the United States, Respondent United Parcel Service,

Inc. respectfully submits this Corporate Disclosure Statement.

United Parcel Service, Inc., Respondent, is an Ohio

corporation which is a wholly-owned indirect subsidiary of

United Parcel Service, Inc., a Delaware corporation. United

Parcel Service, Inc., a Delaware corporation, is a publicly

held corporation.

Corporate Disclosure Statement

Table of Contents

Table of Authorities

Jurisdiction

Statement of the Case

Argument

I.

II.

II.

Conclusion

TABLE OF CONTENTS

6 #0 8. ee OS. Se 8 eS, Oe 8 a SE eS 8-8 8 SRP eS ee

Hopkins Forfeited The Arguments

Raised In This Court By Failing To

Raise Them In Either The Trial Court

Or The Court Of Appeals .........

Federal Law Does Not Pre-Empt ORC

Ue me ere reer yrs crear a

ORC § 4112.14(C) Is Not Pre-Empted

By The National Labor Relations Act

Because It Makes No _ Distinction

Between Union And Non-Union

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TABLE OF AUTHORITIES

Cases:

Amalgamated Ass’n of Street, Electric Railway

& Motor Coach Employees of America v.

Wisconsin Employment Relations Board,

Pee We eA) ois 0 eee CRS Se 8

California Fed. Sav. & Loan Ass’n v. Guerra,

eer BT COMED 6 iv ok 6 Be ec 0k eK 5,6

Coalition for Econ. Equity v. Wilson,

110 F.3d 1431 (9th Cir.), cert. denied

ee Os OED sk cy clue cn cen reer

Ft. Halifax Packing v. Coyne,

I Se 8,9

Freytag v. Commissioner,

en kw weak mecca 4

Hopkins v. United Parcel Service,

221 F.3d 1334, 2000WL 923458

Ste I A ac cb ve kw Cac ce ss 3

Hormel v. Helvering,

ee EO eg iS irk eek whe 4

Livadas v. Bradshaw,

UMen WT RUUD. wk kc et we we cheek 8,9

ash v. rida Industrial ission,

MN SPEED 56k oo vow a ov oR eek 8

ili

Tele-Communications, Inc. v. C.LR.,

104 F.3d 1229 (10th Cir. 1997) ....

Other:

SPU BS. Br nk 5 8 Ek

Ge Ua. aks 6 os es

Ca ee ers eS a ce ees

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JURISDICTION

- \

Rule 10 of the Rules of the Supreme Court of the

United States provides that this Court may grant a petition for

a writ of certiorari “only for compelling reasons.” According

to Rule 10, subparagraphs (b) and (c), “compelling reasons”

include if a state court of last resort (1) decides an important

federal question in a way that conflicts with decisions of

courts of appeal or another state court of last resort; (2)

decides an important federal question that conflicts with

relevant decisions of this Court; or (3) decides “an important

federal question that has not been, but should be, settled by

this Court... .”

Petitioner has not and cannot set forth compelling

reasons to justify the exercise of this Court’s discretionary

jurisdiction. First, the decision of the Ohio First District

Court of Appeals (“Court of Appeals”) léading to this

petition is unpublished and therefore is not binding beyond

this current action. See, Rule 2, Ohio Supreme Court rules

for the Reporting of Opinions. Second, the Court of Appeals’

decision does not conflict in any way with federal law. The

petition should therefore be denied.

STATEMENT OF THE CASE

On May 3, 1996, Petitioner was discharged from his

position as a "Feeder Driver" for United Parcel Service, Inc.

(“UPS”) for having three avoidable accidents within five

months while driving a 68,000 pound UPS tractor trailer full

of packages along public roadways from one UPS facility to

another.

Pursuant to the terms of the Collective Bargaining

Agreement ("Agreement") between Petitioner's union, the

International Brotherhood of Teamsters, Local 100 ("Union")

and UPS, Mr. Hopkins protested his discharge and filed a

grievance with his Union. Under the terms of the Agreement,

UPS and Union representatives met in an attempt to resolve

the matter at the local level. The local grievance panel was

unable to reach a consensus on Petitioner’s grievance so the

matter was sent before the Ohio Joint State Committee

("OJSC"). Mr. Hopkins’ grievance "protesting his unfair

discharge" was heard by the OJSC arbitration panel on May

13, 1996. At the hearing, the Union presented its case on

behalf of Petitioner. Petitioner was given the opportunity to

explain his position to the panel. It is undisputed that the

Union and Mr. Hopkins decided not to raise any race

discrimination claim at the hearing. The OJSC panel,

comprised equally of Union and UPS representatives, reached

a consensus. It upheld Petitioner’s discharge for just cause.

Pursuant to the terms of the Agreement, the decision of the

OJSC panel was final and binding upon the parties.

On January 30, 1998, Mr. Hopkins filed a Complaint

in U.S. District Court for the Southern District of Ohio

(“District Court”), alleging that he had been discharged

because of his race in violation of federal and state law. On

January 19, 1999, the District Court granted UPS's motion

for summary judgment on the federal claim on the grounds

2

that the claim was untimely and dismissed the state law claim

~ without prejudice.' Mr. Hopkins then filed a lawsuit in the

Hamilton County Court of Common Pleas (“Trial Court”)

instituting the current action.

The Trial Court granted UPS’s Motion for Summary

Judgment. One of the reasons for this holding was the fact

that Mr. Hopkins’ discharge had been found to be for just

cause in his arbitration, which barred a civil action under

ORC § 4112.14(C). Significantly, Mr. Hopkins did not raise

either of the questions presented to this Court in the Trial

Court.

The Court of Appeals for the First Appellate District

of Ohio (“Court of Appeals”) affirmed the Trial Court’s

decision, holding that the language of ORC § 4112.14(C)

applies to discharge claims in which race discrimination is

alleged. As was the case in the Trial Court, Petitioner failed

to raise the issues presented in this Court to the Court of

Appeals.

On June 14, 2000, the Ohio Supreme Court summarily

rejected Petitioner's request to accept jurisdiction in this case,

dismissing the appeal “as not involving any substantial

constitutional question.” In his Memorandum in Support of

Jurisdiction before the Ohio Supreme Court, Petitioner argued

for the first time that UPS’s interpretation of Ohio Revised

Code § 4112.14(C) should be rejected because such an

interpretation would violate Federal law.

' In an unpublished opinion, the Sixth Circuit Court of Appeals

affirmed the District Court’s dismissal of Hopkins’ Title VII claim —

on the basis that it had not been timely filed. Hopkins v. United

Parcel Service, 221 F.3d 1334, 2000 WL 923458 (6th Cir. (Ohio)

2000).

ARGUMENT

I. HOPKINS FORFEITED THE

ARGUMENTS RAISED IN THIS

COURT BY FAILING TO RAISE

THEM IN EITHER THE TRIAL

COURT OR THE COURT OF

APPEALS.

The only pertinent issue in this case which was raised

before or considered by either the Trial Court or the Ohio

Court of Appeals was whether Ohio Revised Code (“ORC”)

§ 4112.14, on its face, barred Petitioner’s state law race

discrimination claim. As an afterthought, Petitioner first

raised the current issues in his Memorandum in Support of

Jurisdiction before the Ohio Supreme Court.

Absent exceptional circumstances, black letter law

dictates that a party forfeits an argument by failing to raise it

at the trial court level. See, e.g., Hormel v. Helvering, 312

U.S. 552, 556 (1941). The concurrence in Freytag v.

Commissioner, 501 U.S. 868 (1991), provides a clear

rationale for forfeiture principles:

These rules reflect the principle that a trial on

the merits . . . is the “main event,” and not

simply a “tryout on the road” to appellate

review. The very word “review” presupposes

that a litigant’s arguments have been raised and

considered in the tribunal of first instance.

Id. at 895 (citations omitted).

This rationale is particularly persuasive here, where

the case was decided as a matter of law via summary

judgment. As the Tenth Circuit Court of Appeals stated in

Tele-Communications, Inc. v. C.LR., 104 F.3d 1229 (10th

Cir. 1997),

This rule is particularly apt when dealing with

an appeal from a grant of summary judgment,

because the material facts are not in dispute

and the trial judge considers only opposing

legal theories . . . . In order to preserve the

integrity of the appellate structure, we should

not be considered a “second-shot” forum, a

forum where secondary, back-up theories may

be mounted for the first time. Parties must be —

encouraged to “give it everything they’ve got”

at the trial level.

Id. at 1232-33.

Petitioner has no excuse for not having raised the

arguments presented here before the Trial Court or Court of

Appeals. The Petition for Writ of Certiorari should be denied

for this reason alone.

II. FEDERAL LAW DOES NOT PRE-

EMPT | ORC § 4112.14(C). 3

Pre-emption of state law by federal law “is not to be

lightly presumed,” and may only occur under three scenarios.

California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272,

280-81 (1987). First, Congress may pre-empt state law by so

stating expressly. Id. at 280. Second, Congress may pre-

empt inferentially, where a scheme of federal regulation

demonstrates that Congress left no room for state regulation.

Id. at 281. Because Congress never expressly or inferentially

declared an intent to pre-empt state employment

discrimination law, neither of these arguments applies here.

State law may also be pre-empted by federal law “to

the extent it conflicts with federal law.” Id. at 281.

Petitioner argues that ORC § 4112.14(C) should be pre-

empted on this basis. He is wrong.

Certainly, ORC § 4112.14(C) is not pre-empted by

Title VII. In the two sections of the 1964 Civil Rights Act set

forth below, Congress stated that state anti-discrimination

laws will only be pre-empted if the statutes require action

which violates Title VII:

Nothing in this title shall be deemed to exempt

or relieve any person from any present or

future law of any State or political subdivision

of a State, other than any such law which

to requir it the doing of

which woul wful employm

practice under this title.

42 U.S.C. § 2000e-7 (emphasis added);

Nothing contained in any title of this Act shall

be construed as indicating an intent on the part

of Congress to occupy the field in which any

such title operates to the exclusion of State

laws on the same subject matter, nor shall any

invalidati visi Ww

vision is i i wi f

42 U.S.C. § 2000h-4 (emphasis added). See also, California

Fed. Sav. & Loan Ass’n v. Guerra, +79 U.S. 281 (1987)

(plurality opinion); Coalition for Econ. Equity v. Wilson, 110

F.3d 1431 (9th Cir.), cert. denied 522 U.S. 963 (1997).

The Ohio statute at issue here in no way requires or

encourages discrimination in contravention of Title VII.

Instead, the statute only limits state remedies, precluding

discharged employees to whom arbitration is available from

bringing claims for discriminatory discharge under a state

statute.

None of the cases cited in Section I of the Petition is

relevant to this case. None of the cases discusses or analyzes

pre-emption of a state civil rights statute by federal law.

More specifically, none of the cases analyzes preemption of

a state civil rights statute which on its face limits access to

courts. Instead, the cases hold that the existence of a

grievance and arbitration provision in a collective bargaining

agreement cannot, without a clear and express waiver,

preclude an employee from bringing discrimination claims.

Neither the Trial Court nor the Court of Appeals held that the

arbitration provision in the applicable Collective Bargaining

Agreement bars Petitioner’s claim. Rather, the lower courts

held that a state civil rights statute, ORC § 4112.14(C), bars

his claims. This critical distinction defeats Petitioner’s

argument.

Ill. ORC § 4112.14(C) IS NOT PRE-

EMPTED BY THE NATIONAL

LABOR RELATIONS ACT

BECAUSE. IT MAKES NO

DISTINCTION BETWEEN UNION

AND NON-UNION EMPLOYEES.

Petitioner exaggerates both the impact of the Court of

Appeals’ decision in this case and the scope of its holding.

First, as set forth above, the decision does not impact “tens of

thousands of other unionized workers in Ohio,” because it is

unpublished and therefore only binding between Petitioner and

UPS. Therefore, this decision will not chill union activity,

7

and it has no far-reaching impact. More importantly, the

Court of Appeals’ construction of ORC § 4112.14(C) does

not penalize employees choosing to unionize.

In contrast to this case, all of the precedent cited in

Section II of the Petition analyzes state laws which on their

face penalized only unionized employees. The Wisconsin

statute at issue in Amalgamated Ass’n of Street, Electric

Railway & Motor Coach Employees of America v, Wisconsin

Employment Relations Board, 340 U.S. 383 (1951), was

struck down because it prohibited post-impasse strikes by

certain unionized employees, in direct contravention of the

National Labor Relations Act. Likewise, the statute struck

down in Nash v. Florida Industrial Commission, 389 U.S.

235 (1967), penalized unionized employees for filing unfair

labor practice charges by prohibiting collection of

unemployment benefits. The policy struck down in Livadas

v. Bradshaw, 512 U.S. 107 (1994), non-enforcement of a

California wage law if employees and employers were

covered by a collective bargaining agreement containing an

arbitration clause, also treated employees choosing to unionize

less favorably than those not unionized.

In Livadas, this Court distinguished the policy before

it -- a policy that on its face distinguished between union and

non-union employees -- from the statute at issue in Ft. Halifax

Packing v. Coyne, 482 U.S. 1 (1987). In Ft. Halifax

Packing, this Court held that a Maine statute allowing

employees and employers to contract for plant-closing

severance payments other than those mandated by state law

was not pre-empted by federal law. As this Court stated in

Livadas,

Most fundamentally the Maine law [was not

pre-empted because it] treated all employees

equally whether or not represented by a labor

organization. All were entitled to the statutory

severance benefit, and all were allowed to

negotiate agreements providing for different

benefits.

Livadas, 512 U.S. at 131 (emphasis added).

The statute at issue here is remarkably similar to the

statute at issue in Ft. Halifax Packing. Both statutes allow

employers and employees to maintain agreements which result

in the unavailability of state statutory rights. Unlike the

policy at issue in Livadas, ORC § 4112.14(C) does not make

a distinction based on union status. In accordance with Ft.

Halifax Packing, ORC § 4112.14(C) is not pre-empted.

CONCLUSION :

Based on the foregoing, the Petition for Writ of

Certiorari should be denied. First, Mr. Hopkins waived the

arguments in his Petition by failing to raise them in either the

Trial Court or the Court of Appeals. Furthermore, ORC §

4112.14(C) is not pre-empt2d because it neither conflicts with

federal law nor penalizes unionized employees. The Petition

fails either to demonstrate any conflict in decisions or to raise

any important federal question that has not already been

settled by this Court. :

BROWN, TODD & HEYBURN PLLC

/s/

Winston E. Miiier

Tony C. Coleman

Julie C. Foster

400 West Market, 32™ Floor

Louisville, Kentucky 40202-3363

(502) 589-5400/(502) 581-1087 (fax)

Attorneys for United Parcel Service, Inc.