Opposition Brief — Coleman v. Joseph E. Seagram & Sons, Inc.
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No. 96-1467 é F supreme Court, U.S. |
a
APR 7 1997
IN THE
Supreme Court of the Hnited
LZ
OCTOBER TERM, 1996
ia all
JAMES W. COLEMAN, PH.D.,
Petitioner,
—_—_Vi—
JOSEPH E. SEAGRAM & SONS, INC.,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
BRIEF IN OPPOSITION
JOHN W. OHLWEILER
(Counsel of Record)
SIMPSON THACHER & BARTLETT
(a partnership which includes
professional corporations)
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
EDWIN S. HOPSON
WYATT, TARRANT & COMBS
Citizens Plaza
Louisville, Kentucky 40202
(502) 589-5235
Attorneys for Respondent
ROE oa TR Ne roe eR IE Ry ca NCR la BIR Pl sa AIT ERRNO REI NL RNY SOR ‘ ¥ sa os ODEON LRTI Meee PerPT ge OR TET Fe we LET [A in hl er oN Pay PRM INE EF i ae ee es oii ee
i
QUESTIONS PRESENTED
Whether this Court should exercise its discretionary juris-
diction to review by writ of certiorari an action in which the
District Court found, after a trial on the merits in which no
evidence was denied admittance by the court, that Petitioner
had failed to prove that he had suffered intentional discrim-
ination or retaliation.
Whether this Court should exercise its discretionary juris-
diction to review by writ of certiorari discovery-related deci-
sions of the District Court which were expressly found by the
Court of Appeals to have not constituted an abuse of that
Court’s discretion regarding discovery matters.
il
TABLE OF CONTENTS
QUES TIONS PRESEN TRE? «. cccyidcvcedessudpanxepnctes i
STATEMENT. CF SE5S CARB ira cecc tcdnacincacedeness 2
REASONS FOR DENYING THE PETITION.......... 7
I. The District Court did not abuse its discretion
in its rulings on Petitioner’s discovery-related
WO ORE oo. kien bp ck eeed os Weasel ee 7
II. Petitioner’s claims regarding his motion to
amend his complaint to add a state law claim
for emotional and mental damages, and his
motion to reconsider his constructive discharge
claim, have been made moot by the findings of
the District Court, affirmed by the Court of
Appeals, that Seagram did not intentionally
discriminate or retaliate against Petitioner
on the basis of RES FRGO. co. c5 wes ductkincacesccns 12
CONCLUSION... sciswscaaedaseuancuatet ak ccedoneees 16
APPENDIX
Memorandum Opinion of the District Court for the
Western District of Kentucky, Louisville
Division, Entered June 27, 1995.................. A-l
Affidavit of Ann Giambusso, sworn to on September
US. TORS idedk cavateecsiccseeoaeee Sar A-18
ill
TABLE OF AUTHORITIES
Cases PAGE
Darnell v. Campbell Cty. Fiscal Court, 731 F. Supp.
1309 (E.D. Ky. 1990), aff’d, 924 F.2d 1057 (6th
CE) REDS EE aaa Ye a Aenea aS 13
Foman v. Davis, 371 U.S. 178-182 (1962)............. 14
General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119
Oa nS EPCERE ASAE Sc Ua a 14
Harris v. Chipman, 97 F.3d 499 (11th Cir. BO9G) i. eck 8
Herring v. Delta Air Lines, Inc., 894 F.2d 1020 (9th
Cir. 1989), cert. denied, 494 U.S. 1016 (1990)... 8
Lone Star Steakhouse & Saloon, Inc. v. Alpha of
Virginia, Inc., 43 F.3d 922 (4th Cir. 3s eee 8
Lynch v. Freeman, 817 F.2d 380 (6th Cir. 1987)....... 13
Plott v. General Motors Corp., Packard Elec. Div., 71
F.3d 1190 (6th Cir. 1995), cert. denied, 116 S. Ct.
Es BS NEIRE CORE ag ane Ae eR 7,8
Semco, Inc. v. Amcast, Inc., 52 F.3d 108 (6th Cir.
REE REE Syck CR ea GA aR SO et a 7,14
Wayte v. United States, 470 U.S. 598 ERR cea es ss zg
Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510
SU I eh org at es 13
Zenith Radio Corp. v. Hazeltine Research, Inc., 4C1
I re Se es nt ie ee 14
Statutes
pmeicn Y CIVE Mights ACt. oo... os cece oes vececcucecs 12
Rule 29.1 of the Supreme Court Rules................. I
Lye
SORRY RED eee PaaS
IN THE
Supreme Court of the United States
OCTOBER TERM, 1996
No. 96-1407
<i
JAMES W. COLEMAN, PH.D..,
Petitioner,
—V.—-
JOSEPH E. SEAGRAM & SONS, INC.,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
~~ --—-—
BRIEF IN OPPOSITION
This Brief is respectfully submitted by Respondent Joseph
E. Seagram & Sons, Inc. (“Seagram” or “Company”) in oppo-
sition to the Petition for Writ of Certiorari filed by Petitioner,
James W. Coleman, Ph.D.!
i
Pursuant to Rule 29.1 of the Supreme Court Rules, Respondent
Seagram states that it is a wholly owned subsidiary of The Seagram Com-
pany, Ltd., a Canadian corporation.
STATEMENT OF THE CASE
Following a trial on the merits in which Petitioner was rep-
resented by counsel and no evidence was denied admission by
the court, the District Court held as follows:?
“Based on the evidence of record, plaintiff has not per-
suaded the court that he suffered intentional discrimi-
nation.”
(Res. A-8).
Since Petitioner is unable to dispute the District Court’s
findings of fact and conclusions of law, he distorts and mis-
states the record in repeatedly contending, as the central point
of his petition, that the “Sixth Circuit abused its discretion
and/or committed clear and reversible error” in concluding
that it found “no abuse of discretion in the district court’s rul-
ings on discovery or in the denial of the motion to amend the
petition.” (Pet. A-6 at 4).
This case arises out of a decision by Seagram to relocate
the Research & Development Department that had formally
been part of a now-closed production plant in Louisville,
Kentucky, to Seagram’s new Research and Technology facil-
ity in White Plains, New York. As found by the District Court
below:
“Seagram offered all salaried professional employees
in Louisville, including Dr. Coleman, the opportunity
to transfer to the White Plains facility. Those making
the move to White Plains would work there in a posi-
tion comparable to their previous position in Louisville,
with comparable responsibilities, grade level, and salary.
* * * *
Seagram offered relocation allowances and assistance
in finding homes in the White Plains area. Seagram paid
A copy of the District Court’s Memorandum Opinion is attached
at Appendix A-1 (“Res. A-1”).
‘Bek ee ee ee
for employees to take trips to New York to locate a new
home, offered a cost-of-living adjustment that could be
taken in a lump sum after making the move, a buy-out
option on the employee’s current mortgage and assis-
tance with the employee’s new mortgage. In the alter-
native, those salaried professional employees who
elected not to transfer were eligible for a special sever-
ance package equal to one month’s salary for each year
of service with Seagram.”
(Res. A-4 to A-5),
Petitioner, who was 55 years old at the time, elected to
retire with an early retirement pension and related medical
benefits under the Company’s pension plan. In addition, in
accordance with the special severance plan offered in con-
nection with the move, Petitioner received a severance pay-
ment equal to 21-1/2 months of salary. (Res. A-6; R. 173:
Stipulation of Facts and Admissibility of Exhibits).
With regard to Petitioner’s distortions concerning his “over
21 years” employment by Seagram (Pet. at 1), the District
Court found as follows:
“During his career at Seagram, Dr. Coleman received 25
salary and adjustment increases, resulting in a salary of
$52,620 at the time of his retirement in August 1985.
. Dr. Coleman’s 1985 salary was the second highest
among the employees at his level (Senior Research Sci-
entist—Grade 18) in the R&D department.
* * * *
His ratings ranged from just below a 3 (or “Good”)
rating, given when an employee performed “as expected,”
to a rating of 4 (or “Superior’), given when an
employvee’s performance exceeded expectations. Dr.
Coleman’s evaluations included written comments that
he needed to complete projects in a more timely manner,
reduce his backlog of projects, improve his personal
relationship with personnel at the production plant, and
focus more on creative projects and less on routine
work.”
(Res. A-3).?
With regard to Petitioner’s claim that he should have been
offered a Section Head position in advance of the Depart-
ment’s move from Louisville to White Plains (Pet. at 1-2), the
District Court found as follows:
“Dr. Coleman failed to establish, however, that he was
considered and rejected for the Section Head position. ;
. Dr. Weber remained in and performed the duties of
his position until August 1985. . . . [T]here is no evi-
dence that any meetings or deliberations took place
regarding candidates for the position prior to the move.
* * * *
Seagram’s proffered justification for waiting until
after the move to White Plains before making a decision j
regarding the Section Head position is that it was wait-
ing until management knew for certain which personnel,
qualified for the position, from the Louisville R&D facil-
ity would be transferring to White Plains. The evidence
offered by plaintiff fails to persuade the court that this
justification is merely a pretext for intentional racial dis-
crimination. It would have made little sense in early
1985 for Seagram to expend the time and resources
necessary to select a new Section Head. . . . More
eens eT
eh
; With regard to Petitioner’s contention that he was a “long-time
activist in the civil rights movement” (Pet. at 1}, the District Court found
that:
“Seagram had in the past strongly supported Dr. Coleman’s
NAACP activities by providing paid time off to attend NAACP
meetings and providing hospitality for the Louisville delegates at
the National Convention. . . . Dr. Coieman’s participation in
NAACP activities took place primarily in the late 1970s.”
ee Re eee Seen em
(Res. A-15).
specifically, Dr. Coleman’s vacillation gave Seagram
grounds for pause in making the promotion decision.”
(Res. A-11 to A-13).‘
As to Petitioner’s reference to his own testimony con-
cerning what he was allegedly told by Dr. Frederick Weber,
his Section Head, (Pet. at 2), these allegations were directly
contradicted by the trial testimony of Dr. Weber and James
Martin, which the District Court stated carried “great weight
with the court.” (Res. A-8).
“Dr. Weber, however, denied that Dr. Bluhm made
racist remarks about Coleman. Dr. Weber did criticize
Dr. Bluhm’s management style. . . . But Dr. Weber
made it clear that race was not a factor in the employ-
ment actions taken by Dr. Bluhm. He never heard Dr.
Bluhm make a racist statement, nor did he observe him
make a decision based on race. It was also Dr. Weber’s
firm understanding that a decision on the new Section
Head would not be made until after the move to White
Plains.°
With regard to Petitioner’s claim that “an employee with a high
school diploma assumed the job responsibilities previously performed by
Dr. Weber” (Pet. at 3), the District Court found that:
“Dr. Weber retired on August 1, 1985. Thereafter, Mr. Jose Puebla,
a Junior Scientist, performed some of the responsibilities of a Sec-
tion Head, but primarily worked to pack away laboratory equip-
ment in preparation for the move to White Plains. . . .When none
of the senior staff from the Biotechnology Section elected to make
the move, Dr. Bronsky was appointed to the Section Head position
on an interim basis. He remained in that position until February
1989 when Seagram appointed Dr. William Hirt to the Section
Head position.”
(Res. A-6).
5
As to Petitioner’s claim that he saw racist comments in a job-
performance evaluation (Pet. at 2), the only specific race-related com-
mentary in the evaluation process to which petitioner has ever pointed is
in the Supervisor’s Notes, prepared by Dr. Weber, which state that Cole-
man had “some sensitivity to racial issues.” (Plaintiff's Exh. 19-18).
6
Mr. James Martin, African-American male, is the
Director of Management Services at Seagram’s White
Plains facility. . . . Like Dr. Coleman, while in
Louisville he had been involved in organizations and
activities protected by Title VII. . . . Mr. Martin stated
that race was never an issue with Dr. Bluhm, and his sole
concern was professional performance. Mr. Martin also
stated that it was clear to him that a decision on the new
Section Head would not be made until the move to White
Piains. Mr. Martin never believed that race was a factor
in Seagram’s actions in regard to Dr. Coleman.”
(Res. A-7 to A-9).
Finally, the District Court found as follows with regard to
the request Petitioner made for his personnel file while he
was still employed by Seagram (Pet. at 2):
“On or about March 15, 1985 Dr. Coleman requested
his personnel file from Dr. Weber. The informal super-
visor’s file relating to his employment was shown to
him, but Dr. Coleman stated that the file was incomplete.
. . . Dr. Bluhm brought Dr. Coleman’s personnel file
from the Human Resources department in New York City
for Dr. Coleman to review. Nonetheless, Dr. Coleman
wrote. . . to M. W. Griffin, Executive Vice President
for Human Resources, requesting additional documents
in his file. Mr. Griffin responded that he believed
Dr. Coleman had been provided with everything in his
personnel file, and that if he was seeking other docu-
ments, he needed to identify them specifically. .. .
Dr. Coleman responded by stating the types of docu-
ments he was seeking. Dr. Coleman was then told that
Seagram did not have the documents he requested.”
(Res. A-5).°
: As to Petitioner’s reference to an Equal Employment Opportu-
nity Commission (“EEOC”) “letter of right to sue” (Pet. at 3), the District
Court found that: :
(feotnote continued)
REASONS FOR DENYING THE PETITION
I. THE DISTRICT COURT DID NOT ABUSE ITS DIS-
CRETION IN ITS RULINGS ON PETITIONER’S
DISCOVERY-RELATED MOTIONS.
Based on its review of the record, the Court of Appeals
found as follows with regard to Petitioner’s discovery-related
claims:
“Although Seagram produced 3000 pages of employ-
ment records of Coleman and other employees, Coleman
remained convinced that Seagram was withholding
records, and filed a number of motions to compel. The
district court ultimately determined that Seagram had
complied fully with Coleman’s discovery requests. . . .
[W]e find no abuse of discretion in the district court’s
rulings on discovery or in the denial of the motion to
amend the complaint. See Plott v. General Motors Corp.,
Packard Elec. Div., 71 F.3d 1190, 1196 (6th Cir. 1995),
cert. denied, 116 S. Ct. 1546 (1996); Semco, Inc. v.
Amcast, Inc., 52 F.3d 108, 114 (6th Cir. 1995).”
(Pet. A-6 at 2-3, 4).
The District Court’s discovery rulings are reviewed under
an abuse of discretion standard. Wayte v. United States, 470
U.S. 598, 624-25 (1985) (Marshall, J., dissenting) (“District
Court decisions on discovery are. . . not subject to plenary
review on appeal, but instead are reviewed under an abuse-of-
discretion standard.”) Similarly, a related motion to compel
or for sanctions for alleged failure to comply is also reviewed
“On September 11, 1985 Dr. Coleman filed a Complaint of Dis-
crimination asserting essentially the same claims that are the
subject of the present action. . . . After conducting its own inves-
tigation, . . . the EEOC issued its determination that there was not
probable cause to believe that Dr. Coleman’s allegations were true.”
(Res. A-6).
for abuse of discretion. See, e.g., Harris v. Chipman, 97 F.3d
499, 506 (11th Cir. 1996); Lone Star Steakhouse & Saloon,
Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 929 (4th Cir.
1995); Herring v. Delta Air Lines, Inc., 894 F.2d 1020, 1021
(9th Cir. 1989), cert. denied, 494 U.S. 1016 (1990). Finally,
as stated by the Sixth Circuit in Plott v. General Motors
Corp., Packard Elec. Div., 71 F.3d 1190 (6th Cir. 1995), cert.
denied, 116 S. Ct. 1546 (1996), the relevant factors applica-
ble to the review of discovery orders include: (i) when the
appellant learned of the issue; (ii) whether the desired dis-
covery would have changed the rulings; (iii) how long dis-
covery lasted; (iv) whether the appellant was dilatory in his
discovery efforts, and (v) the responsiveness of the appellee
to discovery requests. /d. at 1196-97.
The record below is clear that the District Court did not
limit Petitioner’s scope of discovery, nor did Seagram request
such a limitation. Rather, during the nine-year course of this
litigation—and more than six years of discovery—Seagram
produced over 3,000 pages of documents, including person-
nel and personnel policy documents related to Petitioner’s
employment with Seagram and the personnel files of other
employees in the R&D Department whose files were
requested by Petitioner; responded to multiple interrogatories
and a request for admissions regarding the produced docu-
ments; and produced four managers and former managers for
depositions by Petitioner’s counsel.’
Ly (R. 49, 55: Deposition of Frederick Weber taken on October 1,
1991 and October 10, 1991; R. 126: Deposition of José Puebla taken on
September 15, 1989; R. 127, 130, 132: Deposition of Leslie Bluhm taken
on May 10, 1989, September 12, 1989, and September 14, 1989; R. 128-
29: Deposition of Robert Cherundolo taken on September 13, 1989 and
September 14, 1989; R. 131, 133-35: Deposition of Albert Bronsky taken
on May 12, 1989 and September 11, 1989). More specifically, in response
to Plaintiff's First Set of Document Requests, served in June 1988, Sea-
gram gathered and forwarded to Plaintiff all performance and employ-
ment documents regarding Plaintiff after completing a diligent search of
Company records. (R.12: Responses and Objections by Defendant to
laa
In addition, in response to Petitioner’s three Motions to
Compel, Seagram submitted affidavits of its in-house coun-
sel and outside counsel swearing to Seagram’s good faith
search for, and production of, all of the requested documents
which it had in its possession or control. See Affidavit of Ann
Giambusso, sworn to on September 15, 1993 (attached at
Appendix A-18). Finally, contrary to the Petitioner’s repeated
claim to the contrary, the District Court directed Seagram, in
response to Petitioner’s First and Second Motions To Compel,
to produce any documents not already produced and, in addi-
tion, directed Seagram to produce for inspection the person-
nel files of current and former Seagram employees, copies of
Plaintiff's Interrogatories and Responses and Objections to Plaintiff’s
Request for the Production of Documents). In connection with Plaintiff’s
deposition of two of Defendant’s employees, Dr. Leslie Bluhm and Mr.
Robert Cherundolo, in 1989 Defendant produced additional documents,
including documents describing Defendant’s policies and procedures con-
cerning employee evaluations and merit reviews in effect during Plain-
tiff’s employment with the Company. On September 19, 1990, Plaintiff
filed the first of his three Motions to Compe! the production of docu-
ments that he believed should be in Seagram’s files. (R. 31: Motion by
Plaintiff to Compel Discovery). On April 11, 1991, Plaintiff served his
Second Set of Interrogatories and Request for Production of Documents
in response io which Defendant produced an additional 1,887 pages of
documents. On April 19, 1992, Plaintiff filed a Motion to Propound in
Excess of Thirty Requests for Admissions. (R. 57: Plaintiff's Motion to
Propound Requests for Admissions in Excess of 30). On January 30,
1993, Plaintiff served his Second Motion to Compel Discovery. (R. 76:
Motion by Plaintiff to Compel). By an Order dated February 3, 1993,
Plaintiff's Motion to Propound in Excess of Thirty Admissions was
granted and Seagram’s Motion to Terminate Discovery was denied. (Pet.
A-3). On April 26, 1993, Plaintiff served a Third Motion to Compel and
a Motion to Propound In Excess of Thirty Interrogatories and Request for
Production of Documents. (R.93: Third Motion by Plaintiff to Compel
Discovery). By Order dated June 11, 1993, the Magistrate Judge directed
Defendant to produce for inspection the personnel records of certain
listed former and current Seagram employees, in response to which
Defendant uncovered no additional documents in its fourth search of
Company facilities, but nevertheless again produced all documents
responsive to the Order. (Pet. A-4).
10
which had already been produced to Petitioner. (Pet. A-4).
Only after Seagram’s compliance with this order did the court
deny Petitioner’s motion to impose sanctions on the Defen-
dant, because“[a] review of the record convinces this Court
that the defendant has made every effort to comply with Cole-
man’s discovery requests and as such, sanctions [are] inap-
propriate.”*® (Pet. A-5 at 2).
In addition, while Petitioner is correct in stating that it was
Seagram’s policy to conduct an annual evaluation of each
employee on Seagram’s performance evaluation form (the
““Blue Book”) to be maintained in Seagram’s official per-
sonnel files in New York City, Dr. Weber testified at trial, in
response to a question of whether he prepared a “Blue Book”
on every employee every year, that he only did that “when we
were forced into it.” (R. 179: Transcript of trial testimony,
May 31, 1995, at 61). Dr. Weber also testified that he did not
fill out the sections of the “Blue Book” concerning pro-
motability for Petitioner or for any other employees, and that
he usually did not fill out a complete “Blue Book” on any-
body while he was Section Head. (R. 179: Transcript of trial
testimony, May 31, 1995, at 69). Indeed, an Exhibit prepared
by Petitioner indicates that the official personnel files of all
of the employees who worked in the Louisville R&D Depart-
ment are deficient in that they do not have performance
reviews for each year of the employee’s tenure and, in the
case of a number of employees, do not include any “Blue
Book” reviews at all. (Defendant’s Exh. 58).
Finally, Petitioner is in error when he states that the District
Court did not allow him to discover certain of Seagram’s per-
. In fact, the only discovery motions brought by Petitioner that
were denied by the District Court were a Motion for Ruling on Discov-
ery Omissions (which the court found sought a ruling on certain aspects
of a previously filed Motion to Compel) and a Motion for Leave to Pro-
pound in Excess of 30 Interrogatories made after Defendant had already
responded to Plaintiff's First and Second Set of Interrogatories. (Pet. A-
5 at 1-2).
11
sonnel policies and procedures. (Pet. at 18-19). Rather, Sea-
gram produced the requested policy and procedural docu-
ments it had in its possession and control in connection with
Petitioner’s deposition of two of Defendant’s managers. (See
fn. 7, supra). Also, Seagram’s counsel swore in Affidavits
submitted in response to Coleman’s Motions to Compel that
Seagram did not have a separate Personnel Manual in effect
after 1983, and that a thorough search for other requested per-
sonnel policy documents had been undertaken and that no fur-
ther documents had been found. (Res. A-20 at 97).
While Petitioner claims that all of the foregoing and the
District Court’s ultimate conclusion that Seagram had made
every effort to comply by producing those documents which
were within its possession and control, is unsatisfactory, and
does not support the Court of Appeal’s conclusion that “the
District Court ultimately determined that Seagram had com-
plied fully with [Petitioner’s] discovery requests” or its find-
ing “no abuse of discretion in the district court’s rulings on
discovery” (Pet. at 14-16), the Court of Appeals was clear!y
correct in this regard. The District Court ultimately deter-
mined that Seagram had been responsive in both its search for
documents which could have existed and its production of all
documents under its possession and control, and that, there-
fore, Seagram had complied fully with the discovery requests
Plaintiff's reference to “redacting discoverable job-related doc-
uments” (Pet. at 17-18) refers to documents describing a research project
which was produced to Petitioner as part of the additional employee per-
sonnel files Petitioner had requested. (Plaintiff’s Exh. 44). The redacted
portions of this document contain confidential business, not personnel,
information and neither Petitioner nor his counsel ever made a specific
request for unredacted copies of that document. Similarly, despite Peti-
tioner’s reference to an alleged withholding of his “promotability eval-
uations under a scheme of ‘privilege documents’ ” (Pet. at }1), the only
document withheld by Seagram on the grounds of privilege during the
entire discovery process was an early draft of Seagram’s response to the
EEOC in connection with Petitioner’s Charge, which had been inadver-
tently filed with Petitioner’s personnel documents. (Res. A-20 at 45).
12
and was not subject to sanctions by the Court to compel pro-
duction of what it did not have.'®
II. PETITIONER’S CLAIMS REGARDING HIS MOTION
TO AMEND HIS COMPLAINT TO ADD A STATE
LAW CLAIM FOR EMOTIONAL AND MENTAL
DAMAGES, AND HIS MOTION TO RECONSIDER
HIS CONSTRUCTIVE DISCHARGE CLAIM, HAVE
BEEN MADE MOOT BY THE FINDINGS OF THE
DISTRICT COURT, AFFIRMED BY THE COURT
OF APPEALS, THAT SEAGRAM DID NOT INTEN-
TIONALLY DISCRIMINATE OR RETALIATE
AGAINST PETITIONER ON THE BASIS OF HIS
RACE.
Petitioner’s claims in his Petition regarding his alleged con-
structive discharge and his motion to amend his complaint
more than five (5) years after the commencement of his law-
suit to add a claim for emotional and mental injuries pursuant
to the Kentucky Civil Rights Act (Pet. at 19-28) are directly
related to, and dependent upon, his unfounded allegations
regarding the District Court’s discovery rulings which
the Court of Appeals properly found were not an abuse of
discretion by the lower court. However, these claims are also
made moot by the District Court’s holdings following a trial
on the merits that Petitioner had not demonstrated that he
suffered intentional racial discrimination or retaliation, which
holdings Petitioner does not substantively contest in his
Petition."
” There is no support in the record for Petitioner’s claim of
“exception [sic] public interest in the civil-rights community” for his dis-
covery claims. (Pet. at 28).
- Petitioner’s claim that the courts below did not address his
claims of discrimination concerning job performance standards (Pet. at
27-28) is similarly deficient. In addition to holding that “based on the
evidence of record, plaintiff has not persuaded the court that he suffered
intentional discrimination” (Res. A-8), the District Court expressly found
that: ,
(footnote continued)
a ik a a I EE
13
As stated by the 6th Circuit in Lynch v. Freeman, 817 F.2d
380, 385 (6th Cir. 1987), “[a] determination of constructive
discharge necessarily rests on a finding of discriminatory
intent. The district court found no such intent and this find-
ing is not clearly erroneous.” /d. at 385. Furthermore, in addi-
tion to finding a lack of proof of intentional discrimination or
retaliation, the District Court made specific findings of fact
that Seagram encouraged all of its professional employees in
the Louisville R&D department, including Petitioner, to move
with the department to White Plains and guaranteed those
employees positions with comparable responsibilities, grade
level, and salary. The District Court also specifically found
that Seagram’s decision to wait until after the move to White
Plains before making a decision regarding the selection of a
new Section Head was both understandable and reasonable
under the circumstances. (Res. A-12 to A-13). These are
clearly not circumstances where a finding of constructive dis-
charge would be appropriate, even where there had been a
finding of intentional discrimination not present here. See,
e.g., Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510,
515 (6th Cir. 1991) (finding that the offer to an employee of
other legitimate options within the company for continued
employment “precludes a finding that [he] was constructively
discharged.”); Darnell v. Campbell Cty. Fiscal Court, 731 F.
Supp. 1309, 1313 (E.D.Ky. 1990), aff’d, 924 F.2d 1057 (6th
“Dr. Coleman failed to establish that Seagram took an employ-
ment action adverse to him. The only conduct of Seagram that is
actionable is that which falls within the 300-day window prior to
the filing of the complaint with the EEOC. The only conduct of
Seagram falling within that period relates to its failure to promote
Dr. Coleman to the Section Head position. As noted above, Sea-
gram did not make a final determination regarding who would per-
manently fill the Biotechnology Section Head position until after
the move to White Plains had been completed. Nor did the actions
of Seagram or Bluhm constitute any sort of de facto rejection of his
application.”
(Res. A-14).
id
Cir. 1991). In addition, the finding by the District Court that
Petitioner has not proven intentional discrimination or retal-
iation makes the subject of what, if any, remedies (e.g., emo-
tional and mental damages) Petitioner might have been
entitled to as a result of such discrimination moot.
Furthermore, even if Petitioner’s appeal of the denial of his
motion to amend were not moot, the Court of Appeals found
“no abuse of discretion in the district court’s. . . denial of
the motion to amend the complaint.” (Pet. A-6 at 4). See
Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
330-31 (1971); Semco, Inc. v. Amcast, Inc., 52 F.3d 108, 114
(6th Cir. 1995).
In evaluating the appropriateness of a motion to amend, the
court may consider undue delay of filing, lack of notice to the
opposing party, bad faith by the moving party, undue preju-
dice to the opposing party, and futility of amendment. See
Foman v. Davis, 371 U.S. 178-182 (1962); General Elec. Co.
v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990). In
denying the Petitioner’s Motion to Amend, the Magistrate
Judge noted that Petitioner offered “no explanation for this
extraordinary delay” and that “the amended complaint does
not contain any factual allegations that were not known to the
Plaintiff when tiie original complaint was filed in 1987.” (Pet.
A-3 at 2-3). The Magistrate Judge also found that Seagram
would be unduly prejudiced because, at this late date, it
would be required to re-depose a plaintiff who was claiming
discrimination several years previously, as well as other wit-
nesses whose memories concerning the Petitioner’s demeanor
“would now be long faded. . . .” (Jd. at 5). Accordingly, the
Magistrate Judge concluded that not only was Petitioner’s
delay unjustified, it unfairly prejudiced the defendant.” (/d.
at 4-5).
Thus, as stated by the Magistrate Judge in his Order deny-
ing Petitioner’s Motion to Amend—and in his Order denying
Petitioner’s Motion for Reconsideration related, inter alia, to
oO
15
his claims regarding document discovery'* (Pet. A-4 at 1-3)—
substantial prejudice to Seagram, undue delay, lack of notice
and bad faith by Petitioner all militated against permitting
Petitioner to amend his five year old complaint to add a time-
barred claim for emotional and mental damages, which was
particularly within the control of the Petitioner. Therefore, the
Orders of the Magistrate Judge denying Petitioner’s Motion
to Amend did not constitute an abuse of discretion.
= The Petitioner again contends in his Petition that discovery of
further documents was necessary before he could file a motion to amend
his complaint to add a claim for emotional and mental damages (Pet. at
21-22), despite the fact that he had not seen those documents. (See Pet.
A-4 at 3; fn. 5, supra).
16
CONCLUSION
It is submitted for all of the reasons set forth herein that the
Petition for a Writ of Certiorari should be denied.
KARLA A. COHEN
MITZI WYRICK
Of Counsel
Respectfully submitted,
JOHN W. OHLWEILER
(Counsel of Record)
SIMPSON THACHER & BARTLETT
(a partnership which includes
professional corporations)
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
EDWIN S. HOPSON
WYATT, TARRANT & COMBS
Citizens Plaza
Louisville, Kentucky 40202
(502) 589-5235
Attorneys for Respondent
4
a
a
‘s °
APPENDIX
A-1l
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
Civil Action No. 87-0022-L(R)
Filed: June 29, 1995
JAMES W. COLEMAN, PH.D..,
Plaintiff,
JOSEPH E. SEAGRAM & SONS, INC.
Defendant.
MEMORANDUM OPINION
This is a racial discrimination case filed under Title VII. A
bench trial was held on May 30 and 31, 1995. For the reasons
that follow, the court concludes that judgment must be entered
for the defendant.
FINDINGS OF FACT
Prior to commencing work for Defendant Joseph E.
Seagram & Sons, Inc. (“Seagram”), Plaintiff James W. Cole-
man (“Dr. Coleman”), an African-American, had attained both
A-2
a bachelor’s degree from Tougaloo College and a master’s
degree from Tuskegee Institute. Dr. Coleman had worked as
a bacteriological technician for the Air Force and as an
instructor at Tuskegee Institute. Dr. Coleman was first hired
by Seagram in September 1964. He was initially paid an
hourly wage as a Production Trainee at Seagram’s Lawrence-
burg, Indiana production facility. Dr. Coleman continued to
work there as Yeast Chemist until September 7, 1965.
Dr. Coleman then began working at Seagram’s Research
and Development (“R&D”) facility in Louisville, Kentucky.
Still working for an hourly wage, Dr. Coleman worked in the
Biotechnology Section. Dr. Coleman worked at the Louisville
R&D facility for the remainder of his career with Seagram,
and received a number of promotions. In September 1965 he
was promoted to Central Research Supervisor, a wage posi-
tion. Dr. Coleman was then promoted to a salaried position as
an Associate Scientist in November 1966. In December 1967
Dr. Coleman began work as a Senior Associate Scientist. He
remained in that position until January 1973, when he was
made a Research Scientist. In January 1977 he was promoted
to Senior Research Scientist, a position he held until the end
of his career with Seagram in August 1985. The position
above Senior Research Scientist, the highest position in the
Biotechnology Section, was the Section Head position.
Dr. Coleman received his Ph.D. in Microbiology from the
University of Louisville in 1972. Seagram fully reimbursed
Dr. Coleman for his tuition and periodically afforded him paid
time off to enable him to complete his thesis on a subject
related to his work for Seagram. Dr. Coleman’s articles on the
subject of grain alcohol fermentation have been published in
scientific journals. Dr. Coleman also holds memberships in
various scientific organizations, and has taught at the Uni-
versity of Louisville.
Dr. Coleman was actively involved with the activities of the
NAACP throughout most of his career at Seagram. His par-
ticipation was a matter of general knowledge at the Louisville
R&D facility. Dr. Coleman took paid time off to attend
NAACP national conventions in the mid-1970s, and Seagram
A-3
authorized Dr. Coleman to provide hospitality to the
Louisville delegation at certain of the conventions.
Dr. Albert Bronsky was the Section Head of the Biotech-
nology Section from 1968 to 1975, and was thus Dr. Cole-
man’s immediate superior, advised Dr. Coleman that he
needed to receive a series of superior ratings in order to get
promoted. On December 22, 1976 Dr. Coleman sent a letter to
Dr. S.L. Adams to Seagram’s offices in New York. This letter
requested a review of Dr. Bronsky’s determination that Dr.
Coleman’s performance did not warrant a promotion to Senior
Research Scientist. Dr. Coleman’s actions were effective, and
he received that promotion as of January 1977.
During his career at Seagram, Dr. Coleman received 25
salary and adjustment increases, resulting in a salary of
$52,620 at the time of his retirement in August 1985. These
increases came at intervals of approximately one year. Dr.
Coleman's 1985 salary was the second highest among the
employees at his level (Senior Research Scientist-Grade 18)
in the R&D department, but was less than that of employees
at higher level managerial positions. As a basis for compari-
son, as Section Head (Grade 21) Dr. Weber’s 1985 salary was
$57,060. Two other Senior Research Scientists, Dr. Welden
Maisch and Dr. Ping Wang, were paid $48,180 and $44,700
respectively.
Dr. Coleman’s salary increases were based in part on per-
formance evaluations and merit reviews given during his last
ten years of employment with Seagram. His ratings ranged
from just below a 3 (or “Good”) rating, given when an
employee performed “as expected,” to a rating of 4 (or “Supe-
rior”), given when an employee’s performance exceeded
expectations. Dr. Coleman’s evaluations included written
comments that he needed to complete projects in a more
timely manner, reduce his backlog of projects, improve his
personal relationship with personnel at the production plant,
and focus more on creative projects and less on routine work.
Dr. Fred Weber was Section Head for the Biotechnology
Section from March 1975 until his retirement in August 1985.
Dr. Weber, the other Section Heads at the R&D facility, and
A-4
Mr. James Martin as Research Administrator, reported to the
Vice President for Research and Development, Dr. Leslie
Bluhm. In December 1982 Seagram discontinued its bottling
operations at the Louisville plant, and closed the production
facility in the Spring of 1983. Then in early 1984 Dr. Weber
made it known that the would cetire when he became 62 years
of age in February 1985. Dr. Coleman’s interest in the posi-
tion was either generally known to Seagram management or
made known to them by his expression of interest.
In the latter part of 1984, Seagram announced that the R&D
Department would be relocating to its facility in White Plains,
New York and consolidated with Seagram’s New Products
Development operation that had been located in Hawthorne,
New York. Dr. Weber indicated that he would not be trans-
ferring to White Plains, and elected to retire in August 1985.
Seagram offered all salaried professional employees in
Louisville, including Dr. Coleman, the opportunity to trans-
fer to the White Plains facility. Those making the move to
White Plains would work there in a position comparable to
their previous position in Louisville, with comparable respon-
sibilities, grade level, and salary. Seagram did not offer indi-
vidual employees promotions as an inducement to get them to
move to White Plains. Certain employees did, however,
receive promotions either in the ordinary course of Seagram’s
promotion process or as a reward for extraordinary achieve-
ment. For example, in November 1984 Mr. Hugh Mason was
promoted to Research Engineer and in February 1985 Ms.
Althea Jones was promoted to Junior Scientist. Ms. Jones’
promotion came after she received a highly favorable letter
regarding her work on a special project, and was requested by
her so that she would be able to make the move to White
Plains.
Seagram offered relocation allowances and assistance in
finding homes in the White Plains area. Seagram paid for
employees to take trips to New York to locate a new home,
offered a cost-of-living adjustment that could be taken in a
lump sum after making the move, a buy-out option on the
employee’s current mortgage and assistance with the
employee’s new mortgage. In the alternative, those salaried
A-5
professional employees who elected not to transfer were eli-
gible for a special several package equal to one month’s
salary for each year of service with Seagram. This option was
no longer available after an employee moved to the White
Plains facility.
A letter dated March 14, 1985 was sent to Dr. Coleman and
other professional employees urging them to transfer to White
Plains, and requesting that their intentions be indicated to Dr.
Bluhm or James Martin by March 22, 1985. Of the employees
in the Biotechnology Section, only Althea Jones, Jose Puebla,
and James Ervin, all Junior Scientists, transferred to White
Plains. On or about March 15, 1985 Dr. Coleman requested
his personnel file from Dr. Weber. The informal supervisor's
file relating to his employment was shown to him, but Dr.
Coleman stated that the file was incomplete. In May 1985
Dr. Bluhm brought Dr. Coleman’s personnel file from the
Human Resources department in New York City for Dr. Cole-
man to review. Nonetheless, Dr. Coleman wrote a letter dated
May 31, 1985 to M. W. Griffin, Executive Vice President for
Human Resources, requesting additional documents in his
file. Mr. Griffin responded that he believed Dr. Coleman had
been provided with everything in his personnel file, and that
if he was seeking other documents, he needed to identify them
specifically. On June 20, 1985 Dr. Coleman responded by
stating the types of documents he was seeking. Dr. Coleman
was then told that Seagram did not have the documents he
requested.
On March 22, 1985, in response to an oral question to him
by Mr. Martin, Dr. Coleman stated that he would be trans-
ferring to White Plains. It was brought to his attention at
some point later in the day that, under Seagram’s move incen-
tive program, an employee who accepted the move incentives
but later chose not to transfer to White Plains would not be
eligible for the special severance package. Interested in pre-
serving his right to elect to receive the severance package, Dr.
Coleman sent a handwritten letter dated March 22, 1985 to
Dr. Bluhm and Mr. Martin stating that would not be trans-
ferring to the White Plains facility. Dr. Coleman’s decision
A-6
was also apparently based on his desire to see more infor-
mation from his personnel file in order to gauge the likeli-
hood that would be promoted to the Section Head position,
either before or after the move to White Plains was com-
pleted. Dr. Coleman also considered the personal and finan-
cial aspects of relocating to White Plains, New York. By
1985, Dr. Coleman had lived in Louisville for approximately
25 years, and his wife had developed a successful career as a
real estate broker. The Colemans also owned four fourplexes
comprising 16 rental units.
Dr. Weber retired on August 1, 1985. Thereafter Mr. Jose
Puebla, a Junior Scientist, performed some of the responsi-
bilities of a Section Head, but primarily worked to pack away
laboratory equipment in preparation for the move to White
Plains. Seagram did not make a decision regarding who would
fill the Biotechnology Section Head position on a permanent
basis until it was clear which employees would transfer to the
White Plains facility. When none of the senior staff from the
Biotechnology Section elected to make the move, Dr. Bron-
sky was appointed to the Section Head position on an interim
basis. He remained in that position until February 1989 when
Seagram appointed Dr. William Hirt to the Section Head posi-
tion.
On August 19, 1985, Dr. Coleman submitted a letter to Dr.
Bluhm stating that he would separate from Seagram effective
August 31, 1985. In accordance with the special severance
package offered in connection with the move to White Plains,
Dr. Coleman received payments equal to 21'/, months of
salary, and continued coverage under the Seagram Group
Insurance Program. On September 11, 1985 Dr. Coleman filed
a Complaint of Discrimination asserting the same claims that
are the subject of the present action. On December 19, 1985
this Complaint was directed to the federal Equal Employment
Opportunity Commission (“EEOC”). After conducting its own
investigation, on October 10, 1986 the EEOC issued its deter-
mination that there was not probable cause to believe that Dr.
Coleman’s allegations were true.
|
A-7
At trial Dr. Coleman testified that part of his personnel file
contained racist comments. He stated that Dr. Weber had told
him that Dr. Bluhm had made racist comments in his evalu-
ations. He further testified that Dr. Weber had told him that
the Dr. Bluhm had forced him to put negative comments in
Dr. Coleman’s personnel file. Dr. Coleman also indicated that
Dr. Weber told him that Dr. Bluhm had made racist comments
about Dr. Coleman and that Dr. Coleman would not get the
job of Section Head. He was also displeased that Seagram had
taken his picture and used it without his permission for arti-
cles appearing in The Louisville Defender newspaper, Ebony
magazine, and minority recruitment literature for Seagram.
Dr. Coleman complained to management staff at Seagram that
he was offended by this activity. Dr. Weber was Dr. Cole-
man’s supervisor during Dr. Coleman’s entire career at Sea-
gram. Dr. Weber, however, denied that Dr. Bluhm had made
racist remarks about Coleman. Dr. Weber did criticize Dr.
Bluhm’s management style, but did not feel that Dr. Bluhm
made employment decisions on the basis of race.
Mr. James Martin, an African-American male, is the Direc-
tor of Management Services in White Plains. He previously
worked in the Louisville production facility and then trans-
ferred to R&D in 1983. Currently he is involved with
Associated Managers, an association of African-American
employees at Seagram whose purpose is to act as an advocate
for African-American recruitment, promotion, and training.
Mr. Martin stated that the Louisville employees were
informed that no decisions regarding promotions would be
made until the move to White Plains was completed. Mr. Mar-
tin believes that Dr. Coleman and Dr. Bluhm had a conflict.
Mr. Martin saw no evidence that the conflict concerned race.
In Mr. Martin’s opinion, race was never an issue with Dr.
Biuhm. Dr. Bluhm was primarily concerned with professional
qualifications and performance.
CONCLUSIONS OF LAW
This is a racial discrimination case arising under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e e7 seq.
A-8
(1992). This court has jurisdiction under the general federal
question statute, 28 U.S.C. § 1331 (1992).
This case poses a dilemma. The court is faced with a well-
educated and articulate plaintiff whom in good faith believes
that because of his race he has suffered job-relation dis-
crimination. Dr. Coleman was obviously well qualified for the
Section Head position. However, the court must judge the
case on the evidence presented. Based on the evidence of
record, plaintiff has not persuaded the court that he suffered
intentional discrimination. St. Mary’s Honor Center v. Hicks,
_.. U.S. __,, 113 S.Ct. 2742, 2749-54, 125 KL.Ed.2d407
(1993). This conclusion is not critical of the credibility of the
plaintiff.
The testimony of Dr. Fred Weber and Mr. James Martin
offers a different perspective and carries great weight with the
court. Dr. Fr-d Weber, a Caucasian male, retired as Section
Head of Biotechnology in 1985. He had worked with Dr.
Coleman during his entire tenure at Seagram. As the time of
trial he had been retired for 10 years and had no real ties or
allegiance to Seagram. He was critical as he was supportive
of some of the management decision at Seagram. He stated
things changed at Seagram when Dr. Bluhm became his
immediate supervisor. Dr. Bluhm was a poor manager of peo-
ple. Dr. Bluhm had a tendency to yell and criticize rather than
counsel. Dr. Weber had many criticisms of Dr. Bluhm’s man-
agement style and felt that Dr. Bluhm had a difficult and caus-
tic personality. But Dr. Weber made it clear that race was not
a factor in the employment actions taken by Dr. Bluhm. He
never heard Dr. Bluhm make a racist statement, nor did he
observe him make a decision based on race. [t was also Dr.
Weber’s firm understanding that a decision on the new Sec-
tion Head would not be made until after the move to White
Plains.
Mr. James Martin, African-American male, is the Director
of Management Services at Seagram’s White Plains facility.
He had previously worked in Louisville, first with the pro-
duction facility and thereafter in R&D in 1983. Like Dr. Cole-
man, while in Louisville he had been involved in
organizations and activities protected by Title VII. He is cur-
A-9
rently the president of Associated Managers, an organization
of African-American managers employed at Seagram which
works as an advocacy group to ensure fair promotion and
training opportunities and practices for African-Americans at
Seagram. Mr. Martin was aware that tension existed between
Dr. Coleman and Dr. Bluhm and that it seemed to involve the
issue of promotional opportunities. Mr. Martin stated that race
was never an issue with Dr. Bluhm, and his sole concern was
professional performance. Mr. Martin also stated that it was
clear to him that a decision on the new Section Head would
not be made until the move to White Plains. Mr. Martin never
believed that race was a factor in Seagram’s actions in regard
to Dr. Coleman. Like the court, Mr. Martin did not question
Dr. Coleman’s good faith belief that race had adversely influ-
enced employment decisions regarding Dr. Coleman. How-
ever, Mr. Martin saw no objective evidence to support Dr.
Coleman’s belief.
The facts of his case do not present the kind of “continuing
violation” necessary to toll the statute of limitations. Never-
theless, conduct occurring outside the 300-day limitations
period imposed by Title VII, while not actionable itself, “may
constitute relevant background evidence in a proceeding in
which the status of a current practice is at issue.” United Air
Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). Such evidence
was admitted for the purpose of determining whether other-
wise apparently race-neutral actions were, in fact, motivated
by racial animus. As plaintiff’s motion for reconsideration of
the court’s prior order granting summary judgment for defen-
dant on plaintiff’s claim for constructive discharge was
denied from the bench, only claims for retaliatory discrimi-
nation and failure to promote remain.
Title VII provides, in pertinent part:
§ 2000e-2. Unlawful employment practices.
(a) It shall be an unlawful employment practice for an
employer
A-10
(1) to. . . discriminate against any individual with
respect to his compensation, terms, conditions,
or privileges of employment, because of such
individual’s race. . .
A. FAILURE TO PROMOTE
In a Title VII case, the plaintiff bears the initial burden of
establishing a prima facie case by a preponderance of the evi-
dence. Ang v. Procter & Gamble Co., 932 F.2d 540, 548 (6th
Cir. 1991). When asserting that the employer failed to pro-
mote the plaintiff based, at least in part, by impermissible
considerations of race, the plaintiff’s prima facie case requires
a demonstration that 1) he is a member of protected class,
2) he was qualified and applied for the promotion, 3) he was
considered and rejected for the promotion, and 4) after his
rejection the position remained open and the employer con-
tinued to seek applicants from persons with qualifications
similar to that of plaintiff. McDonnell Douglas v. Green, 411
U.S. 792, 802 (1973); Jackson v. RKO Bottlers of Toledo,
Inc., 743 F.2d 370, 375 (6th Cir. 1984).
If the plaintiff carries this burden, ii is then incumbent upon
the defendant employer to articulate some legitimate, nondis-
criminatory reason for the adverse employment determination.
McDonnell Douglas, 411 U.S. at 802. Once the employer
does so, the burden shifts back to the plaintiff to prove by a
preponderance of the evidence that the legitimate reasons
offered by the employer were not its true reasons, but were
merely a pretext for discrimination. A reason cannot be a pre-
text unless it is shown both that the reason was false and that
discrimination was the real reason for the employer’s action.
Hicks, 113 S.Ct. at 2749-54. The burden of persuasion that
the plaintiff was the victim of intentional discrimination
remains at all times with the plaintiff. Texas Dep't of Com-
munity Affairs v. Burdine, 540 U.S. 248, 253 (1981).
Dr. Coleman, an African-American, is a member of a pro-
tected class. Dr. Coleman was also well qualified for the Sec-
tion Head position. He had extensive experience in the
Biotechnology area, and had performed very well throughout
— OO OO OO EE EEE EEE EE EO EEE
A-11
his career at Seagram. Had Dr. Coleman chosen to transfer to
White Plains, he would have been the only Senior Research
Scientist in Biotechnology to do so, and his experience and
credentials would iiave established him as the front-runner for
that position. The testimony of Dr. Weber and James Martin
confirms the court’s conclusion in this regard.
Dr. Coleman has also met his burden of demonstrating that
he “applied” for the Section Head position. The practice at
Seagram did not generally require a formal application from
current Seagram employees for openings in salaried, profes-
sional positions. Where possible, Seagram’s policy was to try
and fill such openings by an internal search process, finding
and promoting qualified applicants from within the company’s
current employees. Seagram employees periodically com-
pleted a form expressing their interest in certain positions
should promotion opportunities arise. Rather than completing
an application each time an opening arose, this form and word
of mouth were used to determine who was interested in a new
opening. Through this form, Seagram’s own promotion pro-
cedures, and other expressions of interest by Dr. Coleman, it
is clear that Dr. Coleman effectively applied for the Section
Head opening created by Dr. Weber’s retirement.
Dr. Coleman failed to establish, however, that he was con-
sidered and rejected for the Section Head position. While no
doubt Seagram realized that it would need to fill the opening
created by Dr. Weber’s retirement, Dr. Weber remained in and
performed the duties of his position until August 1985. There-
after Dr. Bronsky acted as Biotechnology Section Head on an
interim basis during the transition to White Piains and until a
permanent replacement was found. Seagram may have con-
sidered Dr. Coleman a likely candidate for promotion to that
position. But there is no evidence that any meetings for delib-
erations took place regarding candidates for the position prior
to the move. In addition, no final decision regarding Dr.
Weber’s successor was made until well after the move to
White Plains, when Dr. Hirt was placed in that position in
1989. There is no indication from the facts presented that Dr.
Coleman was rejected as a viable candidate at any time before
A-12
he submitted his letter of resignation in August 1985. Dr.
Coleman relies heavily on some negative statements made by
Dr. Bluhm or Dr. Weber in his earlier performance evaluations
to assert that Dr. Bluhm would have blocked his promotion in
any event. Those statements, however, neither demonstrate
any racial animus on the part of Dr. Bluhm toward Dr. Cole-
man nor are they sufficient to establish a de facto rejection of
Dr. Coleman’s application. The statements contain ordinary,
business-related matters such as timely completion of pro-
jects, ability to deal effectively with subordinate employees
and aggressive leadership ability. Furthermore, subsequent
evaluations were more favorable to Dr. Coleman.
Dr. Coleman filed as an exhibit an advertisement by Sea-
gram which Dr. Coleman took as a rejection. Dr. Coleman
also stated he had seen another advertisement in a trade jour-
nal seeking applicants for the Section Head position, but he
was unable to find it and thus was unable to produce it at trial.
The advertisement he was able to present at trial does not
constitute a rejection of Dr. Coleman for the position. Absent
some more concrete act or evidence demonstrating that he had
been rejected by Dr. Bluhm or Seagram management, Dr.
Coleman has failed to prove that he was rejected by Seagram.
Even if the failure of Seagram to make a decision regarding
the Section Head position until after the move were itself con-
sidered an “adverse employment decision” under the McDon-
nel Douglas analysis, Dr. Coleman would still fail to establish
a violation of Title VII. Seagram did seem to fill the Section
Head position after the move to White Plains, and considered
applicants of Dr. Coleman’s qualifications, thus satisfying the
fourth element of the McDonnell Douglas analysis.
Seagram’s proffered justification for waiting until after the
move to White Plains before making a decision regarding the
Section Head position is that it was waiting until management
knew for certain which personnel, qualified for the position,
from the Louisville R&D facility would be transferring to
White Plains. The evidence offered by plaintiff fails to per-
suade the court that this justification is merely a pretext for
intentional racial discrimination. It would have made little
A-13
sense in early 1985 for Seagram to expend the time and
resources necessary to select a new Section Head, an upper
level managerial position, if there was any significant risk
that the person selected would not be working at the White
Plains facility. The evidence strongly indicates that Seagram
had difficulty in getting the senior staff, particularly in the
Biotechnology Section, to make a decision regarding their
plans to transfer. Most of these persons had strong ties to the
Louisville area, were older and did not want to relocate at this
point in their lives. Dr. Bluhm’s letter of March 15, 1985
requesting an indication from eligible staff within two weeks
came after the staff remained noncommittal more than six
months after the initial announcement that the Louisville
facility would be closed. Indeed, only three people in the
Biotechnology Section elected to transfer, and all these were
below the Senior Research Scientist and Research Scientist
grade level. More specifically, Dr. Coleman’s vacillation gave
Seagram grounds for pause in making the promotion decision.
On March 22, 1985 Dr. Coleman gave a verbal indication that
he would transfer and a written indication that he would not.
Given that his stated concern at the time was in protecting his
right to take the special severance package, Seagram had
legitimate reason to doubt whether Dr. Coleman would move
to White Plains.
Because Dr. Coleman has both failed to demonstrate that
Seagram rejected him for the Section Head position and failed
to prove that the justifications offered by Seagram are mere
pretexts for intentional racial discrimination, Dr. Coleman’s
claim for failure to promote must be dismissed.
B. RETALIATORY DISCRIMINATION
A claim for retaliation has the same sequence and burden of
proof as an intentional discrimination case. Zanders v.
National R.R. Passenger Corp., 898 F.2d 1127, 1134 (6th Cir.
1990); Smith v. City of Dayton, 830 F.Supp. 1066, 1076 (S.D.
Oh. 1993). The plaintiff must establish a prima facie case by
showing that 1) plaintiff engaged in an activity protected by
Title VII, 2) the exercise of his civil rights was known by the
A-14
defendant, 3) thereafter, the defendant took an employment
action adverse to the plaintiff, and 4) there was a causal con-
nection between the protected activity and the adverse
employment action. Christopher v. Strouder Memorial
Hospital, 936 F.2d 870, 877 (6th Cir.), cert. denied,
___ U.SA. __, 112 S.Ct. 658, 116 L.Ed.2d 749 (1991). If the
plaintiff proves these elements by a preponderance of the evi-
dence, the defendant must then articulate a legitimate non-
retaliatory justification for its action. If the defendant does so,
the burden shifts back to the plaintiff to demonstrate by a pre-
ponderance of the evidence that the articulated justification
was, in fact, merely a pretext for intentional retaliation. The
burden of persuasion remains with the plaintiff at all times.
During his career at Seagram, Dr. Coleman actively par-
ticipated in the activities of the NAACP at both the national
and local levels. In addition, Dr. Coleman periodically spoke
out on his own behalf and on the behalf of other African
Americans at Seagram in an effort to ensure equal treatment
for them in their compensation and terms and conditions of
employment at Seagram. This activity is the kind of activity
that Title VII was designed to protect. In addition, Seagram
employees, both Dr. Coleman’s peers and his superiors in
managerial positions, were well aware of his involvement and
activities. Dr. Coleman thus has satisfied the first two ele-
ments of his prima facie case.
However, Dr. Coleman failed to establish that Seagram took
an employment action adverse to him. The only conduct of
Seagram that is actionable is that which falls within the 300-
day window prior to the filing of the complaint with the
EEOC. The only conduct of Seagram falling within that
period relates to its failure to promote Dr. Coleman to the
Section Head position. As noted above, Seagram did not make
a final determination regarding who would permanently fill
the Biotechnology Section Head position until after the move
to White Plains had been completed. Not did the actions of
Seagram or Bluhm constitute any sort of de facto rejection of
his application.
Likewise, Dr. Coleman failed to demonstrate any causal
connection between adverse employment action and Dr. Cole-
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}
}
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A-15
man’s participation in NAACP activities. And, as noted
above, even assuming that Seagram’s decision to delay filling
the Section Head opening is itself actional under Title VII as
an “adverse employment determination,” the evidence does
not support the conclusion that this decision was made as a
way to retaliate against Dr. Coleman. First, Seagram had in
the past strongly supported Dr. Coleman’s NAACP activities
by providing paid time off to attend NAACP meetings and
providing hospitality for the Louisville delegates at the
national convention. James Martin also testified that Seagram
currently supports his activities to promote minority interests
at Seagram. Second, Seagram’s articulated justification for
delaying that decision, to determine which Seagram employ-
ees for Louisville's R&D facility transfer to White Plains,
support the conclusion that it was that consideration rather
than a desire to retaliate against Dr. Coleman that caused the
delay in making the promotion decision. Dr. Coleman has also
failed to demonstrate that this articulated justification is just
a pretext for discrimination. Finally, Dr. Coleman’s partic-
ipation in NAACP activities took place primarily in the late
1970s. The sheer passage of time renders it unlikely that an
employment decision made in the mid-1980s was caused by
Dr. Coleman’s conduct so many years before. While not con-
trolling, the “temporal link” between the protected activity
and the adverse employment decision is strong evidence of
whether a causal connection between the two exists. Holland
v. Jefferson National Life Insurance Co., 883 F.2d 1307, 1315
(7th Cir.); Eastland v. Tennessee Valley Authority, 704 F.2d
613, 627 (11th Cir. 1983).
Because Dr. Coleman has both failed to demonstrate that
Seagram took adverse employment action against him and
failed to prove that there was any causal connection between
Seagram’s conduct and protected activity, Dr. Coleman’s
claim for retaliatory discrimination must be dismissed. An
appropriate order shall be entered.
This the 26th day of June, 1995.
/s/ THOMAS B. RUSSELL
Judge, U.S. District Court
A-16
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
Civil Action No. 87-0022-L(R)
Filed: June 27, 1995
JAMES W. COLEMAN, Ph.D.,
Plaintiff,
JOSEPH E. SEAGRAM & Sons, INC.
Defendant.
ORDER
This matter having come before the Court for trial on May
30 and 31, 1995; and the Court having considered the depo-
sition testimony of Dr. Carl Bluhm and Dr. Richard Bronsky,
who were unavailable to testify at trial, and all of the admis-
sible evidence presented at trial; and the Court being other-
wise sufficiently advised;
IT 1s ORDERED that JUDGMENT be entered in favor of the
Defendant and against the Plaintiff, and this case is Dis-
MISSED with prejudice.
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A-17
This is a final and appealable order.
This the 26th day of June, 1995.
/s/ THOMAS B. RUSSELL
Judge, U.S. District Court
CC: Counsel
A-18
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
Civil Action
No. C-87-0022-L(M)
JAMES W. COLEMAN,
Plaintiff,
—aga)ast—
JOSEPH E. SEAGRAM & SONS, INC.,
Defendant.
STATE OF NEW YORK )
Me
COUNTY OF NEW YORK )
AFFIDAVIT
ANN M. GIAMBUSSO, being duly sworn, deposes and says:
1. Iam Human Resources Counsel for Joseph E. Seagram
& Sons, Inc. (“Company” or “Seagram”), defendant in the
above-referenced action. I am fully familiar with the facts
herein. I submit this affidavit in opposition to Plaintiff’s
Motions (i) for Ruling on Omissions, (ii) for Ruling on Plain-
tiff’s Motions Being Held In Abeyance Pending Defendant’s
Compliance With Order, and (iii) for Sanctions for Defen-
dant’s Refusal to Comply With Discovery Orders.
ee
A-19
2. Since the commencement of this action in 1987, I have
been the Seagram in-house attorney coordinating Seagram’s
defense of this action. In that capacity, I am responsible for,
inter alia, supervising Seagram’s response to discovery
requests, including gathering relevant documents and veri-
fying Answers to Interrogatories and Admissions.
3. Because Plaintiff has repeatedly accused Seagram of
“withholding” documents, I have, on at least four separate
occasions, directed Seagram employees to search Company
files for additional documents relating to Plaintiff’s employ-
ment and responsive to Plaintiff’s discovery requests con-
cerning other current and former Company employees. I have
specifically directed that searches be made in Seagram’s New
York offices where the official Company Personnel Files of
current employees and retirees (such as Plaintiff) are main-
tained, Seagram’s off-premises records storage site at Glen-
dale, New York and at Seagram’s offices in Louisville and
Cox’s Creek, Kentucky and Lawrenceberg, Kentucky, where
some files from the Louisville Research and Development
facility at which Plaintiff was employed prior to the reloca-
tion of that department to White Plains, New York are
located. Based on these searches, as more specifically
described below, Seagram has produced (i) all documents
relating to Plaintiff’s job performance, (ii) all files maintained
by Dr. Bluhm on the employees set forth in Plaintiff’s
September 6, 1989 letter, and (iii) all personnel files
requested by Plaintiff on other current and former Seagram
employees which are within Seagram’s possession, custody or
control. The Company has also previously produced docu-
ments and forms describing its policies and procedures con-
cerning performance evaluations and merit reviews in effect
during Plaintiff's employment with the Company which are
responsive to Plaintiff’s discovery requests forming the basis
for Demand No. 6 in Plaintiff's Second Motion to Compel and
the instant Motion for Ruling on Omissions.
«. When, in June of 1988, Plaintiff served his First Set of
Interrogatories and Request for Production of Documents
A-20
which sought, inter alia, his personnel file and files main-
tained by Seagram’s “supervisor/managerial employees. . .
regarding the plaintiff”, I directed that Seagram employees
gather all such files relating to the employment of Plaintiff.
Files were retrieved from Seagram’s Human Resources
Record Room, in which the official Company Personnel File
is maintained, the Payroll Office, Seagram’s New York
Human Resources Department and Seagram’s Research and
Development Department in which Plaintiff had been
employed prior to its move to White Plains, New York. All
documents maintained within these various departmental
files, as well as Plaintiff’s official Company Personnel File,
were gathered and forwarded in their entirety to Defendant’s
counsel Simpson Thacher & Bartlett, which already had a pre-
existing file containing most of those documents that had
been collected during its investigation (in which I was also
involved) of a Complaint filed by Plaintiff in 1985 with the
Equal Employment Opportunity Commission (“EEOC”) and
dismissed by that agency in 1986.
5. Seagram produced all of the documents contained in
these files to Plaintiff on or about July 8, 1988, with the
exception of an early draft of a response prepared by Simpson
Thacher & Bartlett to Plaintiff’s initial Complaint to the
EEOC and correspondence and memoranda regarding that
matter, which are withheld as privileged documents.
6. When, in August 1989, Plaintiff improperly served sub-
poenas duces tecum on two of the Company’s employees (Dr.
Leslie Bluhm and Mr. Robert Cherundolo), I directed that
documents and forms describing the Company’s policies and
procedures concerning employee evaluations and merit
reviews in effect during plaintiff’s employment be gathered
by Company employees. Approximately forty documents
responsive to that request were gathered and forwarded to
Simpson Thacher & Bartlett and subsequently produced to
Plaintiff.
7. In addition to those documents and forms, Seagram had
already produced in response to Plaintiff’s First Request for
A-21
Documents a manual entitled “Personnel Procedure - Pro-
duction Division” that had been used by the Company in the
1960’s and 1970’s. This manual contained some of the poli-
cies, rules and regulations applicable to Plaintiff during that
period, but was not in effect after 1983. As was explained to
Plaintiff’s counsel in Seagram’s Opposition to Plaintiff’s Sec-
ond Motion to Compel, since 1983 Seagram has not had any
personnel manual or other comprehensive document setting
forth employment practices or policies. Subsequently, in
response to Plaintiff's Second Set of Interrogatories and
Request for Documents, Seagram produced to Plaintiff a Sea-
gram publication entitled “Your Guide to Seagram Benefits”
which describes the benefits Plaintiff may have been entitled
o during his employment.
8. When, by letter dated September 6, 1989, Plaintiff’s
counsel requested “the personnel files and/or merit review
forms that Mr. Bluhm kept. . .” on certain named employees,
I directed Dr. Bluhm to gather any of his personal supervisory
files (which are not official Company files) regarding the
employees set forth in Plaintiff’s counsel’s letter dated
September 6, 1989. Dr. Bluhm advised me that while he had
files on such employees containing documents dated after the
move of the Louisville Research and Development Depart-
ment to White Plains, he believed that his personal files on
other employees which he maintained in Louisville prior to
the move had been sent to Seagram’s Human Resources
Department in New York City and were no longer in his
possession.
9. I gathered the files that were in Dr. Bluhm’s possession
and sent them to Simpson Thacher & Bartlett to prepare for
production to the Plaintiff. I then directed Seagram employ-
ees to search for the files Dr. Bluhm believed he had sent to
the New York Human Resources Department. The search
for these files included Seagram’s New York offices, includ-
ing the Human Resources Department,’ Seagram’s off-site
There were, of course, official Company Personnel Files for the
employees and former employees included in Plaintiff’s counsel’s letter
A-22
storage facility at Glendale, New York, as well as Seagram’s
offices in Louisville and Cox’s Creek, Kentucky. I am not
aware of any other locations where these files might have
been retained. The above-described search did not locate the
files personally maintained by Dr. Bluhm prior to the relo-
cation of the Research and Development Department to White
Plains, New York. Seagram subsequently produced to Plain-
tiff the contents of the files on the listed employees main-
tained by Dr. Bluhm that were in his possession in White
Plains as of the date of Plaintiff’s request.
10. When, in April of 1991, Plaintiff served his Second Set
of Interrogatories and Request for Production of Documents
which sought, inter alia, the production of the personnel files
of numerous past and present Seagram employees, I directed
that Company employees gather the personnel files of the
employees listed by Plaintiff in Request Nos. | and 2. Files
were then retrieved from Seagram’s Human Resources
Records Room in New York, in which the official Company
Personnel Files are maintained, the Payroll Office, Seagram’s
New York Human Resources Department and Seagram's
Research and Development Department. All documents main-
tained within these various departmental files were gathered
and forwarded to defendant’s counsel, Simpson Thacher
& Bartlett. The requested documents were produced to Plain-
tiff on or about June 18, 1991.
11. In response to Plaintiff’s 66 Requests for Admissions
asking, inter alia, Seagram to admit that it never had in its
possession various personnel records of both an official and
unofficial nature pertaining to Plaintiff and other employees
at the Louisville Research and Development facility, I again
directed that a thorough review be conducted of Company
records in recognition of Seagram’s obligation to respond to
admission requests only after completing a reasonable inquiry
into such requests. I directed Company employees to gather
of September 6, 1989 maintained in Seagram’s Human Resources Record
Room in New York City, but they were not requested by Plaintiff at this
time. (See Ohlweiler Affidavit, 422; Letter to Plaintiff's counsel dated
April 6, 1993.)
A-23
responsive documents from Seagram’s Human Resources
Record Room, in which the official Company Personnel Files
are maintained, Seagram’s New York Human Resources
Department and Seagram’s Research and Development
Department. A list of files maintained at the Human
Resources Department at Seagram’s Lawrenceberg, Kentucky
facility concerning the Louisville Research and Development
Department was also reviewed.
12. I also directed that all of Dr. Bluhm’s own files be
retrieved from Company off-site records storage facility at
Glendale, New York and again reviewed to determine whether
they contained any additional unofficial personnel records
responsive to Plaintiff’s request contained in his counsel’s let-
ter of September 6, 1989.2 As was the case with the Com-
pany’s original search of these files, no additional documents
responsive to Plaintiff’s discovery requests were found in
these files.
13. Seagram completed the above-described search and
review not only in response to Plaintiff's Requests for Admis-
sions, but also in connection with Plaintiff’s Second Motion
to Compel which was served in January of 1993.> I reviewed
outside counsel’s planned response to the Second Motion to
Compel in the context of my own review of Company files
and found that all documents in Seagram’s current possession,
custody and control responsive to Plaintiff’s discovery
requests that formed the basis of his Second Motion to Com-
pel had been produced to Plaintiff.
=
-
Dr. Bluhm had retired from Seagram by the time the Company
received Plaintiff's Requests for Admission. Dr. Bluhm’s personal files
were as of this date comprised of work-related material completed by Dr.
Bluhm during his tenure as Manager of the Research and Development
Department in White Plains, i.e., they contained no pre-relocation
employee evaluations or other personal documents responsive to Plain-
tiff’s discovery requests.
3
Demand Nos. 2, 4 and 6 of Plaintiff’s Second Motion to Compel
form the substance of the instant Motion For Ruling On Omissions.
A-24
14. Specifically, in response to Demand No. 2 of Plaintiff’s
Second Motion to Compel, I verified that Seagram has no
“performance summary” forms and “supervisor’s notes”,
which are not official Company documents, for Doctors
Gieger and Hirt as those terms have been defined in the con-
text of this proceeding. In fact, Plaintiff has never requested
the production of the official Company Personnel Files for
either of these individuals. (See Ohlweiler Affidavit, 423 and
footnote 8.)
15. I verified that Seagram has already produced to Plain-
tiff all of the personnel files within Seagram’s possession and
control that wouid contain performance evaluations on indi-
viduals identified in Demand No. 4 of Plaintiff’s Second
Motion to Compel.
16. Finally, with respect to Demand No. 6 of Plaintiff’s
Second Motion to Compel, I verified that, as was explained to
Plaintiff in Seagram’s responses to both Plaintiff’s First and
Second Request for Documents, since 1983 Seagram has not
had any personnel manual or other comprehensive document
setting forth Company employment policies or practices
responsive to Plaintiff’s request. As such, it is the Company’s
belief that it has complied in a fully responsive manner with
respect to Plaintiff’s requests which complies the basis of
Demand No. 6. (See 9 6-7, supra)
17. When, on June 11, 1993, the Court ordered Seagram
“to produce for inspection within (30) days of the date of
entry of this order at the offices of its local counsel. . . the
‘personnel records’ of the following former or current
employees of the defendant : [Ruf], Bailey, Wagener, Maisch,
Weber, Bronsky, Wolfram, Baldwin, Coffey, Panek, Scalf,
Sanders, Bosworth, Wathen, Luther and Wang,” I directed that
another search of Seagram facilities be completed similar to
the search described in the preceding Paragraphs 10 through
12. I directed that the original Company Personnel Files, and
any unofficial personnel-related material located with respect
to the named individuals, be gathered and forwarded to
Defendant’s counsel, Simpson Thacher & Bartlett, even
A-25
though the content of these files had for the most part already
been produced to the Plaintiff. The original documents were
produced for Plaintiff’s review and copying in Louisville on
July 9, 1993.
18. Seagram is not now, nor has it ever, wilfully concealed
from Plaintiff any Company document responsive to any of
his requests for documents which form the basis of the
Mouions currently pending before the Court herein. Rather, at
substantial expense to the Company, I have directed on no
less than four (4) separate occasions that searches be con-
ducted at Seagram facilities either known, or believed to be
reasonably likely to contain the employee records sought by
Plaintiff throughout this proceeding. On each occasion, I for-
warded all responsive material yielded by the respective
searches to Seagram’s counsel, Simpson Thacher & Bartlett,
which in turn produced the material to Plaintiff. As such,
Plaintiff's own belief, unsubstantiated in fact, that Seagram
possesses additional discoverable material simply is untrue.
19. Seagram has produced (i) all documents relating to
Plaintiff’s job performance, (ii) all files maintained by Dr.
Bluhm on the employees set forth in Plaintiff’s September 6,
1989 letter, and (ili) all personnel files requested by Plaintiff
on other current and former Seagram employees in Plaintiff’s
Second Set of Interrogatories and Request for Production
which are within the possession, custody or control of the
Company. Further, Seagram has complied in a fully respon-
sive manner to Plaintiff’s Production Request No. 12 of his
Second Set of Interrogatories and Request for Production
relating to copies of defendant’s generally applicable per-
sonnel practices and procedures.
4
The only documents contained in those files not previously pro-
duced to Plaintiff were documents placed in the files after they had been
produced and which pertained primarily to benefits.
A-26
/s/ ANN M. GIAMBUSSO
Ann M. Giambusso
Sworn to before me this
15th day of September, 1993.
/s/ KAREN E. MOLONEY
Notary Public
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.