Opposition Brief — Westinghouse Electric Corp. v. Ryder

~ r Supreme Court, U.S.

| es Ee

JAN 20 1998

No. 97-1070

CrERK

In The

Supreme Court of the United States

October Term, 1997

¢

WESTINGHOUSE ELECTRIC CORPORATION,

Petitioner,

v.

JOHN M. RYDER,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

+

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

¢

SAMUEL J. CORDES

(Counsel of Record)

ANpDreEw G. Sykes

Mary R. RoMAn

Occ, Jones, Corpes &

Icneuzi1, L.L.P.

Riverview Place

245 Fort Pitt Boulevard

Fourth Floor

Pittsburgh, PA 15222

(412) 471-8500

Counsel for Respondent

C™CKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTER STATEMENT OF QUESTIONS PRESENTED

Question 1.

Whether a district court abuses its discretion under

F.R.E. 403 by admitting evidence of allegedly ageist state-

ments made by an employer’s CEO and executives with

hiring and firing authority to circumstantially show the

corporate culture where employment decisions are made

in an indirect evidence action under the Age Discrimina-

tion in Employment Act?

Question 2.

Where a party does not object to a trial judge’s jury

instructions, and where the jury instructions as a whole

state the correct legal standard, must the trial judge sua

sponte issue a curative instruction to correct a solitary

erroneous utterance during the charge?

LIST OF PARTIES

Respondent concurs with Petitioner’s List of the Par-

ties.

iii

TABLE OF CONTENTS

Page

COUNTER STATEMENT OF QUESTIONS

SEE Ia ele a ea

nO ee ee i

Tame ow comers. ee iii

eee Aor ......................... iv

EAE 1

SUPPLEMENTAL STATUTES INVOLVED........... 1

COUNTER STATEMENT OF THE CASE ........... 2

REASONS WHY THE PETITION SHOULD BE

I lt se a 13

I. No actual conflict exists on the admissibility

under Rule 403 of “Stray Remarks” Evidence in

SS SEES AE TE Te 13

Il. Petitioner did not even object to the jury instruc-

ee eS 25

ee a ca aks cee cue cceunes’ 30

iv

TABLE OF AUTHORITIES

Page

CASES

Abrams v. Lightolier, Inc., 50 F.3d 1204 (3d Cir.

TOO os sk cccds eet Ca ee oe a ee ee 22

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074

Coe Cle. SO i okcv neu ac eri sacs cewews kha s ines 20

Antol v. Perry, 82 F.3d 1291 (3d Cir. 1996)........ 15, 21

Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86

(hak COR SOON vac cakes ce baekanseccen ket hese es 15

Blossom v. CSX Transp., Inc., 13 F.3d 1477 (11th Cir.

LOUD. Sika AAG, FEGGAT 5s hes Sea 1 IG wes 28

Brewer v. Quaker State Oil Refining Corp., 72 F.3d

SOE CO Sas Rs Ua Fee ec es eek ei awe ca ee 21

Brown v. Boston University, 891 F.2d 337 (1st Cir.

TO ic i none 9 cer Kee Te eas sae 24

Campbell v. Barlett, 975 F.2d 1569 (10th Cir. 1992) .... 29

City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985) .... 26

City of Springfield, Mass. v. Kibbe, 480 U.S. 257

Se Oe Pr Oe PRP Er eye Pp or en Kor Pu 25

Conway v. Electro Switch Corp., 825 F.2d 593 (ist

Ck BOE 65 635.66 i chan ako caeee wabamEeenene es 15, 24

Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325 (6th

OR RE kn Kiss nc enntvonedalvas seeaees 15, 18

Dupre v. Fru-Con Engineering, Inc., 112 F.3d 329

Geen ah Pe < vad Ries eds 6a nveeekeu la mai saies 29

Elgabri v. Lekas, 964 F.2d 1255 (ist Cir. 1992)........ 29

Vv

TABLE OF AUTHORITIES - Continued

Page

Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th

SPURS Cai ass Cae tcee iad 44a ba deen 4 ede ede tis 22

Ezold v. Wold, Block, Schorr and Solis-Cohen, 983

ee cee ee a Se ow ko 050 005 4aREP Eo ed Cho 15

Furnco Construction Corp. v. Waters, 438 U.S. 567

SEE DUNE G0. bh Rabie Gcas eu edae awa iee Cutie Tidak wi'es 14

General Elec. Co. et al. v. Joiner, ___ U.S. ___, 1997

U.S. LEXIS 7503 (December 15, 1997) ............. 17

Glass v. Philadelphia Elec. Co., 34 F.3d 188 (3d Cir.

fe. | PRE oa, Mk ome ae ep eee eee ge Ope a ge ae on 22

Glover v. Bic Corp., 987 F.2d 1410 (9th Cir. 1993)..... 29

Graham v. Davis, 880 F.2d 1414 (D.C. Cir. 1989)...... 29

Hafner v. Brown, 983 F.2d 570 (4th Cir. 1992) ........ 29

Haley v. Gross, 86 F.3d 630 (7th Cir. 1996)........... 29

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) ...21, 23

Houston v. Herring, 562 F.2d 347 (5th Cir. 1977)...... 28

Huff v. UARCO, Inc., 122 F.3d 374 (7th Cir. 1997) .... 14

Jamesbury Corp. v. Litton Industrial Products, Inc.,

FO Be CP GE TOMI ook s fan's ct ccesess 28

Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350

SEE a he oe rr 29

Lockhart v. Westinghouse Credit Corp., 879 F.2d 43

eS Oe Cee eee Peers eer 22, 24

Marshall v. Nugent, 222 F.2d 604 (1st Cir. 1955)...... 26

—

vi

TABLE OF AUTHORITIES —- Continued

Page

McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct.

i ck PeMewey EO ry Ep err oe Tere S, 13, 14, 19, 27

McNeil v. Economics Laboratory, Inc., 800 F.2d 111

7a Cle. TODO a. ctv n ssn ce ees sedenga ere ees 20

Modine Mfg. Co. v. Allen Group, Inc., 917 F.2d 538

i | ey Pre yr ry, peer 29

Moreau v. Pennsylvania R.R. Co., 166 F.2d 543 (3d

Che: BOOB) a aire ea en a od 28

O’Connor v. Consolidated Coin Caterers Corp., 56

F.3d 542 (4th Cir. 1995), rev'd on other grounds,

SRF AE Gre an ooh eka vescapeeeesackese cae vs 16

Old Chief v. United States, 519 U.S. __, 117 S. Ct.

COR CINE ike s Raisin oe So es ASS Le 17, 20

Ostrowski v. Atlantic Mutual Insurance Co., 968 F.2d

Se Cee Ge EE so vc vad be were cee ehh eek pee 15

Patterson v. McLean Credit Union, 491 U.S. 164

CRON) os ckowt i ways ce Reb aeeebuats = ON ay us Aqua’ 13, 19

Preferred RX, Inc. v. American Prescription Plan, Inc.,

OO Te SS GG Tay. Bo ckne » Shans $5 x9 Soin ds 29

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)...... 14

Riordan v. Kempiners, 831 F.2d 690 (7th Cir. 1987) .... 20

Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir.

og FED Peg Yee Poke Sie Pie Ea Sk ae 27

Roebuck v. Drexel University, 852 F.2d 715 (3d Cir.

| PT oe cl ns Wargey als) ALR ear 15

Ryder v. Westinghouse Electric Corp., 128 F.3d 128

ck Cole, i ak ies CCA a a ee ds passim

vii

TABLE OF AUTHORITIES - Continued

Page

Seltzer v. Chesley, 512 F.2d 1030 (9th Cir. 1975) ...... 28

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

SPER Soin 5 Vi ewe oa ces seen eer eseccsccecsesecesecnes 10

Sessoms v. Union Sav. & Trust Co., 338 F.2d 752 (6th

et as KOC ck vu ewes Ae Adon bids saps 28

Sims v. Mulcahy, 902 F.2d 524 (7th Cir. 1990)........ 17

Smalley v. Duluth, Winnipeg & Pacific Ry. Co., 940

SOD WM REPO a's kG 5 ¥en op op bs dene o oe 28

Spartaburg County Sch. Dist. v. Nat'l Gypsum Co.,

Oe Rae he Wee et. E9GG). ow 5. oo sineie ss vines use 28

St. Mary’s Honor Center v. Hicks, 509 U.S. 502

SEMPER ENR eo eure dae hop Sek ha Cebeed ox 13, 14, 27

Thornley v. Penton Publishing, Inc., 104 F.3d 26 (2d

Ses hy POLE NRE DM aaa tio 20 58: be a erie Mere 28

Travelers Indemnity Co. v. Scor Reinsurance Co., 62

ee ii nnn eek bucks e ess cssveuee 29

United States Postal Service Bd. of Governors v.

AEE, SE AIG TRE IO OERs 5 oe vnc a ec cesscecses 13, 22

United States v. Long, 574 F.2d 701 (3d Cir. 1978),

cert. denied, 439 U.S. 985 (1978) ................ 17, 18

Waldron v. SL Industries, Inc., 56 F.3d 491 (3d Cir.

SOUS in FO he LRU Oh aos nas s'eG 0S a's owe 22, 23

Wammock v. Celotex Corp., 835 F.2d 818 (11th Cir.

SOs isd Chains Cabs Clute ae Tiss 40s 29

viii

TABLE OF AUTHORITIES - Continued

Page

West v. Philadelphia Elect. Corp., 45 F.3d 744 (3d Cir.

OR a are Rede Rrra eeN Kad eae ey Oe 24

Wilde v. Florida Pneumatic Mft. Corp., 941 F. Supp.

Ae Ce FOR Ae iB hes oksdnt gah done aeneees 16

STATUTES

MUSA, SS cs i Asal ta dys ce CEG ake ee 1

20 CR Fe es ee ES ee 1

Pad. Ge Cat wi 68 ie RAAT 27,30

Pb: er CAG, ised cc ay onc Greeks gaces 1, 12,. 25, .26,.29

BG. i, OG ME Aa 5 55k dea vane eka e ee eas 17

ae ee ee mee Pre ee 11, 16, 17, 18, 25

1

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

The Respondent, John M. Ryder, (hereafter “Ryder”)

respectfully requests this Court deny the petition for writ

of certiorari, seeking review of the judgment and opinion

of the United States Court of Appeals for the Third Cir-

cuit in this case. That opinion is reported at 128 F.3d 128

(3d Cir. 1997).

JURISDICTION

Respondent agrees that Westinghouse’s Petition for

Writ of Certiorari was sought within 90 days of the judg-

ment of the Court of Appeals and therefore is timely

pursuant to 28 U.S.C. § 1257 and § 2101(c), and this

Court’s Rule 10(1)(c).

SUPPLEMENTAL STATUTES INVOLVED

In addition to the statutes cited by Petitioner, the

following Rules are involved in the determination of the

Petition:

Fed.R.Civ.P. 51.

Instructions to Jury: Objection

At the close of the evidence or at such earlier

time during the trial as the court reasonably

directs, any party may file written requests that

the court instruct the jury on the law as set forth

in the requests. The court shall inform counsel

of its proposed action upon the requests prior to

their arguments to the jury. The court, at its

election, may instruct the jury before or after

argument, or both. No party may assign as error

the giving or the failure to give an instruction

unless that party objects thereto before the jury

retires to consider its verdict, stating distinctly

2

the matter objected to and the grounds of the

objection. Opportunity shall be given to make

the objection out of the hearing of the jury.

COUNTER STATEMENT OF THE CASE

A. Westinghouse Fires Ryder and Then Fabricates a

Reason.

On April 6, 1993, Louis Facchini, controller of West-

inghouse’s power systems group in Pittsburgh, Pennsyl-

vania, fired Ryder at age 52 after more than 30 years of

service (R. 161);! (R. 192).2 On the day he fired him,

Facchini told Ryder: “I am eliminating your job, but, of

course, I am not” (R. 192). That is exactly what occurred.

Shortly after Facchini “retired” Ryder and “elimi-

nated” his job, he offered Ryder’s position as Power

Systems Group Controller Staff Assistant to Patricia New-

ingham, a 37-year-old who came under Facchini’s super-

vision in February 1993, after her department was

discontinued (R. 186-87). Ryder had trained Newingham

to perform his job, and Newingham had been performing

Ryder’s job and continued to do so after Ryder was

discharged (R. 405). Facchini protected Newingham from

displacement when her department was discontinued by

keeping her on a corporate payroll, although she worked

solely for him (R. 363).

Indeed, in a document Westinghouse titled “Certifi-

”

cate of Non-Discrimination —- Age,” which Westinghouse

used to document its decision to fire Ryder, Facchini

identified Newingham as Ryder’s replacement (R.

! References to the record are noted as “(R. ___).”

? Facchini characterized his action as “retir[ing]” John

Ryder (R. 383).

3

404-406). Facchini and his supervisor, Robert Faust, Vice

President and Controller of Westinghouse, completed the

“Certificate” on April 15, 1993, less than two weeks after

Facchini told Ryder his position was being eliminated (R.

192); (R. 402); (R. 928-929).

Although Facchini believed Ryder was more quali-

fied technically to perform the job than Newingham (R.

416), he replaced Ryder with Newingham because he was

looking for someone more ambitious, flexible and hungry

(R. 416).

Facchini characterized Ryder as a “blocker,” (R.

484-485), someone who is preventing someone younger

from getting through to another executive level (R. 482).

On the “Certificate of Non-Age Discrimination,” Fac-

chini and Faust admitted their action was not based in

any degree upon Ryder’s performance (R. 930); (R. 410).

Indeed, on a March 1993 performance evaluation com-

pleted seven to ten days before Ryder was fired for what

Faust and Facchini at trial claimed was poor perfor-

mance, Facchini noted Ryder was “promotable” (R.

27-28); (R. 387-388).

However, when Ryder filed a charge of discrimina-

tion with the Equal Employment Opportunity Commis-

sion, and at trial, Westinghouse began to claim it did not

“replace” Ryder with Newingham, see (R. 15) and that he

was discharged because of “cost reduction and perfor-

mance” (KR. 928); see also (Petition at 2-3).

In its response to the Charge of Discrimination filed

with the EEOC, Westinghouse claimed that when Ryder’s

job was eliminated a new and different training position

arose (R. 350); (R. 15).

The only difference between the job description West-

inghouse provided as being the “new training position”

|

4

and Ryder’s position, however, was that Ryder’s job

description identified the job as being for the Power

Systems Division, while the “new training position”

Newingham obtained was listed as being in the Corpo- l

rate Financial Planning Division (R. 329-330).

Facchini admitted at the beginning of 1993 he had

two staff persons assisting him in his job: his secretary,

and his staff assistant, Ryder (R. 358-359). Following his

discharge of Ryder, Facchini still had two staff persons

assisting him in his job: his secretary and Patricia New-

ingham (R. 360). He always had a staff assistant (R. 361).

According to Facchini, the decision to create a new

training position occurred in April 1993 (R. 365). Facchini

said he then considered several employees for the new

position, talked with Newingham about the position and

told her it was a temporary training job (R. 474). Accord-

ing to Westinghouse’s letter to the EEOC, Newingham

started in the “new” position effective June 1, 1993 (R.

15).

Newingham, however, apparently was oblivious to

this series of events. She testified she began working for

Facchini in January or February 1993 (R. 497), shortly

after the group for which she worked was eliminated,

and the divisions reporting to it were transferred to Fac-

chini’s group (R. 498):

Q. You don’t ever recall sitting down and hav- }

ing a meeting with Mr. Facchini where he

told you, I’ve created a new job, a new

training position, and I am giving you that

job, do you?

A. No.

(R. 510). Compare (R. 474).

Facchini testified he considered only three persons to

fill this “new” training position: Newingham, then age 37

mee tonne

Weeeeenemacahaaiaiasencsiaiasaaaiiainiatiaiaiiasaiidilill

a a mance

5

(R. 398); Jim Kohosek, then age 34 (R. 401); and Mike

Friday, then age 35 (R. 401). All three of those people

were still with Westinghouse as of trial (R. 475).

While six days after Ryder was “retired,” Facchini

and Faust insisted performance played no role in his

demise, (R. 409); (R. 930), once trial began “performance

was the main thing,” according to Facchini (R. 825).

These difficulties, according to Westinghouse, ran the

gamut from poor interpersonal skills, to an alcohol prob-

lem. Most of these performance concerns were not docu-

mented, and not relayed to Ryder when he was “retired,”

a fact Westinghouse now claims stemmed from its desire

not to harm Ryder. See (R. 332-333). None of them were

raised when the EEOC requested the reason Ryder was

discharged. See (R. 14-17).

B. Westinghouse’s CEO Publishes A Summary Of Var-

ious Age-Related Comments From General Man-

agers Who Made Hiring And Firing Decisions.

Shortly before Ryder was “retired” on August 31,

1993, a new Chief Executive Officer and Chairman of the

Board, Michael Jordan, arrived at Westinghouse (R. 420);

(R. 637). At the time Ryder was told he was being termi-

nated, Gary Clark was President and Acting CEO (R.

633-35). Clark had been president of Westinghouse prior

to 1993 (R. 472).

During the summer of 1994, Clark and Jordan con-

ducted a series of meetings with Westinghouse manage-

ment at the general manager level (R. 426). Among the

persons who attended some of these meetings, called

Chairman’s Initiative Sessions, were Facchini, Ryder’s

6

direct supervisor (R. 423); and Faust, Facchini’s super-

visor (R. 452-453). The people who attended these Chair-

man Initiative sessions were general managers who made

hiring and firing decisions and who set policy regarding

hiring and firing practices in their own departments (R.

426-427). At trial Westinghouse claimed it destroyed files

listing the actual names of the persons who attended (R.

451).

Following the five sessions, Jordan sent to all

attendees a document he represented to be summaries of

discussions that took place (A-19).* The summaries were

a synopsis, not a verbatim transcript of the discussions

(R. 648). In his Memo, Jordan said the accompanying

summaries while long, were valuable (A-19), and that the

discussions outlined provided some good ideas. Id.

The summary Jordan sent to managers with his

endorsement of its contents suggested that the age of the

workforce was of some importance to Westinghouse:

We think we need to get younger individuals who

think well and who think differently involved in

the process as well...

(A-15) (emphasis added).

In the excerpts Jordan chose to publish of another

session devoted to employee selection, Jordan, Clark and

the other managers discuss the concerns with Westing-

house’s older workforce: p

In many of our businesses, we have an older

workforce. As a result, that workforce gets a

higher salary. Additionally our low growth busi-

nesses can strain opportunities for younger

workers. Somehow, we must provide those

3 References to the Appendix to Westinghouse’s Petition

For Writ of Certiorari are designated as (A-__ ).

ee |

7

opportunities. We have to get the “blockers” out

of the way.

(A-34).

Westinghouse has been pretty paternalistic in

the past, and we’ve ended up with too much

dead wood in the organization.

(A-37).

Yes, and that’s a big issue because as you

squeeze the infrastructure, you want your best

talent to stay in the organization.

(A-37).

We really haven’t hired much over the last 10-15

years. As a result, we have a hole in terms of

people development. We don’t have enough people

in the organization ages 30-40...

(A-38).

Blockers are always an issue but they’re less of

an issue when you are in a growth mode.

Removing blockers is very important when

you're in a downsizing mode because you don’t

have the kinds of opportunities that growth pro-

vides you.

(A-38).

People down in the organization know who they

are ... [W]e have to put ourselves in a position

of getting high pots into more responsible jobs

and move the blockers aside. That’s hard to do,

and no one likes to do it, but we’re paying the

price now for our inability to do it in the past.

(A-38-39).

...[A]n eager high-energy person will get more

done in one month than someone who has

retired in place will do in one year.

(A-39).

8

We seem to be missing the people in the middle |

of the age range who have talent, the willing-

ness and the horsepower to take on risky change

projects ...

(A-41).

Regarding the issue of blockages in the organi-

zation that’s something you need to work on in

the business units . . . We are going to push to

change the old rules and the old paradigms.

This was a good session with a lot of good ideas

and I hope you feel the same way.

(A-42). <

Facchini saw Ryder as a “blocker,” (R. 484-485), a

term he agreed was someone who is preventing someone

younger from getting through to another executive level

(R. 482).

Clark, Westinghouse’s president when Ryder was

“retired,” believes some of the statements made in the

Jordan Memo evidence discrimination (R. 672-674).

C. Westinghouse Never Objected to The Claimed Jury

Charge Error it Raises Here.

Prior to trial, Westinghouse submitted proposed jury

instructions requesting the jury be charged on the stan-

dard under McDonnell Douglas v. Green, 411 U.S. 792, 93

S.Ct. 1817 (1973), in relevant part as follows:

If you determine that the Plaintiff has made out

a prima facie case and if you determine that

Westinghouse has articulated or explained — not

proven — a legitimate reason for eliminating

Plaintiff’s job, then you may consider if the

Plaintiff has proven to you by a preponderance

of the evidence that the legitimate non-

discriminatory reasons stated to you by West-

inghouse were simply a pretext for discrimination

a

9

against Plaintiff on the basis of age. That is, you

may then consider whether Plaintiff has proven

by a preponderance of the evidence . . . that the

explanation offered by Westinghouse for the

treatment of Plaintiff was not the real reason

behind its treatment of him.

If you find that Plaintiff has established . . . that

Westinghouse merely used the elimination of

Plaintiff’s job as an excuse for discriminating

against the Plaintiff on the basis of his age, then

you must find in favor of Plaintiff.

(R. 84) (emphasis supplied).

The district court charged on this issue as follows:

You may infer that Mr. Ryder has met his bur-

den of proof if you find the four facts set forth

above have been proven by a preponderance of

evidence, and — and note that I say “and” — if

you further disbelieve defendant’s explanation

for why plaintiff’s employment was terminated.

. . . If you find that Westinghouse articulated

legitimate nondiscriminatory reasons for elim-

inating plaintiff’s job, then you must determine

whether plaintiff has proven .. . that the reason

or explanation given by the defendant was not

the real or true reason behind Westinghouse’s

action in terminating Ryder’s employment.

In this area of the law, an explanation offered by an

employer for its treatment of an employee that is not

its real reason for such treatment is referred to as a

pretext for illegal discrimination. If you find that

Mr. Ryder has proven by a preponderance of the

evidence that the defendant used the elimina-

tion of plaintiff’s job as an excuse or pretext for

discriminating against him on the basis of his age,

then your verdict will be for the plaintiff.

On the other hand, if you find that the explana-

tion offered by Westinghouse that it eliminated

a

10

Ryder’s job to establish a rotational training

position and because of his performance were

legitimate reasons for plaintiff’s termination,

and that plaintiff has not proven... that age was

a determining factor in the termination, then your

verdict will be for the defendant.

In making this determination, you should be ’

aware of the following: The burden of proving

discrimination always remains with the plaintiff,

to prove he was the victim of age discrimina-

tion .. . Your job is to determine whether West-

inghouse discriminated against Ryder on the

basis of his age.

(R. 1234-1236) (emphasis supplied).

The trial judge provided written copies of her pro-

posed charge to counsel for both parties prior to charging

the jury. Westinghouse objected to the district court’s

proposed charge only because it contended the charge

permitted the jury to find discrimination based solely on

a finding of a prima facie case. (R. 1219).4

Though it did not object to the district court’s use of

the phrase “in this area of the law, an explanation offered

by an employer for its treatment of an employee that is

not its real reason for such treatment is referred to as a

pretext for illegal discrimination” either prior to or fol-

lowing the district court’s charge, see (R. 1243-44), or in ?

its Rule 59 motion or brief, see (R. 105), Westinghouse, for

the first time before the Court of Appeals, took issue with

4 Westinghouse’s counsel cited Seman v. Coplay Cement Co.,

26 F.3d 428, 436-38 (3d Cir. 1994), to argue the district court’s

charge should not mention the prima facie case because once the

defendant met its burden of production, the presumption of the

prima facie case disappeared. See (R. 1220-1221).

11

that language and claims the district court’s phrase miss-

tated the law.°

Following a two week trial, the jury found Westing-

house had discriminated against Ryder because of his age

and awarded $241,909.00.

D. The Third Circuit Ruling.

1. The Memo

The U.S. Court of Appeals for the Third Circuit held

that the district court did not abuse its discretion in

admitting the Jordan Memo over Westinghouse’s objec-

tion under Fed.R.Evid. 403. Ryder v. Westinghouse Elec.

Corp., 128 F.3d 128, 132-33 (3d Cir. 1997). The court recog-

nized a plaintiff may offer circumstantial proof of inten-

tional discrimination on the basis of age in the form of a

supervisor’s statement relating to formal or informal

managerial attitudes held by corporate executives. The

court noted that the importance of such comments seem

to become ever more critical as sophisticated discrimina-

tors render their actions increasingly more subtle to cir-

cumvent adverse judicial predecent. Id.

The court eschewed a bright line rule of when such

ageist statements would be admissible, instead instruct-

ing the district courts to evaluate factors pertaining to the

declarant’s involvement in recognizing a formal or infor-

mal managerial attitude, including the declarant’s posi-

tion in the corporate hierarchy, the purpose and content

of the statement, and the temporal connection between

5 Remarkably Westinghouse attempts to hide its failure to

object to the district court’s charge by burying that admission in

a footnote in the statement of the case. See (Petition for Writ of

Certiorari at 8, n.6.), and never mentioning it again.

12

the statement and the challenged employment action. Id.

at 133.

Although the comments were not directly related to

the challenged employment action, they were made by

either the company CEO or by executives with authority

to render personnel decisions. Moreover, the comments

were made in reflection on past managerial viewpoints at

Westinghouse with an eye toward future change. If the

jury were to believe that these comments accurately

reflected a then-existing managerial attitude toward older

workers in April 1993, this evidence would have made

the existence of an improper motive for Ryder’s termina-

tion more probable. Id. at 133.

2. The Jury Instruction.

The Court of Appeals held that Westinghouse failed

to object to the challenged jury instruction as required by

Fed.R.Civ.P. 51. It therefore reviewed the jury instruction

for plain error. Id. at 136. The court noted that while the

isolated statement by the district court that in this area of

the law an explanation offered by an employer for its

treatment of an employee that is not its real reason for

such treatment is referred to as a pretext for illegal dis-

crimination, was in error, it was offset by the court’s

repeated correct explanation of Ryder’s burden of proof.

Id. at 137.

Reviewing the jury instructions as a whole, and on a

plain error standard, the court found the multiplicity of

correct statements of law negated the effect of the district

court’s solitary erroneous utterance, and therefore the

jury instructions were not plainly erroneous. Id.

13

The Third Circuit did not consider the district court’s

failure to give a curative instruction because Westing-

house never asked for one, not before the jury was

charged, not after the jury was charged, and not even in

its Motion for a New Trial. Id. at 135 & n.9.

REASONS WHY THE PETITION SHOULD BE DENIED

I.

NO ACTUAL CONFLICT EXISTS ON THE ADMIS-

SIBILITY UNDER RULE 403 OF “STRAY REMARKS”

EVIDENCE IN AN ADEA PRETEXT CASE.

As this Court has recognized, the question facing

triers of fact in discrimination cases — the state of a

corporate entity’s mind — is both sensitive and difficult.

United States Postal Service Bd. of Governors v. Aikens, 460

U.S. 711, 716 (1983). There seldom will be “eyewitness”

testimony as to the employer’s mental process. St. Mary’s

Honor Center v. Hicks, 509 U.S. 502, 524 (1993).

In meeting the difficult burden of persuading the

fact-finder to disbelieve an employer’s account of its own

motives, an employee is not limited to presenting evi-

dence of a certain type. Such evidence may take a variety

of forms. Patterson v. McLean Credit Union, 491 U.S. 164,

187 (1989). For example, evidence that the reasons put

forward by the employer are pretextual may, together

with the elements of the prima facie case, suffice to show

intentional discrimination. Hicks, 509 U.S. at 511. A plain-

tiff can prove the defendant’s state of mind through

circumstantial evidence such as evidence of past conduct

or prior incidents. Aikens, 460 U.S. at 714 n.3. Other

evidence that may be relevant to a showing of discrimina-

tion includes the employer’s general policy and practice

with respect to minority employment. McDonnell Douglas

14

Corp. v. Green, 411 U.S. 792, 804-05 (1973); Furnco Con-

struction Corp. v. Waters, 438 U.S. 567, 578 (1978).

To show the employer’s general policy and practice

this Court has recognized, albeit in dicta, that remarks by

non-decisionmakers, and by decisionmakers unrelated to

the decisional process itself, while not sufficient to trigger

a shift of the burden of proof to the employer under Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989), can certainly be

evidence that an illegal motive played a part in the

employer’s decision, id., 490 U.S. at 251 (plurality) or may

be probative, id., 490 U.S. at 277 (O’Connor, J. concurring).

The Courts of Appeals do not disagree. In an indirect

evidence or pretext case, discriminatory remarks,

although unrelated to the employment decision at issue,

are probative of pretext and may be used to support a

prima facie case for a plaintiff using the McDonnell Dou-

glas/Burdine/Hicks method of proof. While such remarks

do not themselves suffice to either shift the burden of

persuasion onto the employer as in a Price Waterhouse

case, or even to themselves carry the day for the

employee in a McDonnell Douglas “pretext” case, they do

provide some evidence that when coupled with other

evidence can support a verdict.

For example, the Seventh Circuit, like the Third Cir-

cuit in this case, recognizes that while so-called “stray

remarks” are not probative of an employer’s intent in a

direct proof case, such evidence is probative of discrimi-

natory bias when assessing whether an employer’s rea-

sons for an adverse employment action are pretexts for

illegal discrimination. Huff v. UARCO Inc., 122 F.3d 374,

385 (7th Cir. 1997).

Likewise, the First Circuit holds that evidence of a

corporate state of mind or a discriminatory atmosphere is

15

not rendered irrelevant by its failure to coincide precisely

with the particular actors or timeframe involved in the

specific events that generated a claim of discriminatory

treatment. Conway v. Electro Switch Corp., 825 F.2d 593, 597

(1st Cir. 1987); Cf. Ayala-Gerena v. Bristol Myers-Squibb Co.,

95 F.3d 86, 96 (1st Cir. 1996) (stray remarks probative of

discrimination although not direct evidence). The Sixth

Circuit held in Cooley v. Carmike Cinemas, Inc., 25 F.3d

1325, 1331 (6th Cir. 1994), that statements made by the

employer’s president more than two decades earlier were

probative because the president was the “ultimate

decisionmaker” at the employer and evidence that he had

a bias goes to the employer’s state of mind - a highly

probative fact in a discrimination case.

The Second Circuit holds that while discriminatory

statements made by nondecisionmakers alone do not

prove a discriminatory discharge they may suffice to

present a prima facie case and may indeed persuade the

fact finder that the plaintiff had carried her ultimate

burden of persuasion. Ostrowski v. Atlantic Mutual Ins.

Co., 968 F.2d 171, 182 (2d Cir. 1992). Likewise, the Third

Circuit similarly holds that although temporally remote

discriminatory statements standing alone do not suffice,

they support a finding of discrimination when combined

with other evidence. Ezold v. Wold, Block, Schorr and Solis-

Cohen, 983 F.2d 509, 545 (3d Cir. 1993), citing Roebuck v.

Drexel University, 852 F.2d 715, 733 (3d Cir. 1988); Antol v.

Perry, 82 F.3d 1291, 1302 (3d Cir. 1996).

The decisions Petitioner cites to support its claim that

a conflict exists are readily distinguishable. They involve

an analysis of whether the stray remarks at issue are

sufficient in themselves to either show a prima facie case, or

to preclude summary judgment. They do not involve

16

analysis of the probative value of such evidence under

Fed.R.Evid. 403 in an ADEA pretext case.

Thus, in O'Connor v. Consolidated Coin Caterers Corp.,

56 F.3d 542, 549 (4th Cir. 1995), rev'd on other grounds, 517

U.S. 878 (1996), the Fourth Circuit held that the remarks

at issue were not direct evidence. Because the court had

held that the plaintiff in that case did not meet a prima

facie case, the only way he could proceed was through

“direct evidence.” Id., 56 F.3d at 548. Likewise, Wilde v.

Florida Pneumatic Mft. Corp., 941 F. Supp. 1203 (S.D. Fla.

1996), the district court decision Petitioner claims to rep-

resent a trial court in search of a proper analytic standard

(Petition at 12) involved a claim that stray remarks sup-

port a prima facie case and therefore preclude summary

judgment when no other evidence of discrimination

exists. Id. at 1206. Wilde searched for decisions in which

stray remarks were held to support a prima facie case of

age discrimination.

In short, no conflict exists among the circuits on the

issue in this case, and even if one does exist, that is how it

should be. The question of the probative value of stray

comments does not lend itself to a black letter rule. The

value is determined on a case-by-case basis by reviewing

the factors the Third Circuit reviewed in this case.

Because the probative value of stray remarks in a

discrimination case is inherently fact and situational

bound, no real or intolerable conflict exists among the

circuits in this case and Westinghouse’s Petition for Writ

of Certiorari should be denied.

17

A. Rule 401 and 403 rulings by trial courts in employ-

ment discrimination cases are inherently fact

bound and ill suited for broad pronouncements by

this Court concerning the probative value of speci-

fic evidence.

This Court repeatedly and recently has held that

abuse of discretion is the proper standard of review of a

district court’s evidentiary rulings. General Elec. Co. et al.

v. Joiner, ____ U.S. ___, 1997 U.S. LEXIS 7503 (December 15,

1997); Old Chief v. United States, 519 U.S. ___, ___ n.1, 117

S.Ct. 644, 647 n.1 (1997).

A court of appeals applying “abuse of discretion”

review may not categorically distinguish between rulings

allowing such testimony and rulings disallowing it, as

Petitioner here attempts to do. See Joiner, 1997 U.S. LEXIS

7503 at *12.

If judicial self-restraint ever is desirable, it is when a

Rule 403 analysis of a trial court is reviewed by an

appellate tribunal. United States v. Long, 574 F.2d 761, 767

(3d Cir. 1978), cert. denied, 439 U.S. 985 (1978). As the

Seventh Circuit has aptly held:

The balancing of probative value and prejudicial

effect, like other comparisons of intangibles,

requires an exercise of judgment rather than a

computation. Only in an extreme case are appel-

late judges competent to second-guess the judg-

ment of the person on the spot, the trial judge.

Sims v. Mulcahy, 902 F.2d 524, 531 (7th Cir. 1990).

Properly analyzing that standard is exactly why this

case is not “cert-worthy.” The district judge here was

trying an age discrimination case. She was confronted

with a record in which the decisionmaker testified he

moved Ryder aside to put in a younger up-coming star,

and the Jordan Memo evidence was offered to show the

18

high level management atmosphere in which the com-

pany made its employment decisions. The judge admitted

the testimony in the middle of the trial after hearing

evidence from several witnesses. As the Sixth Circuit has j

held in a similar factual situation, evidentiary rulings

such as this do not have one black letter law, right-or-

wrong answer. Rather, they demand swift, but judicious

weighing and balancing. Cooley v. Carmike Cinemas, Inc.,

25 F.3d 1325, 1332 (6th Cir. 1994).

Indeed, because such questions are subject to a

judge’s discretion the courts would affirm such evidenti- )

ary decisions “either way,” whether the response to the |

lawyer’s objection had been sustained or overruled. In

short, either ruling could be right, because it is so fact

based and involves a view of trial that cannot be obtained

from a cold appellate record. Thus, this case is a bad

vehicle for this Court to exercise its supervisory role. A

reversal based upon appellate disagreement with the trial

judge’s balancing under Rule 403 necessarily must be

founded upon highly subjective reasons, which, experi-

ence teaches, are not always readily recognizable or

definable. Long, 574 F.2d at 767.

Rule 403 itself does not establish a mere imbalance :

standard between the probative value and the danger of

unfair prejudice, but rather provides that evidence “may”

be barred, only if its probative value is substantially

outweighed by unfair prejudice. Where in that equation is

a broad rule that “all stray remarks lack probative value

regardless of the factual circumstances?” Leaving the

Rule 403 balance to the trial judge, as this Court repeat-

edly has done, is the best way to resolve the problem of

numerous appeals to the circuit courts that Petitioner

now purports to champion.

On ae eNO Soh ae os eS me

Se a a eee

19

B. Eliminating discrimination, a matter to which Con-

gress has attached some public importance, would

not be furthered by blanket legal and logical evi-

dentiary pronouncements.

In this case, Westinghouse’s CEO, its President, and

its top management team sat in meetings and bemoaned

the fact that the company did not have enough younger

people; suggested that older workers were blockers who

were standing in the way of those younger people; and

then noted they had to get the blockers out of the way.

The CEO sat by and participated in those conversations,

and then circulated a summary of the comments with his

endorsement.

Rather than a “vacuous invocation” of the phrase

“relevant to corporate attitudes or culture,” as Petitioner

contends, the evidence in the Jordan Memo goes to the

heart of what this Court has recognized is relevant evi-

dence of discrimination —- evidence of an employer's pol-

icy and practice regarding the protected group at issue.

McDonnell Douglas, 411 U.S. at 804-05. Such evidence is

important in a situation where, as here, plaintiffs are

faced with the unenviable task of proving the mind-set of

an employer who is unlikely to cooperate. Courts long

have recognized that proving intentional discrimination

is a difficult task and that plaintiffs must be given wide

latitude in marshalling evidence that, by logical infer-

ence, supports a finding of discrimination. Patterson, 491

U.S. at 187-88.

As Judge Posner has noted: “Defendants of even

minimal sophistication will neither admit discriminatory

animus, nor leave a paper trail demonstrating it . . . [a]

20

plaintiff’s ability to prove discrimination indirectly, cir-

cumstantially, must not be crippled by evidentiary rul-

ings that keep out probative evidence because of crabbed

notions of relevance or excessive mistrust of juries.” Rior-

dan v. Kempiners, 831 F.2d 690, 697-98 (7th Cir. 1987). See

also Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082

(3d Cir. 1996) (anti-discrimination laws and lawsuits have

educated would-be violators . . . violators have learned

not to leave the proverbial “smoking gun” behind);

McNeil v. Economics Laboratory, Inc., 800 F.2d 111, 116-17

(7th Cir. 1986) (stressing that nexus between evidence of

discriminatory bias and the decision must typically be

inferred, since it is “unusual to find direct evidence of

intent”).

The lack of direct evidence of discrimination in all

but the most rare case is important to determining the

probative value of corporate attitudes. As this Court just

recently held, the probative worth of any particular bit of

evidence is obviously affected by the scarcity or abun-

dance of other evidence on the same point. Old Chief v.

United States, 117 S.Ct. at 652.

Thus, a price would be paid for the blanket evidenti-

ary pronouncements Petitioner champions, but it would

not be paid by companies whose CEO, President and top

managers engage in discussions about how to eliminate

older workers blocking the way for younger ones. The

price for narrowing circumstantial evidence of discrimi-

nation in this era when anti-discrimination lawsuits have

educated would-be violators to be careful, will be paid by

the victims of those sophisticated discriminators.

|

;

3

‘

21

C. The district court and the Third Circuit correctly

admitted the Jordan Memo in this case based on the

record.

Here, both the district court and the Third Circuit

properly analyzed the probative value of the Jordan

Memo. Coupled with Petitioner’s generalized and spec-

ulative view of the unfair prejudice that admission of the

Memo would visit on it, the Court of Appeals found no

abuse of discretion in the district court’s admission of the

memo.

The Jordan Memo was introduced to show the corpo-

rate culture in which employment decisions were made -

evidence the courts have repeatedly recognized to be

admissible as circumstantial evidence of discrimination.

See Antol, 82 F.3d at 1302; Brewer v. Quaker State Oil

Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995).

Evidence is relevant if it has “any tendency to make

the existence or non-existence of any fact that is of conse-

quence to the determination of the action more probable

than it woutd be without the evidence.” Fed.R.Evid. 401.

In an age discrimination case, a plaintiff must prove as

one element of his case that the defendant intentionally

discriminated against him because of his age. To prove

the discrimination was intentional, Ryder must show

Westinghouse’s state of mind. Burdine, 450 U.S. at 255;

Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).

Circumstantial proof of discrimination typically

includes unflattering testimony about the employer’s his-

tory and work practices — evidence that in other kinds of

cases may well unfairly prejudice the jury against the

defendant. In discrimination cases, however, such back-

ground evidence may be critical for the jury’s assessment

of whether a given employer was more likely than not to

22

have acted from an unlawful motive. Glass v. Philadelphia

Elec. Co., 34 F.3d 188, 195 (3d Cir. 1994), citing Estes v. Dick

Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir. 1988).

A plaintiff can prove the defendant's state of mind

through circumstantial evidence such as evidence of past

conduct or prior incidents, Aikens, 460 U.S. at 714 n.3, 715;

or evidence of subsequent statements or conduct. Abrams

v. Lightolier Inc., 50 F.3d 1204, 1214 (3d Cir. 1995); Lockhart

v. Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir. 1989)

(finding age-based comments relevant even when made

subsequent to plaintiff’s termination).

As the Third Circuit held, not just any ageist state-

ments made by any corporate executive are relevant as

evidence of corporate culture, which would circumstan-

tially prove a discriminatory animus. Rather, the court

must evaluate factors pertaining to the declarant’s

involvement in recognizing a formal or informal manage-

ment attitude, including the declarant’s position in the

corporate hierarchy, the purpose and content of the state-

ment, and the temporal connection between the statement

and the challenged employment action. Ryder, 128 F.3d at

133.°

6 If this Court finds it desirable to speak on the issue of so-

called “stray remarks” evidence in a pretext case, there are

much better examples than this case. The statements in the

Jordan Memo were not inadverant comments that may have had

some age taint to them, such as, for example, the statement in

Waldron v. SL Industries, Inc., 56 F.3d 491, 502 (3d Cir. 1995),

where a comment was made five months before termination that

the employee should lose weight because it would make him

look younger.

tn ts sot

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23

The court found the Jordan Memo was probative

because the comments were made by either the CEO or

executives with authority to render personnel decisions

and were made in reflection on past managerial view-

points at Westinghouse with an eye toward future

change. Id. If the jury were to believe these comments

accurately reflected a then-existing managerial attitude

toward older workers in April 1993 this evidence would

make the existence of an improper motive for Ryder’s

discharge more probable. Id.

Rather than punishing Westinghouse because its

managers are “bad,” or “politically incorrect” as Peti-

tioner suggests, the discussions in the Jordan Memo go to

the heart of Ryder’s contentions in this case.

Ryder contended, and the record supports, that he

was fired to make way for a younger employee whx

Westinghouse contended was more “flexible”; in short,

that he was a “blocker.” That view of younger employees

vis-a-vis older ones is precisely the view permeating the

Jordan Memo. From managers’ statements that the com-

pany needed to move aside members of the older work-

force to provide opportunities for younger employees, see

(A-34), to Jordan’s observation that the company “seems

to be missing the people in the middle of the age range

who have talent, the willingness and the horsepower to

take on risky change projects,” see (A-41), the Jordan

Memo shows management’s view that the older worker

will be sacrificed in favor of the younger one, based on

stigmatizing stereotypes. See Hazen Paper, 507 U.S. at

610-11. Because the Jordan Memo discusses overt age-

related preference and uses code-word pejoratives for age

as well, a fact finder could certainly believe lower man-

agers would share similar viewpoints. “When a major

24

company executive speaks, ‘everybody listens’ in the cor-

porate hierarchy.” Lockhart, 879 F.2d at 54.

Evidence of that culture is relevant in assessing West-

inghouse’s intent. The fact that manifestations of that

culture showed up in memo form after Ryder was fired

does not diminish its relevance. People and companies

tend to act consistently. A jury could reasonably find that

a high level manager who agreed in 1994 that the com-

pany had too many older workers and needed more 30-40

year olds, held that same opinion in 1993. It is reasonzole

to assume this animus did not develop suddenly, and that

it in fact existed at Westinghouse ten mo:.*hs earlier. See

Brown v. Boston University, 891 F.2d 337, 350 (1st Cir. 1989)

(fact that remarks occurred subsequent, rather than prior

to discharge does not alter their admissibility. Jury enti-

tled to infer any discriminatory animus toward women

manifested in 1982 and 1983 would have existed in 1980

and 1981).

While Congress certainly did not enact laws making

political incorrectness or discriminatory comments by

managers illegal, circumstantial evidence of a discrimina-

tory atmosphere at a plaintiff’s place of employment is

relevant to the question of motive in considering a dis-

crimination claim. Such evidence may not be conclusive

proof of discrimination against an individual, and, Peti-

tioner’s aspersions aside, neither Ryder, the district court,

nor the Court of Appeals claim that to be the case. How-

ever such evidence tends to add color to the employer’s

decisionmaking process and to the influences behind the

actions taken with respect to the individual plaintiff.

Conway, 825 F.2d at 597; West v. Philadelphia Elect. Corp., 45

F.3d 744, 757 (3d Cir. 1995).

a

25

For all of the above reasons, this case is simply an

example of a district court engaging in a Rule 403 balanc-

ing, and then the court of appeals using the proper stan-

dard to hold that the trial judge did not act arbitrarily

and irrationally in her finding that any unfair prejudice

did not outweigh the relevancy of the comments. This is

especially true because the case centered on a claim

involving the state of mind of a fictional entity. Therefore,

this case does not present a “cert-worthy” legal issue and

Westinghouse’s Petition for Certiorari should be denied.

II.

PETITIONER DID NOT EVEN OBJECT TO THE JURY

INSTRUCTION IT CLAIMS WAS ERROR.

Petitioner’s second proposed reason for granting a

writ of certiorari is easily resolved. Westinghouse claims

a solitary isolated erroneous remark in the jury instruc-

tion required a remand, and that the Courts of Appeals

conflict on this issue.

However, even if it is correct (and «. .et forth below,

no conflict actually exists), Petition 8S waived this

issue because it failed to object to the language in the jury

charge it now attacks. Remarkably, Petitioner attempts to

hide this basic problem by alluding to it only in an

obscure footnote in its statement of the case, and then

ignores the waiver in its argument.

In City of Springfield, Mass. v. Kibbe, 480 U.S. 257,

258-259 (1987), this Court held that a failure to object

before the district court to a jury instruction precludes

review except in rare circumstances. That rule has special

force because Fed.R.Civ.P. 51 provides that [n]o party

may assign as error the giving . . . [of] an instruction

26

unless [it] objects thereto before the jury retires to con-

sider its verdict.” Id. at 259. Rule 51 could not be

expressed more clearly, and it serves an important func-

tion in ensuring orderly judicial administration and fair-

ness to the parties. The trial judge is informed in precise

terms of any objections to proposed instructions and thus

is given “an opportunity upon second thought, and

before it is too late, to correct any inadvertent or erro-

neous failure to charge.” Marshall v. Nugent, 222 F.2d 604,

615 (1st Cir. 1955). Moreover, the rule prevents litigants

from making the tactical decision not to object to instruc-

tions at trial in order to preserve a ground for appeal.’

Here, Petitioner failed to object to the portion of the

charge during the charge conference; failed to object

when the district judge provided the parties with written

copies of her proposed charge; failed to object during

argument concerning other language in the written

charge, and failed to object immediately after the jury

was charged, although the district judge provided the

parties with another opportunity to do so. Moreover,

Petitioner did not object to the language it now finds so

7 In City of Oklahoma City v. Tuttle, 471 U.S. 808, 815 (1985),

this Court did review a jury instruction that was not preserved

by an objection before the district court. However, in that case,

the Respondent first referred to the requirements of Rule 51 in

one sentence in her brief on the merits in this Court, at which

time she did not even suggest the question had not been

preserved. This Court reviewed the question because it was not

brought to the Court’s attention in the respondent’s brief in

opposition to the petition for certiorari, and indeed not even

raised in the court of appeals. Therefore the Court deemed the

waiver issue to have been waived by respondent. Id. at 816.

Here, of course, Ryder raised the issue in the Third Circuit,

Ryder, 128 F.3d at 135, and again raises it here.

27

prejudicial in its post trial motion for a new trial under

Fed.R.Civ.P. 50, although it claimed other portions of the

charge were erroneous.

The first time Petitioner raised the language it now

claims to have misled the jury was with the Court of

Appeals. The Third Circuit reviewed the record and

found Westinghouse had never objected. Ryder, 128 F.3d

at 135 & n.9. Petitioner does not here claim the Court of

Appeals erred in that finding. The court reviewed the

jury instruction as a whole for plain error, and affirmed

the verdict finding the multiplicity of correct statements

of law negates the effect of a solitary erroneous utterance.

Id. at 137. The Third Circuit’s analysis of why the jury

instruction read as a whole was not plain error was

correct.®

Therefore, even if the jury charge read as a whole

was error, which it was not, this Court’s commitment of

judicial resources to review an ADEA jury instruction

would be better left to a case where the objections to

those instructions have not been waived. The court

repeatedly instructed the jury on the correct burden as set

forth in McDonnell Douglas, Burdine, and Hicks. If the

Court desires to refine that burden it should wait for a

8 Indeed, Petitioner received a more thorough review than

a party who fails to object to a jury charge usually receives. See,

e.g., Robinson v. City of Pittsburgh, 120 F.3d 1286, 1306 (3d Cir.

1997) where the court declined to review an asserted error in a

jury charge in a hostile environment sexual harassment claim

that precluded the jury from considering evidence of quid pro

quo sexual harassment or of retaliation because plaintiff failed

to specifically object to the charge, and never gave the district

court any reason to believe she was making the argument raised

on appeal. In short Westinghouse received more from the court

of appeals than it even should have.

28

case where the Petitioner at least gave the district court a

chance to address the alleged error.

A. No Conflict Exists Among the Circuits Over Review

Of A Waived Jury Charge Issue.

Each of the cases Petitioner cites, therefore, are factu-

ally distinct because the party claiming error at least did

so before the district court, or the issue of waiver was not

involved.

In Moreau v. Pennsylvania R.R. Co., 166 F.2d 543, 544

(3d Cir. 1948) (Petition at 17 n.7), counsel objected to the

part of the charge raised on appeal. In Sessoms v. Union

Sav. & Trust Co., 338 F.2d 752, 759 (6th Cir. 1964) (Petition

at 17 n.7), no waiver was involved. In Thornley v. Penton

Publishing, Inc., 104 F.3d 26, 30 (2d Cir. 1997) (Petition at

18), the appellant argued its position on the jury instruc-

tion to the district judge, who rejected it. In Blossom v.

CSX Transp., Inc., 13 F.3d 1477 (11th Cir. 1994) (Petition at

18), no indication exists in the court’s opinion that the

plaintiff failed to object. In Jamesbury Corp. v. Litton Indus.

Products, Inc., 756 F.2d 1556, 1557 (Fed. Cir. 1985) (Petition

at 18), Jamesbury had timely objected to the jury charge

on the issue involved. In Smalley v. Duluth, Winnipeg &

Pacific Ry. Co., 940 F.2d 296 (8th Cir. 1991) and Spartaburg

County Sch. Dist. v. Nat'l Gypsum Co., 805 F.2d 1148 (4th

Cir. 1986) (Petition at 18), the courts did not apply a clear

error review. In Houston v. Herring, 562 F.2d 347, 348 n.1

(5th Cir. 1977) (Petition at 18), appropriate objection was

made to the pertinent parts of the instructions. In Seltzer

v. Chesley, 512 F.2d 1030, 1032, & n.1 (9th Cir. 1975)

(Petition at 19), counsel objected to the instruction, and to

the proposed curative instruction. Indeed, the court of

appeals emphasized what Petitioner seems to forget here:

29

the purpose of Rule 51 is to give trial judges an oppor-

tunity to correct their instructions. Id. at 1035.9

Not one time during the proceedings before the dis-

trict court in this case did Petitioner ever mention that it

thought the language used was incorrect. It had ample

opportunity to do so. The district judge gave both parties

wide latitude to raise any problems with the printed

charge both before and after it was given. The trial judge

®° No conflict exists on the effect of a party’s failure to object

to a jury charge. See Graham v. Davis, 880 F.2d 1414, 1419-20 (D.C.

Cir. 1989) (failure te specifically object to jury charge does not

preserve error for appellate review); Elgabri v. Lekas, 964 F.2d

1255, 1258 (1st Cir. 1992) (failure to object reviewed only for

plain error, a doctrine applied sparingly and only in exceptional

cases or under peculiar circumstances to prevent clear

miscarriage of justice); Travelers Indemnity Co. v. Scor Reinsurance

Co., 62 F.3d 74, 79 (2d Cir. 1995) (jury instructions reviewed for

fundamental error where failure to object); Hafner v. Brown, 983

F.2d 570, 578 (4th Cir. 1992) (failure to object precludes

consideration of asserted error on the merits); Kelly v. Boeing

Petroleum Services, Inc., 61 F.3d 350, 361 & n.30 (5th Cir. 1995)

(plain error review because failure to object); Preferred RX, Inc. v.

American Prescription Plan, Inc., 46 F.3d 535, 548 (6th Cir. 1995);

Haley v. Gross, 86 F.3d 630, 644 (7th Cir. 1996) (failure to

challenge jury instruction in a civil case constitutes waiver of

that challenge and precludes appellate review); Dupre v. Fru-

Con Engineering, Inc., 112 F.3d 329, 333 (8th Cir. 1997) (failure to

object waives right on appeal to object to a jury instruction on

those grounds); Glover v. Bic Corp., 987 F.2d 1410, 1418 (9th Cir.

1993) (absent proper objection to jury instruction, even plain

error appellate review is not available); Campbell v. Barlett, 975

F.2d 1569, 1576 & n.11 (10th Cir. 1992) (absent objection only

appellate review for fundamental error proper); Wammock v.

Celotex Corp., 835 F.2d 818, 822 (11th Cir. 1988) (absent objection,

no appellate review of jury instruction); Modine Mfg. Co. v. Allen

Group, Inc., 917 F.2d 538, 542 (Fed. Cir. 1990) (failure to object to

jury instruction precludes challenge on appeal).

30

made changes suggested by Petitioner on other issues. If

the district court never informed the jury it defined “pre-

text” incorrectly, as Petitioner claims, Petitioner has only

itself to blame, because it did not even bring that claim to

the district court’s attention at trial or in its brief in

support of its Motion for a New Trial under Rule 50.

Thus, even if a “markedly different” analysis exists

on the issue of dealing with a jury instruction containing

a solitary erroneous utterance coupled with a multiplicity

of correct statements, this is not the case to resolve that

conflict because Petitioner’s waiver makes this case dif-

ferent.

CONCLUSION

For the foregoing reasons, Respondent respectfully

requests that the Petition for a Writ of Certiorari should

be denied.

Respectfully submitted,

SAMUEL J. CORDES

(Counsel of Record)

ANDREW G. SyYKES

Mary R. ROMAN

Occ, Jones, Corpes & IGNetzi, L.L.P.

Riverview Place

245 Fort Pitt Boulevard, Fourth Floor

Pittsburgh, PA 15222

(412) 471-8500

Counsel for Respondent

Date: January 19, 1998

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