Amicus Curiae Brief — CBS Inc. v. Bruno

No. 89-857

IN THE

Supreme Court of the United States

OcTOBER TERM, 1989

W.B. SAUNDERS COMPANY AND CBS EDUCATIONAL

AND PROFESSIONAL PUBLISHING,

a Division of CBS Inc.,

Petitioners,

Vv.

ADELINE M. BRUNO,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF OF AMICUS CURIAE,

MERCHANTS AND MANUFACTURERS

ASSOCIATION, IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

CHARLES G. BAKALY, JR.

(Counsel of Record)

JEFFREY I. KOHN

O’MELVENY & MYERS

Citicorp Center

153 East S3rd Street

New York, New York

10022-4611

(212) 326-2000

Attorneys for Amicus Curiae,

Merchants and

Manufacturers Association

IN THE

Supreme Court of the United States

OcTOBER TERM, 1989

No. 89-857

W.B. SAUNDERS COMPANY AND CBS EDUCATIONAL

AND PROFESSIONAL PUBLISHING,

a Division of CBS Inc.,

Petitioners,

Vv.

ADELINE M. BRUNO,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MOTION OF MERCHANTS AND MANUFACTURERS

ASSOCIATION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

The Merchants and Manufacturers Association (the “As-

sociation”) moves the Court for leave to file the attached

brief of amicus curiae in support of the Petition for Writ of

Certiorari. The consent of the attorney for the petitioners

has been obtained. The consent of the attorney for the

respondents was requested but refused.

(1)

ty

I.

NATURE OF THE INTEREST OF THE

ASSOCIATION.

The Association is a non-profit California corporation.

Its purpose is to augment the human resources management

of member firms. Over 3,700 companies of varying sizes and

industries are members of the Association. The members

collectively employ over one million employees.

The general purposes of the Association are, in part, to

promote a healthy business and economic environment, to

foster meaningful programs for its employer members, and

to advance the civic, commercial, and industrial interests

of its members. The Association provides consulting and

educational services to its membership in connection with

personnel and employment relations matters, including em-

ployment litigation. From time to time, the Association is

asked by its members to provide consulting services and

assistance in connection with their compliance with federal

and state age discrimination laws.

II.

ISSUES TO BE ADDRESSED

BY THE ASSOCIATION.

Because of the aging of the United States population in

general, and the workforces of its members in particular, the

Association and its members are extremely concerned about

the Age Discrimination in Employment Act of 1967, as

amended (“ADEA”), and the impact of the ADEA and judicial

interpretations of the ADEA on the business decisions of

employers. Litigation under the ADEA has exploded in

recent years and affects, directly or indirectly, practically all

employers in the United States. According to recent statistical

data from the General Counsel’s Office of the Equal Employ-

ment Opportunity Commission (“EEOC”), between 1983 and

1988, an average of almost 13,000 ADEA charges were filed

each year with the EEOC. Between 1985 and 1988, an

ee Ne artltatoe

3

average of 95 federal ADEA lawsuits were commenced each

year. Preliminary figures for 1989 show 133 new ADEA

lawsuits have bezn commenced, a record high.

The Association’s interest in this Petition concerns the

far-reaching and potentially devastating impact of one such

judicial interpretation of the ADEA on its members. The

Third Circuit’s opinion is the most troubling decision under

the ADEA in recent years. The court below upheld a jury

verdict based solely on the difference in the ages of compara-

ble employees and evidence which merely questioned the

employer's nondiscriminatory explanation for selecting an-

other employee not in the protected class. The court below

also admitted into evidence statistical comparisons of the

ages of the employer’s workforce which failed to account for

the minimum objective qualifications of the job positions

studied. In addition, the court below found that an employ-

ee’s refusal of an unconditional job offer of substantially

equivalent employment was insufficient to toll an employer's

backpay liability.

If left standing, the decision of the court below will

endorse findings of age discrimination under the ADEA where

there is no evidence that the challenged employment decision

was in fact motivated by an intent to discriminate. In effect,

the decision of the court below leaves employers exposed

to judicial second-guessing of their business judgment and

permits a finding of an ADEA violation if a jury concludes

that the employer’s business judgment may have been mis-

taken. The opinion of the Third Circuit also threatens

employers with the unbridled use of meaningless, highly

prejudicial statistical comparisons in individual disparate

treatment cases, even though such “evidence” is barred as a

matter of law in class action disparate impact and disparate

treatment cases under the ADEA. Finally, the Third Circuit's

opinion is a ringing endorsement for employment discrimina-

tion plaintiffs to reject unconditional offers of substantially

equivalent employment.

The Association's brief examines the widespread conflict

among the federal circuit courts of appeals in ADEA cases,

4

the failure of the court below to adhere to this Court’s

authority, and the significant impact of the decision on

employers.

The Association submits that its experience in em-

ployment-related matters, its large employver-group member-

ship, and its amicus curiae appearances in other forums, gives

it the ability to focus on the long-term impact of the decision

below on the Association’s members as well as all employers

in the United States. The Association is in a unique position

to develop more fully the consequences of the lower court’s

decision on large and small emplovers alike.

For the foregoing reasons, the Court should grant this

Motion for Leave to File Brief of Amicus Cunae in Support

of Petition for Writ of Certiorari.

Dated: December 28, 1989.

Respectfully submitted,

CHARLES G. BAKALy, JR.

(Counsel of Record)

JEFFREY I. KOHN

O’MELVENY & MYERS

Citicorp Center

153 East 53rd Street

New York, New York 10022-4611

(212) 326-2000

Attorneys for Amicus Curiae,

Merchants and Manufacturers

Association

NT eae ed bt Meno ae

TABLE OF CONTENTS

i cicacunisinisbicsensbibabannaneingenenatneceetenenascncane

Se FI IE BI earcnsiisenccececneneesessnsennsrsncnseceoreccscanceene

REASONS FOR GRANTING THE WRIT ....0........ccccessseesseeeeees

I.

THIS COURT SHOULD GRANT REVIEW TO RESOLVE

THE CONFLICT AND CONFUSION AMONG THE CIR-

CUITS REGARDING A SUBSTANTIAL QUESTION

UNDER THE ADEA: WHETHER AN ADEA PLAINTIFF

CAN PREVAIL ON THE BASIS OF A BARE-BONES

PRIMA FACIE CASE COMBINED WITH SOME EVI-

DENCE ATTACKING THE EMPLOYER'S ARTICU-

LA TERED BR Fmm OOO GRMBPRIIUIUS cxcccccrnrsssccocssscsocessesesesrcncsnscescess

A. The Decision Below Conflicts With Decisions

Of Other Circuit Courts Of Appeals...................

B. The Decision Below Conflicts With Decisions

Ee i SE Cn

C. The Decision Below Presents Important Issues

IRE A aon

THIS COURT SHOULD GRANT REVIEW TO RESOLVE

THE CONFLICT AND CONFUSION AMONG THE CIR-

CUITS REGARDING THE USE OF STATISTICAL EVI-

DENCE IN AN ADEA DISPARATE TREATMENT CASE

A. The Decision Below Conflicts With Decisions

Of Other Circuit Courts Of Appeals...................

B. The Decision Below Conflicts With Decisions

SER RS CSIR

THIS COURT SHOULD GRANT REVIEW BECAUSE

THE COURT BELOW CIRCUMVENTED THIS

COURT'S DECISION IN FORD MOTOR CO. v. EEOC

WHEN IT HELD THAT A WRITTEN UNCONDITIONAL

OFFER OF A SUPERIOR OR A SUBSTANTIALLY

EQUIVALENT JOB DID NOT TOLL THE ACCRUAL OF

ITE PIII TN visanednecsdnivenandennneossnenesnntnensscerecnanssosens

a accteecenieclitannsdniedansachdetecevesenscesonsczensesasccosnasentasseccstess

(i)

TABLE OF AUTHORITIES

CASES:

Bazemore v. Friday, 478 U.S. 385 (1986) ...........

—_> o—_ Corp., 708 F.2d $32 (10th Cir.

DDB Ba ccrceccccocccccccercenccccccescecesccsccnsscsstesseessessssscoes

Bienkowski v. American Airlines, Inc., 851 F.2d

1503 (Sth Cir. 1988) .........ccccrceccrsssessessseeseoees

Board of Trustees of Keene Siate College v.

Sweeney, 439 U.S. 24 (1978) .cccccccecceeeerensennes

Brooks v. Woodline Motor Freight, Inc., 852 F.2d

1061 (Sth Cir. 1988) .....cccccccccccrscsrssersesrsenseees

Bruno v. W.B. Saunders Co., 882 F.2d 760 (3d

Cit. 1DBD) .ccccccccsseccescerereceressrenccnesscsnssnsessccssccees

Chipollini v. —— Gifts, Inc., 814 F.2d 893 (3d

Cir.), cert. dismissed, 483 U.S. 1052 (1987) ....

City of Richmond vy. J.A. Croson Co., 109 S. Ct.

TOG (1 DBD) ..ccccccrrrcerercccrecccscssrecccccsescecsecsesensssces

Cowen v. Standard Brands, Inc., 572 F. Supp.

1576 (N.D. Alla. 1983) .....ccccccccecsseeesseeeseeennnnns

Dea v. Look, 810 F.2d 12 (ist Cir. 1987) ...........

~— vy. Anderson, 656 F.2d 528 (9th Cir.

1). ) eee ci.

Estes v. Dick Smith Ford, Inc., 856 F.2d 1097

(Bth Cir, 1988) ....cccccccecereceereeneeenanennenennenennenes

Fitzgerald v. Sirloin Stockade Inc., 624 F.2d 945

(LOH Cir, 1980) ........secccecsecreerseeneessnssennnnsennsenes

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) ..

Frazier v. Consolidated Rail Corp., 851 F.2d 1447

(D.C. Cir. 1988) ....cccccccccrccsccssesesceeseesensensensnnnnes

Freeman v. Package Mach. Co., 865 F.2d 1331

(1st Cit, 1988) ........cccssssscsessesseresessnsessnssesnsnnnes

Giandonato v. Sybron Corp., 804 F.2d 120 (10th

Cir. 1986) .......cccccccccersssscsereessesenesssenssssnnsssnnnnees

Goldberg v. B. Green & Co., 836 F.2d 845 (4th

Cir. 19BB) ......ccccccccccccsccscccccsccccscccncscsssnsssnsesencees

Harbison- Walker Refractories v. Brieck, 822 F.2d

$2 (3d Cir. 1987), cert. granted, 485 U.S. 958,

cert. dismissed as improvidently granted, 109

S, Cr. $06 (1 GBB) ....ccreccccrecererseccssccrececesesenscsscees

3,11,15,16,17,18

6

14,15

4,5

13

17,18

16

19

8,9

Hazelwood School Dist. v. United States, 433 U.S.

299 (1977) wececcecsscssssesssnennsrnssnsnnsnesnennsnnennensnsense

Hoffman-La Roche Inc. v. Sperling, 58 U.S.L.W.

4072 (U.S. Dec. 11, 1) enone

International Bhd. of Teamsters V. United States,

AB1 U.S. 324 (1977) cescscscsesesesnenenenensnnnnnnenanennes

Johnson v. Mayor and City C ouncil of Baltimore.

472 U.S. 353 (1985) ....seecesessenseennernnnenensenennanenss

Krodel v. Young, 748 F.2d 701 (D.C. Cir. 1984),

cert. denied, 474 U.S. 817 (19BS) ....ccceceeeeeseeses

La Montagne v. American Convenience Prods..

Inc., 780 F.2d 1405 (7th Cir. |

Lamphere v. Brown Univ., 685 F.2d 743 (ist Cir.

1GB2)oaceccccccscerecsccesesessenensnnsnesssesesnenenennnensnsnensens

Laugesen v. Anaconda Co., 510 F.2d 307 (éth

Cir, 1978) .ccccccrcscesececescesecssensnenssenenenenensnsnsenenens

Lorillard v. Pons, 434 U.S. $75 (1978) ......cceeeseee

Maxfeld v. Sinclair Int'l, 766 F.2d 788 (3d Cir.

19BS).cececccccscscscscssescsnscsssssnnsensensnnsnanensenennensnenses

Mayor of Philadelphia v. Educational Equality

League, 415 U.S. 605 (1974) .....cccceereerenenenseneees

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

(1973) ccarcecccscrcsscnsnsssresnneenscsvnessnennennesnnensnennssnses

McIntosh v. Weinberger, 810 F.2d 1411 (8th Cir.

1987), vacated on other grounds, 108 S. Ct.

DBG1 (19BB) ....cecssseresseneensnernsnennensnennensnnenennnnsnses

Menard v. First Sec. Serv. Corp., 848 F.2d 281

(1st Cir, 1988) .......ssssesssnesssnsessnesssneennnnennnsnennens

Menzel v. Western Auto Supply, 848 F.2d 327

(Ist Cir, 1988) ......sssessessssnennsnnsnsenennensee suieiannt

Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d

743 (7th Cir.), cert. denied, 464 U.S. 992

(1 GBB) areeccvsscrvennvecrvvennnvennnsennsennesenvecnnssennecnnessnss

Public Employees Retirement Sys. of Ohio v.

Betts, 109 S. Ct. 2854 (1989).........-0--eerrrrrererens

(iit)

Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th

OR, Ci ee aceensansntuniccetiddieciidistacseniaiaeanaiany

Simpson v. Midland-Ross Corp., 823 F. 2d 937

re Eo

Smith v. General Scanning, Inc., 876 F.2d 1315

CL eT en

Stanfield v. Answering Serv., Inc., 867 F.2d 1290

th ee ee

Steckl v. Motorola, Inc., 703 F.2d 392 (9th Cir.

Texas Dep't of Community Affairs v. Burdine,

aS Th See ceresiinttlinennenticibltiaae insti

Trans World Airlines, Inc., v. Thurston, 469 U.S.

Lil | RSs NY. eR

United Air Lines, Inc. v. McMann, 434 U.S. 192

SIO OES ceshcinschertinibieessiicialieenietesniaaliadt tala care

United States Postal Serv. Bd. of Governors v.

Aikens, 460 U.S. 711 (1983).........cccccccccccceseeeees

Wards Cove Packing Co. v. Atonio, 109 S. Ct.

7D RE eee

Watson v. Fort Worth Bank & Trust, 108 S. Ct.

BOE CED cuiitiinninnancinntitaindiiintiiiitidta tains

Western Air Lines, Inc. v. Criswell, 472 U.S. 400

Age Discrimination in Employment Act of 1967,

20 UBL, Fi Ge Ci ecsctiterernsttntintnaiiinns

(iv)

12

12

No. 89-857

IN THE

Supreme Court of the United States

OcTosBER TERM, 1989

W.B. SauNDERS COMPANY AND CBS EDUCATIONAL

AND PROFESSIONAL PUBLISHING,

a Division of CBS Inc..,

Petitioner,

Vv.

ADELINE M. BRUNO,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF AMICUS CURIAE, MERCHANTS AND

MANUFACTURERS ASSOCIATION, IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

ty

DESCRIPTION OF INTEREST OF AMICUS CURIAE

The Merchants and Manufacturers Association (the “As-

sociation”) adopts the statement made in the Motion for

Leave to File Brief, immediately preceding this brief, as the

description of the interest of amicus curiae.

CONSENT OF PARTIES

Respondent to this action refused consent to the filing

of this brief by the Association. The petitioners have con-

sented to the filing of this brief and such written consent will

be filed concurrently.

STATEMENT OF THE CASE

The Association adopts the Statement of the Case set

forth in the Petition for Writ of Certiorari as well as petition-

ers’ description of the Opinions in the Courts Below, Jurisdic-

tion of this Court, Statutory Provisions Involved, and the

Questions Presented for Review.

REASONS FOR GRANTING THE WRIT

I.

THIS COURT SHOULD GRANT REVIEW TO RESOLVE

THE CONFLICT AND CONFUSION AMONG THE CIR-

CUITS REGARDING A SUBSTANTIAL QUESTION

UNDER THE ADEA: WHETHER AN ADEA PLAINTIFF

CAN PREVAIL ON THE BASIS OF A BARE-BONES

PRIMA FACIE CASE COMBINED WITH SOME EVI-

DENCE ATTACKING THE EMPLOYER’S ARTICU-

LATED BUSINESS REASON.

This Court has issued only seven rulings on any aspect

of the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. §§ 623-634 (1982).' It has never inter-

' Hoffman-La Roche Inc. v. Sperling, 58 U.S.L.W. 4072 (U.S. Dec. 11,

1989); Public Employees Retirement Sys. of Ohio v. Betts, 109 S. Ct. 2854

(1989); Johnson v. Mayor and City Council of Baltimore, 472 U.S. 353

(1985); Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985); Trans

World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985); Lorillard v. Pons,

434 U.S. 575 (1978): United Air Lines, Inc. v. McMann, 434 U.S. 192

(1977).

3

preted the shifting evidentiary burdens of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), in the context of the

ADEA. This case presents the perfect opportunity to do so

while at the same time resolving a question that has left the

circuits in conflict: if an employer favors a person under 40

over an ADEA plaintiff who is 40 or older, wil! merely

questioning the business judgment of the employer always

support a finding of intentional discrimination in violation

of the ADEA?

In a decision at odds with the law of other circuit courts

of appeals and this Court’s case authority, the court below,

by a 2-1 majority with Judge Greenberg dissenting, upheld a

jury verdict based on the bare statistic of the ages of compara-

ble employees (46 and 36) competing for the same position

and on evidence unrelated to the ages of the candidates which

the court below believed was sufficient to question Saunders’

nondiscriminatory explanation for selecting a younger appli-

cant to fill the position instead of respondent. Bruno v. W.B.

Saunders Co., 882 F.2d 760, 766 (3d Cir. 1989). The court

below held that where the employer’s legitimate, nondiscrimi-

natory reaso.. for hiring a person under 40 instead of a person

who is 40 or older may not be “the true reason... , the court

may infer that the actual reason was impermissible.” /d.

The decision of the court below is in conflict with other

federal circuits and exceeds any reasonable interpretation of

the ADEA by misapplying this Court’s decisions in McDon-

nell Douglas Corp. v. Green, 411 U.S. 792 (1973), Texas Dep't

of Community Affairs v. Burdine, 450 U.S. 248 (1981), and

United States Postal Serv. Bd. of Governors v. Aikens, 460

U.S. 711 (1983). Taken to its logical conclusion, the court’s

analysis sanctions the judicial second-guessing of an employ-

er’s subjective business iudgment and permits a jury to find

intentional age discrimination solely on the basis that the

employer’s judgment may be mistaken and not, as required

by this Court’s authority in employment discrimination cases,

including Aikens, that age was a determining factor in the

empioyment decision. If left standing, the Third Circuit’s

decision is a dangerous precedent for employers since it

transforms the ADEA into a vehicle which attacks the employ-

4

er’s business judgment rather than focusing the inquiry on

whether age discrimination affected the employer’s judgment.

A. The Decision Below Conflicts With Decisions Of

Other Circuit Courts Of Appeals.

The circuit courts of appeals have reached directly con-

flicting answers to the question of whether an ADEA plaintiff

can prevail on the basis of a bare-bones prima facie case

combined with some evidence attacking the employer’s busi-

ness judgment. The First, Fifth, and Ninth Circuits reject

the Third Circuit’s adaptation of McDonnell Douglas to

ADEA cases, while the Seventh, Eighth, Eleventh, and D.C.

Circuits agree with the Third Circuit’s reasoning.

The First Circuit, in Menard v. First Sec. Serv. Corp.,

848 F.2d 281 (1st Cir. 1988), concluded that even if the

plaintiff had demonstrated a prima facie case, the evidence

offered by him merely disputed the correctness of the employ-

er’s business judgment and therefore did not show the reason

for his discharge to be a pretext for age discrimination. /d.

at 287. The court commented that once the employer satisfied

its burden of producing a nondiscriminatory explanation, the

effects of the prima facie case are dispelled and the “plaintiff

has the burden of proving by a preponderance of the evidence

that the-defendant’s articulated reason was pretextual, and

the real reason for discharge was age discrimination.” Id.

(emphasis added); see also Dea v. Look, 810 F.2d 12, 15 (lst

Cir. 1987) (“[plaintiff] cannot meet his burden of proving

‘pretext’ simply by refuting or questioning the defendant’s

articulated reason”). Similarly, the Fifth Circuit, in Bienkow-

ski v. American Airlines, Inc., 851 F.2d 1503 (Sth Cir. 1988),

expressly rejected the Third Circuit’s adaptation of McDon-

nell Douglas to ADEA cases and criticized the approach since

it allowed plaintiff to prevail without offering any evidence

that age motivated the employer’s decision. Jd. at 1508 &

n.6.

The view expressed by the Ninth Circuit in Douglas v.

Anderson, 656 F.2d 528 (9th Cir. 1981), is also at odds with

that of the Third Circuit. In that case, the employer showed

that the plaintiff was terminated because of the plaintiff's

5

financial mismanagement of the employer's bookstore. The

plaintiff argued that the real reason for his discharge was his

criticism of certain financial transactions conducted by the

employer which the plaintiff discovered. The court concluded

that this evidence does not show that the employer’s proffered

reason is a pretext for discrimination, “but merely presents

an alternative reason not based on age.” /d. at 534. As the

Ninth Circuit explained, “[t]he reason for a business decision

need not meet the unqualified approval of the judge or jury,

so long as it is not based on age.” /d.

The Seventh, Eighth, Eleventh, and D.C. Circuits agree

with the Third Circuit, however, and equate the discrediting

of the employer’s business judgment with the ultimate issue

that age was a determining factor. The Seventh Circuit, in

La Montagne v. American Convenience Prods., Inc., 750 F.2d

1405 (7th Cir. 1984), has declared that while age must be a

determining factor, plaintiff could prevail using the McDon-

nell Douglas framework “without presenting any evidence

that age was a determining factor in the employer’s motiva-

tion.” Jd. at 1409-10. The court concluded that the indirect

method of proof permits a finding of age discrimination based

on fhe elimination of all nondiscriminatory motivations as

the reason for the employment decision. /d. at 1410. The

Eighth Circuit, in Brooks v. Woodline Motor Freight, Inc.,

652 F.2d 1061 (8th Cir. 1988), upheld a jury verdict against

an employer because the plaintiff established a prima facie

case and offered evidence discrediting his employer's explana-

tion. Jd. at 1064. Similarly, the Eleventh Circuit, in Stanfield

v. Answering Serv., Inc., 867 F.2d 1290 (11th Cir. 1989),

upheld a jury verdict based on a prima facie case and the

lack of evidence supporting the employer’s legitimate business

reason. /d. at 1294.

The D.C. Circuit has also argued that an ADEA plaintiff,

in certain cases, can prevail solely on the strength of his or

her prima facie case coupled with a rebuttal of the employer's

explanation. Krodel v. Young, 748 F.2d 701, 707-08 (D.C.

Cir. 1984), cert. denied, 474 U.S. 817 (1985). However, the

court acknowledged that it was not squarely presented with

the issue, since the plaintiff offered additional evidence by

6

which discrimination could be inferred, including a finding

that an administrator expressed a preference for younger

workers. /d.

The circuits also directly disagree as to whether an ADEA

plaintiff can avoid summary judgment by asserting that, at

trial, he will demonstrate that the employer’s stated explana-

tion for its conduct was untrue. The Third Circuit takes the

position that an employer’s summary judgment motion is to

be denied if the plaintiff presents evidence sufficient to show

that the employer’s proffered explanation may be untrue. It

assumes that such a showing resuscitates the prima facie

case’s presumption of discrimination. Chipollini v. Spencer

Gifts, Inc., 814 F.2d 893, 898 (3d Cir.), cert. dismissed, 483

U.S. 1052 (1987). The Ninth Circuit, however, requires that

a plaintiff's proof of pretext demonstrates that his age and not

the reason offered by the employer motivated the challenged

decision. The Ninth Circuit assumes that the prima facie

case cannot be revived once the employer rebuts it. Steck v.

Motorola, Inc., 703 F.2d 392, 392-93 (9th Cir. 1983); see also

Menzel v. Western Auto Supply, 848 F.2d 327, 330 (1st Cir.

1988) (merely casting doubt on the employer’s articulated

reasons for discharge is insufficient to overcome summary

judgment); Goldberg v. B. Green & Co., 836 F.2d 845, 849

(4th Cir. 1988) (“[piaintiff] cannot avoid summary judgment

in this case simply by refuting [the employer’s] non-age-

related reasons for firing him”).

In short, the circuit courts have reached directly conflict-

ing answers to the question of whether an ADEA plaintiff can

prevail merely by questioning the business judgment of the

employer when the employer favors a person under 40 over

the plaintiff who is 40 or older. This Court should take

this opportunity to resolve the confusion in the circuits by

granting certiorari.

B. The Decision Below Conflicts With Decisions Of This

Court.

The decision of the court below also misapplies this

Court’s decisions in McDonnell Douglas, Burdine and Aikens.

The court below permits the trial of the employer’s business

>

judgment rather than adhering to the central inquiry in an

employment discrimination case: whether the employer's

decision was motivated by age.

As this Court has repeatedly cautioned, the shifting

burdens of the McDonnell Douglas-Burdine formulation are

designed to aid the courts and the litigants in the orderly

consideration of relevant evidence. Burdine, 450 U.S. at 255

n.8. In Aikens, this Court warned that district courts should

not lose sight of the ultimate issue in a discrimination case:

whether the plaintiff sustained his burden of proving that the

employer intentionally discriminated against him. 460 U.S.

at 715; see also Watson v. Fort Worth Bank & Trust, 108

S. Ct. 2777, 2784 (1988). Thus, while Burdine and Aikens

make clear that a plaintiff can rely upon indirect evidence

that the employer’s reason is “unworthy of credence”, such

indirect evidence must be sufficiently probative of the ulti-

mate issue in the case: that discriminatory conduct is a

determining factor in an employer’s business decision. 460

U.S. at 715; 450 U.S. at 253.

In the court below, respondent sought to prove the

ultimate issue of the case merely by attacking the observations

and explanations of petitioner Saunders’ decisionmaker who

had selected another candidate for the Manager’s position of

the Clinics Fulfillment Department, and not, as compelled

by Aikens, by showing that there was a causal connection

between respondent’s age and the alleged discriminatory act.

Respondent demonstrated only that (i) she was one of nine

Saunders’ employees applying for the job, (ii) she was 46

years old while the ages of the other applicants were 24, 25,

26, 36, 40, 41, 48, and 49, (iii) Saunders selected Beverly

Dietrich (age 36) for the position, (iv) the Saunders’ decision-

maker may have been mistaken when he perceived respon-

dent’s attitude for the new job to be half-hearted, and

(v) Dietrich, who served as acting Manager temporarily prior

to the selection, was criticized by two fellow employees for

her performance. By simply attacking the decisionmaker’s

subjective assessment and explanations, respondent failed to

forge the critical link between her not being chosen for the

8

Manager's position of the Clinics Fulfillment Department

and her age.

By sanctioning this interpretation of McDonnell Douglas

in ADEA cases, the court below contradicts this Court's

admonition in Aikens always to be mindful that the central

question is whether plaintiff has presented sufficient evidence

to permit a reasonable fact-finder to conclude that age was a

determining factor in the employer's decision. See Aikens,

460 U.S. at 715. In contrast, other circuits have allowed a

jury to infer that the employer’s articulated reasons were a

pretext for age discrimination and, therefore, that age was

a determining factor in a business decision from indirect

evidence that management personnel made repeated negative

comments directly related to age, Rollins v. TechSouth, Inc.,

833 F.2d 1525, 1529-30 (11th Cir. 1987), or that reliabie

and probative statistics demonstrated a pattern of adverse

treatment of older workers, Freeman v. Package Mach. Co.,

865 F.2d 1331, 1342 (1st Cir. 1988). The court below failed

to rely on any additional evidence demonstrating a causal

connection between the employment decision and respon-

dent’s age.

Thus, the court below ignored this Court’s words of

caution by permitting a jury to second-guess the employer's

explanation without a showing by an employee that the

employer's explanation was a pretext for age discrimination.

C. The Decision Below Presents Important Issues Of

Federal Law.

Last term, this Court granted certiorari to the Third

Circuit in Harbison-Walker Refractories v. Brieck, 822 F.2d

52 (3d Cir. 1986), cert. granted, 485 U.S. 958, cert. dismissed

as improvidently granted, 109 S. Ct. 546 (1988) (White, J.,

dissenting), to explore the applicability of McDonnell Douglas

to cases under the ADEA, and specifically to explore the

nature and significance of the first stage (the prima facie case)

and the third stage (pretext) of that proof scheme. The Court

considered the following question: “Whether a plaintiff

who alleges intentional discrimination can survive summary

judgment by questioning his employer's business judgment,

9

without presenting any evidence, direct or indirect, that his

employer's judgment was in fact motivated by an intent to

discriminate?” Brief for Petitioner Harbison-Walker at (i).

This Court dismissed the petition as improvidently granted

after oral argument without making a ruling. 109 S. Ct.

546. Consequently, the debate has continued without any

definitive ruling.

This case raises the identical issue that this Court wished

to consider in Harbison-Walker. Moreover, unlike Harbison-

Walker, this case comes to the Court with a complete factual

record following a jury trial. Therefore, by granting the

Petition, this Court will have an opportunity to address on a

complete record the question of how, if at all, McDonnell

Douglas should be applied to the ADEA, a question of vital

importance as to which the circuits continue to be in hopeless

conflict and confusion.

The question is also of critical importance to the adminis-

tration of the ADEA and its impact on employers. Reduced

to its core, the decision of the court below permits an ADEA

plaintiff to prevail at trial without producing any direct or

indirect evidence linking a challenged employment decision

to age discrimination. The court below applied a standard

that reads age out of the well-established analytical framework

for discrimination cases by allowing an ADEA plaintiff to

prevail upon showing that the employer's explanation may

have been mistaken or untrue.’ For respondent to prove that

Saunders’ explanation is a pretext for age discrimination is

one thing. To show that Saunders’ decisionmaker is mistaken

or his reasoning faulty is something entirely different. It does

not follow that the real reason for an employee's non-selection

for a position is age discrimination simply because the jury

disagrees with and therefore discredits the employer's articu-

lated reason. The employer’s decisionmaker may have made

a mistake in selecting the right person to fill a position; the

? In effect, the decision of the court below requires that an employer

prove the absence of a discriminatory motive. This Court has rejected

any such interpretation of the McDonnell! Douglas analytical framework.

Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25

(1978).

10

decisionmaker’s assessment may have been incorrect because

the information provided to him was incomplete; or the

employer may have had another nondiscriminatory explana-

tion that it did not wish to tell the employee. This is a far

cry from proof of a pretext for age discrimination.

The decision of the court below is especially problematic

in ADEA cases since age, unlike race, sex, and national

origin, is not an immutable characteristic. Given the natural

progression of age, a discharged or non-selected employee

will more often than not be replaced by a younger employee.

See Laugesen vy. Anaconda Co., 510 F.2d 307, 312-13 n.4 (6th

Cir. 1975). Therefore, in an ADEA action, a prima facie case

will be rather simple to demonstrate under the Third Circuit's

analysis, assuming a plaintiff is otherwise qualified to hold a

position.’ The decision of the court below then permits an

ADEA plaintiff to prevail based on this simple, bare-bones

prima facie case and evidence that the employer may have

been mistaken in its business judgment. This cannot be a

reasonable interpretation of the ADEA. Indeed, Congress

never intended the ADEA to promote truthful explanations

or perfect business decisions. The ADEA only requires the

intervention of the courts where age is a determining factor

in an employment decision.

Therefore, this substantial question of federal law under

the ADEA must be resolved by this Court.

*Furthermore, given that age is mutable, the mere selection of a

younger employee is not sufficient evidence that age played a role in the

employment decision. See, e.g., Maxfield v. Sinclair Int'l, 166 F.2d 788

(3d Cir. 1985) (replacement by someone younger does not by itself give

rise to an inference of age discrimination). The ADEA does not lend itself

to such a brightline rule and in this respect differs from a race or sex

discrimination case in which replacement by an employee outside the

protected category may very well be a convenient proof guideline. Conse-

quently, the nature and significance of a prima facie case under the ADEA

remains unsettled.

~ eae

1]

Il.

THIS COURT SHOULD GRANT REVIEW TO RESOLVE

THE CONFLICT AND CONFUSION AMONG THE

CIRCUITS REGARDING THE USE OF STATISTICAL

EVIDENCE IN AN ADEA DISPARATE TREATMENT

CASE.

The court below upheld the trial court’s decision to

admit into evidence respondent’s plainly irrelevant statistical

analyses of various employment decisions. 882 F.2d at 766-

67. Specifically, the trial court allowed the jury to consider

respondent’s anecdotal statistical comparisons of the ages of

(i) Saunders’ new hires and all its salaried employees, (ii)

Saunders’ new hires and all its employees, (iii) Saunders’

terminated employees and all its employees, (iv) Saunders’

transferred employees and its terminated employees, (v)

Saunders’ promoted employees and all its employees, and

(vi) Saunders’ laid-off employees and its retained employees.

These raw statistical comparisons indisputably failed to take

into account the minimum objective qualifications for the

positions studied. /d. at 767. Indeed, the majority opinion

of the court concedes that the respondent’s studies “are

significantly less probative than they would be if they took

account of the minimum qualifications of the jobs into which

promotion or transfer occurred.” /d. Despite this glaring

defect, the court below concluded that respondent’s statistics

were “ ‘relevant’ ”, even though such comparisons would be

given no weight in a class action disparate impact or treatment

case. Jd. Following on the heals of this Court's decision in

Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 (1989),

the decision of the court below conflicts with other circuit

courts of appeals and is particularly troubling since it allows

a jury in an ADEA case, rather than a judge, to consider and

evaluate the relevance of meaningless statistical comparisons.

A. The Decision Below Conflicts With Decisions Of

Other Circuit Courts Of Appeals.

The Sixth and Seventh Circuits specifically disagree with

the Third Circuit’s holding that the statistical studies in

question should be admitted into evidence in ADEA disparate

12

treatment cases. In Simpson v. Midland-Ross Corp., 823 F.2d

937 (6th Cir. 1987), plaintiff offered similar statistical studies.

The court observed that not only had plaintiff failed to

provide the “relative qualifications of those hired and the

positions to which they were assigned,” but also “neglect[ed]

vital information regarding the pool of applicants and

whether, for example, qualified older employees were avail-

able or applied for those jobs.” Jd. at 943. The court

commented:

Unless the statistics, standing alone or in compari-

son, are sufficient to lead the mind naturally to the

conclusion sought, they have no probative value;

they do not move the proof one way or another. . . .

... The facts cited by [the plaintiff] do not tell us

anything about age other than that some people

were of various ages, facts that in themselves are

meaningless. . . . Statistics such as those offered

may be interesting perhaps, but are fundamentally

irrelevant to an age discrimination claim.

ld. at 944,

Similarly, the Seventh Circuit, in Smith v. General Scan-

ning, Inc., 876 F.2d 1315 (7th Cir. 1989), held that plaintiff

failed to produce sufficient evidence—including sufficient

statistical studies—to suggest that defendant's proffered rea-

sons were a pretext for age discrimination in order to survive

summary judgment. /d. at 1331-32. Plaintiff offered evidence

tending to show that defendant hired 106 new employees

(only 9 of whom were over 40). The court concluded that

plaintiff's bare statistical showing was meaningless. “[I]n

the absence of evidence regarding the qualified potential

applicants from the relevant labor market, we find [plaintiff's]

statistics fail in any way to show discrimination.” /d. at 1321.

Contrary to the decisions of the Sixth and Seventh

Circuits, the D.C. Circuit Court of Appeals has agreed with

the Third Circuit that statistical studies in individual dispa-

rate treatment cases do not have to measure up to the

standards for admissibility of statistics in class action dispa-

rate impact or treatment cases. See Krodel v. Young, 748

13

F.2d 701 (D.C. Cir. 1984), cert. denied, 474 U.S. 817 (1985).

The D.C. Circuit noted that although the statistical compari-

sons in an ADEA failure to promote case were “ ‘broad and

tentative,’ . .. ‘the simple percentage comparisons are not so

simplistic as to lack meaning.”” /d. at 710 (quoting Krode/

v. Young, Civ. No. 80-3183, slip op. at 39 n.3 (Feb. 9, 1983)).

The court concluded that “a trial judge should be allowed to

consider a disparate treatment plaintiff's statistics and to

judge for herself their meaningfulness to the question of

discriminatory intent.” 748 F.2d at 710.*

This Court has never directly addressed the precision

with which an individual disparate treatment plaintiff must

present statistical evidence in an ADEA case. This case

presents the opportunity to resolve confusion in the circuit

courts and provide the courts with much needed guidance on

the use of statistical evidence in the increasing numbers of

ADEA cases.

B. The Decision Below Conflicts With Decisions Of This

Court.

As this Court has recognized, statistical evidence plays

an important role in employment discrimination litigation.

International Bhd. of Teamsters v. United States, 431 U.S.

324, 339 (1977). While endorsing the use of statistical proof

and noting that statistical analyses will continue to serve an

important role in uncovering clandestine and covert discrimi-

nation, id., this Court has cautioned that

[s]tatistics are not irrefutable; they come in infinite

variety and, like any other kind of evidence, they

“Other federal courts have also admitted seemingly questionable

statistical evidence in Title VII and ADEA cases. See Estes v. Dick Smuth

Ford, Inc., 886 F.2d 1097, 1104 (&th Cir. 1988) (while the parties disputed

the significance of the labor market and hiring data, the court observed

that “(t]he jury should have been allowed to consider [plaintiff's] workforce

evidence and sort out the parties’ conflicting explanations of its signifi-

cance”); Beck v. Quiktrip Corp., 708 F.2d $32, 535 (10th Cir. 1983)

(“statistical evidence which alone might be insufficient to establish a prima

facie case of discrimination or to discredit an employer's proffered reason

for its action is not necessarily irrelevant”) (citing Fitzgerald v» Sirloin

Stockade, Inc., 624 F.2d 945, 954-55 (10th Cir. 1980)).

may be rebutted. In short, their usefulness depends

on all of the surrounding facts and circumstances.

ld. at 340.

Thus, this Court’s decisions have stressed the cautious

approach lower federal courts should take to statistical analy-

ses as proof of discrimination. In Mayor of Philadelphia v.

Educational Equality League, 415 U.S. 605 (1974), this Court

described as “meaningless” racial composition comparisons

of a selection process for school board members which incor-

rectly assumed that “all citizens are fungible” for purposes of

determining the pool of candidates for the positions at issue.

id. at 620-21. The Court noted that statistics which fail to

control for special qualifications for the positions studied are

“too fragmentary and speculative to support a serious charge

[of discrimination] in a judicial proceeding.” Jd. at 621.

In Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115

(1989), the Court noted that “‘the proper comparison’ ”

in statistical analyses of employment discrimination “ ‘[is]

between the racial composition of the qualified . . . population

in the relevant labor market.’ ” Id. at 2121 (quoting Hazelwood

School Dist. v. United States, 433 U.S. 299, 308 (1977))

(emphasis added). Because plaintiff's statistics failed to

account for the minimum objective qualifications for the

at-issue jobs, this Court concluded that the s adies were

“nonsensical.” 109 S. Ct. at 2122.

Also in 1989, this Court, in City of Richmond vy. J.A.

Croson Co., 109 S. Ct. 706 (1989), cautioned:

In the employment context, we have recognized

that for certain entry level positions or positions

requiring minimal training, statistical comparisons

of the racial composition of an employer's workforce

to the racial composition of the relevant population

may be probative of a pattern of discrimination. . .

But where special qualifications are necessary, the

relevant statistical pool for purposes of demonstra-

ting discriminatory exclusion must be the number

of minoritics qualified to undertake the particular

task.

15

Id. at 725 (citations omitted).

Use of statistics in both Title VI] and ADEA cases

requires, at the outset, a determination of who should be

included in the relevant population studied. If an employ-

ment opportunity requires special skills, education, or experi-

ence, the relevant population must be restricted to include

only those members of the community who possess these

qualifications. See Hazelwood, 433 U.S. at 308 n.13. Ifthe

issue Concerns promotions, the relevant population is internal

to the employer's work force and consists of all persons with

the necessary qualifications to perform the at-issue job. See

McIntosh v. Weinberger, 810 F.2d 1411, 1428 (8th Cir. 1987),

vacated on other grounds, 108 S. Ct. 2861 (1988).

The court below did not approach statistical evidence in

an ADEA disparate treatment case with the same cautionary

approach demanded by this Court's decisions. The court

below expressly rejected the rule that statistical evidence

account for minimum objective qualifications, saying such a

rule would not be “broadly useful.” 882 F.2d at 767. The

Third Circuit accepted without question the statistical analy-

ses of respondent's expert witness and noted that in individual

disparate treatment cases, statistical evidence need not be so

finely tuned. Jd. While acknowledging that the studies were

“significantly less probative” than they would have been had

they taken into account the minimum objective qualifications

of the at-issue jobs, the court concluded that such flawed

statistical studies were nevertheless “ ‘relevant.’ ” /d.°

The decision of the court below is troubling because it

involved a disparate treatment case where the role of statistics

should necessarily be a limited one, as the ultimate issue in

such cases is whether the particular ADEA plaintiff, and not

an entire class, was the victim of an illegally motivated

*While this Court has observed that the failure to include certain

variables in a multiple regression analysis may affect its probativeness, not

its admissibility, Bazemore v. Friday, 478 U.S. 385, 400 (1986), it has also

noted “[t}here may, of course, be some regressions so incomplete as to be

inadmissible as irrelevant...” /d. at 400 n.10. The respondent's incom-

plete statistical studies must also be so categorized.

16

decision.® Furthermore, courts must be even more critical

of statistical analyses in ADEA cases than in Title VII cases

because of the identity of the factfinder. In Title VII cases, the

judge, who is also the factfinder, can simply reject meaningless

Statistical studies as not being probative of the issue in the

case. See, e.g., Frazier v. Consolidated Rail Corp., 851 F.2d

1447, 1454 (D.C. Cir. 1988) (plaintiffs’ statistical evidence

did not permit a “meaningful comparison in support of the

plaintiffs’ prima facie case”). In an ADEA case, by contrast,

the jury is given the critical task of deciding the dispositive

issue of whether age is a determining factor in an employer’s

decision. It should not also have the complicated function

of a trial judge of evaluating the relevance of otherwise

meaningless statistical studies. The court below asked the

jury to make both factual findings and legal determinations

of relevance by determining whether respondent’s statistical

studies were devoid of probative value. As the dissenting

judge noted in the court below, “the district court wrongfully

relinquished its function as the judge of the law, which

includes the obligation to pass on the admissibility of [statisti-

cal] evidence, to the jury.” 882 F.2d at 775.

In short, the Third Circuit has not only issued a “circuit

splitting” decision, but its sanctioning of meaningless statisti-

cal evidence seriously ignores this Court’s authority. This

Court should therefore grant the Petition to clarify the Third

Circuit’s misconception that an ADEA individual disparate

treatment case should be treated differently from a class

action disparate impact or treatment case.

°In Title VII disparate treatment cases, the federal courts have followed

such a cautionary approach to statistical evidence. See, e.g., Lamphere v.

Brown Univ., 685 F.2d 743, 759-50 (1st Cir. 1982) (per curiam) (in a sex

discrimination case, numerical disparity of men and women in a particular

job category was not probative since plaintiff's studies failed to provide

statistics as to the number of qualified women in the relevant labor pool).

Ill.

THIS COURT SHOULD GRANT REVIEW BECAUSE

THE COURT BELOW CIRCUMVENTED THIS

COURT’S DECISION IN FORD MOTOR CO. V. EEOC

WHEN IT HELD THAT A WRITTEN UNCONDITIONAL

OFFER OF A SUPERIOR OR A SUBSTANTIALLY

EQUIVALENT JOB DID NOT TOLL THE ACCRUAL OF

BACK PAY LIABILITY.

In Ford Motor Co. v. EEOC, 458 U.S. 219 (1982), this

Court declared that the preferred means of encouraging

the end of employment discrimination in the workplace

is through “ ‘voluntary compliance.’” Jd. at 228 (citation

omitted). To accomplish the objective of bringing an end

to employment discrimination, this Court adopted rules to

encourage employers “promptly to make curative, uncondi-

tional job offers to. . . claimants, thereby bringing defendants

into ‘voluntary compliance’ and ending discrimination far

more quickly than could litigation proceeding at its often

ponderous pace.” /d. The Court held therefore that “absent

special circumstances,” an employee forfeits the right to back

pay if he rejects an unconditional job offer of substantially

equivalent employment. /d. at 241.

Several months after the selection of Ms. Dietrich for

the Manager’s position, respondent was offered the position

of Manager of Inventory Planning and Control at Saunders’

Bellmawr, New Jersey facility. 882 F.2d at 763. Respondent

testified that in a conversation with her immediate superior

she had been told that it was expected she would drop her

EEOC claim. /d. at 770. After rejecting the job, respondent

received a written memorandum, at a time when she still

could have taken the job, saying “[t]he Bellmawr job offer is

not, and never was, conditional on dropping your claim.” /d.

Although the written offer expressly repudiated any notion

that respondent’s acceptance of the job was conditioned upon

the dismissal of her claim, respondent decided not to accept

the unconditional offer of a substantially similar position. /d.

The court below held that respondent’s subjective fear

of retaliation, supported only by an earlier seemingly condi-

18

tional offer of the same job, is sufficient to justify her rejection

of the unconditional offer. Jd. at 770-71. The court below

dismissed the evidence of the written memorandum saying

that the written confirming memorandum “merely pre-

sent{ed] a question of credibility.” Jd. at 770. In reaching

this conclusion, the court below misapplied Ford Motor and

created a new standard never before adopted by this Court

or any of the other circuit courts of appeals which have

applied Ford Motor.

This Court and lower federal courts have held that a

plaintiff might reject an unconditional job offer in “excep-

tional circumstances.” In Ford Motor, this Court gave the

example of a plaintiff having to relocate a great distance

as an “exceptional circumstance” meriting rejection of an

unconditional job offer. Jd. at 238 n.27. Other federal

courts have viewed the “exceptional circumstances” standard

narrowly and have generally applied it to situations where a

plaintiff is placed in a position of evaluating the transactional

costs against the benefit of the offer. See, e.g., Orzel v. City

of Wauwatosa Fire Dep't, 697 F.2d 743, 757 (7th Cir.),

cert. denied, 464 U.S. 922 (1983) (claimant’s refusal of offer

conditioned on taking and passing a physical examination

arranged by employer did not toll back pay period).

Before the decision of the court below, no court, to the

Association’s knowledge, has permitted a plaintiff to reject

an unconditional offer of a substantially equivalent job on

the sole basis of having received a prior conditional offer

requesting the plaintiff drop her claim. Indeed, such a

result cannot be squared with this Court’s admonition that

employers take prompt corrective action and that victims

of discrimination minimize their damages by accepting an

unconditional job offer of a substantially equivalent job.

Indeed, assuming any condition is initially imposed on

the job offer, employers must be allowed to remove such a

condition if the principles of Ford Motor are to be given any

effect. Surely, if the original job offer is vague, indefinite, or

somehow qualified, an employer must be allowed to take

corrective action to make the job offer definitive and uncondi-

19

tional. The same reasoning must hold true where the offer

is at first conditioned on the respondent dropping her claim.

When faced with an ADEA or Title VII action, or a

threat of such litigation, employers may first try to resolve

the dispute by making a job offer which is conditioned upon

the settlement of the dispute. If such an attempt is initially

unsuccessful, an employer should not be denied the opportu-

nity to take corrective action under Ford Motor by making an

unconditional job offer. However, under the Third Circuit’s

reasoning, an employer may very well be jeopardizing its

right to take corrective action under Ford Motor if it first

proceeds to try to settle the dispute. This Court never

intended such a result when it announced its decision in Ford

Motor.

Moreover, the policy underlying Ford Motor must be

against permitting the rejection of a substantially equivalent

job based only upon a subjective fear of retaliation. Indeed,

numerous cases make it clear that “exceptional circum-

stances” are not present because of hurt feelings, suspicions

that the job offer was not bona fide, or a desire not to

work for the supervisor who discharged the employee. F£.z.,

Giandonato v. Sybron Corp., 804 F.2d 120, 124 (10th Cir.

1986) (plaintiff “did not comply with Ford Motor Co.'s man-

date of minimizing his damages by refusing his employer's

offer of reinstatement [because of his] desire not to work

under [his former supervisor]”); Cowen v. Standard Brands,

Inc., 572 F. Supp. 1576, 1581 (N.D. Ala. 1983) (plaintiff

cannot turn down job because “feelings were hurt and... he

did not feel the offer was bona fide”).

If, as Ford Motor holds, an employer can toll back pay

liability by unconditionally offering a substantially equivalent

job, that employer must, as a matter of law, be permitted to

repudiate in writing an alleged condition attached to an

earlier offer. Such a result would promote corrective action

by employers, the goals of the ADEA, and the goals of Ford

Motor.

20 CONCLUSION

For the foregoing reasons, the Association respectfully

submits that the decision below conflicts with the decisions

of other circuit courts and this Court’s authority, that this

case presents substantial federal questions for this Court’s

review, and that, accordingly, this Court should grant the

Petition for Writ of Certiorari.

DATED: December 28, 1989

Respectfully submitted,

CHARLES G. BAKALY, JR.

(Counsel of Record)

JEFFREY I. KOHN

O’MELVENY & MYERS

Citicorp Center

153 East 53rd Street

New York, New York 10022-4611

(212) 326-2000

Attorneys for Amicus Curiae,

Merchants and Manufacturers

Association

PROOF OF SERVICE BY MAIL

STATE OF VIRGINIA 1 a

COUNTY OF ARLINGTON 7

] am a citizen of the United States and a resident of the

City of Arlington, Virginia, County of Arlington; | am over

the age of 18 years and not a party to the within action;

my business address is 1101 Wilson Boulevard, Arlington,

Virginia 22209.

On December 28, 1989, I served the within Motion for

Leave to File Brief and Brief of Amicus Curiae in re: “W.B.

Saunders Company and CBS Educational and Professional

Publishing, a Division of CBS Inc. v. Adeline M. Bruno” in

the United States Supreme Court, October Term 1989, No.

89-857, on all parties interested in said action, by placing

three true copies thereof enclosed in a sealed envelope, with

postage thereon fully prepaid, in the United States Post Office

mail box at Arlington, Virginia addressed as follows:

Edgar Yergeau

CBS INC.

51 West 52nd Street

New York, New York 10019

John J. McAleese, Jr.

John H. Widman

McAleese, McGoldrick & Susanin, P.C.

455 South Gulph Road

Suite 240

King of Prussia, PA 19406

Geoffrey B. Gompers

215 South Broad Street

Suite 900

Philadelphia, PA 19107

All parties required to be served have been served.

I certify under penalty of perjury that the foregoing is

true and correct.

Executed on December 28, 1989, at Arlington, Virginia.