# Opposition Brief — DiBenedetto v. Massachusetts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0086%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 479 U.S. 1092 ## Text 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 ie eh eG eg 5s kg bw I ag ee saa s Se 5 xe v9 Hols 86% on 88 5 a ak ce SoG vhs ks koe Ka ees 5 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0086%3A3. Public record. Not legal advice.