Opposition Brief — Thomas v. Bliss & Laughlin Steel Co.

Supreme Court, us]

No. Or) vt ED

In The JUN 14 1991

Supreme Court of the United ten —

-

_—

October Term, 1990

ALBERT THOMAS,

Petitioner,

vs.

BLISS & LAUGHLIN STEEL CO.,

Respondent.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Seventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

WILLIAM R. SULLIVAN, JR.

Counset of Record

CAMILLE A. OLSON

TIMOTHY P. PAYNE

SEYFARTH, SHAW, FAIRWEATHER

& GERALDSON

Attorneys for Respondent

Suite 4200

55 East Monroe Street

Chicago, Illinois 60603

(312) 346-8000

$30

tz * NJ (201) 257-6850+(800) 3 APPEAL *NY (212) 840-4640¢MA (617) 542-1114

TARP stSe ime. DC (202) 783-7288¢PA (215) 925-6500*USA (800) 5 APPEAL

QUESTION RESTATED

Whether this Court should review a factual determination

made by the United States District Court for the Northern District

ot Illinois that was affirmed by the United States Court of Appeals

for the Seventh Circuit?

ul

STATEMENT REQUIRED BY RULE 29.1

Respondent Bliss & Laughlin Steel Company is a subsidiary

of Bliss & Laughlin Industries Inc. More than 10 percent of Bliss

& Laughlin Industries Inc.’s issued and outstanding stock is owned

by Stelco, Inc., which is a publicly held corporation, and Mr.

Gregory Parker, an individual.

ili

TABLE OF CONTENTS

Page

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Statement Required by Rule 29.1 .............-222000- ii

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Reasons for Denying the Writ ........................ 4

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TABLE OF CITATIONS

Cases Cited:

Berenyi v. Director of Immigration and Naturalization

ee 5

Blau v. Lehman, 368 U.S. 403 (1962).................. 5

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)..... 5

Rodgers v. Lodge, 458 U.S. 613 (1982) ................ 5

Statutes Cited:

SoG cbs evesd OPE Kad bass ecsrees 2

iv

Contents

42 U.S.C. § 1981 .

42 U.S.C. § 2000e ef seq.

Other Authorities Cited:

S. Ct. Rule 10.1

Federal Rule of Appellate Procedure 28....

No. 90-1752

In The

Supreme Court of the United States

October Term, 1990

ALBERT THOMAS,

Petitioner,

VS.

BLISS & LAUGHLIN STEEL CO.,

Respondent.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Seventh Circuit

RESPONDENT'S BRIEF IN OPPOSITION

The petition for writ of certiorari is meritless. The United

States District Court for the Northern District of Illinois, after

a full trial on the merits, held that respondent’s stated reasons

for terminating petitioner were not pretextual and that age was

not a determining factor in respondent’s decision to terminate

petitioner’s employment. After a careful review of the entire record

on appeal, the United States Court of Appeals for the Seventh

te

Circuit affirmed that holding. Petitioner presents no issue

appropriate for review by this Court. See Supreme Court Rule

10.1.

COUNTERSTATEMENT OF THE CASE

On December 12, 1986, petitioner filed a two-count complaint

with the United States District Court for the Northern District

of Illinois, Eastern Division (Docket No. 86 C 9949). Count I

of petitioner’s complaint alleged that Bliss & Laughlin Steel

Company had discharged petitioner on the basis of his age in

violation of the Age Discrimination in Employment Act

(*“‘ADEA’’), 29 U.S.C. § 621, ef seg. Count II of petitioner’s

complaint alleged that petitioner was discharged on the basis of

his race in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, ef seg. and 42 U.S.C. § 1981.

On August 18, 1989, in a lengthy opinion by Chief Judge

James B. Moran, the District Court for the Northern District of

Illinois granted respondent’s motion for summary judgment with

regard to Count II of petitioner’s complaint and denied summary

judgment with regard to Count |. The District Court found that

there was no evidence to support a race discrimination claim other

than petitioner’s own perception, and thus dismissed Count II

(Petitioner’s Appendix, A24). With regard to Count I, petitioner

alleged that at the time of his termination, respondent’s manager

stated, ‘‘the Company had decided to go with the youngest and

best educated employees.’’ (A23). The District Court determined

that taking petitioner’s testimony as true for the purposes of the

motion, it was sufficient to defeat the motion for summary

judgment (A24). The case thereafter proceeded to trial on the

merits of Count I of petitioner’s complaint.

After a full trial on petitioner’s allegations of age

discrimination, the jury did not reach a verdict. By agreement,

a

the parties allowed the court to render a decision. The court found

in favor of respondent and issued a memorandum and order on

September 11, 1990 (A47).

The District Court found that petitioner’s strongest support

for his claim of age discrimination was the statement allegedly

made by respondent’s manager at the time petitioner was informed

of his termination. The court concluded that some statement was,

in fact, made. However, the court made a specific factual

determination that the statement was an expression of the

company’s desire for maximum flexibility and the manager’s

conclusion that the petitioner did not provide it, rather than an

expression of age bias (A52). The court also stated that after

observing petitioner at trial and hearing him testify, the court

found petitioner to be a thoroughly honorable person who was

somewhat rigid, set in his ways, and who had some difficulty

in adapting and changing on the basis of new information if it

did not conform to his then perceptions (A52). The court,

therefore, concluded that the manager’s statement did not support

petitioner’s allegations that age was a determining factor in his

termination (A53).

On December 26, 1990, petitioner filed a brief and short

appendix with the United States Court of Appeals for the Seventh

Circuit requesting review of the District Court’s order of August

18, 1990 granting respondent’s summary judgment with regard

to Count II of petitioner’s complaint and the September 11, 1990

memorandum and order granting judgment to respondent on

Count I. On January 11, 1991, respondent filed a motion to dismiss

petitioner’s appeal to the Seventh Circuit, on the bases that

petitioner’s appeal did not comply with Federal Rule of Appellate

Procedure 28, and it did not specify any error in the District

Court’s decision. Petitioner filed a brief in opposition to

respondent’s motion to dismiss on January 17, 1991.

On February 4, 1991, the Seventh Circuit Court of Appeals

issued an order stating that it construed the motion to dismiss

as a motion for summary affirmance (A6). The order stated that

the court had carefully reviewed the final order of the District

Court, the record on appeal, the respondent’s motion and the

petitioner’s Opening brief (A7). The order also stated that based

on its review of the entire record, no further briefing would be

helpful to its consideration of the issues. Based on the entire record,

the Seventh Circuit granted summary affirmance of the District

_+Court’s decision (A7).

On February 14, 1991, the Seventh Circuit denied petitioner’s

motion for reconsideration of the Seventh Circuit’s February 4,

1991 order summarily affirming the District Court’s decision (A1).

REASONS FOR DENYING THE WRIT

The petition does not set forth any issues which are

appropriate for this Court’s consideration. See Supreme Court

Rule 10.1. Petitioner does not raise any issues about which there

is a conflict among the federal courts of appeals, nor does he

request this Court settle an important issue of federal law. Rather,

petitioner merely requests that this Court review a factual

determination of the District Court that was affirmed by the

Seventh Circuit Court of Appeals.

1. In a well-reasoned opinion, the District Court made an

evidentiary conclusion that the stated reasons for petitioner’s layoff

and termination were not pretextual and that age was not a

determining factor in the company’s decision (A47-A53). After

a careful review of the record, the District Court’s decision was

summarily affirmed by the Seventh Ciruit (A6, A7).

Petitioner’s principal contention is that the District Court

erred in its evidentiary determinations. In particular, petitioner

asserts that the District Court erred by not finding that a statement

allegedly made by respondent’s manager established that age was

a determining factor in respondent’s decision (Petition, 4, 5). Thus,

petitioner’s dispute is purely an issue of factual determination.

This Court has long pronounced that it will not review

findings of fact by courts below in the absence of a very obvious

and exceptional showing of error. Goodman v. Lukens Steel Co.,

482 U.S. 656, 665 (1987); Rodgers v. Lodge, 458 U.S. 613, 622-623

(1982); Blau v. Lehman, 368 U.S. 403, 408-09 (1962); Berenyi

v. Director of Immigration and Naturalization Service, 385 U.S.

630, 635 (1967). In Berenvi, this Court explained why it is reluctant

to disturb tactual determinations:

This court possesses no emperical expertise

to set against the careful and reasonable

conclusions of lower courts on purely factual

issues. When, as here, resolutions of the disputed

factual issues turns largely on an assessment of

the relative credibility of the witnesses whose

testimonial demeanor was observed only by the

trial court, the rule has particular force.

Berenvi, 385 U.S. at 636.

In the instant case, after hearing the testimony of both

petitioner and the manager, the District Court determined that

the alleged statement, whatever was said, was an expression of

the company’s desire for maximum flexibility and the manager’s

conclusion that petitioner did not provide it, rather than an

expression of age bias (A52). Specifically, the District Court

concluded:

By far, plaintiff’s strongest support for his

contention that age was a determining factor is

a statement he attributes to Daugherty on

September 27, 1985, when he told plaintiff of the

decision. According to plaintiff, Daugherty said

the company was going to keep the youngest and

most educated people. Daugherty denies so stating,

but we conclude that something very similar was

said. We do not conclude, however, that the

statement meant that age as such was a determining

factor. The company needed flexible people. We

observed plaintiff at trial; we heard him testify.

He came through as a thoroughly honorable person

who was somewhat rigid and somewhat set in his

ways and who had some difficulty in adapting and

changing on the basis of new information if it did

not conform to his then perceptions. Whatever

Daugherty precisely said, we believe that it was

an expression, however inartfully phrased, of the

company’s desire for maximum flexibility and his

conclusion that plaintiff did not provide it.

Plaintiff has every reason to believe that he was

far more loya! to the company than the company

was to him, but we do not conclude that age was

a determining factor in defendant’s decision.

Judgement is entered for the defendant.

(A52-53, emphasis in original.)

Such determinations were clearly within the District Court’s

discretion and were not in error. Petitioner does not set forth

any reasons that the District Court’s conclusions were very

obviously in error. After careful review of the record and

petitioner’s brief, the Seventh Circuit Court of Appeals refused

to disturb any of the District Court’s factual determinations (A6,

A7). Therefore, no exceptional error being present in this case,

additional review by this Court is inappropriate. '

2. Petitioner’s second and third Questions Presented for

Review are entirely based on petitioner’s misunderstanding of the

appellate couri’s ruling. Petitioner claims that the Seventh Circuit

dismissed his appeal as frivolous based on form rather than

substance, and in violation of the concept of simple appeal

(Petition, 5). A review of the record, however, reveals that no

such ruling was ever made by the Seventh Circuit.

Respondent filed a motion to dismiss petitioner’s appeal,

claiming that petitioner’s appeal was meritless because it was

lacking in both form and substance. Petitioner filed a brief in

response to respondent’s motion. After carefully reviewing the

record below, respondent’s motion, and petitioner’s briefs, the

Seventh Circuit determined that further briefing would not be

helpful to its consideration of the issues (A6, A7). Instead, based

on its sua sponte review of the entire record, the Seventh Circuit

Court of Appeals affirmed the District Court’s opinion (A6, A7).

Thus, contrary to petitioner’s belief, the Seventh Circuit affirmed

the District Court’s decision following a thorough review of the

merits, not on a procedural basis.

Therefore, petitioner’s claim that the Seventh Circuit

improperly dismissed petitioner’s appeal on a procedural ground

is a misintepretation of the Seventh Circuit’s decision in this case

1. It is unclear whether petitioner seeks review of the District Court's

decision granting summary judgment in tavor of respondent with regards to

petitioner's allegation of race discrimination. Petitioner does not set forth this

issue in the Questions Presented for Review, nor does petitioner explain any

error committed by the courts below. Rather, petitioner merely asserts that the

District Court erred in its decision (Petition, 6). Notwithstanding petitioner’s

failure to properly raise this issue, such an issue is improper for review by this

Court for the same reasons set forth above with regards to petitioner’s request

for review of the decision on his age discrimination claim.

and petitioner’s second and third Questions Presented for Review

request this Court to review a decision which, in fact, was never

rendered.

CONCLUSION

For the reasons stated, the petition for a writ of certiorari

should be denied.

Dated: June 14, 1991

Respectfully submitted,

WILLIAM R. SULLIVAN, JR.

Counsel of Record

CAMILLE A. OLSON

TIMOTHY P. PAYNE

SEYFARTH, SHAW,

FAIRWEATHER &

GERALDSON

Attorneys for Respondent

Suite 4200

55 East Monroe Street

Chicago, Illinois 60603

(312) 346-8000