Opposition Brief — Monaco v. American General Assurance Co.

Y "—"SupsemeCourt.U'S ~

Sit ae FILED

ose JUL 26 2004

No. 03-1593

7 al aa

IN THE

Supreme Court of the United States

ROBERT R. MONACO,

Petitioner,

y,

AMERICAN GENERAL ASSURANCE COMPANY,

AMERICAN GENERAL CORPORATION, WILLIAM LEARY,

JOHN DOE, AND RICHARD ROE,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNiteED STATES Court OF APPEALS For THE THIRD CIRCUIT

BRIEF IN OPPOSITION

THOMAS J. BARTON

Counsel of Record

y KIMBERLY M. CorFFINA

DRINKER BIDDLE & REATH LLP

ONE LOGAN SQUARE

18" and Cherry Streets

Philadelphia, PA 19103

(215) 988-2834

4

"

Counsel for Respondents

188706 ce

COUNSEL PRESS

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

i

QUESTIONS PRESENTED

1. Did the Third Circuit correctly hold that the

New Jersey State Supreme Court’s decision in Bergen

Commercial Bank v. Sisler, 723 A.2d 944 (N.J. 1999) requires

a party who raises a claim of age discrimination under the

New Jersey Law Against Discrimination (“LAD”), N.J.S.A.

§ 10:5-12a to demonstrate that he was replaced by someone

sufficiently younger as part of his prima facie case?

2. Did the Third Circuit correctly hold that Petitioner

Robert Monaco failed to establish a prima facie case where

Petitioner’s replacement was three years older than Petitioner

and the employees against whom Petitioner sought to

compare himself were not “similarly situated?”

ll |

RULE 29.6 STATEMENT

Respondents American General Assurance Company

(“American General’) and American General Corporation

(““AGC’”’) are wholly owned by American International Group,

Inc. (“AIG”) which is a publicly held company.

bres

Ul

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................

RULE 29.6 STATEMENT .................... li

TABLE OF CONTENTS...................... ili

TABLE OF CITED AUTHORITIES ............ Vv

OPINIONS BELOW ......................... l

STATEMENT OF JURISDICTION ............. l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................. l

STATEMENT OF FACTS ..................... l

REASONS FOR DENYING THE PETITION .... 4

I. THIS CASE RESTS SOLELY ON WELL-

SETTLED NEW JERSEY LAW THAT HAS

BEEN DECIDED BY THE NJ SUPREME

NR 2a vdeo des a eecceu 4

A. The Third Circuit Correctly Applied The

Law Of The State’s Highest Court.

eR ETE Te ee Te ee 4

B. The Third Circuit Properly Rejected Two

Intermediate State Court Decisions That

Misinterpreted Sisler. .............. 8

iii iiss

lv

Contents

Page

Il. THERE IS NO CONFLICT IN THE

CIRCUITS REGARDING THE SCOPE

OF THE “SIMILARLY SITUATED” |

REQUIREMENT AND THERE IS NO

COMPELLING REASON FOR THE

COURT TO. ADDRESS IT. .........0005. 10

Boh eee rer reer errr rT rr eee Ty 13

oe eS “e

TABLE OF CITED AUTHORITIES

Page

CASES .

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

(3d Civ. 2002) nce ccceneresverssuserees 3, 6, 11

Arizonans for Official English v. Arizona, 520 U.S.

errr rere reo 8

Baker v. National State Bank, 711 A.2d 917

(N.J. Super. Ct. App. Div. 1998) .........---. 10

Bergen Commercial Bank y. Sisler, 723 A.2d 944

(NJ. 199) oo ck ccc wtewccewenrcveseurnees passim

Butner v. United States, 440 U.S. 48 (1979) ...... 4

Commissioner v. Estate of Herman J. Bosch,

387 U.S. 456 (1967) .. nce cecsececvenewess 8

Constantino v. Borough of Berlin, 791 A.2d 1118

(N.J. Super. Ct. App. Div. 2002) ...........-. 7,9

Del Sanotro v. Cendant Corp., 223 F. Supp. 2d 563

(D. NJ. 200Z) onc ovecvvcaneswencnseeeess 10

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d

344 (6 Cir. 1998) ..... cece cece reece ences 13, 32

Geldreich v. American Cyanamid Co., 691 A.2d 423

(N.J. Super. Ct. App. Div. 1997) .......+---.. 10

VI

Cited Authorities

Page

Granziel v. City of Plainfield, 652 A.2d 227

(N.J. Super. Ct. App. Div. 1995) ............. 1, i2

Greenberg v. Camden County Vocational and

Technical Schools, 708 A.2d 460 (N.J. Super. Ct.

AGS. DU. TIGR) 666i 0945sses eee eee 10

Kelly v. Bally's Grand, Inc., 667 A.2d 355

(N.J. Super. Ct. App. Div. 1995) ............. 7,10

Lawrence v. National Westminister Bank, 98 F.3d 61

(SOG TPPEE 06000040005 9enst eee 7

Leavitt v. Jane L., 518 U.S. 137 (1996) .......... 4,5

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

+ Ls) PPPOE RPE Tre re ee 6,7

Monaco vy. American General Assurance Co. et al.,

359 F.36 BGG (56 Cig, SOG) nc cccccccccccnes passim

NLRB vy. Hendricks County Rural Elec.

Membership Corp., 454 U.S. 170 (1981) ...... 12

Petrusky v. Maxfli Dunlop Sports Corp., 775 A.2d

723 (N.J. Super. Ct. App. Div. 2001) .......... 8,9

Reynolds v. Palnut Co., 748 A.2d 1216 (N.J. Super.

Ct. AMD. TN. BORee 4065 04005058 eee 8,9

Vii

Cited Authorities

Page

Salve Regina College v. Russell, 499 U.S. 225 (1991)

PT PP ore Pr ere yore Tey T Tree eT er eee 8

Swider v. Ha-Lo Indus., Inc., 134 F. Supp. 2d 607

eh ie, Se + i00sdab weed ane sees ences 9

Texas v. Mead, 465 U.S. 1041 (1984) ........... 12

United States v. Abel Cosmo Galletti, 1248. Ct. 1548

SE vs oboe vb edeeedeekouneneuneusuaeas es 9

United States v. Johnson, 268 U.S. 220 (1925) .... 12

United States v. S.A. Empresa De Viacao Aerea Rio

Grandense, 467 U.S. 797 (1984) ........0006- 4

Wharf (Holdings) Ltd. v. United Int'l Holdings, Inc.,

Se Ce EE: ob obenened ¥6esdeutenees 4

STATUTES

ry SIR Fo Os (| errr rrrrrrerer rrr rs l

NWIJGA. $6 10:5-128, 120 oc ccccccccscneses i, 1,3, 4,6

RULE

Se eS rrr rrr rr rT ryt oe 13

l

OPINIONS BELOW

The Respondents American General, AGC, and William

Leary respectfully request that this Court deny the petition

for writ of certiorari, seeking review of the Third Circuit's

opinion in Monaco v. American General Assurance Co.

et al., 359 F.3d 296 (3d Cir. 2004).

STATEMENT OF JURISDICTION

The Third Circuit entered judgment on February 23,

2004. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case presents an issue solely of state law under

the New Jersey Law Against Discrimination (“LAD”),

N.J.S.A. § 10:5-12a.

STATEMENT OF FACTS

American General sells insurance products to employers

and associations, as well as credit, life and disability products

to financial institutions. The Petitioner Robert Monaco

(‘‘Petitioner” or “Mr. Monaco”) was hired in 1975 by United

States Life, American General’s predecessor. In 1988, the

Company promoted Mr. Monaco to Vice President of Sales

for the Eastern Region, a position Mr. Monaco held for eleven

years. As a Vice President, Mr. Monaco had far-reaching

responsibilities, including coordinating insurance sales from

Maine to Virginia, and overseeing American General’s offices

in New Jersey, Connecticut, Boston, Philadelphia, New York

2

and the Southeast Region. (Ja 217).!Mr. Monaco also

recruited, hired, trained and supervised new branch managers

and other employees who served under him, and acted as a

liaison between the home office and the general agent sales

force. (Ja 119; Ja 121). Mr. Monaco’s responsibilities were

in stark contrast to the branch managers beneath him who

were solely responsible for their individual sales offices.

(Ja 128).

In May 1999, American General had two Regional Vice

Presidents of Sales: Mr. Monaco, the Vice President of Sales

for the Eastern Region and Mr. Robert Shaw, the Vice

President of Sales for the Western Region. Mr. Monaco

testified at his deposition that his and Mr. Shaw’s positions

were identical in scope and that they were the only two

similarly situated employees in the Company. (Ja 125).

In late 1998, American General decided to exit the group

medical insurance business due to serious financial losses.

Because approximately sixty percent of the sales in

Mr. Monaco’s Eastern region were group medical sales, sales

volume in the Eastern region would decline significantly.

In response, American General consolidated its operations

and reduced its workforce. As part of the consolidation,

American General combined the positions of Eastern and

Western Regional Vice Presidents of Sales under Mr. Shaw.

At the time, Mr. Shaw, who was born on September 21, 1943,

was almost 56 years old and nearly three years older than

Mr. Monaco. American General decided to retain Mr. Shaw

instead of Mr. Monaco because the company wanted to

maintain a senior management sales presence in the West

1. References to the Reproduced Record filed with the Third

Circuit will be made as follows: “Ja [page number].”

3

where Mr. Shaw was located. (Ja 99). The Company already

had senior level managers located in the East, including

American General’s President and other high-level officers.

On or around June 14, 1999, Mr. William Leary, American

General’s Senior Vice President of Sales and Marketing,

informed Mr. Monaco of his layoff, effective on July 1, 1999.

Thereafter, Mr. Shaw assumed the day-to-day responsibilities

and management of the Eastern regional offices. (Ja 99).

Mr. Monaco brought his action on June 11, 2001, in the

Superior Court of New Jersey, Monmouth County,

Law Division, alleging age discrimination under the

New Jersey Law Against Discrimination (“LAD”), N.J.S.A.

§§ 10:5-12a and 12e and for breach of contract. On August

2, 2001, Respondents removed the case to the United States

District Court for the District of New Jersey based on

diversity. On October 25, 2002, the District Court granted

Respondents’ Motion for Summary Judgment. Petitioner

appealed that Order to the Third Circuit on November 7,

2002. In a published opinion, the Third Circuit affirmed the

Court’s Order that Mr. Monaco had failed to establish 2 prima

facie case of age discrimination under the LAD. The Third

Circuit, consistent with the New Jersey Supreme Court’s

decision in Bergen Commercial Bank v. Sisler, 723 A.2d 944,

953 (N.J. 1999), rejected Mr. Monaco’s contention that the

LAD did not require him to demonstrate that he was replaced

by someone sufficiently younger as part of his prima facie

case. The Third Circuit further relied on its decision in

Anderson v. Consolidated Rail Corp., 297 F.3d 242, 250 (3d

Cir. 2002) to reject Mr. Monaco’s attempt, in the alternative,

to compare himself against several lower-level branch

managers who were younger than Mr. Monaco because these

branch managers were not “similarly situated.”

4

REASONS FOR DENYING THE PETITION

I. THIS CASE RESTS SOLELY ON WELL-SETTLED

NEW JERSEY LAW THAT HAS BEEN DECIDED

BY THE NEW JERSEY SUPREME COURT.

A. The Third Circuit Correctly Aj. plied The Law Of

The State’s Highest Court.

Petitioner asks this Court to reverse the Third Circuit’s

interpretation and application of the New Jersey Law Against

Discrimination (“LAD”), N.J.S.A. § 10:5-12a. This Court

traditionally denies petitions for certiorari solely to review

applications of state law. See Wharf (Holdings) Ltd. v. United

Int’l Holdings, Inc., 532 U.S. 588, 596 (2001); United States

v. S.A. Empresa De Viacao Aerea Rio Grandense, 467 U.S.

797, 816 (1984); Butner v. United States, 440 U.S. 48, 58

(1979). This Court considers the circuit courts the expert

tribunals as to the laws of the state within their circuits and,

therefore, their interpretation and application of state law

are accorded great deference. S.A. Empresa, 467 U.S. at 676.

See also Butner, 440 U.S. at 57-58 (“federal judges who deal

regularly with questions of state law in their respective

districts and circuits are in a better position than we to

determine how local courts would dispose of comparable

issues”). Furthermore, the decision of a federal court on a

question of state law is not binding on state courts, and a

decision on a state law issue by a court of appeals does not

provide “the national significance that is the typical predicate

for the exercise of [the Court’s] jurtsdiction.” Leavitt v. Jane

L., 518 U.S. 137, 145 (1996) (Stevens, J., dissenting). There

is no reason for the Court to depart from this sound practice

in this case.

5

Petitioner seeks certiorari on the grounds that the Third

Circuit “nullified” New Jersey law when it held Petitioner

failed to state a claim under the LAD.* However, in this case,

the Third Circuit did not contravene a state statute or overrule

a decision by the state’s highest court, but merely disagreed

with a flawed interpretation of the state discrimination statute

that was clearly at odds with the rulings of the state’s highest

court. Even a superficial reading of the Third Circuit’s

opinion reveals that the Court followed the New Jersey

Supreme Court’s decision in Bergen Commercial Bank v.

Sisler, 723 A.2d 944, 953 (N.J. 1999), and prior state

decisional law in holding that Mr. Monaco failed to satisfy

the fourth prong of his prima facie case because he could not

demonstrate that he was replaced by a younger employee.

Monaco v. American General Assurance Co., 359 F.3d 296,

302 (3d Cir. 2004). Mr. Monaco had to concede that he was

replaced by someone nearly three years older.

In Sisler, the New Jersey Supreme Court addressed

whether a 25-year-old worker could assert a reverse age

discrimination claim under the LAD. * To accommodate

2. Petitioner erroneously cites Leavitt v. Jane, 518 U.S. 137

(1996) to claim that the Third Circuit disregarded New Jersey LAD

law. Such a comparison is disingenuous. The Jane Court granted

certiorari on an issue of state law only because the circuit court

blatantly disregarded language in a state statute that specifically

instructed courts on how to treat the statute. Here, the Third Circuit

followed the prevailing state law on the LAD as set forth in Sis/er

and subsequent federal and state court decisions interpreting the LAD.

3. The LAD provides:

It shall be an unlawful employment practice, or, as the

case may be, an unlawful discrimination ... for an

(Cont’d)

6

reverse age discrimination claims, the Sis/er Court modified

the first prong of the prima facie case under the McDonnell

Douglas burden-shifting analysis originally developed by the

federal courts in Title VII discrimination cases which requires

that an employee demonstrate that he belongs to a protected

class. Sisler, 723 A.2d at 955; McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). The Sisler Court outlined the

prima facie case in traditional age discrimination claims as

follows: a plaintiff must demonstrate that he: (1) was a

member of a protected class; (2) was qualified for the

position at issue; (3) suffered an adverse employment action;

and (4) was replaced by someone sufficiently younger to raise

an inference of age discrimination. * Sis/er, 723 A.2d at 956.

The Sisler Court modified the first element of a prima facie

case in reverse age discrimination cases to require a

heightened standard whereby the employee must show

“background circumstances supporting the suspicion that the

defendant is the unusual employer who discriminates against

the majority.” Jd. at 959. .

While Sis/er focused on the first prong of the prima facie

case, it expressly reaffirmed the fourth element of the prima

(Cont’d)

employer, because of the... age. . . of any individuals

... to refuse to hire or employ or... discharge. . . from

employment.

N.J.S.A. § 10:5-12a.

4. Recognizing that the fourth element is inappropriate in a

reduction in force, the Third Circuit has held that the fourth element

is satisfied by showing that the employer retained sufficiently

younger, similarly situated employees. Anderson v. Consolidated Rail

Corp., 297 F.3d 242, 250 (3d Cir. 2002).

7

facie case, which requires proof of a replacement who is

“sufficiently younger” (or older as the case may be) to permit

an inference of age discrimination:

Under the LAD, which specifies no qualifying age,

courts have modified the fourth element to require

a showing that the plaintiff was replaced with a

‘candidate sufficiently younger to permit an

inference of age discrimination.’

Id. at 956 (quoting Kelly v. Bally’ Grand, Inc., 667 A.2d

355, 359 (N.J. Super. Ct. App. Div. 1995)).

The Third Circuit was not at liberty to ignore Sisler’s

language that recognized the necessity of a sufficient age

differential between the terminated employee and his

replacement. Monaco, 359 F.3d at 302. The Third Circuit

noted: “It is clear from Sis/er that when the Supreme Court

of New Jersey set out the fourth element of the McDonnell

Douglas prima facie case framework in an age discrimination

case it regarded that standard as appl.cable in both traditional

and reverse age discrimination cases.” Jd. at 303.

Accordingly, the Court correctly held that Petitioner failed

to state a claim of age discrimination because Mr. Shaw, the

5. The Third Circuit’s conclusion is well-rooted in state and

federal law. On the whole, courts have not deviated from the federal

standard that requires a plaintiff to demonstrate that he or she was

replaced by a sufficiently younger person to create an inference of

age discrimination and, in this regard, have interpreted the LAD

consistently with the ADEA. See, e.g., Lawrence v. National

Westminister Bank, 98 F.3d 61, 65-66 (3d Cir. 1996); See also

Constantino v. Borough of Berlin, 791 A.2d 1118, 1123, n.6

(N.J. Super Ct. App. Div. 2002) (“the analysis of an ADEA claim

and a LAD claim have been found to be identical”).

8

Western Regional Vice President who assumed Mr. Monaco’s

duties following his termination, was three years older.°®

B. The Third Circuit Properly Rejected Two

Intermediate State Court Decisions That

Misinterpreted Sisler.

The Third Circuit refused to follow two New Jersey

appellate court decisions, Petrusky v. Maxfli Dunlop Sports

Corp., 775 A.2d 723 (N.J. Super. Ct. App. Div. 2001)

and Reynolds v. Palnut Co., 748 A.2d 1216 (N.J. Super. Ct.

App. Div. 2000), which incorrectly interpreted Sis/er.

A federal court is not required to foilow the decisions of

intermediate state court decisions where it is convinced that

the highest court of the state would decide otherwise.

Commissioner v. Estate of Herman J. Bosch, 387 U.S. 456,

465 (1967). In Petrusky and Reynolds, the New Jersey

Appellate Division inexplicably read Sisler to suggest that

the fourth prong requiring proof of an age differential

sufficient to infer discrimination was added because of the

heightened burden imposed by reverse discrimination

cases and should not exist in traditional discrimination cases.

Sisler said nothing of the kind; it only modified the first prong

of the prima facie case regarding being a member of the

protected class. Subsequent courts have flatly rejected

6. Only novel and unsettled questions of state law are

appropriate for state certification. Arizonans for Official English v.

Arizona, 520 U.S. 43, 79 (1997). Petitioner’s citation to Salve Regina

College v. Russell, 499 U.S. 225, 237 (1991) to support his

certification argument is misplaced. The Court in Russell considered

the proper standard of review for courts of appeals to adhere to when

reviewing state law determinations of district courts.

9

Petrusky and Reynolds. In Swider v. Ha-Lo Indus., the District

Court confronted the very same issue and held:

This Court does not agree with the Reynolds

court’s interpretation of Sis/er. A careful reading

of the New Jersey Supreme Court’s opinion in

Sisler suggests the error of the Reynolds court’s

ways. While the Reynolds court is correct that the

New Jersey Supreme Court has created a

heightened standard of proof for establishing a

prima facie case in reverse discrimination cases,

the heightened showing is as to the first part of

the four-part prima facie case, not the fourth. The

fourth prong remains unchanged in age

discrimination cases, whether they are traditional

or reverse.

134 F. Supp. 2d 607, 624 (D. N.J. 2001).

Not only are these decisions based on a misinterpretation

of Sisler, as the Third Circuit pointed out, Petrusky and

Reynolds would lead to an absurd result where practically

every terminated employee would be able to establish a prima

facie case of age discrimination without consideration of age.

Monaco, 359 F.3d at 303.

As an alternative grounds for arguing that the LAD does

not require Petitioner to demonstrate that someone

sufficiently younger replaced him, Petitioner relies for the

first time upon State Model Jury Charge 2.21.’ Model jury

7. Petitioner did not raise this issue before the Third Circuit or

the District Court. Respondents contend that he has waived

this argument. United States v. Abel Cosmo Galletti, 124 S. Ct. 1548,

1552, n.2 (2004).

10

charges do not have the force and effect of controlling state

or federal common law. Del Sanotro v. Cendant Corp., 223

F. Supp. 2d 563, 579 n.3 (D.N.J. 2002). Furthermore, the

model jury charge cited by Petitioner which 1s a generalized

statement of law intended as guidance for New Jersey courts,

does not precisely reflect the numerous state and federal

decisions interpreting the LAD which have consistently

followed the federal standard used in ADEA cases requiring

a plaintiff to demonstrate that he or she was replaced by a

sufficiently younger person to create an inference of age

discrimination. See e.g. Constantino, 791 A.2d at 1123, n.6;

Greenberg v. Camden County Vocational and Technical

Schools, 708 A.2d 460, 466 (N.J. Super. Ct. App. Div. 1998);

Baker v. National State Bank, 711 A.2d 917, 928 (N.J. Super.

Ct. App. Div. 1998); Geldreich v. American Cyanamid Co.,

691 A.2d 423, 490 (N.J. Super. Ct. App. Div. 1997); Kelly,

667 A.2d at 359.

II. THERE IS NO CONFLICT IN THE CIRCUITS

REGARDING THE SCOPE OF THE “SIMILARLY

SITUATED” REQUIREMENT AND THERE IS NO

COMPELLING REASON FOR THE COURT TO

ADDRESS IT.

On the assumption that his initial argument will be

rejected and he must show as part of his prima facie case

that sufficiently younger, similarly situated workers were

retained in a reduction-in-force, Petitioner alleges that

younger, similarly situated employees were in fact retained.

The District Court and the Third Circuit rejected this

argument because these lower-level branch managers to

which Mr. Monaco attempted to compare himself were not

“similarly situated” based on the factual record.

11

Petitioner asserts that there is a conflict between the

Third Circuit’s decision and the Sixth Circuit’s decision in

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344

(6" Cir. 1998). However, the case cited by Petitioner involves

nothing more than the application of the same basic legal

standard to a different, specific factual context. There is

simply no conflict between the circuits.

In Ercegovich, the Sixth Circuit held that the older laid

off worker could establish a prima facie case because

several younger workers in the same department were

given “selective offers of transfer” while he was not.

The Ercegoyish Court held that the relevant factors in

determining who was similarly situated were different than

prior Sixth Circuit decisions dealing solely with a job

termination because the focus involved the failure to offer

an older worker a transfer while younger workers were

transferred.* Unfortunately for Mr. Monaco, there is no

evidence in the record that the employer engaged in either a

selective or routine practice of transferring employees into

different positions during a reduction in force.’

8. Nor did Ercegovich hold that older workers were entitled

under the statute to “bump” younger workers; only that the practice,

if utilized, could not be applied selectively. Consistent with this ruling,

the Third Circuit in Anderson also held that while the ADEA does

not entitle older workers to displace younger workers, the right of an

older worker to claim he should be transferred could be considered

where the employer engaged in a “routine” practice of “shuffling”

employees. Anderson, 297 F.3d at 250. The concepts underlying the

language of both Ercegovich and Anderson are entirely consistent.

9. Mr. Monaco relies on one intermediate state court decision

in New Jersey in support of his “bumping” argument. Granziel v.

City of Plainfield, 652 A.2d 227 (N.J. Super. Ct. App. Div. 1995),

(Cont'd)

12

Despite the unique factual circumstances in Ercegovich

which led to a discussion of selective transfers, the definition

of similarly situated applied by the Sixth Circuit and Third

Circuit is essentially the same. Ercegovich defines similarly-

situated as one whose position is similar to another “in all

relevant aspects.” /d. at 352. The Third Circuit draws a similar

conclusion that similarly situated does not mean “situated

identically,” but is “based on a whole constellation of factors

facing that individual employee.” Monaco, 359 F.3d at 305.

Both courts recognize the factual nature of the inquiry, i.e.

an examination of the relevant circumstances surrounding

the position. Any difference between the Third and Sixth

Circuits’ analysis is inconsequential and based on the unique

factual circumstances applicable to these cases.

In actuality, Petitioner asks this Court to grant certiorari

based on his belief that the Third Circuit improperly held

that he was not similarly situated to the branch managers,

and therefore, did not meet the fourth prong of his prima

facie case. Petitioner’s request should be denied because this

Court does not grant certiorari petitions to review evidence

and discuss specific facts. United States v. Johnson, 268 U.S.

220, 227 (1925). See also Texas v. Mead, 465 U.S. 1041,

1043 (1984); NLRB v. Hendricks County Rural Elec.

Membership Corp., 454 U.S. 170, 176 n.8 (1981). See also

(Cont’d)

dealt with the appropriate post-trial reinstatement remedy for a victim

of discrimination. Granziel held that the trial court had the discretion

to displace an incumbent employee to restore the victim of

discrimination to his previously-held position rather than placing the

victim in a lower-level position until a vacancy occurred. Jd. at 232.

Granziel’s “rightful place” or “make whole” remedy doctrine does

not stand for the proposition that higher-level employees should be

able to bump lower-level employees as part of a reduction in force.

oe se

7

|

4

j

|

:

e

3

:

2

4

s

13

Sup. Cr. R. 10 (“A petition for a writ of certiorari is rarely

granted when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated rule of

law’). The Third Circuit properly concluded that Mr. Monaco

“has not produced any evidence to show that his position of

vice president of the Eastern Region was similarly situated

to that of the eight vice presidents/branch managers whom

he directly supervised.” Monaco, 359 F.3d at 306.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

THOMAS J. BARTON

Counsel of Record

KIMBERLY M. CorFFINA .

DRINKER BippLe & REATH LLP

ONE LOGAN SQUARE

18" and Cherry Streets

Philadelphia, PA 19103

(215) 988-2834

Counsel for Respondents