Lorance v. AT&T Technologies, Inc. Opposition to Petition for Certiorari
Public Court Documents
April 26, 1988

Cite this item
-
Brief Collection, LDF Court Filings. Lorance v. AT&T Technologies, Inc. Opposition to Petition for Certiorari, 1988. 609ad8a9-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/73ef6514-01b7-40ca-9c3b-0bf05efca849/lorance-v-att-technologies-inc-opposition-to-petition-for-certiorari. Accessed July 12, 2025.
Copied!
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