Opposition Brief — Exxon Shipping Co. v. Ellenwood

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Suprems Court, U.S

FIL Ep

MA 2 (>) 109%

No. 92-1589

In The

Supreme Court of the United States

October Term, 1992

EXXON SHIPPING COMPANY,

Petitioner,

THEODORE M. ELLENWOOD and

ANN M. ELLENWOOD,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Peter BENNETT

(Counsel of Record)

FREDERICK B. FINBERG

HERBERT H. BENNETT AND Associates, P.A.

121 Middle Street

P.O. Box 7799

Portland, ME 04112-7799

(207) 773-4775

Attorneys for Respondents

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

OR CALL COLLECT (402) 342-2831

SS a ae —

SS Ts

QUESTIONS PRESENTED

1. Whether maritime law preempts the application of a

State fair employment handicap discrimination statute in an

appropriate case.

2. Whether section 503 of the Rehabilitation Act of

1973, 29 U.S.C. § 793(a), preempts the application of a state

fair employment handicap discrimination statute against a

federal contractor.

3. Whether maritime law recognizes a contract of

employment between an employee and his employer under the

facts of this case.

TABLE OF CONTENTS

Page

QUES TRI PUR ert es ov nk neice vee ieeee ears i

TABLE OF AUTHORITIES pile ase ees eee iv

OPRRONG SHIOS .. co eee 4

Pe veie hs Bots: | nen ee Aor Corn l

Ere et es aS. a l

Fi. Ts 66 00k 5 Ae eee l

eee ee 2

C. Tee District Court Scions... 6 ce sstaeseees 8

tee: By Be Beer ee 8

1. Lack of Maritime Preemption.............. 8

2. Lack of Rehabilitation Act Preemption ..... 9

3. Maritime Employment Contract ............ 9

. FUrier SUUCOIIIN. 0.0.04 ic ieee eee eee 10

REASONS FOR DENYING THE WRIT.............. 10

IT.

THE COURT DOES NOT NEED TO CREATE A

NEW MARITIME RULE EXCLUDING MAR-

ITIME EMPLOYERS FROM COMPLIANCE

WITH APPROPRIATE STATE DISCRIMINA-

CINE DEITIES hoes cc cece seteemkanaeeeeees

ABSOLUTELY NO CONFLICT EXISTS

BETWEEN DECISIONS OF THE FIRST AND

ELEVENTH CIRCUITS AND THUS, THE

PETITION SHOULD BE DENIED............

iii

TABLE OF CONTENTS — Continued

Page

Ill. THE MARITIME EMPLOYMENT CONTRACT

CLAIM IS WELL SUPPORTED IN THE LAW

ye |) 24

Ds ig eee 29

TABLE OF AUTHORITIES

Page

CASES

Aguilar v. Standard Oil Co. of New Jersey, 318 U.S.

Fee CR coi a ae e eke nie LEER EOE EAN Sees 27

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) .. 10, 20

American Export Lines, Inc. v. Alvez, 446 U.S. 274

1 PRE rer rer errr eng 30

Archawski v. Hanioti, 350 U.S. 532 (1956) ............ 25

Askew v. American Waterways Operators, Inc., 411

a ee COTE chs bews ie ebere uses 9, 10, 12, 17

Belanger v. Keydril Co., 596 F. Supp. 823 (E.D. La.

1984), aff’d., 772 F.2d 902 (Sth Cir. 1985).......... 17

Brown v. United Methodist Homes, 815 P.2d 72 (Kan.

SR cc cee ue SARE RW ON OC RES KC eee ee Ese rea eees 26

Bunn v. Global Marine, Inc., 428 F.2d 40 (Sth Cir

SN 4c ia ea Ma On aa ee aa ee ES Re ae 26

California Federal Savings & Loan Assn. v. Guerra,

a eh, ty Se eee 12, 14, 21

Cannon v. University of Chicago, 441 U.S. 677 (1979)

ee ee Pe ee SO Po Pe PTs se 20, 21, 22

Charleston & W.C.R. Co. v. Varnville Furniture Co.,

Bae A ee ik a es th ee a ee a 23

Cipollone v. Liggett Group, Inc., 60 U.S.L.W. 4703,

REZ SAR. Sew C7.w., FOR: 25, TOD vn howe cc ecsces 21

Colorado Anti-Discrimination Commission v. Conti-

nental Airlines, 372 U.S. 714 (1963)............ passim

Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367

bg | RG an + Aue mn heh PEP bas eee ew ang! ABA 27

Day and Zimmerman, Inc. v. Challoner, 423 U.S. 3

PRU acc e CEU RR USERS LRA On EER e ee he ee eee 17

TABLE OF AUTHORITIES — Continued

Page

Department of Labor v. Texas Industries, Inc., 47

F.E.P. Cases (BNA) 18 (Dept. of Labor 1988) ....... 15

English v. General Electric Company, 496 U.S. 72,

Pe a Cs 55.565 cae otis nes 14, 21, 23

Exxon Corporation and Exxon Shipping Company vy.

Sperry Marine, Inc., No. A91-526 Civ. (D. Alaska

ee ES US, Us fe as wc i oes wake aca dew ead 7

Farrell v. United States, 336 U.S. 511 (1949).......... 24

Ferguson v. Moore-McCormack Lines, Inc., 352 U.S.

Ee COUR pasa ken She ceadxk er ece trades ee eaw 26

Findley v. Red Top Super Markets, Inc., 188 F.2d 834

(Sth Cir.), cert. denied, 342 U.S. 870 (1951) ........ 27

Franklin v. Delta Airlines, Inc., 951 F.2d 359 (Table)

(ent 8 WESELAw) CO CW. 998) ook ccc 28

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)........ 24.

Heckler v. Turner, 470 U.S. 184 (1985)................ 21

Henderson v. Arundel Corp., 262 F. Supp. 152 (D.

Md. 1966), aff’d., 384 F.2d 998 (4th Cir. 1967) ..... 29

Hillsborough County v. Automated Medical Laborato-

65m, ChE, SFR Us Tat COP REN OO 21

Horne v. J.W. Gibson Well Service Co., 894 F.2d 1194

CRUE: Sak, | RO vias saccc cvcccwscanneeceses yee 28

Howard v. Uniroyal, Inc., 719 F.2d 1552 (11th Cir.

POOR wc hcdcewsaeeeeknbneheni‘cineee ee passim

TABLE OF AUTHORITIES ~ Continued

Page

Huron Portland Cement v. Detroit, 362 U.S. 440

ee oer en Sy otal oe Ces NREL A Ee SRST 13

Hust v. Moore-McCormack Lines, 328 U.S. 707

EE er ee net a ae ee ee 27

Indiana Civil Rights Comm'n v. American Commer-

cial Barge Line Co., 523 N.E. 2d 241 (Ind. App.

1988), cert. denied, 492 U.S. 920 (1989)............ 14

Just v. Chambers, 312 U.S. 383 (1941)............ 10, 11

Kinoshita v. Canadian Pacific Airlines, 724 P.2d 110

ee kg ces gue AR REL EN Cap eee OSS 28

Klaxon vy. Stentor Mfg., Co., 313 U.S. 487 (1941).. 14, 17

Kossick v. United Fruit Co., 365 U.S. 731 (1961).. passim

Kremer v. Chemical Construction Corp., 456 U.S. 461

ee ery CSS hoe Fie eRe MEe ERNE REE ES 21

Leurcicen ve. Lareen, 345 U.S. S71 CIOS). ovis cc cess 27

Lumbermens Mut. Cas. Co. v. Elbert, 348 U.S. 48

eee eeu ch ko 4.5 KHER EKACA DURES ROR OE RES 26

Maryland v. Louisiana, 451 U.S. 725 (1981)........... 21

Mason v. Southern New England Conference Ass'n of

Seventh Day Adventists of Town of South Lancaster,

oe fe Bes et Be A +: re er 18

Massachusetts Medical Society v. Dukakis, 815 F.2d

790 (1st Cir.), cert. denied, 484 U.S. 896 (1987)..... 24

McAllister v. United States, 348 U.S. 19 (1954)........ 25

Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct.

6 ir5 4066 6 6b 006 vk aad eOROU SORT EEN 18, 20

Vii

TABLE OF AUTHORITIES — Continued

Page

Moragne v. State Marine Lines, Inc., 398 U.S. 375

ff Re et parce eeg tn Peering par Rear h I re er 18, 30

Muncy v. Norfolk and Western Railway Company, 650

FP. Sump. G61 (6.D. W. Ve. T9GG) . 2. ccc ccscecccsvces 20

National Labor Relations Board v. Pittsburgh Steam-

ee ee ee ere rere ree ere 25

Premeaux v. Socony-Vacuum Oil Co., 144 Tex. 558,

oe Me ak S| | eee Te Terre Terre errs 25

Putnam v. Lower, 236 F.2d 561 (9th Cir. 1956) ........ 25

Raytheon Co. v. Fair Employment and Housing Com-

mission, 46 FEP Cases (BNA) 1089 (California

Superior Ct., Santa Barbara County, 1988), aff’d.,

212 Cal. App. 3d 1242 (Cal. App. 1989)............ 20

R.J. Reynolds Tobacco Co. v. Durham County, 479

RE Bk pee en eeer eT eran Po 21

Robertson v. Baldwin, 165 U.S. 275 (1897)............ 24

Romero v. International Operating Terminal Co., 358

ee ee ES ck oes bah was wate ee ea nee Ree Kee 12

Rozanski v. A-P-A Transport, Inc., 512 A.2d 335 (Me.

| A ee Se re cre rr Pere eee 15

Schwartz v. Texas, 344 U.S. 199 (1952) ............... 21

Smiley v. Kansas, 196 U.S. 447 (1905)................ 26

Smith v. Atlas Off-Shore Boat Serv., Inc., 653 F.2d

eg ge BO Se eee ree errr 27

Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917)... . 16

Stetson v. S/V Sun Cloud, 673 F. Supp. 1130 (D. Mass.

Pere ERA eL Sean PES y baie wae a

Vili

TABLE OF AUTHORITIES - Continued

. Page

Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980). ... 16, 23

Tate v. Browning Ferris, Inc., 833 P.2d 1218 (Okla.

cg ot TSS tan aah weit he Sie MEE HY ay ar rgd Aree 20

Tennant v. Peoria & P.U.R.Co., 321 U.S. 29 (1944) ....26

The Sea Gull, 21 F. Cas. 909 (No. 12,578) (C.C. Md.

ERR ALES pec RSaines, Be Ace stipes CNN Mees ig A eg ahha DREN 30

Tonseth v. Serwold, 157 P.2d 333 (Wash. 1945) ........ 24

Union Fish Company v. Erickson, 248 U.S. 308

PUES Snakes OS CNE CART Ce ENE ELAS EC ERE OC RSA Da Eee SS 24

U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351

SU W ERE Geeks phos oa CAT ROA eRe Rhea 24

United States v. United States Gypsum Co., 333 U.S.

Eo aa ene os pak ob eens ena eens Renker 25

Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348

sen SE EES SB ee Ch i ee ee ee Se od 12

STATUTES, RULES AND REGULATIONS

Age Discrimination in Employment Act, 29 U.S.C.

SE CPA bob ese seek een br ehh ndeere sabres eke. 17

Americans with Disabilities Act of 1990, 42 U.S.C.

AR RS eet ice as Rae Aes ete eaten passim

Longshoremen’s and Harbor Workers’ Compensation

fo ae ee ee 16

Rehabilitation Act of 1973, 29 U.S.C. § 793....... passim

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

De Se os eh casa cd ahd oes cake ee wee Cowan 22

United States Code, Title 28, Section 1333...1, 18, 27, 28, 29

TABLE OF AUTHORITIES —- Continued

Federal Rules of Civil Procedure

Local Rules of the United States Court of Appeals for

eR ee

Louisiana Age Discrimination in Employment Act,

SUEUR aes c sce rrrcnskee veer ewes ree aes

MISCELLANEOUS

Labor Relations Reporter: Individual Employment

Rights Manual (BNA) 505:5 (July 1992)..........

Restatement (Second) of Conflict of Laws § 6 (1971)....

Page

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents Theodore M. and Ann M. Ellenwood

respectfully request that this Court deny the petition for a writ

of certiorari seeking review of the opinion and judgment of

the Court of Appeals for the First Circuit, entered on January

14, 1993, and reported at 984 F.2d 1270 (Ist Cir. 1993) (App.

la-38a).!

OPINIONS BELOW

In addition to those opinions referenced by the Petitioner,

another pertinent opinion is the United States District Court

for the District of Maine’s Memorandum and Order on Defen-

dant’s Motion for Judgment as a Matter of Law or For New

Trial dated March 26, 1992, which is reproduced at la-1Sa.

STATUTES INVOLVED

The Savings to Suitors clause, 28 U.S.C. § 1333, pro-

vides, in relevant part:

The district courts shall have original jurisdiction, exclu-

sive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdiction,

Saving to suitors in all cases all other remedies to which they

are otherwise entitled. .. .

STATEMENT OF THE CASE

A. Introduction

This case concerns a maritime employee who was fired

from his job in the wake of the 1989 Exxon Valdez disaster

solely because in 1988 he had sought treatment for what he

believed to be alcoholism. Because petitioner’s statement of

1 References to “App. ___” are to the pages of the Appendix included within

the Petition for Writ of Certiorari. References to “___a” are to pages of the

Appendix included within this Respondents’ Brief in Opposition.

the case and the facts is significantly incomplete and inaccu-

rate (and argumentative), respondents provide the following

Statement.

B. Background

On April 7, 1970, Exxon Shipping Comyseay (or its

predecessor) (“Exxon”) hired Theodore M. Ellenwood

(“Ellenwood”) as a temporary employee to sail as a Third

Assistant Engineer (Plaintiffs’ Exhibit 57-A). The following

year, recognizing that it might lose a talented and valuable

employee, Exxon hired him permanently (Tr. Vol. 1:91). Once

it made him a regular employee, Exxon committed itself to

only terminate Ellenwood’s employment for just cause (Tr.

Vol. 1:93). Ellenwood quickly became a Chief Engineer, the

highest ranking shipboard engineer and the top rung of Ellen-

wood’s intended career ladder (Tr. Vol. 1:92; Plaintiffs’

Exhibit 57-E).

In the late 1970's and early 1980’s, Exxon sought to rid

itself of Ellenwood’s union. Once Exxon accomplished this

task, Mr. Schwartz, a senior official of Exxon, wrote Ellen-

wood a letter on behalf of the Company which expressly

guaranteed that even without the union, Exxon would con-

tinue to respect their collective bargaining agreement as it

applied to Ellenwood and that Ellenwood’s working condi-

tions would remain the same (Tr. Vol. 1:94; II:21). Conse-

quently, Ellenwood’s employment continued to be terminable

only for “just cause” as a matter of contract, and, as one

would logically expect, he relied on his employer’s letter and

representations to this effect (Tr. Vol. 1:94). Since sending

Ellenwood the Schwartz letter, Exxon has never told him that

he was employed on any basis other than a contract termin-

able for just cause and certainly never at will (Tr. Vol. 1:94).

Ellenwood and Exxon both expected, encouraged and planned

for him to work until January 2011 (Tr. Vol. 1:95). Thus,

Ellenwood and Exxon had an express contract of employment

for a specific limited duration terminable only for just cause.

Amongst other evidence and arguments, Ellenwood contended

at trial and the jury could find from the evidence that Exxon’s

termination of his employment breached their contract.

In 1984, Exxon’s Board of Directors adopted and for-

mally published a policy on alcoholism (Plaintiffs’ Exhibits 1,

11). This Directors’ policy was a continuation of Exxon

Corporation corporate policy established during the 1970's.

Under the Board of Directors’ policy, if an employee volun-

tarily sought alcohol rehabilitation, his “job security” and

“future career Opportunities” would never be “jeopardized”

(Tr. Vol. 1:108). Exxon testified that the “essence” of that

policy from the 1970’s continued beyond the time of Ellen-

wood’s removal from his ship (April 13, 1989) (Tr. Vol.

VI:128).

Thus, this Board of Directors’ policy remained in effect

during the time period relevant to this case. In 1988, when he

entered alcohol rehabilitation at Mercy Hospital in Portland,

Maine, Ellenwood “absolutely” believed this Directors’ pol-

icy applied to him (Tr. Vol. 1:108, 111, 112, 114). Ellenwood

had many reasons for his sincerely held belief including, a)

seeing other employees rely upon the policy and thus having

their job security and career opportunities protected by it (Tr.

Vol. 1:108); b) being encouraged to rely on the policy as

though it were “God’s word” (Tr. Vol. 1:108); c) being

directed by Exxon to encourage other employees to take

advantage of the policy in his role as an Exxon manager; d)

there being no other Board of Directors’ policy on the sub-

ject; and e) believing the Company’s signed statements and

commitments made to Ellenwood in their annual Business

Ethics policy dealings (Tr. Vol. I:111).

At the relevant times, Exxon never replaced nor super-

seded the 1984 Board of Directors’ Policy (Tr. Vol. V:169;

1:109, 110, 112, 114). In fact, when Ellenwood worked tem-

porarily in Exxon’s headquarters during June and July 1989,

the Board of Directors’ Policy was openly and readily at

employees’ fingertips (Tr. Vol. 1:108; VI:141).

In addition, Exxon management issued other letters and

policies, none of which were communicated as coming from

the Board of Directors and none of which were intended to

modify, replace or displace the 1984 Board of Directors’

Policy (Tr. Vol. 1:108-112). For example, in 1987, Exxon’s

President issued his own policy statement about substance

abuse (Plaintiffs’ Exhibit 2). Ellenwood learned about this

statement during a twenty minute presentation to fleet officers

(Tr. Vol. 1:109-110, 114). After the two Human Resource

Managers? read the letter, the attendees became very sus-

picious and began to make remarks (Tr. Vol. I:110). In

response, the Managers stated: “this isn’t intended to do

anything, no one will get hurt... . (N)o one will get hurt as a

result of this letter.” (Tr. Vol. 1:110).3

Exxon also proudly promulgated a very important Busi-

ness Ethics policy signed by the President of the Company “to

reemphasize Exxon’s commitment to ethical and honorable

conduct in all aspects of (its) business and the responsibilities

of every individual to respect the commitment.” (Plaintiffs’

Exhibit 9, 9A) (emphasis supplied). Every December, as a

condition of employment, Exxon required Ellenwood (and all

other employees) to sign an agreement to be bound by that

policy (Tr. Vol. 1:110).

When Ellenwood entered Mercy Hospital in March 1988,

he expressly relied upon these various contracts, representa-

tions, letters, statements and policies that his job and career

as Chief Engineer would not be jeopardized merely because

he sought treatment for alcoholism (and so long as he was

successful in his treatment (and that none of this would ever

constitute just cause for taking his job and career from him))

(Tr. Vol. I:111, 112, 114, 120). Otherwise, he would have

attended Mercy Hospital’s 28 day treatment program at a time

when it would not have interfered with his 60 day on — 60 day

off work schedule and thus when Exxon would never have

known about it (Tr. Vol. I:116).

Ellenwood’s rehabilitation efforts were totally success-

ful. In Exxon’s own words, Ellenwood “made the contract

2 Including Daniel Paul, Exxon’s Secretary (Tr. Vol. V:167).

3 Even if it did apply, the jury easily could have found from the evidence that

it gave Ellenwood contractual and estoppel rights which Exxon nonetheless violated

in this case.

with the Company” and returned to work on May 2, 1988 (Tr.

Vol. V:22).

At the relevant times,* Ellenwood sailed as one of two Chief

Engineers aboard the Exxon Wilmington. The Wilmington sailed

along the coast, between three ports in New Jersey and Baton

Rouge, Louisiana (and not on the high seas despite petitioner’s

suggestion to that effect) (App. 42a, n.S). The Wilmington’s perfor-

mance won it many awards for 1988 (Plaintiffs’ Exhibits 14, 18,66;

Tr. Vol. V:151-152; X1:49-51).

On March 24, 1989, the Exxon Valdez crashed in Alaskan

waters. The public began cutting up their Exxon credit cards

(Tr. Vol. VIII:148). The media associated the crash with

alcohol. Exxon had a public relations crisis on its hands.

Ellenwood was aboard the Exxon Wilmington at the time of

the Valdez crash (Tr. Vol. [:135).

On or about August 4, 1989, Human Resources Manager

Paul officially notified Ellenwood that he would never again

sail as an Exxon Chief Engineer (Plaintiffs’ Exhibit 16).°

Exxon’s only reason was Ellenwood’s participation in an

alcohol rehabilitation program some seventeen months before

(Tr. Vol. V:181-183).© Exxon’s motivation was purely finan-

cial (Tr. Vol. V:170; VI:139; VII:148). Admittedly, the Com-

pany had no knowledge of the nature of Ellenwood’s problem,

only the fact that he had sought treatment. Also, it is undis-

puted that Ellenwood never had an issue with alcohol at or

4 1988-1989.

5 Recognizing its contractual obligation to him, Exxon admittedly considered

and rejected exempting or grandfathering Ellenwood from its new policy. Exxon

decided that it could not take this minuscule risk on the basis of business judgment

(and nothing more specific nor articulable than that), even though, under Exxon’s

1989 policy and U.S. Coast Guard regulations, Ellenwood would have been subject

to periodic and random drug and alcohol testing (Tr. Vol. VI:145; V:178-180,

202-203). In addition, Exxon’s decision had actually been made in April 1989 but

the Company hedged and kept it from Ellenwood until the last possible moment (Tr.

Vol. VI:133-135; V:183).

posted on-board ship (Tr. Voi. VI:147). Compare, Stetson v. S/V Sun Cloud, 673 F.

Supp. 1130, 1135-1136 (D. Mass. 1987).

eae

near the workplace (Plaintiffs’ Exhibit 5; Tr. Vol. 1V:191). In

fact, Exxon’s nationally acclaimed expert opined that Ellen-

wood has never been an alcoholic (Tr. Vol. V:133). Nor did he

find any evidence that Ellenwood had a substance abuse

problem as defined in Exxon’s September 1, 1989 policy (Tr.

Vol. V:135).

Ellenwood filed Rehabilitation Act charges with the

Office of Federal Contract Compliance Programs in Septem-

ber 1989 (Tr. Vol. VI:106-107). This suit, alleging unrelated

causes of action, followed in March 1990. Contrary to what

Exxon tells the Court, the lawsuit was not filed simul!

taneously with the OFCCP complaint. .

Exxon breached its contract with Ellenwood based upon

what if termed a change in company policy. The “policy”

disqualified for life any employee who had ever (even 40

years ago) been treated for alcoholism from sailing as a Chief

Engineer (Tr. Vol. 11:60; V:179). To be affected, the employee

did not have to have ever been an alcoholic, it only mattered

that the employee sought treatment for alcoholism at some

point in his life (Tr. Vol. VII:190; V:181).7 It also did not

matter what contractual arrangements existed between Exxon

and the employee. Exxon knew it would be challenged in

legal proceedings and calculated that it would take this risk

(Tr. Vol. I1I1:77; V:200; VI:150-151). Also, to the extent it is

even relevant, while the policy pegged the Chief Engineer as

a “designated” safety sensitive position, Exxon never proved

why the position was safety sensitive nor that the positions

were narrowly defined, and, furthermore, the jury was free to

disregard any such evidence (Tr. Vol. I1V:93; V:171, 175-180).

Notably, the Wilmington’s engine room can run itself for

7 Furthermore, this draconian policy required employees to disclose in writ-

ing whether they had ever attended an Alcoholics Anonymous meeting (Tr. Vol.

I1I:174, 182; VOI:190, 191; Defendant’s Exhibit 66). The policy states that if one

has ever attended such a meeting, he is deemed to have a problem with alcohol, by

definition.

fifteen hours per day (Tr. Vol. 1V:142). Moreover, Exxon’s

policy actions were not required by U.S. Coast Guard regula-

tions or other law (Tr. Vol. II:79; V:182).8§

The irony of this “policy” change is that it was really

aimed just at Ellenwood. Of Exxon’s six hundred Gulf Coast

fleet employees, Ellenwood was the only one impacted (Tr.

Vol. V:153; [X:9). There were four others elsewhere in the

Company, however it is unknown whether any had the same

employment contract as Ellenwood (Tr. Vol. V:180).

Finally, contrary to Exxon’s fatuous suggestion in its

petition, Ellenwood was not “reassigned;” rather, at the elev-

enth hour, Exxon offered him two demotions intended to

humiliate him and force him out of the company. Plaintiffs

proved and the jury clearly found these offers to be demo-

tions.

At trial, Exxon claimed to have searched the world,

considering more than 20,000 positions as possible alternative

jobs for Ellenwood (Tr. Vol. V:193-196). Despite its world-

wide search, Exxon only made the first offer in November

1990, some nineteen months after removing him from his

Chief Engineer’s job (and during the pendency of this law-

suit) (Joint Exhibit 53). Exxon offered to demote Ellenwood

to First Assistant Engineer, a position which Exxon admitted

was the next best job (to Chief Engineer) for which Ellen-

wood was qualified (Tr. Vol. I11:82-83; V:196). Exxon’s offer

was based upon a previously required contingency that Ellen-

wood pass a psychiatric examination (which he did the pre-

vious summer) (Tr. Vol. I1:75). Also, even the demotion had

limits on it. As Chief Engineer was a “designated” position,

had Ellenwood agreed to accept this demotion, Exxon refused

8 This whole charade was a public relations ploy. The Company realized that

the Valdez crash was not caused by the alleged use of alcohol (Tr. Vol. V:170;

VI1:138-139; X:171). The Court should take judicial notice that the Company’s

position in pleadings subject to Fed. R. Civ. P. 11 has been that the crash was caused

by a defective navigational device. See, Exxon Corporation and Exxon Shipping

Company v. Sperry Marine, Inc., No. A91-526 Civ. (D. Alaska filed October 29,

1991).

in perpetuity to consider promoting Ellenwood to Chief Engi-

neer or even to let him serve as Chief in a temporary, step-up

capacity (Tr. Vol. V:197). Also, Ellenwood believed that he

would have to abandon this lawsuit in order to accept either

this or the following demotion (Tr. Vol. II:173, 175; III:S4).

The second, more drastic demotion was to Encon Engi-

neer, a position which Ellenwood was responsible for creating

when he worked as an Exxon Port Engineer (Tr. Vol. 11:85;

1X:47). This position was just a glorified data entry clerk’s

position in a “career graveyard” (Tr. Vol. 11:85-86, 180;

I11:54-55). Furthermore, the job was a lower-paying desk job

without a five year salary guarantee (Joint Exhibit 53; Tr. Vol.

11:85; V:197-199). Also, Ellenwood’s career was at sea which

is where his superior, Fleet Manager Koops, found him best

suited to work before any of this happened (Tr. Vol. 1X:42).

Plaintiffs proved and the jury clearly found both positions to

be demotions for these and many other reasons (Tr. Vol.

V1I:132).

C. The District Court Decisions

The district court submitted Ellenwood’s breach of con-

tract and estoppel claims to the jury which considered the

evidence and returned a verdict in Ellenwood’s favor. The

evidence was such however that neither claim was necessarily

based upon Exxon’s 1987 policy statement. Exxon’s biased

statement to that effect is purely editorial. Further, the district

court labeled Exxon’s argument that the Rehabilitation Act

preempted Ellenwood’s contract claim as “clear nonsense”

(App. 41a.). In its post-trial rulings, the district court again

had an opportunity to address and reject these contract argu-

ments (11la-12a).

D. The First Circuit Decision

1. Lack of Maritime Preemption

The First Circuit appropriately held that courts may

apply state employment discrimination statutes in appropriate

maritime cases. The First Circuit followed the decisions of

this Court in holding that “courts in admiralty cases may

reach beyond maritime precedents and apply state laws

‘absent a clear conflict with the federal [maritime] law,’ ”

(App. 16a) quoting, Askew v. American Waterways Operators,

Inc., 411 U.S. 325, 341 (1973). The First Circuit went on to

State:

we have been shown nothing in substantive mar-

itime law that is even potentially at odds with state

human rights statutes such as those underlying

Count IV of Ellenwood’s complaint. .. . We find no

indications that the absence of substantive maritime

law governing issues concerning individuals with

handicaps reflects a federal interest in protecting

maritime employers from such obligations. (App.

18a).

2. Lack of Rehabilitation Act Preemption

The First Circuit engaged in a substantial and detailed

analysis of Exxon’s argument that section 503 of the Reha-

bilitation Act of 1973, 29 U.S.C. § 793, preempts Ellenwood’s

State law handicap discrimination claim and concluded that

Exxon’s argument is patently baseless (App. 4a-14a). The

First Circuit thoroughly distinguished Howard v. Uniroyal,

Inc., 719 F.2d 1552 (11th Cir. 1983) which was a case of

limited holding and which addressed the use of state law to

circumvent section 503’s lack of a private cause of action.

3. Maritime Employment Contract

Calling it an “obvious fact”, the First Circuit agreed with

the district court that “a maritime employer may make a

contractual agreement with, or an enforceable promise to, its

employees ...” and that “(t)he jury found that the require-

ments for establishing a binding obligation were met.” (App.

21a). The First Circuit went on and merely held that Exxon

cannot avoid this “self imposed-obligation.” Jd. To the extent

it is relevant, the jury did not necessarily even base its

conclusion on the policy statement upon which Exxon has

selectively focused. In fact, as described supra, the jury heard

a great deal of evidence upon which it could have based its

a a

verdict without even considering Exxon’s chosen “policy”

statement. Exxon’s real complaint is that the jury refused to

credit its evidence and arguments over respondents’. Further-

more, this decision is not a “departure” from the employment

at will doctrine, which, contrary to Exxon’s assertion, is not a

“long-established maritime principle . .. ” and clearly has

nothing to do with this case (Petition, p. 8).

E. Further Proceedings

Exxon filed a Petition for Rehearing and Suggestion for

Rehearing En Banc on January 28, 1993. The First Circuit

denied Exxon’s request on February 23, 1993.

REASONS FOR DENYING THE WRIT

The following reasons justify why the Court should deny

Exxon’s petition for a writ of certiorari.

First, the Court has already held that state and federal

governments may jointly regulate issues that are both mar-

itime and local. Askew v. American Waterways Operators,

Inc., 411 U.S. 325; Just v. Chambers, 312 U.S. 383 (1941).

Furthermore, the Court has held that states do have a strong

local interest in prohibiting employment discrimination and

therefore, federal preemption is not warranted. Colorado

Anti-Discrimination Commission v. Continental Airlines, Inc.,

372 U.S. 714 (1963). There is no need for this Court to

formulate a new maritime rule that shields employers

involved in admiralty from complying with those state anti-

discrimination laws which appropriately apply to their con-

duct under traditional and time honored choice of law con-

cepts.

Second, no conflict exists between this case and the

decision of the Eleventh Circuit in Howard v. Uniroyal, Inc.,

supra. The two cases address unrelated and entirely different

subjects. This case in fact has nothing to do with the Reha-

bilitation Act or its enforcement. Moreover in the realm of

employment discrimination statutes, remedies overlap and do

not preempt each other. Alexander v. Gardner-Denver Co.,

415 U.S. 36, 47 (1974). No evidence exists that Congress

intended to insulate those employers fortuitous enough to

hold a federal contract of $2,500 or more from unrelated

obligations under state handicap discrimination law.

Third, the contract claim is fact intensive and hardly

raises an important question of federal law sufficient to trig-

ger this Court’s review. The overwhelming evidence clearly

demonstrates that Exxon and Ellenwood entered into a bind-

ing agreement which Exxon breached in the wake of the

Valdez. As does every jurisdiction in this country, maritime

law recognizes and enforces employment contracts such as

the one which the jury found from the facts in this case.

Kossick v. United Fruit Co., 365 U.S. 731, 741 (1961).

Finally, this is not an employment at will case and Exxon’s

argument about a broad impact on the maritime industry is

wholly imaginary.

I. THE COURT DOES NOT NEED TO CREATE A NEW

MARITIME RULE EXCLUDING MARITIME

EMPLOYERS FROM COMPLIANCE WITH APPRO-

PRIATE STATE DISCRIMINATION STATUTES.

The First Circuit’s recognition of Ellenwood’s right to

pursue a Claim based on state discrimination statutes is con-

sistent with the precedent of the Court. The review of the

First Circuit’s decision by this Court is therefore not needed.

Exxon essentially argues that this Court should fashion a new

admiralty rule prohibiting a state government from protecting

its citizens from employment discrimination. Exxon claims

that such a maritime rule is needed to protect the uniformity

of maritime law. Exxon’s Petition is in reality a request that

this Court extend admiralty’s interest in uniformity leagues

beyond that established by its precedents.

The Court has long recognized that states play a signifi-

cant role in jointly regulating matters that have both a local

interest and also impact maritime issues. In Just v. Chambers,

the Court stated:

it is not a principle of our maritime law that a court

of admiralty must invariably refuse to recognize

and enforce a liability which the State has estab-

lished in dealing with a maritime subject.

Id., 312 U.S. at 387, 388. Subsequently, in Romero v. Interna-

tional Operating Terminal Co., 358 U.S. 354 (1959), the

Court reiterated that:

It is true that state law must yield to the needs of a

uniform federal maritime law when this Court finds

inroads on a harmonious system. But this limitation

still leaves the States a wide scope. . . . Maritime

law is not a monistic system. The State and Federal

Governments jointly exert regulatory powers today

as they have played joint roles in the development

of maritime law throughout our history.

Id., 358 U.S. at 373, 374. In Askew v. American Waterways

Operators, Inc., the Court once again reaffirmed that both

state and federal governments may regulate matters that

impact maritime law.

While Congress has extended admiralty jurisdiction

beyond the boundaries contemplated by the

Framers, it hardly follows from the constitutionality

of the extension that we must sanctify the federal

courts with exclusive jurisdiction to the exclusion

of powers traditionally within the competence of

the States... . Even though Congress has acted in

the admiralty area, state regulation is permissible,

absent a clear conflict with the federal law.

Id., 411 U.S. at 341. The power to eradicate American work-

places of employment discrimination has traditionally been

within the competence of the states. California Federal Sav-

ings & Loan Assn. v. Guerra, 479 U.S. 272, 282-83 (1987).

In Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S.

310, 314-16 (1955), the Court succinctly set out the criteria

used to evaluate whether maritime law preempts a State or

local law. The first step is to determine whether the state or

local law conflicts with any federal statute. If there is no

conflict, then the Court must determine if there is “a judi-

cially established federal admiralty rule governing” this issue

and if there is no rule, then whether the Court should fashion

one. /d.

State employment discrimination statutes do not conflict

with any federal statute nor with any admiralty rule. More-

over, there is no pressing need for this Court to establish a

new admiralty rule that will exclude the states from prohibit-

ing employment discrimination.

Exxon cites Kossick v. United Fruit Co., 365 U.S. 731, to

support its contention that the federal interest in a uniform set

of laws for maritime law dominates to the exclusion of the

focal interests of the individual states in this matter. Exxon’s

citation to this case to support its contention that states are

not able to prohibit employment discrimination when such

discrimination touches maritime interests is far-fetched and

off the mark; moreover, the Kossick Court’s decision actually

resolved the extent to which states may regulate employment

related issues when they impact maritime interests. Thus, the

issues which Exxon has presented in its petition are not issues

which this Court needs to address again.

In Kossick v. United Fruit Co., the Court held that New

York’s statute of frauds was preempted by maritime law.

However, the Court held that the statute of frauds was pre-

empted only because maritime law had a contradictory princi-

ple addressing that particular issue. In the case at hand, no

such contradictory maritime law principle exists.

Furthermore, the Kossick Court pointed to several con-

siderations that led it to favor preemption of New York’s

Statute of Frauds. The first consideration was that the dispute

involved the enforcement of a contract “and therefore with

obligations, by hypothesis, voluntarily undertaken, and not, as

in the case of tort liability or public regulations, obligations

imposed simply by virtue of the authority of the State or

Federal Government.” /d., 365 U.S. at 741.

Second, the Kossick Court found that the contract under

review was not “peculiarly a matter of state and local con-

cern,” /d., quoting, Huron Portland Cement v. Detroit, 362

U.S. 440 (1960). Finally, the Kossick Court held that the

application of New York law would result in the invalidation

of a contract recognized in admiralty and would therefore be

more than just a supplementation of rights available in admi-

ralty. In fact, application of New York law would deny other-

wise available rights to a maritime employee.

In response to the Kossick Court’s first consideration,

Ellenwood’s state discrimination claims do not involve? the

enforcement of a maritime contract. Rather, this Court is

dealing with state regulations prohibiting employment dis-

crimination. This favors application of state employment anti-

discrimination law. Kossick, 365 U.S. at 741.'°

The states also have a strong local concern in prohibiting

discrimination in employment and Congress has explicitly

recognized this local concern. Guerra, 479 U.S. at 282-283.

In passing the Americans with Disabilities Act of 1990, 42

U.S.C. § 12101 et seq. (“A.D.A.”), Congress made it clear

that nothing in that Act should invalidate or limit in any way

any state law that provides remedies, rights and procedures

that allow greater or equal protection to individuals with

disabilities. 42 U.S.C. § 12202(b). Thus, Congress has recog-

nized that states do indeed have a strong local interest in

protecting the rights of individuals with disabilities or those

who are perceived to have disabilities. Cf, English v. General

Electric Company, 496 U.S. 72, 110 S. Ct. 2270, 2279-81

(1990).

9 Although Ellenwood has asserted a claim under the discrimination statutes

of Maine, New Jersey and Texas, the parties recognize that only the statute of one of

the three states will apply in this case. The selection of the appropriate state will be

resolved by the choice of law rules articulated in Klaxon v. Stentor Mfg. Co., 313

U.S. 487 (1941) (holding that the state whose law will apply is the state whose laws

would govern according to the valid choice of law rules of the forum state). Thus,

Exxon need not worry about the application of the laws of the 50 states but only

with the laws of those states where Exxon chooses to do enough business such that

Exxon can fairly and equitably be held to be answerable to those states’ laws. This

standard is no different than those applied to any other multi-state corporation.

10 Furthermore, Exxon’s reliance on the dicta found in /ndiana Civil Rights

Comm'n v. American Commercial Barge Line Co., 523 N.E. 2d 241 (Ind. App.

1988), cert. denied, 492 U.S. 920 (1989), for the proposition that the state discrimi-

nation laws in the case at hand will intrude on the maritime doctrine of seaworthi-

ness is also misplaced. By the admission of Exxon’s expert, the issue in this case is

a perceived disability rather than an actual disability (Tr. Vol. V:133). A perceived

disability by definition cannot implicate seaworthiness and thus, petitioner's argu-

ment has no applicability to this case. Cf, Continental Airlines, 372 U.S. at 722.

The Court has also recognized the strong local nature of

the states’ interest in prohibiting employment discrimination.

For example, in Colorado Anti-Discrimination Commission v.

Continental Airlines, 372 U.S. 714 (1963), the Court consid-

ered whether Colorado’s requirement that employers refrain

from racial discrimination unduly interfered with interstate

commerce and specifically with the supposed need of an

airline to be subjected to only federal anti-discrimination

laws. In that decision the Court stated:

Not only is the hiring within a State of an

employee, even for an interstate job, a much more

localized matter than the transporting of passengers

from State to State but more significantly the threat

of diverse and conflicting regulation of hiring prac-

tices is virtually nonexistent.

It is, of course, possible that States could impose

such onerous, harassing, and conflicting conditions

On an interstate carrier’s hiring of employees that

the burden would hamper the carrier’s satisfactory

performance of its functions. But that is not this

case.

Id., 372 U.S. at 722. Likewise, the state regulations which

would apply in this case do not “burden” petitioner to such an

extent that it cannot satisfactorily perform its functions. First,

there is no conflict in the manner the various state discrimina-

tion laws treat those perceived to be recovered alcoholics.

Second, Exxon complains that it should only be burdened

with complying with the Rehabilitation Act of 1973 (and now

the A.D.A.) (which incorporates state law) and no more. To

require more, Exxon complains, would unduly jeopardize the

uniformity of maritime law. This reasoning does not hold up

under closer scrutiny. In interpreting Section 503, and now

the A.D.A., state law has been consistently relied upon in

order to determine the extent of an employer’s obligations

under the federal laws. See, e.g., Department of Labor v.

Texas Industries, Inc., 47 F.E.P. Cases (BNA) 18, 27 (Dept. of

Labor 1988), citing, Rozanski v. A-P-A Transport, Inc., 512

A.2d 335 (Me. 1986). Since state handicap discrimination

laws already play a large role in determining the extent of

Exxon’s obligations under Section 503, the requirement that

Exxon comply with certain state discrimination laws places

no heavier a burden on it than it already faces under federal

law. Therefore, state discrimination laws do not place

“onerous, harassing and conflicting conditions” on Exxon and

therefore do not unduly impact the “harmonious and uniform”

characteristic of admiralty to which Exxon clings so dearly.

Colorado Anti-Discrimination Commission, 372 U.S. at 722.

Finally, unlike in Kossick (where the Court found that

the validation of oral contracts is peculiar to admiralty law),

there is no rule regarding discrimination peculiar to admiralty

that would warrant the invalidation of state discrimination

laws as they apply to Exxon. In the employment law context,

“maritime rights” have traditionally been supplemented with

those provided by the states. Sun Ship, Inc. v. Pennsylvania,

447 U.S. 715 (1980). In holding that states may apply their

workers’ compensation laws to land based injuries that also

fall within the coverage of the Longshoremen’s and Harbor

Workers’ Compensation Act, 33 U.S.C. § 901 ef seq. the

Court stated:

To be sure, if state remedial schemes are more

generous than federal law, concurrent jurisdiction

could result in more favorable awards for workers’

injuries than under an exclusively federal compen-

sation system. But we find no evidence that Con-

gress was concerned about a disparity between

adequate federal benefits and superior state bene-

fits.

Id., 447 U.S. at 724. Like in the Sun Ship, Inc. case, the state

discrimination law in the case at bar supplements maritime

law; it does not supplant it nor is it engrafted onto maritime

law as asserted by Exxon.

Exxon cites the Court’s decision in Southern Pacific Co.

v. Jensen, 244 U.S. 205, 216 (1917) to support its argument

that admiralty’s interest in uniformity is of central impor-

tance. However, the Court has steadily narrowed the applica-

tion of its holding in that case over the years and now is

primarily concerned with whether state regulation conflicts

with federal law in maritime areas and those unusual

instances in which uniformity is required. Askew v. American

Waterways Operators Inc., 411 U.S. 325, 341 (1973).

Exxon’s reliance on Belanger v. Keydril Co., 596 F.

Supp. 823, 825-826 (E.D. La. 1984), aff’d., 772 F.2d 902 (Sth

Cir. 1985) in support of its position that the Fifth Circuit

declined to enforce a state discrimination claim is misplaced

and is a misrepresentation of the holding in that case. In

Belanger, the plaintiff brought an age discrimination action

against his former employer. The plaintiff's suit was brought

under the Federal Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. §§ 621-34, the General Maritime Law

and the Louisiana Age Discrimination in Employment Act.

La.R.S. 23:97176. At the time of the plaintiff’s discharge he

was working on a drilling rig off the coast of the Republic of

Zaire. The United States District Court for the Eastern Dis-

trict of Louisiana found that the ADEA did not apply to the

plaintiff since the ADEA does not apply to American

Nationals employed outside the United States by American

employers. Belanger, 596 F. Supp. at 824. Next, the district

court found that general maritime law does not provide a

common law cause of action for age discrimination. However,

most importantly, the district court did find that the employer

was Subject to Louisiana’s state discrimination law.'! Thus,

Belanger v. Keydril is consistent with the First Circuit's

decision here.

Furthermore, Exxon’s claim that it might be subjected to

fifty state discrimination statutes depending on the residency

of its seamen does not hold water. Exxon, like every other

employer, is only subject to the discrimination laws of the

state whose laws would govern according to the valid conflict

of laws rules of the forum state. Day and Zimmerman, Inc. v.

Challoner, 423 U.S. 3 (1975); Klaxon v. Stentor Mfg. Co., 313

U.S. 487 (1941). Maine applies the “most significant relation-

ship” test of the Restatement (Second) of Conflict of Laws § 6

1! ‘The plaintiff's state age discrimination claim was tried to a jury. The jury

ultimately found that the plaintiff's termination was not related to his age

(1971) in which the protection of justified expectations of

parties is a consideration in choosing which state’s law will

apply. Mason v. Southern New England Conference Ass'n of

Seventh Day Adventists of Town of South Lancaster, 696 F.2d

135, 137 (1st Cir. 1982). Unless Exxon has a valid connection

to a particular state it will not be subject to that state’s

discrimination statutes. Exxon’s suggestion that it might be

automatically subjected to fifty different statutes is a wild

exaggeration. Like any other multi-state corporation, Exxon

need only be concerned with the application of those states’

laws where the equities of a given dispute justify their appli-

cation.

Exxon has ignored that states are accorded the explicit

right to play a part in maritime matters. 28 U.S.C. § 1331(1).

It has also ignored the admiralty court’s tradition of extending

protection to seamen when possible. Moragne v. State Marine

Lines, Inc., 398 U.S. 375 (1970). “Certainly it better becomes

the humane and liberal character of proceedings in admiralty

to give than to withhold the remedy.” (App. 20A), quoting,

Miles v. Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317, 327

(1990), quoting, Moragne, 398 U.S. at 387.

State and federal governments have long shared regula-

tion of employment discrimination. Contrary to petitioner’s

assertions, no dominant federal interest is at stake that merits

review by this Court. Accordingly, the Court should reject

Exxon’s petition.

Il. ABSOLUTELY NO CONFLICT EXISTS BETWEEN

DECISIONS OF THE FIRST AND ELEVENTH CIR-

CUITS AND THUS, THE PETITION SHOULD BE

DENIED.

Petitioner asks the Court to grant a writ of certiorari to

reverse the First Circuit’s decision that section 503 of the

Rehabilitation Act does not preempt state statutory handicap

discrimination claims. In a ploy to grab the Court’s attention,

Exxon unabashedly claims a “sharp conflict” exists between

the First Circuit’s opinion in this case and the Eleventh

Circuit’s opinion in Howard v. Uniroyal, Inc., wherein that

court, in what it described as a quite limited holding, declared

that a state common law contract action could not be used to

enforce section 503 (which itself allows for no private cause

of action). Howard, 719 F.2d at 1558, 1561-62. The First

Circuit, on the other hand, considered whether the Rehabilita-

tion Act preempted state handicap discrimination statutes, and

for that matter, whether the mere fortuity of holding a $2,500

federal government contract meant that the employer/contrac-

tor was thus exempt from the application of otherwise appli-

cable state employment discrimination statutes. After a

lengthy and well reasoned analysis, the First Circuit could

reach but one conclusion: Congress never intended the Reha-

bilitation Act to preempt state statutory handicap discrimina-

tion claims against employers which happen to hold a federal

contract.

Petitioner tells this Court that its “sharp conflict” relates

to a finding of Congressional intent for uniformity. However,

Exxon’s uniformity argument actually relates to how one

enforces “the affirmative action clause contained in the con-

tract between his employer and the federal government.”

Howard, 719 F.2d at 1562. That issue has absolutely nothing

to do with this case as Ellenwood did not sue to enforce

section 503 (App. 11a). Moreover, despite what Exxon tells

the Court, the First Circuit never drew a distinction between

Statutory and common law claims, rather the First Circuit

drew a distinction between (1) claims seeking to enforce

section 503 through channels other than those created by

Congress under the Rehabilitation Act, and (2) claims seeking

to enforce rights which co-exist with and are totally indepen-

dent of the Rehabilitation Act.

Along these lines, the Eleventh Circuit was quite careful

to denote the very limited scope of its holding in Howard.

We find this interest in enforcing the affirmative

action clause, expressed in section 503(b) and its

implementing regulations, to be more substantial

than that of the state in providing a remedy in this

limited class of third party beneficiary actions to

enforce the same affirmative action clause.

We merely hold that in this case the remedy pro-

vided in precise detail by Congress in enacting

section 503(b) was intended to be the plaintiff's

sole means of enforcing the affirmative action

clause contained in the contract between his

employer and the federal government.

Howard, 719 F.2d at 1561-62 (emphasis supplied). The basis

for the holding was that the Rehabilitation Act already pro-

vided a remedy for a breach of Section 503. Howard, 719 F.2d

at 1561; Muncy v. Norfolk and Western Railway Company,

650 F. Supp. 641, 644 (S.D. W. Va. 1986); App. 10a. The

Eleventh Circuit never considered the enforceability of state

law rights which are unrelated to the Rehabilitation Act.

Rather, the entire opinion focuses on whether state law could

be used in a third party beneficiary mode to enforce section

503 of the Rehabilitation Act.

As noted above, federal employment discrimination laws

overlap, rather than preempt, their corresponding state law

counterparts. Alexander yv. Gardner-Denver Company, 415

U.S. 36, 47 (1974); Muncy, 650 F. Supp. at 644; Raytheon Co.

v. Fair Employment and Housing Commission, 46 FEP Cases

(BNA) 1089, 1099 (California Superior Ct., Santa Barbara

County, 1988) (Based upon legislative history, the court found

that Congress did not intend the Rehabilitation Act to occupy

the field of employment discrimination against the hand-

icapped by federal contractors); Cf, Tate v. Browning Ferris,

Inc., 833 P.2d 1218, 1222-1223 (Okla. 1992). Furthermore,

when Congress enacted the Rehabilitation Act, it was fully

aware of the existence of overlapping state remedies in

employment discrimination cases and the existence of state

handicap discrimination laws and other common law claims.

Miles v. Apex Marine Corp., 498 U.S. at 32, 111 S. Ct. at 325;

Cannon vy. University of Chicago, 441 U.S. 677, 696-697

(1979). Had it wanted the Rehabilitation Act to preempt state

law, Congress knew the state of the law and would have

expressly so stated. Congress chose not to preempt state law

because it has consistently believed that state laws fill a

crucial role in eradicating the nation’s workplaces of employ-

ment discrimination. California Federal Savings & Loan

Assn. v. Guerra, 479 U.S. at 282-83; Kremer v. Chemical

Construction Corp., 456 U.S. 461, 468-69 (1982). “The exer-

cise of federal supremacy is not lightly presumed.” Schwartz

v. Texas, 344 U.S. 199, 203 (1952). Moreover, a presumption

exists against preemption which petitioner cannot overcome.

Cipollone v. Liggett Group, Inc., 60 U.S.L.W. 4703, 4706,

4707 (U.S., June 24, 1992); Maryland v. Louisiana, 451 U.S.

725, 746 (1981).

Nonetheless, petitioner anchors itself to Howard and ref-

erences the “pervasive” regulations issued under section 503.

However, the Court has rejected the proposition that even

comprehensive regulation is an implied attempt to displace

state law. E.g., English, 110 S. Ct. at 2279; R.J. Reynolds

Tobacco Co. v. Durham County, 479 U.S. 130, 149 (1986);

Hillsborough County v. Automated Medical Laboratories,

Inc., 471 U.S. 707, 716-18 (1985). Otherwise, the power of

preemption would be impermissibly delegated to the control

of the federal agencies.

Congress’ most recently stated and obvious intent is

evident from the A.D.A.!2 which amended the Rehabilitation

Act and which also will extend the same basic Rehabilitation

Act protections to virtually all private sector employees.

Thereunder, Congress preserved an express role for state

handicap laws and made no indication that this constituted a

change in method.'? Clearly, had Congress intended to pre-

empt state law, it would have said so.'4

The A.D.A. addresses the issue of federal preemption of

State law but does so with a narrow scope. “Nothing in this

12 At page 10 of the petition, Exxon gratuitously and somewhat deceitfully

suggests that Ellenwood has a federal remedy under the A.D.A. Ellenwood has no

such remedy available to him.

13 Heckler v. Turner, 470 U.S. 184, 208-211 (1985) (“Were there any doubt

remaining as to Congress’ intention in 1981, subsequent congressional action would

dispel it.”’).

14 Congress is presumed to be thoroughly familiar with the state of the law.

Cannon, 441 U.S. at 696-699.

chapter shall be construed to invalidate or limit the remedies,

rights, and procedures of any .. . law of any State... or

jurisdiction that provides greater or equal protection tor the

rights of individuals with disabilities than are afforded by this

chapter.” 42 U.S.C. § 12201(b) (emphasis supplied). The

A.D.A. employment provisions also expressly address the

issue Of preemption and say nothing about intending to pre-

empt state employment discrimination law. 42 U.S.C.

§ 12113(d)(3). Again, had Congress wanted the Rehabilitation

Act to preempt state law, then it would have said so. Cannon,

441 U.S. at 703.

Finally, Congress’ intent is apparent from the procedural

provisions of the A.D.A. which incorporate a specific and

important role for state handicap discrimination statutes into

the A.D.A. 42 U.S.C. § 12117.'5 The foilowing section ampli-

fies this role.

In determining whether reasonable cause exists, the

Commission shall accord substantial weight to final

findings and orders made by State or local authori-

ties in proceedings commenced under State or local

law pursuant to the requirements of subsections (c)

and (d) of this section.

42 U.S.C. § 2000e-5(b) (emphasis supplied); 42 U.S.C.

§ 12117. It is clear beyond peradvetnture that Congress never

intended federal employment discrimination statutes to be

used to preempt state laws on the same or similar subjects.

15 Also, this case is about employment discrimination against an employee

who was treated for a non-work related alcoholism handicap after apparently being

misdiagnosed (Tr. Vol. V:133). The two federal statutes and the three state statutes

(only one of which will ultimately apply) are uniform on how to address this

perceived handicap issue. In fact, respondents are not aware of any contrary

authority on this issue. Consequently, even if petitioner’s argument holds some

water, this case does not present an instance where uniformity is in issue. Cf,

Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc., 372 U.S.

at 721-22 (“the threat of diverse and conflicting regulation of hiring practices is

virtually nonexistent. . . . It is, of course, possible that States could impose such

onerous, harassing, and conflicting conditions on an interstate carrier's hiring of

employees that the burden would hamper the carrier's satisfactory performance of

its funcuons. Bul that is not this case.” (emphasis supplied).

Thus, even Exxon must concede that since the A.D.A. applies

to federal contractors which happen to be employers with at

least fifteen employees, then so must State law.

The Court reviewed an analogous issue in Colorado Anti-

Discrimination Commission vy. Continental Air Lines, Inc.,

supra. Curiously, Continental raised the exact same argument

as Exxon has here: “When Congress has taken the particular

subject matter in hand coincidence is as ineffective as opposi-

tion, and a State law is not to be declared a help because it

attempts to go further than Congress has seen fit to go.” /d.,

372 U.S. at 722, citing, Charleston & W.C.R. Co. v. Varnville

Furniture Co., 237 U.S. 597, 604 (1915). However, in reply,

the Court squarely rejected this proposition.

But this Court has also said that the mere “fact of

identity does not mean the automatic invalidity of

state measures.” To hold that a state statute identi-

cal in purpose with a federal statute is invalid under

the Supremacy Clause, we must be able to conclude

that the purpose of the federal statute would to

some extent be frustrated by the state statute. We

can reach no such conclusion here.

Id.; Cf., English, 110 S. Ct. at 2280-81; Sun Ship, Inc. v.

Pennsylvania, 447 U.S. at 722; See also, A.D.A., 42 U.S.C.

§ 12201(b).

Even more notable was Continental’s unsuccessful “per-

vasiveness” argument concerning government contractor Sta-

tus and anti-employment discrimination provisions contained

in various Executive Orders. In rejecting this strikingly simi-

lar argument, the Court succinctly held: “It is impossible for

us to believe that the Executive intended for its orders to

regulate all carrier discrimination among employees so per-

vasively as to preempt state legislation intended to accom-

plish the same purpose.” Continental Air Lines, 372 U.S. at

725.

In conclusion, Exxon has failed to create an issue of

enough significance for this Court to grant the petition. The

decisions of the First and Eleventh Circuits are not in con-

flict. No evidence exists that Congress intended to preempt

unrelated, independent state handicap law rights or remedies

for those few employees who work for employers which

fortuitously have the federal government as a $2,500 cus-

tomer. Common sense, precedent from this Court and the

A.D.A. make it obvious that Congress intended otherwise.

Accordingly, the petition should be denied.!©

Ill. THE MARITIME EMPLOYMENT CONTRACT

CLAIM IS WELL SUPPORTED IN THE LAW AND

ON THE RECORD.

Two things are quite clear: the First Circuit’s ruling is (1)

not one of first impression, and (2) not one of such impor-

tance to merit review. Maritime contracts of employment,

express, implied, oral or otherwise have formed a bedrock

aspect of admiralty law from time immemorial. Kossick, 365

U.S. at 734-35, n.4; Union Fish Company v. Erickson, 248

U.S. 308 (1919); Robertson v. Baldwin, 165 U.S. 275, 282-83

(1897) (“From the earliest historical period the contract of the

Sailor has been treated as an exceptional one, and involving to

a certain extent, the surrender of his personal liberty during

the life of the contract.”); Farrell v. United States, 336 U.S.

511, 519-521 (1949) (contract for even an indefinite term is

nonetheless an enforceable maritime employment contract);

Tonseth v. Serwold, 157 P.2d 333, 338 (Wash. 1945). Since

1790, Federal Court policy has been to protect the seaman and

enforce his contract. U.S. Bulk Carriers, Inc. v. Arguelles, 400

U.S. 351, 356 (1971); Furthermore, the duties owed by the

employer to a ward of admiralty equate with those owed by a

16 At the end of its argument, on page 22 of its petition, and without

addressing the substance of its comment, Exxon asks the Court to also review

Ellenwood’s “state contract claims.” This is the same tired argument which Exxon

has hoisted before and which the district court branded “clear nonsense.” (App.

41a). Furthermore, Ellenwood’s contract claim was tried under federal maritime

law and thus Exxon’s comment makes no sense. Preemption is a constitutional

doctrine developed under the Supremacy Clause, which, under certain limited

circumstances, invalidates state laws. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211

(1824), Massachusetts Medical Society v. Dukakis, 815 F.2d 790, 791-96 (1st Cir.),

cert. denied, 484 U.S. 896 (1987).

trustee to his beneficiary and a guardian to his ward. Pre-

meaux v. Socony-Vacuum Oil Co., 144 Tex. 558, 564, 192

S.W. 2d 138, 140 (1946). To disavow a contract in this case

violates these duties. Moreover, Exxon’s tenacious clinging to

the principle of employment at will when it has no factual or

legal connection to this case is at best a smokescreen for its

patent lack of any colorable argument to support its petition.

As explained in the statement of the case, the substantial

record evidence demonstrated the existence of a contract of

employment which was other than at will. However, petitioner

continues to disingenuously and selectively refer to the evi-

dence to suit its needs regardless of the record before the jury

and the fact that the jury, the District Judge and the First

Circuit squarely rejected petitioner’s manipulative factual

arguments.'” Nonetheless, “(t)his is not the place to review a

conflict of evidence. ...” National Labor Relations Board v.

Pittsburgh Steamship Co., 340 U.S. 498, 503 (1951).!8 Rather,

all facts necessary to support the judgment must be taken as

found by the jury; otherwise there will be a near certain

17 Also, Exxon improperly continues to cite to selected paragraphs of the

Complaint to make its arguments. The jury never saw the Complaint but it did see

and hear over two weeks of evidence as did the presiding Judge who denied

Exxon’s motions for judgment as a matter of law and for a new trial (la). At this

stage, the Complaint is superfluous. Fed.R.Civ.P. 15. The purpose of a complaint is

to give concise notice of the plaintiffs’ claims. Fed.R.Civ.P. 8(a), 8(e) and 8(f).

Moreover, given the Court’s special solicitude for the seaman, it is an “ancient

admiralty teaching” that the rules of pleading are even further relaxed in admiralty.

Archawski v. Hanioti, 350 U.S. 532, 534 (1956). Thus, even if Exxon’s characteriza-

tions of the Complaint are accurate, “when issues not raised by the pleadings are

tried by express or implied consent of the parties, they shall be treated in all respects

as if they had been raised in the pleadings. Such amendment of the pleadings as may

be necessary to cause them to conform to the evidence and to raise these issues may

be made upon motion of any party at any time, even after judgment; but failure to so

amend does not affect the result of the trial of these issues ....” Fed.R.Civ.P. 15(b)

(emphasis supplied).

18 “Tn admiralty, as in other fields of the law, findings of the trier of fact will

not be disturbed on appeal, unless the error is manifest clearly against the evi-

dence.” Putnam v. Lower, 236 F.2d 561, 565 (9th Cir. 1956), citing, United States v.

United States Gypsum Co., 333 U.S. 364, 365 (1948); McAllister v. United States,

348 U.S. 19, 20, 21 (1954). No such argument has been made.

collision with respondents’ Seventh Amendment right to trial

by jury. Ferguson v. Moore-McCormack Lines, Inc., 352 U.S.

521, 523 (1957); Lumbermens Mut. Cas. Co. v. Elbert, 348

U.S. 48, 53 n. 5 (1954); Smiley v. Kansas, 196 U.S. 447, 454

(1905). “The very essence of [the jury’s] function is to select

from among conflicting inferences and conclusions that which

it considers most reasonable.” Tennant v. Peoria & P.U.R.Co.,

321 U.S. 29, 35 (1944). The jury has performed this function

and its reasoned judgment should not be disturbed.

Furthermore, the record evidence upon which the jury

founded its verdict contained much more than a mere policy

Statement. The evidence supported an express employment

contract with an offer, an acceptance, a meeting of the minds,

definite terms, duration and consideration (Tr. Vol. XI:43-44,

58, 69). The evidence demonstrated contracts, representa-

tions, letters, writings, policies and oral and written promises

in addition to an employment policy.'? Ellenwood and Exxon

presented evidence from which the jury was free to conclude

that a contract of employment existed, terminable only for

just cause and that this contract was initiated by Exxon. Even

Exxon’s witness admitted that a “contract” existed (Tr. Vol.

V:22); Bunn v. Global Marine, Inc., 428 F.2d 40, 48 (Sth Cir.

1970). Based upon the evidence, the jury properly found that

Ellenwood and Exxon entered a maritime employment con-

tract On other than an at-will basis. That Exxon’s entire

petition obfuscates the facts and completely ignores the

record is not grounds for relief.?°

19 Exxon seeks an inflexible rule in its favor based, inter alia, on its shipping

articles. This argument is not based upon the record evidence. In fact, respondents

could not pursue possible related causes of action because of petitioner’s dilatory

production of certain related documents at such a late stage of the tnal that

strategically, respondents were forced to leave them out of the case (Tr. Vol.

V:214-217; VII:6-7).

20 In addition, even if petitioner’s selective focusing upon the policy state-

ment is otherwise appropriate, whether the parties intended the policy to constitute

an express or implied contract was a question of fact which the jury resolved in

respondents’ favor. Brown v. United Methodist Homes, 815 P.2d 72, 83 (Kan. 1991).

Moreover, even were this employment policy the true

issue, the Court has already settled petitioner’s purported

implied contract issue. The Court has always recognized the

existence of implied contracts in maritime employment. Agui-

lar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 730

(1943) (maintenance and cure “has been recognized consis-

tently as an implied provision in contracts of marine employ-

ment.”); Lauritzen v. Larsen, 345 U.S. 571, 588 (1953);

Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 371, 372

(1932); Hust v. Moore-McCormack Lines, 328 U.S. 707,

715-16 (1946) (Jones Act remedy); 28 U.S.C. § 1333(1).

Further, with regard to Exxon’s ridiculous argument that

Ellenwood was an employee at will, Smith v. Atlas Off-Shore

Boat Serv., Inc., 653 F.2d 1057 (Sth Cir. Unit A 1981) and

Findley v. Red Top Super Markets, Inc., 188 F.2d 834 (Sth

Cir.), cert. denied, 342 U.S. 870 (1951), do not provide a

basis for granting its petition. In Smith, the Fifth Circuit

created an exception to the contractually based employment at

will rule for a seaman who admittedly was an employee at

will. The issue of whether Smith was employed at will or

whether, like Ellenwood, he had a contract to the contrary,

was not before the court. In Findley, an unauthorized person

Started to hire a ship’s crew. Before employment contracts

could be signed, the crew was advised that the person who

had hired them was not so authorized and that they should

leave the ship. Findley, 188 F.2d at 835. Thus, the entirety of

the conduct in issue in Findley happened before and without a

contract ever being entered.?!

Finally, Exxon’s review of the common law of several

States misses the point and violates the Local Rules of the

Ninth Circuit. First, as explained above, this case is not

merely based upon a policy statement on substance abuse.

21 In addition, the Findley court's analysis is faulty under the Court's prece-

dent. Compare, 188 F.2d 834, fn. 1 with Kossick, supra. Thus, Findley is not good

law and to the extent that Smith relies on Findley, neither is Smith. None of this,

however, creates a federal question of such importance that the petition should be

granted.

Even Exxon’s own Official testified that Exxon and Ellen-

wood made a “contract” (Tr. Vol. V:22). Exxon made this

official responsible for deciding whether Ellenwood could

return to work after he attended the rehabilitation program.

Second, in its review of what it labels “prevailing” state law,

Exxon improperly relies upon two decisions, Franklin v.

Delta Airlines, Inc., 951 F.2d 359 (Table) (text in WEST-

LAW) (9th Cir. 1991) and Horne v. J.W. Gibson Well Service

Co., 894 F.2d 1194 (10th Cir. 1990). With regard to Franklin,

various notices appear with the Westlaw published decision.

NOTICE: Ninth Circuit Rule 36-3 provides that

dispositions other than opinions or orders desig-

nated for publication are not precedential and

should not be cited except when relevant under the

doctrines of law of the case, res judicata, or collat-

eral estoppel.

Id. (emphasis supplied). Moreover, Franklin is distinguish-

able as that employee signed documents expressly providing

that he was an employee at will and the handbook upon which

Mr. Franklin sought to rely contained an employment at will

disclaimer and stated that his employment was at will.?2

Horne is aiso distinguishable as that plaintiff was also an

employee at will under Wyoming law and while recognizing

that personnel policies can create a contract of employment,

that court wanted evidence in addition to the “mere existence”

of those policies. Horne, 894 F.2d at 1195. As this record

amply demonstrates, here there is much more evidence,

including many representations which Exxon would now pre-

fer to ignore than to respect. Furthermore, the prevailing state

law of virtually every jurisdiction recognizes these claims,

especially when, like here, the policy does not contain a.

disclaimer of employment at will. See, Labor Relations

Reporter: Individual Employment Rights Manual (BNA)

505:5, 51-52 (July 1992); 28 U.S.C. § 1333(1). This black

22 Hawaii law, upon which the decision is based, recognizes the existence of

contractual rights based upon employment handbooks. Id.; Kinoshita v. Canadian

Pacific Airlines, 724 P.2d 110 (Haw. 1986).

letter law rings true within the admiralty jurisdiction. Stetson,

673 F. Supp. at 1135, 1136.

Certainly it requires no citation of authority to sup-

port the statement that the Supreme Court of the

United States and various of the United States

Courts of Appeals have never, in construing Mar-

itime Law, afforded a less favorable position to the

seaman, the much favored ward of Admiralty, than

the position afforded to the average, ordinary com-

mon law suitor.

Henderson v. Arundel Corp., 262 F. Supp. 152, 157 (D. Md.

1966).

Denying the petition will only serve to encourage irre-

sponsible employers to be more responsible in how they

structure their employment relationships, policies and prac-

tices. Any contrary prediction of a chilling effect is wholly

imaginary. Also,

(ijt must be remembered that we are dealing here

with a contract, and therefore with obligations, by

hypothesis, voluntarily undertaken, and not, as in

the case of tort liability or public regulations, obli-

gations imposed simply by virtue of the authority of

the State or Federal Government. This fact in itself

creates some presumption in favor of that law tend-

ing toward the validation of the alleged contract.

Kossick, 365 U.S. at 741. In sum, this case is an ordinary run

of the mill contract dispute based on a well developed factual

record which supports the result of which petitioner com-

plains. This “self-imposed obligation” does not raise a ques-

tion of such importance that this Court need be burdened with

a review Of an already thorough and sound opinion below

(App. 21a).

The petition should be denied.

CONCLUSION

This case is about a seaman who had to seek the protec-

tion of the Federal Courts because after he was misdiagnosed

an alcoholic (according to his employer’s expert) and sought

treatment, his employer used the fact of his treatment to fire

him in a crude public relations ploy to rebuild its public

image in the wake of the Exxon Valdez. The Federal Courts

have always served as a place of refuge and protection for the

seaman, who, over the years, has needed the Courts’ protec-

tion from abusive employment practices. The principles

which the Court has developed reflect “a special solitude for

the welfare of those men who undertook to venture upon

hazardous and unpredictable sea voyages.” Moragne v. State

Marine Lines, Inc., 398 U.S. at 387. Declared to be “a settled

canon of maritime jurisprudence,” “certainly it better

becomes the humane and liberal character of proceedings in

admiralty to give than to withhold the remedy, when not

required to withhold it by established and inflexible rules.”

American Export Lines, Inc. v. Alvez, 446 U.S. 274, 281-82

(1980) (citations omitted); Moragne, 398 U.S. at 387, citing,

The Sea Gull, 21 F. Cas. 909, 910 (No. 12,578) (C.C. Md.

1865). This ward of admiralty only seeks the same protection

as that which the Court has extended to his brethren whom he

has followed down to the sea.

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Perer BENNETT

(Counsel of Record)

FreDeERICK B. FINBERG

HeRBERT H. BENNETT AND

Associates, P.A.

121 Middle Street

P.O. Box 7799

Portland, ME 04112-7799

(207) 773-4775

Attorneys for Respondents

Dated: May 20, 1993

APPENDIX

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

THEODORE M. ELLENWOOD,

et al.,

Plaintiffs Civil No. 90-86-

)

V. ) P-C

EXXON SHIPPING COMPANY, .

Defendant )

)

MEMORANDUM AND ORDER ON DEFENDANT'S

MOTION FOR JUDGMENT AS A MATTER OF LAW

OR FOR NEW TRIAL

Exxon Shipping Company has renewed its motion for

judgment as a matter of law on the Ellenwoods’ negligent

infliction of emotional distress claims. Fed R. Civ. P. 50(b).

In the alternative, Exxon Shipping asks that I overturn

the jury verdict and order a new trial. Fed. R. Civ. P. 59.

Exxon Shipping also moves for a new trial and judgment

as a matter of law on the breach of contract and prom-

issory estoppel claims, alleging several errors in the jury

instructions and other miscellaneous legal errors. | now

GRANT the motion for judgment as a matter of law with

respect to the negligent infliction of emotional distress

claim, DENY the motion for new trial on the negligent

infliction count and DENY the motion on the contract and

promissory estoppel claims.

Emotional Distress

I have previously ruled that the emotional distress

claims are governed by maritime law. See Ellenwood v.

Exxon Shipping Co., No. 90-86-P-C, slip op. at 4-5 (Oct. 15,

1991); see also Ellenwood v. Exxon Shipping Co., No. 90-86-

P-C, slip op. at 1-3 (Jan. 2, 1992) (granting Exxon Ship-

ping’s motion for summary judgment on breach of duty

of good faith and fair dealing claim). I will not repeat my

reasons here. My research and that of the parties have

revealed that reported maritime law, however, is essen-

tially mute as to the controlling substantive rules in this

case. Exxon Shipping has argued that since no explicit

authorization for the Ellenwoods’ claims can be found in

maritime law, those claims should be dismissed on that

ground alone. Unambiguous dicta in a governing line of

maritime cases, however, require me to pursue the subject

farther.

In East River S.S. Corp. v. Transamerica Delaval, Inc.,

476 U.S. 858, 864-65 (1986), the United States Supreme

Court stated: “Drawn from state and federal sources, the

general maritime law is an amalgam of traditional com-

mon-law rules, modifications of those rules, and newly

created rules.” In that case, the Supreme Court recog-

nized and endorsed lower court adoption of general neg-

ligence principles and products liability law as part of the

general maritime law. Moreover, the Court recognized

that maritime law, in the absence of a statute, is “devel-

oped by the judiciary.” Id. at 864.

Under First Circuit authority, state law or general

common-law principles may inform the general maritime

law when the maritime law is silent on a particular issue,

provided that state law does not conflict with Congres-

sional maritime policy. See Conner v. Aerovox, Inc., 730

F.2d 835, 842 (1st Cir. 1984), cert. denied, 470 U.S. 1050

(1985) (“There is no question that federal courts may

borrow from a variety of sources in establishing common

law admiralty rules to govern maritime liability where

deemed appropriate.”); Pino v. Protection Maritime Ins.

Co., Ltd., 599 F.2d 10, 14 (1st Cir.), cert. denied, 444 U.S. 900

(1979) (applying § 766 of the Restatement (Second) of Torts

as a “recognized national standard from which to fashion

a controlling principle of substantive federal maritime

law”); accord, Lewis v. Timco, Inc., 716 F.2d 1425, 1427 (5th

Cir. 1983) (“In maritime tort cases courts traditionally

apply principles of maritime law, as informed by common

law tort developments, . . . unless a policy determination

has been made by Congress. . . . Admiralty courts make

their own decisions but, true to legal analogical pro-

cesses, do so with an awareness of other courts’ solutions

to similar problems. .. . ”).

These cases make clear that I cannot dismiss a claim

merely because maritime precedents are silent, but that |

should turn to well-established common-law principles of

national applicability in determining the scope of a claim

in such circumstances. The concern for uniformity, fre-

quently expressed by the courts and emphasized in my

order on Exxon Shipping’s summary judgment motion,

Ellenwood v. Exxon Shipping Co., No. 90-0086-P-C, slip op.

at 4 n.5 (October 15, 1991), supports employing only

those common-law principles that have been widely and

consistently recognized in land-based law. Furthermore,

paramount attention must be paid to Congressional pol-

icy directives expressed in maritime legislation. Accord-

ingly, | approach the claim of negligent infliction of

severe emotional distress guided by Congressional policy

pronouncements embodied in the Jones Act and judicial

glosses on those enactments; by time-honored articula-

tions of common-law principles, such as the Restatement

(Second) of Torts; and by trends in state common-law

doctrine.

Much of the parties’ argument has focused on several

FE!A/Jones Act cases.! The Ellenwoods’ claim for negli-

gent infliction of emotional distress, however, is not a

Jones Act claim. They chose not to plead the Jones Act;

instead, their claim arises under general maritime law.

Nonetheless, FELA/Jones Act case law is a sensible place

to look for guidance. The Jones Act articulates Congress’

general policy on the limits of seamen’s recovery for

negligence. Thus, a court should not lightly exceed any

limitations laid down in the Jones Act or in authority

interpreting the Jones Act or FELA.

In 1977, it seemed clear in this Circuit that recovery

for emotional distress under FELA, and thus the Jones

Act, required a physical injury. Bullard v. Central Vt. Ry,.,

565 F.2d 193, 197 (1st Cir. 1977). In 1985, however, a Ninth

Circuit decision stated that plaintiffs could recover emo-

tional damages under FELA without any physical injury.

Buell v. Atchison, Topeka & Santa Fe Ry., 771 F.2d 1320,

1322-23 (9th Cir. 1985). The United States Supreme Court

1 The Jones Act incorporates FELA’s standards for liability.

See 46 U.S.C. app. § 688(a).

undertook to hear the Buell case but then declined to

consider this particular issue because of the lack of an

adequate record: “Since, through no fault of either party,

we do not know what all those facts are in this case, we

cannot begin to decide whether respondent will be able to

support his allegation that petitioners are liable to him

under the FELA.” Atchison, Topeka & Santa Fe Ry. Co. v.

Buell, 480 U.S. 557, 570 (1987). Although the Court

declined to rule on this issue, it nevertheless provoked an

unfortunate uncertainty in the trial bar and the lower

courts by adding, “whether one can recover for emotional

injury might rest on a variety of subtle and intricate

distinctions related to the nature of the injury and the

character of the tortious activity,” id. at 568, and, there-

fore, that “the question whether one can recover for

emotional injury may not be susceptible to an all-inclu-

sive ‘yes’ or ‘no’ answer,” 1d. at 570.

That same year the First Circuit brought the uncer-

tainty home to this jurisdiction. In Moody v. Maine Cent.

Ry. Co., 823 F.2d 693 (1st Cir. 1987), it affirmed a case from

this district granting summary judgment on an emotional

distress claim to a defendant where there was no physical

injury. But like the United States Supreme Court it suc-

cumbed to the temptation to raise other possibilities,

thereby engendering uncertainty among trial lawyers and

trial courts. It officially read Buell as “an attempt to leave

the door to recovery for wholly emotional injury some-

what ajar but not by any means wide open,” id. at 694,

and concluded that the Supreme Court, “at the very least,

[cast] doubt on the doctrine attributed to us in Bullard

that damages may not be awarded for mental or emo-

tional injuries unaccompanied by physical injury.” Id.

Rather than resolve this open issue after highlighting it,

however, the First Circuit declined “the invitation to

make this a pioneer case exploring the frontier possibly

opened up by Buell,” and left the trial bar and the trial

courts to bear the consequences of the highlighted uncer-

tainty.

In light of the First Circuit’s Moody declaration, |

concluded before trial that Jones Act principles were

unclear and that, although the Jones Act was not finaly

determinative of the issue in this maritime case, its role

was sufficiently important that I should allow the negli-

gent infliction claim to go to the jury so that the First

Circuit would have a record upon which to rule. Had |

followed the old rule (which I do today for reasons | will

explain shortly) and been declared wrong, the subsequent

reversal by the First Circuit would have required a new

trial of this lengthy case which has already consumed

thousands upon thousands of dollars. Since an appeal

was highly likely, I decided that the more prudent and

2 Tantalizing references to possibilities in other cases not

then before the court have been a luxury that appellate courts

could afford in more innocent times. Perhaps the practice even

helped judges participate in the development of the common

law by inviting further litigation. But now we operate in an era

where we are told that federal litigation is too frequent and that

itis both too time consuming and too expensive. See Civil Justice

Reform Act of 1990, Pub. L. No. 101-650, tit. I, § 102 (1990)

(codified as 28 U.S.C. §§ 471-482). When an appellate court

raises a new issue without resolving it, it guarantees that the

cost of litigation will increase. Another decision point is created:

briefs must be written, facts must be adduced, motions must be

presented and lower court judges must try to divine what the

appellate courts are looking for.

more economical course was to permit the plaintiffs to

put in their case as if the First Circuit had indeed changed

the FELA/Jones Act rule and as if the change would

affect the governing principle in this maritime case. I now

rule, however, that as a trial court judge I cannot read the

First Circuit’s musings in Moody as having overruled the

Bullard rule. Moody did not explicitly overturn Bullard.

Certainly there are hints and half-steps there. But as a

trial judge I must follow the precedents as they exist.

Should the First Circuit decide to overrule Bullard and

decide that this new FELA/Jones Act principle controls

this maritime case, the record has been made and the

Circuit can simply reinstate the jury’s verdict. On the

other hand, if the First Circuit chooses not to overrule

Bullard, then it is in a position to affirm the judgment on

the law.

I therefore conclude that under Bullard a physical

injury is still required to recover emotional distress dam-

ages under FELA. Since the Jones Act incorporates FELA

standards for liability, Bullard must be read as recogniz-

ing a general congressional policy limiting maritime

recovery for negligent infliction of emotional distress to

those claims based on physical injury. Today I apply that

policy in this maritime case.

Applying the Bullard rule is not simply the triumph

of stare decisis. Imposing such a limitation under general

maritime principles is supported by what has taken place

in other areas. The nationwide movement toward a stan-

dard allowing recovery for wholly emotional injury with-

out some physical manifestation has been halting. The

Restatement (Second) of Torts was quite clear in requiring

physical injury as an element of a negligent infliction of

emotional distress claim in 1965:

If the actor’s conduct is negligent as creating an

unreasonable risk of causing either bodily harm

or emotional disturbance to another, and it

results in such emotional disturbance alone,

without bodily harm or other compensable dam-

age, the actor is not liable for such emotional

disturbance.

Restatement (Second) of Torts § 436A (1965). Comment b

discusses the three traditionally favored policy rationales

for this rule: first, emotional disturbances without physi-

cal consequences have traditionally been regarded as “in

the realm of the trivial,” and therefore fall “within the

maxim that the law does not concern itself with trifles”;

second, a physical harm requirement furnishes a “guar-

antee of genuineness” to the fact-finder, thus limiting the

prospects for a flood of fraudulent claims; and third,

when the level of culpability reaches only the level of

negligence, the “fault is not so great that [the actor]

should be required to make good a purely mental distur-

bance.” Id., comment b.?

The Restatement enunciation of the rule is now over

25 years old, and some jurisdictions, among them Maine,

have abandoned the physical injury requirement. See

3 The Restatement did envision a separate tort without

physical injury: intentional or outrageous infliction. See Restate-

ment (Second) of Torts § 46 (1965). Elimination of the physical

injury requirement for the negligence tort essentially eliminates

the need for the intentional tort. It is hard to imagine a case in

which a factfinder can find intentional and outrageous conduct

but not find a breach of the standard of care or negligence.

Gammon v. Osteopathic Hosp. of Me., Inc., 534 A.2d 1282

(Me. 1987). But the trend is not uniform. In Payton v.

Abbott Labs, 437 N.E.2d 171 (Mass. 1982), the Massa-

chusetts Supreme Judicial Court resisted the invitation to

allow recovery for negligently inflicted emotional distress

in the absence of corresponding physical harm. That

court observed in 1982 that “[j]urisdictions allowing

recovery for emotional distress without proof of physical

harm in negligence cases are clearly in the minority.” Id.

at 174-75; see also id. at 175 n.5 (surveying rules in various

jurisdictions). Recent academic commentary continues to

reflect the division of authority: “Where the defendant’s

negligence causes only mental disturbance, without

accompanying physical injury, illness or other physical

consequences, and in the absence of some other indepen-

dent basis for tort liability, the great majority of courts

still hold that in the ordinary case there can be no recov-

ery.” W. Page Keaton, et al., Prosser and Keeton on the Law

of Torts § 54 at 361 (5th ed. 1984). See also Comment,

Negligent Infliction of Mental Distress: A Jurisdictional Sur-

vey of Existing Limitation Devices and Proposal Based on an

Analysis of Objective versus Subjective Indices of Distress, 33

Vill.L.Rev. 781 (1988) (“Currently, a large number of juris-

dictions follow a combination of both the zone of danger

and physical manifestation tests as limiting devices on

actions for negligent infliction of mental distress.”)4

4 Although the physical injury rule seems arbitrary in the

sense that there may be legitimate emotional distress claims

without physical injury, it does have the great advantage of

being easily defined and determined in today’s complex litiga-

tion world. With expensive expert testimony available to sup-

port or reject almost any claim, a clear and easily-applied rule

10a

Thus, the Restatement and a significant number of

state jurisdictions are in agreement with the Congres-

sional policy choices articulated by the First Circuit in

Bullard. Therefore, | conclude that a plaintiff alleging

negligent infliction of emotional distress under the gen-

eral maritime law must prove an accompanying physical

injury. No evidence of physical injury or physical impact

was presented to the jury here.> Exxon Shipping’s motion

for judgment as a matter of law on these claims is there-

fore GRANTED. The Clerk shall enter judgment for the

defendant on Count VIII.6 Exxon Shipping has not

advanced any other argument that would justify granting

saves parties large amounts of litigation costs and attorney fees

and reduces needed judicial time. Other tests that may involve

multitudes of factors such as suggested by the Supreme Court in

Buell, 480 U.S. at 568-70, might result in better individual justice

in a given case yet so contribute to the expense and time-

consuming nature of the litigation process that justice would be

delayed and thereby denied in many other cases. In this era of

scarce resources courts cannot ignore such effects.

5 The Ellenwoods did offer some evidence of loss of sleep,

loss of appetite, etc. However, this is clearly not the kind of

physical injury contemplated by Bullard, nor by the Restatement

(Second) of Torts.

6 Exxon Shipping also argues in its motion for judgment as

a matter of law that the evidence was insufficient to support a

finding that the Ellenwoods suffered severe emotional distress.

I conclude that there was sufficient evidence in the record on

both the severity of the Ellenwoods’ emotional distress and

causation to have created a jury question.

Finally, Exxon Shipping argues that the jury verdict should

be overturned because there were no guarantees of genuineness

supporting the Ellenwoods’ claimed injury. This contention is

resolved by my conclusion that physical injury is still a precon-

dition for recovery.

lla

a new trial. Therefore, Exxon Shipping’s motion for new

trial on Count VIII is DENIED.

This ruling, of course, also supports my eariier denial

of punitive damages. Without a tort recovery, the plain-

tiffs are not entitled to punitive damages.

Contract and Promissory Estoppel

Exxon Shipping moves for a new trial or for judg-

ment as a matter of law on both the breach of contract

and promissory estoppel verdicts.” It advances four argu-

ments: first, that I erred in allowing the contract and

promissory estoppel claims to go to the jury because at-

will employment rules preclude the possibility of finding

that a contract or enforceable promise existed; second,

that the Rehabilitation Act of 1973 pre-empted Ellen-

wood’s breach of contract and promissory estoppel

claims; third, that I erred in instructing the jury not to

subtract Mr. Ellenwood’s annuity from its award of dam-

ages; and fourth, that I erred in my instruction concern-

ing Exxon Shipping’s employee ranking system. Only the

last of these arguments raises any new issues.

I addressed the first two objections in my order

issued October 15, 1991, on Exxon Shipping’s motion for

summary judgment. Ellenwood v. Exxon Shipping Co., No.

7 The jury found for Ellenwood on both the breach cf con-

tract and the promissory estoppel claim. The jury awarded

$677,648 for the breach of contract claim and zero dollars for the

promissory estoppel claim. However, it is quite clear that the

jury was simply avoiding duplication of damages in accordance

with my instructions, and that the damage award is supported

by both claims.

12a

90-0086-P-C, slip op. at 2-4 & 5-6 (October 15, 1991).

Exxon Shipping does not raise any new arguments in this

post-trial motion, and I see no reason to disturb my

earlier rulings on these two matters.

Exxon Shipping’s argument that my instruction on

the annuity was in error was the subject of a lengthy

conference of counsel on the morning of closing argu-

ments. The lawyers had an opportunity to argue the issue

fully, see Tr. Volume XI, page 2, line 1 ~- page 23, line 11,

and | gave a detailed ruling in chambers, see Tr. Volume

XI, page 33, line 13 - page 35, line 17, and reiterated the

ruling at sidebar, see Tr. Volume XI, page 72, lines 20-21.

Given the state of the record, I see no basis for a different

ruling.

Finally, Exxon Shipping argues that my instruction

concerning the company’s employee ranking system was

in error. This issue was addressed in the conference of

counsel on the morning of closing arguments, see Tr.

Volume XI, page 23, line 16 - page 29, line 14. Exxon

Shipping also raised its objections at sidebar and sug-

gested an alternative instruction, see Tr. Volume XI, page

64, line 14 - page 66, line 9. I reiterated my previous

resolution of the issue at sidebar as well, see Tr. Volume

XI, page 69, line 17 — line 22; page 72, line 6 — line 14. As |

said there, the conventional instruction used in discrimi-

nation cases cannot simply be transposed without mod-

ification to this damage causation issue in a contract/

estoppel case. The issues and policies at stake are differ-

ent.

Here, however, Exxon Shipping does raise one new

issue. The company refers to my memorandum and order

13a

on the punitive damages claim, issued on February 21,

1992. Ellenwood v. Exxon Shipping Co., No. 90-86-P-C, slip

op. (Feb. 21, 1992). There, I engaged in a thorough review

of the record to determine whether the plaintiffs had

presented sufficient evidence to proceed with their puni-

tive damage claim. I attempted to simplify the task of

reviewing a voluminous record by breaking the evidence

down into separate categories. Id. at 5-8. One of those

categories was evidence concerning Exxon Shipping’s

employee evaluation and ranking procedures. | evaluated

this evidence in light of the maritime law standard for

punitive damages and found that the plaintiffs had not

presented evidence concerning Exxon Shipping’s conduct

to justify allowing them to proceed with their punitive

damages claim.

Exxon Shipping now attempts to use the language of

my memorandum opinion on punitive damages for the

negligence claims as a vehicle for arguing that it is enti-

tled to judgment as a matter of law on the contract and

estoppel claims.® But in doing so, it ignores the context of

the punitive damage opinion. In that opinion I was

reviewing the evidence to determine whether a reason-

able juror could have found that the plaintiffs showed

that Exxon Shipping acted with the level of culpability

8 Exxon Shipping refers specifically to two passages in that

opinion. First, on page 7, the opinion states, “However, there

was no testimony to indicate that the rankings were inten-

tionally manipulated with the intent of denying or subverting

the rights of any employees.” Id. at 7. Second, a passage on page

9 states, “There was no testimony that the ranking process was

intentionally manipulated or used in a way to undermine the

rights of Ellenwood.” Id. at 9.

en ie i,

l4a

necessary to justify punitive damages. The focus of that

inquiry was the plaintiffs’ burden of proof to show the

blameworthiness of Exxon Shipping’s conduct. I found

that no reasonable factfinder could conclude the plaintiffs

had met their burden of proof.

The issue raised by Exxon Shipping in its motion

presently before the court is distinct from the punitive

damage inquiry. Here, the issue is not the plaintiffs’ bur-

den of proof on punitive damages, but Exxon Shipping’s

burden of proof in minimizing the Ellenwoods’ contrac-

tual or estoppel damages. In order to reach this issue, the

jury must first have found (as it did) that Exxon Shipping

breached its contract (or principles of promissory estop-

pel) with Ellenwood when it removed him as Chief Engi-

neer and that damages flowed from that event. Exxon

Shipping is seeking to limit those damages by trying to

prove that Ellenwood would later have been terminated

anyway. Since Exxon Shipping bears the burden of proof

on this issue (and this is not a discrimination case where

Exxon Shipping would have only the burden of articulat-

ing a nondiscriminatory motive), | am doubtful that judg-

ment couid ever be entered in its favor as a matter of law.

The jury was always free to disbelieve any or all of Exxon

Shipping’s evidence on this issue of termination for inde-

pendent reasons. Thus, it is completely consistent to rule

that the Ellenwoods had not met their burden of proof to

show conduct by Exxon Shipping that would justify puni-

tive damages, yet rule that the jury could choose to

disbelieve Exxon Shipping’s evidence that it would have

terminated Ellenwood for independent reasons.

Exxon Shipping characterizes my statements in the

punitive damage opinion as a finding that Ellenwood

15a

would have been terminated for “independent, non-pre-

textual reasons.” Reply Memorandum in Support of

Exxon Shipping Company’s Motions for Judgment as a

Matter of Law and for a New Trial, at 2. Given the

difference between the two inquiries, Exxon Shipping has

clearly mischaracterized the punitive damage opinion.

My finding that the plaintiffs failed to carry their burden

on punitive damages cannot result in a conclusion as a

matter of law that Exxon Shipping prevailed on a limita-

tion of damages issue where Exxon Shipping had the

burden of proof.

I see no reason to disturb my earlier ruling on this

part of the jury instruction. Exxon Shipping’s motion for

judgment as a matter of law or for a new trial on the

contract and promissory estoppel claims is DENIED.

SO ORDERED.

Dated at Portland, Maine this 26th day of March,

1992.

/s/ D. Brock Hornby

D. Brock Hornby

United States District Judge

A TRUE COPY

ATTEST: William S. Brownell,

Clerk

By /s/ Brenda R. Gilland

Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.