Richmond Unified School District v. Berg – Oral Argument – October 05, 1977

Media for Richmond Unified School District v. Berg

Audio Transcription for Opinion Announcement – December 06, 1977 in Richmond Unified School District v. Berg

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Warren E. Burger:

We will hear arguments next in 75-1069, Richmond Unified School District against Berg.

Mr. Walenta you may proceed whenever you are ready.

Arthur W. Walenta:

Mr. Chief Justice and may it please it court.

This is a civil rights action brought by Mrs. Berg a teacher employed by Richmond Unified School District.

It was brought to prevent the district from placing her on maternity leave and to compel the district to allow her sick leave credit, while absent due to maternity.

Mrs. Berg was granted a summary judgment in the District Court and that judgment was affirmed by the Ninth Circuit Court of Appeals because this case was decided as a summary judgment and because there is disagreement between the parties as to the import of the evidence that was before the District Court, I would like to review briefly what the evidence was.

The evidence consisted of pleadings in the case, Mrs. Berg’s complaint, an amendment to it, a supplement to it, the answer filed by School district, limited affidavits and exhibits presented by Mrs. Berg and somewhat more extensive affidavits and exhibits provided by the School District and that is all the evidence there was.

That evidence shows that before December 1972, the School District maintained a compulsory maternity leave regulation requiring teachers to terminate their service at the end of the seventh month of pregnancy and to take maternity leave and the evidence shows that the District had an informal policy disallowing sick leave usage for maternity purposes.

In November of 1972, Mrs. Berg filed a charge with the EEOC challenging these policies, this charge was unsworn, this charge contained the notation that she had, had no correspondence with the School District.

On December 13th of 1972, the School District Governing Board modified its maternity leave policy to permit individual consideration of request of teachers to work later than the seventh month.

The next day, Mrs. Berg applied for maternity leave in an application that conformed to the policy as it had been modified the preceding day.

On December 20, Mrs. Berg submitted a second application for maternity leave and in that application, she asked permission to continue work until term, until her child was born.

Seven days later the School District replied in a letter to Mrs. Berg, stating that if she was going to work until that date, the District wanted a physical examination by its doctor to be assured of her physical condition.

There was intervening correspondence from Mrs. Berg’s attorney and she filed suit in Federal District Court on February 5th.

On February 16th taking into account medical advice that the district had obtained in the intervening period, the District Superintendent promogated a more elaborated policy for maternity leave and Mrs. Berg was notified that this revised policy would be applied in her case.

In chronological order on the 21st of February, Mrs. Berg received the notice of her right to sue under Title VII and on the 22nd she received a preliminary injunction from the Federal District Judge.

In March on the 14th she had her child and she worked up until that time and in June she supplemented her complaint in the Federal District Court action to allege her receipt of the statutory notice of her right to sue under Title VII.

From the outset, the School District has challenged the jurisdiction of the District Court in this case.

It is our contention in the first place that her EEOC charge was premature and that it was not a proper charge sufficient to found a Federal District Court action under Title VII.

At the time that she filed this charge, the district had taken no action respecting her.

The policy that she complained of in the charge was modified before the district took any action concerning her and it was not until the 27th of December when a letter was written by the district to Mrs. Berg that there was the first occasion or occurrence as I would call it, between the district and the aggrieved person that I think she could complain about and that was the point which the district indicated that it wanted a medical examination by its physician.

When we look to the specific language of the statute, I think we find that Congress intended under that statute that an unlawful practice have occurred before you can file a charge.

The time periods that are involved in the statute occur “after the alleged, unlawful employment practice occurred.”

The charge is to be filed by a person claiming to be grieved and that person has to allege in the charge, “that a lawyer has engaged in an unlawful employment practice.”

Mr. Walenta, you are prejudiced, how?

Arthur W. Walenta:

We are prejudiced for one thing by becoming implicated in a legal proceeding based upon a charge that was hypothetical and speculative when filed and in fact in the situation in which the facts changed between the time the charge was filed and the time any action was taken concerning Mrs. Berg.

Secondly, I think as a matter of law and as a matter of policy it is Congress that mandated that this EEOC charge be a condition that a person is required to file before they can file suit in District Court.

They must file suit a certain number of days —

The letter does not bare on prejudice, of course does it?

Arthur W. Walenta:

Excuse me Justice.

You see, the latter does not bare on your prejudice and that —

Arthur W. Walenta:

No that is correct, that is a different issue.

In any event we find no occurrence between the District and Mrs. Berg until six weeks after this charge was filed we believe that Congress clearly mandated that a charge be filed and that indeed the statutory procedure for charges, for EEOC investigation and for the various time periods that are implicated in the statute cannot be followed, unless one requires that there be a charge that is definite to occurrence and that shows an actual subject of actual grievance, on the part of a complaining party before they can file a Federal Court suit.

The further major jurisdictional issue in this case has to do with Mrs. Berg filing suit before she received the statutory notice of her Right to Sue from the Attorney General.

This court has characterized that notice as a jurisdictional prerequisite in more than one case.

The Ninth Circuit Court of Appeals ruled, that by virtue of her obtaining the notice after she filed a suit and by virtue of her supplementing her complaint, she had cured a jurisdictional defect that existed when the suit was filed and in reaching this conclusion, the Ninth Circuit relied upon the Fourth Circuit decision in Henderson against Eastern Freight Ways.

We have in our brief, elaborated our quarrel with the Henderson decision.

Henderson holds that a late notice under Title VII has the effect of validating a complaint that was untimely filed.

Once to sympathize perhaps with the decision in the Henderson case, but we believe that it is wrong in principle and we believe that there is a very serious issue indeed Without ascertaining when a federal court has jurisdiction and we believe that the proposition that jurisdictional facts can occur to prefect jurisdiction that did not exist when the suit was filed, would leave the courts with rather intolerable situation.

This Court in 1824 in Mollan against Torrence established a rule that Federal Court Jurisdiction depends upon the facts that the time action is filed.

This specific ruling was confirmed by an opinion written by Justice Brandeis and we believe that is correct.

It is simple, it is intelligible and we believe that it ought to be followed.

I have mentioned, that in the absence of following that rule, you raise a situation.

In which Plaintiffs are entitled to file Federal District Court suits and establish jurisdiction after the fact.

In District Court cases following Henderson and Title VII.

District Court jurisdiction has been found to be established one year and more after this suit was filed.

The idea of this being the general rule in the Federal Courts, is one that I find, very difficult to live with.

Finally, we contend that this Henderson decision has the practical effect of avoiding all of the requirements that congress mandated.

With respect to the operation of Title VII and the preliminary operation of an administrative procedure required to resolve complaints before matters get into the Federal Courts.

I would like to bring the courts attention to a decision that has been handed down by the Third Circuit since our reply brief was filed.

That is Glus against GC Murphy Company.

That is a Title VII case.

LUCE, L-U-C-E?

Arthur W. Walenta:

G-L-U-S.

G-L-U-S.

Arthur W. Walenta:

I have filed or lodged I should say, copies of that opinion with clerk of the court for the justices.

Do you have the citation?

Arthur W. Walenta:

Its not yet in print.

You have copies with the clerk and in your law library.

Third Circuit.

Arthur W. Walenta:

Third Circuit.

That case was one in which an employer were to file a cross complaint in a Title VII case against the Union that had not been named in the original EEOC chart.

And the Third Circuit ruled that Title VII jurisdiction could not be obtained by procedural devices under the federal rules and following Rule 82, the Glus case stands for the position that the Federal rules cannot be used to expand subject matter jurisdiction.

The importance for this case is that Mrs. Berg Supplement was filed under Rule 15(e).

The other ground upon which the Ninth Circuit found jurisdiction in this case arises in the theory, that Title VII jurisdiction can be perfected before the receipt of a notice of Right to Sue.

In order to permit preliminary injunctive relief and in that, the Ninth Circuit followed the theory of Drew against Liberty Mutual Insurance Company a Fifth Circuit Decision.

If I understand the Drew case correctly, it holds or agrees in, I should say.

That before the 1972 amendments to Title VII which permitted a preliminary suit by the Attorney General.

There existed by implication, a private cause of action to obtain preliminary relief, without awaiting commission action.

This cause of action existed, because it was necessary to enforce the rights granted by the statute.

The court in Drew does not sight any authority holding that to be the case.

They simply, apparently expounded and as far as I can tell the proposition in drew, is that there is jurisdiction under Section 1343 to prosecute a Title VII action before you have obtained Title VII jurisdiction.

That case has been criticized by several District Court opinions.

We have argued length in our brief that its theory is untenable.

We believe in particular that the theory in Drew is contrary to this court’s decision in National Railroad Passengers Corporation against Passengers Association and the rule of that case is that express statutory provisions for Federal Court jurisdiction are controlling absent clear evidence of a contrary legislative intent.

We have found and Mrs. Berg has not found to my knowledge any evidence that Congress intended a broader private cause of action in Title VII cases, then is specifically set forth in the statute.

We believe that the holdings of the Ninth Circuit in this case, of the Fifth Circuit in Drew and in the Fourth Circuit in Henderson conflict with the language of this court in Occidental Life against EEOC and Alexander against Gardner-Denver and in McDonnell Douglas case, that the statutory preconditions to private suit under Title VII are jurisdictional prerequisites.

So, far as the merits of this case are concerned —

Potter Stewart:

This complaint was also based on 1983 was it not?

Arthur W. Walenta:

Yes, it was 1983 claim as well.

Potter Stewart:

And it was on that basis that the — was it that the district court granted preliminary injunctive relief.

Arthur W. Walenta:

Yes, that is the statute pursuant to which the District Court purported the act.

The District Court had jurisdiction under 1983.

Potter Stewart:

By virtue of 1343.

Arthur W. Walenta:

Well, as against Superintendent Snowgrass (ph) it did not have jurisdiction against the district and the governing board.

Although at the time that it entered the preliminary injunction this court had not decided the case which rule that a public agency was immune from General 1983 jurisdiction for injunctive purposes.

Potter Stewart:

How does that confuse or affect the arguments you just made?

Arthur W. Walenta:

Well, the course, the problem is that Ninth Circuit expressed the theory that there was Title VII jurisdiction, notwithstanding that the District Court didn’t purport to act under Title VII at the outset and you have to reach that aspect of Ninth Circuit decision.

Excuse me.

What is that case that you are talking about — school boards and public agencies.

Arthur W. Walenta:

City of Kenosha against Bruno.

What you said that was just a city.

Arthur W. Walenta:

No, City of Kenosha against Bruno was the case in which this court ruled that there was not jurisdiction under 1983 to grant equitable relief against a public agency because the agency was not a person.

It is a public agency or a —

Arthur W. Walenta:

Well, the case involved a city.

What about School Board?

Arthur W. Walenta:

I would say the lower courts have universally accepted that case as being applicable to school boards.

I wonder if you knew the answer to the case that was being argued next week.[Laughter]

Arthur W. Walenta:

Well.

We know the 1983 would be segregation suit in moot jurisdiction?

Arthur W. Walenta:

As far as I can tell, since you handed down City of Kenosha against Bruno, we do not suffer the wear and tear that we did prior to your decision in that respect.

If I mention that case to — in fact in this case as soon as that case was mentioned to Judge (Inaudible) he allowed that he was incorrect and at one point this case was dismissed, as to the school board then re instituted after Mrs. Berg supplemented her complaint.

What if Kenosha City is a public agency?

Arthur W. Walenta:

Well Kenosha deals — yes with the question of who is a person and who is not.

Really more seriously and it is a fascinating case, statutory immunity was abolished by the California Supreme Court in 1960, but before that time direct suits against governmental agencies were practically unknown and they were practically unknown when Fourteenth Amendment was adopted and I think that this court was correct, when it interpreted the early Civil Rights Act as not providing any implied cause of action against public agencies, that is against individuals.

That was absolutely consistent with the general legal thinking and understanding of the error when the statute was adopted.

Potter Stewart:

That was done in was done in Monroe against Pape with respect to appellees and with respect to action for money damages.

Arthur W. Walenta:

That is correct City of Kenosha against Bruno was required because the Appellate courts and District Courts could not believe that Monroe against Pape extended to injunctive relief.

Potter Stewart:

Right.

Arthur W. Walenta:

As to the merits, we contend that a school district policy requiring medical information concerning a pregnant teacher and reserving the right to determine the beginning date of maternity leave does not violate Title VII unless that policy is pretext for discrimination or results in gender based discriminatory effects.

Thurgood Marshall:

Mr. Walenta what does the new statute have to do with this case.

The, one that is on page 52 and 53.

Arthur W. Walenta:

The change in California Law.

Thurgood Marshall:

1976 statute, is that in here.

Arthur W. Walenta:

The change in that statute does not directly effect the merits of this case as to Mrs. Berg.

Thurgood Marshall:

It says the length of the leave of the absence including the date of when to leave shall commence on the date on which the employee shall resume duties, shall be determined by employee and employee’s position.

Arthur W. Walenta:

Yes Your Honor, I should like to direct the —

Thurgood Marshall:

Does it has any effect on the case at all?

Arthur W. Walenta:

Strictly speaking, I think not and I say that for this reason, we are faced to course with our obligation to Mrs. Berg which got to be adjudicated.

We are faced with our obligation to the class since this was certified as a class action and we also have a risk $5,000 in attorney’s fees that have been awarded, so the case remains tangible.

Arthur W. Walenta:

I would like to point out to the court that in connection with the statutory change there is a factual situation that is not precedented, as far as, your decisions are concerned.

The California Legislature did not change the statute with a view toward voluntarily changing the law in the state.

Thurgood Marshall:

I am not talking about why it was changed, I am talking about what it says?

Arthur W. Walenta:

Well the statute was changed to write into California law the EEOC regulation that this court criticized in Gilbert against General Electric, I agree.

But that statute was adopted and I read Section 6 of Chapter 915 of the California statutes of 1976 I believe, 1975.

Thurgood Marshall:

This is 1976.

Arthur W. Walenta:

Yes, had that statute been adopted simply to change California law and to allow benefits to teachers that they would not have otherwise the state would have been required to reimburse the School District for the costs incurred as a matter of state law.

The Legislature ruled that out and they said —

Thurgood Marshall:

If this statute that have been in effect, when this case was decided would you be here?

Arthur W. Walenta:

Well, if this statute had been in effect in December of 1972, we would not be here.

Thurgood Marshall:

Does it have any effect on your case?

Arthur W. Walenta:

Excuse me.

Thurgood Marshall:

Does it have any effect on your case or whether we should decide —

Arthur W. Walenta:

I realize that is what your point is and that is why I want to indicate to the court what the California Legislature thought they were doing when adopted this statute.

The statute says —

Thurgood Marshall:

And your basis for this are you going to give me some legislature history or something?

Arthur W. Walenta:

Yes, Your Honor.

Thurgood Marshall:

Is it in here, is it in the record of brief or any place?

Arthur W. Walenta:

It is a matter of public record and it is in the Section 6 of Chapter 915.

Thurgood Marshall:

Where will I find it?

Arthur W. Walenta:

It’s California Statute 1975.

Thurgood Marshall:

Is it any of these things here, any of these brief or records or anything —

Arthur W. Walenta:

This is in the Court’s Law Library, I would expect, this is–

Thurgood Marshall:

You want me to go out and get it.

Arthur W. Walenta:

No, I am going read it to you, the Legislature said there are no State mandated local costs in this act that require reimbursement because this act merely affirms for the state that which has been declared existing law or regulation through action by the Federal Government.

In other words the California Legislature was under a misapprehension of how this court was going to decide General Electric Case and it is interesting that —

Byron R. White:

Or even if they were, it still would not have adopted that the law and its new policies.

Arthur W. Walenta:

That is true, but we will at least have a claim to ask the Legislature for our money back if this court can rule in our favor in this case.

Byron R. White:

Why you mean to repeal the statute.

Arthur W. Walenta:

Not to repeal it, but to appropriate money under the collateral law that requires them to reimburse our costs when they impose those costs as opposed to the courts imposing those cost.

Byron R. White:

Is there is any issue about the force leave?

Arthur W. Walenta:

Excuse me.

Byron R. White:

What issue is it — what issue do you think is open here after this change in the law?

Arthur W. Walenta:

Well, all issue remain open as to Mrs. Berg.

Potter Stewart:

Except she was denied the fact because of the injunction, she did not in fact leave until very shortly before the birth of her child.

Arthur W. Walenta:

That is correct, but the point is if she was entitled to the relief that she received not withstanding that her actual leave is moot (ph), she is entitled to a reward for attorney’s fees, we have to pay them.

So that $5,000 is at issue regardless.

Warren E. Burger:

Is that enough to keep this case alive?

Arthur W. Walenta:

Oh I think it is.

Thurgood Marshall:

Well, I thought the general rule was more than $10,000.

Arthur W. Walenta:

Well, that is limitation on the Federal Court’s Jurisdiction under certain other statutes.

William H. Rehnquist:

Well, aren’t there cases from at least other jurisdictions holding that they admitted claim for the attorney’s fees, if it is less than or by itself is not sufficient to keep the case from being moot.

Arthur W. Walenta:

That is not a subject that I have researched, cannot respond to it.

What about the pay claim?

Arthur W. Walenta:

The pay claim exists, continues to exist both ways to Mrs. Berg and as to the class that is certified between the period 1973 and 1975.

For the past?

Arthur W. Walenta:

Yes.

So that issue is here, but it certainly does not involve that claim does not involve forced leave issue.

Arthur W. Walenta:

That is true, that involves the right to use sick leave.

Byron R. White:

Which is in that respect as like the case we just heard, just — I mean the prior case.

Arthur W. Walenta:

Yes that is true.

I think I will reserve the rest of my time for rebuttal.

Warren E. Burger:

Very well, Mr. Walenta.

John Paul Stevens:

Mr. Walenta could I ask you, do you concede the presence of any paid paternity leave?

Arthur W. Walenta:

No we do not.

That issue was not litigated functionally until the respondent’s brief is filed before this court and there are no fact in the subject that I know of in the record.

John Paul Stevens:

So you do not concede the presence of even one day’s payment for to a father for paternity leave.

Arthur W. Walenta:

There is no showing.

John Paul Stevens:

Well do you concede it?

Arthur W. Walenta:

No, I do not, Your Honor and I must frankly say the District’s Policy were in some disarray and I do not know what was being done with respect to that aspect their regulation.

Warren E. Burger:

Ms. Dunlap.

Mary C. Dunlap:

Mr. Chief Justice and may It please the court.

In November of 1972 Sonja Lynn Bergwho was approximately five months pregnant was the sole support of her family.

She was if you will the bread winner, her husband was a full-time student of the ministry and she was the sole source of income for him, herself and her soon to be born first child.

Warren E. Burger:

Would it make any difference if that were not so?

Mary C. Dunlap:

Well it makes a difference here Mr. Chief Justice because of the nature of the injury.

Warren E. Burger:

On the legal issues.

Mary C. Dunlap:

It makes a difference with respect to the nature of the injury, that would have been incurred by Mrs. Berg had she been compelled to leave at the time when she was fully able to work for the Richmond School District and teach her kindergartners.

The nature of her injury was such that the District Court as Mr. Justice Stewart has pointed out issued a preliminarily injunction solely on the basis of its jurisdiction over her 1983 claim of an invasion of her constitutional rights by virtue of the force to leave policy.

Mrs. Berg in November 1972 was indeed a person claiming to be aggrieved under Title VII for purposes of filling her charge for the following reasons.

It was her doctor’s very best prediction and in the area of pregnancy we deal with predictions, that she would be able to teach until the onset of delivery that is to say and tell the time when the doctor believed she would be confined for purposes of giving birth, for that reason her doctor recommended in a letter to a School District that her state of health was such that she be permitted to continue to teach.

Unlike my opposing counsel statement of the record and I believe page 111 of the Appendix will — excuse me page 113 of the Appendix will illustrate this, the policy of the district was not to permit teachers as of November of 1972 to teach through their seventh month, but only through there sixth.

That there is little importance to the question of whether the leave was a compulsory one, but in terms of an individual whose income and whose family’s livelihood depends upon that person’s being able to continue working and where that person’s doctor’s advice is that, that person is capable of doing so, one month or one week or even one day’s loss of employment is actionable and a matter of concern under Title VII.

The statement of opposing counsel was that the leave would begin at the end of the seventh month and I share council’s confusion about the various policies of this district, with respect to leave dates, for in the course of this litigation the original policy on which Mrs. Berg filed her charge which appears at page 109 of the Appendix was a policy that would have required her, not to work during a period of three months when she was perfectly capable of doing so, reality has demonstrated that fact to us.

William H. Rehnquist:

What are we supposed to do in this confused state of the record, if you want a summary judgment and disputed affidavits in the District Court?

Mary C. Dunlap:

I believe Mr. Justice Rehnquist that the record is not confused on the points as to which this Court has the ability to make determinations of law, I merely wish to point out to the court that the Richmond Unified School District changed its so called compulsory leave policy twice in the course of this litigation, but retained the compulsion in that policy and as the District court observed the compulsory nature of the policy with its assumption of the inability of the individual to work and its coercive element that, that individual’s doctor’s judgment was to be distrusted and with the effect on the individual of a deprivation of income was regardless of when the compulsion applied.

William H. Rehnquist:

That is agreed on by everybody, by your opponent too?

Mary C. Dunlap:

I am sure that my opponent disagrees with me with respect to the characterization of the policy as compulsory.

It has been the position of the Richmond School District that this is an individual policy.

Let me address —

William H. Rehnquist:

Well then how does the District Court on your motion for summary judgment decide a question like that?

Mary C. Dunlap:

Mr. Justice Rehnquist, in this case there is a local rule which requires a party making a motion for summary judgment to reside undisputed facts and I believe its page is 101 and 102 of our Appendix, those facts which we believed to be undisputed and to be necessary to the District Court’s determination of the illegality of this policy are set forth.

I wish to call this court’s attention to the fact that the submissions of the petitioners in this case, which I believe appear at yes pages 105 through 107.

Do not dispute the following facts which are critical to the understanding of the discriminatory nature of this policy, First, that disabilities arising from pregnancy are the only disabilities excluded from the payment of accumulated sick leave pay, that is second, no other class of persons who can be predicted to be disabled are subjected to a classificatory doubt of their doctor’s advise and assumption and I would say presumption will come to a floor, I believe that those individuals in their ninth month are incompetent, incapable of teaching, awkward, incapable indeed in the words of Dr. Seebott (ph) of even controlling their urinary functions, that in short these pregnant women in there ninth month, all of them , mind you, can be excluded from employment by the District.

Now in short the basic facts in this case, with respect to the discriminatory purpose an effect of the Richmond School District’s policies taken as a whole are not in dispute before this court nor I believe in terms of this court’s determinations in General Electric Company versus Gilbert are the legal implications of this designedly discriminatory policy, a matter of legitimate dispute, let me explain.

First of all we submit that Mrs. Berg in light of her doctor’s advise, her bread winner status, her ability to continue teaching and her understanding of the Richmond School District’s policies as demonstrated in her charge are illustrative of rational conduct on the part of an employee capable of working, who is subject to a mandatory leave policy.

She faced the policy which at the time she filed her charge presumed her incapable in her seventh, eighth and ninth month and by the time we got to the stage of the preliminary injunction, the Richmond School District would have done the following things to her with respect to the District Court’s determination on the injunction, if it were not enjoined.

First, despite her own doctor’s advise she would be compelled to see a District physician, second, the District physician whose opinion has been presented to this court at page 56 had his mind made up with respect to all of these cases, all teachers in there ninth month.

Thurgood Marshall:

What about this other statute the 1976 statute?

Mary C. Dunlap:

We believe that the 1976 statute would, would not for the adversariness between these parties by the definition of this court in the opinion in Kremens versus Bartley would move the case however, our understanding of the requirements with respect to sufficient adversariness is this, the parties here have a genuine dispute about the legality of the combined policy of mandatory leave and denial of accumulated sick leave pay.

Mary C. Dunlap:

Those policies must be read together, because they were built together and they were applied together, that genuine controversy involving as it does the payment of accumulated sick leave to Mrs. Berg and her class makes the case alive for this point.

Thurgood Marshall:

Where is the injunction?

Mary C. Dunlap:

I believe that the District Court’s, the final injunction, the final judgment is printed in the petition for Certiorari Appendix C and that judgment embodies the final provisions.

Thurgood Marshall:

What page is it?

Mary C. Dunlap:

I am sorry, it is Appendix C page 46.

If I make turn to what I believe to be the most important and controlling question in both this case and the Satty (ph) case.

John Paul Stevens:

Ms Dunlap before you do, let me just get one thing clear, is there no dispute over back pay or any monetary dispute.

Mary C. Dunlap:

There is a monetary dispute between the Richmond School District and all the members of the class, it consists in the position of the class members and under the District Court’s injunction this would be appealed that there entitled to accumulate a sick leave pay for everyday of actual disability due to pregnancy.

John Paul Stevens:

Including the named plaintiff?

Mary C. Dunlap:

That is correct, she is included amongst those who are in need of that relief and who have afforded it below.

Mr. Justice Stevens, I wish to turn to your question asked this morning because I believe it has not yet been answered.

How are these policies discriminatory against women on account of sex?

In the case of the Richmond Unified School District the question is fairly easy to answer on the basis of a record made indeed before the Gilbert case was decided.

First of all, the Richmond Unified School District with respect to pregnant teachers and no other group, presumes them incapable of working in their ninth month on trustworthy in terms of their doctor’s advise, if their doctors say they may work in there ninth month and in short that policy with respect to forced leave question’s the judgment of these teachers, these women teachers.

I think the NEA the, National Education Association Amicus brief which characterizes that particular presumption as insulting, puts the matter mildly, we have something more here than an insult to a group of people.

John Paul Stevens:

Ms. Dunlap, let me test that for a moment.

you argue that very forcefully in you brief.

Do you think that there is room for a difference of opinion between doctors as to the precise time when a pregnant person should discontinue teaching a class?

Mary C. Dunlap:

I am sure there is a difference of opinion with respect to that like any other health condition, doctors do tend to vary in their prescriptions.

John Paul Stevens:

Well then why is it irrational for the school board to say it would like have its own doctor form a judgment on that question?

Mary C. Dunlap:

It is discriminatory because no other class of persons who can contemplate disability or who are disabled then have recurring conditions are subjected to that untrusting interventions requirement on the part of the School District.

Additionally here, we have factor that suggests the Richmond’s School District’s policy is nothing more or less than subterfuge that this court defined as an actionable form of conduct in Gilbert, namely.

This School District maintained that for purposes of leave, these teachers are presumptively disabled, then I call the court’s attention to the affidavit of the physician at pages 54 through 6 of the record in support of that and simultaneously maintain, that these same teachers who are disabled, who are awkward, who are unable walk around, who are unable to teach their students are going to be deprived of their accumulated sick leave pay.

I wish to turn to to the very critical distinctions between the denial of accumulated sick leave pay in this case and the denial of disability insurance in the General Electric case.

Thurgood Marshall:

The 76th Statute says that you cannot do that anymore.

Mary C. Dunlap:

Well they cannot do it anymore, Mr. Justice Marshall, but in interim there are group of women asked to whom they have done it, as to whom they have denied that compensation.

Thurgood Marshall:

Did you get damages in this case?

Mary C. Dunlap:

Well, the court enjoined them from denying these individuals of their accumulated sick leave pay, but that pay.

Thurgood Marshall:

Am I correct that the only relief was an injunction?

Mary C. Dunlap:

You are quite correct that the only relief in form is an injunction.

Potter Stewart:

But that lead to a demand — payment of money.

Mary C. Dunlap:

Yes, which has been unpaid, yes, Mr. Justice Stewart, thank you.

Thurgood Marshall:

But where in the; all of this does it say anything about money, it says an injunction and counsel fees, that is all.

Mary C. Dunlap:

There is money Mr. Justice Marshall tied up –.

Thurgood Marshall:

Well where is it the order?

Mary C. Dunlap:

All right, the enjoined them from depriving the plaintiff of her accumulated sick leave pay, she nonetheless has not received that pay, neither has any class member and there is group of people from 1973 to 1975 who by virtue of this District’s denial of accumulated sick leave pay, have not received there money.

I can assure you that they have not received there money, even though I cannot point out to you, where in the judgment, the injunction treats that, because I do not have it in front of me, that is the reason why.

Let me turn if I may —

Thurgood Marshall:

The whole injunction is what you pointed out to me in the appendix —

Mary C. Dunlap:

It is the judgment at page 46 of Appendix C to the —

Thurgood Marshall:

And that is the whole thing?

Mary C. Dunlap:

That is the whole thing, that is right it is.

With respect to the critical distinctions between the deprivation of accumulated sick leave pay in this case and the denial of disability insurance in the Gilbert case.

I wish to call this courts attention to another statute perhaps we have had to many statutes already, but this one turns out to be quite important namely, California Education Code Section 13456 which is reprehended in the Appendix to the petitioner’s opening brief in this court.

The relevant section of that statute, which we believe is controlling on the question of whether these petitioners could deprive these women of their accumulated sick pay, reads as follows.

Nothing in this section shall be construed so as to deprive any employee of sick leave rights under other sections of this code for absences due to illness or injury resulting from pregnancy.

In short the state of the State Statute at the time that Mrs. Berg would have been entitled to her accumulated sick leave pay, entitled her to that sick leave pay.

The Richmond Unified School District at no point in this litigation has presented any reason of any substance constitutional or statutory for its deprivation of accumulated sick leave pay for pregnancy.

Thurgood Marshall:

What you mean to say is that the court means a word that you stop withholding payment?

Mary C. Dunlap:

Yes that is correct.

Thurgood Marshall:

Which means pay.

Mary C. Dunlap:

Yes in the second section —

Potter Stewart:

Why have not they been payed if they have —

Mary C. Dunlap:

They have not been payed because it — we viewed it as a money judgment in terms of the payment by the district of this money and therefore stayed in affect by the appeals.

Potter Stewart:

It was stayed.

Mary C. Dunlap:

It was stayed, that is correct.

Now, basically what we have here is a situation where this district asserts, that for the purposes of statutorily accumulated pay you earn 10 days a year of this for every year you teach full time, that they could nonetheless deprive persons ill or injured disabled in short due to pregnancy of that part of their accumulated sick leave pay that they would otherwise be capable of drawing for any other disability.

Let us scrutinize this condition and this practice under the test of General Electric Company versus Gilbert.

First of all we have evidence in this record and if this Court finds it insufficient to make the point I think were entitled to remand under Gilbert, we believe that it is sufficient as a matter of law (Inaudible) purposeful discrimination, that for purposes of compelling leave, this employer said you are disabled in your ninth month.

Now we need to look at that compulsory leave provision in terms of the history of School District’s treatments of teachers generally and in terms of this School District’s treatment of these teachers.

Mary C. Dunlap:

The National Education Association in an amicus brief to this Court in the Luffler (ph) case detailed some 200 years of discrimination against women in the teaching profession.

First women as a whole were excluded, then married women and then finally as in the Luffler (ph) case women who were pregnant at various stages of their pregnancy.

Now how about the conditions of pregnancy with respect to this employer, this employer had a mandatory maternity leave line that contained in it that entailed a presumption of disability at a certain point and simultaneously deprived every women actually disabled by pregnancy, of her accumulated sick leave pay.

We submit that the statute which is the only excuse if you will, offered by the district for that deprivation of accumulated sick leave pay required the school district to pay accumulated sick leave pay under all conditions.

Pregnancy –.

Potter Stewart:

Well the California Statute.

Mary C. Dunlap:

The statutes, we believe —

Potter Stewart:

The California Statute, you are not talking about Title VII now.

Mary C. Dunlap:

Title VII required it.

Potter Stewart:

Well, what are you talking about?

Mary C. Dunlap:

Oh! I am sorry.

I was speaking of the statute when the California Statute when I said what I said.

That, that is not only not a justification for deprivation of the accumulated sick pay here —

Potter Stewart:

Just the opposite.

Mary C. Dunlap:

But right that the district was in violation of that statute.

John Paul Stevens:

Does that mean you would have had a suit as a matter of state law you could have brought this action in the state court.

Mary C. Dunlap:

It is a possibility I believe, it would certainly not have resolved —

John Paul Stevens:

If it is not more than a possibility, should we get involved in the issue?

Mary C. Dunlap:

It is our view that the questions before this court are the Title VII rights of the parties, it well may have been that an action could have brought under Sate Law.

John Paul Stevens:

Did either of the lower courts construe the Californian Statue which you are now directing our attention to?

Mary C. Dunlap:

No, but a District Court in a similar case has construed this very statute namely the Oakland Federation of Teachers versus Oakland School District case which is sited in our brief in which the District Court for the Northern District of California found that where that district had argued that this statute afforded them this —

John Paul Stevens:

So this argument if I get it correctly is another distinction of the General Electric case is that here you are entitled as a matter of the State Law to be paid and in defiance of State Law you were not paid therefore that shows that it is — what does it show — what follows from that.

Mary C. Dunlap:

Basically, what it shows is that this employer had no bases.

None of the sort demonstrated in GE and none of any sort that this is found to be a defense under Title VII for denying accumulated sick leave pay additionally.

Unlike the State of California in Geduldig versus Aiello and unlike General Electric Company as found by this court.

This School District had no option but to afford 10 days of accumulated sick leave pay per year.

John Paul Stevens:

Ms. Dunlap the question and I asked this earlier today and you are going to answer is, how have you made out a prima facie case?

And everybody seems to say that, well they have not made out an affirmative defense and you seemed to be saying the same thing.

How you made out your prima facie case.

Mary C. Dunlap:

I hope not to be saying that, we have made our prima facie showing in two ways viewing first this court’s language about purposeful discrimination, we submit that the tandem operation of the presumption of disability among this pregnant teachers with a presumption of non disability with respect to the accumulated sick pay, shows the purpose to discriminate against these pregnant women.

John Paul Stevens:

But they say it is the kind of disability that makes it inappropriate for you to teach, but it is not the kind of disability for which we are going to allow sick leave.

Why is that discrimination on account of sex if you accept the basic reasoning of General Electric.

Mary C. Dunlap:

It is a discrimination on account of sex because it is a whipsaw (ph) I submit to this court that with General Electrics mandatory leave policy before the court when it decided that case that it would have decided as the descending brethren pointed out to policies in tandem operation, which for one purpose drove women out of employment at a time that they were able and for another purpose deprive them of insurance benefits at a time that they were disabled, that in short this employer is saying for purposes of whatever discretion we may over your leave.

We presume you are disabled and the group is composed solely of women who along with their doctors are being distressed and suspected and questioned and presumed incompetent for purposes of their going on working and teaching.

At the same time that the School District is saying when it comes to accumulated sick pay this is the one condition for which we will not pay you.

I submit that the tandem operation of these two policies makes a different case than this court decided in the General Electric situation.

May I briefly review a couple of other aspect with respect to this.

You have not dealt at all Ms. Dunlap and whether you are not do, it is of course up to you, with the jurisdictional issues raised by your brother.

Mary C. Dunlap:

I will try to do that in a very —

Because they are covered in your brief.

Mary C. Dunlap:

I will try to do that in a very brief time.

I wish only to point out to this court that the Richmond Unified School District has argued that the whole question here is a matter of contract at page 11 of their reply brief and that state regulations and law is former part of that contract and I would finally submit to the court on the issue accumulated sick leave pay that by an unwritten policy that has never been justified in this litigation.

The Richmond School District deprived these women of compensation which their own policy namely that appearing at pages 74 and 75 of the of the appendix would have suggested these women were entitled to in short, we have here the elements of a subterfuge for discrimination that were absent in the General Electric case. If this court remains in doubt about my characterization and believes that their issues is a fact as to that subterfuge, then because we are here in a summary judgment posture a remand would be appropriate briefly as to jurisdiction first.

The petitioners allege that Mrs. Berg charge is unsworn, the records simply forecloses that argument because at page 109 she signs and dates below the language, “I swear or affirm that I have read the above charge and that it is true” so forth.

Basically what we have here is a charge that is not notarized and I submit to this court that notarization is not a jurisdictional prerequisite to the bringing of suit.

The second issue raised by these petitioners is whether she rushed to court too quickly.

I submit first that the Ninth Circuit’s dictum with respect to the lower court’s discretion to maintain the Status quo under Title VII is really of no special concern to this court because the District Court’s jurisdiction to grant a preliminary injunction under 1983 is unquestioned and the final judgment in this case imposed upon these petitioners under Title VII rest upon a timely filed charge by an aggrieved individual on the basis of which the Department of Justice issued a right to sue and the judgment was entered long after a 180 days from the filing of charge.

You would concede that it is the structure of the act that a person can not bring out prior Title VII action until he or she gets a right to sue letter from the commissioner is that correct?

Mary C. Dunlap:

That is correct.

It appears to be and this court has so understood it and is publicly said so in at least two opinions, has not it?

Mary C. Dunlap:

That is correct.

However this court’s decision in Occidental Life Insurance Company versus EEOC indicates that the court’s concern is with private individuals who completely avoid or circumvent the stages of administrative proceeding that Congress has prescribed in Title VII and here we would submit that Mrs Berg did everything within her capabilities and within the confines of the pregnancy that lasted nine months.

To get this letter —

Potter Stewart:

(Inaudible) she has got the right to sue letter?

Mary C. Dunlap:

She filed a 1983 action and a Title VII complaint.

Potter Stewart:

And a Title VII complaint before she had been notified by the Commissioner of her right to sue. Isn’t that correct?

Mary C. Dunlap:

Before the letter had arrived in the mail, that is correct.

The court was informed of the issuance of the letter on the day it issued the preliminary injunction.

Moreover in this case Mrs Berg faced, I am sorry the District Court faced the following choice.

Once that letter was issued some 14 days after the suit was filed, it could either require dismissal and refiling that same day or permit supplementation of the complaint and we believe that the District Court followed this Court’s holding in Love versus Pullman Steel — Pullman Train Company by saying I would not require you to go down and pull that complaint out of the drawer, stamp it dismissed and then put in the letter and stamp it refiled.

Mary C. Dunlap:

I would permit supplementation.

Thurgood Marshall:

You do not assume, you do not want us to say as a matter of precedent that anyone who wants to disregard the statute may file providing they file the notice letter 14 days later.

You do not want us to say that do you?

Mary C. Dunlap:

I think that no, Mr Justice Marshall, but I think that is really not an appropriate characterization of what occurred here.

I think that rather what occurred here was —

Thurgood Marshall:

Why did you have to file it right that day?

Mary C. Dunlap:

She had to file suit right that day.

Well, let us see she could have — yes she could have filed suit two weeks later and if she had filed a suit two weeks later, she might still have been able to give the other side ample notice and get to court in time to get the injunction which was the only means by which this woman kept her job.

Yes she could have, we could have cut it a little finer.

But basically it is the petitioner’s position here that she filed her charge too soon.

Thurgood Marshall:

The presumption is that there has been disregard of statute.

Mary C. Dunlap:

I do not believe there was disregard of the statute and I believe that a reading of the statute will provide that the Department of Justice’s letter is valid if issued within a 180 days or after dismissal of the charge, it does say whichever is later.

The Department of Justice in this case recites —

Thurgood Marshall:

Have you mentioned anytime up until the day of final judgment?

Mary C. Dunlap:

It seems to me that a notice of right of action if issued on the day of final judgment, that would be a very unusual case it seems to me because how would the District Court have determined it had jurisdiction and in the earlier stage the District Court —

Potter Stewart:

This Court has held that a right to sue letter is a jurisdictional prerequisite to filing a complaint under Title VII. That is correct.

Whether you may think that is wrong, but that is what this court has said isn’t it?

Mary C. Dunlap:

I do not resist that, I simply would suggest that the District Court had no opportunity to dismiss this action before the time that the right to sue letter was issued.

When could it have dismissed the action.

It was filed on the 5th, a preliminary injunction was granted on the 22nd, a right to sue letter was issued on the 21st the day before the court was notified of that fact and the District Court as of the time the right to sue letter was issued had that choice should it require dismissal and refilling or should it permit supplementation.

I submit therefore that in this case which is somewhat unusual in it’s facts.

The District Court at the time that it determined to allow supplementation had before it both of the jurisdictional prerequisites, the filling of a timely charge, the issuance of a proper invalid notice of right of action from the Department of Justice.

William H. Rehnquist:

By your line of reason and I suppose you would concede if the court issued a temporary restraining order and required bond on the 5th and that the right to sue letter had not arrived till the 21st perhaps damages could be recovered on that bond, but the District Court, really took no action on that complaint until after all the jurisdictional prerequisites were present.

Mary C. Dunlap:

That is correct Mr. Justice Rehnquist, I think we are in a difficult posture here arguing what might have been the case if the district court had not had 1983 jurisdiction to do precisely what it did and as this court itself pointed out although it cut in a different direction, the equal protection concerns here and the Title VII concerns here are not so far apart.

Thurgood Marshall:

I can not see, why you would be satisfied in saying that in this case specialize the facts are, it is possible to do it this way rather than to be asking us to make Blanket Approval of it.

Mary C. Dunlap:

I do not request the Blanket Approval, I simply seek — Oh I am sorry I meant to be much clear with you about that.

I do not think any Blanket Approval is necessary in this case because I do not think the issues that you suggest are necessarily to be determined in this case.

I think they need not be reached by this court.

Byron R. White:

Let me give you another suppose to be case.

You have a judgment and a word of attorney fees.

Byron R. White:

Let us just suppose that in every respect, this case is moot on the merits and then everybody agrees that it is just moot that the state law has given you every piece of relief on the merits that you could want.

What should we do with respect to — normally if the case is moot we vacate in a Federal Court, it is a Federal Court that we vacate the judgment and order its dismissal, that is it dismissed

Mary C. Dunlap:

Were it truly moot, I do not mean to fight your facts, were it truly mooted.

Byron R. White:

Well I know, I just assume that it is truly moot.

Mary C. Dunlap:

And no issues of relief and everyone has being paid.

Byron R. White:

No, except for attorney’s fees, the attorney’s fees there you have been awarded attorney’s fees, but it now happens that every other part of the judgment is moot.

The case is just moot.

Mary C. Dunlap:

You make it a harder question if the only issues is attorney’s fees.

Byron R. White:

Well that is what I want to ask you.

Do you know of any cases that bare on this question.

Mary C. Dunlap:

Well the only thing remaining is attorney’s fees.

I believe there is a Federal Appellate level decision holding that even where the only issue is attorney’s fees, the action is not moot, I would have to do —

Byron R. White:

Is it not moot?

Mary C. Dunlap:

The action is not moot, that is correct.

Byron R. White:

And what do you do with the rest of the judgment?

Mary C. Dunlap:

Well the rest of the judgment would technically —

Byron R. White:

You mean that saves the attorney’s fees, as you say is all the other issues were being moot, that we must decide them.

Mary C. Dunlap:

It may sound surprising but I believe I read in an opinion to that effect.

I think that is not this case, without fighting your facts because we have here significant question —

Byron R. White:

I know what is your position is, we may not agree with you.

Mary C. Dunlap:

That is perfectly possible and in that event we would —

Byron R. White:

Highly unlikely, I suppose you think.

Mary C. Dunlap:

Highly unlikely, but perfectly possible.

In the event that there is a need for briefing on the question of mootness we stand ready to do anything this court wishes in that regard.

Warren E. Burger:

In any event, your time has expired.

Mary C. Dunlap:

Thank you very much Mr. Chief Justice.

William H. Rehnquist:

I would like to have one more question.

If attorney’s fees are saved from — I take that the rest of case has got to be saved too because the court is got to examine into the question of whether it was properly decided that the prevailing party received the attorney’s fees.

Mary C. Dunlap:

I think that is quite correct.

Well do you think, do you think the possibility of a petitioner having his cost paid saves the case from being moot?

You know it does not?

Mary C. Dunlap:

I believe it does not.

You know it does not and yet – case is moot out after it has been filed here.

We strip it down on the poor petitioner is left with his cause.

Mary C. Dunlap:

I hear you very quickly, attorney’s fees are a form of relief specifically prescribed under Title VII that would require certain legal determinations as Mr Justice Rehnquist pointed out.

Thurgood Marshall:

But they want money, there was money involved.

They went (Inaudible) should pay any help of temporary disability insurance.

Mary C. Dunlap:

Well there are still money involved here, I assure you.

You and I agree on that certainly.

Thank you very much.[Laughter]

Arthur W. Walenta:

May it please the Court —

Warren E. Burger:

Mr. Walenta.

Arthur W. Walenta:

— I would like to reply very briefly only to a couple of points.

The District does not concede the validity of a 1983 cause of action against Superintendent Snowgrass (ph) individually.

There is nothing alleged in the pleading in our view that shows any nexus or connection between any conduct on the part of that man and Mrs. Berg’s claims.

It is very troublesome representing public agencies, try some officer picked out and slammed with a suit when he is two or three points removed from what actually happened.

John Paul Stevens:

Mr Wallenta do you concede that there is still is remaining an issue as to whether or not this lady should receive some money.

Arthur W. Walenta:

Oh there is no question on the sick leave.

John Paul Stevens:

Then the case can not possibly be mooted.

Arthur W. Walenta:

That is true,I think on that issue.

Potter Stewart:

You agree with your sister on the other side that this case is not moot don’t you?

Arthur W. Walenta:

I basically do.

What about the issue of enforced leave?

Is that moot or not?

Arthur W. Walenta:

That of course — that is the point at which I–

Let us assume that we would agree with you on the sick leave pay.

Arthur W. Walenta:

I have to rely upon the attorney fee award.

Unheard legal right to get attorney’s fees.

In order to save the other issue?

Arthur W. Walenta:

That is correct Your Honor.

Thurgood Marshall:

Did not he want himself saying that you were enjoined from not paying the sick leave money?

Arthur W. Walenta:

Yes but there of course are two issues.

Thurgood Marshall:

And what does that mean when we enjoin from not paying, it means you pay?

Arthur W. Walenta:

Oh yes the sick leave issue is not moot.

The issue of the right of the district to require medical examination, the right of the district to have the last say on the question of leave for maternity is one that has been manifestly affected by a change in California law.

I would hope though that the court would take into account the fact this was the change that was made because the legislature thought that the Federal Law required the contrary.

Now that is something quite unique in terms of the history of this court and its examination and legislation and its effect on question of mootness because by virtue of that legislation we did not get reimbursed for the additional costs that we had to incur

And what if, what would have — you paid the cost in the lower court, I get it?

Arthur W. Walenta:

Your Honor when I say cost, I am talking about costs of that whole sick leave program.

I know but you lost below.

Arthur W. Walenta:

Yes.

And so if there were costs there you paid them.

Arthur W. Walenta:

Oh yes.

Assume we did what we usually do and when a case is moot and vacated the judgments below.

What happens to the cost?

You are just left where you were.

Aren’t you?

Arthur W. Walenta:

Judgment is vacated, I think that Mrs. Dunlap’s award of attorney’s fees is vacated as well.

I know but how about your cost?

Arthur W. Walenta:

Oh the cost that we incurred, we lost.

Byron R. White:

Well you have lost but if we vacated the judgments, those judgements are not authoritative anymore with respect to your losing, but nevertheless you are stuck with your cost.

I take it.

Arthur W. Walenta:

Excuse me.

John Paul Stevens:

But Mr. Wallenta aren’t the cost that you are discussing may cost abstain these people from working and you have got services in exchange for that money.

Arthur W. Walenta:

We are now all kind of confused as to what question is.

If the judgment is vacated we do not lose our costs we will go into District Court and collect them because the plaintiff did not prevail, seems to me we were have been the prevailing party as far as cost of suit are concerned.

Now Mrs. Berg’s entitlement to sick leave is something that remains an issue.

If she wins in this law suit, she will be entitled to recover that money and we will pay it to her.

Thurgood Marshall:

And the members of the class.

Arthur W. Walenta:

That is right and those members of the class in that intervening period.

Arthur W. Walenta:

Mr Justice thank you.

Warren E. Burger:

Thank you counsel.

The case is submitted.