Opposition Brief — Hartnagel v. General Motors Corp.

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No. 94-1484

In The a -- ne ar sean

Supreme Court of the United States

October Term, 1994

— & sxinssparsinsinsnicenpnhtenneenionsnyasintian

ROBERT W. HARTNAGEL,

Petitioner,

- Vv.

;

; GENERAL MOTORS CORPORATION,

Respondent.

alia e Shiela iltehitaerlentteaicininittate

On Petition For Writ Of Certiorari

, fo The United States Court Of Appeals

: For The Fifth Circuit

‘ a

' BRIEF IN OPPOSITION

James K. Pepen, III, P.C.

Counsel of Record

STRASBURGER & Price, L.L.P.

901 Main Street, Suite 4300

Dallas, Texas 75202

felephone: (214) 651-4300

/ felecopier: (214) 651-4330

a Counsel for Respondent

: ST ES NE RAE RET

ee ee

a»

QUESTIONS PRESENTED

Whether the Court of Appeals for the Fifth Circuit

erred in affirming the District Court’s refusal to pro-

vide a jury instruction conforming to the standards

and burden of proof requirements imposed by Section

LOS of The Civil Rights Act of 1991 (42 U.S.«

§ 2000e-2(k)(1)(A)(1)) in a sex discrimination suit aris-

ing out of circumstances which occurred before

November 21, 1991, the effective date of the Act, and

tried after that date

Whether the Court of Appeals for the Fifth Circuit

erred in affirming the district court’s grant of Respon-

dent's motion for judgment as a matter of law with

respect to Petitioner’s state law breach of employ-

ment contract claim on the basis that Petitioner’s

contract was terminable at will

Whether the Court of Appeals tor the Fifth Circuit

can be required to issue an opinion in deciding Peti-

tioner’s appeal

LIST OF PARTIES

Petitioner Robert W. Hartnagel

Respondent: General Motors Corporation

RULE 29.1 LISTING

General Motors Corporation has no parent company

According to its Form 10-K Annual Report tor the vear

ended December 31, 1994, filed with the Securities

an i

Exchange Commission, domestic subsidiaries of General

a ’ 1 1 1. ,

Motors ¢ orporation not wholly owned are the following

(SM Ovonic, L.L.¢

EDS Personal Communications Corporation

Federal Computer Services Corporation

Subarban Limited Liability Company

For the additional information of the Court a

all General Motors Corporation subsidiaries, joint ven

tures and affiliates, both foreign and domestic, updated

to April , 1995, has been provided to the Clerk of the

( ourt

TABLE OF CONTENTS

QUESTIONS PRESENTED .... Pot

LIST OF PARTIES oo ' 11

TABLE OF CONTENTS... ; a iil

TABLE OF AUTHORITIES iv

OPINIONS BELOW oe

JURISDICTION eas | - 2

STATUTE INVOLVED 2

STATEMENT OF THE CASE.... oes 3

(1) Nature of the Case, Course of Proceedings and

Disposition in the Court Below...... 3

(2) Statement of Facts 5

(a) Hartnagel’s Employment History 5

(b) Hartnagel’s Sex Discrimination Claim 9

(d) Disposition ot Hartnagel’s Claims

REASONS FOR DENYING THE WRIT. 12

l. Section 105 of The Civil Rights Act of 1991 Is

Not Applicable to Claims Arising Out of Cir-

cumstances Occurring Betore Passage of the

, ~

2. Hartnagel’s State Law Breach of Employment

Contract Claim Was Properly Denied 24

3. The Court of Appeals Was Not Required to

Issue an Opinion 26

CONCLUSION 27

PABI

’ 4 ry } } 7

Benoit v. Polysar Gulf Coast, Ine 2

/ y 2 ey ; a -

(Tex. App Beaumont 1987, writ ref

Bowen Georgetown University Hosptti

~ | 4

204, 109 S. Ct. 468 (1988)

) ] ) , a | J rT) 4

Br dUdlieYy ¢ IN aesi Nad SCH a) ru $16 |

S. Ct. 2006 (1974)

Crum Lorn im Alriin 1} 946 |

Cir. 1991)

re . I = ?

Davy the Zin Mle rath ( Hatridge 5

1 5

(Tex App lex. ana ivy, no

I J z ’ “4

rederal Expre I {f } YP, S46 SVM 2a £

1983)

. ; I] } >? 7* a 4

ruUrman Cirlifed OTales, 2U F.2d 2605 (Za ‘'

‘ ry re ee } 2s“ A

Griggs Vv. DUKe ver ( 401 U.S. 424,915

(1971)

r ’ } a ~ ~

JOMMSON 7 Ln He? } 9605 i 2d LIOD

1992), cert. denied U.S 114.S

(1994)

Kaiser Aluminum Chemical Corp Bor

U.S. 827, 110 S. Ct. 1570 (1990)

rT « 4 . ze . BB j 4

anagrafv. U.o.1 Mm rroau LS

a At _

Ct. 1483 (1994)

AA +h], 2 r { C 17417

VIATIMNewWS { } SOU i Up] 1 OF (f

1Q0O4

1994)

h y } ) ) 4

»+ ; a |

VATION! Wl i Re ( { l B ira

| TA } 4 471 5

: omy

Cir. 19/0)

TABLE OF AUTHORITIES Continued

Patterson v. McLean Credit Union, 491 U.S. 164, 109

S. Ct. 2363 (1989).

Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d 536 (Tex

App Corpus Christi 1982, no writ)

Richard General Motors Cor 99] F.2d 1227 (6th

Cir. 19935)

Rive? Koadway Expre H U.S , 1145

1 7 \ ) gx

Ct. 1510 (1994) id, &%% 32

chroeder lexa ron Work | $13 S.W.2d 183

lex. 1991)

ule? Pickar, 958 F.2d 103 (5th Cir. 1992)

ag |

Lay } (Genera Motor Corp $26 | 2d $52 (6th

Cir 1YS8/)

faylor v. McKeithen, 407 U.S. 191, 92 S. Ct. 1980

(1972)

Torre v. Federated Mut. Ins. Co., 854 F. Supp. 790 (D

Kan. 1994)

, eas <3 ; : ae

Lintted Stat Bay 48 F.2d 481 (3d Cir. 1977)

lA rds ( Pa King ( P \f 477 19() l C 642

y4 o 1

109 S. Ct. 2115 (1989

Watson Fort Worth Bank and Trust, 490 U.S. 977

108 S. Ct. 2777 (1988)

Tt eS , 7) ode) 1 ) |

y¥¢ } } Vi /\ K eit a ( () _ V\ a 124 (Tex

A ry {4 } “ " 4

\pp fiouston |14th Dist.| 1986, writ ref’d

n.r.e.)

Zimmerman v. H.E. Butt Grocery Co., 932 F.2d 469

mae P

(5th Cir.), cert. denied U.S Li2 S. Ot. 59)

1991)

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14 5

No. 94-1484

In The

Supreme Court of the United States

October Term, 1994

ROBERT W. HARTNAGEL,

GENERAL MOTORS CORPORATION,

On Petition For Writ Of Certiorari

lo The United States Court Of Appeals

For The Fifth Circuit

BRIEF IN OPPOSITION

OPINIONS BELOW

Petitioner's claims were denied by the District ¢ ourt

and that denial was affirmed by the Court of \ppeals

without the issuance of an opinion by either court. Con

formed copies of the Final Judgment-in the District Court

| F * ]

and the Order of Afttirmance in the Court of Appeals are

ittached as Appendices to the Petition for Writ of Cer-

JURISDICTION

The Court of Appeals affirmed the District Court's

judgment on September 6, 1994. Petition for Rehearing

and a Suggestion for Rehearing En Banc were denied by

the Court of Appeals on October 27, 1994. This Court has

jurisdiction to review the judgment in this case in the

Court of Appeals pursuant to 28 U.S.C. § 1254(1). The

Court of Appeals had jurisdiction of this matter under 28

U.S.C. § 1291 as an appeal from a final judgment of the

District Court. The District Court had jurisdiction to hear

the merits of Petitioner’s initial age discrimination claim

under 29 U.S.C. § 626(c)(1) and to hear Petitioner’s breach

of contract claim under the doctrine of pendent jurisdic-

tion.

STATUTE INVOLVED

42 U.S.C. § 2000e-2(k) provides in pertinent part the

following:

‘iy

(k) Disparate impact as a basis of practice

(1)(A) an unlawful employment practice

based on disparate impact is established under

this subchapter only if

(1) a complaining party demonstrates that

a respondent uses a particular employment

practice that causes a disparate impact on

the basis of race, color, religion, sex, or

national origin and the respondent fails to

demonstrate that the challenged practice is

job related for the position in question and

m 7 +

consistent with business necessity;

were oe ee

42 U.S.C. § 2000e(m) provides the following:

“The term ‘demonstrate’ means meets the

burdens of production and persuasion.”

STATEMENT OF THE CASE

(1) Nature of the Case, Course of Proceedings and

Disposition in the Court Below.

[his action was originally brought by Robert W.

Hartnagel (“Hartnagel”) on April 29, 1988, against Gen-

eral Motors Corporation (“General Motors”) for alleged

discrimination on the basis of Hartnagel’s age in violation

of 29 U.S.C. § 623(a) and for the alleged breach of an

employment contract. Hartnagel later amended his com-

plaint to include a claim of sex discrimination in violation

of 42 U.S.C. § 2000e-2(a). At the conclusion of all the

evidence in the case and before submission of the case to

the jury the District Court granted judgment as a matter

of law for General Motors on Hartnagel’s breach of con-

tract claim.

With regard to Hartnagel’s claims of age and sex

discrimination, the District Court instructed the jury that °

it should find for Hartnagel if Hartnagel proved that age

or sex was a determining or motivating factor in General

Motors’ decisions leading to Hartnagel’s termination of

employment. The jury was further instructed that if Gen-

eral Motors’ decisions regarding Hartnagel were made as

a matter of business judgment and not because of Hart-

nagel’s age or sex then the jury should find for General

Motors, and further, that if Hartnagel presented evidence

of age or sex discrimination and General Motors pre-

sented evidence of a non-discriminatory reason for its

actions, Hartnagel would have the burden of proving that

the reasons offered by General Motors were a pretext.

The District Court refused to submit the following jury

instruction requested by Hartnagel:

“Plaintiff claims in this case that Detendant had

or has an unlawful employment practice based

on disparate impact. An unlawful employment

practice based upon disparate impact is estab-

lished if the plaintiff demonstrates that Defen-

dant uses or used a particular employment

practice that causes a disparate impact on the

basis of sex. The Defendant then has the burden

of proving that the challenged practice is job

tent with business necessity. Plaintiff need not

related for the position in question and consis-

prove Defendant's discriminatory intent in a

disparate impact case. He only needs to show

that a facially neutral employment criteria dis-

proportionately disqualifies persons similarly

situated to the Plaintiff from employment with

the Defendant

In support of his request Hartnagel relied in part upor

Section 105 of The Civil Rights Act of 1991 (the “Act”) (42

U.S.C. § 2000e-2(k)(1)(A)(i) (hereinafter “Section 105”))

In a verdict returned lanuary 30, 1992, the jury found that

Hartnagel did not prove that General Motors discrimi-

nated against him because of his age or because of his

sex. A final judgment based upon the jury verdict dis

missed the entirety of the case with prejudice

(2) Statement of Facts.

(a) Hartnagel’s Employment History.

Hartnagel started work with General Motors in May

1960. In 1975 he was sent to Dallas, Texas, as regional

manager of General Motors’ public relations office in that

city. In 1981 General Motors made a management deci-

sion to begin closing regional public relations offices.

[his led to office closings in Boston, Indianapolis, San

Francisco and Southfield, Michigan. In 1984 there was a

further restructuring of the entire corporation resulting in

closings of public relations regional offices in Jackson,

Mississippi, Buffalo, Cleveland, Kansas City and Phila-

delphia. Plans were developed at the same time to close

Dayton, Atlanta and Dallas offices in 1986. As early as

1984 Hartnagel was told of the possibility that the Dallas

ottice would close

While Hartnagel was in Detroit in the latter part of

October 1986, one of his supervisors, Bill Quigley,

advised him that the Dallas office would close at the end

of the first quarter of 1987. Quigley gave this advance

notice to Hartnagel because he was aware of the medical

condition of Hartnagel’s wife, and felt he owed Hartnagel

the courtesy of some advance notice because of his situa-

tion. Hartnagel did not challenge the decision to close the

Dallas office, and was prepared to support the decision.

At this October meeting Quigley told Hartnagel that

he wanted him to come to Detroit for a comparable job as

a public relations person for an executive. Alternatively

Hartnagel could accept a separation with a cash buyout

of one years’ severance pay plus six months of medical

insurance coverage. Hartnagel returned to Dallas to dis-

cuss the situation with his wife.

Because the operations of the Dallas regional office

were being merged into the Chicago regional office, Hart-

nagel asked Jim Crellin, his immediate supervisor, if he

could continue in a regional assignment in the Chicago

office. There was, however, a manager already in place in

the Chicago office. Hartnagel also talked to Quigley

again, but there was no change. He was told basically

that the Detroit public relations position was the job

Quigley needed someone to do, and Hartnagel was very

qualified for the job. Hartnagel then went to Detroit and

talked to Jack McNulty, the vice president in charge of

public relations for General Motors. He was again

advised that plans were firm and there was no way to

change. Following the meeting with McNulty, Hartnagei

received a letter which confirmed the offer of the position

in Detroit comparable in level and salary to his current

position.

After meeting with McNulty, Hartnagel returned to

Dallas and told his staff of the anticipated closing of the

Dallas office. After receiving a phone call from Crellin in

Detroit, who was upset that Hartnagel had informed his

staff of the Dallas closing, Hartnagel began suffering

chest pains. His doctor advised him to go home and rest,

following which Hartnagel requested sick leave. During

this time Hartnagei prepared letters to General Motors

complaining of the treatment he was receiving from the

company. He subsequently had several conversations

with Jim Berschback, a General Motors personne! staff

member assigned to investigate Hartnagel’s complaints

In one of those conversations Berschback informed him

that the Detroit job was no longer available. By that point

Hartnagel had made it known that he could not accept

the job in Detroit, and the job had been filled by another

experienced General Motors public relations employee.

Hartnagel stayed on sick leave until March of 1987

during which time he received full compensation and

benefits. At that time Berschback called Hartnagel and

told him his staff had not yet been able to identify a job

for Hartnagel, and that a member of his staff would

contact Hartnagel to discuss the situation with him when

a position was identified. Nothing happened until

August 1987 when Berschback called to say that his staff

was still unable to identify a job for Hartnagel and to

inquire about Hartnagel’s taking a separation package.

During this time Hartnagel was continuing to draw his

full salary and benefits

In October 1987 Bill Quigley called with the offer of a

new job in Warren, Michigan, a Detroit suburb, in a news

relations position. This offer was at Hartnagel’s present

salary and would include all relocation expenses. An

alternative offer was for a separation package involving a

twenty-month severance payment ($100,000) plus six

months of continued medical insurance.

Hartnagel went to Detroit about this position and

while there visited with Helen Moye, another member of

General Motors’ personnel staff. Hartnagel told Moye

what he really wanted was to stay in Texas to be with his

wife, and that it would be devastating for him and his

wife if he had to come te Detroit. What he needed was

money to live on and medical benefits. At the end of their

conversation it was agreed that he would go back to

fexas and wait for a call from her to try to give him what

he wanted. Conversations continued through December

and into January of 1988 when Hartnagel was placed on a

y 1 ” . 11

Sper lal assignment for a pe riod Of six months im Dallas

Starting on January 1, 1988, during which he would get

full pay and full benefits. He would then be laid off for

two years, at seventy-five percent pay for the first six

months and at sixty percent of his pay for the last eigh-

teen months, along with full benefits for the entire

period. The purpose of this arrangement was to provide a

bridge to “thirty and out” (an option for retirement avail-

able after thirty vears of service at General Motors)

Hartnagel’s layoff status continued until April of

; a

1990 when General Motors oftered him still another pos!

, ’ ,

tion aS a Manager in the tocknolder relator depart

ment, or aliternativels inotner retirement package

Hartnagel’s initial response to this offer was to seek from

the district court an injunction enjoining General Motors

rom extending the offer. After a hearing, however, Hart

nagel withdrew his motion and accepted the position in

Detroit

Hiartnage worked if tne ti KM ler relatic

department through the remainder of 1990 and into 1991]

Atter ( hristma yt YY() } WwW ¢ er, Me tol, Nis upe! at;

Dale Cooper, that he would have to continue on a part

} | ,

time basis from that point On dDecause Ne Nad person

- ! | 1? ] | 1]

problems at home in Dallas related to hi w ite iline

i | } , ,

He would Work for a tWOoO Week period and then would De

yone tor two week Hartnavel tnitially used |

for this purpose, but ran out of vacation in April of 19

TT 41 _ ] i

tie then sent Dale Cooper a memo advising her of hi

forecasted personal absence from that late forward

2} _ ~~? j ‘ } r C

through June. This prompted a memo from the business

5 r I

manager of the public relations staff advising Hartnagel

that anv davs in excess of his vacation days would be

treated as personal leave days under ( eneral Motors’

j > ) T | > ;> | s oe 2) tT rraTy whi } A’ \ | 4 TY 5 -

dependent care leave program, which would mean an

absence without pay. Hartnagel would not agree to this

arrangement and on May 6, 1991, sent his own memo to

the business manager advising of his view that unpaid

leaves of absence without Hartnagel’s consent constituted

a breach of contract and termination of his employment

He accordingly advised of his intent begin drawing

retirement benefits commencing July 1, 1991, furthe:

idvising that his actions should not be taken as volun

? |

tary

As of July 1, 1991, Hartnagel ceased to be on the

General Motors’ pavroll

(b) Hartnagel’s Sex Discrimination Claim.

In support of his disparate treatment sex discrimina

tion claim Hartnayvel testified about statistical results of

his study of employment intormation provided to him by

] "

General Motors in the course of this litigation. The gist ot

Hartnagel’s study was that the percentage of femaies in

]

the General Motors pub

years 1986 through 1989, that the percentage of females

working in public relations for General Motors was over

: — ee a !

twice the percentape of females in General Motor’s total

work torce. and that in the vears 1986 through 1988 more

males separated from the public re:ations statf than

females

Hartnayel offered no evidence tsolating or identify-

Ing any specific General Motors employment practice

alleged to be responsible tor any observed statistical dis

parities. Rather, the only “employment practice” of which

Hartnagel complained was his personal experience of not

being offered the Chicago job he wanted, and only being

offered jobs in Detroit which he felt he could not take and

which he felt were designed to cause him to retire

When asked what his statistical evidence had to do

with his situation, Hartnagel responded, “It had to do

with the fact that | am yvone and they are there. | was

ottered jobs that were impossible for me to do and they

were offered jobs that they could do. And that’s the

difference. The effect ot the iob that | was offered under

mv circumstances was to force me to accept separation

While Hartnagel claimed to have knowledge about the

flow of applicants tor positions with General Motors and

the qualifications of applicants he offered no testimony in

that regard

Hartnagel’s Employment Agreement with General

Motors provided in pertinent part the tollowing

l Phe Employee ayrees to devote his

time and service tn the employ of the Employer

In such capacity as the Emplover may direct

j } 1 t

2 fhe Employee acknowledges that his

Yioyvment under this avreement 1s trom

month to month only on a calendar month basis

; In consideration of the services to be

performed by the Emplovee for the Employer, in

any and every capacity, the Employer agrees to

pay the Employee, , compensation at the

monthly rate set forth on the ‘Compensation

Statement’

) [he Employer and the Employee

acknowledge that there are no other arrange-

ments, agreements, or understandings, verbal or

in writing, regarding same and that any- mod-

ification or amendment hereof, other than a can-

cellation and replacement hereof by another

written form of agreement, must be endorsed

hereon in writing and initialed by both the

f mployee and the I mployer "

Hartnagel claims a contractual obligation also arose

out of a General Motors brochure entitled “A Renewed

Commitment” apparently distributed to the public rela

tions staff central office in 1982. The brochure stated in

the part upon which Hartnagel relies, “Specifically,

length of service now will be the primary consideration

in any reduction involving employees with five or more

years’ length of service.” Hartnagel also claims contrac-

tual obligations arose out of a 1982 five-page memoran

dum on the subject “Communications Brochure — Salaried

Employee” distributed to regional managers which

included the statement, “The commitment to improved

job security applies to all salaried employes — including

the Corporation’s most senior and valued executive

group

(d)

yranted Genera

premise that the employment contract w

will. The jury then tound that Hartnagel did

that General Motors discriminated against hi

structively discharging him because ot his age

of his sex, and a tinal judgment was entered

the entirety yf the case with preyuaice [hat

was affirmed by the Court of \ppeals with

REASONS FOR DENYING THE

Disposition of Hartnagel’s Claims.

a matter

t B

WRIT

[This writ should be denied because there are no

special and important reasons” for granting. Sup. Ct. R

10.1. The Court of Appeals’ attirmance without opinion of

the District Court’s denial of Hartnagel’s claims present

no conflict with any decision of another court of ippeal

or of this Court, either apparent or implied. To the con

trary, with respect to the only arguably significant federal

issue in this case, the ipplic aon of Section 105 of The

Civil Rights Act of 1991 to this case, the District Court's

refusal to apply Section 105 and the Court of Appeals

affirmance of the District Court’s judgment, is entirely

consistent with the guidelines established by Landgra

U.S.1. Film Product U.S 114 S. Ct. 1483 (1994)

and Rivers Roadway Expre Ih US 1145. Ct

1510 (1994)

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bw gH FF ¢ ¢ > = @ > mz »>m & om YY SD = so ?

me “ J + > ~ - -_ { ~~ -~ - / a

ies ~~ ~ , é ~ ne » enh not

- — ~~ ~ ) f - — A f « _ ou - = ~ os ~

~ 4 ¢ : an m ~ r* J - ome

- ” / - e 4 ”" - - . - ba. ( ‘ rset

rs 4 ae ~ ~ baw “ , oe ~ oe a sg fs ~ .

: w a oJ - J on + eee o ~ asl r ~~ - o c 2) : ~~ ~ =

— - : —_ ” = — ls se dene ~ " 4 = od “ ou

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—_ ” a ome ~ ~ ~ — oubee a

where no prima facie case of disparate treatment is estab-

lished, it is unnecessary to reach the issue of the applica-

tion of Section 105. See, Johnson v. Uncle Ben's, Inc., 965

F.2d 1363, 1372 (5th Cir. 1992), cert. dented, U.S .

114 S. Ct. 1641 (1994); Torre v. Federated Mut. Ins. Co., 854

F. Oupp. 790, 809 n.15 (D. Kan. 1994)

Nor do the issues raised by the Petition, assuming

t afte IOC OSS i CSCrire¢ t a, qi itl o> Case,

they are necessarily presented by the record in this ca

warrant this Court’s plenary attention.

l. Section 105 of The Civil Rights Act of 1991 Is

Not Applicable to Claims Arising Out of Cir-

cumstances Occurring Before Passage of the

Act.

Both Landgraf v. U.S.1. Film Products, __ U.S. ___, 114

S. Ct. 1483 (1994), and Rivers v. Roadway Express, Inc., —_

U.S. ~114S. Ct. 1510 (1994), considered the retroactive

ettect of particular sections of The Civil Rights Act of

1991 in the context of cases pending in their respective

courts of appeal at the time of passage of the Act. In both

cases the conduct of each of the defendants upon which

the claims against them were based occurred prior to

passage of the Act. Landgraf addressed those parts of

Section 102 of the Act, Pub. L. 102-166, 105 Stat. 1071,

creating a right to recover < ympensatory and punitive

damages for certain violations of Title VII of The Civil

Rights Act of 1964 (codified at 42 U.S.C. § 198la(b)), and

providing for a trial by jury when such damages are

sought (codified at 42 U.S.C. § 198la(c)). Rivers focused

on the application of Section 101 of the Act (codified at 42

U.S.C. § 1981(b)) defining the term “make and enforce

contracts” as used in Section 1 of The Civil Rights of Act

of 1866 (codified at 42 U.S.C. § 1981(a)). In each case the

courts of appeals’ decisions declining to apply the respec-

tive provisions of the Act to events pre-dating passage of

the Act were upheld. Notwithstanding the slightly differ-

ent procedural context of the present case and that a

difterent section of the Act is under consideration, the

] snk ‘(71420% n ] ‘1, ‘ :

analysis in Landeraf and Rivers compels the conclusion

that Section 105 of the Act is not applicable to Hartnagel’s

laim

andgraf resolves two general issues regarding retro-

4 2 .

ictivitvy of the Act and reaffirms the general presumption

rr AINct _ | ition ot statute try onduct Aro.Aatinmo

avaINST apt Cation {1 STATUTES i) CQTICiuC t } i { Caai LITLE

enactment of a statut

(with the ex« eption of two minor provisions not applica

ble to Landgraf, Rivers or the present case) provides any

indication of Congress’ intent with respect to the retro-

spective or prospective reach of various provisions of the

Act was rejected. Landgraf at 1493-95. Second, the absence

tirmed. [d. at 1495-96. Third, the Court has eliminated the

apparent tension,” Kaiser Aluminum Chemical Corp

Bonjorn 1494 U.S. 827, 110 S. Ct. 1570 (1990), between the

long-standing principle that “retroactivity is not favored

in the law,” as a_consequence of which “Congressional

5 j 1] > , +.

enactments and administrative rules will not be con-

’ }

strued to have retroactive effect unless their language

requires this result howe ( rvetou Iniversity H

- ri 5 1/10) { a | \ .

pital, 488 U.S. 204, 109 S. Ct. 468 (1988), and pronounce

ments that “a court Is to apply the law in effect at the

} } ‘ » ue ]

time it renders its decision, unless doing so would result

— — — + * ! - ] +, 2) hij h ]

presumption against retroactive iegisiation [wi ICM; |

laarlt, + . 1 ' ~ tO lag

deeply rooted in our jurisprudence nd embodies a leg.

: trir t lider th . 117 Re rib 1j4 s + +

LOctrine enturies O!1de! an our Nepudilc ist t. a

1¢ n ‘ ~ sh} | " sat } . } . aX ’

149 and recognition that the Ourt Nas dadeciined to give

‘ ,

+e t >? + - ,r ‘

retroactive effect to statutes Durdening private rights

r | ,OrT } ry | ] r mt } ¢ 1100 4

uniess ¢ OnYerTess NaS Madge Clea! S inten Lu 1+ AS

, P

this Court observed

das ] } dyhayf# } .

But while the 1/ impediments to ret

}

‘ . 4 bat nO +) / t wr

TOaCcthve Wii teYSiatlon are NOW modest Dro

? 5 |

' 1+ : +} , “ 7 4 + 11D

peculvity remairs the appropriate Gefauit rule

i] . © 1 1 }

114 8. Ct t Yet (empnasis in the original

t a 4 ] } , - —

Under the Court’s analysis, however, a determinatior

exDression oO

ex pre on of

oad

_—

onal

CONYTessl

favor of retroactivity does not end the inquiry

| P _ . ~ +. > ) ; ty

[he statute does not operate ‘retrospectively

merely because it

from conduct

| ‘

is applied in a case arising

anti-dating the statute’s enactment

; ™ . : : ) } . " —_ |

[citation omitted]. Rather the court must ask

{ |

, rer .

whether the new provision attaches new legal

CONSeqGueNnces

to eve

—

its completed before its

enactment.”

summarized

1499. The discussion of retroactivity

in the following:

“When a case implicates a federal statute

enacted after the events in suit, the court’s first

task is to determine whether Congress has

expressly prescribed the statute’s proper reach.

It Congress has done so, of course, there is no

W a »

need to resort to judicial default rules. When,

however, the statute contains no such express

command, the court must determine whether

the new statute would have retroactive effect

!.e., Whether it would impair rights a party pos-

sessed when he acted, increase a party's liability

for past conduct, or Impose new duties with

respect to transactions already completed. If the

statute would operate retroactively, our tradi-

tional presumption teaches that it does not gov-

ern absent clear Congressional intent favoring

such a result.”

114 S. Ct. at 1505.

[he present case involves Section 105 of the Act.

particularly that portion of the section codified at 42

U.S.C. § 2000e-2(k)(1)(A)(i) previously quoted. As this

Court has observed, The Civil Rights Act of 1991 is

largely a response to a series of Supreme Court decisions

interpreting The Civil Rights Act of 1866 and The Civil

Rights Act of 1964. Of apparent particular concern to

Congress was the decision in Wards Cove Packing Co. v.

Atonio, 490 U.S. 642, 109 S. Ct. 2115 (1989), specifically

mentioned in both Sections 2(2) and 3(2) of the Act

section 105 is in direct response to Wards Cove. Landg:

114$. Ct. at 1489

In Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849

(1971), this Court made clear that a neutral employment

practice which operates to exclude minorities is neverthe-

less unlawful! unless it serves a valid business purpose.

“The touchstone is business necessity.” 401 U.S. at 431, 91

5. Ct. at 853. Following Griggs, a number of federal deci-

sions appeared to establish that in a disparate impact case

involving a facially neutral employment practice if an

employee could demonstrate a prima facie case of unlaw

ful discrimination, it was the burden of the employer to

present and prove as an affirmative detense a business

necessity for the practice in question. Wards Cove Packing

Co. v. Atonto, 490 U.S. 642, 668 n.14, 109 S. Ct. 2115, 213]

n.14 (Stephens, J., dissenting).

In Wards Cove, however, it was held that if the plain-

tiff made out a prima facie case of disparate impact, the

employer's burden would be to produce evidence of a

business justification for the challenged employment

practice. The Court observed that the justification could

not be insubstantial; on the other hand, the challenged

practice did not have to be “essential” or “indispensable”

to the employer’s business. The Court further observed

that while it was the employer’s burden to produce evi-

dence of a business justification for his employment prac-

tice, the burden of persuasion would remain with the

plaintiff. 490 U.S. at 657-59, 109 S. Ct. at 2125-26.

Section 105 clearly responds to Wards Cove and over-

rides it. Whether Wards Cove or Section 105 provides the

rule applicable to this present case depends upon the

answer to two questions. Is there any clear expression of

congressional intent that Section 105 applies to events

pre-dating passage of the Act? Would application of Sec-

tion 105 to this case result in a retroactive application

impermissible in the absence of a clear expression of

congressional intent? The answer to the first question is

no; the answer to the second is yes. Consequently, the

statute does not apply

As previously noted, in Landgraf this Court found no

expression of congressional intent that the Act or any

section of it be applied retroactively. The Laiidgraf peti-

tioners argued that such an expression is found in Section

402(a) of the Act (codified at 42 U.S.C. § 1981 note) which

provides, “Except as otherwise specifically provided, this

Act and the amendments made by this Act shall take

effect upon enactment.” The argument was made that

two provisions of the Act required prospective applica-

tion in two specific circumstances, suggesting the conclu-

sion that in all other circumstances the Act would apply

retrospectively. This Court rejected that contention,

believing that Congress would have chosen a more direct

means of expressing any intent that the Act applied retro-

spectively. 114 S. Ct. at 1495.

[his holding is emphasized here because one of the

circumstances in which Congress has mandated that the

Act apply only prospectively is to the parties in the Wards

Cove case. Section 402(b) of the Act (codified at 42 U.S.C.

§ 1981 note). A specific exception for the Wards Cove

parties does not support an inference that the Act is to be

applied retrospectively in all other disparate impact

cases. As this Court observed, this would be a sur-

prisingly indirect means of conveying such an important

message. A more likely explanation is that precedent on

the retroactivity issue left doubts about what rules would

apply in the absence of congressional guidance. Given

that doubt, Congress did not want to leave to the courts

the issue of whether the Act should or should not apply

to the Wards Cove parties, and expressly provided it

would not.' 114 S. Ct. 1495

Likewise, Congress did not want to leave to the courts the

issue of whether the Act would apply retrospectively to

In the absence of a clear expression of congressional

intent that a statute operate retroactively, the inquiry is

whether application of the statute in a particular case

would have a retroactive effect. If it would, it should not

be applied. Landgraf, supra, at 1505. Comparing the effect

of Section 105 to Sections 101 and 102 considered in

Rivers and Landgraf, respectively, confirms that use of

Section 105 in the present case would be an impermissible

retroactive application.

First, with respect to the burden of proof issue, Land-

graf eliminates any notion that the burden of proof

requirement incorporated in Section 105 should be given

effect simply because it is a procedural matter. In Land

graf, it was observed that while the creation of a right to a

jury trial might be considered a purely procedural matter

applicable to trials taking place after the effective date of

the statute, the jury trial provisions of Section 102 of the

Act applied only to cases in which the complaining party

sought the compensatory or punitive damages newly

authorized by the same section. As a consequence, appli-

cation of the jury trial option had to stand or fall with the

damage provisions under consideration. 114 S. Ct. at

1505. Here, the statutory placement of the burden of

proof in disparate impact cases is inextricably inter-

twined with Section 105 and its reordering of the ele-

ments of a disparate impact case. Application of that part

of Section 105 (and Section 104) placing a burden of proof

on the defendant must stand or fali with the remainder of

Section 105.

overseas employers, expressly providing that it would not. Sec-

tion 109(c) of the Act (codified at 42 U.S.C. § 2000e, note).

Application of the “business necessity” standard

imposed by Section 105 would be a clear retroactive

application of the Act. Under Section 105, the burden

now falls on the employer to demonstrate not just busi-

ness justification for a challenged practice, but that the

challenged practice is job related for the position in ques-

tion and is consistent with business necessity. Under the

statute, there is an obvious expansion of the definition of

the type of conduct which could support a discrimination

claim, that being conduct which, although justifiable as a

business practice, is not essential or necessary to the

employer's business. This has the effect of adding new

legal consequences to past conduct, an effect which Land-

graf clearly characterizes as retroactive. 114 S. Ct. at

1506-07. See, Matthews v. Runyon, 860 F. supp. 1347, 1354,

1355 (E.D. Wis. 1994).

[he retroactive effect of application of Section 105 to

pre-enactment conduct is even more forcibly illustrated

by Rivers v. Roadway Express, Inc., __ U.S. ___, 114 S. Ct.

1510 (1994), in which the Court considered application of

Section 101 of the Act, in which Congress extended lia-

bility under 42 U.S.C. § 1981 to embrace all aspects of a

contractual relationship, including contract terminations.

The Court found this to be an even more clear example of

retroactivity because of the expansion of the definition of

conduct for which there could be liability under 42 U.S.C.

§ 1981, not just an expansion of the damage exposure

brought about by Section 102. 114 S. Ct. at 1515. As noted

above, Section 105 expands the liability of an employer to

include those forms of conduct for which a _ business

justification exists but for which there is no business

necessity.

Rivers also directly addresses, and refutes, the pri-

mary argument advanced by Hartnagel in support of his

contention that Section 105 should be applied retroac-

tively. Specifically, the main thrust of Hartnagel’s argu-

ment is that Section 105 should be applied in this case

because it “restores” the law pertaining to disparate

impact claims to the form in which it existed prior to the

decision in Wards Cove Packing Co. v. Atonio, 490 U.S. 642,

109 S. Ct. 2115 (1989). Hartnagel argues that because of

the clearly expressed intent of Congress to overrule that

decision, that decision should no longer apply, not even

to conduct which pre-dated enactment ot he “overrul-

ing” legislation. (Petition 17-29).

[he petitioners in Rivers advanced the same argu-

ment, contending that Section 101 of the Act should apply

in their case because it was “restorative” of the under-

standing of 42 U.S.C. § 1981 which prevailed before the

decision in Patterson v. McLean Credit Union, 491 U.S. 164,

109 S. Ct. 2363 (1989). The Rivers petitioners argued first

that Congress’ purpose of “restoring” pre-Patterson law

indicated an affirmative intent that Section 101 be applied

to cases arising before its enactment. They further argued

that there exists a “presumption in favor of application of

restorative statutes” to cases arising before their enact-

ment. 114 S. Ct. at 1515. The Rivers petitioners also

argued, as could be argued in this case, that where a new

statute simply enacts a rule which the parties could have

believed to be the law when they acted, the concerns of

unfairness relating to retroactivity do not exist. 114 S. Ct.

at 1517

This Court rejected those contentions, concluding

that the fact that Section 101 was enacted in response to

Patterson did not supply sufficient evidence of a clear

congressional intent to overcome the presumption against

statutory retroactivity. 114 S. Ct. at 1517. It further con-

cluded that its prior decisions simply did not support the

proposition that the Court had espoused a “presumption”

in favor of retroactive application of restorative statutes.

1145. Ct. at 1518. “A restorative purpose may be relevant

to whether Congress specifically intended a new statute

to govern past conduct, but we do not ‘presume’ an

intent to act retroactively in such cases. We still require

clear evidence of intent to impose the restorative statute

‘retroactively.’” Jd.

Here, there is no clear expression of congressional

intent which would support the application of Section 105

to supplant Wards Cove as the law applicable to any Title

Vil disparate impact claim in this case.

In summary, no provision of The Civil Rights Act of

1991 indicates that Congress intended for any particular

provision of the Act to be applied to claims arising out of

events which occurred prior to its enactment. In the

absence of any clear expressions of congressional intent,

the presumption is that statutes will not be applied to

have retroactive effect, even when the legislation sup-

plants a judicial decision. Because Section 105 of the Act

expands liability for conduct occurring prior to passage

of the Act, its application to this case would have an

impermissible retroactive effect. Accordingly, the district

court acted correctly in declining to submit an instruction

premised upon the business necessity and burden of

proof provisions of Section 105 of the Act.

2. Hartnagel’s State Law Breach of Employment

Contract Claim Was Properly Denied.

lexas contracts providing for employment at will are

terminable at any time by either party, with or without

cause, absent an express agreement to the contrary. Fed

xpress v. Dutschmann, 846 S.W.2d 282, 283 (Tex

eral

1983): Si hroeder i? lexas lron Works frre , & | ,S W 2d 1S3,

189 (Tex. 1991). In an action for wrongful discharge an

employee must prove that he and his employer had a

contract that specifically limited the employer's right to

terminate the employment contract at will. Benoit v. Poly

sar Gulf Coast. Ini 728 S.W.2d 403. 406 (Tex Ap}

Beaumont 1987, writ ref’d n.r.e.); Webber v. M.W. Kellogg

Co., 720 S.W.2d 124, 127 (Tex. App. — Houston [14th Dist. ]

)

1986, writ ret’d n-r.e.). Federal decisions adhere to the

lexas position that there can be no claim for breach of an

employment contract uniess specitic express Provisions

limit the employer’s right to terminate the contract at any

time tor any reason. Spuler v. Pickar, 958 F.2d 103, 106 (5th

Cir. 1992): Crum v. American Altrlines, Inc., 946 F.2d 423

(5th Cir. 1991); Zimmerman v. H.E. Butt Grocery Co., 932

.2d 469, 471 (5th Cir.), cert. dented, us ,112S. Ct

591 (1991)

Hartnagel’s month-to-month employment contract

with General Motors contained no provisions which spec

itically, expressly or otherwise limited the right of either

party to terminate the employment agreement. Character

ization of Hartnagel’s contract as “at will” is confirmed

by decisions under Michigan law denying claims of

wrongful termination of the identical contract. Taylor

General Motors Corp., 826 F.2d 452 (6th Cir. 1987); Richards

v. General Motors ( orp., DT F.2d 1227, 1234 (6th Cir 199%)

[he general rule in Michigan, as in Texas, is that in the

absence of an agreement otherwise, an employee for an

indefinite term is terminable at will

Hartnagel further argues, however, that additional

rights were conferred upon him by the communications

from General Motors described previously. Under Texas

law these communications DY General Motors to it:

employees did not modify or supplement Hartnagel’s

employment contract. The brochure and memorandum

upon which Hartnagel relies are comparable to hand

books and other policy statements which Texas courte

have consistently held not to modify or otherwise limit a

contract terminable at will. Day & Zimmerny vin, In

Hatridge, 831 S.W.2d 65, 69 (Te App lexarkana 1992

no writ) B Noll Yr {Sid} ridif | ist, | 728 > W | + )

106 (Tex Lp] Beaumont 19% rit ref’d n re.)

iat) | M1 Fi MA ey ] 644 a Y rd ES A 5 G ar

\pp Corpus Christi 1982, no writ Z.intmermar

LE. Butt | jy Co., 932 F.2d 469, 471 (5th Cir.), cert

{ j | Sy | , ( t J} 199]

Hartnagel employment ntract with General

Motors was a COntract terminable at will w hich obligated

Hartnage} to devote Nis time ana SeTVICE fo General

}

Motors in such capacity a General Motors might direct

No breach of the contract resulted either from Genera!

4 ~ 4 | ny

Motors’ inability to satisfy Hartr vel employment

2 - B? ] tryna a ?

demands or from Hartrayel’s ultimate departure and

retirement trom employ ment

3. The Court of Appeals Was Not Required to

Issue an Opinion.

Rule 36, F.R.A.P., contemplates that the judgment of

an appellate court may be rendered without an opinion

l-ere is no requirement, constitutional or otherwise, that

/ > ] , , , > l

1 i ‘deral ippe llate court issue a written pmMion. Furnia

79 ) 62 ) ( ’

LInited Stat 20 F.2d 263, 264 (2d Cir. 1983); United

4 ‘5 ‘ 4 ) ) r O79 = .

Fa are 448 F.2d 481, 483 (3d Cir. 19 ). The Court

ally authorizing atfirmance or entorcement of an

order without opinion more than twenty vears ago

" j , . I Fi r . 4 4 ; s+ - ,

Nei ‘ i ‘ i“ ‘ / ‘ i = j ‘

tA . . i. is p . — P . ~~) ri

Workers of America, 430 F.2d 966, 968 (5th Cir. 1970). This

( rt by mM 1 that ‘Y Jan» >> | ; ’ thy +

(Pull tci> th?) Verul tit Ry ETRPL ECA UES ita t s¢ i

y A 4 ‘ ae 4 1 1 4 )

ifftirmance tylo? . : U.S. 191, 194, 925

} ) 5 . ‘ ) oo“ ry

( ft LYS iv, n.+ i, i me Nsence Of i OpINLO '

y >

this Lcist 10%¢ ~ not rt PUITe this \ ) I reV Ig

CONCLUSION

term!

4oF

wronettr

for

5 MET

rOr riy

nie

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.