Petition for Writ of Certiorari — Grandchamp v. United Air Lines, Inc.

88-1233

No. 88-

In the

Supreme Court of the United States

October Term, 1988

HAROLD W. GRANDCHAMP and

PETER J. SEEWALD,

Petitioners,

V.

UNITED AIR LINES, INC.,

a Delaware corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AND APPENDIX

MAUN, GREEN, HAYES, SIMON,

JOHANNESON AND BREHL

STEVEN E. RAU

(Counsel of Record)

2300 World Trade Center

30 East Seventh Street

Saint Paul, Minnesota 55101

Telephone: (612) 229-2900

Attorneys for Petitioners

1989 — Bachman Printing, 835 Second Avenue So., Mpis., MN 55402 — (612) 339-9518 @ FAX 612-337-8053

QUESTIONS PRESENTED

The Age Discrimination in Employment Act (ADEA), 29 U.S.C.

§§ 621-34 (1988) creates a civil cause of action for discrimination

in employment based on age. Plaintiffs asserting claims under the

ADEA are precluded from recovering damages for emotional dis-

tress; however, plaintiffs afe entitled to join pendent state tort law

claims with their ADEA claim under the principle of pendent

jurisdiction.

The questions presented are:

1. Whether the ADEA preempts recovery for state tort claims

arising out of the fact situation upon which the ADEA claims are

premised; and

2. Whether a plaintiff asserting claims under the ADEA,

together with a pendent state claim of intentional infliction of emo-

tional distress, must prevail on his ADEA claims before the inten-

tional infliction of emotional distress claim can be submitted to the

jury.

[Note: Petitioners reserve the right to argue Question 3 in the

event certioran is granted on either Question | or 2, but do not

include Question 3 among the reasons for the grant of certiorari.]

The “local judge” rule provides that in the absence of direct

State precedent concerning pendent state law claims a federal court

of appeals cannot overturn a local district judge’s interpretation of

state law unless it is clearly erroneous. Some state tort claims, such

as intentional infliction of emotional distress, require a trial judge

to determine initially whether the issue should be submitted to the

jury.

The question presented is:

3. Whether the “local judge” rule applies where a trial court

judge determines that as to a pendent state tort claim for inten-

tional infliction of emotional distress the requisite threshold deter-

mination of outrageousness has been satisfied.

i i thE i A A OE A I ah AA Tn

a A MRO nd NE ome ine DeeND = Ine

LIST OF PARTIES

The parties to the proceedings below were petitioners Harold W.

Grandchamp (“Grandchamp”) and Peter J. Seewald (“Seewald”)

and respondent United Air Lines, Inc. (“United”).

ill

TABLE OF CONTENTS

oo Bs st reer errr rr Tyr rere

Se Ee SNM Ads aude cticweedsasanvesbuaser

SP PTE Fon ces 6Ch si bac deaseuWaessdanes

pt BOP PETE L TTC TC TTT ETE TET Te?

CONSTITUTIONAL PROVISIONS AND

os 8 Ok re re ee

SEAR eeres AME eee GARE on ois csc cscscsccsces

REASONS FOR GRANTING THE WRIT ..........

I. The Relationship Between Pendent State Tort

Claims And ADEA Or Title VII Claims War-

ee I I ccc cubocdeesacvessecce

I]. The Grandchamp Decision Engrafts A Doc-

trine Of De Facto Preemption On ADEA Or

Title VII Claims And Creates An Impermissi-

ble Classification Violative Of Due Process........

ee PPP POTT TET ONTLi Le TTeCETTTELeeee

APPENDIX TABLE OF CONTENTS...............

APPENDIX

iV

TABLE OF AUTHORITIES

United States Supreme Court Decisions

Bolling v. Sharp, 74 S.Ct. 693, 347 U.S. 497 (1954) .... 10 n6

Buckley v. Valeo, 96 S.Ct. 612, 424 U.S. 1 (1976)...... 10 n.6

Farmer v. United Brotherhood of Carpenters, 97

Ge Ce Se le ID CEE sc ccccccvcccccces 7 n3, 9

Motor Coach Employees v. Lockridge, 91 S.Ct.

<< 32. % 2, rer 8, 9

NLRB v. Pittsburgh S.S. Co., 71 S.Ct. 453, 340

Cae Me CE BAPAUGAS Codie ds catHbeseeebccceceeeven 9

Rice v. Sioux City Cemetery, 75 S.Ct. 614, 349

et SE a Reba hinn chk deans cheers cs 00easwee 9

United States Cirast Court of Appeals Decisions

Bruno v. Western Electric Co., 829 F.2d 957 (10th

Ge SE a ik Caco ea eee ev CASESMAERRGR eRe bse seeeee 8

Cancellier v. Federated Department Stores, 672 F.2d

1312 (9th Cir.), cert. denied, 103 S.Ct. 131, 459

el weteseadndeeseenenvandadéwes awe passim

Cooper v. Asphindh Tree Expert Co., 836 F.2d

Pe MS ne watadeédeddddnededceccses 5, 6

Dreyer v. Arco Chemical Co., 801 F.2d 651 (3rd

Cir. 1986), cert. denied, 107 S.Ct. 1348, 480

Se the occ cuuaiwaeebbenacecadcees 5

Grandchamp v. United Air Lines, Inc., 854 F.2d

Be SD Se SOU oc Sacasehnvusnsdinhescdekes passim

Haskell v. Kaman Corp., 743 F.2d 113 (2nd Cir.

ES RE ea Nena Pee hr ey ee Pee 8

Kelly v. American Standard, Inc., 640 F.2d 974

St EE aN a se nes ak dbadeedssbsaveersccsecenes 9

Padway v. Palches, 665 F.2d 965 (9h Cir. 1982)........ 8 n.5

Rodriguez v. Taylor, 569 F.2d 1231 (3rd Cir. 1977),

cert. denied, 98 S.Ct. 2254, 436 U.S. 913

SE RUNS a PENG SLe CAGE hAD se AD eae as van neo dees 8

Rose v. Hearst Magazines Division, The Hearst

Corporation, 814 F.2d 491 (7th Cir. 1987) .......... 6 n.2

United States Federal District Court Decisions

Grandchamp v. United Air Lines, Inc., 36 Empl.

Prac. Dec. (CCH) Para. 34,987 (D.Colo. 1985) ..... y a

Pettibon v. Pennzoil Products Co., 649 F.Supp. 759

Ce SO Sha ibs GUN aie a dye Seb ce deeba sees 8, 9, 10

Wasilchuk v. Harveys Wagon Wheel, Inc., 610

Pa ee SE GOED sccaccccscateschsondsns 8 n.5

Colorado Decisions

Churchey v. Adolph Coors Co., 759 P.2d 1336

(1988), revg in part, 725 P.2d 38 (Colo.Ct.App.

ME ANUNENs Vadie nea CW wu eed Nd ad ONE A BA oo wae 5 nl

Montgomery Ward & Co. v. Andrews, 726 P.2d 40

EE ME «ic eadne ae adecd sie cednenanee 5 nl

Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753

SAN cannabis awake hang seo es aan Oab eo nos 5 nl

vi

Widdifield v. Robert Shaw Controls Co., 671 P.2d

ge is FM | PPrererererererrre eee

Statutes and Rules

_ ft SL PPPEPEVERTPEETETUT ESTE

Be a ED oacc dene csceccevecascaes

Be i ee ID hoc tee ct iceccnsesvaes

Be Ws te GOED bcs cedecasccsasseszas

Oe Ue ee FD ob isc cc cccsrsceseness

42 U.S.C. §§ 2000e-2000e-17 (1988)............66.

United States Supreme Court Rule 17.............

U.S. Constitution, Amendment V...............+-.

U.S. Constitution, Amendment XIV...............

Other Authorities

Cathcart, et al, The Developing Law of Wrongful

Terminations, in 1986 EMPLOYMENT

LITHGATIONS £59 (PLD). wc es cccccccccccseces

DeGuiseppe, The Effect of the Employment-at- Will

Rule on Employee Rights to Job Security and

Fringe Benefits, 10 FORDHAM URB. LJ. |

errr erry et rs? Pee eee Tee eee

Note, Protecting At Will Employees against Wrong-

ful Discharge: The Duty to Terminate Only in

Good Faith, 93 HARV. L.REV. 1816 (1980)....

Vil

seed 7

No. 88-

In the

Supreme Court of the United States

October Term, 1988

HAROLD W. GRANDCHAMP and

PETER J. SEEWALD,

Petitioners,

V.

UNITED AIR LINES, INC.,

a Delaware corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioners Grandchamp and Seewald respectfully pray that a

Wnit of Certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Tenth Circuit (“Tenth Cir-

cuit”), entered on August 18, 1988. Grandchamp and Seewald’s

petition for rehearing and suggestion for in banc consideration by

the Tenth Circuit was denied on October 24, 1988.

OPINIONS BELOW

The trial court’s memorandum and order (A-1) denying United's

motion for partial summary judgment and/or judgment on the

pleadings is at 36 Empl. Prac. Dec. (CCH) Para. 34,987 (D.Colo.

1985). The Opinion (A-7) of the panel of the Tenth Circuit below

is at 854 F.2d 381 (10th Cir. 1988). The Order of the Tenth Cir-

cuit denying the Petition for Rehearing and Suggestion for In

Banc Consideration (A-17) is unreported.

JURISDICTION

The decision of the Tenth Circuit in this case was entered on

August 18, 1988. The Order denying Petitioners’ Petition for

Rehearing and Suggestion for nm Banc Consideration was entered

on October 24, 1988. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 12541) (1988) and Rule 17 of this

Court’s Rules.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fifth Amendment of the United States Constitution pro-

vides in pertinent part as follows:

No person shall ... be deprived of life, liberty, or

property, without due process of law ...

The Age Discrimination in Employment Act (ADEA) 29 U.S.C.

§§ 621-34 (1988) provides in pertinent part as follows:

The provisions of this chapter shall be enforced in

accordance with the powers, remedies and procedures

provided in sections 211(b), 216 (except for subsection

(a) thereof), and 217 of this title and subsection (c) of

this section. Any act prohibited under section 623 of

this title shall be deemed to be a prohibited act under

section 215 of this title. Amounts owing to a person as

a result of a violation of this chapter shall be deemed

2

to be unpaid minimum wages or unpaid overtime com-

pensation for purposes of sections 216 and 217 of this

Gale: ....

29 U.S.C. § 626(b) (1988).

The ADEA expressly incorporates certain provisions of the Fair

Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19 (1988). Specifi-

cally, 29 U.S.C. § 216 (1988) provides in pertinent part as follows:

Any employer who violates the provisions of section

206 or section 207 of this title shall be liable to the

employee or employees affected in the amount of their

unpaid minimum wages, or their unpaid overtime com-

pensation, as the case may be, and in additional amount

as liquidated damages.

29 U.S.C. § 216(b) (1988).

STATEMENT OF THE CASE

This case involves Grandchamp and Seewald’s claims concerning

United’s 1981 reorganization of inflight services and Grandchamp

and Seewald’s subsequent demotion and early retirement, respec-

tively. (A-1). Grandchamp and Seewald initiated claims that were

later consolidated alleging violations of the ADEA, 29 U.S.C.

§§ 621-34 (1988) and a variety of state common law claims.

(A-1-2). Jurisdiction was based on diversity, 28 U.S.C. § 1332

(1988) and the ADEA, 29 U.S.C. § 626(c) (1988).

Prior to the trial in this matter, United moved for partial sum-

mary judgment and/or for judgment on the pleadings with respect

to Grandchamp and Seewald’s pendent state claims. Grandchamp,

36 Empl. Prac. Dec. (CCH) Para. 34,987 (A-l). On January 16,

1985, the trial court, the Honorable Jim R. Carrigan, granted

United’s motion for partial summary judgment on Grandchamp

and Seewald’s claims for breach of express and implied contract

and promissory estoppel. /d. (A-4). United’s motion for partial

summary judgment on Grandchamp and Seewald’s claim for inten-

tional infliction of emotional distress was denied and Judge Carn-

gan held:

Grandchamp and Seewald have alleged intentional inflic-

tion of emotional distress. United argues that its con-

duct would not lead an average member of the com-

munity to exclaim, “outrageous!” [citation omitted}. In

Widdifield v. Robert Shaw Controls Co., 671 P.2d 989

(Colo.App. 1983), the court ruled that a claim for out-

rageous discharge could not be submitted to the jury

unless the conduct was “beyond all reasonable bounds

of decency” and “atrocious and utterly intolerable in the

civilized community.” If a jury were to conclude that

the defendant’s entire management reorganizaton was a

mere scam to hide its efforts to dismiss older employees

who have been with the company for years, a reason-

able person could find “outrageous” conduct. The dis-

agreement is over a material issue of fact. United is not,

therefore, entitled to summary judgment on this claim.

Grandchamp v. United Air Lines, Inc., 36 Empl. Prac. Dec. (CCH)

Para. 34,987, at 36,415 (D.Colo. 1985) (A-3).

On February 11-19, 1985 the case was tried to a jury. (A-5).

Prior to tral, all of Grandchamp and Seewald’s claims were dis-

missed except their ADEA and intentional infliction of emotional

distress claims. Grandchamp v. United Air Lines, Inc., 854 F.2d

381, 382 n. 2 (10th Cir. 1988) (A-9 n.2). At the close of all the

evidence, the district court submitted Grandchamp and Seewald’s

ADEA and intentional infliction of emotional distress as separate

and distinct claims to the jury. 854 F.2d at 382, 383 n.3 (A-9 n.3).

The jury reached a verdict finding for Grandchamp and Seewald,

on their claims for intentional infliction of emotional distress, and

for United with respect to Grandchamp and Seewald’s ADEA

claims. Jd. at 382-83 (A-9). The jury awarded Grandchamp and

Seewald punitive damages in the amount of $90,000.00 apiece and

actual damages in the amounts of $16,000.00 and $36,000.00,

respectively. (A-5-6). A judgment in the amount of $232,000 plus

post-judgment interest was entered on February 20, 1985 in the

federal district court for the district of Colorado. (A-5-6).

United moved for a judgment notwithstanding the verdict or in

the alternative for a new trial on the award of damages for inten-

tional infliction of emotional distress. 854 F.2d at 383 (A-9). The

district court denied United’s motion. /d. (A-9).

4

United appealed to the Court of Appeals for the Tenth Circuit

where the jury verdict and judgment of the district court were

reversed. Jd. at 386 (A-16). The Tenth Circuit held that the inten-

tional infliction of emotional distress claims should not have been

submitted to the jury. /d at 382 (A-8).

The Tenth Circuit's holding is anomalous given its determination

that the trial court, on two separate occasions, made the requisite

threshold determination of outrageousness that is required by Colo-

rado law.! Jd at 383 (A-l1). As to the intentional infliction of

emotional distress claim, the Tenth Circuit’s opinion that it should

not have been submitted to the jury appears to be de novo fact-

finding. Noting that the verdict seemed to be inconsistent, the

Tenth Circuit observed that the evidence supported the conclusion

that Grandchamp and Seewald were not given new positions

because of age and seniority. /d. at 383 n.3, 385 (A-14).

Acknowledging that United’s conduct was wrong, the Tenth Cir-

cuit constructively held that Grandchamp and Seewald’s only

remedy was under the ADEA; only if successful on the ADEA

claims could the intentional infliction of emotional distress claims

be properly submitted to the jury. /d (A-14). The Tenth Circuit

panel reasoned that “if Grandchamp and Seewald were allowed to

recover under a theory of outrageous conduct for United's actions

here, then every discrimination claim ... would also state a claim

for outrageous conduct.” /d. (A-14). In the footnote to the pre-

viously quoted sentence, the Tenth Circuit inexplicably confused

willfulness under the ADEA with the pendent state tort claim of

intentional infliction of emotional distress. The Tenth Circuit stated,

in pertinent part, as follows:

In essence, this Court has already held that an ADEA

claim for willful age discrimination does not require

outrageous conduct. In Cooper v. Asplundh Tree Expert

Co., 836 F.2d 1544 (10th Cir. 1988), we rejected the

Third Circuit’s conclusion that a willful violation of the

ADEA must be “outrageous.” See Dreyer v. Arco

1 See Montgomery Ward & Co. v. Andrews, 736 P.2d 40, 46 (Colo.Ct.App.

1987). See also Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo. 1988)

revg in part, 725 P.2d 38 (Colo.Ct.App. 1986) (citing Rugg v. McCarty, 173

Colo. 170, 476 P.2d 753 (1970)).

Chemical Co., 801 F.2d 651 (3rd Cir. 1986), cert. denied,

480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987).

Thus, in age discrimination cases, there is, theoretically,

an hierarchy of damages. First, if an employer discrimi-

nates against an employee on the basis of age, he is

liable for damages. If that discrimination is “willful,” the

employer musi pay liquidated damages. See Cooper,

836 F.2d at 1548. If the manner of discrimination is

outrageous, the employer is liable for the employee’

emotional distress. Finally, under Colorado law, if the

employee proves beyond a reasonable doubt that the

Outrageous conduct was attended by fraud, malice, or

willful or wanton conduct, punitive damages may be

assessed.

Id. at n.8 (A-14 n.8) (emphasis added).?

REASONS FOR GRANTING THE WRIT

The Wnit should be granted in this case for two reasons. First,

this Court should clarify the precise relationship between claims

under the ADEA or Title VII and pendent state tort claims arising

out of a common nucleus of facts. Second, and relatedly, the

effect of the Tenth Circuit’s decision in Grandchamp is a de facto

preemption of state law claims and the theoretical “hierarchy of

damages” conflicts in principle with the Ninth Circuit's decision in

Cancellier v. Federated Department Stores, 672 F.2d 1312 (9th

Cir.), cert. denied, 103 S.Ct. 131, 459 U.S. 859 (1982). Moreover,

the “hierarchy of damages” unjustifiably discriminates against ADEA

plaintiffs such that it violates fundamental notions of due process

and equal protection.

?Ulumately, the Tenth Circuit's opinion in Grandchamp reflects confusion as to

how the jury arnved at a verdict of no ADEA violations concurrent with a

verdict finding intentional infliction of emotional distress. The two claims, however,

protect different rights and contrast to situations where a jury finds no ADEA

violation but does find a retaliatory discharge under the ADEA. See, e.g., Rose

v. Hearst Magazines Division, The Hearst Corp., 814 F.2d 491, 493 (7th Cir.

1987). A discharge can be outrageous and not discriminatory or vice versa.

I. The Relationship Between Pendent State Tort Claims

And ADEA Or Title VII Claims Warrants This

Court's Review.

Today, in contrast to 30 years ago, a discharged employee has

a plethora of federal and state remedies available. See generally,

DeGuiseppe, The Effect of the Employment-at-Will Rule on

Employee Rights to Job Security and Fringe Benefits, 10 FORD-

HAM URB. L.J. | (1981); Note, Protecting At Will Employees

against Wrongful Discharge: The Duty to Terminate Only in Good

Faith, 93 HARV. L.REV. 1816 (1980). Depending upon the par-

ticular facts and circumstances of each case, a discharged employee

can pursue claims under Title VII or the ADEA, as well as state

contract and tort remedies. Cathcart er al, The Developing Law

of Wrongful Terminations, in 1986 EMPLOYMENT LITIGATION

153, 155-82 (PLI).

The damages recoverable under the various theories available to

a discharged employee sometimes overlap. For example, under the

ADEA, an employee discriminated against on the basis of age, is

entitled to recover both back and front pay. Similarly, an employee

alleging a state common law contract claim, may be entitled to

recover both back and front pay. In those instances, recovery

under both federal and state theories of liability is duplicative. In

other situations, however, the facts and circumstances surrounding

an employee's discharge may give rise to claims for alleged viola-

tion of Title VII or the ADEA and state common law tort

claims. In these latter situations, the state tort remedies are designed

to compensate the discharged employee for damages other than

the economic type damages permitted under Title VII or the

ADEA. Because of the ever increasing number of state tort claims

joined together with federal claims arising in the employment con-

text, this Court should delineate and clarify the relationship between

federal employment-related claims under Title VII or the ADEA

and state tort claims.

3The type of delineation necessary is similar to that provided by this Court in

Farmer v. United Brotherhood of Carpenters, 97 S.Ct. 1056, 430 U.S. 290 (1977).

In Farmer, this Court held that, in the context of labor relations, a complaint

alleging intentional infliction of emotional distress is preempted by the National

Labor Relations Act, 29 U.S.C. §§ 151-68 (1988) only if the conduct complained

of is of a type that would be expected in the ordinary course of employer-

employee relations. 7

Often, and as previously stated, state common law claims are

joined with ADEA claims under the discretionary doctrine of

pendent jurisdiction. See, e.g., Grandchamp, 854 F.2d at 852; Can-

cellier, 672 F.2d at 1315; Pettibon v. Pennzoil Products Co., 649

F.Supp. 759, 761-62 n.3 (and cases cited therein) (W.D.Pa. 1986).

It is axiomatic that under the ADEA a plaintiff is not entitled to

recover damages for emotional distress and punitive claims. See

Bruno v. Western Electric Co., 829 F.2d 957 (10th Cir. 1987);

Haskell v. Kaman Corp., 743 F.2d 113 (2nd Cir. 1984); Rodriguez

v. Taylor, 569 F.2d 1231 (3rd Cir. 1977), cert. denied, 98 S.Ct.

2254, 436 U.S. 913 (1978); Pettibon, 649 F.Supp. at 761.8 Con-

gress, however, has never stated whether state common law remedies

“trench too closely on the federal scheme.” Cancellier, 672 F.2d at

1318.

This Court must, because of the absence of Congressional action,

clanfy the relationship between state common law claims arising

out of the same set of facts upon which an alleged ADEA or

Title VII claim is premised. This Court’s pronouncement in Motor

Coach Employees v. Lockridge, 91 S.Ct. 1909, 403 U.S. 274 (1971)

regarding the relationship between state law and the jurisdiction of

the National Labor Relations Board applies equally to state com-

mon law tort claims and Title VII or the ADEA:

[We [cannot] proceed on a case-by-case basis to deter-

mune whether cach particular final judicial pronounce-

ment does, or might reasonably be thought to, conflict

in some relevant manner with federal labor policy. This

Court is ilequipped to play such a role and the federal

“In Gancellier, the Ninth Circuit suggested that when pendent state claims are

jorned wth ADEA clams, jury verdicts should be closely scrutinized. 672 F.2d at

(317. The pmmary concern was a jury’ failure to distinguish between the two

types of claims and an award of hidden damages. Ad This concern, however. was

not present in Grandchammp because the claims were submitted separately. See

generally, Pertibom, 649 F Supp. at 761-63 (discussing problems of intentional

infucuon of emononal distress claims joined with ADEA claims).

*Sumularly, darnages for emononal or mental distress are not recoverable under

Tide VIL 42 USC. $§ 2W00e-W0e-17 (1988). See Padway v. Paiches. 665 F.2d

96S. 968 (Sth Cir. 1982); Wasilcinsk v. Harvey's Wagon Wheel inc. 610 F Supp.

206. 28-10 (D:C.Nev. 1985).

system dictates that this problem be solved with a rule

capable of relatively easy application, so lower courts

may largely police themselves in this regard.

91 S.Ct. at 1919, 403 U.S. at 289-90 (quoted in Farmer, 97 S.Ct.

at 1061 n.7, 430 U.S. at 296,n.7).

In order to combat discrimination in employment, Congress

enacted Title VII and later the ADEA. See 29 U.S.C. §§ 621-34

(1988); 42 U.S.C. §§ 2000e-2000e-17 (1988). These statutes provide

a federal framework to protect minorities against discrimination in

securing and maintaining employment. See 29 U.S.C. § 621 (1988);

42 U.S.C. § 2000e (1988). Concurrent with the enactment of these

federal statutes, an overlapping body of state common law has

developed that protects the broader public’s employment security.

Just as in the area of labor relations, see, e.g., Farmer, supra, and

in the absence of Congressional guidance, this Court should exer-

cise its plenary power and clarify the relationship between these

two bodies of law.

Under the standards governing the issuance of a wmit of certioran,

this case merits review because it involves an important and signifi-

cant issue. See, eg. NLRB v. Pittsburgh S.S. Co., 71 S.Ct. 453,

456, 340 U.S. 498, 509 (1951). The problem posed by the absence

of guidance from this Court is not merely academic or episodic

and therefore a writ should be issued. See Rice v. Sioux City

Cemetery, 75 S.Ct. 614, 616, 349 U.S. 70, 74 (1955).

Il. The Grandchamp Decision Engrafts A Doctrine Of

De Facto Preemption On ADEA Or Title Vil

Claims And Creates An Impermissible Classification

Violative Of Due Process.

The theoretical “hierarchy of damages” in age discrimination cases

described in Grandchamp, 854 F.2d at 385 n.8, is contrary to all

precedent. In fact, the “hierarchy of damages” conflicts in principle

with the Ninth Circuit’s declaration in Cancellier that “{tJhe ADEA

does not preempt the award of tort damages on pendent state

claims.” 672 F.2d at 1318 (citing Kelly v. American Standard, Inc.,

640 F.2d 974, 983 (9th Cir. 1978)). See also, Pettibon, 649 F.Supp.

9

at 761-63. Willfulness under the ADEA or Title VII and with

respect to either claim does not relate, nor even affect, a state

common law tort claim for intentional infliction of emotional

distress.

Obviously, requiring plaintiffs to first prevail on their ADEA or

Title VII claim and on the issue of willfulness prior to submitting

a state tort claim to the jury, places a higher burden on persons

between the ages of 40 and 70 than those outside this age group.*

It is ironic that Grandchamp stands for the proposition that in

order to combat the evils the ADEA and Title VII were enacted

to remedy, a person is required to sacrifice their nghts to assert a

State tort claim. Contrary to the Tenth Circuit’s reasoning, Judge

Teitelbaum observed that “{pjermitting an employee whose employer

has discriminated against him solely because of age, to take advan-

tage of all existing legal rights is therefore not inconsistent with the

purposes of the ADEA.” Pettibon, 649 F.Supp. at 763.

CONCLUSION

In reversing a jury verdict that “appeared to be inconsistent”, the

Tenth Circuit unequivocally illustrated its view that the discharge

of a person within a protected class cannot be outrageous unless

the discharge violates Title VII or the ADEA. Reversing the ver-

dict on the basis of what Grandchamp and Seewald alleged and

ignoring the fact that a jury found evidence of sufficiently out-

rageous conduct to award both compensatory and punitive

damages is the most perplexing aspect of Grandchamp.

The Tenth Circuit’s decision in Grandchamp demonstrates the

potential for confusion that is created when federal courts exercise

their discretion and decide state common law tort claims joined

with ADEA or Title VII claims. A failure to provide guidance to

¢{TJhe concepts of equal protection and due process, both stemming from our

American ideal of fairness are not mutually exclusive. ... [D]iscrimination may

be so unjustifiable as to be violative of due process.” Bolling v. Sharp, 74 S.Ct.

693, 094, 347 U.S. 497, 499 (1954). See also Buckley v. Valeo, % S.Ct. 612, 424

U.S. | (1976) (equal protection under Fifth Amendment is same as that under

Fourteenth Amendment).

atta

the lower federal courts and to delineate clearly between the inter-

ests protected will only serve to perpetuate inequitable and unfair

decisions like Grandchamp. This case presents this Court with an

opportunity to avoid further confusion.

Dated: January 20, 1989.

Respectfully submitted,

MAUN, GREEN, HAYES, SIMON,

JOHANNESON AND BREHL

Steven E. Rau

(Counsel of Record)

2300 World Trade Center

30 East Seventh Street

Saint Paul, Minnesota 5510!

Telephone: (612) 2292900

Attorneys for Petitioners

Harold W. Grandchamp and

Peter J. Seewald

ad

Of Counsel:

Edward J. Rau, Esq.

3519 South Holly

Denver, Colorado 80237

11

APPENDIX TABLE OF CONTENTS

Memorandum and Order of United States District

Court for the District of Colorado (The Honorable

Jim Carrigan) (No. 83-C-1254, January 16, 1985).......... A-|

Judgment of United Stats District Court for the

SE Er ee Te ee ee eee ee eee A-5

Opinion of United States Court of Appeals for the

pC TTT EET TT eT TTT ET CTETTeTTeeee A-7

Order of United States Court of Appeals for the

Tenth Circuit denying Petition for Rehearing and

Suggestion for m Banc Consideration .............0005: A-17

Harold W. Grandchamp et al., Plaintiffs v. United Air

Lines, Inc., Defendant.

United States Distnct Court, District of Colorado. Civil Action

No. 83-C-1254. January 16, 1985.

Edward J. Rau, Denver, Colorado, for Plaintiff.

Robert H. Brown, Chicago, Illinois; Patnck F. Gartland, Denver,

Colorado, for Defendant.

CARRIGAN, D.J.: In these consolidated cases the plaintiffs,

Harold W. Grandchamp and Peter J. Seewald, have asserted tort,

age discrimination, and breach of contract claims against the

defendant United Air Lines (United). Plaintiffs allege that United

committed these wrongs during its reorganization of flight attend-

ant management personnel. Defendant United has filed a motion

“for partial summary judgment and/or for judgment on the plead-

ings.” The parties have briefed the issues thoroughly and oral argu-

ment would not assist in resolving them. Jurisdiction is based on

diversity, 28 U.S.C. § 1332 (1982), and on the Age Discrimination

in Employment Act, 29 U.S.C. § 621 et seg. (1982).

Grandchamp began working for United in 1950. He became a

supervisor of inflight services in December 1978. Seewald began

with United in 1960. He had been a supervisor of inflight services

since 1977. In 1981, due to airline deregulation and economic

recession, United cut back its employees and reorganized its manage-

ment staff. At that time United eliminated the supervisor of inflight

services position, and the plaintiffs were allowed to apply for

restructured management positions involving similar duties. At the

time Seewald was forty-eight, and Grandchamp, forty-nine years

old.

All applicants for the restructured positions were screened in a

highly structured selection process involving personal interviews and .

evaluation by former supervisors. Seewald’s and Grandchamp’s

scores placed them near the bottom of the applicant list for three

A-|

positions available in Denver. (Affidavit of Ron Tokuyama, exhibit

A). Neither plaintiff was selected.

United gave both plaintiffs the option to return to their last

non-management positions with salary reductions phased in over

two years. Grandchamp took this option and became a customer

services agent. Seewald elected instead to be laid off. Subsequently,

both Grandchamp and Seewald filed actions which were con-

solidated.

In their first and second claims for relief, both plaintiffs alleged

breach of express and implied employment contracts. Under

applicable Colorado law, absent special considerations or an express

stipulation stating a definite term of employment, either party may

terminate an employment contract at will. Lampe v. Presbyterian

Medical Center, 590 P.2d 513 (Colo. App. 1978); Justice v. Stan-

ley Aviation Corp., 35 Colo. App. 1, 530 P.2d 984 (1974). See

also Ritter v. Colorado Interstate Gas Co., No. 84-C-841 (D. Colo.

Sept. 26, 1984).

Here, no contract states a definite term of employment. Plain-

tiffs contend that the United Airlines personnel regulations created

an express or implied employment contract. Assuming, arguendo,

that the personnel regulations gave rise to contractual obligations,

the parties were bound to an expressly indefinite period of employ-

ment. The regulations define regular full-time employees: “Those

employed on a full-time basis who are to be retained for an

indefinite period.” (emphasis added) (Affidavit of Scott R. Gilday,

exhibit C) Moreover, other provisions of the regulations provide

for the possibility of management lay-offs. (Affidavit of Scott R.

Gilday, exhibit A). Clearly, the plaintiffs had not contracted, either

expressly or by implication, for a definite period of employment.

Defendant is entitled to summary judgment on these claims.

Plaintiffs’ respective third claims for relief assert promissory

estoppel. A claim for promissory estoppel requires that the defend-

ant made a promise that reasonably was expected to induce action

or forebearance and which did in fact induct such action or for-

bearance. The expressly indefinite period of employment described

above demonstrates that the plaintiffs could not have reasonably

relied on the “promise” of life-long employment. The defendant is

entitled to summary judgment on the third claims for relief.

Seewald’s sixth claim for relief alleges that he was wrongfully

A-2

discharged. In Colorado, wrongful discharge occurs only where an

employee is discharged for exercising a specifically enacted nght or

duty. Lampe v. Presbyterian Medical Center, supra. Here, the

plaintiffs were not discharged for exercising their nghts or duties.

Summary judgment on this claim is likewise appropriate.

Defendant contends that Seewald’s seventh claim, based on

alleged fraudulent misrepresentations, should be dismissed because

it has not been pleaded with sufficient particularity. Fed. R. Civ.

P. 9b), and because the undisputed facts do not support the

plaintiff's claim. Seewald’s fraud claim is not based, as the defend-

ant argues, on United's alleged misrepresentations concerning con-

tinued employment. Rather, Seewald claims, and states with suffi-

cient particularity, that United’s entire management reorganization

was an elaborate fradulent scheme to eliminate older employees.

(See Seewald’s complaint paragraphs 12, 13, 14, 17 and 30.) Thus,

the plaintiffs fraud claim cannot be dismissed pursuant to Rule

9).

With respect to the defendant’s argument thai the plaintiff will

not be able to establish the elements of fraud, material issues of

fact regarding United’s fraudulent intent and Seewald’s alleged

damages from the fraud remain. Accordingly, summary judgment

on the plaintiff Seewald’s seventh claim is not appropriate.

Grandchamp and Seewald have alleged intentional infliction of

emotional distress. United argues that its conduct would not lead

an average member of the community to exclaim, “outrageous!”

See Rugg v. McCarty, 173 Colo. 170, 476 P.2d 754 (1970). In

Widdifield v. Robertshaw Controls Co., 671 P.2d 989 (Colo. App.

1983), the court ruled that a claim for outrageous discharge could

not be submitted to the jury unless the conduct was “beyond all

reasonable bounds of decency” and “atrocious and utterly intoler-

able in the civilized community.” If a jury were to conclude that

the defendant’s entire management reorganization was a mere scam

to hide its efforts to dismiss older employees who had been with

the company for years, a reasonable person could find “outrage-

ous” conduct. The disagreement is over a material issue of fact.

United is not, therefore, entitled to summary judgment on this

claim.

Defendant has sought to strike the plaintiffs’ claims for exem-

plary damages because they are not strictly a “claim”, but rather a

A-3

part of the prayer for relief. While the defendant is correct in its

characterization of punitive damages as a remedy rather than a

claim for relief, in this court, the plaintiffs’ potential entitlement to

exemplary damages will not be forfeited over technical or formal-

istic enforcement of pleading rules. The motion to strike the

“claims” for exemplary damages is denied, with leave to amend the

complaints within ten days to pray for punitive and exemplary

damages.

Finally Grandchamp and Seewald have claimed relief based on

the Colorado Age Discrimination Act (ADA), Colo. Rev. Stat.

§ 8-2-116 (1973). United has responded that no private cause of

action should be recognized under the ADA. In Rawson v. Sears

Roebuck and Co. [31 EPD Para. 33,525]. 530 F. Supp. 776 (D.

Colo. 1982, this district allowed a private citizen to bring an ADA

civil action. The ADA states that discrimination based on age is a

crime. Colo. Rev. Stat. § 8-2-116 (1973). Section 8-3-

108(1)(1)1973) explains, “It is an unfair labor practice for an

employee, individuaily or in concert with others to ... [c]lommit

any crime or misdemeanor in connection with any controversy as

to employment relations.” Thus, committing a labor-related crime is

an unfair labor practice. Finally, § 8-3-121(1)(1973) provides a civil

cause of action for victims of unfair labor practices: “Any person

who suffers injury because of an unfair labor practice has a mnght

of action, jointly and severally, against all persons participating in

said practice for damages caused to the injured person thereby.”

Taken together, these provisions allow an aggrieved individual to

assert civil claims under the ADA.

Accordingly, for the reasons stated above,

It is Ordered that the defendant’s motion for partial summary

judgment is granted on the plaintiffs’ first, second and third claims

and on the plaintiff Seewald’s sixth claim.

It is further Ordered that the defendant’s motion for partial

summary judgment on both plaintiffs’ fifth claims, on Grandchamp’s

sixth and seventh claims, and on Seewald’s seventh, eighth, and

ninth claims is denied.

It is Further Ordered that the plaintiffs’ motion for partial

summary judgment is denied.

A-4

In the United States District Court

for the District of Colorado

Civil Action No. 83-C-1254

HAROLD W. GRANDCHAMP and PETER SEEWALD,

Plaintiffs,

VS.

UNITED AIRLINES, INC., a Delaware corporation,

Defendant.

JUDGMENT

This matter came on for trial to Court and jury, The Honor-

able Jum R. Carngan, District Judge, presiding, on February 11-

19, 1985. The issues were duly tried and the case was submitted

to the jury, which reached a verdict finding for the plaintiffs in

part and for the defendant in part. The Court has ordered

judgment to be entered on the verdict; accordingly, it is

ORDERED AND ADJUDGED that judgment is entered in

favor of the defendant United Airlines, Inc., and against the

plaintiffs Harold W. Grandchamp and Peter C. Seewald on the

plaintiff's claims for age discrimination, and it is

FURTHER ORDERED that judgment is entered in favor of

the plaintiff Harold W. Grandchamp and against the defendant

United Airlines, Inc., on the plaintiff Grandchamp’s claim for

Outrageous conduct in the amounts of $16,000.00 in actual

damages and $90,000.00 in punitive or exemplary damages, for a

total of $106,000.00 plus interest from the date of entry of this

judgment at the legal rate of 9.17% per annum, and it is

A-5

FURTHER ORDERED that judgment is entered in favor of

the plaintiff Peter J. Seewald and against the defendant United

Airlines, Inc., on the plaintiff Seewald’s claim for outrageous

conduct in the amounts of $36,000.00 in actual damages and

$90,000.00 in punitive or exemplary damages, for a total of

$126,000.00 plus interest from the date of entry of this judgment

at the legal rate of 9.17% per annum. It is

FURTHER ORDERED that costs are awarded to the plain-

tiffs upon the filing of a Bill of Costs within ten days of the

entry of judgment.

DATED at Denver, Colorado, this 20th day of February,

1985.

FOR THE COURT:

JAMES R. MANSPEAKER, Clerk

United States Court of Appeals

Tenth Circuit

No. 86-2338

HAROLD W. GRANDCHAMP and

PETER SEEWALD,

Plaintiffs- Appellees,

VS.

UNITED AIR LINES, INC.,

Defendant- Appellant.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLORADO

(D.C. No. 83-C-1254)

Edward J. Rau, Attorney at Law, Denver Colorado, for Plaintiffs-

Appellees.

Patrick F. Gartland (Catherine M. Meyer with him on the briefs),

Montgomery Littl Young Campbell & McGrew, PC., Englewood,

Colorado, for Defendant-Appellant.

Before HOLLOWAY and ANDERSON, Circuit Judges, and

DUMBAULD,* District Judge.

ANDERSON, Circuit Judge.

*Hon. Edward Dumbauld, U.S. District Court, Western District of Pennsyl-

vania, sitting by designation.

A-7

United Air Lines, Inc. (“United”) appeals from a jury verdict assess-

ing damages for the intentional infliction of emotional distress aris-

ing from employment decisions involving appellees Harold Grand-

champ and Peter Seewald. We find that the trial court erred in

submitting the claim to the jury and reverse the judgment.

Grandchamp and Seewald, were employed by United as Super-

visors of Inflight Services, in Denver, Colorado. Grandchamp

and Seewald were responsible for the supervision and manage-

ment of Unitea flight attendants. In 1981, United initiated a

reorganization of its inflight services functions and the position of

Supervisor of Inflight Services was eliminated. The functions of

this former position were replaced by three new positions, and

former Supervisors of Inflight Services, including Grandchamp

and Seewald, were invited to compete for the new positions. At

the time of the reorganization, Grandchamp was 49 years old

and had worked for United for 31 years, Seewald was also 49

years old, and had worked for United for more than 21 years.

To fill the new positions, United developed a special selection

process consisting of a “special assessment,” designed to “measure

observed behaviors on the job” and relate those behaviors to the

characteristics required for the new positions, and a “structured

interview,” also designed to identify and measure the characteris-

tics required for the new positions. The process resulted in a

numerical score and candidates were ranked according to those

scores. See R. Vol. II at 238-45. This special process was used

only to review the incumbent Supervisors of Inflight Services

who were applying for the new positions.!

After reviewing the numerical scores and ranking of the can-

didates, United determined that the low scorers, including Grand-

champ and Seewald, would not be offered the new positions.

Grandchamp and Seewald were replaced with younger employees

with less seniority.

'The testimony by United officials indicated, however, that in Denver, at

least, other United employees were also allowed to compete for the new jobs

by participating in this selection process. See R. Vol. HI at 633-35.

A-8

Grandchamp and Seewald were informed by their Denver

supervisor that they had not been selected for the new positions.

Both were eligible to return to their last non-management posi-

tion with United. Grandchamp was offered, and accepted, a posi-

tion as a passenger ticket agent in Denver. Seewald was offered

a job as a schedule planner in Los Angeles or Miami, but

declined to move. Instead, he accepted six months severance pay

and a United seminar on job-hunting.

Subsequently, both men brought actions against United claim-

ing violations of the federal Age Discrimination in Employment

Act (*ADEA”), 29 U.S.C. § 621, et. seqg., and damages resulting

from the intentional infliction of emotional distress (an action

under Colorado common law frequently referred to as “outra-

geous conduct” or “emotional distress”).2 The case went to tnal

on these two claims and the jury found in favor of United on

the ADEA claim, and for the plaintiffs, Grandchamp and See-

wald, on the intentional infliction of emotional distress claim,

awarding actual and punitive damgages to both men.’ Grand-

champ and Seewald moved for a judgment notwithstanding the

verdict on the ADEA claim; that motion was denied and they

do not appeal. United moved for a judgment notwithstanding

the verdict, or in the alternative for a new tnal, on the award

for emotional distress. The district court denied that motion and

United has appealed. United urges this court to reverse the jury’s

verdict in favor of Grandchamp and Seewald, arguing (1) that

the claim for intentional infliction of emotional distress is barred

by the Colorado Workmen's Compensation statute; (2) that the

plaintiffs’ claims were in fact, wrongful discharge claims, imper-

missible under Colorado law; (3) that United’s conduct was not

outrageous; and (4) that Grandchamp and Seewald failed to offer

sufficient evidence of emotional distress. After carefully reviewing

the arguments and the trial record, we conclude, as a matter of

law, that United’s conduct was not outrageous, and that the tnal

2Other claims were dismissed by the district court before trial and are not at

issue on appeal. See R. Vol. I, Tab 2.

3Although the verdicts on the two claims appear inconsistent, neither party

objected to the jury’s verdict or raises that issue on appeal.

A-9

court should have directed a verdict for United on the outra-

geous conduct claim. Accordingly, we reverse and have no need

to consider the other arguments.‘

Il.

“In reviewing a district court’s denial of a motion for a judg-

ment n.0.v., we may find error only when the evidence points

but one way and is susceptible to no reasonable inferences sus-

taining the position of the party against whom the motion is

made.” Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544,

1547 (10th Cir. 1988) (citing EEOC v. Prudential Federal Sav-

ings & Loan Assn, 763 F.2d 1166, 1171 (10th Cir.), cert. denied,

474 U.S. 946 (1985)).

The tort of intentional infliction of emotional distress was

adopted by the Colorado Supreme Court in Rugg v. McCarty,

173 Colo. 170, 476 P.2d 753, 756 (1970). The Colorado Court

adopted the Restatement (Second) of Torts § 46 (1965) in defin-

ing this action. Under the Restatement, liability may be found

only “where the conduct has been so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds

of decency, and to be regarded as atrocious, and utterly intoler-

able in a civilized community.” Rugg, 476 P.2d at 756. (quoting

Restatement § 46, comment d); see also Malandris v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152, 1158-59

(10th Cir. 1981) (en banc) (discussing Colorado law), cert. denied,

464 U.S. 824 (1983); Churchey v. Adolph Coors Co., P.2d, 1988

WL 68488 (Colo. 1988) (citing Rugg). Thus, in order to be liable

for the intentional infliction of emotional distress, the defendant's

conduct must be more than unreasonable, unkind or unfair; it

must truly offend community notions of acceptable conduct.

Compare, e.g., Malandris 703 F.2d at 1165 (affirmed jury award

for outrageous conduct) with Swanson v. Bixler, 750 F.2d 810

(10th Cir. 1984) (affirmed dismissal of outrageous conduct claim).

‘We emphasize that we are not addressing the ADEA claim. The jury

found that United had not violated the ADEA and Grandchamp and Seewald

have not appealed from that verdict.

A-10

Both the court and the jury have a role in assessing such

claims. “The jury determines the ultimate question whether con-

duct is outrageous, but the trial court decides whether the issue

should be submitted to the jury in the first instance, based on

whether reasonable persons could differ on the conduct being

outrageous.” Montgomery Watd & Co. v. Andrews, 736 P.2d

40, 46 (Colo. Ct. App. 1987) (citations omitted); Churchey, P.2d

at

United argues first that the district court failed to make the

required threshold determination of outrageousness. That is simply

wrong. The district court addressed the issue twice. First, in deny-

ing United’s motion for summary judgment on the emotional

distress claim, the district court concluded: “If a jury were to

conclude that the defendant's entire management reorganization

was a mere scam to hide its efforts to dismiss older employees

who had been with the company for years, a reasonable person

could find ‘outrageous’ conduct.” R. Vol. I, Tab 2 at 5. The

court made a similar finding in response to United’s motion for

a directed verdict on the emotional distresss claim. R. Vol. III at

720-21.

United further argues that, if the district court did make the

requisite threshold determination of outrageous conduct, that deter-

mination was in error. We agree. At the close of plaintiffs’ case,

there was no evidence upon which the jury could find United

guilty of outrageous conduct toward Grandchamp and Seewald.

The trial court should have directed a verdict for United on that

claim.

The Colorado Supreme Court's recent decision in Churchey,

reaffirms the central holding of Rugg, that outrageous conduct

claims will lie only in circumstances that are truly outrageous. In

Churchey, the plaintiff was discharged, according to her employer,

“because of ‘dishonesty,” specifically because she ‘failed and

refused to report her medical clearances to return to work.’” /d.

at . Chruchey brought suit against Coors claiming wrongful

discharge, defamation and outrageous conduct. The Colorado

SThe trial court granted summary judgment on all three claims and the

Colorado Court of Appeals affirmed. Churchey v. Adolph Coors Co., 725 P.2d

38 (Colo. Ct. App. 1986), revd in part, P.2d (Colo. 1988). The Colorado

Supreme Court affirmed the judgment on the outrageous conduct claim, but

A-\l

Supreme Court affirmed a summary judgment for Coors on the

Outrageous conduct claim:

Outrageous conduct can occur in an employement

situation. However, Churchey’s assertion that Coors’

failure to follow its own personnel policies amounted

to outrageous conduct confuses breach of contract with

Outrageous conduct. While the average member of the

community may not approve of someone who breaches

a contract, such conduct is not “so outrageous in

character, and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as

atrocious and ... (to cause) an average member of

the community ... to exclaim ‘Outrageous.’” The trial

court correctly concluded that no reasonable person

could have found Coors’ conduct to be outrageous.

We reject Churchey’s invitation to expand our defini-

tion of outrageous conduct. The framework set forth

in Rugg, 476 P.2d 753, is sufficient for analyzing her

claim and summary judgment on this claim is affirmed.

Churchey, P.2d at (citations, footnote omitted).*

The court’s reasoning in Churchey is also applicable to the

claims advanced by Grandchamp and Seewald. Federal law pro-

vides a remedy for age discrimination. In this case, Grandchamp

and Seewald allege nothing more than age discrimination; the

manner in which they were discharged by United was not par-

ticularly unfair or abusive and is not comparable to those cases

where outrageous conduct has been found.

reversed the decision on the wrongful discharge and defamation ciaims and

remanded them for tnal. Churchey, P.2d at

*The Colorado Court also implicitly held that an employer is not to be heid

to a hugher standard of conduct. Churchey argued that courts should be

required “to look at the relationship between the parties and the entire conduct

in deterrmning whether a plainuff has set forth a prima facie case of outrage-

ous conduct.” Churchey, P.2d at . The Court then recounted Churchey’'s

alleganons before rejecting “Churchey’s invitation to expand our definition of

outrageous conduct.” Ad We read the Court’s decision as a refusal to apply

Restatement § 46, comment e to empioyment situations.

A-12

It is well-settled under Colorado law that discharge from

employment, without more, is not outrageous conduct. See Ther-

rien v. United Air Lines, Inc., 670 F. Supp. 1517, 1524 (D.

Colo. 1987) (“{A]n allegation by an employee that he was dis-

missed or demoted wrongfully, summarily, or in violation of the

procedures set forth in an employee manual fails to state a claim

for intentional infliction of emotional distress.”),; Steinberg v.

Thomas, 659 F. Supp. 789, 795 (D. Colo. 1987) (discharge and

alleged defamatory remarks do not support a claim of outra-

geous conduct); Brezinski v. F.W. Woolworth Co., 626 F. Supp.

240, 244 (D. Colo. 1986) (alleged age discrimination does not

support a claim of outrageous conduct); Covert v. Allen Group,

Inc., 597 F. Supp. 1268, 1269-70 (D. Colo. 1984) (no outrageous

conduct in refusal to honor a promise to employ); Salimi v.

Farmers Ins. Group, 684 P.2d 264, 265 (Colo. Ct. App. 1984)

(demotion in violation of employer’s policy and procedure man-

ual is not outrageous conduct); Widdifield v. Robertshaw Con-

trols Co., 671 P.2d 989, 990-91 (Colo. Ct. App. 1983) (reversed

jury verdict for outrageous conduct where plaintiffs job was

eliminated after 10 days).

At the same time, it is equally clear that an employer is not

shielded from employee claims of outrageous conduct.’ For exam-

ple, in Kirk v. Smith, 674 F. Supp. 803 (D. Colo. 1987), the

employee, a school teacher, was demoted from her position as a

full-time teacher to a permanent substitute teacher, allegedly for

expressing her support for the expansion of a particular pro-

gram. Moreover, when she met with the school district superin-

tendent to discuss her demotion, the superintendent “discovered

that she was tape-recording the discussion, and, in an effort to

confiscate the tape recorder, physically assaulted her and threw

her to the ground.” /d. at 804. Similarly, in Wing v. JMB Prop-

erty Management Corp., 714 P.2d 916, 918 (Colo. Ct. App.

1985) the plaintiff alleged that she was sexually harassed, ridi-

culed, threatened, humiliated and ultimately fired. The Colorado

Court of Appeals found that these allegations were sufficient to

withstand the employer’s motion for summary judgment on the

7See generally Annotation, Liability of Employer, Supervisor, or Manager

for Imentionally or Recklessly Causing Employee Emotional Distress, 52 A.L.R.

4th 853 (1987).

A-13

Outrageous conduct claim. Thus, the manner of the discharge,

and the employer’s conduct, is critical to a finding of outrageous

conduct. Cf. Montgomery Ward & Co. v. Andrews, 736 P.2d

40, 46 (Colo. Ct. App. 1987) (“It is not the fact of seizure which

give rise to the claim for outrageous conduct, but the manner in

which the seizure was effected.”) (quoting Vogel v. Carolina Inter-

national, Inc., 711 P.2d 708, 714 (Colo. Ct. App. 1985)).

In contrast, in this case Grandchamp and Seewald offered no

evidence that that manner of their discharge was outrageous. As

the court instructed the jury, “The Plaintiffs’ ... claim is that

the Defendant intentionally or recklessly, in an extreme or out-

rageous manner, inflicted severe emotional distress by reorganiza-

tion of the management structure to purposefully eliminate older

employees who had been with the company for many years.” R.

Vol. III at 733.

Thus, the most we can find from the evidence is that Grand-

champ and Seewald were not given new positions because of

their age and seniority. Certainly such an action by United would

be wrong, and federal law makes such conduct unlawful and

provides for relief. But if Grandchamp and Seewald were allowed

to recover under a theory of outrageous conduct for United's

actions here, then every discrimination claim — based on age,

race, national origin, or sex — would also state a claim for out-

rageous conduct.* We do not believe that the Colorado Supreme

*In essence, this court has already held that an ADEA claim for willful age

discrimination does not require outrageous conduct. In Cooper v. Asplundh

Tree Expert Co., 836 F.2d 1544 (10th Cir. 1988), we rejected the Third Cir-

cuit’s conclusion that a willful violation of the ADEA must be “outrageous.”

See Dreyer v. Arco Chemical Co., 801 F.2d 651 (3d Cir. 1986), cert. denied,

107 S. Ct. 1348 (1987). Thus, in age discrimination cases, there is, theoretically,

an hierarchy of damages. First, if an employer discnminates against an employee

on the basis of age, he is liable for damages. If that discrimination is “willful,”

the employer must pay liquidated damages. See Cooper, 836 F.2d at 1548. If

the manner of discrimination is outrageous, the employer is liable for the

employee's emotional distress. Finally, under Colorado law, if the employee

proves beyond a reasonable doubt that the outrageous conduct was attended by

fraud, malice. or willful or wanton conduct, punitive damages may be assessed.

Churchey, P.2d at

In Churchey, the Colorado Supreme Court also clarified the distinction

between outrageous conduct and conduct menting punitive damages:

A-14

Court intends the tort to reach that far. Thus, we hold that a

bare age discrimination claim will not support a claim for the

intentional infliction of emotional distress under Colorado law.

In Price v. Federal Express Corp., 660 F. Supp. 1388, 1395

(D. Colo. 1987), the district coyrt considered a similar problem.

The plaintiff brough a civil rights and breach of contract claim

against his employer. The plaintiff also alleged a claim for out-

rageous conduct. In considering the employer’s motion for sum-

mary judgment, Judge Kane allowed the civil mghts and breach

of contract claims, but granted summary judgment for Federal

Express on the outrageous conduct claim. His language is also

suitable here:

There is no virtue in pleading a profusion of claims

for relief when the law provides a well-established and

straightforward remedy. Indeed, the practice is inimical

to the interests of the litigants for at least two reasons.

First, it delays prosecution of the case and increases

costs because of the time spent in addressing motions.

Second, it creates an expanded possibility for reversible

error in the event the pleader is persistent or the trai

judge is diffident.

Id. at 1395. Unfortunately for Grandchamp and Seewald, Judge

“{Ajlthough the standard for outrageous conduct may appear

superficially similar to the standard for exemplary damages in

§ 13-21-102(1), 6A C.R.S. (1987), the two are not the same.

Exemplary damages may be awarded if ‘the injury complained of

is attended by circumstances of fraud, malice, or willful and wan-

ton conduct,’ § 13-21-102(1)(a), provided that the plaintiff proves

these elements beyond a reasonable doubt, § 13-25-127(2), 6A

C.R.S. (1987). Outrageous conduct need only be proved by a pre-

ponderance of the evidence, § 13-25-127(1) and is an independent

tort which entitles the plaintiff to compensatory damages. To the

extent that Supp. 1388, 1395-96 (D. Colo. 1987), is inconsistent

with this analysis, it is not an accurate statement of Colorado

law.”

Churchey, P.2d at n.7.

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Kane’s prediction has come true. The plaintiffs offered evidence

at trial to support their age discrimination claim, but the jury

chose to base its award on the outrageous conduct claim, finding

for United on the ADEA claim.

Because the evidence offered at trial cannot support a claim

for outrageous conduct against United, we REVERSE and

VACATE the judgment entered by the trial court.

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OCTOBER 24, 1988

Before Honorable William J. Holloway, Jr., Chief Judge, Honor-

able Monroe G. McKay, Honorable James K. Logan, Honorable

Stephanie K. Seymour, Honorable John P. Moore, Honorable

Stephen H. Anderson, Honorable Deanell R. Tacha, Honorable

Bobby R. Baldock, Honorable Wade Brorby, Circuit Judges, and

Honorable Edward Dumbauld, District Judge*

No. 86-2338

HAROLD W. GRANDCHAMP and

PETER J. SEEWALD,

Plaintiffs- Appellees,

¥..

UNITED AIR LINES, INC.,

Defendant- Appellant.

This matter comes on for consideration of appellees’ petition for

rehearing and suggestion for rehearing en banc in the captioned

appeal.

Upon consideration whereof, the petition for rehearing is denied

by the panel to whom the case was argued and submitted.

The petition for rehearing having been denied by the panel to

whom the case was argued and submitted, and no member of the

panel nor judge in regular active service on the court having

requested that the court be polled on rehearing en banc, Rule 35,

Federal Rules of Appellate Procedure, the suggestion for rehearing

en banc is denied.

Judge David M. Ebel is recused.

ROBERT L. HOECKER, Clerk

* of the United States District Court for the Western District of

Pennsylvania, sitting by designation.

A-17