Petition for Writ of Certiorari — Terry Haynie, Petitioner v. United Airlines, Inc.

APPENDIX

ia

APPENDIX TABLE OF CONTENTS

Page

Unpublished Opinion and Judgment of

The United States Court of Appeals

For the Fourth Circuit

entered October 19, 2018 ............................... 1a

Order of

The United States District Court

For the Eastern District of Virginia

Re: Show Cause

entered June 22, 2015 .................................... 8a

Order of

The United States District Court

For the Eastern District of Virginia

Re: Dismissing Complaint without Prejudice

entered October 2, 2015 ............................... 10a

Order of

The United States District Court

For the Eastern District of Virginia

Re: Dismissing Counts II-IV and

Defendant Continental Airlines, Inc.

entered November 20, 2015 ......................... 12a

Order of

The United States District Court

For the Eastern District of Virginia

Re: Denying Plaintiff’s Motion to Alter,

Amend, and Vacate Order and Granting in

Part and Denying in Part Defendant’s

Motion for Attorneys’ Fees and Bill of Costs

entered August 25, 2017 .............................. 13a

iia

Order of

The United States Court of Appeals

For the Fourth Circuit

Re: Denying Petition for Rehearing and

Rehearing En Banc

entered December 17, 2018 ......................... 15a

Transcript of Status Conference before

The United States District Court

For the Eastern District of Virginia

entered October 2, 2015 ............................... 17a

Transcript of Motions Hearing before

The United States District Court

For the Eastern District of Virginia

entered November 20, 2015 ......................... 27a

Transcript of Motions Hearing before

The United States District Court

For the Eastern District of Virginia

entered June 23, 2017 .................................. 47a

Exhibits to Plaintiff’s Memorandum in

Opposition to Defendant’s Motion for

Attorneys’ Fees

entered July 12, 2017:

1. Terrance Haynie’s Right to Sue Form

dated August 17, 2012 ................. 60a

2. Terrance Haynie’s Charge of

Discrimination Form

dated December 3, 2014............... 63a

3. Terrance Haynie’s Right to Sue Form

dated February 9, 2015................ 66a

1a

[ENTERED: October 19, 2018]

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-2109

TERRY HAYNIE, a/k/a Terrance S. Haynie,

Plaintiff - Appellant,

v.

UNITED AIR LINES, INC.,

Defendant - Appellee,

and

CONTINENTAL AIRLINES, INC.,

Defendant.

No. 17-2124

TERRY HAYNIE, a/k/a Terrance S. Haynie,

Plaintiff - Appellee,

v.

UNITED AIR LINES, INC.,

Defendant - Appellant,

2a

and

CONTINENTAL AIRLINES, INC.,

Defendant.

Appeals from the United States District Court for the

Eastern District of Virginia, at Alexandria. Leonie M.

Brinkema, District Judge. (1:15-cv-00625-LMB-IDD)

Submitted: August 31, 2018

Decided: October 19, 2018

Before DUNCAN, KEENAN, and DIAZ, Circuit

Judges.

Affirmed in part, vacated and remanded in part by

unpublished per curiam opinion.

Curtis M. Hairston, Jr., THE GEE LAW FIRM, P.C.,

Richmond, Virginia, for Appellant/Cross-Appellee.

Neal D. Mollen, Washington, D.C., Donna M. Melby,

PAUL HASTINGS LLP, Los Angeles, California, for

Appellee/Cross-Appellant.

Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

Terry

Haynie

filed

an

employment

discrimination action in the district court, alleging

3a

claims under Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West

2012 & Supp. 2017), 42 U.S.C. § 1981 (2012), and 28

U.S.C. § 1331 (2012). The district court dismissed all

but one of the counts for failure to timely file within

the time limitations. The court also noted that

Haynie did not seek or obtain leave of court to add

claims that had previously been dismissed or not

raised in previous litigation. The court ultimately

granted summary judgment to the Defendant, United

Air Lines, Inc. (“United”) on Haynie’s claim of hostile

work environment based on race. Upon United’s

motion, the court also ordered Haynie to pay the costs

associated with United’s discovery requests related to

collection of Haynie’s emails that he did not fully

comply with. The court also determined that United

was entitled to attorney’s fees under 28 U.S.C. § 1927

and ordered Haynie’s counsel to pay United $30,000.

On appeal, Haynie challenges the district

court’s orders dismissing claims as untimely and

unauthorized, granting summary judgment to

United, denying his Fed. R. Civ. P. 59(e) motion,

imposing costs for United’s discovery efforts, and

imposing attorney’s fees as a sanction. United has

filed a cross-appeal, arguing that the district court

erred in failing to compute attorney’s fees in

accordance with our decision in Barber v. Kimbrell’s,

Inc., 577 F.2d 216, 226, n.28 (4th Cir. 1978).

We have reviewed the parties’ briefs and joint

appendix, and fully considered the arguments on

appeal as to the motion to dismiss, motion for

summary judgment, motion under Fed. R. Civ. P.

59(e), and award of costs to United for a discovery

request and find no reversible error. Accordingly, we

4a

affirm these orders for the reasons stated by the

district court. Haynie v. United Air Lines, Inc., No.

1:15-cv-00625-LMB-IDD (E.D. Va. Nov. 20, 2015;

June 28, 2017; Aug. 25, 2017).

However, we vacate the portion of the district

court’s order awarding attorney’s fees in the amount

of $30,000 total as a sanction and to be paid by

Haynie’s attorneys. We review a district court’s award

of attorney’s fees for an abuse of discretion. Robinson

v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th

Cir. 2009). Accordingly, “we will only reverse such an

award if the district court is ‘clearly wrong’ or has

committed an ‘error of law.’” McAfee v. Boczar, 738

F.3d 81, 88 (4th Cir. 2013) (quoting Brodziak v.

Runyon, 145 F.3d 194, 196 (4th Cir. 1998)).

An attorney “who so multiplies the proceedings

in any case unreasonably and vexatiously” may be

required to pay “excess costs, expenses, and attorneys’

fees reasonably incurred because of such conduct.” 28

U.S.C. § 1927. An award of attorney’s fees pursuant

to § 1927 is “compensatory in nature.” Six v.

Generations Federal Credit Union, 891 F.3d 508, 520

(4th Cir. 2018). In awarding such fees, the court must

“show a causal link between the wrongful conduct and

an unreasonable and vexatious multiplication of

proceedings,” and then “connect the costs wrongfully

incurred as a result of the sanctioned attorney’s

conduct to the amount awarded to the moving party.”

Id. (citing Goodyear Tire & Rubber Co. v. Haeger, 137

S.Ct. 1178, 1186 n.5 (2017)). In determining whether

fees were incurred “reasonably”, see 28 U.S.C. § 1827,

a court should consider the factors outlined in

Kimbrell’s. See 577 F.2d at 226 n.28.

5a

We conclude that the district court, while ably

listing the deficiencies in Haynie’s counsel’s

representation and filings throughout the litigation,

did not conduct an analysis sufficient for us to accord

the appropriate level of review. Thus, we vacate and

remand this portion of the order only to permit the

court to perform a more thorough analysis as

contemplated by Generations Federal Credit Union.

We do not vacate or reverse the court’s decision to

award fees.

We dispense with oral argument because the

facts and legal contentions are adequately presented

in the materials before this court and argument would

not aid the decisional process.

AFFIRMED IN PART,

VACATED AND REMANDED IN PART

6a

[ENTERED: October 19, 2018]

FILED: October 19, 2018

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-2109 (L)

(1:15-cv-00625-LMB-IDD)

TERRY HAYNIE, a/k/a Terrance S. Haynie,

Plaintiff - Appellant,

v.

UNITED AIR LINES, INC.,

Defendant - Appellee,

and

CONTINENTAL AIRLINES, INC.,

Defendant.

No. 17-2124

(1:15-cv-00625-LMB-IDD)

TERRY HAYNIE, a/k/a Terrance S. Haynie,

Plaintiff - Appellee,

v.

7a

UNITED AIR LINES, INC.,

Defendant - Appellant,

and

CONTINENTAL AIRLINES, INC.,

Defendant.

JUDGMENT

In accordance with the decision of this court,

the judgment of the district court is affirmed in part

and vacated in part. This case is remanded in part to

the district court for further proceedings consistent

with the court’s decision.

This judgment shall take effect upon issuance

of this court’s mandate in accordance with Fed. R.

App. P. 41.

/s/ PATRICIA S. CONNOR, CLERK

8a

[ENTERED: June 22, 2015]

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TERRANCE S. HAYNIE

)

)

Plaintiff

)

)

v.

)

)

UNITED AIR LINES, INC., et al. )

)

Defendants

)

1:15cv625

(LMB/IDD)

ORDER

On May 11, 2015, civil action 1:15cv604 was

transferred into this district from the Northern

District of California. Three days later, on May 14,

2015, a nearly identical complaint was filed and the

above-captioned civil action opened.

The same

California counsel’s name appears on both

complaints, but the complaint in 1:14cv625 also lists

Virginia counsel who is admitted in this district.

Because there is no need to maintain two

duplicate civil actions on the docket, it is hereby

ORDERED that within ten (10) days plaintiff

show cause as to why civil action 1:15cv604 should not

be dismissed.1

1 To the extent plaintiff has concerns that a dismissal of

his original complaint might result in defendants being able to

argue that the complaint filed in 1:15cv625 is barred by not

9a

It is not dear from the docket sheet for

1:15cv625 whether a copy of the complaint and

summons have been served on the defendants;

however, given the length of time this plaintiff’s

claims were pending in the Northern District of

California (the transferred complaint is the Fifth

Amended Complaint), defendants should be deemed

to be fully aware of this litigation.

To avoid further delay, it is hereby

ORDERED that defendants file their answer or

other responsive pleading within twenty-one (21)

days.

The Clerk is directed to forward copies of this

Order to counsel of record.

Entered this 22nd day of June, 2015.

Alexandria, Virginia

/s/ LMB

Leonie M. Brinkema

United States District Judge

having been tiled within 90 days of issuance of the EEOC’s right

to sue letter, such argument will not be considered, unless there

are claims in this complaint which were not before the EEOC or

in the original complaint.

10a

[ENTERED: October 2, 2015]

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TERRANCE S. HAYNIE,

)

)

Plaintiff,

)

) 1:15-CV-604

v.

) (LMB/JFA)

) 1:15-CV-625

UNITED AIR LINES, INC. ET AL., ) (LMB/IDD)

)

Defendants.

)

ORDER

For the reasons stated in open court, it is

hereby

ORDERED that the Complaints in 1:15-CV604 [Dkt. No. 8] and 1:15-CF-625 [Dkt. No. 1] be and

are DISMISSED without prejudice; and it is further

ORDERED that the Plaintiff shall file an

amended complaint within fourteen (14) days only in

1:15-CV-625 that may not incorporate any issue

already resolved during the course of the earlier

litigation in the Northern District of California; and

it is further

ORDERED that Defendants will have fourteen

(14) days in which to file any responsive pleading to

Plaintiff’s amended complaint.

11a

The Clerk is directed to close civil action 1:15CV-604 and forward copies of this Order to counsel of

record.

Entered this 2nd day of October, 2015.

Alexandria, Virginia

/s/ LMB

Leonie M. Brinkema

United States District Judge

12a

[ENTERED: November 20, 2015]

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TERRY S. HAYNIE

)

)

Plaintiff

)

)

No.

v.

) 1:15-cv-625

) (LMB/IDD)

UNITED AIR LINES, INC. and

)

CONTINENTAL AIRLINES, INC., )

)

Defendants

)

ORDER

For the reasons stated in open court,

Defendants’ Motion to Dismiss Portions of First

Amended Complaint [Dkt. No. 29] is GRANTED, and

it is hereby

ORDERED that Counts II, III, and IV and

defendant Continental Airlines, Inc. be and are

DISMISSED.

The Clerk is directed to forward copies of this

Order to counsel of record.

Entered this 20th day of November, 2015.

Alexandria, Virginia

/s/ LMB

Leonie M. Brinkema

United States District Judge

13a

[ENTERED: August 25, 2017]

UNITED STATES COURT OF APPEALS

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TERRANCE S. HAYNIE

Plaintiff,

v.

UNITED AIRLINES, INC.

Defendants.

)

)

)

)

)

)

)

)

)

No. 1:15-cv-625

(LMB/IDD)

ORDER

For the reasons stated in open court, plaintiff’s

Motion to Alter, Amend, and Vacate Order [Dkt. No.

225] is DENIED, defendant’s Motion for Attorney’s

Fees [Dkt. No. 213] are GRANTED IN PART AND

DENIED IN PART, and it is hereby

ORDERED that, as to the Bill of Costs, plaintiff

is ordered to pay $14,632.99 and, in addition,

$5,407.94 for the costs of defendant hiring a third

party vendor to process plaintiff’s emails, for a total

amount of $20,040.93 payable to defendant, and it is

further

ORDERED that each of the three plaintiff’s

counsel identified as responsible for prosecuting this

civil action pay defendant $10,000 for excessive cost

under 28 U.S.C. § 1927.

14a

The Clerk is directed to forward copies of this

Order to counsel of record.

Entered this 25th day of August, 2017.

Alexandria, Virginia

/s/ LMB

Leonie M. Brinkema

United States District Judge

15a

[ENTERED: December 17, 2018]

FILED: December 17, 2018

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-2109 (L)

(1:15-cv-00625-LMB-IDD)

TERRY HAYNIE, a/k/a Terrance S. Haynie,

Plaintiff - Appellant,

v.

UNITED AIR LINES, INC.,

Defendant - Appellee,

and

CONTINENTAL AIRLINES, INC.,

Defendant.

No. 17-2124

(1:15-cv-00625-LMB-IDD)

TERRY HAYNIE, a/k/a Terrance S. Haynie,

Plaintiff - Appellee,

v.

16a

UNITED AIR LINES, INC.,

Defendant - Appellant,

and

CONTINENTAL AIRLINES, INC.,

Defendant.

ORDER

The court denies the petition for rehearing and

rehearing en banc. No judge requested a poll under

Fed. R. App. P. 35 on the petition for rehearing en

banc.

Entered at the direction of the panel: Judge

Duncan, Judge Keenan, and Judge Diaz.

For the Court

/s/ Patricia S. Connor, Clerk

17a

[ENTERED: October 2, 2015]

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

TERRANCE S. HAYNIE,

. Civil Action

. No. 1:15cv625

Plaintiff,

.

. Alexandria,

vs.

.

Virginia

UNITED AIR LINES, INC., and

. October 2, 2015

CONTINENTAL AIRLINES, INC., .

10:00 a.m.

.

Defendants.

.

. . . . . . . . . . . . .

TRANSCRIPT OF STATUS CONFERENCE

BEFORE THE

HONORABLE LEONIE M. BRINKEMA

UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFF:

CURTIS M. HAIRSTON, JR., ESQ.

McEachin & Gee PC

211 E. German School Road

Richmond, VA 23224

and

JAMES L. BROWN, ESQ. (telephone)

James Leonard Brown, APC

5900 Wilshire Boulevard

Suite 2645

Los Angeles, CA 90036

18a

FOR THE DEFENDANTS:

NEAL D. MOLLEN, ESQ.

STEFANEE J. BANDON, ESQ.

Paul Hastings LLP

875 15th Street, N.W.

Washington, D.C. 20005

and

DONNA M. MELBY, ESQ. (telephone)

Paul Hastings LLP

515 South Flower Street

25th Floor

Los Angeles, CA 90071

(Pages 1 - 10)

COMPUTERIZED TRANSCRIPTION OF

STENOGRAPHIC NOTES

OFFICIAL COURT REPORTER:

ANNELIESE J. THOMSON, RDR, CRR

U.S. District Court, Fifth Floor

401 Courthouse Square

Alexandria, VA 22314

(703)299-8595

PROCEEDINGS

THE CLERK: Civil Action 15-625, Terrance S.

Haynie v. United Air Lines, Inc., et al. Would counsel

please note their appearances for the record.

MR. HAIRSTON: Good morning. My name is

Curtis Hairston. I represent the plaintiff, Terrance

Haynie.

19a

THE COURT: Then you need to be sitting by

the jury. You-all need to switch positions, or I will be

totally confused this morning.

MR. HAIRSTON: Yes, ma’am.

THE COURT: All right, Mr. Hairston.

And for defense?

MR. MOLLEN: Good morning, Your Honor.

Neal Mollen and Stefanee Handon of Paul Hastings

for United, and you also have on the phone my

partner, Donna Melby, who’s going to be addressing

the Court this morning.

THE COURT: All right. Ms. Melby, can you

hear us?

MS. MELBY: Good morning, Your Honor. I

mentioned to your clerk or whoever was on the phone

that we’re having a great deal of difficulty,

unfortunately, hearing, hearing the Court.

THE COURT: Well, there will be a transcript

MR. BROWN: This is James Brown. The same

difficulty, yes.

THE COURT: There will be a transcript of this

proceeding available for you, but I have counsel for

both sides in my courtroom. We’re going to proceed.

This is a status conference. If you cannot hear us, as

I said, you get a copy of the transcript, all right?

MS. MELBY: We can hear you faintly, Your

Honor, so we’ll try to participate that way.

20a

THE COURT: All right. Is there any other

attorney on the phone besides you?

MR. BROWN: Yes. James Brown for the

plaintiff.

THE COURT: All right, Mr. Brown, thank you.

All right. Well, this was set as a status hearing,

although there is pending this issue as to whether or

not Civil Action 15cv604, which was the transferred

action into this court from California, or the newly

filed action of 15cv625 should be the case that goes

forward. Has that issue been worked out between youall, Mr. Hairston?

MR. HAIRSTON: No, ma’am. We -MS. MELBY: No, Your Honor.

THE COURT: All right. Wait, I’m hearing from

the plaintiff’s counsel, Mr. Hairston. Go ahead.

MR. HAIRSTON: No, ma’am. We have

discussed it and tried to work it out. What we -- we’ve

agreed on some issues. What we’ve agreed upon is

that the plaintiff has agreed to abandon all but three

charges or three parts of the complaint: the hostile

work environment, retaliation, and constructive

discharge.

However, the parties disagree on how we

should proceed from here. It’s the plaintiff’s position

that these three complaints or charges should be

contained in an amended complaint that should be in

625 and just move forward with an amended

complaint with those charges; however, the defendant

would like to retain 604 as well, and that’s where the

21a

parties -- that’s where we stand at this point, Your

Honor.

THE COURT: Well, just reading the body

language of defense counsel, I’m not sure you’ve

adequately described the situation. Let me hear from

the defense on this.

MR. MOLLEN: Your Honor, I’m -MS. MELBY: Yes, Your Honor. This is, this is

Donna Melby. We obviously have no objection to the

abandonment of claims. As we understand it, the

intent would be to abandon all promotion claims.

Counsel has said that he wishes to maintain a

hostile work environment claim, a retaliation claim,

and a constructive discharge claim, but our position

remains twofold: one, that Haynie I, which is 604,

we’ve been calling them in the pleadings, I think,

Haynie I and Haynie II, 604 has to be the governing

complaint for all the reasons that we’ve put in the

response to the order to show cause, not the least of

which is all of the prior orders that have been issued

over the complex history of the case prior to transfer.

But in addition to that, we object to the second

complaint and to the addition of any retaliation claim

both because retaliation is not addressed in the

amended complaint and retaliation is not mentioned

in the paperwork which counsel for the plaintiff

submitted in response to the order to show cause

issued by the Court, and so retaliation is something

brand new discussed this morning, and we think

improperly so.

22a

If, if counsel wishes to amend the fifth

amended complaint in the Haynie I matter, 604, we

would, of course, oppose amendment and seek leave

simply to respond with a motion to dismiss to Haynie

604. However, as a second option, then if the Court

would consider a motion to amend, then we would,

obviously, respond to whatever that amendment is,

but we would certainly object to any retaliation claim

since it has not been included to the present, at least

as I understand the retaliation claim as counsel

articulated it on the phone, either in the new

complaint filed in the Eastern District of Virginia,

625, or at any time up until the present.

THE COURT: Mr. Hairston, is that correct,

that there has never been a retaliation actual claim

in any of the prior complaints?

MR. HAIRSTON: That is correct, Your Honor.

THE COURT: Then I think you’d be barred if

nothing else because it’s never been raised with the

EEOC either.

MR. HAIRSTON: Well, but, Your Honor, and

that’s what I was about to say. It has been raised with

the EEOC. One thing I’d like to -THE COURT: Well, recently? Is there a new

complaint with the EEOC?

MR. HAIRSTON: Yes, ma’am.

THE COURT: Then that’s a new case. It’s down

the road. It’s not ripe for this case. We’re going to

resolve all of these issues now.

Has a right to sue letter been issued yet?

23a

MR. HAIRSTON: Yes, ma’am, and that’s the

whole point of 625. 625 was not to repeat anything

that was in 604. 625 was filed as a result of a new

EEOC complaint and a right to sue letter that was

issued to Captain Haynie, and the reason that 625

was filed is that if it had not been filed, then he would

have been barred by the statute of limitations from

proceeding on the things that are contained in that

EEOC charge and the right to sue, and that’s the -and retaliation was, in fact, part of that EEOC

complaint, which again, that’s the whole reason that

625, or Haynie II, must, must exist, and we would

maintain that we have a right to amend it because

that’s a complaint that’s pending and there’s been no

response filed to that complaint.

THE COURT: What about the constructive

discharge? I thought that that was an issue which the

defense said was outside the scope of the original

complaints.

MR. HAIRSTON: And when you say the

original complaints -THE COURT: Well, I mean, the California line.

When did your client terminate his relationship with

United Airlines?

MR. HAIRSTON: I believe that was -- I’m

sorry, Your Honor, I don’t know that date.

THE COURT: Well, ballpark figure. 2014?

2015? 2013?

MR. HAIRSTON: I believe it was 2014. And he

filed a new EEOC complaint in November of 2014,

was issued a right to sue letter in March of 2015.

24a

And again, those are the things that -- that’s

the basis for the -- for 625, or Haynie II.

THE COURT: All right. Now, the other option,

as I understand it, that’s been suggested by the

defendant is if 625 becomes the operative complaint,

that incorporated into 625 would be all the prior

rulings that had occurred in the, what I’m going to call

the Haynie I.

Do I represent that accurately, Ms. Melby?

That was one of your alternative approaches to

handling this problem.

MS. MELBY: That was the second choice,

obviously, to follow after the first choice, which is that

we would just follow along with the original

complaint, because, because there are two problems

or three or more with the new complaint, and so it

just, it just makes more sense to just go on with the

original complaint that’s been pending for some time.

THE COURT: All right. We need to get this

case moving, and so I’m going to rule as follows: I’m

dismissing the first complaint. 625 remains the only

operable complaint in this case. It is inarticulately

written, so I’m directing that it -- dismissing it

without prejudice.

I’m allowing the plaintiff to file, in fact, they

have to file within 14 days a proper first amendment

to the 625, and that’s the only time you will be allowed

to amend that complaint, so you’d better get the

grammar right, the spelling right, and all the theories

correct.

25a

To avoid wasting my time and defense

counsel’s time, you may not incorporate into the

amended 625 any issue that has already been

resolved by the judges in California. The proper thing

if you disagreed with those rulings was to file an

appeal of those rulings. So that the amended 625

complaint will have only those issues which the

California court allowed to go forward.

I am allowing you, whether they are timebarred or not is an issue down the road, but you’d get

the benefit of the 625 original filing date. If you have

a proper complaint -- claim for constructive charge

and for retaliation, then you can put them in there,

and we’ll get it all resolved in one matter.

I’m going to also direct that as soon as that

amended complaint is filed, then the defense must get

their answer or dispositive motion, I’m only giving

you 14 days. I want to get this thing moving. I mean,

you already have a pretty good idea of what’s going

on.

But I will tell you, Mr. Hairston, and your

colleague in California that if you put in that

amended complaint allegations or claims that have

been clearly dismissed by the California courts, you

may face sanctions. I don’t want to waste my time; I

don’t want to waste the defendants’ time.

Let’s get to the core of this case and not have

all of these procedural problems, all right? So you

really need to spend time and make sure that that

amended 625 is a good, clean, accurate complaint, all

right?

MR. HAIRSTON: Yes, ma’am.

26a

THE COURT: All right, that’s my ruling.

Thank you.

MR. HAIRSTON: Thank you, Your Honor.

MR. MOLLEN: Thank you, Your Honor.

(Which were all the proceedings

had at this time.)

CERTIFICATE OF THE REPORTER

I certify that the foregoing is a correct

transcript of the record of proceedings in the aboveentitled matter.

/s/

Anneliese J. Thomson

27a

[ENTERED: November 20, 2015]

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

TERRANCE S. HAYNIE,

. Civil Action

. No. 1:15cv625

Plaintiff,

.

. Alexandria,

vs.

.

Virginia

UNITED AIR LINES, INC., and . November 20, 2015

CONTINENTAL AIRLINES, INC.,.

10:12 a.m.

.

Defendants.

.

. . . . . . . . . . . .

TRANSCRIPT OF MOTIONS HEARING

BEFORE THE

HONORABLE LEONIE M. BRINKEMA

UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFF:

CURTIS M. HAIRSTON, JR., ESQ.

McEachin & Gee PC

211 E. German School Road

Richmond, VA 23224

28a

FOR THE DEFENDANTS:

STEFANEE J. HANDON, ESQ.

Paul Hastings LLP

875 15th Street, N.W.

Washington, D.C. 20005

and

DONNA M. MELBY, ESQ.

Paul Hastings LLP

515 South Flower Street

25th Floor

Los Angeles, CA 90071

OFFICIAL COURT REPORTER:

ANNELIESE J. THOMSON, RDR, CRR

U.S. District Court, Fifth Floor

401 Courthouse Square

Alexandria, VA 22314

(703)299-8595

(Pages 1 - 21)

COMPUTERIZED TRANSCRIPTION OF

STENOGRAPHIC NOTES

PROCEEDINGS

THE CLERK: Civil Action 15-625, Terrance S.

Haynie v. United Airlines, Inc., et al. would counsel

please note their appearances for the record.

THE COURT: All right, counsel, please note

your appearances.

MR. HAIRSTON: Good morning, Your Honor.

I’m Curtis Hairston. I’m here representing the

plaintiff, Mr. Terrance Haynie.

29a

THE COURT: All right, good morning.

MS. MELBY: Good morning, Your Honor.

Donna Melby, Paul Hastings, on behalf of the

defendant, and Stephanie Handon of Paul Hastings is

also with me this morning.

THE COURT: Good morning.

MS. HANDON: Good morning.

THE COURT: All right. Before the Court is the

motion to dismiss three counts of the first amended

complaint. You-all may have a seat. The counts that

are at issue, Count 2 is the retaliation count, Count 3

is retaliation -- I’m sorry, retaliatory hostile

environment, and Count 4 is constructive discharge.

In addition, the defendants have asked the Court to

dismiss Continental as a defendant in this case.

Now, Mr. Hairston, I want you at the lectern,

please.

MR. HAIRSTON: Yes, ma’am.

THE COURT: All right. Let’s start with

Continental first of all. Are any of the acts which are

at issue in the first amended complaint, did any of

them involve Continental?

MR. HAIRSTON: It’s our position that they

involve Continental to the extent that Continental

and United have a shared management -THE COURT: You’re not answering the

question. Do you have any, any evidence or is any part

of the complaint based on allegations that

Continental employees or Continental management

30a

people were

harassment?

involved

in

any

of

the

alleged

MR. HAIRSTON: At this point, Your Honor, I

could not point to a specific allegation.

THE COURT: All right. Now, you know that in

all -- with all of the EEOC complaints that were filed,

and there were at least three in this case, none named

Continental as a defendant. They only named United

Airlines. I think that’s been pointed out by the

defendants in their, in their paperwork.

I don’t believe based on what you’ve said in

court and what’s in the papers that there’s any basis

upon which to keep Continental in this litigation.

They were not given an opportunity before the EEOC

to address any of these issues. They’ve never been

named before the EEOC, and you’re not able to point

to any particular Continental employee that was

involved in any of the activities at issue in the first

amended complaint, so I am dismissing Continental

from this case.

MR. HAIRSTON: Your Honor, can I address

one part of that, Your Honor?

THE COURT: Go ahead.

MR. HAIRSTON: That would be true and I

would concede that with regard to the Title VII issues,

but again, what we have here is also a 1981 claim, and

one of the ironies of the plaintiff’s -- excuse me, of the

defendant’s position on this issue is that the

defendant has maintained and tried to say that they

should be -- that all of the parties should be bound by

what happened in Haynie I, in the California court.

31a

Well, to my knowledge, this is the first time

that this issue has been raised. I don’t think the, the

defendant has objected to this point that Continental

was a party to the 1981 claim that was pending in

Haynie I.

Again, there’s -- what we’re trying to avoid

here, Your Honor, is that there’s obviously a

complicated relationship between United and

Continental, and we just believe that it’s too early to

eliminate Continental when we know they have

shared management and shared personnel.

I would suggest to the Court that the defendant

attempts to define “employer” too narrowly. The

Fourth Circuit has been very clear that an employer

is defined much broader for the purposes of 1981 than

your conventional employer. It’s a, it’s an entity that

controls the terms of employment or somehow -- well,

basically, that’s it. It’s a control test, how they affect

the terms of the employment.

And it’s our contention at this point that based

on that shared management, Continental did, in fact,

have control over Mr. Haynie’s employment.

THE COURT: Let me hear the defense respond

to that.

MS. MELBY: Your Honor, I don’t think that it

is correct that Continental’s involvement has not ever

been challenged before, but I would need to go back

and check the record to be absolutely sure about that.

I think that that, however, is a nonissue.

It is undisputed that Mr. Haynie never worked

for Continental Airlines. It is undisputed that

32a

THE COURT: Well, let me stop you. He was

hired, we know, by United and worked many, many

years for United, and the, I was going to call it a

merger, but the business relationship between

Continental and United occurred in, what, 2010?

MS. MELBY: End of 2010-2011, right in there.

THE COURT: All right. And I believe the

plaintiff left his employment with the airline,

whatever we’re calling it, in, what, 2014? 13? 12?

When was the constructive discharge?

MR. HAIRSTON: 2014, Your Honor.

THE COURT: ’14, all right. So there’s at best a

four-year window of his employment in the airline -with the airline company when Continental was

related to United.

Now, during that business relationship, did

Continental remain a branded airline? In other

words, were Continental planes still flying as

Continental, or did they change to United, do you

know?

MS. MELBY: With certainty, I can’t answer

that.

Just from my nonlegal knowledge, my

recollection is that for some period of time, I think it

was called United Continental, and then it’s all

United.

THE COURT: All right. But there was a time

when it was United Continental.

MS. MELBY: Again, that’s not from my legal

knowledge. That is from just --

33a

THE COURT: Usually how these airline

mergers -- yeah, okay.

Again, there ought to be clear evidence -- and

the plaintiff should be able to allege this in their

complaint, and I don’t believe it has been alleged, and

that’s why I asked Mr. Hairston if he had, you know,

he can orally tell me whether there were any

situations where he got a flight assignment to fly a

Continental flight, whether he had Continental

managers. I mean, without that, there’s no basis for

Continental to be in this case.

And again, I still think there’s a problem

because the EEOC, there was never any exhaustion.

Now, for 1981, there wouldn’t have to be, but I don’t

see it.

And I also don’t understand why there’s really

any major problem for the plaintiff if this case is just

against United. What is the, what is the deficit that

the plaintiff suffers if Continental is not in this case?

MR. HAIRSTON: Your Honor, our concern is

that we get down the road some and -THE COURT: Well, you need to be at the

lectern.

MR. HAIRSTON: Yes, ma’am. It’s our concern

that we get down the road some point and we become

the victims of a shell game.

THE COURT: Oh, that won’t happen. If that’s

what your concern is, that’s not going to happen, all

right?

Because you’re stuck with this Court

throughout the terms of this trial -- this case, and

United has come in and said Continental is not a

34a

proper defendant in this case. If they were to come in

and at the last minute say, oh, no, all these things

occurred because Continental did them, you can come

and raise that issue with me. I will remember this

hearing, all right?

MR. HAIRSTON: Then -THE COURT: So you did it as a protective

measure for your client. I’m going to -- as I said, I’m

not changing my decision that Continental at this

point does not belong in the case, and if there’s an

issue that starts to arise because of this decision, you

can come back to court and ask for some relief on that,

all right?

MR. HAIRSTON: Yes, ma’am.

THE COURT: All right. Now, you have a bigger

problem with Counts 2, 3, and 4, because this, this is

the fifth -- in essence, this is probably, yeah, this is

the fifth attempt at getting a complaint properly

before the Court. This litigation began in California,

as you know, with, I believe, 23 or so defendants -plaintiffs, and the California court went through

multiple iterations of the various complaints.

The law of this case, as I made clear when youall first started appearing here, was that we were not

going to review or reverse any decisions made by the

district courts in California that have looked at the

previous litigation. So when you -- first of all, when

the fifth amended complaint was transferred from

California to this court and filed here and then you

filed a separate new complaint here, that’s what

started to create the problems, and then as you know,

what I ordered is that that fifth amended complaint

35a

from the California litigation and this new complaint

that you were filing here be redrawn as one complaint

in this court, and you were not permitted to add any

new claims in what is to be the final complaint in this

court.

Now, you had dropped a footnote -- and when I

say “you,” I don’t mean you necessarily; I mean the

plaintiff’s counsel -- had dropped a footnote in that

fifth amended complaint, the one that was

transferred here, that you might be filing in the future

a constructive discharge claim. The court in

California had made it clear that there could be no

amendments to the complaint without permission in

advance from that court.

You didn’t get permission from the California

court to add a constructive discharge claim. Instead,

it was filed in the new case here.

So the defense has argued, among other things,

that, number one, some, Counts basically 2, 3, and 4

have not been authorized properly, but more

seriously, they’re also time-barred. Now, with the

constructive discharge claim, they put forward that

you are 91 days late, that after the EEOC issued its

right to sue letter, you did not file that claim until the

91st day, and that’s giving you the three-day benefit

for the mailing ruling, which is the law in the Fourth

Circuit, and you have not provided an affidavit or any

evidence that would show that, in fact, your client did

not receive the notice or anything else upon which the

Court could determine that, in fact, that 90-day time

limit had been complied with.

And just saying that this is not an issue to be

addressed at a motion to dismiss stage is not an

36a

adequate response. So is there any other evidence or

anything you have to present on that issue of the

constructive discharge count, which is time-barred at

this point?

MR. HAIRSTON: Your Honor, I guess my

question would be do you want me to address the

time-barred issue or the issue regarding permission

to amend first?

THE COURT: Well, you didn’t get permission

to amend, did you?

MR. HAIRSTON: It’s, it’s -THE COURT: Yes or no, did you get permission

to amend?

MR. HAIRSTON: Yes, ma’am.

THE COURT: How?

MR. HAIRSTON: The last time we were here,

it was my interpretation -- or our interpretation of the

Court’s ruling at that time that not only was the

Court giving us permission to amend, but the Court

was ordering us to amend the complaint.

I

specifically-THE COURT: But don’t you remember, what

we said explicitly was you were to have we were only

going to work with one complaint, because we now

had this fifth amended complaint that had been

transferred from California, and you-all had gone

ahead and filed this new complaint, and what we told

you was that the final complaint, which is the one

that’s at issue right now, which we’re calling a first

amended complaint -- it’s really the sixth, I guess, at

37a

this point, but anyway -- was it could not add any

claims, it could not expand what was done in

California, and it couldn’t add any issues in the

complaint that had already been dismissed by

California. You were just to clean it up.

MR. HAIRSTON: But those are two different

-- there are two different things there, Your Honor.

Our understanding of the Court’s ruling and reading

of the Court’s order is that the only admonition from

the Court was that we could not add or include any

claims that had already been dismissed or resolved by

the California court.

When we were last here, I specifically argued

that we should be allowed to amend 625 to

include retaliation, hostile work environment, and

constructive discharge. And, Your Honor, I brought a

copy of the transcript in which I said specifically, “It’s

the plaintiff’s position that these three complaints or

charges” -- meaning hostile work environment,

retaliation, and constructive discharge-- “should be

contained in an amended motion that should be in 625

and just move forward with an amended complaint

with those charges.”

And it was my understanding from the Court’s

ruling that that’s what we were being given

permission to do, and in fact, this Court stated at the

end at the time the Court was ruling, “If you have a

proper complaint/claim for constructive charge” -- and

I believe that was “discharge” “and for retaliation,

then you can put them in there, and we’ll get it all

resolved in one matter.”

THE COURT: But the word “proper” is there,

and there’s an adjective there.

38a

Now, here’s your problem: Even if, even if you

had been given that permission, and I don’t think you

were, you’ve got a problem with your timing.

MR. HAIRSTON: And, Your Honor, that -- and

I can address the problem with the timing. Again,

that’s why I was trying to figure out how the Court

wanted me to address those things. Even if the Court

were to find that we are time-barred under Title VII,

these claims would survive under section 1981.

So that’s why again I want to stress that we –

the only reason we did not ask for leave to amend to

include these claims is because we thought based on

the Court’s ruling and the discussion that was had

that we were being given permission to include those

claims. I specifically addressed the issue that those

claims were, in fact, based on a new EEOC complaint

and a subsequent EEOC charge, I mean, EEOC right

to sue.

THE COURT: And that’s your problem. The

EEOC process has not been followed here. They’re

time-barred. I mean, you can’t just file an EEOC

complaint and then, you know, 96 days after the right

to sue letter issues, you don’t have a valid claim any

longer. There’s a -- that’s a very strict statute of

limitations.

MR. HAIRSTON: It would be our position,

Your Honor, and I -- that we’re talking about one day.

The Court -THE COURT: Ah, the rules are strict.

MR. HAIRSTON: And I understand that. What

I was about to say is that for the purposes of a 12(b)(6)

39a

hearing, it was our position that we could stand on the

allegation that it was timely filed. We did not think it

was proper to file an affidavit to convert what is a

12(b)(6) hearing to a motion for summary judgment

hearing. If given time -- if given permission to do that,

we can file a more specific -THE COURT: Well, I’m assuming when the

argument was presented to you in the motion to

dismiss, you talked with your client and you tried to

find out what really went on. What would you tell the

Court if you did get an extension?

I mean, again, he’s had counsel. Lawyers have

been on board on this case for some time. You-all

know how to count. I’m assuming that, that your

client advised you that he’d gone the right to sue

letter. I don’t know if the right to sue letter, if a copy

is also sent to counsel, but, you know, statute of

limitations are very strict, and the case law is clear on

this: Whether it’s one day or ten days, if it’s late, it’s

late.

MR. HAIRSTON: This is -- it’s -- what’s going

on here, Your Honor, is it’s opening the door to a much

larger issue, and that issue is this: Mr. Haynie would

testify that he did not actually receive the motion -the right to sue letter, that that right to sue letter

went to his former counsel, which my understanding

is that there are issues, significant issues about

whether certain actions taken by that counsel were

proper.

THE COURT: Well, then there may be a

malpractice case that your client has against that

attorney, but I don’t think it saves his case in this

court.

40a

MR. HAIRSTON: It would be our position that

it may if he were able to file an affidavit that would

deal with the issues of equitable tolling, those types

of issues, which we simply did not believe were proper

for a 12(b)(6) hearing. If the Court believes that those

things are proper, I mean, for this hearing and should

be taken into consideration, we would ask the Court

for permission to address those issues and to deal

with that more specifically.

But the other issue, Your Honor, is that it’s not

just -- we’re not talking about just the Title VII when

we’re talking about whether or not we properly

included these three claims. We’re also talking about

the 1981 claim that we believe survives regardless of

whether or not the Title VII case was timely filed.

And again, the portion that I read, I thought it

was very clear when we were here before that we, we

told the Court that we are going to add these claims

and the reason we’re going to add these claims is

because they were part of a new EEOC complaint and

there was a new claim and that unless we had filed

the new complaint, those things would have, in fact,

been time-barred, and it was my understanding that

the Court understood and accepted that argument

and again was giving us permission to file those

claims, with the only admonition being do not include

anything that has been in fact, what the Court said

later was, “If you put in the amended complaint

allegations or claims that have been clearly dismissed

by the California courts, you may face sanctions.”

And we were very careful not to include

anything that had been dismissed by the California

41a

court, and, in fact, the defense does not even contend

that we included anything that had been dismissed.

THE COURT: Well, then that raises an

interesting point because in the California litigation,

you had alleged and I’ll forget the exact number -- but

something like 14 failures to promote. There are no

failures to promote alleged in the current complaint.

Do you understand that?

MR. HAIRSTON: Yes, ma’am.

THE COURT: All right. And that was, I

assume, done -- and, and this failure to receive special

assignments, I don’t think all those allegations are

any longer in this complaint.

MR. HAIRSTON: No, ma’am.

THE COURT: All right. So you have, you have

significantly narrowed and reduced the issues.

MR. HAIRSTON: And that’s what we thought

the instructions from this Court were.

THE COURT: All right. Let me hear from Ms.

Melby in terms of the statute of limitations issue.

MS. MELBY: Thank you, Your Honor.

THE COURT: Yes, ma’am.

MS. MELBY: You want to hear from me on the

statute?

THE COURT: Yeah.

MS. MELBY: Okay. Well, with respect to the

statute of limitations, counsel said that if he had

42a

additional time to provide additional information,

that he would present something about equitable

tolling, but I, I don’t understand what that is. We

haven’t heard anything of what that is, and so the

papers themselves are unpersuasive in that they are

conclusory and they essentially don’t dispute the

motion paperwork, and therefore, they’re deemed

admitted.

There isn’t any issue that I can see as to the

statute of limitations. It seems to be pretty, pretty cut

and dried, but even, even if it weren’t, we still have

the problem that was first addressed by the Court,

which is that we have the law of the case from the

prior orders of the court in California which make

clear that there may be no new claims added, and that

was also clear the last time we were here in this court,

where the Court admonished counsel to read all of the

orders of the prior court, and in those orders, it is very

clear that all the orders of the California court

transfer attached to -- and this was addressed in the

order to show cause paperwork by both sides -attached to the complaint that was then transferred

to this district, the Eastern District of Virginia.

And so you have the law of the case, and then

you also have rule 15, which is put into place for very

good and sufficient and significant reasons, and that

is that if rule 15 is followed, as it should have been

here, to ask leave of Court, which there was plenty of

time to do, then we would have had the opportunity

to address why adding all of this new material after

three-and-a-half years is prejudicial and should not

be allowed and is, runs counter to the law of the case,

which has already been firmly established by multiple

orders over the course of three-and-a-half years.

43a

THE COURT: Now, of course, we’re only

dealing with three counts here. This is not the whole

case. Count 1 is still viable. There’s been no attack

made on that, and in fact, it appears to the Court that

Count 1 would cover, it’s a broad allegation, it would

cover most of the concerns that the plaintiff has in

terms of the conditions under which he had been

working.

I am not at all satisfied, Mr. Hairston, certainly

Ms. Melby is correct that your opposition to the

motion to dismiss provided the Court with almost

nothing. You have been far more articulate orally in

court today, but I’m going to go ahead and dismiss

Counts 2, 3, and 4 primarily because I’m satisfied that

they were not filed within the time limits that were

required, that in any case, Count 1 is going to allow

you to address most of the issues that appear to be

troubling your client, and your case can still go

forward. So it will go forward as to Count 1 only, and

I’ve made my ruling.

Yes, ma’am.

MS. MELBY: Thank you, Your Honor. Just one

thing: I think we have only two days or something

close to that to answer, and so we just -- as long as

there’s no opposition, we’d like to ask the Court for

just a little bit of time to answer the complaint now

that the Court has ruled.

THE COURT: Well, how much more time do

you need?

MS. MELBY: Would two weeks be acceptable?

44a

THE COURT: Is there any objection to that two

weeks?

MR. HAIRSTON: No, ma’am.

THE COURT: All right.

MR. HAIRSTON: If I could ask for a

clarification?

THE COURT: Yes, sir. Count 1 will go forward.

You still have a complaint. The motion to dismiss has

been filed. There’ll be no more motions to dismiss. So

there will be an answer filed. We’re going to issue a

scheduling order today. I don’t think one has been

issued in this case yet, has one?

MR. HAIRSTON: Actually -THE COURT: Did we issue it already?

MR. HAIRSTON: Yes, ma’am.

THE COURT: All right. So you’re off then and

doing your discovery, and the case will go forward.

MR. HAIRSTON: I guess my question is is the

Court dismissing 1981 as well with regard to the

retaliation?

THE COURT: Count 1 is only -- the only count

you’ve got left is Count 1. Retaliation is out of the

case, yes. All right? And that’s how we’ll proceed.

So anyway, you’ll start getting your discovery.

Judge Davis is the -- I’m sorry, Judge Anderson

actually is the, is the -- no, I guess this is 625 that’s

left; is that correct?

45a

MR. HAIRSTON: Yes, ma’am.

THE COURT: All right. Then Judge Davis is

the magistrate judge assigned to the case. So if you

think about any kinds of efforts to settle -- and I

always recommend parties seriously think about

settlement. Again, Mr. Haynie has been involved in

this litigation for multiple years because it took so

many years in California. This case is going to get

resolved one way or the other within the next six to

eight months, which at very least should be some

satisfaction, and both sides should think seriously

about whether there is a way of resolving it without

going through all the expense of discovery, if you can

do it.

MR. HAIRSTON: Yes, ma’am.

THE COURT: All right?

MS. MELBY: Your Honor?

THE COURT: Yes, ma’am.

MS. MELBY: We have filed a joint discovery

plan with the magistrate, but I just have one

question, and that is this: The magistrate has set it

for hearing on the, on the day before Thanksgiving,

which is just a couple of days away, and -plan?

THE COURT: For a hearing on the discovery

MS. MELBY: On the -- for the pretrial -- he

calls it a pretrial conference, so I assume -THE COURT: My experience has been if both

sides have submitted a plan with which they -- to

46a

which there’s no objection, that they’re both

comfortable with, that many times the magistrate

judges just sign off on them without a hearing, so

there must be a dispute. Is there a dispute?

MS. MELBY: There is not.

MR. HAIRSTON: There is not. We’re just -- we

submitted the plan and, quite frankly, are just

waiting to see if the magistrate judge signs off on the

plan.

THE COURT: I think you could tactfully call

his chambers just to see, but I doubt there’d be a

hearing on Wednesday, all right?

MR. HAIRSTON: Thank you, Your Honor.

MS. MELBY: Thank you, Your Honor.

(Which were all the proceedings

had at this time.)

CERTIFICATE OF THE REPORTER

I certify that the foregoing is a correct

transcript of the record of proceedings in the aboveentitled matter.

/s/

Anneliese J. Thomson

47a

[ENTERED: June 23, 2017]

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

TERRANCE S. HAYNIE,

Plaintiff,

vs.

UNITED AIR LINES, INC.,

.

.

.

.

Defendants.

. . . . . .

.

. Civil Action

. No. 1:15cv625

.

. Alexandria,

.

Virginia

. June 23, 2017

.

10:30 a.m.

.

.

. .

TRANSCRIPT OF MOTIONS HEARING

BEFORE THE

HONORABLE LEONIE M. BRINKEMA

UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFF:

CURTIS M. HAIRSTON, JR., ESQ.

The Gee Law Firm, P.C.

211 E. German School Road

Richmond, VA 23224

and

JAMES L. BROWN, ESQ.

James Leonard Brown, APC

5900 Wilshire Boulevard

Suite 2645

Los Angeles, CA 90036

48a

FOR THE DEFENDANT:

DONNA M. MELBY, ESQ.

NATHALIE C. KNIGHT, ESQ.

Paul Hastings LLP

515 South Flower Street

25th Floor

Los Angeles, CA 90071

and

WILLIAM K. WHITNER, ESQ.

ERIC D. STOLZE, ESQ.

Paul Hastings LLP

1170 Peachtree Street, N.W.

Suite 100

Atlanta, GA 30309

(Pages 1 - 14)

COMPUTERIZED TRANSCRIPTION OF

STENOGRAPHIC NOTES

APPEARANCES: (Cont ‘d.)

FOR THE DEFENDANT:

STEFANEE.J. HANDON, ESQ.

Paul Hastings LLP

875 15th Street, N.W.

Washington, D.C. 20005

ALSO PRESENT:

TERRANCE S. HAYNIE

OFFICIAL COURT REPORTER:

ANNELIESE J. THOMSON, RDR, CRR

U.S. District Court, Fifth Floor

401 Courthouse Square

Alexandria, VA 22314

(703)299-8595

49a

PROCEEDINGS

THE CLERK: Civil Action 15-625, Terrance

Haynie v. United Air Lines, Inc. Would counsel please

note their appearances for the record.

THE COURT: All right. Counsel, do you want

to put your appearances on the record?

MR. HAIRSTON: Good morning, Your Honor.

I’m Curtis Hairston, and I’m representing the

plaintiff, who is here, Mr. Terrance Haynie, and I’m

accompanied by cocounsel, Mr. James Brown.

MR. BROWN: Good morning, Your Honor.

THE COURT: Good morning.

Ms. Melby, you’re here for the defendant?

MS. MELBY: Yes, Your Honor. Good morning.

THE COURT: Good morning.

MS. MELBY: Also with me this morning are

Nathalie Knight of Paul Hastings, Eric Stolze of Paul

Hastings -THE COURT: All right.

MS. MELBY: -- Stephanee Handon, who you

know, Paul Hastings; and K. Whitner, who you’ve met

from Paul Hastings.

THE COURT: All right. What’s before the Court

this morning are the final motions, dispositive motions

in this case. We have the plaintiff’s motion for partial

summary judgment addressing the defendant’s -- two

of the defendant’s affirmative defenses, and then we

have the defendant’s motion for summary judgment.

50a

And I have to say with great sadness that I

have to tell counsel for the plaintiff that in all the

years I’ve been on the bench, and I have unfortunately

had to say this before, I have never seen such poorly

written papers by counsel.

Mr. Hairston, I want you to address this since

you are local counsel. I want to know who wrote the

opposition to the defendant’s motion for summary

judgment.

MR. HAIRSTON: An individual by the name of

Jacob Rose.

THE COURT: What firm is he with?

firm.

MR. HAIRSTON: He is with the Willie Gary

THE COURT: Which is located where?

MR. HAIRSTON: In Florida.

THE COURT: But you’re local counsel, and

you’re responsible when something is filed in this

court to have read it. Did you read the opposition

before it was filed?

MR. HAIRSTON: No, ma’am. I did not have an

opportunity to read it before it was actually filed.

THE COURT: All right. Now, I’m sure you

know that it was not filed on time.

MR. HAIRSTON: Well, the, the actual brief

was filed. The attachments to the brief were untimely

well, I understand what the Court is saying. Yes, it

was not filed on time.

51a

THE COURT: And if you read it at some point,

you know that it was beyond the page limit set by the

Court’s local rules.

MR. HAIRSTON: Yes, ma’am.

THE COURT: And no request was ever made

to exceed those page limits, was it?

MR. HAIRSTON: No, ma’am.

THE COURT: All right. So I’m striking the last

five pages of that brief because they exceed the limits

set by the Court. In addition, they have other

problems.

Now, the second thing is did you ever look at

the exhibits?

MR. HAIRSTON: After it was filed, Your

Honor, yes.

THE COURT: Did you really?

MR. HAIRSTON: Yes, ma’am.

THE COURT: Did you look at the reply filed by

the defendants, when they go through how the

exhibits don’t match the citations in the brief?

MR. HAIRSTON: Yes, ma’am.

THE COURT: Did you think about possibly

doing something about that, writing some

amendment asking the Court to allow to you refile

them or do anything to try to save your opposition?

MR. HAIRSTON: Your Honor, quite frankly,

we did -- I considered that, and I thought the court

had made it very clear in its order granting the

52a

extension that the Court was not going to consider

anything else that was late or untimely filed, and I

made a decision at that point that we could live with

what had been filed and go forward on that or risk the

Court’s wrath by yet again asking the Court to give us

an opportunity to correct the errors that had been

made in the previously filed briefs.

THE COURT: Well, the problem you’ve got is

this is it. This is game day, and the Court has to

decide whether this case goes to trial based upon what

is properly in the record, and right now, you have filed

no exhibits to refute the evidence presented by the

defendants because your exhibits have been stricken.

They were -- you never got permission to file them

late. They’re, what, six days late. And then they don’t

match what’s in your brief.

Just as an example, page 6 of your brief says at

the very beginning, in paragraph subsection (d),

you’re quoting, so this is a quote from a consent

decree, and you give me the quote, and you say that’s

Exhibit 2, page 18. Well, it’s not there. It’s not there.

The very next page, page 7, paragraph (a), you

say, “A more complete account as set forth in Exhibit

539 to his deposition of January 22, 2016, included in

attached Exhibit 3, pages 64 to 68.” There isn’t even a

page 64 to 68 in Exhibit 3, and Exhibit 3 are

statements from a congressional hearing. It stops at

page 51.

That’s only on page 7. And it goes on from there.

No court should have to read this type of a

pleading from, especially from attorneys. Frankly,

most pro se-ers don’t do it this badly.

53a

So the problem we have in this case, and it’s

unfortunately been throughout many of the pleadings,

is we have the failure to follow the Court’s time limits,

we’ve got a failure to provide evidence, we have

ungrammatical writing, which I’ve chastised counsel

for previously, and in this case, some of the statements

are so incomprehensible -- there’s a statement on page

34 of your brief, again, it’s one of the pages I’m not

permitting to be part of the official record, but just as

an example, the quote is, “On imputing to remove

remaining rope from cavity three throw” -- t-h-r-o-w -“bag containing rope out open window.”

What does that mean? I don’t even know where

that came from. And there are more quotes like that.

And that was pointed out, frankly, in the

defendant’s reply brief, and I cannot believe that any

attorney who saw those types of errors or statements

being quoted from their brief wouldn’t have

immediately said: Your Honor, you know, we have to

correct the record. We meant to say such-and-such or

whatever. Nothing.

The other problem you’ve got, I mean, the

morass of problems is just awful, you’ve basically not

contested a significant number of the defendant’s

uncontested facts. You basically stopped contesting

them, and you provided no evidence. In summary

judgment, you can’t just say we disagree or that’s not

the case. You then. have to point to where in the

record there is evidence that supports that opposition,

and because your exhibits have been stricken, there’s

no evidence.

The other problem you’ve got, as you know, is

as the defendants pointed out, most of the allegations

54a

as to hostile environment occur before the time period

that is relevant to this case, whether it’s under Title

VII or section 1983. Now, you do correctly point out

that the way the law is structured, events that

occurred before the cutoff can still be considered as

part of the totality of events that create a racially

hostile environment if there are meaningful events of

hostility that occur within the proper time period, and

I -- as I understand this case, there are only three

groupings of events that could possibly be within the

time period.

The first is this allegation that there was

graffiti, but first of all, it’s not technically before me

because I struck your exhibits, so all I have is some

argument on that point, but I did look as a courtesy to

you, I was very interested in the graffiti argument,

and I looked at the pictures ·you submitted.

I don’t see a single thing in any of those

pictures that would suggest that there was a racial

component to that graffiti. Now, there’s no question

there was hostility in this record, that this record

shows hostility towards Capt. Haynie, but the type of

graffiti we have is that “Haynie sucks,” “F Haynie,”

those types of statements.

They’re hostile, there’s no question about it,

but in order to have a Title VII or a 1983 claim, you’ve

got to show that the hostility has a racial component

to it, and there’s nothing in that graffiti that is racist.

There are no pictures of nooses; I’ve had cases with

gorillas, monkey, bananas, other types of symbols

that some people feel might somehow connote some

sort of racial overtone, but just saying that somebody

sucks is not a racial statement. It’s obnoxious, it’s

55a

hostile, but it’s not the kind of thing that’s actionable.

So -MR. HAIRSTON: But, Your Honor?

THE COURT: Yeah.

MR. HAIRSTON: If I could address that, one,

we would suggest that there were instances of racial

graffiti and that Capt. Haynie did, in fact, testify to

the fact that there were instances of racial graffiti. In

fact, there was one particular instance that he

indicated that it did -- it said, “Nigger Haynie.”

THE COURT: But the problem is there’s no

evidence of when that occurred. It has to occur -- that

has to occur within the time period to be actionable.

That’s your problem.

The fact that -- the fact that six years ago, that

graffiti may have existed doesn’t mean that the fact

that “Haynie sucks,” which occurs within the time

period, is part of a continuing pattern of race-based

hostility.

MR. HAIRSTON: But there is testimony that

there were racial -- there was racial graffiti within the

time period.

THE COURT: Where is that in the record that

is properly before the Court now? That’s the problem.

Your job was to give me that information. Where are

the deposition transcripts or the photographs of that?

MR. HAIRSTON: Your Honor, given the

Court’s indication here today, it’s clear that counsel

made a mistake in not asking the Court for an

opportunity to correct the error. I’ve suggested to the

56a

Court that that decision was made based upon what

was set out in the Court’s order granting the

extension.

I certainly understand that it’s begging the

Court’s indulgence, but I would ask at this point,

given the Court’s indication, for an opportunity to

correct the record so that the Court could, in fact, have

proper evidence before it to consider the information.

I would suggest to the Court that what, what

you have before it are instances where the defendant

has cherry-picked certain statements that were made

by Capt. Haynie during his deposition and has taken

those statements out of context and mischaracterized

certain statements.

What we attempted to do in the brief or what

was attempted in the brief was to at least address that

and indicate that there were statements that were

taken out of context, for instance, with regard to the

graffiti, if the representation basically is made that

there were no there were -- was no racial graffiti

within the requisite time frame, and as I’ve

represented to the Court, that is not what Capt.

Haynie testified to.

THE COURT: But even if he testified to it,

there’s no evidence before the Court right now of that

fact.

MR. HAIRSTON: Well, and that’s why -- and

that’s why I’m making the request at this point.

THE COURT: No, it’s too late. I as you know, I

think I’ve gone-- I’ve bent over backwards to give you

a chance to put this case together, and normally I

57a

would not allow a plaintiff or any party’s case to be

dismissed because counsel was incompetent, but in

this case, Capt. Haynie has been on notice for months

that the Court has been concerned about the quality

of the lawyering in th.is case, and the defense

properly points out that at some point, a party is

responsible for the way in which his case is being

presented, and this -- you have not served this client

well by failing to meet deadlines and then, you know,

even when the Court gave you permission to file late,

not even filing the exhibits.

And any lawyer who practices in this. court

knows how to file exhibits. This is by our standards

not a case that has a lot of exhibits. Somebody,

whoever downloaded this thing or uploaded it should

have known how to file the exhibits, but the most

egregious problem with the exhibits is they don’t

match; so whoever wrote the brief wasn’t really

seriously looking at the documentation to support it.

In one of your statements later on in the brief

-- I mean, it looks as though some of this case involved

patchwork from possibly other cases. There are other

people being mentioned that aren’t even Capt. Haynie

that have no relevance at all to this case, but there’s

a morass of problems here that in my view require

that this case now is over.

We’re going to grant summary judgment for the

defendant because you have been unable to show any

acts that would constitute race-based hostility within

the appropriate time period. The June 12, 2012,

cockpit incident, first of all, there isn’t a scintilla of

evidence of race being involved in that. Your client,

why he had this problem with Midler is, it’s still sad.

58a

Your client admitted multiple times in his

deposition that Midler would respond appropriately

to airplane-related comments. To his professional

duties, he was interacting with your client. He didn’t

like your client, he didn’t want to talk to him, he didn’t

want to socialize with him, he didn’t want to make

chitchat with him. That might be rude, it might be

impolite, but to have evoked the response that it

evoked -- and there’s very little dispute in the

evidence, in fact, I don’t think there’s any as to what

happened in that cockpit, that essentially what your

client did was, number one, engage in a verbal -- in a

heated verbal conversation with Midler that

according to some of the flight attendants, people on

the plane could hear. The plane was filled with

passengers.

Your client did not give the alert to the

passengers that there was a delay. As a result of that

cockpit incident, there was a flight that was delayed

an hour and a half. At one point, your client, as you

know, locked himself in the cockpit. None of that is

disputed in this case.

People who were his friends, I mean, including

the other African-American supervisors involved in

this case, Smith and Simmons both have testified, the

behavior on June 12 clearly gave United proper basis

to want to have an evaluation of your client’s mental

health situation. There can’t possibly be any

reasonable inference of racial hostility involved in

that decision.

The record is uncontested that your client

declined to cooperate in that investigation, so you’ve

got that problem.

59a

You’ve got the problem that your client has

essentially admitted, because you have not contested

paragraphs 24 through 47 of the defendant’s

uncontested facts, and among those facts are a

concession that your client was aware of the HR

policies about harassment, that he never made any

complaint to management, to the HR people that he

felt he was being the victim of racial hostility or

harassment, so the defense would win essentially on

that alone -MR. HAIRSTON: Your Honor -THE COURT: -- despite the fact that these

events are so time-limited.

So I’ve given you my reasons, but I am granting

the motion for summary judgment. This case is over

at this point.

And I think, counsel, that, frankly, you owe

your client somewhat of an apology. The pleadings

were appalling in this case.

That’s my ruling. We’ll recess court for the day.

MR. HAIRSTON: Thank you, Your Honor.

(Which were all the proceedings

had at this time.)

CERTIFICATE OF THE REPORTER

I certify that the foregoing is a correct

transcript of the record of proceedings in the aboveentitled matter.

/s/

Anneliese J. Thomson

60a

[ENTERED: July 21, 2017]

PLAINTIFF’S EXHIBIT 1

EEOC Form 161-B (11/09)

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(ISSUED ON REQUEST)

To:

Terrance S. Haynie

REDACTED

Brookfield, CT 06804

From: San Francisco District Office

350 The Embarcadaro

Suite 500

San Francisco, CA 94105

†

On behalf of person(s) aggrieved whose identity is

CONFIDENTIAL (29 CFR §1601.7(a))

EEOC Charge No.

550-2012-01830

EEOC Representative

Deborah W. Randall,

Enforcement Manager

Telephone No.

(415) 525-5660

(See also the additional information enclosed with this

form.)

NOTICE TO THE PERSON AGGRIEVED:

Title VII of the Civil Rights Act of 1964, the

Americans with Disabilities Act (ADA), or the Genetic

Information Nondiscrimination Act (GINA): This is

61a

your Notice of Right to Sue, issued under Title VII,

the ADA or GINA based on the above-numbered

charge. It has been issued at your request. Your

lawsuit under Title VII, the ADA or GINA must be

filed in a federal or state court WITHIN 90 DAYS of

your receipt of this notice; or your right to sue based

on this charge will be lost. (The time limit for filing

suit based on a claim under state law may be

different.)

† More than 180 days have passed since the

filing of this charge.

7 Less than 180 days have passed since the filing

of this charge, but I have determined that it is

unlikely that the EEOC will be able to complete

its administrative processing within 180 days

from the filing of this charge.

7The EEOC is terminating its processing of this

charge.

† The EEOC will continue to process this charge.

Age Discrimination in Employment Act (ADEA): You

may sue under the ADEA at any time from 60 days

after the charge was filed until 90 days after you

receive notice that we have completed action on the

charge. In this regard, the paragraph marked below

applies to your case:

† The EEOC is closing your case. Therefore, your

lawsuit under the ADEA must be filed in

federal or state court WITHIN 90 DAYS of your

receipt of this Notice. Otherwise, your right to

sue based on the above-numbered charge will

be lost.

62a

† The EEOC is continuing its handling of your

ADEA case. However, if 60 days have passed

since the filing of the charge, you may file suit

in federal or state court under the ADEA at this

time.

Equal Pay Act (EPA): You already have the right to

sue under the EPA (filing an EEOC charge is not

required.) EPA suits must be brought in federal or

state court within 2 years (3 years for willful

violations) of the alleged EPA underpayment. This

means that backpay due for any violations that

occurred more than 2 years (3 years) before you file

suit may not be collectible.

If you file suit, based on this charge, please send a

copy of your court complaint to this office.

On behalf of the Commission

/s/

Michael Baldonado,

District Director

8/17/2012

(Date Mailed)

Enclosures(s)

cc:

UNITED AIRLINES

77 West Wacker Drive

Chicago, IL 60601

Melanie Yabut

SMITH PATTEN

353 Sacramento Street, Suite 1120

San Francisco, CA 94111

63a

[ENTERED: July 21, 2017]

PLAINTIFF’S EXHIBIT 2

EEOC Form 5 (11/09)

CHARGE OF

DISCRIMINATION

Charge Presented to:

This form is affected by † FEPA

the Privacy Act of 1974. 7 EEOC

See enclosed Privacy Act

Statement and other Agency(ies) Charge No(s):

information before

550-2014-01206

completing this form.

California Department Of Fair and EEOC

Employment & Housing

State or local Agency, if any

Name

Home Phone Date of

(indicate Mr., Ms., Mrs.) (Incl. Area Code) Birth

Terry S. Haynie

Street Address

City, State and ZIP Code

REDACTED

, Brookfield, CT 06804

Named is the Employer, Labor Organization,

Employment Agency, Apprenticeship Committee,

or State or Local Government Agency That I Believe

Discriminated Against Me or Others. (If more than

two, list under PARTICULARS below.)

Name

UNITED AIRLINES,

INC.

No.

Phone No.

Employees, (Include

Members Area Code)

500 or More

(312)

997-2915

64a

Street Address

City, State and ZIP Code

233 Wacker Drive, 14th Floor – Hdqct, San

Francisco, CA 60606

Name

Street Address

No.

Phone No.

Employees, (Include

Members Area Code)

City, State and ZIP Code

DISCRIMINATION BASED

ON (Check appropriate

box(es).)

DATE(S)

DISCRIMINATION

TOOK PLACE

7‚RACE †‚COLOR

Earliest

Latest

†‚SEX †‚RELIGION

03-04-2014

†‚NATIONAL ORIGIN

†‚CONTINUING

7‚RETALIATION †‚AGE

ACTION

†‚DISABILITY

†‚GENETIC INFORMATION

†‚OTHER (Specify)

THE PARTICULARS ARE (If additional paper is

needed, attach extra sheet(s)):

I started working for Respondent on or before

December 6, 1988 as a Second Flight Engineer. In

or around January 2007 I turned in another pilot

for flying intoxicated and in or around July 2012 I

filed an EEOC complaint. Since then I have been

denied promotional opportunities. In addition I was

being harassed by co-workers such as being

subjected to racially derogatory comments and

having graffiti in my workspace. I was given

different terms and conditions by having to

undertake a medical evaluation. I was placed on

65a

paid leave status until I was constructively

discharged on March 4, 2014.

Respondent has not provided a response to the

allegations.

I believe I have been retaliated against for engaging

protected activity and discriminated against

because of my race (Black) in violation of Title VII

of the Civil Rights Act of 1984, as amended.

I want this charge filed NOTARY – When

with both the EEOC and necessary for State and

the State or local Agency, Local Agency

if any. I will advise the Requirements

agencies if I change my

address or phone number

and I will cooperate fully I swear or affirm that I

have read the above

with them in the

processing of my charge charge and that it is true

in accordance with their to the best of my

knowledge, information

procedures.

and belief.

I declare under penalty SIGNATURE OF

of perjury that the above COMPLAINANT

is true and correct.

SUBSCRIBED AND

_______ ______________ SWORN TO BEFORE

Date

Charging Party ME THIS DATE

Signature (month, day, year)

Subscribed and sworn to before me

this 3 day of Dec 2014

/s/

.

NOTARY PUBLIC

MY COMMISSION EXPIRES 10.3.2016

66a

[ENTERED: July 21, 2017]

PLAINTIFF’S EXHIBIT 3

EEOC Form 161-B (11/09)

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE

(ISSUED ON REQUEST)

To:

Terry S. Haynie

REDACTED

Brookfield, CT 06804

From: San Francisco District Office

450 Golden Gate Avenue

5 West, P.O. Box 38025

San Francisco, CA 94102

†

On behalf of person(s) aggrieved whose identity is

CONFIDENTIAL (29 CFR §1601.7(a))

EEOC Charge No.

550-2014-01206

EEOC Representative

Genji Nakano,

Investigator

Telephone No.

(415) 522-3333

(See also the additional information enclosed with this

form.)

NOTICE TO THE PERSON AGGRIEVED:

Title VII of the Civil Rights Act of 1964, the

Americans with Disabilities Act (ADA), or the Genetic

Information Nondiscrimination Act (GINA): This is

67a

your Notice of Right to Sue, issued under Title VII,

the ADA or GINA based on the above-numbered

charge. It has been issued at your request. Your

lawsuit under Title VII, the ADA or GINA must be

filed in a federal or state court WITHIN 90 DAYS of

your receipt of this notice; or your right to sue based

on this charge will be lost. (The time limit for filing

suit based on a claim under state law may be

different.)

† More than 180 days have passed since the

filing of this charge.

7 Less than 180 days have passed since the filing

of this charge, but I have determined that it is

unlikely that the EEOC will be able to complete

its administrative processing within 180 days

from the filing of this charge.

7The EEOC is terminating its processing of this

charge.

† The EEOC will continue to process this charge.

Age Discrimination in Employment Act (ADEA): You

may sue under the ADEA at any time from 60 days

after the charge was filed until 90 days after you

receive notice that we have completed action on the

charge. In this regard, the paragraph marked below

applies to your case:

† The EEOC is closing your case. Therefore, your

lawsuit under the ADEA must be filed in

federal or state court WITHIN 90 DAYS of your

receipt of this Notice. Otherwise, your right to

sue based on the above-numbered charge will

be lost.

68a

† The EEOC is continuing its handling of your

ADEA case. However, if 60 days have passed

since the filing of the charge, you may file suit

in federal or state court under the ADEA at this

time.

Equal Pay Act (EPA): You already have the right to

sue under the EPA (filing an EEOC charge is not

required.) EPA suits must be brought in federal or

state court within 2 years (3 years for willful

violations) of the alleged EPA underpayment. This

means that backpay due for any violations that

occurred more than 2 years (3 years) before you file

suit may not be collectible.

If you file suit, based on this charge, please send a

copy of your court complaint to this office.

On behalf of the Commission

/s/

Michael P. Connolly,

Acting District Director

02/09/2015

(Date Mailed)

Enclosures(s)

cc:

Megan Detzner

Sr. Manager, EEO Compliance

UNITED AIRLINES

233 Wacker Drive

HDQLD-11th Floor

Chicago, IL 60606

Robin Dew

GARY, WILLIAMS, PERENTI, AND WATSON PLC

221 S.E. Osceola St

Stuart, FL 34994