Opposition Brief — Burns v. AAF-McQuay, Inc.

Pe ene ae

FEB

No. 96-1040

_

In The

Supreme Court of the United S States

4-

October Term, 1996

FRANCES D. BURNS,

Petitioner,

VS.

AAF-McQUAY, INC.

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

R. CRAIG WOOD

Counsel cf Record

BRUCE M. STEEN

McGUIRE, WOODS, BATTLE

& BOOTHE, L.L.P.

Attorneys for Respondent

P.O. Box 1288

Charlottesville, Virginia 22902

(804) 977-2560

QUESTION PRESENTED

Whether this Court should review the Fourth Circuit’s

decision that petitioner failed to proffer sufficient evidence that

her voluntary resignation constituted a constructive discharge

in violation of the Age Discrimination in Employment Act, 29

U.S.C. § 621, et seq., based on petitioner’s contention that the

Fourth Circuit’s decision conflicts with prior Fourth Circuit

decisions and her assertion that the Fourth Circuit is without an

effective test for evaluating constructive discharge claims.

il

TABLE OF CONTENTS

Question Preseated. « «2s. csscbaueceesaeeue ene tees

Table of Conteg@S .....iccccdkeaeene 2 eee

Table of Citatiggt .. ss iicsaeeeeeee es

Statement of the Case and Correction of Misstatements

im the POCORN... «k:acccdneee ee eee eee

Reasons for Denying the Writ ......ccccsccesccces

I.

II.

Il.

Petitioner’s Allegation That The Fourth Circuit’s

Decision Conflicts With Prior Decisions Of Other

Panels Of The Fourth Circuit Is Not A Proper

Reason For The Court To Grant A Writ of

Costiovati. . .. +. sakeeaeeeeeee eee

The Fourth Circuit Properly Concluded That

Petitioner Failed To Present Sufficient Evidence

Of Constructive Discharge. ................

This Court Should Reject Petitioner’s Invitation

To Impose On All Federal Courts The Fifth

Circuit’s Multi-Factor Test For Evaluating Claims

Of Constructive Discharge. ....c2.0scsecee.

Conclusiom .....<ccesneseu

ii

1]

13

lil

Contents

TABLE OF CITATIONS

Cases Cited:

Adickes v. S.H. Kress & Co., 90 S. Ct. 1598, 398 U.S.

EE ase h onthe ser etnanteesdeseeceeeess

Barrow v. New Orleans Steamship Ass'n, 10 F.3d 292

RE en re eee ree

Blouin v. Kaiser Aluminum & Chem. Corp., 1996 WL

19138 (E.D. La. 1996), aff’d, 103 F.3d 127 (Sth Cir.

CEES ee ree ee eee ee

EG a

Boze v. Branstetter, 912 F.2d 801 (Sth Cir. 1990) ....

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

8 OEE Ee ee ee eee

Se ee ese ee ee Pee eee eee ee eee ee eee ae See ee

hn ee ee Pre ee ee ee eee

Chambers v. American Trans Air, Inc., 17 F.3d 998 (7th

ees ade ibaneee an eee

Page

12

12

10

12

iv

Contents

Page

Clowes v. Allegheny Valley Hosp., 991 F.2d 1159 (3rd

Gk SUE. ihe dar ee WUE eda ede ea SAS eee as 9

EEOC vy. Fed. Labor Relations Admin., 106 S. Ct. 1678,

Pe Ss Oe TI A oe ieee Sind eS eee awe i3

Ellzey v. Espy, 1995 WL 6277 (E.D. La. 1995) ...... 12

Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536 (11th

Ee Se oc kes cae uncceseenbaencesekaeueieae 9, 10

Jett v. Dallas Independent School District, 798 F.2d 748

| er rrr ere ee 7

Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir.

SOE a exes Menke aa gec dee eben ten eeee aes 1]

Johnson v. Shalala, 991 F.2d 126 (4th Cir. 1993).... 10

Martin v. Cavalier Hotel Corp., 48 F.3d 1343 (4th Cir.

1 ) NE eer ins eremty reer rus erence r eras 8

McKethan v. Texas Farm Bureau, 996 F.2d 734 (Sth Cir.

bf) PES ETOP CT OCR eT EET ETO OR CN CTT eee 10

Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989),

vacated in part on rehearing en banc, 900 F.2d 27

See Ga SE. Wie ca Nese awevean ceekebeveer. 10, 11

Statutes Cited:

pg Roe oe FO ere rrr rrr re rs rice i, 1

—— tO et a ee oe Ae

————

eee

|

|

Contents

Page

Rules Cited:

Pe Wis CU Oe OS as kok eae ean eee 6

Local Rule 40(b)(iii) .......... 0. cece cece ee, 6

Suprome Court Rule 10 occ ic cies ccnscncccctcccc 6

APPENDIX

Appendix A — Rule 40(b)(iii) of the Local Rules and

Internal Operating Procedures of the Fourth Circuit

[ACERS EDER ARSED RSE RER SW ele eee la

l

Respondent AAF-McQuay, Inc. (“McQuay”), by counsel,

requests the Court to deny the petition of Frances D. Burns for

a writ of certiorari to review the September 23, 1996 judgment

of the United States Court of Appeals for the Fourth Circuit

remanding this matter for trial on the issue of whether petitioner

was demoted in violation of the Age Discrimination in

Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”), but

dismissing petitioner’s claim that her voluntary resignation

constitutes a constructive discharge.

STATEMENT OF THE CASE AND CORRECTION OF

MISSTATEMENTS IN THE PETITION

On March 4, 1994, petitioner Frances D. Burns resigned

her position as an employee of McQuay in its Staunton, Virginia

facility. At the time of her resignation, petitioner was a

receptionist/data entry operator. She had been transferred to that

position in February, 1994. Prior to her transfer, petitioner had

worked as secretary to McQuay’s Human Resources Manager

for approximately sixteen years; most recently for Stephen B.

Horney, the current Manager of Human Resources at McQuay’s

Staunton facility.

Horney became the Manager of Human Resources at

McQuay’s Staunton, Virginia facility in November, 1992, and

was petitioner’s direct supervisor at all times relevant to this

matter. At the time of petitioner’s transfer to the switchboard,

Horney was forty-six years of age and, therefore, a member of

petitioner’s protected group.

Soon after he arrived in Staunton, Horney discovered several

problems with petitioner’s performance as secretary to the

Human Resources Manager. Horney testified that petitioner

failed to perform organizational tasks (e.g., she failed to make

arrangements for an arbitration hearing in August, 1993), her

2

performance was inconsistent and, on several occasions,

untimely, and she committed many errors. For example,

petitioner was responsible for maintaining the Human Resource

Department’s files. On “numerous” occasions, however, Horney

could not locate files, found materials misfiled, and discovered

that file drawers and cabinets were mismarked.

Beginning soon after Horney arrived, petitioner committed

typographical errors, and made mistakes in workers’

compensation forms, union grievance forms, communications

to the plant and general correspondence. Horney also testified

that petitioner failed to prepare job postings in a timely manner

(which was contrary to the terms of the collective bargaining

agreement in force at the plant); failed to prepare employee status

changes in a timely manner; and, refused Horney’s specific |

instructions to reproduce certain departmental forms, to prepare

employee identification badges on a daily basis, and to maintain

the supply closet in an orderly manner.

Petitioner contends that, apart from her failure to make

arrangements for the arbitration hearing in August, 1993 and a :

single typographical error, Horney never “expressed

dissatisfaction with her performance.” (See Petition for Writ of

Certiorari (“Petition”) at 4). Petitioner’s assertion is belied by

the record.

For example, petitioner misstates the record when she

asserts that a December, 1993 is the “first and only specific

instance of a typographical error that Horney can recall.”

(Petition at 4). Horney testified unequivocally that petitioner

committed many errors and that, contrary to petitioner’s attempt

to mischaracterize his testimony, the August, 1993 incident in

which petitioner failed to make arrangements for a union

grievance hearing “was probably one of the last ones that more

or less triggered [his] need to take actions.” He testified that the

ce

Te

3

August, 1993 incident “might have been pretty close to the straw

that broke the camel’s back... .”!

In addition, although she asserts in her petition that Horney

never “expressed any dissatisfaction with her performance”

(Petition at 4), petitioner concedes that Horney told her in

November, 1993 that her performance was “provisional” and

she understood at that time that “provisional” was defined as

“[b]elow average achievement which meets the minimum

expectations of the position.” Petitioner also concedes that

Horney held meetings with her to discuss her performance

deficiencies and acknowledged that the “conversations” she had

with Horney regarding her performance “were negative.”

Rather than terminate petitioner who was a long term

employee, Horney transferred her to the switchboard where her

weaknesses in typing, filing and organizational skills were less

serious and her performance deficiencies would have less impact

on the Human Resources Department. At the switchboard,

petitioner’s contact with Horney was lessened significantly.

Petitioner’s transfer did not reduce her pay, benefits or labor

grade.

Petitioner’s function as Human Resources secretary was

filled by Donna Brown, a receptionist/data entry operator who

had been employed by McQuay in various capacities since 1986.

Brown was thirty-nine years of age at the time she swapped

jobs with petitioner.

1. Petitioner believes it is significant that “more than half of the alleged

problems” with her performance purportedly were discovered after she was

transferred to the switchboard or resigned. (Petition at 4, n. 4). Petitioner

ignores the fact, however, that Horney’s pre-transfer judgment regarding her

performance was merely confirmed by the problems identified after petitioner

was transferred to the receptionist position.

4

Throughout these proceedings, petitioner also has asserted

that “employees at the Staunton facility expressed a not-so-subtle

desire to remove Burns from her position as Human Resources

secretary.” (Petition at 5). In an attempt to support this claim,

petitioner relies on the testimony of Gary Alderson and John

Laub; both of whom were former supervisory employees at

McQuay. Petitioner’s position, however, is based on her own

assumptions and speculation, and an incomplete description of

the relevant, undisputed facts. (See Appendix to Petition for Writ

of Certiorari (“Pet. App.”) at 23-32).

Petitioner states, for example, that a former supervisory

employee (Ira Luplow) opined to Gary Alderson, petitioner’s

former supervisor and Horney’s predecessor, that “‘he would

like to get [petitioner] out of that position and get someone else

in there younger.” (Petition at 5). Petitioner, however, fails to

inform the Court: (1) that Luplow did not occupy a position of

authority over either Alderson or Horney; (2) that Alderson left

the company before Horney was transferred to Staunton; (3)

that Luplow made the alleged comment to Alderson ten months

before Horney succeeded Alderson as Manager of Human

Resources, twelve months before Horney began working full-

time in Staunton, twenty-five months before petitioner was

transferred to the switchboard, and twenty-six months before

she quit her job; (4) that Lupiow left his position at McQuay’s

Staunton facility five months before petitioner was transferred

to the switchboard and six months before petitioner quit; and,

(5) that it is undisputed that Luplow never made a comment to

Horney regarding petitioner’s age and that Luplow never

repeated to Horney the statement he allegedly made to Alderson.

There is, therefore, no nexus between Luplow’s alleged

statement and any of the employment decisions made by

Horney.’

2. Petitioner argued to the district court that a question exists regarding

whether Horney may have been influenced by Luplow’s alleged age-based

(Cont'd)

5

Petitioner also asserts that John Laub, a former managerial

employee at McQuay, overheard a similar remark. (Petition at

5). After much confusion and contradictory testimony, Laub

finally attributed the alleged remark to a former supervisory

employee by the name of Paul Farris. (Pet. App. at 13).

According to Laub, however, if Farris made the comment, he

did so after both he and Laub had left the company; which was

before Horney moved to Staunton and became petitioner’s

supervisor. (Pet. App. at 13 & n.3). The alleged remark,

therefore, has no nexus to any adverse employment action

allegedly suffered by petitioner. (Pet. App. at 13 & 23-28).

(Cont'd)

animus against Burns and argued that a jury could find that Luplow talked to

Horney about petitioner because they presumably talked to him about other

matters. (Pet. App. at 27, n.10). According to the district court, however, it

“is not possessed of the analytical dexterity to make an inferential leap of

such magnitude,” and petitioner’s suggested “inference upon inference” is

directly contradicted by Horney’s undisputed testimony that Luplow never

made any such statement to him. (Pet. App. at 27, n.10). Petitioner's “proffered

evidence is strained, forced and contrary to both reason and the evidence

presented in ... this action.” (Pet. App. at 25, n.9).

3. Petitioner also alleges that Horney and a co-worker made statements

that revealed their “concern with her age. . . .” (Petition at 4-6). These alleged

statements, however, are not evidence of age-based animus. The statements

at issue are temporally remote, age-neutral or, in one instance, show a

preference for older, more mature workers. Petitioner’s view that the

Statements are based on McQuay’s age-based animus towards her is pure

conjecture and speculation. (Pet. App. at 30-32 & 50-52).

6

REASONS FOR DENYING THE WRIT

I.

PETITIONER’S ALLEGATION THAT THE FOURTH

CIRCUIT’S DECISION CONFLICTS WITH PRIOR

DECISIONS OF OTHER PANELS OF THE FOURTH

CIRCUIT IS NOT A PROPER REASON FOR THE COURT

TO GRANT A WRIT OF CERTIORARI.

Unless confronted with a “compelling reason,” this Court

wisely refuses to review judgments rendered by the courts of

appeals. See Rule 10 of the Rules of the Supreme Court of the

United States. Here, petitioner does not assert that any of the

considerations apply which typically govern review on certiorari.

Instead, petitioner alleges that the Fourth Circuit rendered a

decision which conflicts with prior decisions of other panels of

the Fourth Circuit.

A petition for writ of certiorari, however, is not the proper

avenue of relief if petitioner believes the panel rendered a

decision which is inconsistent with prior circuit precedent.

Rather, a petition for rehearing to the court of appeals was the

appropriate remedy if petitioner believed that the Fourth Circuit’s

decision was contrary to Fourth Circuit precedent. See Fed. R.

App. P. 40. See also Local Rule 40(b)(iii) (reproduced at

Appendix, infra, 1a). Here, despite the opportunity to do so,

petitioner made no effort to avail herself of this potential avenue

of review or relief. Her petition, therefore, should be denied.

7

Il.

THE FOURTH CIRCUIT PROPERLY CONCLUDED

THAT PETITIONER FAILED TO PRESENT SUFFICIENT

= VIDENCE OF CONSTRUCTIVE DISCHARGE.

Moreover, contrary to petitioner’s contention, the Fourth

Circuit, consistent with its prior precedent, properly concluded

that petitioner failed to proffer sufficient evidence of constructive

discharge to prevent summary judgment. Her petition, therefore,

should be denied.

As a threshold matter, petitioner asserts that the Fourth

Circuit’s dismissal of her constructive discharge claim is illogical

because it remanded this matter for trial on the question of

whether McQuay demoted petitioner in violation of the ADEA

but affirmed the district court’s finding that petitioner failed to

prove constructive discharge. According to petitioner,

[i]t is a logical conclusion that an employer

who was motivated by illegal reasons in

demoting an employee may have continued

to be motivated by those same illegal reasons

and acted upon them to force the employee

out.

(Petition at 12). Petitioner’s view, however, is pure speculation

and ignores the well-settled principle that alleged unlawful

discrimination alone cannot sustain a claim of constructive

discharge. See Jett v. Dallas Independent School Dist., 798 F.2d

748, 755 (Sth Cir. 1986). If the rule were otherwise, any

employee who resigned in the face of an adverse employment

action (e.g., demotion, failure to promote, etc.) would, in all

instances, also state a claim for constructive discharge.

Instead, to establish constructive discharge, petitioner was

required to produce evidence sufficient to show that McQuay

intended her to quit and created intolerable working conditions

to effectuate that intent. See Bristow v. Daily Press, Inc., 770

F.2d 1251, 1255 (4th Cir. 1985). Petitioner was required to

produce evidence sufficient to show that “a ‘reasonable person’

in the employee’s position would have felt compelled to resign,”

id.; and that her working conditions were “intolerable in a

discriminatory way.” Chambers v. American Trans Air, Inc., 17

F.3d 998, 1005 (7th Cir. 1994). Here, the Fourth Circuit correctly

concluded that petitioner failed to present sufficient evidence

that McQuay intended to force her from her job. (Pet. App. at

54).‘

Petitioner apparently claims, for example, that McQuay’s

intent to force her to quit can be inferred because it failed to

“* ‘act in the face of known intolerable conditions’. . . .” (Petition

at 10, quoting, Martin v. Cavalier Hotel Corp., 48 F.3d 1343

(4th Cir. 1995)). Petitioner’s transfer to the switchboard,

however, does not support petitioner’ suggested “inference”.

Petitioner acknowledged, for example, that her job as

secretary to the Human Resources Manager included relieving

on the switchboard while the receptionist/data entry operator

was on vacation or on break. Petitioner also never told her

supervisor or anyone else in McQuay’s management that

working at the switchboard was demeaning or demoralizing. In

addition, petitioner’s pay, benefits and labor grade remained the

same when she was transferred to the switchboard.

Furthermore, Horney told petitioner and Donna Brown,

petitioner’s replacement, that he would discharge Brown if she

4. She also failed to proffer sufficient evidence that her working

conditions were so intolerable that a reasonable person would have felt

compelled to resign. (Pet. App. at 17-20).

9

did not perform well as his secretary. Horney told Brown that

she would be terminated if she did not perform well because

petitioner had been transferred to Brown’s former position. That

petitioner’s failure in the secretarial position resulted in a

transfer, while Brown, who was thirty-nine years of age, was

threatened with termination, demolishes petitioner’s argument

that Horney’s attitude toward her was age motivated.°

Petitioner also contends that her voluntary resignation

amounts to a constructive discharge because Horney “harassed”

her while she was working at the switchboard. (Petition at 7 &

14). Petitioner asserts that Horney “chastised” her for reading

the newspaper at the switchboard (Petition at 7); yet she

acknowledged in her deposition testimony that reading the

newspaper at the switchboard is not permitted. Petitioner also

asserts that Horney “admonished” her for failing to open the

switchboard by 7:00 a.m. (Petition at 7); yet she acknowledged

in her deposition testimony that when Horney entered the plant

that particular morning the switchboard was open and she was

not at her post.°®

Moreover, reasonsile employees usually explore

“alternative avenues thoroughly before coming to the conclusion

that resignation is the only option.” Clowes v. Allegheny Valley

Hosp., 991 F.2d 1159, 1161-62 (3rd Cir. 1993), citing, Boze v.

Branstetter, 912 F.2d 801, 805 (Sth Cir. 1990); Garner v. Wal-

5. As noted above, petitioner “swapped” jobs with Donna Brown, the

incumbent receptionist/data entry operator, who had been employed by

McQuay in various positions for approximately eight years. Horney also was

responsible for supervising the receptionist/data entry position.

6. Petitioner also contends that Horney “berated” her upon her return

from lunch in front of two salesmen. (Petition at 7). As the district court

noted, however, petitioner never stated why Horney allegedly “berated” her.

(Pet. App. at 19-20).

10

Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987). If

necessary, the reasonable employee would have “filed an age

discrimination claim with the EEOC while employed,”

McKethan v. Texas Farm Bureau, 996 F.2d 734, 741 (Sth Cir.

1993); “[i]t is far better for all concerned to resolve the dispute

while the employment relationship is ongoing.” Johnson v.

Shalala, 991 F.2d 126, 131 (4th Cir. 1993).

Here, however, prior to being transferred to the receptionist

position, petitioner never asked Horney to change his alleged

“arrogant attitude” toward her, and never reported to anyone at

McQuay that she thought Horney was being unfair to her.

Petitioner also never attempted to report Horney’s alleged

“arrogant attitude” or harassment to Horney’s supervisor.

Petitioner asserts now that she “was unable to resolve the

problem internally because the company had made Horney its

EEO compliance officer. ...” (Petition at 8). This assertion,

however, does not account for her failure to report Horney’s

alleged conduct to anyone in McQuay’s chain of command.

In addition, for the two months before she resigned

petitioner was represented by counsel. She could and should

have pursued her EEOC remedies before quitting and claiming

constructive discharge. See Brooms v. Regal Tube Co., 881 F.2d

412, 423 (7th Cir. 1989); Bourque v. Powell Elec. Mfg. Co., 617

F.2d 61, 65-66 (Sth Cir. 1980). In that way, the employment

relationship may have been salvaged. Petitioner, however,

resigned without giving “these remedies the opportunity to

work.” Paroline v. Unisys Corp., 879 F.2d 100, 114 (4th Cir.

1989) (Wilkinson, J., dissenting), vacated in part on rehearing

en banc, 900 F.2d 27 (4th Cir. 1990) (en banc) (adopting panel

dissenting opinion). Accord Shalala, 991 F.2d at 131.’

7. McQuay also submits that petitioner failed to proffer evidence

sufficient to show that Horney treated her differently than he treated other

(Cont'd)

1]

Based on the foregoing, the Fourth Circuit correctly

concluded that petitioner failed to present evidence sufficient

to lead a reasonable trier of fact to conclude that she was

constructively discharged from her employment. (Pet. App. at

53-55). Therefore, as the Fourth Circuit concluded, petitioner

cannot convert her decision to quit her job into a claim for

constructive discharge under the ADEA.

Iil.

THIS COURT SHOULD REJECT PETITIONER’S

INVITATION TO IMPOSE ON ALL FEDERAL COURTS

THE FIFTH CIRCUIT’S MULTI-FACTOR TEST FOR

EVALUATING CLAIMS OF CONSTRUCTIVE

DISCHARGE.

Petitioner contends that the Fourth Circuit erred because it

lacks “an objective framework for analyzing circumstantial

evidence of constructive discharge” (Petition at 12) and that the

(Cont'd)

employees. Petitioner asserts that one of her co-workers testified that Horney

was “more critical” of petitioner than he was of other employees. (Petition at

6). Plaintiff, however, misstate the record. The co-worker merely speculated

that it was “possible” that Horney was more critical of petitioner and that

Horney “[mJight have been” more critical of petitioner.

eel

Moreover, according to petitioner’s “rough” estimate, Horney displayed

the same alleged arrogant attitude toward approximately ten or twelve other

McQuay employees; some who are members of petitioner’s protected class,

others who are not. This evidence was undisputed, and rebuts any inference

that Horney intended for her to resign; certainly he “did not wish to force all

of [his] employees to resign.” Paroline, 879 F.2d at 114, quoting, Johnson v.

Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981). See also Bristow, 770

F.2d at 1255 (where employees are treated the same, “no particular employee

can claim that difficult working conditions signify the employer’s intent to

force that individual to resign’”’).

a

12

Court, therefore, should impose on the Fourth Circuit and its

sister circuits the multi-factor test articulated by the Fifth Circuit

for evaluating claims of constructive discharge. (Petition at 14-

17, citing, Barrow v. New Orleans Steamship Ass'n, 10 F.3d

292 (Sth Cir. 1994)). Petitioner opines that the Fifth Circuit’s

analysis in Barrow would “bring clarity and uniformity to

constructive discharge law to all the circuits in employment

discrimination actions.” (Petition at 17). Petitioner’s view is

without merit.

Although petitioner asserts that her proffered multi-factor

analysis will provide “uniformity” to the thirteen courts of

appeals and the ninety-one judicial districts, in the three years

sinee it was articulated, the Barrow test has not even brought

“clarity and uniformity” to the courts of the Fifth Circuit.

Compare Blouin v. Kaiser Aluminum & Chem. Corp. 1996 WL

19138 (E.D. La. 1996), aff’d, 103 F.3d 127 (Sth Cir. 1996)

(summary judgment for employer granted as to plaintiff’s

constructive discharge claim despite the fact that plaintiff was

assigned to less lucrative shifts and subjected to multiple

“incidents of harassment”); Ellzey v. Espy, 1995 WL 6277 (E.D.

La. 1995) (summary judgment for employer denied as to

plaintiff’s constructive discharge claim because plaintiff

reassigned to work under younger supervisor and to perform

menial tasks); Cargile v. Star Enterprise, 872 F. Supp. 1514,

1517 (M.D. La. 1994) (summary judgment for employer granted

as to plaintiff’s constructive discharge claim despite the fact

that plaintiff was deprived of all of his prior management

responsibilities).

Perhaps this is why the Barrow court’s multi-factor analysis

has never been cited outside the Fifth Circuit. This may also

explain why petitioner did not request the Fourth Circuit to adopt

the Fifth Circuit’s analysis in Barrow; an independent ground

13

for the denial of a writ of certiorari. See Adickes v. S.H. Kress &

Co., 90 S. Ct. 1598, 1602 n.2, 398 U.S. 144, 147 n.2 (1970).®

CONCLUSION

Based on the foregoing, the writ of certiorari should be

| denied.

Respectfully submitted,

R. CRAIG WOOD

Counsel of Record

BRUCE M. STEEN

McGUIRE, WOODS, BATTLE &

BOOTHE, L.L.P.

Attorneys for Respondent

P.O. Box 1288

Charlottesville, Virginia 22902

(804) 977-2500

8. EEOC v. Fed. Labor Relations Admin., 106 S. Ct. 1678, 476 U.S.

19 (1986) (absent exceptional circumstances, “[oJur normal practice, from

which we see no occasion to depart on this occasion, is to refrain from

addressing issues not raised in the Court of Appeals”).

a a

la

APPENDIX A — RULE 40(b)(iii) OF THE LOCAL RULES

AND INTERNAL OPERATING PROCEDURES OF THE

FOURTH CIRCUIT

A petition for rehearing must contain an introduction stating

that, in counsel’s judgment, one or more of the following

Situations exist:

i. A material factual or legal matter was overlooked in the

decision.

ii. A change in the law occurred after the case was

submitted and was overlooked by the panel.

iii. The opinion is in conflict with another decision of the

Court or of another court of appeals and the conflict is not

addressed in the opinion.