holding a letter containing only supporting facts and a denial of the merits of the claim did not constitute conciliation evidence where the letter did not contain an offer of settlement nor a response to an offer of settlement; the court distinguished purely factual material related to the merits of the charge from proposals and counter-proposals made by the parties during an agency's attempt at conciliation
How later courts described this case
- holding a letter containing only supporting facts and a denial of the merits of the claim did not constitute conciliation evidence where the letter did not contain an offer of settlement nor a response to an offer of settlement; the court distinguished purely factual material related to the merits of the charge from proposals and counter-proposals made by the parties during an agency's attempt at conciliation
- holding there was no clear error in the judge’s inference that defendant intended to deprive plaintiff of his benefits, based on the proximity between date of firing and date of benefit vesting
- recognizing that disclosure of the result of the first trial to the jury could be grounds for reversal, although the district court's curative instruction was sufficient to correct the error
- finding distinction between “factual material related to the merits of the charge and proposals and counter-proposals of compromise made by the parties during the EEOC’s efforts to conciliate”
Written by the judges who cited it.
The opinion
ON PETITION FOR REHEARING
July 28, 1992.
PER CURIAM:
IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby DENIED.
We are constrained to caution counsel for Spencer Gifts henceforth to exercise greater self-restraint in their briefs, motions, petitions, and other writings filed with this court. We admire and encourage vigorous advocacy; we deplore and discourage stridently perjorative rhetoric and unprofessional mischaracterizations of fact and law, particularly when such mischaracterization involves an order, judgment or opinion of this court. An apodictical example of the latter is found on the first page of counsels’ petition for rehearing: Twice the panel opinion’s affirmation of the district court’s evidentiary ruling is characterized as punishment. In one instance the word punishment, and in another instance the word punished, is set off by quotation marks, yet neither ostensibly-quoted word appears anywhere in this panel’s opinion! Neither is there even the slightest implication in either the district court’s or this panel’s opinions that they were rendered punitively. The same lack of professionalism that is demonstrated by the intemperateness of counsels’ petition for rehearing was demonstrated in counsels’ original brief to this court.
Moreover, let counsels’ client harbor no misconception that either the district court's evidentiary ruling or this panel’s affirmation of that ruling was in any way punitive; Spencer Gifts’ loss of this case cannot be laid at the feet of either court. This court, like most, assiduously avoids tarring the client with the brush intended for lawyers whose behavior we deem unprofessional.
But here we neither formally reprimand nor otherwise sanction counsel for Spencer Gifts. We do, however, seriously caution counsel against repeating such transgressions in the future.