Petition for Writ of Certiorari — Clowes v. Allegheny Valley Hospital

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93. 427 !

, f

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

JANET G. CLOWES.

Petitioner

ALLEGHENY VALLEY HOSPITAL.

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RICHARD T. SEYMOUR ALAN E. KRrAus*

SHARON R. VINICK Davib P. ARCISZEWSKI

Lawyers Committee for Civil DEBORAH J. FENNELLY

Rights Under Law RIKER, DANZIG, SCHERER,

1450 G Street, N.W. HYLAND & PERRETT!

Suite 400 Headquarters Plaza

Washington, D.C. 20005 One Speedwell Avenue

(202) 662-8600 Morristown, NJ 07962-1981]

(201) 538-0800

Attorneys for Petitioner

*Counsel of Record

HELEN R. KOTLER

475 Union Trust Building

501 Grant Street

Pittsburgh, PA 15219

(412) 281-6538

QUESTIONS PRESENTED

1. Did the Third Circuit Court of Appeals err when it, in effect,

applied a de novo standard of review to a jury’s finding that petitioner

was constructively discharged because of her age in violation of the

Age Discrimination in Employment Act of 1967 (“ADEA”), 29

U.S.C. § 621-34?

2. Does the Third Circuit’s decision con ict with this Court’s

holding in Pullman-Standard v. Swint, 456 U.S. 273 (1982)? |

3. Did the Third Circuit Court of Appeals err in failing to give

proper deference to the jury’s verdict in petitioner’s favor as required

by the Seventh Amendment and this Court’s precedents?

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................

ee a ae U.cbeb clue vceu

EA ee ee

I. THE DE NOVO STANDARD OF REVIEW

APPLIED BY THE COURT BELOW IS

CONTRARY TO THE HOLDINGS OF EVERY

CIRCUIT BUT THE SIXTH AND TO THE

PRECEDENTS OF THIS COURT ..............

I]. THE GUIDANCE OF THIS COURT IS

NECESSARY TO CURB THE DISTURBING

WILLINGNESS OF CIRCUIT COURTS —

EXEMPLIFIED BY THE DECISION BELOW —

TO RE-EXAMINE JURY FINDINGS IN VIOLA-

TION OF THE SEVENTH AMENDMENT ......

GS NS vs co hbk oe kdd'cwcnece

APPENDIX

Slip Opinion of the Court of Appeals for the

Ns ess cdo w bv uceeenes

Order Amending Slip Opinion of the Court of Appeals

ones wis bwwclddaecweec

Published Opinion of the Court of Appeals for the

a a ea

Order of the United States District Court denying

the Motion for Judgment Notwithstanding the

Verdict or, in the alternative, fora New Trial ......

asa esd avy a es oh e sek cdeccoscvecs

Order of the Court of Appeals for the Third Circuit

denying the Petition for Rehearing ..............

PAGE

1Sa

l6a

17a

20a

a a

TABLE OF AUTHORITIES

Page

CASES im

Acrey v. American Sheep Industry Ass'n, 981 F.2d 1569

Se ee Cie cs Chao heck N eee Wee Ure ens 8

Basham vy. Pennsylvania Railroad Co.,

eg Rg er ree ee re ee 14

Bose Corp. v. Consumers Union of U.S., Inc.,

fe | eo re re ee 13

Bristow v. Daily Press, Inc., 770 F.2d 1251

(4th Cir. 1985), cert. denied, 475 U.S. 1082 (1986) .... 12

Cazzola v. Codman & Shurtleff, Inc., 751 F.2d 53

oe BPP Tee Pe Pee Ter CTE TT TT eT ere 8, 12

Cortes v. Maxus Exploration Corporation, 977 F.2d 195

eg: re ee ry err i]

Dennis v. Denver & Rio Grande Western Railroad Co.,

PE es oc a 00s F855 4a backs eekesseekes 14

E.E.0O.C. v. Delight Wholesale Co., 973 F.2d 664

Ca Sc Gade i ved age cab tev eeesesaeses 1]

Goss v. Exxon Office Systems Co., 47 F.2d 885

CPG PEE Se ink e caer cee ele ue eee wre e as abn ees 8

Herdman v. Pennsylvania Railroad Co.,

ee ns EE aa es oo 4 ee eee 14

Hirschfeld v. New Mexico Corrections Dep't.,

POS Time Fie CO OD on hs cee eiew se eeev ess 1]

International Terminal Operating Co. v. N.V. Nederl

Amerik Stoomu Moats, 393 U.S. 74 (1968) ........... 14

Lavender v. Kurn, 327 U.S. 645 (1946) ................ 14

Link v. Mercedes-Benz of North America, Inc.

Fe ee We CE GM COE boda der tcenedeceedveres 8

Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830) ......... 14

Pena v. Brattleboro Retreat, 702 F.2d 322 (2d Cir. 1983)... = 8, 12

Pullman-Standard v. Swint, 456 U.S. 273 (1982) ........ passim

St. Mary's Honor Center v. Hicks, U.S. _ ,

feR Re Bs 3k.) PRRere yy eee 12

EEE

TABLE OF AUTHORITIES (Continued)

Stamey v. Southern 6 ‘l. & Tel. Co., 859 F.2d 855

(11th Cir. 1988), cert. denied, 490 U.S. 1116 (1989) ... 8

Stephens v. The C.1.T. Group/Equipment Financing, Inc.

PIS We BORD CHOC TUE oon ce cececeaveserces 8

Swint v. Pullman-Standard, 624 F.2d 525 (5th Cir. 1981) .. 12

United States v. McKines, 933 F.2d 1412 (8th Cir. 1991) .. 8

Wardwell v. School Bd., 786 F.2d 1554 (11th Cir. 1986) ... |

Watson v. Nationwide Insurance Co., 823 F.2d 360

SPN REP Nes ke ckouve dcecectraie eee 12

Wheeler v. Southland Corp., 875, F.2d 1246

Ges SOE cede rc ectecccues ieee 1]

Yates v. Avco. Corp., 819 F.2d 630 (6th Cir. 1987) ....... 1]

STATUTES AND RULES

Be i EE oi oss ee rene dees tian 2

Pe EEOE Shane cub oadeseccerer ale ee 2

Age Discrimination in Employment Act of 1967

("AREA ), 29 U.S.C. © G2E-34 ww cen ccucoeucs passim

FU Ws WN ET cvs fe vaceepus coats csaccuieee 7

POU Be a Oe Sk bos ho es Bae oa eee erate 3

Pa He Ce UD oo neo ee sv is saceueedeceivesues 12

MISCELLANEOUS

Eric Schnapper, Judges Against Juries—Appellate

Review of Federal Civil Jury Verdicts, 1989 Wisc.

hes SE BOP CREED oh cee sean eae Ree eee 15

IN THE

Supreme Court of the United States

OCTOBER TERM 1993

JANET G. CLOWES,

Petitioner,

ALLEGHENY VALLEY HOSPITAL,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

The petitioner Janet G. Clowes respectfully prays that a writ of cer-

tiorari issue to review the judgment and opinion and amended opinion

of the United States Court of Appeals for the Third Circuit, entered

in the above-entitled proceeding on April 23, 1993 and May 27, 1993,

respectively.

OPINIONS BELOW

The opinion of the Court of Appeals for the Third Circuit issued on

April 23, 1993 and amended by Order Amending Slip Opinion dated

May 27, 1993, is reported at 991 F.2d 1159 (3d Cir. 1993), and is

reprinted in the appendix attached hereto at 9a, infra. On May 27,

1993, the opinion was amended by the unpublished Order Amending

Slip Opinion, reprinted in the appendix attached hereto at 7a, infra.

The unpublished, unamended slip opinion of the Court of Appeals

for the Third Circuit issued on April 23, 1993, is reprinted in the

appendix attached hereto at la, infra.

JURISDICTION

Federal jurisdiction in the trial court was invoked under 28 U.S.C.

§ 1331 and 29 U.S.C. § 626. The decision of the Court of Appeals

sought to be reviewed was issued on April 23, 1993. A timely petition

for rehearing was filed on May 5, 1993. The April 23, 1993 opinion

was amended by order dated May 17, 1993. The petition for rehearing

was denied by order of the Court of Appeals on June 16, 1993. Juris-

diction in this Court is invoked under 28 U.S.C. § 1254(1).

PERTINENT STATUTE AND RULE

Plaintiff's claim arises under the Age Discrimination in Employ-

ment Act of 1967 (“ADEA”), 29 U.S.C. § 621-34:

§ 621. Congressional statement of findings and purpose

(a) The Congress hereby finds and declares that—

(1) in the face of rising productivity and affluence, older work-

ers find themselves disadvantaged in their efforts to retain employ-

ment, and especially to regain employment when displaced from

jobs;

(2) the setting of arbitrary age limits regardless of potential for

job performance has become a common practice, and certain other-

wise desirable practices may work to the disadvantage of older per-

sons;

(3) the incidence of unemployment, especially long-term unem-

ployment with resultant deterioration of skill, morale, and

employer acceptability is, relative to the younger ages, high among

older workers; their numbers are great and growing; and their

employment problems grave;

(4) the existence in industries affecting commerce, of arbitrary

discrimination in employment because of age, burdens commerce

and the free flow of goods in commerce.

(b) It is therefore the purpose of this chapter to promote employ-

ment of older persons based on their ability rather than age; to prohibit

arbitrary age discrimination in employment; to help employers and

workers find ways of meeting problems arising from the impact of age

on employment.

§ 623. Prohibition of age discrimination

(a) Employer practices

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any individual or

otherwise discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way

which would deprive or tend to deprive any individual of employ-

ment opportunities or otherwise adversely affect his status as an

employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in order to comply

with this chapter.

Fed. R. Civ. P. 50(a) provides in pertinent part:

(a) Judgment as a Matter of Law.

(1) If during atrial by jury a party has been fully heard with respect

to an issue and there is no legally sufficient evidentiary basis for a rea-

sonable jury to have found for that party with respect to that issue, the

court may grant a motion for judgment as a matter of law against that

party on any claim, counterclaim, cross-claim, or third party claim

that cannot under the controlling law be maintained without a favor-

able 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.

STATEMENT OF THE CASE

Petitioner Janet Clowes is a sixty year old nurse. She worked for the

respondent in both part-time and full-time positions for thirty years,

from 1957 until 1987. In 1989, she instituted this action seeking

redress under the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § 621-34, alleging that she was constructively

discharged because of her age. The complaint also included a pendent

claim under the Pennsylvania Human Relations Act, 43 P.S. § 962,

and a common law claim for the intentional infliction of emotional

distress.

Ms. Clowes was hired by respondent Allegheny Valley Hospital

(‘Allegheny Hospital”) on July 5, 1957. (46A).! She held several

nursing related positions with the respondent over the course of her

employment. (141 A-152A). In each of these positions, prior to early

1987, Ms. Clowes received satisfactory performance evaluations and

normal salary increases. (191A; 502-503A; 791A; 829A). She was

well regarded by her co-workers. (542A; 405A).

On March 31, 1987, petitioner became a member of the Allegheny

Hospital’s IV team. (47A). The 'V team is a unit of registered nurses

who are responsible for the administration and monitoring of patient

intake of intravenous solutions. (483A). Ms. Clowes was 53 years old

at the time. (48A).

Ms. Clowes’ supervisor was thirty-four year old Diana Bennett

Malloy. (47-48A). Ms. Clowes was the oldest member of Malloy’s IV

team. (48A). In addition, she was one of only two nurses on the team

over fifty years of age. (48A).

Shortly after Ms. Clowes joined the IV team, Malloy commenced

an intense campaign of close and harsh supervision of Ms. Clowes.

Malloy’s attitude towards petitioner was excessively critical, hostile

and oppressive. (189A). That treatment was in sharp contrast from

that accorded other team members. (188A; 391A; 395A). Malloy fol-

lowed petitioner on her rounds and obtrusively noted the number of

times it took her to start an IV. (198A). Mailoy kept a detailed account

of petitioner’s performance by recording “every little thing” about her

performance in an obvious attempt to build a record to discipline

and/or discharge Ms. Clowes. (187A; 240A). In addition, Malloy rou-

tinely remained at the hospital at the conclusion of the day shift in

order to examine petitioner’s patient files and discover any alleged

“mistakes.” (187A). No other member of the IV team was subjected

to this sort of excessive, unfair “supervision.” (189A; 870-871A).

Moreover, Malloy sharply criticized and demeaned Ms. Clowes in

the presence of her co-workers. (394-398A). Most often, Malloy

| A” citations are to the appendix in the Third Circuit.“ —_ a” citations are

to the appendix attached to this Petition.

harshly criticized her in front of other members of the IV team for

making numerous multiple needle injections in a patient even though

multiple needle injections were not uncommon depending on the age

and condition of the patient. (196-197A; 376-377A; 923A; 393A). No

other member of the IV team was subjected to such scrutiny or criti-

cism, no matter how many times they had to “stick” patients.

As would be expected, Malloy’s excessive supervision and harsh

public criticism caused Ms. Clowes to become severely depressed.

Indeed, Ms. Clowes consulted a psychiatrist, Dr. Louis Haber, for the

growing depression resulting from Malloy’s treatment of her. (293A).

Dr. Haber diagnosed Ms. Clowes’ condition as a “major depressive

disorder, single episode”. (585-586A). Dr. Haber based his diagnosis,

in part, upon Ms. Clowes’ description of her problems with Malloy

and her perception that she was being unfairly harassed. (581-582A:

597-598A).

In July 1987, Malloy completed an evaluation of petitioner’s per-

formance. (1059A). Allegheny Hospital’s evaluation form required a

supervisor to grade performance on a scale of one to four—one being

the poorest and four being the highest. Malloy rated Malloy’s perfor-

mance as a substandard “two” in seven out of thirty-five performance

categories. (1059-1063A). In her more than 20 years of being

reviewed, petitioner had never before received a rating lower than

three. (191A; 829A).

In accordance with hospital procedure, Ms. Clowes was required

to meet with Malloy to discuss her performance in those categories

because she had received a rating of “two”. (1059A). On September

7, 1987, petitioner and Malloy met for that purpose. (344A; 844A)

Malloy noted that there had been some improvement in Ms. Clowes’

performance. (844-847A; 1064-1065A). Nevertheless, Malloy

informed Clowes that continued close supervision would be required.

(847A).

Subsequently, Malloy asked petitioner to meet with her on Novem-

ber 5, 1987 to discuss petitioner’s performance. Between the Septem-

ber 5, 1987 and November 5, 1987 conferences, Malloy’s excessive

supervision of Ms. Clowes’ performance continued and Malloy com-

piled a lengthy list of petitioner’s alleged shortcomings. (1067A).

At the November 5, 1987 conference, Malloy and Patricia Coff-

man, a Nursing Department Supervisor, met with Ms. Clowes.

(1066A). Malloy provided petitioner with a list of matters that she

supposedly needed to correct. (1067-1071A). Ms. Clowes was

directed to submit by November 11, 1987 a list of her improvement

“goals” to Malloy. (1066A). She was also advised that a weekly con-

ference with Malloy would be required. (1066A). This weekly confer-

ence was designed to discuss any continuing performance problems.

(1066A). Another evaluation was scheduled for December 18, 1993.

(1066A). Petitioner was advised that, if there was no improvement in

her job performance, “further disciplinary action” would be taken

against her. (1066A; 1071A). It was apparent after the November 5,

1987 conference—if not long before—that nothing Ms. Ciowes did

would satisfy Malloy and Malloy was bound and determined to build

a record to discipline and eventually discharge Ms. Clowes. Follow-

ing the November 5, 1987, conference, Ms. Clowes was so upset that

she took a sick day for the remainder of the day. (1066A).

In response to Malloy’s critical review atthe November confer-

ence, petitioner submitted a written response to both Malloy and hos-

pital administrators, because petitioner felt that she was being unfairly

treated. (217-221A). Following the November 5, 1987 conference,

petitioner carried out her duties as an IV nurse for only a few days.

Petitioner submitted her performance “goals” to Malloy on Novem-

ber 11, 1987. (804A; 1072A). After November 12, 1987, petitioner

did not return to work at Allegheny Hospital. (293-294A). She was

convinced that Malloy intended to discharge her and she could do

nothing to stop that result.

Petitioner used her accumulated vacation and sick leave from

November 20, 1987 through December 22, 1987. (294A). She was

later transferred to temporary, part-time status, effective December

22, 1987. (294A). Petitioner commenced working at Concordia Nurs-

ing Home. (295A). There, Ms. Clowes satisfactorily carried out her

job responsibilities which included in part the starting of patient IVs.

(294-295A).

Shortly thereafter, Ms. Clowes relocated to Texas and began

employment with another hospital. (310A). She was hired as the sole

night supervisor of the hospital and held that position up until and dur-

ing the time of trial. (311-315A).

Petitioner’s claims were tried before a jury. At the close of plain-

tiff’s case, the district court entered a directed verdict in favor of

respondent on petitioner's claim for the intentional infliction of emo-

tional distress. (456A). At the close of all the evidence, the district

court declined to entertain the pendent claim under the Pennsylvania

Human Relations Act. (950A).

On October 30, 1991, the jury returned a verdict in favor of peti-

tioner. (17-19a). The jury found that (1) Ms. Clowes was construc-

tively discharged from the employment of the respondent and (2)

“plaintiff's age was a determinative factor in [her] constructive dis-

charge”. (17-18a).

On November 8, 1991, respondent filed a motion seeking judgment

notwithstanding the verdict or, alternatively, for a new trial. The dis-

trict court denied both motions on the same day. (16a).

Respondent timely filed an appeal to the Third Circuit. Respondent

argued principally that there was insufficient evidence to support a

claim for constructive discharge as a matter of law and that the district

court’s order denying its motion for judgment notwithstanding the

verdict should be reversed.

On April 23, 1993, the Third Circuit issued an opinion, reversing

the jury verdict and granting judgment for respondent. (1a). The Third

Circuit held that whether a particular set of facts constituted a

constructive discharge “is a question of law and therefore this ques-

tion is subject to plenary review.” (4a). Based on a de novo review of

the evidence, the Circuit Court found that petitioner had fallen “well

short” of satisfying her burden of showing that “the conduct com-

plained of would have the foreseeable result that working conditions

would be so unpleasant or difficult that a reasonable person in the

employee’s shoes would resign.” (3-4a). The Third Circuit never

reached the issue of whether petitioner's discharge was due to age dis-

crimination.

On May 5, 1993, petitioner filed a timely petition seeking a rehear-

ing of the appeal pursuant to Fed. R. App. P. 40. The petition noted that

the Circuit Court had erroneously applied a “plenary” standard of

review to a factual finding made by the jury. Petitioner argued that

both of these inquiries were “heavily fact driven determinations.”

In apparent recognition of its error, and prior to a ruling on the peti-

tion for rehearing, the Third Circuit entered an order amending its

opinion. (7a). The Circuit Court attempted to correct its error by sub-

stituting a single paragraph. The amending order provided that:

Because this is an appeal from a judgment entered after trial,

we must view the historical facts in the light most favorable to

the judgment. See, e.g., Link v. Mercedes-Benz of North America,

Inc., 788 F.2d 918, 921 (3d Cir. 1986). Whether a reasonable

employee would resign when confronted with a particular set of

circumstances is not, however, a pure question of historical fact,

and the appropriate standard of review for such questions of rea-

sonableness is subject to dispute. See United States v. McKines,

933 F.2d 1412, 1424-26 (8th Cir. 1991) (en banc); id. at 1419-22

(Beam, J., dissenting). We need not resolve this question in the

present case. Even if subject to review only for clear error, the

district court’s holding that Clowes was constructively dis-

charged cannot be sustained.

(7-8a). The balance of the opinion—and its holding—remained

unchanged.

The petition for rehearing was thereafter denied by order of the

Third Circuit on June 16, 1993. (20a).

REASONS FOR GRANTING THE WRIT

Constructive discharge is a critical issue in employment discrimi-

nation law. Rather than simply firing an older worker, or a black or

female employee, many employers instead decide to make that

employee’s working conditions so oppressive and intolerable that the

employee simply quits. Such an employer can then argue—as Alle-

gheny Hospital has done successfully to date in this case—that the

court should never reach the issue of discrimination because the

employee was never discharged; he or she voluntarily “resigned”.

The constructive discharge issue has arisen repeatedly in employ-

ment discrimination cases.” It is a dispositive issue in many such

cases. And there is a continuing split among the Circuits as to the

2 E.g., Stephens v. The C.1.T. Group/Equip. Fin., Inc., 955 F.2d 1023 (Sth Cir.

1992); Acrey v. American Sheep Indus. Ass'n, 981 F.2d 1569 (10th Cir- 1992);

Stamey v. Southern Bell Tel. & Tel. Co., 859 F.2d 855 (11th Cir. 1988), cert. denied,

490 U.S. 1116 (1989); Cazzola v. Codman & Shurtleff, Inc., 751 F.2d 53 (1st Cir.

1984); Goss v. Exxon Office Sys. Co., 747 F.2d 885 (3d Cir. 1984); Pena v.

Brattleboro Retreat, 702 F.2d 322 (2d Cir. 1983).

proper standard of review to be applied to jury verdicts or trial court

findings of constructive discharge that this Court, we submit, should

resolve.

In its initial opinion, the Third Circuit openly held that it was apply-

ing ade novo standard of review to petitioner’s constructive discharge

claim. In its Order Amending Slip Opinion, filed after petitioner filed

her petition for rehearing, the Third Circuit ostensibly postponed for

another day the standard of review issue for constructive discharge

cases. In fact, however, the Third Circuit never changed its analyses

of petitioner’s claim and it indeed applied a de novo review to the

jury’s verdict in petitioner’s favor. Thus, the Third Circuit has now

apparently joined the Sixth Circuit as the only Circuits holding that

constructive discharge is a question of law, or at least a mixed question

of law and fact, subject to de novo review in the appellate courts.

Every other Circuit to consider the issue has held routinely that

constructive discharge is like any other factual finding, subject to the

clearly erroneous standard of review (if a court finding) or the judg-

ment as a matter of law standard of review (if a jury verdict).

This Court, we submit, should resolve this standard of review issue

now, before other Circuits compound the error of the Sixth and Third

Circuits and before other employment discrimination plaintiffs see

their hard-won trial court victories unfairly reversed simply because

an appellate court, reviewing a cold record, disagrees with a jury or

trial court’s verdict.

There was a clear credibility choice concerning the reasons for

Malloy’s actions. If Malloy’s testimony is not believed and Ms.

Clowes’ testimony is believed, the jury was free to find that Malloy’s

actions were intended to harass Ms. Clowes out of the workplace

because of her age and that Ms. Clowes was, therefore, constructively

discharged. It did so here. The Third Circuit’s description of the facts

can be explained only if it made exactly the opposite credibility find-

ings to those of the jury.

The Sixth and Third Circuits’ de novo review standard is flatly

inconsistent with this Court’s decision in Pullman-Standard v. Swint,

456 U.S. 273 (1982), and reflects a fundamental disregard for the

constitutionally-mandated deference to jury verdicts under the

Seventh Amendment. This Court should reject the de novo standard

of review for constructive discharge claims and restore the proper

appellate deference to jury verdicts and trial court findings.

I. THE DE NOVO STANDARD OF REVIEW APPLIED BY

THE COURT BELOW IS CONTRARY TO THE HOLD-

INGS OF EVERY CIRCUIT BUT THE SIXTH AND TO THE

PRECEDENTS OF THIS COURT.

in its initial decision, the Third Circuit held that it was applying a

de novo standard of review to Ms. Clowes’ constructive discharge

claim:

The ADEA prohibits, among other things, the “discharge” of a

covered individual “because of such individual’s age.” In this case,

Clowes’ ADEA claim and the judgment she won were predicated

on the assertion that she had been constructively discharged. “We

employ an objective test in determining whether an employee was

constructively discharged from employment: whether the conduct

complained of would have the foreseeable result that working

conditions would be so unpleasant or difficult that a reasonable per-

son in the employee’s shoes would resign.”

Whether a particular set of facts meets this standard is a question

of law and therefore this question is subject to plenary review.

3-4a (citations omitted; emphasis added).

In its Order Amending Slip Opinion, filed after Ms. Clowes filed

her petition for rehearing raising the standard of review issue, the

Third Circuit ostensibly corrected its standard of review error—or at

least postponed it for another day. Thus, the Third Circuit substituted

the following paragraph for the standard of review discussion in its

initial opinion:

Because this is an appeal from a judgment entered after trial, we

must view the historical facts in the light most favorable to the judg-

ment. Whether a reasonable employee would resign when con-

fronted with a particular set of circumstances is not, however, a

pure question of historical fact and the appropriate standard of

review for such questions of reasonableness is subject to dispute.

We need not resolve this question in the present case. Even if subject

to review only for clear error, the district court’s holding that

Clowes was constructively discharged cannot be sustained.

7-8a (citations omitted; emphasis added).

In fact, however, whatever lip service the Order Amending Slip

Opinion may have paid to the definition of the standard of review

issue, the Court below in fact applied a de novo standard of review to

the jury’s verdict in Ms. Clowes’ favor. The Third Circuit essentially

accepted as true Allegheny Hospital’s explanation that Malloy’s

excessive supervision was designed merely to maintain the profes-

sional standards of her IV team. 2-3a. The vital function of the jury

in judging credibility and weighing conflicting evidence was disre-

garded by the Circuit Court.

According to the Third Circuit, excessive supervision claims have

to be “critically examined so that the ADEA is not improperly used

as a means of thwarting an employer’s nondiscriminatory efforts to

insist on high standards.” Sa. But, of course, a properly instructed jury,

which heard all the witnesses and weighed their credibility, did

exactly that: the jury “critically examined” petitioner’s claims and

found that she was constructively discharged due to her age. The court

below simply substituted its judgment of the facts for the jury’s judg-

ment because it disagreed with the jury’s result.

Thus, whatever the Third Circuit said about its standard of review,

in fact the opinion below aligns the Third Circuit with the Sixth Cir-

cuit as the only circuits to apply a de novo standard of review to

constructive discharge claims. See Yates v. Avco. Corp., 819 F.2d 630,

636 (6th Cir. 1987 ) (“constructive discharge is, at least partially, a

question of law and must therefore be reviewed by this Court de

novo”); Wheeler v. Southland Corp., 875 F.2d 1246, 1249 (6th Cir.

1989) (same).

Every other Circuit to consider the issue has rejected the Third and

Sixth Circuits’ position and reviews constructive discharge claims as

questions of fact, subject to the clearly erroneous standard (if a court

finding) or the judgment as a matter of law standard (if a jury verdict).

E.g., Cortes v. Maxus Exploration Corp., 977 F.2d 195, 200 (Sth Cir.

1992) (determination that plaintiff was constructively discharged

reviewed as a finding of fact under the clearly erroneous rule);

E.E.O.C. v. Delight Wholesale Co., 973 F.2d 664, 669 (8th Cir. 1992)

(district court did not clearly err in finding that defendant deliberately

created an intolerable workplace with the intent to cause plaintiff's

resignation); Hirschfeld v. New Mexico Corrections Dep t., 916 F.2d

572, 580 (10th Cir. 1990) (constructive discharge is a fact question

subject to the clearly erroneous standard of review); Watson v. Nation-

wide Insurance Co., 823 F.2d 360, 362 (th Cir. 1987) (determination

of whether conditions were so intolerable and discriminatory as to jus-

tify a reasonable employee’s decision to resign is normally a factual

question left to the trier of fact); Wardwell v. School Bd., 786 F.2d

1554, 1557 (11th Cir. 1986) (the constructive discharge issue, being

a question of fact is subject to the clearly erroneous standard of

review); Bristow v. Daily Press, Inc., 770 F.2d 1251, 1252 (4th Cir.

1985), cert. denied, 475 U.S. 1082 (1986) (in reviewing the reversal

of a denial of a motion for judgment n.o.v., court recognized deference

due a jury finding of constructive discharge); Cozzola v. Codman &

Shurtleff, Inc., 751 F.2d 53, 56 (1st Cir. 1984) (abuse of discretion

standard applies to a denial of a motion for a new trial from a jury ver-

dict finding constructive discharge); Pena v. Brattleboro Retreat, 702

F.2d 322, 325 (2d Cir. 1983) (review of denial of a motion for judg-

ment n.0.v. requires court to determine whether evidence “reasonably

permits only a conclusion in the movants’ favor”).

Simply put, the Sixth and Third Circuits are wrong and this Court

should grant this petition to correct their error and establish once and

for all that jury verdicts in employment discrimination cases are

entitled to the same deference as any other jury verdict under Federal

Rule of Civil Procedure 50(a).

Indeed, the Sixth and Third Circuits’ error is exactly the same mis-

take this Court corrected in Pullman-Standard v. Swint, 456 U.S. 273

(1982). There, the Fifth Circuit had established a rule that questions

of discriminatory intent were “ultimate questions” and hence subject

to de novo review at the appellate level. Swint v. Pullman-Standard,

624 F.2d 525, 533 n.6 (Sth Cir. 1980). This Court flatly rejected that

approach, holding that discriminatory intent is no different than any

other finding-of fact for purposes of the proper appellate standard of

review:

[Discriminatory intent], as we see it, is a pure question of fact,

subject to Rule 52(a)’s clearly-erroneous standard. It is not a ques-

tion of law and not a mixed question of law and fact.

Pullman-Standard, supra, 456 U.S. at 288. See also St. Mary’s Honor

Center v. Hicks, US. , 113 S.Ct. 2742 (1993) (reaffirming

that discriminatory intent is a fact issue to be resolved by the finder

of fact).

A jury verdict or trial court finding that an employee plaintiff was

constructively discharged is no less a finding of fact than is a finding

of discriminatory intent. Both require the application of law to facts;

both require the resolution of different versions of the truth; both

require the weighing of the credibility of witnesses. If discriminatory

intent is a pure fact issue, then it necessarily follows that constructive

discharge is a fact issue also.

Constructive discharge is not a mixed question of law and fact, sub-

ject to de novo review in the appellate courts. In Pullman-Standard,

supra, this Court defined a mixed question of law and fact as one in

which

[t]he historical facts are admitted or established, the rule of law

is undisputed, and the issue is whether the facts satisfy the statutory

standard, or to put it another way, whether the rule of law as applied

to the established facts is or is not violated.

456 U.S. at 288 n.19.

Whatever else might be said about constructive discharge claims,

it is certainly the case that the historical facts are rarely, if ever, undis-

puted and their significance, in context, is never a matter of stipula-

tion.

By the same token, constructive discharge cases do not require

independent review by the appellate courts in order “to preserve the

precious liberties established and ordained by the constitution.” Bose

Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512 (1984)

(First Amendment requires de novo appellate review of defamation

claims). Constructive discharge cases are not among that small group

of actions where fundamental constitutional issues require heightened

appellate review. /d.

In short, the Sixth and Third Circuits are wrong in applying plenary

review to constructive discharge cases and this Court should grant this

peution and correct that error.

II. THE GUIDANCE OF THIS COURT IS NECESSARY TO

CURB THE DISTURBING WILLINGNESS OF CIRCUIT

COURTS—EXEMPLIFIED BY THE DECISION

BELOW—TO RE-EXAMINE JURY FINDINGS IN

VIOLATION OF THE SEVENTH AMENDMENT.

The Seventh Amendment requires that “no fact tried by jury shall

be otherwise re-examined in any Court of the United States, than

according to the rules of the common law.” As Justice Story long ago

explained,

The trial by jury is justly dear to the American people . . . . One

of the strongest objections originally taken against the constitution

of the United States was the want of an express provision securing

the right of trial by jury in civil cases. As soon as the constitution

was adopted, this right was secured by the seventh amendment of

the constitution proposed by congress. . . .

Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446 (1830).

This Court has always vigilantly protected the jury’s role as fact

finder and demanded that due deference be paid to that role by appe!-

late courts. As this Court has repeatedly held, an appellate court is jus-

tified in rejecting a jury’s finding only where there is a “complete

absence of probative facts” to support the jury’s conclusion. /nterna-

tional Terminal Operating Co. v. N.V. Nederl Amerik Stoomu Moats,

393 U.S. 74 (1968); Dennis v. Denver & Rio Grande Western Railroad

Co., 375 U.S. 208 (1963); Basham v. Pennsylvania Railroad Co., 372

U.S. 699 (1963); Herdman v. Pennsylvania Railroad Co., 352 U.S.

518 (1957). Indeed, this Court has even stated, in describing the defer-

ence due to a jury’s verdict, that “a measure of speculation and conjec-

ture is required on the part of those whose duty it is to settle the dispute

by choosing what seems to them to be the most reasonable infer-

ences.” Lavender v. Kurn, 327 U.S. 645, 653 (1946).

Unfortunately, as evidenced by the result in this case, in recent

years the Circuit Courts have shown a disturbing lack of deference to

jury verdicts and a willingness to reverse jury findings, particularly in

employment discrimination cases. A recent study of published federal

appellate opinions for the period October 1984 through October 1985

found that an astonishing 49% of all jury verdicts challenged due to

the insufficiency of the evidence were reversed. And the reversal rate

for discrimination cases where the jury found in favor of the plaintiff

ener

was an even higher 58.8%. Eric Schnapper, Judges Against Juries -

Appellate Review of Federal Civil Jury Verdicts, 1989 Wisc. L. Rev.

237, 246-50 (1989).

As Mr. Schnapper concludes, those statistics demonstrate that “left

to their own devices, a large number of appellate judges simply cannot

resist acting like superjurors, reviewing and revising civil verdicts to

assure the result is precisely the verdict they would have returned had

they been in the jury box.” /d. at 354.

This case is a paradigm example of that fallacy. A six-member jury,

after hearing all the evidence and weighing the credibility of all the

witnesses, held that Allegheny Hospital through Malloy’s excessive

supervision, demeaning criticism and other harassment of petitioner,

constructively discharged her. The Third Circuit did not hold that the

type of facts as proven by Ms. Clowes could never, as a matter of law,

constitute a constructive discharge. Rather, the Third Circuit held only

that Ms. Clowes’ claim had to be “critically examined”—and then

substituted its own judgment regarding the credibility of those facts

for that of the jury.

The Seventh Amendment does not allow for that kind of appellate

second-guessing of jury verdicts. This Court should grant this petition

and re-affirm the deference to which jury verdicts are most certainly

entitled.

CONCLUSION

For the reasons set forth above, petitioner Janet Clowes respect-

fully submits that the Court grant her Petition for Writ of Certiorari.

Respectfully submitted,

RIKER, DANZIG, SCHERER, HYLAND

& PERRETTI

Attorneys for Petitioner

Janet G. Clowes

By: —/s/_ ALANE. Kraus

ALAN E. KRrAus

Dated: September 14, 1993

APPENDIX

APPENDIX A

Filed April 23, 1993

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

JANET G. CLOWES,

Appellee

ALLEGHENY VALLEY HOSPITAL,

Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 89-01855)

Argued: December 3, 1992

Before: Scirica, ALITO, and Lewis, Circuit Judges

(Opinion Filed: April 23, 1993)

HELEN R. KOTLER, Esq., (Argued)

475 Union Trust Building

501 Grant Street,

Pittsburgh, PA 15219

JERE KRAKOFF, EsqQ..

Post Office Box 38034

Pittsburgh, PA 15238

Attorneys for Appellee

JOHN E. LYNCHESKI, EsQ., (Argued)

Robert S. Grigsby, Esq.

Jeffrey P. Bauman, Esq.,

Cohen & Grigsby, P.C.

2900 CNG Tower,

625 Liberty Avenue

Pittsburgh, PA 15222

Attorney for Appellant

OPINION OF THE COURT

ALITO, Circuit Judge:

Allegheny Valley Hospital appeals from a judgment awarded under

the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.,

Appendix A

based on the constructive discharge of a former employee. We hold

that the evidence at trial was insufficient to prove a constructive dis-

charge, and we therefore reverse the judgment of the district court.

Janet Clowes was employed as a nurse in full- or part-time positions

by Allegheny Valley Hospital for nearly 30 years. In March 1987,

Clowes, then 53 years old, requested and was granted a transfer to the

IV (intravenous) Team. Members of the IV Team were required to

insert and change IV’s, to make sure that IV’s were flowing properly,

and to document the procedures performed.

After Clowes’s transfer, her supervisor was Diana Bennett Malloy,

the IV Team’s 34-year-old head nurse. Friction between Malloy and

Clowes soon developed.

Clowes claimed that Malloy singled her out for especially close and

harsh supervision. In particular, Clowes asserted that Malloy unfairly

criticized her for ineptitude in starting IVs. According to Malloy,

Clowes too often had to make more than a single needle injection or

“*stick”’ in order to start an IV, but Clowes claimed that she was “‘not

doing any more sticks than anyone else”’ on the staff. Clowes also

alleged that Malloy followed her around the hospital and recorded the

number of ‘‘sticks”’ she made with each patient but that Malloy made

no effort to keep track of the number of “‘sticks” made by other nurses.

Indeed, Clowes asserted that Malloy remained in the hospital after

Clowes’s day shift ended in order to ‘‘check every one of [Clowes’s]

patients [to] see if she could find anything that [Clowes] did wrong.”

Clowes said that Malloy would write down everything that Clowes

did or said. In addition, Clowes claimed that Malloy spoke to her in

a ‘demeaning, condescending manner”’ different from that employed

with the rest of the staff and that Malloy criticized her sharply in the

presence of other nurses. Clowes also pointed to the fact that Malloy’s

written evaluations often assessed her as “fair” although she had

never before received an evaluation of less than “‘good.’’ Clowes

claimed that as a result of this treatment she began to suffer from

depression and related symptoms and required psychiatric and other

medical treatment.

The hospital painted a different picture of the reasons for the con-

flict between Malloy and Clowes. The hospital claimed that Clowes’s

performance on the job declined and that Malloy was concerned about

Appendix A

maintaining the professional standards of the 1V Team. The hospital

asserted that Clowes repeatedly failed to complete the required docu-

mentation on her patients, that she was disorganized and had difficulty

setting priorities, and that other nurses complained that she made too

many ‘“‘stick’’ attempts and did not attend to irritated catheter sites.

On November 5, 1987, Malloy and a Nursing Department supervi-

sor held a conference with Clowes and discussed her alleged deficien-

cies. Clowes was instructed to submit a list of written goals, and she

was also informed that her performance would be reviewed periodi-

cally and that any problems would be discussed. In addition, Malloy

told her that disciplinary action would be taken if she did not improve.

Shortly thereafter, Clowes submitted written goals, as well as a

response to Malloy’s criticisms. Clowes’s last day of work at the hos-

pital was November 12. Beginning on November 13, Clowes took

vacation and sick leave, and was later placed at her own request on

temporary part-time status due to medical reasons. At the end of

November, Clowes began working at a nursing home. In March 1988,

she submitted a grievance to the hospital, but it was rejected as

untimely.

In August 1989, Clowes commenced this action in the United

_ States District Court for the Western District of Pennsylvania. Count

1 of her complaint alleged that the Allegheny Valley Hospital had vio-

lated the ADEA by “‘forcing her to an involuntary retirement” based

on her age. The other two counts asserted pendent state claims that are

not involved in this appeal.

Clowes’s case went to trial before a jury, and the jury returned a ver-

dict in her favor. In response to special interrogatories, the jury found

that Clowes had been constructively discharged and that age had been

a determinative factor. The district court subsequently entered judg-

ment for Clowes and denied the hospital’s motion for judgment not-

withstanding the verdict or for a new trial. This appeal followed.

The ADEA prohibits, among other things, the “discharge” of a

covered individual ‘‘because of such individual’s age.” 29 U.S.C.

§ 623(1). In this case, Clowes’s ADEA claim and the judgment she

won were predicated on the assertion that she had been constructively

discharged. ‘‘We employ an objective test in determining whether an

employee was constructively discharged from employment: whether

es ttt—C(

Appendix A

‘the conduct complained of would have the foreseeable result that

working conditions would be so unpleasant or difficult that a reason-

able person in the employee’s shoes would resign.’ ’’ Gray v. York

Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir. 1992) (quoting Goss

v. Exxon Office Systems Co., 747 F.2d 885, 887-88 (3d Cir. 1984)).

Whether a particular set of facts meets this standard is a question

of law, and therefore this question is subject to plenary review. Leven-

dos v. Stern Entertainment, Inc., 909 F.2d 747, 749 (3d Cir. 1990).

However, because this is an appeal from a judgment entered after trial,

we must view the historical facts in the light most favorable to the

judgment. See, e.g., Link v. Mercedes-Benz of North America, Inc.,

788 F.2d 918, 921 (3d Cir. 1986). Applying these standards, we hold

that the evidence in this case fell well short of establishing a construc-

tive discharge.

We first note that Clowes cannot rely on many of the factors com-

monly cited by employees who claim to have been constructively dis-

charged. Clowes was never threatened with discharge; nor did her

employer ever urge or suggest that she resign or retire. Compare Spu-

lak v. K-Mart Corp., 894 F.2d 1150, 1154 (10th Cir. 1990); Levendos

v. Stern Entertainment, Inc., 860 F.2d 1227, 1228 (3d Cir. 1988)

(reversing summary judgment for employer). Similarly, Clowes’s

employer did not demote her! or reduce her pay or benefits.2 Clowes

was not involuntarily transferred to a less desirable position,’ and her

job responsibilities were not altered in any way.4 She was not even

| See. e.q., Shealy v. Winston, 929 F.2d 1009 (4th Cir. 1991); Huckley v. Hospital

Corp. of America, 758 F.2d 1525, 1530-31 (11th Cir. 1985). These cases and those

cited in footnotes three and five are cited solely to illustrate some of the factors on

which plaintiffs claiming constructive discharge have relied. We express no view

as to whether these decisions gave those factors the proper weight.

2 See, e.g., Berger v. Edgewater Steel Co.,911 F.2d 911, 923 (3d Cir. 1990), cert.

denied. 111 S. Ct. 1310 (1991).

3 See, e.g., Meyer v. Brown & Root Construction Co., 661 F.2d 369 (Sth Cir

1981); Muller V. U.S. Steel Corp., 509 F.2d 923 (10th Cir.), cert. denied, 423 U.S.

825 (1975).

4 See, e.g., Gray, 957 F.2d at 1082 (reporter removed from desirable beat; no

constructive discharge); Goss, 747 F.2d at 888-89 (sales representative removed

from prior territory; constructive discharge).

Appendix A

given unsatisfactory job evaluations but merely received ratings of

“fair.”

It is also highly significant that Clowes, prior to leaving her position

with the hospital, never requested to be transferred to another posi-

tion, never advised the hospital that she would feel compelled to leave

if changes regarding the manner in which she was being supervised

were not made, and did not even attempt to file a grievance until long

after she had stopped working at the hospital. As other courts of

appeals have noted, a reasonable employee will usually explore such

alternative avenues thoroughly before coming to the conclusion that

resignation is the only option.® Bozé v. Branstetter, 912 F.2d 801, 805

(Sth Cir. 1990); Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539

(11th Cir. 1987).7

Moreover, it is significant, in our view, that Clowes’s complaints

focused exclusively on Malloy’s allegedly overzealous supervision

of her work. Clowes has not brought to our attention a single case in

which aconstructive discharge has been found based solely upon such

supervision. While we do not hold that an employer’s imposition of

unreasonably exacting standards of job performance may never

amount to a constructive discharge, we are convinced that a construc-

tive discharge claim based solely on evidence of close supervision of

job performance must be critically examined so—that the ADEA is

not improperly used as a means of thwarting an employer's nondis-

criminatory efforts to insist on high standards.

In support of her claim of constructive discharge, Clowes relies

heavily on evidence regarding the impact that the events in question

5 See, e.g., Junior v. Texaco, Inc., 688 F.2d 377, 380 (Sth Cir. 1982).

able to show working conditions were so intolerable that a reasonable employee

would feel forced to resign without remaining on the job for the period necessary

to take those steps. In this case, however, the evidence is lacking in other respects

and the plaintiff's complaint focuses exclusively on the actions of one supervisor,

accordingly, we find it significant that the plaintiff did not even request a transfer

before deciding to resign.

7 In asomewhat similar vein, some courts have held that an employee must gen-

erally pursue litigation before quitting and claiming constructive discharge. See,

e.g., Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir. 1989); Bourque v.

Powell Elec. Mfg. Co., 617 F.2d 61, 65-66 (Sth Cir. 1980).

Appendix A

had on her. But as we have noted, “ ‘the law does not permit an

employee's subjective perceptions to govern a claim of constructive

discharge.’ ”’ Gray, 957 F.2d at 1083 (quoting Bristew v. Daily Press,

Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)).

We recognize that the jury, which heard testimony by both Clowes

and Malloy, presumably concluded that Malloy treated Clowes

unfairly and that her criticisms of Clowes were not entirely warranted.

We accept these apparent conclusions for purposes of this appeal, but

it is clear that unfair and unwarranted treatment is by no means the

same as constructive discharge.

In sum, we hold that the evidence in this case was insufficient to

show that Clowes was constructively discharged. The judgment of the

district court is therefore reversed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

Appendix A

For Publication May 27, 1993

UNITED STATES COURT OF APPEALS

FoR THE THIRD CIRCUIT

No. 92-3271

JANET G. CLOWES,

Appellee

ALLEGHENY VALLEY HOSPITAL,

Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 89-01855)

Argued: December 3, 1992

Before: Scirica, ALITO, and Lewis, Circuit Judges

Dated: May 27, 1993

ORDER AMENDING SLIP OPINION

IT IS HEREBY ORDERED that the slip opinion in the above case,

filed April 23, 1993, be amended as follows: Delete the paragraph that

begins at the bottom of page 4 and continues on page 5. In its place,

insert the following:

Because this is an appeal from a judgment entered after trial, we

must view the historical facts in the light most favorable to the judg-

ment. See, e.g., Link v. Mercedes-Benz of North America, Inc., 788

F.2d 918, 921 (3d Cir. 1986). Whether a reasonable employee would

resign when confronted with a particular set of circumstances is not,

however, a pure question of historical fact, and the appropriate stan-

dard of review for such questions of reasonableness is subject to dis-

pute. See United States v. McKines, 933 F.2d 1412, 1424-26 (8th Cir.

Appendix A

1991) (en bunc); id. at 1419-22 (Beam, J., dissenting). We need not

resolve this question in the present case. Even if subject to review only

for clear error, the district court’s holding that Clowes was construc-

tively discharged cannot be sustained.

BY THE COURT,

/s/ SAMUEL A. ALITO, JR

Samuel A. Alito, Jr.,

Circuit Judge

Dated: May 27, 1993

Appendix A

JANET G. CLOWES, APPELLEE

ALLEGHENY VALLEY HOSPITAL, APPELLANT

NO. 92-3271

UNITED STATES COURT OF APPEALS,

THIRD CIRCUIT.

ARGUED Dec. 3, 1992.

DECIDED APRIL 23, 1993

AS AMENDED May 27, 1993

Reported at 991 F.2d 1159 (3d Cir. 1993)

Helen R. Kotler (argued), Jere Krakoff, Pittsburgh, PA, for appel-

lee.

John E. Lyncheski (argued), Robert S. Grigsby, Jeffrey P. Bauman,

Cohen & Grigsby, P.C., Pittsburgh, PA, for appellant.

Before: Scirica, ALITO, and Lewis, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge:

Allegheny Valley Hospital appeals from a judgment awarded under

the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.,

based on the constructive discharge of a former employee. We hold

that the evidence at trial was insufficient to prove a constructive dis-

charge, and we therefore reverse the judgment of the district court.

Janet Clowes was employed as a nurse in full- or part-time positions

by Allegheny Valley Hospital for nearly 30 years. In March 1987,

10a

Appendix A

Clowes, then 53 years old, requested and was granted a transfer to the

IV (intravenous) Team. Members of the IV Team were required to

insert and change IV’s, to make sure that 1V’s were flowing properly,

and to document the procedures performed.

After Clowes’s transfer, her supervisor was Diana Bennett Malloy,

the IV Team’s 34-year-old head nurse. Friction between Malloy and

Clowes soon developed.

Clowes claimed that Malloy singled her out for especially close and

harsh supervision. In particular, Clowes asserted that Malloy unfairly

criticized her for ineptitude in starting IVs. According to Malloy,

Clowes too often had to make more than a single needle injection or

“stick” in order to start an [V, but Clowes claimed that she was “‘not

doing any more sticks than anyone else”’ on the staff. Clowes also

alleged that Malloy followed her around the hospital and recorded the

number of “‘sticks’’ she made with each patient but that Malloy made

no effort to keep track of the number of “sticks” made by other nurses.

Indeed, Clowes asserted that Malloy remained in the hospital after

Clowes’s day shift ended in order to “‘check every one of [Clowes’s]

patients [to] see if she could find anything that [Clowes] did wrong.”

Clowes said that Malloy would write down everything that Clowes

did or said. In addition, Clowes claimed that Malloy spoke to her in

a ‘demeaning, condescending manner” different from that employed

with the rest of the staff and that Malloy criticized her sharply in the

presence of other nurses. Clowes also pointed to the fact that Malloy’s

written evaluations often assessed her as “‘fair’’ although she had

never before received an evaluation of less than ‘“‘good.’’ Clowes

claimed that as a result of this treatment she began to suffer from

depression and related symptoms and required psychiatric and other

medical treatment.

The hospital painted a different picture of the reasons for the con-

flict between Malloy and Clowes. The hospital claimed that Clowes’s

performance on the job declined and that Malloy was concerned about

maintaining the professional standards of the [V Team. The hospital

asserted that Clowes repeatedly failed to complete the required docu-

mentation on her patients, that she was disorganized and had difficulty

setting priorities, and that other nurses complained that she made too

many “‘stick”’ attempts and did not attend to irritated catheter sites.

———

lla

Appendix A

On November 5, 1987, Malloy and a Nursing Department supervi-

sor held aconference with Clowes and discussed her alleged deficien-