# Petition for Writ of Certiorari — Norton v. Sam's Club

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1001

## Text

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OFEICE OF THE CLERK

No.

In The

Supreme Court of the United States

October Term, 1998

JOHN C. NORTON,
Petitioner,
VS.

SAM’S CLUB, WAL-MART CORP., WAL-MART STORES,
INCORPORATED,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
U.S. COURT OF APPEALS
FOR THE SECOND CIRCUIT

*THEODORE S. KANTOR, ESQ.
Bilgore, Reich, Levine, Kroll & Kantor
950 Reynolds Arcade Building

16 East Main Street

Rochester, New York 14614

(716) 262-4700

Attorney for Petitioner

*Counsel of Record
11 Centre Park (2441) 107 Delaware Avenue — Suite 81
Rochester, New York 14614 Buffalo, New York 14202
(716) 232-6920 Fhe Daily Record (716) 847-2984

QUESTIONS PRESENTED FOR REVIEW:

a. Whether the Court of Appeals
exceeded its appellate jurisdiction and/or
legal authority by reaching and determining
the sufficiency of evidence supporting the
jury verdict where Wal-Mart failed to
preserve said issue for appellate review in
accordance with Rule 50 (b) of the Federal
Rules of Civil Procedure?

2. Whether the Court of Appeals,
assuming arguendo it had jurisdiction and/or
authority to reach and determine the issue
of the sufficiency of the evidence presented
to the jury, nonetheless substituted its own
judgment for that of the jury and failed to
accord the jury’s verdict with sufficient
deference given the existence of disputed
factual issues as well as issues pertaining
to the credibility of witnesses’ and
evidence?

3. Whether the verdict of the jury and
the Judgment and Amended Judgment of the
trial Court were within the fair province of
the jury and the Court to decide and were
adequately supported by the evidence, the
law, the facts, as well as sound principles
of due process of law such that said
judgments of the trial Court should be
reinstated?

(i)

LIST OF ALL PARTIES TO THE PROCEEDINGS IN
THE COURT BELOW WHOSE JUDGMENT IS SOUGHT TO
BE REVIEWED:

The names of all parties to the
proceedings in the Court below whose
judgment is sought to be reviewed herein are
as set forth in the caption of the case, and
are as follows:

Join C. Norton, Plaintiff-Appellee
(Petitioner herein).

a. Sam’s Club, Wal-Mart Corp., Wal-Mart
Stores Inc., Defendants-Appellants (Wal-
Mart) (Respondent herein).

TABLE OF CONTENTS:

Page
QUESTIONS PRESENTED FOR REVIEW . (i)
LIST OF ALL PARTIES TO THE
PROCEEDINGS IN THE COURT BELOW
‘WHOSE JUDGMENT IS SOUGHT TO BE
REVIEWED * . + . 7 * © * . . * . (ii)
TABLE OF CONTENTS .--+++ +s » (iii)
TABLE OF AUTHORITIES ..-++s: > (v)
OPINIONS BELOW ..+-+++-+s+ © 2 * 1
STATEMENT OF JURISDICTION... - 3
U.S. CONSTITUTIONAL PROVISIONS,
TREATIES, STATUTES, RULES AND
REGULATIONS INVOLVED ..-.+ += - 4
STATEMENT OF CASE .-+-e+«-+ 2% © 5
REASONS FOR GRANTING THE PETITION: 7
ARGUMENT :

POINT ONE:

THE COURT OF APPEALS LACKED THE
JURISDICTION AND THE LEGAL
AUTHORITY TO REACH THE ISSUE OF

(iii)

SUFFICIENCY OF THE EVIDENCE

BASED UPON THE FAILURE OF THE
APPELLANT TO PRESERVE PROPERLY

SAID ISSUE FOR APPEAL BY ITS NOT
MAKING A FRCP RULE 50(b) MOTION

TO THE TRIAL COURT PRIOR TO

APPEAL. . + * ° * e . o * . o > 7

POINT TWO: :

THE COURT OF APPEALS
MISAPPREHENDED ITS ROLE IN NOT
PROPERLY DEFERRING TO THE JURY
ON FACTUAL MATTERS AND MATTERS
PERTAINING TO ASSESSING THE
CREDIBILITY OF WITNESS WHEN IT
SUBSTITUTED ITS JUDGMENT FOR .
THAT OF THE JURY WHEN ADEQUATE
BASIS EXISTED VIEWING THE RECORD
AS A WHOLE IN A LIGHT MOST
FAVORABLE TO SUPPORT THE JURY’S
Vanes © be 6 oe 6S S'S es US 14

POINT THREE:

THE VERDICT OF THE JURY AND THE
JUDGMENT AND AMENDED JUDGMENT OF
THE TRIAL COURT WERE WITHIN THE
FAIR PROVINCE OF THE JURY AND
THE TRIAL COURT TO DECIDE AND
WERE ADEQUATELY SUPPORTED BY THE
EVIDENCE, THE LAW, THE FACTS, AS
WELL AS SOUND PRINCIPLES OF DUE
PROCESS OF LAW SUCH THAT SAID
JUDGMENTS OF THE TRIAL COURT
SHOULD BE REINSTATED ..... 20

eee a ae ae ee ee ee ee ee ee 25

APPENDIX «* - . © ” . 7 . + + . 7 Al -A66

(iv)

TABLE OF AUTHORITIES:

Cases;

996. 2d 111 (Sth Cir.) . ve

Borger v. Yamaha Int’) Corp., 625
F. 20 390 394-395 (2d Cir. 1980)

Co., 330 U.S. 212, 214-218
Sy SR ee oe ee ae ee

, 114 F.

3d 1332 (2d Cir. 1997)
Hartford R.R., 344 U.S. 48, 50
(1952) aa ee ee

j ; ane 7. 36
210, 215 (2d Cir. 1997) ;

ny" aan Cos

Caterers Corp., 517 U.S.
134 L. Ed. 2d 433 (1996)

Aiken, 460 U.S. 711, 716 (1983)

’
‘

509 U.S. 502, 506 (1993) .- -

132 F. 3d 869 (2d Cir. 1997) 6

, 45 F. 3d 634, 639

Cir. 1995) var eat)
(v)

(2d

15

21

Cases: Page

, a 7.
105 (2d Cir. 1994) “Ge ee ey 17, 24
Statutes:
26 Gite. BRO G tee 6 OR Re 2
(9008.0, TO fs eee er es 2
29 U.S.C., 621,623, 626, 630, 631,
et seq. Rane ee eS eS 4, 6
ADBA ss. vo * See we eee 4, 6,
14,
18,
20,
23, 24
FRCP Rude SO(B). 2 « 2 see ss ta F
, s, 6,
7s. Oe
9,
10,
12, 18
Federal Buie®e . «3 Fe 8 14
Rule 10 et seq. Rules of the
Supreme Court of the United
States
section 1625.10, title 29, Code of Federal
Regulations (as in effect on June 22, 1989);
or

(ii) that is a voluntary early retirement
incentive plan consistent with the relevant
purpose or purposes of this chapter.

Notwithstanding clause (i) or (ii) of
subparagraph (B), no such employee benefit
plan or voluntary early retirement incentive
plan shall excuse the failure to hire any
individual, and no such employee benefit plan
Shall require or permit the involuntary
retirement of any individual specified by
section 631(a) of this title, because of the

age of such individual. An employer,
employment agency, or labor organization
acting under subparagraph (A), or under

clause (i) or (ii) of subparagraph (B), shall
have the burden of proving that such actions
are lawful in any civil enforcement
proceeding brought under this chapter; or

A35

(3) to discharge or otherwise discipline an
individual for good cause.

(g) Repealed. Pub.L. 101-239, Title VI, S
6202(b) (3) (C) (I), Dec. 19, 1989, 103 Stat.

2233

(h) Practices of foreign corporations
controlled by American employers; foreign
employers not controlled by American

A36

employers; factor determining control

(1) If an employer controls a corporation
whose place of incorporation is in a foreign
country, any practice by such corporation
prohibited under this section shall be
presumed to be such practice by such
employer.

(2) The prohibitions of this section shall
not apply where the employer is a foreign
person not controlled by an American
employer.

(3) For the purpose of this subsection the
determination of whether an employer controls
a corporation shall be based upon the--

(A) interrelation of operations,

(B) common management,

(C) centralized control of labor relations,
and

(D) common ownership of financial control,

of the employer and the corporation.

(i) Employee pension benefit plans; cessation
or reduction of benefit accrual or of
allocation to employee account; distribution
of benefits after attainment of normal
retirement age; compliance; highly
compensated employees

A37

(1) Except as otherwise provided in this
subsection, it shall be unlawful for an
employer, an employment agency, a labor
organization, or any combination thereof to
establish or maintain an employee pension
benefit plan

(A) in the case of a defined benefit plan,
the cessation of an employee’s' benefit
accrual, or the reduction of the rate of an
employee’s benefit accrual, because of age,
or

(B) in the case of a-defined contribution
plan, the cessation of allocations to an
employee’s account, or the reduction of the
rate at which amounts are allocated to an
employee’s account, because of age.

(2) Nothing in this section shall be
construed to prohibit an employer, employment
agency, or labor organization from observing
any provision of an employee pension benefit
plan to the extent that such provision
imposes (without regard to age) a limitation
on the amount of benefits that the plan
provides or a limitation on the number of
years of service or years of participation
which are taken into account for purposes of
determining benefit accrual under the plan.

(3) In the case of any employee who, as of

A38

the end of any plan year under a defined
benefit plan, has attained normal retirement
age under such plan--

(A) if distribution of benefits under such
plan with respect to such employee has
commenced as of the end of such plan year,
then any requirement of this subsection for
continued accrual of benefits under such plan
with respect to such employee during such
plan year shall be treated as satisfied to
the extent of the actuarial equivalent of in
-service distribution of benefits, and

(B) if distribution of benefits under such
plan with respect to such employee has not
commenced as of the end of such year in
accordance with section 1056(a) (3) of this
title and section 401(a) (14) (C) of Title
26, and the payment of benefits under such
plan with respect to such employee is not
suspended during such plan year pursuant to
section 1053(a) (3) (B) of this title or
section 411(a) (3) (B) of Title 26, then any
requirement of this subsection for continued
accrual of benefits under such plan with
respect to such employee during such plan
year shall be treated as satisfied to the
extent of any adjustment in the benefit
payable under the plan during such plan year
attributable to the delay in the distribution
of benefits after the attainment of normal

A39

retirement age.

The provisions of this paragraph shall apply
in accordance with regulations of the
Secretary of the Treasury. Such regulations
shall provide for the application of the
preceding provisions of this paragraph to all
employee pension benefit plans subject to
this subsection and may provide for the
application of such provisions, in the case
of any such employee, with respect to any
period of time within a plan year.

(4) Compliance with the requirements of this
subsection with respect to an employee
pension benefit plan shall constitute
compliance with the requirements of this
section relating to benefit accrual under
such plan.

(S) Paragraph (1) shall not apply with
respect to any employee who is a highly
compensated employee (within the meaning of
section 414(q) of Title 26) to the extent
provided in regulations prescribed by the
Secretary of the Treasury for purposes of
precluding discrimination in favor of highly
compensated employees within the meaning of
subchapter D of chapter 1 of Title 26.

(6) A plan shall not be treated as failing
to meet the requirements of paragraph (1)

A40

solely because the subsidized portion of any
early retirement benefit is disregarded I
determining benefit accruals.

(7) Any regulations prescribed by the
Secretary of the Treasury pursuant to clause
(v) of section 411(b) (1) (H) of Title 26 and
subparagraphs (C) and (D) of section 411 (b)
(2) of Title 26 shall apply with respect to
the requirements of this subsection in the
same manner and to the same extent as such
regulations apply with respect to. the
requirements of such section 411(b) (1) (H)
and 411(b) (2) of Title 26.

(8) A plan shall not be treated as failing
to meet the requirements of this section
solely because such plan provides a normal
retirement age described in section 1002(24
(B) of this title and section 411(a) (8) (B)
of Title 26.

(9) For purposes of this subsection--

(A) The terms “employee pension benefit
plan”, “defined benefit plan”, “defined
contribution plan”, and “normal retirement
age” have the meanings provided such terms in
section 1002 of this title.

(B) The term “compensation” has the meaning
provided by section 414(s) of Title 26.

A41

(j) Employment as firefighter or law
enforcement officer

It shall not be unlawful for an employer
which is a State, a political subdivision of
a State, or an interstate agency to fail or
refuse to hire or to discharge any individual
because of such individual’s age if such
action is taken--

(1) with respect to the employment of an
individual as a firefighter or as a law
enforcement officer, the employer has
complied with section 3(d) (2) of the Age
Discrimination in Employment Amendments of
1996 if the individual was discharged after
the date described in such section, and the
individual has attained--

(A) the age of hiring or retirement,
respectively, in effect under applicable
State or local law on March 3, 1983; or

(B) (i) if the individual was not hired,
the age of hiring in effect on the date of
such failure or refusal to hire under
applicable State or local law enacted after
September 30, 1996; or

(ii) if applicable State or local law was
enacted after September 30, 1996, and the
individual was discharged, the higher of--

A42

(I) the age of retirement in effect on
the date of such discharge under such law;
and

(II) age 55; and

(2) pursuant to a bona fide hiring or
retirement plan that is not a subterfuge to
evade the purposes of this chapter.

(k) Seniority system or employee benefit
plan; compliance

A seniority system or employee benefit plan
shall comply with this chapter regardless of
the date of adoption of such system or plan.

(1) Lawful practices; minimum age as
condition of eligibility for retirement
benefits; deductions from severance pay;
reduction of long-term disability benefits

Notwithstanding clause (i) or (ii) of
subsection (f) (2) (B) of this section--

(1) It shall not be a violation of
subsection (a), (b), (c), or (e) of this
section solely because--

(A) an employee pension benefit plan (as
defined in section 1002(2) of this title)
provides for the attainment of a minimum age
as a condition of eligibility for normal or

A43

early retirement benefits; or

(B) a defined benefit plan (as defined in
section 1002(35) of this title) provides for-

(i) payments that constitute’ the
subsidized portion of an early retirement
benefit; or

(ii) social security supplements for plan
participants that commence before the age and
terminate the age (specified by the plan)
when participants are eligible to receive
reduced or unreduced old-age insurance
benefits under title II of the Social
Security Act (>42 U.S.C. 401 et seq.), and
that do not exceed such old-age insurance
benefits.

(2) (A) It shall not be a violation of
subsection (a), (b), (c), or (e) of this
section solely because following a contingent
event unrelated to age--

(i) the value of any retiree health
benefits received by a. individual eligible
for an immediate pension;

(ii) the value of any additional pension
benefits that are made available solely as a

result of the contingent event unrelated to

A44

age and following which the individual is
eligible for not less than an immediate and
unreduced pension; or

(iii) the values described in both clauses
(i) and (ii);

are deducted from severance pay made
available as a result of the contingent event
unrelated to age.

(B) For an individual who receives
immediate pension benefits that are
actuarially reduced under subparagraph (A)
(i), the amount of the deduction available
pursuant to subparagraph (A) (i) shall be
reduced by the. same percentage as_ the
reduction in the pension benefits.

(C) For purposes of this paragraph,
severance pay shall include that portion of
supplemental unemployment compensation
benefits (as described in section 501(c) (17)
of Title 26) that--

(i) constitutes additional benefits of up
to 52 weeks;

(ii) has the primary purpose and effect ot
continuing benefits until an individual
becomes eligible for an immediate and
unreduced pension; and

A45

(iii) is discontinued once the individual
becomes eligible for an immediate and
unreduced pension.

(D) For purposes of this paragraph and
solely in order to make the deduction
authorized under this paragraph, the term
“retiree health benefits” means benefits
provided pursuant to a group health plan
covering retirees, for which (determined as
of the contingent event unrelated to age) --

(i) the package of benefits provided by
the employer for the retirees who are below
age 65 is at least comparable to benefits
provided under title XVIII of the Social
Security Act (> 42 U.S.C. 1395 et seq.);

(ii) the package of benefits provided by
the employer for the retirees who are age 65
and above is at least comparable to that
offered under a plan that provides a benefit
package with one-fourth the value of benefits
provided under title XVIII of such Act; or

(iii) the package of benefits provided by
the employer is as described in clauses (i)
and (ii).

(E) (i) If the obligation of the employer
to provide retiree health benefits is of

limited duration, the value for each

A46

individual shall be calculated at a rate of
$3,000 per year for benefit years before age
65, and $750 per year for benefit years
beginning at age 65 and above.

(ii) If the obligation of the employer to
provide retiree health benefits is of
unlimited duration, the value for each
individual shall be calculated at a rate of
$48,000 for individuals below age 65, and
$24,000 for individuals age 65 and above.

(iii) The values described in clauses (i)
and (ii) shall be calculated based on the age
of the individual as of the date of the
contingent event unrelated to age. The
values are effective on October 16, 1990, and
shall be adjusted on an annual basis, with
respect to a contingent event that ocurs
subsequent to the first year after October
16, 1990, based on the medical component of
the Consumer Price Index for all-urban
consumers published by the Department of
Labor.

(iv) If an individual is required to pay a
premium for retiree health benefits, the
value calculated pursuant to this
subparagraph shall be reduced by whatever
percentage of the overall premium. the
individual is required to pay.

(F) If an employer that has implemented a

A47

deduction pursuant to subparagraph (a) fails
to fulfill the obligation described in
subparagraph (e), any aggrieved individual
may bring an action for specific performance
of the obligation described in subparagraph
(E). The relief shall be in addition to any
other remedies provided under Federal or
State law.

(3) It shall not be a violation of
subsection (a), (b), (c), or (e) of this
section solely because an employer provides a
bona fide employee benefit plan or plans
under which long-term disability benefits
received by an individual are reduced by any
pension benefits (other than those
attributable to employee contributions) --

(A) paid to the individual that the
individual voluntarily elects to receive; or

(B) for which an individual who has

attained the later of age 62 or normal
retirement age is eligible.

A48

29 U.S.C. 626. Recordkeeping, investigation,
and enforcement.

(a) Attendance of witnesses; investigations,
inspections, records, and homework
regulations

The Equal Employment Opportunity Commission
shall have the power to make investigations
and require the keeping of records necessary
Or appropriate for the administration of this
chapter in accordance with the powers and
procedures provided in sections 209 and 211
of this title.

(b) Enforcement; prohibition of age
discrimination under fair labor standards;
unpaid minimum wages and unpaid overtime
compensation; liquidated damages; judicial
relief; conciliation, conference and
persuasion

The provisions of this chapter shall be
enforced in accordance with the powers.
remedies, and procedures provided in sections

211(b), 216 (except for subsection (a)
thereof), and 217 of this title, and
subsection (c) of this section. Any act

prohibited under section 623 of this title
shall be deemed to be a prohibited act under
section 215 of this title. Amounts Owing to
a person as a result of a violation of this

A49

chapter shall be deemed to be unpaid minimum
wages or unpaid overtime compensation for
purposes of sections 216 and 217 of this
title. Provided, that liquidated damages
shall be payable only in cases of willful
violations of this chapter. In any action
brought to enforce this chapter the court
shall have jurisdiction to grant such legal
or equitable relief as may be appropriate to
effectuate the purposes of this chapter,
including, without limitation judgments
compelling employment, reinstatement’ of
promotion, or enforcing the liability for
amounts deemed to be unpaid minimum wages or
unpaid overtime compensation under this
section. Before instituting any action under
this section, the Equal Employment
Opportunity Commission shail attempt’ to
eliminate the discriminatory practice or
practices alleged, and to effect voluntary
compliance with the requirements of this
chapter through informal methods of
conciliation, conference and persuasion.

(c) Civil actions; persons aggrieved;
jurisdiction; judicial relief; termination of
individual action upon commencement of action
by Commission; jury trial

(1) Any person aggrieved may bring a civil
action in any court of competent jurisdiction

A50

for such legal or equitable relief as will
effectuate the purposes of this chapter:
Provided, That the right of any person to
bring such action shall terminate upon the
commencement of an action by the Equal
Employment Opportunity Commission to enforce
the right of such employee under this
chapter.

(2) Filing of charge with Commission;
timeliness; conciliation, conference, and
persuasion

No civil action may be commenced by an
individual under this section until 60 days

after a charge alleging unlawful
discrimination has been filed with the Equal
Employment Opportunity Commission. Such a

charge shall be filed--

(1) within 180 days after the alleged
unlawful practice occurred; or

(2) in a case to which section 633(b) of
this title applies, within 300 days after the
alleged unlawful practice occurred, or within
30 days after receipt by the individual of
notice of termination of proceedings under
State law, whichever is earlier.

Upon receiving such a charge, the Commission
Shall promptly notify all persons named in

A51

such charge as prospective defendants in the
action and shall promptly seek to eliminate
any alleged unlawful practice by informal
methods of conciliation, conference, and
persuasion.

(e) Reliance on administrative rulings;
notice of dismissal or termination; civil
action after receipt of notice

Section 259 of this title shall apply to
actions under this chapter. If a charge
filed with the Commission under this chapter
is dismissed or the proceedings of the
Commission are otherwise 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 630(a) of this title
against the respondent named in the charge
within 90 days after the date of the receipt
of such notice.

(£) Waiver

(1) An individual may not waive any right
or claim under this chapter unless the waiver
is knowing and voluntary. Except as provided
in paragraph (2), a waiver may not be
considered knowing and voluntary unless at a
minimum--

(A) the waiver is part of an agreement

A52

between the individual and the employer that
is written in a manner calculated to be
understood by such individual, or by the
average individual eligible to participate;

(B) the waiver specifically refers to
rights or claims arising under this chapter;

(C) the individual does not waive rights
or claims that may arise after the date the
waiver is executed;

(D) the individual waives rights or claims
only in exchange for consideration in
addition to anything of value to which the
imdividual already is entitled;

(E) the individual is advised in writing
to consult with an attorney prior to
executing the agreement;

(F) (i) the individual is given a period
of at least 21 days within which to consider
the agreement; or

(ii) if a waiver is requested in
connection with an exit incentive or other
employment termination program offered to a
group or class of employees, the individual
is given a period of at least 45 days within
which to consider the agreement ;

AS3

(G) the agreement provides that for a
period of at least 7 days following the
execution of such agreement, the individual
may revoke the agreement, and the agreement
shall not become effective or enforceable
until the revocation period has expired;

(H) if a waiver is requested in connection
with an exit incentive or other employment
termination program offered to a group or
class of employees, the employer (at the
commencement of the period specified in
subparagraph (F)) informs the individual in
writing in a manner calculated to be
understood by the average individual eligible
to participate, as to--

(i) any class, unit, or group of
individuals covered by such program, any
eligibility factors for such program, and any
time limits applicable to such program; and

(ii) the job titles and ages of all
individuals eligible or selected for the
program, and the ages of all individuals in
the same job classification or organizational
unit who are not eligible or selected for the
program. :

(2) A waiver in settlement of a charge filed
with the Equal Employment Opportunity

A54

Commission, or an action filed in court by
the individual or the individual’s
representative, alleging age discrimination
of a kind prohibited under section 623 or
633a of this title may not be considered
knowing and voluntary unless at a minimum--

(A) subparagraphs (A) through (E) of
paragraph (1) have been met; and

(B) the individual is given a reasonable
period of time within which to consider the
settlement agreement.

(3) In any dispute that may arise over
whether any of ti = requirements, conditions,
and circumstances set forth in subparagraph
(A) ,{B),--(C), (D), (BE), (FP), (G), or (H) of
paragraph (1), or subparagraph (A) or (B) of
paragraph (2), have been met, the party
asserting the validity of a waiver shall have
the burden of proving in a court of competent
jurisdiction that a waiver was knowing and
voluntary pursuant to paragraph (1) or (2).

(4) No waiver agreement may affect the
Commission’s rights and responsibilities to
enforce this chapter. No waiver may be used
to justify interfering with the protected
right of an employee to file a charge or
participate in an investigation or proceeding
conducted by the Commission.

AS55

29 U.S.C. 630. Definitions
For the purposes of this chapter--

(a) the term “person” means one or more

individuals, partnerships, associations,
labor organizations, corporations, business
trusts, legal representatives, or any

organized groups of persons.

(b) The term “employer” means a person
engaged in an industry affecting commerce who
has twenty or more employees for each working
day in each of twenty or more calendar weeks
in the current or preceding calendar year;
Provided, That prior to June 30, 1968,
employers having fewer than fifty employees
shall not be considered employers. The term
also means (1) any agent of such a person,
and (2) a State or political subdivision of a
State and any agency or instrumentality of a
State or a political subdivision of a State,
any interstate agency, but such term does not
include the United States, or a corporation
wholly owned by the Government of the United
States.

(c) The term “employment agency” means any
person regularly undertaking with or without
compensation to procure employees for an
employer and includes an agent of such a
person; but shall not include an agency of

A56

the United States.

(d) The term “labor organization” means a
labor organization engaged in an industry
affecting commerce, and any agent of such an
organization, and includes any organization
of any kind, any agency, or _ employee
representation committee, group, association,
or plan so engaged in which employees
participate and which exists for the purpose,
in whole or in part, of dealing with
employers concerning grievances, labor
disputes, wages, rates of pay, hours, or
other terms or conditions of employment, and
any conference, general committee, joint or
system board, or joint council so engaged
which is subordinate to a national or
international labor organization.

(e) A labor organization shall be deemed to
be engaged in an industry affecting commerce
if (1) it maintains or operates a hiring hall
or hiring office which procures employees for
an employer or procures for employees
opportunities to work for an employer, or (2)
the number of its members (or, where it is a
labor organization composed of other labor
organizations or their representatives, if
the aggregate number of the members of such
other labor organization) is fifty or more
prior to July 1, 1968, or twenty-five or more
on or after July 1, 1968, and such labor

AS7

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organization--

(1) is the certified representative of
employees under the provisions of the
National Labor Relations Act, as amended [>29
U.S.C.A. S 151 et seq.], or the Railway Labor
Act, as amended [>45 U.S.C.A. S 151 et seq.];
or

(2) although not certified, is a national
or international labor organization or a
local labor organization recognized or acting
as the representative of employees of an
employer or employers engaged in an industry
affecting commerce; or

(3) has chartered a local labor
organization or subsidiary body which is
representing or actively seeking to represent
employees of employers within the meaning of
paragraph (1) or (2); or

(4) has been chartered by a labor
organization representing or actively seeking
to represent employees within the meaning of
paragraph (1) or (2) as the local or
subordinate body through which such employees
may enjoy membership or become affiliated
with such labor organization; or

(5) is a conference, general committee,
joint or system board, or joint council

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subordinate to a national or international
labor organization, which includes a labor
organization engaged in an industry affecting
commerce within the meaning of any of the
preceding paragraphs of this subsection.

(£) The term “employee” means an individual
employed by any employer except that the term
“employee” shall not include any person
elected to public office in any State or
political subdivision of any State by the
qualified voters thereof, or any person
chosen by such officer to be on_ such
officer’s personal staff, or an appointee on
the policy making level or an immediate
adviser with respect to the exercise of the
constitutional or legal powers of the office.
The exemption set forth in the preceding
sentence shall not include employees subject
to the civil service laws of a state
government, governmental agency, or political
subdivision. The term “employee” includes any
individual who is a citizen of the United
States employed by an employer in a workplace
in a foreign country.

(g) The term “commerce” means’. trade,
trattic, commerce, transportation,
transmission, or communication amo..g the
several States; or between a State and any
place outside thereof; or within the District
of Columbia, or a possession of the United

AS9

States; or between points in the same State
but through a point outside thereof.

(h) The term “industry affecting commerce”
means any activity, business, or industry in
commerce or in which a labor dispute would
hinder or obstruct commerce or the free flow
of commerce and includes any activity or
industry “affecting commerce” within the
meaning of the Labor-Management Reporting and
Disclosure Act of 1959 [>29 U.S.C.A. S 401 et
seq.]

(i) The term “States” includes a State of
the United States, the District of Columbia,
Puerto Rico, the Virgin Islands, American
Samoa, Guam, Wake Island, the Canal Zone, and
Outer Continental Shelf lands defined in the
Outer Continental Shelf Lands Act [> 43
U.S.C.A. S 1331 et seq.].

(j) The term “firefighter” means an
employee, the duties of whose position are
primarily to perform work directly connected
with the control and extinguishment of fires
or the maintenance and use of firefighting

apparatus and equipment, including an
employee engaged in this activity who is
transferred to a supervisory or

administrative position.

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(k) The term “law enforcement officer”
means an employee, the duties of whose
position are primarily the investigation,
apprehension, or detention of individuals
suspected or convicted of offenses against
the criminal laws of a State, including an
employee engaged in this activity who is
transferred to a supervisory or
administrative position. For the purpose of
this subsection, “detention” includes the
duties of employees assigned to guard
individuals incarcerated in any penal
institution.

(1) The term “compensation, terms,
conditions, or privileges of employment”
encompasses all employee benefits, including
such benefits provided pursuant to a bona
fide employee benefit plan.

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29 U.S.C. 631. Age limits
(a) Individuals at least 40 years of age

The prohibitions in this chapter shall be
limited to individuals who are at least 40
years of age.

(b) Employees or applicants for employment
in Federal Government

In the case of any personnel action affecting
employees or applicants for employment which
is subject to the provisions of section 633a
of this title, the prohibitions established
in section 633a of this title shall be
limited to individuals who are at least 40
years of age.

(c) Bona fide executives or high
policymakers

(1) Nothing in this chapter shall be
construed to prohibit compulsory retirement
of any employee who has attained 65 years of
age and who, for the 2- year period
immediately before retirement, is employed in
a bona fide executive or a high policy making
position, if such employee is entitled to an
immediate nonforfeitable annual retirement
benefit from a pension, profit-sharing,
savings, or deferred compensation plan, or

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any combination of such plans, of the
employer of such employee, which equals, in
the aggregate, at least $44,000.

(2) In applying the retirement benefit test
of paragraph (1) of this subsection, if any
such retirement benefit is in a form other
than a straight life annuity (with no
ancillary benefits), or if employees
contribute to any such plan or make rollover
contributions, such benefit shall be adjusted
in accordance with regulations prescribed by
the Equal Employment Opportunity Commission,
after consultation with the Secretary of the
Treasury, so that the benefit is the
equivalent of a straight life annuity (with
no ancillary benefits) under a rollover
contributions are made.

(ad) Repealed. Pub.L. 99-592, S 6(b), Oct.
31, 1986, 100 Stat. 3344.

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Rule 50. Judgment as a Matter of Law in
Actions Tried by Jury; Alternative
Motion for New Trial; Conditional

Rulings.
(a) JUDGMENT AS A MATTER OF LAW.

(1) If during a trial by jury a party
has been fully heard on an issue and there is
no legally sufficient evidentiary basis for a
reasonable jury to find for that party on
that issue, the court may determine the issue
against that party and may grant a motion for
judgment as a matter of law against that
party with respect to a claim or defense that
cannot under the controlling law be
maintained or defeated without a favorable
finding on that issue.

(2) Motions for judgment as a matter of
law may be made at any time before submission
of the case to the jury. Such a motion shall
specify the judgment sought and the law and
the facts on which the moving party is
entitled to the judgment.

(b) RENEWAL OF MOTION FOR JUDGMENT AFTER
TRIAL; ALTERNATIVE MOTION FOR NEW TRIAL.
Whenever a motion for a judgment as a matter
of law made at the close of all the evidence
is denied or for any reason is not granted,
the court is deemed to have submitted the

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action to the jury subject to a later
determination of the legal questions raised
by the motion. Such a motion may be renewed
by service and filing not later than 10 days
after entry of judgment. A motion for a new
trial under Rule 59 may be joined with a
renewal of the motion for judgment as a
matter of law, or a new trial may be
requested in the alternative. If a verdict
was returned, the court may, in disposing of
the renewed motion, allow the judgment to
stand or may reopen the judgment and either
order a new trial or direct the entry of
judgment as a matter of law. If no verdict
was returned, the court may, in disposing of
the renewed motion, direct the entry of
judgment as a matter of law or may order a
new trial.

(c) SAME: CONDITIONAL RULING ON GRANT OF
MOTION FOR JUDGMENT AS A MATTER OF LAW.

(1) If the renewed motion for judgment
as a matter of law is granted, the court
shall also rule on the motion for a new
trial, if any, by determining whether it
should be granted if the judgment is
thereafter vacated or reversed, and shall
specify the grounds for granting or denying
the motion for the new trial. If the motion
for a new trial is thus’ conditionally
granted, the order thereon does not affect

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a

the finality of the judgment. In case the
motion for a new trial has been conditionally
granted and the judgment is reversed on
appeal, the new trial shall proceed unless
the appellate court has otherwise ordered.
In case the motion for a new trial has been
conditionally denied, the appellee on appeal
may assert error in that denial; and if the
judgment is reversed on appeal, subsequent
proceedings shall be in accordance with the
order of the appellate court.

(2) The party against whom judgment as
a matter of law has been rendered may serve a
motion for a new trial pursuant to Rule 59
not later than 10 days after entry of the
judgment.

(ad) SAME: DENIAL OF MOTION FOR JUDGMENT AS A
MATTER OF LAW. If the motion for judgment as
a matter of law is denied, the party who
prevailed on that motion may, as appellee,
assert grounds entitling the party to a new
trial in the event the appellate court
concludes that the trial court erred in
denying the motion for judgment. If the
appellate court reverses the judgment,
nothing in this rule precludes it from
determining that the appellee is entitled to
a new trial, or from directing the trial
court to determine whether a new trial shall
be granted.

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Mire Sa SE OR ee Eee RE | ee ee as Ter

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1609%3A1. Public record. Not legal advice.