# Opposition Brief — Giammario v. Trenton Board of Education

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1593%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1141

## Text

3 FEB F 1986

No. 85-1516 =. SpANHOL, IL

In The
Supreme Court of the United States
October Term, 1985

MATTEO GIAMMARIO, OSCAR GIBSON,
EDWARD HIRSCH, CHARLES HOGAN,
WALTER KRICHLING, OCTAVIUS LA CROSS,
EARL MURPHY, EVE PANARO, and
TOBY PONTANI,

Petitioners,
v.

TRENTON BOARD OF EDUCATION
and TRENTON ADMINISTRATORS
and SUPERVISORS ASSOCIATION,

Respondents.

sy
Ww

On Petition for a Writ of Certiorari to the
Supreme Court of the State of New Jersey

o.
—s

BRIEF IN OPPOSITON TO PETITION FOR

CERTIORARI

ROTTKAMP & FLACKS ROBERT M. SCHWARTZ
Attorneys for Respondent 2109 Pennington Road

Trenton Board of Education Trenton, NJ 08638
795 Parkway Avenue (609) 771-9080
Lexington Mews, Suite A-6 Attorney for Trenton
Trenton, Nj 08618 Administrators and Super-
(609) 882-0556 visors Association

ROBERT B. ROTTKAMP, JR., Esq.
Of Counsel and on the Brief

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

COUNTERSTATEMENT OF THE
QUESTION PRESENTED

Whether the New Jersey Law Against Discrimination
bars an employer and a labor union from bargaining for
a multi-tiered salary schedule which may unintentionally
result in the payment of a lesser longevity benefit to older
employees who had previously passed longevity milestones.

ii

TABLE OF CONTENTS

Page
COUNTERSTATEMENT OF THE QUESTION |
gg 4 yg | REE iemieaiasieo ieee: hick scant tlons i
ADL OF CORT Ie ND neecictcecerinieonetimmnnnonaan ii
TABLE OF AUTHORITAS ne iil
COUNTERSTATEMENT OF THE CASE ..... 1

ARGUMENT:

THE PETITION FOR A WRIT OF CERTIOR-
ARI SHOULD BE DENIED BECAUSE PETI-
TIONERS CLAIM OF ARBITRARY DISPAR-
ATE IMPACT IS WITHOUT MERIT |... 3

A. Both the State Trial Court and the New Jer-
sey Appellate Division Judgment rests on
Adequate and Independent State Grounds
thus this Court lacks Jurisdiction 00000... 3

B. Review Should not be Undertaken as there
Exists no Important and Substantial Federal
Question to Decide as the State Courts mere-
ly applied the well-founded Principles of
Griggs v. Duke Power Co. to the Statutory
Scheme of the New Jersey Law Against Dis-
ee URE AR OSI EEE Ly se 6

Sd t oe FL” | 1 aeRO ie acater escsse Hiei itn nar Rirety RL oon 9

lil

TABLE OF AUTHORITIES

Page
Cases CITED

Angel v. Bullington, 67 S.Ct. 657, 330 U.S. 183,
SEES Ne ce EN 6

Fox Film Corp. v. Muller, 56 S.Ct. 183, 296 U.S.
RE a ae Sainte 5)

Geller v. Markham, 653 F.2d 1027 (2 Cir. 1980),
pon een, oon we, eee (2061) oO ... 8

Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct.
849, 28 L.Ed.2d 158 (1971) 4,8

Groppi v. Wisconsin, 400 U.S. 505, 507, 91 S.Ct.
om oes, at Saeed off (1971) LL... 6

Ilerman v. Fairleigh Dickinson Univ., 183 N.J.
Super 500 (App. Div. 1982), cert. den. 91 Nw.
SIRS RSC GRY Oe Aa )

Hortonville Joint School Dist. No. 1 Hortonville
Ed. Ass’n., 96 S.Ct. 2308, 426 U.S. 482, 49 L.Ed.

Sac eilat: <a Ra aie eae nei ea ee aN 6
Jankovich v. Indiana Toll Road Comm., 85 S.Ct.

493, 379 U.S. 487, 13 L.Ed.2d 439 (1965) 0... 5)
Johnson v. New Jersey, 86 S.Ct. 1772, 1782, 384

U.S. 719, 735, 16 L..Ed.2d 882 (1966) —______.... 5)
Lamb Enterprises, Inc. v. Kiroff, 399 F.Supp.

ee 5
McCoy v. Shaw, 48 S.Ct. 519, 277 U.S. 302, 72

S|, EET Ree aaa eee nes Sas Se aeRO 5)
Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429 (1875) = 5
Peper v. Princeton University lioard of Trustees,

NE” AL: SERIE een eee eee 5)

iirc

lv

TABLE OF AUTHORITIES—Continued

Page
SraTuToRY AUTHORITIES
28 U.S.C. § 1257(3) ... ea Se mca cae 6
BUSTA. te bee. Oh wee ores 10
BS se 6 IR ie ma ae eee ORE ENE: nt onl se ner none eo 4
MT RY 2 ARS eee one neon Re ane mOe SMANe eo AN val oer ome 7,8
a ee a ieee ection eeneaciananiamemens 4
a atin NE is nce reenactment 3, 4
N.J.S.A. 10:5-12 ........ Lea coe as Soe MO 4
oT BE, S| Gea Radkemttnc Remeron eee” ey Usus Seer ae em 9
may I cdc pcsceetssos acpnceesvececdennieteeg naapientuaiisaoemnincpeionaiin 9
TExTBOOK AND Law Reviews

15 Creighton L. Rev. 749 (1982), Note, The Su-

preme Court Dismissal of State Court Appeals
for Want of Substantial Federal Question 0000000... 6
20 B.U.L. Rev. 501 (1940), Ulman & Spears ....................... 6
16 Wright, Miller & Cooper, Jurisdiction § 4014 ....... 6

COUNTERSTATEMENT OF THE CASE

Plaintiffs are, or have been, employees of defendant,
Trenton board of Education (Board), and members of
defendant, Trenton Administrators and Supervisors Asso-
ciation (TASA). Prior to July 1, 1979, the negotiated
bargaining agreement, between the Board and TASA pro-
vided for a $400.00 per year increment for employees from
and after their 20th year of employment and $200.00 per
year from and after the 35th and 40th years.

Kor the period commencing July 1, 1979, a new con-
tract was negotiated between defendants which provided
for annual increments of $600.00 from and after the 20th,
25th, 80th. 35th and 40th vears of service.

Jt is unquestionable and admitted by the defendants
Board and Association (TASA), that the clear intent at
the negotiating table and at the ratification meetings was
that there would be no retroactive application of the new
contract to those employees who had already passed the
longevity milestones. The longevity provision has been
interpreted and applied uniformly to mean that employees
who have reached their longevity anniversaries prior to
the effective date of the 1979 contract are not eligible for
a payment at the increased rate of $600.00 per year until
the next milestone is reached. Again, there would be no
retroactive application of the new contract provision to
those who had previously passed the appropriate mile-
stones. This interpretation was confirmed as the contrac-
tua! intent of the defendants in an arbitration proceeding
an! sward between TASA and the Board.

For example, although plaintiff, Giammario, passed
his 20th vear of service in 1973, after July 1, 1979. he re-

]

2

ceived the prior longevity increment of $400.00 pursuant
to the prior contract rather than one of $600.00 under the
1979 contract. Similarly, although he passed his 25th
year of credited service in 1978, he received no increased
longevity after July 1, 1979, because the prior contract did
not recognize the 25th year as a milestone. However, un-
der the 1979 contract, when he reaches his 30th year of
service, he will receive an annual increment of $600.00,
and continue to receive an increment of $400.00 for his

20th vear of service with the Board,

A renewal contract of July 1, 1982, has similar lon-
gevity provisions and has been applied uniformly to all

employees by the defendants.

Plaintiffs and defendants entered into a stipulation
of facts and on September 17, 1984, presented their re-
spective positions before the Honorable Paul G. Levy.
J.C.

On October 1, 1984, Judge Levy issued a written opin-
ion finding that the longevity provision discriminatorially
impacted on the basis of age contrary to the New Jersey

Law Against Diserimination (LAD).

On December 12, 1984, defendant Board filed a notice
of appeal to the Appellate Division from the whole of the
final judgment entered by the court on October 24, 1984.

By decision dated August 8, 1985, the New Jersey
Appellate Division reversed the trial court finding that
the incidental collateral effects of the longevity provision,
in the absence of intentional discrimination, did not con-

stitute age discrimination in violation of the LAD.

On October 3, 1985, the New Jersey Supreme Court is

sued an Order denying the petition for certification.

+
—_

On December 31, 1985, this Petition for Writ of Cer-
tiorari was mailed to the Clerk of the United States Su-
preme Court.

ARGUMENT

THE PETITION FOR A WRIT OF CERTIOR-
ARI SHOULD BE DENIED BECAUSE PETI.-
TIONERS CLAIM OF ARBITRARY DISPAR.-
ATE IMPACT IS WITHOUT MERIT.

A. Both the State Trial Court and the New Jer-
sey Appellate Division Judgment rests on
Adequate and Independent State Grounds
thus this Court lacks Jurisdiction.

On October 3, 1985, the New Jersey Supreme Court
entered an Order denying the plaintiffs’ Petition for Cer-
tification. That Petition was filed to request review of a
decision of the Superior Court of New Jersey, Appel-
late Division which reversed the trial court. This econtro-

versy involves an age discrimination claim.

Contrary to the Statement of Jurisdiction contained
in the appellants’ brief, both the trial court and the appel-
late court decided the matter on state grounds and not a
federal statute. Though the trial courts reliance upon
the New Jersey Law Against Discrimination, N.J.S.A.
10:5-1 et seq., is not clear, there appears to be sufficient
indication that the court based its decision on state
grounds. In discussing the limitations issue the court
stated:

‘Thus the court must determine the wilfulness of the
alleged violation if there is liability under the ADEA,

However, it is unnecessary to make that determina-
tion because N.J.S.A. 10:5-12 prohibits an employer
from discriminating against an employee in compen-
sation because of the emplovee’s age.’’ (A-18)

The most telling indication is the trial courts state-
ment:

‘*Thus the court must reach and decide the basic issue:
does the differential application of longevity pay
emanate from a policy prohibited by the [New Jersey ]
Law Against Diserimination.’’ [N.J.S.A. 10:5-1 et
seq.) (A-19).

Thus, clearly the trial court’s decision was based upon
state grounds. The State Appellate Court made it abso-
lutely clear that it was deciding the issue based upon state
grounds. In its decision it states:

‘‘In this case we are asked to consider whether the
New Jersey Law Against Discrimination, N.J.S.A.
10:5-1 eft seq., (LAD) bars an employer... ’’ (A-3)

Again, the Appellate Court made it clear in its dis-
cussion of the merits that the basis of its decision was the

state anti-diserimination law.

‘*E'mployment discrimination due to age (or any other
invidious classification), is barred by LAD. ‘It shall
be unlawful employment prectice, or, as the case may
be, an unlawful discrimination ... for an employer,
because of ... age... to discriminate against such
individual in compensation...’ N.J.S.A. 10:5-12a.
Similar provisions are contained in the federal Age
Discrimination in Employment Act, 29 U.S.C. 623(a)
(ADEA). Ina sex discrimination case arising under
the LAD, our Supreme Court held that the test for a
prima facie showing was the same as that used in fed-
eral cases arising under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-2 et seq. See Peper v.

Princeton University Board of Trustees, T7 NuJ. 55,

81 (1978).’’ (A-6)

Thus, it is obvious that this matter was decided upon
the New Jersey Law Against Discrimination and not the
federal ADEA. However, the court justifiably and appro-
priately analyzed state and federal cases arising under

Title VIT and the ADEA.

The New Jersey Supreme Court denied appellants’

petition for certification without explanation.

The United States Supreme Court cannot review a
case, even though it may contain a federal question, if
there is an adequate state ground that supports the de-
cision of the state court. Murdock v. Memphis, 20 Wall.
590, 22 L.Ed. 429 (1875). Thus, there can be no review
if the state court has decided the case on some ground of
state law, and has not reached a federal question that may
be present. McCoy v. Shaw, 48 S. Ct. 519, 277 U.S. 3802,
72 I..Ed. 891 (1928); Johnson v. New Jersey, 86 S.Ct. 1772,
1782, 384 U.S. 719, 735, 16 L.Ed. 2d 882 (1966).

Likewise, there ean be no review where the state court
has decided both the state and federal questions, if its de-
cision of the federal question was unnecessary in light of
its disposition of the state question. Fox Film Corp. v.
Muller, 56 S.Ct. 183, 296 U.S. 207, 80 L.Ed. 158 (1935) ;
Jankovich v. Indiana Toil Road Cemm., 85 S.Ct. 493, 379
U.S. 487, 13 L.Ed. 2d 439 (1965). See also, Lamb Enter-
prises, Inc. v. Kiroff, 899 F. Supp. 409 (D.C. Ohio, 1975)
reversed on other grounds 549 F.2d 1052, certiorari denied
97 S.Ct. 2927, 481 U.S. 968, 53 L.lad. 2d 1064 (1976). Ad-

ditionally, this Court is bound to accept interpretation of

state law by the highest court of the State. Hortonville
Joint School Dist. No. 1 v. Hortonville Ed. Ass’n., 96 S.Ct.
2308, 426 U.S. 482, 49 L.Ed. 2d 1 (1976); Groppi v. Wis-
consin, 400 U.S. 505, 507, 91 S.Ct. 490, 491, 27 L.Ed. 2d
571 (1971).

Clearly, the Court cannot review this matter based
upon adequate state grounds supporting the decision.

B. Review Should Not be Undertaken as there
Exists no Important and Substantial Fed-
eral Question to Decide as the State Courts
merely applied the well-founded Principles of
Griggs v. Duke Power Co. to the Statutory
Scheme of the New Jersey Law Against Dis-
crimination.

Under the statute, 28 U.S.C. § 1257(3), there must be
a federal question in order to invoke the jurisdiction of
the Supreme Court. Whether there is such a question in
the case is a matter that the Court must decide for itself.
Angel v. Bullinaton, 67 S.Ct. 657, 330 U.S. 183, 91 L.Ed.
832 (1947). The mere presence of a federal question will
not permit review, however, unless that federal question
is ‘‘substantial.’’ 16 Wright, Miller & Cooper, Jurisdic-
tion § 4014; Ulman & Spears, 20 B.U.L. Rev. 501 (1940);
Note, the Supreme Court Dismissal of State Court Appeals
for Want of Substantial Federal Question, 15 Creighton
L.. Rev. 749 (1982).

Assuming, arguendo, that the lower courts used the
federal statute, the ADEA, as the basis of their decisions
and that there exists a federal question, it is this defend-
ants position that there exists no substantial federal ques-
tion to justify the invoking of the Courts jurisdiction.

7

This age discrimination in employment matter is not
unique either in the facts or the law.

The New Jersey courts simply applied the facts of this
case to the well founded principles of Griggs v. Duke Pow-
er Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed 2d 158 (1971)
with the statutory scheme of the New Jersey Law Against
Discrimination. The courts below sought the assistance
of the legislative history of the A.D.E.A. and particularly
§ 623(F) (1) at 29 U.S.C. $623. The court merely applied
the impact theory and business necessity justification and
found that labor negotiations, with economic considera-
tions a primary factor, negated a finding of age diserimi-
nation in violation of the New Jersey LAD. It is merely
an application of somewhat unique facts to established
law.

Petitioners attempt to portray the New Jersey Appel-
late Division judgment as using economic cost as a basis
for justifying alleged age discrimination. This could not
be further from the truth. The trial court erroneously
concluded initially, based upon essentially irrelevant statis-
tics, that age discrimination in violation of the LAD ex-
isted. The court then, in attempting to apply the disparate
impact theory to the federal law, found that economic or
monetary considerations generally cannot be raised as a
defense to a discrimination claim unless they have a rela-
tionship to the employment practice in question. The
court, therefore, found no defense existing and in favor of
plaintiffs. At no time did the trial court even consider de-
fendants arguments as they related to labor negotiations.
This was manifest error.

Petitioners mistakenly contend that the Appellate
panel used economic considerations solely as a defense to

the discrimination claim. This is a misreading of the deci-
sion. The Appellate panel correctly found that labor nego-
tiations constitute a clear, manifest relationship to the
questioned employment practice, ie., salary seales, and
that fiseal effeet is a primary factor.

The Court stated, ** Aithough imonetary consideration
cannot normally justify policies which by way of impact
discriminate on the basis of age, ie., [citing Geller v. Marl
ham, 653 F. 2d 1027 (2 Cir. 1980), cert. den. 451 U.S. 945
(1981)], the rule must be different with respect to labor
negotiations—an exercise in which fiseal effect is a pri-
mary factor. As TASA noted in its brief, it is inevitabie
in the negotiation process that some employees will fare
better than others. If facially neutral negotiating compro-
mises which turn out to have an unintended disparate im-
pact on people of differing age are discrimination under
the A.D.E.A. or LAD, labor negotiations become chaotic.
Compromises will often lic in the area of retroactivity
which by defin'tion wil) relate to seniority, a quality with a
bivh correlation to age. Making new benefits prospective
only is a rational and usual compromise often employed (1
negotiations.’’ (A-10)

The disparate impact theory of Griggs v. Duke Power
Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed. 2d 158 (1971), ap-
plies when the employer's adverse action resulted not from
any discriminatory motive but simply from application of
facially neutral criteria that are alleged to have a dispro
portionate impact on members of a protected class an//
which cannot be justified by business necessity. The ler =
of by the New Jersey Supreme Court’s decision in //er-
that not all age discrimination is prohibited but only, ‘‘ar-
bitrary age disecrimination.”’ A reflection of this is ¢ 625

9

(I) (1) which clearly indicates there is no prohibition,
‘‘where differentiation is based on reasonable factors
other than age... ’’ 29 U.S.C. § 623.

The Appellate panel merely applied the facts of this
case to the impact theory and found that labor negotiations
with economic considerations a primary factor negated a
finding of age discrimination in violation of the LAD. The
Court found that in the absence of intentional discrimina-
tion, te. proof of discriminatory intent and purpose, a
facially neutral provision in a labor contract which impacts
adversely on an older age group in an incidental manner
does not violate the ADEA ‘or the LAD.

Petitioner’s final argument is specious and is disposed
of by the New Jersey Supreme Court’s decision in //er-
mann v. Fairleigh Dickinson Univ., 183 NJ. Super 500
(App. Div. 1982), cert. den. 91 N.J. 573 (1982), where the
Court limited the multiple avenues of recourse available to
plaintiffs by the election available pursuant to the New
Jersey Law Against Discrimination, specifically, V.J.S.A.
10:5-13 and 5-27. This Court will not review the interpre-
tation of state law by the highest court of the State.

Ly
—

CONCLUSION

Respondent submits that it is difficult to escalate any
of the issues presented, without more, into a matter of
important and substantial federal issues requiring resolu-
tion by this Court. It is a case that hardly transcends the
immediate interests of the litigants and affects only the
parties to this particular dispute.

10

An application of the consideration governing review
on certiorari, U.S. Sup. Ct. Rule 17, 28 U.S.C.A., and the
established case law, requires a denial of the petition for
certification.

Respectfully Submitted,

ROTTKAMP & FLACKS ROBERT M. SCHWARTZ

Attorneys for Respondent _ 2109 Pennington Road
Trenton Board of Education Trenton, NJ 08638

795 Parkway Avenue (609) 771-9080

Lexington Mews, Suite A-6 Attorney for Trenton

Trenton, NJ 08618 Administrators and Super-

(609) 882-0556 visors Association

ROBERT B. ROTTKAMP, JR., Esq.
Of Counsel and on the Brief

Dated: April 3, 1986

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1593%3A2. Public record. Not legal advice.