"Coming Around Again"
by Anne La Jeunesse
At Issue: After winning summary judgments in both state and federal court, defense attorneys Golper, Manier and Silverstein thought the employment-discrimination case was over - but not yet.

To attorneys John B. Golper, John J. Manier and Douglas N. Silverstein, longtime McDonnell Douglas Corp. employee Lonnie Stafford's race- and age-discrimination case against his former employer, their client, seemed to be the case that would never end.

The case - in which the 29-year McDonnell Douglas employee also claimed breach of implied contract and intentional infliction of emotional distress - has bounced among state and federal courtrooms, largely because of "mysterious" decisions by the 9^th U.S. Circuit Court of Appeals, defense attorneys say.

Defense attorneys Golper, Manier and Silverstein now are in the rare position of having received summary judgments in their favor from both federal and state courts - four years apart. In between those rulings were lengthy stops in the 9^th Circuit Court of Appeals and an unsuccessful attempt by defense attorneys to interest the U.S. Supreme Court.

"I'm appealing across the board, on each issue raised," said Stanley R. Raskin, Stafford's attorney, who in mid-December filed a notice of appeal to the 2^nd District Court of Appeal in Los Angeles. After the defense attorneys removed the case to federal court, without any objection by Raskin, U.S. District Judge Ronald S. W. Lew ruled that the court had diversity jurisdiction over the matter. In 1995, Lew granted summary judgment for McDonnell Douglas as to all causes of action and ruled that the plaintiff's claim for infliction of emotional distress was time-barred.

"The procedural history of this case - I've been practicing for 25 years and never had a case like this," said lead attorney Golper of Universal City's Ballard, Rosenberg & Golper.

Manier, who worked on the case for several years before Silverstein joined the team, described the matter as "an unbelievable roller coaster, unlike any I've ever seen."

However, Golper, Manier and Silverstein are confident they will prevail in the state appellate court. They base this belief on the two summary judgments and the intense reworking of their moving papers, in which they cited new cases in arguments to Los Angeles Superior Court Judge Ernest Hiroshige, who issued the final portion of the summary judgment in October.

However, Raskin said the case might be reversed on appeal if the appellate court agrees that the case is somewhat unique.

"This is a supple-fact case. My sense is that Judge Hiroshige was teetering on the fence, or he would not have gone through all of these machinations," Raskin said.

As to the defense attorneys' confidence that McDonnell Douglas will ultimately prevail, Raskin said that after Hiroshige's tentative ruling of summary judgment on the race-discrimination issue, his client was made, and refused, a settlement offer of $180,000.

The case, likely one of the oldest at the Ballard Rosenberg firm was filed in July 1994, about three months after 56-year-old employee Stafford, who is black, was fired from his job as a first-level machine-products department supervisor at the company's Torrance plant as part of a layoff. The plant has since ceased to operate.

Stafford contended that his termination was a result of race and age discrimination. He based his argument on racial remarks allegedly made by a fellow supervisor and also by an hourly employee. He also pointed to statements by colleagues that he should retire because he was vested and could thus save someone else's job.

Stafford further claimed that he had been excluded from a peer-review meeting where Stafford's colleagues were asked to rate their own and others' performances. McDonnell Douglas attorneys contended there was no proof that he was excluded from the rating process.

Stafford also contended that his 29 years of employment and satisfactory reviews constituted an implied contract that he would not be terminated without good cause.

Raskin said he believes the evidence supports Stafford's claims.

He said that four of Stafford's co-workers - who were included in the peer-evaluation session where they ranked themselves and each other on job performance - made racial remarks to Stafford, who, Raskin said, was sent home early that day by his supervisor, another black man.

"So, you've got the fox in the hen coop," Raskin said. "How could this guy get a fair shake on this voting process if four of the six guys voting didn't like blacks?" Raskin said. These were the same men, he said, who repeatedly asked Stafford to retire so that one of their jobs could be saved.

"Now, if that isn't enough to raise a triable issue of fact, I don't know what is," said Raskin, who wants the case before a jury.

Defendant McDonnell Douglas contended that no inference of race or age discrimination could be drawn. The manager who was tasked with conducting the layoff was black, and two of the three supervisors who were retained were also black. One of these supervisors is older than Stafford.

The layoffs, McDonnell Douglas contended, were based solely on the company's economic problems and were the result of corporate downsizing and a good-faith evaluation of Stafford's qualifications to perform the work that would remain for the three supervisors who were retained. Even if Stafford had participated in the peer review, rating himself first, he would nevertheless have been evaluated last, defense attorneys contended.

Citing diversity jurisdiction - McDonnell Douglas is a "citizen" of the states of Maryland and Missouri, and the case involved more than $50,000, a sufficient amount in controversy - the defense attorneys, removed the case to U.S. District Court in August 1994. There were no challenges by Stafford or his attorney. Said Manier, "There was no quarrel."

"It was self-evident to everyone involved that where you have an employment case and race and age discrimination, a plaintiff is going to try to recover a lot more than $50,000," Manier said. "Not to say they're entitled to it, but the best-case scenario includes economic damages, lost wages, emotional distress and punitive damages. Who knows how much that's going to be worth to a sympathetic jury? Add attorney fees to that, who knows how much it will be?"

On June 27, 1995, Judge Lew found that the U.S. District Court did have jurisdiction and granted the defendant's summary judgment motion. Stafford appealed the summary-judgment decision to the 9^th U.S. Circuit Court of Appeals, but admitted that the U.S. District Court had jurisdiction.

The federal court then notified the attorneys that there would be no oral argument and the issue would be decided on papers submitted, Manier recalled.

On Nov. 7, 1996, the 9^th Circuit directed the U.S. District Court to vacate its judgment, and sent the case back to state court on the basis of lack of subject matter jurisdiction. The federal appellate court concluded that the evidence was not weighty enough to establish the requisite $50,000 amount in controversy, despite the fact that the monetary issue was not in dispute, defense attorneys say.

"That's it - no explanation as to how they made that decision," Manier said. "We have no idea why they did this, [because] they didn't explain it ... we didn't even have a chance to argue it."

Then Manier filed for a rehearing en banc. The rehearing was denied on Sept. 16, 1997, also without explanation.

"I've since learned that the 9^th circuit was doing that to a lot of cases at that time," Golper said. "Federal courts were getting tired of all these employment cases filed in state court being moved to federal court, and they really didn't want their calendars clogged with cases like this."

It was a time of massive layoffs in the defense and aerospace industries, Golper noted. "I could tell by empirical evidence that the 9^th Circuit was taking some kind of approach to get rid of these cases. Since that time, our firm and other firms have been very specific in notices to federal court."

In February 1998, Ballard, Rosenberg asked the U.S. Supreme Court to step in.

"Our argument was that here, we've got a district court judge who has found there's jurisdiction because of a sufficient amount in controversy, and where you've got sufficient facts to support this and the 9^th Circuit Court of Appeals simply gives us a 'thumbs down' without any explanation," Manier said. "The 9^th Circuit abused its discretion."

However, the attorneys realized that trying to get the attention of the Supreme Court was a long shot, and they were not surprised when the court decided not to hear their case.

"So, now we've got to go back to [refile our summary judgment motion in] state court. On the surface, that may sound like a quick-and-dirty prospect where we do nothing but change the name of the court, but that's not the reality of it," Manier said. "You have the reality of different rules and formatting requirements." Said co-counsel Silverstein: "We did a novel thing: getting evidence in federal court, submitting certified copies as evidence in state court. Here's a state-court argument, but we're basing it on the exact same undisputed evidence and facts on which we based the federal court argument - but it's not just a duplicate. It looks very different, in terms of updating it with current law."

The new argument included Judge Lew's decision, which Silverstein stated opposing counsel saw as an attempt at collateral estoppel via the federal case. It was, however, just one piece of information given to Superior Court Judge Hiroshige to consider, Silverstein said.

The efforts paid off, the attorneys say, but the pay-off was incremental. On March 10, 1999, Judge Hiroshige issued a tentative ruling granting defendant McDonnell Douglas' motion for summary judgment only as to the claims for race discrimination and emotional distress.

Then Hiroshige, in September, granted McDonnell Douglas' motion for summary judgment on the age-discrimination and punitive-damages claims, after considering supplemental briefs and oral argument, in which Silverstein cited an age-discrimination case decided in May 1999. In that case, the court ruled that the plaintiff has been justifiably terminated despite a workplace remark that he had never heard of a fax machine. Raskin said the facts in that case do not have anything to do with the facts in his client's case.

Only the breach-of-contract and breach-of-implied-covenant issues remained in the case.

More briefs were sent to Hiroshige supporting the defense's contention that Stafford was laid off as part of a simple reduction in the company's employee force.

"Since he dismissed age and race, our position was that there was nothing improper about the layoff. It was an economic reduction in force," Silverstein said.

On Oct. 1, Hiroshige granted the defense's motion for summary judgment on the only remaining issues.

Despite all prior obstacles in the case, "We kept plugging away and filed three supplemental briefs," said Silverstein. "To Judge Hiroshige's credit, he kept an open mind. He was willing to, in a sense, reverse himself."