Opposition Brief — Sheehan v. Daily Racing Form, Inc.

Supreme Court, U.S.

FILE D

|

Y 19 1997

No. 96-1668 MAY 19

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ae ——=—= = CLERK |

QF THE K |

In The

Supreme Court of the United States

October Term, 1996

¢

JAMES J. SHEEHAN,

Petitioner,

VS.

DAILY RACING FORM, INCORPORATED,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

+

BRIEF OF RESPONDENT IN

OPPOSITION TO CERTIORARI

+

Damon E. Dunn, Esquire

Counsel of Record

Levin & FuUNKHousER, LTD.

55 West Monroe Street

Xerox Centre — Suite 2410

Chicago, Illinois 60603

(312) 701-6800

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

ie lage aa eee ey ¢ a = sis theca sa ‘ - “ “ —

QUESTION PRESENTED

Should this Court issue a Writ of Certiorari to recon-

sider the concurrent findings of fact by the District Court

and the Court of Appeals, which findings resulted in

summary judgment in favor of an employer based on a

discharged employee’s failure to submit sufficient evi-

dence of a violation of the Age Discrimination In Employ-

ment Act, 29 U.S.C. § 621, et seq.?

RULE 29.1 LIST

Respondent Daily Racing Form, Inc. is a subsidiary of

KIII Communications Corp. and has the following wholly

owned subsidiaries: DRF Finance Inc. and Daily Racing

Form of Canada, Ltd. Daily Racing Form, Inc. has no

non-wholly owned subsidiaries of its own.

lil

TABLE OF CONTENTS

Page

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BPM SE RAPER OLIN ID ooo 5k oo soe edness cen cence iv

pees GO SOO CAGE ks coc occcskcececnn 1

REASONS FOR DENYING THE WRIT............. 4

I. PETITIONER’S CLAIM WAS NOT SUP-

PORTED BY FACTS IN THE RECORD...... 6

Il. THERE IS NO CONFLICT BETWEEN THE

MUM SS bhi eee Ou eas xt Seek Se ca 9

III. THE DECISION OF THE COURT OF

APPEALS IS CONSISTENT WITH THIS

CAPES oF MIUAENSIS. 0 vice ccdnckcs. Eons 5

NIE a FFU eee exe tes nk a oes 13

iv

TABLE OF AUTHORITIES

Page

CASES

Armbruster v. Unisys Corp., 32 F.3d 768 (3rd Cir.

| A ee Perr or Lome oe re ge Sat nt MET ge er 11

Berenyi v. Immigration Director, 385 U.S. 630 (1967) ..... 6

Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th

Rt SORe Ss oe c's nas Rn aee ees Fone ea ea ee ee 11

Branti v. Finkel, 445 US. SOF CIB) 0 ccc cdi tevnccins 6

Cuddy v. Carmen, 694 F.2d 853 (D.C. Cir. 1982) ...... 10

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

Ci ee Ce bo io ne LA 2, 10

Douglas v. Anderson, 656 F.2d 528 (9th Cir. 1981) .... 10

Furness, Withy & Co., Ltd. v. Yang-Tsze Ins. Assoc.,

tid She BS A CIR oo iis oc cea 13

Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435

ERTS Ae DE oho 50s oh ene ee ee eee 10

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)...... 6

Graver Tank & Mfg. Co., Inc. v. Linde Air Products

Ch See ee ee RI a rh oe ees See ee eras 6

Haskell v. Kaman Corp., 743 F.2d 113 (2d Cir. 1984) .... 10

Henson v. Liggett Group, Inc., 61 F.3d 270 (4th Cir.

2 1? ES ane re rye Ear seer nts greene rh Pree 11

Hutson v. McDonnell Douglas Corp., 63 F.3d 771

RU GA: ESUO Vscveirintagenwateshdeeshreeeeeeess 10

Layne & Bowler Corp. v. Western Well Works, Inc.,

pe e+ | mere rar mut errr yee 9

Lindsey v. Prive Corp., 987 F.2d 324 (Sth Cir. 1993) .... 10

Vv

TABLE OF AUTHORITIES —- Continued

Page

Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) .... 10

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(RFF Oss iat e8 ces VERN awed cena ee evens 3, 10, 22, 13

NCAA v. Board of Regents, 468 U.S. 85 (1984)......... 6

O’Connor v. Consolidated Coin Caterers Corp., 517

U.S. __, 134 L. Ed. 2d 433 (1996) ...... >, 00, Bi, 32

Palmer v. United States, 794 F.2d 534 (9th Cir. 1986) .... 11

Rinehart v. City of Independence, 35 F.3d 1263 (8th

Cae BRP OE ss vvnvs pabiwe bean eet okie eae a eee 10

Rogers vo. Lodge, 456 US. 615 (2962) «ooo. ccc cesses 6

Roush v. KFC Nat'l Mgt. Co., 10 F.3d 392 (6th Cir.

i) ee eee ee Tre er ee ey ee Peg aire ara 10

Schwager v. Sun Oil Co. of Pa., 591 F.2d 58 (10th Cir.

td) EEE PECCE RT OR ee cae rege ee te eT rte Cente Cs 10

Seman v. Coplay Cement Co., 26 F.3d 428 (3rd Cir.

SOP ES s a5 hacen ss CCGA kee ene eee 10

Southern Power Co. v. North Carolina Public Service

A, DOR Sa SE REP isa eure Caper iaysckecs 13

State of Maryland v. Baltimore Radio Show, Inc., 338

as WER: CSTUEE 60 ba he ein cee Fee a eRe eeS 12

United States v. Johnston, 268 U.S. 220 (1925)....... 9, 13

Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510

GO AA. ROM Ra i ce cdandtariev buen scuruats are hedeees 11

STATUTES AND RULES

Sate <OUee TI Tis o's ss bis cv vss ease seen’ 4,9

BRIEF OF RESPONDENT IN

OPPOSITION TO CERTIORARI

Respondent, Daily Racing Form, Inc., respectfully

requests that this Court deny the Petition For Writ Of

Certiorari, seeking review of the Court of Appeals’ unani-

mous opinion in this case. That opinion is reported at 104

F.3d 940 (7th Cir. 1997) (Posner, Ak

¢

STATEMENT OF THE CASE

Petitioner James J. Sheehan’s (“Sheehan”) Statement

of the Case incompletely described the facts presented to

the District Court and the Court of Appeals which justi-

fied summary judgment for the employer in this case. The

unanimous opinion affirming the judgment of the District

Court carefully and thoroughly examined the entire

record for material facts tending to demonstrate discrimi-

natory conduct by the employer and found none.

The Court of Appeals could find no evidentiary basis

in the record for Sheehan’s age discrimination claim. The

Court of Appeals noted that Sheehan relied on just two

pieces of evidence to prove discrimination by the direct

method, the “Shulman Memo” and a statistical analysis of

the memo. (Petition Appendix (“Pet. App.”) 2a-3a.) Yet

Sheehan failed to introduce any supplementary evidence

demonstrating that the listing of birth dates in the Shul-

man Memo actually constituted evidence of discrimina-

tion rather than a recital of one of several salient

characteristics. Nor did the statistical analysis meet this

Court’s threshold requirements for admission into

evidence as set out in Daubert v. Merrell Dow Pharmaceuti-

cals, Inc., 509 U.S. 579 (1993). on

Moreover, Sheehan could not submit any indirect

evidence that younger comparable employees were

treated more favorably because the manager who was

retained was both older and more capable than Sheehan.

(Pet. App. 6a-7a.) Sheehan also did not submit evidence

that he could perform the electronic pagination, writing

and handicapping duties necessary to act as a Page Edi-

tor, let alone do it better than the individual transferred

to that position. (Pet. App. 7a.)

Consequently, the “Questions Presented” as framed

by Sheehan’s Petition assume facts not supported by the

record in this case and are merely designed to obscure

Sheehan’s purpose of asking this Court to review the

factual record to determine whether the Court of Appeals

properly affirmed on the basis of Sheehan’s evidentiary

failings.

In 1993, Daily Racing Form completed the revolution-

ary process of converting its publishing operations to

electronic pagination and thereby completely changed the

methods by which it published its newspapers over the

last thirty years. (Pet. App. 10a-11a.) Entire job classifica-

tions were rendered redundant as the tasks either became

totally irrelevant or were merged into other positions. For

example, one “Page Editor” could use a personal com-

puter to electronically perform the functions of the for-

mer data entry personnel, editors, copy editors, writers,

statisticians and compositors and then transmit syn-

chronized editions to remote print sites around the

nation. (Id.) As development of the new systems pro-

gressed, Daily Racing Form also determined that it could

eliminate its Chicago Edition and merge those functions

into its new bureau in Phoenix, Arizona. (Pet. App. 7a.)

Consistent with the elimination of regional editions and

manual layout, Daily Racing Form also eliminated the

Turf Editor and Copy Editor positions and merged most

of those functions into the new Page Editor position. (Pet.

App. 10a-11a.) Of the two remaining Turf Editors in Chi-

cago, John McEvoy was transferred to a new Assistant

Editor position while McEvoy’s younger assistant,

Sheehan, was not retained.

Although Sheehan brought an ADEA claim, the only

reference to Sheehan’s age in the record appears in a

memo written in December of 1992, by Chicago’s General

Manager, Stanley Shulman. Suspecting that electronic

pagination would lead to staffing changes in Chicago,

Shulman drew up the Schulman Memo to identify the

subordinates which had proved valuable to him. He did

not, however, share the memo with Editor Neil Cook,

who ultimately was charged with making editorial staff-

ing decisions after the decision was made to close Chi-

cago in the summer of 1993. (Pet. App. 15a, 18a.)

Nevertheless, the Shulman Memo is consistent with

Cook’s perception that Sheehan was the least versatile of

the Turf Editors and underscores Sheehan’s relative lack

of versatility with respect to the unionized employees.

During the Summer of 1992, Daily Racing Form made

an extensive effort to retrain its editorial staff, including

Sheehan, to prepare for the introduction of electronic

pagination. (Pet. App. 12a.) Cook directed the training

and the trainers reported directly to him. (Id.) Sheehan

was trained with a small group for three weeks and

trained again with a second group for three days. (Jd.)

The trainer who spent three weeks with Sheehan ranked

him at the bottom of his group and found him unqual-

ified for a Page Editor’s position, while another trainer

ranked him as third lowest out of four. (Pet. App. 13a.)

When Cook was informed in the late summer of 1993

that Daily Racing Form would close the Chicago Edition,

he looked to redeploy his editorial assets consistent with

the few openings available. (Pet. App. 15a-16a.) Cook

created an Associate Editor position for McEvoy, who

was older than Sheehan, to take advantage of McEvoy’s

writing skills. (Pet. App. 15a.) Cook believed, however,

that Sheehan lacked writing and handicapping experi-

ence and that he had done poorly in training. Therefore,

Cook did not offer Sheehan reassignment, in effect a

demotion, to a nonsupervisory Page Editor position. (Jd.)

+

REASONS FOR DENYING THE WRIT

Neither of the Questions Presented by the Petition

satisfy this Court’s criteria for granting a Writ of Cer-

tiorari, nor do they even demonstrate an error on the part

of the Court of Appeals. See Supreme Court Rule 10. The

Petition identifies no conflict with the decision of another

United States court of appeals on the issues raised by the

Questions Presented and no important question of federal

law is implicated by this case.

Sheehan actually quarrels with the Court of Appeals’

evaluation of the evidence in the record rather than the

legal analysis employed. The Petition is entirely devoted

to citing conflicting interpretations of certain evidence

presented in the case, despite both the District Court and

the Court of Appeals having found this evidence to be

irrelevant when placed in context. This Court, therefore,

has no need to address the Questions Presented by

Sheehan's Petition because the courts below found that

there was no evidence of age discrimination.

Sheehan also suggests that the District Court and the

Court of Appeals did not give due weight to the statisti-

cal analysis of the Shulman Memo or the Shulman Memo

itself. Yet Sheehan does not cite any precedents of this

Court, or any other court of appeals, which would require

admission of this evidence, let alone hold that it would

warrant reversal of a summary judgment.

Although the Petition appears to seek guidance on

the application of the McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), formula in the ADEA context, it

acknowledges that this Court emphasized that the for-

mula should be applied pragmatically, if at all. O’Connor

v. Consolidated Coin Caterers Corp., 517 U.S. ___, 134 L. Ed.

2d 433, 438 (1996). Both the District Court and the Court

of Appeals explicitly referred to O’Connor in fashioning a

prima facie test to fit the special circumstances of this case.

Sheehan objects to the Court of Appeals’ analogy to hir-

ing cases, but offers no alternate formula which would

have allowed him to survive a motion for summary judg-

ment on this record. Given that none of Sheehan’s Ques-

tions Presented are supported by the facts of this case or

the law, and no conflict in the federal appellate courts

exists, the Petition should be denied.

I. PETITIONER’S CLAIM WAS NOT SUPPORTED BY

FACTS IN THE RECORD

Sheehan lost below for want of evidence, not because

the Court of Appeals decided to enunciate a new legal

principle. Critical elements necessary to establish dis-

crimination simply lacked any factual support in the

record. Indeed, the District Court’s findings of fact

received the concurrence of the Court of Appeals. This

Court has explained that “a court of law, such as this

Court is, rather than a court for correction of errors in fact

finding, cannot undertake to review concurrent findings

of fact by two courts below in the absence of a very

obvious and exceptional showing of error.” Graver Tank &

Mfg. Co., Inc. v. Linde Air Products Co., 336 U.S. 271, 275

(1949). See also Goodman v. Lukens Steel Co., 482 U.S. 656,

665 (1987); Berenyi v. Immigration Director, 385 U.S. 630,

635 (1967); NCAA v. Board of Regents, 468 U.S. 85, 98 n.15

(1984); Branti v. Finkel, 445 U.S. 507, 512 n.6 (1980); Rogers

v. Lodge, 458 U.S. 613, 623 (1982). In sum, the Court of

Appeals’ decision was confined to the facts of this case

and the record readily rebuts Sheehan’s complaint that

the Court of Appeals ignored the evidence. Consequently,

the record in this case will not support the theoretical

baggage that Sheehan seeks to append to it.

Although Sheehan emphasizes the Shulman Memo,

the Court of Appeals deemed the references to employee

birth dates in the Shulman Memo not to be probative for

multiple reasons, any one of which would merit exclusion

of the document. (Pet. App. 3a-4a.) The Court of Appeals

initially noted that birth dates are salient characteristics.

Even if the inclusion of birth dates in the biographical

‘

data theoretically could suffice to evidence discrimina-

tion, however, the record demonstrates that Shulman pre-

ferred to retain Sheehan. (Pet. App. 4a.) Finally, the

Schulman Memo cannot be linked to Cook’s decision to

discharge Sheehan because Cook never saw it. (Pet. App.

15a.)

In addition, Sheehan’s statistical “breakdown” of the

Shulman Memo randomly excludes persons from its data

base and fails to account for numerous critical variables.

(Pet. App. 18a-20a.) It also is based largely on statistics

from departments other than Editorial, even though Cook

had no real say with respect to these departments, which

typically were consolidated or eliminated (for example,

technology eliminated the need for both the Statistical

and Composing departments). (Pet. App. 18a-20a.) More-

over, several employees had transferred before the deci-

sion was made to close the Chicago Edition and others

later declined offers of reassignments to new and differ-

ent jobs in other parts of the country. (Pet. App. 23a-24a.)

When placed in this context, the Court of Appeals cor-

rectly found that the statistical analysis derived from the

document was not probative of discrimination.

All of Sheehan’s evidence concerning his qualifica-

tions was immaterial because it only concerned his per-

formance of his former Assistant Turf Editor job, which

had been eliminated. It is undisputed that both Shulman

and McEvoy thought well of Sheehan but, since the Chi-

cago Edition never utilized Electronic Pagination, neither

of Sheehan’s supervisors in Chicago had any experience

with it. Although Sheehan also cites testimony by his

former Chicago supervisors as evidence that he met

expectations in his computer training, both men testified

that they had no first-hand knowledge regarding

Sheehan's training. (Pet. App. 22a-23a.) In their thirty

some years with the Daily Racing Form, neither McEvoy

nor Sheehan had ever utilized a computer to publish the

newspaper. (Pet. App. 2a, 23a.) Thus, although Sheehan’s

superiors found him to be a competent Assistant Turf

Editor, they lacked any basis from which to evaluate his

competence in an electronic environment and were com-

pletely unfamiliar with the duties of a Page Editor. (Pet.

App. 23a.) Critically, there was no indication in the record

that either Shulman or McEvoy told Cook that they

believed that Sheehan could perform as a Page Editor.

Instead, Shulman believed that it would take time for

Sheehan to develop as a Page Editor. (Pet. App. 15a n.5.)

Nor did Sheehan establish that his qualifications

were better than those of the employees Daily Racing

Form retained and transferred. Ultimately, Cook trans-

ferred a Copy Editor with ten years of experience in the

track and field division to Lexington as a Page Editor due

to his unique experience. (Pet. App. 16a.) Cook reas-

signed another Copy Editor as a Field Correspondent/

Handicapper to Phoenix because Cook considered him to

be one of the best writers and handicappers in the Chi-

cago office. In addition, Cook transferred one employee

from the Statistical Department to Phoenix as a Hand-

icapper. Sheehan offered no evidence that he had any

experience as either a writer or as a handicapper, or that

he could have performed the duties_of a Field Correspon-

dent. Although McEvoy believed that Sheehan was a

good layout man in the manual paste-up environment, he

also testified that Sheehan had done very little writing

and no handicapping of horses. (Pet. App. 7a, 23a.)

In sum, the Court of Appeals found that the factual

assertions that are repeated in Sheehan's Petition were

unsubstantiated in the record. What Sheehan really wants

is for this Court to sift through the record to determine

whether there was any factual foundation for a discrimi-

nation claim. It is not, however, the task of this Court to

perform a factual review of a record already perused by

the appellate court. See, e.g., United States v. Johnston, 268

U.S. 220, 227 (1925) (“We do not grant a certiorari to

review evidence and discuss specific facts.”). The Court

of Appeals already has examined the factual and legal

underpinnings of Sheehan’s claim of age discrimination

and found them nonexistent.

Il. THERE IS NO CONFLICT BETWEEN THE CIR-

CUITS

Rule 10.1(a) of this Court lists, as the first “compel-

ling” consideration for granting a writ, the rendering of

“ ...a decision in conflict with the decision of another

United States court of appeals on the same important

matter.” Sheehan does not contend that any federal

appellate court has rendered a decision conflicting with

the one at bar. The Court of Appeals itself gave no

indication whatsoever that its ruling conflicted with that

of any other circuit. See Layne & Bowler Corp. v. Western

Well Works, Inc., 261 U.S. 387, 392-93 (1923) (where cir-

cuits “were really in harmony, and not in conflict,” then

“there was no ground for our allowing the writ of cer-

tiorari to add to an already burdened docket”).

10

In particular, the Court of Appeals noted that

Sheehan’s allegations did not fit into the typical McDon-

nell Douglas paradigm because Sheehan’s job was

eliminated for reasons other than discrimination. Nev-

ertheless, the Court of Appeals adapted the test by analo-

gizing to hiring situations in order to afford Sheehan the

added benefit of an indirect method of proof. (Pet. App.

6a.) Other circuits have employed similar variants of the

“basic evidentiary framework set forth in McDonnell

Douglas” in adapting McDonnell Douglas to new factual

circumstances. See, e.g., O'Connor, 134 L. Ed. 2d at 438;

Rinehart v. City of Independence, 35 F.3d 1263, 1265 (8th Cir.

1994); Seman v. Coplay Cement Co., 26 F.3d 428, 432 n. 7

(3rd Cir. 1994); Roush v. KFC Nat'l Mgt. Co., 10 F.3d 392,

396 (6th Cir. 1993); Lindsey v. Prive Corp., 987 F.2d 324, 326

n. 5 (5th Cir. 1993); Goldstein v. Manhattan Indus., Inc., 758

F.2d 1435, 1442 (11th Cir. 1985); Haskell v. Kaman Corp.,

743 F.2d 113, 119, and n. 1 (2d Cir. 1984); Cuddy v. Carmen,

694 F.2d 853, 856-857 (D.C. Cir. 1982); Douglas v. Anderson,

656 F.2d 528, 531-532 (9th Cir. 1981); Loeb v. Textron, Inc.,

600 F.2d 1003, 1014-1016 (1st Cir. 1979); Schwager v. Sun

Oil Co. of Pa., 591 F.2d 58, 60-61 (10th Cir. 1979). That the

Court of Appeals determined to employ a variant of the

test in this case is consistent with the prevailing practice

of the appellate courts.

The exclusion of the statistician’s report also is con-

sistent with this Court’s standards as enunciated in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993) and the holdings other appellate courts rendered

on closely analogous facts. See, e.g., Hutson v. McDonnell

Douglas Corp., 63 F.3d 771, 777 (8th Cir. 1995) (affirming

summary judgment in an ADEA case where plaintiff's

11

Statistical evidence failed to analyze treatment of compa-

rable employees or control for most significant variables

relied on by employer); Henson v. Liggett Group, Inc., 61

F.3d 270, 276 (4th Cir. 1995) (ADEA statistics must

account for demographic information and job categories);

Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511 (4th Cir.

1994) (same); Palmer v. United States, 794 F.2d 534, 539 (9th

Cir. 1986) (affirming summary judgment for employer in

ADEA case where sample of 15 was too small to have

predictive value and must be disregarded).

Similarly, the Court of Appeals’ determination that

the listing of birth dates alone did not evidence discrimi-

nation is consistent with that of other courts of appeal.

See Armbruster v. Unisys Corp., 32 F.3d 768, 781 (3rd Cir.

1994); Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510,

514 (6th Cir. 1991). Consequently, there is no need for this

Court to intervene by granting the requested writ.

Ill. THE DECISION OF THE COURT OF APPEALS IS

CONSISTENT WITH THIS COURT’S ANALYSIS

OF ALLEGED DISCRIMINATION CLAIMS

The Court of Appeals’ analysis did not deviate from

the analysis employed by this Court for the resolution of

age discrimination cases. This Court found no need to

address the applicability of the test to ADEA cases last

term in O’Connor. In O’Connor, the Court applied the test

after noting that “we have never had occasion to decide

whether that application of the Title VII rule to the ADEA

context is correct, but since the parties do not contest that

point, we shall assume it.” 134 L. Ed. 2d at 438. In the

12

instant case, the Court of Appeals, as in O’Connor, pro-

ceeded to apply the McDonnell Douglas presumptions to

the facts. Sheehan does not indicate that any appellate

court has endorsed his suggestion that his Questions

Presented warrant the attention of this Court. See State of

Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 918

(1950) (“[i]t may be desirable to have different aspects of

an issue further illumined by the lower courts” before

granting certiorari).

Indeed, Sheehan’s request for guidance on the appli-

cability of McDonnell Douglas to this case presents only an

abstract question. In O'Connor, this Court noted that it

had not expressly ruled that the burden shifting method

of proof should be available to ADEA plaintiffs. Notwith-

standing this open question, both the District Court and

the Court of Appeals gave Sheehan the benefit of the

McDonnell Douglas presumptions after they determined

that Sheehan lacked any direct or circumstantial evidence

of age discrimination. Yet, even with the benefit of

McDonnell Douglas framework of presumptions, Sheehan

did not survive summary judgment. At best, O’Connor

leaves open the question of whether Sheehan should have

had the benefit of the McDonnell Douglas presumptions at

all, an issue that would have absolutely no effect on the

outcome of this case, given Sheehan’s utter failure of

proof under both the direct and indirect methods. To the

extent that Sheehan poses a theoretical question not pre-

sented by this record, there is no occasion to decide it. See

Baltimore Radio Show, Inc., 338 U.S. at 918 (“[i]t may be

desirable to have different aspects of an issue further

illumined by the lower courts” before granting cer-

tiorari.).

13

The Court of Appeals easily saw through Sheehan’s

allegation as nothing more than speculation, holding that

he had “presented no evidence that he was well suited

for this demanding and specialized job.” (Pet. App. 7a.)

Ironically, Sheehan’s Questions Presented seek to “avoid

the McDonnell Douglas formula and proceed to trial under

the direct method of proof” (emphasis added), apparently

misapprehending that the McDonnell Douglas framework

was developed to assist those plaintiffs, like Sheehan,

who lack direct evidence. Avoiding the McDonnell Doug-

las framework would do Sheehan no good at all.

Contrary to the Petition’s suggestion, the Court of

Appeals conducted a thorough review of the record and

concluded that Sheehan’s evidence contradicted

Sheehan’s own theory of recovery. Sheehan appears to

raise no question of law at all but to merely seek a

redetermination of the facts. But see United States v. John-

ston, 268 U.S. 220, 227 (1925) (“We do not grant a cer-

tiorari to review evidence and discuss specific facts.”).

¢

CONCLUSION

For all of the reasons stated above, issuance of a writ

of certiorari in this case would be improvident. See South-

ern Power Co. v. North Carolina Public Service Co., 263 U.S.

508 (1924); Furness, Withy & Co., Ltd. v. Yang-Tsze Ins.

14

Assoc., Ltd., 242 U.S. 430 (1917). The Petition for Writ of

Certiorari should be denied.

Damon E. Dunn, Esquire

Counsel of Record

Levin & FuNKHousER, LTD.

55 West Monroe Street

Xerox Centre — Suite 2410

Chicago, Illinois 60603

(312) 701-6800

Attorneys for Respondent

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