Opposition Brief — DiBenedetto v. Massachusetts

ame Court, U.S,

£3) | See"L ED

Supreme Court of the United States

Ocroser TERM, 1986

UBALDO DiBENEDETTO,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS

and

JAMES RYAN,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT

OF MASSACHUSETTS

RESPONDENTS’ BRIEF IN OPPOSITION

LAWRENCE T. BENCH

First Associate Counsel

University of Massachusetts

250 Stuart Street

Boston, MA 02116

(617) 482-8400

Attorney for Respondents

Blanchard Press, Inc., Boston, Mass. — Law Printers [617] 426-6690

rep 4 Wet

No. 86-1120 _| sical

Z CLERK

In the

I

QUESTION PRESENTED

May liability be imposed in an action under the Age

Discrimination in Employment Act, 29 U.S.C. §§621-634,

where a jury found specifically that the failure to hire the

plaintiff was neither because of his age nor because of a super-

visory employee’s discriminatory motives or actions?

INDEX

Page

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I. The Case Presents No Split of Authority Re-

quiring Resolution by This Court............ 4

II. The Decision of the Supreme Judicial Court

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TABLE OF CITATIONS

Cases

Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979)... .. 4

Statute

Age Discrimination in Employment Act, 29 U.S.C. § 621

In the

Supreme Court of the United States

OcrosBer TERM, 1986

No. 86-1120

UBALDO DIBENEDETTO,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS

and

JAMES RYAN,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT

OF MASSACHUSETTS

RESPONDENTS’ BRIEF IN OPPOSITION

Opinions Below

The opinion of the trial judge in the Massachusetts Superior

Court, entitled “Order for Judgment,” is unreported; it is

reproduced at pp. 1-13 of the Supplemental Appendix (herein-

after “Supp. App.”) to the Petition. The opinion of the Supreme

Judicial Court of Massachusetts is reported at 398 Mass. 395,

____. N.E.2d (1986), and is reproduced at pp. 37-55 of the

Petition. The Order of the Supreme Judicial Court of Octpber 3,

1986, denying rehearing, is unreported.

Jurisdiction

The jurisdictional requisites are adequately set forth in the

Petition.

Statute Involved

The pertinent provisions of the Age Discrimination in

Employment Act, 29 U.S.C. §§623(a), 630(b) and 631(a), are set

forth at p. 56 of the Petition.

Statement of the Case

The petitioner, plaintiff below, claims that the respondents

violated the Age Discrimination in Employment Act (ADEA),

29 U.S.C. §§ 623-634, when they failed to hire him for a faculty

teaching position at the University of Massachusetts at Boston.

The respondents are the Commonwealth of Massachusetts,

which operates the University, and James Ryan, who was the

chairman of the Spanish department at the University’s Boston

campus. The plaintiff had applied in 1979 for an advertised

faculty position in the Spanish department for a teacher with

“special training or experience in Applied Linguistics and to

serve as coordinator of first and second year courses in Spanish.”

In several conversations, respondent Ryan had told petitioner,

who was 51 years old, that the department was “looking for

some younger people”; nonetheless, Ryan asked petitioner to

submit his curriculum vitae and other information, and peti-

tioner and five other candidates were interviewed by the depart-

ment’s personnel committee, which was to recommend a can-

didate for the position to the University administration. Ryan, as

department chairman, was an ex officio member of the person-

nel committee but had no vote. The committee voted to recom-

mend that the position be offered to another candidate, Esther

Torrego, then 33 years old. Members of the committee testified

that the ages of the applicants played no part in the selection

process. Ryan iorwarded the committee’s recommendation,

with his approval, to the dean, who offered the position to

Torrego. (Petition at 37-40.)

— |)

3

Petitioner filed suit in the state court in 1980 alleging that in

failing to hire him the respondents had discriminated against

him on account of his age, in violation of the ADEA; the

respondents denied that the failure to hire the petitioner was

based on his age. (Petition at 40.) The case was tried twice before

a jury, the first trial ending in a mistrial when the jury could not

agree on a verdict. (Supp. App. at 1.) The second trial was held

before the same judge, and by tacit agreement of the parties the

same “ground rules” were applied, including the form of the

special questions submitted to the jury. (Supp. App. at 1, 12.')

Those questions, which were submitted on the basis of instruc-

tions drawn from the language of an opinion of the First Circuit

in an ADEA case (Petion at 41-42; Supp. App. at 2) were

answered by the jury as follows:

1) Did the Commonwealth fail or refuse to hire the plain-

tiff because of his age? “No.”

2) Did the defendant James Ryan discriminate against the

plaintiff because of his age? “Yes.”

3) Did the Commonwealth fail or refuse to hire the plain-

tiff because of the defendant James Ryan’s discrimina-

tionP “No.” ;

4) Was any discrimination done in willful violation of the

law? “Yes.”?

(Petition at 45-46, fn. 4.) Based on the jury’s answers the trial

judge concluded that there was no causal relationship between

the “discrimination” on Ryan’s part and the failure to hire the

plaintiff. Accordingly, he entered judgment dismissing peti-

tioner’s complaint. (Supp. App. at 7-8; Petition at 47.) The sole

' Petitioner made no formal “objection” to question number 3, although his

counsel argued against its submission to the jury during lobby conferences at the

first trial. (Supp. App. at 1, 7, 12.) Ne objection of any sort was made at the

second trial, and petitioner has made no showing why the question, which

tracks the causation language of 29 U.S.C. § 623(a)(1), was improper.

2 Question 5 dealt with petitioner's unlawful recording of telephone conver-

sations with Ryan.

question presented on appeal was whether the entry of that

judgment was correct. (Petition at 47.) The Supreme Judicial

Court held that it was, and affirmed the Superior Court. (Peti-

tion at 47-48, 55.)

Reasons for Denying the Writ

I. THe Case Presents No Spuit oF AUTHORITY REQUIRING

RESOLUTION BY THIS Court.

Despite petitioner’s assertions to the contrary, the decision of

the Supreme Judicial Court neither departs from the holdings of

the Federal Circuit Courts nor promulgates any novel inter-

pretation of the ADEA. The case involves nothing more than the

application of well-established principles, grounded in the

language of the statute itself, to the particular facts of the situa-

tion. Both the trial judge (see Supp. App. at 2; Petition at 41-42)

and the Supreme Judicial Court (Petition at 41-42, 44) expressly

stated that they were following the holding and the language of

the First Circuit in Loeb v. Textron, Inc., 600 F.2d 1003 (lst

Cir. 1979), concerning the requirement that a plaintiff under the

ADEA show that age was a “determinative factor” in, i.e., that

it had a causal relationship to, the decision not to hire him. The

Supreme Judicial Court cited cases from several other circuits,

all to the same effect. (Petition at 42, 44, 51.) Since no contrary

line of authority has been cited by the petitioner, his argument

amounts at most to an assertion that the Supreme Judicial Court

misapplied the causation requirement set forth in the statute and

explicated in Loeb and the other cases. But even that position

cannot stand, because the decision was clearly correct.

5

II. THe Decision OF THE SUPREME JuDICIAL Court Was

CorrECT.

The Supreme Judicial Court recognized, as had the trial

judge, that the jury’s verdict foreclosed the imposition of liability

on either defendant. The jury found in answers to two separate

questions that the failure to hire the plaintiff was not because of

his age. (Petition at 54, 55; Supp. App. at 7-8.) Thus, the statute,

29 U.S.C. § 623(a)(1), was not violated. The petitioner’s

tortuous argument based on Ryan’s status as an “employer” and

his having been found to have “discriminated” against petitioner

confused, as the state court recognized, “the definition of

employer with the ultimate issue of causation.” (Petition at 50.)

The Petitioner’s real problem is not with the court’s application

of the law but with the jury’s findings on the facts.

Conclusion

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

should be denied.

Respectfully submited,

LAWRENCE T. BENCH

First Associate Counsel

University of Massachusetts

250 Stuart Street

Boston, MA 02116

(617) 482-8400

Attorney for Respondents

February, 1987