Motion — Green v. Amerada Hess Corp.

ae &

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980] MICHAEL RODAK, JR., CLERK

| Supreme Court, U.S,

ED

CT 6 1980

7

No. 80-159

DAVID R. GREEN,

Petitioner,

versus

AMERADA HESS CORPORATION,

Respondent.

On Petition For Writ of Certiorari To

The United States Court of Appeals For

The Fifth Circuit

BRIEF IN OPPOSITION

FOR

AMERADA HESS CORPORATION

Edmund L. Brunini, Jr.

John E. Milner

Brunini, Grantham, Grower

& Hewes

Post Office Drawer 119

Jackson, Mississippi 39205

Robert G. Sachse

Amerada Hess Corporation

Post Office Box 2040

Tulsa, Oklahoma 74102

Attorneys for Respondent

INDEX

Bee ee vba ccdeakcseeudsaanne

8 eee eee ee ee eee

eR bn ok Saga ae ote eee

Questions Presented ..............

Constitutional Provisions

ST 4s 6.43 6b ae ese 0 eee ve

Reasons for Denying the Writ .....

be

Il.

The Decision of the District

Court and the Affirming

Decision of the Court of

Appeals Were Based Solely

on an Issue of State Law in

the Absence of Controlling

State Precedent, Which

Issue Was Not Presented as

a Question in the Petition

The Questions Presented by

Greens’ Petition Were Not

Considered by the Courts

Below and Are Improperly

Raised for the First Time

ae ee oT. ee

A. Green has no written,

fixed-term contract

with Amerada Hess

12

B. Green has no property

interest and continued

employment with Amerada

te 6:55 5 6 ob ek soe ee Oa Se 15

C. Green has no Fifth Amend-

ment due process protection

regarding his discharge

by Amerada Hess .......... 16

D. This Court recognizes the

validity of the terminable

at will employment

relationship and will not

arbitrarily eliminate this

important employment

sin A EERE TE CT Tee. 17

III. The Single State Law Issue

Properly Presented to this

Court Presents No Conflict

of Decisions or Important

Questions of Federal Law .... 19

OE EE POPS rere Fy errr ere 22

TABLE OF CASES

Page

Andrews v. Louisville & Nashville

Railroad Co., 406 U.S. 320 (1972)... 18

Appalachian Power Co. v. American

Institute of Certified Public

Accountants, 4 L.Ed. 2d 30 (1959)

(opinion in chambers) .......eeeee062 7

Bishop v. Wood, 426 U.S. 341 (1976).. 6,

Crownover v. Sears, Roebuck & Co.,

594 F.2d 565 (6th Cir. 1979) ...... 20

Gladstone, Realtors v. Village of

Bellwood, 441 U.S. 91 (1979) ...... 12

Graver Tank & Manufacturing Co.

v. Linde Air Products Co., 336

U.S. 271 (1948), affirmed 339

U.S. 605 (1949) eecccoce AS

Helvering v. Minnesota Tea Co.,

296 U.S. 378 (1935) eeeeveveeeeeeeeenee 11

Hoopes v. Equifax, Inc., 611 F.2d

134 (6th Cir. 1979) e*eee#seeeses#e7#s7#*e#e#ee#ee#ee#e«@ 20

Lawn v. U. S., 355 U.S. 339 (1967)... 10

Loucks v. Star City Glass Co., 551

F.2d 745 (7th on 1977) eoeeeneee#e3#ee#e¢? 19

Moore v. Home Insurance Co., 601

Téa aera (900 CEL. ABTS) cvoscoces OF

National Labor Relations Board v.

Waterman Steamship Corp., 309 U.S.

206 (1939) eoee*eeoeeen3seseeeeee7nene3eeeeeeeee

New Haven Inclusion Cases, 399

O.8- 392 (1970) eeeeevoeeeneeeeeeeeeee

Palmer v. Hoffman, 318 U.S. 109,

rehearing denied 318 U.S. 800

1943

F SFCESE06 566560 CERO ORO OKO”

Public Utilities Commission v.

PeLiak, 343 U.B. 451 CISS1) wccccec

Ramsey v. United Mine Workers, 401

a? 302 (1971) eeeeeeeeeeeeeeeeneee

Ruhlin v. New York Life Insurance

CO. > 304 i: - 202 (1937) eeeeeeee#€e#€e#e

Schroeder v. Dayton-Hudson Corp.,

448 F. Supp. 910 (E.D. Mich. 1978).

ii

17

14

16

11

20

a5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No. 80-159

DAVID R. GREEN,

Petitioner,

versus

AMERADA HESS CORPORATION,

Respondent.

On Petition For Writ of Certiorari To

The United States Court of Appeals For

The Fifth Circuit

BRIEF IN OPPOSITION

FOR

AMERADA HESS CORPORATION

OPINIONS BELOW

The Opinion of the United States

Court of Appeals for the Fifth Circuit,

affirming the unreported Opinion of the

District Court, reported at 612 F.2d 212

(1980), rehearing and rehearing en banc

denied, 614 F.2d 1298 (1980).

JURISDICTION

The Petition for Certiorari (herein-

after referred to as the "Petition") has

adequately set forth the jurisdiction of

this Court.

QUESTIONS PRESENTED

The sole question which could be

properly presented to this Court, but which

has not been presented by Petitioner, is

whether Petitioner has a civil cause of

action for wrongful discharge under Missis-

sippi law on the ground that he was dis-

charged for pursuing his rights under

Mississippi's workmen's compensation

statutes. The four questions presented by

Petitioner are improperly raised for the

first time in the Petition.

=2<

CONSTITUTIONAL PROVISIONS INVOLVED

This case does not properly involve

the Fifth Amendment to the United States

Constitution or any other federal consti-

tutional provisions, treaties, statutes,

ordinances or regulations.

STATEMENT OF THE CASE

Petitioner (hereinafter referred to as

"Green") was first employed by Respondent

(hereinafter referred to as ‘Amerada Hess")

on January 1, 1972. (R. 61, 186) He

did not have a written contract of employ-

ment during the entire time that he worked

for Amerada Hess, but was hired for an in-

definite period of time. (R. 142a, 186)

On April 15, 1973, while in the employ of

Amerada Hess, Green sustained an injury as

a result of an employment-related accident.

(R. 1, 200) Green filed an accident re-

port the next day, but continued working

until April 9, 1974, at which time he en-

tered the hospital for diagnostic tests.

~3-

(R. 92, 191) After a one-week hiatus,

Green returned to work until October, 1974,

when he was hospitalized for back surgery.

(R. 2, 191) After recuperating, he resumed

his employment in December, 1974. (R. 191)

On July 24, 1975, Green's employment with

Amerada Hess was terminated for cause!,

(R. 186, 192).

On June 12, 1978, Green filed a com-

plaint in the United States District Court

for the Southern District of Mississippi,

Eastern Division (hereinafter referred to as

the "District Court’), alleging that Amerada

Hess wrongfully discharged him for pursuing

his rights under Mississippi's workmen's

compensation act, MISS. CODE ANN. §§ 71-3-1

laithough Green's allegations were

taken as true by the District Court for

the sole purpose of considering whether

Green had a wrongful discharge cause of

action under Amerada Hess' Motion for

Summary Judgment, Amerada Hess has con-

sistently maintained that Green was

terminated for cause.

-4-

et seq. (1972) (R. 1-3, 207). Jurisdiction

was based solely on diversity of citizenship

under 28 U.S.C. § 1332. (R. 209, Pet. App. A,

at 9a)

On June 21, 1978, the District Court

granted Amerada Hess's Motion for Summary

Judgment on the sole ground that Green's

claim did not state a valid cause of action

under Mississippi law. The elements of the

District Court's decision, rendered in the

absence of controlling Mississippi prece-

dent, were: (1) Green was employed for an

indefinite term and, therefore, his employ-

ment was terminable at the will of either

party under Mississippi law; (2) the

Mississippi workmen's compensation act

provided no wrongful discharge cause of

action; and (3) therefore, Green had no

such wrongful discharge cause of action

under Mississippi law. (R. 209-211, Pet.

App. B at 8a-9a).

Green appealed the District Court's

ruling to the United States Court of Appeals

for the Fifth Circuit (hereinafter referred

to as the "Court of Appeals") on August 2,

1979 (R. 212) on the "sole question" of

whether Green "had a cause of action for

being discharged in retaliation for filing

a workmen's compensation claim,"

Appellant's Brief, at 1) The case was

placed on summary calendar and on February

21, 1980, the Court of Appeals affirmed the

District Court's ruling on the sole state

law ground considered by the District Court.

The Court of Appeals agreed that since

Green's employment was terminable at will

under Mississippi law, and since the

Mississippi workmen's compensation act

provided no wrongful discharge cause of

action, then Green had no such wrongful

discharge cause of action under Mississippi

law. 612 F.2d at 214 (Pet. App. A at 2a-

4a). Green's petition for rehearing and

-6-

rehearing en banc was denied by the Court

of Appeals on March 18, 1980.

REASONS FOR DENYING THE WRIT

ke

The Decision Of The District Court

And The Affirming Decision Of The Court

Of Appeals Were Based Solely On An Issue

Of State Law In The Absence Of Controlling

State Precedent, Which Issue Was Not

Presented As A Question In The Petition.

This diversity case involves exclu-

sively a determination of Mississippi law

by the District Court, which was upheld on

the same state law ground by the Court of

Appeals. This Court accepts a determination

of state law as found by a court of appeals

in a diversity action, particularly when the

same finding is made by the federal district

court. Appalachian Power Co. v. American

Institute of Certified Public Accountants,

4 L.Ed.2d 30, 32 (1959) (opinion in cham-

bers), and will not set aside the deci-

sions of lower courts applying state law

-7-

"except on a plain showing of error."

Palmer v. Hoffman, 318 U,S. 109, 118,

rehearing denied 318 U.S. 800 (1943).

This court applied these standards in

a recent case dealing with the rights of a

terminable at will city employee under a

city employment discharge ordinance, Bishop

v. Wood, 426 U.S. 341 (1976). This Court

stated:

We do not have any authorita-

tive interpretation of this

ordinance by a North Carolina

stat.: court. We do, however,

have the opinion of the United

States District Judge, who, of

course, sits in North Carolina

and practiced law there for

many years. Based on his

understanding of state law, he

concluded that petitioner

"held his position at the will

and pleasure of the city'

[since the employment contract

was "'terminable at the will of

either party.''"'] This construc-

tion of North Carolina law was

upheld by the Court of Appeals

for the Fourth Circuit, albeit

by an equally divided court.

In comparable circumstances,

this Court has accepted the

interpretation of state Law

in which the District Court

and the Court of Appeals have

-8-

concurred even if an examination

of the state-law issue without

such guidance might have justi-

fied a different conclusion.

The District Court's reading of

the ordinance is tenable; it

derives some support from a

decision of the North Carolina

Supreme Court...; and it was

accepted by the Court of Appeals

for the Fourth Circuit. These

reasons are sufficient to fore-

close our independent examina-

tion of the state-law issue.

Id. at 346, n.9, 347 (emphasis added).

The instant case and Bishop are

similar in several important respects:

(1) The district court judge in each case

was required to interpret state law in the

absence of controlling state law precedent;

(2) each court of appeals placed special

weight on the district court judge's famil-

iarity with state law; and (3) as in Bishop,

the decision of the District Court below on

the state law issue is tenable; is based on

State case and statutory law; and was

accepted by the Court of Appeals. Thus,

this Court should accept the decisions of

-9-

the District Court and the Court of Appeals

and deny the Writ of Certiorari (hereinafter

referred to as the "Writ").

Furthermore, Green did not present as

a question for review in the Petition this

single state law question presented to and

considered by the District Court and the

Court of Appeals - whether Green has, under

Mississippi law, a cause of action for

wrongful discharge for pursuing workmen's

compensation rights. Rule 23 of the re-

vised rules of this Court provides that

"[To]nly the question set forth in the peti-

tion or fairly comprised therein will be

considered by the court." Since Green did

not present this issue as a question for

review in his Petition, then it is not

properly before this Court. E.g. Lawn v.

we. ee, see U.S. 339, 362, n.16 (1957).

Therefore, the Petition presents no legiti-

mate questions for consideration and the

Writ should be denied.

-10-

bdo

The Questions Presented By Green's

Petition Were Not Considered By The Courts

Below And Are Improperly Raised For The

First Time In The Petition.

Instead of presenting in his Petition

the sole state law question that couida

properly come before this Court, Green has

raised four questions which were not presen-

ted to or considered by the courts below

and for which there is no support in the

record. This Court does not ordinarily

consider questions raised for the first

time in the petition for certiorari.

Helvering v. Minnesota Tea Co., 296 U.S.

378, 380 (1935). This position was recent-

ly well-stated in Ramsey v. United Mine

Workers, 401 U.S. 302, 312 (1971):

We find no reference to this

aspect of the case in the opin-

ions of the District Court and

the Court of Appeals. We are

unsure whether it was presented

below and whether, in any event,

there is record support for it.

Accordingly, we deem it inappro-

priate to consider it in the

first instance.

-11-

Therefore, no questions are properly

presented to this Court for consideration,

requiring the denial of the Writ.

For the sole purpose of further showing

to this Court that the Writ should be denied,

we will briefly address Green's arguments

under each of the four questions improperly

presented to this Court.

A. Green has no written, fixed-term

contract with Amerada Hess.

Green contends that he has-~a "written

fixed term contract" based on the existence

of the Amerada Hess personnel handbook

2even where an issue is "belatedly

raised on oral argument in the Court of

Appeals and given "cursory treatment”,

this Court has held that such an issue

is not properly before it on petition for

certiorari. Gladstone, Realtors v. Village

of Bellwood, 441 U.S. OT. 108, n.21 CLd755-

Green did not argue to the District Court

that he had a "written fixed term contract"

with Amerada Hess and there was no oral

argument before the Court of Appeals.

Furthermore, Green did not present the

question in his appellate briefs to the

Court of Appeals.

-12-

(which discusses the company pension plan,

savings and stock bonus plan, medical, and

income protection and life insurance plans

and additional employee benefits), entitled

"Benefit Program for Employees", and based

on an alleged agreement to invest 4% of his

monthly income in Amerada Hess. This latter

“agreement"' is apparently participation by

Green in the savings and stock bonus plan.

This argument is in direct conflict

with the concurrent finding of fact by

the District Court and the Court of Appeals,

which Green did not contest, that Green

had no written employment contract but was

hired for an indefinite period of time.

This Court will not review concurrent

findings of fact by two courts below in

the: absence of a very obvious and excep-

tional showing of error. E.g. Graver

Tank & Manufacturing Co. v. Linde Air

Products Co., 336 U.S. 271, 275 (1948),

affirmed 339 U.S. 605 (1949). There was

-13-

no such error below since the record supports

the finding by affidavit (R. 186) and by the

dmission of Green himself in his deposition

that he had no written contract of employ-

ment with Amerada Hess. (R. 142a)

Furthermore, the bases for the implication

for a fixed term contract, the personnel

handbook and the alleged investment agree-

ment, are not even part of the record.

This Court has held that it will not consi-

der documents that are not record evidence

in the courts below. E.g. New Haven Inclu-

sion Cases, 399 U.S. 392, 450, n.66 (1970).

Therefore, this Court should not review

this concurrent finding of fact.

As to the substance of Green's argu-

ment, the personnel handbook merely informed

employees about company benefit plans and

contained no language which could be con-

strued as an employment contract for a

fixed term. See Schroeder v. Dayton-

Hudson Corp., 448 F.Supp. 910, 916-917

-14-

(E.D. Mich. 1978) (personnal handbook held

not to be a fixed term contract, but merely

informed employees about company benefits

and policies). Green's participation in the

savings and stock bonus plan was not "inde-

pendent consideration" evidencing a contract

for a definite term, which is a state law

question not raised or considered by the

courts below and therefore not before this

Court. This plan is essentially a voluntary

payroll savings and investment plan.

Green's contributions to the plan could be

completely withdrawn at any time and,

shortly after Green's termination, the

total value of his contributions were

paid to him as required by the plan.

B. Green has no property interest f

in continued employment with

Amerada Hess.

Green argues that he has a property

interest in continued employment with

Amerada Hess. This contention has no

-15-

merit since a terminable at will employee,

such as Green, has no property interest in

his job under Mississippi law. This con-

clusion is supported by Bishop v. Wood,

supra, in which this Court stated that

"a holding that as a matter of state law

the employee ‘held his position at the will

and pleasure of the city' necessarily es-

tablished that he had no property interest."

426 U.S. at 345, n.8.

C. Green has no Fifth Amendment

due process protection regarding his

discharge by Amerada Hess.

Even if Green had a property interest

in his job with Amerada Hess, he was not

entitled to any Fifth Amendment due process

protection with respect to his discharge.

Amerada Hess is a private employer and the

Fifth Amendment places restrictions only

on the federal government, not private

parties. E.g., Public Utilities Commis-

sion v. Pollak, 343 U.S. 451, 461-62 (1951).

-16-

Only federal government employees can claim

Fifth Amendment due process protection with

respect to employment discharges. Green has

no rights under the Fifth Amendment due

process clause.

D. This Court recognizes the validity

of the terminable at will emp*oyment

relationship and will not arbitrarily

eliminate this important employment status.

Green argues that if his employment

is terminable at will under Mississippi

law, then this Court should eliminate the

terminable at will relationship in private

employment by implying a requirement that

such employees be discharged only for

cause. Thus, Green has requested this

Court to create a wrongful discharge cause

of action for employees hired for an indefi-

nite time and without a written contract.

This Court has acknowledged that the

terminable at will employment relationship

is "a recognized principle of law." National

Labor Relations Board v. Waterman Steam-

ship Corp., 309 U.S. 206, 219 (1939). This

-17-

Court further recognized in a recent case,

Andrews v. Louisville & Nashville Railroad

Co., 406 U.S. 320, 324 (1972), that "the

very concept of ‘wrongful discharge’ implies

some sort of statutory or contractual

standard that modifies the traditional

common-law rule that a contract of employ-

ment is terminable by either party at will."

Thus this Court has made it clear that it

will not create a wrongful discharge cause

of action where the discharged employee is

terminable at will as Green is.

Additionally, the terminable at will

employment relationship provides indefi-

nite term employees an equal right to

terminate their employment at any time

and without any justification or notice

to their employers. The terminable at

will rule, therefore, is fair and equitable

for both employers and employees and should

not be eliminated or modified.

-18-

som

The Single State Law Issue Properly

Presented To This Court Presents No

Conflict Of Decisions Or Important

Questions Of Federal Law.

The decision of the Court of Appeals

is not in conflict, directly or otherwise,

with the decisions of this Court or of

another Court of Appeals, or with Missis-

sippi law on the only issue that could

properly be brought before this Court -

whether Green, a terminable at will employee,

has a wrongful discharge cause of action

under Mississippi law for being discharged

for pursuing workmen's compensation rights.

This Court has not addressed this issue nor

has the Mississippi Supreme Court. The only

other court of appeals decision (and also

the only other federal court decision) on

this specific issue, Loucks v. Star City

Glass Co., 551 F.2d 745 (7th Cir. 1977),

decided this issue in complete harmony with

and employed the same analysis as the

-19-

ruling of the Court of Appeals below.

Even if there were conflicting decisions

among the circuits on this issue, this

conflict would not be a reason for granting

Green's Petition. "As to questions control-

led by state law...conflict among circuits

is not of itself a reason for granting a

writ of certiorari" since the "conflict may

be merely corollary to a permissible differ-

ence of opinion in the state courts."

Ruhlin v. New York Life Insurance Co., 304

U.S. 202, 206 (1937). Furthermore, as

Ruhlin points out, conflict among the

state courts on the wrongful discharge

3The other Court of Appeals decisions

dealing with the general issue of whether

a terminable at will employee has a cause of

action for wrongful discharge have upheld

the denial of such causes of action on sun-

mary judgment. See Sooxe v. Home Insurance

Co., 601 2d 1072, t ©.

(Wrongful discharge cause of action denied

to terminable at will employees; summary

judgment for employer affirmed) ; Crownover

v. Sears Roebuck & Co., iainais 265, 366

(6th Cir. L979) (same ho g); Hoopes v.

Equifax, Inc., 611 F.2d 134, 135 (6th Cir.

1979} (same ho

lding).

-20-

-

issue is no basis for granting the Writ

in this case. Es

The Court of Appeals has not decided

an important question of federal law which

would justify the granting of a Writ of

Certiorari. Instead, the sole issue pre-

sented to and considered by the Court of

Appeals, as well as the District Court,

concerned an interpretation of Mississippi

law. As stated above, this Court does not

grant a Writ of Certiorari to review a state

law issue interpreted harmoniously by a

district court and a court of appeals. This

rule is particularly applicable to this case

where the state law rights of a single

private individual are being litigated and

where the state law being attacked, the

terminable at will rule, is based on the

traditional common law.

Additionally, the federal question

submitted by Green - whether he was deprived

of a property interest in violation of the

Fifth Amendment due process clause - was

-21-

improperly raised for the first time in

Green's Petition. In any event, the

question has no merit! since the Fifth Amend-

ment affords no protection to private

parties such as Green. Therefore, the Writ

should be denied.

CONCLUSION

For the foregoing reasons, it is

respectfully submitted that this Petition

for a Writ of Certiorari should be denied.

Respectfully submitted,

EDMUND L. BRUNINI, JR.

JOHN E. MILNER

ROBERT G. SACHSE

Edmund L. Brunini, Jr.

Counsel for Respondent,

Amerada Hess Corporation

OF COUNSEL:

EDMUND L. BRUNINI, JR.

JOHN E. MILNER

BRUNINI, GRANTHAM, GROWER & HEWES

Post Office Drawer 119

Jackson, Mississippi 39205

ROBERT G. SACHSE

AMERADA HESS CORPORATION

Post Office Box 2040

Tulsa, Oklahoma 74102

-22-

o

CERTIFICATE OF SERVICE

I, EDMUND L. BRUNINI, JR., one of

the attorneys for Respondent, Amerada

Hess Corporation, hereby certify that I

have this day mailed the requisite number

of true copies of Amerada Hess Corpora-

tions's foregoing Brief to counsel for

David R. Green, separately represented

at their usual post office addresses, by

first class U. S. Mail, postage prepaid,

as follows: Dixon L. Pyles, Esq., Pyles

& Tucker, 507 East Pearl Street, Jackson,

Mississippi 39201; and James M. Brown,

Esq., Butler & Brown, Post Office Box

393, Laurel, Mississippi 39940.

DATED: September 2f, 1980.

bie, Pisin, fp

-23-