Opposition Brief — Ilic v. Liquid Air Corp.

No. oa-to16 OFFICE GF THE CLERK |

—

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1994

ZARKO ILIC,

Petitioner,

v.

LIQUID AIR CORPORATION,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

LEO P. ROCK, JR.

Counsel of Record

SUSAN T. SPRADLEY

GRAY, HARRIS & ROBINSON, P.A.

Attorneys for Respondent

201 East Pine Street, Suite 1200

P.O. Box 3068

Orlando, Florida 32802

(407) 843-8880

QUESTIONS PRESENTED

1. Whether the unpublished court of appeals decision

below that simply finds ample evidentiary support for

factual findings that are not clearly erroneous and that the

correct rules of law were applied by the trial court can be

in conflict with another court of appeals decision when

Petitioner has not cited such a court of appeals decision.

2. Whether this Court’s power of supervision needs

to be exercised when Petitioner has not shown any United

States court of appeals departure or sanctioned United

States district court departure from the accepted and usual

course of judicial proceedings and Petitioner is objecting to

the weight not given to his evidence or argument below.

LIST OF PARTIES

Zarko Ilic - Plaintiff/Petitioner

Liquid Air Corporation - Defendant/Respondent merged

into Air Liquide America Corporation, a Delaware

domestic corporation.

AL America Holdings, Inc.' - Parent of

Defendant/Respondent, also a Delaware domestic

corporation

‘Both Air Liquide America Corporation and AL America

Holdings, Inc. are privately held, with no shares issues to the public.

el

TABLE OF CONTENTS

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

eo... a

ARGUMENT - REASONS FOR DENYING

WRIT OF CERTIORARI ..................

I. Petitioner Has Not Established

A Conflict In U.S. Circuit

Court of Appeals Decisions Or

Misapplication Of A Pzior

Decision Of This Court ...............

II. This Court’s Supervisory

Authority Over Lower Federal

Courts Should Not Be Exercised

When Petitioner Is Arguing

Evidentiary Issues...................

CONCLUSION

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Page

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TABLE OF AUTHORITIES

Page

Cases Cited:

Antonopulos v. Curojet-General Corp., 295 F. Supp.

Se ee a oak ae eV ee ek oe 8

Braxton v. U.S., 500 U.S. 344, 111 S. Ct. 1854,

(5 eS ee ee 2

Brown v. U.S., 356 U.S. 148, 78 S. Ct. 622, 2 L.

Ed. 2d 589, reh’g denied, 356 U.S. 948, 78 S. Ct.

Ty & bee SO ee CO 6 0 ke ee sie wes 10

Caban- Wheeler v. Elsea, 904 F.2d 1549 (11th Cir.

ID 6c Bi angie BUN Otol a es na aoe aw es 9

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

521, 77 S. Ct. 459, 1 L. Ed. 2d 515 (1957) ..... 7

General Talking Pictures Corp. v. Western Electric

Co., 304 U.S. 175, 58 S. Ct. 849, 82 L. Ed.

I 5S ha 2a) er serra are eae ea a 7, 8

J. I. Case Company v. Borak, 377 U.S. 426, 84 S.

Ch, 1550, 12 L. Bd. 206 423 C1964) ww. www ee ees 7,9

Lewis v. Smith, 731 F.2d 1535 (11th Cir.

SERRE eae are fo rae een 3,4

N.L.R.B. v. Pittsburg Steamship Co., 340 U.S. 498,

Te @. CA. 433, Fo 6: BR. STO CSS) Og. iw ek eee. 7

———e

TABLE OF AUTHORITIES - Continued

Page

New York Transit Authority v. Beazer, 440 U.S.

568, 99 S. Ct. 1355, 59 L. Ed. 2d 587 (1979) .... 109

Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500,

77 S. Ct. 443, 1 L. Ed. 2d 493 reh’g denied, 353

U.S. 943, 77 S. Ct. 808, 1 L. Ed. 2d 764 (1957) .. 9

SEC v. Carriba Air, Inc., 681 F.2d 1318 (11th Cir.

DE tN CAS eRe 2

Sanchez v. Standard Brands, Inc., 431 F.2d 455

ee ee I a Son Da oe ae Re ame

Watson v. Fort Worth Bank and Trust, 487 U.S. 977,

108 S. Ct. 2777, 101 L. Ed. 2d 827 (1988) .... 4,5,6

Rule Cited:

U.S. Supreme Court Rule 10.1(a)

SUMMARY OF ARGUMENT

Petitioner has not provided any U.S. court of appeals

decision from another circuit that conflicts with the

decision below. Nor has the Petitioner shown

misapplication of a prior decision of this Court by the

courts below.

Petitioner incorrectly asks this Court to exercise its

Supervisory authority over the federal courts below where

Petitioner’s concern is over how his evidence and

arguments were treated below.

ARGUMENT

REASONS FOR DENYING

WRIT OF CERTIORARI

I. Petitioner Has Not Established A Conflict In U.S.

Circuit Court of Appeals Decisions Or

Misapplication Of A Prior Decision Of This Court.

U.S. Supreme Court Rule 10.1(a) provides that one

reason for review on writ of certiorari is where the United

States court of appeals decision is in conflict with a

decision of another United States court of appeals on the

same matter. This is a principal purpose for the Court’s

use of certiorari jurisdiction on issues of law. Braxton v.

U.S., 500 U.S. 344, 111 S. Ct. 1854, 1857, 114 L. Ed. 2d

385, 391 (1990).

Petitioner does not, however, provide any conflicting

court of appeals decision on the same matter. The only

case cited by Petitioner that was not an Eleventh Circuit

case when decided is Sanchez v. Standard Brands, Inc.,

431 F.2d 455 (Sth Cir. 1970)’, which holds that the statute

of limitations for filing a charge of discrimination with the

Equal Employment Opportunity Commission (EEOC) does

not bar a later allegation of national origin discrimination

in an amended charge which related back and grew out of

the factual allegations in the timely sex discrimination charge.

*When Sanchez was decided the Eleventh Circuit had not been

established. The Eleventh Circuit has adopted and considered itself

bound by all Fifth Circuit cases handed down prior to October |, 1981.

This includes Sanchez as law of the Eleventh Circuit. SEC v. Carriba

Air, Inc., 681 F.2d 1318, 1324 n.7 (11th Cir. 1982).

2

The Sanchez court also held that a judicial complaint

can contain allegations on matters developed in the

EEOC’s investigation of the charge. 431 F.2d at 466.

Neither of these issues are present in this case. There is no

conflict, even if Sanchez is considered to be a decision of

another court of appeals.’

In the alleged conflict portion of the Petition,

Petitioner argues an inconsistent application of Lewis v.

Smith, 731 F.2d 1535 (11th Cir. 1984) (Petition, Reason II,

page 8). Lewis is an Eleventh Circuit case and not a

decision of another court of appeals. Petitioner also cites

Lewis in his Question Presented No. 4, claiming that the

district court failed to state what standard of proof was

applied on the promotion issue. The U.S. Magistrate

Judge, however, did state the applicable legal standard

under decisions of this Court and that Plaintiff/Petitioner

had the "burden of proving a prima facie case by a

preponderance of the evidence." (Petition, Appendix E,

page 9a)* The U.S. District Court adopted and confirmed

the U.S. Magistrate Judge’s Report and Recommendation

(Petition, Appendix C).°

*The underlying unpublished appellate decision does not state a

principle of law with which there could actually be a conflict.

(Petition, Appendix B, page 2a. A typographical error appears as

"low" instead of "law" on page 3a.)

*Petitioner’s Appendix E, page 9a, reflects footnote | in the U.S.

Magistrate Judge’s Report and Recommendation; however, the footnote

and its text appear at page 23a.

Typographical error in Appendix C, should read "law" instead of

"low", page 4a.

Even if Lewis was a decision of another circuit, there

is no conflict. Lewis rejected a "clear and convincing"

standard in favor of a "preponderance" standard that was

used here. Lewis, 731 F.2d at 1539. The Lewis court

found liability and the remand was "for the fashioning of

an appropriate remedy." Lewis, 731 F.2d at 1539, 1540.

Petitioner’s Question No. 4 does not present a reason for

granting the writ.

Petitioner’s Question No. 1 and Reason No. | For

Granting Writ (Petition, pages ii, 4 and 5) claim the

existence of an important and unanswered question and a

conflict with a prior decision of this Court. Watson v. Fort

Worth Bank and Trust, 487 U.S. 977, 108 S. Ct. 2777, 101

L. Ed. 2d 827 (1988).

Petitioner claims that "the District Court had erred in

failing to apply ’disparate impact’ analysis to his claims of

discrimination in promotion." (Petition, page 5) Petitioner

has a misconception of the law here. This Court decided

that a “disparate impact analysis may in principal be

applied to subjective as well as to objective practices"

(emphasis supplied). Watson, 487 U.S. at 991, 108 S. Ct.

at 2787, 101 L. Ed. 2d at 843. This is a permissive, not

mandatory analysis.

In Watson, this Court also noted that it had

“consistently used conventional disparate treatment theory,

in which proof of intent to discriminate is required, to

review hiring and promotion decisions that were based on

the exercise of personal judgment or the application of

inherently subjective criteria." Watson, 487 U.S. at 988,

108 S. Ct. at 2785, 101 L. Ed. 2d at 841. Disparate

treatment theory was applied here. (Petition, Appendix E,

pages 8a-10a).

Petitioner’s reliance on Watson is also misplaced in

fact and law because he failed to “offer statistical evidence

of a kind and degree sufficient to show that the practice in

question has caused the exclusion of applicants for ...

promotions because of their membership in a protected

group." Watson, 487 U.S. at 994, 108 S. Ct. at 2789, 101

L. Ed. 2d at 845. This is not a class action case.

Petitioner is concerned with the lack of his promotion.

(Petition, pages 10-14). The U.S. Magistrate Judge found

that he alleged discrimination against him "by not

promoting him to two management level positions"

(Petition, Appendix E, page 10a).

This Court in Watson acknowledged the legitimate

relevance of subjective criteria for measuring ar

employee’s qualities of "common sense, good judgment,

originality, ambition, loyalty, and tact" and that evaluative

opinions of managers are not susceptible to direct or

objective measurement "for many jobs that involve close

cooperation with one’s co workers." Watson, 487 U.S. at

991, 108 S. Ct. at 2787, 101 L. Ed. 2d at 843. This relates

to the employer’s defense in a disparate impact case of

business necessity and job relatedness for job requirements.

Watson, 487 U.S.at 997, 108 S. Ct. at 2790, 101 L. Ed. 2d

at 847.

The U.S. Magistrate Judge, in discussing the

employer’s promotion policy of promoting from within

based on seniority if other facts are equal, concluded that

"Given the attitude that Mr. Ilic had displayed, Liquid Air

was well within its rights to decide that Ilic was not

qualified to manage the plant and to chose Bostian and

Thompson over Ilic." (Petition, Appendix E, page 14a).

Other findings by the U.S. Magistrate Judge on

Petitioner’s attitude in his Report and Recommendation

include Petitioner’s "repeated challenges to and

confrontations with management and other employees

regarding various aspects of plant operations" (Petition,

Appendix E, page 11a); he manifested "an attitude that

management could properly conclude made Ilic an

unproductive employee requiring reprimands and

discipline" (Petition, Appendix E, pages 12a and 13a);

"made sarcastic responses to offered overtime" and that

"management was well within its rights to conclude that

this displayed an attitude not conducive to harmony and

good production" (Petition, Appendix E, page 13a); and

that his "challenges to authority were frequent and

disruptive” (Petition, Appendix E, pages 15a and 16a).

Thus, even under this Court’s Watson disparate impact

analysis with the appropriate employer defense of manifest

job relatedness requirements there were factual findings by

the lower court that Petitioner was not deserving of

promotion.

II. This Court’s Supervisory Authority Over Lower

Federal Courts Should Not Be Exercised When

Petitioner Is Arguing Evidentiary Issues.

This case does not present a special and important

reason for the Court’s supervisory authority review because

the Eleventh Circuit neither departed nor sanctioned

District Court departure from the accepted and usual course

of judicial proceedings.

Petitioner claims a departure in his Petition. Reason

No. III, pages 10 - 14 of Petition. However, a reading of

6

that portion of the Petition shows that Petitioner is just

rearguing the weight he feels that should have been given

to his evidence and his arguments on that evidence.

Petitioner disputes his lack of being promoted.

The writ should not be granted "merely to review the

evidence or inferences drawn from it." General Talking

Pictures Corp. v. Western Electric Co., 304 U.S. 175, 178,

58 S. Ct. 849, 851, 82 L. Ed. 1273, 1275 (1938); adhered

to 305 U.S. 124, 59 S. Ct. 116, 83 L. Ed. 81, reh’g denied,

305 U.S. 615, 59 S. Ct. 355, 83 L. Ed. 437 (1939).

This Court’s certiorari jurisdiction should not be

invoked to review evidentiary conflicts. N.L.R.B. v.

Pittsburg Steamship Co., 340 U.S. 498, 503, 71 S. Ct. 453,

456, 95 L. Ed. 479, 482 (1951). Factual questions are for

the trial court to resolve. J. 1. Case Company v. Borak,

377 U.S. 426, 431, 84 S. Ct. 1555, 1559, 12 L. Ed. 2d

423, 427 (1964). See also Ferguson v. Moore-McCormick

Lines, Inc., 352 U.S. 521, 528, 77 S. Ct. 459, 461, 1 L.

Ed. 2d 515, 522 (1957), Frankfurter, J., dissenting

(certiorari not proper when only thing in controversy is an

appraisal of facts on which [the Supreme] Court is being

asked to make a second guess, to substitute its assessment

of the testimony for that of the court below.")

The Magistrate Judge concluded that, “Given the

attitude that Mr. Ilic had displayed, Liquid Air was well

within its rights to decide that lic was not qualified to

manage the plant and to chose Bostian and Thompson over

llic." (Petition, Appendix E, page 14a). The Magistrate

Judge went on to find that, "Ilic has not proven that he was

qualified for the promotions in question and thus has not

established a prima facie case of discrimination with regard

ee tee ae se Pee a oS ee OR ie

to this failure to promote claim" (Petition, Appendix E,

page 15a).

Petitioner’s Questions Presented Numbers 2, 3 and 5

also raise evidentiary issues which are not for this Court to

review on certiorari. General Talking Pictures Corp. v.

Western Electric Co., supra.

Question No. 2 deals with Petitioner’s completion of

an EEOC questionnaire in which he admitted that he was

"very outspoken" (Petition, page 6). This and other

evidence supported the U.S. Magistrate Judge’s conclusion

of Petitioner’s "...repeated challenges to and confrontations

with management and other employees regarding various

aspects of plant operations." (Petition, Appendix E, page

lla); that Petitioner “displayed an attitude not conducive

to harmony and good production" (Id. at page 13a); that

Petitioner’s "challenges to authority were frequent and

disruptive." (Id. at page 16a) Petitioner’s reliance on

Antonopulos v. Curojet-General Corp., 295 F. Supp. 1390

(E.D. Cal. 1968) is misplaced because that case dealt with

equitable estoppel concerns at the motion to dismiss stage

and timely filing of a charge by pro se plaintiffs. That

issue is not in this case and Petitioner’s self alleged errors

were "corrected by EEOC in (his) official charge of

discrimination" (Petition, page 6).

Nor is Sanchez v. Standard Brands, Inc., 431 F.2d 455

(Sth Cir. 1970) applicable to this case as it also dealt with

reversal of an order dismissing a complaint for overly

technical reasons when the U.S. District Court disallowed a

relation back amendment to the charge.

Petitioner's Question No. 3 contains Petitioner’s

misunderstanding of what constitutes direct evidence of

8

discriminatory intent. There is no evidence that

management acted or said it refused to promote,

disciplined, or assigned overtime because Petitioner was

Yugoslavian or he practiced the Eastern Orthodox religion

which would have correlated to his complaint. See Caban-

Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990).

Petitioner’s cited authority in his Question No. 3 are

Eleventh Circuit cases that do not reflect any conflict with

other circuits, but go to the weight of his evidence which is

not set forth in his Petition where these cases are cited

(Petition, pages 7 and 8). The Eleventh Circuit denied

rehearing and Petitioner’s Suggestion of Rehearing En

Banc (Petition, Appendix A, page 1a).

Petitioner’s Question No. 5 raises Petitioner’ s

allegations of fabricated memos and his argument

references testimony by his two document expert witnesses

(Petition, page 9) without inclusion of the documents or

testimony, in Petitioner’s Appendix. Had this been

included it would further demonstrate Petitioner’s efforts to

have this Court review the evidence.®

Special and important reasons for this Court’s review

in the exercise of its supervisory power over the lower

federal courts were found if a jury trial was denied.

Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 509, 77

S. Ct. 443, 450, 1 L. Ed. 2d 493, 501, reh’g denied, 353

Respondent has chosen not to append the documents or relevant

trial testimony on this evidentiary issue because that would only

compound the error of presenting this Court with evidentiary issues

that were properly resolved at the trial Stage, J. 1. Case Company v.

Borak, supra. This is not a basis for certiorari jurisdiction.

9

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U.S. 943, 77 S. Ct. 808, 1 L. Ed. 2d 764 (1957). This

power was also discussed on the issue of waiver of self-

incrimination constitutional privilege in a civil case where

criminal contempt was imposed. Brown v. U.S., 356 US.

148, 161, 78 S. Ct. 622, 630, 2 L. Ed. 2d 589, 600, J.

Brennan, dissent, reh’g denied, 356 U.S. 948, 78 S. Ct.

776, 2 L. Ed. 2d 822 (1958). Failure to assess statutory

issues before constitutional issues necessitated review in

New York Transit Authority v. Beazer, 440 U.S. 568, 582,

99 S. Ct. 1355, 1364, 59 L. Ed. 2d 587, 600 (1979).

Similar compelling reasons of constitutional significance

for the grant of the writ do not exist here to justify review

under Supreme Court Rule 10.1(a).

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CONCLUSION

The petition for writ of certiorari should be denied

because it fails to provide any basis’ for United States

Supreme Court review of the Eleventh Circuit decision

below.

Respectfully submitted,

LEO P. ROCK, JR.

(Counsel of Record)

SUSAN T. SPRADLEY

GRAY, HARRIS & ROBINSON, P.A.

201 East Pine St., Suite 1200

P.O. Box 3068

Orlando, Florida 32802

(407) 843-8880

Attorneys for Respondent

Petition has provided five questions and three reasons for review

(Petition, pages i and ii) which Respondent has opposed and treated:

Petitioner Question Respondent’s Brief

No. 1 Page 4-6

No. 2 Page 8

No. 3 Page 8, 9

No. 4 Page 3, 4

No. 5 Page 9

Petitioner Reason Respondent’s Brief

! Page 4-6

I] Page 3, 4

Page 6-8

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