Yellow Freight System, Inc. v. Donnelly Brief in Response to Writ for Petition of Certiorari

    No. 8 9 - 4 3 1

In The

^upretnE Court of tfje lEmtsii States
October Term , 1989

YELLOW FREIGHT SYSTEM, INC.,

vs.
Petitioner,

COLLEEN DONNELLY,
Respondent.

RESPONSE OF COLLEEN DONNELLY TO 
PETITION FOR WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT

MICHAEL W. RATHSACK 
(Counsel of Record)
77 West Washington Street 
Suite 508
Chicago, Illinois 60602 
(312) 726-5433
J ohn  J. H e n e l y  
JOHN J. HENELY, LTD.
75 East Wacker Drive 
Suite 2200
Chicago, Illinois 60601 
(312) 263-1733

Attorneys for Respondent

Midwest Law Printing Co., Chicago 60611, (312) 321-0220



QUESTIONS PRESENTED FOR REVIEW

i

The questions presented for review are:
(1) Whether state and federal courts have concurrent 

jurisdiction over sex discrimination cases brought un­
der Title VII of the Civil Rights Act of 1964 [42 
U.S.C. Sec. 2000e, et seq.]\ and

(2) Whether the reviewing court properly affirmed the 
finding of the trial court that the claimant satisfied 
her duty to take reasonable steps to minimize her 
damages. Respondent disagrees with the petitioner’s 
description of this issue.



11

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................  [
TABLE OF AUTHORITIES ...............................  m
OPINIONS BELOW ...............................................  1

JURISDICTION ....................................................... 2
STATUTE INVOLVED .........................................  2
STATEMENT OF THE CASE ............................ 2
SUMMARY OF THE ARGUMENT .................. 4
ARGUMENT IN OPPOSITION 

TO CERTIORARI ...........................  c

ALTHOUGH THE SEVENTH AND THE 
NINTH CIRCUITS NOW DIFFER AS TO 
WHETHER STATE AND FEDERAL COURTS 
HAVE CONCURRENT JURISDICTION OF 
SEX DISCRIMINATION CHARGES BASED 
ON TITLE VII, THAT DIVERGENCE OF 
OPINION DOES NOT REQUIRE INTERVEN­
TION BY THIS COURT AT THIS TIME . . .  5

II.
THE REVIEWING COURT PROPERLY AF­
FIRMED THE DECISION OF THE TRIAL 
COURT WHICH FOUND THAT PLAINTIFF 
SATISFIED HER BURDEN OF SHOWING 
THAT SHE EXERCISED REASONABLE DILI­
GENCE IN MITIGATING HER DAMAGES. 
THERE IS NO CONFLICT BETWEEN THE 
CIRCUITS ON THIS POINT .........................  9

CONCLUSION .................................  n



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9

8

7
11

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5

7

7

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10

in

TABLE OF AUTHORITIES

Cases
Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 

S.Ct. 2362 (1975) ...............................................
Bradshaw v. General Motors Corp., 805 F.2d 110 

(3rd Cir. 1986) ...................................................
Brown v. Reliable Sheet Metal Works, Inc., 852 

F.2d 932 (1988) ...................................................
Dyer v. Greif Bros., Inc., 755 F.2d 1391 (9th Cir.

1985) ....................................................................
Florida v. Long, ___  U.S. ___ , 108 S.Ct. 2354,

101 L.Ed.2d 206 (1988) .....................................
Ford v. Nicks, 866 F.2d 865 (6th Cir. 1989) . . .
Fox v. Eaton Corporation, 615 F.2d 716 (6th Cir. 

1980) ....................................................................
Johnson v. Chapel Hill Independent School Dis­

trict, 853 F.2d 375 (5th Cir. 1988) ................
Jones v. Intermountain Power Project, 794 F.2d 

546 (10th Cir. 1986) ...........................................
Kremer v. Chemical Construction Company, 456 

U.S. 461, 102 S.Ct. 1883 (1982) .....................
Long v. Dept. Admin., Div. o f Retirement, 428 So. 

2d 688 (Fla. Dist. Ct. of Appeal 1983) ........
Long v. State o f Florida, 805 F.2d 1542 (11th Cir.

1986) ....................................................................
Valenzuela v. Kraft, Inc., 739 F.2d 434 (9th Cir. 

1984) ....................................................................
Wheeler v. Snyder Buick, Inc., 794 F.2d 1228 (7th 

Cir. 1986) ............................................................



IV

Statutes
28 U.S.C. Sec. 1254(1)
42 U.S.C. Sec. 1983 ..................
42 U.S.C. Sec. 2000e ................
42 U.S.C. Sec. 2000e-5(f)
42 U.S.C. Sec. 2000e-5(g')
42 U.S.C. Sec. 2000e-5(j) ..........



No. 8 9 - 4 3 1
In  T he

Sotpreme (Eourt of the 3imiei> States
October Term , 1989

YELLOW FREIGHT SYSTEM, INC.,

vs.
Petitioner,

COLLEEN DONNELLY,
Respondent.

RESPONSE OF COLLEEN DONNELLY TO 
PETITION FOR WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

The opinion of the United States Court of Appeals for 
the Seventh Circuit was handed down on April 28, 1989 
and is reported at 874 F.2d 402. The petition for rehear­
ing was denied. The decision of the United States District 
Court for the Northern District of Illinois was handed 
down on March 17, 1989 and is reported at 682 F.Supp. 
374. The Report and Recommendation of the United States 
Magistrate and the opinion of the District Court entered 
on November 22, 1985 on the issue of jurisdiction were 
not reported.



I

JURISDICTION

This Court has jurisdiction of this matter pursuant to 
28 U.S.C. Sec. 1254(1).

STATUTE INVOLVED

The following statutory sections are set out in the peti­
tion:

42 U.S.C. Sec. 2000e-5(f)
42 U.S.C. Sec. 2000e-5(g)
42 U.S.C. Sec. 2000e-5(j)

STATEMENT OF THE CASE
I

The facts of this case are drawn from testimony in a 
trial conducted before a Magistrate. Defendant Yellow 
Freight System, Inc., admitted its liability for sex dis­
crimination under 42 U.S.C. Sec. 2000e [Title VII of the 
Civil Rights Act of 1964] and the matter proceeded for 
a determination of damages.

Plaintiff applied for work with defendant Yellow Freight 
in October of 1982, shortly after moving to the Chicago 
area. Tr. 13, 14. She wanted to work in the area where 
she lived, and Yellow Freight was four blocks away. Tr. 
13, 19. Defendant’s terminal manager informed plaintiff 
that Yellow Freight was not hiring but that she would



be the first hired when the next opportunity arose. Tr. 
15. She called the manager every week, as directed, to 
check for job openings. Tr. 16. She knew, from talking 
with others, that Yellow Freight was hiring, but the 
manager told her that they were laying off rather than 
hiring. Tr. 33, 34.

Plaintiff checked the want ads for jobs and checked with 
friends and various other persons. Tr. 16-21. In Novem­
ber of 1982, plaintiff obtained a job working part-time for 
RGIS, located near her home. She worked there until 
June of 1984 when she filed her EEOC complaint and was 
then hired by defendant. Tr. 16, 17, 29. She accepted all 
the hours that were available to her at RGIS, working 
423 hours in 1983 and 371 hours prior to June of 1984. 
Tr. 39, 40.

The Magistrate also found that Yellow Freight had begun 
hiring numerous persons, all male, in February of 1983. 
The Magistrate further found that Yellow Freight had not 
carried its burden of showing that plaintiff had failed to 
exercise reasonable diligence in securing other employ­
ment. Pet. App. A-27-A-30. The Magistrate further found 
that even if defendant had met its burden of proof on that 
issue, defendant nonetheless had failed to meet its addi­
tional burden of showing a reasonable likelihood that plain­
tiff might have found comparable work through reasonable 
diligence. Pet. App. A-30. Other trucking companies had 
hired 90 dock workers during the time in question, but 
only one hired women and only five of the 90 were 
women. Pet. App. A-30.

The Magistrate recommended back pay from the date that 
defendant began hiring [February 8,1983] in the amount of 
$27,656.61; retroactive seniority in the amount of $4,800.00; 
pension contributions in the amount of $3,976.00; attor­
neys’ fees of $21,876.00; costs; and prejudgment interest.



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Pe*. App. A-28, A-32, A-33. The trial court implemented 
those recommendations except as to prejudgment interest. 
Pet. App. A-23. The Court of Appeals for the Seventh 
Circuit affirmed the various awards to plaintiff and re­
turned the case for entry of an order granting prejudg­
ment interest. Yellow Freight’s petition for rehearing was 
denied, and their petition for certiorari was docketed on 
September 13, 1989.

SUMMARY OF THE ARGUMENT

Certiorari is not appropriate at this juncture because 
the jurisdictional issue has not been developed in adequate 
scope by the circuits, with only two circuits having pro­
vided adversarial based analysis. There is also an alter­
native basis for resolution of this case which is indepen­
dent of this issue, and that would require remand for fur­
ther consideration even if certiorari was granted and the 
case was reversed on review. As to the question of dam- 
ages, there is no conflict between any of the circuits as 
to the appropriate standard and, again, there was an alter­
nate basis for the court’s finding in that regard which 
would require affirmance even if the Court concurred with 
petitioner’s contention.



— o —

ARGUMENT

I.
ALTHOUGH THE SEVENTH AND THE NINTH CIR­

CUITS NOW DIFFER AS TO WHETHER STATE AND 
FEDERAL COURTS HAVE CONCURRENT JURISDIC­
TION OF SEX DISCRIMINATION CHARGES BASED ON 
TITLE VII, THAT DIVERGENCE OF OPINION DOES 
NOT REQUIRE INTERVENTION BY THIS COURT AT 
THIS TIME.

The Seventh Circuit and the Ninth Circuit now differ 
on the question of whether state and federal courts have 
concurrent jurisdiction of actions brought under 42 U.S.C. 
Sec. 2000e-5(f) [Section 706(f) of Title VII of the Civil 
Rights Act of 1964] for sex discrimination. The Seventh 
Circuit in this case has found that there is concurrent 
state and federal jurisdiction, whereas the Ninth Circuit 
in Valenzuela v. Kraft, Inc., 739 F.2d 434 (9th Cir. 1984) 
held that the federal courts had exclusive jurisdiction of 
cases arising under Title VII. [Respondent notes for com­
pleteness that this Court mentioned the issue but noted 
that it was not deciding the question in Kremer v. Chem­
ical Construction Company, 456 U.S. 461, 479, 102 S.Ct. 
1883, 1896, fn. 20 (1982)].

However, contrary to Yellow Freight’s argument, the 
question remains in a developmental stage and does not 
have widespread significance. The division of opinion is 
a limited division, and most circuits have not yet had the 
opportunity to specifically address the issue. Yellow Freight 
contended that three other Circuits [Third, Tenth, and 
Eleventh] concur with the Ninth Circuit. However, in 
those cases the jurisdictional issue was either not con­
tested or was only mentioned in passing without analysis, 
and in one instance the cited case was actually reversed.



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Until a need arises for unanimity in approach to this 
issue, Title VII cases can continue to be resolved in the 
various circuits regardless of whether the forum is state 
or federal. The issue is not what the law should be, but 
rather who should apply the law. The consequence of a 
grant of certiorari would, as to most sex discrimination 
cases, simply be a determination of the appropriate forum. 
In this particular instance, the forum determination might 
possibly be determinative of the right to pursue the action 
because of the removal scenario. However, in almost all 
other such cases, the posed question lacks the immediate 
importance attributed to it by defendant because decisions 
on the merits of the cases will be the same regardless of 
the forum.

There is currently adequate case law to guide both fed­
eral and state courts in their adjudication of cases brought 
under Section 706(f) of Title VII. State courts have cer­
tainly shown the ability to adequately carry out the in­
tent of Congress in other areas of federal legislation, e.g. 
42 U.S.C. Sec. 1983. There is no reason to believe that 
the same will not be true in this instance, and there is 
no need to increase the caseload of the circuit courts when 
the current intent appears to be the opposite, e.g., the 
increase in the jurisdictional amount in diversity jurisdic­
tion cases.

The absence of analysis in the other cited circuits is re­
flected in the opinion in Bradshaw v. General Motors 
Corp., 805 F.2d 110, 112 (3rd Cir. 1986). Plaintiff there 
brought suit in state court under state tort theories, 42 
U.S.C. Sec. 1981, and Title VII, and the defendant re­
moved to federal court. The question of concurrent juris­
diction was not at issue and thus was not briefed, and 
was only raised by the court at oral argument. The re­
viewing court simply held, without analysis, that Title VII



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vested exclusive jurisdiction in the federal courts. The 
court went on to note [fn. 3 at 113] that even if concur­
rent jurisdiction existed, the plaintiff was unlikely to 
prevail due to the delay in taking action after receiving 
the notice of the right to sue from the EEOC. Thus there 
was an independent basis for that court’s decision, and 
it is questionable as to whether the same result would 
hold in another case where the issue was fully briefed.

Yellow Freight also relied on Long v. State o f Florida, 
805 F.2d 1542, 1546 (11th Cir. 1986). Certiorari was de­
nied as to the plaintiffs’ petition (484 U.S. 820, 108 S.Ct. 
78) but was granted as to certain nonjurisdictional ques­
tions raised by defendant (484 U.S. 814, 108 S.Ct. 6o) and
this Court subsequently reversed. Florida v. Long, -----
U.S______ 108 S.Ct. 2354, 101 L.Ed.2d 206 (1988). Florida
had argued in the Eleventh Circuit that plaintiffs’ suit 
under Title VII was barred by res judicata, on the grounds 
that plaintiff had lost similar claims in state court. The 
Circuit Court mentioned exclusive jurisdiction only in the 
context of applying res judicata, stating without analysis 
that res judicata was not applicable because the plaintiff 
could not have brought his Title VII claim in state court. 
The Eleventh Circuit apparently accepted the Florida ap­
pellate court’s statement in an earlier state court appeal 
that the state trial court had properly ignored plaintiff s 
Title VII claim because it had no jurisdiction. See Long 
v. Dept. Admin., Div. of Retirement, 428 So.2d 688 (Fla. 
Dist. Ct. of Appeal 1983).

Finally, in Jones v. Intermountain Power Project, 794 
F.2d 546, 553 (10th Cir. 1986), the only question before 
the Tenth Circuit was whether state claims could be pen­
dent claims in a Title VII action. The court answered in 
the affirmative at 552. The court then noted that its in­
quiry could end there, but discussed the m atter further.



It ultimately noted that the plaintiff could not otherwise 
have all his claims heard together because Title VII claims 
could be filed only in federal court, citing Valenzuela, with­
out discussion. Again, the question was presented in an 
indirect context, apparently without benefit of briefs, and 
the holding was dicta.

The only other circuit court opinion was Dyer v. Greif 
Bros., Inc., 755 F.2d 1391, 1393 (9th Cir. 1985). The Ninth 
Circuit again raised the jurisdictional question itself after 
removal and simply followed the circuit’s prior ruling in 
Valenzuela. This subsequent decision by a different panel 
was seemingly without enthusiasm, as reflected in the 
comment at 1393, that “Nonetheless, since Valenzuela is 
the current law of this circuit by which we are bound,
. . . , and leaves room to question as to whether Valen­
zuela will remain the law.

In summary, only two circuits have reached a reasoned 
determination of the jurisdictional question, and one of 
those seems unenthusiastic about its own earlier ruling. 
For that reason, the jurisdictional question has not re­
ceived the type of thorough inquiry that frequently pre­
cedes review by this Court. If certiorari is deferred until 
more circuits have an opportunity to analyze all facets 
of the issue, it may well be that the issue will be resolved 
with unanimity and without need for supervision. The 
question is not yet ripe for certiorari.

Even if certiorari was granted and a reversal subse­
quently occurred, the matter would nonetheless not be 
brought to a conclusion. The case would then have to be 
remanded for a ruling on Donnelly’s claim that the state 
court filing equitably tolled the limitation period. Although 
the state court claim did not specifically refer to Title VII, 
the allegations were couched in that language and were 
based upon the EEOC’s right to sue letters attached as

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I!



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exhibits. The case was removed and the complaint was 
amended to add a specific reference to Title VII. Under 
Fox v. Eaton Corporation, 615 F.2d 716, 719 (6th Cir. 1980), 
cert, denied, 450 U.S. 935,101 S.Ct. 1401 (1981), a claim filed 
in state court can toll the limitations period regardless of 
whether concurrent jurisdiction is found. Whether the 
Seventh Circuit would agree with Fox, in view of its reason­
ing in the overruled Brown v. Reliable Sheet Metal Works, 
Inc., 852 F.2d 932, 934 (1988), is immaterial. The point is 
that the court did not have to reach this argument in this 
case, and remand for further consideration would be neces­
sary in order to resolve this additional claim.

II.
THE REVIEWING COURT PROPERLY AFFIRMED 

THE DECISION OF THE TRIAL COURT WHICH FOUND 
THAT PLAINTIFF SATISFIED HER BURDEN OF SHOW­
ING THAT SHE EXERCISED REASONABLE DILIGENCE 
IN MITIGATING HER DAMAGES. THERE IS NO CON­
FLICT BETWEEN THE CIRCUITS ON THIS POINT.

The conflict claimed by defendant Yellow Freight does 
not exist. In this case, the trial court resolved a factual 
question as to whether plaintiff had satisfied her duty to 
mitigate her damages. She had searched for other work, 
and accepted part-time employment in the area of her 
home. She worked as many hours as were available at 
that job. The job was a substantial one, and her conduct 
was especially reasonable in light of the fact that defen­
dant was falsely telling plaintiff that she would be the 
first one hired when hiring resumed. Presumably plain­
tiff thought she would be working for defendant shortly, 
and it would have seemed a useless act to take a full time 
job elsewhere with the intent to quit immediately upon 
hearing from Yellow Freight. In plain language, defen­



- 1 0 -

dant lied to her about its plan to hire her imminently and 
now argues that she should not have relied on their repre­
sentation of imminent employment when considering other 
job opportunities.

The Seventh Circuit did not set a new standard in this 
regard and certainly did not hold that the employee had 
to simply seek other employment. Pet. at 15. Here plain­
tiff did seek other full time work. The Magistrate noted 
that Yellow Freight had failed to carry its burden of 
showing that Ms. Donnelly failed to exercise reasonable 
diligence. It is equally important to note that the Magis­
trate also found that Yellow Freight failed to show a rea­
sonable likelihood that Ms. Donnelly would have found 
comparable work through reasonable diligence. After all, 
the other trucking companies in the area were apparent­
ly also discriminating as only one of them hired women 
and that one hired only a very small number of women. 
The court below mentioned but did not have to reach this 
latter point: defendant’s failure to prove the likelihood 
of comparable employment would thus have served as an 
alternate basis for affirmance of the damage award.

The damage award was determined by the particular 
facts of this case and not by any change in the law by 
the Seventh Circuit. The court was bound by the trial 
court’s award of damages unless that determination was 
clearly erroneous. Albermarle Paper Co. v. Moody, 422 
U.S. 405, 424, 95 S.Ct. 2362, 2375 (1975). Under appropri­
ate circumstances, such as were found by the trial court 
to exist in this case, part time work can satisfy the 
requirement of reasonable diligence. Wheeler v. Snyder 
Buick, Inc., 794 F.2d 1228, 1234 (7th Cir. 1986).

This case does not conflict with the holdings of Ford 
v. Nicks, 866 F.2d 865 (6th Cir. 1989) and Johnson v. 
Chapel Hill Independent School District, 853 F.2d 375 (5th



- 1 1 -

Cir. 1988). The court in Ford rejected the employer’s 
argument that the applicant’s part time work for her hus­
band [without showing a reason for not getting a better 
job] constituted a failure to mitigate damages, noting at 
869 that the employer had not shown what she could have 
earned if employed full time. The opinion instead rested 
on the applicant’s rejection without cause of an equal job 
at the same salary. In Johnson, there was evidence of 
numerous equal employment opportunities not sought out 
by the applicant: rather than seek work, she simply went 
to work in a family store without pay. Both cases are fac­
tually and legally distinguishable.

CONCLUSION

For the reasons stated, respondent Colleen Donnelly re­
quests that the petition for certiorari be denied.

Respectfully submitted,

MICHAEL W. RATHSACK 
(Counsel of Record)
77 West Washington Street 
Suite 508
Chicago, Illinois 60602 
(312) 726-5433
J ohn  J. H e n e l y  
JOHN J. HENELY, LTD.
75 East Wacker Drive 
Suite 2200
Chicago, Illinois 60601 
(312) 263-1733

Attorneys for Respondent