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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

(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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1012%3A2. Public record. Not legal advice.