Lorance v. AT&T Technologies, Inc. Opposition to Petition for Certiorari

    No. 87-1428
IN THE

Supreme Court of the United States
OCTOBER TERM, 1987 

PATRICIA A. LORANCE, et al.
Petitioners,

v.
AT&T TECHNOLOGIES, INC., et al.

Respondents.

OPPOSITION TO PETITION FOR CERTIORARI

Rex E. Lee*
David W. Carpenter 

Sidley & Austin 
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 429-4000

O f Counsel:
Joseph Ramirez 
Robert W. Benson 
Juanita G. de Roos

Gerald D. Skoning 
Charles C. Jackson 
Gary S. Kaplan 

Seyfarth, Shaw , Fairweather 
& Geraldson 

55 East Monroe Street 
Chicago, Illinois 60603 
(312) 346-8000

Attorneys for Respondent 
AT&T Technologies, Inc.

* Counsel of Record



1

QUESTION RESTATED

Petitioners claim that a seniority system was adopted with a 
discriminatory motive in violation of the 1964 Civil Rights Act.

The question presented in this case is whether the strict 180 
day statute of limitations of Title VII was properly held to bar 
litigation of this claim when EEOC charges were not filed until 
(1) some three years after both the date of adoption of the senior­
ity system and the “forced surrender” of each plaintiffs’ seniority 
and (2) at a time when any evidence of discrimination was neces­
sarily stale because the claim was based solely on motive?



11

STATEMENT REQUIRED BY RULE 28.1

AT&T Technologies is a wholly-owned subsidiary of American 
Telephone and Telegraph Company (“AT&T”). AT&T has no 
parent company. In addition to its wholly-owned subsidiaries, 
AT&T has ownership interests, either directly or through wholly- 
owned subsidiaries, in the Cuban American Telephone and Tele­
graph Company, Inc.; Ing. C. Olivetti and C., S.P.A.; Cincinnati 
Bell Inc.; Edelson Technology Partners, L.P.; AT&T/Ricoh, 
Ltd.; AT&T Taiwan Telecommunications Co.; Gold Star Fiber 
Optics Co., Ltd.; Western Electric Saudi Arabia, Ltd.; Gold Star 
Semiconductor, Ltd.; Communications Software Development, 
Inc.; AT&T and Philips Telecommunications, B.Y.; ShareTech, 
Inc.; Covidea; Counterpoint Computers, Inc.; Omnicad Technol­
ogy Corporation; Intermetrics, Inc.; AT&T Microelectronia de 
Espana, S.A.; Mitek, Inc.; Resound Corporation; Global Trans­
actions Services Company; and Sun Microsystems, Inc.



I ll

TABLE OF CONTENTS
Page

QUESTION RESTATED................................................... i

STATEMENT REQUIRED BY RULE 28.1...................  ii

TABLE OF AUTHORITIES.....................    iv

REASONS FOR DENYING THE W RIT........................ 1

CONCLUSION..................................................................  10



IV

TABLE OF AUTHORITIES
Cases: Page(s):
American Tobacco Company v. Patterson, 456 U.S. 63

(1982) .......................................................................... 1, 2, 7, 8

Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th
Cir.), cert, denied, 404 U.S. 939 (1971).......................  1

Boyd v. Madison County Mutual Insurance Company,
653 F.2d 1173 (7th Cir. 1981), cert, denied, 454 U.S.
1146 (1982)..................................................................  1,6

Cook v. Pan American World Airways, Inc., 771 F.2d 635 
(2d Cir. 1985), cert, denied, 474 U.S. 1109 (1986) . . . .  8, 9

Delaware State College v. Ricks, 449 U.S. 250 (1980) . . .  2, 5, 9

Griggs v. Duke Power Co., 401 U.S. 424 (1971).............. 6, 7, 8

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) .. 6

Heiar v. Crawford County, 746 F.2d 1190 (7th Cir. 1984),
cert, denied, 427 U.S. 1027 (1985)...............................  1,8

International Association o f Machinists v. NLRB, 362
U.S. 411 (1960)............................................................. 7

International Brotherhood o f Teamsters v. United States,
431 U.S. 324 (1977) ..................................................... 2,6,7

Johnson v. General Electric Co., No. 87-1752, slip op. (1st
Cir. Feb. 22, 1988)....................................................... 8

Mohasco Corp. v. Silver, 447 U.S. 807 (1980)............. 5

Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir. 1978),
cert, denied\ 441 U.S. 906 (1979).................................  8, 9

Patterson v. American Tobacco Company, 634 F.2d 744
(4th Cir. 1980), rev’d, 456 U.S. 63 (1982)...................  6, 8

Pullman-Standard Division of Pullman, Inc. v. Swint, 456
U.S. 273 (1982)......................... .................................. 2, 6



V

Cases: Page(s):
Stewart v. CPC International, Inc., 679 F.2d 117 (7th Cir.

1982) ............................................................................  1

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) . . .  5,1

Wygant v. Jackson Board o f Education, 476 U.S. 267, 106 
S.Ct. 1842 (1986) ............................................................... 2, 5

Statutes: Page(s):
Civil Rights Act of 1964, § 703(h) 42 U.S.C. § 2000e- 

2(h)................... ........................................................... passim

Age Discrimination in Employment Act, 29 U.S.C.
§ 623(f)..............................................................................  8, 9



No. 87-1428
IN THE

Supreme Court of the United States
OCTOBER TERM, 1987

PATRICIA A. LORANCE, et al.
Petitioners,

v.
AT&T TECHNOLOGIES, INC., et al.

Respondents.

OPPOSITION TO PETITION FOR CERTIORARI

REASONS FOR DENYING THE WRIT

This case does not present the issue, or the conflict, that the 
Petition suggests. The Seventh Circuit has not rejected the rule 
that is said to have been adopted by this Court and seven other 
courts of appeals: “that each application of a discriminatory prac­
tice .. . constitutes an actionable wrong from which an employee 
may file a timely administrative charge.” Petition, p. 13. To the 
contrary, the Seventh Circuit has consistently recognized this 
principle in its previous decisions,1 and its opinion in this case 
emphasizes that the “holding is a narrow one” that is limited to 
unique issues presented by seniority systems. App. 9a.

“Seniority systems are afforded special treatment under Title 
VII itself.” American Tobacco Co. v. Patterson, 456 U.S. 63, 75 
(1982). Under Section 703(h), seniority systems are an “excep-

!See Heiar v. Crawford County, 746 F.2d 1190, 1194 (7th Cir. 1984), 
cert, denied, 427 U.S. 1027 (1985); Stewart v. CPC Infl, Inc., 679 F.2d 
117, 120-21 (7th Cir. 1982); Boyd v. Madison County Mut. Ins. Co., 653 
F.2d 1173, 1176-77 (7th Cir. 1981), cert, denied, 454 U.S. 1146 (1982); 
Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186, 1188 (7th Cir.), cert, 
denied, 404 U.S. 939 (1971).



2

tion” to the general rule that a Title VII violation may be proven 
by showing a “discriminatory impact.” Teamsters v. United 
States, 431 U.S. 324, 329 (1977). The only relevant question in a 
case challenging the terms of a seniority system is whether the 
“actual motive” at the time of adoption was discriminatory. Pull­
man Standard v. Swint, 456 U.S. 273, 290 (1982). Section 703(h) 
is designed to “immunize [all] seniority systems which perpetuate 
post-Act discrimination” from challenges unless they are timely 
filed {American Tobacco, 456 U.S. at 75) and thereby “to protect 
vested seniority rights.” Id. at 78 (Brennan, J., dissenting on other 
grounds). This Court has recognized that seniority is “the most 
valuable capital asset that the worker owns,” and an employee 
thus suffers immediate injury whenever seniority rights are de­
pleted. Wygant v. Jackson Board o f Education, 106 S.Ct. 1842, 
1851 (1986).

The only “discriminatory acts” that are alleged in this case are 
the changes in the three petitioners’ seniority rights that were 
made in 1979 and 1980. By holding that the challenge was un­
timely because it was not filed within 300 days, the Seventh Cir­
cuit merely applied the criteria of Delaware State College v. Ricks, 
449 U.S. 250 (1980), to a set of unique facts. The holding was also 
required by the terms and purposes of Section 703(h) and by this 
Court’s decision in American Tobacco v. Patterson. There is no 
reason or basis to review the Seventh Circuit’s decision.

This is especially so because the Seventh Circuit is the first 
court of appeals to apply Title VII’s statute of limitations to a 
challenge to a seniority system under the criteria of Section 
703(h). Each decision cited in the petition is readily distinguish­
able on this basis. At the present time, there is no indication that 
the question of when a Section 703(h) challenge to a seniority 
system may be filed will prove to be an important one which will 
divide the courts of appeals. The issue has not yet produced a 
conflict in those courts and is not, under any view, mature enough 
for consideration by this Court.



3

1. As the lower courts found, this is a case in which the three 
petitioners knowingly “slept on their Title VII rights.” App. 47a. 
Petitioners made a deliberate decision not to challenge the 
changes in their seniority rights until three years after they oc­
curred.

The change in the seniority system was implemented in July 
1979. AT&T Technologies (“the Company”) and Local 1942, 
International Brotherhood of Electrical Workers (“the Union”) 
then adopted and implemented dual seniority dates for persons 
working in highly skilled and technologically complex “Tester” 
jobs that require special training. Under the change, all “testers” 
with less than five years experience were required to “surrender” 
their plant wide seniority for purposes of promotions and demo­
tions within the tester category unless and until they enrolled in, 
and successfully completed, specified technical courses of instruc­
tion. However, plant-wide seniority continued to govern layoffs.

At the time the dual seniority system was adopted, the three 
petitioners believed that this change and the “forced sacrifice” of 
their plant-wide seniority rights constituted intentional sex dis­
crimination that violated Title VII and that had immediate ad­
verse effects on them both (1) on the very day that the change 
was adopted in July 19792 and (2) again when the two petitioners

2 Petitioners claimed that the dual seniority provisions for testers were 
created and negotiated with the purpose of protecting male jobs in the 
“traditionally male” tester category. The adoption of the change in July, 
1979 was claimed to have the immediate discriminatory effects of (1) 
compelling participation in the Tester “module” (training) program be­
cause “this is what [we] had to do to get [our] time back;” (2) “discour- 
ag[ing] women from entering the traditionally-male tester jobs” by re­
quiring them to forfeit their plant-wide seniority; and (3) preventing 
female testers who were then testers (like petitioner Lorance) from ex­
ercising their greater plant seniority against junior male testers. R. 68B 
at 44-45, 73-74; R. 68B at 20, 131-32; R. 16, 18, 20.

The Company flatly denies that the provisions requiring dual tester 
seniority lists were adopted for discriminatory reasons. Such systems are 
commonplace in industry. Their “basic premise” is “to promote ‘hands- 
on’ experience” and to assure that persons best equipped to perform 
technologically complex jobs are not forced into lower job grades when 
there are downgrades and layoffs. R. 68B-1, Ex. 3, p. 2; Ex. 21, p.2.



4

who were not already testers entered the tester universe in 1980 
and surrendered their plant-wide seniority.3 As one petitioner 
testified, “[already by this time [1979] I had made the decision 
in my mind that what was going on was illegal and that I was 
going to . . .  let a court decide what was right or wrong. ” R. 68C 
at 22, 146 (emphasis added); see R. 68B at 98, 118. It was on this 
basis that petitioners led the “heated” opposition of certain fe­
male employees to the change in 1979. App. 5a; R. 68C at 90, 98. 
Each petitioner testified that she understood that she had “sur­
rendered” and “sacrifice[d]” plant-wide seniority for job move­
ment purposes no later than “the day we went into testing.” 
R. 68A at 39, 40, 127; R. 68C at 132.

Yet petitioners did not file EEOC challenges when the “forced 
sacrifice” of their seniority and other alleged adverse conse­
quences occurred. Instead, they chose “to live by it” (R. 68C at 
132) and began the training that would restore their plant-wide 
seniority, even though this training requirement was one of the 
claimed “discriminatory effects” of the new seniority system. See 
p. 3, n. 2, supra.

Petitioners did not file EEOC charges until after they were 
downgraded in late 1982. As petitioners concede, this downgrad­
ing was merely the delayed consequence of the surrender of their 
plant-wide seniority that occurred years earlier. All agree that the 
revised seniority system is neutral on its face and has been applied 
in a nondiscriminatory fashion.

Petitioners’ claim that they are victims of sex discrimination 
rests on one and only one allegation: that the dual seniority sys­
tem was “created and negotiated [in 1979] with the intent to 
advantage male workers over female workers.” Petition, p. 31; 
Complaint (R. 16), paras. 14-18. That claim had been stale for 
over three years by the time petitioners finally filed their charges.

3 Petitioner Lorance entered the tester category on October 30, 1978; 
Petitioner Bueschen on November 30, 1980; and Petitioner King on 
February 25, 1980. App. 5a.



5

2. In Title VII, Congress made a judgment that “most genuine 
claims of discrimination will be promptly asserted and that the 
costs associated with processing and defending stale or dormant 
claims outweigh [any] federal interest in guaranteeing a remedy.” 
Mohasco Corp. v. Silver, 447 U.S. 807, 825-26 (1980). This Court 
has held that the “proper focus [in determining when the 180 day 
limitations period begins to run] is upon the time of the discrimi­
natory acts, not upon the time in which the consequences of the 
acts become most painful.” Delaware State College v. Ricks, 449 
U.S. 250, 258 (1980) (emphasis in original; citations omitted). See 
also United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977).

In this case, the only “discriminatory acts” that petitioners 
alleged is the change in the seniority system which occurred in 
1979—or the forced sacrifices of petitioners’ plant-wide seniority 
which occurred in 1980 at the latest. This change depleted what 
is “probably the most valuable capital asset that the worker 
‘owns,’ worth even more than the current equity in his home” 
(Wygant v. Jackson Board of Education, 106 S.Ct. 1842, 1851 
(1986) (citations omitted) )—and was thus immediately action­
able under Delaware State College v. Ricks A By contrast, the 
downgrades that occurred in late 1982 were merely the “conse­
quences” of the dual seniority lists established some three years 
earlier. Thus, the Court of Appeals’ holding is simply a correct 
application of the criteria of Delaware State College v. Ricks to 
the unique facts of this case.

Furthermore, the terms and purposes of Section 703(h) inde­
pendently required the dismissal of this case. To the extent courts 
have held that “each application” of a discriminatory policy or 
practice “constitutes a [separately] actionable wrong” (Petition, 4

4The fact that the plaintiffs had hoped that the 1979-1980 surrenders 
of seniority rights would not thereafter lead to demotions (see Petition, 
p. 8) did not prevent the limitations period from beginning to run on 
those dates; in Ricks, the Court held that the plaintiff’s hope that his 
denial of tenure would be reversed in grievance proceedings, or other­
wise, did not toll the limitations period until the date that he was dis­
charged. See 449 U.S. at 260-61.



6

p. 13), they have done so in cases in which Title VII violations 
may be established by showing that the applications of the poli­
cies or practices have a discriminatory impact (see Griggs v. Duke 
Power Co., 401 U.S. 424 (1971) ) or in which neutral terms have 
been misapplied in a discriminatory fashion. See Boyd v. Madison 
County Mut. Ins. Co., 653 F.2d 1173, 1176-77 (7th Cir. 1981), 
cert, denied, 454 U.S. 1146 (1982). Because each application of 
the employment provision constitutes the evidence of discrimina­
tion, the violation is proven by showing what happened within 
the limitations period; hence, there can be no “staleness concern” 
in these cases. Petition, p. 35-36, quoting Havens Realty Corp. v. 
Coleman, 455 U.S. 363, 380-381 (1982).5

Under Section 703(h), however, challenges to facially neutral 
seniority systems are an “exception” to the general rule of Griggs. 
Teamsters v. United States, 431 U.S. 324, 349 (1977). The effects 
of each application of the system are irrelevant. Pullman Stand­
ard v. Swint, 456 U.S. 273, 290 (1982). The only inquiry is one of 
the parties’ “actual motive”: “[w]as the system adopted because 
of its [alleged sexually] discriminatory impact?” Id. (emphasis 
added). In this very case, therefore, the sole basis for petitioners’ 
claims is that the change was made with an improper motive. 
Thus, petitioners are reduced to making the extreme, and unten­
able, argument that the adoption of the tester seniority provisions 
in 1979—and the parties’ “actual motive” in 1979—can be liti­
gated “indefinitely,” be it 1982, 1988, or 2088. Proof of motive in 
1979 concerns events that occurred in 1979, and necessarily de­
pends on the kinds of evidence whose probative value fades quick­
ly with the passage of time. This case, therefore, epitomizes the 
litigation of stale claims that Title VII is designed to prevent, and 
the Seventh Circuit properly rejected petitioners’ argument. App. 
8a.

5Thus, the Fourth Circuit was able to reject a timeliness challenge to 
a recent application of a seniority system only because it held (errone­
ously) that Section 703(h) does not apply to seniority systems adopted 
after 1965 and that each application of post-Act systems can be chal­
lenged under the Griggs discriminatory impact test. Patterson v. Ameri­
can Tobacco Co., 634 F.2d 744 (4th Cir. 1980), rev’d on this ground, 456 
U.S. 63 (1982).



7

In this regard, the rule that is dictated by the terms and pur­
poses of Section 703(h) is the same rule that applies under the 
parallel limitations provision of the National Labor Relations Act 
(see International Association o f Machinists v. NLRB, 362 U.S. 
411 (1960) ): that a change in a facially neutral seniority system 
must be challenged within 180 (or 300) days of its adoption. 
Otherwise, the adoption of the allegedly discriminatory system 
“is the legal equivalent of a discriminatory act which occurred 
before the statute was passed” (United Air Lines, Inc. v. Evans, 
431 U.S. 553, 558 (1977) ), and any future discriminatory effects 
are immunized from challenge by Section 703(h). See Teamsters 
v. United States, supra. Contrary to the petitioners’ claims, that 
position is compelled by the Court’s holding in American Tobacco 
Co. v. Patterson.6 There, the Court held that “taken together, 
Teamsters [by interpreting Section 703(h) ] and Evans” [by strict­
ly enforcing the Title VII limitations period] “immunizes [all] 
seniority systems which perpetuate post-Act discrimination.” 
American Tobacco Co., 456 U.S. at 75. There is no distinction 
between systems adopted before the Act was passed and post-Act 
systems that are not challenged within 180 days of adoption. Id.

However, in this case, there is no need to address the question 
whether the limitations period begins to run on the date of adop­
tion of the seniority system (as respondents argued below) or on 
the date the last of the three petitioners became testers and un­
equivocally surrendered their seniority (as the Seventh Circuit

6The petition twice (pp. 23 n.ll  & 31) quotes the Court’s statement 
that “the adoption of a seniority system which had not been applied 
would not give rise to a cause of action.” American Tobacco Co., 456 
U.S. at 69. However, the Court made this statement in rejecting the 
EEOC’s “proposed distinction between the application and adoption of 
a seniority system” and its contention that the adoption of a system 
could be challenged under the Griggs discriminatory impact test, where­
as the application could not. Id. What the Court said was that this 
distinction “on its face makes little sense [because] [t]he adoption of 
seniority system which has not been applied would not give rise a cause 
of action” under Griggs; a discriminatory impact obviously cannot be 
shown until a system is applied. Id.



8

held). The claims of the three petitioners were untimely under 
either standard. The Seventh Circuit’s discussion of the issue was 
thus dictum.

3. This is the first case in which a federal court of appeals has 
applied the Title VII limitations period to a challenge to a se­
niority system under the criteria of Section 703(h). The one Title 
VII case that involves seniority is the Fourth Circuit’s decision 
in American Tobacco. Patterson v. American Tobacco Co., 634 
F.2d 744 (4th Cir. 1980), rev’d, 456 U.S. 63 (1982). Flowever, it 
rested on the erroneous premise that Section 703(h) does not 
apply in post-Act systems and that the Griggs’ discriminatory 
impact test does—and is irrelevant for that reason. See p. 6, n.5, 
supra. The other cases cited in the petition are similarly irrele­
vant, and the Seventh Circuit’s decision does not conflict with the 
decision of any other court of appeals.

For example, the only court of appeals’ decision that purports 
to reject the Seventh Circuit’s holding is the First Circuit’s recent 
decision in Johnson v. General Electric Co., No. 87-1752, slip op. 
at 7-8 (1st Cir. Feb. 22, 1988). However, Johnson did not involve 
a challenge to a seniority system, and the First Circuit, ironically, 
acknowledged that the Seventh Circuit has applied the First Cir­
cuit’s rule in nonseniority cases. See id. at 9, citing Heiar v. Craw­
ford County, 746 F.2d 1190, 1194 (7th Cir. 1984), cert, denied, 
427 U.S. 1027 (1985). This underscores that the Seventh Circuit 
would probably have decided Johnson (and any other 
nonseniority case) the same way the First Circuit did.

The petition also relies on two cases in which the provisions of 
seniority systems were challenged under the Age Discrimination 
in Employment Act (ADEA). Cook v. Pan American World Air­
ways, Inc., I l l  F.2d 635 (2d Cir. 1985), cert, denied, 474 U.S. 
1109 (1986); Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir. 
1978), cert, denied, 441 U.S. 906 (1979). Quite apart from the fact 
that the ADEA and Title VII have somewhat different substan­



9

tive provisions governing seniority systems (compare 42 U.S.C. 
§ 2000e-2(h), with 29 U.S.C. § 623(f) ), the discussion of the time­
liness issue in each decision was dictum, and there is no reason 
to believe that either court would today decide the instant case 
differently than did the Seventh Circuit.

In Cook, the plaintiffs filed their EEOC charges within 300 
days of the date “when Pam Am first implemented the allegedly 
discriminatory seniority lists” (771 F.2d at 646) and “at the time 
[the] plaintiffs first bec[a]me subject” to the new system. App. 9a. 
Their claims were thus timely filed under the Seventh Circuit’s 
holdings. See id. In Morelock, the discussion was dictum because 
the seniority system was found to be lawful (see 586 F.2d at 1105- 
07); more significantly, Morelock was decided before Delaware 
State College v. Ricks, and adopts the approach that this Court 
repudiated in that decision. Thus, there is no basis for any claim 
that the Sixth Circuit would disagree with the Seventh Circuit’s 
holding in this case now that Ricks is the law.

The Seventh Circuit’s decision was correct and should not be 
disturbed. In any event, there is no square circuit conflict today, 
and a conflict may never arise. If it does, that will be the time to 
consider whether the issue warrants this Court’s consideration.



1 0

CONCLUSION

For the reasons stated, the petition for a writ of certiorari 
should be denied.

O f Counsel:

Joseph Ramirez 
Robert W. Benson 
Juanita G. de Roos

April 26, 1988

Respectfully submitted,

Rex E. Lee*
D avid W. Carpenter 

Sidley & Austin 
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 429-4000

Gerald D. Skoning 
Charles C. Jackson 
Gary S. Kaplan 

Seyfarth, Shaw , 
Fairweather & 
Geraldson 

55 East Monroe Street 
Chicago, Illinois 60603 
(312) 346-8000

Attorneys for Respondent 
A T & T  Technologies, Inc.

* Counsel of Record