# Opposition Brief — Hartnagel v. General Motors Corp.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1384%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1096

## Text

No. 94-1484

>.
|
"
|
|
|
|
|

In The a -- ne ar sean

Supreme Court of the United States
October Term, 1994

— & sxinssparsinsinsnicenpnhtenneenionsnyasintian

ROBERT W. HARTNAGEL,
Petitioner,

- Vv.
i
;
; 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
j
: ST ES NE RAE RET

ee ee

l

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

1

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
(c) Hartnagel’s Contract 10

(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

C

’ 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

a
(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
a*
1994)
h y } ) ) 4
»+ ; a |
VATION! Wl i Re ( { l B ira
| TA } 4 471 5
: omy
Cir. 19/0)

hm

15
l6

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
rs
Kan. 1994)

, eas _>

28
YQ
~

~~

~~

“

C)f

,
AND R
> 4/1
~ | vee)
“ ia “tii j
S 1279]
~ L hen i
—_
8 6 sf A
* 1
h h26(c)( 1
Q 19S]
~
§ 200Ve(m
5 ? () le ){
R. 10.1
IN 1 ( i
‘ > 24
1\ i ”)
Nights A¢
[23 + +
NPRLICIS Cl
S ;Ys |
3 |
) | 4
1. ‘
Ij nts =
) 4
Kighnt \
Pa ht A
i bp. il VA
iD 5 ae by 4
NighAts 44

198 ry )
t | -
onts«
Kignts Act
O&K la(b

1¢ ]
iYsial
cry ao \

4
Al
'

}
}
t of
A ct
Y t
{t of
t «yt
+ }
t 4
¢ if
of
,
‘ i
of
tf of

PHORITIES

WU

1

I

Continued

Tr¢ j +f
tied }
ried at
ried t

)
Y
aye
.
~
>
4
+
4
|
he I
y
4
.
ry
i
ie!
. 3
is
i
—— —
i “
4
ta
{
t«
14 5
7
ta

i
i
i
i

1Y

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

S
BRIEF IN OPPOSITION

*

OPINIONS BELOW

Petitioner's claims were denied by the District ¢ ourt

a
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

a

ww

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

r
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
i
- ! | 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

7

2} _ ~~? j ‘ } r C
through June. This prompted a memo from the business
5 r I

manager of the public relations staff advising Hartnagel

1
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

]
i

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

10

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

(c) Hartnagel’s Contract.

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)

4

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

as

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

PY
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)

~ j — i
om o f J y j P
sh — + ~ ~S oe m one > 4 . , ~~ +. — ~ ‘
- oa ~ ~ od f 2 - — " pi _ 4 y; rd os 4 2 al . ag " J ou
wy Me -~ @~ if = paces i m4 ~ _— ~ Cc - on one —
a A " ~ - ~~ r — -4 ~~ ° —_ ~
a — - . x be J ae ~H we ~ a — ~ ¥ a“ >
— | om ~ f —_— » a 7 ¢ « c j 7, «/ ed oo
. oe] wo 4 a - j ~~ ¢ - - . ~~ ) .
~ +s _~ Y " a ae be - “
a _ —~ oF) ~ ad) # ee Py - : +--+ e e~ ¢ - “F ~ . me tg P= 2
- ns ‘ pret ~ ted = he “ ~ ~— ~ pa"
( oa “~ — a? tee wo ~ a em 4 ( . ne ~~ 4
ya ae . - aot oe - ~ ~ f hn Cc _ ~ — ee hee
— ~~ ad 2 4 a in weal ad ~ - » oe rs r tee * vy —s a
Cc oer y Lf —_ ~~ ‘S - > va ~ aad ( - aaa _ niall — r ~
cree Te : ~~ re 7 land a coo r~ ll ~ f ~
es aw _ pow _ 2 ~ ae —
c y ak saat = a! 5 °B on - ~ f ~ f nod pe —_ = aa onead
lod - - - me ou —_ - ~~ nahn - ~a ¢ S
on aa “ _ ( SR oe ae ~ od =o) 4 ~y~ | on pl ~ Cc o nod ~ - ~~
° wee — — ro o > re - o—_ oy / om a ws) ~ xr ‘= =
4 la ae “ = = «+ + / omy - ous ne — > ~ _ o _
_ a - = ~ _ , ~~ f / oad r ed
oan _ a c oe +. - 4 ro dead et — ~
bang on —_ obea ~ ~ ") - “ ~ ae = . J :
- Ps " a f / BP oe ~s - ‘ an ¥ me 7 , —, bene
e ae dies . om om Sag = ‘i ~ - - -
v4 ~ 5 -" - r ‘ m. a
~ ~~ ~~ 2 on ae 5 hang ‘ An 1 - - f ‘ - jets bens dl ov >
ee — a - a O one ~ 4 > I ~ an
J rm — ~ ) - ~ 2 - Saeed - a —
. a + - oe ~ ~ peat + -- as > - “ l ad
fae ” > vy a " — ‘ - > - 4 i “en ~~ ~
4 — = oe = to ~ ~ 4 wo - — 4 at a ; = — ’ aed o—
+ — -y . ors } ~ - ase ata a tS la ~~ _— — « ~ . =
/ ~~ v4 Sune wo ~ . os pa ° ~~ - @ — Co} “ —
‘ S pment ~ ~ ~ ~ - + - — / - om i - “ -
om - at J f - 8 ¥ - C i poe ~~ ~ - ~
— a * J _ =m amd a — _ ll — : Co ay
e Q. hoa - w 6 ~~ — + a ~ c ~ ~ ~ a .
a J J 8) van pe — — J rar ¢ co ~~ ne - ;
=~ . : os co ~ - dene Lng - ~
- po ~ la re 4 ne
a _ = - o— > a t ~~ = bene = m ow oo
f ee - a f ~ od - = . : - oF + , - f an
“ ~ - - - i a | - id _ e ~ ¢ _ a ~ ~~ ~~ ~
mt / o ~/ _— bee ~ = “ st r — - r sd a ;
— = ~ me ~ c pa — ~ * “8 - ~ ae » 't 7 ~pae J
- an os = - ~~ A on tnd —_—— ‘ a ~ — ~ : _
al ~~ tens - nm ®: f ~ f = / - ae -- —_ r - —_ ~ _
nal teed ~ Pal tc c - bes onde — ¥ 4. a]
mr ro r-) ag —~ @% - — ~ t > . n " a
sf ~ ’ “a od po a 2 = - — - ¢ ne , J ar - oo
r - an oer ~~ + ‘ ~~ ~ CS ne on 2 + ~ “
‘ei Cc oe al a ee / — co . aon ‘a j ad i ~s * po
a 6m ‘ os o - ~ on ¢ oe ¥ — - oad ‘ a , we «COU ~
— oo ——- owes on rus J o : ouene ot | P ’ os = . c — - Lom
oan ‘Ss ~ > bees w : ~- J Cc t * _— c = aa os “2 -_
~ —= = Ou = Y~ @g@ c# 8 gE ; c ~ C - ye Ga OA Fe =e hUMCUPP
‘ wdnns - - be ay — > ac _ ee as pm a r S “ _ - ud —
er ! — oe ales J 1 e ~ oune due pts ¥ JS : — ed — ow =
~ “ — ~~ pee - > ——~ ~ co po - — pa 7 res - -—
a 4 aes - -_ = a / ~ —- ° a oqne + S j - oun 7
f ~ ¥ a - ) a > ow val - “4 ‘at | ~
” om as oa 3 / eo P wr r f poe ~ - - _ - — ve ws = ~ -
~/ = — cr J 3 ~ * P » “ dud oe y ) f a
— ino - > ~ , — om = oe
= f
c ’ _ ~ = oe load - we - _ ~ .
we ~ Cc ares ~~ - ~ ~ wal > 7 ~ .
on onl _ an Sy) ay - vm _ > ~ yoo f r va) >) oud a ~~
. ome ~ / ~ on o ~ - - baw ~
- f _ oad a - f _ f ~ y
oo ~ " - / ~ - one ~ * ~ f 7 ~
ees 7 wae ~_ ° SS r; aaa - po ann nate on - ~ ~ ro _ ’ ~ -
is -- C o- ~ > - ' ond ~_o -_
pos f CS —~ oxhane a o-— _ 4 “ ~ - 4 + / ~ ~ ~~ “~
ond a - - an - ——— ~ , = a a - _ r od é | ~~ A
— “ ~ - _ oe - ee mq f —_— gw ~
f 4 + ~ J wl —_: a ~ wend / - - eet r s ~~
J > “ p ~ ~— ~~ ~ ~ f am
- + ~ > — > ,
cr be ~_ = : al 4 “ i. ° - Pee i ‘ ~~ pao > a J tue ‘4
C. fin ‘ Ras ww _ 7 , y, f ate oe > . — . f wre ~~
> — a _ ~~ J - 3 + - ~ me
I rat vad 5 r dn _ ~ bas ~ ~ xt oh om - es ~ mee ; sae ow an 4 oo
~_ _ - if ~ oo = ~ ” yn - 6 yond — 4 ee - Bu ~ > bee j o~ la
we . ~ ose “ . -
“ me ~— ~ - = = oe ¢
~ — f r a f - ~ ~ out
co = - P a a —~ ~ - J S " ~~ + at aF > ~~ r > . o ¢
—— a > ; ~~ - r, fae J . j * a ~ “ ~ = _ + | one
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
; bie " oe - - n ¢ eo
~ J ~ = . ne VJ LS. on ‘ ~ - pas - -— — bes
—_ ” a ome ~ ~ ~ — oubee a

14

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 , +.
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
I
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
I
? 5 |
' 1+ : +} , “ 7 4 + 11D
peculvity remairs the appropriate Gefauit rule
i] . © 1 1 }
114 8. Ct t Yet (empnasis in the original
i
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

ey

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

18

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

19

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

20

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).

21

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

t

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

23

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.

24

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

a

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
I

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
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
i

CONCLUSION

term!

4oF

wronettr

for

H

5 MET
rOr riy

nie

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1384%3A2. Public record. Not legal advice.