compiled version

8/14/2019 Compiled Version

1/39

THE SUPREME COURT OF THE UNITED STATES

FALL TERM, 2008

DOCKET NO. 01-01234

CITY OF TATE, a municipal corporation,

CLEMENT GREENBERG, Mayor,

and

CHARLES YOUNG, Pension Plan Administrator,

Petitioners,

v.

KINKADE, a non-profit corporation,

and

DONATELLA MOSS, an individual,

Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THETWELFTH CIRCUIT

Brief for Petitioners

Team # 5

Issue #1

Nicholas Pyle (310) 405-4687

Issue #2

Max Feinstat (916) 616-2238


2/39

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS AND RULES . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT

I. THE MONUMENTS IN THE PARK ARE GOVERNMENT SPEECH AND

THEREFORE TATE CAN MAKE CONTENT-BASED RESTRICTIONS ON THEMONUMENTS; ALTERNATIVELY, THE MONUMENTS ARE A NONPUBLIC

FORUM, AND TATE MAY RESTRICT MONUMENTS BY HISTORICAL

RELEVANCE . . . . . . . . . . . . . . . . . . . . . . 11

1. The Monuments in Tates Park are Government SpeechBecause the Purpose of the Park is to Relate Tates

Message, Tate Has Editorial Control over the

Monuments, and Tate Is Responsible for the Park . . 11

2. Alternatively, Because the Monuments in thePark Are aNonpublic Forum, Tate Is Allowed to and Did Make a

Reasonable Refusal of Kinkades Unrelated Monument .15

A. The Relevant Forum is the Monument in thePark . . . . . . . . . . . . . . . . . . . .

. 16

B. The Monuments in the Park Are a NonpublicForum Because Tates Policy and Practice

is to Limit Access to the Monuments inthe Park . 17

3. Tates Policy of Restricting Access to MonumentsInvolving the History of Tate and to Groups with Long-

Standing Ties to Tate is a Reasonable Restriction . 19

II. BECAUSE TATES SENIORITY SYSTEM IS FACIALLY NEUTRAL AND

THE FAILURE TO RECALCULATE MOSSES NCS DATE DOES NOT

1


3/39

CONSTITUTE A PRESENT DISCRIMINATORY ACT, MOSS HAS NOT

STATED A CLAIM FOR WHICH SHE CAN GET RELIEF . . . . . . 22

1. Tates refusal to recalculate Moss NCS date in 2004

is not an actionable violation under Title VIIbecause it is the present effect of past discrimination

. . 23

2. Tates seniority system is neutral Bona Fide andtherefore falls under the protection of 42 U.S.C. S

2000e-2(h) . . . . . . . . . . . . . . . . . . . . 28

3. Tates seniority system is not subject to 42 U.S.C.As 2000e-5(2) because it is a bona fide seniority

system that has not been adopted for an intentionally

discriminatory purpose . . . . . . . . . . . . . . 31

2


4/39

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES:

Bazemore v. Friday,

478 U.S. 385 (1986) . . . . . . . . . . . . . . . . . 26-28

Cornelius v. NAACP Legal Def. & Educ. Fund,

473 U.S. 788 (1985). . . . . .3, 11, 12, 15, 16, 17, 19, 20

Intl Bhd. of Teamsters v. U.S.,

431 U.S. 324 (1977) . . . . . . . . . . . . . . . . 6, 22, 28-31

Ledbetter v. Goodyear Tire & Rubber Co., Inc.,

127 S. Ct. 2162 (2007) . . . . . . . . . . . . . . . . 23

Perry Educ. Assn. v. Perry Local Educators Assn.,

460 U.S. 37 (1983) . . . . . . . . . . . . . . 4, 15, 16-19

Rosenberger v. Rector & Visitors of Uni. of Va.,

515 U.S. 819 (1995) . . . . . . . . . . . . . . . 3, 11, 14

United Air Lines, Inc. v. Evans,

431 U.S. 553 (1977). . . . . . . . . . . . . .5,6, 21, 22, 24-26

FEDERAL APPELLATE COURT CASES:

Pallas v. Pacific Bell,

940 F.2d 1324 (9th Cir. 1991) . . . . . . . . . . . . . .10

3


5/39

Sons of Confederate Veterans, Inc. v. Commr of Va. Dept of

Motor Vehicles,

288 F.3d 610 (4th Cir. 2002) . . . . . . . . . . . . . . 12

Wells v. City & County of Denver,

257 F.3d 1132 (10th Cir. 2001) . . . . . . . . . . . 3, 12

4


6/39

Questions Presented

I. Is a municipal park a public forum under the First

Amendment for the erection and permanent display of

monuments donated by private parties and are those

monuments the private speech of the monuments donor?

II. Whether an employer violates Title VII when, in making

determinations for pension and other benefits after the

enactment of the Pregnancy Discrimination Act, the employer

fails to restore service credit that female employees lost

when they took pregnancy leaves under lawful pre-PDA

policies?

Opinions Below

Kinkade v. City of Tate, 999 F.9th 999 (12th Cir. 2007)

Moss v. City of Tate, 888 F.9th 888 (12th Cir. 2007)

Constitutional Provisions and Rules

U.S. Const. amend. I

U.S. Const. amend. XIV

42 U.S.C. 2000e-2(h)

42 U.S.C.A 2000e-5(2).

5


7/39

INTRODUCTION

Issue 1: Under principles identified by the Supreme Court,

petitioner City of Tate (Tate) had the right to refuse to

accept respondent Kinkades monument for permanent placement in

a Tate city park.

A Tate city ordinance states that a monument may only be

erected in the park if the monument directly relates to the

history of Tate or is donated by a group with long-standing ties

to Tate. (R. at 3). Tate thereby rejected a proposed monument

from Kinkade, an organization that had only been established in

Tate two years prior. (R. at 2, 3). The proposed, permanent

monument did not relate to the history of Tate; instead it was a

monument to the Seven Proverbs of Kinkade. Id. Kinkade sued

and requested a preliminary injunction to compel Tate to place

the monument to Kinkade in the park. (R. at 3).

The district court ruled denied the requested injunction.

(R. at 2). The Twelfth Circuit Court of Appeals reversed and

found that the monument represented private speech and that

Tates reason for denying the monument did not meet the strict

scrutiny standard for a traditional public forum. (R. at 3, 4).

6


8/39

Tate petitioned for and was granted certiorari by the Supreme

Court.

The Supreme Court has recognized that the government is

allowed to make content-based choices regarding its own

government speech. Rosenberger v. Rector & Visitors of Uni. of

Va., 515 U.S. 819, 833 (1995). The Supreme Court should now

adopt a test developed in four circuit courts of appeal to

evaluate when speech is government speech and when it is private

speech. Wells v. City & County of Denver, 257 F.3d 1132, 1141

(10th Cir. 2001). The permanent monuments in Tates park are

government speech because they meet the three relevant factors

of this test: 1) the central purpose of the park is to tell the

history of Tate; 2) Tate reserves editorial control over the

monuments by selecting which monuments to display in the park;

and 3) Tate is ultimately responsible for the speech of the

monuments because Tate provides the security for the park.

Thus, the monuments are government speech and Tate is allowed to

make a content-based choice to exclude monuments, such as

Kinkades, which are not historically relevant.

Even assuming, arguendo, that the monuments were private

speech, Tate would still be allowed to refuse to accept

Kinkades monument. The government is allowed to control access

to a nonpublic forum as long as the restrictions are reasonably

7


9/39


10/39

treated pregnancy leave as personal leave with a maximum NCS

credit of 30 days in compliance with then existing law. (R. at

8). In 1978, the passage of the Pregnancy Discrimination Act

(PDA) changed the law so that pregnancy must be treated as a

disability for the receipt of benefits. (R. at 8). Tate

changed its policy in 1978, and from then on treated pregnancy

as disability leave with no NCS credit limit. (R. at 9).

Moss, an employee of Tate from 1972-2004, took a pregnancy leave

in 1975, for which she received 30 days NCS credit under the

then existing policy. (R. at 9). After retiring, Moss brought

suit claiming a violation of Title VII because in 2004 Tate did

not recalculate the 30 days credit Moss had received for her

pregnancy leave in 1975. (R. at 9). The district court granted

summary judgment for Moss and Tate appealed. (R. at 9). The

Court of Appeals affirmed, holding 1) that Tates failure to

recalculate Moss NCS date in 2004 and give her additional days

for a leave credited in 1975 was a discriminatory act 2) that

Tates seniority system was facially discriminatory because it

perpetuated a policy of discrimination against women who took

their pregnancy leaves before 1978 and 3) that Tates seniority

system was subject to 42 U.S.C.A s 2000e-5(2). (R. at 10). The

petitioner contests all three of these holdings.

9


11/39

Title VII requires that claims for discriminatory

employment practices be brought within 180 days from when the

discrimination takes place United Air Lines, Inc. v. Evans, 431

U.S. 553, 557 n.9 (1977).In order to prove discrimination, the

plaintiff must show the discrimination is not the effect of past

discrimination carried forward by a neutral system. Id.at 558.

The calculation of Moss benefits in 2004 was simply the

totaling up of credit that she had received originally in 1975.

In holding that Tates failure to recalculate Moss NCS date in

2004 was a discriminatory, the court of appeals ignored the

precedent set in United Airlines v. Evans, and misidentified a

present effect of past discrimination carried forward by a

neutral system as a continuing violation.

The Court of Appeals held that Tates seniority system was

facially discriminatory because it refused to calculate the

seniority dates of women who took pre-1978 pregnancy leaves.

(R. at 10). The court in effect ruled that Tates system was

discriminatory because it was freezing in place seniority

standings based on a policy which, had it been in place post-

PDA, would have been illegal. This holding ignores the immunity

seniority systems receive under 42 U.S.C. s 2000e-2(h) when they

freeze in place the seniority rights acquired pre-act. See

Intl Bhd. of Teamsters v. U.S., 431 U.S. 324, 356 (1977).

10


12/39

Because the Court of Appeals declares Tates system to be

discriminatory based on the very exception which Supreme Court

has interpreted the statute to allow, the holding is in error

and Tates seniority system is non-discriminatory.

Finally, the Court of Appeals held that Tates seniority

system was subject 42 U.S.C.A s 2000e-5(2). This statute only

applies to a seniority system which has been adopted for an

intentionally discriminatory purpose. 42 U.S.C.A s 2000e-5(2).

Because Tates seniority system is non-discriminatory, 42

U.S.C.A s 2000e-5(2) does not apply.

For these reasons the this court should reverse the 12th

Circuits decision and enter summary judgment for Tate.

STATEMENT OF THE CASE

Issue 1: Petitioner Tate enacted a city ordinance regulating

what types of permanent displays may be allowed in a specific

city park. (R. at 3). The permanent displays must be directly

related to the history of Tate or must be donated by groups with

long-standing ties to the Tate community. Id. The ordinance

excludes all monuments that do not meet the historical relevance

criteria. (R. at 4).

Pursuant to this policy, the city park contains a number of

buildings and permanent displays. (R. at 2). The park contains

Tates first school, first city hall, and first firehouse, as

11


13/39

well as a Ten Commandments monument. Id. After opening a local

chapter in 1969, the Fraternal Order of Eagles (Eagles)

designed and produced the Ten Commandments monument and donated

it to the city in 1971. Id. The Ten Commandments monument,

like many other monuments in the park, contains an inscription

noting who donated the monument to the city. (R. at 3). The

buildings, artifacts, and permanent displays in the park relate

to or commemorate Tates pioneer history. (R. at 2).

Respondent Kinkade, a nonprofit organization, established a

chapter in Tate in 2001. Id. In 2003, Kinkade wrote to the

mayor of Tate requesting permission to erect a monument to

Kinkade in the park. Id. This monument would be designed by

Kinkades sculptor, would be similar in size and nature to the

Ten Commandments monument, would have a large plaque noting

Kinkades creation of the monument, and would consist of the

founding tenants of Kinkade. (R. at 2, 3). These founding

tenants are known as the Seven Proverbs of Kinkade. Id.

The mayor sent Kinkade written notification denying the

request to place Kinkades permanent monument in the park. (R.

at 3). The mayor noted that pursuant to the city ordinance, the

Kinkade monument could not be placed in the park because it did

not directly relate to the history of Tate and was not donated

by a group with long-standing ties to the Tate community. Id.

12


14/39

Kinkade filed suit in federal district court, alleging that

Tates refusal to erect the monument to Kinkade constituted a

violation of Kinkades First Amendment right to free speech.

(R. at 3). Kinkade requested a preliminary injunction to compel

Tate to accept and erect the monument. (R. at 2). The district

court denied Kinkades requested injunction. Id. Kinkade

appealed the denial of the injunction. (R. at 3). The Twelfth

Circuit Court of Appeals reversed in Kinkades favor, holding

that the Kinkade monument constituted private, protected speech

under the First Amendment. Id. The court reasoned that Tates

park is a traditional public forum and that the citys content-

based restriction of private speech in this public forum could

not survive strict scrutiny. (R. at 4).

Issue 2: The City of Tate operates a seniority system which is

premised on a Net Credited Service (NCS) date that calculates

the total days an employee has worked for Tate. (R. at 8).

This calculation is used to determine the employees right to

pension and other benefits. (R. at 8). Prior to 1978, Tate

treated pregnancy leave as personal leave with a maximum NCS

credit of 30 days in compliance with then existing law. (R. at

8). In 1978, the passage of the Pregnancy Discrimination Act

(PDA) changed the law so that pregnancy must be treated as a

disability for the receipt of benefits. (R. at 8). Tate

13


15/39

changed its policy in 1978, and from then on treated pregnancy

as disability leave with no NCS credit limit. (R. at 8).

Moss was employed by Tate from 1972 until 2004. (R. at 9). In

1975, Moss took 240 days of pregnancy leave and was credited

thirty days in compliance with Tates pregnancy policy in effect

at the time. (R. at 9).

In 2004, Moss challenged the calculation of her NCS date

based on the cities refusal to credit her for the remaining 210

days of her 1975 pregnancy leave. (R. at 9). After exhausting

her administrative rights, Moss filed suit in federal court

alleging that the failure to adjust the NCS date in 2004

constituted a violation of Title VII. (R. at 9). The district

court granted Moss motion for summary judgment and Tate

appealed. (R. at 9).

On appeal, the court held that Tates refusal to adjust

Moss NCS date in 2004, Tate enacted a policy that

intentionally discriminates against pregnant women and therefore

violated Title VII. (R. at 10). In its reasoning, the court

relied entirely on the Ninth Circuit case Pallas v. Pacific

Bell.

The court in Pallasand the court below in this case break

from established Supreme Court precedents by incorrectly

analyzing the city of Tates failure to recalculate Moss NCS

14


16/39

date as a present violation of Title VII. Properly analyzed

under the framework set out in the Supreme Court decision United

Airlines v. Evans, Tates failure to recalculate the NCS date is

merely a present effect of past discrimination, and therefore

not actionable under Title VII at this time. Because the

failure to recalculate Moss NCS date is not discriminatory,

Tate requests that this Court strike the Court of Appeals

decision and enter summary judgment for Tate.

ARGUMENT

I. THE MONUMENTS IN THE PARK ARE GOVERNMENT SPEECH AND

THEREFORE TATE CAN MAKE CONTENT-BASED RESTRICTIONS ON

THE MONUMENTS; ALTERNATIVELY, THE MONUMENTS ARE A

NONPUBLIC FORUM, AND TATE MAY RESTRICT MONUMENTS BY

HISTORICAL RELEVANCE

In cases involving speech on government property, the

Supreme Court has adopted a three-part analysis to determine

whether a First Amendment right has been violated. Cornelius v.

NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797 (1985). First,

the court must decide whether the speech involved is protected

speech. Id. If the speech is not protected, then the analysis

need go no further. Id. If the speech is some form of

protected speech, then the court must identify the forum to

which the speaker wants access, because the governments right

15


17/39

to limit access depends on the type of forum involved. Id.

Finally, the court must assess whether the governments

justification for limiting access to the forum meets the

relevant standard. Id.

1. The Monuments in Tates Park are Government Speech

Because the Purpose of the Park is to Relate Tates

Message, Tate Has Editorial Control over the Monuments, and

Tate Is Responsible for the Park

When the government is the speaker, the government is

permitted to regulate the content of what is and what is not

expressed. Rosenberger v. Rector & Visitors of Uni. of Va., 515

U.S. 819, 833 (1995). Thus, when what is at issue is government

speech, rather than private speech, the government is allowed to

regulate the speech and the court need go no further in its

analysis. Cornelius, 473 U.S. at 797. Although it has clearly

recognized the government speech doctrine, the Supreme Court has

not clearly adopted a standard for analyzing what constitutes

government speech. Wells v. City & County of Denver, 257 F.3d

1132, 1140 (10th Cir. 2001). However, at least four circuit

courts have relied on a four factor test to apply the government

speech doctrine. See id. at 1141 (noting the Eighth Circuit and

Ninth Circuits reliance on four factors and choosing to rely on

the same factors); Sons of Confederate Veterans, Inc. v. Commr

of Va. Dept of Motor Vehicles, 288 F.3d 610, 618 (4th Cir.

16


18/39

2002) (using the four factor test). The four factors the

circuit courts have used in analyzing government speech are: 1)

the central purpose of the program in which the speech in

question occurs; 2) the degree of editorial control exercised by

the government or private entities over the content of the

speech; 3) the identity of the literal speaker; and 4) whether

the government or the private entity bears the ultimate

responsibility for the content of the speech. Sons of

Confederate Veterans, Inc. 288 F.3d at 618.

In Wells, the plaintiff requested the defendant city of

Denver to place a sign made by the plaintiff inside a Christmas

display on the city hall steps. Wells, 257 F.3d at 1137. A

second sign placed in the display by the city listed the

corporate sponsors who funded the display. Id. The city

refused the plaintiffs sign. Id. The plaintiff sued to compel

the city to place the plaintiffs sign inside the display,

arguing that the display was an assortment of private speech by

the corporate sponsors. Id.at 1138-39. The Tenth Circuit held

for Denver, finding that the entire display constituted

government speech. Id.at 1140, 1153. The court focused its

analysis on the sign thanking the corporate sponsors. Id.at

1140. The court found that three factors showed the speech in

question was government speech. Id.at 1141. First, the court

17


19/39

found the central purpose of the sign was to thank the

corporations for funding the display. Id. Second, the court

found that there was no evidence showing the city lacked

editorial control over the display. Id.at 1142. Third, the

court found that the citys ultimate responsibility for the

content of the display was demonstrated by the citys

responsibility for protecting the display, and the fact that the

city had to defend the display against plaintiffs suit. Id.

The court did not address the fourth factor of the identity of

the literal speaker. Because the display constituted

government speech and the government has the right to control

the contents of its own speech, the court held Denver had the

right to exclude the plaintiffs sign. Id.at 1144.

Analyzed under the factors used in Wells, the monuments in

Tates city park are properly characterized as government

speech. As in Wells, the factor dealing with the literal

speaker is not relevant because the speech in question is not

verbal. First, there is little, if any, difference between a

sign thanking corporate sponsors for funding the display in

Wellsand a plaque essentially thanking Kinkade for creating the

monument and donating it to the city. Second, in Wellsthe court

found Denver maintained editorial control over the sign and

display. Tate also exerts final editorial control, because

18


20/39

Tates city ordinance controls the criteria for which monuments

may appear in the park. Lastly, as in Wellswhere Denver bore

the burdens of defending the display and providing security for

the display, Tate is currently bearing the burden of this very

litigation and Tate also provides security for the monuments in

its park. Thus, Tate bears ultimate responsibility for the

monuments.

Just like the display built with corporate donations and

erected on government property in Wells, the monuments donated

by organizations and erected in Tates city park constitute

government speech. The Supreme Court has recognized that when

the State is the speaker, it may make content-based choices.

Rosenberger, 515 U.S. at 833. Therefore, Tate was within its

rights to choose not to display the monument to Kinkade.

2. Alternatively, Because the Monuments in the Park Are aNonpublic Forum, Tate Is Allowed to and Did Make a

Reasonable Refusal of Kinkades Unrelated Monument

Even assuming, arguendo, that the monument to Kinkade was

private speech, Tate would still have the right to refuse to

accept the donation of the monument, because Tate is allowed to

reasonably regulate the type of private speech that occurs in a

nonpublic forum. The right of access to public property by

private speakers depends on the character of the property at

19


21/39

issue. Perry Educ. Assn. v. Perry Local Educators Assn., 460

U.S. 37, 44 (1983). The Supreme Court has identified three

types of fora: the traditional public forum, the public forum

created by government designation, and the nonpublic forum.

Cornelius , 473 U.S. at 802. Traditional public fora are places

which by long tradition have been devoted to assembly and

debate. Id. Government designated fora are nontraditional

places which the government has created for use by the public at

large or for use by certain speakers. Id. Nonpublic fora are

public property which has not been a place for public

communication by tradition or designation. Id. To decide what

type of forum is at issue, the Court must first define the

relevant forum and, second, decide the nature of that defined

forum. Id.at 800, 802.

A. The Relevant Forum is the Monuments in the Park

When speakers seek general access to public property, the

forum encompasses that property. Id.at 801. Where more limited

access is sought, the Supreme Court uses a more tailored

approach to identifying the perimeters of the forum within the

confines of the government property. Id.; see also Perry,460

20


22/39

U.S. at 46 (defining the relevant forum as the districts

internal mail system, and not the district in general).

For example, in Corneliusthe plaintiff sued to gain access

to the Combined Federal Campaign (CFC), a charity drive aimed at

federal employees. Cornelius, 473 U.S. at 790. The CFC is

conducted by federal employees who distribute literature on

select charities to fellow employees in federal offices. Id.at

791. The plaintiff brought suit to challenge its threatened

exclusion from the CFC. Id.at 795. The plaintiff contended

that the relevant forum the plaintiff was seeking access to was

the federal workplace. Id.at 800. The Court disagreed and held

that the relevant forum was the CFC itself, because the

plaintiff only sought access to the CFC and did not seek a

general right to access the federal workplace. Id.at 801. In

finding that the government had the right to exclude the

plaintiff from the CFC, the Court stated that in defining the

forum we have focused on the access sought by the speaker. Id.

The Court should examine the access sought by Kinkade under

the standard the Court set forth in Cornelius. As in

Corneliuswhere the plaintiff only sought access to the CFC and

not to the wider workplace, Kinkade does not seek access to the

entire park, but rather only to the monuments in the park.

21


23/39

Thus, the relevant forum is not the entire park, but rather the

monuments in the park.

B. The Monuments in the Park Are a Nonpublic Forum

Because Tates Policy and Practice is to Limit

Access to the Monuments in the Park

A nonpublic forum is public property which has not been by

tradition or designation a forum for public communication.

Perry,460 U.S. at 46. In examining whether a forum is

nonpublic, the Court has examined: 1) whether the government

explicitly sought as a policy goal to create a forum that would

not be open to general public use; and 2) whether the government

practice since creation of the forum has been to limit access to

the forum. See Perry, 460 U.S. at 47; Cornelius, 473 U.S. at

804-05. The Court has held that the existence of private

expressive activity does not turn a nonpublic forum into a

public forum, if the government still limits access to the

nonpublic forum. Cornelius, 473 U.S. at 805.

In Perry, the plaintiff school union sued after it was

excluded from sending mail through a school districts internal

mail system. Perry,460 U.S. at 41. The plaintiff union was

excluded, while another union was allowed to use the internal

mail system. Id. The plaintiff argued that the internal mail

system was a designated public forum, because it was

22


24/39

periodically used groups including the YMCA, Cub Scouts, other

civic and church organizations, and the rival teachers union.

Id. The Court held that the school district was allowed to

exclude the plaintiff union. Id.at 55. The Court rejected the

plaintiffs argument that the mail system was a designated

public forum. Id.at 47. The Court noted that the mail system

had not been opened to the general public by policy or by

practice. Id. Permission to use the mail system had to be

sought by groups on a case-by-case basis. Id. This type of

selective access did not transform the mail system into a public

form, and therefore the Court held the mail system was a

nonpublic forum. Id.

Similarly to Perrywhere the Court found the school

districts policy and practice were aligned, it is Tates policy

and practice to only allow select groups to place monuments in

the park after applying to the city. Tates case-by-case

procedures fit squarely with the procedures the Court approved

for the nonpublic forum in Perry. Additionally, like Perry

where the mail system was found to be a nonpublic forum despite

the selective access granted to certain groups, the monuments in

Tates park are a nonpublic forum despite the selective access

granted to other groups. In Perry, the district allowed one

union to use the mail system and disallowed another union. Tate

23


25/39

also allowed one group, the Eagles, to use the park for the

placement of a monument, and disallowed another group, Kinkade.

As held by the Court in Perry, Tates allowance of one group to

place an expressive monument in the park does not make the forum

a public one. Thus, the monuments in Tates park are a

nonpublic forum.

3. Tates Policy of Restricting Access to Monuments

Involving the History of Tate and to Groups with Long-

Standing Ties to Tate is a Reasonable Restriction

Control over access to a nonpublic forum can be based on

subject matter and speaker identity so long as the distinctions

drawn are reasonable in light of the purpose served by the forum

and are viewpoint neutral. Cornelius, 473 U.S. at 806. The

restrictions placed on access need only be reasonable; they need

not be the most reasonable or only reasonable restrictions.

Id.at 808. In a nonpublic forum, the government may restrict

use to those who participate in the forums official business,

without further justification. Perry,460 U.S. at 53. The

governments reasonable exclusion of a speaker may be further

justified if the speaker has alternative channels of

communication open to it. Id. at 53.

In Cornelius, the NAACP Legal Defense and Educational Fund

(NAACP) sued the federal government to gain access to the

24


26/39

Combined Federal Campaign (CFC), a charity drive organized by

federal employees and occurring in federal workplaces.

Cornelius, 473 U.S. at 793, 797. The NAACP argued that it

should have the same access to the CFC as other nonprofit

organizations. Id.at 807. The Court disagreed and held the

NAACP had been reasonably excluded from the nonpublic forum of

the CFC. Id.at 808. The Court reasoned the exclusion of the

NAACP was reasonable because the inclusion of the NAACP may have

created the appearance of political favoritism, disrupted the

federal workplace, and/or jeopardized the success of the CFC.

Id.at 809-10. Moreover, the NAACP had access to alternative

channels of communication to its intended audience, including

direct mail. Id.at 809. Thus, the Court found the government

could exclude the NAACP while including other nonprofit

organizations. Id. at 808.

Similarly to Cornelius, Tate reasonably excluded Kinkades

monument because it is not related to the historical purpose of

the park nor does Kinkade have longstanding ties to the Tate

community. Tates reasonable judgment on these grounds is at

least as reasonable as the federal governments decision in

Corneliusthat inclusion of the NAACP would disrupt the workplace

and jeopardize the success of the CFC. Tate may reasonably

judge that the Ten Commandments of the Old Testament relate to

25


27/39

the history of Tate, while the Seven Proverbs of Kinkade do not.

Also, Kinkade could still reach its target audience through

alternative means, such as a parade or rally in the park.

Because Tates reason for excluding Kinkade is reasonable in

regards to the historical purpose of the park, Tate is permitted

to choose not to erect the monument to Kinkade in the park. For

this reason, the petitioner asks this Court to reverse the

Twelfth Circuit and deny respondents requested injunction.

II. BECAUSE TATES SENIORITY SYSTEM IS FACIALLY NEUTRAL

AND THE FAILURE TO RECALCULATE MOSSES NCS DATEDOES NOT CONSTITUTE A PRESENT DISCRIMINATORY

ACT, MOSS HAS NOT STATED A CLAIM FOR WHICH SHE CAN GET

RELIEF.

In granting summary judgment to Moss, the Court of Appeals

held 1) that Tates failure to recalculate Moss NCS date in

2004 and give her additional days for a leave credited in 1975

was a discriminatory act 2) that Tates seniority system was

facially discriminatory because it perpetuated a policy of

discrimination against women who took their pregnancy leaves

before 1978 and 3) that Tates seniority system was subject to

42 U.S.C.A s 2000e-5(2). All three of these holdings are in

error.

In order to prove discrimination, the plaintiff must show

that the complained of conduct is a current violation of Title

26


28/39

VII, and not merely a present effect of past discrimination.

United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). The

plaintiff must show the discrimination is not the effect of past

discrimination carried forward by a neutral system. Id. In

holding that Tates failure to recalculate Moss NCS date in

2004 was a discriminatory, the court of appeals ignored the

precedent set in United Airlines v. Evans, and identified a

present effect of past discrimination as a continuing violation.

Moss was credited 30 out of 210 days for her pregnancy leave in

1975. Because at the time the PDA was not in effect, Tate was

entitled to treat that act as lawful. The calculation of Moss

benefits in 2004 was simply the totaling up of credit that she

had received originally in 1975. Because the credit calculation

of was the effect of a past act carried forward, there was no

discrimination actionable under Title VII in 2004.

The Supreme Court ruled in Intl Bhd. of Teamsters v. U.S.,

that bona fide seniority systems are not discriminatory even

when they freeze in place the effects of pre-Title VII

discriminatory policies because the systems are granted immunity

under 703(h). Intl Bhd. of Teamsters v. U.S., 431 U.S. 324, 356

(1977). In order for a seniority system to be defined as neutral

and Bona Fide, to the extent that it locks in pre-act

discriminatory policies it must apply equally to all races and

27


29/39

ethnic groups. Id.at 356. The Court of Appeals held that

Tates seniority system was facially discriminatory because it

refused to calculate the seniority dates of women who took pre-

1978 pregnancy leaves. The court in effect ruled that Tates

system was discriminatory because it was freezing in place

seniority standings based on a policy which, had it been in

place post-PDA, would have been illegal. This is holding

ignores the immunity seniority systems receive under 42 U.S.C. s

2000e-2(h) when they freeze in place the seniority rights

acquired pre-act. Because the Court of Appeals declares Tates

system to be discriminatory based the very exception which the

statute has been interpreted by the Supreme Court to allow, the

holding is in error and Tates seniority system is non-

discriminatory.

Finally, the Court of Appeals held that Tates seniority

system was subject 42 U.S.C.A s 2000e-5(2). This statute only

applies to a seniority system which has been adopted for an

intentionally discriminatory purpose. 42 U.S.C.A s 2000e-5(2).

Because Tates seniority system is non-discriminatory, 42

U.S.C.A s 2000e-5(2) does not apply.

1. Tates refusal to recalculate Moss NCS date in

2004 is not an actionable violation under Title

VII because it is the present effect of past

discrimination.

28


30/39

In order for the court to find a Title VII violation, the

court must find a discrete unlawful practice has taken place

within the charging period. Ledbetter v. Goodyear Tire & Rubber

Co., Inc., 127 S. Ct. 2162, 2169 (2007). The action cannot

simply carry forward the effects of a past discriminatory act

but must be constitute a present violation of Title VII. United

Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). In order

for something to be a present violation, there must be a

discrete act with discriminatory intent within the filing

period. Id. at 557. The application of a neutral system which

carries forward the effects of a discriminatory act is not an

actionable violation. Id. at 559.

In United, the Supreme Court found that United Airlines

(UA) was not committing a present violation of Title VII when it

denied seniority benefits to a female flight attendant (Evans)

because of seniority she had lost due to being previously

terminated under a discriminatory policy. Id.at 560. Evans was

employed by UA until 1968, when she was forced to resign after

becoming married. At the time UA had a policy which prevented

female flight attendants from being married. Id.at 554. Evans

did not challenge this discriminatory policy when she resigned

in 1968 and was subsequently rehired by UA in 1972. Id.at 555.

Evans filed suit in 1973 because she was not credited for the

29


31/39

seniority she had accrued previous to her forced resignation in

1968. In part, Evans alleged the seniority system gave present

effect to the past illegal act and therefore perpetuates the

consequences of forbidden discrimination. Id.at 558. The court

held that Evans claim was barred because it alleged no current

violation. Id. The court reasoned that the seniority system

was neutral and treated existing male and female employees

equally. The system did not differentiate in any way between

the way it credited prior service to men or prior service to

women. Id. While the court agreed that seniority system gave

present effect to the past act of discrimination the court

concluded it could no longer remedy this past discrimination:

United was entitled to treat that past act as lawful after

respondent failed to file a charge of discrimination within

the 90 days then allowed by s 706(d). A discriminatory act

which is not made the basis for a timely charge is the

legal equivalent of a discriminatory act which occurred

before the statute was passed. It may constitute relevant

background evidence in a proceeding in which the status of

a current practice is at issue, but separately considered,

it is merely an unfortunate event in history which has no

present legal consequences. Id.

30


32/39

Because the denial of seniority benefits was the present

effect of past discriminatory act which no longer had legal

consequence the court held there was no current violation of

Title VII.

Similar to the situation in United, the calculation of

Mosss NCS date was the present effect of the past credit she

had been given for time off during her pregnancy under Tates

pre-1978 pregnancy policy. Prior to 1978, Tates method of

calculating leave for pregnancy discriminated against women

because it only gave them 30 days disability credit. Similar to

Evans termination, Moss was discriminated against in a discrete

event when she was credited only 30 days for her 240 day

pregnancy leave in 1975. At the time of her leave,

discrimination on the basis of pregnancy status was not illegal,

and Moss did not file suit. In 2004, when Mosss retirement

benefits were calculated, Tate credited Moss only the 30 days

she had been previously credited for her pregnancy leave in

1975. Like the seniority system in United, which carried

forward the effects of Evans lost seniority, the effects of

Mosss lost days were also carried forward by Tates seniority

system. As in United, there was no present violation, only the

effects of an old discriminatory practice which due to the

31


33/39

passage of time, is relegated to an unfortunate event in

history which has no present legal consequence.

Mosss situation is factually distinguishable from Bazemore

v. Friday. In Bazemore, black employees brought an action

against the North Carolina Agricultural Extension Service

(NCAES) alleging a pattern of employment discrimination.

Bazemore v. Friday, 478 U.S. 385, 386 (1986). Prior to 1965,

the NCEAS had maintained two separate, racially segregated

branches and paid blacks less than whites. Id.at 394. After

the desegregation of the branches some of the pre-existing

salary disparities continued to linger on. Id. The court held

that, A pattern or practice that would have constituted a

violation of Title VII, but for the fact that the statute had

not yet become effective, became a violation upon Title VIIs

effective date, and to the extent an employer continued to

engage in that act or practice, it is liable under that

statute. Id.at 395. The court is stating that discriminatory

practices which were legal prior to Title VIIs enactment are no

longer legal post-enactment despite there pre-Title VII origins.

The court goes on to state, While recovery may not be permitted

for pre-1972 acts of discrimination, to the extent that this

discrimination was perpetuated after 1965, liability may be

imposed Id. The word perpetuated is somewhat confusing, and

32


34/39

has been misconstrued to mean carried forward. However, the

court specifically points out that this case squares with

United, stating that the key is the employer must be engaged in

a discriminatory practice at the time. Id. at 396 n.6.

The lower court points to the act of Mosss benefit

calculation in 2004 when Tate failed to recognize her pregnancy

leave as a continued discriminatory practice. However this

analysis misidentifies the discriminatory act. In 2004, Tate

simply added up the days that Moss had accrued. The city did

not give a different value to days accrued by male or female

employees, or any subgroup of either sex. The discriminatory

policy was Tates pre-PDA crediting of pregnancy leaves with a

30 day maximum. However, this policy was not illegal at the

time, and in contrast to the discriminatory pay policies in

Bazemore, which continued past the 1972 filing of the suit, the

policy of crediting woman only 30 days for pregnancy leave was

discontinued in 1978 at the time of the passage of the PDA, 26

years before the filing of this suit in 2004.

2. Tates seniority system is neutral Bona Fide and

therefore falls under the protection of 42 U.S.C.

S 2000e-2(h)

The Supreme Court ruled in Intl Bhd. of Teamsters v. U.S.,

that bona fide seniority systems are not discriminatory even

33


35/39

when they freeze in place the effects of pre-Title VII

discriminatory policies because the systems are granted immunity

under 703(h). Intl Bhd. of Teamsters v. U.S., 431 U.S. 324, 356

(1977). In reaching this conclusion the court acknowledged that

operators of bona fide seniority systems had no duty to afford

constructive seniority to victims discriminated against prior

to the effective date of title VII. Id.at 348. The court

noted that it was not the legislatures intent when introducing

Title VII to destroy vested seniority rights. Id.at 353. In

order for a seniority system to be defined as neutral and Bona

Fide, to the extent that it locks in pre-act discriminatory

policies it must apply equally to all races and ethnic groups.

Id.at 356.

In Teamsters, the court held that an otherwise neutral,

legitimate seniority system does not become unlawful under Title

VII simply because it may perpetuate pre-act discrimination.

Id.at 354. In Teamsters, the IBT operated a seniority system

which gave the best jobs, greatest protection against lay-offs,

and other advantages to employees who had been line drivers for

the longest time. Because of the IBTs pre-Title VII

intentional discrimination against Blacks and Hispanics, all

the line drivers with the longest tenure were white. The court

held that this seniority system was bona fide because it

34


36/39

applies equally to all races and ethnic groups. Id.at 355.

The court reasoned that the seniority system did not have its

genesis in racial discriminationand has been maintained free

from any illegal purpose. Id.at 356. The seniority system

only calculated employees seniority on the basis of who had the

most time in the position of line driver regardless of the

employees other racial characteristics. While the seniority

system froze into place the pre-act discrimination which led to

disparities in seniority, its policies complied with all laws

and it applied evenly to all employees.

Like the seniority system in Teamsters, the seniority

system at issue in this case is also neutral and bona fide

because it calculates the number of days an employer has worked

equally regardless of a persons other characteristics. Like the

seniority system in Teamsters, the Tate seniority system also

freezes in place the differences in seniority due to pre-act

discriminatory policies. However, the seniority system as

challenged is neutral because it also has been maintained free

from any illegal purpose. When Tates policy of treating

pregnancy leave as personal leave was in place prior to 1978,

that policy was not illegal. Post-1978, Tate changed its policy

to reflect current the amended law and credited new pregnancy

leaves as disability leaves. At all discrete moments in

35


37/39

history, the Tate seniority system has complied with applicable

laws. Therefore, the Tate seniority system is Bona Fide and

falls under the protection of 42 U.S.C. S 2000e-2(h).

The lower court in the current case found that the

seniority system was facially discriminatory because it

marginalizes women through its refusal to recalculate seniority

dates based on the passage of the Pregnancy Discrimination

Acts. However, the finding that Tates seniority system is

facially discriminatory is incorrect because it rests on the

idea that Tate needed to affirmatively recalculate its seniority

dates after the passage of the PDA. The notion that a bona

fide seniority system needs to affirmatively recalculate

seniority differences due to pre-act discrimination was

specifically rejected by the Supreme Court. Teamsters.431 U.S.

at 348. Because the city points to no other discriminatory

effects of the seniority system besides its failure to

recalculate, the Tate system should be considered bona fide

and therefore under no duty to recalculate its employees NCS

dates for pre-act discrimination.

3. Tates seniority system is not subject to 42 U.S.C.A s

2000e-5(2) because it is a bona fide senioritysystem that has not been adopted for an

intentionally discriminatory purpose

36


38/39

The Court of Appeals held that Tates seniority system was

subject to 42 U.S.C.A s 2000e-5(2) which was part of the amended

Civil Rights Act passed in 1991. The law states in relevant

part:

For the purposes of this section, an unlawful employment

practice occurs, with respect to a seniority system that

has been adopted for an intentionally discriminatory

purpose(whether or not that discriminatory purpose is

apparent on the face of the seniority provision), when the

seniority system is adopted, when an individual becomes

subject to the seniority system, or when a person aggrieved

is injured by the application of the seniority system or

provision of the system. 42 USCA s 2000e-5(2).

The court below read this statute as further evidence that

congress specifically allowed a seniority system to be

challenged when a person is injured regardless of when the

discrimination took place.

However, in order to apply this statute, a seniority system

must have been, adopted for an intentionally discriminatory

purpose. As discussed above, Tates seniority system was

neutral and therefore fails to meet the threshold determination

necessary for the 1991 amendment to apply.

37


39/39

Respectfully Submitted,

______________________

Nicholas Pyle

______________________

Max Feinstat

Attorneys for Petitioner

38

compiled version

Documents