Opposition Brief — ABF Freight System, Inc. v. Webb

i]

VII. Whether this court should deny the petition

because the instruction sought by the petitioner was

embodied within another instruction that the jury was

given?

VIII. Whether this court should deny the petition

because there has been no confusion within the courts of

appeals regarding apportioning damages when there are

multiple factors?

iV

ll. This court should deny the petition

because there was substantial evidence of

collusion between the employer and the

union, and substantial evidence that each

participated in the other's breach ...... 16

Ill. This court should deny the petition

because the employer tried to, and did,

taint the grievance process with the

presentation of fabricated physical

POPU 6 a reed paren erss hess 19

IV. This court should deny the petition

because it seeks to shift the burden

almost totally away from the primary

i, Sa RE A gts hel ete RE: 20

V. This court should deny the petition

because the district court did not

foreclose use of the grievance date

methed of allocating damages, and the

court of appeals said only that it was not

required in every case .............. 21

VI. This court should deny the petition

because the petitioner is actually

contesting the district court’s refusal to

allow an instruction that highlighted only

a small portion of the evidence. ....... 22

VII. This court should deny the petition

because the instruction sought by the

petitioner was embodied within another

instruction that the jury was given .... 24

:

- j

[his court should deny the petition

because there has been no confusion

within the courts of appeals in

apportioning damages when there are

multiple factors

VI

TABLE OF CITED AUTHORITIES

Page

Cases:

Aguinaga v. United Food & Commercial Workers

/nternational Union, 720 F. Supp. 862 (D. Kans.

1989), aff'd in part, rev'd in part, 993 F.2d 1463

(10th Cir. 1993), cert. denied, 510 U.S. 1072

{BPE sara cescstacenteenvanseiexsudeastegaeissscsecsmnccsesues 21, 22, 26

Allen v. Allied Plant Maintenance Co. of Tennes-

see, 881 F.2d 291 (6th Cir. 1989) ooo. 18

Baskin v. Hawley, 807 F.2d 1120 (2d Cir. 1986)... 18

Bennett v. Local No. 66, Glass, Molders. Pottery,

Plastics and Allied Workers International Union.

958 F.2d 1429 (7th Cir, 1992) oooccocccccccccccccceceee. 18

Bowen v. United States Postal Service, 642 F.2d

79 (4th Cir. 1981), rev'd, 459 U.S. 212

ED OMERY cassctyintssosonvascontnavesnsnsstinthessqanssveplcetereseses 18, 26

Insurance Co. v. Baring Bros. & Co..

87 U.S. 159 (1873) coocccecceccecccecesscesscesecseeeccee, 24

Nudd v. Burrows, 91 U.S. 426 (1875) coccccccccccccccee. 23

Smith v. Condry, 42 U.S. 28 (1843) cocccccccceccceeee. . 25

U.S. v. Jones, 33 U.S. 399 (1834) cocooccccococcccccccceee. 23

Vaca v. Sipes, 386 U.S. 171 (1967) cocceccccccccccceceee. 18

In the

Supreme Court of the United States

October Term, 1998

No. 98-1154

ABF FREIGHT SYSTEM, INC..,

Petitioner.

VS.

RICK WEBB,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

Rick Webb (hereinafter ‘“Webb”), by his

undersigned counsel, respectfully opposes the petition for

writ of certiorari to review the judgment of the court of

appeals in this case.

2

OPINION BELOW

The opinion of the court of appeals is reported at

155 F.3d 1230 and is set forth at App. A. la-35a.

JURISDICTION

Respondent accepts the jurisdictional statement in

the Petition.

STATUTORY PROVISION INVOLVED

Respondent accepts the statutory statement in the

Petition.

STATEMENT OF FACTS AND PROCEEDINGS

A. Facts of the Underlying Matter

Omitted or Misstated Facts

This is a fact-specific case in which the jury

determined a myriad disputes within the evidence. These

included pervasive issues of witness credibility,

retaliation against a union steward for his union work,

termination of a union steward for opposing the dispatch

of illegal overweight trucks onto Colorado highways, and

fabrication of physical evidence for use against the same

union steward in grievance proceedings that followed his

3

firing. The jury’s unanimous verdict was in favor of

Webb. The court of appeals found no error and affirmed.

The instant petition is premised upon petitioner’s

request to the trial judge for a certain jury instruction,

which jury instruction on its face did not preserve the

issue that is now presented in the petition.

The instant petition also contains a misstatement

of fact upon which the entire petition is premised, an

assertion by the petitioner that “there has never been any

allegation that the Company and the Union conspired

with each other to deprive Webb of his rights or

otherwise participated in the other’s wrong.” Pet. 22, n.

g.

The trial judge noted otherwise. Most of the case

was premised upon overt collusion between the company

and the union. After plaintiffs evidence was

substantially presented before the jury, the trial judge

stated that she would permit the issue of emotional

damages to go to the jury because of evidence of the

employer’s fabrication of physical evidence in the

grievance hearing, as well as collusion between the

employer and the union. The trial judge summarized the

plaintiff's case after much of the evidence was in, noting

the evidence of collusion:

4

TRIAL COURT: “If, indeed, the

plaintiff's evidence is to be believed -- if the

jury believes it -- that evidence was

fabricated in this case; that there was some

sort of agreements and plans between the

union and the employer... .”

In sum, the petitioner’s statement at Pet. 22. n. 8 is

fatally undermined by an assessment of Webb’s trial

evidence by the trial judge herself.!

The petition omits numerous other pertinent facts

of Webb’s proof at trial, including the aforesaid evidence

that the employer fabricated pivotal physical evidence to

taint the grievance proceeding. Again, the trial judge

noted the presentation of this evidence during trial, and it

is not now necessary to delineate said evidence, fact by

fact, for purposes of the instant petition. Said evidence

was, as the trial court stated, appropriately in the jury’s

domain and weighty enough for jury consideration of

what the trial court called “special damages” for

“extreme and outrageous misconduct.”

' Petitioner inadvertently notes one of the motivations for

the collusion between company and union against Webb,

which was established at trial. Pet. 3, n. 1.

I A eee ee UE eT Te ee ne

)

Petitioner’s Requested Jury Instruction

Petitioner seeks a blanket rule of apportionment of

damages that would require a trial court to instruct the

jury that the union is responsible for all damages after the

date that an untainted grievance proceeding should have

been afforded the grievant.

However, this is not what the petitioner requested

of the trial court. Petitioner (may also be referred to as

“defendant’’) submitted a jury instruction labeled “No. 7”

and made the following argument:

DEFENDANT’S COUNSEL: “With

regard to instruction No. 7 with regard to

allocation, we request an instruction that the

jury should be allowed to separate damages

on the JWAC. Both the Bowen and

Aguinaga cases that is an _ acceptable

amendment for the jury to use, and they

should be instructed they could use that.”

The defendant’s argument was incomprehensible.

Additionally, no defendant’s instruction No. 7 was

placed in the record for the court of appeals to review.

Defendant’s counsel submitted only defendant’s

instruction Nos. 23, 28, 29, 32 and 36. Assuming

arguendo that the referenced (but lost or withdrawn)

instruction No. 7 set forth petitioner's now-espoused

version of apportionment -- that the grievance hearing

date is an absolute cut-off after which all damages

become the union’s responsibility -- even the petitioner's

6

counsel did not express such an extreme view to the trial

court during the preparation of jury instructions. Instead,

defendant’s counsel argued that the jury should be

instructed that it “could” use such a method of

apportionment, as set forth above, not that it “must.”

The only proposed jury instruction that the

defendant’s counsel made part of the record for appellate

purposes on the issue of apportionment was _ its

instruction No. 36:

“You must separate from Rick

Webb’s damages the portion of those

damages attributable solely to the breach of

the National Master Freight Agreement by

ABF Freight System, Inc. from the increase

in those damages caused by Teamsters Local

Union No. 17’s failure to fairly represent

Rick Webb. You may separate these

damages based upon the date of the Joint

Western Area Conference Grievance Panel

decision upholding Mr. Webb’s discharge

for failure to report an accident.” Pet. 5-6,

and App. A. at 37a.

Thus, the proffered instruction by the defendant

contained the phrase “may separate these damages based

upon the date” not “must separate these damages based

upon the date.” In sum, the defendant’s proffered

instruction would have made apportionment by that

method merely optional or voluntary for the jury.

ry

/

The apportionment instruction ultimately selected

and given by the trial judge did not forbid use of such a

method of apportionment based upon the date of the

grievance hearing, nor did it forbid consideration of the

grievance hearing date as a factor in apportioning

damages. The jury was instructed:

“You must apportion any award of

damages between the employer and the union

according to the damages caused by the fault

of each. Damages attributable solely to the

breach of the National Master Freight

Agreement by ABF Freight Systems, Inc.

should not be charged to Teamsters Local

Union No. 17, and increases in those damages

caused by Teamsters Local Union No. 17’s

failure to fairly represent Rick Webb should

not be charged to the employer. The

combined amount of these damages should

make Rick Webb whole.” Pet. 6, and App. A.

at 36a.

Again, at no time did the trial court forbid the jury

from using the date cutoff method of apportionment.

What the trial court refused to do is highlight that single

method or single factor within the jury instructions when

requested to do so by the defendant (but requested

merely as an optional or voluntary method not as a

mandatory method).

8

The jury then apportioned Webb’s damages. The

employer was responsible for $89,699.20, the union

$22,424.80. ,

B. Proceedings in the District Court

Respondent accepts the petitioner’s discussion of

proceedings in the trial court except as discussed supra,

and as follows: the jury instruction conference was

conducted by the trial court on July 16, 1996, and the

trial court afforded opportunity for the parties to argue

for and against jury instructions, and to proffer those

sought. In its petition, the petitioner asserts that at the

close of the trial, the petitioner “requested that the court

instruct the jury that it must apportion Webb’s back pay

damages between the Company and the Union according

to the date of the JWAC hearing.” Pet. 5.

To the contrary, at the jury instruction conference

the petitioner did not make any argument for “must”

apportionment according to date but instead made the

statement cited supra regarding (lost or withdrawn)

instruction No. 7. But even counsel’s statement or

argument regarding instruction No. 7 did not ask for the

“must” language but, at best, asked that the jury be

instructed that it “could” use such an apportionment

method if it wanted to. Thus, the petitioner’s request was

to make such a method optional or voluntary for the jury.

i

— ll

9

The petitioner did submit another instruction

regarding apportionment -- instruction No. 36 -- but it

only called for the “may” language, as discussed supra.

Thus, again, the petitioner requested of the trial court

only that the apportionment method by date be optional

or voluntary for the jury, not that it be mandatory.

Making it mandatory, a different argument altogether, is

the basis of the petition brought now.

The issue of apportionment went to the jury on a

special verdict form with the question: “What amount of

the damages stated in answer 4 is attributable to the

Union, and what amount is attributable to ABF Freight

Systems, Inc.?”

The petitioner’s attorney made no_ specific

objection to this portion of the verdict form and said:

“With respect to the special verdict

form the way the questions are framed, we

don’t think accurately tracks the elements in

the statute.

“We also requested that the jury just

be answering the questions without also

being informed that they couldn’t answer all

the questions depending on the way they

answered them. We would have requested

that the Court merely asked them to answer

the questions without any knowledge of the

impact that would have on the Court’s final

judgment and then have the Court enter

10

judgment in accordance with how they

answered the questions.

“Finally I think this may be being

done; we wanted the allocation done

separately for emotional distress.”

Thus, the petitioner’s counsel did not object

to the apportionment language in the special verdict

form.

The trial court evidence also included substantial

proof that the petitioner had corrupted the grievance

procedure by actually fabricating false physical evidence

against Webb. The manvifactured evidence included

presentation of an oversized and irrelevant tree limb as

well as the rejuvenation of old damage on a trailer to make

it look new and thus allegedly caused by Webb (to justify

his firing). It was this “fabricated” evidence that the trial

judge highlighted in plaintiff's case and in permitting a

rare emotional distress instruction to go to the jury, as

discussed supra.

Thus, if the jury believed the plaintiff's evidence,

the company tried (in multiple ways) to corrupt and taint

the grievance process.

2 This request by the petitioner was granted and the

allocation instruction was repeated to the jury as to

emotional distress. However, the jury did not award any

emotional distress damages.

11

C. Proceedings in the Court of Appeals.

Respondent accepts the petitioner’s discussion of

proceedings in the court of appeals except as follows with

pertinence to the issues of the petition:

The court of appeals stated that the union

representative failed to call any witnesses for Webb during

the grievance hearing and failed to obtain any of the

documents that Webb had requested, breaching his

promise to Webb. App. A. at 6a. The court of appeals

stated that the union representative also failed to object

when a damaged tree limb was characterized as being

eight inches in diameter and about 30 feet long [/d.], and

he generally failed to review the evidence [/d. ].

The court of appeals noted the company’s alleged

tampering with evidence and, in a footnote, discussed

some of it:

The photographs presented at Webb’s

grievance hearing inexplicably show different

kinds of damage to the top right corner of a

trailer, with two photographs showing the

running light on the trailer still present but a

third photograph showing the running light

missing.” App. A. at 7a, n. 7.

The court of appeals stated that the union

representative failed to present Webb’s allegation of

retaliation at the grievance hearing despite having been

asked to, and despite the representative saying “we knew

12

this was coming.” App. A. at 7a. Furthermore, the union

representative apparently told Webb that it was not

necessary for him to be present for the next grievance step

in San Diego because no new testimony or evidence could

be introduced. This was false. App. A. at 7a-7b. In San

Diego the union representative stipulated to admission of

the grossly oversized tree branch submitted by the

company and also made the following statements

undermining Webb’s cause: “I’m not Mr. Webb so I don’t

know exactly what his position would be because he’s not

here to answer that personally... .” “I don’t know why

Mr. Webb did the things that he did at that time.” App. A.

at 8a.

The court of appeals also reiterated that a

reasonable juror could have found that the union

representative failed to present Webb’s retaliation claim

despite the union representative’s belief that Webb’s firing

was retaliatory; that the union representative failed to

follow regular practices for processing grievances; that the

union representative affirmatively misled Webb regarding

grievance procedures in San Diego; that the union

representative affirmatively misled the grievance panel;

that the union representative disparaged his own union

member before the grievance panel; that the union

representative contradicted Webb’s own account of the

incident “by accepting the company’s claims as to the size

of the tree limbs that Webb had hit.” App. A. at 16a, n.

14.

13

The court of appeals found further that, “Indeed,

[the union representative’s] concessions allow a

reasonable inference that Local 17 deliberately attempted

to submarine Webb’s case... .” App. A. at 21a.

The court of appeals was never given the

opportunity to review petitioner’s proposed (but lost or

withdrawn) instruction No. 7, which may have been an

apportionment instruction, as discussed above. Whatever

that instruction said, it was not preserved in the record.

With regard to instructions that the district court did

give to the jury, the petitioner argued that only two of

them incorrectly stated the applicable law -- Nos. 10 and

17. App. A. at 33a. Neither of these instructions was the

apportionment instruction selected by the trial court.

Neither of these instructions is pertinent to issues of the

instant petition.

On the other hand, the petitioner did not object to

the apportionment instruction selected by the district court,

which is instruction No. 23. App. A. at 33a and 36a.

* Instruction No. 10 set forth the elements of the union’s

breach of its duty of fair representation and had nothing to

do with apportionment. Instruction No. 17 contained a

further discussion of the union’s breach of its duty of fair

representation and, likewise, had nothing to do with

apportionment. App. A. at 13a-13b, n. 13; 17a, n. 15; 33a-

33b.

14

Instead, the petitioner submitted another instruction

-- its own No. 36 -- which contained the additional

concept that, “You may separate these damages based

upon the date of the Joint Western Area Conference

Grievance Panel decision upholding Mr. Webb’s

discharge for failure to report an accident.” App. A. at

37a. Again, the verb was “may,” not “must,” and the

court of appeals noted that petitioner’s argument before

the court of appeals was as follows:

“ABF argues that its damages should

have been capped as a matter of law to those

wages that Webb lost prior to the grievance

proceedings and that the district court erred

in giving the jury its proportionate fault

instruction.” App. A. at 26a.

At the time of the jury instruction conference,

however, the petitioner did not argue that “damages

should have been capped as a matter of law.” Instead, as

discussed supra, the petitioner submitted an instruction

that would have made such a method of calculation

optional or voluntary for the jury [“may” separate the

damages based upon the grievance hearing date]. App. A.

at 37a. When given the opportunity to put objections on

the record, the petitioner’s counsel then argued orally only

that the jury “should be instructed they could use that.”

[emphasis added]. Again, there was no request at the jury

instruction conference that the damages be capped as a

matter of law, only that the jury “could” use such a

method of calculation if it wished to.

15

The instant petition is premised upon the desire for

a requirement that an employer’s damages must be capped

as a matter of law as of the date of the grievance hearing.

The court of appeals disapproved petitioner’s

requested instruction No. 36.4 It ruled:

“We have reviewed each of ABF’s claims, and in

each instance, the language proposed by ABF either was

adequately conveyed by the instructions the court did give,

constituted an incorrect statement of the law, or was

without evidentiary support. Therefore we find no abuse

of discretion.” App. A. at 34a.

REASONS FOR DENYING THE WRIT

I. THIS COURT SHOULD DENY THE PETITION

BECAUSE IT SEEKS A RULE OF LAW THAT

WAS NOT REQUESTED OF THE TRIAL

COURT.

At the jury instruction conference, the petitioner’s

counsel did not request an instruction requiring a

mandatory cut-off of the employer’s damages as of the

date of the flawed grievance hearing. Instead, the

petitioner’s counsel requested only that the jury “may”

or “could” use such a cut-off formula. That is a far cry

4 The court of appeals also disapproved four other

instructions that petitioner submitted. They were unrelated

to the issue of apportionment. App. A. at 34a.

16

from the absolute cut-off that petitioner now seeks as a

matter of law.

Moreover, at the jury instruction conference, the

petitioner's counsel did not object to the apportionment

instruction that the trial judge did select to give to the

jury. Instead, counsel provided only his own version of

an apportionment instruction, which used the grievance

date cut-off as an optional or voluntary consideration for

the jury.

Granting the instant petition will rather grossly

undermine trial court procedures employed by virtually

every district court in the land. Jury instruction

conferences, in which counsel are required to object

and/or proffer their own instructions, would be obviated

and counsel could thereafter bring up new instructions

and new legal concepts for appellate purposes that were

not addressed at the j jury instruction conference.

Il. THIS COURT SHOULD DENY THE PETITION

BECAUSE THERE WAS SUBSTANTIAL

EVIDENCE OF COLLUSION BETWEEN THE

EMPLOYER AND THE UNION, AND

SUBSTANTIAL EVIDENCE THAT EACH

PARTICIPATED IN THE OTHER'S BREACH.

As the trial judge recognized, Webb’s evidence was

substantially premised upon collusion between the

employer and the union. This was one of the reasons that

the trial court permitted the issue of emotional distress

damages to go to the jury, as discussed supra.

17

Petitioner has conceded that where an employer

and union collude, or participate in each other’s breach, it

is appropriate not to apportion damages at all:

PETITIONER: “Where the employer

and union collude with each other in

breaching a collective bargaining agreement

and denying an employee the effective

processing of a grievance, it is appropriate not

to apportion damages at all, but instead to hold

the union and employer jointly and severally

liable.” Pet. 22, n. 8.

There was indeed such evidence of collusion in the

instant case -- as to all aspects of the grievance process,

including the identification and presentation of evidence

and argument -- that the trial court discussed it as

something the jury could believe (“if the jury believes it”).

Moreover, and as discussed supra, the same

evidence confirmed that the employer and the union

participated in each other’s breach, particularly as to the

identification and presentation of evidence during the

grievance process, not to mention agreements reached

before hearing for the union to not even examine the

employer’s fabricated physical evidence and to stipulate to

its admission or exaggerated description. Additionally,

the evidence of union agreement as to certain falsely

damaging evidence against Webb was highlighted by the

court of appeals. In sum, the court of appeals observed

evidence that permitted the inference that the union

“deliberately attempted to submarine Webb's case. 2

App. A. at 2la. Most of that evidence was of acts

committed in conjunction with the employer before and

during the grievance process.

18

Indeed, as the trial court stated, there was evidence

from which the jury could believe that “there was some

sort of agreements and plans between the union and the

employer,” as discussed supra.

Thus, the instant case presented a classic fact

pattern for joint and several liability, let alone

apportionment in an 80-20 percent ratio. See, Bowen v.

United States Postal Service, 642 F.2d 79 (4th Cir. 1981),

rev'd 459 U.S. 212, 223, n. 11 (1983) (distinguishing

those situations where “the union or the employer has

participated in the other’s breach”); Vaca v. Sipes, 386

U.S. 171, 197, n. 18 (1967) (obviating joint liability when

the employer and union “played no part” or “took no part”

in the other’s breach); Baskin v. Hawley, 807 F.2d 1120,

1132 (2d Cir. 1986) (finding it appropriate to assess joint

and several liability when an employer participated in the

union’s breach); Allen v. Allied Plant Maintenance Co. of

Tennessee, Inc., 881 F.2d 291, 298-99 (6th Cir. 1989)

(joint and several liability is appropriate when an

employer “has participated in the union’s breach of duty

*); Bennett v. Local Union No. 66, 958 F.2d 1429,

1440 (7th Cir. 1992) (“The rationale behind apportionment

of damages disappears when each party plays an active

role in the other’s breach.”)

Again, serious issue is taken with the petitioner’s

assertion of fact in the last sentence of Pet. 22, n. 8. To

the contrary, Webb’s evidentiary presentation was

premised upon collusion between employer and union, and

recognized by the trial court as such. Thus the instant case

is, for that reason alone, inappropriate to establish a

mandatory apportionment formula for all future cases

throughout the land, as petitioner would wish.

19

lil, THIS COURT SHOULD DENY THE

PETITION BECAUSE THE EMPLOYER

TRIED TO, AND _ DID, TAINT THE

GRIEVANCE PROCESS WITH’ THE

PRESENTATION OF FABRICATED

PHYSICAL EVIDENCE.

Lest it be overlooked in this quest by the petitioner

for blanket law, the facts themselves controlled almost

everything that happened in this case. Indeed, the jury

was entitled to believe (if it chose to) that the employer

fabricated physical evidence and presented it in the

grievance process. The trial court noted, “if the jury

believes it -- that evidence was fabricated in this case.”

The court of appeals discussed certain aberrant evidence

the employer presented in the grievance process. App. A.

at 6a and 7a, n. 7. And the court of appeals stated,

“Because of the jury’s verdict in favor of the appellee, our

review of the evidence is presented here in the light most

favorable to the appellee.” App. A. at 2a, n. 1.

Now the petitioner seeks to have its liability cut off

absolutely, totally, and automatically as of the date of the

very grievance hearing that it tainted with fabricated

physical evidence. Under these facts, such a rule of law

would be incongruous at best. At worst, it would directly

reward the wrongdoer and undermine grievance

proceedings nationwide.

20

IV. THIS COURT SHOULD DENY THE PETITION

BECAUSE IT SEEKS TO SHIFT THE BURDEN

ALMOST TOTALLY AWAY FROM’ THE

PRIMARY WRONGDOER.

The petitioner’s argument is that, as a matter of

law, its obligation for damages should have been cut off as

of the date of the flawed grievance hearing. Thus, the

petitioner would have been responsible for only a tiny

fraction of Webb’s damages.

Such a rule of law would assure that in most cases

the primary wrongdoer, the employer who fired the

employee for bogus or retaliatory reasons in the first place,

would escape liability for all but a small portion of the

damages.

As the court of appeals wrote, a proportionate fault

system of allocating damages “ensures that the ‘primary

wrongdoer’ shoulders an appropriate burden, especially

when an allocation of damages based on the grievance

date would shift a disproportionate amount of damages

onto the party that was less at fault.” App. A. at 27a.

One can imagine the potential upheaval in

organized labor if employers understood as a matter of law

that they could terminate a union member for false, extra-

contractual or retaliatory reasons, knowing that the

employers’ damages would be quickly capped -- capped

no matter what -- a mere few weeks later, at the time of

the grievance hearing.

Thus, the decision of the court of appeals evinced

both common sense and sound public policy.

21

V. THIS COURT SHOULD DENY THE PETITION

BECAUSE THE DISTRICT COURT DID NOT

FORECLOSE USE OF THE GRIEVANCE DATE

METHOD OF ALLOCATING DAMAGES, AND

THE COURT OF APPEALS SAID ONLY THAT

IT WAS NOT REQUIRED IN EVERY CASE.

In quoting its own decision in Aguinaga v. United

Food & Commercial Workers International Union, 720 F.

Supp. 862 (D. Kans. 1989), aff'd in part, rev'd in part,

993 F.2d 1463, 1477 (10th Cir. 1993), cert. denied, 510

U.S. 1072 (1994), the court of appeals stated in the instant

case that the hypothetical grievance date method of

allocating damages “is not required in every hybrid case

.... App. A. at 27a.

This is a far cry from forbidding its use altogether

-- or forbidding it at all -- which the court of appeals did

not do. The petitioner now seeks to seize said decision to

establish the converse, i.e. that the grievance date method

must be used in every case as a matter of law.5

Moreover, the district court did not forbid the jury

from considering -- or the attorneys from arguing -- the

grievance cut-off as either a method of apportionment or

as a factor in apportionment. All the trial court did was

decline to read an instruction that the jury “may” consider

the grievance cut-off in its apportionment. This was the

only instruction submitted on the issue by the petitioner

° And petitioner seeks such a result even in this case

involving collusion and tainted grievance proceedings --

seeking universal application of the date cut-off method of

apportionment.

22

and preserved in the record (instruction No. 36). App. A.

at 33a-34a and 37a.

Thus, the axiom that the grievance date method

need not be used in every fact pattern is established in the

instant Case, just as it was in Aguinaga, supra.

As a writ of certiorari was denied in Aguinaga, 510

U.S. 1072, so should it be denied herein.

VI. THIS COURT SHOULD DENY THE PETITION

BECAUSE THE PETITIONER IS ACTUALLY

CONTESTING THE DISTRICT COURT’S

REFUSAL TO ALLOW A JURY INSTRUCTION

THAT HIGHLIGHTED ONLY A SMALL

PORTION OF THE EVIDENCE.

While the petitioner now seeks a blanket rule that

the grievance cut-off method of apportionment must be

used in every case as a matter of law, that 1s not what the

petitioner asked of the trial court. Instead, as discussed

supra, the petitioner merely asked for an instruction that

the jury “may” consider the cut-off date -- not that it

“must.” App. A. at 37a.

As such, the last sentence in the petitioner’s

submitted but refused instruction No. 36 would have had

no more nor less effect than to call attention to a small

portion of the evidence bearing on apportionment. Calling

attention to only one item of evidence on the issue of

apportionment might have had the effect of confusing the

jury and shifting its attention from other weighty evidence

23

of the employer’s persistent and palpable wrongdoing, i.e.

away from other multiple factors supporting a larger

apportionment of damages against the employer.

At best, a court’s advising a jury as to evidentiary

matters is discretionary. Nudd v. Burrows, 91 U.S. 426.

439 (1875). Thus, the trial court in this case did not abuse

its discretion in refusing to highlight just one factor in

apportioning damages, namely the grievance hearing date.

At worst, advising a jury as to the scope of the evidence,

its impact or calling attention to a particular item of

evidence is error. Young v. Godbe, 82 U.S. 562, 565

(1872).

Indeed, the instruction requested by petitioner

(instruction No. 36) would have been misleading unless it

had said that the jury could consider the grievance date

“among other factors” in its apportionment of damages.

The petitioner did not request that of the trial court. It is

axiomatic that a jury ree that is misleading is thus

properly refused. U.S. v. Jones, 33 U.S. 399, 415-16

(1834); Winn v. Tdi 34 U.S. 663, 679 (1829).

A party is not entitled to such an instruction that

assumes the existence of a fact that is actually an issue to

be determined by the jury. Winn, supra, at 678-79.

24

Vil. THIS COURT SHOULD DENY THE PETITION

BECAUSE THE INSTRUCTION SOUGHT BY

THE PETITIONER WAS EMBODIED WITHIN

ANOTHER INSTRUCTION THAT THE JURY

WAS GIVEN.

It is also axiomatic that there is no need to give a

jury instruction that is already embodied in another

instruction. /nsurance Co. v. Baring Bros. & Co., 87 U.S.

159, 161 (1873). In the instant case, the trial court gave an

instruction to the jury that permitted it to apportion

damages “between the employer and the union according

to the damages caused by the fault of each.” App. A. at

36a. Moreover, the trial court’s instruction required that

damages attributable to the union “should not be charged

to the employer.” /d.

Thus, the instruction given the jury embodied the

very concept that the petitioner sought in its refused

instruction No. 36, namely that the employer not be

charged with damages attributable to the union. App. A.

at 37a.

Finally, the instruction requested by the petitioner

but refused, Instruction No. 36, would have been a

misstatement of the law, because it would have denied the

jury’s right to apportion damages based upon other

factors, including the collusion between employer and

union in the case, as discussed supra, and the employer’s

tainting of the grievance proceeding itself with the

introduction of faked physical evidence.6 A requested

° Given the employer's tainting of the grievance process,

with evidence thereof viewed in a light most favorable to

Webb and unfavorable to the employer, the employer did

25

instruction cannot leave out of view other evidence that

the jury may consider on an issue. Refusing such a one-

sided instruction is not error. Smith v. Condry, 42 U.S. 28,

35 (1843).

Vill. THIS COURT SHOULD DENY THE

PETITION BECAUSE THERE HAS BEEN NO

CONFUSION WITHIN THE COURTS OF

APPEALS REGARDING APPORTIONING

DAMAGES WHEN THERE ARE MULTIPLE

FACTORS.

Again, the petitioner seeks a decision that the

grievance hearing date ipso facto cuts off an employer's

liability and does so as a matter of law. The courts of

appeals, including the court of appeals in both the instant

case and in Aguinaga, supra, have consistently ruled that

the grievance hearing date is one factor to be weighed, but

certainly not the only one in all cases. In those rare cases

where the grievance date appeared to serve as a cut-off for

the employer’s damages, said decisions were evidence-

specific and fact-limited.

not prove at trial that the grievance process would have

ended Webb’s damages. With the employer's use of

fabricated physical evidence, there is no assurance that

Webb would have prevailed in the grievance hearing even

with proper union representation. Thus, his damages

would have continued past the grievance hearing, having

still been caused either solely or primarily by the wrongful

conduct of the employer.

26

Contrary to petitioner’s suggestion, Bowen v. United

States Postal Service, 642 F.2d 79 (4th Cir. 1981), rev'd, 459

U.S. 212 (1983) did not mandate the ignorance of all other

factors bearing on the issue of apportionment. Indeed, the

court did not decide at all whether the district court’s

instructions on apportionment of damages were proper.

Bowen, 459 U.S. at 230, n. 19. The court added: “Nor is it

necessary in this case to consider whether there were degrees

of fault, as both the Service and the Union were found to have

acted in ‘reckless and callous disregard of [Bowen’s] rights’.”

Id.

Said footnote not only obviated much of the dissent in

Bowen but eliminates said decision altogether as any kind of

polestar for the sweeping and exclusive rule of law that

petitioner seeks now. In Bowen, the court simply did not say

that a grievance hearing date is ipso facto the damage cut-off

point for the employer in all cases. After Bowen, the courts of

appeals were certainly free to use such a factor or to assess

degrees of fault in some other fashion, or in some combined

fashion, based upon the realities of a given case.

This is precisely why the court of appeals in the instant

case wrote, in citing Aguinaga, supra, that apportionment of

damages premised upon the inhi hearing date “is not

required i in every hybrid case .. App. A. at 27a.

Indeed, such a rule cutting off an employer's damages

ipso facto because of the occurrence of a grievance hearing

flies in the face of common sense, fairness and traditional

notions of causation. It would be like absolving a drunk

driver of responsibility for the suffering and ensuing death of

the pedestrian he hit with his car solely because the

ambulance got there late.

27

CONCLUSION

For the reasons given above, the petition should be

denied.

Respectfully submitted,

DIANE MacARTHUR BROWN

Counsel of Record

JOHN R. OLSEN

OLSEN & BROWN L.L.C.

Attorneys for Respondent

8362 Greenwood Drive

Niwot, Colorado 80503

February 19, 1999 (303) 652-1133