Petition for Writ of Certiorari — Kasper v. Federal National Mortgage Ass'n
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¥ GOSEPH F. SPANIOL, JR.
CLERK
Se Se el
87-988 | DEC 16 87
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1987
GEORGE H. KASPER, JR.
Petitioner,
Vs.
FEDERAL NATIONAL MORTGAGE ASSOCIATION
Respondent.
ON CERTIORARI TO THE UNITED STATES
COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
George H. Kasper, Jr.
2852 Guinevere Drive, N.E.
Atlanta, Georgia, 30345
(404) 325-7332
(Pro Se)
December 16, 1987.
PUBLISHER'S NOTE:
Original Pagination is not
continuous.
QUESTIONS PRESENTED
CENTRAL ISSUE
The central issue is: whether Federal
National Mortgage Association (FNMA) is
now such a "private corporation" that it
can discharge and involuntarily retire its
Older civil service government employees
"at will", “without cause" or "due process"
and replace them with new younger employees
because it "prefers to have some one else"?
FIRST QUESTION
Whether FNMA can use the lawful Civil
Service early retirement pian, to effect
mandatory retirement when civil service
employees become eligible for annuity,
without economic or business purpose
showing, or whether its use is a subterfuge
to evade the purpose of the plan and the
law?
SECOND QUESTION
Whether there exist in FNMA, a federally
created instrumentality whose stock is
privately owned, sufficient "close nexus"
between its "Federal Action" in administer-
ing the Federal Civil Service program and
Carrying on the operations of Government
National Mortgage Association (GNMA) by
contract, and its employment actions with
Petitioner, so as to make applicable the
"Due Process" provisions of the United
States Constitution?
THIRD QUESTION
Whether the Third Cause of Action, seek-
ing damages for loss of compensation, terms
conditions and privileges of employment,
supported by [1] Presidential Executive
Order, [2] Civil Service Retirement law,
[3] FNMA Charter Act, [4] written employ-
ment contract, and [5] FNMA Policy and
Operating Malual (POM) was properly
dismissed by Judgment on the Pleadings?
=
FOURTH QUESTION
Whether U. S. Government employees who
transferred to FNMA in 1968 lost and for-
feited rights which they had as government
employees to employment action based on
merit alone and to procedural “due process"?
FIFTH QUESTION
Whether the "notice" holding in Delaware
State College v. Ricks, is properly applied
in the facts of this case, to a FNMA Memo
to Files providing "Continuing Employment
Arrangements.." (for a year to create a
year of civil service employment), as a
basis for final, authoritative, unambigious
notice to Petitioner of FNMA's intent to
mandatorily retire him, against his will,
as soon as he became eligible for annuity?
SIXTH QUESTION
Whether Petitioner&S two affidavits with
ATTACHMENTS were sufficient to show a
genuine issue of material fact as to
whether FNMA misled him regarding “the
facts of" his employment status with FNMA,
thus tolling the filing requirements of
the ADEA?
INTERESTED PARTIES
The following listed parties have an
interest in the outcome of this case:
George H. Kasper, Jr., (Petitioner),
Federal National Mortgage Association
(Respondent).
TABLE OF CONTENTS
Page a
Questions Presented 1
Central Issue l
First Question l
Second Question 2
Third Question 2
Fourth Question 3
Fifth Question 3
Sixth Question 4
Interested Parties 4
Table of Contents i
Table of Citations iii
Opinions Below 5
Jurisdiction 5
Constitutional provisions, vii
Statutes & Regulations involved
Statement of the Case 6
Course ot Proceedings i 6
Petitioner's Complaint ii 7
Statement of facts iii 13
Standards of Review 36
Argument 38
First Question 38
Second Question 41
Third Question 46
Fourth Question 53
Fifth Question 56
Sixth Question 60
Conclusion 64
Appendix
Order, 18 th December 1984. A-1
Transcript - Order May 6, 1986 A-12
Order (11 Cir.) August 3, 1987 A-20
Order - On Rehearing October
26, 1987 A-41
Certificate of Service
ii
TABLE OF CITATIONS
Page no.
Federal Court Decisions
Alexander v. Gardner-Denver Co. 63°
415 U.S. 36, 39 & B@.24 147,
94 S.Ct. 1011, (1974)
Ashton v. Civilette, 613 F.2d 51
923 (App. D.C. Dist Co. 1985)
Beacon Theatres v. Westover, 36
73 ws CEs FSS
Bishop v. Wood, 426 U.S. 341, 51
96 S.Ct. 2074, 48 L. Ed.2d 684
(1976).
Board of Regents v. Roth 91,52
406 U.S. 564, $2 $.Ct. 2701;
33 L. Ed.2d 548 (1972) £
Brooklyn Savings Bank v. O'Neil 63
324 Uso. O97, BF Le B4.1297,
(1944).
Cannon v. University of Chicago, 48
441 U.S. 667, 99 S.Ct. 1946,
(1979).
Cleveland Bd. of Educ. v. Loudermill
470 U.8. S32, 103 &. Ct. 1487,
84 L. Ed2d 494 (1985).
Coke v. General Adjustment Bureau,
inc,., 640 F. 2a 384, (5 Cir. 1981)
Conley v. Gibson, 355 U.S. 41,
78 Bs CE. FS, 2 bs BA. 26 BO
(1957).
iii
22
as
36
Cort wv. Ash, 422 U.S. 66 46,47,48
95 S.Ct. 2080, 45 L.Ed2d 26
(1975)
Delaware State College v. Ricks 3,56
449 U.S. 250, 101 S.Ct. 498 34,58,359
66 L. Ed2d 431 (1980).
Doe v. Casey, 601 F. Supp 581
(D.C.« Dist. Col. 1995).
E.E.O.C. v. Baltimore and Ohio R.
Co., 632 F.2d 1107 (4 Cir. 1980)
Evans-v. Newton, 382 U.S. 296,
So &.Ct. 400, i135 Le £4. 373
(1966).
Federal National Mortgage Assoc-
lation v. Lefkowitz, 390 F.Supp.
Loes (B.DiBike LSIS} a
Fountain v. Filson, 336 U.S.681
oF S&S. Ct. (34, 9S lL. EA. S71,
(1949).
Goldstein v. Manhattan Industries,
ine. foe fs. 26 t8go¢ tli €ir i965).
Hannan v. Chrysler Motors Corp.,
443 F.Supp. 802 (E.D. Mich. 1978).
Isaac & Assoc. v. Federal National
Mortgage Association, 647 S.W. 2d
495 (Ky. App 1982).
Jackson v. Metropolitan Edison Co.,
419 U.S. 345, 95 S.Ct. 453, 42 L.
Ed 2d 477 (1974).
Keiser v. Walsh, 118 F2d 13, —
Ja Ape. D.C. 167 (1941).
iv
51
39
43
44
44
44
37
_ 2 aa * ss cee - "s "a 9
a aia = OE alia oT
- . a se .
~
a
_
.
—
s
a a
Mason v. Lister, 562 F.2d 343 38
eae. 2977) ©
Maxfield v. Sinclair Intern. 38
766 F.2d 788 (3 Cir. 1985).
McCorstin v. United States Steel 38
Corp., 621 F2d 749 (5 Cir. 1980).
Meyer v. Riegel Products Corp., 62
720 D. 2d 303 (3 Cir 1983).
Northrip v. Federal National 41,42
Mortgage Association, 527 F 2d 43,44
aa 46 Gif. i975).
Ott Midland-Ross Corp., 62
Vv.
600 F. 2d 24 (6 Cir. 1979).
Paige v. Harris, 584 F. 2d 178 51
[7 Gaxe 1976).
Palmer v. Columbia Gas of Ohio, 43
479 F. 2d 153.
Parker v. Federal National 61
Mortgage Association, 741 F. 2d
975 (7 Cir. 1984).
Perry v. Sinderman, 408 U.S. 593,51,52
92 S&S. Cb. 26094 (1972).
Rubin v. O'Koren, 644 F. 2d 1023 59
{3 Cir. Unit B. 1961).
Services v. Dulles, 354 U.S. 363, 53
aes eee L152 (5957).
Schellfeffer v. United States, 40
343 F. 2d 936 (Ct. Cl. 1965)
Turner v. Impala Motors, 43
503 F. 2d 607 (6 Cir 1974).
Vv
TransAmerica Mortgage Advisors v. 48
Lewis, 444 U.S. 11, 100 S. Ct.
242 (1979).
Vitarelli v. Seaton, 359 U.S. 49,51
535, 79 S. Ct. 968 (1959).
Federal Statutes and Regulations
Fifth Amendment to the Constitution vil
of the United States, 52
5 U.S.C.A. § 8336(d) viii
[Mason:§ 8336(d)(2) & 8332(da)(2)],38
12 U.S.C.A. § 1717, et seq. 7
12 U.S.C.A. § 1723a(d)(2), vii
28 U.S.C.A. Rule 8, (a)(2), x
(e)(1), (£),
29 U.S.C.A. § 621, et Seq. 39
Code Federal Regulations, xii,45
24 C.F.R. ch III Subchapter A “
part 300,
Presidential Executive Order x,49
No. 11141, February 12, 1964,
29 F.R. 2477,
Books
Webster's Third New International 60
Dictionary (1986).
vi
OPINIONS BELOW
United States District Court Order Dec-
ember 18, 1984, granting FNMA Motion for
Judgment on the Pleadings. (A-1). Transcript
of District Court Hearing, May 6, 1986,
granting FNMA Motion for Summary Judgment
and DISMISSAL, (A-12), Judgment of Eleventh
Circuit Court of Appeals, August 3, 1987,
affirming District Court, Petition for re-
hearing denied October 26, 1987 reported as
Calhoun v. Federal National Mortgage Assoc-
iation, George H. Kasper Jr., Intervenor-
Appellant ( F.2d ). (A-20, A-41).
JURISDICTION
Petitioner seeks review of the Eleventh
Circuit Court of Appeals Judgment of August
3, 1987. Timely petition for rehearing was
denied October 26, 1987. Petition for
Certiorari was filed within 90 days.
This Courts Jurisdiction is invoked
under 28 U.S.C. § 1254 (1).
ate
CONSTITUTIONAL PROVISIONS, STATUTES
AND REGULATIONS INVOLVED
The Fifth Amemdment of the Constitution
of the United States provides:
"No person shall...be deprived of
life, liberty or property, without
due process of law;..."
The Federal National Mortgage
Association Charter Act, Title 12, USCA
§ 1723a(d)(2) provides:
"The board of directors of the
corporation shall have the power
to select and appoint or employ such
officers, attorneys, employees and
agents, to vest them with such
powers and duties, and to fix and
to cause the corporation to pay such
compensation to them for their
services, as it may determine; and
any such action shall be without
regard to the Federal civil service
and classification laws.
Appointinents, promotions, and
separations so made shall be based
on merit and efficiency, and no
political tests or qualifications
shall be permitted or given
consideration. Each officer and
employee of the corporation who is
employed by the corporation prior to
January 31, 1972, and who on the day
previous to the beginning of such
employment will have been subject to
the civil service retirement law
vii
(subch. III of ch. 83 of Title 5)
shall, so long as his employment by
the corporation continues without a
break in continuity of service,
continue to be subject to such law;
and for the purpose of such law his
employment by the corporation
without a break in continuity of
service shall be deemed to be
employment by the Government of the
United States."
Title 5, USCA §8336 (d) provides:
"An employee who is separated from
the service-
(1) involuntarily, except hy
removal for cause on charges of
misconduct or delinquency; or
(2) voluntarily, during a period
when the agency in which the
employee is serving is undergoing a
major reorganization, a major
reduction in force, or a major
transfer of function, as determined
by the Office of Personnel
Management, and the employee is
serving in a geographical area
designated by the Office;
after completing 25 years of service or
after becoming 50 years of age and
completing 20 years of service is
entitled to an annuity,"
Title 29, USCA § 623 provides:
(a) Employer practices
"It shall be unlawful for an empioyer-
(1) ...to discharge any individual
or otherwise discriminate against
any individual with respect to his
viii
compensation, terms, conditions, or
privileges of employment, because
of such individual's age;"
(f) Lawful practices;
"It shall not be unlawful for an
employer, ... ;
(2) to observe the terms of a bona
fide employee benefit plan such as a
retirement, pension, or insurance
plan, which is not a subterfuge to
evade the purposes of this chapter,
except that no such employee benefit
plan shall excuse the failure to hire
any individual, and no such seniority
system or employee benefit plan shall
require or permit the involuntary
retirement of any individual
specified by section 63l(a) of this
title because of the age of such
individual;"
Title 29, USCA § 631(a) provides:
"The prohibitions in this chapter
shall be limited to individuals who
are at least 40 years of age but less
than 70 years of age."
Title 29, USCA § 626 provides:
(c)(1) “Any person aggrieved may
bring a civil action in any court of
competent jurisdiction for such legal
or equitable relief as will effectuate
the purposes of this chapter:.."
(d)"No civil action may be commenced
by an individual under this section
until 60 days after a charge alleging
unlawful discrimination has been
filed with the Equal Employment
ix
Opportunity commission. Such a
charge shall be filed-
(1) within 180 days after the
alleged unlawful practice occured;"
Federal Rules of Civil Procedure, 28
USCA - Rule 8 provides:
(a) (2) "a short and plain statement
of the claim showing that the
pleader is entitled to relief",
(e) (1) -"No technical forms of
pleadings - are required",
(f) "All pleadings shall be construed
as to do substantial justice".
EXECUTIVE ORDER NO.1i141
Feb. 12, 1964, 29 F.R. 2477
DISCRIMINATION OF THE BASIS OF AGE
4 by President Lyndon B. Johnson
WHEREAS the principle of equal employ-
ment opportunity is now an established
policy of our Government and applies
equally to all who wish to work and are
Capable of doing so; and
WHEREAS discrimination in employment
because of age, except upon the basis
of a bona fide occupational qualifi-
cation, retirement plan, or statutory
requirement, is inconsistent with that
principle and with the social and
economic objectives of our society; and
WHEREAS older workers are an indis-
pensable source of productivity and
experience which our Nation can ill
afford to lose; and
WHEREAS President Kennedy, mindful
that maximum national growth depends
x
es eS Oe a ae
on the utilization of all manpower
resources, issued a memorandum on
March 14, 1983, reaffirming the policy
of the Executive Branch of the Govern-
ment of hiring and promoting employees
on the basis of merit alone and
emphasizing the need to assure that
Older people are not discriminated
against because of their age and receive
fair and full consideration for employ-
ment and advancement in Federal
employment; and
WHEREAS, to encourage and hasten the
acceptance of the principle of equal
employment opportunity for older
persons by all sectors of the economy,
private and public, the Federal
Government can and should provide
maximum leadership in this regard by
adopting that principle as an express
policy of the Federal Government not
Only with respect to Federal employees
but also with respect to persons
employed by contractors and subcontract-
ors engaged in the performance of
Federal contracts:
NOW, THEREFORE, by virtue of the
authority vested in me by the Constitu-
tion and statutes of the United States
and as President of the United States, I
hereby declare that it is the policy of
the Executive Branch of the Government
that (1) contractors and subcontractors
engaged in the performance of Federal
contracts shall not, in connection with
the employment, advancement or discharge
of employees, or privileges of their
employment, discriminate against persons
because of their age except upon the
basis of a bona fide occupational
qualification, retirement plan, or
xi
statutory requirement, and ..."
Title 24 Code Federal Regulations Ch.
III Subchapter A part 300 provides:
§300.3 "The Government National
Mortgage Association (hereinafter in
this chapter called the Association)"
§300.5 "The Association is a
Government corporation in the
Department of Housing and Urban
Development...”
§300.9 "The Association directs its
operations from its office located
at 451 Seventh Street SW.,
Washington, D.C. 20414. It has made
provisions for the carrying on of
such operations through the Federal
National Mortgage Association (FNMA).
The regional offices of FNMA are
listed below:
Atlanta, Ga. 30303, 34 Peachtree
Street NE: ...*
xii
STATEMENT OF THE CASE
i.
Course of Proceedings,
Dispositions In The Courts Below,
and Calhoun Proceedings.
Walter W. Calhoun instituted civil
action against Defendant Federal National
Mortgage Association (FNMA) on July 8,
1983 in United States District Court for
the Northern District of Georgia, Atlanta
Division, charging violations of the Age
Discrinination In Employment Act (Title
29, Section 621, et seq., USCA) [R. 1-1],
and a pendent claim under OCGA §34-1-2
for wrongful discharge. The District
Court dismissed Calhoun's pendent claim
under OCGA §34-1-2 [R. 1-12].
After completion of discovery Summary
Judgment was granted on March 26, 1985 to
Defendant as to the remaining claims
asserted by Calhoun [R. 3-61]. No appeal
was taken by Calhoun therefrom.
colli
ii.
Petitioner's Complaint.
Meanwhile, on November 15, 1983 George
H. Kasper, Jr., had moved for leave to
intervene in the action [R.1-11] which
was allowed [R.1-29], and simultaneously
therewith filed complaint [R.1-11]
asserting three causes of action, viz:
1] Age Discrimination In Employment
Act, supra;
2] Pendent jurisdiction under Georgia
Prohibitation of Age Discrimination
In Employment Statute [OCGA §34-1-2].
3] Federal National Mortgage Association
Charter Act [Title 12, Section 1716,
et seq., USCA].
In capsule form the complaint alleged
Petitioner was, after 16 years experience
in private law practice, appointed by
defendant in 1965 to a position as career
attorney, thereafter promoted in 1967 to
Assistant Agency Counsel, then in 1977 to
ota
;
i
j
j
:
;
eee
Southeastern Regional Counsel, which
position he held until July 22, 1982 when
he was "relieved of his responsibilities
as Southeastern Regional Counsel." He
was advised by the newly employed 34 year
Old Regional Vice President that his
services were no longer required [R.1-11].
Subsequently the position was filled by a
person only 31 years of age from outside
FNMA who had been a licensed attorney for
only some three years. [R. 1-11].
On October 4, 1982 Petitioner was
transferred as Assistant Regional Vice
President- Counsel, Grade 84, from Cost
Center 16 to Cost Center 11. He remained
in FNMA employment as Asst. Reg. V. P.-
Counsel, at one-half pay from August 8,
1982 to August 5, 1983 at which time his
employment was involuntarily terminated
with the only reason given as
"Discontinued Service Retirement".
[R. l<22}.
On August 5, 1983 Petitioner was 57
years of age. The written employment
evaluations given by his superiors were
rated as superior to exceptional (the
highest obtainable) for over 17 years.
Despite his protest and queries as to his
status, he was never given any reason or
explanation for his removal, and
replacement as SE Regional Counsel and
his ultimate termination of employment.
That his employment with FNMA was
subject to the "merit and efficiency"
provisions of the Charter Act and that
he was unreasonably and arbritrarily
deprived of "Due Process" in violation of
the law and of his rights, has suffered
monetary damages for loss of compensation,
terms, conditions and privileges of
employment and reduced retirement and
pension benefits. That he has not been
dealt with fairly, justly or in good
faith and offered no other position with
-9-
Defendant, and had been advised that he
is not eligible for rehire. Following
his termination on August 5, 1983 he was
awarded reduced retirement benefits by
the United States Civil Service
Commission [R. 1-11].
Petitioner further alleged compliance
with the provisions of the ADEA by
filing charges (on August 24, 1983) with
the Secretary pursuant to 29 USC § 626(d).
Charges made to the EEOC stated, inter
alia [R. 2-45 Attachment G]:
"I charge Age Discrimination in FNMA's
acts of July 22, 1982, in their refusal
to provide "Due Process" and to give me
a final decision on my appeals until
August 5, 1983, and in my involuntary
retirement of August 5, 1983."
"I further charge Age iieibtiadiiad ean to
me in my forced involuntary retirement
as a Civil Service employee on August 5,
1983. <- *.
oe
Defendant answered asserting numerous
defenses [R. 1-32] including late filing
of charges with the EEOC [R. 1-32-2], and
following discovery filed Motion For
Summary Judgment and Judgment on the
Pleadings which the District Court
granted as to Petitioner's Second and
Third Causes of Action [R. 3-56]._ The
Court, however, in the same order held
Petitioner was entitled to be heard as to
whether there may have been Equitable
Tolling of his First Cause of Action, as
"Kasper's affidavit is sufficient to show
a genuine issue of material fact as to
whether the defendant misled him
regarding his employment status with
FNMA." [R. 3-56].
There was additional discovery following
which defendant filed a Second Motion For
Summary Judgment [R. 4-87]. Same came on
for oral hearing on May 6, 1986 and after
brief oral argument the Court granted
@-li-
defendant's Second Motion for Summary
Judgment [R. 4-93] for reasons stated in
open Court [R. 5]. Appeal to the Eleventh
Circuit Court of Appeals followed. After
Judgment of the Court of Appeals, on
August 3, 1987, Petitioner's Attorney of
Record became hospitalized and Petitioner
proceeded with Petition for Rehearing
Pro Se. Petition for Rehearing was
denied on October 26, 1987. I proceed
herewith Pro Se, and beg the Court's
indulgence.
The Court of Appeals affirmed the
District Court as to the Second Cause of
Action holding that the Georgia
Prohibation of Age Discrimination In
Employment Statute [OCGA § 34-1-2]}
provided "No Private Right of Action"
under OCGA § 34-1-2. This Second Cause
of Action is herewith abandoned.
otis
iii.
Statement of the Facts.
FNMA has largely ignored and managed to
evade Petitioner's two affidavits and
ATTACHMENTS [R. 2-45 2/18 and R. 4-90] in
response to Defendant's Motions for
Summary Judgment and for Judgment On the
Pleadings. Petitioner deems it essential,
under these circumstances, to include
portions thereof for the Courts reference
and consideration. These events and
documents are summarized as concisely as
possible, viz:
a] In November, 1968, Petitioner
accepted, in writing, FNMA's offer of
employment, contained in a letter from
it's President, dated November 13, 1968,
and the Memorandum from Secretary of
Housing and Urban Development, Robert C.
Weaver. [R. 2-45 - ATTACHMENT A]. Some
of the terms are quoted for reference:
“That FNMA and GNMA shall provide by
si Re
contract for the conditions and methods
by which FNMA may employ GNMA employees."
"The effect of the transfer on employees
was a paramount consideration in the
decisions reached on the agreement for
transfer of functions and staff. I have
felt, and the FNMA's Board of Directors
and officers have shared my feelings,
that employment conditions should not
and need not be adversely affected by
the transfer."
"Many of the provisions of the agreement
are designed to assure maximum
protection to employees,"
"You will, therefore, not lose your
present retirement advantages, and will
continue to be under the Federal
retirement system, with FNMA making the
employer contributions required under
the system."
"Congress has asked us to develop a
privately-owned corporation for the
—y
public purpose of helping to provide a
decent home in a decent environment for
ail Americans."
"As a private organization, FNMA will
offer you a wider range of opportunities,
greater benefits and more flexible
employment policies than have been
available under federal service.-- It is
to your benefit, personally, to join the
new organization."
"These policies have been developed with
the objective of having the new FNMA's
employment benefits equal to, if not
better than, existing ones."
"FNMA is an Equal Employment Opportunity
employer. In addition, since FNMA
employees will be doing federal work on
contract, the safe-guards about Equal
Employment under the Federal Contract
Compliance law will apply."
“FNMA will operate on the principle
that's spelled out in the FNMA Charter
. -15-
act (Section 309d.2):"
“Appointments, promotions, and
separations-- shall be based on merit
and efficiency, and no political test
or qualifications shali be permitted
or given consideration,"
"This law will be carried out."
"A. Promotions from within Will be
FNMA's basic policy. Thus FNMA will not
seek employees elsewhere until existing
personnel have been reviewed for their
qualifications, including their
potential after a reasonable amount of
retraining. The policy of giving
preferential treatment to existing
employees is based on management's
appreciation of loyalty and its desire
to assure reasonable job security."
"D. Grievance & Separation Review
Procedures will be established, whereby
employees can request decisions be
reviewed by supervisors at least two
xt6@<
levels above their immediate supervisor.
An employee may be separated for
inefficiency or cause when his work does
not meet FNMA performance standards
after a reasonable orientation period,
or Because he impedes or harms FNMA
operations some other way."
b] On November 10, 1981, FNMA
established Policy and Operating Manual
Section 311-10, Subject - Termination of
Employment [R. 4-5- ATTACHMENT S],
Provides in part:
"SEPARATION FOR CAUSE: SEPARATION
AUTHORITY -- The authority to separate an
employee for cause up through salary
range 60 is vested in the appropriate
department or office head, Regional
Vice President, or Director of Auditing.
The separation of all other employees
for cause requires the approval of the
Chairman and in the case of an Officer,
the Board of Directors."
Boy ta Oe
Petitioner was salary range 84, Assistant
Regional Vice President-Counsel (officer).
This Policy and Operating Manual procedure
was not followed as to Petitioner.
c] On about the second week of July,
1982 Ms. Caryl Bernstein, Executive Vice
President, General Counsel and Secretary
visited the Atlanta, Legal Division office
and congratulated us on “our good work".
[R. 2-45-2].
dj] On July 22, 1982 FNMA promulgated
memorandum "subject: Employment ptictene*
which established procedures for employee
Due Process, Termination, etc. [R. 2-45
ATTACHMENT Q]. This procedure was not
followed as to Petitioner. He received a
copy on September 20, 1984, as a part of
discovery [R. 2-35-18]. It provides:
"DUE PROCESS (for employers)
-clear policies, procedures standards
-discipline is progressive
-actions are uniform according to
cit.
violation/problem resolution
-documentation includes signatures
of both parties"
"STEPS TO FOLLOW
-standards of conduct are clearly
published (see misconduct, page 42)
-performance standards and measurement
criteria are established
-verbal warning/statement cf
deficiency given
-written documentation & counselling
interview occur
the counselling interview should
include:
1. statement of problem based on
observed conduct/performance and
resulting job interference
2. employees statement of problem
3. required action/improvement with
specific time frame and follow up
-prompt follow up"
=
"TERMINATIONS
Suggestion: Create resignation form
that includes the following:
I hereby resign my position as
(title) for ABC Company, effective
(date). I have no claims or
grounds for any claims against the
company based on my period of
employment with the organization.
This should be signed, dated and
witnessed."
e] On July 22, 1982, newly employed
34 year old Regional Vice President Glenn
T. Austin, Jr., relieved Petitioner of
his responsibilities as Southeastern
Regional Counsel advising him that his
services were no longer required and to
contact Al Burfeind, Vice President in
the Washington office. Petitioner was
shocked and asked him "What was wrong?
What have I done? What have I failed to
do?" He gave no reason whatsoever. [R.
=
2-45-2].
£] On July 22, 1982 Petitioner called
Ms. Bernstein in Washington and told her
what Mr. Austin had told him. She
expressed no surprise. Petitioner asked
"What was going on? What was wrong with
his work as Regional Counsel?" She gave
no reply. [R. 2-45-2].
g] On July 22, 1982 Petitioner called
Mr. Burfeind in Washington and told him
what Mr. Austin had told him. He said
that with 17 years service FNMA would
provide one-half year pay as severance.
Petitioner advised that this was not
acceptable and that he had 19 years
service. Burfeind said that he would look
into the matter and call back. [R. 2-45-3].
h] On July 23, 1982 Petitioner called
Burfiend again. Burfeind said that
"maybe we can get a retirement out of
this in August 1983". Petitioner advised
that he did not want to retire at his age
oe Ce
and that he could not support his family on
one-third pay. This was not a RIF. They
discussed FNMA's policy of transfer and in
view of Petitioner's superior to
exceptional performance and since he
enjoyed his job that Burfeind would contact
Petitioner's previous superiors about
recommendations of transfer, and try to
find out "what was going on", and that he
would be Petitioner's "advocate". Burfeind
said "Dont worry, I'll take care of things
and call you at home next week".[R.2-45-4].
i] On July 23, 1982 Petitioner vacated
his office as SE Regional Counsel as he
had been instructed to do. Since Burfeind
was looking into the transfer he wanted to
be on good working relations with FNMA as
Al was "working things out". [R. 2-45-6].
j] Possibly a week later Burfeind called
Petitioner at home and said that he was
working on a plan that could string out
@-22<
the half year pay and get 20 years of
Civil Service time. Petitioner said "Al,
wait a minute. I told you that I didn't
want to retire”. Burfeind said that he
was looking into the transfer, but that
he would have to work up a memorandum
for the Controller concerning Petitioner's
pay, and would call back later. [R-2-45-6].
k] Burfeind called Petitioner a few
days later and said that he was working
on a memorandum providing for "Continuing
Employment Arrangements”. Petitioner
advised Burfeind that he still did not
understand how he would become eligible
to retire and said "Al, I still don't
want to retire, as I have told you."
The transfer situation was again discussed.
The “time and attendance report" was
discussed. It was Petitioners impression
that he was and would continue to be a
FNMA employee, however unassigned, until
an appropriate position could be found.
a;
Petitioner continued to have positive
feelings about the transfer until March
and April, 1983, and remained available
to consider such assignment as FNMA
offered. [R. 2-45-7].
1] Petitioner received copy of the memo
to Files a few days later, and was never
asked to sign or approve it. The memo
was twice amended by Burfeind [R 2-45-7
ATTACHMENT B].
m] On October 4, 1982 Petitioner was
transferred ARVP-Counsel, Level 84, from
cost center 16 to cost center 11l,
although Petitioner was not advised.
[R. 2-45 - ATTACHMENT P].
n] On January 28, 1983 Petitioner's
replacement Judith Dedmon, wrote Caryl S.
Bernstein, "George Kasper has not been
terminated; he will be on the payroll
until August 5, 1983.-" [R. 4-90-
ATTACHMENT T].
~~) =
PRT RIN AT NOIRE Ie NIRS Oe OS PS SRA REP NE OVE Meta EN
Oo] In a letter dated February 3, 1983
David O. Maxwell, Defendant's Chairman of
the Board, advised Senator Sam Nunn that
Mrs. Bernstein and Mr. Austin had "decided
that it would be appropriate to relieve
Mr. George Kasper of his responsibilities
as Regional Counsel -" [R 2-45 -
ATTACHMENT D].
p] In the latter part of March 1983,
Petitioner felt, for the first time, that
perhaps FNMA had discriminated against him
on the ground of age in being removed as
SE Regional Counsel, after he met with Mr.
Calhoun and saw the letter from Mr.
Maxwell to Senator Nunn, saw Mr. Calhoun's
EEOC complaint, and what FNMA was doing to
other employees, found out that his
replacement was admitted to the Georgia
State Bar on February 1, 1980 (two and
one-half years in place of the POM
mandatory five year qualification), and
talked to Mr. Hunter on March 25, 1983.
get.
SEAN RN STL WLES NYT 4 SRE PATNI TRYIN ER ON RU
[R. 2-45-9, 10, 11 & 15].
q] On March 25, 1983 Petitioner
telephoned Mr. Oakley F. Hunter, former
Chairman and then member of the Board of
Directors of FNMA attempting to determine
his employment status and what the new
FNMA was doing to him. Petitioner told
him that Mr. Burfeind kept promising that
he was going to help arrange a transfer,
but that he was beginning to feel that he
was “just stringing me along". Mr. Hunter
said "No, Al is not going to help you a
bit. I have had a number or other
employee problems like yours, that I have
talked to Al about. He won't do you any
good". Mr. Hunter suggested that
Petitioner write him a letter that he
could present to the Board since they have
all sorts of provisions for supplemental
annuity. The letter was written on March
26, 1983. [R. 2-45-10].
=-26—
r] On April 15, 1983 Petitioner
telephoned Mr. Hunter again and was told
that the committee had not met [R.2-45-11].
s] In order to mitigate his damages, on
May 1, 1983 Petitioner entered the employ
of Federated Financial Corporation as
General Counsel, having performed some
consulting services for it during April,
after having informed it's President Mr.
Gary Jones "of my employment with FNMA,
and that if they called I would have to
go." However, by this time Petitioner had
concluded that Mr. Burfeind and FNMA had
"just been playing games with him" and did
not intend to transfer or reassign him.
[R. 2-45-11}.
t] On June 16, 1983 Petitioner wrote Mr.
David Maxwell, Chairman of the Board of
Directors, FNMA, and enclosed copy of
letter written previously to Mr. Hunter
[R. 2-45-11,12]. This letter was
acknowledged by Mr. Robert J. Mylod,
ite
President of FNMA, stating he was looking
into the matter [R. 2-45-12].
u] Neither Regional Vice President
Glen Austin, nor Vice President A. F.
Burfeind had authority to terminate the
employment of Petitioner,grade 84, and
an officer, without the approval of the
Board of Directors. [POM-311-10] - [R.
4-90 - ATTACHMENT S].
v] Petitioner never recognized either
Austin or Burfeind as having authority
to terminate his FNMA employment, absent
approval of the FNMA Board of Directors,
and he contacted both Mr. Hunter and Mr.
Maxwell [R. 2-45].
w] On July 26, 1983 Petitioner received
a telephone call from Caryl S. Bernstein,
stating that she was calling in response
to Petitioner's letter to Mr. Maxwell
(R. 2-45-12]. Ina lengthy conversation
between Petitioner, his attorney and Ms.
Bernstein and Mr. Burfeind, it was
atte
_
discussed that the proposal and offer of
early retirement "was not acceptable and
had never been acceptable as I had told
Mr. Burfeind". A discussion was had about
what Petitioner would consider to be fair
enough to encourage him to accept an early
FNMA retirement, and FNMA's policy of
supplementing Civil Service retirement pay
by 2% per year was discussed. Ms.
Bernstein said "if we agree to that and
send you a release, will you sign it?"
Ms. Bernstein stated that she was going
to be on vacation and at the American Bar
Association meeting but that she would
see what could be worked out and contact
Petitioner in a few days [R. 2-45-13].
x] Between July 22, 1982 and August 9,
1983 there had been approximately nine
(9) telephone conversations between
Petitioner and Mr. Burfeind concerning
employment status, transfer, eligibility
and retirement [R. 2-45].
«20
y] On August 10, 1983 Petitioner
received from Ms. Bernstein letter stamp
dated August 5, 1983 but postmarked
August 8, 1983 declining to grant any
relief (R. 2-45-13 - ATTACHMENT E].
z] Mr. Burfeind did not contact
Petitioners previous Supervisors as
requested, pertaining to his performance
concerning FNMA policy of transfer.
Therefore, Petitioner obtained letters of
recommendation from them for use of Mr.
Burfeind, and as needed [R. 2-45].
aa] On August 12, 1983 Personnel Action
terminating Petitioner from the position
of Assistant Regional Vice President-
Regional Counsel for reason "Discontinued
Service Retirement" not e€ligible for
rehire was promulgated [R. 2-45 -
ATTACHMENT F].
bb] Civil Service Retirememt Documents
were prepared by Defendant, dated for
most part on August 29, 1983 and
sith
indicating "Involuntary Discontinued
Service Retirement", showing date of
separation 8-5-83, were signed by
Petitioner providing "This application is
submitted subject to my charges of
Discriminatory Practices filed with the
EEOC". (R. 2-45 ATTACHMENTS H, I, J and kK].
cc] Separation Notice was furnished
State of Georgia by Defendant, dated
August 19, 1983, indicating period of
last employment "From 12-13-65 to 8-5-83".
[R. 4-45 - ATTACHMENT M].
dd] Petitioner was never provided with
any reason*or explanation for the action
being taken against him by FNMA (not even
a sagas to the EEOC complaint) and has
been deprived of "due process" by FNMA
[R. 2-45].
ee] Petitioner was not informed that
FNMA had a plan to involuntarily
(mandatorily) retire him, when he became
eligible for early reduced retirement
wit «
oO
PLATES SOLE LA ROE PERS LVM PEEP AS OF THREES
annuity, until August 12, 1983, when he
was advised that he had already been
involuntarily retired on August 5, 1983.
[R. 2-45- 13, 14].
ff] August 24, 1983 EEOC charges alleged:
1. Age discrimination in FNMA's
actions of July 22, 1982,
2. Refusal to provide "due process",
3. Age discrimination on August 5,
1983, in involuntary dismissal and
forced retirement, and
4. Forced involuntary retirement as a
Civil service employee on August 5, 1983.
Discovery included three depositions of
Petitioner: first in Mr. Calhoun's case,
the second of March 14, 1984 is
substantially in accord with affidavit in
response to Motion for Summary Judgment
[R. 2-45], althougi more detailed and the
third deposition from Petitioner was
secured on February 20, 1986 [R. 5]. The
third deposition developed, inter alia,
~~ o
Petitioner's employment with Federated
Financial had terminated by the position
being eliminated [R. 5-00-18], detailing
efforts made to find other employment
[R. 5-0-19/28], and that he had entered
private law practice four or five days
previously [R. 5-00-17]. On two occasions,
the first being the latter part of 1982,
he had visited the SE Regional office of
Defendant and saw his replacement, Miss
Judy Dedmon there [R. 5-00-33]. He did
receive Personnel Action notice of
involuntary retirement discontinued
service effective August 12, 1983 and has
been receiving reduced retirement
iidintien. He does not know what the
discontinued service provisions of the
Civil Service Retirement is, and it has
never been explained to him although
explanation requested [R. 5-00-12], and he
knows of no other person who has ever
been so terminated. [R. 5-00-37].
a oe
Mr. Glenn Austin, in deposition of May
7, 1984, recounting the events of July 22,
1982 [Deposition pp 88, 89] recalled he
stated inter alia "---What I was going to
tell him didn't relate to him as a person
Or as a professional, --- that we were
moving in a new direction --- Fannie Mae
--- certainly it was my desire for us to
move in a new direction within the
Southeastern Region of Fannie Mae, and
that it was my oreference to have someone
else in the position of Regional Counsel,
and that I would appreciate his
cooperation in that regard--". "It was a
very gentlemanly meeting." He agreed
Petitioner expressed surprise, and asked
"What have I done?", and also at least the
gist of another question "What have I
failed to do?" And at [Deposition p 135]
commenting on the Policy and Operating
Manual said "I would have to say that less
and less emphasis has been placed on that
—
Manual in recent years, and that it's
very much out of date. And there are .
many, many areas of our operations that
are not governed, put that in quotes, by
the POM, as it used to be called."
In deposition of December 15, 1983,
Executive Vice President, and FNMA
General Counsel Bernstein, commenting on
the Policy and Operating Manual [Deposition
pp 61,62] stated "It's three very -- at
least three very thick looseleaf volumes
that governed all sorts of things. When
the new management came in, we basically
took a less-structured approach perhaps
and didn't treat the POM's always as the
last word on everything."
STATEMENT OF STANDARDS OF REVIEW
IN THE LOWER COURT
Dismissals on the pleadings, or for
Failure to state a claim upon which relief
can be granted: Federal Rules of Civil
Procedure, 28 USCA - 8:
"(a) (2) a short and plain statement of
the claim showing that the pleader is
entitled to relief",
"(e) (1) - No technical forms of
pleadings - are required",
"(f)- All pleadings shall be construed
as to do substantial justice".
All material facts alleged in the
complaint are considered true and
construed in favor of complaining party.
Conley v. Gibson, 355 U.S. 41, 45-46.
76 &. €t. 99, 102, 2 i. 8d. 24 80.1957).
"Pleadings should be liberally construed"
Beacon Theatres v. Westover, 79 S. Ct.
948.
A complaint is sufficient if it sets forth
facts which show that plaintiff is entitled
to any relief which the court can grant,
regardless of whether plaintiff has asked
=
for the proper relief. Keiser v. Walsh,
1941, 118 F2d 13, 73 App. D.C. 167.
Summary Judgment may be granted only if
there is no dispute as to any material
fact. All reasonable doubts about the
facts resolved in favor of the non-movant.
Fountain v. Filson, (1949, 69 S. Ct. 754,
336 U.S. 681, 93 L. Ed. 971, rehearing
denied.
"It is well-settled that the party moving
for summary judgment has the burden of
demonstrating that the Rule 56(c) test-
‘no genuine issue as to any material
fact-- is satisfied and that he is
entitled to judgment as a matter of law.
The movant is held to a stringent
Standard. Before summary judgment will
be granted it must be clear what the
truth is and any doubt as to the
existance of a genuine issue of material
fact will be resolved against the movant.
Because the burden is on the movant, the
evidence presented to the court always
is construed in favor of the party
opposing the motion and he is given the
benef © ‘f all favorable inferences that
can be wn from it. Finally, facts
assert’ . the party opposing the
motior. if supported by affidavits or
other evidentiary material, are
regarded as true." Coke v. General
Adjustment Bureau, Inc., (en banc),
640 F. 2d 584, 595 (5th Cir. 1981).
~ . oe
ARGUMENT
FIRST QUESTION - FNMA has used the
availability of the Civil Service early
retirement law providing for annuity with
20 years of service after 50 years of age
as a means and method of involuntarily,
mandatorily retiring Petitioner two days
after FNMA had created 20 years of service.
McCorstin v. United States Steel Corp.
621 F.2d 749 (Sth Cir. 1980) at p. 755:
"Permissive early retirement is a
laudable attempt to provide security
for those who are unable or disinclined
to continue to work to the mandatory
or normal time for retirement. These
programs, however, cannot be a basis
or factor for a discharge decision.
see Hannan v. Chrysler Motors Corp.,
443 F.Supp. 802 (E.D. Mich. 1978)."
Also: Maxfield v. Sinclair Intern.
766 F.2d 788 (3rd Cir. 1985). Mason v.
Lister 562 F.2d 343 (5th Cir 1977)
upholds the legality of the Federal early
retirement scheme and at p. 346:
"Here the retirement scheme established
under 5 U.S.C.A. § 8332(d)(2) could not
be a subterfuge because it is strictly
optional with the employees. It does
=
not give the government the power to
forcibly retire older workers, and
does not conflict with the Congressional
goal of promoting ‘employment of the
Older persons based on their ability
rather than age'. 29 U.S.C.A. §621."
Retirement under-5 U.S.C.A. 8 8336(d)(2)
is strictly optional with the employee
and its use by FNMA to forcibly retire
Petitioner conflicts with the purpose
and intent of the law. FNMA has not
attempted to show that Petitioners forced
early mandatory retirement was for some
economic or business purpose other than
age discrimination.
E.E.O0.C. v. Baltimore and Ohio R. Co.
632 F.2d 1107 (4th Cir. 1980)- holds:
“Where there was no authority in
pensions plans to involuntarily retire
employees prior to age 65, the plans
did not provide a defense to prima
facie violation of the Age Discrimination
in Employment Act in involuntary
retirement of employees aged 60 to 65,
even though such employees then
qualified for pension benefits." and
"If such discharged employees were
entitled to a pension, the right was
earned by service to the railroad
companies and was vested despite
discharge, not because of it."
=
FNMA contends that Petitioner was told
in August 1982, that he was to be retired
in August 1983, therefore his EEOC claim
filed on August 24, 1983 was untimely.
Schellfeffer v. United States, 343 F.2d
936 (1965) at p. 937 holds:
""Retirement' comes when individual is
ready for immediate annuity, not before,
within provisions of Federal Employees
Retirement Laws. Act June 25, 1958, §
l(a), 72 Stat. 216."
It was not the offer, proposals and
discussions, from July 1982 to July 1983,
of the early civil service retirement plan
that was the unlawful act. The unlawful
act occured when FNMA involuntarily
retired Petitioner against his will in
August 1983, when he became eligible for
immediate annuity. ~
FNMA is in prima facie violation of the
ADEA, in forcing Petitioners early
mandatory retirement at age 57 with 20
years service under 5 U.S.C.A. 8 8336(d)
(2). Petitioners EEOC complaint was timely.
-40-
SECOND QUESTION - Although FNMA stock
is privatley owned, FNMA was created by
Congress to “relieve budgetary constraints”
with a “public purpose” and is engaged in
extensive “Federal Action” in its employ-
ment relations with Petitioner.
There are at least three types of FNMA
employees, viz:
1] Government Civil Service employees
who transferred from GNMA pursuant to
written contract in November 1968.
2] Government Civil Service employees who
transferred pursuant to the Charter Act
after 1968 but before January 31, 1972.
3] Private employees employed by FNMA
after December 1, 1968.
Petitioner is in the first type.
Petitioner has urged the holdings of
Northrip v. Federal National Mortgage
Association, 527 F.2d 23, 31 (6 Cir. 1974)
as being instructive and applicable:
“Before the reorganization of FNMA
i
its employees were government personnel
within the Department of Housing and
Urban Devolopment, and therefore were
covered by civil service requirements
and retirement laws. To protect
employee benefits that had accumulated,
the statute provided for continuation
of their participation in the system as
long as they remained employees of FNMA.
However, all employees hired after 1968
became employees of the corporation and
are not subject to the civil service
laws." 12 U.S.C. § 1723a(d)(1).*
12 U.S.C.A. § 1723a(d)(2) provides:
“Appointments, promotions and separations
so made shall be based on merit and
efficiency,-- Each officer and employee
of the corporation who is employed --
have been subject to the civil service
retirement law -- shall -- continue to
be subject to such law; and for the
purpose of such law his employment
by the corporation without a break in
continuity of service shall be deemed
to be employment of the Government of
the United States."
In its Judgment of August 3, 1987, the
Court, in referring to Northrip, at p.
(A-30) states:
"The Sixth Circuit mistakenly referred
to 12 U.S.C.A. § 1723a(d)(1) as applying
to FNMA, rather than GNMA; therefore,
Northrip is not controlling in this
case.”
It is pointed cut that where this code
~~
section is used in Northrip at page 3l, it
refers to footnote "6".
"6. For a more detailed analysis of
FNMA, its predecessor and its
counterpart, GNMA, see --,."
We respectfully submit that Northrip
did not confuse "Federal Action" of GNMA
employees with the "Federal Action" of
FNMA employees. All GNMA employees are
government (within the Department of HUD)
whereas Northrip recognized the government
Status of some FNMA employees. (emphasis
Supplied). Northrip at p. 31:
"There is some, and perhaps even
Significant, government involvement in,
the regulation of the working of FNMA,
-- the government status of some of its
employees -- amounts to at least some
state involvement in the operations of
FNMA's business." also
"When private corporations are endowed
by the state with functions or powers
of a governmental nature, they become
instrumentalities of the state and are
subject to its constitutional
limitations."
Palmer v. Columbia Gas of Ohio, 479 F.2d
153, modified by Turner v. Impala Motors,
503 F.2d 607 (6 Cir. 1974) and Evans v.
niin
Newton 382 U.S. 296, 299, 86 S.Ct. 486,
iS be. Bés Bie (3966).
Northrip also provides a detailed
discussion on "Federal Action" and "close
nexus between the State and the challenged
actions of the regulated entity so that
the action of the latter may be fairly
treated as that of the State itself."
Jackson v. Metropolitan Edison Co., 419
U.S. 345 at 351, 95 S.Ct. at 453, 42 L.
Ed2 477 (1974).
That FNMA is a federal instrumentality:
Federal National Mortgage Association v.
Lefkowitz, 390 F.Supp 1364 (S.D.N.Y. 1975).
Isaac & Assoc. v. Federal National Mortgage
Association, 647 S.W. 2d 495 (Ky. App 1982)
finding that federal action was involved
when FNMA terminated service contract with
mortgage banker thereby requiring due
process hearing. at p. 496:
"that FNMA was a federal instrumentality
and that its actions in terminating the
contract herein was ‘federal action.'
-~44-
This means that FNMA was required to i
give due process hearing to the
appellant under the federal and state
constitutions."
FNMA and its employees are extensively
envolved in "Federal Action" in carrying
on the operations of GNMA, doing federal
work on contract under the Federal Contract
Compliance law [Title 24 Code Federal
Regulations ch III Subchapter A part 300]
and are entitled to the safe-guards about
Equal Employment Opportunity (separate and
apart from the ADEA). FNMA is involved
in "Federal Action" in its administration
of the federal civil service program, its
retirement laws and in the Early Retirement
Plan applicable to its government employees
who transferred by contract in 1968, so as
to require FNMA to provide "due process"
pursuant to FNMA established procedures to
Petitioner.
THIRD QUESTION - In applying the four-
factor test announced in Cort v. Ash, 422
U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26
(1975), and holding that Petitioner had
no private right of action thereby dismiss-
ing the third cause of action, the Courts
have overlooked the critical facts, that:
Petitioner, having entered the employ of
FNMA in 1965 - prior to the adoption by
Congress of the Charter Act - was a
government employee and not merely an
employee of a private Corporation, and
further that the transfer in 1968 was by
contract incorporating the provisions of
the Memoranda dated November 13, 1968 of
Secretary of HUD Weaver and FNMA President
Lapin. The contract rights are basic.
Petitioner contends that the lower
Courts have misapprehended the law and
misapplied the FNMA defense of "No Private
Cause of Action Granted in the FNMA Charter
Act", as to its application to the facts
-46-
of this case. Petitioner contends that
Cort, as modified, is not applicable.
Congress directed Secretary Weaver, under
the circumstances of the Act, to implement
the transfer of functions and staff, and
the employment conditions by which FNMA
could be immediately staffed by hundreds
of -experienced government mortgage
employees from GNMA. To encourage GNMA
employees to accept transfer to FNMA, the
Memoranda outlined the contractual provis-
ions, assuring government security and
greater opportunity. The memoranda were
attached to Petitioner's affidavit of
September 20, 1984. Petitioner was
required to, and did accept these contract-
ual provisions in writing. Secretary
Weavers implementation of the procedures
for the transfer of functions and staff,
pursuant to the Act, are circumstances of
its enactment and form a part of the
legislative intent and history which show
a
Congressional intent to protect those
rights of "the class" by cause of action.
Secretary Weaver assured:
"The effect of the transfer on employees
was a paramount consideration in the
decisions reached on the agreement for
transfer of functions and staff."
TransAmerica Mortgage Advisors v. Lewis,
444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d
146 (1979), discussing Cannon v. University
of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60
L.Ed.2d 560 (1979) and Cort. holds:
"This Court has held that the failure
of Congress expressly to consider a
private remedy is not inevitably
inconsistent with an intent on its part
to made such a remedy available.
Cannon, supra, at 694. Such an intent
may appear implicitely in the language
Or structure of the statute, or in the
circumstances of its enactment."
The contract of employment incorporated
terms and assurances of the memoranda
including:
1] Safe-guards of Equal Employment under
Federal Contract Compliance law prohibit-
ing age discrimination, providing for
-48-
employment based on merit alone, ordered
by President Johnson on February 12, 1964
in Executive Order No. 11141.
2] The provisions of the Civil Service
retirement laws (subch. III of Ch. 83 of
Title 5) so long as employment continues
without a break in continuity of service.
3] The FNMA Charter Act providing employ-
ment based on “merit and efficiency" and
4] The other agreements and assurances,
that: employment conditions should not be
adversely affected by the transfer, provis-
ions designed to assure maximum protection
to employees, continued present civil
service retirement advantages, benefits
equal to if not better than existing ones,
promotions from within and separations only
“for cause".
Presidential Executive Order and regulat-
ions issued pursuant thereto carry force
and effect of law. Vitarelli v. Seaton 359
U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012(1959).
-49-
The FNMA POM providing "Separation for
Cause Authority" requiring approval of the
FNMA Board of Directors to separate
Petitioner was not followed.
FNMA Memorandum "Employment Relations"
established procedures for "due process"
and "terminations" required procedures and
standards with documentation signed by
both parties, progressive discipline,
verbal warnings, counselling, suggested
form for resignation to be signed and
Witnessed. This procedure was not followed.
Petitioner has a "legitimate claim of
entitlement to continued employment" until
removed in accordance with established
procedure and right of action under the
contract incorporating the Charter Act,
Civil Service Regulations, and the POM.
Rights of "due process" and "legitimate
Claim of entitlement to continued employ-
ment" until removed in accordance with
~.
established procedures, is stated in Doe v.
Casey, 601. F. Supp 581, (D.C. Dist C.1985):
"When a government agency promulgates
and establishes regulations conferring
procedural due process rights on its
employees, it must adhere to its
promulgated rules to avoid any injustice
even though they may not be statutory
or constitutional requirements. (Cits.)"
Paige v. Harris, 584 F.2d 178 (7 Cir.
1978), and Ashton v. Civilette, 613 F. 2d
923 (App. D.C. Col. 1985) support the
holdings of Perry v. Sinderman, 408 U.S.
593, 92 S.Ct. 2694 (1972), Services v.
Dulies, 354 U.S. 363, 77 S.Ct. 1152 (1957)
and Vitarelli, supra, at p. 976:
"An executive agency must be rigorously
held to the standards by which it
professes its actions to be judged."
Paige, supra, at p. 181:
"In Board of Regents v. Roth, 408 U.S
564, 92 S.Ct. 2701, 33 L.Ed.2d 548)1972),
the Supreme Court concluded that no
entitlement (and therefore no property
interest) existed for a non-tenured
college professor. However, such an
entitlement to continued employment may
be created by statute or contract. See
Bishop v. Wood, 426 U.S. 341, 96 S.Ct.
2074, 48 L.Ed.2d 684 (1976). In the
ute
companion case to Roth, Perry v.
Sindermann, 408 U.S. 593, 92 S.Ct. 2694,
33 L.Ed.2d 970 (1972), the Supreme Court
held that a cause of action was
presented by a college professor's
contention that he had been denied due
process by a decision not to renew his
contract. Sindermann had been employed
by the college for four years and the
Court concluded that he might be able
to show
"the existance of rules and under-
standings, promulgated and fostered
by the state officials, that may
justify his legitimate claim of
entitlement to continued employment
absent ‘sufficient cause'." Id. at
602, Sz &.Ct. at 2700."
"However, as indicated in Perry, a
property interest may be conferred by
the terms of employment."
"as such, ‘property interest can result
from implied agreements or statutory
or administrative procedures governing
nonrenewal'."
"The principle that under the Due
Process Clause an individual must be
given an opportunity for a hearing
before he is deprived of any significant
property interest, requires 'some kind
of hearing' prior to the discharge of an
employee who has a constitutionally
protected property interest in his
employment." Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 105 S.Ct.
1487, 84 L. Ed2d 494 (1985).
Petitioner was deprived of "Due Process"
in violation of the U. S. Constitution.
mn ae
TT
FOURTH QUESTION - Without conceding that
Petitioner ever had any rights as a
government employee, FNMA contends that
Petitioner lost any rights which he may
have had in the FNMA transition. The
period of transition allowing the stock to
become privately owned did not divest the
government civil service employees who
transferred of any rights. As long as
their service continued without a break in
service, they shall be deemed to be
employees of the Government of the United
States and subject to such law.
The actions of the new FNMA management
amount to a substantial, adverse reduction
and deprivation of the employment rights
which those government employees possessed
prior to their acceptance of transfer
pursuant to the memoranda contract of
employment incorporating the Charter Act.
FNMA's actions are in violation of the
circumstances of the FNMA Charter Act, the
3s
representations, assurances and covenants
of the contract as well as the FNMA POM:
"merit and efficiency -- This law will
be carried out. It will work, success-
fully, to your benefit -.", "employment
conditions should not and need not be
adversely affected by the transfer".
"FNMA will offer you a wider range of
Opportunities, greater benefits",
"FNMA employment benefits equal to, if
not better than existing ones",
"The policy of giving preferential
treatment to existing employees is
based on management's appreciation of
loyalty and its desire to assure
reasonable job security". |
The government civil service employees
were "grandfathered" into FNMA, pursuant
to the contract and the Charter Act.
FNMA's roots and inheritance are deeply
embedded in it's Government "public
purpose". The new FNMA cannot deny and
a
disavow this heritage, responsibility and
obligations in its pursuit to become a
"totally private corporation", without
accountability for its actions. Its
“preferences” must yield to the “lawful
rights" of others. FNMA cannot “pick and
choose" which laws, regulations and
contracts it will honor, because they are
either “very much out of date", or
because the new management "didn't treat
the POM's always as the last word on
everything" as “It's three very -- at
least three very thick looseleaf volumes
that governed all sorts of things".
FIFTH QUESTION - In its Order of May 6,
1986, the Court stated that in its view,
July 22, 1982 was the date on which
Petitioner's cause of action accrued as to
removal as Regional Counsel, as it was the
last date on which Petitioner performed
any duties for FNMA. That the August 4,
1982 Memo to Files (not letter to Kasper)
was the date Petitioner received "notice"
of his termination on August 5, 1983 and
the Court mentioned Petitioners attendance
at a seminar on age descrimination, and
that as he was an attorney he had failed
to act in what the Court deemed due
diligence.
Petitioner respectfully submits that
Delaware State College v. Ricks, 449 U.S.
250, 66 L.Ed.2d 31, 101 S.Ct. 498 (1980)
is distinguishable. [p. 257]:
"If Ricks intended to complain of a
discriminatory discharge, he should
have identified the alleged discrimin-
atory acts that continued, or occured
at the time of the actual termination
-56-
of his employment. But the complaint
alleges no such facts."
Petitioner's complaint does so allege.
Additionally, Ricks discloses:
1] The Board of Trustees of Delaware
State College formally voted.
2] The trustees had plenary authority.
3] The Board clearly made and established
its official position.
4] Ricks was formally notified of the
Board's Official action.
5] Such Official Board position was made
apparent and clear to Ricks, i.e. he was
abundantly and unambigiously forewarned.
6] The Board carefully established
procedures to insure fairness.
7] The policies and procedures so
established were followed and adhered to.
8] The only alleged discriminatory act
was denial of tenure.
9] Equitable tolling was not applicable
or in anyway involved.
wit«
In distinguishing Ricks from this case:
1] Petitioner had government status.
2] Petitioner had contract of employment.
3] Early Civil Service Retirement is
strictly optional with employee and FNMA
is not given power to forcibily retire him.
4} The Memo to Files (for controller)
provident "Continuing Employment Arrange-
ments..", was not a future, authoritative,
final, unambigious notice to Petitioner
that he was to be forcibily retired.
5] Authority to terminate Petitioner's
employment was vested in the FNMA Board
of Directors. Neither Austin nor Burfeind
had authority to terminate Petitioner as
a FNMA employee.
6] Petitioner was never notified of any
action by the FNMA Board of Directors,
although he was in contact with the Board.
7] FNMA did not follow its employment
policies, viz:
i] "due process"
-58-
—————————— EOE
ii] "Employment of merit & efficiency"
iii] "Promotions from within"
iv] "Equal Employment Opportunity"
v]) "Transfer of location".
Although Rubin v. O'Koren, 644 F.2d 1023
(5 Cir 1981) involves a 42 U.S.C.A. 1983
action, it involves "due process" violation
and in commenting on-Ricks, Mr. Judge Hill
said [p. 1026]:
"In the case before us plaintiff's
complaint, fairly read, alleges inter
alia, that the defendants unlawfully
failed to provide her with a hearing or
notice of the charges that resuited in
her dismissal. These alleged viclations
clearly continued until February 1977,
when her dismissal was upheld by the
university grievance committee."
Ricks involved an academic setting where
only denial of tenure was involved, not
termination of employment, and has no
application to Petitioner's case.
-59—
SIXTH QUESTION- Summary Judgment should
not be granted where there is a material
issue of fact. Petitioners two affidavits,
with supporting attachments, create issue
of material fact. FNMA has effectively
preempted Petitioner from a jury trial on
the evidence by its argument contrary to
these affidavits, viz: FNMA argues that
Petitioners employment was terminated on
July 22, 1982 by Austin, alternatively by
Burfeind's Memo to Files as "notice" on
August 4, 1982, that only one violation
was alleged in the EEOC charge which was
time barred and Petitioners gentlemanly
conduct and his efforts to mitigate his
damages amounted to his agreement or
acquiescence in FNMA's treatment of him.
Then FNMA implies that Austin acquired
authority to terminate Petitioner because
of deleterious! conduct: "as Kasper was not
1. Webster's Dictionary- deleterious:
hurtful, destructive, noxious, pernicious.
-60-
an officer of FNMA, approval from the Board
of Directors was not necessary to effectuate
his termination. Even if he had been an
officer, the manual authorized immediate
termination by the Regional Vice-President
where the employee's conduct is ‘deleterious
to the continued functioning of the unit'."
This argument is not only contra to the
evidence but prejudicial. However, obviously
the argument "bore fruit".
Although Parker v. Federal National
Mortgage Association, 741 F.2d 975 (7 Cir
1984) affirms FNMA on Summary Judgment (as
to age not being a determining factor):
"Summary judgment is an effective mech-
anism for preempting trial where there
is no disputed issue of material fact."
"Once the plaintiff presents the court
with some evidence (that his employer
harbored the prohibited motive) summary
judgment for the defendant is inapprop-
riate because there is a disputed fact
material to the case."
Petitioner did what Parker did not do,
He presented two lengthy affidavits with
o§ 1] —
many supporting ATTACHMENTS, which FNMA
had not attempted to refute, but does
argue against. When the project mortgage
portfolio was transferred from Chicago to
Atlanta, although Parker's performance was |
less than others nbeetuat, he was offered |
a transfer to Atlanta in January 1982, as
was FNMA's policy, although FNMA refused
to assign Petitioner.
The Court originally held that Petitioner
was misled by FNMA as to the facts of his
employment status (not misrepresentations
of law) yet, later reversed holding that
Petitioner, being an Attorney and attending
a required continuing legal education
seminar, on age discrimination in March
1983, should know the law and became time
barred.
On equitable tolling and misrepresentat-
ion see: Ott v. Midland-Ross Corp., 600
F.2d 24 (6 Cir. 1979), and Meyer v. Riegel
Products Corp, 720 F. 2d 303 (3 Cir 1983).
-62-
"We are directed to no case in which a
court has used a tape measure to
determine the magnitude of a potential
misrepresentation and has then held that
a big one tolls but a little one does
mot. (Cit.).*
"Here to, plaintiff did precisely what
the Hart Court suggested: he asked
defendants for an explanation of his
dismissal."
Also: Goldstein v. Manhattan Industries,
Inc., 758 F. 2d 1435 (11 Cir. 1985).
FNMA contends that Petitioner has agreed
to FNMA's treatment and is waived and
estopped to complain. See Brooklyn Savings
Bank v. O'Neil, 324 U.S. 697, 89 L. Ed.
1297, (1944).
"Where a statutory right is conferred on
an individual in the public interest to
effectuate a legislative policy, it may
not be waived or released by him."
And: Alexander v. Gardner-Denver Co.
415 U.S. 36, 39 L Ed. 2d 147, 94 S.Ct.
1011, (1974).
"There can be no prospective waiver of
an employee's rights under Title VII of
the Civil Rights Act of 1964 (42 USCS
§§ 2000e et seq.), which requires equal
employment opportunities."
af %<
CONCLUSION
Earnestly believing that the judgment
of the Eleventh Circuit Court of Appeals
is erroneous for each and all of the
reasons hereinbefore stated, Petitioner
requests reversal.
ully submitted,
KASPER, JR.
2852 Guirmevere Drive,
Atlanta, Georgia 30345
(404) 325-7332
Pro Se
N.
a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WALTER W. CALHOUN,
Plaintiff,
vs.
GEORGE H. KASPER, JR., CIVIL ACTION
Intervenor, No. C 83-1437 A
vs.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Defendant.
ORDER
In this action there is pending before
the court and ripe for decision the
defendant's motion for summary judgment
and for judgment on the pleadings as to
the intervenor's claims and the defendant's
motion for separate trials. The defendant
has also moved for summary judgment with
regard to the plaintiff's complaint and
amended-complaint, but that motion is not
ripe for decision at this time.
In his complaint George H. Kasper, Jr.,
the intervenor, asserts three claims: the
first is under the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et seq.,
the second is under Georgia's Age
Discrimination Statute, 0.C.G.A. § 34-1-2,
and the third is brought under the Federal
National Mortgage Association Charter Act,
12 U.S.C. § 1723, et sec.
I. KASPER'S ADEA CLAIMS
It is undisputed that on July 22, 1982,
Kasper, who at that time was Regional
Counsel for FNMA, was informed by the
regional vice president of FNMA that his
"Services were no longer required."
Kasper did not file a complaint with the
EEOC, a prerequisite to obtaining judicial
relief under the ADEA, until August 24,
1983.
The ADEA provides that no civil action ~
may be commenced by an individual until
60 days after a charge alleging unlawful
A-2
Giscrimination has been filed with the
EEOC; the statute further provides that a
charge must be filed with the EEOC within
180 days after the alleged unlawful
practice occured. 29 U.S.C. § 626(d).
Although the plaintiff continued to work
for FNMA for a few days following the date
he was informed of his termination and
although he was continued on the payroll
for several months thereafter (as a result
of various negotions conducted between
Kasper and FNMA), the 180 day filing
period is triggered when an employee is
notified of his termination and not by his
last day of employment. Delaware State
College v. Ricks, 449 U.S. 250, 101 S. Ct.
498 (1980).
Kasper initially urges this court to
allow him to rely upon the timely filing
of a complaint with the EEOC by the
plaintiff, Walter W. Calhoun, citing
Shuster v. Federated Department Stores,
A-3
Inc., 508 F. Supp 118 (N. D. Ga. 1980).
Shuster is inapposite. In Shuster the
employees alleged that they were discharged
from their employment on the same date and
that they were so notified by the same
employee of the defendant. The court
noted that when the EEOC representative
initially contacted the defendant's
Director of Personnel and Employe*
Relations, his efforts to attempt
reconciliation concerned both of the
terminated employees. The court further
noted that the inclusion of the employee
who had not filed a timely charge in such
conciliation efforts "in no way delayed or
hampered the conciliation efforts ... by
the EEOC, and the defendant was in no way
prejudiced by Mr. Leff's failure to file
a timely charge." 508 F. Supp. at 121.
In the instant case, however, the alleged
acts of discrimination occured at different
times and were not so closely related as
\-4
was the case in Shuster. Kasper has not
alleged that any conciliation efforts by
the EEOC on behalf of Calhoun also
included him. For the foregoing reasons,
this court concludes that Kasper may not
rely on Calhoun's filing of a timely
charge with the EEOC in order to excuse
his non-compliance with that filing
requirement.
The 180 day filing requirement, however,
is not jurisdictional and is subject to
equitable tolling. Coke v. General
Adjustment Bureau, Inc., 640 F2d 584 (5th
Cir. 1981) (en banc). In his affidavit
Kasper states that he was informed by Mr.
Al Burfeind, a vice president of the
defendant, that he was simply relieved of
his duties as regional counsel of the
defendant but that he would remain an
employee and would simply be unassigned
until the defendant could find an
appropriate position for him. Kasper also
A-5
Outlines numerous discussions that he had
regarding his continuing on the defendant's
payroll and whether he might be assigned
another position. The defendant contends
that Kasper's “vague request" to Mr.
Burfeind and others that they help him
secure a transfer or reassignment does not
excuse his failure to file a timely charge
with the EEOC. However, this court finds
that Kasper's affidavit is sufficient to
show a genuine issue of material fact as
to whether the defendant misled him
regarding his employment status with FNMA,
thus tolling the filing requirement of the
ADEA. For these reasons, the defendant's
motion for summary judgment on Kasper's
ADEA claim is DENIED.
II. GEORGIA'S AGE DISCRIMINATION STATUTE
By order dated November 22, 1983, this
court held that there was no inplied
private right of action under 0O.C.G.A. §8
34-1-2, and this court finds no reason to
A-5
retreat from that holding. Consequently,
the defendant's motion for judgment on the
pleadings dismissing Mr. Kasper's cause of
action under 0.C.G.A. § 34-1-2 is GRANTED.
III. FNMA CHARTER ACT
For his third cause of action Kasper
relies upon the language in 12 U.S.C. 8
1723a(d)(2), which provides, "Appointments,
promotions, and separations so made shall
be based on merit and efficiency, and no
political test or qualifications shall be
permitted or given consideration." The
essence of Mr. Kasper's third count is
that an employee may enforce the "merit
and efficiency" provision by a private
action.
Local Division 732, Amalgamated Transit
Union v. Metropolital Atlanta Rapid
Transit Authority, 667 F2d 1327 (11th Cir.
1982), presents an excellent discussion of
the change of attitude by the Supreme Court
in implying private rights of action. The
A-7
Eleventh Circuit noted that the Supreme
Court has drastically modified application
of the four-factor test announced in Cort
v. Ash, 422 U.S. 66, 95 S. Ct. 2080 (1975),
by announcing that the task of a federal
court in implied cause of action was
solely to determine whether Congress
intended to create the private right of
action being asserted. TransAmerica
Mortgage Advisors, Inc. V. Lewis, 444 U.S.
11, 100 S. Ct. 242 (1979); Touche Ross &
Co. v. Reddington, 442 U.S. 560, 99 S. Ct.
2479 (1979). After this analysis the
Eleventh Circuit stated:
This court has taken to heart the
restricted mandate of the Supreme Court.
We have articulated principles of
decision for implied right of action
cases which appropriately guide our
consideration of the jurisdictional
question before us. If we are to
conclude that Congress meant more than
it said when it enacted a statute, we
must do so on the basis that Congress
actually intended to legislate as we
infer. See, e.g., United States v.
Capeletti Bros., Inc., 621 F.2d 1309,
1312 (5th Cir. 1980); Rogers v. Frito-
Lay, Inc., 611 F.2d 1074, 1078 (5th
A-8
Cir. 1980). The issue is not whether,
On balance, advocates of judicial
remedies have a better case than
Opponents, but whether we can find a
legislative intent to recognize a
federal judicial remedy. Noe [v.
Metropolitan Atianta Rapid Transit
Authority], 644 F.2d at 439. In order
for us to infer a private right of
action, or federal jurisdiction, we
must have before us clear evidence
that Congress intended to provide such
a remedy, River v. Rosenthal & Co.,
634 F.2d 774. 783 (5th Cir. 1980), and
if the legislative history provides no
clear indication one way or the other,
so that clear evidence of affirmative
congressional intent is lacking, we
cannot infer that Congress has
legislated silently.
667 F.2d at 1335 (footnotes omitted)
(emphasis in original).
This court finds nothing either in the
language of the statute in question or in
its legislative history which would show
that Congress intended there to be a
private right of action under the FNMA
Charter Act. Since 12 U.S.C. § 23a(d)(2)
does not provide a private right of
action, Mr. Kasper's third cause of
action must be DISMISSED.
IV. THE DEFENDANT'S MOTION FOR SEPARATE
TRIALS
The court has carefully considered the
defendant's motion for separate trials as
to Kasper and Calhoun. This court
believes that it and the jury can
adequately and properly distinguish
between the different claims being
asserted and that judicial economy would
best be served by allowing the claims to
to be tried in one action. Consequently,
the defendant's motion for separate trials
is DENIED.
V. SUMMARY
The defendant's motion for summary
judgment as to the plaintiff's first cause
of action (ADEA) is DENIED: the defendant's
motion for judgment on the pleadings with
respect to the plaintiff's second cause of
action (under 0.C.G.A. § 34-1-2) and his
third cause of action (under 12 U.S.C. 8
1723a(d)(2)) is GRANTED. The defendant's
motion for separate trials is DENIED.
SO ORDERED, this 18th day of December,
1984.
/s/ Robert L. Vining, Jr.
ROBERT L. VINING, JR.
United States District Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
z ATLANTA DIVISION
WALTER W. CALHOUN “)DOCKET NO. C83-1437
GEORGE H. KASPER, JR.)
)
PLAINTIFF, )ATLANTA, GEORGIA
)
-VS- )MAY 6, 1986
}
}
FEDERAL NATIONAL )
MORTGAGE ASSOC. )
)
DEFENDANT. )
—_— ——
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE ROBERT L. VINING, JR.,
UNITED STATES DISTRICT JUDGE.
APPEARANCES OF COUNSEL:
FOR THE PLAINTIFF: H. A. STEPHENS, JR.
FOR THE DEFENDANT: JEFFERSON D. KIRBY,III
KIMBERLY C. BRAMLETT
OFFICIAL COURT REPORTER
ROOM 2167, 75 SPRING STREET, S.W.
ATLANTA, GEORGIA 30303
A-12
(OMMITTING ARGEMENT OF COUNSEL AND
BEGINNING ON PAGE 11)
THE COURT: WELL, I HELD IN THE PRIOR
ORDER THAT THE CAUSE OF ACTION ACCRUED ON
JULY 22, 1982, THEREBY MEANING THAT THE
180-DAY FILING REQUIREMENT TIME BEGAN THAT
DAY. AND I CERTAINLY AM NOT OF A MIND TO
CHANGE THAT ORDER. THAT BEING TRUE, THE
CAUSE OF ACTION HAVING ACCRUED ON THAT
DAY, THE FIRST QUESTION THAT HAS TO BE
CONSIDERED IS WHETHER OR NOT THERE IS A
TOLLING OF THE TIME PERIOD. THIS
OPERATIVE STATUTE 29 UNITED STATES CODE,
SECTION 626 SETS OUT THE ADMINISTRATIVE
TIME TABLE FOR ADEA CLAIMS.
THE FACT THERE MAY HAVE BEEN CONVERSAT-
ION DOES NOT MEAN THAT THE 180-DAY FILING
REQUIREMENT DOES NOT BEGIN TO RUN. IT
BEGINS TO RUN BUT THEN THE QUESTION
BECOMES IS IT SUBJECT TO TOLLING. AND THEN,
OF COURSE, THERE HAS TO BE A PERIOD OF
TIME WHEN THE 180 DAYS STARTS TO RUN AGAIN
A-13
WHEN THE QUESTION OF TOLLING IS NOT
INVOLVED.
UNDER? THE FACTS THAT HAVE BEEN PRESENTED
IN THIS MOTION, AND TAKING INTO ACCOUNT MR.
KASPER'S LATEST DEPOSITION, I AM GOING TO
FIND HE IS TIME BARRED FROM PURSUING A
CLAIM INVOLVING HIS REMOVAL AS REGIONAL
COUNSEL OF THE FNMA, FANNIE MAE, ON THIS
BASIS HE WAS NOTIFIED ON JULY 22, 1982
THAT HIS SERVICES WERE NO LONGER REQUIRED
AND HE WAS BEING REMOVED AS REGIONAL
COUNSEL. FURTHER, THAT THIS WAS THE LAST
DAY ON WHICH HE PERFORMED ANY DUTIES FOR
THE FEDERAL NATIONAL MORTGAGE ASSOCIATION
OR ADMINISTRATION. THAT THE QUESTION OF
TOLLING DOES NOT APPLY TO THE REMOVAL AS
REGIONAL COUNSEL BECAUSE THERE IS NO
EVIDENCE AT ALL OF ANY CONVERSATION ABOUT
RETURNING TO A POSITION OF REGIONAL
COUNSEL. THEREFORE HIS CLAIM WAS NOT
FILED WITHIN 180 DAYS AFTER HE BECAME
AWARE OR AFTER THE ACT WHICH IS ALLEGED TO
A-14
HAVE BEEN AN UNLAWFUL EMPLOYMENT PRECTICE
OCCURRED.
AS TO THE CAUSE OF ACTION FOR INVOLUNTARY
TERMINATION OR RETIREMENT, PRESENTS A
LITTLE DIFFERENT PROBLEM. HOWEVER, THE
OPERATIVE DATE THERE AGAIN IS JULY 22,
1982. THAT IS WHEN HE WAS TOLD HIS
SERVICES WERE NO LONGER REQUIRED OR EVEN
GIVING HIM THE BENEFIT OF THE DOUBT, THE
LATEST OPERATIVE DAY WOULD BE AUGUST 4,
1982 WHEN HE RECEIVED A LETTER WHICH SAID
HE WOULD BE RETIRED AUGUST 5, 1983 AND I
THINK IT IS SIGNIFICANT DURING THE YEAR
FROM AUGUST TO AUGUST, AUGUST OF '82 TO
AUGUST OF 1983, THAT POSITION NEVER
CHANGED AND THAT DATE NEVER CHANGED. IT
WAS HIS RETIREMENT DATE.
NOW, THE FACT THAT HE MAY HAVE CONTINUED
TO WORK OR BE ON THE PAYROLL DURING THIS
PERIOD OF TIME DOES NOT ALTER THE FACT
THAT HE WAS TO BE RETIRED, AND THAT WAS
ONE OF THE POINTS IN THE DELAWARE STATE
A-15
COLLEGE VS. RICKS AND THAT IS MERE CONTIN-
UITY OF EMPLOYMENT, WITHOUT MORE, IS
INSUFFICIENT TO PROLONG THE LIFE OF A
CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINAT-
ION. THERE, OF COURSE, RICKS, WORKED FOR
A YEAR, IF I RECALL THE FACTS OF THE
DELAWARE STATE COLLEGE CASE. RICKS WAS
NOTIFIED HE WOULD NOT BE GRANTED TENURE
AND HE WOULD HAVE TO LEAVE THE EMPLOYMENT
OF THE UNIVERSITY, BUT THE UNIVERSITY HAD
A POLICY OF ALLOWING THE TEACHERS WHO WERE
NOT TENURED TO CONTINUE FOR ONE YEAR AFTER
NOTICE THAT THEY WOULD NOT RECEIVE TENURE.
AND ALSO DURING THAT PERIOD OF TIME WHICH
EVEN MAKE RICKS A STRONGER CASE FOR
TOLLING THAN THIS ONE, HE HAD GRIEVANCES
PENDING BEFORE VARIOUS COMMITTEES OF THE
UNIVERSITY THAT WERE DISPOSED OF DURING
THAT YEAR.
HERE THERE ARE TWO IMPORTANT FACTORS
WHICH LEAD ME TO BELIEVE THAT MR. KASPER
IS TIME BARRED ON HIS INVOLUNTARY
A-16
RETIREMENT CLAIM. ONE IS, HE ATTENDED
THIS CONFERENCE ON AGE DISCRIMINATION IN
MARCH OF 1983 THEREBY KNOWING THAT HE
WOULD HAVE A RIGHT.
SECONDLY AND MORE IMPORTANT MR. KASPER
IS AN ATTORNEY AND I THINK IS PRESUMED TO
KNOW THE LAW, BEING A PRACTICING ATTORNEY,
AND I DO NOT RECALL THE CASE BUT SEEMS
LIKE THE FIFTH CIRCUIT CASE HELD EVEN A
LAY PERSON THERE WAS PRESUMED TO KNOW THE
LAW ABOUT FILING AND so FORTH.
AND EVEN THOUGH THE RIGHT BECAME APPARENT
IN MARCH OF 1983, NOTHING WAS DONE UNTIL
AUGUST 24, 1983 WHEN THE E.E.0.C. CLAIM
WAS FILED BY MR. KASPER. THE CLAIM WITH
E.E.0.C. THEREFORE WAS FILED SOME THIRTEEN
MONTHS AFTER THE ACT WHICH IS ALLEGED TO
HAVE BEEN AN LAWFUL EMPLOYMENT PRACTICE;
THAT IS, INVOLUNTA Y RETIREMENT AND
REMOVAL AS REGIONAL DIRECTOR OF FNMA AND
WAS FILED SOME SIX MONTHS AFTER MR. KASPER
SAID HE ATTENDED A CONFERENCE ON AGE
A-17
DISCRIMINATION WHERE HE BECAME HE SAYS
AWARE OF HIS RIGHT TO PURSUE THIS MATTER.
SO EVEN TAKING IN ACCOUNT A QUESTION OF
EQUITABLE TOLLING, I AM GOING TO FIND MR.
KASPER'S CAUSE FOR INVOLUNTARY RETIREMENT
IS ALSO TIME BARRED AND HE DID NOT
DILIGENTLY PURSUE THIS MATTER BY FILING A
- CLAIM WITH THE E.E.0.C. WITHIN THE TIME
FRAME SET OUT IN 29 U.S.C. 626.
THERE IS ANOTHER CASE -- I ASSUME
DEFENDANT CITED, WHICH IS FAIRLY ON POINT.
BALDWIN COUNTY WELCOME CENTER VS. BROWN,
104 SUPREME COURT REPORTER 1723 AND I
THINK IT PRETTY WELL CHANGES TWO PRIOR
ELEVENTH CIRCUIT CASES WHICH HELD 180-DAY
PERIOD ONLY BEGINS TO RUN FROM THE TIME
THE CONPLAINTANT KNOWS OR REASONABLY SHOULD
HAVE KNOWN THAT THE CHALLENGED ACT HAS
OCCURED. BALDWIN COUNTY WELCOME CENTER
CASE SIMPLY SETS OUT THE CHARGE SHALL BE
FILED WITHIN i80 DAYS AFTER THE ALLEGED
UNLAWFUL PRACTICE OCCURS.
A-18
THEN AN OLDER FIFTH CIRCUIT CASE, PAYNE
VS. CRANE COMPANY 560 F.2d 198, 1977 CASE,
WHICH SAID ESSENTIALLY WHEN THE EMPLOYER
DOES ANYTHING BY WAY OF WORDS OR ACTS WHICH
WOULD SHOW AN INTENT ON THE EMPLOYER'S PART
TO DISPENSE WITH THE SERVICES OF THE EMPLOY-
EE, THAT WOULD BE THE DATE FROM WHICH THE
180-DAY FILING PERIOD WOULD BEGIN TO RUN
BECAUSE THAT WOULD BE THE LAST DAY ON WHICH
ANY SERVICES WERE REQUIRED OF THE EMPLOYEE;
AND IN THIS CASE, THE LAST DAY ON WHICH THE
SERVICES WERE REQUIRED WAS JULY 22, 1982.
THEREFORE, I WILL GRANT THE DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT ON THE CLAIMS
OF MR. KASPER FOR REMOVAL AS REGIONAL
COUNSEL OF FNMA AND FOR INVOLUNTARY
RETIREMENT, SUCH CLAIMS BEING TIME BARRED.
THE ORDER OF THE COURT WILL BE AS STATED
HERE ON THE RECORD AND I WILL SIMPLY ENTER
A SHORT ORDER SUSTAINING THE MOTION FOR
SUMMARY JUDGMENT AND ENTERING UP THE
DISMISSAL. PS25
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WALTER W. CALHOUN,
Plaintiff,
and
GEORGE H. KASPER, CIVIL ACTION
Intervenor, No. C 83-1437 A
vs.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Defendant.
ORDER
For the reasons stated on the record
in open court on May 6, 1986, the
defendant's motion for summary judgment
is GRANTED, and the clerk will enter
judgment dismissing the intervenor's
Claims with prejudice.
SO ORDERED, this 6th day of May, 1986.
/s/ Robert L. Vining, Jr.
ROBERT L. VINING, JR.
United States District Judge
A-19 (Order)
EDIT
OR'S NOTE
THE
AT T
RETT
WIE,
FOLLOWING
Ih TIME or
PAGES WERE POOR HARD COPS
FILMING, IF AND WHEN A
ER COPY CAN BE OBTAINED, A NEW FICHE
BE ISSUED,
Walter W. CALHOUN, Plaintiff,
Vv.
FEDERAL NATICNAL MORTGAGE
ASSOCIATION, Defendant-Appellee,
George H. Kasper, Jr.,
Intervenor-Appellant.
No. 86-8438.
United States Court of Appeals,
Eleventh Circuit.
Aug. 3, 1987.
Former employee of Federal National
Mortgage Association brought an action
against FNMA challenging his termination.
The United States District Court for the
Northern District of Georgia, No. C83-
1437A, Robert L. Vining, Jr., J., entered
judgment in favor of FNMA, and former
employee appealed. The Court of Appeals,
Roney, Chief Judge, held that: (1) Federal
National Mortgage Association Charter Act
did not give former employee private right
of action; (2) Georgia penal statute prohib-
iting age discrimination in employment did
not give rise to private cause of action; and
(3) one hundred and eighty-day period in
which to file claim with Equal Employment
Opportunity Commission applicable to em-
ployee’s unlawful termination claim com-
menced to run when employee received un-
equivocal notice that FNMA intention to
remove him and terminate his employment.
Affirmed.
1. Officers and Public Employees 69.4
Federal National Mortgage Associa-
tion Charter Act did not give former
FNMA employee private right of action;
employee alleged that he was hired prior to
1968 by predecessor corporation and was
not terminated under civil service retire-
ment laws. National Housing Act,
§§ 302(a)(2)(A, B), 309(d)(1, 2), as amended,
12 U.S.C.A. §§ 1717(a)(2)(A, B), 1723a(d)(1,
2).
2. Civil Rights 68
Georgia penal statute prohibiting age
discrimination in employment did not give
rise to private cause of action. 0O.C.G.A.
§ 34-1-2.
3. Civil Rights <=33
- One hundred and eighty-day period in
which to file claim with Equal Employment
Opportunity Commission, applicable to Fed-
eral National Mortgage Association em-
ployee’s unlawful termination claim, com-
menced to run when employee received un-
equivocal notice that FNMA intention to
remove him and terminate his employment,
rather than when he was actually terminat-
ed. Age Discrimination in Employment
Act of 1967, § 7(d)(1), as amended, 29 U.S.
C.A. § 626(d)(1).
4. Civil Rights 33
Federal National Mortgage Associa-
tion’s failure to provide employee with a
hearing on his discharge was not a continu-
ing discriminatory act sufficient to toll i180-
day period applicable to his unlawful dis-
charge claim under Age Discrimination in
Employment Act. Age Discrimination in
Employment Act of 1967, § 7(d)(1), as
amended, 29 U.S.C.A. § 626(d)(1); 42 U.S.
C.A. § 1983.
Appeal from the United States District
Court for the Northern District of Georgia.
Before RONEY, Chief Judge,
KRAVITCH and EDMONDSON, Circuit
Judges.
RONEY, Chief Judge:
-George H. Kasper, Jr., an intervenor par-
ty-plaintiff in the district court, claimed
that his removal as Regional Counsel and
subsequent involuntary retirement by the
Federal National Mortgage Association
(FNMA) violated the Age Discrimination in
Employment Act (ADEA), 29 U.S.C.A.
§§ 621-634, the Federal National Mortgage
Association Charter Act (Charter Act), 12
U.S.C.A. §§ 1716-1723h, and Georgia’s
Prohibition of Age Discrimination in Em-
ployment statute, 0.C.G.A. § 34-1-2. The
A-23
district court held that neither the Charter
Act nor the Georgia Act provided a private
right of action, and dismissed those claims.
It granted summary judgment on the
ADEA claim because Kasper had not time-
ly filed a charge with the Equal Employ-
ment Opportunity Commission (EEOC) as
required by 29 U.S.C.A. § 626(d)(1), and no
factors had been shown to warrant eq-
uitable tolling of the limitations period.
We affirm.
Kasper accepted an appointment with the
FNMA’s predecessor in December, 1965,
after sixteen years experience in private
law practice, as a career attorney and was
promoted to Assistant Agency Counsel in
1967. FNMA was reorganized in 1968 to
create two separate corporations. 12 U.S.
C.A. § 1717(a)(2). One __ corporation,
Government National Mortgage Associa-
tion (GNMA), remained a governmental
agency, while the other corporation, a new
FNMA, was created as a private corpora-
tion. Upon reorganization, Kasper became
an employee of GNMA and, on November
30, 1968, resigned his posivion with GNMA
to accept an identical position with the new-
A-24
ly created FNMA. He was promoted to
the position of Southeastern Regional
Counsel in 1977 and held that position until
July 1982.
On July 22, 1982, FNMA’s Southeastern
Regional Vice-President, Glenn T. Austin,
Jr., informed Kasper that his services were
no longer required, and instructed him to
contact Al Burfiend, FNMA’s Vice-Presi-
dent for Personnel and Administration in
FNMA’s Washington, D.C. office, to dis-
cuss severance terms. Kasper informed
his staff of his departure on that afternoon
and had cleaned out his office by noon of
the next day.
Discussions with Burfiend established
that Kasper would receive credit for 19
years of service and 6 months severance
pay. An agreement was reached to allow
Kasper to remain on the payroll for one
year, by extending his severance pay over
that period, providing him with 20 years
service for retirement purposes. Kasper
alleges that during their discussions he
asked Burfiend to look into a transfer or
A275
rf
—™~
reassignment. At no time after July 23,
1982 did Kasper return to the office to
work or receive assignments from FNMA.
FNMA advertised the availability of Kas-
per’s former position on July 28, 1982. In
August, 1982, Kasper received a memoran-
dum from Burfiend specifying that Kasper
would “be continued in FNMA employment
from August 8, 1982 through August 5,
1983, at which time he [would] retire under
the discontinued service provisions of the
Civil Service Retirement System (immedi-
ate entitlement).” Kasper was to receive
his full salary until August 7, 1982, when
his income would begin to be reduced on a
quarterly basis until his retirement on Au-
aust 5, 1982 He» was to continue receiving
fringe benefits except tur leave based on
full salary rate, and he was to receive
accrued vacation pay with his final salary
check upon his retirement in 1983. Except
for minor adjustments requested by Kas-
per, he was paid in accordance with the
terms of the memorandum.
In late 1982, Kasper met his replace-
ment, Judy Dedmon, who was 31 years old
at the time. As a result of attending an
American Bar Association seminar concern-
ing age discrimination on March 11, 1983,
Kasper decided that he had been dismissed
because of his age. Kasper wrote Oakley
Hunter, a former president of FNMA and a
member of the FNMA Board of Directors,
and asked if Hunter could look into his
situation. The gist of the letter appeared
to focus on whether a better severance
package could be arranged. In Kasper’s
letter to Hunter, he charged that he had
never been given an explanation for his
involuntary discharge and questioned its
cause and justification. In a June 1983
letter to David Maxwell, chairman of the
Board of Directors of FNMA, Kasper ac-
cused FNMA of corporate wrongdoing and
claimed to have statistical evidence of dis-
crimination. Kasper was contacted by Ca-
ryl Berstein, FNMA’s Executive Vice-Presi-
dent, General Counsel, and Secretary.
Kasper’s request from Bernstein was a
more favorable severance agreement. By -
letter dated August 5, 1983, Bernstein de-
clined to agree to different severance
terms and reaffirmed FNMA’s intention to
adhere to the August 1982 proposal. Kas-
per received a subsequent notice of his
termination under ‘discontinued service re-
tirement” effective August 5, 1983, and has
received retirement benefits from that
date. Kasper filed charges with the EEOC
on August 24, 1983, and filed a motion to
intervene in this proceeding on November
15, 1983.
I. No Private Right of Action under the
Charter Act
[1] Kasper contends that under the
Federal National Mortgage Association
Charter Act, those individuals hired prior
to 1968 and who were employees of the
predecessor corporation Government Na-
tional Mortgage Corporation were ‘“‘govern-
ment employees” and retained such status.
As a Government employee, he had a “le-
gitimate claim of entitlement to continued
employment” until removed in accordance
with established procedure. FNMA failed
to adhere to the regulations and a right of
action therefore is implied under the
FNMA Charter Act in Kasper’s favor.
Kasper’s assertion that he is a Govern-
ment employee for the purposes of this
action is erroneous. To support his status
as a Government employee, Kasper relies
on Northrip v. Federal National Mort-
gage Association, 527 F.2d 23 (6th Cir.
1974).
In Northrip, the Sixth Circuit stated:
Before the reorganization of FNMA,
its employees were government person-
nel with the Department of Housing and
Urban Development, and therefore were
covered by civil service requirements and
retirement laws. To protect employee
benefits that had accumulated, the stat-
ute provided for continuation of their
participation in the system as long as
they remained employees of FNMA.
However, all employees hired after 1968
became employees of the corporation and
are not subject to the civil service laws.
12 U.S.C. § 1723a(d)(1).
527 F.2d at 31. In dicta, the Northrip
court stated that some FNMA employees
had some sort of government status. /d.
at 32.
The Sixth Circuit mistakenly referred to
12 U.S.C.A. § 1723a(d)(1) as applying to
FNMA, rather than GNMA; therefore,
Northrip is not controlling in this case.
The extension of the protections of civil
service and classification laws found in 12
U.S.C.A. § 1723a(d)(1) relate to employees
of the “Association,” defined in 12 U.S.C.A.
§ 1717(a)(2)(A) as GNMA.
Kasper also points to two memoranda
addressed to all employees of GNMA invit-
ing and encouraging them to join the newly
created FNMA in 1968 to support his
Government employee status. A review of
the memoranda reveals clear language that
FNMA is a private corporation and that
new personnel policies and benefits would
be established by the corporation, which
were separate and distinct from the federal
civil service laws. It is also evident from
the language of 12 U.S.C.A. § 1723a(d)(2),
the subsection addressing appointment and
compensation of personnel of the ‘‘Corpora-
tion,” defined in section 1717(a)(2)(B) as
FNMA, that Congress intended the status
A~20
of Government employee to extend to civil
service retirement laws only.
(2) The board of directors of the corpora-
tion shall have the power to select and
appoint or employ such officers, attor-
neys, employees, and agents, to vest
them with such powers and duties, and to
fix and to cause the corporation to pay
such compensation to them for their ser-
vices, as it may determine; and any
such action shall be without regard to
the Federal civil service and classifica-
tion laws.... Each officer and employ-
ee of the corporation who is employed by
_ the corporation prior to January 31, 1972,
and who on the day previous to the
beginning of such employment will
have been subject to the civil service
retirement law (subch. III of ch. 83 of
- Title 5) shall, so long as his employment
by the corporation continues without a
break in continuity of service, continue to
be subject to such law; and for the pur-
pose of such law his employment by the
corporation without a break in continuity
of service shall be deemed to be employ-
ment by the Government of the United
ee
States.
12 U.S.C.A. § 1723a(d)(2) (emphasis added).
Kasper further asserts that the statutory
language provides an implied right of ac-
tion. In essence, Kasper relies upon the
language in 12 U.S.C. § 1723a(d)(2), which
states, “Appointments, promotions, and
separations so made shall be based on mer-
it and efficiency, and nog political tests or
qualifications shall be permitted or given
consideration.”
The standard for determining whether a
private right of action is implied in a feder-
al statute was set forth in Cort v. Ash, 422
U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d
26 (1975), where the Court stated that the
following factors were relevant:
First, is the plaintiff ‘one of the class for
whose especial benefit the statute was
enacted.’ ...—that is, does the statute
create a federal right in favor of the
plaintiff? Second, is there any indication
of legislative intent, explicit or implicit,
either to create such a remedy or to deny
one?.... Third, is it consistent with the
A-22
underlying purposes of the legislative
scheme to imply such a remedy for the
plaintiff?.... And finally, is the cause
of action one traditionally relegated to
state law, in an area basically the con-
cern of the States, so that it would be
inappropriate to infer a cause of action
based solely on federal law? (emphasis
in original)
In Local Division 732 Amalgamated
Transit Union v. Metropolitan Atlanta
Rapid Transit Authority, 667 F.2d 1327
(11th Cir.1982), cited in the district court
opinion, this Court noted that the Supreme
Court has drastically modified application
of the four-factor test announced in Cort v.
Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d
26 (1975), by announcing that the task of a
federal court in implied cause of action
cases is to determine whether Congress
intended to create the private right of ac-
tion being asserted. TransAmerica Mort-
gage Advisers, Inc. v. Lewis, 444 U.S. 11,
100 S.Ct. 242, 62 L.Ed.2d 146 (1979);
Touche Ross & Co. v. Reddington, 442
U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82
A. 4?
(1979).
Since a review of the Charter Act and its
legislative history reveals nothing to show
Congress intended a private right of action
under this section, the conclusion must be
that Congress did not intend to create the
cause of action asserted here.
II. No Private Right of Action under 0.C.
G.A. § 34-1-2.
[2] The district court held that no pri-
vate mght of action arose under O.C.G.A.
§ 34-1-2, a penal statute prohibiting age
discrimination in employment. Penal stat-
utes in Georgia do not give rise to a private
cause of action for the conduct proscribed.
The court properly relied upon Webster v.
Singer Sewing Machines Company, N.B-
76966 (Fulton Sup.Ct. May 15, 1973) (Geor-
gia state trial court holding that no cause
of action accrued under Ga.Code Ann.
§ 54-1102, the predecessor to O.C.G.A.
§ 34-1-2), and two Georgia appellate court
decisions finding no cause of action under
similar Georgia penal statutes, Cox Broaa-
A-34
casting Corp. v. Cohn, 231 Ga. 60, 200
S.E.2d 127 (1973), rev'd on other grounds,
420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328
judgment conformed, 234 Ga. 67, 214
S.E.2d 530 (1975), and Mitchell v. Southern
Dairies, Inc., 77 Ga.App. 771, 49 S.E.2d
912 (1948). |
Kasper argues that the district court in-
correctly interpreted Georgia precedent, re-
lying upon LaBarre v. Payne, 174 Ga.App.
32, 329 S.E.2d 533 (1985), a case in which a
Georgia appellate court recognized a pri-
vate cause of action for embracery, conduct
for which Georgia law imposes criminal
sanctions. See 0.C.G.A. § 16-10-91. Kas-
per’s reliance on LaBarre is misplaced.
The Georgia Court of Appeals supported
its LaBarre holding by citing to the com-
mon law tort of embracery in other juris-
dictions and Corpus Juris Secundum. It
is evident from these references that the
court relied upon a common law tort of
embracery to sustain the action and simply
use the Georgia penal statute to define the
elements of the tort.
III. ADEA Claim.
[3] Kasper asserted two claims of dis-
crimination: (1) termination as Regional
Counsel, and (2) “involuntary retirement
discontinued service.” The district court
held that Kasper had not filed charges with
the EEOC within the 180 days required by
law. The issue of timeliness turns on when
the period for filing began.
Delaware State College v. Ricks, 449
U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 -
(1980), a case involving a college professor
denied tenure, held the limitations period
commenced no later than when the college
announced its official position on tenure,
not when the professor’s terminal contract
expired. Under this authority, the district
court determined that for purposes of ap-
plying the limitations period of 29 U.S.C.A.
§ 626(d)(1), July 22, 1982 was the date on
which Kasper’s cause of action for his re-
moval as Regional Counsel accrued. On
his involuntary retirement claim, the dis-
trict court found that, giving plaintiff the
A-36
benefit of the doubt, the latest operative
date would be August 4, 1982, the date
when Kasper received a letter stating that
he would be retired on August 5, 1983.
Kasper argues that the operative date, at
least for the unlawful termination, is Au-
gust 5, 1983, the date of actual termination.
He seeks to distinguish Ricks on the basis
that his complaint alleges a continuation of
discriminatory acts up until his actual ter-
mination. Kasper’s complaint reveals no
allegations of continuing acts of discrimina-
tion. In fact, all the acts complained of
occurred in 1982. From August 1982 for-
ward, FNMA did not deviate from its ex-
pressed intention to terminate Kasper as of
August 5, 1983.
The proper focus for purposes of estab-
lishing the time at which the limitations
period begins to run “‘is on the time of the
discriminatory act, not the point at which
the consequences of the act become pain-
ful.” Chardon v. Fernandez, 454 U.S. 6,
8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981)
(emphasis in original) (citing Ricks, 449
A-37
U.S. at 258, 101 S.Ct. at 504). ‘The fact of
termination is not itself an illegal act.” Jd.
The alleged illegal acts here were the deci-
sion to terminate and the notice of that
decision to Kasper. It is clear from the
record that Kasper received unequivocal
notice on July 22 and August 4, 1982 of
FNMA’s intention to remove him as Re-
gional Counsel and to terminate his em-
ployment on August 5, 1983. FNMA never
waivered from this position.
Kasper alleges that the authority to ter-
minate his employment was vested in the
FNMA Board of Directors (Board) and that
neither Austin nor Burfiend possessed that
authority. Unlike the plaintiff in Ricks,
Kasper claims, he was never notified of
any action of the Board. Austin had the
authority to terminate Kasper, however, if
his conduct was deleterious to the contin-
ued functioning of the unit. It is clear that
Kasper considered the notice authoritative
because he cleaned out his office on July 22
and 23 and never received any further
work assignments from FNMA. Kasper
sought letters of recommendation from
FNMA officials and met his 31-year-old
replacement in the fall of 1982, and accept-
ed other employment int May 1983 even
though he was still on the FNMA payroll.
At no time before his actual termination in
1983 did Kasper evidence a doubt of Aus-
tin’s authority or of FNMA’s intentions.
Kasper’s correspondence with FNMA offi-
cials focused on his obtaining severance
terms more favorable than those noticed in
the August 4, 1982 memorandum. At no
time did Kasper formally request a trans-
fer or reassignment. The latest possible
operative date for limitations purposes
would have been the point when Kasper
met his replacement.
The district court found no factors
present sufficient to equitably toll the limi-
tation period, but found two factors sup-
port the decision that Kasper’s involuntary
retirement claim should be time barred.
First, Kasper acknowledges recognition of
his right after attending a conference on
A-39
age discrimination in March 1983, but did
not file his charge with EEOC until almost
six months later. Second, the court found
that the fact that Kasper was an attorney
weighed against equitable tolling.
([4] Kasper’s final argument is that the
limitations period did not begin to run be-
cause he has never been provided a hearing
on his discharge by FNMA and this consti-
tutes a continuing violation under Rubin v.
O’Koren, 644 F.2d 1023 (5th Cir. Unit B
1981). Reliance on Rubin is inapposite be-
cause that case addresses a claim under 42
U.S.C.A. § 1983 for a due process violation.
Kasper’s claim arises under the ADEA and
failure to provide a hearing does not consti-
tute a continuing discriminatory act on
these facts.
For the foregoing reasons, the district
court is due to be
AFFIRMED.
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 86-8438
WALTER W. CALHOUN,
Plaintiff,
versus
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Defendant-Appellee,
GEORGE H. KASPER, JR.,
Intervenor-Appellant.
Appeal from the United States
District Court for the
Northern District of Georgia
ON PETITION(S) FOR REHEARING
(October 26, 1987)
BEFORE: _RONEY, Chief Judge, KRAVITCH
and EDMONDSON, Circuit Judges.
PER CURIAM:
The petition(s) for rehearing filed
by George H. Kasper., Appellant, is
denied.
ENTERED FOR THE COURT:
/s/ Paul H. Roney
CHIEF JUDGE
—— —<—<«<_——-
CERTIFICATE OF SERVICE
I hereby certify that I have served
three (3) copies of the foregoing
Petition for Certiorari upon
Mr. Jefferson D. Kirby, III
Ford & HARRISON
600 Peachtree at the Circle Building
1275 Peachtree Street, N.E.
Atlanta, Georgia, 30309
Attorneys for Respondent, Federal National
Mortgage Association, by certified mail,
return receipt requested, duly addressed
and postage prepaid.
This /6™ day of December, 1987.
rge Kasper, Jr.
Attorney for Petition€r
Pro se.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.