# Appendix — Daisley v. General Electric Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1989
- **Citation:** 491 U.S. 906

## Text

} [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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1268%3A2. Public record. Not legal advice.