Opposition Brief — Golin v. FMC Corp.

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% Supreme Court, US,

FILED

88-14440 APR 3. 1989

JOSEPH F SPANIOL, JR,

& CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

MICHAELA BERESTEANU GOLIN,

Petitioner,

-vs-

FMC CORPORATION and GEORGE E. MOEHRINGER,

Respondents.

ON A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR RESPONDENT, FMC CORPORATION

Arthur G. Lash, Esq.

PELLETTIERI, RABSTEIN & ALTMAN

100 Nassau Park Boulevard

Suite 11ll

Princeton, New Jersey 08540

(609) 520-0900

Counsel for Respondent,

FMC Corporation

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QUESTIONS PRESENTED

| As set forth by Petitioner in

Petition for Writ of Certiorari.

a As set forth by Petitioner in

Petition for Writ of Certiorari.

3. Did the denial of Petitioner's

motion for recusal violate the Due Process

Clause of the Fourteenth Amendment.

List of FMC Corporation

(Parent yy

Subsidiaries & iates

Not Wholly Owned by FMC

Asia Lithium Corporation (Ajia Lichimu

Kabushiki Kaisha)

Yodogawa-Ku, Osaka, Japan

Note: Partly owned by Honjo Chemical

Company, Ltd.

CBV - Industria Mecanica, S.A.

Rio de Janeiro, Brazil

Centocor, Inc.

Malvern, Pennsylvania

The Chitin Company, Inc.

Cambridge, Massachusetts 02139

Electro Quimica Mexicana, S.A. de C.V.

Mexico, D.F., Mexico

Note: Majority owned by

Interindustrias, S.A. de C.V.

FMC Europe, S.A. (Formerly Luceat, S.A.)

Sens (Yonne), France

FMC Gold Company

Chicago, Illinois

FMC-Kramer S.A. Industria E Comercio

Jundiai, State of Sao Paulo, Brazil

Note: Half owned by Kramer

Administracao, Ltd.

FMC de Mexico, S.A. de C.V.

Mexico, D.F., Mexico

Note: Majority owned by Group

Interindustrias, S.A. de C.V.

Foret, S.A.

Barcelona, Spain

Note: Partly owned by “Coproqui,”"

Commercial e Industrial de

Productos Quimicos, S.A.

Freeport/FMC Foreign Sales Corporation

St. Thomas, U.S. Virgin Islands

Note: Majority owned by Freeport

Gold Co.

Huron Forge and Machine Company

Detroit, Michigan

L. H. Company, Ltd. (LH Kabushiki Kaisha)

Osaka, Japan

Note: Partly owned by Honjo Chemical

Company, Ltd.

- iii -

Link-Belt Construction Equipment Company

Bannockburn, Illinois

Note: Majority owned by Sumitomo Heavy

Industries Ltd. :

"Perorsa” - Peroxidos Organicos, S.A.

Barcelona, Spain

Note: Partly owned by LaPorte

Industries Ltd. and Solvay

SeparaSystems Inc. (Formerly FMC/Du' Pont

Food Separations Inc.)

Santa Clara, California

Note: Half-owned by E.I. Du Pont de

Nemours and Company

Teknowledge, Inc.

Palo Alto, California

Thai Peroxide Company, Ltd.

Bangkok, Thailand

Note: Half-owned by Indo-Thai

Synthetics and its designees

Tokai Electro-Chemical Company, Limited

(Tokai Denka Kogyo Kabushiki Kaisha)

Tokyo, Japan

Note: Majority owned by Asahi Denka

Kogyo K.K. and Partly owned by:

Furukawa Denki Kogyo K.K.; Fuji Denki

Seizo K.K.; The Daiichi Kangyo Bank,

Ltd.; Furukawa Kogyo K.K.; Asahi Seimei

Hoken Sogo Kaisha

Turegano, S.A.

Valencia, Spain

TABLE OF CONTENTS

QUESTIONS PRESENTED ....cccccsccccses i

LIST OF FMC CORPORATION'S

SUBSIDIARIES & AFFILIATES NOT

WHOLLY OWNED BY FMC ....ccccccccscs ii

TABLE OF CONTENTS ..ccccccvcccesccsses Vv

TABLE OF AUTHORITIES ....ccccccccsceee vii

STATEMENT OF FACTS ..ccccsccvcccscces 1

REASONS FOR DENYING WRIT:

I. THE DISTRICT COURT'S

DECISION THAT PETITIONER'S

WRONGFUL DISCHARGE CLAIM WAS

SUBSUMED BY THE STATUTORY

CLAIMS (FEDERAL TITLE VII

& NJLAD) DOES NOT PRESENT

EITHER SPECIAL OR IMPORTANT

REASONS FOR THIS COURT TO

EXERCISE ITS DISCRETION AND

GRANT THE PETITION FOR

CERTIORARI .sccccccvccscsceses 18

II. THE DISTRICT COURT APPLIED

THE PROPER STANDARD OF PROOF

IN AN EMPLOYMENT DISCRIMINA-

TION ACTION UNDER TITLE VII

OF THE CIVIL RIGHTS ACT OF

BPOS cee secsebeesesesrecrnwse z9

dinaat ye Suid

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Ill.

IV.

THE DISTRICT COURT WAS

NEITHER PERSONALLY BIASED

NOR PREJUDICED AGAINST

PETITIONER 2c ccc cccccvccscess 43

CONCLUSION ..cccccccccscscess 58

TABLE OF AUTHORITIES

Cases

Aldridge v. United States,

288 U.S. 308, 51 S. Ct. 470

PRES CE MAP cast cce scenes

Alexander v. Gardner-Denver ,

ES SS rrr

Bundy v. Jackson, 641 F. 2d 934

ee a te a rr

Corley v. Jackson Police

Department, 566 F.2d 994

EE SEED gcc see eveeves

Dennis v. United States ,

aoe aes see, fe &. Ct. —5i9

ee MED gt ct ees

Ferguson v. E.I. DuPont de

Nemours & Co., 560 F. Supp.

are sees. 8.001. -1983) ....

Giudice v. Drew Chemical Corp. ,

104 N.J. 465, 517 A. 20d 448

re ne ke a ake ew we

Henson v. City of Dundee, 682 F. 2d

re CO ee Cee, BOARS sna cenes 30,

Hochstadt v. Worcester Foundation

for Experimental Biology, Inc. ,

425 F. Supp. 318, 234 (D. Mass.),

affd 545 F.2d 222

I TMP gs ae se ow ew

- vli - _

25,

52

~ Fj

30

41

Sl

33

24

33

41

Johnson v. Trueblood ,

629 F.2d 287, 290-91

(3d. Cir. 1980), cert. denied,

439 U.&. 993, 2603 &. Ct. 1704

es Sea ee Oe ERO OED see cee ees 46

Katz v. Dole, 709 F.2d 251

Re Ns a a 33

Lucas v. Brown & Root, Inc.,

7am bs ae eee €Stnm Cir. 1966) «.. 24 -

McDonnell-Douglas Corporation

v. Green, 411 U.S.-792 (1973) .. 23; 33

Phillips v. Joint Legislative

Comm., 637 F.2d 1014

(Sth Cir. 1981), -ert. denied,

456 U.S. 960, 102 S&S. Ct. 2035,

yp ee ee A > ) ee 46

Rice v. Sioux City Cemetery,

Saw Ts Se PE SAPS O) cc eee nwwaes 22

Shank v. American Motors Corp.

273 FF. Supp. i125

Cees SU SRD 60 ewes cc ewenws 46

Smith v. United States, :

431 U.S. 291, 97 S. Ct. 1756,

OS Ten twee BOO CASTT) 2. ccc aevesas 50

Texas Department of Community

Affairs v. Burdine,

450 U.S. 248; 101 S.Ct. 1089;

7. Rectum Bl CEPORD kan cwecnces 31, 40

- viii -

Tomkins v. Public Service

Electric & Gas, 568 F.2d 1044

Ss Yo ae

Velantzas v. Colgate-

Palmolive Co., 109 N.J. 189,

Deeeee mee OF CESSES) 2. ncccsccees

United States v. Birges,

723 F.2d 66, certiorari denied,

104 S.Ct. 1926 (9th Cir. 1984)

United States v. Gordon,

pee wee 2 (6th Cir. 1982) .....

United States v. Martin,

746 F.2d 964, 973

I”

United States v. McDonnell,

pee ese 200 (3G Cir. 1978) ....

United States v. Napoleone,

pee weee eee (3rd Cir. 1965) ....

United States v. Peltier,

553 F. Supp. 886, (D.N.D. 1982)

United States v. Rosales-Lopez ,

Soa Uses £62, 101-8. Ct. 1629,

ne Ee GQEOOL) se cceccccecs

United States v. Salamone,

800 F.2d 1216 ¢3rd Cir. 1986)

oo» 22 «

49,

'

30

24

—

pe

50

50

52

47

49

51

Page

United States v. Segal,

See Bume ore (aeG Cir. 1976) wcaas 50

United States v. Townsend,

See wane Bere €36. Cizc. 1973) «ccs 45

United States v. Wendt,

695 F.20@ 9233 (6th Cir. 1962) ..4«. 54

United States v. Wooten,

518 F.2d 943 (3rd Cir.),

cert. denied, 423 U.S. 895,

96 &. Ct. 196, 46 L.Ed.2d 128

Co to) ee ee ae ere ern eo eee ee 52

Other Authorities:

Ae Se ees, Oe 4b 6.0 6 eeu eee uM 43, 43; 646

cm FX ee OR. ee ar er 43, 46

42 U.S.C. Sec. 2000e et seq.

(Zeete: Fil) .... 86, 24,25, 26. 2s ae

39, 40, 41

N.J.S.A. 10:5-12 etseg. (NJLAD) .... 18, 40

Foaweta See BEE) he cs ddvwardinndaan 39, 40

U.S. Supreme Court Rule 17 ..ccccttsses 20

STATEMENT OF FACTS

Respondent FMC waives presenting a

Statement of the Case except where neces-

sary to correct inaccuracies and omissions

in Petitioner's Statement.

Shortly after Petitioner commenced

employment with FMC, Moehringer, her

manager, became disappointed with her per-

formance. Her work significantly exceeded

time estimates and was programmed ineffi-

ciently and unsuccessfully. Petitioner

refused Moehringer's assistance and would

not demonstrate her work to him.

Moehringer communicated this disappointment

to his manager, Erjavec, who urged

Moehringer to continue working with Peti-

tioner to improve her performance because

the position was a difficult one to fill

and esoune FMC had spent about $6,000 on—

an agency fee to recruit Petitioner.

(8T141, 142, 143-144, 145-i51). The

District Court found the testimony of

Moehringer to be credible and where it was

in contravention to Petitioner's testimony,

that Petitioner's testimony was not worthy

of belief (App. 10a).

In February 1980, Petitioner was given

an assignment known as the Farms Index

Project. It was a medium-sized project

with an intermediate level of difficulty

estimated to take approximately six weeks

(8T162-163). Petitioner spent 22 weeks on

this project and never satisfactorily

completed it as it only functioned mini-

mally (8T164). The program was replaced

the following year by another programmer

outside of Moehringer's group. The custo-

mer was dissatisfied with Petitioner's work

and did not use Moehringer's group to

complete the assignment or for any other

work for five years (8T166).

During Petitioner's work on the Farms

Index Project, she refused to communicate

interim progress to -Moehringer. She

avoided him, skipped scheduled meetings,

and would hang-up if he called on the

telephone to inquire about the program.

She did not show him a single line of code,

a flow diagram or documentation.

Moehringer sensed a major problem in this

project and communicated his fears to

Erjavec (8T152-153). Subsequently,

Moehringer, in May/June 1980, recommended

to Erjavec that Petitioner be terminated

from employment (2T24, 6T162-163). Erjavec

did not terminate Petitioner at this time

(6T163).

With reference to the alleged Middle-

port incident (Petition pgs. 9-10), the

District Court did not find Petitioner's

Account to be credible (App. 19a). As

stated therein,

Plaintiff's account was not

credible. Based upon my

assessment of the

credibility of Golin and

Moehringer, I find that

Moehringer's denial of the

incident was credible.

(vor. 3, @. 66, -line 1). iI

am unable to give any

credence to the plain-

tiff's interpretation of

the facts. As was the case

throughout the trial, the

evidence simply does not

support the plaintiff's

version of the facts, nor

does it support the

inferences and conclusions

the plaintiff draws and

seeks to have this Court

draw. (App. 18a-19a).

As stated by Petitioner (Petition p.

11), she was temporarily transferred to the

A&IS group and was rated by David Hall.

During the temporary assignment, Hall was

unable to afford much time to direct obser-

vation of Petitioner's work, and when

requested by Btiawec for an evaluation in

preparation for the November performance

review due Petitioner, Hall merely reported

that she was standard, due to lack of evi-

dence to the contrary (6T236). In rating

her, Hall did not want to see her transfer-

red to his group as he did not feel she

could contribute as she did not have the

background to discuss problem areas with

users or the ability to formulate problem

solutions (6T269-270).

Subsequent to Petitioner's return to

Moehringer's group, Moehringer prepared the

11 page evaluation of Petitioner referenced

in the Petition (pg. 12). The purpose of

the review was to prepare for Petitioner's

annual review and to report to Erjavec

details concerning projects Petitioner had

worked on as Moehringer was sure she would

not be a successful programmer (9T26).

Because of the disparity between Peti-

tioner's assertions and Moehringer's per-

formance evaluation and because Hall was

unable to supervise her closely enough to

provide an independent estimate, Erjavec

decided to replicate some of the work

previously done by her to attempt an inde-

pendent evaluation and formulate a more

precise basis on which to recommend annual

Salary action for Petitiener. He selected

an assignment on which she had expended and

logged 44 hours and had not completed.

Moehringer had estimated that it would take

approximately one day (9T28-29). Although

he had little recent computer programmer

experience and had never used this specific

computer before, Erjavec completed the

assignment in 9 hours (6T102-103, 165,

229). He concluded that Moehringer's time

estimate was reasonable (6T230). Erjavec

subsequently rated Petitioner a 2, (satis-

factory, but requires improvement-some

objectives not met) (App. 24a).

Petitioner (Petition pgs. 16-17)

references testimony of Gail Wright and

Jeanne Root in which they stated that

Moehringer stood close when he spoke to

them. Moehringer stood close to males and

females, and, although this habit—made them

uncomfortable, they did not find it offen-

Sive (App. 47, 3T 115-116, 176). Root's

responsibility while being supervised by

Moehringer was to convert existing programs

to a more sophisticated system brought on

board by FMC (3T 117-121).

Petitioner (Petition p. 18) alleges

Hall's project delays, etc. were perfor-

mance failures. There is nothing in the

trial record supporting Petitioner's claims

that the delay's, etc., were performance

failures.

With reference to Robert Kiessling

beginning work at 9 a.m. (Petition pgs.

18-19), Kiessling was not an FMC employee

but rather an independent contractor who

was contracted for with the understanding

that he could begin work at 9 a.m. (8T

92-94). Hall, whose hours varied, was not

under Moehringer's supervision (6T 257,

259). Golin did not offer the testimony of

anyone else in her group, or the testimony

of anyone who worked under Moehringer, to

corroborate her claim that she was in some

way singled out by being required to work

regular hours (App. 33a-34a).

Petitioner in her Petition (pgs. 20-21)

references a conversation with Burton

Friedman in which she allegedly told

Friedman her belief that Moehringer denied

her request because she rejected

Moehringer's sexual advances. This testi-_

mony, although not specifically refuted,

was not corroborated.

On page 21 of the Petition, Petitioner

references a March 9, 1981 conference with

Moehringer. Prior to Petitioner advising

Moehringer that she was reluctant to go to

his office because he made passes at her,

Moehringer had advised Petitioner that he

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had recommended to Erjavec that she be

terminated (5T 198-199, 9T 41-42, App.

34-35).

With ratseeace to the alleged sexual

acts complained of by Petitioner,

Moehringer denied ever sexually harassing

Petitioner or committing any of the acts

alleged (8T 155-156, 9T 46, 68, 69, 71).

On page 23 of the Petition, Petitioner

alleges that Erjavec suggested to her that

she must provide the names of other woman,

in order to prove Moehringer's bias (App.

43-44). Erjavec merely suggested that

Petitioner provide names of other woman

(6T156) in order to prove Moehringer's

alleged bias (6T156, 161). He suggested

that Petitioner provide the names of other

woman in light of the fact that the

internal investigation by FMC was drawing

—. =

to a close without substantiation of

Petitioner's claim and if FMC found her

allegations to be groundless, then the

original plan was going to proceed, which

was the termination of Petitioner based

upon poor performance (6T156-157). This,

in fact, was done by FMC. Erjavec never

told Petitioner that unless she gave FMC

names of witnesses, that they would let her

go (6T145).

With reference to the testimony of

Barbara A. Dvorak (Petition pg. 24), upon

Petitioner's complaint of sexual harass-

ment, FMC appointed Judith Schunn and

Suzanne Donnelly, professional personnel

employees from outside FMC's’ Princeton

facility, to conduct an internal investiga-

tion into the allegations (6T175). These

investigators interviewed Petitioner,

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Erjavec, Moehringer, and a large number of

FMC employees (6T187). One female

employee, Barbara Dvorak, went to Erjavec

before she had been contacted by these

investigators and suggested that she should

be interviewed because she believed she had

a Similar experience with Moehringer (3T28,

6T204-205). There is no indication that

the investigators did not intend to talk to

Dvorak; the record indicates that the

investigators simply had not had the

opportunity to talk to her prior to the

time she raised the concern with Erjavec.

The FMC investigators concluded that any

statements made by Moehringer to Dvorak

were innocuous (6T198).

Dvorak's testimony, which was heard by

the Court outside the presence of the jury,

was, over 10 years earlier, when working

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for Moehringer and experiencing personal

domestic problems and separated and living

alone in a new apartment, that Moehringer

suggested, on several occasions, that she

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invite him to see her apartment (3T25-26).

She did not characterize this as sexual

harassment, then or now. His behavior was

described as moody, erratic and that he

played “head games" (3T36-37). She shortly

thereafter quit her job at FMC for personal

and professional reasons (3T37). Within a

couple of years she returned to FMC, again

worked for Moehringer (3T19-20), was given

a number of salary increases, and achieved

several promotions since the alleged

incident. She did not testify that the

environment at FMC was sexually harassing

during Petitioner's tenure. She has no

recent relevant experience with Moehringer

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(3T31). Her testimony was not allowed

before the jury because it was too remote

to Petitioner's jury issues and was not

probative of any pattern of an ongoing

sexually harassing environment or cover-up

(App. 40a). The FMC internal investi-

gators also did not feel that it was of

Similar gravity to Petitioner's complaint

(6T188, 189).

Before concluding their internal in-

vestigation , the FMC investigators urged

Petitioner to provide them with names of

other females allegedly sexually harassed

by defendant Moehringer. Petitioner was

reluctant to provide names and, in fact,

never did (6T186). Petitioner advised

Schunn that if assurances against retalia-

tion were given in writing she would

provide witnesses. In a taped conversation

a a

Surreptitiously recorded by Petitioner,

between Petitioner and Schunn, Schunn

indicated that she wanted to advise people

at Princeton that Petitioner agreed under

these circumstances, “written assurance,"

to identify her witneSses. Petitioner

responded that she would do that. Schunn

further asked if that was sufficient, to

which Petitioner responded that it was

(6T57-58).

Nick Derrough, FMC Corporate Manager

for Equal Employment Opportunity, provided

such written assurance by letter. The

letter set forth the prohibition against

retaliation for providing information which

supports, clarifies, or documents a problem

or charge of discrimination or harassinent.

It further sets forth the intent of FMC's

EEO Policy to encourage internal resolution

ae

of possible problems (6T39-40). At no time

during trial did Petitioner testify that

she provided names of other woman harassed

by Moehringer to the investigators or any

other employee of FMC, either before or

after receiving such written assurance.

Petitioner, at trial, was referred to

deposition testimony in which she was asked

what she bases her claim that FMC had

notice of Moehringer's sexual misconduct.

Her response was that it was based on

gossip. Upon further being asked at

deposition as to who said anything to her

about claimed sexual bncanciiiint Or advances

on behalf of Moehringer and what was said

by that individual or those individuals,

Petitioner responded that those were events

that occurred more than two years previous

to her deposition testimony and that she

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hates to misquote people. She further

stated that she hates to misquote Situa-

tions, to misinterpret what was said, by

whom it was said, what the words were,

etc. She further alleges that they were

impressions at the time and that she does

not, at the time of the deposition, have a

clear recollection that would permit her to

be fair or accurate or reasonable about any

of those past gossip comments. She has a

memory that she heard gossip, but that was

the extent of her memory. She did not have

at deposition a clear enough recollection

of who these people were. In fact, she had

no recollection at all (6T45-47).

REASONS FOR DENYING WRIT

I. THE DISTRICT COURT'S DECISION THAT

PETITIONER'S WRONGFUL DISCHARGE

CLAIM WAS SUBSUMED BY THE STATU-

TORY CLAIMS (FEDERAL TITLE VII &

NJLAD) DOES NOT PRESENT EITHER

SPECIAL OR IMPORTANT REASONS FOR

THIS COURT TO EXERCISE ITS DIS-

CRETION AND GRANT THE PETITION FOR

CERTIORARI.

Petitioner was terminated from her

position at FMC as she could not competent-

ly function in the position for which she

was hired. This is amply supported by

Respondent's Statement of the Case and the

District Court's Opinion set forth in the

Appendix submitted with the Petition.

Shortly after employment commenced,

Moehringer, Petitioner's manager, became

disappointed with Petitioner's perfor-

mance. Her work significantly exceeded

time estimates and was programmed in-

ee ee ns

efficiently and unsuccessfully. Petitioner

refused Moehringer's assistance and refused

to demonstrate her work to him (8T14l,

143-151). During work on a particular

project, Petitioner avoided Moehringer,

skipped scheduled meetings, hung-up when he

called on the phone to iiekes about the

program, refused to communicate interim

progress or to show him a single line of

code, a flow diagram or documentation (8T

151-161). Moehringer's manager, Erjavec,

repeated one of the assignments given

Petitioner and concluded that Moehringer's

assessment of Petitioner exceeding time

limits was proper (9T28-29, 6T102-103,

165-166, 229-230). Eventually, she was

terminated.

On March 9, 1981, Moehringer advised

Petitioner he was recommending her termina-

a ae

tion, at which point she accused him of

sexual improprieties. Petitioner's testi-

mony and her allegations of sexual mis-

conduct were found unworthy of belief by

the District Court. The Court did find the

’ defendants' witnesses believable.

As will be noted by specific

reference throughout this

Opinion, the testimony of the

plaintiff conflicted with

that of the defendant Moeh-

ringer and with defense

witnesses on many crucial

points. This Court had ample

opportunity to observe the

demeanor of the witnesses and

} to assess their credibility.

I find, as did the jury,

that, where there was a con-

| flict of testimony, the

testimony of the plaintiff

was not worthy of belief, and

; that the testimony of the

defendants’ witnesses was

credible. (App. 10a).

Rule 17 of the Rules of the Supreme

Court of the United States indicates that a

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;

review on writ of certiorari is a matter of

judicial discretion and will be granted

only when there are special and important

reasons therefor. No such special and

important reasons exist in the case at

bar.

Petitioner claims in her Petition that

the District Court's decision to subsume

the wrongful discharge claim in the

statutory claims, affirmed by the Third

Circuit Court of Appeals, is in conflict

with decisions of other tribunals and

therefore is worthy of review by this Court.

A federal question raised by

a Petitioner may be ‘of

substance’ in the sense that,

abstractly considered, it may

present an intellectually

interesting and solid

problem. But this Court does

not sit to satisfy a

scholarly interest in such

issues. Nor does it sit for

— ;

the benefit of the particular

litigants. ‘Special and

important reasons’ imply a

reach to a problem beyond the

academic or the episodic.'

Rice v. Sioux City Cemetery, 349

0.8. 76, 74 (i935).

Respondent does not concede that Petitioner

has raised a federal question or one "of

substance,” but, even if raised, to address

it, would be to merely satisfy a scholarly

interest in the issue when one considers

the facts raised and Petitioner's lack of

credibility as found by the Court and

jury. To address the issue, the Court

would be sitting for the benefit of a

particular litigant, the Petitioner in the

case at bar. As stated above and as found

by the District Court, Petitioner was

terminated because she was incapable of

performing her job. This was amply

— >

demonstrated by the evidence. Petitioner's

Claims of harassment and retaliation were

found by the District Court not to be

credible. Therefore, to accept the

Petition would be to do what case law says

this Court should not do, entertain an

action without “special and important

reasons."

Petitioner claims that the District

Court's dismissal of the wrongful discharge

count, affirmed by the Third Circuit Court

of Appeals, is at variance with the

applicable decisions of the United States

Court of Appeals for the Eighth Circuit and

the Supreme Court of New Jersey. Her

reliance on the cases cited is misplaced.

The New Jersey Supreme Court has

recognized a cause of action for wrongful

« 2

discharge in Velantzas v. Colgate-Palmolive Co.,

109 N.J. 189, 536 A. 2d 237 (1988) and

Giudice v. Drew Chemical Corp., 104 N.J. 465,

517 A. 20d 448 (1986). But, both of these

cases involved the question whether the

employer's actions violated public policy

and therefore gave rise to causes of action

for wrongful termination. Velantzas

apparently never pleaded a statutory

violation for discrimination and therefore,

the issue whether separate claims for

statutory violations and wrongful discharge

could co-exist was never raised. Giudice

did not involve a discrimination issue.

Petitioner's reliance on Lucas v. Brown &

Root, Inc., 736 F. 2d 1202, 1206-1207 (CA8

1984), is misplaced as well. There,

plaintiff's Title VII claim

a a

was dismissed as its filing was untimely.

Plaintiff was permitted to—pgursue wrongful

discharge claims. The issue rn the

tort and contract claims would be subsumed

by a statutory claim was never addressed by

the court.

Petitioner also relies upon Alexander uv.

Gardner-Denver, 415 U.S. 36 (1974) in

support of her argument. This case is

inapplicable as well. In Alexander,

plaintiff, a black, was discharged from

employment and filed a grievance under a

collective-bargaining agreement which

contained a non-discrimination clause.

This grievance was submitted to

arbitration. The arbitrator found that

plaintife had been discharged for cause.

Subsequently, plaintiff filed an action in

the District Court for a Title VII

a

| |

violation, which claim was dismissed

because of the prior arbitration. On

certiorari, the Supreme Court held that

plaintiff was entitled to a trial denovo

for the Title VII racial discrimination

claim. As stated by the court at page 163,

Arbitral procedures, while

well suited to the resolution

of contractual disputes, make

arbitration a comparatively

inappropriate forum for the

final resolution of rights

created by Title VII. This

conclusion rests first on the

special role of the

arbitrator, whose task is to

effectuate the intent of the

parties rather than the

requirements of enacted

legislation. Where the

collective- bargaining

agreement conflicts with

Title VII, the arbitration

must follow the agreement.

——- )

Therefore, the Court found that:

that the federal policy

favoring arbitration of labor

disputes and the federal

policy against discriminatory

employment practices can best

be accommodated by permitting

an employee to pursue fully

both his remedy under the

grievance arbitration clause

of a collective-bargaining

agreement and-his cause of

action under Title VII. The

federal court should consider

the employee's claim de

novo. The arbitral decision

may be admitted as evidence

and accorded such weight as

the Court deems appropriate.

Alexander, pages 164-5.

Alexander, therefore, has no application to

the case at bar. It does not deal with the

subsuming of state claims by federal acts.

Therefore, Petitioner has not met the

necessary tests for this Court to grant the

requested relief as she has failed to

Se: a

demonstrate special and important reasons

requisite for granting the relief sought

and to demonstrate that the decision of the

District Court, affirmed by the Third

Circuit Court of Appeals, is in conflict

with eeskaknin of the United States Court

of Appeals for the Eighth Circuit and the

Supreme Court of New Jersey.

—

II. THE DISTRICT COURT APPLIED

THE PROPER STANDARD OF PROOF

IN AN EMPLOYMENT

DISCRIMINATION ACTION UNDER

TITLE VII OF THE CIVIL RIGHTS

ACT OF 1964.

The District Court applied the

applicable Title VII law to the facts as

properly ascertained by the court. The

analytical model for evaluating a complaint

of intentional impermissible employment

discrimination in violation of Title VII

continues to be McDonnell-Douglas Corporation v.

Green, 411 U.S. 792 (1973). That case

teaches that a plaintiff alleging such

discrimination must meet the initial burden

at trial of establishing a prima facie case

of discrimination.

To prove her prima facie case of sexual

harassment, appellant must concretely prove

the following:

a. That she belongs to a

protected group;

b. That she was subjected to

unwanted sexual advances;

c. That the harassment claimed

was in fact based upon sex; and

d. That the conduct complained of

affected the term, condition, or privilege

of employment.

Henson v. City of Dundee, 682 F. 2d 897 (11th

Cir. 1982); Bundyv. Jackson, 641 F. 2d 934

(D.C. Cir. 1981); Tomkins v. Public Service

Electric & Gas, 568 F.2d 1044 (3d Cir. 1977).

When a plaintiff succeeds in

establishing a prima facie case, the

we

defendant is then required "to articulate

some legitimate, non-discriminatory

reasons" for its actions. McDonnell- Douglas

Cerporation v. Green, 411 U.S. at 802.

Thereafter, the plaintiff must prove “by a

preponderance of the evidence that the

legitimate reasons offered by the defendant

were not its true reasons, but were a

pretext for discrimination," Texas Department

of Community Affairs v. Burdine, 450 U.S. 248,

253; 101 S.Ct. 1089, 1093; 67 L.Ed.2d 207,

209 (1981). "The ultimate burden of

persuading the trier of fact that the

defendant intentionally discriminated

against the plaintiff remains at all times

with the plaintiff." Id.

To establish a prima facie case of

sexual harassment based on the denial of a

|

tangible job benefit or adverse employment

decision (quid proquo harassment), the

Settetone: herein must have proved (1) that

she belonged to a protected group; (2) that

she was subject to unwelcome sexual harass-

ment; (3) that the harassment complained of

was based on sex; and (4) that the

employee's reaction to the harassment

resulted in an adverse employment deci-

sion. Henson v. Dundee, supra.

To establish a prima facie case of

sexual harassment based on a hostile or

offensive work environment (non-quid pro

quo), the Petitioner herein must have

proved that (1) she belonged to a protected

group; (2) that she was in fact subject to

unwelcome harassment; (3) that the harass-

ment complained of was based on sex; (4)

that the harassment was of such nature and

oe

magnitude as to affect a "term, condition,

Or privilege" of employment; and (5) that

the employer knew or should have known of

the harassment and failed to take prompt

remedial action. Katzv. Dole, 709 F.2d at

255; Henson v. Dundee, supra 682 F.2d at

| 903-05; Bundy v. Jackson, supra 641 F.2d at

943; Ferguson v. E.I. DuPont de Nemours & Co.,

supra, 560 F. Supp. at 1197-99.

Petitioner has failed to establish a

prima facie case of sexual harassment -

resulting in a tangible detriment to her

employment (quid proquo harassment) with

FMC for at least three compelling reasons.

First, Petitioner alleged only that

Moehringer, her immediate supervisor,

harassed her, made passes at her, made

suggestive or offensive comments, walked

ae

into her, or touched her. No other

employee of FMC is alleged to have done

anything remotely suggesting sexual

harassment, and indeed the record is

totally devoid of any evidence suggesting

other agents of FMC acted in any such way.

Thus, since the facts of the interaction

between Petitioner and Moehringer were

fully tried to the jury and the jury

decided unequivocally that Moehringer did

not assault Petitioner and did not

maliciously interfere with her employment,

it follows inexorably that the jury verdict

against Petitioner precludes a finding by

the court that some unknown, unnamed,

uncharged, non-existent agent of FMC, on

these non-facts, was responsible for

sexually harassing her, thereby -implicating

this corporate defendant. Such finding by

~ a0 <

the jury in favor of Moehringer compels the

conclusion that FMC is also not

responsible. Corporations, being legal

fictions, can only act through their agents

or employees. At a minimum, there would

have to be an actor who is found to have

done something adverse against plaintiff.

Here, there is none. Second, Petitioner

was Clearly an employee-at-will, and had no

reasonable expectation of or basis for a

continuation of her employment with FMC.

She failed to demonstrate to her employer

that she was competent and qualified for

continued employment. Her work habits and

behavior justified some strong remedial

action, such as termination. Thirdly, the

decision to terminate Petitioner was

independently reviewed and ratified by

person who were not involved in, and at

— .

that time had no knowledge of, the alleged

harassment. (6T175). Thus, there is no

basis for a finding that Petitioner's

response to harassment resulted in the

adverse employment decision to terminate

her.

Petitioner has failed to establish a

prima facie case of sexual harassment

predicated on the maintenance of a hostile

work environment (non-quid pro quo) because

she has failed to establish that

Moehringer's supervisors in any way

condoned or acquiesced in alleged sexual

harassment. First, as the jury verdict

indicates, no such harassment on the part

of Moehringer ever occurred. Second, as

the findings of fact conclude, Petitioner

did not even complain of alleged sexual

harassment to anyone in authority at FMC's

—° 2

facilities until after the decision to

terminate her had been made and confirmed

and ratified by the appropriate higher

authorities. Third, the findings of facts

herein demonstrate that, aside from

Petitioner, no other female employee of FMC

experienced any such harassment near in

time as alleged or came forward to voice

any such complaint or to support Peti-

tioner. The occasion of the one female who

testified as to a problem with Moehringer

was so remote and so uncharacteristic of

Petitioner's alleged specifics as to be of

no probative value, even if fully credit-

ed. Finally, the record is clear that FMC

does not condone sexual harassment and that

they acted promptly, fairly, reasonably and

properly to Petitioner's complaints by

setting up an independent investigating

may. | eee

committee of professionals from outside the

Princeton facility to evaluate the com-

plaints. Even here, Petitioner in part

attempted to damage the ability of the

committee to determine the truth by

refusing to furnish names of other women

allegedly sexually harassed.

As stated by -the District Court in its

Opinion:

The facts of the interaction

between plaintiff and

Moehringer were fully tried

to the jury and the jury

decided unequivocally that

Moehringer did not assault

plaintiff and did not mali-

ciously interfere with her

employment. Moreover, this

Court, having heard all the

evidence and evaluated the

credibility of all the wit-

nesses, agrees fully with the

determination of the jury.

The plaintiff's testimony

that Moehringer sexually

harassed her and made implied

"passes" at her was wholly

o 52 @

refuted by the credible

testimony of Moehringer and

others. Plaintiff's testi-

mony was not credible and

seems at best an attempt to

twist and distort events,

after she was aware of her

impending termination, in

order to serve her own

interest. (App. 57-58a).

Petitioner suggests that because the

court denied FMC's motion to dismiss the

Title VII claims at the conclusion of her

proofs, that she has made out a prima facie

case. The court denied FMC's motion to

dismiss at that time without prejudice to

renew at the conclusion of the case as

permitted by Court Rule 41(b) (8T85). It

is therefore apparent that the court did

not make a determination that Petitioner

had made out a prima facie case at any time

prior to rendering its opinion in which it

concluded she had not. A compelling

—:

ate el

argument could be made that the Court's

ultimate determination that she had failed

to make out a prima facie case was a belated

wrantben of a 41(b) motion.

Even assuming, arguendo, that

Petitioner had made out a prima facie case

of employment discrimination under Title

VII or the NJLAD, which she clearly did

not, FMC has articulated legitimate,

non-discriminatory reasons for its decision

to terminate Petitioner's employment and

Petitioner has not met her burden by the

preponderance of the evidence that such

reasons were a pretext for discrimination,

Texas Department of Community Affairs v. Burdine,

supra, 450 U.S. 248 (1981).

To the extent that Petitioner has

alleged a retaliatory discharge or a

cover-up for her action of coming forward

a £6 =

and accusing her supervisor of sexual

discrimination, her claim must also fail.

First, in order to prevail on such a claim,

she must have established a prima facie

case, which she has not, Corley v. Jackson Police

Department, 566 F.2d 994 (5th Cir. 1978).

As noted by the Court in Hochstadt v. Worcester

Foundation for Experimental Biology, Inc., 425 F.

Supp. 318, 234 (D. Mass.), affd 545 F.2d

eae Cant Cit. 1976),

The employee makes out a

prima facie case by showing

(1) that she engaged in

protected activity, i.e., she

opposed unlawful employment

practices and participated in

Title VII proceedings; (2)

that her employer was aware

of the protected activities;

(3) that she was subsequently.

discharged and (absent other

evidence tending to establish

retaliatory motive); (4) that

her discharge followed her

-m Om

protected activities within

such a period of time that

the Courts can infer retali-

atory motives.

Here, Petitioner has again failed to meet

the legal requirements for her allegations.

III. THE DISTRICT COURT WAS

NEITHER PERSONALLY BIASED

NOR PREJUDICED AGAINST

PETITIONER.

The District Court properly employed

its discretion in denying Petitioner's

motion for recusal immediately prior to the

presentation of evidence.

Recusal motions are made pursuant to 28

U.S.C. 144 and 28 U.S.C. 455. Sec. 144

states:

Whenever a party to any

proceeding in a district

court makes and files a

timely and sufficient affi-

davit that the judge before

whom the matter is pending

has a personal bias or preju-

dice either against him or in

favor of any adverse party,

such judge shall proceed no

further therein, but another

judge shall be assigned to

hear such proceeding.

« £2 =

The affidavit shall state the

facts and the reasons for the

belief that bias or prejudice

exists, and shall be filed

not less than ten days before

the beginning of the term

[session] at which the pro-

ceeding is to be heard, or

good cause shall be shown for

failure to file it within

such time. A party may file

only one such affidavit in

any case. It shall be accom-

panied by a certificate of

counsel of record stating

that it is made in good faith.

Here, Petitioner presented an affidavit

to the District Court which was neither

timely nor sufficient. Petitioner, in

support of her motion for recusal, alleged,

in part, conduct occurring in April 1986

and December 1986. She waited until

subsequent to jury selection to move for

recusal. She alleged in her affidavit

conduct such as the Court's refusal to

permit her to testify in narrative form;

~ BA

the Court initially referring to her as

"Mrs." and not "Dr."“; the Court's refusal

to ask all of her suggested voir dire

questions; the Court requiring Petitioner

to update Moehringer's deposition only ten

days prior to the beginning of the trial.

(in fact it turned out to be 24 days before

testimony began); the Court's refusal to

permit Petitioner to depose FMC's Personnel

Director to authenticate files when FMC was

willing to stipulate to authenticity; etc.

The mere filing of the affidavit under

Section 144 does not automatically dis-

qualify a judge from hearing a case. U.S. v.

Townsend, 478 F.2d 1072, 1073 (3d. Cir.

1973). It is the duty of the judge to

determine whether the affidavit was timely

and legally sufficient. Here, as stated

above, the affidavit met neither prong.

— ae

Additionally, the Third Circuit has

specifically held that only extra-judicial

bias forms a basis for recusal under either

Section 144 or Section 455. Shank v.

American Motors Corp., 575 F. Supp. 125, 128

(E.D. PA. 1983); Johnson v. Trueblood, 629

F.2d 287, 290-91 (3d. Cir. 1980), cert.

denied, 450 U.S. 999, 101 S. Ct. 1704,

68 L. Ed. 2d 200 (1981). As is stated in

Shank, 575 F. Supp. at page 129,

Perhaps best summarizing the

law on this point, it has

been held that a motion for

disqualification ordinarily

may not be predicated on the

judge's rulings in the

instant cases, nor on a

particular judicial leaning

or attitude derived from his

experience on the bench.

Phillips v. Joint Legislative

Comm., 637 F.2d 1014, 1020

(Sth Cir. 1981), cert. denied,

456 U.S. 960,

a Oe «

02 &. Ct. 2035, 72 LL. EG. 24

483 (1982); United States v.

Peltier, 553 F. Supp. 886, 889

(D.N.D. 1982).

Here, Petitioner's allegations do not

in any way rise to the level of proving any

personal bias or prejudice on the part of

the Court. Petitioner's arguments on this

issue are frivolous.

As stated above, Petitioner, in part,

bases her allecation of bias on the fact

that the court did not ask all of her voir

dire questions.

The Court in its voirdire asked the

prospective jurors questions eliciting

their background; marital and family

status; employment history; experience with

courts as either a juror, witness or parti-

cipant; their experience with computers;

whether they or an associate have ever been

ee

involved in a claim involving discrimina-

tion; whether they have feelings concerning

allegations of sexual discrimination, etc.

that would prevent them from serving as

fair and impartial jurors; whether they or

an associate has ever worked for FMC or a

company in the chemical industry; whether

they have prejudices against foreign born

persons or women who work outside the home

that would make it difficult or inpoesibte

to serve as fair and impartial jurors; and,

whether they had any prejudices or biases

for or against management or for or against

employees supervised by management by

virtue of their membership in management or

because they were supervised by management.

Petitioner proposed twelve pages of 5]

voir dire questions which included

questions concerning the types of movies

a ae

jurors watched; whether they think that men

treat each other differently in a work

Situation than they treat women; whether

they have ever been in a situation where a

person was cruel to someone just to get

even; as well as numerous “other questions.

As stated in U.S.v. Salamone, 800 F.2d

1216, 1224 (3rd Cir. 1986),

Without an adequate voir

dire the trial judge's

respunsibility to remove

prospective jurors who will

not be abie impartially to

follow the court's instruc-

tions and evaluate the

evidence cannot be fulfil-

led. Because the obligation

to impanel an impartial jury

lies in the first instance

with the trial judge, and

because he must rely largely

on his immediate perceptions,

federal judges have been

accorded ample discretion in

determining how best to

conduct the voir dire.

U.S. v. Rosales-Lopez, 451 U.S.

162, tee, Ben we LE.

=

1629, 1634, 68 L.Ed.2d 22

(1981). This discretion

extends to the determination

of what questions should be

asked to the potential

jurors. See generally Smith

v. United States, 431 U.S. 291,

2Ge, Fr Ge CE. 2796, 2767, 52

L.Ed.2d 234 (1977); United

States v. McDonnell, 573 F.2d

165, 166 (3rd Cir. 1978);

United States v. Segal, 534 F.2d

$78, 306i ¢€32ré Circ. 1976).

This ‘testing' by voirdire

remains a preferred and

effective means of

determining a juror's

impartiality and assuring the

accused of a fair trial.

United States v. Martin, 746

F.2d 964, 973 (3rd Cir. 1984).

In the case at bar, the court has

questioned the prospective jurors concern-

ing their backgrounds as well as their

attitudes about subjects germane to the

issues at hand and whether they can be fair

and impartial. The court saw fit in the

a GO =

—

exercise of its broad discretion to limit

the parties' proposed voirdire, but yet

provided to the parties through its

reasonably extensive examination of

prospective jurors a reasonable and

rational basis for an intelligent exercise

of the right to challenge, whether for

cause or peremptorily.

The parties knew enough about the back-

ground attitudes of the jurors to enable

the parties to exercise intelligently their

challenges. “The trial court has a serious

duty to determine the question of actual

bias." United States v. Salamone, 800 Fed.2d

at pg. 1224, Dennis v. United States, 339 U.S.

162, 166, 70 8. Ct. 319, S21, 94 L.84. 734

(1950). Thus, the discretion committed to

the trial court is “subject to the

essential demands of fairness."

ie a

Aldridge v. United States, 288 U.S. 308, 310,

oi 8... Ct. @78, 471, 75 0.88. 10654 €193i);

United States v. Wooten, 518 F.2d 943, 945

(3rd Cir.), cert. denied, 423 U.S. 895, 96S.

Ct. 196, 46 L.Ed.2d 128 (1975); United States

v. Napoleone, 349 F.2d 350, 353 (3rd Cir.

1965). Here, the court has fairly

exercised its serious duty enabling the

parties to assist the court in empanelling

a fair and impartial jury.

Petitioner did not exercise any

challenges. She expressed satisfaction

with the jury empanelled. Her arguments on

this issue are without any support in

either the law or in the record.

Petitioner also seeks to raise

allegations that Moehringer's counsel

engaged in misstatements during summation;

5

expressed personal opinion as to the

credibility of the witnesses and veracity

of the evidence; engaged in unfounded

attacks on Petitioner's character that were

inflammatory and prejudicial; that the

Trial Court erred in failing to restrict

defense counsel's closing argument; and

that the Trial Court improperly restricted

Petitioner's summation and submitted

excessively technical special

interrogatories to the jury.

The closing argument of Moehringer's

counsel was based solely on characterizing

the evidence of record and drawing

reasonable inferences tc ultimate facts

which were fully supported by the evidence

in the record. Obviously, these inferences

differ from Petitioner's inferences. But

that is beside the point. The truth is

i,

that the inferences drawn and commented on

were also accepted and believed by six

jurors and the District Court judge. They

do not please Petitioner; but, that is the

essence of the American jury system.

There is no error or bias demonstrated

in that the Court did not restrict defense

counsel's closing argument or that it

ordered Petitioner not to interrupt with

objections during the argument. The Trial

Court advised the Petitioner that all

objections could be made after summation,

and, in fact, did so permit.

Numerous courts have held that the

scope of closing argument is a matter

committed to the trial court's discretion.

U.S. v. Wendt, 698 F.2d 933 (8th Cir. 1982).

oe

of the entire trial.

As noted by the Court:

In closing arguments both

defense attorneys and prose-

cution attorneys are allowed

reasonably wide latitude;

they may strike hard blows

based upon testimony and its

inferences. U.S. v. Birges,

723 F.2d 66, certiorari

denied, 104 S.Ct. 1926 (9th

Cig. 3964).

Also, of course, the statements made at

final argument must be taken in the context

U.S. v. Gordon,

F.2d 42 (8th Cir. 1982).

the discretion to

discussion of the

jury trials,

the trial judge.

Additionally, a trial court judge has

trial. It is not error to preclude

law in the summation of a litigant.

=

control the conduct of a

jury instructions and the

this is the unique province of

To contend otherwise is

absurd. No prejudical error was committed

because the trial court interrupted

Petitioner before she completed her

explanation of what she believed the law to

be.

Finally, Petitioner's assertion that

the special interrogatories were

excessively technical and abstract and

confusing is patently ridiculous. These

instructions were largely patterned after

the New Jersey Model Jury Instructions and

were extensively reviewed in over three

hours of discussion and negotiations with

the Court. Petitioner expressed

satisfaction with the end result. They are

neither technical nor confusing. The fact

that the jury expressed difficulty in

understanding the term “malicious” is of no

Significance. When they requested

eS

Clarification of the term and the judge

re-read the jury charge, the matter was

ultimately resolved and the jury continued

to deliberate and subsequently reached a

verdict. They did not request or need

additional clarification. No prejudicial

error occurred.

For the reasons expressed above,

Petitioner has failed to demonstrate any

bias on the part of the Court or any

prejudice to a party to the litigation.

MS

CONCLUSION

For the reasons expressed herein,

Petitioner's application for a Writ of

Certiorari should be denied.

Respectfully submitted,

PELLETTIERI, RABSTEIN & ALTMAN

‘ia TT / / (

\ i \ al / ‘

BY: nb aa

ARTHUR G. LASH