Opposition Brief — Airborne Freight Corp. v. Kelley

FILED

SEP 11 1598

No. 98-302

CPS Or Te CLERK

SurRtine GOURI, U.S

In The ee Be te EE

Supreme Court of the United States

October Term, 1997

AIRBORNE FREIGHT CORPORATION

d/b/a AIRBORNE EXPRESS,

Petitioner,

JOHN M. KELLEY,

Respondent.

eda cco ii

On Petition For Writ of Certiorari

To The United States Court of Appeals

For The First Circuit

So

RESPONDENT’S OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

ed +

DAVID G. HANRAHAN

Counsel of Record

Ross D. GINSBERG

GILMAN, MCLAUGHLIN & HANRAHAN LLP

470 ATLANTIC AVENUE

BOSTON, MASSACHUSETTS 02210

(617) 482-1900

Counsel for Respondent sae

QUESTION PRESENTED

Should this Court grant certiorari to determine

whether, under the facts of this age discrimination case, the

absence of a business judgment instruction constituted

prejudicial error under federal law where the First Circuit

correctly recognized that the judgment would stand on

independent state law grounds regardless of the answer to

that inquiry?

TABLE OF CONTENTS

QUESTION PREESEIN § 00k) soc 6is Cel awi shou vaw eee ben cence i

TABLES OF AUTHORS ee Sis ck axch eis ies Vv

CPP SIVA PENS SOUUEAGE WY Sov ic ctu dd oueue ce eet becker ae coed I

ELS Aha LEY PE NE sods tke vccsebsennacusemeeees I

SIGE RPP ae 5 SUES hc abba park KUNSEON co deka a eA ORNS SEES I

SEAL ENGEL © GPE 2ORES MPABES 0. 6awc eB radewedbassacees 2

A. Airborne Misrepresents the Statute

at Issue in this Proceeding ............... 3

B. Airborne Misrepresents that There

Was Uncontradicted Evidence that

Guiod and Kelley “Hated Each

PURE RAW choo bean odo a bea cue saka 3

c. The Petitioner Misrepresents Kel-

ley’s Case Presentation and the

MONG o's cen epee SOE Rann Wiebe sees 5

Sa Kelley’s Presentation of the Case . 5

2. Airborne Misrepresents

Kelley’s Closing Argument ...... 10

as Airborne Misrepresents the

District Court’s Questioning

OF WMOSORS iv avccnkeccksnssdac 1]

4. The Petitioner Misrepresents

the Nature of the Jury Verdict ... 12

5. Airborne Misrepresents

Kelley’s Suggestion for

Rehearing En Banc and the

First Circuit’s Holding .......... 13

REASONS WHY THE PETITION SHOULD

ND MIMUINNEE swe concisely rab inkaddscabievseesiscivess 14

I, THIS CASE INVOLVES A MASS-

ACHUSETTS STATUTE AND THUS

NEITHER THE DECISION BELOW NOR

THE RECORD RAISES THE QUESTION

PRESENTED IN THE PETITION ............. 14

II. THE DECISION OF THE FIRST CIRCUIT

IS NOT IN AN INTOLERABLE

CONFLICT WITH THE EIGHTH CIRCUIT

DECISION IN STEMMONS .............2..00- 16

Ill. THIS COURT SHOULD NOT GRANT

CERTIORARI TO DETERMINE WH-

ETHER THE ABSENCE OF A BUSINESS

JUDGMENT INSTRUCTION WAS

EER Sho wh Wg GLAS Ea Chg pad abc oud cons ave 20

IV. THE FIRST CIRCUIT’S OPINION THAT

THE JURY’S EXPRESS FINDING OF

AGE DISCRIMINATION COULD NOT

HAVE BEEN BASED ON

DISAGREEMENT WITH AIRBORNE’S

BUSINESS JUDGMENT WAS CORRECT..... 20

V. THE QUESTION PRESENTED IS NOT

LIKELY TO ARISE IN THE FUTURE......... 23

COPE AISI choles pascs hanebandy sy coxetssevusaves 25

iv

~~ oe

TABLE OF AUTHORITIES

Cases

Atlantic & Gulf Stevedores v. Ellerman Lines,

Ee Ses DEPT CUES ob so on ca ech coke ks hee woe 23

Blare v. Husky Injection Moldings System Boston, Inc.,

419 Mass. 437, 646 N.E.2d 111 (1995) .......... 15, 16

Colorado v. Nunez,

A SP: OL a OC Res oh 0 ka a 16

Conway v. Electro Switch Corp.,

402 Mass. 385, 523 N.E.2d 255 (1988) ............. 16

Fontaine v. Ebtec Corp.,

415 Mass. 309, 613 N.E.2d 881 (1993) ............. 16

Gallick v. Baltimore & Ohio Railroad Company,

Rye gi Be Ofek of Be erga ot eit eae os nS ee 23

Kelley v. Airborne Freight Corporation d/b/a

Airborne Express, 140 F.3d 335 (1st Cir. 1998)...... l

Matthews v. Ocean Spray Cranberries, Inc.,

426 Mass. 122, 686 N.E.2d 1303 (1997) ............ 15

Smith College v. MCAD,

370 Baas. 221, S00 N.E.26 121 (1978) . v.60 ca. 15

Stemmons v. Missouri Department of Corrections,

$2 i908 BET COON: 19S) 06 AIA 17, 18,19

Texas Department of Community Affairs v. Burdine,

GSO UL DOG CARE ec coos hee 8h Cada ey cree nee cies 20

Texas v. Mead,

ROS 55S. AOE TAO ails bk Fee DR WR 20

Thornley v. Penton Publishing, Inc.,

LOGE. SG 20: Ca Git BFP 7) ei be aii eae 17, 18

United States v. Johnston,

ee Se er CEE ahh cic ned i oy sv OURS Cn eee 20

Walker v. AT & T Technologies,

O95 F270 SAG (00h Cir 1998) 6k dies cev aw 18,19

Wilson v. Loews Incorporated,

SAP Eis SRE CIM TED. 15 vs cok vi NERD O ae oe eaen 16

Procedural Rules

Internal Operating Procedure X. D

Oe BE Cire as ca haces ews ba Vanksbonnee anes l

Supreme Court RUie 19 «65.5 ele cds anes faves 2

Statutes

a ev bik chewed Akan kBdaS eed ETS passim

DEAS SL... ©. TSE, DOCUON 8 oi cs eins Vee ess passim

Constitutional Provisions

United States Constitution, Seventh Amendment ... 23

vi

OPINIONS BELOW

The opinion in this case is reported at 140 F.3d 335

(ist Cir. 1998). A previous opinion of the First Circuit was

withdrawn in accordance with Internal Operating Procedure

(“IOP”) X.D of the First Circuit upon consideration of the

Respondent’s Suggestion for Rehearing En Banc.

STATUTES INVOLVED

Judgment in this matter was entered pursuant to the

ADEA and Massachusetts General Laws Chapter 151B.

Airborne recognizes that the judgment at issue is in the

amount of $3,136,858 which is the judgment that was entered

pursuant to the state statute.

M.G.L.c. 151B, § 4

It shall be an unlawful practice:

1B. Foran employer in the private sector,

by himself or his agent, because of the age of

any individual, to refuse to hire or employ or

to bar or to discharge from employment such

individual, or to discriminate against such

individual in compensation or in terms, cond-

itions or privileges of employment, unless

based upon-a bona fide occupational quali-

fication.

INTRODUCTION

The question presented in Airborne’s Petition is not

raised by the decision or the record below. Airborne raises

the question of whether a business judgment instruction is

always necessary in a case brought pursuant to the federal

Age Discrimination in Employment Act (ADEA), 29 U.S.C.

§ 621 et seg. However, the judgment-at issue was entered

pursuant to Massachusetts General Laws Chapter 151B

thereby rendering immaterial questions pertaining to the

ADEA judgment.

As detailed below, there is no cause for this Court to

review whether the Massachusetts statute requires that such

an instruction be given. See, pp. 14-16, infra. The contention

was rejected by the District Court and by a 1 nanimous

decision of a panel of the First Circuit. Moreover, the panel

circulated the opinion to the other judges of the First Circuit

“for pre-publication comment, none of whom objected to it.”

48A, n. 15.' Thereafter, Airborne filed a Suggestion for

Rehearing En Banc which was denied. 65A.

Even if this case did not stand on independent state

law grounds, certiorari would be unwarranted. There does

not exist an intolerable conflict among the circuits which

have considered whether the absence of a business judgment

instruction constitutes reversible error. All circuits that have

considered the issue agree that the absence of a business

judgment instruction does not require reversal and that courts

must examine the facts of each particular case. See, pp. 16-

19, infra.

STATEMENT OF THE CASE

Airborne has greatly misstated the facts of this case.

Consequently, Kelley is forced to correct these misrepresen-

tations herein. Supreme Court Rule 15. However, Air-

borne’s petition should be denied without regard to these

factual disputes because the judgment which Kelley seeks to

collect was entered pursuant to Massachusetts state law.

' Citations to the Joint Appendix filed with the First Circuit appear

herein as “A. .” Citations to Airborne’s Petition appear herein as

Be .” Citations to the Appendix to Airborne’s Petition appear

herein as “ A.”

A. Airborne Misrepresents the Statute

at Issue in this Proceeding.

Airborne recognizes that the judgment at issue is a

“multi-million dollar” jury verdict in the amount of

$3,136,858. P. 2, 7. That judgment was entered pursuant to

the Massachusetts statute on Count II of the complaint. 2A.

A separate judgment under Count | of the complaint was

entered onthe ADEA claim in a lesser amount ($1,244,152)

due to the significant differences in the remedial provisions

of the ADEA and M.G.L. c. 151B and the way in which the

two statutes are interpreted. 2A. Nevertheless, Airborne

does not make even a passing reference to M.G.L. C. 151B in

the section of its Petition entitled “Statutes Involved.” P. 1-2.

The reason for the omission is clear. Since the

judgment at issue was entered pursuant to Massachusetts law,

Airborne’s professed concerns about the judgment entered

pursuant to the ADEA are immaterial and the question

presented by Airborne is not raised by this case.

B. Airborne Misrepresents that There

Was Uncontradicted Evidence that

Guiod and Kelley “Hated Each Oth-

ers’ Guts.”

As set forth below, Airborne’s truncated summary of

the evidence is a gross distortion of the presentation of

Kelley's case and Airborne’s defense. For instance, while the

termination letter given to Kelley listed a multitude of

reasons for terminating Kelley, all of which Airborne at-

tempted to support at trial, Airborne refers to only one reason

for discharging Kelley in its Petition -- Kelley’s alleged

inability to work cooperatively with the sales arm of Airborne

and, in particular. 7ames Guiod, Kelley’s counterpart on the

sales side of the business.’

In its Petition, Airborne argues that “the uncontra-

dicted evidence at trial established that Guiod and Kelley

‘hated each others’ guts.’” P. 4. This statement is a misrepre-

sentation on multiple levels. First, the quotation set forth

(i.e. “hated each others’ guts”) does not even appear in the

record. The exhibit cited by Airborne was an E-Mail from

Raymond Van Bruwaene, Executive Vice President of Field

Services, in which he wrote not that Guiod and Kelley hated

each others’ guts but rather that “Guiod hates Kelley’s

guts...” A. 2315.

In addition to being inaccurately quoted, the statement

was not “uncontradicted.” Guiod, himself, stated: “I did not

hate Mike Kelley...” A. 1617. Van Bruwaene also contra-

dicted what Airborne erroneously referred to as the “uncon-

tradicted” fact. Van Bruwaene testified that “I shouldn’t

have said it, because | did not know it for a fact, if Mr. Guiod

hated Mr. Kelley’s guts.” A. 1065.

As will be set forth below, the unreliability of Air-

borne’s Petition, evidenced by the foregoing misrepresenta-

tions, has placed a heavy burden on Kelley to set the record

straight.*

? Despite this alleged inability to work cooperatively, Kelley and

Guiod won four “Top Gun” awards together -- more than any other

sales/service team in the company. A. 2189-92.

> Airborne has made other misrepresentations which are innocuous but

prove that Airborne has not taken seriously its responsibility to portray

the record accurately. For instance, Airborne states: “At the time he

was terminated by Airborne, Kelley was one of five Regional Field

Services Managers (“RFSM”). P.3. In fact, Kelley was one of thirteen

RFSMs. A. 1079. He was one of five RFSMs reporting directly to

William Simpson, Vice President of Field Services for Area 1.

4

a ts ai

eS. The Petitioner Misrepresents Kel-

ley’s Case Presentation and the Re-

cord.

h. Kelley’s Presentation of the Case

Kelley was the Northeast Regional Field Services

Manager (“RFSM”) for Airborne and answered directly to

William Simpson who was an Area Vice President. Simpson

supervised four other RFSMs in addition to Kelley. In

December, 1992, Kelley was given the highest rating of any

RFSM working under Simpson. A. 948. The rating was not

merely subjective. Airborne kept many types of statistics to

measure the performance of people in Kelley’s position.

Kelley had outperformed the other RFSMs in Simpson’s area

in these measured statistics which included so-called

“Quality of Service” audits. A. 2205. Inthe December, 1992

performance review, Simpson wrote: “. . Service is at an all

time high in the region.” A. 1439; 2148. Simpson’s com-

ments appeared in the section of the appraisal form where

Richard Goodwin, Vice President of Human Resources,

testified that he would have expected to see an indication that

Kelley would be terminated in ninety days.‘ A. 1155.

In March, 1993, Kelley spoke with Simpson about the

possibility of being promoted to Vice President. A.657. On

March 24, 1993, Simpson delivered a termination letter to

Kelley discharging him from his employment purportedly for

* Airborne also misrepresents the history of Kelley’s performance.

Airborne argues that it “presented evidence that Kelley’s performance

had been inconsistent during the previous several years.” P. 4 In fact,

Airborne had also rated Kelley as a superior employee in 1991 and

although he was criticized at the beginning of 1990, by the end of the

year, Simpson reported that Kelley’s region had made “remarkable

progress” in all areas. Thus, for more than two years prior to his

discharge in March, 1993, Kelley’s performance had been consistently

superior. A. 2139; 2140-42.

a broad ranging list of inadequacies in his performance --

none of which appeared in his glowing evaluation from only

three months earlier. A. 660-61; 2125-26.

In its Petition, Airborne misrepresents that the sole

reason advanced by Airborne for Kelley’s discharge was a

breakdown in his relationship with sales caused by customer

complaints.° The termination letter listed a multitude of other

purported deficiencies in Kelley’s performance which were

easily dismissed as outright lies and which Airborne deliber-

ately does not bring to the attention of this Court.

For example, in the termination letter Simpson

assailed Kelley for procrastinating in following instructions,

for not enforcing company sexual harassment policies, and

for management judgments which were allegedly so bad that

an anonymous letter about Kelley had been written to the

President of Airborne. Simpson also assailed Kelley for

being “bullish.” A. 2125-26.

The reasons given for the discharge in the termination

letter were outright lies. Simpson admitted that sexual

harassment was not an issue in Kelley’s region. A. 1262.

Moreover, Simpson knew prior to the decision to discharge

Kelley was made that the allegations in the so-called “anony-

mous letter” had no merit because he sent a retired FBI agent

to conduct an investigation and the FBI agent reported that

the allegations contained in the anonymous letter were

groundless. A. 1473.

> Airborne argues that it “explained” to the jury that in March, 1993,

Simpson reached the conclusion that the relationship between sales and

service was irreparable. P.4. The explanation was given by Simpson.

Of course, the jury did not have to credit Simpson’s explanation and

there was good reason to suspect that Simpson was lying. The District

Court noted, in a post-trial hearing, that “Mr. Simpson and Mr.

Goodwin [tried] to portray to the jury a scenario simply contrary to

fact.” A. 2076.

a ee: on a, 2 eee ek eee

In attempting to convince the jury that customers were

outraged at Kelley’s performance, Airborne witnesses

repeatedly referred to the Thomas Cook Travel Agency

account as the example of Kelley’s purported inability to

service customers. As with so many other “facts” asserted by

Airborne at trial and in its brief, Airborne’s own internal E-

mail communications undermined its witnesses’ testimony

about the Thomas Cook account. The E-Mail, written by

Simpson, disclosed that the Thomas Cook account was

experiencing problems which threatened the relationship

between Airborne and Thomas Cook. The problems were

concentrated in five geographic areas -- none of which were

in Kelley’s region. A. 1394-95; 2255.

In the termination letter, Simpson assailed Kelley for

customer problems and poor relationship with the sales side

of the business for the entire period of his tenure as RFSM of

the Northeast Region which dated back six years. Neverthe-

less, Kelley had received superior performance ratings in his

last two annual reviews and was not chastised for poor

relationship with sales and/or customers in either. A. 2140-

42; 2146-48.

Over ten days of trial Airborne’s witnesses repeatedly

lied. It is impractical to recite here the scenarios in which it

was apparent that Airborne’s witnesses were lying about the

reasons for Kelley’s discharge. However, the words of the

experienced District Court Judge who presided over the case.

made in connection with a post-trial hearing, prove the point:

... | believe that the scenario for discharging

the plaintiff was deliberate, false, contrived

and concealed from the jury and the Court. |

found the testimony of the officers who came

on here from Seattle to be, generally speaking,

on key points, lacking in credibility .. . Time

and time again, I found the statements of the

principal witnesses for the defendants to be

contrary to -- contrary not only to other reli-

able evidence, but approaching contrary to

common sense... A. 1965-1966.

The District Court also stated in post-trial hearings that

Airborne’s description of events was “absolutely unreliable,”

A. 2074, and “contrived.” A. 2078.

The District Court was not alone in its assessment of

Airborne’s lack of candor. After carefully reviewing the

2,500 page record, the First Circuit wrote:

In short, Airborne’s witnesses proffered a

version of events that often seemed in conflict

with other evidence adduced at trial, and they

contradicted each other in attempting to ex-

plain Kelley’s dismissal. 14A.

Kelley presented evidence which had a direct bearing

on the issue of age discrimination. In particular, Kelley

testified that the decision maker, Simpson, stated approxi-

mately nine months prior to Kelley’s discharge that a pro-

posed reduction in force presented “an excellent opportunity

to get rid of some of the older mediocre managers.” A. 782.

In addition, Kelley testified that the Vice President of Human

Resources, Richard Goodwin, stated that age would be one

factor considered in deciding who to terminate. A. 781. The

oldest person in Kelley’s region was terminated as a result of

the reduction in force. He was in his mid to late forties.® A.

782.

Airborne argues that this evidence was uncorrobo-

rated. Because Airborne’s witnesses obviously lied through-

out the trial, it is inappropriate for Airborne to continue to

argue the evidence in a light most favorable to itself --

leaving aside that such arguments also flaunt well-settled

principles of appellate review of jury verdicts. Moreover,

Airborne did not even dare to ask Van Bruwaene whether the

discriminatory statements were made despite the fact that he

was present at the meeting where they were uttered. A. 780.

Kelley also presented unrebutted evidence tha® while

his request to be elevated to Vice President was met with a

letter of discharge, Jack Bunyan, another RFSM working

under Simpson, whose statistical ratings had been inferior to

Kelley's, was promoted to Vice President after Kelley’s

discharge. A. 635; 657; 1178; 2193; 2194-2195: 2276.

Bunyan was in his thirties at the time.’ A. 1178. In addition,

Kelley's replacement was in his thirties. A. 232.

Among other evidence relative to Airborne’s state of

mind, Kelley introduced into evidence, without objection, an

E-Mail relating to Kelley’s prospective termination in which

Van Bruwaene stated “hopefully we have enough data to

° Airborne also misrepresents the First Circuit’s finding regarding

evidence which directly indicated age bias. The First Circuit held that

the evidence of discriminatory statements made by Simpson “had a

direct bearing on age discrimination because Simpson made the

decision to terminate Kelley.” The First Circuit also held that since

Goodwin was in charge of the company’s discrimination policy and

“participated closely” in Kelley’s termination, his comments evidenced

a discriminatory atmosphere. 234A.

” This fact undermines Airborne’s misrepresentation that there was no

evidence that similarly situated management employees were treated

differently from Kelley.

avoid a wrongful discharge,” A. 2315, which Van Bruwaene

testified encompassed age discrimination. A. 1144.

This evidence was sufficient to support the jury’s

express answer to a special interrogatory that age was a

determinative factor in the decision to discharge Kelley. In

fact, in its Reply Brief filed at the First Circuit, Airborne

admitted that the evidence was sufficient to support the

verdict which, of course, includes the jury’s specific “age”

finding. Airborne’'s Reply Brief at 2,n. 1 (“Airborne is not

arguing sufficiency of the evidence”).

Airborne has recast Kelley’s evidence, presented over

the course of a ten day trial, and reduced its version of

Kelley’s evidence to a solitary paragraph in its Petition.

Airborne argues in that paragraph that Kelley’s “presentation

to the jury emphasized . . . that Airborne had not followed its

progressive disciplinary guidelines to address his perfor-

mance problems during the winter of 1993, and that he had

not been warned that his job was in jeopardy.” P. 3. Kelley

did not emphasize either of these points. In fact, neither

point was even raised in Kelley’s closing argument.

In addition to evidence of age bias, Kelley’s presenta-

tion consisted of demonstrating that his performance re-

mained excellent in 1993 and that Airborne simply made up

reasons for the discharge to disguise the real discriminatory

motive. Progressive discipline or even a warning was

unnecessary because the true reason for Kelley’s discharge

was his age -- an attribute which could not be altered through

progressive discipline.

y B Airborne Misrepresents Kelley’s

Closing Argument.

Airborne misrepresents Kelley’s closing argument.

Airborne states that “Kelley’s counsel argued to the jury that

[Kelley's] termination was ‘wrongful’ and ‘messy’.” P.3. In

actuality, Kelley’s counsel merely reminded the jury about

10

what Van Bruwaene had written prophetically about Kelley’s

termination in two E-Mail messages which were admitted into

evidence without objection. A.1056; 1895: 2315: 2371.

Airborne likewise takes other isolated words and phrases out

of context to attempt to create the impression that Kelley’s

counsel did not argue in accordance with the District Court’s

age discrimination instructions. That charge simply is not

true.

Kelley’s counsel remained true to age discrimination

concepts. He argued that the multitude of reasons for the

termination concocted by Goodwin and Simpson were

obvious pretext. He reminded the jury of the various ways in

which Airborne’s executives were exposed as liars. Kelley’s

counsel concurrently reminded the jury about the evidence of

age discrimination including the discriminatory statements

made by Simpson and Goodwin in connection with the

reduction in force, the fact that the oldest person in Kelley’s

district (mid to late forties) was terminated as a result of the

reduction in force, and the fact that Kelley was replaced by a

person in his thirties. Kelley’s counsel reminded the jury that

“this is an age discrimination case,” A. 1868, that “we’re

talking about age here,” A. 1878, and asked the jury to tell

Airborne that “there was discrimination as a determining

factor in the case.” A. 1895.

Airborne also omits to mention that Kelley’s counsel

warned the jury that no matter what he said, “what the judge

tells you the law is, you have to abide by.” A. 1867.

3. Airborne Misrepresents the District

Court’s Questioning of Witnesses.

Over the course of the ten day trial, the District Court

occasionally made inquiries of witnesses for both the plaintiff

and defendant. Airborne never objected at trial to the District

Court’s questioning, either in the presence of the jury or at

some later point. Airborne did not raise the issue of the

1]

District Court’s questioning of witnesses in its post-trial

motions.

On appeal, Airborne argued for the first time that the

District Court’s questioning suggested that Airborne’s

business judgment could be second-guessed. In an unfair

ambush on the District Court, Airborne took a series of

questions asked by the District Court out of context and cut

and pasted the colloquy together in a way that it hoped would

support its argument since the actual record did not. Air-

borne even argued that the District Court “refused” to allow

the witness to have the last word. In fact, the witness not

only had the last word but agreed with the District Court. A.

1351-53. Airborne employed the same technique with

another question asked by the District Court.

In its Petition, Airborne has further reduced the

District Court’s colloquy with the witness thereby placing it

even further out of context. Footnote three of the Petition is

a gross mischaracterization of the District Court’s question-

ing of the witness and the significance of that questioning in

the context of the ten day trial. The District Court never

suggested that the jury was free to base liability on disagree-

ment with Airborne’s business judgment. To the contrary,

the District Court emphasized to the jury that Airborne was

free to discharge Kelley for any reason at all so long as it was

not discriminatory -- a fact which Airborne conspicuously

omits to bring to the attention of this Court. A. 1183-1184.

4. The Petitioner Misrepresents the

Nature of the Jury Verdict.

The jury was given special interrogatories to answer

but Airborne does not advise the Court of that important fact.

The jury was asked whether age was a determinative influ-

ence in the decision to discharge Kelley. A. 268. It answered

that question affirmatively. A. 268. Although the jury was

given a special interrogatory which permitted it to render a

12

varawee tl

verdict for Kelley on pretext alone if Kelley had not con-

vinced the jurors that the ultimate motive for the discharge

was his age (as permitted by Massachusetts law), the jury did

not do so. It actually found “discriminatory animus.” 26A,

ee 3

Since the jury based its verdict on evidence of age

animus, Airborne’s argument that the verdict was based on

pretext is flatly wrong. The First Circuit recognized this fact

when it wrote:

Here, the jury affirmatively responded on the

jury verdict form that age had a determinative

influence on Airborne’s decision to terminate

Kelley and thus did not premise its liability on

a finding of pretext alone. 26A, n.2.

Unable to explain the contradiction between the jury’s

express finding and its argument, Airborne simply chose to

ignore the answer to special interrogatories in its Petition.

5 Airborne Misrepresents Kelley’s

Suggestion for Rehearing En Banc

and the First Circuit’s Holding.

Airborne argues that Kelley’s Suggestion for Rehear-

ing En Banc raised arguments that “were novel and contradic-

tory to Kelley’s previous positions as stated in his initial

briefs (sic).” P.9,n. 5. This statement is false. Upon

reviewing the original opinion in this case, it was clear to

counsel that the First Circuit had been misled by the misrep-

resentations of the record made by Airborne. Kelley pointed

out the errors in the opinion and argued, inter alia, that the

First Circuit had not reviewed the record as a whole to

determine wether the business judgment instruction would

have made a difference in light of the evidence, the jury

instructions, and the answer to the special interrogatories.

13

Kelley asserted that the failure to do so violated his Seventh

Amendment right to a jury determination.

The First Circuit spent an additional six months

reviewing the record of the ten day, fact-intensive trial. The

truncated original opinion was withdrawn and replaced by a

comprehensive opinion with record references demonstrating

that the First Circuit had ultimately devoted substantial time

to reviewing the record as a whole. The three judge panel

reversed itself unanimously. As settled principles of appel-

late review of jury instructions dictate, the First Circuit

reviewed the instructions as a whole and concluded that the

jury had been properly guided by the District Court and that

the answer to the special interrogatories foreclosed any

possibility that the business judgment instruction would have

made a difference in the facts of this particular case. 30A-

32A.

REASONS WHY THE PETITION SHOULD BE DENIED

I. THIS CASE INVOLVES A MASSACHU-

SETTS STATUTE AND THUS NEITHER

THE DECISION BELOW NOR THE RE-

CORD RAISES THE QUESTION PRE-

SENTED IN THE PETITION.

The sole question presented by Airborne is whether a

District Court’s decision not to give a business judgment

instruction violates the purpose and intent of Congress in

enacting the ADEA. P. i. However, Airborne acknowledges

that the judgment at issue is one in the amount of $3,136,858

which was entered pursuant to the Massachusetts statute and

not pursuant to the ADEA. 2A.

14

AEs StL (AS AAR a MTN Bap tty AR

re ee ne ee

ee ce) ee heey

Airborne argues in a footnote that Massachusetts law

requires that a business judgment instruction be given.® P.

19, n. 10. Airborne cites no Massachuseti authority for that

proposition. Neither Matthews v. Ocean Spray Cranberries,

Inc., 426 Mass. 122, 686 N.E.2d 1303 (1997) nor Smith

College v. MCAD, 376 Mass. 221, 380 N.E.2d 121 (1978),

cited by Airborne, even involve jury trials. Consequently,

they do not involve jury instructions.’ With respect to the

* Airborne also argues in a footnote that “the First Circuit completely

disregards the fact that the trial court specifically directed the jury that

its finding on federal law was dispositive of the state law claim.” P. 10,

n.6. This statement misrepresents the District Court’s instructions and

the decision of the First Circuit.

The District Court instructed the jury that if it actually found

age to be a determinative factor in the decision to discharge, Kelley

had carried his burden under both state and federal law. The District

Court continued that if the jury did not find that age was a

determinative factor in the decision to discharge, it should enter

judgment for Airborne on the federal count but should consider

whether Airborne’s reasons were pretext in which case judgment

would be appropriate without a specific age finding under the state

Statute.

The First Circuit did not disregard these instructions in

rendering its decision. To the contrary, the First Circuit provided a

detailed recitation of the jury instructions and specifically took into

consideration the District Court’s expianation of the special Verdict

form. In that regard, the First Circuit wrote: “If the jury answered

Question 2 affirmatively, this finding was sufficient to enter judgment

on both state and federal claims.” 16A.

As set forth herein, the jury’s express finding that Kelley’s age

was a motivating factor for his discharge rules out any possibility that

the jury rendered a verdict based on disagreement with Airborne’s

business judgment and the First Circuit so held. 30A-32A.

” The Massachusetts statute is interpreted significantly differently than

the ADEA. For instance, Massachusetts is a pretext only jurisdiction,

Blare v. Husky Injection Moldings System Boston, Inc., 419 Mass. 437,

15

state law claim, the First Circuit correctly concluded that “the

absence of the business judgment instruction has no effect on

the defendant’s liability under ch. 151B.” 33A. Since the

First Circuit’s decision rests on an adequate state law ground,

the Court should not grant a writ of certiorari. Wilson v.

Loews Incorporated, 355 U.S. 597, 598 (1958)(writ dis-

missed as improvidently granted because the judgment rested

on an adequate state ground); Colorado v. Nunez, 465 U.S.

324 (1984)(same).

Il. THE DECISION OF THE FIRST CIRCUIT

IS NOT IN AN INTOLERABLE CON-

FLICT WITH THE EIGHTH CIRCUIT

DECISION IN STEMMONS.

Based on the adequate state law ground for the

judgment, certiorari is unwarranted. However, even if the

ADEA was at issue, there is no meaningful conflict among

the circuits. Both the First Circuit and the Eighth Circuit

review the record as a whole to determine whether the

absence of a business judgment instruction made a difference

in the outcome of the case. Certainly, this does not constitute

an intolerable conflict which deserves the attention of this

Court.

In this case, the First Circuit was properly concerned

with determining whether the absence of a business judgment

instruction undermined the jury charge on the whole and took

the jury’s focus away from the governing principles of age

discrimination. The First Circuit reviewed the record to

determine whether a business judgment instruction under the

facts of this particular case would have made a difference.

646 N.E.2d 111 (1995), front pay is considered compensatory rather

than equitable, Conway v. Electro Switch Corp., 402 Mass. 385, 523 |

N.E.2d 255 (1988), and emotional distress is an available remedy.

Fontaine v. Ebtec Corp., 415 Mass. 309, 613 N.E.2d 881 (1993).

16

Critical to the First Circuit’s reasoning was the fact that the

jury answered a special interrogatory that age was a determi-

native factor in the decision to discharge Kelley. The First

Circuit recognized that there was evidence to support the

special finding and stated that it could not:

. . see how the jury could have thought it was

free to find that age had a determinative influ-

ence on Kelley’s discharge if it merely dis-

agreed with Airborne’s business judgment.

The district court instructed the jury, on more

than one occasion, that Kelley could prevail on

his federal claim only if he proved by a pre-

ponderance of the evidence that he would not

have been fired but for his age. 30A.

In reviewing the jury charge as a whole, the First Circuit

wrote:

These instructions did not permit or suggest

that the jury could predicate a finding of age

discrimination on their disagreement with

Airborne’s business judgment. 32A.

Finally, the First Circuit noted that the District Court prop-

erly focused the jury’s inquiry on Airborne’s state of mind at

the time that the decision to discharge was made. 32A.

The First Circuit did not hold that it would be error to

give a business judgment instruction.

Airborne asserts that the First Circuit’s opinion is in

conflict with Eighth Circuit jurisprudence set forth in

Stemmons v. Missouri Department of Corrections, 82 F.3d

817 (8th Cir. 1996)."° In that case, the Eighth Circuit held

'° Thornley v. Penton Publishing Inc., 104 F.3d 26 (2nd Cir. 1997),

cited by Airborne, is inapposite. That case does not involve a request

17

—

that a business judgment instruction should be given but that

review of the record is necessary to see whether its absence

affected the outcome of the case. /d. at 820. In Stemmons,

the Eighth Circuit held that the absence of the business

judgment instruction did not affect the outcome of the case

and affirmed the jury verdict. /d. at 820.

Airborne argues that the Eighth Circuit found the

absence of a business judgment instruction to be harmless

only because there was evidence that suggested discrimina-

tory animus. Airborne misrepresents the holding in Stem-

mons. In fact, the Eighth Circuit held:

All of this evidence tends to undermine the

department’s proffered reason for denying Ms.

Stemmons a promotion, and thus to establish

that it was a pretext. In light of this evidence,

moreover, we believe that the district court’s

failure to give a business judgment instruction

was harmless error.

Id. at 821 (emphasis added).

The Eighth Circuit distinguished its prior holding in

Walker v. AT & T Technologies, 995 F.2d 846 (8th Cir.

1993)(holding that the absence of the business judgment

instruction was prejudicial) on the grounds that the plaintiff's

evidence in Walker consisted primarily of the testimony of

for a business judgment instruction. Rather, the Second Circuit held

that it was error for the District Court to instruct the jury that plaintiff

needed only to demonstrate that he was meeting the job qualifications

of a reasonable employer as opposed to the actual expectations of the

defendant. This instruction mandated reversal because it improperly

stated the elements of the prima facie case. As set forth above, the

First Circuit held that the District Court’s instructions were correct on

the principles governing employment discrimination.

18

co-workers who indicated that the plaintiff was the most

qualified candidate for promotion. In fact, the evidence

consisted of testimony by these other employees that they

disagreed with the employer’s decision. /d. at 850. Thus, the

facts in Walker are different from those in Stemmons and the

present case because in Walker there was no evidence of dis-

criminatory animus and no evidence which undermined the

defendant’s credibility. Stemmons, 82 F.3d at 821.!!

In Stemmons, the Eighth Circuit was satisfied that the

business judgment instruction would not have made a

difference, in part, because the defendant advised the jury of

the business judgment rule in its closing argument. Airborne

also advised the jury of the business judgment rule in its

closing argument. A. 1865; 15A.

Two important facts which were present in the case at

bar and do not appear to have existed in the Stemmons case

are: (1) the jury in this case answered special interrogatories;

and (2) the judge emphasized to the jury that Kelley could be

discharged for any reason or no reason so long as it was not

discriminatory. A. 1183-1184. All of these facts compel the

conclusion that the jury verdict would not have changed if the

requested instruction had been given.

There does not exist an intolerable conflict between

the First and Eighth Circuits. Even if the ADEA judgment

was at issue, the judgment would withstand Airborne’s attack

even under Stemmons. Of course, all of these arguments are

irrelevant because of the adequate state law grounds for the

verdict.

'' In Walker, the employer's reason for not promoting the employee was

that it felt that another candidate for promotion was a “little bit better.”

Walker, 995 F.2d at 847.

19

Ill. THIS COURT SHOULD NOT GRANT

CERTIORARI TO DETERMINE WHET-

HER THE ABSENCE OF A BUSINESS

JUDGMENT INSTRUCTION WAS HARM-

LESS.

The First Circuit and the Eighth Circuit agree that the

absence of a business judgment instruction does not require

reversal of a jury verdict. Consequently, this Court is being

asked to review a 2,500 page record developed over the

course of a ten day trial for the purpose of determining

whether a three judge panel, which already reviewed the case

twice, reached the correct conclusion that the jury’s answer

to the special interrogatory would not have changed if the

instruction had been given. This Court has stated: “We do

not grant a certiorari to review evidence and discuss specific

facts.” United States v. Johnston, 268 U.S. 220, 227 (1925);

see also, Texas v. Mead, 465 U.S. 1041 (1984).

IV. THE FIRST CIRCUIT’S OPINION THAT

THE JURY’S EXPRESS FINDING OF AGE

DISCRIMINATION COULD NOT HAVE

BEEN BASED ON DISAGREEMENT

WITH AIRBORNE’S BUSINESS JUDG-

MENT WAS CORRECT.

There are two ways for a plaintiff to prove that he was

the victim of unlawful discrimination. He may produce direct

evidence of discrimination or he may indirectly prove

discrimination by showing pretext. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).

In the present case, Kelley introduced evidence which

had a direct bearing on the issue of age animus. This in-

cluded Simpson’s age biased statement made in connection

with the reduction in force, Goodwin’s statements regarding

the same subject matter, the discharge of the oldest person in

20

_— a ee ae ee See ee eee ee ee

CT ee ee ee Ee eee

Kelley’s region as a result of the reduction in force, the

promotion of Bunyan to Vice President, the discharge of

Kelley only weeks after a request to be made Vice President.

and the replacement of Kelley by a thirty-seven year old. On

this evidence, the jury accepted Kelley’s explanation that he

had been discharged because of his age.

The District Court devised a special verdict form

which, when answered, disclosed whether the jury actually

found evidence of age discrimination or whether the jury’s

verdict was based solely on its disbelief of the reasons

asserted by Airborne. The first question asked:

Has plaintiff proved that, at the time of his

termination, he was performing his job suffi-

ciently well to meet defendant’s legitimate

expectations?”

The jury answered “yes.” The second interrogatory asked:

If “yes” to question (1), has plaintiff proved

that his age had a determinative influence on

defendant’s decision to discharge him?

N.B. IF “YES,” ENTER VERDICTS FOR

THE PLAINTIFF ON BOTH COUNTS I AND

Il AND PROCEED DIRECTLY TO QUES-

TIONS (4a) AND (4b).

The jury answered “yes.” The third interrogatory asked:

If “no” to question (2), has plaintiff nonethe-

less proved that the reasons for discharge

stated in the March 24, 1993 discharge letter

'2 Airborne stipulated to the existence of the other elements of the prima

facie case.

21

were pretextual -- i.e., that they were intended

to mask some other, unstated reason for the

discharge? [emphasis added}.

N.B. IF “YES,” ENTER A VERDICT FOR

THE PLAINTIFF ON COUNT II ONLY AND

PROCEED DIRECTLY TO QUESTION (4b).

The jury appropriately did not respond to this interrogatory.

Interrogatories (4a) and (4b) asked whether the defendant

knew that the discharge violated federal and state law,

respectively. The jury answered “yes” to both. A. 268-269.

The District Court instructed the jury that an affirma-

tive answer to the second interrogatory was appropriate only

if Kelley persuaded the jury that Airborne’s decision to

discharge him was actually motivated by age animus. A.

1913; 1921; 1922. The District Court did not instruct the jury

that it could answer interrogatory number 2 affirmatively

based on a finding of pretext.

If the jury had not been convinced that age actually

played a determinative role in the decision to discharge based

on evidence of age animus, it was compelled to answer the

second interrogatory in the negative. It would still have been

permitted to find Airborne liable, under the state law instruc-

tions, without crediting evidence which had a direct bearing

on the issue of age animus. Since the jury did not follow this

course, it is impossible to conclude that the jury predicated its

finding on pretext alone. The jury’s affirmative finding that

age was the reason for the discharge makes the business

judgment instruction irrelevant."

'S Where a jury has evidence bearing directly on the issue of age animus

and finds discrimination without relying on an evaluation of the employer’s

stated reasons for the discharge, the business judgment instruction cannot

affect its decision. Similarly, if the record demonstrates that the jury

disbelieved the employer’s asserted reasons, the business judgment

22

As discussed already, Airborne’s decision not to

inform the Court that the jury answered special interrogato-

ries demonstrates that Airborne knows that the premise of its

argument (i.e. that the verdict was based on pretext) is

unsupported in the record. To recast the jury’s answer to

special interrogatories in order to make the question of

business judgment even relevant presents a serious constitu-

tional problem. To reexamine the facts in that fashion, would

deprive Kelley of his Seventh Amendment right to a jury

determination. Gallick v. Baltimore and Ohio Railroad

Company, 372 U.S. 108, 119 (1963)(jury’s plausible view of

the evidence must be upheld); Atlantic & Gulf Stevedores v.

Ellerman Lines, 369 U.S. 335, 364 (1 962)(generally discuss-

ing the high level of deference required to be given to special

verdicts under the Seventh Amendment). Converselv,

whether the absence of the business judgment instruction

constitutes harmless error under the facts of this case presents

no constitutional question.

The First Circuit was correct. Inclusion of a business

judgment instruction would not have changed the jury’s

specific finding of age animus.

V. THE QUESTION PRESENTED IS NOT

LIKELY TO ARISE IN THE FUTURE.

The First Circuit did not hold that a business judgment

instruction should not be given. No District Court has been

forbidden from giving such an instruction. Therefore. the

question jresented by Airborne’s petition may never arise

again. In fact, history demonstrates that the issue raised by

Airborne’s petition is not litigated often.

Airborne points out that jury trials have been available

in certain discrimination cases since 1977 and in all discrimi-

instruction cannot be of assistance because in that case the jury is evaluating

the veracity of the reasons and not the legitimacy of the decision.

23

nation cases since 1991. Airborne further points out that for

year ended June 30, 1998, there were 21,871 lawsuits

commenced in federal district courts pertaining to civil rights

claims in private employment settings. It is compelling that

in its research, Airborne found only three federal cases aside

from the present one which involved review of a district

court’s decision not to give a business judgment instruction.

Two were Eighth Circuit opinions -- the later one merely

clarified the holding of the earlier one. The other opinion

located by Airborne was an unpublished opinion of the Tenth

Circuit. All cases cited by Airborne hold that the absence of

a business judgment instruction does not compel reversal and

the courts in three of the four cases affirmed the judgment

notwithstanding the absence of the business judgment

instruction.

The district courts appear to be managing such cases

competently and without confusion as to the principles

governing employment discrimination law.”* Certiorari is not

warranted.

'$ Airborne’s argument that employers will fear discharging

employees because, at a possible discrimination trial, the court might

not give a business judgment instruction artificially credits employers

with an awareness of the minute details of employment discrimination

trial practice and thus is without merit.

24

CONCLUSION

For the reasons set forth above, the respondent,

John Michael Kelley, respectfully requests that Airborne’s

Petition for Writ of Certiorari be DENIED.

Respectfully submitted,

David G. Hanrahan*

Ross D. Ginsberg

Gilman, McLaughlin & Hanrahan LLP

470 Atlantic Avenue

Boston, MA 02210

(617) 482-1900

Attorneys for Respondent

John M. Kelley

*Counsel of Record

ADDENDUM

X. PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

A. General. FRAP Rules 40 and 35 should be

consulted with respect to the procedures. Petitions for

rehearing are intended to bring to the attention of the

panel claimed errors in the opinion and they are not to be

used for reargument of an issue previously presented.

B. No Response. No response is to be filed

unless so requested by the Court.

iF En Banc Processing. When the petition

contains a suggestion for a rehearing en banc, it is

submitted by the Clerk to the panel that heard the case

and to the other active First Circuit judges. The panel

usually first acts as a panel and then the other judges

have one week after notification of the panel action to

indicate that en banc hearing is desired. The panel's

decision and the decision on the en banc suggestion may

be issued by separate orders or together as one order. A

suggestion for rehearing en banc will also be treated asa

petition for rehearing before the original panel. See

Local Rule 35.

D. Vacation of Previous Opinion and

Judgment. Usually when an en banc rehearing is

granted, the previous opinion and judgment will be

vacated.

Effective January 1, 1992.

A.l