MARY R. LOCKETT, PETITIONER V. MICHAEL P.W. STONE, SECRETARY OF THE ARMY, ET AL. No. 90-5724 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The Respondent In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-2a) is unpublished, but the decision is noted at 904 F.2d 700 (Table). The opinion of the district court (Pet. App. 1b-8b) is unreported. JURISDICTION The judgment of the court of appeals was entered on May 25, 1990. The petition for a writ of certiorari was filed on August 22, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals properly affirmed the district court's rejection of petitioner's claims of racial harassment and retaliation. STATEMENT 1. Petitioner was employed as a clerk typist by the United States Army Corps of Engineers. She brought an action alleging that she had been subjected to racial harassment by co-workers in the Corps' Specifications Section. She alleged that on August 3, 1981, William Piccirilli, an electrical engineer who assigned work to petitioner, made numerous derogatory statements about blacks to petitioner. Petitioner alleged that her supervisor acknowledged that Piccirilli had made the racial remarks, but refused to intercede on her behalf. Two days later, when Piccirilli made further racial remarks, petitioner threatened him with a pair of scissors. On August 6, 1981, petitioner sought the assistance of an Equal Employment Opportunity counselor and filed a complaint with the counselor against Piccirilli. The complaint cited the incidents of August 3-5, 1981, and also complained of "an unfavorable racial atmosphere since August 1980." Pet. App. 1b-3b. The EEO counselor found that Piccirilli had used racial profanity against petitioner. Following an extensive investigation in which the Corps obtained affidavits from every employee in the Specifications Section, the Corps agreed that petitioner's complaint against Piccirilli was well founded. Piccirilli was subjected to the maximum sanction available under the Corps' regulations, a two-day suspension, and was transferred to another section. The Corps concluded, however, that there was no basis for petitioner's general allegation of racial discrimination beginning in 1980. Pet. App. 2b-4b. 2. In November 1982, petitioner filed a complaint in the United States District Court for the District of Maryland alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. In December 1983, after counsel had been appointed to represent petitioner, she filed an amended complaint alleging violations of 42 U.S.C. 1981, 1985, and 1986, and asserting a claim under state law for intentional infliction of emotional distress. In September 1986, petitioner sought to further amend her complaint to allege that her supervisors had taken various adverse actions against her in retaliation for her filing the earlier action. The district court ordered that petitioner's retaliation claim proceed as a separate civil action. Pet. App. 2c-3c, 6c-7c. In November 1987, the district court, pursuant to a magistrate's report and recommendations, dismissed petitioner's claims under 42 U.S.C. 1981, 1985, and 1986, and her state tort law claim, on the ground that Title VII provides the exclusive remedy available to federal employees alleging intentional acts of employment discrimination. The court also dismissed petitioner's retaliation action in part, because petitioner had failed to seek EEO counseling as to some of the alleged incidents within the 30-day period prescribed by 29 C.F.R. 1613.214(a)(1)(i). /1/ Pet. App. 6c-10c. Following a bench trial on petitioner's remaining claims, the district court entered judgment for respondents in both actions. As to petitioner's original Title VII action, the court held that petitioner had made a prima facie showing that she was subjected to racial harassment on August 3-5, 1981, but that the Corps took immediate and decisive action by imposing the maximum possible sanction on Piccirilli and transferring him out of petitioner's section. Pet. App. 7b. The court held that respondents were not liable under Title VII because they took "prompt remedial action reasonably calculated to end the harassment." Pet. App. 7b (quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983)). The court further concluded that petitioner had failed to establish a prima facie case of retaliation for the filing of her original complaint. The court found that there was a legitimate, nondiscriminatory reason petitioner was not placed on the list of award recipients. The court further concluded that petitioner's contention that she was denied union representation was based on the fact that her representative was late to a meeting held to promote her. Pet. App. 7b-8b. 3. The court of appeals affirmed "on the reasoning of the district court" in an unpublished per curiam opinion Pet. App. 1a-2a. ARGUMENT The fact-bound decision of the court of appeals is correct and does not conflict with any decision of this Court or of any court of appeals. Accordingly, further review is not warranted. 1. Petitioner contends (Pet. 17, 20-22) that her state tort law claim should not have been dismissed. In Brown v. General Services Administration, 425 U.S. 820, 835 (1976), however, this Court held that Title VII "provides the exclusive judicial remedy for claims of discrimination in federal employment." In Brown, the Court expressly distinguished Title VII remedies against the federal government from Title VII remedies in the context of private employment discrimination cases, which do not preempt other remedies, and said that "(i)t would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading." Id. at 833. There is no basis for petitioner's contention that the reasoning of Brown does not apply to her state law tort claim for intentional infliction of emotional distress. Petitioner's state law claim merely restates the factual allegations of her federal employment discrimination claim. The Ninth Circuit decision cited by petitioner (Pet. 21) recognizes that Title VII precludes alternate remedies founded on the same factual predicate as the plaintiff's Title VII claim. Otto v. Heckler, 781 F.2d 754, 756 (9th Cir. 1986). See Clemente v. United States, 766 F.2d 1358, 1364 n.7 (9th Cir. 1985), cert. denied, 474 U.S. 1101 (1986); Nolan v. Cleland, 686 F.2d 806, 815 (9th Cir. 1982). The district court's fact-specific holding that petitioner's state law cause of action had the same factual predicate as her Title VII action is correct and warrants no further review. 2. Petitioner also contends (Pet. 17-20, 22-27) that the courts below should have considered all five of the incidents she alleged in support of her retaliation claim. But the applicable regulation provides that a complainant must bring the matter causing her to believe that she has been discriminated against to the attention of an EEO counselor within 30 calendar days of the alleged discriminatory event. See 29 C.F.R. 1613.214(a)(1)(i). Petitioner does not dispute that three of the five matters cited in her complaint were not brought to the attention of the counselor within 30 days. Pet. 22. Although petitioner asserts that each allegation is but a part of a pattern of discrimination, the courts below concluded that the three incidents alleged by petitioner were "nothing more than discrete personnel decisions." Pet. App. 7c-8c. That conclusion is consistent with the decisions of other courts, which have required the establishment of a close relation between untimely and timely-filed incidents under Title VII. See, e.g., United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977); Hendrix v. City of Yazoo City, 911 F.2d 1102, 1103 (5th Cir. 1990); Roberts v. Gadsden Memorial Hospital, 835 F.2d 793, 800 (11th Cir. 1988); Berry v. Board of Supervisors of LSU, 715 F.2d 971, 981-982 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986); Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C. Cir. 1982). The district court's "fact-specific inquiry," Berry, 715 F.2d at 982, warrantes no further review. 3. Petitioner's remaining contentions are without merit. Petitioner appears to contend (Pet. 11-13) that this Court should grant certiorari to review her racial harassment claim. But petitioner challenges neither the legal standard employed by the court of appeals nor any particular finding of fact. Consequently, there is no reason for this Court to review the matter further. Similarly, there is no reason for this Court to grant certiorari to review the lower courts' fact-specific determination that the evidence in this case does not warrant a finding of retaliation. Finally, petitioner's assertion (Pet. 13-16) that her attorney deprived her of due process and obstructed justice by presenting the deposition of a witness without petitioner's consent is groundless. Even in a criminal case, a client's consent is needed only for a few crucial decisions, not including the decision to place a deposition into evidence. See Jones v. Barnes, 463 U.S. 745, 751 (1983). And there is no support in the record for petitioner's assertion (Pet. 13) that the deposition testimony was untrue or that she was "deliberately sabotaged" by her lawyer. /2/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MARLEIGH D. DOVER Attorney NOVEMBER 1990 /1/ Petitioner alleged five retaliatory incidents: a letter of warning dated July 26, 1984 allegedly "based upon distortion and character assassination"; a letter from petitioner's supervisor containing "accusations of negligence"; a performance appraisal, revised on August 21, 1984, covering the period June 1, 1983, through May 30, 1984; the temporary omission of petitioner's name from a December 19, 1984, listing of recipients of an award for group effort; and denial of petitioner's right to union representation during meetings with respondents. Pet. App. 7c-8c. The district court held that consideration of the first three incidents was time-barred. Pet. App. 12b-13b. /2/ There is no merit to petitioner's suggestion that this Court should remand this case for reconsideration in light of Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Vinson, which was decided almost four years before the court of appeals issued its opinion in this case, held that a claim of "hostile environment" sexual harassment is actionable under Title VII. The opinion of the district court, adopted by the court of appeals, does not suggest that racial harassment is not actionable under Title VII. On the contrary, the magistrate's report, which was adopted by the district court, states that "(t)here is no question that claims of racial harassment may make out a violation of Title VII." Pet. App. 6c n.1. The courts below held only that petitioner had failed to make out a valid claim of racial harassment in this case.