Phillips v. Martin Marietta Corporation Reply Brief for Petitioner

    (Enurt nf tljp States
October Term, 1969 

No. 1058

In the

I da P hillips ,

—v.—

M artin M arietta Corporation,

Petitioner,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

REPLY BRIEF FOR PETITIONER

J ack  Greenberg 
J ames M . N abrit, III 
N orman C. A maker  
W illiam  L . R obinson 
L owell J ohnston  
Y ilm a  M artinez S inger 

10 Columbus Circle 
New York, New York 10019

E arl M . J ohnson

625 West Uniou Street 
Jacksonville, Florida 32202

George Cooper 
C hristopher Clancy  
P eter N ussbaum

401 West 117th Street 
New York, New York 10026

Attorneys for Petitioner



I N D E X

PAGE

A rgum ent

A. The Timeliness of the Petition for Certiorari .......  1

B. Other Issues Raised by Respondent ........................  6

Conclusion ..........................................................................................  10

A uthorities

Cases

Bovonan v. Luperena, 311 U.S. 262 (1940) ................... 4

Department of Banking v. Pink, 317 U.S. 264 (1942) .... 3, 4

F.T.C. v. Minneapolis-Honeywell Regulator Co., 344 
U.S. 206 (1954) ...............................................................  5

United States v. Adams, 383 U.S. 39 (1966) ................. 4
United States v. Crescent Amusement Co., 323 U.S.

173 (1944) .......................................................................  4
United States v. Healy, 376 U.S. 75 (1964) ................... 3,4

Statutes

28 U.S.C. § 2101(c) .............................................................  1

§ 703, Civil Rights Act of 1964 ........................................6,10

Other

Rule 12, Local Fifth Circuit R ules..................................  5

Rule 24(4), Rules of the Supreme Court......................... 1

Stern & Gressman, Supreme Court Practice (4th ed. 
1969) .......................................... -.....................................  3,4



In the

Supreme GInurt of to  £>tato
October Term, 1969 

No. 1058

Ida P hillips,

M abtin M arietta Corporation,

Petitioner,

Respondent.

ON WRIT OP CERTIORARI TO THE UNITED STATES 
COURT OP APPEALS FOR THE FIFTH CIRCUIT

REPLY BRIEF FOR PETITIONER

ARGUMENT

Pursuant to Rule 24(4) of the Rules of the Supreme 
Court, Petitioner submits this reply brief addressed to 
certain arguments that are raised for the first time in Re­
spondent’s brief.

A. The Timeliness o f  the Petition fo r  Certiorari.

Respondent contends that the petition for certiorari was 
not filed on time. This contention is wholly without merit. 
The period for petitioning for certiorari from a civil judg­
ment of a United States Court of Appeals is governed by 
28 U.S.C. § 2101(c) which provides in part that:



0

Any . . . writ of certiorari intended to bring any judg­
ment or decree in a civil action, suit or proceeding 
before the Supreme Court for review shall be taken 
or applied for within ninety days after the entry of 
such judgment or decree.

The judgment in the present case was entered on May 
26, 1969 (A. 39a). On July 29, 1969 (well before the dead­
line for applying for a writ of certiorari), the Clerk of 
the Fifth Circuit sent a letter to all counsel stating that 
the mandate was being recalled, and that at the request 
of one of the active judges on the Court the parties were 
requested to file briefs “with respect to the issues decided 
in the Court’s opinion of May 26, 1969 with particular ref­
erence to the standard to be applied under the statute for­
bidding discrimination because of sex.” (A. 40a-41a) In 
response to this request, Petitioner filed a Supplemental 
Brief on August 15, 1969 and Respondent filed its Supple­
mental Brief on August 18, 1969, both within the deadline 
for a certiorari petition.

On October 13, 1969 (more than 90 days after the entry 
of judgment), the Court of Appeals in a per curiam opin­
ion stated:

The Petition for Rehearing is DENIED and the Court 
having been polled at the request of one of the mem­
bers of the Court and a majority of the Circuit Judges 
who are in regular active service not having voted in 
favor of it (Rule 35 Federal Rules of Appellate Pro­
cedure; Local Fifth Circuit Rule 12), Rehearing En 
Banc is also denied. (A. 42a-43a).

Chief Judge Brown, together with Judges Ainsworth and 
Simpson, dissented from the Court’s failure to grant the 
rehearing en banc and filed an opinion that took issue with 
the Court’s disposition of the substantive issues involved



3

in the case (A. 43a-52a). The mandate was re-issued on 
December 11, 1969 (A. 39a).

Petitioner filed her petition for certiorari on January 
10, 1970, less than 90 days after the Fifth Circuit’s per 
curiam opinion denying a rehearing en banc. Respondent’s 
brief in opposition never suggested that the petition was 
untimely, and on March 2, 1970 this Court granted a writ 
of certiorari (A. 55a). Petitioner then filed her brief, and 
Respondent replied in a brief that contended for the first 
time that the petition for the writ had not been filed on 
time. Respondent argues that the 90-day period for filing 
the petition ran from the entry of judgment by the Court 
of Appeals on May 26, 1969, rather than from the Court’s 
order denying a rehearing on October 13, 1969. This posi­
tion, however, is contradicted both by prior decisions of 
this Court and by common sense.

It is well established that:

A timely petition for rehearing tolls the running 
of the three months period because it operates to sus­
pend the finality of the . . . court’s judgment, pend­
ing the court’s further determination whether the judg­
ment should be modified so as to alter its adjudica­
tion of the rights of the parties. Department of Bank­
ing v. Pink, 317 U.S. 264 (1942) (emphasis added).1

In both civil and criminal cases, the time to file a petition 
for certiorari runs from the denial of a timely petition for 
rehearing. See United States v. Healy, 376 U.S. 75, 78 
(1964); Stern & Gressman, Supreme Court Practice 248

1 A t the time of the Pink decision, the period for petitioning for 
certiorari was 3 months from the entry of judgment in the court 
below. When the Judicial Code was revised in 1948, this period 
was changed to the present 90 days.



4

(4th ed. 1969). A timely motion to amend the judgment 
also tolls the time to apply for certiorari, United States v. 
Adams, 383 U.S. 39, 41 n. 1 (1966); United States v. Cres­
cent Amusement Co., 323 U.S. 173, 177 (1944); Stern & 
Gressman, supra at 249-50; and even in the case of an 
untimely petition for rehearing, “where the court allows 
the filing [of such petition] and, after considering the 
merits denies the petition, the judgment of the court as 
originally entered does not become final until such denial, 
and the time for appeal runs from the date thereof.” Bow­
man v. Luperena, 311 U.S. 262, 266 (1940) (emphasis 
added).2

The cases above stand for the proposition that the period 
for petitioning for certiorari must be postponed until the 
judgment of the court below becomes final.3 Where a timely 
petition for rehearing is filed with the Court of Appeals, or 
an untimely petition is allowed, the judgment cannot be 
considered sufficiently final because of the possibility that 
it will be modified or reversed, thus altering the issues to 
be presented to this Court, and/or switching the roles of 
the parties on appeal. With this possibility, “ It would be 
senseless for [the Supreme Court] to pass on an issue 
while a motion for rehearing is pending below. . . .” 
United States v. Healy, supra, 376 U.S. at 80; and it would 
be equally senseless to require a party to petition for 
certiorari.

2 A  petition for rehearing tolls the time for applying for certi­
orari only if that petition is filed within the time allowed to apply 
for certiorari. See Conioy  v. First Nat’l Bank of Jersey City, 203 
U.S. 141, 145 (1 906); Stern & Gressman, supra at 249.

3 “ [T]he object of the statute [establishing the period for peti­
tioning for certiorari] is to limit the applicant’s time to [90 days] 
from the date when the finality of the judgment for purposes of 
review is established.” Department of Banking v. Pink, supra, 317 
U.S. at 268 (emphasis added).



o

Respondent’s brief attempts to distinguish the cases 
referred to above4 from the present one by arguing that 
the rule they establish does not apply when the request 
for rehearing is initiated by the court itself, as in this case. 
Respondent implies that such an internal request does not 
rise to the level of a true request for rehearing. However, 
Local Fifth Circuit Rule 12 provides:

En Banc

A suggestion for a hearing or a rehearing en banc 
may be made as provided in Rule 35 of the Federal 
Rules of Appellate Procedure or by any judge of the 
Court in active service on his own motion. (Emphasis 
added.)

Thus, an internal request is a fully sanctioned mode of 
initiating a rehearing. Therefore, the rule extending the 
time for filing a certiorari petition should apply with equal 
strength whether it is a party to the action or the Court 
itself that initiates the request for rehearing. In either 
case, the request prevents the judgment of the Court of 
Appeals from being final because the Court retains the 
power to grant a rehearing and modify or reverse its 
original judgment. While the request for rehearing is 
pending, the parties should not be required to petition for 
certiorari since they cannot be certain of the precise issues

4 Respondent also relies on F.T.C. v. Minneapolis-Honey well 
Regulator Co., 344 U.S. 206 (1954). This reliance is misplaced, 
however, since that case did not deal with a request for rehear­
ing (344 U.S. at 210), but rather involved a motion that could 
only have “prompted the court below to take some further ac­
tion which [would have] had no effect on the merits of the deci­
sion that we are now asked to review in the petition for certi­
orari.” 344 U.S. at 211. In those circumstances, this Court re­
fused to allow the filing of that motion to enlarge the time for 
petitioning for certiorari. In the present case, by contrast, the 
request for rehearing was aimed at a reversal on the merits of 
the decision now before this Court.



6

they will wish to appeal; in fact, the parties cannot even 
be certain as to which of them will ultimately be the peti­
tioner before this Court.5

B. Other Issues Raised by Respondent.

Section B of the Respondent’s brief is denominated “As 
to the Merits.” This title would seem to indicate a discus­
sion of the substantive issue raised by the petition for 
certiorari—viz., Whether the sex discrimination prohibi­
tion of § 703(a) of the Civil Rights Act of 1964 is violated 
by a refusal to hire any women with pre-school age chil­
dren while men of the same class are hired and there is 
no bona fide occupational qualification to justify this dif­
ference in treatment.6 Respondent’s brief, however, hardly 
addresses itself to this issue, and where it does, is in com­
plete accord with Petitioner’s contention that such a re­
fusal to hire women is a violation of § 703. This agreement 
on the merits is indicated in several places. Thus, Respon­
dent states:

B Moreover, even if Respondent were correct in asserting that 
only a party’s request for rehearing tolls the period for petition­
ing for certiorari, Petitioner’s Supplemental Brief, filed in re­
sponse to a request bv the Court of Appeals, should itself be 
treated as a petition for rehearing. Petitioner’s brief (filed on 
August 15, 1969, within ninety days of the original judgment) 
quite clearly asked the Court of Appeals to reconsider its prior 
decision. The Court accepted this brief and denied a rehearing 
only after polling all its members; and a substantial dissent on 
the merits was filed by three judges. On these facts, Petitioner’s 
brief constitutes a petition for rehearing which, though untimely, 
was allowed by the Court of Appeals. Therefore, the time for 
petitioning for certiorari was tolled under the rule established 
in Bowman v. Luperena, supra, and the other authorities cited 
above.

6 The government has recently recognized the discriminatory 
nature of this practice and has taken steps to outlaw it. On June 
9, 1970 the Secretary of Labor issued guidelines to assure equal 
employment opportunity for women employed with government 
contractors and sub-contractors covered by Executive Order 11246. 
One of the guidelines states that “ . . .  an employer must not deny 
employment to women with young children unless it has the same 
exclusionary policies for men. . . .” 41 C.F.R. Chap. 60-20. 3(d) .



7

To be sure, respondent defended the judgment before 
the Court of Appeals and prevailed there. But the 
highly general theory of the Court of Appeals, which 
may have been induced by the meager facts of record, 
may not be capable of defense in a number of the 
instances postulated by the petitioner and the amici. 
Our further review of the record in this matter leads 
us to the conclusion that the disposition of the case by 
summary proceedings in the District Court, at our 
instance and upon our motion—although defensible— 
may have created a basis for confusion—and perhaps 
even distortion—of the important principles of the 
provisions of the Civil Rights Act of 1964, which 
prohibits discrimination in employment by reason of 
sex. Indeed, as illustrated by the briefs of the peti­
tioner and her amici, some portions of the opinion of 
the Court of Appeals may be subject to the construction 
that the law permits women and men exactly similarly 
situated with respect to problems arising out of the 
custody of small children to be treated differently, 
which we concede the law does not permit. (Res. Br. 
27)

Nonetheless, Respondent argues in subsection B1 of its 
brief that the motion for summary judgment was prop­
erly granted by the District Court because:

there was no evidence in the record of any act of 
discrimination by the respondent, the closest thing 
being petitioner’s allegation that the receptionist had 
told her the respondent was not considering applica­
tions from women with preschool-age children. . . .

. . . That allegation . . . standing by itself and even 
taken as true for the purposes of the motion, does not 
state a claim within the meaning of Section 703(a). 
Standing alone, the fact that an employer declines to



8

offer employment to women with preschool-age chil­
dren does not constitute a violation of the Act, and 
to be such, must necessarily he coupled with a compari­
son of the treatment of males with preschool-age chil­
dren at the relevant time. (Res. Br. 19)

However, Petitioner did initiate attempts to make just 
this comparison. On June 26, 1968, Petitioner filed a re­
quest for admission from Respondent “that Martin Mari­
etta Corporation now employs males with pre-school age 
children in the position of Assembly Trainee.” (A. 21a.) 
What Respondent omits to state is that the District Court 
in granting the motion for summary judgment ruled that 
such a comparison was “ irrelevant and immaterial” to 
the issue before the Court (A. 23a). That ruling was 
based on a prior order by the Court striking from Peti­
tioner’s complaint the allegation that she had been dis­
criminated against because she had pre-school age chil­
dren. (A. 14a-15a).

The propriety of the District Court’s grant of summary 
judgment turns upon the propriety of that Court’s earlier 
ruling. Both these actions, and their affirmance by the 
Court of Appeals, were based on the view that § 703(a) of 
the Civil Rights Act does not prohibit an employer from 
refusing to hire women with pre-school age children while 
hiring men of the same class. Therefore, the question now 
before this Court is whether the District Court and Court 
of Appeals properly interpreted § 703(a) of the Civil Rights 
Act. That question is discussed in Petitioner’s brief but 
conspicuously avoided in Respondent’s.

Respondent’s brief attempts to distract attention from 
this fundamental point by attempting to create the illu­
sion that there is uncertainty as to whether the reception­
ist told Mrs. Phillips that women with pre-school age chil­



9

dren were not being considered, or that all persons with 
such youngsters would not be hired. (Res. Br. pp. 3, 17) 
The truth is that no such issue exists in this case since 
Repondent admitted in of its Answer that “ the recep­
tionist told plaintiff applications from women with pre­
school age children were not being considered.” (A. 16a- 
17a) (Emphasis supplied)

Respondent asserts, however, that because of the state 
of the record, “the receptionist’s remark cannot and should 
not be considered as equivalent to a written, formal inflex­
ible company policy that no woman with a living pre-school 
age child would be employed as an assembly-trainee.” 
(Res. Br. 24.) But the fact is that this remark by the 
receptionist, whether based on “written” and “ formal” 
instructions or not, teas the inflexible policy of Respon­
dents because applicants, like Mrs. Phillips, who applied 
for jobs with Martin Marietta were told by the receptionist 
(as Respondent admits in its answer) that “women with 
pre-school age children are not being considered.” And 
there is no merit to Respondent’s argument (Res. Br. 24) 
that the record does not show what response the recep­
tionist, or someone at a higher level in the company, might 
have made if Mrs. Phillips had pressed her point about 
what kind of arrangements she had made for the care of 
the children.

The Court need not speculate as to the response which 
might have been elicited had Mrs. Phillips done so be­
cause the fact is that the receptionist’s remarks did not 
call for the applicant to supply any such additional in­
formation. The receptionist categorically stated to Mrs. 
Phillips that women with pre-school age children were 
not being considered. That statement certainly was not 
designed to elicit additional information about any ar­
rangements that might have been made for the care of



10

pre-school age children; and it is therefore unrealistic 
to expect an applicant, after being informed of the com­
pany’s policy, to pursue the matter further either with the 
receptionist or someone at a higher level.

CONCLUSION

For the foregoing reasons, the writ of certiorari should 
not be dismissed, and the judgment of the Court of Ap­
peals should be reversed and the case remanded to the 
District Court with an order that it vacate its grant of 
summary judgment. While Respondent seems to agree 
that reversal and remand are the proper course (Res. Br. 
27-28),7 its brief appears to suggest that this remand may 
be made without this Court’s deciding the merits of the 
question for which the writ of certiorari was granted. That 
position is of course erroneous, since the only ground for 
reversal is that the lower courts misinterpreted § 703(a) 
of the Civil Rights Act. For the reasons advanced in Pe­
titioner’s main brief, the District Court should be instructed 
on remand to conduct further proceedings to determine 
whether Respondent refuses to hire women with pre-school 
age children while hiring men of the same class. The Dis­
trict Court should further be instructed that such conduct, 
if proven, constitutes a violation of § 703(a) of the Civil

7 The Conclusion to Respondent’s brief asserts that the grant of 
summary judgment by the District Court, and the judgment of 
the Court of Appeals upholding it, should be affirmed by this 
Court. That assertion cannot be taken seriously, however, since 
Respondent apparently agrees that the lower court actions were 
based on a misinterpretation of § 703(a) of the Civil Rights Act. 
(See page 7, supra.)



11

Rights Act, and requires the entry of judgment for the 
Petitioner.

Respectfully submitted,

J ack Greenberg 
James M . N abrit, III 
N orman C. A maker 
W illiam  L . R obinson 
L owell J ohnston  
V ilma  M artinez S inger 

10 Columbus Circle 
New York, New York 10019

E arl M . J ohnson

625 West Union Street 
Jacksonville, Florida 32202

George Cooper 
Christopher Clancy  
P eter N ussbaum

401 West 117th Street 
New York, New York 10026

Attorneys for Petitioner



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