Opposition Brief — Bristow v. Daily Press, Inc.

Supreme Court, U.8,

FILED

- FEB 22 1968

a JOSEPH F. SPANIO!, JR,

No. 85-1171 Steed

IN THE

Supreme Court of the United States

OCTOBER TERM 1985

JAMES B. BRISTOW,

v. Petitioner,

THE DAILY PRESS, INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

BRIEF OF RESPONDENT THE DAILY PRESS, INC.

IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

*WILLIAM J. BUTLER, JR

ARTHUR D. MCKEY

GREGORY P. SCHERMER

Hanson, O’Brien, Birney & Butler

888 17th Street, N.W., Suite 1000

Washington, DC 20006

(202) 298-6161

Attorneys for Respondent

* Counsel of Record

i

QUESTIONS PRESENTED

I. WHETHER THE COURT OF APPEALS

BELOW CORRECTLY APPLIED THE UNANIMOUS

REQUIREMENT AMONG THE FEDERAL CIR-

CUITS THAT IN EACH CONSTRUCTIVE DIS-

CHARGE CASE A PLAINTIFF MUST PROVE THE

EXISTENCE OF WORKING CONDITIONS SO

INTOLERABLE THAT A REASONABLE PERSON,

SIMILARLY SITUATED, WOULD HAVE RESIGNED.

Il. WHETHER THE “CLEARLY ERRONEOUS”

STANDARD OF FED. R. CIV. P. 52(a), WHICH

APPLIES ONLY TO “ACTIONS TRIED UPON FACTS

WITHOUT A JURY,’ SHOULD HAVE BEEN

APPLIED BY THE COURT OF APPEALS IN

REVIEWING THE JURY’S VERDICT IN THIS CASE.

Ill. WHETHER THIS COURT SHOULD

REVIEW AN ISSUE WHICH WAS NEVER RAISED

IN THE DISTRICT COURT AND WAS NEVER

RAISED IN THE COURT OF APPEALS.

ii

TABLE OF CONTENTS

PAGE

Questions Presented .. 2.0... ce i

Se ee I cc we ea pre eRe eee lil

Counterstatement of the Case .............. l

A. Procegeral Bistory ... kk cc ean l

B. Statement of Facts... 2... ce ee 4

Gi MN Na Ga ws oe ee a ee 7

Reasons for Denying the Writ.............. 7

Summary of Argument .................. 7

I. THE COURT OF APPEALS

CORRECTLY APPLIED THE

STANDARD RECOGNIZED BY ALL

FEDERAL CIRCUITS IN FINDING

THAT PLAINTIFF FAILED TO PROVE

INTOLERABLE WORKING

CONDITIONS WHICH WOULD CAUSE

A REASONABLE PERSON TO RESIGN. 8

Il. THE COURT OF APPEALS APPLIED

THE CORRECT STANDARD OF

PETE 6a ko ak Gk ee ae 12

A. The “Clearly Erroneous” Standard of Rule

52(a) Does Not Apply to a Case Tried to a

|) MECC EO TOES ee ee 12

B. The Court of Appeals Applied the Correc:

Standard of Review in Construing the

Evidence in the Light Most Favorable to

ie WHE) ks Gc a ee ee 13

Ill. THE PLAINTIFF NEVER RAISED THE

ISSUE OF ALLEGED DEFICIENCIES

IN DEFENDANT’S MOTIONS FOR

DIRECTED VERDICT IN THE

DISTRICT COURT, OR IN THE

FOURTH CiRCUIT, AND CANNOT

RAISE THE ISSUE HERE FOR THE

epee ei 14

re ere eS. 15

ill

TABLE OF CASES, STATUTES AND OTHER

AUTHORITIES CITED

CASES:

Alicia Rosado v. Garcia Santiago, 562

oe WOM CEUE Goede EET) ge es

Blum v. Stenson, __—. U.S. ____, 79

Ere

Bourque v. Powell Electrical Mfg. Co.,

Si? F.ae 6: (5th Cir. 1960)... .....

Bristow v. Daily Press, Inc., 770 F.2d

oe re

Clark v. Marsh, 665 F.2d 1168 (D.C.

ee ae ny 6

County of Oneida v. Oneida Indian

Nation, ___. U.S. ____.,, 84 L.Ed.2d

I eh gb 4d eK oe ae 8

EEOC v. Federal Reserve Bank of

Richmond, 698 F.2d 633 (4th Cir.

1983), rev'd on other grounds, —

U.S. ___., 104 S.Ct. 2794 (1984)...

Gillham vy. ‘Abwiral Corp., 523 F.2d 102

(6th Cir. 1975), cert. denied, 424 US.

a ce ek kk kek 8

Goss v. Exxon Office Systems, Co., 747

|

Held v. Gulf Oil Co., 684 F.2d 427 (6th

ek

Holsey v. Armor & Co., 743 F.2d 199

(4th Cir. 1984), cert. denied, ~ Was

ern, Ceee etwas) .... 5...

Houser v. Sears Roebuck & Co., 627

ge ee Gh | eR) | |

PAGE

passim.

8

15

14

8

iv

Irving v. Dubuque Packing Co., 689 F.2d

Pat. fe B. :. een. ee

Johnson v. Bunny Bread Co., 646 F.2d

Raoe Cote Gar. TRE) cnc nk oe ses

Kademenos v. Equitable Life Assurance

Soc., 513 F.2d 1073 (3d Cir. 1975) ...

Lojek v. Thomas, 716 F.2d 675 (9th Cir.

| eer yar aye ear er ee

Moore v. Carolina Power & Light Co.,

$37 F.2d 1252 (4th Cir. 1976), cert.

denied, 429 U.S. 1001 (1977). ......

Neal v. Dillion, 534 F. Supp. 1381

(E.D.N.Y. 1982), affd, 714 F.2d 116

eo A) BS a aa rere

Penna v. Brattleboro Retreat, 702 F.2d

poo ge | ee aera

Sandoval v. U.S. Smelting, Refining &

Mining Co., 544 F.2d 463 (10th Cir.

SE A ak ke es nah Care ete ae ke

Tsai v. Rosenthal, 297 F.2d 614 (8th

er EE Ate Se a ee ee

Wyatt v. Interstate & Ocean Transport

Co., 623 F.2d 888 (4th Cir. 1980) ....

STATUTES:

29 U.S.C.S. Sections 621-634 (Law.

Co-op 1982 and Supp. 1985) .......

OTHER:

A Oe Ae ey

12

IN THE

Supreme Court of the United States

OCTOBER TERM 1985

No. 85-1171

JAMES B. BRISTOW,

y. Petitioner,

THE DAILY PRESS, INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

BRIEF OF RESPONDENT THE DAILY PRESS, INC.

IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

COUNTERSTATEMENT OF THE CASE

Respondent, The Daily Press, Inc. (Daily Press), does

not rely upon the Statement of the Case contained in the

Petition for Certiorari and submits the following counter-

statement.

A. PROCEDURAL HISTORY

Petitioner James B. Bristow brought the

above-captioned action under the Age Discrimination in

Employment Act of 1967, as amended, 29 U.S.C.S. Sec-

tions 621-634, (ADEA), alleging two causes of action. He

first alleged that the Daily Press had discriminated against

2

him in failing to promote him to certain higher level posi-

tions for which he had allegedly applied and for which he

was allegedly qualified. Petitioner’s second cause of action

alleged that his request for early retirement, while appear-

ing voluntary, was actually a forced resignation and, there-

fore, claimed that he was constructively discharged from

Daily Press’ employ due to the allegedly intolerable working

conditions deliberately imposed upon him by his employer.

Petitioner’s claims against Daily Press were tried

before a jury in the U.S. District Court for the Eastern

District of Virginia, Newport News Division, beginning

April 4, 1984. The jury rendered a verdict in favor of the

Daily Press on the first cause of action. The jury found in

favor of Petitioner on the constructive discharge claim and

awarded $99,000 in general! damages and $50,000 in liqui-

dated damages.

Following the entry of judgment, counsel for the parties

timely filed post trial motions and appropriate oppositions

thereto. The Daily Press moved the Court to enter judgment

n.o.v. or, alternatively, for a remittitur and/or a new trial.

In its Memorandum Opinion dated August 2, 1984, the

Court directed the Clerk to enter judgment in favor of Bris-

tow and against the Daily Press for counsel fees in the sum

of $8,825.00 and costs in the sum of $1,500. Additionally, in

said Memorandum Opinion, the Court denied Daily Press’

Motion for Judgment N.O.V. Alternatively. Motion for

Remittitur and/or a New Trial.

The principal argument advanced by Daily Press in its

Motion for Judgment N.O.V. focused upon whether the

facts, as developed at trial, met the criteria for constructive

discharge under applicable law. Various other substantive

issues involving damages and jury instructions were also

raised. Petitioner did not raise any procedural objections to

3

the Motion for Judgment N.O.V. and did not allege any

deficiencies in Respondent’s two motions for directed ver-

dict.'

The parties filed timely cross-appeals in the Fourth

Circuit. Again the primary arguments centered upon the

issues of constructive discharge, excessive damages, and

attorneys fees. Again Petitioner failed to raise procedural

issues involving Respondent’s Motion for Judgment N.O.V.,

and again, did not allege that the motions for directed ver-

dict were insufficient.

In its opinion dated August 22, 1984, the Fourth Cir-

cuit reversed the judgment in favor of Bristow holding that,

even construing the evidence in the light most favorable to

the Petitioner, the constructive discharge test was not met.

Petitioner was granted an enlargement of time to Petition

for Rehearing en banc. Said Petition was denied on October

29, 1985.

' The Petitioner made the following argument in its Opposition to the

Respondent's Motion for Judgment N.O.V.:

“C. Judgment Notwithstanding the Verdict:

A Judgment notwithstanding the verdict is not unlike a motion

for a directed verdict. In deciding whether to grant judgment

n.o.v., the trial court must consider all evidence and inferences

in the light most favorable to the non-moving party. In other

words, if the jury could reasonably draw the inferences neces-

sary to the non-moving party’s case, or if the moving and

non-moving parties's inferences are equally likely, then a judg-

ment n.o.v. would not be entered. Moore v. Carolina Power &

Light Co., 537 F.2d 1252 (4th Cir. 1976). [cert. denied, 429

U.S. 1001 (1977)]

Considering all of the evidence and inferences in the light most

favorable to plaintiff, it simply cannot be said that the jury's

verdict was erroneous.”

Plaintiff's Opposition to Motion for Judgment N.O.V. at 21.

4

B. STATEMENT OF FACTS

Respondent, The Daily Press, Inc., is a closely-held

corporation which publishes morning and afternoon news-

papers of daily circulation. The newspapers published are

The Daily Press and The Times Herald, respectively. These

newspapers are circulated throughout the Virginia penin-

sula.

Respondent hired Petitioner, James B. Bristow, in t <o-

ruary 1965. Petitioner performed a variety of functions, all

within the circulation department during his fifteen years as

an employee of Respondent’s newspapers. On October 15,

1980, Daniel Cruey, then assistant circulation director, pro-

moted Petitioner to manager of circulation District 25. Peti-

tioner’s duties were identical to other district managers. He

supervised newspaper circulation, collections and billing for

a number of homes and businesses to which the newspaper

was delivered. Each circulation district comprised a group

of subscribers within a particular geographic area. District

25 encompassed one of the larger geographic areas and

included an economic cross-section of newspaper subscrib-

ers. There were fifty-seven carriers in the district including

fifty-five home delivery boys and two motor routes. (TR.

85). Supervising Bristow at that time were division manager

Jean Burdick, his immediate supervisor; Daniel Cruey,

assistant circulation director; and John Goodwyn, circula-

tion director. Bristow resigned as District 25 manager in

September of 1981.

Prior to his appointment as District 25 manager, Peti-

tioner worked as a “swing man” who substituted for other

district managers throughout the newspapers’ circulation

districts as needed. He began his duties in July 1979 after

the appointment of the new single copy sales manager, Jim

Casey. Petitioner determined he would rather be “swing

5

man” district manager rather than Mr. Casey's assistant.’

Petitioner remained in the “swing man” district manager

position for a period of fifteen months until his appointment

as District 25 manager in October of 1980.

Upon assuming his duties as District 25 manager, Peti-

tioner encountered the usual problems associated with man-

agement of circulation districts. In particular, collection

problems in the two low-income areas and increased gaso-

line prices for two motor carrier routes caused carrier turn-

over. (TR 91). Additionally, younger carriers occasionally

failed to update circulation lists causing small circulation

overruns and attendant collection problems. (TR 93, 94)

Petitioner testified at trial that he was able to stabilize these

problems within three or four weeks of his arrival at circula-

tion District 25. (TR 90). Moreover, both Petitioner’s pred-

ecessor, H. Nelson Salway, (TR 170) and successor, Robert

H. Gray, (TR 191) experienced similar problems with Dis-

trict 25 and concluded they were not unique to that district;

other districts they had managed presented similar prob-

lems.

Approximately ten months after his assignment to Dis-

trict 25, Petitioner was routinely audited and blamed for

several outstanding accounts. Petitioner and all other dis-

trict managers personally paid collection shortfalls caused

2 Petitioner now asserts it was 1980 when circulation director Goodwyn

“led him to believe (that either assistant circulation director or single copy

sales manager) would be his.” (Petition p. 6). In fact, Bristow testified at

trial that his conversations with Goodwyn concerning these jobs occurred in

July 1979. (TR 60, 61, 63). Moreover, Respondent employed assistant

circulation director Cruey in August of 1979. (TR 259). Goodwyn informed

Petitioner of this fact over the July 4, 1979 holiday weekend. (TR 61).

3 Petitioner implies District 25 was unmanageable since his predecessor,

Salway, suffered a nervous breakdown. (Petition p. 8). Salway chose to

return to District 25 rather than manage another district in October 1979

(TR 171). Gray encountered only minor problems when he succeeded Peti-

tioner (TR 187).

6

by circulation overruns within their districts to the extent

that carriers did not pay for newspapers delivered to them.

Despite this company-wide employment policy, Bristow did

not believe he was responsible for the shortfall discovered

during the audit. Throughout his employment, Petitioner

experienced problems in accounting for sums he collected on

behalf of The Daily Press. In part, this was due to his

practice of commingling these sums with his own funds. (TR

161). His unsatisfactory accounting procedures were known

to his supervisors at The Daily Press (TR 239, 259), and on

numerous occasions he was required to pay deficiencies with

his own funds. (TR 263-64).

On September 9, 1981, Petitioner was called to a meet-

ing with Goodwyn, Cruey, and Burdick and presented with

a list of uncollected accounts totalling $562.34. Although

Petitioner’s job performance was reviewed comprehensively

and criticized in some respects, his supervisors did not

threaten to fire him. Despite the work-rule requiring reim-

bursement for uncollected sums by district managers, Cruey

suggested that Petitioner pay only one-half of the total sum.

Nonetheless, Bristow remained convinced that he wasn’t

obligated to pay the sum but finally tendered it after a

request from Burdick. No further action was taken against

Bristow after the meeting. In fact, a September 9 summary

memorandum written by circulation head Goodwyn soundly

criticized division manager Burdick rather than Bristow for

the problems in District 25. (TR 240).

Despite having heard nothing further from either

Goodwyn or Cruey since the meeting, Petitioner voluntarily

resigned several days later after concluding that manage-

ment wanted him out. Petitioner personally delivered his

resignation to Respondent’s president, William Van Buren,

Jr. Mr. Van Buren informed Petitioner that his request was

“short notice,” but he would attempt to honor it. (TR 111,

=

7

318). Van Buren then expedited the request and polled the

Board of Directors by telephone who voted to 2°cept the

resignation. (TR 317-18). After this action, # etitioner

changed his mind and requested he be allowed to withdraw

his resignation. By that time Petitioner was no longer

employed with the Company and the pension manager had

been so notified. Respondent chose not to rehire Petitioner.

C. THE PARTIES

James B. Bristow, Petitioner.

The Daily Press, Inc. is a closely-held corporation

which owns and operates two newspapers circulated

throughout the Virginia peninsula including the cities of

Newport News, Hampton, Norfolk and Williamsburg. In

addition, the company owns two cable distribution network

subsidiaries, Piedmont Cablevision Company and Newport

News Cablevision Company. Finally, the corporation has an

ownership interest in the Aberdeen Company which owns a

shopping mall in Hampton, Virginia.

REASONS FOR DENYING THE WRIT

SUMMARY OF ARGUMENT

The Federal Circuits all require that plaintiff must

establish working conditions which a reasonable person

would find intolerable in order to recover for constructive

discharge. There is no conflict whatsoever on this point. The

Fourth Circuit unequivocally found that the plaintiff totally

failed to establish intolerable working conditions. It is clear

that petitioner has failed to establish a conflict among the

circuits with respect to the critical central issue in this case.

Petitioner additionally argues that the Fourth Circuit

and others require an additional showing of subjective intent

on the part of an employer to impose intolerable working

conditions in a constructive discharge case. Petitioner’s

8

assertion is not only irrelevant to the disposition of this case,

it is inaccurate. Petitioner’s alleged conflict among the Fed-

eral Circuits is primarily a semantic difference.

There is no authority whatever for Petitioner’s asser-

tion that the standard of review embodied in Rule 52(a)

applies to a case tried to a jury.

Finally, this court should not review an issue raised for

the first time in a Petition for certiorari.

I. THE COURT OF APPEALS CORRECTLY

APPLIED THE STANDARD RECOGNIZED BY

ALL FEDERAL CIRCUITS IN FINDING THAT

PLAINTIFF FAILED TO PROVE INTOLERABLE

WORKING CONDITIONS WHICH WOULD

CAUSE A REASONABLE PERSON TO RESIGN.

The Federal Circuits uniformly require a plaintiff who

would prove constructive discharge to demonstrate that a

‘reasonable person” in the plaintiff's shoes would have been

compelled to resign as a result of intolerable working condi-

tions. Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th

Cir. 1985); Goss v. Exxon Office Systems Co., 747 F.2d

885, 888 (3d Cir. 1984); Penna v. Brattleboro Retreat, 102

F.2d 322, 325 (2d Cir. 1983); Lojek v. Thomas, 716 F.2d

675, 681 (9th Cir. 1983); Irving v. Dubuque Packing Co.,

689 F.2d 170, 172 (10th Cir. 1982); Held v. Gulf Oil Co.,

684 F.2d 427, 432 (6th Cir. 1982); Johnson v. Bunny Bread

Co., 646 F.2d 1250, 1256 (8th Cir. 1981); Clark v. Marsh,

665 F.2d 1168, 1173 (D.C. Cir. 1981); Bourque v. Powell

Electrical Mfg. Co., 617 F.2d 61, 65 (Sth Cir. 1980); Alicia

Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.

1977).

The Fourth Circuit applied this universally accepted

standard and concluded that petitioner had failed to prove

the principle element of his case:

9

At most Bristow demonstrated that he expe-

rienced problems in managing District 25, which

may have been somewhat greater than those of

other managers due to the comparatively large

size of his territory. No reasonable person would

have found his job intolerable.

Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.

1985).

Petitioner suggests that an apparent conflict in the Cir-

cuits on the requisite elements of constructive discharge

warrants this Court’s review of the Court of Appeals’ deci-

sion in this case. Plaintiff's assertion of this premise badly

misses the mark since consideration of the question of con-

structive discharge solely from the perspective of a reason-

able employee would not alter the result in this case.

The Court of Appeals clearly held that Petitioner failed

to establish either element of constructive discharge. Plain-

tiff failed to establish intolerable conditions as required by

all Circuits. Plaintiff also failed to prove the secondary issue

of subjective intent.

The objective reasonable person standard of proof of

intolerable working conditions is an essential element in

each case of constructive discharge. The law will not permit

a finding of constructive discharge based upon the subjective

perceptions of a particular employee since this would sub-

ject employers to liability for discrimination based upon the

whim of unusually sensitive employees. Johnson v. Bunny

Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981).

As the Fourth Circuit noted in this case:

The employment discrimination laws require as an

absolute precondition to suit that some adverse

employment action has occurred. They cannot be

10

transformed into a palliative for every workplace

grievance, real or imagined, by the simple expedi-

ent of quiting.

Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.

1985).

Absent disparate treatment of a protected employee

class, where an employer treats each employee substantially

the same through the consistent application of standard

work rules, there is no basis for a claim of discrimination.

Neal v. Dillon, 534 F. Supp. 1381, 1390 (E.D.N.Y. 1982),

affd. 714 F.2d 116 (2d Cir. 1983). An employee is not

entitled to claim constructive discharge because he resigns

over the application of a particular work rule. Yet the record

unequivocally demonstrates Petitioner resigned for pre-

cisely this reason. He was dissatisfied over Respondent’s

requirement that district managers personally reimburse

the company for circulation overruns caused by their car-

riers’ failure to monitor their circulation lists properly, or to

collect sufficient sums from their subscribers. Plaintiff intro-

duced not a scintilla of evidence which demonstrated dispa-

rate treatment from that of any other district manager. In

fact, Respondent levied a lessor penalty on Petitioner by

requiring him to reimburse the paper for only one-half of the

uncollectible circulation debts within his district. (TR 110).

Petitioner’s attempts to characterize his employment

conditions as unusual, discriminatory or intolerable, are

unpersuasive. District 25, although larger geographically

than some other districts, was managed satisfactorily by two

other district managers before and after Petitioner resigned.

(TR 170, 191). One presumably construed the district a

challenge which could lead to job advancement. (TR 171).

Moreover, Petitioner’s attempt now to manufacture a con-

spiracy of denied promotions in which Respondent “sought

to build Bristow up and then let him down” is without any

1]

support in the record. (Petition p. 14). Respondent’s denial

of Petitioner’s supposed applications for promotion to single

copy sales manager and assistant circulation director was

uncorroborated at trial; the jury found his representations to

this effect unpersuasive. Moreover, any alleged conversa-

tions were concluded, according to Petitioner, over fourteen

months prior to his appointment as District 25 manager and

over two years prior to his resignation.‘

in addition, Petitioner’s other allegations of

discrimination are unsupported. There is no evidence that

Petitioner’s transfer to District 25 was abrupt given his

length of duty as swing man. No connection exists between

the absence of a carrier audit eleven months prior to his

resignation and the $532.34 collection shortfall over which

he resigned.

The decisions of the Federal Circuits which have

reviewed constructive discharge cases on appeal do not

reflect a “schism” as to what actions of an employer will give

rise to a constructive discharge. Rather, they reflect the

variations manifested by the unique work histories which

the appellate courts were called upon to review. Petitioner

argues that there is a conflict among the Circuits with

respect to the requirement of an additional showing of “‘sub-

jective intent” on the part of the employer to impose intol-

erable conditions. Petitioner’s assertion is not only irrelevent

to the disposition of this petition, it is also inaccurate.‘

4 Any residual embarrassment he may have felt is of no consequence, for

“[t]hat occurs any time an employee is not promoted.” EEOC v. Federal

Reserve Bank of Richmond, 698 F.2d 633, 672 (4th Cir. 1983), rev'd on

other grounds, U.S. __, 104 S.Ct. 2794 (1984).

° The Court below considered the secondary issue of employer intent

only in passing and devoted only two sentences to the issue in its five page

opinion. Bristow, 770 F.2d at 1251. The Court, as with other opinions in

other Federal circuits, focused instead upon the primary requirement that

Petitioner failed to demonstrate intolerable working conditions which would

12

Petitioner states that the requirement of “subjective

intent” is improper and that a finding regarding the objec-

tive reasonable person standard should be all that is

required. This ignores the unequivocal language of the

Court below that subjective “‘[i]ntent may be inferred

through circumstantic! evidence.” Bristow, 770 F.2d at

1255, citing, Holsey v. Armor & Co., 743 F.2d 199, 209 (4th

Cir. 1984), cert. denied, __ USS. . , 105 S.Ct. 1395

(1985). Thus, it is clear that the Fourth Circuit permits

proof of subjective intent through an objective showing of

“circumstantial evidence,” including the severity of the

working conditions and the failure of an employer to correct

untenable working conditions. See Holsey, 743 F.2d at 209.

It is apparent that the conflict which Petitioner seeks to

have resolved is little more than a semantic distinction with-

out a difference. Where subjective intent may be proven by

“circumstantial evidence” of working conditions and faiiure

to correct those conditions, the plaintiffs burden of proof is

virtually identical.

Il. THE COURT OF APPEALS APPLIED THE

CORRECT STANDARD OF REVIEW.

A. The “Clearly Erroneous” Standard of Rule 52(a)

Does Not Apply to a Case Tried to a Jury.

Petitioner incorrectly asserts that the Circuit Court

should have applied the “clearly erroneous” standard of

Fed. R. Civ. P. 52(a). The prescription of Rule 52(a) that

findings of a District Judge may be put aside if “clearly

erroneous” applies only to cases actually tried to a District

lead a reasonable person, similarly situated, to resign. See Penna v. Brat-

tleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983). (“The Retreat’s treat-

ment of Mrs. Penna cannot even remotely be described as intolerable.”).

13

Judge and is totally inapplicable in jury cases. The rule on

its face, and as applied by the Courts makes this clear.

Rule 52(a) unambiguously states that it applies to “‘all

actions tried upon facts without a jury . . ..”’ (Emphasis

added). This Rule has no applicability to a case tried to a

jury.

In Tsai v. Rosenthal, 297 F.2d 614 (8th Cir. 1961), the

Eighth Circuit held:

In any event, we are satisfied that Rule 52 applies

only to findings of fact in actions tried to a court

without a jury, and possibly to situations where the

jury is serving only in an advisory capacity.

Id. at 618.

There is no authority whatever for the proposition that

Rule 52(a) applies to a general verdict by a jury. Accord-

ingly there is no basis for review by this Court.

B. The Court of Appeais Applied the Correct

Standard of Review in Construing the Evidence

in the Light Most Favorable to the Piaintiff.

The Court of Appeals correctly applied the standard of

review of a jury verdict on denial of a motion for judgment

n.o.v. in a Federal District Court:

Even construing the evidence in the light most

favorable to the nonmoving party, as we are

required to do in reviewing a jury verdict on a

motion for judgment n.o.v., Wyatt v. Interstate &

Ocean Transport Co., 623 F.2d 888, 891 (4th Cir.

1980), the constructive discharge test was not sat-

isfied here. For judgment n.o.v. to be denied, there

had to exist “substantial evidence” upon which a

jury could reasonably return a verdict for Bristow.

14

Wyatt, 623 F.2d at 891. We are convinced that

such evidence is lacking.

770 F.2d at 1255.

Every circuit which has considered the issue has

applied the same standard of review set forth by the Court

below. It is clear that where plaintiff receives a jury verdict

in his favor and the court denies defendant’s motion for

judgment notwithstanding the verdict, the appellate court

must apply the same standard as the triai court, that is, the

appellate court must view the evidence “in the light most

favorable to the plaintiff.’ Kademenos v. Equitable Life

Assurance Soc., 513 F.2d 1073 (3rd Cir. 1975); Gillham v.

Admiral Corp., 523 F.2d 102 (6th Cir. 1975), cert. denied,

423 U.S. 913 (1976); Sandoval v. U.S. Smelting, Refining &

Mining Co., 544 F.2d 463 (10th Cir. 1976); Houser v. Sears

Roebuck & Co., 627 F.2d 756 (Sth Cir. 1980).

The Fourth Circuit applied the correct standard of

review in this case. Petitioner’s claim that the “clearly erro-

neous” standard of Rule 52(a) should have been applied is

utterly without merit.

lil. THE PLAINTIFF NEVER RASIED THE ISSUE

OF ALLEGED DEFICIENCIES IN DEFENDANT’S

MOTIONS FOR DIRECTED VERDICT IN THE

DISTRICT COURT, OR IN THE FOURTH

CIRCUIT, AND CANNOT RAISE THE ISSUE

HERE FOR THE FIRST TIME.

Petitioner argues for the first time that Defendant did

not properly move for a directed verdict on the issue of

constructive discharge based on age discrimination.® Peti-

6 While Petitioner designates this issue as one of three Questions Pre-

sented for Review (Petition p. ii), the only mention of the issue appears in a

footnote (Petition p. 28).

15

tioner failed to raise this issue in his Opposition to Respon-

dent’s Motion for Judgment N.O.V., (see p. 3, supra) and

failed to raise the issue on appeal to the Fourth Circuit.

Petitioner is clearly barred from raising the issue for the

first time in a Petition for Certiorari.

This Court has held that it will not review an issue

which was not raised in District Court. Blum v. Stenson,

eee , 79 L.Ed.2d 891, 897, n.5 (1984).

This Court has similarly held that it will not review an

issue which was not raised before the Circuit Court. County

of Oneida v. Oneida Indian Nation, ___ U.S. ___, 84

L.Ed.2d 169, 185 (1985).

Because the Petitioner failed to raise this issue in either

of the courts below, this Court should decline to consider the

issue.

CONCLUSION

For the foregoing reasons, this Court should deny the

Petition for Writ of Certiorari.

Respectfully submitted,

WILLIAM J. BUTLER, JR

ARTHUR D. MCKEY

GREGORY P. SCHERMER

Hanson, O’Brien, Birney & Butler

888 17th Street, N.W., Suite 1000

Washington, DC 20006

(202) 298-6161

Attorneys for Respondent