Opposition Brief — Merrill v. Burke E. Porter Machinery Co. (No. 05-1565)

(3 FILED

JUL 12 2006

No. 05-1565

— SS SREESTRESL En

SUPREME COURT, US.

IN THE

Supreme Court of the United States

DANIEL LEE MERRILL, SR..,

Petitioner,

v.

BURKE E. PORTER MACHINERY COMPANY,

Respondent.

On PETITION FoR A Writ OF CERTIORARI TO THE

UNtTED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

—oeEaEEeEEEeE=E=E=E=eE=SooeaeeaSeeeSaaeaaaEaEaoaEoooeeeeeeeeeee |

BRIEF IN OPPOSITION

WILLIAM H. FALLON

Counsel of Record

JENNIFER L. JORDAN

MILLER JOHNSON

P.O. Box 306

Grand Rapids, MI 49501-0306

(616) 831-1700

Counsel for Petitioner

202181 ¢

COUMSEL PRESS

(800) 274-3321 * (800) 359-6859

i

COUNTERSTATEMENT OF

QUESTIONS PRESENTED

1. Has the Petitioner shown any compelling reason for

this Court to review the McDonnell Douglas burden-shifting

framework as applied in the context of a reduction in force,

where Petitioner was not discharged because of or during a

workforce reduction, where Petitioner did not present this

issue for decision in the District Court or the Court of

Appeals, and where there is no split among the Circuit Courts

on the issue?

2. Has the Petitioner shown any compelling reason for

this Court to review whether a disability must be the “sole”

cause or only a “motivating” cause to prove a claim under

the Americans With Disabilities Act, 42 U.S.C. § 12101

et seq., where both the District Court and the Court of Appeals

applied uniformly-accepted proof standards in analyzing the

evidence, and where the semantic distinction between a

“sole” cause and a “motivating” cause had no effect on either

court’s decision?

3. Has the Petitioner shown any compelling reason for

this Court to review whether the ability to “interact with”

coworkers constitutes a “major life activity” under the ADA,

where Petitioner did not present this issue for decision in

the Sixth Circuit, where there is minimal authority among

the Circuit Courts on the issue, and where Petitioner cannot

establish that he was substantially limited in this ability in

any event?

ii

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

Respondent, Burke E. Porter Machinery Co., has no

parent corporation and there is no publicly-held company

that owns 10% or more of its stock.

iii

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTIONS

PTE os id ian ce esa ekdciewecnacsacd i

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

BARE Ce GAMUAEEED. We Made ccoedbpeseccves ili

TABLE OF CITEDAUTHORITIES ............ Vii

COUNTER-STATEMENT OF THE CASE ....... 1

I. SUMMARY OF PROCEEDINGS ........ l

i, STATEMENT OF FACTS .....ccsccccees 2

PE EE EDS oy oe Seen 2

B. Merrill’s Performance Problems ...... 2

C. Mesmll’s Termimation. 6.0055 6.000085 6

D. Mernill’s Alleged Disability.......... 8

E. Misstatements in Petitioner’s Statement

SRN Vow neal wawied + ll

iv

Contents

PRUNE. Cees Fekete Bee Deena

[.

THERE IS NO REASON FOR THIS COURT

TG CONSIDER AND DECIDE WHETHER

THE MCDONNELL DOUGLAS FORMULA

SHOULD BE MODIFIED IN THE

CONTEXT OF A REDUCTION IN FORCE.

eoeeesCeoeoewesvoeseeaeeaeoanoecua Coeoeaeegmecoe eeoeeaesesene ®e

A. This Issue Is Not Properly Before This

Court Because Petitioner Did Not

Present It To The District Court Or The

COMICON ARGO isc bcccetek ae es

The Sixth Circuit’s Decision Is Not

Contrary To The Supreme Court’s

Decision In O’Connor v. Consolidated

Cnn CONE COIR, oi sic saute is

There Is No Meaningful Circuit Split On

Whether The McDonnell Douglas

Standard May Be Modified To Account

For The Unique Characteristics Of A

Reductiod In Fores, ... 6. ccc eede ee

A “RIF”-Based Burden of Proof Formula

Would Not Apply On The Facts Of This

Case, Because Petitioner Was Not

Discharged As Part Of A Reduction In

Force And The Reasons For Modifying

The Standard Do Not Apply Here. ....

15

16

19

20

i.

Ill.

Vv

Contents

THERE IS NO REASON FOR THIS COURT

TO DECIDE WHETHER A DISABILITY

MUST BE THE “SOLE CAUSE” OR ONLY

A “MOTIVATING CAUSE” IN ORDER TO

ESTABLISH A DISCRIMINATION CLAIM,

BECAUSE THE ISSUE MAKES NO

DIFFERENCE IN THIS CASE AND THE

SIXTH CIRCUIT DID NOT DECIDE IT.

THERE IS NO REASON FOR THIS COURT

TO DECIDE WHETHER “INTERACTING

WITH OTHERS” IS A “MAJOR LIFE

ACTIVITY” FOR PURPOSES OF THE

ADA, BECAUSE THE ISSUE MAKES NO

DIFFERENCE IN THIS CASE AND THE

SIXTH CIRCUIT DID NOT DECIDE IT.

A. Plaintiff Never Presented To The Sixth

Circuit The Issue Of Whether Interacting

With Others Is A Major Life Activity

Under ADA, And The Sixth Circuit

Never Decided It... cc ccccccccccss

B. There Is No Circuit Split On The Issue

of Whether Interacting With Others Is A

Masor Lite ACIVEY. .......ccccccces

Page

22

26

vi

Contents

Page

C. Whether Interacting With Others Is A

Major Life Activity Is Of No Relevance

To The Outcome Of This Case, Because

Petitioner Did Not Appeal The District

Court’s Finding That He Is Not

Substantially Limited In That Activity. .. 27

IV. THIS CASE DOES NOT HAVE NATIONAL

IMPORTANCE THAT WOULD WARRANT

SUPREME COURT REVIEW. ........... 29

GE cab) tude nde tdKwd dawns sees ne 30

vii

TABLE OF CITED AUTHORITIES

Page

CASES

Anderson v. Consolidated Rail Corp., 297 F.3d 242

COG Cs MOUED is bel ckscka vevedvbeuecranees 21

Barnes v. GenCorp Inc., 896 F.2d 1457 (6th Cir.

1990), cert. denied, 111 S. Ct. 211 (1990) ...... 19

Bellaver v Quanex Corp., 200 F.3d 485 (7th Cir.

y PEPE erry ret ers tego ee 19

Coburn v. Pan American World Airways, Inc., 711

F.2d 339 (D.C. Cir. 1983), cert. denied, 104

CA RCE ci ohn wenee cna eee enis 19, 20

Earley v. Champion International Corp., 907 F.2d

SOE? CLEGU GA eee: ws dv deckdeis vhansnne ws 19

Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) .... 23

Hebert v. Mohawk Rubber Co., 872 F.2d 1104 (1st

CO. SI oc iak povacwdametslreseseeaneuae 20

Hidalgo v. Overseas Condado Insurance Agencies,

LAD Fete care CEM GE, TOGED 0 i.x' nas ste cea heed 19

Holley v. Sanyo Manufacturing, Inc. 771 F.2d 1161

Ce Rah SED 0 64 COON Deb es tke thetekee ne 19

In Re: Carnegie Center Associates, 129 F.3d 290 (3d

Rs TE hoc tachatdisteveecusmedtcee 19

viii

Cited Authorities

Page

Jacques v. DiMarzio, Inc., 386 F.3d 192 (2d Cir.

Dt hice ieee caw chadeeetetee ecdeeé 26, 28

Jones v. Unisys Corp., 54 F.3d 624 (10th Cir. 1995)

Pees aeg as oA ka bed wed 0b 6b bosteve-es 19

Kline v. TVA, 128 F.3d 337 (6th Cir. 1997), rehearing

and suggestion for rehearing in banc denied

SN Ce th eT iw és ube es Cded¥ eee 15

McAlindin v. County of San Diego, 192 F.3d 1226

(9th Cir. 1999), cert. denied, 120 S. Ct. 2689

SG ORC Path oos oehegh at nekt ea 9% 26

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

cE POU RE 55h 0 6 caswhewscaueere’ passim

Mitchell v. Data General Corp., 12 F.3d 1310 (4th

aR ae eed eg Ce A a a al 19, 21

Monette v. Electronic Data Systems Corp., 90 F.3d

CMD svc soc eedbbdes Picbewes 22, 23

Montana v. First Federal Savings & Loan

Association, 869 F.2d 100 (2d Cir. 1989) ...... 19

Nesbit v. Pepsico Inc., 994 F.2d 703 (9th Cir. 1993)

eo. sa0 es bans bade 6 eke Ceeebe ewes 19, 20

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

U.S. 308, 116 S. Ct. 1307 (1996) ......... 16, 17, 18

ix

Cited Authorities

Page

Pena v. Brattleboro Retreat, 702 F.2d 322 (2d Cir.

FD uit oF dd dots cheeses eee keene 20

Rea v. Martin Marietta Corp., 29 F.3d 1450 (10th

els SO db ade y ba caibeee babes Coe aes 20

Soileau v. Guilford of Maine, 105 F.3d 12 (ist Cir.

SORT cewn ch aweebbss dene be dbaneaetcowteh 26

Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241

CEG t BOGE oc 0b dccavbe cd edt ienccesh ers 16

Walsh v. UPS, 201 F.3d 718 (6th Cir. 2000) ....... 22

Williams v. General Motors Corp., 656 F.2d 120 (Sth

Cir. 1981), cert. denied, 102 S. Ct. 1439 (1982) ...

ieepwkhenchodss «640baa Skaeienenee 19, 20, 22

COURT RULES

OA SE POO soe dadiciecivswane’s 13, 14, 24, 27

DU GR Oe a ont cotewtapoadevecuwonneds ii

STATUTES

Pegs k ell i.) Ye Po Maemenmeia ie wearin Maas i, 1

COUNTER-STATEMENT OF THE CASE

I, SUMMARY OF PROCEEDINGS

This case arises under the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq. On June 8, 2001, Burke E.

Porter Machinery Co. (“BEPCO”) terminated the employment

of Petitioner Danie] Merrill because he blatantly defied his

supervisor’s efforts to improve his serious and continuing

performance problems.

Petitioner alleges that he has a “disability” under the ADA

and that his discharge was motivated by the alleged disability

(Compl. {fj 1, 4, JA13).' In a thorough opinion (Pet. | 1a), the

District Court granted BEPCO’s motion for summary judgment

on the following grounds:

1. Petitioner failed to establish that he had a disability under

the ADA, because the undisputed facts showed that he was not

“substantially limited” in any “major life activity” (Pet. 76a-

94a);

2. There was no “direct evidence” of disability

discrimination (Pet. 117a-119a);

3. There was no circumstantial evidence of discrimination,

and Petitioner could not establish a prima facie case of

- discrimination under McDonnell Douglas (Pet. 119a-120a); and

1. “JA” refers to the pages of the Joint Appendix filed in the

Sixth Circuit Court of Appeals. The District Court dismissed

additional claims of retaliation and failure to accommodate, and

Merrill did not appeal those decisions.

2

4. There was no evidence that BEPCO’s nondiscriminatory

reasons for terminating Petitioner’s employment were pretextual

(Pet. 120a).

The Sixth Circuit affirmed on the ground that there was

neither direct nor circumstantial evidence of discrimination

(Pet. 9a-10a). Merrill’s petition for rehearing en banc was

denied (Pet. 2a).

Il. STATEMENT OF FACTS

A. Background

BEPCO designs and manufactures large specialized

machines, including emission dynamometers and vehicle

testing equipment. At the time of Merrill’s termination,

BEPCO employed approximately 197 employees (Palmer

Aff. 9 1; JA 122).

Merrill became employed by BEPCO in May 1997 as a

mechanical project engineer (Merrill Dep. 28, 93; JA 131;

303). The mechanical project engineer is responsible for

designing a machine that meets the customer’s specifications

in a timely and profitable manner, and is ultimately

accountable for any mistakes or problems with the design

(Merrill Dep. 103, 105, 111, 123-124, 491-493; Palmer Dep.

35; JA 304-305, 143, 203-204; 267).

B. Merrill’s Performance Problems

In the summer of 2000, Ralph Palmer became BEPCO’s

Director of Engineering. Palmer was.charged with identifying

and fixing quality problems within the engineering group

(Palmer Dep. 13, 36-37; JA 262, 267). At the time, Merrill

3

was working in the “End of Line” engineering group (Merrill

Dep. 178; JA 152). His superviser was critical of Merrill’s

performance and complained to Palmer about Merrill’s

technical abilities and productivity (Palmer Dep. 19-20;

Roodvoets Dep. 72-73; JA 263, 278).

In December 2000, at Merrill’s request, he was

transferred to the Dynamometer Engineering Group (“Dyno

Group”) under supervisor John Clawson (Merrill Dep. 178-

179; Merrill Dep. Ex 33; JA 152-153; 247). Around April

2001, Clawson was transferred (Palmer Dep. 21; JA 263),

and Palmer began directly supervising the Dyno Group

engineers including Merrill (Palmer Dep. 18, 22; JA 263,

264).

In the spring of 2001, one after another of Merrill’s

projects had serious problems that required Palmer’s attention

(Palmer Dep. 24-34; JA 264-267) (Palmer Aff. § 2; JA 122).

It is undisputed that the following problems occurred on

machines Merrill designed and were brought to his attention:

1) 2-Wheel-Drive Dynamometer for General Motors-

Delphi): In the spring of 2001, this machir~ required

significant re-work in the shop and repairs had to be done

at the customer’s site in Rochester, New York (Merrill

Dep. 276-277, 340-341, 513; JA 167, 177, 208).

2) 4-Wheel-Drive Post Restraint System for Ford: \n the

spring of 2001, BEPCO’s shop personnel became very

upset and several meetings were called, because Merrill

had specified unnecessarily difficult and expensive

machining, failed to include welding instructions, and

provided inconsistent assembly instructions (Merrill

Dep. 358, 479-483; JA 180, 201-202) (Palmer Dep. 27-

3)

4)

4

31; JA 265-266). He also specified a tap that BEPCO

did not stock, and work on the project had to stop for

several days until the fabrication department was able

to obtain the new tap (Merrill Dep. 482-483; JA 202).

4WD dynamometer for GM-Milford): In the spring of

2001, the centering lift system on this machine failed as

BEPCO was preparing to ship it to the customer (Merrill

Dep. 231, 243, 272-273; JA 161, 162, 166). Also, the

machine was mistakenly designed with fasteners in both

SAE (or inch) measurements and metric measurements

incorporated into the same machine (Merrill Dep. 245-

246, 428; Palmer Dep. 31-32; JA 162, 192; 266). Plaintiff

testified: “I will admit having the frame [of the machine]

basically metric and having the [motor] basically SAE

was not good” (Merrill Dep. 430-431; JA 193). There

were also fabrication and machining problems on some

of the parts Merrill designed for this machine (Merrill

Dep. 348; Palmer Dep. 31-32; JA 179; 266). A recovery

plan was put into place because the project, which Merrill

described as a “fiasco,” was substantially late (Merrill

Dep. 349, 471; JA 179, 199).

Motorcycle Dynamometer for Jialing: Several days

before Merrill was terminated, Palmer told him to look

over the centering system on this machine because shop

personnel reported that it was loose and that the pivot

bolt Merrill had designed was too small (Merrill Dep.

36, 274, 476-477; Palmer Dep. 32; JA 132, 167, 201;

266). On the day Merrill was terminated, Palmer called

him to the machine shop because the machine could not

be assembled the way Merrill had designed it (Merrill

Dep. 360-361; Palmer Dep. 32; JA 180; 266). (This was

the incident that led up to Merrill’s termination.)

5)

5

Tandem axle roll brake test machine for Hyundai: Merrill

acknowledged that there were “a lot of issues” with this

project and it was “a huge service nightmare” (Merrill

Dep. 252; JA 164). In the spring of 2001, the machine’s

rollers were causing tire damage at the customer’s site

in Korea, and BEPCO employees had to travel there to

service the machine (Merrill Dep. 249, 252; JA 163-164).

Also, a belt tensioner Merrill designed broke during

operation; Merrill redesigned the part, the new part was

made and installed, but it broke again (Mernill Dep. 246,

249; JA 162, 163). The machine kept falling apart, and

others at BEPCO believed it was under-built, under-

powered, and never should have been sold (Merrill Dep.

278; JA 168).

6) Automatic chocking system for Ford: On May 14, 2001,

7)

the customer reported a “major failure” on this machine

and said the “system is inoperable” (Merrill Dep. 293,

297; Merrill Dep. Ex. 14; JA 171, 172; 227). Merrill’s

design error caused a failure of the mechanism that was

used to chock the vehicle’s tires (Merrill Dep. 287-288,

297; JA 170, 172). Merrill also failed to design the

machine to accommodate tires of up to 36 inches as the

customer had specified (Merrill Dep. 291-292; JA 171).

Rolling master for KIA: Merrill used an inappropriate

wheel assembly, causing a front wheel to come loose

during use at the customer’s site in Korea. BEPCO

employees had to travel to Korea to service the machine.

In addition, the rear hub became loose due to Merrill’s

failure to add a thrust key or to provide appropriate

assembly instructions (Merrill Dep. 311, 317, 326-327,

330-331; JA 173-176).

6

Palmer discussed these issues with Merrill during the

months before his termination and made it clear that Merrill

needed to improve (Palmer Dep. 37-39; JA 267-268; Merrill

Dep. Ex. 46, p3, and Merrill Dep. 534-536; JA 259, 212-

213}. Due to the frequent problems with Merrill’s projects,

Palmer increasingly lost confidence in Merrill’s engineering

abilities (Palmer Dep. 37-39; JA 267-268) (Palmer Aff. 2;

JA 122),

C. Merrill’s Termination

On June 8, 2001, Palmer told Merrill that problems had

been encountered with a motorcycle dynamometer Merrill

designed (Merrill Dep. 521-522; JA 210). Palmer asked

Merrill to follow him to the fabrication shop (Merrill Dep.

521; Merrill Dep. Ex. 45; JA 210; 254). Lying on a table in

the shop were some of the parts Merrill had designed for the

dynamometer (Merrill Dep. 522; Merrill Dep. Ex. 45;

JA 210; 254). Al Preisner, Assembly Manager, pointed out

that the parts could not be assembled as Merrill had drawn

them (Merrill Dep. 521-522, 525, 360-361; JA 210, 211, 180).

Merrill said “shit,” realizing the parts would need reworking

(Merrill Dep. 522, 525; Merrill Dep. Ex. 45; JA 210, 211;

254).

2. When Merrill interviewed with BEPCO for a position as a

mechanical project engineer in early 1997, he represented on his

resume that he expected to graduate that fali from Kennedy-Western

University with a bachelor’s degree in mechanical engineering

(Merrill 74, Merrill Dep. Ex. 1; JA 141; 216). As BEPCO later

learned, however, Merrill actually had very little education in

mechz.sical engineering, never completed any course work at

Kennedy-Western University, and knew that he was not going to

complete 2 degree program as he represented (Merrill Dep. 76-87;

JA 299-302).

7

Preisner left the conversation, and Palmer then asked

Merrill: “Why is [sic] there always mistakes on your jobs[?]”

(Merrill Dep. Ex. 45; JA 254). Merrill said he had no control

over the detailers and checkers upon whom he relied (Merrill

Dep. Ex. 45; JA 254). Palmer said he thought the problem was

that Merrill was “technically incompetent” and could not “draw

worth a shit” (Merrill Dep. 522; Merrill Dep. Ex. 45; JA 210;

254). Merrill asked Palmer: “How would [you] know?” (Merrill

Dep. 522; JA 210). Merrill told Palmer: “You are out of line”

(Mernll Dep. Ex. 45; JA 254). Palmer said several times he

was thinking of firing Merrill (Merrill Dep. 522; Merril! Dep.

Ex. 45; JA 210; 254). Merrill told Palmer: “You won’t get away _

with it” (Merrill Dep. 523; Merrill Dep. Ex. 45; JA 210; 254).

Palmer then escorted Merrill to the Human Resources office

and out of the building (Merrill Dep. Ex. 45; JA 254).

Palmer, the sole decision maker in Merrill’s termination,

explained the reasons for his decision as follows:

I had issues in Engineering. I was tasked with all of

Engineering, that includes quality. There’s only two

things you can do. Fix them or remove them. When

he made it clear that he would not recognize he had

issues, wouldn’t work with me on those issues,

wouldn’t accept me as his boss, I was only left with

that second option, and that was to remove him.

(Palmer Dep. 37; JA 267).

After P!<intiff was terminated, BEPCO did not replace him.

During the summer and fall of 2001, the company terminated

several employees in a workforce reduction. (Palmer Aff. 4 4;

JA 123).

8

D. Merrill’s Alleged Disability

Gailord Weeks, Ph.D., Merrill’s counselor and

psychological expert, testified that Merrill has difficulty

interacting socially or interpersonally in that he tends to be

withdrawn or isolated (Weeks Dep. 25; JA 283). But Merrill

is able to interact socially to some degree, and “is very

capable on the surface of forming relaticaships” (Weeks Dep.

24-25, 76; JA 283, 291). Dr. Weeks testified: “Dan does have

social skills. I mean, they are limited in some ways, and

particularly when it comes to more intimate personal

relationships or friendships or whatever” (Weeks Dep. 76-

77; JA 291). Dr. Weeks had no reason to believe that Merrill’s

social difficulties impaired his ability to function at work

(Weeks Dep. 32; JA 285). Dr. Weeks associated the deficits

in social interaction and eye contact with a mental disorder

known as Asperger’s Syndrome (Weeks Dep. 28-29, 49; JA

284, 287).

Dr. Weeks testified that Merrill’s eye contact was

“reasonably good” and that Merrill could present well in

many settings (Weeks Dep. 35-36; JA 286). Dr. Weeks did

not believe that Merrill, while at BEPCO, would have

appeared to a lay person to have a mental disorder (Weeks

Dep. 35-36; JA 286).

The following facts (from Merrill’s own testimony)

demonstrate that he is not substantially limited in his daily

life by his alleged impairments:

¢ Merrill interacted daily with many people at BEPCO

with whom he had “good” — even “great” —

relationships, including one particular supervisor who

was known for having conflicts with “a lot” of

9

employees (Merrill Dep. 30, 131-141, 156-157, 165-

166, 210, 214; JA 131, 145-147, 149, 151, 157, 158).

He teaches “a lot” of people how to fish, including

friends and referrals, and took coworkers to his

riverfront home to teach them how to fish (Merrill

Dep. 62, 72-73, 211-212; JA 138, 141, 158).

He had “friends” at other machine shops, and called

on them for assistance when BEPCO had a high

volume of work (Merrill Dep. 215; JA 159).

Merrill was married three times, once for six years;

his relationship with his first wife is “excellent”; he

maintains a good social and personal relationship with

his second wife; and he has social conversations with

his third wife regarding visitation issues (Merrill Dep.

22, 25-27, 45; JA 129-131, 134).

He has an “excellent” relationship with his son and

step-son, and communicates regularly with his son

by e-mail and the telephone (Merrill Dep. 25-27;

JA 130-131).

He can communicate, interact socially and conduct

himself appropriately, except in unusually

antagonistic circumstances, or when too many people

are talking at the same time (Merrill Dep. 379, 381-

384; JA 183-184).

Merrill agrees with the statements in his 1999

employee appraisal that he was “an effective

communicator” and “effective listener” who could

“present his ideas orally and in writing,” and that he

10

“works very well with others” (Merrill Dep. 219-220;

Merrill Dep. Ex. 9; JA 160; 220).

He held regular employment with a number of

companies for eighteen years before his employment

at BEPCO and has had responsibility for hiring and

firing personnel (Merrill Dep. 39, 544; Merrill Dep.

Ex. 1; JA 133, 215; 216).

Merrill graduated from high school with a grade point

average of 2.497 (Merrill Dep. 505-506; JA 206), and

claims to have completed college level courses

(Merrill Dep. 74-75; JA 141-142). He has completed

computer training courses on Excel, CadKey and

Desktop software programs; studied psychology,

human development and patent law on his own; took

a paralegal course; and continues to study advanced

photography (Merrill Dep. 44, 46-48, 52-54, 59, 60-

62, 506; JA 134-136, 138, 206; Pl.’s Resp. Ist

Interrog. No. 4; JA 225).

He owned a photography studio at one time and still

interacts with people regarding his photography

services (Merrill Dep. 59, 60-62; JA 138).

While at BEPCO, he wrote: “I believe that I work

with a mental intensity higher than most, which allows

me to complete more assignments in a lesser amount

of time. Through practice, I can mentally work on

varied projects at the same time. (Physically work on

one, mentally work on three or four.)” (Merrill Dep.

202; Merrill Dep. Ex. 6, JA 156; 218).

1]

* He told people at BEPCO that he has genius-level

intelligence and that he can envision machines and

concepts in ways in which other people cannot

(Merrill Dep. 183-184; Palmer Dep. 49-53;

Roodvoets Dep. 71; JA 154; 269-270; 278).

¢ He is able to care for himself in all respects (Merrill

Dep. 378; JA 183).

E. Misstatements in Petitioner’s Statement of the Case

1. Petitioner states that he was employed by BEPCO

for five years (Pet. 2). In fact, he was employed for four years,

from May 19, 1997 to June 8, 2001 (Merrill Dep. 28, 93;

JA 131; 303). He also claims that he “functioned successfully

as a non-degreed engineer for Defendant” for a number of

years (Pet. 2). This broad generalization is inconsistent with

Petitioner’s testimony (and the District Court’s findings)

regarding the problems with Petitioner’s machine designs in

2001, described above.

2. Petitioner’s description of the exchange leading up

to his termination is materially incorrect due to selective

omissions. Petitioner’s description omits the undisputed fact

that when he was shown the parts he had designed that could

not be assembled he responded “shit,” which was the first

profanity uttered in the conversation (Merrill Dep. 522, 525;

Merrill Dep. Ex. 45; JA 210, 211, 254). The Petition also

fails to disclose that Petitioner asked Palmer “how would

you know?”, after Palmer said that Merrill was “technically

incompetent” and could not “draw worth a shit” (Merrill Dep.

522; JA 210). Petitioner also failed to mention that when

Palmer said that he was thinking of firing Merrill, Merrill

responded “you won’t get away with it” (Merrill Dep. 523;

12

Merrill Dep. Ex. 45; JA 210, 254). In summary, Petitioner’s

Statement of the Case belittles Palmer’s conclusion that

Petitioner was unwilling to take Palmer’s direction and

improve his performance, yet Petitioner omits the very

statements that Petitioner undisputedly made that

demonstrate the reason for Palmer’s conclusion.

3. Petitioner states that BEPCO “fired him because of

his disability” (Pet. 2). This is only Petitioner’s contention,

not a fact. Both the District Court and the Court of Appeals

found that there was no evidence to support this contention.

4. Petitioner asserts that “Defendant BEPCO maintained

that Plaintiff Merrill was fired for poor performance”

(Pet. 6). On the contrary, Respondent has consistently stated

and shown that Petitioner was fired because of his defiance

of Palmer’s supervisory authority and his refusal to recognize

the need to improve his performance.

5. Petitioner states that “during the time of [his]

termination, Defendant BEPCO laid off a number of other

employees due to a reduction in force (RIF)” (Pet. 3). This

statement is misleading, as it incorrectly suggests that a

workforce reduction was a factor in Petitioner’s dismissal,

and that the layoff of other employees had already begun

when Petitioner was discharged on June 8, 2001. Other

BEPCO employees were laid off during the summer of 2001,

after Petitioner’s discharge (Palmer Aff. | 4; DC Op 94;

JA 117).

13

SUMMARY OF THE ARGUMENT

There is no compelling reason for this Court to consider

and decide the questions presented by the Petition, for the

following reasons:

1. Whether the McDonnell Douglas formula should

be modified for cases involving a reduction in force

(“RIF”): The Sixth Circuit’s decision is not “in conflict with

the decision of another United States court of appeals” on

this question, Sup. Ct. R. 10(a), because the Sixth Circuit

did not enter any decision on this question. Petitioner did

not present this question to the Sixth Circuit, just as he did

not raise the issue in the District Court. Second, the question

is not presented on the facts of this case, because Petitioner

was not discharged during or because of a RIF. Third, there

is no meaningful split of authority among the Circuit Courts

on this question.

2. Whether a disability must be the “sole” cause or

only a “motivating” cause to establish a claim under the

ADA: The Sixth Circuit’s decision is not “in conflict with

the decision of another United States court of appeals,” Sup.

Ct. R. 10(a), because the Sixth Circuit did not decide this

issue. Because both the District Court and the Court of

Appeals applied well-established principles in determining

that there was neither circumstantial nor direct evidence of

discriminatory intent, the question of whether the causation

requirement is described as a “sole” or “motivation” cause

test is not relevant to either court’s decision.

3. Whether the ability to “interact with others” is

a “major life activity” under ADA: This issue is not

presented on the facts of this case, because Petitioner did

14

not make this allegation in his complaint, he did not present

the question to the Sixth Circuit, and the Sixth Circuit did

not decide it. As a result, the Sixth Circuit’s decision is not

“in conflict with the decision of another United States court

of appeals” on this question. Sup. Ct. R. 10(a). Second, there

are simply too few Circuit Court decisions on this issue to

show a meaningful split of authority. Third, the undisputed

facts (as found by the District Court without objection

Petitioner on appeal) demonstrate that Petitioner is not

“substantially limited” in the ability to “interact with others.”

ARGUMENT

In his effort to obtain an audience with this Court,

Petitioner has undertaken a wholesale restructuring of his

case strategy. He asks this Court to consider two questions

(the “RIF” standard and “interacting with others”) that he

never raised in the Sixth Circuit. One of those (the “RIF”

question) he did not raise even in the District Court. The

third issue is the semantic matter of the title to be given to a

causation standard (“sole” versus “motivating” cause) which

has played no role in the analysis or decisions of the District

Court and the Court of Appeals.

Petitioner argues that that there are “splits of authority”

among the Circuit Courts on the issues he presents, but

scrutiny of the relevant decisions demonstrates that there is

not. Ultimately, Petitioner’s questions are not even presented

on the facts of this case. There is no valid reason for this

Court to grant the Petition.

15

I, THERE IS NO REASON FOR THIS COURT TO

CONSIDER AND DECIDE WHETHER THE

MCDONNELL DOUGLAS FORMULA SHOULD BE

MODIFIED IN THE CONTEXT OF A REDUCTION

IN FORCE,

A. This Issue Is Not Properly Before This Court

Because Petitioner Did Not Present It To The

District Court Or The Court Of Appeals.

Petitioner’s suggestion that his burden of proof should

have been modified because of a reduction in force never

appears in the appeal brief, reply brief, or petition for

rehearing that he filed in the Sixth Circuit. And he never

advanced this notion in the District Court.

Perhaps in an effort to create the appearance that he raised

the issue below, Petitioner presents the issue to this Court as

follows:

The Sixth Circuit affirmed the decision of the

District Court, holding that Plaintiff Merrill’s

failure to satisfy the replacement prong of the

McDonnell Douglas test was “fatal” to his case

(App. 10a n.2), even though the case involved a

RIF in which employees are not aormally

replaced. Notably, in his appeal brief, Plaintiff

Merrill relied on several cases to support the

application of a modified McDonnell Douglas

test, including Kline v. TVA, 128 F.3d 337, 348-

349 (6" Cir. 1997), rehearing and suggestion for

rehearing in banc denied, 1998, (a plaintiff may

establish discrimination either by introducing

direct evidence of discrimination or by proving

16

inferential and circumstantial evidence which

would support an inference of discrimination) and

Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d

1241, 1248 (6" Cir. 1995) (“a plaintiff may

establish a prima facie case of discrimination

either by presenting direct evidence of intentional

discrimination by the defendant or by showing the

existence of facts which create an inference of

discrimination.” (internal citations omitted)).

(Pet. 7-8; emphasis supplied). But neither the District Court

nor the Sixth Circuit made any ruling about the effect of a

RIF on the McDonnell Douglas test, because Petitioner never

asked them to. Further, the “modified McDonnell Douglas

test” that Merrill asked the Sixth Circuit to apply (and the

Kline and Talley cases he cited to support it) had nothing to

do with a reduction in force. Instead, what Petitioner asked

the Sixth Circuit was to recognize a third method of inferring

discriminatory intent — in addition to the “direct evidence”

and McDonnell Douglas methods — a method Petitioner

described as the “reasonable inference” theory (Pet. 9a-10a).

Petitioner’s request to have this Court apply a RIF-adjusted

McDonnell Douglas burden of proof is nothing more than a

belated change in his strategy. It is not a protest of substantial

error below, and this Court should not condone it.

B. The Sixth Circuit’s Decision Is Not Contrary To

The Supreme Court’s Decision In O’Connor vy.

Consolidated Coin Caterers Corp.

Petitioner argues that the Supreme Court’s decision in

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

308, 310 (1996), is inconsistent with the Sixth Circuit’s ruling

that he could not present a prima facie case because he was

17

not replaced (Pet. 3, 12, 17, 25-26). To the contrary,

O’Connor actually clarified the replacement requirement of

McDonnell Douglas, thereby implicitly reaffirming it.

Nothing this Court said in O ’Connor decision is inconsistent

with the Sixth Circuit’s analysis or decision in this case.

The plaintiff in O’Connor was discharged when he was

56 years old, and was replaced by a 40 year-old. The Fourth

Circuit held that O’Connor could not establish a prima facie

case of age discrimination because his replacement was not

outside the class protected by the Age Discrimination in

Employment Act. The Supreme Court reversed, holding that

O’Connor did not have to prove he was replaced by someone

younger than 40 to establish a prima facie case. Whether the

replacement was under age 40, the Court explained, had no

logical connection to whether the plaintiff was a victim of

age discrimination:

The fact that one person in the protected class has

lost out to another person in the protected class is

thus irrelevant, so long as he has lost out because

of his age. Or to put the point more concretely,

there can be no greater inference of age

discrimination (as opposed to “40 or over”

discrimination) when a 40 year-old is replaced by

a 39 year-old than when a 56-year-old is replaced

by a 40 year-old.

O’Connor, 517 U.S. at 312 (emphasis in original).

18

But contrary to Petitioner’s insinuation, the O’Connor

Court did not abandon the replacement element of the

McDonnell Douglas test. The Court’s conclusion actually

reaffirmed the importance of that element:

Because the ADEA prohibits discrimination on the

basis of age and not class membership, the fact

that a replacement is substantially younger than

the plaintiff is a far more reliable indicator of age

discrimination than is the fact that the plaintiff

was replaced by someone outside the protected

class.

Id. at 313.

Petitioner argues that the replacement element cannot

apply here under O’Connor because, in Petitioner’s view,

that element has no logical relationship to the question of

whether there was disability discrimination. But O’Connor

reaffirmed that the replacement element remains part of the

McDonnell Douglas formula. It simply rejected the notion

that age discrimination could not be inferred unless the

replacement was less than 40 years of age. That analysis

simply does not apply here. There is no reason why the

replacement of a disabled employee by'a non-disabled

employee would not bear a logical relationship to the question

of whether disability discrimination had taken place.

———

19

C. There Is No Meaningful Circuit Split On Whether

The McDonnell Douglas Standard May Be

Modified To Account For The Unique

Characteristics Of A Reduction In Force.

Petitioner asserts that there is “a split of authority among

the Circuit Courts of appeal” as to “whether the McDonnell

Douglas test should be modified in the RIF context”

(Pet. 3). This contention is groundless.

All of the federal Circuits Courts have considered the

application of McDonnell Douglas in a case in which a

discharge occurred in an employer’s economically-motivated

workforce reduction. Because employees terminated in a

downsizing are rarely if ever “replaced,” the circuits have

recognized that it is generally impossible for a plaintiff to

satisfy the fourth element of the McDonnell Douglas test,

which requires a discharged plaintiff to show that he was

replaced by someone outside the protected group. There is

no division among the circuits on this point.’ Different

circuits have used slightly different words to describe their

3. See, e.g., Hidalgo v. Overseas Condado Insurance Agencies,

120 F.3d 328 (1* Cir. 1997); Montana v. First Federal Savings &

Loan Association, 869 F.2d 100 (2d Cir. 1989); In Re: Carnegie

Center Associates, 129 F.3d 290 (3d Cir. 1997); Mitchell v. Data

General Corp., 12 F.3d 1310, 1315 (4" Cir. 1993); Williams v.

General Motors Corp., 656 F.2d 120 (Sth Cir. 1981), cert. denied,

102 S. Ct. 1439 (1982); Barnes v. GenCorp Inc., 896 F.2d 1457

(6" Cir. 1990), cert. denied, 111 S. Ct. 211 (1990); Bellaver v Quanex

Corp., 200 F.3d 485 (7th Cir. 2000); Holley v. Sanyo Manufacturing,

Inc. 771 F.2d 1161 (8" Cir. 1985); Nesbit v. Pepsico Inc., 994 F.2d

703 (9" Cir. 1993); Jones v. Unisys Corp., 54 F.3d 624 (10" Cir.

1995); Earley v. Champion International Corp., 907 F.2d 1077 (11th

Cir. 1990); Coburn v. Pan American World Airways, Inc., 711 F.2d

339, 343, (D.C. Cir. 1983), cert. denied, 104 S. Ct. 488 (1983).

20

adjustment of the standard in the RIF context.‘ But these are

variations on the same theme, not inconsistent rules. They

do not suggest that the Circuit Courts would reach

substantially different results, and certainly do not reveal a

division of authority that is crying out for resolution by this

Court.

D. A “RIF”-Based Burden of Proof Formula Would

Not Apply On The Facts Of This Case, Because

Petitioner Was Not Discharged As Part Of A

Reduction In Force And The Reasons For

Modifying The Standard Do Not Apply Here.

Because Merrill was not discharged during or because

of a reduction in force, the decisions which approve a

modification to the McDonnell Douglas standard in the RIF

setting do not apply here.

4. To replace the replacement element of McDonnell Douglas,

some Circuits have considered whether “younger persons were

retained” in the reduction. See, e.¢., Coburn v. Pan American World

Airways, Inc., 711 F.2d 339, 343 (D.C. Cir.), cert. denied, 104 S. Ct.

488 (1983); Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1111

(1st Cir. 1989); Pena v. Brattleboro Retreat, 702 F.2d 322, 324 (2d

Cir. 1983). Other Circuits have required the plaintiff to produce

“evidence, circumstantial or direct, from which a factfinder might

reasonably conclude that the employer intended to discriminate in

reaching the decision at issue.” See, e.g., Williams v. General Motors

Corp., 656 F.2d 120, 129 (Sth Cir. 1981), cert. denied, 102 S. Ct.

1439 (1982); Nesbit v. Pepsico Inc., 994 F.2d 703 (9 Cir. 1993).

Others have stated that the fourth element may be met by

circumstantial evidence that a plaintiff was treated less favorably in

a reduction than younger employees. See, e.g., Rea v. Martin Marietta

Corp., 29 F.3d 1450, 1454 (10th Cir. 1994); Hebert, supra at 1111.

21

As described in Mitchell v. Data General Corp., 12 F.3d

1310, 1315 (4" Cir. 1993), a reduction in force occurs “where

a group of employees is discharged because of the company’s

economic conditions.” Thus, in ord~r to proceed under the

Fourth Circuit’s modified prima facie case formula, a RIF

plaintiff must show that “he was selected for discharge from

a larger group of candidates.” Jd. at 1315. The RIF model

plainly does not fit the present case, because Merrill was not

discharged “because of the company’s economic conditions”

and was not “selected for discharge from a larger group of

candidates.”

While all of the Circuit Courts have modified the

McDonnell Douglas scheme in the RIF setting, they have

not simply eliminated the “replacement” requirement. All

have required some alternative evidentiary showing that

would give rise to an inference of discrimination. For

example, in Mitchell, the Fourth Circuit required the plaintiff

to show that “he was performing at a level substantially

equivalent to the lowest level of those of the group retained,”

and that the remaining work force contained “some

unprotected persons who were performing at a lower level

than that at which he was performing.” /d. at 1315. The

Third Circuit has expressed a slightly different but not

inconsistent formulation, holding that a plaintiff in a RIF

age discrimination case may establish a prima facie case by

showing that the employer retained a “similarly situated”

younger employee. Anderson v. Consolidated Rail Co*., 297

F.3d 242, 250 (3d Cir. 2002).

Of the various RIF-based adjustments to McDonnell

Douglas, Petitioner’s evidence satisfies none of them. All of

those variations require some measure of evidence — more

than the mere fact that a protected class member was

22

discharged and not replaced — to support an inference that

“the employer intended to discriminate in reaching the

decision at issue.” Williams v. General Motors Corp., 656

F.2d 120, 129 (Sth Cir. 1981), cert. denied, 102 S. Ct. 1439

(1982). But there is no such evidence in this case.

Il. THERE IS NO REASON FOR THIS COURT TO

DECIDE WHETHER A DISABILITY MUST BE

THE “SOLE CAUSE” OR ONLY A “MOTIVATING

CAUSE” IN ORDER TO ESTABLISH A

DISCRIMINATION CLAIM, BECAUSE THE

ISSUE MAKES NO DIFFERENCE IN THIS CASE

AND THE SIXTH CIRCUIT DID NOT DECIDE IT.

Petitioner asks this Court to decide whether a disability

must be the “sole” cause of his discharge, or only a

“motivating” cause, to establish a claim under the ADA.

Petitioner correctly observes that in prior decisions the Sixth

Circuit has commented that a disability must be the “sole

cause” of a discharge in order to establish a violation of ADA.

See, e.g., Walsh v. UPS, 201 F.3d 718, 725 (6" Cir. 2000);

Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1177

(6" Cir. 1996). But this case presents no reason for the Court

to consider whether that title is correct, because the issue

could not possibly make any difference in the outcome of

this case.

It is important to note that the Sixth Circuit did not decide

this question, even though Merrill raised it in his brief to

that Court. In analyzing whether Merrill’s discharge was

“caused” by his alleged disability, the Sixth Circuit used the

widely-accepted method of analysis:

A plaintiff may establish unlawful discrimination

by introducing direct evidence of intentional

23

discrimination, including evidence that the employer

relied on the plaintiff's disability in making its

employment decision. See Monette v. Electronic

Data Systems Corp., 90 F.3d 1173, 1178 (6° Cir.

1996). Where no direct evidence of discrimination

exists, a plaintiff must proceed under the familiar

burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.

Ct. 1817 (1973).

(Pet. 7a). In its analysis of Merrill’s evidence, the court of appeals

first evaluated and rejected his claim that there was direct

evidence of disability discrimination. The court then commented

that “Merrill admits that he cannot” establish a prima facie case

of discrimination “because there is no evidence that he was

replaced or that his position was held open” (Pet. 9a).

There is nothing about this analysis that would have been

affected by the selective use of either a “sole cause” or

“motivating cause” standard. The same analysis of whether there

is direct evidence and circumstantial evidence is applied by

courts that use the term “motivating factor” to describe the

causation standard they apply. See, e.g., Fuentes v. Perskie, 32

F.3d 759, 764 (3d Cir. 1994). Consequently, it was utterly

unnecessary for the Sixth Circuit to decide the issue, and it did

not. While the District Court referred to the “sole cause” standard

(Pet. 117a), the District Court likewise conducted its analysis

using the same standards that are us for evaluating direct and

circumstantial evidence

It is of no consequence to observe that other circuits say

that a disability must be a “motivating cause” to establish an

ADA violation. Whether or not that conceptual difference

constitutes a “circuit split,” the Sixth Circuit’s decision in this

case does not define a circuit split, because this decision is not

24

“in conflict with the decision of another United States court of

appeals” as contemplated by Sup. Ct. R. 10(a). An opinion that

does not decide an issue cannot be in conflict with another circuit

on that issue. And a non-decision should not be reviewed on

the premise of resolving a split that can only be found in cases

that are not before the Court.

Ill. THERE IS NO REASON FOR THIS COURT TO

DECIDE WHETHER “INTERACTING WITH

OTHERS” IS A “MAJOR LIFE ACTIVITY” FOR

PURPOSES OF THE ADA, BECAUSE THE ISSUE

MAKES NO DIFFERENCE IN THIS CASE AND

THE SIXTH CIRCUIT DID NOT DECIDE IT.

A. Plaintiff Never Presented To The Sixth Circuit The

Issue Of Whether Interacting With Others Is A Major

Life Activity Under ADA, And The Sixth Circuit Never

Decided It.

The third question Petitioner submits represents another

change in strategy. Petitioner never asked the Sixth Circuit to

decide whether “interacting with others” is a major life activity

under the ADA. The Sixth Circuit, of course, did not consider

or decide it.

In introducing the issue for this Court’s consideration,

Petitioner emphasizes his disagreement with the District Court's

treatment of the issue, but is conspicuously silent (as he must

be) with regard to the Sixth Circuit’s treatment of it:

Another disputed issue in Defendant’s Motion

{for summary judgment] was whether Plaintiff

Merrill’s inability to interact with others substantially

limited him in his ability to work. The District Court

erroneously recast the ability to “interact with” others

25

as the ability to “get along with” others. . . . The U.S.

Magistrate Judge even analyzed a First Circuit

opinion on this issue, but he ultimately failed to

distinguish between the ability to “interact” with

others and the ability to “get along with” others,

concluding that: “Plaintiff's purported inability to

get along with co-workers is not a ‘major life activity’

within the meaning of the ADA.”

(Pet. 7).

Petitioner never presented the District Court or the Court

of Appeals with what he presents here as an all-important

distinction between the ability to “interact” with others and the

ability to “get along” with others. His complaint did not allege

that he was substantially limited in the major life activity of

“interacting with others;” he did not identify the issue by

evidence or argument in his brief in opposition to BEPCO’s

motion for summary judgment; and he made absolutely no

mention of the “ability to interact with others” in his briefs to

the Court of Appeals.

To the contrary, the entire focus of Merrill’s contention in

the Court of Appeals was that his ADA disability lay in the

alleged limitation in his ability “to make eye contact”

(Appellant’s Br. 5, 13, 21, 23, 26-28; Appellant’s Reply Br. 5,

7, 8). This point is crystallized by the following statement on

page 28 of Appellant’s Brief:

Turning to the case at bar, the disabling criterion

applied by Defendant was that Plaintiff make eye

contact with his supervisor.

Petitioner’s amended theory of disability is not an appropriate

subject for review by this Court.

26

B. There Is No Circuit Split On The Issue of Whether

Interacting With Others Is A Major Life Activity.

Petitioner asserts that there is “a split of authority among

the Circuit Courts of appeal” as to “whether one’s ability to

interact with co-workers is a major life activity under the

ADA” (Pet. 3). To the contrary, there is a substantial lack of

authority on this point, and the scant opinions that address it

did not demonstrate any genuine circuit split on this issue.

Petitioner urges, as shown above, that there is an

important distinction between the activities of “interacting

with others” and “getting along with others.” The First Circuit

held that the ability to “get along with co-workers” is not a

major life activity. Soileau v. Guilford of Maine, 105 F.3d

12, 15 (1* Cir. 1997). But Petitioner would presumably

contend that Soileau is not on point, because Petitioner now

contends that his disability lies in “interacting with” rather

than “getting along with” others. In that regard, only two

Circuit Courts have reached the issue of whether “interacting

with others” could be a major life activity, with both

answering in the affirmative. Jacques v. DiMarzio, Inc., 386

F.3d 192, 204 (2d Cir. 2004); McAlindin v. County of San

Diego, 192 F.3d 1226, 1234 (9 Cir. 1999), cert. denied, 120

S. Ct. 2689 (2000).

Curiously, Petitioner’s statement that there is a

“significant split of authority” appears in his Petition

immediately after he highlights the absence of authority on

the point, by reiterating the Second Circuit’s observation in

Jacques that the Fourth, Sixth, Seventh, Eighth, Tenth, and

Eleventh Circuits have noted the question but declined to

decide it (Pet. 25). An absence of authority is not a split of

authority. And two Circuit Court decisions, both answering

27

“yes” to whether “interacting with others” can be a major

life activity, do not constitute a split of authority.

Because the Sixth Circuit did not decide the issue in this

case, its decision is not in conflict with that of any other

Circuit, and this is not an appropriate case to be considered

on that basis under Sup. Ct. R. 10(a). To grant a writ of

certiorari in a case in which the Circuit Court has not decided

the issue, the Supreme Court would be deprived of the lower

court’s analysis of the issue and its examination of the case-

specific evidence that may be relevant to it. To grant a writ

when only two Circuits have ruled on an issue, the Court

would be deprived of the developed body of legal thought

that should emerge after thorough analysis by several panels

of Circuit Courts in a wide variety of factual and procedural

settings. :

Because the law on this question is largely undeveloped

in the District and Circuit Courts, and because the Sixth

Circuit did not decide it in this case, there is no valid reason

for this Court to consider it now.

C. Whether Interacting With Others Is A Major Life

Activity Is Of No Relevance To The Outcome Of

This Case, Because Petitioner Did Not Appeal The

District Court’s Finding That He Is Not

Substantially Limited In That Activity.

The District Court found that Petitioner was not

substantially limited in ability to interact with others

(Pet. 92a — 94a), and Petitioner did not appeal that finding.

With regard to a substantial limitation of a major life activity,

his only contention on appeal was that he was limited in his

ability to make eye contact. Therefore, even if this Court

28

were to consider whether “interacting with others” is a major

life activity, the outcome of that decision could not affect the

outcome of this case.

Observing that interacting with others “is essentially

mechanical,” the Second Circuit in Jacques v. DiMarzio, Inc.,

386 F.3d 192, 203 (2d Cir. 2004) described the degree of

limitation required to establish an ADA disability:

We hold that a plaintiff is “substantially limited” in

“interacting with others” when the mental or physical

impairment severely limits the fundamental ability

to communicate with others. This standard is

satisfied when the impairment severely limits the

plaintiff's ability to connect with others, i.e., to

initiate contact with other people and respond to

them, or to go among other people — at the most

basic level of these activities. This standard is not

satisfied by a plaintiff whose basic ability to

communicate with others is not substantially limited

but whose communication is in appropriate,

ineffective, or unsuccessful. A plaintiff who

otherwise can perform the functions of a job with

(or without) reasonable accommodation could

satisfy this standard by demonstrating isolation

resulting from any of a number of severe conditions,

including acute or profound cases of: autism,

agoraphobia, depression or other conditions that we

need not try to anticipate today.

386 F.3d at 203 (emphasis added). Petitioner’s evidence falls

far short of this standard. The undisputed facts show that he

certainly possessed the “fundamental ability to communicate

with others” and could “‘initiate contact with other people and

respond to them.” As a result, whether the Supreme Court

29

decided that “interacting with others” is or is not a “major life

activity” under ADA, the outcome of this case would not change.

A writ of certiorari on this question is unwarranted.

IV. THIS CASE DOES NOT HAVE NATIONAL

IMPORTANCE THAT WOULD WARRANT

SUPREME COURT REVIEW.

This case has been very important to the parties, and it has

consumed the time and resources of the parties, the District

Court and the Sixth Circuit in full measure. Without denigrating

that importance, the candid truth is that it is not a case with

profound jurisprudential importance within or beyond the Sixth

Circuit. In particular, Petitioner’s prediction that denial of his

Petition will inflict dire consequence on persons with disabilities

in the Sixth Circuit is wholly unfounded. His specious argument

betrays a severe misunderstanding of what the Sixth Circuit

decided.

First, Petitioner predicts that “[i]f the Sixth Circuit’s

precedent stands, no individual with a qualifying disability who

was fired during a RIF and who does not have direct evidence

of discrimination will be able to sustain a prima facie claim of

discrimination under the ADA” (Pet. 27). It is absolutely certain

that the Sixth Circuit’s decision in this case will not have that

effect. It will never even be cited in argument over the burden

of proof for an ADA plaintiff who is discharged in a RIF, because

the Sixth Circuit did not decide anything about that question. If

there is Sixth Circuit “precedent” on this issue, as Petitioner

suggests, it is not found in its opinion below.

Second, Petitioner threatens that “if an individual within

the jurisdiction of the Sixth Circuit suffers from a disability

that includes an inability to interact with co-workers — as Plaintiff

Merrill in the case at bar — such an individual will not be deemed

30

qualified to sustain a claim for discrimination under the ADA

within the bounds of the Sixth Circuit Court of Appeals” (Pet.

28). Once again, Petitioner imagines that the Sixth Circuit

decided something that it did not. Someday -the Sixth Circuit

may decide whether the “interacting with others” is a major life

activity under ADA, and what it means to be “substantially

limited” in that activity. But it was not presented with that

question in this case, and its opinion below cannot possibly be

read to reflect a view on it. The Court expressly stated that it

was not addressing the issue of whether Merrill “was ‘disabled’

within the meaning of the ADA,” which subsumes any issue of

whether Merrill was “substantially limited” in any major life

activity.

The Sixth Circuit left these issues open to be explored and

developed by the District Courts and Circuit Courts in future

cases, as they should be. The Supreme Court should do the same.

CONCLUSION

For the reasons stated above, Respondent respectfully

requests that the Court deny the Petition for a Writ of Certiorari.

Respectfully submitted,

WILLIAM H. FALLON

Counsel of Record

JENNIFER L. JORDAN

MILLER JOHNSON

P.O. Box 306

Grand Rapids, MI 49501-0306

(616) 831-1700

Counsel for Petitioner