Opposition Brief — Mullin v. Raytheon Co.

98-1774...

IN THE JUN 3 1999

Supreme Court of the United Seated

OCTOBER TERM, 1998

WILLIAM MULLIN,

Petitioner,

RAYTHEON COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI.

JAMES F. KAVANAUGH, JR.

Counsel of Record

STEPHEN S. CHURCHILL

CONN, KAVANAUGH, ROSENTHAL,

PEISCH & FORD, L.L.P.

Ten Post Office Square

Boston, Massachusetts 02109

(617) 482-8200

Counsel for Respondent

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

LL)

QUESTIONS PRESENTED.

I. Whether, as the district court ruled, summary judgment

for respondent was warranted on petitioner’s disparate im-

pact claims on the ground that petitioner failed to rebut re-

spondent’s business necessity defense.

II. Whether summary judgment for respondent was war-

ranted on petitioner’s disparate impact claims on the ground

that petitioner failed to adduce evidence sufficient to support

a prima facie case of age discrimination.

II]. Whether petitioner waived his argument that the pro-

visions of the Age Discrimination in Employment Act of

1967 (“ADEA”) codified at 29 U.S.C. § 623(a)(2) prohibit

disparate impact discrimination where he never raised that

argument in the district court and did not raise it in the court

of appeals until his rehearing petition.

IV. Whether a cause of action premised on disparate im-

pact is recognized under the provisions of the ADEA codi-

fied at 29 U.S.C. § 623(a)(1).

V. Whether the court of appeals properly predicted that

the Massachusetts Supreme Judicial Court would not recog-

nize a disparate impact claim of age discrimination under

Massachusetts law.

ii

LIST OF PARTIES.

The parties named in the caption, William Mullin and

Raytheon Company, were the only parties to the proceedings

before the court of appeals and the district court. Raytheon

Company has no parent companies and no nonwholly owned

subsidiaries.

iil

TABLE OF CONTENTS.

Ee a

NII cihessichsthisnssienasindesebicsiasinieetiihasnanbsanecesssanisacc

IE ee

CT Rc en

I. It is not necessary in this case to decide

whether the ADEA prohibits disparate impact

discrimination because the district court’s

entry of summary judgment for respondent

was warranted on separate and independent

ESE a

iV

II. This case would not present a full op-

portunity to consider the availability of a

disparate impact claim under the ADEA

because, as the court of appeals ruled,

petitioner is foreclosed from relying upon 29

U.S.C. § 623(a)(2) by his failure to assert an

argument based on that provision in the

district court or until his rehearing petition

in the court Of appeals. ..............cccccscrsessrssesreeses 7

III. The court of appeals correctly held that the

ADEA does not recognize a cause of action

premised on disparate impact ..............:.sc0008 9

IV. The issue of whether a disparate impact claim

lies under the ADEA is not ripe for review by

this Court because, since Hazen Paper, no

court of appeals has recognized such a claim

in a case where it was dispositive .................0+ 10

V. The court of appeals’ interpretation of state

law does not raise an important federal

ED csccciceeniniesiestaekenstenciiguctcncintiiabeaddhseinietn 15

I iit iki nl ctseraenaseatannedantiedoadabteiecusie 17

NR ER eS Re EL A oe TI SIRT PREM la

TABLE OF AUTHORITIES.

CASES:

Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. 71

STITT siuiestcicassesadssnsnclslitiammmideabonap/iiiiissadaniiaettaeiiaies. 8

Criley v. Delta Air Lines, Inc., 199 F.3d 102 (2d Cir.),

cert. denied, 118 S. Ct. 626 (1997)... 6, 11, 13

Dist. Council 37 v. N.Y. Dept. of Parks & Rec.,

113 F.3d 347 (2d Cir. 1997) woo eeseeeees 11, 12, 13

Ene R. Co. v. Tompkins, 304 U.S. 64 (1938) .....ceeeeeeee 16

Frank v. United Airlines, 1997 WL 258890

eI SPIER dincipsisisensniaanncaiiitanitadeiediaate cicada 14

Hazen Paper Co. v. Biggins, 507 U.S. 604

SIME: sssnisheibahisbainainetaianiicimanaibsoummatans 9,10, 11, 12, 13, 14

Heckler v. Campbell, 461 U.S. 458 (1983) cecccccccsssseeone 6

Houghton v. SIPCO, Inc., 38 F.3d 953 (8th Cir.

ROTI scssissousssiiiniaiiitaieeddcaiedeiahcaianeaaniae et 11,12

Kaplan v. Cal. Public Employees’ Retirement Systems

(PERS), 1998 WL 575095 (N.D.Cal. 1998) .0..........e. 14

Leavitt v. Jane L., 518 U.S. 137 (1996) woccecceeeceseeees 15

vi

Lewis v. Aerospace Community Credit Union,

O86 FE FOS CO Ga BBW EE ccicciceesscesecaneomensanionses 11,12

Lowe v. Commack Union Free School Dist., 886

Fae BIBS Ce Car. SIRO cecsttcssrenieentotensennteamanna 6

Mangold v. Cal. Pub. Util. Commn., 67 F.3d 1470

CS CD, PGBS scvusnsscsensssictiishetintcinmaneniiabasione 13

Maresco v. Evans Chemetics, Div. of W.R. Grace

& Co., 964 F.2d 106 (2d Cir. 1992) .......cccccssssccsssessers 13

McGoldrick v. Compagnie Generale Transatlantique,

SeP UD. GO CISD scien 8

Salve Regina College v. Russell, 499 U.S. 225

CODED ‘sccsentismetnemnanania ibeseaniinneaiabitinidhiaiidh 15, 16

Smith v. City of Des Moines, 99 F.3d 1466

CHG: BOGE) ccnciviieriininauniiadaianae 11,12

Thomas v. American Home Products, Inc., 519 U.S.

Rips So fi. Ee ian 15

Thomas v. First National Bank of Wynne, 111 F.3d

ee CED cxvinnsvicnsssistsliebaleticsimamraesmmamnnaianmeas 11

— — Soleceeeanienmenmsneatennat

Vii

STATUTES:

Bee is Oe EE D. eeoiesststcncceidaesemignintinaenitaiaes 1, 5,8

BP las EE scinnevcincinsclnniictaedncencinasiaiinie: 1,5, 7,8

Se Ss Oe EIED ccssisnstnciasasieiiersaseceieitiibenetinnsiaeaniabiaiindaiiaaien 9

SF Utes Be EE tectesrssiseriasnciniovicinsiniensiinats 10

Civil Rights Act of 1991, Pub. L. No. 102-166,

Pes IEE corcmncdsienesnaaseacnieaestaisiauniiaanens 2, 10, 11

No. 98-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

WILLIAM MULLIN,

Petitioner,

v.

RAYTHEON COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

Sees

ee eeessassesinnneseen

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI.

acnenenneneeneeens

Respondent Raytheon Company respectfully opposes the

petition for writ of certiorari to review the judgment of the

United States Court of Appeals for the First Circuit.

OPINIONS BELOW.

The opinion of the court of appeals affirming the district

court (Pet. at la) is reported at 164 F.3d 696 (1st Cir. 1999).

The orders of the court of appeals denying petitioner’s peti-

tion for rehearing (Pet. at 45a) and suggestion for rehearing

en banc (Pet. at 49a) are unreported. The opinion of the dis-

trict court (Pet. at 23a) is reported at 2 F. Supp. 2d 165 (D.

Mass. 1998).

JURISDICTION.

Jurisdiction is as stated by petitioner.

STATUTES INVOLVED.

Respondent provides the following supplementation to

petitioner’s description of the statutes involved.

This case also involves the Civil Rights Act of 1991, Pub.

L. No. 102-166, 105 Stat. 1071, the relevant text of which is

set forth in the attached appendix.

STATEMENT OF THE CASE.

Factual Background.

Respondent provides the following supplementation to

petitioner’s description of the facts.

In 1994 and 1995, Raytheon underwent a major restruc-

turing in response to defense industry cutbacks. (Pet. at 25a).

Although the company eliminated redundant positions and

either laid off or reassigned a number of employees, peti-

tioner was neither reassigned nor laid off. (/d.). In the wake

of this restructuring, Raytheon set >ut to determine whether

the salaries and grades of remaining employees reflected

their actual job descriptions and responsibilities. (/d.). This

review was consistent with Raytheon’s policy of paying its

employees according to the level of work they currently per-

formed, and not according to historic salary levels. (Pet. at

33a). In petitioner’s case, Raytheon decided that his job re-

sponsibilities were not commensurate with his grade. (Pet. at

25a). Based on this decision, petitioner’s job grade was low-

ered, resulting in a reduction of his salary. (/d.). Petitioner

did not dispute either Raytheon’s business justification for

undertaking the salary and grade review or the determination

that his position responsibilities did not fall within the crite-

ria for his grade. (Pet. at 30a, 42a). Similarly, petitioner did

not suggest any way Raytheon could have achieved its ends

while imposing no disparate impact on its older workers.

(Pet. at 42a).

In support of his disparate impact claim, petitioner offered

the expert opinion of a labor statistician. (/d.). Petitioner’s

statistics purported to show that employees aged fifty and

older were more likely to be demoted during the restructur-

ing than younger workers. (Pet. at 33a). The same calcula-

tions, however, showed that no such inference could be

drawn for the protected class as a whole, i.e., for workers

aged forty and over. (/d.). Moreover, considering only the

pool of workers who were downgraded from the same level

as petitioner, there was no statistically significant disparate

impact even among employees aged fifty and over. (/d.).

Proceedings Below.

Respondent provides the following supplementation to

petitioner’s description of the proceedings below.

Raytheon moved for summary judgment on all counts of

petitioner’s complaint on January 9, 1998. Following a

hearing, the district court granted Raytheon’s motion in a

memorandum and order dated April 20, 1998. (Pet. at 23a).

With respect to petitioner’s disparate impact claims, the dis-

trict court assumed without deciding that a disparate impact

analysis might be appropriate under some circumstances in

an ADEA claim (Pet. at 39a) and under Massachusetts law.

(Pet. at 43a). Nonetheless, the court ultimately rejected peti-

tioner’s disparate impact claims. The district court first ruled

that it was “not at all clear” that petitioner could establish a

prima facie case given the nature of his statistical evidence.

(Pet. at 41a). In any event, the district court ruled that Ray-

theon had interposed a business necessity defense, i.e., a

business contraction stemming from a downturn in the de-

fense industry, that petitioner had not rebutted, thereby enti-

tling Raytheon to summary judgment. (Pet. at 42a).

On January 13, 1999, the court of appeals affirmed the

judgment of the district court. (Pet. at la). With respect to

petitioner’s claims of disparate impact, the court of appeals

ruled that neither the ADEA nor Massachusetts law recog-

nizes a claim for disparate impact age discrimination. (Pet. at

7a-21a). Raytheon had also argued that the district court’s

judgment was correct based on petitioner’s inability to es-

tablish a prima facie case and on Raytheon’s unrebutted

business necessity defense, but the court of appeals did not

reach those issues.

Before the district court and on appeal petitioner had re-

lied upon provisions of the ADEA codified at 29 U.S.C.

§ 623(a)(1). In his January 27, 1999, petition for rehearing

and suggestion for rehearing en banc, petitioner raised, for

the first time, a new argument that the court of appeals had

failed to consider language contained in 29 U.S.C.

§ 623(a)(2) when it rejected his disparate impact claim. (Pet.

at 46a).

On February 10, 1999, the court of appeals denied the pe-

tition for rehearing (Pet. at 45a) and suggestion for rehearing

en banc. (Pet. at 49a). In denying the petition, the court ruled

that petitioner had waived his right to rely on 29 U.S.C.

§ 623(a)(2) by not raising it below. (Pet. at 46a). The court

then briefly considered § 623(a)(2) and concluded, in dicta,

that the language of that section did not appear to support

petitioner’s position. (Pet. at 46a-47a).

REASONS FOR DENYING THE PETITION.

I. IT Is NOT NECESSARY IN THIS CASE TO DECIDE

WHETHER THE ADEA PROHIBITS DISPARATE IMPACT

DISCRIMINATION BECAUSE THE DISTRICT COURT’S

ENTRY OF SUMMARY JUDGMENT FOR RESPONDENT

WAS WARRANTED ON SEPARATE AND INDEPENDENT

GROUNDS.

There is no reason for the Court to address the questions

raised in the petition because petitioner’s disparate impact

claims fail on other grounds. Indeed, the district court as-

sumed without deciding that petitioner could bring claims of

disparate impact discrimination under the ADEA and Massa-

chusetts law. (Pet. at 39a, 43a). The court went on to rule that

any such claims must fail. (Pet. at 40a-43a). Although the

court of appeals affirmed on different grounds by ruling that

disparate impact claims were not viable, this Court “could

consider grounds supporting [the] judgment different from

those on which the Court of Appeals rested its decision.”

Heckler v. Campbell, 461 U.S. 458, 468 n.12 (1983).

Even if petitioner could pursue disparate impact claims

under the ADEA or Massachusetts law, there are two reasons

those claims must fail. First, to establish a prima facie case

of age discrimination, petitioner is required to demonstrate a

statistically discernible disparate impact on the protected

class as a whole, i.e., on all employees forty and older.

Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir.),

cert. denied, 118 S. Ct. 626 (1997); Lowe v. Commack Union

Free School Dist., 886 F.2d 1364, 1372-74 (2d Cir. 1989).

He failed to do so. (Pet. at 33a, 41a). Second, even if peti-

tioner could establish a prima facie case of age discrimina-

tion, he offered no evidence to defeat Raytheon’s business

necessity defense. (Pet. at 42a). That defense was established

through unrebutted evidence that the company had suffered a

business contraction stemming from a downturn in the de-

fense industry. (/d.). Because the ultimate result reached in

this case was proper regardless of the answers to the ques-

tions presented in the petition, there is no reason for the

Court to address those questions.

Il. THIS CASE WOULD NOT PRESENT A FULL OpP-

PORTUNITY TO CONSIDER THE AVAILABILITY OF A

DISPARATE IMPACT CLAIM UNDER THE ADEA

BECAUSE, AS THE COURT OF APPEALS RULED,

PETITIONER IS FORECLOSED FROM RELYING UPON 29

U.S.C. § 623(a)(2) By His FAILURE TO ASSERT AN

ARGUMENT BASED ON THAT PROVISION IN THE

DISTRICT COURT OR UNTIL HIS REHEARING PETITION

IN THE COURT OF APPEALS.

A central argument advanced by petitioner in support of

his position was not raised below and would not properly be

before this Court. In his petition, petitioner contends that the

court of appeals failed to consider the language of 29 U.S.C.

§ 623(a)(2) and that this section “supports the recognition of

the disparate impact theory.” (Pet. at 8-9). But, as the court

of appeals ruled (Pet. at 46a), petitioner failed to raise this

argument below, thereby foreclosing his ability to rely upon

It.

Petitioner’s failure to raise the issue in a timely fashion is

significant, because it prevented the proper development of a

record on the point. Neither the district court nor the court of

appeals considered the issue, other than in brief dicta by the

court of appeals in response to petitioner’s petition for a re-

hearing. (Pet. at 46a-47a). It is this Court’s “settled practice”

to consider “only in exceptional cases” issues not raised be-

low. McGoldrick v. Compagnie Generale Transatlantique,

309 U.S. 430, 434 (1940) (citations omitted). A failure to

raise an issue below deprives the Court of the benefits of “a

well-developed record and a reasoned opinion on the merits”

from the lower courts. Bankers Life and Cas. Co. v. Cren-

shaw, 486 U.S. 71, 80 (1988).

Because petitioner failed to raise below the question he

now raises, i.e., whether the entirety of the ADEA prohibits

disparate impact discrimination, that question would not

properly be before the Court if this certiorari petition was

granted. Instead, the only question properly before the Court

would be the more limited one raised below, i.e., whether

one specific section of the ADEA, codified at 29 U.S.C.

§ 623(a)(1), prohibits such discrimination. If, as petitioner

contends, 29 U.S.C. § 623(a)(2) is central to the question of

whether a disparate impact claim is viable under the ADEA,

this Court should defer review of the question to a case

which properly raises an argument based on that section.

II. THE COURT OF APPEALS CORRECTLY HELD THAT THE

ADEA Does NoT RECOGNIZE A CAUSE OF ACTION

PREMISED ON DISPARATE IMPACT.

The court of appeals concluded correctly that the ADEA

does not prohibit disparate impact discrimination. In reach-

ing this conclusion, the court relied on four considerations.

First, this Court’s unanimous decision in Hazen Paper Co. v.

Biggins, 507 U.S. 604 (1993), suggests that a cause of action

premised on disparate impact is not viable under the ADEA.

Id. at 610-11. (Pet. at 9a-11a). Additionally, in a concurring

opinion for himself and two other Justices, Justice Kennedy

specifically noted that there are “substantial arguments that it

is improper to carry over disparate impact analysis from Title

VII to the ADEA.” Jd. at 618. (Pet. at 10a-1 1a). In analyzing

Hazen Paper, the court of appeals observed that the Sixth,

Seventh, and Tenth Circuits rejected disparate impact claims

following Hazen Paper. (Pet. at 11a).

Second, the language of the ADEA does not support a

disparate impact claim. (Pet. at 1la-13a). The statute con-

tains a broad exception pursuant to which otherwise prohib-

ited actions are lawful if based on “reasonable factors other

than age.” 29 U.S.C. § 623(f)(1). The court of appeals prop-

erly concluded that this exception cannot be reconciled with

a disparate impact claim. (Pet. at 12a).

Third, the legislative history of the ADEA does not sup-

port such a claim. (Pet. at 14a-15a). In short, the ADEA fol-

lowed a detailed study by the Department of Labor on the

causes and effects of age discrimination, and that report

“segregated the appropriate remedies for disparate treatment

from those for disparate impact.” (Pet. at 14a). A fair reading

10

of the ADEA indicates that Congress gave effect to this di-

chotomy by proscnbing only intentional discrimination.

(/d.).

Fourth, the enactment of the Civil Rights Act of 1991,

Pub. L. No. 102-166, 105 Stat. 1071, which specifically pro-

vided for disparate impact claims under Title VII but did not

do so under the ADEA, provided further cause for rejecting

petitioner’s claim. (Pet. at 15a-16a).

Based on these four considerations, the court of appeals

correctly held that the ADEA does not prohibit disparate im-

pact discrimination. As a result, there is no cause for this

Court to grant the petition.

TV. THE ISSUE OF WHETHER A DISPARATE IMPACT CLAIM

LIES UNDER THE ADEA Is NOT RIPE FoR REVIEW By

THIS COURT BECAUSE, SINCE HAZEN PAPER, NO

Court OF APPEALS HAS RECOGNIZED SUCH A CLAIM

IN A CASE WHERE IT WAS DISPOSITIVE.

The principal question raised by the petition, whether a

disparate impact cause of action lies under the ADEA, is not

yet ripe for decision by this Court. As noted by the court of

appeals (Pet. at 9a-1la, 15a-16a), two recent developments

have affected the interpretation of the ADEA. First, Congress

enacted the Civil Rights Act of 1991, Pub. L. No. 102-166,

105 Stat. 1071. In that act, Congress amended Title VII of

the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000e-

2000e-17, to provide explicitly for causes of action based

upon disparate impact, Pub. L. No. 102-166, § 105, 105 Stat.

1071, 1074-75, and simultaneously amended the ADEA

1]

without creating a corresponding disparate impact cause of

action. See, e.g., id. at § 115, 105 Stat. at 1079. (Pet. at 15a).

Second, this Court issued an unanimous decision in Hazen

Paper, supra, which reflected the Court’s hostility towards

recognizing a disparate impact theory under the ADEA.

(Pet. at 9a-lla). Since these developments in the law, no

court of appeals has fully explored the issue and disposi-

tively held that a disparate impact cause of action is viable

under the ADEA. As a result, this issue is not ripe for review

for two reasons. First, the post-Hazen Paper jurisprudence

lacks a meaningful analysis of the disparate impact theory

from a court of appeals that found in favor of such a claim,

so this Court does not have the benefit of reasoned opinions

on both sides of the issue. Second, the apparent circuit split

that petitioner relies upon may be eliminated when the two

circuits holding the minority view are presented with the is-

sue in a case where it is dispositive.

Since the Hazen Paper decision, the Second and Eighth

Circuits have reaffirmed pre-Hazen Paper caselaw recog-

nizing the viability of a disparate impact ADEA claim, but

they have neither given the issue detailed consideration nor

addressed it in a case where it was dispositive. See Criley,

119 F.3d at 105; Dist. Council 37 v. N.Y. Dept. of Parks &

Rec., 113 F.3d 347, 351 (2d Cir. 1997); Lewis v. Aerospace

Community Credit Union, 114 F.3d 745, 750 (8th Cir. 1997);

Thomas v. First National Bank of Wynne, 111 F.3d 64, 66

(8th Cir. 1997); Smith v. City of Des Moines, 99 F.3d 1466,

1470 (8th Cir. 1996); Houghton v. SIPCO, Inc., 38 F.3d 953,

958-59 (8th Cir. 1994).

In the most recent Eighth Circuit case, the court affirmed

a grant of summary judgment to the defendant employer on

12

the plaintiffs ADEA disparate impact claim on the ground

that the plaintiff had failed to adduce sufficient evidence to

create a triable issue of fact. Lewis, 114 F.3d at 750. The

court stated, in dicta, that “our circuit continues to recognize

the viability of such claims under the ADEA.” Jd. The court

provided no analysis in support of this proposition, but

merely cited Smith. Id.

In Smith, not unlike Lewis, the Eighth Circuit did not il-

luminate the ADEA disparate impact issue because it af-

firmed a grant of summary judgment in favor of the defen-

dant employer on the ground that the plaintiff had not

presented evidence sufficient to create a triable issue on the

defendant’s business necessity defense. Smith, 99 F.3d at

1473. The Smith court, again in dicta, stated that the law of

the circuit recognized the viability of a disparate impact

claim. Jd. at 1470. The only support that the Smith court pro-

vided for the proposition, however, was that the court had,

after Hazen Paper, recognized the claim in Houghton. The

decision in the Houghton case, however, is even less instruc-

tive. In Houghton, the Eighth Circuit concluded that the jury

had been charged improperly and therefore ordered a new

trial on a disparate impact claim. But the court did not ad-

dress the issue of whether a disparate impact theory is viable

under the ADEA. In sum, although Eighth Circuit caselaw

states that the law in the circuit remains that a disparate im-

pact ADEA claim is viable after Hazen Paper, in none of the

cases was the issue dispositive and no case contained a close

analysis of the issue in light of the Hazen Paper decision.

The decisions of the Second Circuit subsequent to Hazen

Paper are similarly undeveloped. In Dist. Council 37, the

court of appeals affirmed a jury verdict for the employer on a

13

disparate impact claim under the ADEA, rejecting the plain-

tiffs challenge to the jury instructions. Dist. Council 37, 113

F.3d at 357. In dicta, the court addressed an alternative ar-

gument raised by the employer, that a disparate impact claim

was not viable under the ADEA. /d. at 351. Without analysis,

and based only on a citation to the pre-Hazen Paper case of

Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964

F.2d 106 (2d Cir. 1992), the court stated thatthe law of the

circuit was that a disparate impact ADEA claim can be made.

Id.

In Criley, the Court acknowledged that “in our circuit, we

have recognized such an [ADEA disparate impact claim],”

but went on to affirm a grant of summary judgment to the

defendant employer on the ground that the plaintiff's evi-

dence was not sufficient to support such a claim. Criley, 119

F.3d at 105. The court did not analyze the disparate impact

issue, but simply cited the Dist. Council 37 case and the pre-

Hazen Paper, Maresco case. Id. The Second Circuit, there-

fore, like the Eighth Circuit, has not decided a case where the

viability of a disparate impact claim under the ADEA was a

dispositive issue.

Petitioner contends that a third court of appeals, the Ninth

Circuit, also recognizes the viability of a disparate impact

ADEA claim. The Ninth Circuit, however, has not reaffirmed

its pre-Hazen Paper rulings favoring a disparate impact

claim. To the contrary, it has expressed doubts as to the cor-

rectness of those decisions, noting that the Hazen Paper de-

cision provided “some indication that the theory should not

apply.” Mangold v. Cal. Pub. Util. Commn., 67 F.3d 1470,

1474 (9th Cir. 1995). (Pet. at 11a). Although in the Ninth

Circuit there are district court cases to the contrary, see

14

Kaplan v. Cal. Public Employees’ Retirement Systems

(PERS), 1998 WL 575095 (N.D.Cal. 1998), at least one dis-

trict court in the Ninth Circuit has concluded as a result of

the Mangold decision that there is no controlling authority in

the Ninth Circuit on the issue, and has held that disparate

impact claims were not cognizable under the ADEA. Frank

v. United Airlines, 1997 WL 258890 (N.D.Cal. 1997). At

this point, therefore, it is premature to conclude that the

Ninth Circuit is in conflict with the First Circuit.

The fact that none of the courts of appeals that recognize

an ADEA disparate impact claim has, since Hazen Paper,

reexamined the issue in a case where it was dispositive of the

outcome; the fact that the disparate impact analysis by these

courts has included little more than a reference back to pre-

Hazen Paper cases; and the fact that the majority of the

courts of appeals that have addressed the issue after Hazen

Paper have held that the ADEA does not recognize disparate

impact claims (Pet. at 9a), all suggest that the circuit split

upon which petitioner relies is not settled. This Court would

benefit from delaying its review of the ADEA and disparate

impact issue until the two courts of appeals holding the mi-

nority view have had the opportunity to review the issue

squarely in a case where it will determine the rights of the

parties. At the least, in delaying review, the Court will allow

for a more thorough analysis of the disparate impact theory

under the ADEA than currently exists from any court of ap-

peals that recognize the claim. Alternatively, a delayed re-

view could result in the elimination of the apparent circuit

split upon which petitioner relies.

15

V. THE COURT OF APPEALS’ INTERPRETATION OF STATE

LAW DOES NOT RAISE AN IMPORTANT FEDERAL

QUESTION.

The second question presented in the petition asks

whether the court of appeals correctly interpreted Massachu-

setts law. This Court normally will not review a federal

court’s interpretation of state law. Leavitt v. Jane L., 518

U.S. 137, 144 (1996). Departures from this practice have oc-

curred only rarely, and only in exceptional circumstances,

such as “blatant federal-court nullification of state law.” Jd.

In fact, even when recently confronted with such a “blatant”

nullification, this Court was split on whether it should review

the lower court’s ruling. /d. at 146 (Stevens, J., dissenting)

(“It is contrary to our settled practice to grant a petition for

certiorari for the sole purpose of deciding a state-law ques-

tion ruled upon by a federal court of appeals.”’).

The reasons for this practice are sound and “well estab-

lished.” Jd. First, “the courts of appeals are more familiar

with and thus better qualified than [this Court] to interpret

the laws of the States within their Circuits.” Jd. Second, “the

decision of a federal court . . . on a question of state law is

not binding on state tribunals.” Jd. Third, “a decision of a

state-law issue by a court of appeals, whether right or wrong,

does not have the kind of national significance that is the

typical predicate for the exercise of [this Court’s] certiorari

jurisdiction.” Jd.; see also Thomas v. American Home Prod-

ucts, Inc., 519 U.S. 913, 117 S. Ct. 282, 284 (1996)

(Rehnquist, C.J., dissenting) (“Court’s function, generally

speaking, is not to correct federal courts’ misapplications of

state law”); Salve Regina College v. Russell, 499 U.S. 225,

16

242 (1991) (Rehnquist, C.J., dissenting) (Discrete state-law

decisions “are not sources of law but only reflections of the

jurisprudence of the courts of a State.”’).

The second question presented by petitioner, whether the

court of appeals properly interpreted Massachusetts law,

does not raise any important federal questions. The court of

appeals recognized and faithfully complied with its responsi-

bilities under the doctrine announced in Erie R. Co. v. Tomp-

kins, 304 U.S. 64 (1938), which requires federal courts to

apply a state’s substantive law when adjudicating claims

arising under that law. The gravamen of petitioner’s argu-

ment is that the court of appeals “dismissed as dictum con-

trolling language by the Massachusetts Supreme Judicial

Court.” (Pet. at 13). Petitioner acknowledges, however, that

the two cases purportedly containing the “controlling lan-

guage” did not involve claims of age discrimination. (/d.).

Another important fact, not acknowledged by petitioner but

considered by the court of appeals, is that neither of these

two cases involved claims of disparate impact. (Pet. at 18a).

As noted by the district court and the court of appeals, no

Massachusetts court has expressly ruled that an age discrimi-

nation plaintiff can pursue a disparate impact claim under

Massachusetts law. (Pet. at 16a-20a, 43a). Faced with a lack

of direct authority under Massachusetts law, the court of ap-

peals engaged in a thorough analysis of all relevant Massa-

chusetts cases, of the Massachusetts statute at issue, and of

the legislative history of that statute. (Pet. at 16a-21a).

Based on its steadfast attempt to adhere to Massachusetts

law, the court of appeals complied with the mandate of the

Erie doctrine. Therefore, the court of appeals’ ruling under

17

Massachusetts law does not present any federal question and

does not warrant this Court’s review.

CONCLUSION.

For these reasons, the petition for a wnt of certiorari

should be denied.

Respectfully submitted,

JAMES F. KAVANAUGH, JR.

Counsel of Record

STEPHEN S. CHURCHILL

CONN, KAVANAUGH, ROSENTHAL,

PEISCH & FORD, L.L.P

Ten Post Office Square

Boston, Massachusetts 02109

(617) 482-8200

Counsel for Respondent

ADDENDUM.

RELEVANT PROVISIONS OF

THE CIVIL RIGHTS ACT OF 1991,

PUB. L. NO. 102-166, 105 STAT. 1071

SEC. 105. BURDEN OF PROOF IN DISPARATE

IMPACT CASES.

Sec. 105(a)

(a) Section 703 of the Civil Rights Act of 1964 (42 U.S.C.

2000e-2) is amended by adding at the end of the following

new subsection:

“(k)(1)(A) An unlawful employment practice based on

disparate impact is established under this title only if—

“(i) a complaining party demonstrates that a respondent

uses a particular employment practice that causes a disparate

impact on the basis of race, color, religion, sex, or national

origin and the respondent fails to demonstrate that the chal-

lenged practice is job related for the position in question and

consistent with business necessity; or

“(ii) the complaining party makes the demonstration de-

scribed in subparagraph (C) with respect to an alternative

employment practice and the respondent refuses to adopt

such alternative employment practice.

“(B)(i) With respect to demonstrating that a particular

employment practice causes a disparate impact as described

in subparagraph (A)(i), the complaining party shall demon-

strate that each particular challenged employment practice

causes a disparate impact, except that if the complaining

party can demonstrate to the court that the elements of a re-

2a

spondent’s decisionmaking process are not capable of sepa-

ration for analysis, the decisionmaking process may be ana-

lyzed as one employment practice.

“(ii) If the respondent demonstrates that a specific em-

ployment practice does not cause the disparate impact, the

respondent shall not be required to demonstrate that such

practice is required by business necessity.

“(C) The demonstration referred to by subparagraph

(A)(ii) shall be in accordance with the law as it existed on

June 4, 1989, with respect to the concept of ‘alternative em-

ployment practice’.

_“(2) A demonstration that an employment practice is re-

quired by business necessity may not be used as a defense

against a claim of intentional discrimination under this title.

“(3) Notwithstanding any other provision of this title, a

tule barring the employment of an individual who currently

and knowingly uses or possesses a controlled substance, as

defined in schedules I and II of section 102(6) of the Con-

trolled Substances Act (21 U.S.C. 802(6)), other than the use

or possession of a drug taken under the supervision of a li-

censed health care professional, or any other use or posses-

sion authorized by the Controlled Substance Act or any other

provision of Federal law, shall be considered an unlawful

employment practice under this title only if such rule is

adopted or applied with an intent to discriminate because of

race, color, religion, sex, or national origin.”

Sec. 105(b)

(b) No statements other than the interpretive memoran-

dum appearing at Vol. 137 Congressional Record S 15276

(daily ed. Oct. 25, 1991) shall be considered legislative his-

3a

tory of, or relied upon in any way as legislative history in

construing or applying, any provision of this Act that relates

to Wards Cove — Business necessity/cumulation/alternative

business practices.

SEC. 115. NOTICE OF LIMITATIONS PERIOD

UNDER THE AGE DISCRIMINATION IN

EMPLOYMENT ACT OF 1967.

Section 7(e) of the Age Discrimination in Employment

Act of 1967 (29 U.S.C. 626(e)) is amended—

Sec. 115(1)

(1) by striking paragraph (2);

Sec. 115(2)

(2) by striking the paragraph designation in paragraph (1);

Sec. 115(3)

(3) by striking “Sections 6 and” and inserting “Section”;

and

Sec. 115(4)

(4) by adding at the end the following:

“If a charge filed with the Commission under this Act is

dismissed or the proceedings of the Commission are other-

wise terminated by the Commission, the Commission shall

notify the person aggrieved. A civil action may be brought

under this section by a person defined in section 11(a)

against the respondent named in the charge within 90 days

after the date of the receipt such notice.”