Opposition Brief — Conroy v. Abraham Chevrolet-Tampa, Inc.

i ~ Supreme Ce ut US

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ar FILED

No. 04-0505 NOV 1 9 2004

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

*

GLENN J. CONROY,

Petitioner,

V.

ABRAHAM CHEVROLET-TAMPA, INC.,

d/b/a AUTOWAY CHEVROLET,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

RESPONDENT?’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

¢

JOHN R. HAMILTON

Counsel of Record

FOLEY & LARDNER LLP

111 North Orange Avenue

Suite 1800

Orlando, Florida 32801

Telephone: (407) 423-7656

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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4

QUESTION PRESENTED FOR REVIEW

In an action for unlawful age discrimination, whether

it constitutes automatic reversible error for a trial court to

refuse to give a plaintiff’s requested “pretext” instruction

to the jury, when the jury instructions actually given

accurately and adequately explained the law, the plain-

tiff’s counsel is allowed to argue pretext to the jury, and

there is no reasonable chance that the jury was misled in

its deliberations.

il

INTERESTED PARTIES AND

CORPORATE DISCLOSURE STATEMENT

Parties to Lawsuit

Abraham Chevrolet-Tampa, Inc.

Glenn J. Conroy

Other Interested Persons and Corporate Disclosure

Statement

Auto Holding Corp.

AutoNation Enterprises, Inc.

AutoNation, Inc.

Craig L. Berman, Esq.

Berman Law Firm, P.A.

The Carlyle Appellate Law Firm

Shannon McLin Carlyle, Esq.

Colonial Imports, Inc.

Colonial Imports, Ltd.

John G. Crabtree, Esq.

Lorraine C. Davis, Esq.

Equal Employment Opportunity Commission

First Team Automotive Corp.

First Team Management, Inc.

ili

INTERESTED PARTIES AND CORPORATE

DISCLOSURE STATEMENT - Continued

The Florida Appellate Alliance, PL.C.

Foley & Lardner

Foley & Lardner LLP

John R. Hamilton, Esq.

John G. Crabtree, P.A.

Bradley R. Johnson, Esq.

James L. Lee

Susan R. Oxford, Esq.

The Hon. Joseph H. Rodriguez

lv

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW.................... i

INTERESTED PARTIES AND CORPORATE DIS-

CEA FIAT SP RPU RMIT si necnnsencncssccnscdsscacasecnccnccasases ii

ee I nasa setersitsannasechainilnttanniontvannnesian iv

Te Ce FAR Fe RE I i tecnctictnnsanssccsaccensnssesssntvamsnen Vv

Ts ctehidnntlatinataiasidsanicisschanpnanesencnasaianSadasti

STATEMENT OF THE CASL...............cccsccscsesssseseseesees 2

A. Conroy’s Employment and Termination ......... 2

B. The Charge Conference, Verdict, and Judg-

I sensu canienntonavasececascansinsssnibsnenadvesianeasacaconunas 8

C. The Decision of the Court of Appeals.............. 12

ARGUMENTS FOR DENYING THE PETITION ........ 13

A. THE CONFLICT IN THE COURTS OF AP-

PEALS REGARDING THE NECESSITY OF A

PRETEXT INSTRUCTION IS NOT YET

FULLY DEVELOPED OR IN NEED OF

RESOLUTION BY THIS COURT............0000... 13

B. THIS CASE PRESENTS AN INAPPROPRI-

ATE VEHICLE FOR RESOLVING THE CON-

FLICT IN THE COURTS OF APPEALS

CONCERNING THE NECESSITY OF A PRE-

EE BO BI assassins tie cinstasnntninniasnisomens 16

A EID snttcsiesvedasasmndsntnassishmnnteiinsnmnshiahssanneisadmasann 21

TABLE OF AUTHORITIES

Page

CASES fe

Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir.), cert.

denied, 573 U.S. 876, 115 S.Ct. 205, 130

i BE BD CRO) itkerdccsimcisetiictatanioeenade 13, 14

Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d

Re EERIE Ge, FI Seoicticsatvcccssaansietennian 1, 14, 16

Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322

CRE CRE FID vitinsntiecietmicenimbicmaaaeels 10

Fite v. Digital Equip. Corp., 232 F.3d 3 (1st Cir.

FD visnisniegccsrnsandiciaisiniadecdisiaadoeamaialnaeaaeiae a 14

Gehring v. Case Corp., 43 F.3d 340 (7th Cir. 1994),

cert. denied, 515 U.S. 1159, 115 S. Ct. 2612, 132

Ba. Te, FE GE SE iicinicdinnnseeameiaan 14, 15

Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568

CR Se, FI iss scicaisniscsciccitnseceacdiimasatccentvasinsaensenmenaaind 16

Kozlowski v. Hampton School Bd., 77 Fed. Appx.

RAS COCR Ge irik iteneaticleltontncnneeeaee 15

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S. Ct. 1617, 36 L. Bd. Bd GEG (UGTS) oc. cccsnesscscrccscnescssese 10

The Monrosa v. Carbon Black, Inc., 359 U.S. 180,

70 &. CO. TAG, & Li. Baek. Bae Take Ci a ssninssncnicsctterisansanaes 20

Moore v. Robertson Fire Prot. Dist., 249 F.3d 786

COE Ga TI isia sesacinccsshdsansdendiediansichicsaccmasacataaseeanree 14

Palmer v. Bd. of Regents, 208 F.3d 969 (11th Cir.

TID nnsnsiacsascisessconincienisceccobagunemmenen ae amen 14, 16

Ratliff v. City of Gainesville, 256 F.3d 355 (5th Cir.

TED sccinnssvatainisnsishetiiadiaenanaaniecamman aaa 14, 15, 16

TABLE OF AUTHORITIES — Continued

Page

Reeves v. Sanderson Plumbing Prods., 530 U.S.

133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)............. 13

Smith v. Borough v. Wilkinsburg, 147 F.3d 272 (3d

SE NOD ceisicsiunecsiisslshtasdnsdasasupindeblaahdeaiamsenbuamasemae 13, 14

Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d

Re CRN CE, FD cccctesnssinissaineadidastnisasninhadasaccnines 14,17

STATUTES

BD RD BO Bosccsescaccssdssseriquenninsiatsencoamnia ee 1

RULES

Ps Bi SE Bs DD ccssnscsencaicactesocssiseepemtaienanabalaaael 1

Ha dee is BiPiinnnsscsnssesecsconsascunnnsiecindenbanmieaiaaaaeaaanae 1

JURISDICTION

The respondent, Abraham Chevrolet-Tampa, Inc.,

d/b/a Autoway Chevrolet (“Abraham Chevrolet”), agrees

with the jurisdictional statement contained in the petition

filed by the petitioner, Glenn J. Conroy (“Conroy”). The

district court’s final judgment was entered on October 21,

2002. R:52.' On October 24, 2002, Conroy filed a timely

motion for a new trial under rule 59 of the Federal Rules

of Civil Procedure. R:53. The district court denied that

motion through an order entered on February 13, 2003.

AP:19a-29a; R:59. Conroy appealed to the United States

Court of Appeals for the Eleventh Circuit through a timely

notice of appeal filed on March 14, 2003. R:60.

The court of appeals’s decision issued on June 30,

2004. See Conroy v. Abraham Chevrolet-Tampa, Inc., 375.

F.3d 1228 (11th Cir. 2004); AP:1a. Conroy filed no post-

decision motions. Because this Court granted Conroy a

two-week enlargement of time to file his petition for

certiorari, Conroy’s petition to this Court was timely under

rule 13 of this Court’s rules, and the Court otherwise has

jurisdiction over this case pursuant to 28 U.S.C. Section

1254(1).

' The record on appeal is cited as “R:__,” according to docket

number. When appropriate, specific page numbers are given as well.

Thus, for example, the citation “R:66:54” would refer to page 54 of the

transcript docketed as item 66. Conroy’s petition is cited as P:__,

according to page number. The appendix to Conroy’s petition, setting

forth the opinion of the court of appeals and the district court’s order

denying Conroy’s motion for a new trial, is cited as AP:___, according to

page number.

2

STATEMENT OF THE CASE

A. Conroy’s Employment and Termination

Conroy, the plaintiff in the district court, prosecuted

two claims against Abraham Chevrolet, Conroy’s former

employer. First, he contended that he was fired because of

his age. Second, he alleged that he was fired in retaliation

for his refusal to fire an older salesperson, Dick Weber.

R:1:3-5. Conroy attributed the alleged wrongful acts to

William Bledsoe, the former general manager of the

Abraham Chevrolet dealership.” See, e.g., R:66:54; AP:2a-

3a.

Conroy, who was born in 1946, began working in the

commercial (or “fleet”) department of Abraham Chevrolet

in March 2000. R:66:37, 135; AP:2a. Bledsoe became

general manager of the dealership — both the commercial

department and the retail department — in October or

November of 2000. R:66:130-31; AP:2a.

Several witnesses questioned Bledsoe’s qualifications

and competence to act as general manager for the dealer-

ship. R:65:68, 93, 95-96; R:66:30. According to some former

employees of Abraham Chevrolet, Bledsoe also allegedly

made comments that apparently led some people to believe

that he favored younger workers. R:65:24, 28-28, 51-56,

128-30; R:66:14-15, 29, 38-39, 40, 128; AP:3a. At least one

of those former employees intended to file his own lawsuit

against Abraham Chevrolet. R:66:24. Another of them

currently works with Conroy. R:65:86.

* Conroy’s complaint also included an ERISA claim. R:1:5. The

district court ruled that Conroy was not entitled to a jury trial on that

claim. R:24:8-9. Conroy apparently abandoned that claim at some

unspecified point thereafter. AP:4a n.1.

3

Others who worked with Bledsoe at Abraham Chevro-

let, however, disputed that Bledsoe made age-insensitive

comments, saying that they had never heard Bledsoe

make so-called “ageist” remarks. R:65:154; R:67:82.

Bledsoe himself testified that he was speaking figura-

tively, not literally, when he spoke of a desire for younger,

more aggressive sales people. R:66:127-28, 165-66. More-

over, he completely denied making some of the age-

insensitive remarks that were attributed to him by dis-

gruntled former employees.’ R:66:177-79.

During the relevant time frame, the employees of

Abraham Chevrolet were almost evenly split between

those under 40 (49 percent) and those over 40 (51 percent).

R:67:47. While Bledsoe was general manager, approxi-

mately ten percent of each group was fired. R:67:47-48.

Nonetheless, while he was there, Bledsoe increased the

pay of all of those in the commercial department (except

Conroy), including the older salespersons. R:66:65-66.

The commercial department was “grossly under-

performing” and falling short on established benchmarks.

R:66:197, 218. During the operative period of time, the

dealership was ranked fifth out of eight. R:66:67. Bledsoe

thus had several conversations with Conroy about the

failure of the commercial department to perform up to

expectations. R:66:196, 200; AP:3a. Bledsoe likewise

* The statement of Bledsoe quoted in Conroy’s petition (P:2 n.2) -

which Conroy uses in an attempt to show Bledsoe’s alleged preference

for younger workers — actually came from Bledsoe’s deposition. That

statement was not introduced as substantive evidence at trial; rather, it

was merely used in an attempt to impeach Bledsoe through an alleged

prior inconsistent statement. R:66:133. The parties agreed to a jury

instruction telling the jury not to consider such impeachment as

substantive evidence. R:67:179-80; R:49:13.

4

expressed to Abraham Chevrolet’s controller concerns

about the deficient performance of the commercial de-

partment. R:67:113, 116-17, 120-21.

According to Bledsoe, Conroy tried to blame Weber, in

part, for the department’s substandard performance, and

Conroy even asked for permission to fire Weber, who was

in his early 70s at the time. R:66:196, 217; AP:3a. Weber

and Conroy did not get along. R:67:66-67. Bledsoe re-

sponded to Conroy’s request by stating that Conroy could

“set rid” of Weber if Weber was indeed the reason for the

commercial department’s poor performance. R:66:216;

AP:3a.

Conroy, however, testified that Bledsoe asked him to

fire Weber, stating that Bledsoe referred to Weber at that

time as “the old geezer.” R:66:41-42, 52; AP:3a. Bledsoe

had allegedly used that description in reference to Weber

at other times as well. R:65:58, 129-30. Bledsoe stated that

he used that phrase and others (such as “old fart”) merely

as “expressions” or as “slang.” R:66:129-30, 164-65. And, in

fact, Weber “fairly frequently” referred to himself in a self-

deprecating way on the subject of his age. R:65:114. He

testified that he would not be offended by being called “an

old geezer.” R:67:69-70.

Conroy’s testimony that he was instructed to fire

Weber was called into serious doubt. See, e.g., R:66:59-63.

Bledsoe denied that he ever gave such an instruction to

Conroy. R:66:128, 134, 215; AP:3a. Bledsoe also denied

ever referring to Weber as “dead wood.” R:66:176. Instead,

when Bledsoe used that expression, he was referring to

unproductive employees in general, but not any employees

in particular. R:66:176-77. Similarly, Weber himself

5

testified that Conroy never told him of Bledsoe’s alleged

desire to get rid of him. R:67:66.

Indeed, it would have been most foolish for Bledsoe to

give such an order, for Weber was selling more vehicles

that everyone else at the dealership combined. R:66:77;

AP:3a. He had 56 percent of the sales for the entire com-

mercial fleet in 2000. R:67:67-68; AP:3a. Weber consis-

tently achieved his success even though he is “physically

impaired,” with some difficulty walking at a brisk pace.

R:66:134, 195.

In fact, Weber was the only salesperson in the com-

mercial department whose job performance was not below

standard. R:66:201. He was the only one who averaged

sales of 12 or more vehicles per month. R:66:125-26.

Indeed, the best salespersons at Abraham Chevrolet was

over the age of 40, averaging 52-53 years old. R:67:42.

Nonetheless, except for Weber, all of the commercial sales

people, including Conroy, were too complacent, in Bledsoe’s

view. R:66:204.

When Conroy was fired, Weber had no fear that his

employment would also be terminated. R:67:69. In fact,

close to the time that Conroy’s employment was termi-

nated, Weber was promoted and received a pay increase.

R:66:49. Weber’s promotion and pay increase occurred well

before Conroy threatened to file suit or began alleging that

he had been the victim of age discrimination. R:67:29.

Weber continues to work at Abraham Chevrolet.

R:66:63; R:67:65. In fact, of the salespersons employed in

the commercial department at the time Conroy was

employed by Abraham Chevrolet, Weber is the only one

who was still employed by Abraham Chevrolet at the time

of trial. R:66:125-26. Weber was 75 years old at the time

6

he testified at trial. R:67:65. Conroy was 55 at the time of

trial. R:66:39.

Conroy also admitted that he did not contact anyone

within the Human Resources Department (either of

Abraham Chevrolet or of Abraham Chevrolet’s parent

company) regarding the alleged order to fire Weber, even

though Conroy knew that remedy was available to him.

R:66:93-94; R:67:125-26. Indeed, prior to his termination,

Conroy never made any complaints to that department at

all. R:67:43, 125.

Conroy was fired on January 15, 2001. R:66:153;

AP:3a. At the time Conroy’s employment was terminated,

Bledsoe intended to eliminate, or at least reduce, the

commercial department and increase the retail component

of the dealership. R:65:91-92, 130; R:66:98-99; R:67:20,

122. When firing Conroy, Bledsoe thus told him that he

was being let go because Bledsoe wanted to go in a “differ-

ent direction.” R:65:62; R:66:47; AP:3a. However, because

the employment of Bledsoe himself was terminated shortly

thereafter, on April 7, 2001, the contemplated changes to

the commercial department never occurred. R:65:63;

R:66:90, 189.

Following his termination, Conroy sought unemploy-

ment compensation and, in doing so, he discovered that

Bledsoe’s stated reason for terminating Conroy’s employ-

ment was because of “unsatisfactory performance.”

R:66:47-48, 158; AP:3a. At that point, Conroy contacted

Roberta Bonavia, the Human Resources Director of Abra-

ham Chevrolet’s parent company. R:67:4, 9; AP:3a-4a.

Conroy did not initially allege at that time, however, that

he had been fired because of his age. R:66:95; R:67:7-8.

Instead, Conroy conveyed to Bonavia his alleged belief

7

that he was terminated for refusing to fire Weber. R:67:7-

8.

Bonavia investigated Conroy’s allegations. R:67:5;

AP:4a. As part of that process, she sought and obtained

facts and figures regarding Conroy’s job performance.

R:67:33. Although Bledsoe had told Conroy, at the time of

Conroy’s termination, that Conroy had done a “good job,”

Bonavia concluded that Bledsoe had been trying to be kind

to Conroy — and spare his feelings — by not telling him that

he was being fired for poor performance. R:66:47; R:67:9-

10, 46; AP:4a. Bonavia’s experience was that managers

commonly avoided telling employees that they were fired

because of poor work. R:67:9-10, 46.

Bledsoe emphatically denied that Conroy was fired

either because of his age or because he refused to fire

Weber. R:66:189. Consistent with Bledsoe’s denial, at the

conclusion of her investigation, Bonavia “found nothing to

substantiate [Conroy’s] claims.” R:67:82. Instead, Bonavia

concluded that Conroy’s unsatisfactory performance was

the true reason for terminating his employment. R:67:18.

Nevertheless, during a conversation with Bonavia, Bledsoe

agreed to change the reason for Conroy’s termination from

“unsatisfactory performance” to “other.” to enable Conroy

to obtain unemployment compensation. R:66:158; R:67:18;

AP:4a.

Conroy's job performance was unquestionably deficient —

a fact that Bledsoe had discussed with Abraham Chevrolet’s

controller prior to terminating Conroy. R:67:122. For exam-

ple, each salesperson should average sales of 12 and 15

8

vehicles each month,‘ resulting in approximately $20,000

in gross profits per salesperson per month. R:67:38-39;

AP:5a. Bledsoe’s sales were never close to that amount,

and he never had a month in which he sold even 12 vehi-

cles. R:66:73-76, 102, 109-10. His performance was there-

fore never even in the bottom range of acceptable

performance. R:67:39-42; AP:5a. In fact, his sales were

more than 50 percent below expected performance — and

termination of employment at Abraham Chevrolet is very

common for salespersons who have such bad numbers.

R:67:43; AP:5a.

Conroy was initially replaced by Joel Early, who was

44 years old at the time. R:65:62-63, 127-28, 147; R:66:57.

That promotion was intended to be merely temporary.

R:66:154. And, in fact, Early was shortly thereafter re-

placed by Randy Clark, who is two years older than

Conroy. R:66:60, 183, 199. Despite the implication in

Conroy’s petition that Clark was not hired until after

_Conroy began complaining “that the company fired him

because of his age” (P:17), it was in fact undisputed that

Clark was hired to fill Conroy’s former position before

Abraham Chevrolet learned that Conroy had filed a charge

of discrimination with the EEOC. R:66:172-73; R:67:29-30.

B. The Charge Conference, Verdict, and Judgment

At the charge conference near the conclusion of the

trial, Conroy requested a specific instruction regarding his

assertion that Abraham Chevrolet’s stated reason for termi-

nating his employment was a mere pretext. R:67:55-58, 168;

* Another witness, Conroy himself, identified the benchmark as

between eight and 12 vehicles per month. R:66:101-02.

9

AP:5a. The requested instruction, Plaintiff’s Proposed

Jury Instruction No. 10, labeled as a “Pretext Instruction,”

reads as follows:

In determining whether the Plaintiff has proved

to your satisfaction that the alleged discrimina-

tion or retaliation was a determining factor that

made a difference in the employer’s decision, you

may consider whether the employer’s explana-

tion for the discharge is a pretext as defined be-

low. '

A plaintiff may attempt to prove pretext directly

by persuading you that a discriminatory reason

more likely motivated the employer or indirectly

by showing that the employer’s proffered expla-

nation is unworthy of credence. Disbelief of the

defendant’s explanation may be enough to infer

discrimination or retaliation.

A plaintiff may therefore show pretext with evi-

dence tending to prove that the employer’s prof-

fered reasons are factually baseless, were not the

actual motivation for the discharge in question,

or were insufficient to motivate the discharge.

R:35 at 16.

The district court denied the requested instruction,

stating:

In instructing the jury the court also will denied

[sic] plaintiff’s request to include an instruction

on pretext. The pattern jury instructions for the

llth Circuit sufficiently incorporate the concept

that the plaintiff wishes to get across to the jury.

In addition, the Circuit has directed that juries

10

really should not be instructed on the McDonnell

Douglas” framework due to the strong likelihood

of jury confusion over the individual components

of the burdens shifting analysis. And there we

can see Farley versus Nationwide Mutual Insur-

ance Company, 197 F.3rd, 1322, at page 1333,

which is the (1th Circuit, 1999 authority.

R:67:169.

The actual jury instructions that the district court

gave included the following:

Under federal law, it is unlawful for an employer

to discharge or lay off or otherwise discriminate

against any employee because of that employee’s

age. When the employee is at least 40 years of

age.

In order to prevail on this claim, the plaintiff

must prove by a preponderance of the evidence

that plaintiff’s age was a substantial or motivat-

ing factor that prompted the defendant to termi-

nate his employment.

[I]t is not necessary for the plaintiff to prove age

was the sole or exclusive reason for the defen-

dant’s decision. It is sufficient if the plaintiff

proves age was a determining consideration that

made a difference in the defendant’s decision.

R:67:181-83; R:49:15-16; AP:7a n.4. The instructions also

included standard instructions on the credibility of wit-

nesses, logical inferences from the evidence, and the

* McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

11

consequences of finding testimony to be false. R:67:176-80;

AP:6a-7a n.3.

Despite the absence of a formal pretext instruction,

Conroy’s counsel, during closing argument, was free to

argue — and did in fact argue — that the jury could, and

should, find for Conroy if the jury rejected the truth of

Abraham Chevrolet’s stated reason for terminating Con-

roy’s employment. For example, the closing argument of

Conroy’s counsel included the following:

Now, you all listened to Mr. Bledsoe. And you'll

have to decide did he have a nondiscriminatory

reason for the discharge? Was it changed to other

in February? And does it stand the test of credi-

bility with you? Because if you find that age or

retaliation made a difference in the employer’s

decision, then under the Judge’s instructions,

you'll be able to find liability in favor of Mr. Con-

roy.

R:67:136.

A similar argument came from Conroy’s counsel

during rebuttal closing argument:

A claim has been made, there is no confession. No-

body ever confesses in a discrimination case. You’re

going to have [to] weigh the testimony and decide

do you think age had something to do with it. And I

would suggest to you that when the man who fires

him or without any warning, any documented re-

ports of anything going wrong and comes up here

with inconsistent statements that you can read

into, that inconsistency and make an inference

that, perhaps, the reason that was given by them

may not have been the real reason.

R:67:165; AP:13a-13b.

12

The jury returned a verdict in Abraham Chevrolet’s

favor on both Conroy’s age-discrimination claim and his

retaliation claim. R:51. The final judgment was entered on

October 21, 2002. R:52. Conroy filed a timely motion for a

new trial (R:53), which the district court denied in an

extensive order entered on February 13, 2003. AP:19a-29a;

R:59. Conroy filed his notice of appeal on March 14, 2003.

R:60.

C. The Decision of the Court of Appeals

Conroy raised two issues on appeal. First, he con-

tended that the district court made an erroneous eviden-

tiary ruling. Second, he asserted that the district court

erred by refusing to give Conroys requested pretext

instruction to the jury. AP:2a. The Eleventh Circuit re-

jected both of Conroy’s arguments.

In the majority opinion, two of the three members of

the appellate panel concluded that the trial court did not

err in refusing to give the jury Conroy’s requested pretext

instruction. AP:9a-14a. As an alternative basis for affirm-

ing the judgment, they also concluded, using a harmless-

error analysis, that no reversal would be warranted even if

the failure to give the instruction had been erroneous,

because Conroy was not “prejudiced by the district court’s

failure to-give his requested instruction.” AP:14a.

The third member of the panel disagreed with the

majority on the question of whether a pretext instruction,

if requested, is required in discrimination cases. AP:15a-

18a (Wilson, J., concurring in result). He nonetheless

concurred that no reversal was required in this case

because of his conclusion that “Conroy was not prejudiced

13

by the trial court’s refusal to give his requested pretext

instruction.” AP: 15a.

¢

ARGUMENTS FOR DENYING THE PETITION

Although Conroy is correct in stating that the courts

of appeals are divided on the question of whether it is

erroneous for a trial court to refuse a requested pretext

instruction in discrimination cases, that division is not

sufficiently stark or fully developed yet to warrant this

Court’s clarification. Moreover, even if the issue in ques-

tion were suitable for this Court’s intervention now, this

case would not be the appropriate vehicle for resolving

that issue; because Conroy was not prejudiced by the

district court’s refusal to give his requested pretext in-

struction, Conroy would not be entitled to relief regardless

of how the Court resolves the issue on which the courts of

appeals are divided.

A. THE CONFLICT IN THE COURTS OF APPEALS

REGARDING THE NECESSITY OF A PRETEXT

INSTRUCTION IS NOT YET FULLY DEVEL-

OPED OR IN NEED OF RESOLUTION BY THIS

COURT

It is true that four circuits have held that a pretext

instruction is sometimes required in employment-

discrimination cases. Two of those decisions pre-dated this

Court’s decision in Reeves v. Sanderson Plumbing Prod-

ucts, 530 U.S. 133 (2000). See Smith v. Borough v. Wil-

kinsburg, 147 F.3d 272, 279-81 (3d Cir. 1998); Cabrera v.

Jakabovitz, 24 F.3d 372, 382 (2d Cir. 1994). The other two

came after Reeves, and they were purportedly based, in

14

part, upon that decision. See Townsend v. Lumbermens

Mut. Cas. Co., 294 F.3d 1232, 1241 (10th Cir. 2002)°;

Ratliff v. City of Gainesville, 256 F.3d 355, 360-61 (5th Cir.

2001).

In each of these cases, the court concluded that a jury

needed to be told, expressly, that it could make (but need

not make) an inference of an employer’s intentional

discrimination if the jury disbelieved the employer’s stated

reason for its action. Otherwise, in the view of these

courts, jurors might not realize that such an inference was

permissible. See Townsend, 294 F.3d at 1241; Ratliff, 256

F.3d at 360-61; Smith, 147 F.3d at 280-81; Cabrera, 24

F.3d at 382.

Four other circuits — including the Eleventh Circuit in

this case — have reached a contrary conclusion, opining

that a pretext instruction is not invariably required in

employment-discrimination cases. See Conroy v. Abraham

Chevrolet-Tampa, Inc., 375 F.3d 1228, 1233-35 (11th Cir.

2004); Moore v. Robertson Fire Prot. Dist., 249 F.3d 786,

791 (8th Cir. 2001); Fite v. Digital Equip. Corp., 232 F.3d 3,

7 (1st Cir. 2000); Palmer v. Bd. of Regents, 208 F.3d 969,

975 (11th Cir. 2000); Gehring v. Case Corp., 43 F.3d 340

(7th Cir. 1994). The rationales of those courts was perhaps

best explained in Gehring, in which the Seventh Circuit

noted that “the only question the jury need answer” in

employment-discrimination cases “is whether the plaintiff

is a victim of intentional discrimination.” Jd. at 343 (em-

phasis in original). Thus, a “pretext” instruction is unnec-

essary.

* Townsend was a 2-1 decision.

15

Gehring also wanted the judge to instruct the

jury about one permissible inference: that if it

did not believe the employer’s explanation for its

decisions, it may infer that the employer is trying

to cover up age discrimination. This is a correct

statement of the law, but a judge need not deliver

instructions describing all valid legal principles.

Especially not when the principle in question de-

scribes a permissible, but not an obligatory, in-

ference. Many an inference is _ permissible.

Rather than describing each, the judge may and

usually should leave the subject to the argument

of counsel. Gehring’s lawyer asked the jury to

draw this inference; neither judge nor defense

counsel so much as hinted that any legal obstacle

stood in the way. Instructions on the topic were

unnecessary.

Id. (citation omitted; emphasis added).

The respective positions of the courts of appeals on

this issue, though differing, are not yet fully crystallized,’

however, and those courts continue to refine, clarify, and

reexamine their views. For example, the courts of appeals

that require pretext instructions have not yet fully ad-

dressed whether and to what extent a failure to give such

an instruction automatically requires reversal. As an

illustration of this ongoing development, the majority of a

panel in the Fifth Circuit recently opined that the Ratliff

" Four of the regional courts of appeals — those in the Fourth,

Sixth, Ninth, and District of Columbia Circuits - have not yet ad-

dressed the issue in any reported decision. However, one panel of the

Fourth Circuit, in an unreported decision, has held that a pretext

instruction should be given but that a failure to give the instruction is

subject to harmless-error review. See Kozlowski v. Hampton School Bd.,

77 Fed. Appx. 133, 144-45 (4th Cir. 2003).

16

decision by an earlier panel was erroneous in concluding

that a pretext instruction is mandatory in employment-

discrimination cases. See Kanida v. Gulf Coast Med. Pers.

LP, 363 F.3d 568, 577 (5th Cir. 2004). The majority in

Kanida called for en banc reconsideration of Ratliff’s

holding, while at the same time holding that the district

court’s failure to give a requested pretext instruction, even

if erroneous, did not necessarily require reversal.”

It may well be true that this Court will eventually

need to clarify this area of the law, but Abraham Chevrolet

submits that it is too soon for the Court to do so now. For

the moment, the issue should be left to the individual

courts of appeals for further refinement and percolation.

This Court should step in only if and when a stark conflict

remains in the circuits after the courts of appeals have

fully developed their respective positions. That point in

time has not yet arrived.

B. THIS CASE PRESENTS AN INAPPROPRIATE

VEHICLE FOR RESOLVING THE CONFLICT IN

THE COURTS OF APPEALS CONCERNING THE

NECESSITY OF A PRETEXT INSTRUCTION

Even if this Court believes that it should undertake to

determine, right now, the question of whether a pretext

instruction is mandatory in employment-discrimination

cases, this case is not the appropriate one for the Court to

use to answer that question. The answer to the question

* Conroy's case itself presents another example of the ongoing

development of this issue in the courts of appeals. In the Eleventh

Circuit’s decision here, that court clarified its prior holding on this issue

in Palmer. See Conroy, 375 F.3d at 1234.

stesiialeaeeincnesteted memes OGG aas

17

makes no difference to the outcome here, because it is

beyond serious dispute that the district court’s failure to

give Conroy’s requested pretext instruction, even if erro-

neous, caused him no prejudice and was, at most, harm-

less error. The judgment in Abraham Chevrolet’s favor

therefore survives intact regardless of whether the district

court erred in declining to give Conroy’s requested instruc-

tion.

All three members of the panel in the Eleventh

Circuit agreed that Conroy suffered no prejudice from the

absence of a pretext instruction. See AP:13a-14a; AP:17a-

18a (Wilson, J., concurring in result). And the applicability

of a “harmless error” analysis in cases of this nature is

something on which the courts of appeals are not divided;

even the courts of appeals that require the use of pretext

instructions have not held that the failure to give such an

instruction automatically requires reversal irrespective of

whether a plaintiff demonstrates that he or she suffered

prejudice.”

Moreover, the members of the panel below were

certainly correct in concluding that Conroy sustained no

prejudice from the district court’s refusal to give a pretext

instruction. In that regard, it must be remembered that

Conroy’s case was extraordinarily weak. He presented two

theories of liability: (1) that he was fired because of his

age; and (2) that he was fired because he refused to termi-

nate Weber. The uncontroverted evidence, however, was

* Although Conroy attributes such a view to the Tenth Circuit by

virtue of the Townsend decision (P:15), nothing in Townsend supports

the suggestion that that court will automatically reverse, without

regard to prejudice, whenever a trial court fails to give a requested

pretext instruction.

18

that Conroy was replaced on a permanent basis by Clark,

a man two years older than Conroy, and that Weber

continues to work at the dealership to this day.

The trial court recognized the significance of these

facts. In denying Conroy’s motion for a new trial, the court

noted that “[t]he uncontroverted evidence presented at

trial was that the Plaintiff was replaced on a permanent

basis by a man who was one year older (Randy Clark), and

Dick Weber, age 70, is still employed at the dealership.

Other trial evidence also undercut Plaintiff’s allegations.”

R:59:3. And, indeed, there was more.

Conroy himself testified that the manufacturer

standard for commercial sales is 12 vehicles per month. He

also testified that he never sold 12 vehicles in any month,

much less averaging 12 vehicles in the ten months he

worked for Abraham Chevrolet. Additionally, the other

salespersons in his department (apart from Weber) sold an

average of only three or four vehicles per month — and

those vehicles were not sold at acceptable profit levels.

Conroy’s excuse that he was not responsible for his defi-

cient performance and that he needed 18 months to get up

to speed was obviously rejected by the jury. The only

person who was selling cars and generating money for the

dealership was Weber, who continues to work there.

In the face of the evidence, it is hardly surprising that

the jury returned a verdict in Abraham Chevrolet’s favor.

The jury was squarely asked to make a finding that

Abraham Chevrolet engaged in intentional discrimination

against Conroy — and that its articulated reason for

discharging him was false. It did not do so, and its decision

cannot reasonably be portrayed as the product of a misled

or confused trier of fact.

ee eee

ee

19

~ Indeed, the evidence presented, jury instructions

given, and arguments advanced made it obvious to the

jurors that they could find for Conroy if they disbelieved P]

Abraham Chevrolet’s proffered reasons for terminating

Conroy’s employment. To suggest, as Conroy does, that the

jury had to be told that it could make such an inference

does not give jurors enough credit.

The entire focus of this case — by both sides — was the

truthfulness of Abraham Chevrolet’s stated reason for

firing Conroy. Indeed, Conroy’s counsel aptly described the

entire trial when he told the district court at the charge

conference that “[t]his is a pretext case.” R:67:50. Consis-

tent with that view, Conroy’s attorneys devoted almost the

entirety of their closing arguments (except for their dis--

cussion of Conroy's claimed damages) to the question of

whether the jury should believe Abraham Chevrolet’s

proffered reason for Conroy’s discharge. See R:67:127-39,

157-66.

No juror could possibly have had the slightest doubt

that he or she could find for Conroy if the jury rejected the

truth of Abraham Chevrolet’s stated reason for terminat-

ing Conroy. That was precisely what Conroy’s counsel,

during closing arguments, expressly asked the jury to do.

See R:67:136, 165. And, of course, neither the district court

nor Abraham Chevrolet’s counsel ever suggested, even

remotely, that the jury could not properly make the infer-

ence that Conroy was asking the jury to make. Everyone

in the courtroom — including the jurors — unquestionably

understood that Conroy’s claims stood or fell depending on

whether Abraham Chevrolet was telling the truth on the

FOO a en

20

reason why Conroy was discharged.” Despite the protesta-

tions to the contrary by Conroy, no instruction was neces-

sary to convey that point to the jury — and no prejudice

resulted to him from the absence of such an instruction.

The jury here merely chose to reject Conroy’s factual

contention that Abraham Chevrolet was lying in its

explanation for Conroy’s termination.

Thus, the record in this case reveals unequivocally

that the presence or absence of a pretext instruction had

no effect nere. This Court would therefore be engaging in a |

mere academic exercise if it used this case to determine

whether and to what extent a pretext instruction is re-

quired in employment-discrimination cases. Although that

question is undoubtedly an important one, Abraham

Chevrolet suggests that this Court’s scare resources and

valuable time should instead be devoted to cases present-

ing important questions to which this Court’s answers

actually affect the outcomes. See, e.g., The Monrosa uv.

Carbon Black, Inc., 359 U.S. 180, 184 (1959). That is not

the situation here.

>

* As the district court recognized in denying Conroy’s motion for a

new trial, Conroy “rests his argument that an instruction on pretext

was essential in this case upon the contention that the Defendant’s

agents were not credible witnesses.” R:59:4.

21

CONCLUSION

For the foregoing reasons, Abraham respectfully

requests that the Court deny Conroy’s petition for a writ of

certiorari.

Respectfully submitted,

JOHN R. HAMILTON

Counsel of Record

FOLEY & LARDNER LLP

111 North Orange Avenue

Suite 1800

Orlando, Florida 32801

Telephone: (407) 423-7656

Attorneys for Respondent