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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1116

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0025%3A2. Public record. Not legal advice.