# Opposition Brief — Monaco v. American General Assurance Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1714%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 814

## Text

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.

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1714%3A2. Public record. Not legal advice.