Roush v KFC National Management Company Petitioners Response to Brief Opposition

    No. 93-1711

In The

Supreme Court of tfjc Unttetr states;
October Term , 1994

Betty Roush,
Petitioner,

v.
RFC National Management Company,

Respondent.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 

for the Sixth Circuit

PETITIO NER’S RESPONSE TO BRIEF IN OPPOSITION

Priscilla S. Diamond 
Suite 600 North 
First Trust Centre 
200 S. Fifth Street 
Louisville, KY 40202 
(502) 587-0100

Elaine R, J ones 
Director Counsel
Theodore M. Shaw 
Charles Stephen Ralston 
Eric Schnapper*
NAACP Legal Defense & 

Educational F und, Inc. 
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner
*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208



TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................  ii

A R G U M EN T......................................................................................... 1

TABLE OF AUTHORITIES

Cases: Pages:

Agristor Leasing v. A.O. Smith Harvestore 
Prods., Inc.,
869 F.2d 264 (6th Cir. 1989) ................................................  7

Drayton v Jiffee Chem. Corp.,
591 F.2d 352 (6th Cir. 1978) ................................................  7

In re Lewis,
845 F.2d 624 (6th Cir. 1988) ................................................  7

Manning v. Altec, Inc.,
488 F.2d 127 (6th Cir. 1973) ................................................  7

Rodgers v Fisher Body Division,
General Motors Corp.,
739 F.2d 1102 (6th Cir. 1984), cert, denied, 
470 U.S. 1054 (19 8 5 )...................................... 7



No. 93-1711

In The

Supreme Court of tfce Umteb States;
October Term, 1994

BETTY ROUSH,

v.
Petitioner,

KFC NATIONAL MANAGEMENT COMPANY,
Respondent.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 

for the Sixth Circuit

PETITIONER’S RESPONSE TO BRIEF IN 
OPPOSITION

ARGUMENT

(1) Respondent does not deny the existence of a 
conflict between the decisions of this Court and reigning 
precedent in the Sixth Circuit regarding whether the amount 
of a jury verdicts is subject to review by an appellate court. 
Respondent asserts, however, that in this case "the Court of 
Appeals did not purport to determine that the weight of the 
evidence, as a matter of fact, showed the verdict to have 
been excessive." (Br. Opp., p.9). In fact that is precisely 
what the Sixth Circuit purported to do.

The threshold question posed by the litigation below 
was whether a jury verdict of $100,000 for backpay would be



2

excessive as a matter of fact. In its briefs in the courts 
below, respondent squarely argued that a back pay verdict of 
$100,000 was excessive.1 Petitioner, of course, disputed this 
challenge to the sufficiency of the evidence to support the 
jury verdict.2

In addressing this dispute, the court of appeals first 
held that respondent had adequately preserved this factual 
issue:

KFC did allow the district court to pass on 
the issue of the excessiveness of the damages 
by filing a rather extensive post-trial motion 
attacking various aspects of the ADEA 
damage award.

1 Defendant’s Memorandum In Support of Motion for 
Judgment Notwithstanding the Verdict or, In the Alternative, For a 
New Trial, p.8 ("The jury’s damage award bears no relationship to the 
proof adduced at trial"~) (emphasis added); Defendant’s Reply 
Memorandum In Further Support of Motion for Judgment 
Notwithstanding the Verdict Or, in the Alternative, For A New Trial, 
pp. 8-9 ("While the jury verdict may fall within the range established 
by Roush’s expert, that is not enough. Tire verdict cannot randomly 
fall within some range, it must be firmly grounded in the evidence .... 
Where, as here, no basis appears in the record for the jury’s award, 
the damages may constitute ‘plain error’ and warrant a new trial") 
(emphasis added); Reply Brief for the Defendant-Appellant, KFC 
National Management Co., p. 10 ("In short, it is obvious that a 
mistake has been made: the evidence supports a back pay award of 
no more than $24,386")(emphasis added).

2 Brief for Plaintiff/Appellee Betty Roush, p.15 ("Plaintiff lost 
salary and numerous benefits, pension benefits, stock option plans 
and more. In addition, there was testimony that Plaintiff was one of 
the, if not the, lowest paid person in the department and that her pay 
raises were considerably less than others in the department.... The 
jury may well have decided that as part of her back pay that situation 
should be remedied. If they did, it could easily have brought a back­
pay award, considering all elements, to in excess of $100,000").



(Pet. App. 7a)(Emphasis added). Next, the Sixth Circuit 
spelled out a standard for evaluating such an excessiveness 
claim:

This court reviews the district court’s decision 
on a motion for a new trial seeking a 
remittitur of a jury’s verdict for an abuse of 
discretion. . . . Such a motion should be 
granted only "if the award clearly exceeds ’the 
amount which, under the evidence in the 
case, was the maximum that a jury could 
reasonably find to be compensatory’ for the 
plaintiffs loss."

(Pet. App. 7a)(Emphasis added; citations and emphasis 
omitted). The court of appeals then overturned the jury 
verdict on precisely that evidentiary basis:

[N]o rational appraisal of the evidence 
supports a back pay award of $100,000.

[T]he jury’s award ... was simply clearly 
excessive even using the figures supplied in 
Roush’s own evidence. The jury’s award of 
backpay was required to be reasonable and 
within the range of proofs in the case.

(Pet. App. 8a, 8a n.7)(Emphasis added).

Having concluded that a $100,000 award of back pay 
was excessive, the court of appeals proceeded to make its 
own determination of the appropriate level of back pay. 
The Sixth Circuit correctly recognized that such a fact-based 
determination required it to make subsidiary findings of fact 
regarding the amount of "lost earnings ... (less interim 
earnings from other employment and pension and social 
security benefits which Roush received as a result of her 
discharge); lost contributions to KFC’s savings plan; lost



4

social security benefits, and lost retirement benefits." (Pet. 
App. 14a). Most of these amounts were disputed.3 
Nonetheless, the court of appeals, having made undisclosed 
subsidiary findings on each of those elements of back pay, 
then made a finding of fact as to the maximum permissible 
back pay verdicts:

Based on the proofs presented at trial by 
Roush, her damage award for back pay 
should be reduced to $24,386, which is the 
maximum amount a jury could reasonably 
find to be compensatory for her loss.

(Pet. App. 14a). (Emphasis added) The Sixth Circuit 
acknowledged that petitioner had offered proof of 
discrimination in compensation, but refused to include this 
in its own backpay calculations because it believed there was 
not "sufficient evidence in the record" as to the amount of 
damage occasioned by this violation of the ADEA. (Pet. 
App. 14a n.13) (Emphasis added).

(2) Respondent asserts that the court of appeals

3 In the court of appeals petitioner and respondent contended 
that the relevant figures were as follows:

Petitioner’s Respondent’s 
Contention Contention

Net lost earnings $36,000 $ 6,941
Lost contributions to KFC savings
or investment plan $17,284 $ 6,180

Lost social security benefits $14,000 $ 5,053
Lost retirement benefits $17,050 $ 6,212

Total $84,334 $24,386

Brief for Plaintiff/Appellee Betty Roush, pp.15-16 n.l; Reply Brief for 
Defendant-Appellant KFC National Management Company, pp.8-



5

overturned the jury verdict because of a "legal error" 
regarding whether petitioner could properly be awarded 
front pay. (Br. Opp. 5)4.

In fact, however, the court of appeals reached the 
front pay issue only after it had held that a back pay verdict 
of $100,000 was excessive. The front pay question as the 
Sixth Circuit saw it was whether, having overturned the back 
pay award, the court of appeals should remand the case for 
further proceedings regarding front pay. It was in this 
context that the propriety of front pay was discussed by the 
court of appeals:

While ordinarily we would remand the issue 
of front pay to the district court for a more 
detailed articulation of the reasons for its 
action (and, alternately, for a new trial on the 
issue of front pay), we conclude that remand 
in this case would serve no purpose, because 
the record simply does not support an award 
of front pay in any amount.

(Pet App. 13a)5. Manifestly the court of appeals’ decision 
not to remand this issue was not the basis for its earlier 
finding that a $100,000 back pay verdict was excessive. The 
fact that the district judge believed that front pay was 
appropriate did not, in the view of the court of appeals, 
infect the jury verdict, since the Sixth Circuit construed the 
jury instructions not to authorize inclusion of front pay in 
the verdict.

4 Contrary to respondent’s assertion (Br. Op. 7), petitioner 
does challenge the propriety of the Sixth Circuit’s analysis of the front 
pay issue. Petition, pp. 12-14.

5 The Sixth Circuit’s refusal to remand this issue was based on 
its assessment of the evidence in the case, not on any question of law. 
(Pet. App. 13a-14a).



6

(3) Respondent does not deny that the decision 
of the Sixth Circuit directly reducing the amount of the jury 
verdict, rather than ordering a new trial subject to a 
remittitur, conflicts with decisions of this Court and five 
other circuits. Nor does respondent deny that this case 
squarely presents this issue. Respondent argues only that 
the Sixth Circuit’s practice is the correct one.

Respondent defends the Sixth Circuit’s order by 
insisting "the Court of Appeals merely eliminated the front 
pay component." (Br. Op. 11). But this is not a case in 
which a jury returned one verdict for back pay and a 
separate verdict for front pay; as both courts below stressed, 
there was only a single damage award of $100,000 (Pet. App. 
7a n.6, 26a). The court of appeals did not purport to know 
how much front pay was included in the verdict, or whether 
in fact the jury had intended to include front pay at all. 
(Pet. Ap. 7a, n.6). The court of appeals did not arrive at the 
court-ordered verdict of $24,386 by "eliminating" front pay, 
or anything else, from the $100,000 verdict; rather, $24,386 
was the sum that the Sixth Circuit calculated was "the 
maximum amount" a jury should have awarded for back pay. 
(Pet. App. 14a). This is precisely the circumstance in which 
the decisions of this Court, and of other circuits, hold that 
a plaintiff must be accorded the choice of accepting a 
remittitur or proceeding to a new trial.

The difference between the Sixth Circuit directive 
reducing the size of the jury verdict, and a constitutional 
order according petitioner a choice between a new trial and 
a remittitur, was of palpable practical importance. The court 
of appeals disapproved an award of front pay because on its 
view "the record simply does not support an award of front 
pay." (Pet. App. 13a)(Emphasis added). Had the court of 
appeals directed a new trial as to the amount of damages, 
petitioner would have had an opportunity to offer additional 
evidence to address the defect which the appellate court 
perceived in the record of the first trial.



7

(4) Respondent suggests that this is not an 
appropriate case in which to address these issues because 
the court of appeals opinion makes no mention of the 
Seventh Amendment. (Br. Op. 6, 8). In fact, however, the 
court of appeals’ silence on this issue reflects the magnitude 
of the problem warranting review by this Court. Although 
the Sixth Circuit routinely reviews and overturns jury 
verdicts, decisions in that circuit, like the decision in the 
instant case, are ordinarily characterized by a "complete 
absence of any discussion of the Seventh Amendment." (Br. 
Op. 8). The court of appeals decision in the instant case 
cited five other Sixth Circuit decisions regarding judicial 
review of jury verdicts6; none of these Sixth Circuit 
precedents refer in any way to the Seventh Amendment. 
Among the last decade of Sixth Circuit decisions reviewing 
either jury liability determinations or the amount of jury 
verdicts, we have been unable to locate any which mention 
the Seventh Amendment as relevant to that appellate 
factfinding.

(5) Respondent does not deny that there is a 
conflict among the circuits regarding whether the sufficiency 
of the evidence should be measured against the standard set 
out in an unchallenged jury instruction.

Respondent urges that petitioner failed to preserve 
this issue by "citjing] ... approvingly" in the court of appeals 
the stringent standard ultimately applied in the Sixth 
Circuit’s opinion. (Br. Op. 12-13). The passage referred to

6 Agristor Leasing v. A.O. Smith Han’estore Prods., Inc., 869F.2d 
264, 268 (6th Cir. 1989) (Pet. App. 7a); In re Lewis, 845 F.2d 624, 635 
(6th Cir. 1988) (Pet. App. 7a); Rodgers v Fisher Body Division, General 
Motors Corp., 739 F.2d 1102, 1107 (6th Cir. 1984), cert, denied, 470 
U.S. 1054 (1985) (Pet. App. 14a n.13)\ Drayton v Jiffee Chem. Corp., 
591 F.2d 352, 366 (6th Cir. 1978) (Pet. App. 8a n 7); Manning v. 
Altec, Inc., 488 F.2d 127, 133 (6th Cir. 1973) (Pet. App. 7a).



8

by respondent from petitioner’s court of appeals brief, 
however, is merely a quotation from the district court 
opinion. Brief for Plaintiff/Appellate Betty Roush, p.24. 
The actual argument advanced by petitioner in the Sixth 
Circuit repeatedly invoked instead the standard that had 
been contained in the jury instruction; petitioner insisted 
that the evidence in support of her claim of intentional 
infliction of emotional distress was sufficient because it 
revealed conduct that was "outrageous and extreme." Id. at 
19 ("outrageous"), 20 ("outrageous") 22 ("extreme and 
outrageous"), 24 ("extreme and outrageous.") Petitioner’s 
brief in the court of appeals focused specifically on the legal 
standard set out in the jury instructions: "[a] jury of six 
people was asked to measure ... the totality of the ... 
circumstances indicating extreme and outrageous behavior." 
Id. at 22.

In its closing argument at trial, respondent, consistent 
with the unobjected to jury instruction, agreed that 
petitioner was obligated to prove only that respondent’s 
conduct was "outrageous" and "intentional."7 In the court of 
appeals, however, respondent urged the Sixth Circuit to 
apply, not that standard, but a requirement that a 
defendant’s conduct go "beyond all possible bounds of 
decency, and ... be ... utterly intolerable in a civilized 
community."8

Respondent now urges that the Sixth Circuit viewed 
these two formulations of the legal standard as 
interchangeable." (Br. Op. 13). This is only true in the 
sense that the court of appeals believed that "under 
Kentucky law" the requirement of "extreme and outrageous

7 Tr. vol. 5, p. 514.

8 Brief for the Defendant-Appellant KFC National 
Management Company, pp. 9, 26, 28; Reply Brief for the Defendant- 
Appellant KFC National Management Company, p. 12.



9

conduct" had been construed by state courts to be 
"particularly stringent, requiring proof of conduct which goes 
beyond ‘all possible bounds of decency.’"(Pet. App. 15a) 
(Emphasis added). But neither the Sixth Circuit nor 
respondent suggest that a jury would or should have 
understood "extreme" or "outrageous" to mean, in ordinary 
English, "beyond all possible bounds of decency" or "utterly 
intolerable in a civilized society." Indeed, by describing 
Kentucky caselaw as "particularly stringent", the Sixth Circuit 
frankly emphasized that state judicial decisions had 
established a standard of proof considerably more strict 
than, rather than simply synonymous with, the ordinary 
meaning of the phrase "extreme and outrageous." In the 
court of appeals respondent prevailed precisely because it 
insisted with success that Kentucky case law, rather than 
merely embodying the ordinary English meaning of the 
words "extreme" and "outrageous," had established "an 
extremely high evidentiary standard."9 Respondent urged, 
"Simply put, the burdensome proof requirements erected by 
the Kentucky courts have made recovery for the tort of 
outrage virtually nonexistent."10 Having successfully 
persuaded the court of appeals that Kentucky caselaw 
established a standard far more specific and stringent than 
the ordinary meaning of the phrase "extreme and 
outrageous," respondent cannot plausibly argue in this Court

9 Reply Brief for the Defendant-Appellant, KFC National 
Management Company, p .ll;  see also Brief for the Defendant- 
Appellant, KFC National Management Company, pp. 25 ("exacting 
standards established by the Kentucky courts"), 30 ("the extremely 
rigorous standard established by Kentucky courts").

10 Brief for the Defendant-Appellant, KFC National 
Management Company, p.29.



10

that no such special standard was ever applied by the Sixth 
Court.

Respectfully submitted,

PRISCILLA S. DIAMOND 
Suite 600 North 
First Trust Centre 
200 S. Fifth Street 
Louisville, Ky. 40202 
(502) 587-0100

ELAINE R. JONES 
D irector Counsel

THEODORE M. SHAW 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER*
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner 
*Counsel of Record