Appendix — Daisley v. General Electric Co.

} [supreme Court, U.S.

i. FILED

| ABR 28 1989

88-1750 ‘|. PH F. SPANIOL, JR.

No. JOSE nate

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

EARLE A. DAISLEY,

Petitioner,

Vv.

GENERAL ELECTRIC COMPANY,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

APPENDIX TO

PETITION FOR CERTIORARI

[Rule 21(k)(iv]

Earle A. Daisley

5658-167 Stevens Forest Road

Columbia, Maryland 21045

(301) 992-9621

App. 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

EARLE A. DAISLEY

V. : CIVIL NO. HM-84-3216

GENERAL ELECTRIC

COMPANY

fl

MEMORANDUM

Pro se plaintiff Earle A. Daisley

("Daisley"), a black male, 55 years old

at the time of the events at issue,

brought this action after defendant

General Electric Company ("GE") laid

him off from its Jessup, Maryland office

and did not offer him a new position in

any other GE office. Daisley alleges

race and sex discrimination in violation

of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §2000e et seq., and age

App. 8

discrimination in violation of the

Age Discrimination in Employment Act

("ADEA"), 29 U.S.C. §621 et seq.

Pending before the Court is defendant's

Motion for Summary Judgment, Paper No. 24.1

Plaintiff filed his opposition. Paper No.

25. The Court has reviewed and considered

the memoranda submitted by the parties,

as well as all of the other documents in

the Court file, and determines that no

hearing is required. Local Rule 6. The

Court finds that there are no genuine

issues of material fact, and that the

undisputed facts reveal that GE is

entitled to summary judgment. The Court

will grant GE's motion in a separate order.

. This number is the docket entry

number in the official Court file. For

convenience, the Court will refer to

documents by their docket entry numbers.

App. 9

The Court's reasoning follows.

FACTUAL BACKGROUND

Daisley began working with GE in

1972, as a clerk in its Philadelphia

Credit and Collections office. In

November of 1979, the Philadelphia office

closed, and the Credit and Collections

department moved to Jessup, Maryland.

For this reorganization, GE offered all

employees who wanted to transfer the

Opportunity to do so. Daisley accepted

this offer and moved to Maryland.

Plaintiff's troubles began immediately

upon his arrival. Daisley did not live

up to GE's expectations. Eventually,

John Sheriff ("Sheriff"), Daisley's

é The Court draws the information

in this section from the combined memoran-

da submitted to this Court. None of this

section should be construed as a ruling or

a factual finding.

App. 10

supervisor, recommended his termination.

However, James Schlueter ("Schlueter").

manager of the Jessup office, noticed

in Daisley's application that plaintiff

had typing experience and recommended

that instead of terminating Daisley, he

be transferred to the Data Processing

Unit. Unfortunately, in the Data

Processing unit, Daisley did not work

fast enough. He was counselled by

John Borke (“Borke"), his supervisor,

on several occasions. An interim

performance goal was set for him, one

that set a lower rate of productivity

than that of his co-workers. However, he

was not able to maintain this level of

performance. Finally, on April 16, 1982,

Borke gave him a performance evaluation

which ranked him as unsatisfactory in

App. 1l

several categories. Daisley refused to

sign the vidiucting, and appealed it.

However, the appeal was denied, and this

unsatisfactory evaluation remained in

Daisley's record.

On September 2, 1982, GE notified

its employees at the Jessup offices that

most of the offices would close down, and

that the operations conducted there would

be moved to other offices. The Credit and

Collections office transferred to Mel-

ville, New York, and the Data Processing

Operation moved to Englewood Cliffs, New

Jersey. The letter advised the employees

that GE would not automatically transfer

them, but that they could apply for jobs

in the new locations. Daisley applied for

jobs with both the Credit and Collections

and Data Processing departments, but was

hired by neither. The layoff actually

App. 12

occurred on October 1, 1982. Daisley

wrote on several occasions requesting

jobs from GE, but GE never hired him

for any subsequent work. Daisley then

began the administrative proceedings

that are a prerequisite for filing an

action under Title VII and ADEA. When

the EEOC determined that there was no

reasonable cause to believe Daisley's

allegations of race, sex and age

discrimination, it issued Daisley a

notice of his right to sue. Daisley then

initiated this action.

STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate only

when "there is no genuine issue as to any

material fact and the moving party is

entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c). On GE's motion,

App. 13

the Court must view all facts and draw

all inferences in the light most

favorable to Daisley. U.S. v. Diebold,

369 U.S. 654, 655, 82 S.Ct. 993,

8 L.Ed.2d 176 (1962). However, Daisley

who has the burden of persuading the

Court that GE intentionally discriminated

against him, > still has the burden of

demonstrating the existence of genuine

issues of material fact to avoid the

3 Daisley, relying on United States

Postal Service Board of Governors v.

Aikens, 460 U.S. 711, 103 S.Ct. 1478,

75 L.Ed.2d 403 (1983), has concluded that

he need not submit evidence of discrimi-

natory intent on the part of GE. Paper No.

25, at pp.3, 11. Daisley has misread the

case. Aikens holds, not that plaintiff

need not prove intent, but that "[a]s in

any lawsuit, plaintiff may prove his case

by direct or circumstantial evidence.”

460 U.S. at 714, n.3 (emphasis added);

see Teamsters v. United States, 431 U.S.

324, 358 n.44, 97 S.Ct. 1843, 52 L.Ed.2d

396 (1977) ("[T]he McDonnell Douglas

formula does not require direct proof of

discrimination")(emphasis added).

App. 14

entry of summary judgment against him.

Celotex Corporation v. Catrett, 477 U.S.

Jif, 322°3, 106 S.Ct. 23546, 91 L. 84.24

265 (1986).° To do so, he may not rely on

conclusory allegations, but must, as must

any other plaintiff, provide the Court

with evidence indicating the existence

of these disputes ot fact. International

Woodworkers v. Chesapeake Bay Plywood

Corporation, 659 F.2d 1259, 1271

(4th Cir. 1981).

“ Plaintiff argues that the

Supreme Court's recent rulings in this

case and in the case of Anderson v. Liber-

ty Lobby, Inc., 477 U.S. 242, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986) do not apply

in his case, as neither of these were

Title VII oe ADEA cases. Paper No. 25,

at pp.8-9. Plaintiff is mistaken.

App. 15

STANDARDS FOR TITLE VII

Although plaintiff does not specifi-

cally so state, he is alleging disparate

treatment on account of race and/or sex.

He must therefore prove that GE's discri-

mination against him on the basis of his

race or sex was intentional. Texas Depart-

ment of Community Affairs v. Burdine,

450 U.S. 248, 256, 101 S.Ct. 1089,

67 L.Ed.2d 207 (1981); International

Brotherhood of Teamsters v. United States,

431 0.5. 324, 335 2.15, 97 $.Ct. 1643,

52 L.Ed.2d 396 (1977); McKenzie v. Sawyer,

684 F.2d 62, 70 (D.C.Cir. 1982). The

Supreme Court has delineated the three

part allocation of burden of production

for such disparate treatment cases.

Plaintiff must first demonstrate a

App. 16

prima facie case of intentional race

and/or sex discrimination before he may

go forward. McDonnell Douglas Corp. v.

Green, 411 °0.5.°.792, 802, 92 B.0t. 1817,

36 L.Ed.2d 668 (1973); Burdine, supra.,

450 U.S. 268, - 252-253, 108 S.Ct. t069,

1093. 67 L.Ed.2d 207 (1981). To accomplish

this, plaintiff must produce enough

evidence not only to permit the trier

of fact to infer the fact at issue, but

to mandate the entry of judgment in his

favor if defendant fails to produce

sufficient evidence to rebut. Burdine,

supra., 450 U.S. at 254 n. 7; Flowers v.

Crouch-Walker Corporation, 552 F.2d 1277,

1263 n. 4 (7th Cig. 1977). PlaintiftT

must show that he, as a member of a

protected group, was "treated differently

than other similarly situated individuals"

App. 17

and that “no adequate [non-discriminatory]

explanation for the different treatment"

exists. Day v. Patapsco & Back Rivers

Railroad Co., 504 F.Supp. 1301, 1310

(D. Md. 1981).

If Daisley establishes his prima

facie case, GE must produce evidence of

legitimate non-discriminatory reasons for

its actions to rebut the presumption the

prima facie case creates. Burdine, supra.,

450 U.S. at 254-5. To prevail at trial,

plaintiff must then demonstrate the

pretextual nature of defendant's stated

reasons. Burdine, supra., 450 U.S. at

255-256. The burden of persuasion rests

at all times with the plaintiff. Burdine,

450 U.S. at 256.

App. 18

Prima Facie Case for Discriminatory

Discharge

Daisley makes his prima facie case

by demonstrating:

(1) that he is a member of a

protected group;

(2) that he had the necessary

qualifications for his job;

(3) that GE discharged him; and

(4) that GE replaced him with

someone from outside of the

protected group.

McDonnell Douglas, supra., 411 U.S. at

5

802.

) McDonnell Douglas involved the

failure to rehire the plaintiff after a

layoff, and the prima facie case was

developed accordingly. The Court

specifically noted that the elements

of a prima facie case would vary

according to the situation. McDonnell

Douglas, supra, 411 U.S. at 802 n.13.

App. 19

Discriminatory Failure to Hire

To make a prima facie case of show-

ing that GE's failure to hire him was

because of discrimination, Daisley must

show that:

(1) he is in a protected group;

(2) that he applied for a job for

which he was qualified;

(3) that he was rejected; and

(4) that the company continued

seeking further applicants

with similar qualifications

outside of the protected

group.

McDonnell-Douglas Corp., supra., 411 U.S.

e Supreme Court noted in

the later case of Teamsters, this

formula varies according to the situation.

431 U.S. at 358. However, at a minimum,

Daisley must show as part of his prima

facie case that he was not rejected for

App. 20

the two most common-legitimate reasons:

that he did not have the adequate quali-

fications or that there were no openings.

Teamsters, supra., 431 U.S. at 358 n. 44.

STANDARDS FOR ADEA

To prevail on his ADEA cause of

action, Daisley may proceed in one of two

ways. The first is to show that, but for

age discrimination against him, GE would

not have taken the actions it took.

Lovelace v. Sherwin-Williams, 681 F. 2d

230, 239 (4th Cir. 1982). “Alternatively,

[he] may rely on the judicially created

proof scheme for Title VII cases

which has been adapted for application in

ADEA litigation." EEOC v. Western Electric

Co., Inc., 713 F.2d 1011, 1014 (4th Cir.

1983) (citations omitted). The use of the

App. 21

Title VII scheme in ADEA cases was intend-

ed to ease the plaintiff's burden of show-

ing discrimination under ordinary princi-

ples of proof. Goldberg v. B. Green & Co.,

Inc., 836 F.2d 845, 849 (4th Cir. 1988).

Because in the instant case plaintiff

would not prevail under either scheme,

the Court need not determine which would

be the most appropriate.

APPLICATION OF STANDARDS TO FACTS

The only issue before the Court is

whether GE discriminated against plaintiff

because of his race, sex or age. Daisley

has provided the Court with several docu-

ments that include lengthy and detailed

narratives of every woe that GE ever

caused him. Plaintiff's August 10, 1984

“position statement" attached to his

App. 22

Complaint, Paper No. 1; Plaintiff's

Complaint, Paper No. 5,° Plaintiff's Pre-

trial Narrative Statement, Paper No. 7;

and Plaintiff's Additional Brief and

Documentation on Summary Judgment Motion

Ordered by U.S. District Court Judge

Herbert F. Murray; Submission of, Paper

No. 9. Virtually none of it is relevant

to the issues before the Court. In most

of his discussion, plaintiff only

occasionally interjects the words "racism"

or "discrimination" when someone at GE has

taken an action with which he disagrees,

making conclusory allegations without

factual support. Most of the actions of

6 This was Daisley's second complaint

filed. GE construed this as an amended com-

plaint, and moved to dismiss it. Paper No.6.

The Court denied GE's motion in its Memoran-

dum and Order of November 25, 1987.

App. 23

which he complains occurred prior to

July 20, 1982. In its Memorandum and

Order dated November 25, 1987, the

Court ruled that Daisley could only

recover for discriminatory acts, if any,

by GE on or after July 20, 1982.’ The

Court concluded that Daisley could

challenge only the layoff from Jessup

and GE's subsequent failure to hire him.

Plaintiff disputes several facts,

most significantly GE's assessment of him

as unqualified. GE has submitted to this

Court concrete evidence in the form of

7 Even were the Court to determine

that events prior to July 20, 1982 were

relevant in creating an inference of

discrimination on the part of GE,

Daisley's submissions do nothing to

advance such an inference.

App. 24

documents and affidavits. Daisley's

response has been to submit little

evidence of his own but to rely on the

same evidence submitted by GE and to

argue that it reveals the conspiracy of

lies practiced by GE. The documentary

record is therefore crystal clear, and

the Court finds that Daisley's conclusory

allegations, unsupported by any evidence,

do not serve to create genuine issues of

tect.

Prima Facie Case

For both Daisley's layoff from the

Jessup office and GE's failure to rehire

him, under both Title VII and ADEA,

plaintiff must show as part of his

prima facie case that he possessed the

qualifications for the job. The Court

finds that the undisputed evidence in

App. 25

this case reveals that Daisley cannot

do this. Daisley began at Jessup as a

Grade 12 Credit and Collection Clerk.

Affidavit of James A. Schlueter

("Schlueter Aff."), attached as

Exhibit 2 to defendant's Motion for

Summary Judgment. Daisley's supervisor

in Credit and Collections, Sheriff, began

to have concerns about Daisley's

productivity in early 1980. The notes

made by the two supervisors are attached

as Exhibit 1 to the Affidavit of Schlueter.

Schlueter and Sheriff agreed to re-assign

Daisley to an easier Grade 8 job, rather

than continue him in the Grade 12 job,

but without reducing his salary. Schlueter

Aff., Par. 5. In spite of this change,

Daisley still could not perform as

speedily as expected.

App. 26

Sheriff and Dave Nicholson ("Nicholson"),

Daisley's immediate supervisor in the

Grade 8 position, recommended that he

be discharged, and advised Daisley of

this recommendation. Schlueter Aff.,

Par. 5; Sheriff'a and Nicholson's notes

of meetings with Daisiey on 3/13/80,

3/21/80 and 4/16/80, attached to

Exhibit 1 to Schlueter Aff. Schlueter

communicated this information to Bill

Kroekel, his supervisor, on May 16,

1980, and also recommended that Daisley

be discharged. Schlueter Aff., Par. 5

and Exhibit 1. Subsequently Schlueter

noticed on Daisley's application that

he had typing experience, and decided

that, rather than terminate him, GE would

transfer him to the Data Processing unit

at Jessup. Schlueter Aff., Par. 6.

App. 27

Daisley accepted the Grade 6 position

as Terminet operstor, transferred in

September 1980, and continued to receive

his Grade 12 salary. Schlueter Aff.,

Par. 6. However, in his position as

Terminet operator, Daisley had problems

with low productivity and high rate of

errors. Affidavit of James E. Borke

("Borke Aff."), Par. 3. The Terminet

computer itself kept records of the

number of characters entered daily, so

that Borke was able to ascertain that

Daisley's productivity was lower than

that of the other two operators.

Borke Aff., Par. 4, 5. Borke advised

Joan Garver Hoye ("Hoye"), Personnel

Manager for GE's Washington region, in

1981. Affidavit of Joan Garver Hoye

("Hoye Aff."), Par. 3. Hoye reviewed

Daisley's employment records, and

App. 28

submitted them all with a letter to Bill

Fishback, her supervisor. Hoye Aff.,

‘Par. 3. Hoye and Borke met and decided

that Borke should establish a production

goal for Daisley. Hoye Aff., Par. 4.

Borke met with Daisley to discuss these

problems on April 15, 1981. The result

of the meeting was that Borke advised

plaintiff that he must meet an interim

goal of entering 52,000 characters per

day, without working any overtime.

Borke Aff., Par. 5, 6; Borke's notes

of this meeting attached to Exhibit 2 to

Hoye Aff.

Daisley was able to meet this goal

only rately. Generally his weekly

average number of characters entered

fell below this goal, sometimes by as

much as 22,000 characters. Borke Aff.,

Par. 7; Earle's productivity record

App. 29

from 4/17/81 through 4/23/82, attached as

Exhibit 2 to Botke Aff.; Data Input

Productivity Record 1981, attached as

Exhibit 5 to Borke Aff. During the

summer of 1981, Borke learned that

Daisley was working overtime without

authorization. Concerned about potential

problems with wage and hour laws, Borke

sent plaintiff a memo advising him not to

work overtime. Borke Aff., Par. 8;

Exhibit 3 to Borke Aff.

Hoye continued to monitor Daisley's

performance and, seeing that it did not

improve, she wrote a letter to supervisor

C. R. Greer on December 29, 1981. In this

letter, she stated:

Among alternatives we have considered

are going with a performance case

and/or offering Mr. Daisley the

Opportunity to take a lack of work

with the possibility of an IEA lump

Sum payment.

"a App. 30

I feel if Mr. Daisley is going to be

an employee over a continued period

of time, we must get his pay in line

with that of Grade 6 jobs.

Hoye Aff., Par. 5; letter attached as

Exhibit 2 to Hoye Aff.

On April 16, 1982, Borke drafted,

and Hoye reviewed and approved, a

performance evaluation of Daisley.

Although he rated Daisley as "Fully

Satisfactory" in the categories of

Dependability and Responsibility, he

ranked him as “Unsatisfactory” in 3 of

the 4 other categories, and gave an

overall evaluation of Unsatisfactory.

Hoye AEf., Par. 6G; Borke AIf., Par. 9;

Evaluation attached as Exhibit 4 to

Borke Aff. and Exhibit 3 to Hoye Aff.

Daisley refused to sign the evaluation,

and requested the opportunity to appeal

it. Borke explained that he should do so

through Garver and John Girard ("Girard"),

App. 3l

Borke's supervisor. Borke Aff., Par. ll.

On May 10, 1982, Hoye met with Daisley

regarding the evaluation. She states

that Daisley refused to accept the

evaluation, and that he wanted to meet

with Girard. She arranged the meeting

with Girard, and arranged for Girard to

review Daisley's productivity records.

Girard met with Daisley, but did not

change the evaluation or remove it from

Daisley's personnel file.® Hoye Aff.,

Par. 7; Hoye's letter to Girard attached

as Exhibit No. 5. When, after the Jessup

office was closed, Daisley applied for a

job in Melville, New York, Joseph A.

Barbera, the Manager of Data Input,

8 Plaintiff alleges, without

evidentiary back-up, that his appeal of

this evaluation was successful. Paper

No. 5, Par. 47 (Paper No. 5 adopted as an

accurate statement of the facts in Paper

No. 25).

App. 32

decided not to offer him a job on the

basis of this unsatisfactory evaluation.

Affidavit of Joseph A. Barbera, Par. 4.

Boniface J. Santoro, at the time Manager

of the Credit and Collections Department

in Englewood Cliffs, relied on his

interview with Daisley, Sheriff's

statement that he could not recommend

Daisley for the job because of poor

productivity, the fact that Daisley had

not worked in Credit and Collection for

the preceding tho years, and Daisley's

work record to determine that he would

not offer Daisley a position in New York.

Affidavit of Boniface J. Santoro, Par. 4,

s. 6."

9 Santoro sent Daisley a letter say-

ing that he was not qualified as a Grade

12 credit and collections representative.

Daisley's November 5, 1982 letter to

Santoro rebutting Santoro's allegedly

inaccurate assessment of his abilities does

nothing to advance Daisley's case.

App. 33

Daisley's response to GE's thorough-

ly documented record of the employment

problems it had with him is to simply

deny the reality of any of it, and to

accuse all involved, including GE's

attorneys and even the court reporter who

10

recorded his deposition, of conducting

a conspiracy to force him out of employ-

ment for the purpose of replacing him

with young white female employees. +!

10 Because Daisley refused to sign

the deposition, and because in the first

three pages of his opposition to the

motion for summary judgment he discusses

all of the reasons why the deposition is

inaccurate, the Court chooses to disregard

the deposition testimony. The Court notes

that this is not a finding that there were

irregularities or dishonesty of any kind

in the conducting of the depogition.

+ According to Daisley, this

conspiracy began on April 12, 1980, when he

complained to an organization in Philadel-

phia called the Opportunities Industriali-

zation Center ("OIC") about the unfair

treatment he was receiving at the hands

of GE. This letter is attached as an

— App. 34

Throughout his memoranda Daisley con-

tinually refers to the “inaccurate and

false evaluation" of April 16, 1981.

11 (Cont'd) Exhibit to Paper No. 5.

Since that time, he alleges:

the Defendant Company has pursued a

policy of manipulating job assign-

ments, discrediting the workmanship

and performance of the Plaintiff,

surreptitiously monitoring of the

Plaintiff's performance, resulting

in surreptitious demotions without

the Plaintiff being informed that the

the jobs being performed were actually

demotions. This policy was intended

as punishment for the Plaintiff. The

inaccurate job evaluation given to

the Plaintiff by James E. Borke on

4/16/82 was the consummation of this

policy. Paper No. 25 at p. 5.

They embarked on a course to discredit

the Plaintiff which ultimately reached

into the headquarters at Louisville,

Kentucky. Paper No. 25 at p. 6.

However, as Daisley outlines in the

4/12/80 letter the exact type of treatment

that he complains of receiving later, it

is difficult to believe his contention that

GE was motivated in any fashion by this

letter. In Paper No. 9, at page 15,

oe. Daisley states that he submits the-letter

to OIC to the Court to show intent by the

defendant to discriminate. However, GE

App. 35

In fact, one item of relief that he seeks

from the-Court is -to have his record

cleared of this false evaluation.

Paper No. 1; Paper No. 5; Paper No. 9;

kz ae

? He maintains over and

Paper No. 25

Over again that his performance was

excellent, and lists all of the reasons

he thinks so.'? Supervisors and employees

11 (Cont'd) had nothing to do with

writing that document, and it only reveals

plaintiff's state of mind. Therefore, it

is simply not probative of GE's intent to

do anything.

12 The Court finds that the record

reveals that this evaluation was not done

for any discriminatory reason, nor was it

done in a discriminatory manner. However,

even if it had been, because the evaluation

was conducted on April if, 1982, the Court

could not grant plaintiff any relief, as

this occurred before the cut-off date of

July 20, 1982.

13 For example, he states:

The fact is that the charging party

has maintained an exemplary performance

and attendance record with the General

, App. 36

frequently disagree over the performance

of employees. When this disagreement

becomes relévant to employment discrimi-

nation litigation, it is well-established

law that the perception of the employer,

and not that of the employee, controls

13 (Cont'd) Electric Company for a

period of ten (10) years. This signal

accomplishment cannot be refuted by

false, glib, abstract phrases. Plaintiff's

August 10, 1984 position statement to

EEOC, adopted in Paper No. 25 as an accu-

rate statement of the facts.

Plaintiff became organized, pro-

ductive, efficient and proficient as a

Terminet operator. Paper No. 5, Par. 35,

adopted in Paper No. 25 as an accurate

statement of the facts.

Plaintiff avers that he did not

fail, but continued to excel as a Terminet

operator until he was laid off on October

1, 1982. Paper No. 5, Par. 46.

The General Electric Company [sic]

own files bear out the fact that Earle

A. Daisley was innovative, resourceful

and quick thinking to remove cumbersome

ways of doing things to increase pro-

a ductivity. Rather than complain

Daisley changed the system in order that

the work could be efficiently expedited.

Paper No. 25, p.35.

wil

App. 37

any decision regarding the qualifications

of the employee. Goldberg v. B. Green &

Co., 836 F.2d 845, 848 (4th Cir. 1988):

Smith v. Flax, 618 F.2d 1062, 1067 (4th

Cir. 1980).

Daisley also maintains that he has

evidence from GE's files which proves

that he is an excellent employee. Paper

No. 5, Par. 50. However, all he has

provided to the Court are a 1973-1974

performance evaluation from his supervisor

pm Philadelphia, which ranked him as

"Excellent" in some categories and

14

"Good" in others, the positive comments

made on his 1971 application to GE, the

tS The Court notes that Daisley was

not completely happy with this review

either. He wrote a letter to his supervi-

sor stating that he felt he should be

rated better than "Good" in those categories.

Letter dated September 9, 1974, attached

as Exhibit 2 to Paper No. 9.

orm

App. 38

fact that his transfer to Jessup was based

in part on merit, an October 5, 1981 memo

from the Regional Parts Manager congratu-

lating the entire office on a job well

done, and Garver's comments to Greer in

the December 29, 1981 letter about his

being a dedicated and cooperative

employee. With respect to the first

two, the Court notes that they were

issued 11 and 8 years before the events

involved here, and were done by different

people with different expectations. They

are not therefore probative of plaintiff's

qualifications in 1979 through 1982 under

different supervisors. Because the

information on the 1979 transfer order

was prepared by different supervisors with

different expectations, it does not change

the problems with Daisley's productivity

experienced by the Jessup staff.

App. 39

With regard to the October 5, 1981 memo,

as it does not provide information about

Daisley specifically, it is not relevant

to the issues in this case. Finally,

whether Daisley was a dedicated and

cooperative employee is not the issue in

this case. Unfortunately, he did not

live up to the expectations of the

Jessup supervisors or of Santoro or

Barbera for productivity. Further,

with respect to the discriminatory

discharge case, one element of a

prima facie case is that plaintiff

was replaced by\those outside of the

protected groups of which he was a

member. Because the jobs of all but

three people at Jessup were completely

terminated, no one replaced plaintiff.

Plaintiff argues that the office was

not closed, but was transferred, and

App. 40

that he was denied his “bumping rights.”

Again, he presented no evidence to

support that other than his belief that

such was the case. The Court's examina-

tion of the documents submitted by both

sides reveals that GE did not offer to

transfer all employees, as it had done

in 1979 when it transferred plaintiff's

department from Philadelphia to Jessup.

September 1, 1982 letter, Schlueter to

Daisley, attached as Exhibit 2 to

Schlueter Aff.; September 28, 1982

memo, Daisley to Schlueter, attached

as Exhibit 3 to Schlueter Aff. With

respect to his “bumping rights", the

Court's review of GE's policy statement

regarding reductions in force, issued

!

February 1, 1981, and attached as

Exhibit 6 to Hoye Aff., reveals that

these rights exist only when a senior

employee can exercise them in the same

App. 41

city in which he or she is working.

Simply put, Saisley had no bumping

rights in Melville, New York or Engle-

wood Cliffs, New Jersey. :

With respect to the alternate

method of proof in ADEA, that of review-

ing the case as any other, the Court

finds that Daisley has not created any

genuine disputes of material fact as to

whether GE discriminated against him on

the basis of age. The Court finds that

the record as a whole reveals that GE

did not at any juncture treat Daisley

in a discriminatory manner. Daisley was

45 years old at the time GE hired him in

Philadelphia, within the age group

specifically targeted for protection by

ADEA. In addition, GE had noreason to

resort to a conspiracy to force plaintiff

out of employment. GE could simply have

App. 42

fired plaintiff because of his well-

documented poor performance. Instead of

so doing in March of 1980, as originally

planned, Schlueter investigated and

discovered a way to keep Daisley in GE's

employ. The Court finds that the most

reasonable inference from the record in

front of it is that GE did the most that

it could reasonably have been expected to

do to keep plaintiff working.

For all of the reasons outlined

above, the Court finds that Daisley has

not shown that a dispute exists as to any

material fact, nor has he made out a

prima facie case of race, sex or age

discrimination in his layoff or the

failure to hire him at the next location.

App. 43

Accordingly, the Court will enter summary

judgment for GE in a separate order.

Dated: May 9th, 1988

/s/ Herbert F. Murray

United States District Judge

_ App. 44

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

EARLE A. DAISLEY

V. : CIVIL NO. HM-84-3216

GENERAL ELECTRIC

COMPANY

»-GU0.<.

ORDER

In accordance with the foregoing

Memorandum, it is this 9th day of May,

1988, by the United States District

Court for the District of Maryland,

ORDERED:

(1) that defendant General Electric

Company's Motion for Summary

Judgment, Paper No. 24, be, and the

same hereby is, Granted;

o: (2) that judgment be, and the same

App. 45

hereby is, Entered in favor of defendant

and against plaintiff; and

(3) that the Clerk of the Court

shall mail a copy of this Order with the

accompanying Memorandum to the parties.

/s/ Herbert F. Murray

United States District Judge

Appendix to

Petition for Certiorari

[Rule 21(k)(iv)]

District Court Memorandum dated May 9,

1988 - District Court Order dated May 9,

1988 granting summary judgment in favor

of defendant and against plaintiff.

(Appendix, infra, pp. App. 7-45).

Memorandum and Order of District Court

dated February 10, 1988. (Appendix, infra,

pp. App. 46-50). District Court Memorandum

and Order dated November 25, 1987 denying

defendant's Motion to Dismiss Or, in the

Alternative Motion for Summary Judgment.

(Appendix, infra, pp. App. 51-64).

Appendix 1-6 submitted in Petition for

Certiorari (pg. 5 under the heading

“Opinions Below").

App. 46

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

EARLE A. DAISLEY

¥. - CIVIL NO. HM-84-3216

GENERAL ELECTRIC

COMPANY

Ct) ae

MEMORANDUM AND ORDER

Plaintiff in the instant case filed

Plaintiff's Request to Be Excused from

Depositions, Interrogatories and

Production of Records, Paper No. 14. In

his request, he explains that he is

currently on probation at his new job,

and does not wish to jeopardize it. He

also invokes the attorney work-product

privilege.

The Court finds first that the

attorney work-product privilege does not

extend to cover the factual information

upon which plaintiff bases his claim, and

App. 4/7

about which defendant requests discovery.

The Court will deny plaintiff's request

on this basis. Second, the Court notes

that it was plaintiff who came to this

Court asking it to grant relief on his

behalf. If he wants this Court to review

his case, he must comply with the rules

of the Court. One of them is that he

must provide the other side with discovery.

Federal Rules of Civil Procedure 26-36;

Local Rules 6 and 6A. The sanctions for

failing to do so could include dismissal

of his case. Federal Rule of Civil

Procedure 37. To the extent he has

specific objections to specific interroga-

tories, specific document requests, Or

specific questions put to him at the

deposition, he may object to them using

the procedure outlined in Local Rules 6

and 34, and the Court will consider those

specific objections. The Court will not

excuse plaintiff's participation in

App. 48

discovery, and thus will deny his re-

quest.

The Court will consider a postpone-

ment of the Scheduling Order, so as to

avoid jeopardizing plaintiff's job during

his ninety-day probationary period. Should

plaintiff desire such a postponement, he

shall advise the Court by letter within

fifteen days from the date of the signing

of this Memorandum and Order. Otherwise,

the Court will grant an extension of the

discovery period, during which plaintiff

must comply with discovery or risk dis-

missal of his case, and will retain the

trial date.

ait Immediately before signing this Memo-

randum and Order, the Court's attention

was brought to the fact that defendant

has just filed Defendant's Motion for an

Order Compelling Discovery. Because the

Court has denied plaintiff's request to

be excused from discovery, the Court views

ee EERE]

App. 49

defendant's motion to compel discovery

as moot. The Court will deny it for that

reason, without prejudice to its renewal

at a later time should further difficult-

les arise.

Plaintiff has also requested that an

attorney be appointed to represent him.

The Court will deny the request at this

stage of the litigation. Plaintiff,

although pro se, has so far been able to

adequately comprehend the issues in his

case. The Court will consider the request

again after its ruling on any summary

judgment motions filed after the conclu-

Sion of discovery or, if no such motions

are filed, at the conclusion of discovery.

Accordingly, it is this 10th day of

February, 1988, by the United States

District Court for the District of

Maryland,

ORDERED:

(1) that plaintiff's Request To Be

naa

App. 50

Excused from Depositions, Interrogatories

and Production of Records, Paper No. 14

be, and the same hereby is, Denied;

(2) that defendant's Motion for an

Order Compelling Discovery be, and the

same hereby is, Denied without prejudice

to its renewal at a later date;

(3) that plaintiff's request for

appointment of an attorney be, and the

same hereby is, Denied; and

(4) that the Clerk of the Court

shall mail a copy of this Memorandum and

Order to the parties.

/s/ Herbert F. Murray

United States District Judge

App. 5l

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

EARLE A. DAISLEY

v. : CIVIL NO. HM-84-3216

GENERAL ELECTRIC

CO.

a) eee

MEMORANDUM AND ORDER

Pro se plaintiff Earle Daisley

("Daisley") filed this complaint after

being laid off by defendant General

Electric Company ("GE"). He alleges

race and sex discrimination in violation

of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §2000e et seq., as

amended 1972, and age discrimination in

violation of the Age Discrimination in

Employment Act ("ADEA") of 1967,

29 U.S.C. §621 et seq. Pending before

the court are: (1) Defendant's Motion

App. 52

to Dismiss or, in the Alternative, for

Summary Judgment, Paper No. 3;! and (2)

General Electric Company's Motion to

Dismiss Amended Complaint, Paper No. 6.

The Court has reviewed the memoranda

submitted by the parcies and has

determined that no hearing is required.

Local Rule 6. The Court is now prepared

to rule.

Factual Background~

Daisley began working with GE in

1972, as a clerk in the Philadelphia

Credit and Collections office. In November

of 1974, he received a performance

this number refers to the docket

entry number in the official court file.

ePor the purposes of a Motion to

Dismiss the Court accepts all of the

plaintiff's allegations as true.

Scheuer v. Rhodes, 416 U.S. 232, 236,

94 S.Ct. 1683, 40 L.Ed.2d 90 (1974);

Jenkins v. McKeithen, 395 U.S. 411, 421,

89 S.Ct. 1843, 1848, 23 L.Ed.2d 404

(1969).

App. 543

evaluation which ranked him as either

good or excellent in all categories.

In November of 1979, the Credit and

Collections department moved to Jessup,

Maryland. Daisley transferred with the

Department. Immediately upon his

arrival, John Sheriff ("Sheriff"), the

Supervisor of the Credit and Collections

Bureau began to assign him a much bigger

workload than all other similarly situated

white employees. In spite of the fact that

Daisley kept up with his work, in September,

1980 GE abruptly transferred him to the

Data Processing Unit, an area in which

he had no training. Daisley alleges that

this transfer was punitive and designed

to humiliate him and force him out of

employment. Through the intervention of

a co-worker who trained him voluntarily,

Daisley learned how to keypunch. However,

the company continued to file complaints

App. 54

about low productivity against him. On

April 16, 1982, Jim Borke (“Borke")

gave him a performance evaluation

which ranked him as unsatisfactory in .

several categories, although it did list

him as satisfactory in other categories.

Daisley refused to sign the evaluation

and discussed it with management. As far

as Daisley knows, no further action

was. taken on this evaluation. On Septem-

ber 2, 1982, several employees were

notified that the Credit and Collections

Bureau would be moving its operations to

Melville, New York. Further, the Data

Processing Unit would be moving the bulk

of its operations to Englewood Cliffs,

New Jersey. The letter advised them that

they would not be transferred, but that

they could apply for the jobs. The layoff

actually occurred on October 2, 1982.

Daisley applied for both jobs but was

App. 55

rejected by both departments. He wrote

on other occasions requesting jobs from

GE. All letters were met with negative

responses. He then filed a complaint

with the Howard County Maryland Office

of Human Rights ("OHR") on March 25, 1983.

OHR closed his complaint without taking

any action, and transmitted the case to

the Equal Employment Opportunity

Commission ("EEOC") on May 16, 1983.

On May 24, 1984, EEOC found no probable

cause to believe that GE's actions were

the result of race or sex discrimination,

closed its consideration of the age

discrimination complaint, and issued

plaintiff a right to sue letter.

Plaintiff then initiated this litigation

on August 20, 1984.

Plaintiff's Amended Complaint

Plaintiff filed a second complaint

after defendant had filed its motion to

-

App. 56

dismiss. Fed.R.Civ.P. 15(a) permits

amendment of the complaint as of right

before the filing of a responsive

pleading. As a motion to dismiss is not

a responsive pleading, Smith v. Blackledge,

&5¢ F.278 120, 2203 e. 2 CSta Cee. t97 0h);

Walgren v. Howes, 482 F. 2d 95, 96 n. 1

(lst Cir. 1973), the Court will accept

plaintiff's amended complaint.

The complaint appears to the court

to be. te addition to an amended

complaint, a response to the motion to

dismiss, and the court in addressing the

motion to dismiss has considered the

arguments advanced by plaintiff.

Defendant's Motion to Dismiss”

Title VII

Defendant argues in its motion that

In Paper No. 6, its response to

plaintiff's amended complaint, defendant

adopts the arguments advanced in its

Paper No. 3, without raising any further

arguments. The Court will address the

two motions as one.

App. 57

plaintiff may not bring his Title VII

complaint because he failed to file

any charge of discrimination with the

appropriate state agency within 180 days

from the alleged acts of discrimination,

as required by the Maryland statute.

Md. Ann. Cod. Art. 49B Section 9(a).

Because the Court believes that Daisley

is entitled to the longer 300 day period

permitted in Section 706(e) of Title VII,

42 U.S.C. Section 2000e - 5(e), the

‘Court will deny the motion for any acts

of discrimination alleged to have

occurred within the 300 days prior to

May 16, 1983, when EEOC received the

charge. This time period, which begins

July 20, 1982, includes both September 2,

1982 and October 2, 1982, obviating the

need for the Court's resolution of the

parties' dispute over when plaintiff's

cause of action accrued.

App. 58

Section 706(e) reads, in relevant

part:

A charge under this section

shall be filed within one

hundred and eighty days after

the alleged unlawful employment

practice occurred .. <¢ except

that in a case of an unlawful

employment practice with respect

to which the person aggrieved

has initially instituted

proceedings with a State or

local agency with authority to

grant or seek relief from such

practice. . . such charge

shall be filed by or on behalf

of the person aggrieved within

three hundred daysafter the

alleged unlawful employment

practice occurred, or within

thirty days after receiving

notice that the State or local

agency has terminated the

proceedings under the State or

local law, whichever is

earlier

In 1980, the Supreme Court ruled that

nothing in Section 706(e) required

plaintiff to file the complaint with the

State agency within 180 days to trigger

the longer limitation period. Mohasco v.

Silver, 447 U.S. 807, 814 n.16, 816 n.19,

100 S.Ct. 2486, 65 L.Ed.2d 532 (1980).

App. 59

Since the Mohasco decision, judges in

this District have disagreed on whether a

plaintiff must file a charge with the

state agency within the time limit

specified by the state to receive the

benefit of the 300 days. See e.g.

Soble v. University of Maryland, 572

F.Supp 1509, 1514 (D. Md. 1983)

(Miller, J.) (grievant in state with

state agency need not file charge

within state limitations period to

receive benefit of extended limitations

period for EEOC filing); Haller v. Butler

Shoe Corp., 595 F.Supp 998, 1000 (D. Md.

1984) (Northrop, J.) (plaintiff

entitled to longer period of limitations

in states with state agencies); contra.

Borowski v. Vitro Corp., 634 F.Supp 252,

256-57 (D. Md. 1986) (Motz, J.) (timely

state filing is a prerequisite for the

longer limitations period). The Court

of Appeals for the Fourth Circuit has

App. 60

expressly reserved decision on this issue.

Dixon v. Westinghouse Electric Corp., 787

Pizzo 963,-— 9435 n.2 (Sth Cie. 1986).

This Court, in reviewing the cases,

believes that the approach adopted in the

Haller and Soble decisions is the correct

one. Many TitleVII plaintiffs file

their own charges and ide laiete Sivnwuc

benefit of legal advice. Smith v. Oral

Roberts Evangelistic Ass'n., 731 F.2d

684, 687 (10th Cir. 1984). The plain

language of the statute provides their

primary guidance. As Congress wrote

this section without mention of or

reference to state statutes of limitations,

this Court will not imply this additional

requirement. Mohasco, supra., 447 U.S.

at 816 2.19.

The Court notes that a number of

other courts of appeals have reached the

same conclusion. Smith, supra, 731 F.2d at

690; Jones v. Airco Carbide Chemical Co.,

App. 61

691 F.206 1200, 1203 (6th Cir. 1982);

Owens v. Ramsey Corp., 656 F.2d 340, 342

(6th Cir. 1961): Wiltshire v. Standard 0i]1

Co., 632. 7.26 837, S39 (24 Circ. i961),

cert. denied 433 0.8. 1034, 102 $.Ct. 1737

(1982). Further in 1981, EEOC adopted a

regulation that states that "“[c]lharges

arising in jurisdictions having a 706

agency but which charges are apparently

untimely under the applicable state

Statute of limitations .. .:‘are timely

filed by the Commission within 300 days

from the date of the alleged violation"

29 C.F.R. 1601-13(a).

The Court finds additional support

for its position in the Supreme Court's

ruling that under ADEA, the complainant

has 300 days to file a charge with the

EEOC even when the plaintiff did not file

a timely charge with a state or local EEO

agency. Oscar Mayer & Co. v. Evans, 441

U.S. 750, 759, 99 S.Ct. 2066, 60 L.Ed.2d

609 (1976).

App. 62

The Supreme Court has noted the similar-

ity of language and purpose of the ADEA

and these sections of Title VII. Soble,

supra, 5/2 F. Supp at 1513, citing

Zipes v. Transworld Airlines, Inc., 455

U.5. 385, 393 mill, 102 S.Ct. Lig?, 71

L.Ed.2d 234 (1982); Oscar Mayer, supra,

ab U.S. at 756.

ADEA

As noted above, the ADEA limitations

period is 300 days, regardless of the

filing date with the state agency. Oscar

Mayer, supra, 441 U.S. at 759. Defendant

does not contest this time, but argues

that much of the alleged discrimination

which plaintiff challenges occurred before

that date. The Court agrees.

Accordingly, the Court will permit

plaintiff's Title VII and ADEA cause of

action to proceed with respect to all acts

of discrimination which occurred within

the 300 days prior to May 16, 1983,

App. 63

that is, on or after July 20, 1982. After

a study of plaintiff's lengthy complaint

and subsequent memoranda, the Court

concludes that plaintiff may challenge

only his layoff and GE's subsequent

failure to place him in another job and

may not challenge the alleged harassment

which took place after his move to Jessup

and after his transfer into the Data

Processing Department.

In accordance with the foregoing

memorandum, it is this 25th day of Novem-

ber, 1987 by the United States District

Court for the District of Maryland

ORDERED

(1) that defendant's Motion to

Dismiss or, in the Alternative, Motion

for Summary Judgment, Paper No. 3, be, and

the same hereby is, Denied with respect to

alleged acts of discrimination occurring

on or after July 20, 1982, and Granted

App. 64

with respect to alleged acts of discrimi-

nation occurring prior to July 20, 1982;

(2) that the defendant file its

answer to plaintiff's complaint within

20 days from the signing of this Order;

and

(3) that the Clerk of the Court

shall mail copies of this Memorandum

and Order to all parties.

=

/s/ Herbert F. Murray

United States District Judge