Petition — Mayberry v. Dees

Supreme Court brief1982

Ask Donna

What actually matters in this document.

Text

81-2191 FILET

No.

C STEVAs,

CLERK

THE

Supreme Court of the United Btates

OCTOBER TERM, 1981

ROBERT J. MAYBERRY,

WILLIAM DEES, et al.,

Respondents.

Petitioner,

PETITION FOF. A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JULIA PENNY CLARK *

ROBERT M. WEINBERG

BREDHOFF & KAISER

Suite 1300

1000 Connecticut Avenue, N.W.

Washington, D.C. 20086

(202) 833-9340

WILLIAM G. PFEFFERKORN

Jim D. CooLey

PFEFFERKORN & COOLEY

P.O. Box 43

Winston-Salem, N.C. 27102

Attorneys for Petitioner

* Counsel of Record

— U—— ——

WILSON - Eres PrinTine Co. Inc. - 789-0096 - WASHINGTON. D.C. 20001

o> ~

QUESTIONS PRESENTED

1. Whether the court of appeals acted contrary to this

Court’s decision in Mt. Healthy City Board of Education

v. Doyle, when it required petitioner to carry the burden

of proving not only that speech protected by the First

Amendment was a substantial cause of respondent’s deci-

sion to deny him tenure, but also that he would have

been granted tenure in the absence of that speech.

2. Whether the court of appeals adopted rules that

violate the fundamental principles this Court has estab-

lished to define the respective functions of judges and

juries, when it weighed the evidence for itself and in the

course of doing so:

a. held that an issue cannot be submitted to a jury

if in the court’s view the evidence on that issue is

evenly balanced; and

b. determined that the evidence was not sufficient to

support the jury’s verdict by means of a “statistical”

analysis, assigning arbitrary numerical values to the

plaintiff’s likelihood of success on two factual issues, and

multiplying them together to obtain a single numerical

value that the court found was “less than a scintilla.”

(i)

LIST OF PARTIES

In addition to the parties named in the caption, the

following persons were defendants in the district court,

were appellees and cross-appellants in the court of ap-

peals, and are respondents here:

William Friday

Robert Morgan

Leo W. Jenkins

Robert L. Holt

Robert W. Williams

Richard Capwell

Joseph Fernandez

There were no other parties to this proceeding in the

court of appeals.

TABLE OF CONTENTS

QUESTIONS PRESENTED...

LIST OF PARTIES

TABLE OF AUTHORITIES ..................---.---0-0--0

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVI-

e —

STATEMENT OF THE CASE ....................................

The Evidence Relating to the Causation Issues....

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

I. THE COURT OF APPEALS’ ALLOCATION

OF THE BURDEN OF PROOF IS CONTRARY

TO THE DECISION OF THIS COURT IN

MT. HEALTHY CITY BOARD OF EDUCA-

„

II. THE RULES THAT THE COURT OF AP-

PEALS ADOPTED AS GROUNDS FOR

OVERTURNING THE JURY VERDICT IN

THIS CASE VIOLATE THE FUNDAMENTAL

PRINCIPLES THAT DEFINE THE RESPEC-

TIVE ROLES OF JUDGES AND JURIES IN

THE FEDERAL SYSTEM ..

aA “a @ © WwW

TABLE OF AUTHORITIES

CASES Page

Aluminum Co. of America v. Preferred Metal

Prods., 87 F.R.D. 218 (D.N.J. 1965), aff'd,

354 F.2d 658 (CAS 1966)))))))))))): 18

Armstrong v. Commerce Tankers Corp., 311 F.

Supp. 1236 (S.D.N.Y. 1969), aff'd on other

grds, 423 F.2d 957 (CA2 1970), cert. denied,

rr. 19

Calvert v. Katy Tazi, Inc., 418 F.2d 841 (CA2

Farne 19

Carolina Life Ins. Co. v. Williams, 210 F.2d 477

(CA5), rev’d without opinion, 348 U.S. 802

% 18

Connick v. Myers, No. 81-1251, petition for cert.

granted, 50 U.S.L.W. 8715 (Mar. 8, 1982) 18

Continental Ore Co. v. Union Carbide & Carbon

Corp., 870 U.S. 690 (1962) .................-....--..---00---- 14, 15

Corinne Mill, Canal & Stock Co. v. Toponce, 152

ee 15

Epoch Producing Corp. v. Killian Shows, Inc.,

522 F.2d 787 (CA2 1975), cert. denied, 424 U.S.

TEESE TIES SNE OE ae 18

Ford Motor Co. v. Mondragon, 271 F.2d 842 (CA8

„ ö 19

Galloway v. United States, 319 U.S. 372 (1943) 15

Greene v. Morelli Bros., 468 F.2d 725 (CAS

1 19

Gunning v. Cooley, 281 U.S. 90 (19380) 3 21

Haldeman v. Bell Tel. Co., 887 F.2d 557 (CA8

c 18

Jellison v. Kroger Co., 290 F.2d 188 (C A6 1961) 19

Lavender v. Kurn, 827 U.S. 645 (194) 15

Montgomery Ward & Co. v. Duncan, 311 US.

r 14

Mt. Healthy City Board of Education v. Doyle,

, ñ passim

Myers v. Reading Co., 881 U.S. 477 (19477 14

NLRB v. Marcus Trucking Co., 286 F.2d 583 (CA2

1961) 19

TABLE OF AUTHORITIES—Continued

Page

Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333

5 17.20

Phillips v. SEC, 388 F.2d 964 (CA2 1968) ............ 18

Pittman v. West American Ins. Co., 299 F.2d 405

r 19

Seganish v. District of Columbia Safeway Stores,

406 F.2d 658 (CA DC 196) 19

Schulz v. Pennsylvania R. Co., 350 U.S. 523

RRR PE r 20

South-East Coal Co. v. Consolidation Coal Co.,

BR SS Se 19

Tennant v. Peoria & P. U. Ry., 321 U.S. 29

(19443) 3 14, 17-20

Voegeli v. Lewis, 568 F.2d 89 (CA8 1977) 21

Weil v. Keshner, 300 F.2d 500 (CA8 1962) 19

Wratchford v. S. J. Groves & Sons Co., 405 F.2d

11 0 19

Yeager v. J. R. Christ Co., 364 F.2d 96 (CA8

——A A Re ee Pee 19

MISCELLANEOUS

9 Wright & Miller, Federal Practice and Proce-

J PTC 14, 19

L. Cohen, The Probable and the Provable (1977) 22

W. Hays, Statistics (3d ed. 1981) 22

STATUTES

28 U.S.C.

111 3

„ 3

IN THE

Supreme Court of the United States

OcToBER TERM, 1981

No.

ROBERT J. MAYBERRY,

WILLIAM DEEs, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner,

Robert J. Mayberry respectfully petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Fourth Circuit entered in this

case on November F, 1981.

OPINIONS BELOW

The judgment of the district court is unreported; it is

printed herein as Appendix C (50a-53a). The opinion

and order of the district court denying the parties’ post-

judgment motions is also unreported; it is printed herein

as Appendix B (38a-49a). The opinion of the court

of appeals is reported at 663 F.2d 502 (CA4 1981), and

is reprinted herein as Appendix A (la-37a).

JURISDICTION

The court below entered judgment on November 5,

1981, Appendix D (54a), and denied a timely petition

for rehearing on December 28, 1981, Appendix E (55a).

On March 18, 1982, Chief Justice Burger extended the

time for filing this petition to and including May 27,

982, Appendix F (56a).

This Court has jurisdiction to review the judgment of

the court of appeals by certiorari, pursuant to 28 U.S.C.

$1254(1).

—

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U.S. Constitution, Amendment I, provides in pertinent

part as follows:

Congress shall make no law. . . abridging the free-

dom of speech . . or the right of the people peace-

ably to assemble, and to petition the Government for

a redress of grievances.

U.S. Constitution, Amendment VII, provides as fol-

lows:

In suits at common law, where the value in con-

troversy shall exceed twenty dollars, the right of

trial by jury shall be preserved, and no fact tried

by a jury shall be otherwise re-examined in any

Court of the United States, than according to the

rules of the common law.

Federal Rules of Civil Procedure, Rule 38(a), pro-

vides :

The right of trial by jury as declared by the Seventh

Amendment to the Constitution or as given by a

statute of the United States shall be preserved to

the parties inviolate.

STATEMENT OF THE CASE

In the spring of 1972 petitioner Robert J. Mayberry,

faculty member in the department of romance lan-

guages of East Carolina University (“ECU”), was de-

nied tenure by respondents, all of whom were ECU offi-

cials. ECU is a state university located in Greenville,

orth Carolina. Petitioner filed this action, alleging that

! HH ee 1

e I fe l,

32 192 2313 334 i 1 Ht

i e i julie HH

e ih a

Hae ata

il PH is litt 11 Al

was undisputed that Fernandez’s recommendation was

the sole cause of the denial of tenure. The proof at trial

thus focused on whether Fernandez, in making that

recommendation, meant to retaliate against Mayberry for

his critical speech in connection with the Self-Study.

The key evidence at trial was testimony that Fernan-

dez, on three separate occasions, had stated that he

would not give tenure to Mayberry because Mayberry

was a “troublemaker,” referring to the criticism in con-

nection with the Self-Study. The first of those three state-

ments was related by Thomas Williams, a professor in the

department. He testified that shortly before the tenure

decision he recommended to Fernandez that Mayberry

be given tenure. Fernandez responded that “Professor

Mayberry was out of the question because he was a

troublemaker” (Tr. 177). The second statement was

also related by Williams. A few weeks after the first

conversation, and shortly after the tenure decision, Wil-

liams asked Fernandez to reconsider the denial of tenure

to Mayberry. Williams testified:

At that time, Professor Fernandez said to me, “No.

Professor Mayberry was a troublemaker,” and then

he went on to specify that during the Self-Study,

Professor Mayberry had said and made critical re-

marks about the Department and that he could not

have somebody like that tenured in the Department.

(Tr. 177-78). Fernandez made the third statement about

six weeks after the denial of tenure. Mayberry’s wife

testified that Fernandez called her into his office. She

directly asked Fernandez why he had recommended that

her husband be denied tenure. Fernandez answered by

saying that Mayberry was a “troublemaker,” who had

been “going around the Department stirring up trouble”

for Fernandez in connection with the Self-Study.“

* The full text of Mrs. Mayberry’s account of this statement is

as follows:

I asked why he had been so cruel as to grant me a job and

not my husband. He waved a copy of the self-study at me and

Other evidence supported petitioner’s allegation that

Fernandez acted out of a retaliatory motive. In May

1972, immediately following the denial of tenure, May-

berry complained of that decision within ECU channels.

While that complaint was pending, Fernandez called peti-

tioner into his office. He angrily described Mayberry’s

actions during the Self-Study as “stirring up trouble,”

and added that if Mayberry continued “to cause him

trouble” he would not allow him to complete the academic

year but would fire him before his contract expired (Tr.

121-22).

Finally, there was evidence that Fernandez’s explana-

tion of his recommendation against tenure was only a

pretext. Fernandez testified that his department was

over-staffed, and for that reason he could not recom-

mend tenure for Mayberry. Four other faculty members

were up for tenure at the same time, however, and he

recommended tenure for all of them. He testified that in

his judgment Mayberry, of the five, was the least deserv-

ing of tenure. Two of those that he recommended for

tenure, however, had only master’s degrees while May-

berry had a Ph.D., and Fernandez conceded that it was

ECU’s policy to upgrade its faculty by trying to grant

tenure only to persons with doctoral degrees. Fernandez

also conceded that he had advised nontenured faculty

members the preceding year that they could not expect

to be considered for .wnure without a Ph.D.

——

began reading comments from it. He said “I could read be-

tween the lines. I knew who made these comments. I knew

yéur husband was a troublemaker; that t was your husband

who was going around the Department stirring up trouble for

me and having people make these comments.”

“But now, I wonder if maybe you were the one, that you

were also critical.”

(Tr. 36-37).

The Distriet Court Proceedings

Respondents moved for a directed verdict at the end of

Mayberry’s case and at the close of all the evidence; both

motions were denied, and petitioner’s claims were sub-

mitted to the jury. The jury returned a verdict on special

interrogatories, finding: (1) that the decision not to con-

tinue Mayberry’s employment was “motivated and sub-

stantially caused by [hie] criticism of his Department

Chairman,” (2) that respondents would not have taken

the same action in the absence of that criticism; and

(3) that Mayberry should recover actual damages, as

well as $5,000 in punitive damages from Fernandez as

an individual (50a-51a).' Respondents moved for judg-

ment notwithstanding the verdict or in the alternative

for a new trial. The district court denied the motions,

holding that the jury’s verdict was supported by the evi-

dence (47a-48a). Respondents appealed this ruling to

the Court of Appeals for the Fourth Cireuit.“

The Decision of the Court of Appeals

The court of appeals reversed the judgment. The court

held that Mayberry’s criticism of Fernandez in connec-

tion with the Self-Study was protected by the First

The jury was not asked to fix the amount of actual damages;

by stipulation of the parties the trial judge fixed the actual damages

at the sum of $81,885—the salary that Mrs. Mayberry had earned

in the five years between the end of petitioner’s employment at

ECU and the trial (51a-52a).

* Respondents raised several other issues on appeal, and Mayberry

cross-appealed on issues pertaining to relief. The only questions

that the court of appeals addressed in its decision were (1) whether

Mayberry’s criticism of Fernandez was protected speech, and (2)

whether the evidence was sufficient to support the jury's finding

that Mayberry’s rights were violated.

Amendment (14a, 34a-35a), but concluded that the evi-

dence was not sufficient to support the verdict for May-

berry on the question whether that protected speech was

the reason for Fernandez’s recommendation to deny

tenure. On the latter issue—the causal relation between

the speech and the denial of tenure—the court held that

Mayberry had to carry the burden of proof on two

factual issues: (1) that respondent Fernandez knew

about the protected speech before making the recommen-

dation to deny tenure, and (2) that without the pro-

tected speech Mayberry would have been given tenure

(18a-19a). With that hoiding as a predicate, the court

of appeals examined the record and held that on each

of these issues considered alone the evidence was weak

or inadequate, and that, in any event, with the two issues

combined in a “statistical” analysis—assigning numeri-

cal values to Mayberry’s likelihood of success on each of

the two issues and multiplying them together—the proba-

bility that petitioner’s allegations were true on both

issues was too small to support the jury’s verdict. In

order to understand the court of appeals’ decision, it is

necessary to describe briefly the essential steps in the

court’s analysis.

1. The court held that the testimony describing Fer-

nandez’s admissions was not sufficiently probative to

support the jury’s verdict on either of the two issues.

Rejecting Mayberry’s contention that the jury properly

could find that Fernandez had admitted his unconstitu-

tional motive, the court held that that argument was

“simply too thin, considering the evidence as a whole”

(15a). To the court, Fernandez’s remarks were “much

more probative” of respondents’ contention that Fernan-

dez had not learned of Mayberry’s criticism until after

the denial of tenure (id.; emphasis added).

This statement was made in support of the court’s rejection of

the second and third admissions, but not of the first (which pre-

ceded the recommendation to deny tenure and thus could not be

explained as evidence of after-acquired knowledge). The court of

2. Disregarding the testimony of Fernandez’s out-of-

court admissions, the court stated that the only evidence

relevant to the issue whether Fernandez knew of May-

berry’s protected speech at the time of his recommenda-

tion was Fernandez’s admission on the witness stand that

he “possibly” knew (12a, 14a).* The court of appeals

held that this in-court admission was not sufficient to

support the jury’s verdict, saying that an issue on

which the evidence is evenly balanced cannot be sub-

mitted to the jury:

A statement that one possibly knew implies that he

possibly did not know, leaving things very close to

an even balance. Chief Judge Sobeloff put it well

appeals ruled out the first admission as a basis for the jury’s ver-

dict on the different ground that while Fernandez used the word

“troublemaker” on that occasion to describe his reason for not

giving Mayberry tenure, he did not explain at that time what

he meant by it (12a). The court said that there was “no showing”

that Fernandez used that word in reference to the Self-Study

criticism (id.).

That admission was made in the following context. In the

course of his direct examination, Fernandez testified that he di

not learn of petitioner’s criticisms until after he had recommended

denial of tenure. The district court interposed and asked a series

of pointed questions :

‘THE COURT: Had the tenure decision been made when this

information came to your attention?

THE WITNESS: Yes, sir. The memorandum—

THE COURT: (Interposing) I am not talking about the

memorandum. I am talking about any information that had

been critical of you.

THE WITNESS: It had been made in my mind.

THE COURT: Had any information that this Plaintiff May-

berry had been critical of you come to your attention before

your decision concerning his tenure?

THE WITNESS: Possibly, yes. (Tr. 287-88).

At 12a-13a the court of appeals quoted Fernandez’s later attempt

to explain this admission.

when he observed that an issue can only be submitted

to the jury when it is supported by “[e]vidence

a shows a ‘probability’ and not a mere ‘pos-

sibility.’ ”

(14a-15a).

3. After similarly weighing the evidence on the issue

whether Mayberry would have been granted tenure in

the absence of his protected speech,“ the court of appeals

looked at the two issues in combination. The court as-

sumed that the evidence “on either factor, standing

alone, while weak, still . . would have sufficed for a

jury verdict in Mayberry’s favor” (18a). The court then

used a “statistical” analysis to determine whether the

evidence was adequate to carry petitioner’s burden on

the two issues combined. It assigned a 5% “value” to

petitioner’s likelihood of success on one issue, and 8%

to the other, then multiplied them together. That

The court of appeals found that the evidence on this issue

strongly favored respondents. See 14a, 19a, 30a n.35. The court

gave particular emphasis to an evaluation signed by Fernandez in

May 1971 (but not mentioned in his testimony) that stated, “If

reduction in staff is forced upon us, would hesitate to give [May-

berry] tenure. Otherwise, would not object” (7a). Because Fernan-

dez testified that departmental overstaffing in 1972 made it neces-

sary to deny tenure to one of the five candidates and that in his

opinion Mayberry was the least worthy of the five candidates

(18a n.19), the court of appeals concluded that there was “an abun-

dance of proof” and a “strong probability” that Mayberry would

have been denied tenure in any event (19a; 30a n.35). (As we show

in note 17, infra, all of this evidence depended on Fernandez’s

credibility.)

10 It is not entirely clear from the court’s opinion what likelihoud

the probability figures were supposed to reflect. The court seemed

at one point to refer to the likelihood that petitioner could satisfy

the jury that his contentions were true (see 18a), and at another

point to refer to the likelihood that those contentions in fact were

true (see 19a). The difference is immaterial, however, because the

method of analysis is invalid in either case (see pages 20-22, infra).

process yielded a value of 0.004 for the causality per-

centage of the case.” To the court, that figure was “less

than a scintilla” and required the conclusion that peti-

tioner had not met his burden of proof (18a-19a)." The

court summarized its holding on this point by saying:

All in all, therefore, both obstacles in Mayberry's

path, combined, have proven too much for him to

overcome, even assuming that, had but one of thein

existed, his evidence would have been sufficient to

surmount it.

(19a; emphasis added).

REASONS FOR GRANTING THE WRIT

The court of appeals refused in this case to follow this

Court’s established rules in two crucial respects. First,

its ruling that Mayberry had the burden of proving that

he would have been granted tenure in the absence of his

protected speech is directly contrary to the rules this

Court adopted in Mt. Healthy City Board of Education

. 274 (1977). Second, the court of

appeals refused to follow the fundamental principles that

this Court has fashioned to govern the allocation of func-

tions between judges and juries in the federal courts.

u The passage in which the court of appeals described this

analysis reads as follows:

Let us, as best we may, recognizing that we thereby substitute

an apparent simplicity for an actual complexity, assign values

of 5% and 8% likelihood respectively. If one of them had

been at the virtual certainty level, the case would hold at the

5% to 8% range of probability. But both were far from the

another way, it is 99.6% certain that denial of tenure was not

associated with the protected criticism. In the real, everyday

world, the residual 4/10s of 1% is less than a scintilla, and the

case falls for failure of proof.

(18a-19a ; footnote omitted).

Specifically, the court of

if it were sitting as the trier of and, in the course

of doing so, announced two rules that expressly contem-

plate such a weighing of the evidence. The first i

that was long ago disapproved by this Court, that a

governing precedents

jury’s function.

I, THE COURT OF APPEALS’ DECISION IS CON-

TRARY TO THE DECISION OF THIS COURT IN

MT. HEALTHY CITY BOARD OF EDUCATION V.

DOYLE

In Mt. Healthy City Board of Education v. Doyle,

429 U.S. 274 (1977), this Court adopted rules to gov-

ern allocation of the burden of proof in cases exactly

like this one. The Court held that the plaintiff’s burden

is to prove by a preponderance of the evidence that

speech protected by the First Amendment was a “sub-

stantial” or “motivating” factor in the defendants’ deci-

sion not to renew his employment. 429 U.S. 287. If the

plaintiff carries that burden, the defendant may attempt

to prove that “it would have reached the same decision

as to [plaintiff’s] re-employment even in the absence of

the protected conduct.” Id. The burden is on defendants

to prove this second proposition by a preponderance of

the evidence. Id. No different rule applies in the case

of a decision to deny tenure; in Mt. Healthy itself a

decision to renew would have conferred tenure on the

plaintiff, and the Court took this factor into account in

deciding where to lay the burden of proof. Id. at 286.

The jury in this case was properly instructed in

accordance with the rules of Mt. Healthy, and petitioner’s

brief in the court of appeals clearly described those rules

and their application here.” Nonetheless, the court of

appeals did not follow Mt. Healthy, but instead imposed

upon Mayberry the burden of proving by a preponder-

ance of the evidence, as part of his case in chief, that

The jury instructions appear at Tr. 523-25; the petitioner’s

discussion of the issue is in Reply Brief for Plaintiff-Appellant, at

14-16.

18 The clearest statements of the court’s assignment of this bur-

den to Mayberry appear in the “causality” section of the opinion

and at the end. As we described above, at page 8, when the

court undertook its “statistical” analysis, it identified two elements

of “the causality percentage of he case, for which Mayberry, as

plaintiff, had the burden of proof” (19a) but had failed to prove:

one of those elements was petitioner’s likelihood of receiving

tenure in the absence of the protected speech (18a). Later in the

opinion, the court cited Mt. Healthy and discussed it, stating that

because of petitioner’s “failure to prove essential items of [his]

case in chief” the question of a “burden shift” to defendants did not

arise (30a n.35). Finally, in holding petitioner’s speech protected,

the court further underscored its assignment of the burden to

petitioner, saying :

We are loath to say that there was no First Amendment

dimension whatever to utterances by Mayberry so that, even

had the evidence sufficed to support a finding that, if May-

berry's criticisms had not been made, Fernandez demonstrably

was prepared to recommend him favorably for tenure, still

Mayberry could not have recovered.

(35a; emphasis added). See also 14a, 34a.

14 The same basic issue was raised in the petition for certiorari

in Connick v. Myers, No. 81-1251, petition for cert. granted, 50

U.S.L.W. 3715 (Mar. 8, 1982). In Connick the lower courts applied

the Mt. Healthy rule, and the petitioner’s third “question presented”

appeared to seek reconsideration of the Mt. Healthy burden-of-proof

rules. The petitioner’s brief in Connick has now been filed, and it

does not argue for reconsideration of those rules. Brief for Peti-

tioner in No. 81-1251, at 12-14.

II. THE RULES THAT THE COURT OF APPEALS

ADOPTED AS GROUNDS FOR OVERTURNING

THE JURY VERDICT IN THIS CASE VIOLATE

THE FUNDAMENTAL PRINCIPLES THAT DE-

FINE THE RESPECTIVE ROLES OF JUDGES AND

JURIES IN THE FEDERAL SYSTEM.

The most fundamental principle in the federal system

concerning the allocation of functions between judge

and jury is that it is the exclusive province of the jury

to weigh the evidence. Continental Ore Co. v. Union

Carvide & Carbon Corp., 370 U.S. 690, 700-01 (1962) ;

Tennant v. Peoria & P. U. Ry., 321 U.S. 29, 35 (1944).

In order to preserve the jury’s exclusive right to re-

solve disputed issues of fact, this Court has fashioned

rules that restrict the inquiry of the trial court when

it is called upon to take a case away from a jury by

directed verdict or to set aside a verdict by judgment

n.o.v. The same rules that govern the trial court’s deci-

sion in regard to those motions also govern the inquiry

of a court of appeals in reviewing the grant or denial

of a directed verdict or judgment n. o.v.“ See Continental

Ore Co., supra, 370 U.S. at 696 n.6; Montgomery Ward

& Co. v. Duncan, 311 U.S. 248, 251 (1940); 9 Wright

& Miller, Federal Practice & Procedure § 2524, at 541-42

(1971). Under those rules, the role of the court is not

to decide how it would weigh the evidence if it were

in the jury’s place, but only to determine whether the

record contains probative facts that rationally support

the jury’s verdict, Myers v. Reading Co., 331 U.S. 477,

% The practical difference, of course, is that on motion for di-

rected verdict the district court is to decide whether the evidence

properly could support a verdict for the opponent of the motion,

while on motion for judgment n.o.v. the question is whether the

evidence properly supports the verdict that the jury reached. The

discussion in text is cast primarily in terms of setting aside a

verdict—since that is what the court of appeals did here—but the

rules the court announced would lead equally to a decision to take

the issue away from the jury in the first place by directing a

verdict.

485 (1947), giving the evidence all the inferences that

can reasonably be drawn consistent with the verdict.

Continental Ore Co., supra, 370 U.S. at 696; Galloway

v. United States, 319 U.S. 372, 395 (1943). If the rec-

ord does contain probative evidence that supports the

jury’s verdict, the existence of contrary evidence—no

matter how persuasive it may be to the court—is irrele-

vant. Lavender v. Kurn, 327 U.S. 645, 652-53 (1946) ;

Corinne Mill, Canal & Stock Co. v. Toponce, 152 US.

405, 408-09 (1894). These prinviples are, at least in

part, guaranteed by the Sevench Amendment. Galloway

v. United States, supra, 319 U.S. at 394-96.

The court of appeals departed from these fundamental

principles in this case. Its basic error was in weighing

the evidence for itself. In doing so, the court of appeals

not only violated these fundamental principles itself, but

it also announced two rules of law that have the effect of

authorizing the lower courts to violate them as well.

A. Throughout its opinion the court engaged in a

frank process of weighing the evidence to its own satis-

faction: rejecting evidence that supported the jury’s

verdict as “very weak” (14a) or “attenuated” (19a), or

as entitled to “[n]o great weight” (16a); and concluding

that evidence contrary to the jury’s verdict constituted

an “abundance of proof” (30a n.35), or established a

“strong probability” (19a). The court’s treatment of

Fernandez’s three admissions of improper motive is the

clearest example—and the one most crucial to the out-

come—of the court’s weighing of the evidence.

Under the established rules for review of jury verdicts,

the jury was entitled to believe the testimony of peti-

tioner’s witnesses that Fernandez on three occasions had

admitted that Meyberry’s protected speech was his rea-

son for not recommending tenure.” That testimony, if

% Although in the first of the three statements Fernandez did

not explain his use of the term “troublemaker,” he explicitiy re-

believed by the jury, was enough by itself to support the

against Fernandez and found that he had admitted an

improper motive, it could properly infer from that fact

alone, or in combination with other relevant evidence,

that Fernandez’s assertion that petitioner was the “least

worthy” candidate for tenure was only a pretext.“

The court of appeals did not hold that the jury was

somehow foreclosed from drawing these inferences from

ferred to petitioner’s Self-Study activities in explanation of the

term “troublemaker” in the second and third statements. The jury

was entitled to infer that his use of that word meant the same

thing on all three occasions.

1T All of the evidence respondents offered in supvort of this con-

tention depended on Fernandez’s credibility. Fernandez’s conclu-

sory statement that Mayberry was the least worthy candidate for

tenure was not backed up by any specific testimony comparing May-

did not (6a-7a), they did not offer the corresponding evaluations

the successful tenure candidates. Moreover, those anonymous

zi!

rit

and were before Dr. Fernandez and considered by him

they were worth in making his determination if you [the

find that he made any reference to them at all.” (Tr 26 366).

in regard to the evaluation that Fernandez signed in May 1971 (

note 9, supra), the jury’s apparent decision not to credit it

be explained by the fact that Fernandez did not mention that

ation in his testimony, not even so much as to identify the

ment.

1151

323441 1 8

112 HH Kbit 41

ube i AE > 10 5 Dé E25 3525

3 8 we se 383 3 Fs 1111 12 : ws

Fae ATE AB

i 12 HH 33 1335 E 5 11217 35

3522 215 a TL pegditeil2

27211 282 J 155 111215•

i tact [Ua uel

: HTT HT 0 eli ,

481111127 1257 1111 12 5 THut !

evenly balarced. I. a passage that seems to be addressed

specifically to Chamberiain, but which does not cite it, the

Court said:

judgmen

Life Ins. Co. v. Williams, 210 F.2d 477 (CA5), rev'd

without opinion, 348 U.S. 802 (1954).

The “even balance” rule announced by the court of

appeals in this case authorizes what Tennant forbids. In

1% It is well accepted that if the trier of fact finds that the evidence

is in equal balance, it must return a verdict against the with

the burden of persuasion. See, e. ., Phillips v. SEC, 2d 964,

970-71 (CA2 1968). In addition, if a trial court concludes, without

Producing Corp. v. Killian Shows, Inc., 522 F.2d 737, 744-45

(CA2 1975), cert. denied, 424 U.S. 955 (1976); Haldeman v. Bell

Tel. Co., 387 F.2d 557, 559 (CA3 1968) ; Aluminum Co. of America

v. Preferred Metal Prods., 37 F.R.D. 218 (D.NJ. 1965), aff'd, 354

F.2d 658 (CA3 1966).

The court of appeals in this case is not the only court

to make this error. Even though a majority of the

courts have understood that this Court’s

20 See, e.g., Wratchford v. S. J. Groves & Sons Co., 405 F.2d 1061,

1067 (CA4 1969); Yeager v. J. R. Christ Co., 364 F.2d 96, 100

(CAS 1966); NLRB v. Marcus Trucking Co., 286 F.2d 583, 592

n.8 (CA2 1961); 9 Wright & Miller, Federal Practice and Proce-

dure, § 2528, at 567-69.

21 See, e. g., Pittman v. West American Ins. Co., 299 F.2d 405,

411 (CA8 1962); Jellison v. Kroger Co., 290 F.2d 183, 185-86

(CA6 1961); Ford Motor Co. v. Mondragon, 271 F.2d 342, 345

(CA8 1959); Armstrong v. Commerce Tankers Corp., 311 F.Supp.

1236, 1240-41 (S.D.N.Y. 1969), aff'd on other grds, 423 F.2d 957

(CA2 1970), cert. denied, 400 U.S. 833 (1971). There are other

cases in which a court cited the Chamberlain rule as the law, but

did not apply it to overturn a jury verdict. F. g., South-East Coal

Co. v. Consolidated Coal Co., 434 F.2d 767, 777 (CA6 1970) ; Cal-

vert v. Katy Tazi, Inc., 413 F.2d 841 (CA2 1969); Seganish v.

District of Columbia Safeway Stores, 406 F.2d 653, 656 n.21 (CA

DC 1968); Weil v. Keshner, 300 F.2d 500, 503-04 (CA8 1962).

There are yet other cases in which a court cited the Chamberlain

“equal inferences” rule and overturned a jury verdict, but it is diffi-

cult or impossible to tell whether that rule was the basis for the

decision. F. g., Greene v. Morelli Bros., 463 F.2d 725, 729 (Cs

1972).

other device for the court to reweigh the evidence. There

is no way that a court can select numerical values that

have an objective relation to the facts of

figures selected for that purpose will be arbitrary figures

that merely reflect the court’s subjective assessment of

the evidence.

Moreover, even if there were an objective way for a

court to derive numerical figures without weighing the

evidence for itself, such mathematical probabilities have

no legitimate role in deciding cases like this one. As

this Court has observed, the function of jurors is not to

strive for “mathematical certainty,” but to apply their

cumulative knowledge, wisdom, and common sense to the

evidence they are given. Schulz v. Pennsylvania R. Co.,

350 U.S. 523, 526 (1956). The likelihood that one party

rather than the other will succeed in persuading a jury

to its point of view cannot be a factor in a court’s assess-

ment whether the facts rationally would support a ver-

dict for either party. The trial judge may think it

highly improbable that the jury will believe a particular

3.33

11115

nit

sufficiency of evi-

separately the evidence relevant to

. If

issues, the case is submitted to the

court believer he evidence to be weaker on

n on others, that fact is immaterial; it is

11132

ty to decide whether it will find

the jury’s

58 plaintiff on one issue or on all. The method used

eee

requiring a determination of the combined likelihood of

winning on all the necessary issues as a prerequisite for

submission to the jury. The fallacy of this approach can

be seen by considering a case in which the plaintiff must

prove a number of discrete elements in order to win. If

the number of elements is large enough, multiplying

th only four discrete

a probability of 25%,

IAI suena abel’ mean

of less than 4 in 1,000—by the court’s analysis here, “less

than a scintilla.”

each issue will make it ex-

8 tte

21111

The court’s multiplication of the probability figures in

this case is, moreover, contrary to accepted principles

* See, e. g., Tennant, supra, 321 U.S. at 32-34; Gunning v. Cooley,

281 U.S. 90, 95 (1930); Voegeli v. Lewis, 668 F.2d 89, 94 (CA8

1977).

of statistical analysis. Multiplying separate probabilities

to obtain a value for the combined probability of two

events is proper only when the two events are independ-

ent. See, e.g., L. Cohen, The Probable and the Provable

51-52, 61 (1977); W. Hays, Statistics 42-44 (3d ed.

1981). In this case, as in many cases, the issues are

not independent, but are linked because they depend

to a large extent on the same evidence and the

credibility of the same witnesses. The question of

Fernandez’s knowledge, and the question whether Fer-

nandez would have recommended tenure for plaintiff

in the absence of the protected speech, both rested sub-

stantially on Fernandez’s testimony. Because the jury’s

view of his credibility would influence the outcome of

both issues, they were not independent. See id., at 42-43.

Multiplying the probabilities of those two issues, there-

fore, is statistically improper.

If the court of appeals’ decision is allowed to stand, the

rule of law applicable in the Fourth Circuit will be in

fundamental conflict with the decisions of this Court.

The district courts in that circuit, if not elsewhere, will

be encouraged by the court of appeals’ rules to weigh the

evidence for themselves and, based upon their own weigh-

ing of the evidence, to remove issues from jury consid-

eration or to set aside verdicts once they are returned.

The writ of certiorari should be granted in this case in

order to maintain conformity with this Court’s decisions

and to preserve the meaning of the Seventh Amendment’s

guarantee of the right to jury trial.

23 As the sources cited in the text show, a different formula must

be used when the events are not independent. F.., L. Cohen, The

Probable and the Provable 61.

CONCLUSION

For the foregoing reasons, the writ of certiorari

should be granted.

Respectfully submitted,