Petition — Stendebach v. CPC International, Inc.

82-1637 “FILED.

APR 5 1983

—_ STEVAS,

CLERK

NO

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

JAMES L. STENDEBACH,

Petitioner

Vv.

CPC INTERNATIONAL INC.,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Gary Norton, Counsel of Record

GARY, THOMASSON, HALL &

MARKS

Attorneys for Petitioner

P. O. Box 371

Corpus Christi, ‘i'exas 78403

(512) 884-1961

Alpha Law Brief Co., Inc.—5606 Parkersburg—Houston, Texas 77036—223-3003

I

QUESTIONS PRESENTED FOR REVIEW

1. In deciding whether age was regarded as a negative

factor in terminating Stendebach, do 29 U.S.C.A. § 623

(a)(2) and the U.S. Supreme Court’s decisions in Hazel-

wood School District v. United States, 433 U.S. 299, 308,

97 S.Ct. 2736, 2742 (1977) and Mayor v. Educational

Equality League, 415 U.S. 605, 620-621, 94 S.Ct. 1323,

1333 (1974), prescribe the legal standard for the relevant

group of CPC’s employees for comparative evaluation

to be limited to employees who were actually compared

by CPC as having comparable qualifications to perform

work functions which Stendebach actually performed?

2. Is the U.S. Court of Appeals’ opinion in error in

failing to rule on Stendebach’s Issues Nos. 3, 4 and 5

Presented for Review of Stendebach’s objections that

Defendant’s Exhibits Nos. 1, 9 and 2 were inadmissible

evidence because these Exhibits compared by age a broad

group of all retained and salaried personnel including

employees who were in different work classifications, such

as clerical and administrative personnel, and thus were

not within the relevant group actually compared by CPC

as having comparable qualifications to perform the work

functions which Stendebach was qualified to perform as

a managerial supervisor and/or chemist in the produc-

tion and technical divisions?

3. Is the U.S. Court of Appeals’ holding that in re-

viewing a motion for instructed verdict, the U.S. District

Court and U.S. Court of Appeals can evaluate the quality

and weight of disputed evidence in conflict with the U.S.

Supreme Court’s decisions in Wilkerson v. McCarthy,

336 U.S. 53, 69 S.Ct. 413 (1949) and Tennant v.

Peoria & P. U. Ry. Co., 321 US. 29, 64 S.Ct. 409

(1944) which deny that a jury can evaluate the quality

and weight of disputed evidence?

4. In deciding whether there is disputed evidence re-

quiring submission of a question of fact to the jury, is the

U.S. Court of Appeals’ omitting from its opinion evidence

that age was regarded as a negative factor in terminating

Stendebach in error for the reason that the omissions of

the evidence favorable to Stendebach in effect violate his

rights to a jury trial and due process of law?

5. Is the U.S. Court of Appeals’ opinion in error and

contradictory in holding, on the one hand, that CPC’s

ad hoc evaluation committee’s Job Evaluation and Selec-

tion Summaries (Defendant’s Exhibits Nos. 7 and 8) were

not hearsay because they were not offered to prove the

truth, but, on the other hand, in holding in reliance on

the contents of the Selections Summaries that the “final

reduction-in-force, decisions were based exclusively on

the scores received” as if “the fact of their content” were

the truth in support of its conclusion of no age discrimi-

nation.

LIST OF PARTIES

All parties are named in the caption.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... I

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JURISDICTION OF THIS COURT ........0.eeeeeees 2

STATUTE WHICH THE CASE INVOLVES .......... 2

STATEMENT OF THE CASE ...cccccccccotscsccnces 3

JURISDICTION OF THE U.S. DISTRICT COURT .... 13

REASONS FOR GRANTING THE WRIT ...........-- 13

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TABLE OF AUTHORITIES

CASES Page

Boeing Company v. Shipman, 411 F.2d 365 (Sth Cir. 1969) 16

Bracey v. Herringa, 466 F.2d 702 (7th Cir. 1972) ..... 20

Chicago, Rock Island and Pacific Ry. Co. v. Howell, 401

Pe FOe COE Ge, BOOED: dav ccccnccccedsewsescanns 16

Hazelwood School District v. United States, 433 U.S. 299,

Se SO A OUGEE a ccdbadeuvhadsss oeeeeceneees ss 13, 14, 18

Hedrick v. Hercules, Inc., 658 F.2d 1088 (5th Cir. 1981) . 18

Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740 (1946) .... 16

Mayor v. Educational Equality League, 415 U.S. 605, 94

ee, Re COPED vcnckcunecnse sss tkanbeeekeereens 13,14

Ralston Purina Company v. Hobson, 554 F.2d 725 (Sth

Sy PEE cn ko kok k Ranked aesRnseapeseGehe i caaeecees 20

Simblest v. Maynard, 427 F.2d 1 (2nd Cir. 1970) ........ 16

Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S.Ct.

BN GS SRR Beas rei aan RA rr 15, 16

IV

CASES Page

Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413 (1949) 15

Williams v. General Motors Corp., 656 F.2d 120 (Sth

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STATUTES

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29 U.S.C. § 623(a) (1) OREN Ean ee MaKe ae Ata So 2

Te Se EEE. occu caueeaasesbenesscers bes 2,13, 14, 15

FEDERAL RULES OF EVIDENCE

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FEDERAL RULES OF CIVIL PROCEDURE

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

JAMES L. STENDEBACH,

Petitioner

V.

CPC INTERNATIONAL INC.,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

James L. Stendebach, plaintiff and petitioner (called

“Stendebach”), respectfully petitions that a writ of certi-

orari be granted, that the U.S. District Court’s Final

Judgment granting a directed verdict for CPC Interna-

tional Inc., defendant and respondent (called “Corn

Products” or “CPC”), and the U.S. Court of Appeals’

opinion and judgment affirming the U.S. District Court,

be reversed, and that this action be remanded for trial

by jury.

2

OPINIONS BELOW

The opinion of the U.S, Court of Appeals for the

Fifth Circuit is reported at 691 F.2d 735 (Sth Cir, 1982).

(Appendix, pages 6a to 12a). The U.S. District Court's

oral opinion is set forth in the Appendix, pages la to 4a,

but was not otherwise reported.

JURISDICTION OF THIS COURT

The U.S. Court of Appeals’ judgment was entered on

November 15, 1982. (Appendix, page 6a) The US.

Court of Appeals denied Stendebach’s Petition for Re-

hearing on January 5, 1983. (Appendix, page 13a) The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTE WHICH THE CASE INVOLVES

29 U.S.C. § 623(a)(1)&(2) provide:

(a) It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any in-

dividual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s age;

(2) to limit, segregate, or classify his employees

in any way which would deprive or tend to deprive

any individual of employment opportunities or other-

wise adversely affect his status as an employee, be-

cause of such individual’s age;”

x“ *

3

STATEMENT OF THE CASE

This action is based on the Age Discrimination in Em-

ployment Act, 29 U.S.C. § 621, et seq. CPC terminated

Stendebach, who had worked as a chemist and as a man-

agerial supervisor, when he was 47 years old, but CPC

continued to employ other chemists and managerial super-

visors who were less qualified and younger than Stende-

bach. The action was tried before a jury; but after Stende-

bach and CPC concluded their evidence, the U.S. District

Court granted CPC’s motion for directed verdict that

Stendebach recover nothing.

Stendebach has a Bachelor of Science Degree in Chem-

istry. (R. 31/25-32/5) After graduating from college,

Stendebach worked as a laboratory chemist for about ten

years in the technical division of CPC’s plant in Corpus

Christi, Texas. (R. 32/8-33/15 & 34/5-7) After working

as a chemist for about ten years, he was transferred and

worked as a managerial division supervisor of the wet

starch division in the plant’s manufacturing or production

division. (R. 32/17-33/7 & 34/8-20) As a managerial

supervisor, Stendebach’s work functions were to control

and direct the people and processes under his supervisor,

to control and contain costs in the functions under his

direction, to maintain a safe working environment, and

to represent management in these functions, (R. 34/21-

35/4 & 346/16-24) A managerial supervisor’s work is a

people relation type of job, and the supervisor depends

on people below him to take care of the details of the

operations. (R. 36/2-5, 148/3-25 & 346/25-348/4)

Stendebach supervised about 35 people on the first shift

and a few more on the second and third shifts of the

plant’s operations. (R. 35/5-9) Although Stendebach was

4

a managerial supervisor in the wet starch division, he and

other managerial supervisors were cross-trained in the re-

finery dry starch or finishing division in the plant's pro-

duction division, (R. 36/11-22, 38/1-19, 129/20-25,

135/19-136/2, 350/10-351/7, 358/24-359/10, 413/10-

15 & 483/7-9) On the second and third shifts, a single

managerial supervisor supervised the wet starch division,

the refinery dry starch division, the technical division and all

other work functions at the plant. (R. 38/20-40/22, 131/

16-133/2, 149/1-16, 155/12-157/24, 350/10-351/7 &

413/3-19) During their employment with CPC, Stende-

bach and other managerial supervisors continued their

training at seminars with regard to management, budget-

ing, personnel development, pollution control and safety.

(R. 40/23-41/11 & 136/10-19) During Stendebach’s em-

ployment of nearly 23 years, CPC regularly evaluated

Stendebach’s performance; and after these evaluations, he

was encouraged in his progress and received regular pay

raises, including a last pay raise two weeks before his

employment was terminated. (R. 55/15-56/7)

After Stendebach worked for CPC for nearly 23 years

and became experienced and qualified in many of its op-

erations, CPC terminated Stendebach’s employment effect-

ive April 24, 1978 when he was 47 years old. (R. 47/4-

14 & 48/13-16) Stendebach was terminated along with

seven other managerial supervisors in the production di-

vision and five chemists and laboratory analysts in the

technical division. (R. 54/8-57/5 & Plaintiff's Exhibit 4).

These terminations were in connection with a reduction

in forces at CPC’s plant in Corpus Christi. However,

when Stendebach was terminated, CPC continued to em-

ploy other managerial supervisors, chemists and laboratory

5

analysts who were less experienced, less qualified and

younger than Stendebach in the production and technical

divisions. (R. 56/8-57/5, Plaintiff's Exhibit 4, Defend-

ant’s Exhibit 9, 143/24-144/18 & 146/9-147/5)

In deciding who to terminate and who to retain in the

production and technical divisions, CPC actually com-

pared Stendebach only within a group of 27 employees

who had comparable qualifications necessary to perform

comparable work functions which Stendebach was quali-

fied to perform in the production and technical divisions.

CPC’s terminations within the actually compared group

of 27 employees had clear adverse effect on those in the

protected age group who were 40 years of age or older

in the production and technical divisions, as evidenced by

the following summary:

Employees

Before

Terminations Employees After Terminations

( Decrease)

No, Percent No, Percent Percent or Increase

Protected Age

Group, 40 to

70 years 19 70.4% 8 57.1% (13.3%) Decrease

Under 40 Years 8 29.6% _6 _ 42.9% 13.3% Increase

Total 27 100.0% 14 100.0%

(R. 56/8-57/5, Plaintiff's Exhibit 4, Defendant’s Exhibit

9, 143/24-144/18, & 146/9-147/5)

After Stendebach was terminated, CPC continued to

employ managerial supervisors and a chemist who were

under 40 years old and less experienced and less qualified

than Stendebach, as follows:

6

1. R. Tompkins who was 35 years old with 10 years

of service as a managerial supervisor;

2. W. Weber who was 37 years old with 9 years of

service as a managerial supervisor;

3. D. Borrer who was 39 years old with 12 years of

service as a managerial supervisor; and

4. D. Fuller who was 39 years old with 14 years of

service as a chemist.

(R. 56/8-57/5, Plaintiff's Exhibit 4, Defendant’s Exhibit

9) Stendebach helped train Tompkins, Weber and Borrer

(R. 58/21-59/11). Stendebach knew and worked with

Dale Fuller to some extent in the laboratory. (R. 62/9-

19) With his 23 years of experience and qualifications in

the technical and manufacturing divisions, Stendebach

was more qualified than Tompkins, Weber and Borrer.

(R. 60/21-61/12) Jesus Rodriguez, whe was also a man-

agerial supervisor and was 53 years old with 29 years of

experience, concurred that Stendebach was as qualified or

better qualified than Tompkins, Weber and Borrer as a

managerial supervisor. Emigdio Besinaiz, who was an

hourly union worker and worked under the supervision

of Stendebach, Rodriguez, Tompkins, Weber and Borrer,

also concurred that Stendebach and Rodriguez were more

effective supervisors than Tompkins, Weber and Borrer.

(R. 169/15-171/16 & 172/19-174/4) Even the plant

manager, Bernard Kastory, concurred that Stendebach

and Rodriguez were qualified to supervise the same work

functions after their termination as they had supervised

before their termination on April 24, 1978. (R. 430/13-

431/22)

7

After the terminations on April 24, 1978, the refinery,

which was about one-half of the plant’s production divi-

sion, was shut down. (R. 344/8-12 & 479/10-11) Except

for the shutdown of the refinery and the addition of some

automated equipment in the laboratory, all work func-

tions remained the same after the terminations as before

the terminations. (R. 344/23-345/9, 420/22-422/5,

422/23-423/15 & 479/12-15) In effect, except for work

functions eliminated by the shutdown of the refinery and

by the addition of some automated equipment in the

laboratory, all of the remaining work functions were as-

signed to the fewer managerial supervisors after the ter-

minations than befor. the terminations. (R. 344/15-23,

420/22-422/11 & 479/16-23)

When Stendebach was terminated along with the other

managerial supervisors and laboratory personnel, the de-

cisions about whom to terminate were supposed to be

made in accordance with the Procedures for Reduction in

Force which were initially submitted by R. C. Peterson’s

letter dated December 16, 1977 and supplemented by his

letter dated January 19, 1978. (called “Termination Pro-

cedures”) (Defendant’s Exhibit 5) These Termination

Procedures were not followed. Paragraph 3 clearly re-

quired that all employees be placed in rank order “on a

consistent basis, i.e., the ‘Summary Performance Review

Form’ for management . . . as the primary tool in develop-

ing rank order.” The Termination Procedures obviously

do not authorize considering information beyond CPC’s

business records and the personal knowledge of those

participating in the decision-making process. The Termina-

tion Procedures clearly do not exclude consideration of

age in the decision-making process. (R. 267/23-269/5)

The Termination Procedures do not suggest that those

who were involved in the decision-making process should

stray from the established procedures to evaluate the per-

formance of employees; but to the contrary, the Termina-

tion Procedures explicitly require that established pro-

cedures for evaluation be followed in order to evaluate

all employees on a consistent basis. (Defendant’s Ex-

hibit 5)

With regard to the circumstances existing before the

Termination Procedures were prepared in December 1977

and January 1978, CPC had adopted new employee

evaluation procedures in 1974 or 1975 by which the

evaluation of an employee’s performance was recorded on

the Summary Performance Review Form. (R. 492/22-

493/20) The purposes of the new evaluation procedures

were to provide more uniform and objective evaluations

for all management personnel, to permit the employee to

participate in the evaluation so that he could improve his

performance, and to have a continuing record of an em-

ployee’s performance over a period of time. (R. 259/23-

261/4, 477/20-478/9 & 487/10-19) One of the purposes

for having uniform evaluations was to facilitate transfers.

(R. 438/6-10) The criteria for evaluating personnel for

transfers, which was a customary practice for CPC, were

the same as for hiring and promotions. (R. 359/11!-14

& 437/7-11)

Before the Termination Procedures were prepared,

without excluding consideration of age in the decision-

making process, the employees’ ages had been already

identified as an important factor to be considered in the

evaluations in that somebody at headquarters told the

plant manager, Bernard Kastory, that age ought to be

part of the documentation in the evaluation process.

9

(R. 417/15-418/25) Charles Shoemate had been the

plant manager of Corpus Christi from February 1974

until June 1976, and after then, he became CPC’s vice-

president of manufacturing at its headquarters. As vice-

president, Shoemate was in charge of the plant in Corpus

Christi. (R. 295/24-297/5) Shoemate started talking

about reduction in forces with the plant manager in

Corpus Christi before April 1977 and with CPC’s man-

agement by early November 1977. (R. 280/11-23, 214/

22-215/13 & 495/21-496/13)

During the period from April through early November

1977 and before the Termination Procedures were pre-

pared in December 1977 and January 1978, while Shoe-

mate was in Corpus Christi on October 29, 1977, he pre-

pared his own handwritten list of employees, including

their ages, years of service, grade and performance evalu-

ations “directly off their latest performance appraisal

rating. .. .” (R. 287/4-294/24) Shoemate also noted a

symbol on his personal handwritten list for employees

whom “Corn Products must keep.” (R. 289/15-20 &

Plaintiff's Exhibit 37) The plant manager, Kastory, ad-

mitted that he recalled discussing Shoemate’s list dated

October 29, 1977 that included age, numbers of years of

service, performance appraisal, salary grade. (R. 31/23-

434/15) R. C. Peterson, CPC’s vice-president of person-

nel, recalls that the termination of management employees

in Corpus Christi was first discussed in early November

1977 at a meeting of the staff which included the vice-

president in charge of the Corpus Christi plant. (R. 495/

21-496/13)

In preparation for the reduction in forces, the plant

manager, Bernard Kastory, and the personnel manager,

10

Frank Cavanee, appointed an ad hoc evaluation com-

mittee to decide who should be terminated and who

should be retained at the Corpus Christi plant. From the

fall of 1977 through the terminations, Shoemate, CPC’s

vice-president for manufacturing, interacted regularly

with the committee. (R. 245/2-247/19) In addition to

the Termination Procedures, the ad hoc evaluation com-

mittee added additional criteria to evaluate the employees.

(R. 357/19-358/1)

The ad hoc evaluation committee considered the em-

ployees’ Employment Personnel Profile that included the

employees’ ages. (R. 417/4-14) Shoemate admitted that

age is less likely to be considered if it were not disclosed

and known than by its being disclosed and known (R.

271/1-11)

The ad hoc evaluation committee’s consideration of the

employees’ Summary of Performance Review Form made

up only a small part of the total review procedure, not-

withstanding the Termination Procedures’ requiring that

the Form be used “as the primary tool in developing rank

order.” (R. 455/3-10 & Defendant’s Exhibit 5) Among

the six members of the committee, only one, Ray Frank,

had ever evaluated Stendebach before they sat on the

ad hoc evaluation committee. (R. 465/20-22, 488/3-8

& Plaintiff's Exhibit 1) The employees were not permitted

to particinate in the discussions of the ad hoc committee

in order to assure that the committee considered complete

information, contrary to the practice of permitting the

employee’s participation in the established evaluation pro-

cedures. (R. 257/16-258/1 & 424/23-425/7) The re-

sults of the ad hoc evaluation committee’s discussions

were compiled into Corn Products’ Job Evaluation and

11

Selection Summaries. These Summaries were admitted

into evidence, as Defendant’s Exhibits Nos. 7 and 8, over

Stendebach’s objections that the Summaries were not

based on personal knowledge and were hearsay and self-

serving in that even if they were not admitted for the

truth of the matter with regard to the qualifications of

the employees, there was a higher probability that the

information in the Summaries would be considered and

weighed prejudiciallv against Stendebach than whatever

value there may be in showing that the committee’s de-

velopment of the information was an operational fact.

(R. 383/12-386/5, 393/16-394/14 & 397/21-398/16)

After CPC actually compared Stendebach only within

a group of 27 employees who had comparable qualifica-

tions necessary to perform comparable work functions in

the production and technical division, CPC created a new

so-called comparable group of 76 employees, including 49

who were not actually compared to Stendebach in con-

nection with the termination, as summarized in Defend-

ant’s Exhibits Nos. 1, 2 and 9. Defendant’s Exhibits Nos.

1 and 9 are summaries which group chronologically by age

all of the 76 terminated and retained salaried personnel,

including clerical, administrative and other personnel who

were not classified and qualified to work as managerial

supervisors or chemists in the production or technical

division at CPC’s plant. Defendant’s Exhibit No. 2 is a

summary which compares by ages under 40 or over 40

all of the 76 terminated and retained salaried personnel,

including clerical, administrative and other personnel who

were not classified and qualified to work as managerial

supervisors or chemists in the production or technical

division at CPC’s plant. These exhibits contain statistical

data with regard to the ages and years of service of cler-

12

ical, administrative and other personnel who are obviously

in work classifications that are clearly not comparable but

differ substantially from the work classifications of man-

agerial supervisors and chemists in the production and

technical divisions. (R. 411/12-413/3-6 & 414/4-23)

That these clerical, administrative and other personnel

were not comparable and relevant is clearly proven by

the fact that the ad hoc evaluation committee did not

actually compare and evaluate them with managerial

supervisors and chemists in the production and technical

divisions. (Plaintiff's Exhibit 4 & Defendant's Exhibit 7)

Nevertheless, Defendant’s Exhibits 1, 9 and 2 were ad-

mitted into evidence over Stendebach’s objection that the

work classifications were not comparable, that there was

no predicate to show that the other salaried personnel

were in comparable work classifications, and that there

was no predicate to show qualifications relevant to the

work classification of supervisory management. (R. 399/

5-410/22)

CPC later suggested that there is another so-called com-

parable group of 39 employees comprised of all employees

in the production, technical and mechanical division. The

10 employees in the mechanical division were not included

in the group which CPC actually compared in as having

comparable qualification to perform comparable work

function in the production and technical divisions. (Plain-

tiff's Exhibit 4 & Defendant’s Exhibit 7) There were

actually only 37 employees in the production, technical

and mechanical division rather than 39 as stated by CPC

and the U.S. Court of Appeals.

Stendebach’s damages are stipulated if he prevails in

this action. (R. 698-708)

13

JURISDICTION OF THE U.S, DISTRICT COURT

The U.S. District Court's jurisdiction is based on the

Age Discrimination and Employment Act, 28 U.S.C.

§ 621, et seq.

REASONS FOR GRANTING THE WRIT

In holding that the relevant group for compar-

ative evaluation for age discrimination was 76

employees, including 49 who were in different

work classifications and who were not actually

compared by CPC as having comparable qualifi-

cations to Stendebach, the U. S. Court of Appeals

decided implicitly an important issue of first

impression in apparent conflict with the legal

standard for determining the relevant group for

discrimination prescribed by 29 U.S.C. § 623(a)

(2) and the U. S. Supreme Court’s decisions in

Hazelwood School District v. United States, 433

U.S. 299 (1977) and Mayor v. Educational Equal-

ity League, 415 U.S. 605 (1974).

In deciding who to terminate and who to retain in the

production and technical divisions, CPC compared Stende-

bach only within a group of 27 employees who had com-

parable qualifications necessary to perform comparable

work functions which Stendebach was qualified to perform

in the production and technical divisions. However, with-

out ruling on Stendebach’s Issues Nos, 3, 4 and 5 Pre-

sented for Review, the District Court and the Court of

Appeals chose to utilize a group of all 76 employees

of the salaried work force for some comparisons and

a group of 39 (actually 37) employees in the pro-

14

duction, technical and mechanical divisions, of which

ten were in the mechanical division, for some com-

parisons. The District Court and the Court of Appeals

have refused to narrow the focus to the 27 employees in

the production and technical divisions against whom Sten-

debach competed and was actually measured by CPC

based on comparable qualifications and comparable job

functions in the production and technical divisions.

In determining the relevant group for comparison for

the purpose of deciding whether a person has been the

victim of unlawful discrimination, in Mayor v. Education-

al Equality League, 415 U.S. 605, 620-621, 94 S.Ct.

1323, 1333 (1974), the United States Supreme Court

held that the relevant group for the purpose of evaluating

statistical data is the group whose members are qualified

to serve and not the population at large whose members

are not qualified to serve.

In Hazelwood School District v. United States, 433 U.

S. 299, 308, 97 S.Ct. 2736, 2742, n. 13 (1977), the

United States Supreme Court stated:

“When special qualifications are required to fill par-

ticular jobs, comparisons to the general population

(rather than to the smaller group of individuals who

possess the necessary qualifications) may have little

probative value.”

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

§ 623(a)(2) provides that it shall be unlawful for an

employer:

“to limit, segregate, or classify his employees in any

way which would deprive or tend to deprive any

individual of employment opportunities or otherwise

adversely affect his status as an employee, because

of such individual’s age.”

15

In interpreting 29 U.S.C. § 623(a)(2) in this case of

first impression, the legal standard prescribing the relevant

group for comparative evaluation in other discrimination

cases should be followed in order to have a logically uni-

form and consistent legal standard for determining the

relevant group for comparative evaluation in all discrim-

ination cases, Thus, the relevant group for comparison of

statistical data with regard to CPC’s termination of Sten-

debach should be held to be limited to the 27 employees

who were actually compared by CPC as having compar-

able qualifications necessary to perform comparable work

functions in the production and/or technical divisions,

Therefore, the U.S. District Court and the U.S. Court of

Appeals should have ruled on Stendebach’s Issues Nos. 3,

4 and 5 presented for review that Defendant’s Exhibits 1,

2 and 9 which compared a group of 76 empioyees, includ-

ing 49 who were not actually compared by CPC as having

comparable qualifications, were not relevant and admis-

sible to prove that age was not regarded as a negative

factor in terminating Stendebach. Rules 401 & 402, Fed-

eral Rules of Civil Procedure.

In holding that in reviewing a Motion for In-

structed Verdict, the U. S. District Court and the

U. S. Court of Appeals can evaluate the quality

and weight of disputed evidence, the U. S. Court

of Appeals’ decision is in conflict with the U. S.

Supreme Court’s decisions in Wilkerson v. Mc-

Carthy, 336 U.S. 53 (1949) and Tennant v. Peoria

& P, U. Ry. Co., 321 U.S. 29 (1944) and decisions

of other U. S. Courts of Appeal.

In Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct.

413, 415 (1949), the United States Supreme Court held:

16

It is the established rule that in passing upon whether

there is sufficient evidence to submit an issue to the

jury we need look only to the evidence and reason-

able inferences which tend to support the case of a

litigant against whom a peremptory instruction has

been given.

Accord, Lavender v. Kurn, 327 U.S. 645, 652-653, 66

S.Ct. 740, 744 (1946); Tennant v. Peoria & P. U. Ry.

Co., 321 U.S. 29, 35-36, 64 S.Ct. 409, 412-413 (1944);

Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970);

Chicago, Rock Island and Pacific Ry. Co. v. Howell, 401

F.2d 752, 754 (10th Cir. 1968). But see Boeing Corn-

pany v. Shipman, 411 F.2d 365, 374 (Sth Cir. 1969).

With regard to the U.S. Court of Appeals’ erroneous

holdings that there was no evidence that Shoemate, the

vice president from headquarters, was involved in the ad

hoc committce’s deliberations, directly or indirectly, that

Shoemate’s list was not prepared in conjunction with the

preparation or implementation of reorganization plan,

that the ad hoc evaluation committee was not influenced

by Shoemate’s list, that corporate management attempted

to influence the members of the ad hoc evaluation com-

mittee and that age was not regarded as a negative factor,

the U.S. Court of Appeals’ opinion omits specific facts

from which the reasonable inference can be drawn by a

jury that age was regarded as a negative factor terminat-

ing Stendebach. The specific omitted facts include:

(a) CPC continued to employ four managerial

supervisors and other personnel who were under 40

years old and were less experienced and less qualified

than Stendebach to perform the work functions in

the production and technical divisions;

17

(b) Shoemate prepared his evaluation list of em-

ployees, including only their ages, years of service,

grade and performance valuations “directly off their

latest performance appraisal rating . . .” on October

29, 1977 which was during the period from April

through early November, 1977 when he was dis-

cussing reduction in forces with the management of

CPC, including discussion of the list with the plant

manager, Kastory;

(c) The Termination Procedures were prepared

in December, 1977 and January, 1978 and required

evaluations on a consistent basis using the “Summary

Performance Review Form” in order to provide uni-

form and objective evaluations;

(d) The Termination Procedures did not exclude

the consideration of age as a negative factor; some-

body at CPC’s headquarters told the plant manager,

Kastory, that age ought to be a part of the docu-

mentation in the evaluation process; and the ad hoc

evaluation committee considered the employees’ Em-

ployment Personnel Profile that included the em-

ployees’ ages;

(e) Shoemate admitted that age is less likely to

be considered if it were not disclosed and known than

by its being disclosed and known;

(f) Shoemate interacted regularly with the ad hoc

evaluation committee from the fall of 1977 through

the terminations which period includes the time when

he prepared his list before the Termination Pro-

cedures were prepared;

(g) In addition to the Termination Procedures

which did not exclude the consideration of age, the

18

ad hoc evaluation committee added additional criteria

to evaluate the employees and failed to follow com-

pletely and consistently the instructions of the Term-

ination Procedures which required that the Summary

Performance Review Form be used “as the primary

tool in developing rank order” in order to evaluate

employees on a consistent basis, as evidenced by the

committee’s considering the employees’ Summary

Performance Review Form as only a small part,

rather than “as the primary tool,” of its review pro-

cedures; and

(h) Among the six members of the ad hoc eval-

uation committee, only one had ever evaluated Sten-

debach before then.

These omitted facts are sufficient to prove a prima facie

case of age discrimination and to submit the disputed

issues of fact to a jury. Williams v. General Motors Corp.,

656 F.2d 120, 129 (Sth Cir. 1981).

When these omitted facts are viewed along with CPC’s

terminations’ adverse effect of reducing the protected age

group by 13.3% within the relevant group, the inference

clearly emerges that age was regarded as a negative

factor. Hedrick v. Hercules, Inc., 658 F.2d 1088, 1094

(5th Cir. 1981). See Hazelwood School District v. United

States, 433 U.S. 299, 312, 97 S.Ct. 2736, 2743 (1977).

By disregarding the specific facts in the record and con-

firming the directed verdict against Stendebach, the U.S.

Court of Appeals in effect has denied Stendebach a jury

trial in conflict with the decisions by the U.S. Supreme

Court and other U.S. Courts of Appea! cited above in this

section. See Rule 38(a), Federal Rules of Civil Procedure.

19

Summaries prepared from information beyond

the scope of personal knowledge and the business

records of CPC for the purpose of creating an

appearance to justify conduct in relation to an-

ticipated claims are inadmissible hearsay and

self-serving evidence.

The ad hoc evaluation committee’s Job Evaluation and

Selection Summaries, admitted into evidence as Defend-

ant’s Exhibits 7 and 8, are based on information beyond

the personal knowledge of members of the committee and

beyond the business records of CPC. The ad hoc evalua-

tion committee failed to follow completely and consist-

ently the instructions of the Termination Procedures which

required that the Summary Performance and Review Form

be used “as the primary tool in developing rank order” in

order to evaluate employees on a consistent basis, as

evidenced by the committee’s considering employees’ Sum-

mary Performance and Review Form only as a small part,

rather than “as the primary tool” of its review procedure.

Among the six members of the ad hoc evaluation com-

mittee only one had ever evaluated Stendebach before

the termination procedure began. Source records were not

produced in support of the Summaries, except for the

employees’ Summary Performance Review Forms which

were admitted to be only a small part of the review by the

committee. The employees were not permitted to partici-

pate in the discussion of the ad hoc committee in order

to assure that the committee considered complete informa-

tion. The Summaries were obviously based to a great ex-

tent on hearsay discussions among members of the com-

mittee and Shoemate who lacked personal knowledge.

The Summaries are self-serving in that they were prepared

to justify the conduct of CPC in anticipation of claims by

20

terminated employees; and thus, there was a higher prob-

ability that the information in the Summaries would be

considered and weighed prejudicially against Stendebach

than whatever value there may have been in showing that

the committee’s development of the information was an

operational fact. Therefore, the ad hoc evaluation com-

mittee’s Job Evaluation and Selection Summaries (De-

fendant’s Exhibit No. 7 and 8) should not have been ad-

mitted into evidence because they were hearsay and self-

serving Summaries; and the U.S. Court of Appeals should

not have relied on the Summaries in holding that the

“final reduction-in-force decisions were based exclusively

on the scores received” in the Summaries as if the “fact

of their contents” were the truth in contradiction to the

Court of Appeals’ also holding that the Summaries were

not admitted to prove the truth. Federal Rules of Evi-

dence 801, 802, 803, 804, 403 & 1006. See Ralston

Purina Company v. Hobson, 554 F.2d 725 (Sth Cir.

1977); Bracey v. Herringa, 466 F.2d 702 (7th Cir.

1972).

21

CONCLUSION

Petitioner respectfully submits and requests that his

Petition for a Writ of Certiorari be granted, that the U.S.

District Court’s final judgment granting a directed verdict

for CPC and the U.S. Court of Appeals’ opinion and

judgment affirming the U.S. District Court be reversed,

and that this action be remanded for a jury trial.

Gary Norton, Counsel of Record

Gary, THOMASSON, HALL &

MARKS

Attorneys for Petitioner

P. O. Box 371

Corpus Christi, Texas 78403

(512) 884-1961

la

APPENDIX A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

C.A. NO. C-78-104

JAMES L. STENDEBACH

v.

CPC INTERNATIONAL INC.

UNITED STATES DISTRICT COURT’S ORAL

OPINION DELIVERED UPON GRANTING

DEFENDANT’S MOTION FOR

INSTRUCTED VERDICT

THE COURT: Ladies and gentlemen, thank you for

your patience. I’m sorry I am keeping you late. Let me

say this to you. I have ended this case and I think you

have sat through it patiently for two days and I think

that whether you care to hear it or not, I owe you an

explanation of why.

Basically, in the trial structure, there are two judges.

I sit here as the judge of the law. I decide what evidence

is relevant, what evidence has any bearing on what you

are supposed to do, and then you decide, once you get

the disputed evidence, you resolve it.

There is a procedure, however, for either side to make

what is called a motion for a directed verdict, and that is

a ruling that, as a matter of law, there is simply nothing

for a jury to decide.

2a

That motion has been made in this case by the De-

fendant, and I have granted it and let me explain to you

why.

This is a case, as I said to you, that was filed under a

federal law, the Age Discrimniation Act. Now, you have

to understand the parameters of that act to understand

what you were doing here. You see, it is not business of

the federal government either the federal congress or the

federal courts, to go into a private business and tell them

how to run their business in general. It is not the business

of the federal government to tell Corn Products or any-

body else whether they must be efficient, they must run

their plant a certain way, they must do this, they must

do that, and we have heard so much about that, or how

we all want the government off our back and so forth,

but the only time the government can legislate in this area

is discrimination. In other words, the government can

legislate that you must not discriminate, based on race,

sex, and religion, of course, and then they came along

later with this one on age. This came after the early ones.

So that the issue here all along was not did they put

money in their business or not, did they run their business

properly or not, are they smart people, are they talented

people, and that sort of thing. For example, there could

be a fact issue in this case: did they or did they not invest

enough money in their equipment; that’s a fact dispute

that was raised here, and yet it wouldn’t do me any good

to ask you to resolve that dispute because either way it

simply had no bearing on what the issue was.

The issue was, when the time came to separate Mr.

Stendebach, was the decision made based on his age.

Now, it doesn’t matter if it was a bad decision. It doesn’t

matter, in other words, as I have tried to suggest to the

3a

attorneys, and really while much of what we heard was

interesting, it wasn’t really relevant, because it didn’t

make any difference if they would sit there and roll dice,

if they would throw darts on the wall, if they would flip

coins, none of that would make any difference as long as

they did not single out people because of their age, and

in fact there is a very recent case that came out of the

Fifth Circuit, as a matter of fact, came out a week ago, in

this very situation of a reduction in force, and the appel-

late court, by which I am bound, says very clearly that

you must understand the duty that this act places on an

employer; all it does is tell the employer to make his

decisions without regard to age; it does not place a duty

on the employer to give any special treatment to people

from 40 to 70. It does not make any obligation to treat

them any differently, it simply requires the employer to

be neutral about age. They can do whatever they want

to do. They can fire everybody, they can fire half the

people, they can fire them for good reason, for bad

reason, it doesn’t make any difference, as long as, in this

case—I say age, because that’s what this case is about;

it would also be sex or race, but in this case, as long as

age is neutral factor.

So what the Plaintiff had to prove, had to have some

evidence of, is that the Defendant was consciously dis-

criminating against him because of his age, that this was

actually taken into account, his age, and that this is what

affected the decision, it was not a neutral status, and that

it affected it, and clearly, as I already explained to the

Plaintiff, and I don’t necessarily expect he and his attor-

ney to agree with me, and maybe you-all don’t, but I have

to do my sworn duty, and I simply, in good conscience,

could not find any evidence upon which you could base a

4a

decision that the action here was discriminatory based

on age. If you look at all of the statistics of who was kept

and who was let go and so forth—now, it may not have

been the best decision, they may not fiave had the best

people on the committee, they maybe should have looked

at old forms, they maybe should have called the people

in to visit with them, all of that stuff, but, you see, none

of that has anything to do with the case. The case is:

were they picking on him because of his age?

Frankly, to summarize, I simply could find no evidence

whatever to even allow you \o go in and speculate on that.

I simply could find no evidence that the Plaintiff pre-

sented that this decision was based on age.

Now, some judges are inclined to terminate a jury, see

what they do, and hope that you agree with me, and then

if you don’t, then reverse your decision. I don’t think

that’s right. I think it’s a waste of your time. You would

have been here all day tomorrow listening to jury argu-

ments, instructions, deliberate for four or five hours, and

then if I agree with you, fine, if I don’t agree with you,

I just reverse your verdict. As I say, to each his own. I

don’t agree with that procedure. I think I might as well

do it up front. There is no way I could let a verdict stand

in this case for the Plaintiff. I think there is absolutely

no evidence of age discrimination, so I simply am reliev-

ing you of that task.

I thank you for being with us.

I will enter a judgment for the Defendant and either

side can, of course, appeal and see what happens there,

but that’s how I see the case, that’s my ruling. I have

made it, period. I just wanted to take your time to explain

to you so you don’t have to come back more. The Clerk

will compensate you for your time you have put in.

5a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

CIVIL ACTION NO. C-78-104

(Filed Sep. 23, 1981)

JAMES L. STENDEBACH,

Plaintiff,

v.

CPC NTERNATIONAL, INC.,

Defendant.

FINAL JUDGMENT

On September 21-22, 1981, this case was presented to

a duly empaneled jury. After both parties rested and

closed, Defendant renewed its motion for directed motion.

Rule 50, Fed. R. Civ. Pr. The Court granted the motion

for the reasons stated on the record. It is therefore OR-

DERED that the Plaintiff, James L. Stendebach, do have

and recover nothing from the Defendant, CPC Interna-

tional, Inc. Costs are taxed to the Plaintiff.

DONE at Corpus Christi, Texas, this 23rd day of

September, 1981.

/s/ GEORGE P. KAZEN

United States District Judge

6a

APPENDIX C

James L. STENDEBACH,

Plaintiff-Appellant,

Vv.

CPC INTERNATIONAL, INC.,

Defendant-Appellee.

No. 81-2427

Summary Calendar.

UNITED STATES COURT OF APPEALS

Fifth Circuit.

Nov. 15, 1982.

Managerial supervisor brought action against former

employer for termination in violation of Age Discrimina-

tion in Employment Act. The United States District Court

for the Southern District of Texas, George P. Kazen, J.,

entered judgment on directed verdict in favor of employer,

and supervisor appealed. The Court of Appeals, Politz,

Circuit Judge, held that termination of 47-year-old man-

agerial supervisor during plant reorganization did not vio-

late Age Discrimination in Employment Act, even though

list containing ages of employees was used during re-

organization process, and even though one member of

committee determining which employees would be retained

stated that someone at corporate headquarters had stated

that age might be relevant factor in reorganization effort,

where there was no showing that the list was used by

committee members nor that contents or existence of the

list in any way influenced decisions, and greater precent-

7a

age of employees under age of 40 lost their jobs during

the reorganization than did employees between ages of

40 and 70.

Affirmed.

Appeal from the United States District Court for the

Southern District of Texas.

Before CLARK, Chief Judge, POLITZ and HIGGIN-

BOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Fired at the age of 47, James L. Stendebach, a mana-

gerial supervisor, invoked the Age Discrimination in Em-

ployment Act, 29 U.S.C. §§ 621-634, against his em-

ployer, CPC International, Inc. (CPC). After both sides

had rested their case, the district court directed a verdict

for defendant. On appeal, Stendebach challenged the di-

rected verdict and various evidentiary rulings. Finding

no merit in any error assigned, we affirm.

During the latter part of 1977, the management of

CPC, in an effort to revive and save its plant at Corpus

Christi, Texas, instituted a plan to reduce and restructure

the work force and otherwise effect production economies.

The Corpus Christi facility, engaged in the labor intensive

corn wet milling business had been in a state of economic

extremis for several years. Survival required a dramatic

reduction in production costs, by a decrease in the labor

force, an increase in unit production or both.

Subject to a general policy outlined by corporate head-

quarters, the reorganization became the charge of six

senior managers in the Corpus Christi facility. Jobs were

merged, functions were streamlined, performance mini-

8a

mums were markedly increased. Resulting jobs took on

a qualitatively different character. To select those em-

ployees who would constitute the reduced labor force,

qualified and capable of performing in the new, demand-

ing employment structure, the select committee prepared

a list of job qualifications for each of the new positions,

together with a comprehensive list of criteria for rating

the candidates for each job.

The rating process was the result of both individual

and group action. All candidates, including all salaried

employees such as Stendebach, considered arguably cap-

able of performing the tasks demanded in new jobs, were

individually graded by each of the six committee members

who assigned numerical ratings. Thereafter, the committee

discussed the ratings and attempted to achieve a consensus.

The numbers were tabulated and the candidates with the

highest totals got the job assignment.

During the first six months of 1978 the salaried’ work

force was reduced from 76 to 37. Stendebach was one of

the 39 terminated. The average age of the salaried work

force prior to the reduction was 43.8 years; the average

age post-reduction was 45.9 years.

The operation was a success but the patient expired.

The gargantuan efforts improved efficiency and reduced

production costs but economic conditions were such that

the plant could not continue as a viable business entity.

By October of 1979, the activity in the Corpus Christi

facility was stilled, and all but three of the remaining

work force were terminated.

1. The employment of many hourly employees was also termi-

nated. Those discharges are not material to the case at bar; the order

of their release was dictated by the seniority provisions of the collec-

tive bargaining agreement.

9a

[1] To prevail in an age discrimination case, as pre-

sented here, a plaintiff must establish that the defendant-

employer either refused to consider his retention or re-

location because of his age, or else regarded age as a

negative factor. Williams v. General Motors, Inc., 656

F.2d 120 (Sth Cir. 1981). The directed verdict was

grounded on the finding by the district judge that this

element of Stendebach’s case was wanting.

[2] To uphold this finding we must be persuaded that

no reasonable jury could have concluded otherwise. Hed-

rick v. Hercules, Inc., 658 F.2d 1088 (Sth Cir. 1981).

The standard in this circuit, against which we measure a

directed verdict, was announced in our en banc decision

in Boeing Company v. Shipman, 411 F.2d 365, 374 (Sth

Cir. 1969):

On motions for directed verdict and for judgment

notwithstanding the verdict the Court should con-

sider all of the evidence—not just that evidence which

supports the non-mover’s case—but in the light and

with all reasonable inferences most favorable to the

party opposed to the motion. If the facts and in-

ferences point so strongly and overwhelmingly in

favor of one party that the Court believes that reason-

able men could not arrive at a contrary verdict,

granting of the motions is proper. On the other hand,

if there is substantial evidence opposed to the mo-

tions, that is, evidence of such quality and weight

that reasonable and fair-minded men in the exercise

of impartial judgment might reach different conclu-

sions, the motions should be denied, and the case

submitted to the jury. A mere scintilla of evidence

is insufficient to present a question for the jury.

Thus charged, we consider the evidence presented “in

the light and with all reasonable inferences most favorable

10a

to” Stendebach. The totality of his evidence is composed

of: (1) a list containing the ages of employees, (2) the

statement by one committee member that someone at

corporate headquarters had stated that age might be a

relevant factor in the reorganization effort, and (3) an

assortment of statistical data. Viewing same in its entirety,

we are convinced that this evidence is, at best, a mere

scintilla which is insufficient to present a jury question.

Accepting as true that someone in corporate manage-

ment had told a committee member that age might be

relevant, the exhaustive test eventually adopted is devoid

of any reference to age. No numerical rating based on

age was included. The tests, varied and tailored for the

various jobs, and containing as many as 18 criteria, were

strictly adhered to by all members of the committee and

the tinal reduction-in-force decisions were based exclu-

sively on the scores received.’ In this regard we note that

the record is devoid of any suggestion that any representa-

tive of corporate management attempted to influence the

members of the committee in their final decision as to

which employees would be retained and which would be

released.

Stendebach makes much of a list of employees prepared

in October 1977 by Charles Shoemate, a corporate vice-

president who had been plant manager in Corpus Christi

from February 1974 until June 1976. The hand-written

Shoemate list was not prepared in conjunction with the

preparation or implementation of the reorganization plan.

This list, containing names, ages, years of service, and

2. The system was indirectly weighted in favor of older employees.

The general policy directed that if two employees were substantially

equal, ties were to be broken in favor of the one with the most

seniority with the company.

lla

grade and performance evaluations taken from the latest

performance appraisal forms, was prepared for another

purpose. There is no evidence that this list was used by

the committee members, nor is there evidence that the

contents or existence of the list in any way influenced

their decisions. There is no evidence that Shoemate was

involved in committee deliberations, directly or indirectly,

and no suggestion that he was inclined to discriminate

against older employees.

The only credible evidence respecting age supports

CPC. Upon completion of the committee’s efforts, its

product was evaluated at corporate headquarters for the

express purpose of assuring that the committee had not

inadvertently discriminated against older employees.

Plaintiff's evidentiary base is thus reduced to the statis-

tical data offered. We recognize the value of statistical

evidence and we have and will dispose of a proper case

on that basis. Harrell v. Northern Electric Company, 672

F.2d 444 (Sth Cir. 1982). But we are cautious in our

use of statistics drawn from small samples such as those

involved in the instant case. The reason for our hesitance

is obvious: “the smaller the sample size, the greater the

likelihood that the underrepresentation reflects chance

rather than discriminatory practices.” Williams v. Tala-

hassee Motors, Inc., 607 F.2d 689, 693 (Sth Cir. 1979).

See Mayor of the City of Philadelphia v. Education Equal-

ity League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d

630 (1974).

Thus cautioned, we examine Stendebach’s statistical

offerings and find them totally unpersuasive of a discrimi-

natory intent by CPC. By the end of 1977, there were

39 employees in the production, technical, and mechani-

12a

cal divisions of the Corpus Christi plant. It was against

these workers that Stendebach competed. Of those be-

tween the ages of 40 and 70, the group protected by the

ADEA, approximately 36% were laid off. Of those under

the age of 40, 55% lost their jobs. This reduction effected

an increase in the average age of the work force in these

departments from 47.06 to 47.35 years of age. And, as

earlier noted, after the reduction the average age of the

salaried work force increased from 43.8 years to 45.9

years.

[3] We note finally that appellant complains of the

admission in evidence of the worksheets used in evalu-

ating the employees. Stendebach maintains that these doc-

uments are self-serving and hearsay. The former is in-

consequent; the latter is incorrect. The documents were

introduced to show the methodology employed by the

committee in rating the employees, They were not offered

to prove the truth of but merely the fact of their contents.

As such, the instruments are not hearsay.

The district court is AFFIRMED.

13a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 81-2427

JAMES L. STENDEBACH,

Plaintiff-Appellant,

versus

CPC INTERNATIONAL INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING

(January 5, 1983)

Before CLARK, Chief Judge, POLITZ and HIGGIN-

BOTHAM, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby denied.

ENTERED FOR THE COURT:

/s/ HENRY A. POLITZ

United States Circuit Judge