Petition — Elliott v. Group Hospital Service, Inc.

83-1536 1

MAR 17 1984

No.

STEVAS.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

JACK A. ELLIOTT, RICHARD GALEN, ROBERT W. HEFFER,

GEORGE D. SPRADLEY, MAX TIPTON and

C. DUANE THOMPSON,

Petitioners

V.

GROUP HOSPITAL SERVICE, INC.,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ELIor P. TUCKER MICHAEL H. GOTTESMAN

MANDELL & WRIGHT (Counsei of Record)

21st Floor ROBERT M. WEINBERG

806 Main St. PETER O. SHINEVAR

Houston, TX 77002 BREDHOFF & KAISER

Curis DNR 1000 Connecticut Ave., N.W.

Suite 388 Washington, D.C. 20036

3808 Main St. (202) 833-9840

Houston, TX 77002

WILSON - Eras Printing Co., Inc. - 789-0096 - WASHINGTON. D.C. 20001

o <> ~

QUESTIONS PRESENTED

1. Whether, in an employment discrimination case,

the testimony of an employer official that the challenged

employment decision was prompted by a non-discrimina-

tory reason must be accepted absent “countervailing evi-

dence that it was not the real reason for the discharge.”

(Stated otherwise, whether, in an employment discrimi-

nation case, the fact-finder (here the jury) is permitted

to reject the uncontradicted testimony of an interested

employer witness on the basis of its assessment that the

witness is not credible. )

2. Whether, in an age discrimination case, evidence that

an employer has dismissed a number of highly qualified

older employees and replaced them with much younger

employees may be considered by the fact-finder, in the

absence of a showing that as a matter of probability the

pattern is “statistically significant.”

3. Whether, in an employment discrimination case,

where the plaintiff has introduced evidence establishing

a prima facie case and an official of the defendant em-

ployer testifies to a facially-rational non-discriminatory

reason for the challenged employment decision, the plain-

tiff bears a “heavy burden” of proof that the proffered

reason is pretextual.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED .................-.-:---0-c-seserenensnensees

3133333

JURISDICTION .

.

STATEMENT OF THE CASE

Rulings in the District Court

The Court of Appeals’ Decision

REASONS FOR GRANTING THE WRIT . ͥ

CONCLUSION — — —ůů

.

(iii)

la

iv

TABLE OF AUTHORITIES

Cases Page

Carter v. Duncan-Huggins, Ltd., —— F.2d ——,

84 FEP Cases 25 (D.C. Cir. 1984) 18, 17-18, 25-26

Castenada v. Partida, 480 U.S. 482 (1977) ............. 23

Chesapeake & O. R. Co. v. Martin, 288 U.S. 209

1 ———— TTT 16-17

Dickinson v. United States, 846 U.S. 889 (1953) 16

Hays v. Republic Steel Corp., 581 F.2d 1307 (5th

r T 10

Hazelwood School District v. United States, 433

c 23

Inmates of Nebraska Penal, Etc. v. Greenholtz, 567

F.2d 1868 (8th Cir. 1977), cert. denied, 439 U.S.

c rec eer eee aD 18, 27-28

Jay Edwards, Inc. v. New England Toyota Dis-

tributor, 708 F.2d 814 (Ist Cir.), cert. denied,

. e eres 25

Labor Board v. Walton Mfg. Co., 369 U.S. 404

rr ( teadnstimesmiannss 18, 14-17, 19

Marsh v. Eaton Corp., 689 F.2d 328 (6th Cir.

rr / ! 18, 25-26

McDonnell Douglas Corp. v. Green, 411 U.S. 792

// / chit edie neat tee 20

NLRB v. Camco, Inc., 340 F.2d 808 (5th Cir.

TP— A ata. 25

Pullman-Standard v. Swint, 456 U.S. 278 (1982).. 28

Sonnentheil v. Christian Morlein Brewing Co., 172

ft PR Re EOE AP ee Saas. 16

Teamsters v. United States, 481 U.S. 824 (1977) ... 20

Texas Dept. of Community Affairs v. Burdine, 450

IN 2¹

U.S. Postal Service Bd. of Governors v. Aikens,

— U.S. ——, 108 S.Ct. 1478 (1983) 14, 18, 21, 29

Universal Camera Corp. v. Labor Board, 340 U.S.

Kr 19

Westinghouse Electric Corp. v. Vaughan, No. 82

2042, cert. gr., October 17, 1988 14

Statutes

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

§ 621 et seq. .... passim

*

TABLE OF AUTHORITIES—Continued

Page

Section 4(a) (1), 29 U.S.C. § 623 (a) (1) ......... 2

Section 12 (a), 29 U.S.C. § 631 (a) 2

Civil Rights Act of 1866, 42 U.S. C. § 1981 17

Judiciary Act, 28 U.S.C. § 1254(1) .......................-. 2

Miscellaneous

Mezines, Stein & Gruff, Administrative Law

EE 16, 17

_

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. —

JACK A. ELLIOTT, RICHARD GALEN, ROBERT W. HEFFER,

GEORGE D. SPRADLEY, MAX TIPTON and

C. DUANE THOMPSON,

. Petitioners

GrouP HOsPITAL SERVICE, INC.,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Jack A. Elliott, Richard Galen, Robert W. Heffer,

George D. Spradley, C. Duane Thompson, and Max Tip-

ton respectfully petition this Court to review the judg-

ment of the United States Court of Appeals for the Fifth

Circuit entered in this proceeding on September 16, 1983.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit, reported at 714 F.2d 556, is reprinted

in the Appendix (hereinafter “App”) at la-22a. The or-

der denying rehearing and rehearing en banc is unre-

ported, and is reprinted at App. 23a. The judgment of

the United States District Court for the Southern Dis-

trict of Texas, entered following a jury verdict, is unre-

ported, and is reprinted at App. 24a-27a. The orders of

the District Court denying respondent’s motions for judg-

ment n.o.v. and new trial are unreported, and are re-

printed at App. 28a-29a.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on September 16, 1983. A timely pe-

tition for rehearing was denied on November 25, 1983.

On February 14, 1984, Justice White signed an order ex-

tending the time for filing a petition for a writ of certi-

orari to and including March 17, 1984 (App. 30a). This

Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTE INVOLVED

The pertinent provisions of the Age Discrimination in

Employment Act, 29 U.S.C. §§ 621 et seg., are as follows:

Section 4(a) (1), 29 U.S.C. § 623 (a) (1):

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, con-

ditions, or privileges of employment, because of such

individual’s age.

Section 12 (a), 29 U.S.C. § 681 (a):

The prohibitions in this chapter shall be limited to

individuals who are at least 40 years of age but less

than 70 years of age.

STATEMENT OF THE CASE

In this action under the Age Discrimination in Employ-

ment Act (“ADEA”), 29 U.S.C. §621 et seg., the jury,

after a five-day trial, returned a verdict for the plain-

tiffs (petitioners), but the Court of Appeals overturned

that verdict. In this posture, the evidence must be viewed

in the light most favorable to petitioners, and our state-

ment proceeds accordingly.

Respondent is an insurance company, doing business as

Blue Cross-Blue Shield of Texas (App. 8a). Petitioners

all were, until the terminations giving rise to this law-

suit, executives in respondert’s Marketing Division (App.

4a). In April, 1978, Walter Hachmeister was promoted

to the position of president-elect of respondent (App.

3

8a). Hachmeister announced that he wanted “new blood”

in the Marketing Division (App. 17a) and that “my

people are going to have to be lean and mean” (App.

17a; Tr. 1058, 606-607). Within a five-month period,

an unprecedented shake-up of incumbent executives oc-

curred within the Marketing Division, with older execu-

tives (including the six petitioners) terminated, and

younger men, who had been their subordinates, moved up

to replace them.

Ten executives were fired, all above the age of 40 and

thus within the age group protected by the ADEA. Six

(the six peti.ioners herein) were replaced. Each was re-

placed by a younger man. Five of the six replacements

were under 40. The average age of the petitioners was

49.5, thirteen years older than the average age of their

replacements, 36.5 (App. 17a-18a).

Of the ten terminations, eight were from top executive

positions within the Division. The following table, de-

rived from P. Ex. 141-A, lists the incumbents in the top

executive levels of the Marketing Division, showing the

ages of those who were terminated and those who were

kept:

Position Name Age Terminated

Vice Presideat Eller 48 x

Assistant V.P. Galen 49 x

Owens 89

Reg. Sales Mgr. Tipton 56 X

Elliott 50 X

M. Owens 45 x

Lutz 44 x

Bagwell 43

David 42

Slack 88

Mgr. / Director Shivers 61

Spradley 58 X

Thompson 48 x

Pace 87

Ricks 29

4

As the table reflects, the oldest of the two Assistant Vice

Presidents was terminated, as were the four oldest of the

seven Regional Sales Managers, and, with one exception,

the oldest of the Manager/Directors. Additionally, at the

district manager level (not shown on the table), there

were two terminations, both of persons over the age of

40. (App. 18a, n.12). No one below the age of 41 was

terminated. (Id.).

Each of the petitioners was a long-term employee of

respondent, all but two having at least 20 years of service

(Tr. 10, 302, 353, 494). Each was terminated without

prior notice or discussion, and (except in the case of peti-

tioner Tipton) without being given any reason for the

termination other than that there was to be a “new

team” and the petitioner would not be on it (Tr. 28,

77-78, 218-20, 295-96, 352-54, 422-24). None of the pe-

titioners (again except Tipton) was offered continued

employment in another capacity (Tr. 997-998).

Respondent had a comprehensive evaluation system, un-

der which each executive was annually rated in a variety

of categories by higher management and on the basis of

that evaluation was assigned an overall rating of Mar-

ginal, Adequate, Competent, Superior or Distinguished.

(P. Ex. 9). At the time of their termination, two of

the petitioners (Heffer and Tipton) were rated “Distin-

guished,” a rating reserved for that “small percentage

of employees” who are “truly outstanding” and combine

“extraordinary accomplishments” with “brilliance” (Tr.

233, 488; P. Ex. 9, p. C-10). Three of the petitioners

(Galen, Elliott and Spradley) were rated “Superior,” a

rating “reserved for the unusually effective employee”

whose performance is “above what is normally expected”

1 Petitioner Thompson had 18 years of service, and petitioner

Heffer 11 years of service (Tr. 221, 411).

2 Alone of the petitioners, Tipton allegedly was discharged for

“cause” (Tr. 997). Ironically (given that allegation), Tipton was

the only petitioner offered continued employment in another ca-

pacity (Tr. 998).

5

(Tr. 14, 298-99, 348; P. Ex. 9, p. C-10). The sixth peti-

tioner (Thompson) was rated “Competent,” meaning that

he [meets the full job requirements satisfactorily with

some unusually effective performance. . [and] is defi-

nitely satisfactory on the present job” (Tr. 416; P. Ex.

9, p. C-9).

Four of the petitioners had managerial authority over

sales, and each of these four was assigned a sales quota

by top-management at the outset of each year. Meeting

that quota was, according to respondent’s witness (Tr.

978-979), the principal responsibility for these executives.

Each of the four had exceeded the assigned quota in each

of the two years preceding his termination, in some in-

stances by as much as 200% to 400%, and three of the

four had exceeded quota consistently for years before

as well (Tr. 18-19, 242-43, 252, 299, 489-90).

Respondent’s evidence as to the reasons for the termi-

nations consisted of the testimony of its officials who par-

ticipated in the termination decisions:

According to respondent’s testimony, “the reason for

Galen’s discharge was a perceived disloyalty because he

had sought to undercut his immediate superior, approach-

ing Hachmeister with a ‘resumé’ of things to be accom-

plished were he to succeed that superior” (App. 19a).

Galen, a 20-year employee rated “Superior,” testified that

he had approached Hachmeister because he had heard ru-

mors that his superior was leaving, and that he told

Hachmeister he would like to be considered for the posi-

tion if the rumors were true but that he was not seeking

to displace the incumbent if the latter wished to remain

(Tr. 96). Respondent did not dispute Galen’s version of

his conversation with Hachmeister (Tr. 976). Galen, who

was 49, was replaced by the youngest of his seven im-

mediate subordinates, Tom Slack, who was 33 (Tr. 27;

supra, p. 3).

Elliott was terminated, according to respondent’s wit-

nesses, “because his region had not achieved the com-

pany’s desired market penetration or productivity, the un-

6

disputed fact being that the market penetration there (in

Houston) was approximately five to six percent, as com-

pared to the company’s state-wide market penetration of

twenty percent” (App. 19a). Elliott, a 20-year employee

rated “Superior,” testified, and also submitted documen-

tary evidence proving, that top management set sales

quotas for Houston reflecting what respondent thought

attainable in the competitive Houston market, quotas

that Elliott had met and exceeded (Tr. 299). Elliott,

who was 50, was replaced by the promotion of Royce

Barron, age 33, from a lower-level position (Tr. 40;

P. Ex. 141-A).

Tipton was terminated, according to respondent’s wit-

nesses, because “he had violated company policy by having

a contractor who was remodeling his new regional offices

leave out a wall, producing the twin effect of enlarging

his personal office beyond the square footage permitted by

the company for an officer of his rank and eliminating

the employees’ lounge” (App. 19a-20a). Tipton, a 20-year

employee rated “Distinguished,” testified that he had re-

ceived authorization from his superior to leave out the

wall pending approval at a higher corporate level (Tr.

480)—authorization that the superior confirmed in his

testimony (Tr. 129). Because the authorization was con-

tingent, Tipton had made arrangements with the contrac-

tor that the wall would be installed on two hours’ notice

at no extra charge should that course become necessary

(Tr. 483-84)—an arrangement that was known by re-

spondent’s officials at the time they decided to terminate

Tipton (Tr. 483-84, 783-84). Tipton, who was 56, was

replaced by Larry Bagwell, who was 43 (Tr. 4). 782).

Tipton had been told by top management only weeks be-

fore his termination that his record was superior to

Bagwell’s (Tr. 500-501). Alone of the petitioners, Tip-

ton was offered continued employment in a lower-level

capacity (Tr. 998).

Heffer was terminated, according to respondent’s wit-

nesses, for “inability to work with others” (Tr. 594).

7

According to these witnesses, Heffer had trouble keeping

salesmen because of his personality (Tr. 767), and his

new superior (the 33-year-old Barron, who replaced peti-

tioner Elliott), had derived a perception from his brief

contacts with Heffer that Heffer resented Barron’s promo-

tion and that they would not be able to work together as

a “team” (Tr. 683-84, 689). Heffer, an 11-year employee

rated “Distinguished,” testified that the only reason sales-

men left was that the company’s salaries for salesmen

were not competitive in the Houston area (Tr. 247)—a

fact confirmed in written company documents“. Three

salesmen who had worked under Heffer testified that

Heffer had a great attitude and salesmen loved working

for him (Tr. 1011, 1017, 1035), and Heffer’s written

evaluations gave him the highest-possible ratings in man-

agement of subordinates (P. Ex. 3, Nov. 1, 1977, per-

formance appraisal). As for Barron’s perceptions, Heffer

testified that they had met only twice since Barron’s pro-

motion, that he (Heffer) had done nothing to communi-

cate resentment of Barron’s promotion, and that in fact

he had not resented it (Tr. 1043-44). One of respondent’s

own witnesses testified that Heffer had always had a good

attitude and he was “surprised” when he learned that

Heffer had been terminated (Tr. 812-14). Heffer, who

was 41, was replaced through the promotion of Mike Mc-

Guire, six years his junior, who was moved up from man-

aging a smaller office (Tr. 40, 268-69).

Spradley was terminated, according to respondent’s wit-

nesses, because he “lacked the personality to deal with

others in management positions and had demonstrated

that he did not have the capabilities or desire to be Man-

ager of National Accounts” (App. 19a). Respondent’s

witness conceded on cross-examination that Spradley had

received an “adjustment raise” three months prior to his

termination, and that respondent’s practice is that “if

an employee’s performance is not satisfactory he does not

Wo are not economically competitive in our salary program

with the Houston employment market” (P. Ex. 1, Dec. 22, 1977

performance appraisal).

receive an adjustment raise“ (Tr. 579). Spradley, who

was age 53 and a 30-year employee, was rated “Superior”

(Tr. 41, 348, 353). He was replaced though promotion

of Pat Patrick, age 39 (Tr. 354-55) .*

Thompson, according to respondent’s witnesses, was dis-

missed because he had “neglected” the sales training pro-

gram that was his primary responsibility (App. 19a).

Thompson, who was an 18-year employee and rated “Com-

petent,” testified that the program was in fine shape until

the year preceding his termination, at which point he had

been pulled away for several months to perform special

projects at the request of the company president; that in

consequence the program needed updating; that at the

time he was terminated he had completed a memorandum

outlining the steps needed to update the program; and

that the revised program prepared by his successor was

substantially along the lines he had proposed (Tr. 419-20,

437-39, 457-63). A number of witnesses called by peti-

tioners testified that the sales training program had been

effective up to the point Thompson was diverted by the

special assignments (Tr. 249-50, 310, 1012-13, 1018-19,

1029-31) ; respondent’s witness testified that Thompson

had “given good performance” but not “what 1 considered

top-flight performance” (Tr. 939). Thompson, who was

48, was replaced by Ed Hulsey, age 36 (Tr. 41).

* The opinion below states (App. 19a) :

The record reflects that during the three years preceding

Spradley’s termination he had been transferred into and out

of a total of four different positions, with the final transfer,

Manager of National Accounts, being a decided demotion.

The record shows that the first three positions were special assign-

ments heading short-term projects at the request of the company

president (Tr. 341-44), and that Spradiey’s transfer to Manager

of National Accounts (the only point that he suffered a reduction

in pay) was voluntary and at Spradley's request, because the work

was in his area of expertise and thus more to his liking (Tr. 344

(Spradiey) ; Tr. 827 (respondent's witness) ).

9

Respondent called an expert witness in statistics.

The expert was told nothing about the incumbents of the

top jobs in the Marketing Division except their ages and

the positions they held. He was asked to testify to the

probability that in a random termination of eight incum-

bents from that group all eight would be age 40 or over.“

The expert testified that the probability of this phenome-

non occurring randomly was .0643, or approximately one

in sixteen. The expert further testified that it is a con-

vention in statistics to treat only probabilities of five per-

cent or less (approximately two standard deviations) as

statistically significant, and as the probability here was

over six percent there was not by that convention a sta-

tistically significant correlation between age and the phe-

nomenon that had occurred (D. Ex. 34, Chart E; Tr. 865-

67, 880). On cross-examination, the expert acknowledged

that his analysis took no account of the ages of those who

replaced the terminatees, and thus reflected nothing as to

the probability of the random occurrence of both eight

terminatees all being over 40 and their replacements

being substantially vounger (Tr. 883).

Rulings in the District Court

The district court denied respondent’s motion, made at

the close of petitioners’ case-in-chief, to dismiss under

Rule 41(b) on the ground that petitioners “had failed to

establish a prima facie case” (App. 6a). At the close of

all the evidence, the district court denied a renewed mo-

tion of the same effect (App. 7a, n. 7; 8a).

The district court instructed the jury that to prevail

each petitioner had to prove “that age was a determining

factor” in his termination, i e., that “the employer would

not have acted as he did but for the employee’s age”

The expert's analysis did not embrace the district sales man-

ager positions, which had yielded two additional terminations, both

of persons over 40. See n. 14, infra.

TS.

10

(R. 78, p. 6). The jury returned a verdict in favor of

each of the petitioners (App. 24a-25a).*

The district court denied respondent’s motion for judg-

ment n. o. v., b] ecause the Court holds that the evidence

presented at trial of this case was of such quality and

weight that reasonable and fair-minded persons in the ex-

ercise of impartial judgment might reach different con-

clusions” (App. 28a). Final judgment was entered on

the jury verdict (App. 24a-27a), and respondent’s mo-

tion for a new trial was denied (App. 29a).

The Court of Appeals’ Decision

The court of appeals reversed, holding that “the evi-

dence was insufficient to support the jury’s finding of age

discrimination” (App. 22a). The court acknowledged that

at least five of the six petitioners had established a prima

facie case of age discrimination, i.e., that each had shown

that he was qualified for the position he held, that he

was discharged, that he was within the class protected by

the ADEA (ages 40-70), and that he was replaced by

someone younger (App. 16a-27a, 20a).’ But, the court

*The jury also found that the discharge of each plaintiff was

“willful” (App. 25a). Despite that finding, the district court re-

fused to award the liquidated damages provided in 29 U.S.C.

§ 626(b) for “willful” violations of the ADEA, declaring that it

was exercising the “discretion” that the Fifth Circuit has allowed

to district courts in that regard (App. 26a, citing Hays v. Republic

Steel Corp., 531 F.2d 1807 (5th Cir. 1976)). Petitioners cross-

appealed, contending that, as other circuits have held, liquidated

damages for “willful” violations are mandatory under the ADEA

(App. 2a-8a, n. 2). The court of appeals declined to decide this

issue, in light of its overturning of the violation finding (id.; see

also App. 22a). This remedy issue would, of course, remain for

decision by the court of appeals upon remand were this Court to

grant certiorari and reverse the decision below as to the merits.

The court of appeals noted that the parties were in dispute as

to whether the sixth petitioner, Spradliey, had shown he was quali-

fied to perform his job (App. 17a), and did not expressly state its

view on whether Zpradley had established a prima facie case.

Given the undisputed testimony that three months before his ter-

mination Spradley received a raise that goes only to those whose

11

noted, witnesses for respondent had testified to a reason

other than age for terminating each (App. 19a-20a), and

“i]t cannot be said that any of these reasons is irra-

tional or idiosyncratic” (App. 20a). The court then de-

clared:

Once such a reason for discharge is articulated by

adequate evidence, the plaintiff’s established prima

facie case is not necessarily sufficient to take the case

to the jury. [Jd.]

The court reasoned that when a plaintiff presents “no

more evidence of discrimination” than that necessary to

establish a prima facie case,

and the defendant presents evidence justifying and

explaining the discharge, the trier of fact is not free

to disregard that explanation without countervailing

evidence that it was not the real reason for the dis-

charge. IId.]

The court stated further:

[W]here, as here, the reasons articulated are ra-

tional ones, the objective truth of which is not seri-

ously disputed, the burden of establishing them as

pretextual is a heavy one indeed. [App. 22a].

The court explained what evidence might meet that

heavy burden:

[PJerhaps a successful statistical demonstration by

expert testimony, perhaps proof that others similarly

situated were not discharged. [Jd.]

That heavy burden was not met here:

Such proof is lacking here; and as to this, the verdict

lacks rational support in the record. Since it does,

and since the element of pretext was critical, the ver-

dict cannot stand. [/d.]

In arriving at this point, the court below dismissed as

without probative force petitioners’ showing that their

terminations were part of an unprecedented “purge[]”

(App. 4a) — initiated by a new president’s call for “new

performance is adjudged satisfactory (see pp. 7-8, supra), it seems

clear that the jury could have found Spradley qualified to perform

his job.

12

blood” and “lean and mean” executives—in which ten

older executives were terminated and replaced by persons

on average 13 years younger. The court reasoned that the

testimony of respondent’s expert that “the probability that

age was not a factor was . . 6.43 percent” meant that

“age could neither be ruled in nor ruled out statistically

as the factor leading to the discharges” (App. 18a and

n. 12); as “the statistical evidence was equivocal,” rea-

sonable jurors” could not “properly have concluded“ that

the pattern of discharges was probative of discriminatory

intent (App. 20a). Indeed, “it appears that the statistical

evaluation undercuts the theory that age was a deter-

mining factor in any of the employment decisions” (App.

18a, n. 12).“

REASONS FOR GRANTING THE WRIT

The court below was able to conclude that “the evidence

was insufficient to support the jury’s finding of age dis-

crimination” (App. 22a) only because it had made a num-

ber of legal rulings depriving the evidence presented by

plaintiffs of its natural probative force. Each of these

rulings has significant implications for the trial and res-

olution of employment discrimination cases generally.

First, the court ruled that although a plaintiff has es-

tablished a prima facie case of employment discrimina-

tion, if an official of the defendant testifies that a non-

discriminatory reason motivated the challenged employ-

* Petitioners had introduced substantial evidence rebutting the

factual accuracy of the reasons advanced in the testimony of

respondent’s witnesses (see pp. 5-8, supra). That testimony was

detailed in petitioners’ brief below, and the opinion of the court

of appeals implicitly reflects (albeit disparagingly) its awareness

of that evidence: “none [of the petitioners] seriously disputed

either his awareness of or the objective truth of the company’s

stated ground of dissatisfaction with him” (App. 20a, emphasis

moved); “each appellee advanced little if anything more than his

belief that age caused his discharge” (App. 21a, emphasis added);

“here, the reasons articulated [by respondent’s witnesses) are

rational ones, the objective truth of which is not seriously dis-

puted” (App. 22a, emphasis added).

13

ment decision, “the trier of fact is not free to disregard

that explanation without countervailing evidence that it

was not the real reason for the discharge” (App. 20a).

This rule deprives the jury of the power to discredit the

defendant’s witness’ testimony based on the witness’ de-

meanor, the imprecision of the witness’ testimony, or the

improbability of the witness’ explanations in light of other

circumstances in the case. The rule adopted by the court

below is in conflict with this Court’s decision in Labor

Board v. Walton Mfg. Co., 369 U.S. 404 (1962) (striking

down the identical rule when applied by the Fifth Circuit

in the context of anti-union motivation under the NLRA),

and is in direct conflict with a recent decision of another

circuit, Carter v. Duncan-Huggins, Ltd., —— F.2d ——,

34 FEP Cases 25, 31 (D.C. Cir. 1984).

Second, the court found that each plaintiff’s case had to

be considered as if that plaintiff were the only older em-

ployee that was fired, without regard to the evidence that

ten highly qualified senior employees were fired and re-

placed by significantly younger persons. The court ruled

that such evidence was not probative because this pattern

of conduct was not shown to be “statistically significant”

(App. 18a and n. 12, 20a). This ruling is in direct con-

flict with the decision of the Sixth Circuit in Marsh v.

Eaton Corp., 639 F.2d 328 (6th Cir. 1981), and the

decision of the District of Columbia Circuit in Carter

v. Duncan-Huggins, supra. The court’s ruling also pro-

vided that statistical evidence of probability levels that

are not standing alone satistically significant may not

be considered by the fact-finder in conjunction with other

evidence of discriminatory intent. That aspect of the

court’s ruling is in conflict with Inmates of Nebraska

Penal, Etc. v. Greenholtz, 567 F.2d 1868, 1879 (8th Cir.

1977), cert. denied, 489 U.S. 841 (1978).

Third, the court ruled that where an employer’s wit-

nesses testify that non-discriminatory reasons motivated

14

the challenged employment decision, and those reasons are

“rational ones, the objective truth of which is not seri-

ously disputed, the burden of establishing them as pre-

textual is a heavy one indeed” (App. 22a). This “heavy

burden,” which has no analogue elsewhere in the law, is

inconsistent with this Court’s recent declaration that the

factual question of employer motivation is to be decided

“just as district courts decide disputed questions of fact

in other civil litigation.” U.S. Postal Service Bd. of Gov-

ernors v. Aikens, —— U.S. ——, 103 S. Ct. 1478, 1482

(1983).

As we discuss below, each of these issues merits this

Court’s plenary consideration.“

1. The court below has held that notwithstanding the

plaintiffs’ establishment of a prima facie case, “the trier

of fact is not free to disregard” the facially reasonable

explanation proffered in the employer’s otherwise uncor-

roborated oral testimony “without countervailing evidence

that it was not the real reason for the discharge” (App.

20a). That rule is identical to the rule that same court

had followed in anti-union motivation cases under the

National Labor Relations Act—until the rule was struck

down by this Court in Labor Board v. Walton Mfg. Co.,

369 U.S. 404 (1962). As quoted by this Court in Wal-

ton, the Fifth Circuit’s rule in NLRA cases was as

follows:

o This Court has granted certiorari in Westinghouse Electric

Corp. v. Vaughn, No. 82-2042, cert. gr. Oct. 17, 1988, a case in which

the petitioner-employer asks this Court to impose certain limita-

tions upon the fact-finder’s freedom in evaluating evidence of

discriminatory motivation. Brief for the Petitioners in No. 82-

2042, p. i, Questions Presented 1 and 2. The issues raised in

Vaughn are similar to, but not the same as, the first issue raised

herein. The resolution of Vaughn is not likely to resolve the first

issue presented in the instant case, and it cannot resolve the re-

maining issues presented in this case. Accordingly, we urge that

certiorari be granted in this case without awaiting disposition

of Vaughn.

15

[T]he controlling and ultimate fact question is the

true reason which governed the very person who dis-

charged or refused to reemploy in each instance.

[T]he discharger knows the real cause of discharge,

it is a fact to which he may swear. If he says it was

not union membership or activity, but something else

which in fact oxisted as a ground, his oath cannot he

disregarded because of suspicion that he may be

lying. There must be impeachment of him, or sub-

stantial contradiction, or if circumstances raise

doubts, they must be inconsistent with the positive

sworn evidence on the exact point. [369 U.S. at 406-

407.]

This Court in Walton struck down the rule just quoted,

explaining its vice in terms that are equally applicable to

this case:

The test in the [Fifth Circuit’s opinion! . . is that

the employer’s statement under oath must be believed

unless there is “impeachment of him” or “substantial

contradiction,” or if there are “circumstances” that

“raise doubts” they must be “inconsistent with the

positive sworn evidence on the exact point.” But the

Examiner—the one whose appraisal of the testimony

was discredited by the Court of Appeals—sees the

witnesses and hears them testify, While . . the re-

viewing court look[s] only at cold records. As we

said in the Universal Camera case:

. . . The findings of the examiner are to be

considered along with the consistency and in-

herent probability of testimony. The significance

of his report, of course, depends largely on the

importance of credibility in the particular case.

340 U.S. at 496.

For the demeanor of a witness

... may satisfy the tribunal, not only that the

witness’ testimony is not true, but that the

truth is the opposite of his story; for the denial

of one, who has a motive to deny, may be uttered

with such hesitation, discomfort, arrogance or

defiance, as to give assurance that he is fabricat-

2 *

16

ing, and that, if he is, there is no alternative but

to assume the truth of what he denies.“ Dyer v.

MacDougall, 201 F.2d 265, 269. [Walton, 369

U.S. at 407-408.] ”

10 The holding in Walton reflects a long-standing principle, ear-

lier applied in Sonnentheil v. Christian Morlein Brewing Co., 172

U.S. 401 (1899). The issue in Sonnentheil was the propriety of

submitting to the jury the question whether creditors accepting a

deed of trust had knowlege at the time of acceptance that the deed

was fraudulent, despite their uncontradicted testimony that they

had no such knowledge. This Court held the matter was properly

submitted to the jury:

[The witnesses] were all apparently interested in sustaining

the deed, and in denying all knowledge of a fraudulent intent,

and while the jury has no right to arbitrarily disregard the

positive testimony of unimpeached and uncontradicted wit-

nesses .. the very courts that lay down this rule qualify it

by saying the mere fact that the witness is interested in the

result of the suit is deemed sufficient to require the credibiilty

of his testimony to be submitted to the jury as a question of

fact. [172 U.S. at 408.]

Justice Frankfurter, dissenting in Walton, declared that the hold-

ing was inconsistent with two prior decisions of the Court (869

U.S. at 419-20), and some commentators, in consequence, have sug-

gested that “(t]he Supreme Court seems to be on both sides of the

question.” Mezines, Stein & Gruff, Administrative Law, § 51.02 at

pp. 51-34 to 51-85 (1988). In fact, however, the decisions cited by

Justice Frankfurter are rcadily distinguishable. In Dickinson v.

United States, 846 U.S. 389, 395-897 (1963), the Court held that

a draft board could not deny a registrant exemption from military

service as a “regular or duly ordained minister” by disbelieving the

registrant’s unimpeached and uncontradicted “testimonial and doc-

umentary evidence” that he was engaged full-time as a minister.

The case is distinguishable first, because the testimony was cor-

roborated by documentary evidence, and second, because the evi-

dence related not to the witness’ state of mind (a fact as to which

there can be no other direct evidence) but to whether he func-

tioned as a minister on a full-time basis (a fact which is sus-

ceptible to independent verification). The Court noted in this

respect that the local boards may call on the investigative agen-

cies of the federal government” (346 U.S. at 397). Similarly,

Chesapeake & O. R. Co. v. Martin, 288 U.S. 209 (1981), noted, but

refused to apply, the “numerous expressions . . . to be found in the

decisions to the effect that the credibility of an interested witness

17

In the light of Walton, the principle that “uncontra-

dicted testimony may be disbelieved solely on the basis of

the factfinder’s determination of credibility” is pre-

dominant among the circuits,” Mezines, Stein & Gruff,

Administrative Law, § 51.02 at p. 51-35 (1983) (citing

cases). Most recently, in an employment discrimination

ease under 42 U.S.C. § 1981 decided in February, 1984,

the District of Columbia Circuit adopted this principle, in

a decision that conflicts squarely with that of the court

below. Carter v. Duncan-Huggins, Ltd., —— F.2d ——,

34 FEP Cases 25, 31 (D.C. Cir. 1984) :

. . . Duncan-Huggins offered business reasons for

some of its actions .... The Company now appears

to argue that its mere articulation of any putatively

legitimate business rationale requires the court to

take the case from the jury. We reject that argu-

ment. . Duncan-Huggins’ alleged justifications for

the disparate treatment were presented through the

testimony of past or current employees, officers, or

owners. For the most part, the only evidence of in-

tent was oral testimony; the explanations were with-

out support of extrinsic evidence... The weight

to be given to these offered business justifications

thus required an evaluation of witness credibility.

And an evaluation of witness credibility is the ex-

clusive function of the jury. Indeed, where the only

evidence of intent is oral testimony, a jury could al-

ways choose to discredit the proffered explanation.

As we stated in Metrocare v. Washington Metropoli-

tan Area Transit Authority, 679 F.2d [922] at 926-

27 [D.C. Cir. 1982]: “The jury, whose province it

was, could disbelieve the . . . supervisors’ testimonial

always must be submitted to the jury, and that that body is at

liberty to reject his testimony upon the sole ground of his interest”

(id. at 216), because the fact at issue was “the time reasonably

necessary for completion of delivery to the Bowman warehouse

after the receipt of the shipment at petitioner’s yards” (id. at 215),

and the witness’ testimony on this point “was not controverted by

proof or circumstance, directly or inferentially; and it is difficult

to see why, if inaccurate, it readily could not have been shown to be

ao” (id. at 216).

18

explanation of why they acted against the [employee]

. . and thus could find their asserted justifications

to be pretextual.” Because the strength of the pur-

ported business reasons—and indeed the strength of

the Company’s case—was thus inextricably inter-

related to questions of witness credibility, the case

had to go to the jury.

Resolution of this circuit conflict is particularly impor-

tant to the future litigation of employment discrimination

cases. This Court observed recently, in U.S. Postal Service

Bd. of Governors v. Aikens, —— U.S. ——, 108 S. Ct.

1478, 1482-88 (1983) ;

All courts have recognized that the question fac-

ing triers of fact in discrimination cases is both

sensitive and difficult. The prohibitions against dis-

crimination contained in the Civil Rights Act of 1964

reflect an important national policy. There will sel-

dom be “eyewitness” testimony as to the employer’s

mental processes. But none of this means that trial

courts or reviewing courts should treat discrimina-

tion differently from other ultimate questions of fact.

... The law often obliges finders of fact to inquire

into a person’s state of mind. As Lord Justice Bowen

said in treating this problem in an action for mis-

representation nearly a century ago:

“The state of a man’s mind is as much a fact

as the state of his digestion. It is true that it is

very difficult to prove what the state of a man’s

mind at a particular time is, but if it can be as-

certained it is as much [a] fact as anything

else.” Eddington v. Fitzmaurice, 29 Ch. Div. 459,

483 (1885).

When the person whose state of mind is at issue takes

the witness stand, his credibility is likely to be central to

the resolution of the case. To require, as the court below

has done (App. 20a), that that person’s testimony that

an innocent reason motivated an employment decision

must be credited in the absence of “countervailing evi-

dence that it was not the real reason for the discharge”

19

is to usurp the fact-finder’s function on the central fac-

tual issue in the case. As Walton recognized, the witness’

demeanor may be critical to assessing the credibility of

his testimony." Beyond that, the generality of his inno-

cent” explanation and his inability to furnish specifics

that support the generalization may reinforce the fact-

finder’s impression that the witness is not telling the

truth. And, finally, that impression may be reinforced

still more by the inherent improbability that the innocent

reason, even if factually correct, would truly have moti-

vated the witness to dismiss an otherwise stellar em-

ployee; as Walton recognized, the “inherent probability of

testimony” may be key to the fact-finder’s assessment of

th ewitness’ credibility.”

The issue thus raised is central to the litigation of em-

ployment discrimination cases where proof of intentional

discrimination is required. It is common for the plaintiff

to make out a prima facie case of intentional discrimina-

As the court below observed, albeit in a different context,

“(s)elf-serving . . . testimony is subject to especially searching

scrutiny” (App. 16a).

12 Walton, 369 U.S. at 408, quoting Universal Camera Corp. v.

Labor Board, 340 U.S. 474, 496 (1951). These considerations were

present in this case with respect to all the petitioners. Two were

rated Distinguished by respondent’s own evaluations, three Su-

perior, and one Competent (see pp. 4-5, supra). It was surely

for the jury to decide whether respondent’s witnesses’ testimony

that they terminated long-standing employees of this caliber for

the reasons they proffered should be credited. In ADEA cases as

in all others, common sense remains a part of the jury’s fact-finding

arsenal. The case of petitioner Tipton (p. 6, supra), furnishes a

typical example. Respondent’s witnesses testified that they termi-

nated this “Distinguished” employee (whose superiority in respond-

ent’s view to the person who replaced him was undisputed) because

with the tentative approval of higher management, he enlarged his

office under arrangements that the smaller size could be reinstated

on two hours’ notice at no cost to the company. The court below

held that the jury was not free, from ite assessment of the de-

meanor of respondent’s witnesses and of the inherent plausibility

that a 20-year employee of Tipton’s quality would be peremptorily

dismissed on such a trivial ground, to find this testimony incredible.

ae

20

tion by introducing evidence establishing the elements, or

an appropriate variation of the elements, set forth in Me-

Donnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1978)

(the plaintiff was qualified for the job, was a member of

a protected group, and was denied (or removed from)

the job, and the job was then given to another not in the

protected group). As this Court has explained, proof of

those elements eliminates:

. at least . . the two most common legitimate

reasons on which an employer might rely to reject a

job applicant: an absolute or relative lack of qualifi-

cations or the absence of a vacancy in the job sought.

Elimination of these reasons for refusal to hire is

sufficient, absent other explanation, to create an in-

ference that the decision was a discriminatory one.

[Teamsters v. United States, 431 U.S. 324, 358 n. 44

(1977) (emphasis added) .]

If the inference is justified “absent other explanation,”

what is the effect on that inference of testimony by an

employer representative that the employer’s conduct at

issue was motivated by some legitimate reason? * Obvi-

ously, if the testimony of the employer witness is believed

by the fact-finder, any inference of discrimination arising

from the prima facie case would be wiped away. But if

the testimony of the employer witness is not believed—

whether because of plaintiff’s rebuttal case, plaintiff's

cross-examination, the inherent implausibility of the ex-

planation, or simply the witness’ demeanor—the inference

of discriminatory intent would still be warranted. A dis-

believed explanation can no more destroy the inference

than an absent explanation.

It follows that where an employer witness testifies

to a legitimate reason for challenged conduct, the fact-

finder must be allowed to determine whether that testi-

mony should be believed, even if the plaintiff does not in-

18 Our discussion focuses solely on the factual inference that

is warranted from the evidence establishing the prima facie case,

not upon the status of the rebuttable presumption that also is

created by such evidence.

21

troduce “countervailing evidence that it was not the real

reason for the discharge.” (App. 20a). This Court ap-

pears to have indicated as much in Texas Dept. of Com-

munity Affairs v. Burdine, 450 U.S. 248, 254-256 and

notes 9, 10 (1981), and in U.S. Postal Service Bd. of

Governors v. Aikens, —— U.S. ——, 103 St. Ct. 1478,

1482-1483 (1983).

The court below, which hears a large number of em-

ployment discrimination cases, nevertheless reached the

opposite result, holding that despite the plaintiff’s estab-

lishment of a prima facie case an employer witness’ tes-

timonial explanation of the reasons for the challenged

conduct may require that an employment discrimination

case be taken from the jury. Given the frequency with

which the rule of the court below will be dispositive in

disparate treatment litigation, its correctness should be

addressed by this Court.

2. In reaching the conclusion just discussed, the court

below analyzed the case as if plaintiffs had proved no

more than a bare-bones prima facie case (App. 21a):

The record in this case establishes that the plain-

tiff-appellees were in the ADEA’s protected age

group, that most were qualified, and that they were

terminated and (except for one) replaced by younger

employees. It carries the plaintiffs no further.

As we have already shown, a prima facie case, whether

bare-bones or not, is, by definition, sufficient to get a case

to a jury where the defendant’s evidence of its reasons

for taking the challenged action consists solely of the

testimony of interested witnesses. But the court below

believed that if the defendant provides an innocent ex-

planation for his challenged action, a jury is not per-

mitted to disbelieve that explanation unless the plaintiff

has introduced some evidence of discriminatory intent

over and above that contained in a bare-bones prima

facie case. Assuming, arguendo, that the court were cor-

rect on that point, a second issue worthy of this Court’s

consideration is raised by the decision below: whether

the court below erred in refusing to consider as proba-

tive the evidence that ten highly qualified older employ-

ees had been fired and replaced by significantly younger

employees (all but one under age 40), and instead re-

garding the case of each plaintiff as no stronger than if

he were the only older employee dismissed.

The court acknowledged that plaintiffs had

. .. established that all six appellees were terminated,

that all were over forty, and that all but Tipton were

replaced by men under forty. Those fired averaged

49.5 years, their replacements 36.5. In addition, ap-

pellees asserted that four persons other than appel-

lees were terminated during the reorganization pe-

riod and that each was over forty. [App. !7a-18a.]

But the court held that such evidence was entitled to no

weight because an expert on statistics called by defendant

testified that, considering only the ages of the ten termi-

nated employees and the ages of the employees who were

not terminated, there was a 6.43 percent probability that

age was not a factor in the terminations.“ The court

ruled that this level of probability exceeded the “threshold

of five percent” necessary for a finding of statistical sig-

nificance, and therefore concluded that it was improper

to consider plaintiffs’ evidence that the terminations were

part of a pattern (App. 18a and n. 12, 20a).

The court below noted that respondent’s expert did not factor

into his statistical analysis the terminations of two district sales

managers both over age 40 (one of whom was petitioner Heffer).

The court, engaging in its own “expert” analysis, stated that “the

statistical significance of age would obviously decrease” (App. 18a,

n. 12) if district sales managers were included in the analysis. The

court’s suggestion reflects a misunderstanding of the expert's

method of analysis. When that method of analysis is properly

understood, factoring in the district sales manager population and

the terminations therefrom leads to a result contrary to the Court’s

suggestion, i.e., it establises that the probability of all ten of the

terminatees being over age 40 is leas than 3%, well below the 5%

threshold for statistical significance accepted by the court. The

proper analysis is set forth in detail in an appendix to our Petition

for Rehearing filed in the court below.

The court below reached that result apparently because

of its understanding of principles emanating from this

Court’s decisions in Castaneda v. Partida, 430 U.S. 482,

496-497 n. 17 (1977), and Hazelwood School District v.

United States, 483 U.S. 299, 308-309 n. 14, 311-312 n. 17

(1977). This Court indicated in those cases that where

a plaintiff’s case is based solely on statistical evidence—

i.e., evidence that the numerical distribution of employees

resulting from the employer’s conduct is as a matter of

statistics unlikely to have occurred by chance—such evi-

dence als] a general rule“ must establish, if the plain-

tiff is to prevail, that “the difference between the expected

value and the observed number is greater than two or

three standard deviations.” A five percent likelihood that

a particular numerical configuration could have resulted

by chance is the approximate equivalent of a difference of

two standard deviations.

As we now discuss, this ruling of the court below is

questionable for three distinct reasons.

First, the court below seemed to assume that the sole

relevance of evidence of defendant’s pattern of terminat-

ing older employees was to show that, as a matter of

probability, it was likely that age was a causal factor in

each termination. At one point, the court even stated

that [alt bottom, [plaintiffs’] case is one of statistical

evidence.” (App. 18a, n. 12). But plaintiffs introduced

no evidence of a statistical nature. It is true that the

evidence relating to the pattern of terminations could give

rise to an inference regarding the probability of an in-

nocent explanation for each termination, and could indeed

provide the raw data for a statistical analysis of that

probability. However, that same evidence was

probative on issues apart from the question of probability.

Plaintiffs’ theory of the case was that their termi-

nations were the result of defendant’s scheme to get rid

of older employees and replace them with younger em-

ployees. That theory proceeded initially from the evidence

24

of defendant’s announced desire for “new blood” and “lean

and mean” executives. And, the theory required a show-

ing that in fact defendant had terminated a number of

highly qualified older employees and replaced them with

significantly younger employees. Without such a showing,

plaintiffs’ theory that each termination was part of a

broader scheme would not be persuasive. But with such

a showing, the evidence permitted the members of the

jury to evaluate, based on their own experience and on

the particular circumstances shown in the record evidence,

and without reference to any analysis of probabilities,

whether plaintiffs had proved such a scheme. If the jury

believed that such a scheme existed, it could evaluate the

credibility of the particular reasons given by the em-

ployer for the termination of each plaintiff in that light.

And, by the same token, the jury’s evaluation of the

credibility of the reasons given for each termination

might reflect on its determination of whether there was

such a scheme.

Thus, the first question raised by the court’s according

no probative value to the evidence of a pattern of termi-

nations of older employees is this: whether Castenada

and Hazelwood meant to preclude a plaintiff’s reliance

upon evidence of a pattern of conduct, where the events

constituting the pattern do not by themselves lead to a

statistically significant probability of discriminatory con-

duct, but where the fact of the pattern is probative on an

issue distinct from the question of probability.

Second, even if the relevance of the pattern evidence

were restricted to questions of probability, the conclusion

reached by the court below would be contrary to well-

established rules of evidence and to decisions of other

circuits. Lay persons, without the benefit of statistical

expertise, may perceive a particular pattern of events to

be so unlikely as to give rise to an inference that the

pattern did not occur by chance but was intended. Such

pattern evidence has always been considered probative

25

without any showing of satistical significance.“ Thus,

Wigmore explains:

Without formulating any accurate test, and without

attempting by numerous instances to secure absolute

certainty of inference, the mind applies this rough

and instinctive process of reasoning, namely, that an

unusual and abnormal element might perhaps be

present in one instance, but that the oftener similar

instances occur with similar results, the less likely is

the abnormal element likely to be the true explana-

tion of them. [2 Wigmore, Evidence § 302 (Chad-

born Ed., 1979) .]

See also, e. g., Carter v. Duncan-Huggins, ——- F.2d ——,

34 FEP Cases 25, 32-33 (D.C. Cir. 1984) ; Jay Edwards,

Inc. v. New England Toyota Distributor, 708 F.2d 814,

824 (ist Cir.), cert. denied, 104 S. Ct. 241 (1983);

Marsh v. Eaton Corp., 639 F.2d 328, 329-330 (6th Cir.

1981); N.L.R.B. v. Cameo, Inc., 340 F.2d 803, 809-812

(5th Cir. 1965), and cases cited therein.

The decision below, which rules that such pattern evi-

dence may not be considered by the fact-finder without

a showing of statistical significance, cannot be recon-

ciled with the results of the cases just cited. Indeed,

in Marsh and Carter, the Sixth Circuit and the District

of Columbia Circuit, respectively, expressly rejected the

precise reasoning adopted by the court below: in both

cases the plaintiff had introduced evidence of a pattern

akin to the evidence introduced by plaintiffs in the in-

stant case; in both cases, the defendant argued that such

evidence was not probative because the plaintiff had not

shown the pattern to be “statistically significant”; in both

cases, that argument was rejected. 639 F.2d at 329; 34

FEP Cases at 32-33. The following passage in Carter

succinctly describes the rationale of both Carter and

Marsh:

15 Of course, as Castenada and Hazelwood suggest, such evidence

standing alone might not be sufficient to establish a plaintiff's case.

41

* 6

F

26

“A plaintiff attempting proof of disparate treatment

in a small work force is entitled to offer evidence

and argument, be it persuasive or not, involving

comparison of treatment accorded different workers.

The ‘statistical’ inferences to be drawn are for the

trier of fact.

As with any other circumstantial evidence the jury

was the proper body to weigh the evidence and to

decide whether any inferences could be drawn. [34

FEP Cases at 32 (quoting and adopting district

court opinion) and 33]

This Court should grant the writ of certiorari in this

case to resolve the conflict between the decision below

and the decisions in Marsh and Carter. The issue of the

probative value of pattern evidence in the absence of proof

of statistical significance is important in the day-to-day

judicial processing of the various types of discrimination

cases. And, this case presents an appropriate occasion to

settle the law on this point.

Third, in yet another respect, the ruling in question

conflicts with a decision of the Eighth Circuit. While

plaintiffs in the instant case did not introduce any sta-

tistical evidence, defendant chose to do so. Defendant’s

expert testified that based solely on an analysis of the

ages of the employees who were terminated and the ages

of the employees who were not terminated—and without

taking into account such factors as the qualifications and

ratings of the terminated employees or the ages of the

employees who were hired to replace the terminated em-

ployees there was a 6.43 percent probability that age

was not a factor in the terminations. That probability

level considered by itself might not have been sufficient

1 The court below stated that defendant's expert compared the

ages of the terminated employees “to the ages of their

ments” (App. 18a). The court was mistaken in so stating.

ant’s expert expressly acknowledged that he did not take

count the ages of the replacements in his analysis of rt sort

was a factor in the terminations (Tr. 883).

if

bs :

1

27

to establish a case of intentional discrimination. See p.

28, supra. But, in this case, that probability level might

well have been deemed probative by the jury when con-

sidered in conjunction with the other evidence in the

case.

The jury had much more to work with than had de-

fendant’s expert. The jury knew not only the ages of the

terminated employees and the non-terminated employees,

but also that: (1) the replacement employees were on

the average 18 years younger than the terminated em-

ployees; (2) a number of the terminated employees were

highly qualified and had received ratings of “Superior” or

“Distinguished”; (3) the employer’s new management

had expressed a desire for “new blood” and a “lean

and mean” team; and (4) the reasons given by the em-

ployer for a number of the terminations were, or could

be found to be, of dubious persuasiveness. Moreover, the

expert took it as a given that a substantial number of

senior executives were to be “purged” (App. 4a), and

examined only the likelihood that all would be over 40;

the jury was entitled to inquire whether such a purge—

wholly unprecedented in the company’s history (Tr. 588)

—would have occurred at all but for the ages of the vic-

tims. Considered in this context, the jury might well have

found the probability finding of the defendant’s expert—

which was based on only a portion of the evidence pre-

sented to the jury—to be helpful in reaching its conclu-

sions. If there were only a 6.43 percent likelihood that

age was not a factor without, for example, taking into ac-

count the ages of the replacements or the qualifications of

the terminatees, the jury might well have concluded that

that likelihood would be less were these additional factors

accounted for.

The question thus raised is whether statistical evidence

of probability levels that are not standing alone found

to be “statistically significant” may be considered by the

fact-finder in conjunction with other evidence of dis-

criminatory intent. The court below answer that ques-

tion in the negative. The Eighth Circuit, in Inmates of

28

Nebraska Penal, Etc. v. Greenholtz, 507 F. 2d 1868, 1379

(8th Cir. 1977), cert. denied, 489 U.S. 841 (1978),

reached the opposite conclusion.

This conflict, too, should be resolved by this Court. The

issue of the use of statistical evidence that falls short of

“statistical significance” is a recurring one in employ-

ment discrimination litigation. This case presents an

appropriate occasion to clarify the law on this issue.

3. The court below held that where an employer’s offi-

cial testifies that innocent reasons motivated the chal-

lenged employment decision, and those reasons are “ra-

tional ones, the objective truth of which is not seriously

disputed, the burden of establishing them as pretextual

is a heavy one indeed“ (App. 22a). It is a rare em-

ployee who, after decades of service, has not done some-

thing that an employer could seize upon as a pretext for

a discriminatorily motivated decision. As there will al-

most always be something which the employer’s witnesses

can testify to, the “objective truth” of which cannot be

“seriously disputed,” the “heavy burden” that the court

below has mandated will result in directed verdicts for

defendants in discharge cases where, applying the ordi-

nary evidentiary rules, discrimination would be found.“

17 The assessment of the court below that in this case the ob-

jective truth” of the reasons proffered by respondent’s witnesses

was not “seriously disputed”—a formulation repeated twice in

the court’s opinion (App. 20a, 22a, emphasis added)—indicates

the Fifth Circuit’s continuing propensity to reweigh the evidence

in discrimination cases. See Pullman-Standard v. Swint, 456 U.S.

272 (1982). Petitioners did “seriously dispute” the “objective

truth” of the reasons proffered by respondent's witnesses. See pp.

5-8, supra. In part, the court below arrived at its contrary assess-

ment simply by mischaracterizing the record evidence. For ex-

ample, Tipton, while acknowledging that he had enlarged his office,

testified that he had been authorized to do so by his immediate

supervisor, and the supervisor testified to the same effect (see p. 6,

supra). Yet the court below “found” that the supervisor “did not

remember approving this action” (App. 4a, n. 5). Spradley testified

that he had transferred voluntarily from a vice-presidency to man-

ager of national accounts because the work in the latter position

(but not the former) was within his area of interest and expertise,

1

29

The severity of the “heavy burden” that the court

below imposed is reflected by its application in this case.

The court refused to permit a jury finding of pretext

despite petitioners’ showing that that respondent had con-

sistently evaluated them as Superior“ a'd “Distin-

guished” employees, that the reasons assigned for their

terminations were relatively trivial, that they were ter-

minated without even a prior conversation or opportunity

to plead for retention, and that despite their decades of

service and respondent’s acknowledgement that most were

commendable employees they were not offered retention

in some other capacity.”

This Court has never held that plaintiffs have a “heavy

burden” to prove pretext. On the contrary, this Court

has decreed that the factual question of motive is to be

decided “just as district courts decide disputed questions

of fact in other civil litigation.” Aikens, 103 S. Ct. at

1482. “In short, the [fact-finder] must decide which

party’s explanation of the employer’s motivation it be-

lieves.” Ibid.

There is no place in this scheme for the “heavy bur-

den” the court below has imposed. That requirement

would deprive plaintiffs of the protection of federal law

in numerous cases where, applying the usual burdens,

discrimination would be found. The “important national

policy” reflected in the equal employment statutes

(Aikens, 103 S. Ct. at 1482) thus would be disserved.

This Court accordingly should strike down the “heavy

burden” requirement imposed by the court below.

and respondent's witness confirmed that the transfer was voluntary

(see p. 8 n.4, supra). Yet the court below “found” that the transfer

was “a decided demotion” (App. 19a). The court below also usurped

a jury function in its repeated pronouncements that the reasons

proffered by respondent’s witnesses were, in all the circumstances

of this case, persuasive explanations for the terminations (App.

20a-22a). See p. 19, n. 12, supra.

18 Ironically, the one petitioner allegedly discharged for “cause”

(Tipton) was the only one offered retention in another capacity.

See p. 4 and n. 2, supra.

CONCLUSION

For the reasons set forth hereinabove, this Court

should grant certiorari to review the decision below.

Respectfully submitted,

ELior P. TUCKER MICHAEL H. GOTTESMAN

MANDELL & WRIGHT (Counsel of Record)

21st Floor ROBERT M. WEINBERG

806 Main St. Perer O. SHINEVAR

Houston, TX 77002 BREDHOFF & KAISER

1000 Connecticut Ave., N.W.

Curis Dum

Suite 338 Washington, D.C. 20086

$808 Main St. (202) 838-9340

Houston, TX 77002

APPENDIX

la

APPENDIX

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Nos. 81-2356, 82-2235

JACK ELLIOTT, et al.,

Plaintiffs-A ppellees-Cross Appellants,

v.

GROUP MEDICAL & SURGICAL SERVICE, et al.,

Defendants,

Group HOSPITAL SERVICE, INC.,

Defendant-Appellant-Cross Appellee.

Sept. 16, 1983

Before THORNBERRY, GEE and REAVLEY, Circuit

Judges.

GEE, Circuit Judge:

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

§ 621 et seg. (“ADEA”), was enacted on December 15,

1967 (effective June 12, 1968), following the completion

of a study by the Secretary of Labor required by Con-

gress when it enacted the Civil Rights Act of 1964.“ The

1 Age discrimination was at first included in draft legislation

which was to become Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 20000 et seg. (1976), but later deleted in favor of a study.

Subsequent to the completion of the study, Congress lifted the sub-

stantive provisions of Title VII almost verbatim in drafting the

ADEA. In consequence, courts have construed the two sets of legis-

lation consistently and cases from one are frequently applied to

similar cases under the other. See generally Note, The Age Dis-

crimination in Employment Act of 1967, 90 Harv.L.Rev. 880 (1976).

More, in Osecar Mayer & Co., v. Evans, 441 U.S. 760, 756, 99 S.Ct.

2066, 2071, 60 L.Ed.2d 609 (1979), the Court instructed that where

the source of a section in the ADEA parallels Title VII the two

statutes are to be construed consistently.

2a

ADEA’s announced goal is the “elimination of discrimi-

nation from the workplace,” Lorillard v. Pons, 434 U.S.

575, 577, 98 S.Ct. 866, 868, 55 L.Ed.2d 40 (1978) by

pl romoting employment of older persons based on

their ability rather than age... [and] prohibit ing] ar-

bitrary age discrimination in employment.” 29 U.S.C.

§ 621(b). To this end, the ADEA provides statutory pro-

tection to individuals aged forty through seventy. Id.,

§ 631(a). This appeal concerns a suit brought pursuant

to the ADEA by six protected former employees (collec-

tively referred to as “appellees”) of Group Hospital Serv-

ice, Inc. (“Hospital Service”), appellant. In the district

court, the jury found, inter alia, that these former em-

ployees had been willfully discriminated against because

of age. Concluding that the evidence adduced at trial

was insufficient to support the jury’s verdict, we reverse

the judgment of the district court.

Background and Procedural History

Two major contentions are before us. The first con-

cerns the sufficiency of the evidence to support the jury’s

finding of age discrimination and certain attendant pro-

cedural issues. The second centers upon the propriety of

a prophylactic order of the district court. The district

court denied appellees’ motion for liquidated damages.

However, it granted a motion for a supersedeas bond to

protect appellees’ interest in the event this court deter-

mined that that ruling was in error.’

? The ADEA provides that “liquidated damages shall be payable

only in cases of willful violations of this chapter.” 29 U.S.C.

§626(b). See id. §216(b) (defining liquidated damages). Within

this circuit the above constraint has been construed as permissive.

Hence if, after a jury finding of willfulness, the trial court makes

a finding that the employer acted in good faith and had reasonable

grounds for believing that its actions were not violative of the

ADEA, the trial court possesses the discretion to determine the

amount, if any, of a liquidated damages award. See Hendrick v.

Hercules, Inc., 658 F.2d 1088 (5th Cir. 1981); Hays v. Republic

3a

Because the procedural posture of the present action

is somewhat complicated and because our resolution of

the procedural issues guides our analysis, we delineate

the facts as developed below with some care. The record

reflects that sometime during April of 1978 Walter

Hachmeister learned that he was president-elect of Hos-

pital Service, an insurance company incorporated under

the laws of Texas and doing business as Blue Cross-Blue

Shield of Texas.* In preparation for his role as presi-

dent Hachmeister began to assemble a management team

Steel Corp., 581 F.2d 1807 (5th Cir. 1976). The trial court here,

despite the jury’s specific finding of willfulness, declined to award

liquidated damages. Appellees contend that our permissive ap-

proach to liquidated damages runs counter to both the policy and

underlying legislative history of the ADEA and urges that we join

those circuits that have held that upon a finding of willfulness,

liquidated damages in the amount of actual damages must be

awarded. See Loeb v. Textron, Inc., 600 F.2d 1008 (Ist Cir. 1979);

Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 1981); Wear v.

Burroughs, Inc., 619 F.2d 276 (3d Cir. 1980); Syrock v. Milwaukee

Boiler Mfg. Co., 27 F.E.P. 610 (7th Cir. 1981); Kelly v. American

Standard, Inc., 640 F.2d 974 (9th Cir. 1981). In the alternative,

appellees argue that because of the specific finding that Hospital

Service willfully violated the ADEA and because the district court

declined to award liquidated damages without making factual

findings of good faith, on the record, we must remand for such a

determination. Hendrick, supra, is cited as support for this legal

theory. In light of the ultimate disposition of the present case we

must decline appellees’ offering. Accordingly, we express no view

as to whether Hendrick requires a trial court to enter its factual

findings on the record in order to support its discretion in this area.

Nor do we believe the present facts warrant an inquiry into our

established approach to liquidated damage awards.

2 Our understanding of the record indicates that Hachmeister

was president-elect of Hospital Service. In turn Hospital Service

is the parent organization of Group Medical and Surgical Service

and Group Life and Health Company. Collectively these entities

do business in Texas under the name Blue Cross-Blue Shield of

Texas and enjoy an independent yet advisory relationship with

other Blue Cross-Blue Shield plans.

4a

and to review the company’s past performance.“ Hach-

meister’s analysis concluded that Hospital Service could

increase both the efficiency of its sales operations and

its market penetration by consolidating its Life and Mar-

keting Divisions so as to eliminate overlapping in their

respective sales functions. In consequence, Hachmeister

implemented a plan to accomplish this goal upon assum-

ing the presidency.

Under this reorganization a number of top executives

in the Marketing Division were purged: (1) Richard

Galen was replaced as an Assistant Vice President; (2)

George Spradley was relieved of his duties as Manager

of National Accounts; (3) Robert Heffer was replaced as

Houston North District Manager; (4) Duane Thompson

was replaced as Sales Training Director; and (5) Jack

Elliott was ousted as Regional Sales Manger for the

Houston Region. In addition, subsequent to the reor-

ganization, Max Tipton was replaced as Manager of the

Abliene Regional Offices.“ Each of the above-mentioned

The line managerial hierarchy of the marketing division in

descending order is as follows: Vice President, Assistant Vice

President, Regional Sales Manager I, Regional Sales Manager II,

Regional Sales Manager III and District Manager. Director of

Sales Training and Manager of National Accounts appear not to be

considered line functions and report directly to the Vice President.

In total the above titles represent approximately 29. persons, all

with a significant degree of managerial authority. Appellees make

much of Hachmeister’s consultations with two regional managers,

individuals obviously within the managerial chain of command and

vested with organizational responsibility. We find nothing invidious

in such à consultation where the sole charge is that they were

younger than the employees discharged. In fact, appellees conceded

that these particular managers were extremely bright and capable.

5 At trial Tipton stipulated that his discharge was not a part of

the corporate reorganization and that he was terminated for in-

subordination in the form of changing the structural plans of the

Abilene Regional Office to effectively give himself an office that was

twice. as large as approved: by. company policy. At trial Tipton

urged that he sought and received approval for this action. We

note that appellee’s co-defendant, Galen, was his immediate super-

visor and did not remember approving this action.

5a

executives were within the ADEA’s protected age group.

More, each, with the exception of Tipton, was either

given notice of termination or terminated between Octo-

ber 1978 and January 1979, and filed notice pursuant to

29 U.S.C. § 626(d) with the Department of Labor of his

* Appellant urges in this appeal that appellees Elliott and Galen

did not timely file a notice of intent to sue because each had con-

structive notice of his termination prior to the final day of em-

ployment by virtue of a Cessation of Employment Agreement. The

agreement between Elliott and the company is presented here by

way of example; the Galen agreement is substantially the same:

As mutually agreed, effective October 9, 1978 your responsi-

bilities and authority as Regional Sales Manager C of our com-

panies will cease. This action does not cease your employment

with Group Hospital Service, Inc., and you may continue your

employment for up to three months from the date of this

agreement.

During your continued employment, it is agreed:

1. You will earnestly solicit other gainful employment during

this three-month period, and should you find other gainful em-

ployment during this three-month period, your employment

with Group Hospital Service, Inc., will cease on the last day

of the pay period in which you commence your other gainful

employment. Determination of what constitutes “other gainful

employment” shall be made by Group Hospital Service, Inc.

2. Due to the circumstances, attendapce in our offices and

regular working hours will not be expected during your con-

tinued employment with Group Hospital Service, Inc. You will

be available for inquiries by Group Hospital Service, Inc.,

and will respond in good faith and to the best of your abilities

to any such inquiry.

3. You will return all company property on the date of this

agreement and your status as a required company car user

ceases on the date of this agreement.

4. All other employee benefits will continue during your con-

tinued employment and your salary at its present level will be

paid at the end of each pay period in accordance with present

salary administration policy.

F. This document constitutes the complete agreement con-

cerning your cessation of employment with Group Hospital

Service, Inc.

6a

intent to sue Hospital Service, Group Medical and Surgi-

cal Service, and Group Life and Health Company. Tipton

filed a corresponding notice on June 29, 1979. On October

22, 1979, these former employees, acting in concert, filed

suit in the United States District Court for the Southern

District of Texas. The gravamen of their complaint was

that they had been willfully discriminated against be-

cause of age.

The defendant companies answered that appellees were

indeed terminated and that they were within the ADEA’s

protected age group at the time of their termination. In

addition to conceding that appellees had been replaced by

persons outside of the ADEA’s protected age group, they

urged that Group Medical and Surgical Service and

Group Life and Health Company were improperly joined

as party defendants. At the close of appellees’ case in

chief, the district court instructed a verdict as to all de

fendants except Hospital Service. Hospital Service, in

turn, moved to dismiss the claims of Elliott, Galen and

Heffer for failure “to fulfill the jurisdictional prerequisites

required to maintain an action under the provisions of the

Age Discrimination in Employment Act of 1967.” See

Fed.R.Civ.P. 12(b) (6). In sum, Hospital Service urged

that the district court did not have jurisdiction to en-

tertain the complaints of these parties because they had

failed to file a notice of intent to sue within 180 days

after the occurrence of the discriminatory action com-

plained of. See 29 U.S.C. § 626 (d) (1). Appellant also

argued that plaintiffs Galen, Tipton and Spradley had

failed to establish a prima facie case. See Price v. Mary-

land Casualty Co., 561 F.2d 609 (5th Cir. 1977). The

district court carried the former motion with the case

and denied the latter.

At the close of its case in chief, Hospital Service prof-

fered the following motion: “to dismiss on the grounds

7a

that plaintiff failed to make a prima facie case.“ The

7 Apparently there was some confusion at the close of all the

evidence and the court reporter neglected to transcribe appellant’s

motion at the time it was made. The following affidavit reflects our

understanding of the circumstances surrounding appellant’s motion:

AFFIDAVIT

COMES NOW Ernie J. Ambort, Jr., and gives the following

sworn affidavit:

I.

THAT I reside at 16330 David Glen, Friendswood, Harris

County, Texas; that I can de reached by telephone at

(713) 482-0970.

II.

THAT presently I am self-employed as a free-lance court re-

porter in Houston, Texas. THAT at all times material to this

Affidavit I was employed as a court reporter for the United

States District Court for the Southern District of Texas,

Houston Division.

III.

THAT I was the court reporter for the case of Jack Elliott,

et al vs. Group Hospital Service, Inc., et al; Civil Action No.

H-79-2179 tried in July, 1981 before the Honorable George E.

Cire, United States District Judge. THAT I have caused to be

filed an official transcript of said trial with the United States

Court of Appeals, Fifth Circuit.

IV.

THAT the transcript of said trial proceedings as filed does not

reflect that the attorney representing the defendant made a

motion that the defendant after the close of all of the evidence

renewed its motion made at the close of the Plaintiff’s case

to dismiss on the grounds that the Plaintiff failed to make a

prima facie case.

4

onen

8a

district court permitted the case to go to the jury. In

response to special issues, the jury found that Hospital

Service had discriminated against each of the named

plaintiffs by discharging him from his employment be-

cause of his age and that the discharges were willful. The

jury awarded damages aggregating over one million dol-

lars to the plaintiffs in amounts for which the district

court subsequently entered final judgment, adding attor-

neys’ fees and costs. As noted above, the district court

declined to award liquidated damages despite the jury’s

finding of willfulness. Both parties appealed, Hospital

Service from the adverse judgment, asserting evidentiary

insufficiency; appellees from the refusal of the court to

award liquidated damages, claiming a legal right to addi-

tional liquidated damages in an amount equal to the jury’s

damage award. See note 2, supra.

On motion, the district court entered a Stay Order

pending appeal, on condition that Hospital Service post

security in an amount equal to the award. Subsequent to

this order plaintiffs moved the district court to require

additional security, contending that more was necessary

in order to satisfy the potential judgment on appeal should

we determine that an award of liquidated damages was

required. The district court entered an order granting

the motion and required appellant to post additional se-

curity.

Procedural Issues

A. Motion for Directed Verdict?

Our threshold consideration concerns which issues have

been preserved on appeal. If, as appellees suggest, appel-

lant’s motion at the conclusion of all the evidence did not

made at the close of the Plaintiff’s case on the grounds that

the Plaintiff did not make a prima facie case and that such

motion was overruled; and that I failed to properly record

TTP

courtroom as instructed.

Wl

*

9a

constitute a motion for directed verdict then we are pre-

cluded from considering Hospital Service’s request for a

reversal of the district court’s judgment. See Thomas v.

City of New Orleans, 687 F.2d 80, 83 (5th Cir. 1982).

Initially, appellees’ briefs urged that Hospital Service’s

motion “preserves no error because it refers to only one

plaintiff and because it fails to specify which plaintiff

defendant contends failed to prove a prima facie case.”

In this connection appellees also advanced the ancillary

argument that the motion lacked the required specificity

to be properly considered a motion for directed verdict.

See Fed.R.Civ.P. 50(a). In the alternative, appellees con-

tended that at most Hospital Service’s motion preserved

only the motion made at the close of appellees’ case in

chief—that Galen, Tipton and Spradley failed to prove a

prima facie case. This argument suggests that our analy-

sis is confined to an examination of whether a prima

facie case was in fact established and no more.

Upon reflection appellees concede, and we agree, that

appellant’s reference to a single plaintiff was no more

than a slip of the tongue in the heat of trial and that the

intended object of the motion was the entire opposing ar-

ray. Appellees insist, however, that this concession does

not vitiate their argument that Hospital Service is barred

from questioning the sufficiency of the evidence in this

court because its motion for dismissal for want of a

prima facie case does not rise to the specificity required

of a motion for directed verdict, its motion for judgment

n. o. v. notwithstanding. See Maxey v. Freightliner Corp.,

665 F.2d 1367 (5th Cir. 1982). More, appellees maintain

their stance that in any event our analysis is confined to

whether the elements of a prima facie case are present

and no more.

The law in this circuit, as generally elsewhere, is that

“the sufficiency of the evidence supporting a jury verdict

is not reviewable on appeal. . . unless a motion for di-

10a

rected verdict was made at the close of all the evidence by

the party seeking that review.“ Quinn v. Southwest Wood

Products, Inc., 597 F.2d 1018, 1024 (5th Cir. 1979). As

we noted in Quinn, however, the strict application of this

rule gives way to considerations of policy and fundamen-

tal fairness:

When a claimed deficiency in the evidence is called

to the attention of the trial judge and of counsel be-

fore the jury has commenced deliberations, counsel

still may do whatever can be done to mend his case.

But if the court and counsel learn of such a claim for

the first time after verdict, both are ambushed and

nothing can be done except by way of a complete

new trial. It is contrary to the spirit of our proce-

dures to permit counsel to be sandbagged by such

tactics or the trial court to be so put in error.

The rule is a strict one, however, and we and other

courts have taken a liberal view of what constitutes

a motion for directed verdict for these purposes.

There is much to be said for the view that whenever

a party, at the conclusion of the evidence and before

the jury has begun to deliberate, clearly points out a

claimed evidentiary deficiency to court and counsel,

not by way of conversation or speculation but on the

record in an unambiguous formal motion for relief,

however denominated, this should suffice. To hold

otherwise would be to succumb to a nominalism and

a rigid trial scenario as equally at variance as am-

bush with the spirit of our rules.

597 F.2d at 1025 (footnote omitted) (emphasis supplied).

See also C. Wright & A. Miller, Federal Practice and

Procedure: Civil § 2536, p. 594. Applying these notions

to the present case impels the conclusion that appellant’s

motion at the close of all the evidence should be read as a

motion for a directed verdict. We reach this determina-

tion through a series of questions whose answers we find

grounded in reason.

lla

In age discrimination cases the relevant inquiry is

whether the plaintiff has produced evidence from which a

trier of fact might reasonably conclude that the employer

intended to discriminate in reaching the decision at issue.

In order to establish a prima facie case the discharged

employee, generally, must prove he (1) is within the pro-

tected class; (2) was discharged; (3) was qualified for

the position; (4) was replaced by someone outside the

protected class, Price v. Maryland Casualty Co., 561 F.2d

609 (5th Cir. 1977); or (5) by someone younger, Wilson

v. Sealtest Foods, 501 F.2d 84 (5th Cir. 1974); or (6)

show otherwise that his discharge was because of his age,

McCuen v. Home Insurance Co., 633 F.2d 1150 (5th Cir.

1981). Thus the elements of such a prima facie case come

to little more than establishing the standing requirements

of the ADEA and blunting the defendant’s probable re-

joinder that the plaintiff has not been discriminated

against. See Williams v. General Motors, Inc., 656 F.2d

120 (5th Cir. 1981); McCorstin v. United States Steel

Corp., 621 F.2d 749 (5th Cir. 1980).

In contrast, when such a motion comes at the con-

clusion of all the evidence and the defendant has put forth

evidence in rebuttal, logic indicates that the motion must

speak to more. In this instance, the defendant mounted a

factual attack against the plaintiffs’ case, its resolution

requiring a review of plaintiffs’ evidence as compared to

that presented by the defendant and a determination

whether the evidence was such that reasonable men could

come to but one conclusion. We believe that this analysis

is equivalent in all respects to that required when consid-

ering a motion for directed verdict. See Hedrick v. Her-

cules, 658 F.2d 1088, 1089 (5th Cir. 1981). This being

so, the action called for by defendant’s motion, even if

restricted to its terms, would be the same as that on mo-

tion for directed verdict and there is no unfairness in

viewing it as such. So doing, we hold that the motion

relates back to those motions raised at the conclusion of

12a

plaintiff’s case in chief and thus preserves appellant’s

right to challenge both the sufficiency of the evidence sup-

porting the jury’s verdict as to all the appellees and the

timeliness-of-filing issues relating to appellees Elliott,

Galen and Heffer. See Dawson v. McWilliams, 146 F.2d

38 (5th Cir. 1944).

B. Filing of Notice of Intent to Sue

Because we arrive by differing routes at the conclusion

that appellees Elliott, Galen and Heffer timely filed notice

of their intent to sue, we treat the issues separately.

(1) Galen and Elliott

The precise issue presented here is whether appellees

Galen and Elliott were required to file notice of intent to

sue within 180 days of notice of their terminations or

whether the time of filing commenced to run only after a

total cessation of their employment. If the former stand-

ard be applicable, it follows that the June 25, 1979, filing

is time barred, since appellees raise no substantial claim

that the filing was tolled. See Zipes v. Trans World Air-

lines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234

(1982). The record reflects that both Galen and Elliott

ot

13a

date of notice of termination, rather than the final date

of employment, is the operative date from which the 180

day filing requirement begins to run, see Marshall v.

Kimberley Clark Corp., 625 F.2d 1300 (5th Cir. 1980);

Payne v. Crane Co., 560 F.2d 198 (5th Cir. 1977), they

do not govern this case.

As a general proposition, new judge-made rules on

limitations are not to be applied retroactively to a plain-

tiff who timely filed his complaint under the then exist-

ing law of limitations. Chevron Oil Company v. Huson,

404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Be

cause the record reflects that the present action was filed

before the Supreme Court’s decision in either Ricks or

Chardon, we believe the above principle to be applicable

here. Accordingly, we must determine the state of the

law of this circuit before Ricks and Chardon.

Our standard had been that “when the employer, by

acts or words, shows a clear intention to dispense with

the services of an employee, a discharge occurs at the

latest as of the date after which the services are no

longer accepted.” Payne, supra, at 199. This standard

we cast the determination of when the employment re-

lationship ceased as a question of fact. Marshall v. Kim-

berley Clark Corp., supra, is illustrative of the above

l4a

are unable to say that reasonable men could not reach

that conclusion.

(2) Heffer

Whether Mr. Heffer timely filed notice of intent to sue

was examined both by the trial court in disposing of

appellant’s motion for summary judgment and by the

jury as a special interrogatory. Both concluded that

Heffer’s notice of intent to sue had been timely filed.

We agree. Section 627 of the ADEA requires employers

to post information setting forth their employees’ rights

under the ADEA. See 29 U.S.C. § 627; 29 C. F. R. § 850.10.°

In Charlier v. S.C. Johnson & Son, Inc., 556 F.2d 761

(5th Cir. 1977), we held that an employer’s failure to

comply with section 627 vitiates the normal assumption

that an employee is aware of his rights under the ADEA.

Id. at 765. In consequence, under such circumstances the

ADEA’s 180-day filing period is not measured from the

employee’s cessation of employment, but rather from

when he acquired actual knowledge of his ADEA rights,

usually a fact question. Id. In disposing of appellant’s

motion for summary judgment the district court con-

cluded that Hospital Service failed to post the required

ADEA notice at Heffer’s place of employment and that

Heffer had filed a notice of intent to sue within 180 days

of acquiring actual notice of his rights. In reaching this

conclusion the district court rejected Hospital Service’s

claim that Heffer possessed constructive notice of his

ADEA rights either by virtue of his exposure to company

29 C.F.R. § 850.10, promulgated pursuant to section 627,

provides:

Every employer, employment agency, and labor organization

15a

policy due to his seniority or as a consequence of having

visited other company offices where such a notice was

posted. See Adams v. Federal Signal Corporation, 559

F.2d 433 (5th Cir. 1977). Obviously the jury also chose

to disregard appellant’s theory of constructive notice.

Appellant insists that substantial evidence supports its

position that Heffer was aware of his ADEA rights be-

fore his discharge. It is not, however, our province to

substitute our view of the truth for that of the jury.

Rather, our task is to examine the evidence in its en-

tirety to determine whether it reasonably supports the

jury’s verdict. See Boeing Co. v. Shipman, 411 F.2d 365,

374 (5th Cir. 1974).

The record reflects that there was no section 627 no-

tice posted at Heffer’s place of employment. It also re-

flects that there was a genuine factual dispute as to

whether Heffer or some othr manager had been charged

with the responsibility of pusting the notice on the com-

pany’s behalf. More, whether Heffer possessed knowl-

edge of the company’s alleged policy against age discrimi-

nation was the subject of a classic swearing match. The

jury believed Heffer; there it ends.

Having determined that we may properly examine the

merits of the case, we now turn to them.

Sufficiency of the Evidence

As the Supreme Court has recently reminded us, the

ultimate issue of fact in cases such as this—whether the

defendant intentionally discriminated against one or more

of the plaintiffs—is to be reviewed under the same stand-

ards as those in other cases. United States Postal Service

Board of Governors v. Aikens, —— U.S. ——, 108 S. Ct.

1478, 75 L.Ed.2d 403 (1983). Where, as here, the case

has been fully tried on the merits, the adequacy of a

party’s showing at any particular stage of the McDonnell

16a

Douglas ritual is of no consequence. We are simply to

determine whether the record contains evidence upon the

basis of which a reasonable trier of fact could have con-

eluded as the jury did. New England Merchants National

Bank v. Rosenfield, 679 F.2d 467 (5th Cir. 1983). Self-

serving and speculative testimony is subject to especially

searching scrutiny. Id.; Ralston Purina Co. v. Hobson,

554 F.2d 725 (5th Cir. 1977). More specifically on point,

we have recognized that generalized testimony by an em-

ployee regarding his subjective belief that his discharge

was the result of age discrimination is insufficient to

make an issue for the jury in the face of proof showing

an adequate, nondiscriminatory reason for his discharge.

Houser v. Sears, Roebuck & Co., 627 F.2d 756 (5th Cir.

1980). Bearing these principles in mind, we turn to

the evidence in our case.

The parties have followed generally the McDonnell

Douglas format, described in note 9 above, in presenting

their evidence below and their arguments on appeal.

* This is one of the modes of organizing the evidence in dis-

crimination cases. By it, the plaintiff must first establish a prima

facie case, thus creating a rebuttable presumption that he has

suffered discrimination. If the evidence ends here, the plaintiff

should prevai! by directed verdict. The defendant may avoid that

result by introducing evidence that he acted for a nondiscrimina-

tory reason, which the plaintiff may then attack as

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 98 S.Ct. 1817,

86 L.Ed.2d 668 (1978). The plaintiff retains the burden of per-

suasion on the whole case. Tezas Department of Community Affairs

v. Burdine, 460 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207

(1981).

17a

There is no direct evidence of age discrimination, and

that format is one way of presenting a circumstantial

evidence case. Since they have done so, it is necessary for

us to discuss the elements of that format even though our

concern is not with the state of the evidence at any of its

stages, but rather with the evidence in the case at large.

United States Postal Service Board of Governors v.

Aikens, supra.

According to the teaching of McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973) and its progeny, in order to establish a prima

facie case of age discrimination a plaintiff must prove

that he (1) was discharged; (2) was qualified for the

position; (3) was within the protected class at the time of

discharge; (4) was replaced by someone out side the pro-

tected class, or (5) by someone younger, or (6) show

otherwise that his discharge was because of his age.

See page 7264, supra.

At the outset we note that with the exception of ap-

pellee Spradley there exists no dispute as to whether

appellees are qualified to perform their individual tasks.

We therefore examine the evidence without consideration

of this factor, leaving Spradley’s qualifications for dis-

cussion below. First, appellees introduced evidence that

Hachmeister stated that he wanted “new blood” in the

Marketing Division and a new “lean and mean” team.

Extrapolating from this statement, appellees surmised

during their individual testimony that it was Hospital

Service’s policy to terminate older workers because a

“lean and mean” team necessarily excluded them. To

buttress this inference, appellees established that all six

appellees were terminated, that all were over forty, and

that all but Tipton were replaced by men under forty.

11 We recognize that McDonell Douglas, supra, involves a Title VII

action. However, the analysis of Title VII cases has been applied

to ADEA cases given the common purpose of

their nearly identical substantive provisions. See note 1, supra.

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18a

Those fired averaged 49.5 years, their replacements 36.5.

In addition, appellees asserted that four persons other

than appellees were terminated during the reorganization

period and that each was over forty. An expert witness

called by the appellant, Dr. William Schucany, a statis-

tician, testified however that his analysis of the ages of

those fired during the relevant period, as compared to the

age of their replacements and to the ages of those occupy-

ing similar positions in the company, established only that

age could neither be ruled in nor ruled out statistically

as the factor leading to the discharges.* On the basis

12 At bottom, appellees’ case is one of statistical evidence. Dr.

Schucany analyzed the upper management of the department which

subsequently fell under the domain of the Vice President of Mar-

keting. See note 4, supra. There were 29 persons in these upper-

level management positions, including all of the appellees except

Heffer. Seven of those persons were terminated before the end

without age being a factor. The test was run twice, once including

Tipton among those terminated and once excluding him. With

Tipton excluded, the probability that age was not a factor was

8.57 percent; with Tipton included it was 6.43 percent.

The standard methodology in this test is to compare the result

was a factor, and concluded that it probably was. In fact, this per-

centage fell well under five percent.

As noted above, the test did not include Heffer or other district

sales managers. However, the record reflects that there were 21

district sales managers in the time frame covered. Of these,

twelve were over forty. Of the twelve over forty, only two were

terminated. If these employees were included in the statistical

model the statistical significance of age would obviously decrease.

Thus, it appears that the statistical evaluation undercuts the theory

that age was a determining factor in any of the employment

decisions. See Harrell v. Northern Electric Company, 672 F.2d 444,

446-47 (5th Cir. 1982) (statistical proof negated claim of absence

19a

of this evidence, appellees contend that the most likely

reason for their discharges was age in each instance.

Appellant Group Hospital contends to the contrary that

each discharge resulted from a corporate reorganization

designed to increase management efficiency. It introduced

evidence that the reason for Galen’s discharge was a per-

ceived disloyalty because he had sought to undercut his

immediate superior, approaching Hachmeister with a

“resumé” of things to be accomplished were he to succeed

that superior. Elliott was fired, it contends, because his

region had not achieved the company’s desired market

penetration or productivity, the undisputed fact being

that the market penetration there (in Houston) was

approximately five to six percent, as compared to the com-

pany’s state-wide market penetration of twenty percent.

As to the others, its contentions are as follows: Owens

was terminated because it was believed that he did not

have the necessary inner drive to lead his region and that

his replacement would do a better job. The record reflects

that during the three years preceding Spradley’s termina-

tion he had been transferred into and out of a total of

four different positions, with the final transfer, Manager

of National Accounts, being a decided deraotion. Appel-

lant urges that Spradley simply lacked the personality to

deal with others in managerial positions and had demon-

strated that he did not have the capabilities or desire to

be Manager of National Accounts. Thompson was dis-

missed because he had not developed a sales training pro-

gram. The record reflects, and Thompson conceded, that

the sales training program had “really been neglected,”

but that he “was going to recommend changes” to “re-

vitalize the program.” The reason stated for Tipton’s

termination was that he had violated company policy by

having a contractor who was remodeling his new regional

offices leave out a wall, producing the twin effect of en-

of discrimination). More, Schucany’s testimony concerning his sta-

tistical model, as noted above, was that age could neither be ac-

cepted nor rejected as the determinative factor in the discharges.

20a

larging his personal office beyond the square footage

permitted by the company for an officer of his rank and

eliminating the employees’ lounge.

It cannot be said that any of these reasons is irrational

or idiosyncratic. To the contrary, each is, on its face, an

adequate, nondiscriminatory one. See International Broth-

erhood of Teamsters v. United States, 481 U.S. 324, 360

n.46, 97 S.Ct. 1843, 1867 n.46, 52 L.Ed.2d 396 (1977).

Once such a reason for discharge is articulated by ade-

quate evidence, the plaintiff’s established prima facie case

is not necessarily sufficient to take the case to a jury.

Reeves v. General Foods Corp., 682 F.2d 515, 521-23 (5th

Cir. 1982). When no more evidence of discrimination is

presented than that of these plaintiffs and the defendant

presents evidence justifying and explaining the discharge,

the trier of fact is not free to disregard that explanation

without countervailing evidence that it was not the real

reason for the discharge. Such evidence may take the

form of an attempted showing that the reason given by

the employer, though facially adequate, was untrue as a

matter of fact or was, although true, a mere cover or

pretext.

Appellees offered no more than conclusionary state-

ments of age discrimination. On cross-examination each

admitted that he was never told that age was a factor in

his discharge. When questioned directly concerning the

company’s stated reasons for his dismissal, none seriously

disputed either his awareness of or the objective truth

of the company’s stated ground of dissatisfaction with

him, maintaining only that it was inadequate to warrant

his termination. Within certain limits, however, not ex-

ceeded here, such judgments as that are for the em-

ployer, not for the court. As we have noted, the statistical

evidence was equivocal. Pretext was not made out, nor

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21a

McDonnell Douglas is not a vehicle that permits a

plaintiff to cast the burden of persuasion on the defendant

and compel him to prove that his actions were non-

discriminatory. See Sweeney v. Board of Trustees of

Keene State College, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d

216 (1978). Nor is it a device which permits the jury to

examine an employer’s reasons for discharge and deter-

mine that the employer’s business judgment or policies do

not appeal to its sensibilities. The inquiry is whether the

plaintiff has been discriminated against because of his

age; the ADEA proscribes no other conduct.

The record in this case establishes that the plaintiff-

appellees were in the ADEA’s protected age group, that

most were qualified, and that they were terminated and

(except for one) replaced by younger employees. It

carries the plaintiffs no further. Group Hospital offered

an adequate ground other than age for the discharge of

each. In rebuttal, each appellee advanced little if any-

thing more than his belief that age caused his discharge

rather than the reason given by the employer. We are not

prepared to hold that a subjective belief of discrimina-

tion, however genuine, can be the basis of judicial relief.

See Houser v. Sears, Roebuck & Co., 627 F.2d 756 (5th

Hi

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22a

versely where, as here, the reasons articulated are ra-

tional ones, the objective truth of which is not seriously

disputed, the burden of establishing them as pretextual

is a heavy one indeed. As we have heretofore held in

Houser, supra, it is not discharged by general avowals of

belief, however sincere, that age—rather than an estab-

lished adequate reason—was the real reason for the

termination. More is required, perhaps a successful sta-

tistical demonstration by expert testimony, perhaps proof

that others similarly situated were not discharged. Such

proof is lacking here; and as to this, the verdict lacks

rational support in the record. Since it does, and since

the element of pretext was critical, the verdict cannot

stand.

Because we hold that the evidence was insufficient to

support the jury’s finding of age discrimination we need

not address the issues of attorneys’ fees, liquidated dam-

ages or the supersedeas bond. We leave it to the district

court to fashion a decision consistent with this opinion.

Accordingly, the judgment of the district court is

reversed and the cause remanded.

REVERSED and REMANDED.

23a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[Caption Omitted in Printing]

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion 9-16-83, 5 Cir., 198—, —— F.2d ——)

(November 25, 1983)

Before THORNBERRY, GEE and REAVLEY, Circuit

Judges.

PER CURIAM:

The Petition for Rehearing is DENIED and no mem-

ber of this panel nor Judge in regular active service on

the Court having requested that the Court be polled on

rehearing en banc, (Federal Rules of Appellate Procedure

and Local Rule 35) the Suggestion for Rehearing En

Banc is DENIED.

ENTERED FOR THE COURT:

/s/ Thomas Gibbs Gee

United States Circuit Judge

24a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-79-2179

JACK ELLIOTT, et al.

vs.

GROUN HOSPITAL SERVICE, INC., et al.

FINAL JUDGMENT

On the first day of July 1981, came to be heard the

above-styled and numbered cause, and all parties having

announced ready for trial, a jury was drawn and im-

paneled, and after the jury was sworn, evidence was in-

troduced by Plaintiffs. When Plaintiffs rested, the De-

fendants, Group Medical and Surgical Service, Inc., and

Group Life & Health Insurance Company moved that the

Plaintiffs’ cause of action against them be dismissed. The

motion was granted. Defendant, Group Hospital Service,

Inc., introduced evidence and then Plaintiffs introduced

evidence in rebuttal. The Court finds that Plaintiffs

Eliott and Galen timely filed their notice of intent to

sue, Delaware State College v. Ricks, —— US. ——,

101 S.Ct. 498 (1980) ; Payne v. Crane Co., 560 F.2d 198

(5th Cir. 1977), and that Plaintiff Heffer also timely

filed his notice of intent to sue. Charlier v. S.C. John-

son & Son, Inc., 556 F.2d 761 (5th Cir. 1977).

The issues in the case were submitted to the jury upon

Special Verdicts which were answered by the jury as

follows:

1. Do you find from a preponderance of the evidence

that the Defendant discriminated against the following

Plaintiffs by discharging them from their employment

on the basis of age?

25a

Answer “Yes” or No.“

(1) Jack Elliott Answer: Yes

(2) Richard Galen Answer: Yes

(3) Max Tipton Answer: Yes

(4) George “Don” Spradley Answer: Yes

(5) Duane Thompson Answer: Yes

(6) Robert Heffer Answer: Yes

For each Plaintiff for whom you have answered “Yes,”

answer questions 2 and 3.

2. What sum of money do you find from a preponder-

ance of the evidence will compensate each Plaintiff for

the economic losses he has incurred?

Answer in dollars and cents.

(1) Jack Elliott Answer: $262,814

(2) Richard Galen Answer: $191,967

(3) Max Tipton Answer: $208,175

(4) George “Don” Spradley Answer: $102,689

(5) Duane Thompson Answer: $ 59,357

(6) Robert Heffer Answer: $205,682

8. Do you find from a preponderance of the evidence

that the discharge of the following Plaintiffs was “will-

ful.“

Answer “Yes” or No.“

(1) Jack Elliott Answer: Yes

(2) Richard Galen Answer: Yes

(3) Max Tipton Answer: Yes

(4) George “Don” Spradley Answer: Yes

(5) Duane Thompson Answer: Yes

(6) Robert Heffer Answer: Yes

4. Do you find from a preponderance of the evidence

that the Defendant failed to post the required notice

26a

about the Age Discrimination in Employment Act at

Robert Heffer’s place of employment—that is, at the

Houston District office?

Answer “Yes” nor “No.”

Answer: Yes

The Special Verdict Form was dated July 8, 1981, and

signed by the foreperson, Harold C. Chevalier.

The Court having received the verdict of the jury and

having considered the jury’s answers to the Special Ver-

dict Form, the Court concludes that the Plaintiffs are

entitled to have judgment against Group Hospital. Serv-

ice, Inc., and that the Plaintiffs are entitled to an award

of attorneys’ fees and expenses. The parties have stipu-

lated that the Court would determine the amount of the

attorneys’ fee award upon fee petition submitted by

Plaintiffs’ counsel, and the Court having considered the

fee petition in light of the standards set forth in Johnson

v. Georgia Highway Express, 488 F.2d 714 (5th Cir.

1974), is of the opinion that Plaintiffs are entitled to an

award of attorneys’ fees and expenses in the amount of

$96,607.50 as fees and $5,494.55 as expenses, on the

basis of the information contained in the affidavits sub-

mitted by Plaintiffs’ counsel.

The Court in its discretion, declines to award liqui-

dated damages to the Plaintiffs. Hays v. Republic Steel

Corp., 581 F.2d 1307 (5th Cir. 1976).

IT IS THEREFORE ORDERED, ADJUDGED and

DECREED by the Court as follows:

(1) Plaintiffs do have judgment for and recover from

the Defendant, Group Hospital Service, Inc., the following

sums:

Jack Elliott $262,814

Richard Galen $191,967

Max Tipton $208,175

George “Don” Spradley $102,689

Duane Thompson $ 59,357

Robert Heffer $205,632

27a

(2) Plaintiffs do have judgment for and recover from

the Defendant, Group Hospital Service, Inc., reasonable

attorneys’ fees in the amount of $96,607.50, plus reason-

able expenses in the amount of $5,494.55.

(3) Costs of Court are taxed against Defendant, Group

Hospital Service, Inc.

(4) All Plaintiffs’ causes of actions against Defend-

ants, Group Medical and Surgical Service, Inc., and Group

Life & Health Insurance Company are dismissed with

prejudice.

(5) The total amount of the judgment, including the

Plaintiffs’ recoveries and attorneys’ fees and expenses

shall bear interest at the legal rate from the date hereof

until paid in full.

(6) None of the Plaintiffs shall be reinstated.

(7) For recovery of which amounts, let execution issue

if this judgment is not timely paid.

SIGNED and ENTERED this 20th day of July 1981.

/s/ George E. Cire

GEORGE E. CIRE

United States District Judge

28a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

[Caption Omitted in Printing]

ORDER

[DENYING MOTION FOR JUDGMENT N. O. V.]

Before the Court is Defendant’s Motion for Judgment

n. o. v. and the Court has reviewed all the grounds and

legal arguments advanced by Defendant. Because the

Court holds that the evidence presented at trial of this

case was of such quality and weight that reasonable and

fair-minded persons in the exercise of impartial judgment

might reach different conclusions, the Defendant’s mo-

tion should be denied. It is therefore

ORDERED that Defendant’s motion for judgment

n. o. v. be, and it is hereby, DENIED.

SIGNED and ENTERED this 20 day of July 1981.

/s/ George E. Cire

GEORGE E. CIRE

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

[Caption Omitted in Printing]

ORDER

[DENYING MOTION FOR NEW TRIAL]

On July 20, 1981, this Court entered Final Judgment

in this action, finding for the Plaintiffs against the De-

fendant Group Hospital Services, Inc., and ordering that

Defendant pay certain sums to the Plaintiffs in damages,

court costs, and reasonable attorney’s fees. Plaintiffs

then filed its motion to modify or amend the judgment

and Defendant has moved for a new trial. After con-

sidering these motions and the arguments of both parties,

the Court has concluded that the Final Judgment of July

20, 1981, should stand and that the motions of each party

should be DENIED.

Accordingly, it is hereby ORDERED:

(1) Plaintiffs’ motion to modify or amend the judg-

ment is DENIED;

(2) Defendant’s motion for a new trial is DENIED.

SIGNED and ENTERED this Ist day of September

1981.

/s/ George E. Cire

GEORGE E. CIRE

United States District Judge

80a

SUPREME COURT OF THE UNITED STATES

No. A-647

JACK ELLIOTT, et al.,

Petitioners,

v.

GROUP MEDICAL & SURGICAL SERVICE, IN c., et al.

and GrouP HosPITAL SERVICE, INC.

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel for

petitioner (8),

It Is ORDERED that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and

the same is hereby, extended to and including March

17, 1984.

/s/ Byron R. White

Associate Justice of the

Supreme Court of the |

United States |

Dated this 14th day of February, 1984.