Petition for Writ of Certiorari — Goldstein v. Delta Air Lines, Inc.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

LOU C. GOLDSTEIN,

Petitioner - PRO SE,

=;

DELTA AIR LINES, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

LOU C. GOLDSTEIN

249 South Colonial Homes Circle, N.W.

Atlanta, Georgia 30309

(404) 355-0539

PETITIONER

PRO SE

i

QUESTION PRESENTED

. Whether the Court of Appeals erroneously ruled on the

substantive law under §510 ERISA by sustaining

credence to Respondents proffered reason for discharge

of employment (pretext of poor dependability) in holding

there is no merit to any of Petitioner's arguments, where

the district court ruling complained of was upon

questions of fact within statutory definition and

questions of law which substantially affect the

substantive rights of Petitioner in federally regulated

employee benefit plan, in action for interference with

Statutory rights under statute prohibiting such

interference, as to which the courts of appeal are in

conflict?

— -_ — —— — ——— — — Se eo ae

ee a as SD din SS - —— a meme ee ——— in iaiaiaaiee ru es _=

ee Mer - aor wh a) ar ens -_ rae on eres 7 : - a7 ase nat Soy eS

7 es 7 _ ae - Caw ) - a he , a =" i “et : : ;

ce ; =p ~~ i a [| = nat | fe _ + ig SS

= ; - 7 : - — : , _—

o a Ors 6 = ‘ws \ t pha 7 Bot © i : i oe ~~

je Eee ae ay ens a : f ; ; it Lan = te

ia ine a - 5 Bred y 7 5 = = & J =e 7 es ee a §

i, a eo! rear a

ee a e - -, ) fs ier = wie] |

u ‘ -

Ware ' om 7 Si i an \ ane 7 ; ey

a i t ; .

j ; | af

i : i ® e < 7

= .

‘ b

a *

x @

. - 7

)

8

2 ‘ %

- &

+]

ll

PARTIES

Petitioner, Lou C. Goldstein, was employed by Delta

Air Lines, Inc., as a flight attendant commencing on or about

October 10, 1966, and continued in such employment until

on or about March 16, 1981, when Delta terminated her

employment.

Respondent, Delta Air Lines, Inc., is a corporation

which is engaged in the commercial airline business

operating both domestically and internationally.

ill

TABLE OF CONTENTS

Pages

QUESTIONS PRESENTED i

PARTIES ii

TABLE OF CONTENTS il

TABLE OF AUTHORITIES iv

OPINIONS BELOW l

JURISDICTIONAL STATEMENT 2

FEDERAL STATUTES INVOLVED 2

STATEMENT OF THE CASE 3

REASONS FOR GRANTING THE WRIT 12

To Insure the Integrity of the Legislative Intent

of ERISA - Employee Benefit Rights Must Be

Protected

CONCLUSION 20

INDEX TO APPENDIX 21

APPENDIX A: Opinion of the Circuit Court -

APPENDIX B: Rehearing Decision of the Circuit Court

APPENDIX C: Judgment of the Circuit Court

APPENDIX D: Order of the District Court

APPENDIX E: Judgment of the District Court

APPENDIX F: Federal Statute Involved

fast = §Y

i” a ‘Tig te 4 as he

3

-_—

q

=

-_

i

f

2

5

¥

7

’

=

we ee

Mie :

oy Wer) eo 7

— ‘eS os : vS oe

.

ae

: oe = > iv Dr ones 7 .

iv

TABLE OF AUTHORITIES

Page

TABLE OF CASES:

Anderson v. Liberty Lobby, Inc., 47 Us :

91 L. Ed 2d 202, 106 S. Ct. 16

Chastain v. Delta Air Lines, Inc., 496 F.

Supp. 979 (1980) 15

Gavalik v. Continental Can Co., 812 F. 2d 834

(3rd. Cir. 1987) 13,14,15,19

Massachussetts Mutual Life Insurance Co.

v. Russell 473 U.S., at 148. 12

Matsushita v. Zenith Radio Corporation, 475

US 574 89 L.Ed. 2d 538 106 S. Ct. 1348

Shaw v. Delta Air Lines, Inc. 463 U.S.

85,90 (1983) 12

Zipf v. American Telephone and Telegraph Co.,

799 F. 2d 889 (3rd Cir. 1986) 13

STATUTES:

ERISA, 29 U.S.C. i, 12, 13, 116, 18

MISCELLANEOUS:

Protection of Employee Benefit Rights

Delta Family Care Disability and Survivorship Plan

— a

a 1? on

oy ee

‘ie = * 1

_ ; _ a 7 a

ines es oo OP Ie

; 7 ae re —— = : on Rhee a ee VF, _" - ’ io = = F

MISCELLANEOUS:

Protection of Employee Benefit Rights

Delta Family Care Disability and Survivorship Plan

‘Ce

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

LOU C. GOLDSTEIN,

Petitioner - PRO SE,

V.

DELTA AIR LINES, INC.,

Respondent,

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

TO: THE HONORABLE, THE CHIEF JUSTICE OF THE

UNITED STATED SUPREME COURT AND THE

ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES.

Petitioner prays that a writ of certiorari issue to review

the decision of the United States Court of Appeals for the

Eleventh Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals was not reported. It

is reproduced in Appendix A.

The decision of the district court was not reported. It is

réproduced in Appendix D.

_ EE ——

2

JURISDICTION

The decision of the Court of Appeals was entered on June

6, 1989. The petitions for rehearing were denied August 31,

1989.

This Court's jurisdiction is invoked under the provisions

of 28 U.S.C. §1254.

FEDERAL STATUTES INVOLVED

The federal statute involved is The Employment

Retirement Income Security Act of 1974 (ERISA), Public

Law 93-406, 29 U.S.C. §1140.

A copy of the relevant portion is included in Appendix F.

3

STATEMENT OF THE CASE

The jurisdiction of the district court was invoked under the

Employee Retirement Income Security Act, 29 U.S.C., 93rd

Congress, H.R. 2, Public Law 93-406, (Hereinafter referred

to as ERISA).

Lou C. Goldstein, hereinafter referred to as “Petitioner”

was employed as a flight attendant by Delta Air Lines, Inc.

commencing on October 10, 1966, and continued in such

employment until March 16, 1981, when Delta terminated her

employment for exercising her rights under ERISA.

Delta Air Lines, Inc., hereinafter referred to as

"Respondent", is a corporation which is engaged in the

commercial airline business operating both domestically and

internationally.

As an employee, Petitioner was entitled to certain benefits

provided by Respondent, among which are Delta Family Care

Medical Plan, Delta Family Care Disability and Survivorship

Plan and Delta Family Care Retirement Plan, hereinafter

referred to as "the Plan", all of which are subject to ERISA.

Petitioner had rights and expectations of rights under these

Plans and was entitled to sick leave, short and long term

disability, pension and retirement benefits as set out in the

various Plans.

At such time Petitioner was also eligible to receive short

and long term disability benefits under the Plan and

Retirement benefits under the Plan. Petitioner was also

eligible for sick leave in accordance with Respondent's sick

leave policy. All of these Plans are protected by ERISA.

' il re Disability an rvivorship Plan

lon w follows: An employee who

22

4

is too ill to work is given a certain number of sick leave days

during the year. Once these sick leave days are used up, the

employee must apply for short term disability benefits. In

order to qualify for short term disability benefits, an employee

must be unable to perform his customary occupation. In order

to obtain short term disability benefits, the employee must

provide a medical certificate indicating that he or she is

incapable of performing his or her normal work duties. These

short term benefits are generous, but of fixed duration. Short

term disability benefits are paid for a period of 26 weeks,

including the time an employee received full pay sick leave.

As long as the alleged disability commenced while the

employee was employed, Plan benefits would continue for

that period of disability regardless of the employee's

employment status. Once all of an employee's short term

disability leave has been used up, the employee must either

return to work or apply for long term disability benefits. In

order to obtain long term disability benefits, the employee

must provide medical certification proving that he or she is

incapable of performing any job. Eligibility for benefits under

the Disability and Survivorship Flan is independent from the

employment status of the employee. Thus, as long as the

alleged disability commenced while the employee was

employed, Plan benefits would continue for that period of

disability regardless of the employee's employment status. __

Delta's Sick Leave of Absence Policy provides for leave

without pay for 90 days after benefit denial.

"Effective June 1, 1981, the early retirement age

under the Plan was changed from age 55 to age 52.

In addition, the Plan implemented a special program

:

5

allowing employees to retire at age 50 (however,

benefits would not be payable until age 52) if they

had 25 years of service at age 50." (Affidavit of

Harvey King, R.1, 21.)

"Eligibility for benefits under the Disability and

Survivorship Plan is independent from the

employment status of the employee. Thus, as long

as the alleged disability commenced while the

employee was employed, Plan benefits would

continue for that period of disability regardless of the

employee's employment status" (Affidavit of

Katherine Dodson, R.1, 21.)

"Plaintiffs employment with Delta was

terminated as a result of her failure to maintain

acceptable dependability" (Affidavit of John Hume,

R.1, 28).

Petitioner alleged in her complaint that Respondent

concealed the unlawful termination from her.

On October 26, 1980, Petitioner filed for full pay sick

leave. This illness resulted in termination of employment by

Respondent on March 16, 1981. Petitioner's sick leave

expired on January 3, 1981. She was removed from the

payroll January 4, 1981. "Flight Attendant Sick Leave" forms

must be completed and submitted to supervisor immediately

upon return to work; the Plan handbook states "Claims for

disability should be submitted within 31 days after being

removed from the payroll". In a letter dated January 22,

1981, Respondent specifically informed Petitioner that failure

to submit medical certification would result in termination of

‘ea

6

Petitioner's employment (Ex: D,E,F,G; R1.23 -pp. 3,4; Ex.

Le Re hed

On February 12, 1981, John Hume, Vice President-In-

Flight Service, advised the Manager of In-Flight Service that

Respondent was considering three alternatives regarding

Petitioner's status:

1. Terminating her employment before returning to

work;

2. Allowing her to return to work, placing her on

indefinite suspension, reviewing her record and terminating

her employment.

3. Allowing her to return to work with a strong final

warning.

Hume assured Petitioner that Respondent's only concern

was to make certain that she was well enough to return to

work as a productive employee (Ex. M; R1.21).

In order to qualify for short term disability benefits, an

employee must be unable to perform his customary

occupation. (Affidavit of Katherine Dodson, R1.21,

hereinafter referred to as the "Dodson Affidavit").

Petitioner submitted additional medical certification to

Respondent from her attending physician, as noted in Dr.

Frank's certification of February 19, 1981. Respondent

insisted that Petitioner see Dr. Dennis, a physician on behalf

of Delta (R1.23, pp. 4,5).

A decision was made on February 24, 1981, to terminate

Petitioner's employment. Respondent stated reason was

“poor dependability". Delta's personnel policy requires that

such termination recommendation be reviewed by various

management personnel and final approval for the termination

eee. ~<a

7

was received on March 13, ‘Hume Affidavit R1.21). On

March 16, 1981, petitioner's employment was terminated.

The termination of employment was made effective January 4

- this was a bookkeeping entry - it is Respondent's policy to

back date employment terminations (R1.21, p.24; Ex. H

R1.23, p. 4).

In a letter dated March 11, 1981, to Petitioner,

Respondent specificaily informed Petitioner that all short term

benefits would be stopped and payments halted retroactively

as of February 19, 1981, the date of her first scheduled

appointment, rather than February 27, the date she actually

saw Dr. Dennis (R1.23 p.4).

As long as the alleged disability commenced while the

employee was employed, Plan benefits would continue for

that period of disability regardless of the employee's

employment status (Dodson Affidavit, Ex. ; R1.21).

Petitioner's claim for short term disability was initially

granted for the period January 4 through February 20, 1981,

but denied thereafter on the basis that the medical evidence in

the file did not support her claim that she was unable to

perform her customary work. Petitioner complied with the

provisions under the Plan, she was eligible for benefits, she

qualified for benefits. The evidence was in the file or the

claim would not have been granted. Short term disability

benefits are paid for a period of 26 weeks, including the time

an employee receives full pay sick leave (Dodson Affidavit,

R1.21).

Petitioner was entitled to leave without pay for 90 days

after benefit denial, under Respondent's sick leave of absence

policy (R1.23, p. 5). It is Respondent's practice in some

cee

8

circumstances to set a date certain by which an employee who

has been denied long or short term disability must return to

work so that there can be no question but that if the employee

does not return to work by that deadline, he or she will be

deemed to have have abandoned the job. There is no policy

or practice which requires Respondent to make such a

decision at any particular time. (R1.24, pp 2,3).

Respondent could not continue to consider her employable

(Hume Affidavit, R1.21).

Petitioner felt she had been misinformed and misled and

felt confused (attached to Hum Affidavit, Ex. N: R1.21).

wi recor ll ex from

‘ i ll ments

vit of John H nd the affidavit oi

Katherine Dodson R1.21):

Following the expiration of Petitioner's 26 week short

term disability period on May 7, 1979, the Plan notified her

on July 18, 1979, that based upon Dr. Whaley's medical

examination, it did not appear that she was eligible for long

term disability benefits.

W. nden 14, 1979, in

pertinent part:

I saw no need to accomplish any x-rays or laboratory

evaluation.

If any further information about her comes to your

attention that might alter the above opinion, I would appreciate

your bringing it to me and a supplemented medical report

could be issued.

9

On July 27, 1979, Petitioner was notified by

Respondent's Personnel Department to contact her local

manager regarding returning to work (Hume Affidavit). The

90 day period referenced in Respondent's letter of July 26

begins on July 18 (the date of the disability denial) and refers

to the period in which the employee must notify Respondent

in order to retain employment (Ex. H). Petitioner kept

Respondent apprised of her disability status (Ex. G,]I).

Respondent informed Petitioner it would be necessary to

submit medical certification prior to return to active status (Ex.

| ee n r_ 24, 1979, ba upon _her poor

ndabili nd_her_failur return to work, her

employment was terminated" (Hume Affidavit) Petitioner was

reinstated. Respondent was aware that petitioner's benefit

Ww i r_review ween May and

November 1979 (Ex. K).

Based on Petitioner's benefit appeal of October 22, 1979,

Petitioner was notified on November 9 of her eligibility for

short term disability and found eligible for all short term

disability benefits through May 7, 1979 (Ex. K), effective

retroactively.

In a letter dated January 28, 1980, Respondent specifically

advised Petitioner that she had been on an unauthorized leave

since May 7, 1979 (Ex. J), Petitioner had been appealing the

denial of benefit claims through the Plan's appeal procedure.

Petitioner apprised Respondent that the disability claim

forms were being processed by her physician. The long term

disability claim was denied April 2, 1980, Delta's process

began again. (Motion for Reconsideration/Amendment to

Motion for Reconsideration, R1 and R2; 2nd Supplementatl

10

Record on Appeal). At no time was Petitioner offered a

ground job. Petitioner did not admit dependability prompted

loss of her job. (It was dictated to Petitioner by Respondent.)

Petitioner maintains her position: She did not have proper

discovery; Respondent has engaged in concealment regarding

her; her Motion For Reconsideration and amendment have

merit; her evidence to show prior acts of Respondent,

evidence a particular "design" "purpose" which is of legitimate

probative value.

Effective June 1, 1981, the early retirement age under the

Plan was changed from age 55 to age 52. In addition, the

Plan implemented a special program allowing employees to

retire at age 50 (however, benefits would not be payable until

age 52) if they had 25 years of service at age 50.

The District Court found it was obvious that Respondent

fired Petitioner because she was an undependable employee,

Petitioner had provided no evidence to the contrary, that

Petitioner completely failed to demonstrate any merit to her

claim.

The District Court found that Petitioner complied under the

provisions of the Plan, Petioner qualified for benefits under

the provisions of the Plan, and that Petitioner's claim for short

term disability was granted. Then, the District Court found

Petitioner was not eligible. The reason for halting the claim

n ing the benefits is in di ;

Petitioner's claim was granted. The evidence was in the

file. Petitioner submitted additional certification (Ex. I:

R1.23-4). Respondent insisted Petitioner see Dr. Dennis who

reported no disability. (R1.23, pp 4,5) Respondent maintains

that Petitioner's that Petitioner's status is because the medical

11

evidence in file did not support Petitioner's claim that she was

unable to perform her customary job (Dodson Affidavit,

R1.21). On February 20, 1981, (the date Petitioner's benefit

claim was halted), Respondent also maintains that Delta would

have to llok at Petitioner's dependability record then

terminated Petitioner's employment for poor dependability.

The District Court held that it is obvious that Delta

retroactively decided to make February 19 the cut-off date for

short term disability benefits for administrative reasons. The

District Court in fact stated that "Given ms. Goldstein was not

eligible for short term disability, Delta (Respondent) could just

as easily have cut off her disability benefits on January 4,

1981, the day her sick leave expired."

The District Court found that Respondent "generally"

allows an employee who has been denied disability, 90 days

within which to return to work before deeming the position

abandoned. The Court's decision is attached hereto as D-1.

The Court of Appeals sustained credence to Respondent's

pretext for termination by holding the undisputed facts show

she was terminated because she was an undependable

employee, there is no merit to any of her arguments. The

Court of Appeals ruling is attached hereto as A-3.

Petitioner filed Motion for Rehearing and Rehearing In

Banc, attached hereto as Appendix B.

12

REASONS FOR GRANTING THE WRIT

To Insure The Integrity Of The

Legislative Intent of ERISA,

Employee Benefit Rights Must Be Protected

ERISA was enacted "to promote the interests of

employees and their beneficiaries in employee benefit plans”,

Shaw vs. Delta Air Lines, Inc. 463 U.S. 85,90 (1983), and

"to protect contractually defined benefits, " Massachusetts

Mutual Life Insurance Co. v. Russell 473 U.S., at 148.

To insure the integrity of employee benefit rights,

Congress has enacted the Employee Retirement Income

Security Act (ERISA) and has prohibited interference with

protected rights under the provisions of employee benefit

plans, every employee has the right to be free from

interference. This means that she cannot be discharged, fined,

suspended, expelled or otherwise interfered with in order to

prevent her from receiving benefits or attaining eligibility for

benefits. See Legislative History of the Employee retirement

Income Security Act of 1974, 93rd Cong.

The effect of the Court of Appeals holding in this case -

the undisputed facts, evidence, shows Petioner was an

undependable employee, that Respondent fired her for that

reason, there is no merit to her arguments - fails to apply the

Legislative Intent.

These important questions of federal law should be settled

by this Court to protect and promote the interests of

employees and their beneficiaries in employee benefit plans.

an exercise of this Court's power is called upon.any analysis

of these issues must begin with an understanding of the nature

13

of the claims asserted by the Petitioner and the purpose of the

statute under which these claims are brought. As noted, this

case concerns Respondent's termination of Petitioner's

employment under the pretect of poor dependability for

exercising her rights to which she was entitled under the

provisions of the employee benefit plans and for the purpose

of interfering with the attainment of rights to which she was

entitled or may become entitled; Gavalik v. Continental Can

Co., 812 F.2d 834 (3rd. Cir. 1987).

Section 510 of ERISA provides, in pertinent part:

Interference with protected rights.

It shall be unlawful for any person to discharge, fine,

suspend, expel, discipline, or discriminate against a

participant or beneficiary for exercising any right to which he

is entitled under the provisions of an employee benefit plan ...

or for the purpose of interfering with the attainment of any

right to which such participant may become entitled under the

plan ... 29 U.S.C.§1140.

It is, of course, true that the employee in a Section 510

suit needs to establish that at the time of the alleged violation,

he or she had the potential of receiving benefits. Otherwise

there can be no credible cclaim that the employer's discharge

or harassment decision was motivated by a desire to prevent

the employee from receiving his or her due. Zipf v. American

Telephone and Telegraph Co., 799 F.2d 889 (3rd Cir. 1986).

An employee who is too ill to work is given a certain

number of sick leave days during the year. petitioner was too

ill to work beginning October 26, 1980. Once these sick leave

days are used up, the employee must apply for short term

disability benefits. in order to obtain short term disability

- .

14

benefits, the employee must provide a medical certificate

indicating that he or she is incapable of performing his or her

work duties. In order to qualify for short term disability

benefits, an employee must be unable to perform his

customary occupation. petitioner filed such certification from

her treating physician, Dr. Frank.

These short term benefits are generous, but of fixed

furation. Short-term disability benefits are paid for a period of

26 weeks, including the time an employee receives full pay

sick leave. Petitioner's short term disability claim was

granted. As long as the alleged disability commenced whiie

the employee was employed, Plan benefits would continue for

that period of disability, regardless of the employee's

employment status.

Respondent interfered with Petitioner's rights under the

ERISA protected Pian. The claim was halted (denied) and

payments stopped on February 20, 1981. Respondent

terminated Petitioner's employment under the pretext of poor

dependability. Pian benefits, as provided, did not continue

for Petitioner.

Congress enacted §510 primarily to prevent unscrupulous

employers from discharging or harrassing their employee in

order to deprive them of their subsiantive nights. Section 510,

unlike other anti-discrimination provisions, is designed to

prevent injury to employee's protected rights not simply to

redress the injury after the goals of a discriminatory plan have

been effected, Gavalik v. Continental Can Co., 812 F 2d 834

(3rd Cir. 1987).

The Court held that the claim was initially granted, but

payments were halted after Petitioner was examined by

15

another physician on behalf of Delta, Dr. Dennis, who

concluded that there was no reason why Plaintiff could not

return to her customary job. The fallacy with this position is

that the Court failed to consider that udner the Plan, as long as

the alleged disability commenced while the employee was

employed, Plan benefits would continue for that period of

disability regardless of the employee's employment status. in

the instant case, payments were halted and the claim was

denied on the basis that medical evidence was not in the file.

The Court failed to consider that Petitioner would not have

qualifed under the Plan absent the medical evidence.

"The Court has little trouble determining that the

Administrative Committee that administers Delta's

Plan has sufficiently broad discretionary powers to

trigger the application of the arbitrary and capricious

standard to decisions made by it". _

The Court misapplied the provisions of the Plan. The

Court found that . . ."Given that Ms. Goldstein (Petitioner)

was not eligible for any short term disability, Delta

(Respondent) could just as easily have cut off her disability

benefits as of January 4, 1981, the day her sick leave expired.

eat

This is clearly erroneous. The District Court's decision is in

direct conflict with the Third Circuit. The Gavlik Court held

that "because the district court construed §510 as requiring

actual deprivation of rights, it failed to consider properly the

inchoate components of the liability avoidance scheme that,

though producing no immediate or tangible effects on

appellants’ rights, nevertheless constituted deliberate steps

undertaken for the purpose of interfering with appellants’

attainment of pension eligibility. When so understood, it is

16

clear that the district court's own finding are evincive of

appellants’ satisfaction of their burden to establish by a

preponderance of the evidence that the plan was infested with

discriminatory intent sufficient to constitute a violation of

ERISA.”

Only disputes over facts that might affect the outcome of

the suit under the governing substantive law will properly

preclude the entry of summary judgment under Rule 56(c) of

the Federal Rules of Civil Procedure; it is the substantive law's

identification of which facts are critical and which facts are

irrelevant that governs the materiality determination. That is,

while the materiality determination rests on the substantive

law, it is the substantive law's identification of which facts are

critical and which facts are irrelevant that governs. Anderson

v. Liberty Lobby, Inc., 91 L.Ed.2d. 202.

The courts failed to consider that Respondent did not carry

his burden by showing the absence of evidence. Respondent

informed the District Court in the Motion for Summary

Judgement that Delta did not support its Motion with

depositions, interrogatories or admissions on file. What Delta

alleged as admissions on file were alleged admissions in

Delta's files which had not been produced to Plaintiff. These

were not admissions on file with the Court, nor did Delta

produce affirmative evidence. Delta stated in their Motion "At

her deposition, Plaintiff could not point to any facts to support

her claim.” R-1-21-24. A conclusory assertion that Plaintiff

has no evidence is insufficient. Under Rule 56 (c) Delta's

Motion for Summary Judgment was not proper.

The party opposing the motion for summary judgment

bears the burden of responding only after the moving party has

17

met its burden of coming forward with proof of the absence of

any genuine issue of material fact.

The burden of establishing the nonexistence of a ‘genuine

issue’ is on the party moving for summary judgment. This

burden has two distinct components: an initial burden of

production, which shifts to the nonmoving party if satisfied by

the moving party, and an ultimate burden of persuasion, which

always remains on the moving party. The court need not

decide whether the moving party has satisfied its ultimate

burden of persuasion unless and until the court finds that the

moving party has discharged its initial burden of production.

If the burden of persuasion at trial would be on the

nonmoving party, the party moving for summary judgement

may satisfy Rule 56's burden of production in either of two

ways. First, the moving party may submit affirmative

evidence that negates an essential element of the nonmoving

party's claim. Second, the moving party may demonstrate to

Where the moving party adopts this second option and seeks

summary judgment on the ground that the nonmoving party -

who will bear the burden of persuasion at trial - has no

evidence, th hani

production are somewhat trickier. Plainly, a conclusory

assertion that the nonmoving party has no evidence is

insufficient. Such a ‘burden’ of production is no burden at all

and would simply permit summary judgment procedure to be

converted into a tool for harassment. Rather, as the Court

confirms, a party who moves for summary judgment on the

ground that the nonmoving party has no evidence must

18

confirms, a party who moves for summary judgment on the

ground that the nonmoving party has no evidence must

affirmatively show the absence of evidence in the record. This

may require the moving party to depose the nonmoving party's

witnesses or to establish the inadequacy of documentary

evidence. If there is literally no evidence int he record, the

moving party may demonstrate this by reviewing for the court

the admissions, interrogatories, and other exchanges between

the parties that are in the record. Either way, however,s the

moving party must affirmatively demonstrate that there is no

evidence in the record to support a judgment for the

nonmoving party.

If the moving party has not fully discharged its initial

burden of production, its motion for summary judgment must

be denied, and the court need not consider whether the moving

party has met its ultimate burden of persuasion.

Respondent's proffered reason for termination is a pretext.

mistaken inferences in cases such as this one are especially

costly, because they chill the very conduct that ERISA, in the

instant case, are designed to protect. The evidence on which

the Court of Appeals relied has no relevance to the alleged

ERISA violation. Matsushita v. Zenith Radio Corp., 475, US

574 89 L.Ed2d 538 106 S. Ct. 1348.

Burden of persuasion on plaintiff employees in action

alleging violation of Employee Retirement Income Security Act

section proscribing interference with protected rights did not

require employees to prove that “but for" employer's

consideration of employees’ impending pension eligibility,

employees would have remained at work, but rather, required

oniy proof that “but for" the impermissible consideration,

19

employees would of have lost work. Employee Retirement

Income Security Act of 1974, §510, 29 U.S.C.A. $1140.

The plaintiffs’ claim is not that they have been denied their

pensions, but that they have been denied the opportunity to

eventually become entitled to a pension." Gavalik v.

Continental Can Co., 812 F.2d 834 (3rd Cir. 1987).

To recover under §510, a plaintiff need not prove that "the

sole reason for his (or her) termination was to interfere with

pension rights" Gavalik v. Continental Can Co., 812 F.2d 834

(3rd Cir. 1987).

The Trial Courts findings of fact are governed by the

clearly erroneous standard of review "but as to the legal

component of the conclusion, this Court has plenary review."

Gavalik v. Continental Can Co., 812 F.2d 834 (3rd Cir.

1987).

20

CONCLUSION

Employers must recognize their legal duty under ERISA.

Employment decisions must be undertaken subject to entitled

rights protected under ERISA. Courts must apply the

legislating intent. In order to secure the rights and expectations

brought into being by the Landmark Reform Legislation of

ERISA, it is respectfully submitted that a writ of certiorari be

granted to review the decision of the Court of Appeals for the

Eleventh Circuit.

Respectfully submitted,

LOU C. GOLDSTEIN

249 South Colonial Homes Circle, N.W.

Atlanta, Georgia 30309

(404) 355-0539

PETITIONER

PRO SE

21

INDEX TO APPENDIX

APPENDIX A: Opinion of the Circuit Court

APPENDIX B: Rehearing Decision of the Circuit Court

APPENDIX C: Judgment of the Circuit Court

APPENDIX D: Order of the District Court

APPENDIX E: Judgment of the District Court

APPENDIX F: Order of the District Court

APPENDIX G: Statute, Provision, Policy Involved

A-1

APPENDIX A

DO NOT

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 87-8951

No. 88-8138

Non-Argument Calendar

D.C. Docket No. 87-8

LOU C. GOLDSTEIN,

Plaintiff-Appellant,

versus

DELTA AIRLINES, INC.,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Georgia

(June 6, 1989)

ee ee ee ee

A-2

Before RONEY, Chief Judge, TIOFLAT and JOHNSON,

Circuit Judges.

PER CURIAM:

Plaintiff Lou C. Goldstein appeals a summary

judgment for defendant Delta Airlines, Inc.. and the denial

of a motion for reconsideration in Goldstein's action

pursuant to the Employee Retirement Income Security Act

(ERISA). Goldstein, a former Delta flight attendant,

contends that the district court erred in granting a summary

judgment and improperly restricting her discovery efforts.

We affirm.

This action is pursuant to the ERISA provisions in 29

U.S.C.A. §§ 1140 and 1141. Section 1140 prohibits,

interalia, discharging and employee for either exercising

her rights under an employee benefits plan or for the

purpose of interfering with her attainment of any rights

under the plan. To establish a cause of action under

ERISA for wrongful termination, the discharged employee

must show that the employer intended to deprive the

employee of ERISA benefits and that this intent was a

motivating factor in the termination. See Gavalik v.

Continental Can Co., 812 F.2d 834, 851-52 (ed Cir.),

cert. denied, _—*US.. oe o.Ct.

495, 98 L.Ed.2d 492 (1987).

Since the undisputed facts show that Goldstein was

terminated because she was an undependable employee,

there is no merit to any of her arguments. it is not

necessary to detail all the facts, which are meticulously set

forth in the district court's order and of which the parties

are aware.

Oe eee eee

eee eo ee ae a ee

A-3

Goldstein worked for Delta from October 1966 until it

fired her in March 1981. She missed 29 days of work in

1970, 43 in 1971, 99 in 1972, and 100 in 1975. Delta

suspended her for one month in 1974 and 18 months in

1977 through 1978, for exceeding flight attendant weight

limits. At the time of her discharge in 1981, she had

worked just three months out of the prior four years. She

attributed her absences to chronic flu-like symptoms with

upper respiratory congestion. After she was fired in

1979, Delta granted her request for reinstatement on the

condition that she apply for long-term disability benefits.

She did not receive the disability benefits because a Delta

physician examined her and determined that she was able

to work. Prior to terminating her employment in 1981,

Delta offered to transfer her to a job on the ground. She

declined. Her discharge at age 34 was approximately

three months before the effective date of a change in the

pension plan to allow Delta employees early retirement

benefits at age 52, rather than at 55 as previously allowed.

After her termination, Goldstein requested reinstatement

and admitted that her lack of dependability had caused the

loss of her job.

Viewed in a light most favorable to Goldstein, as must

be done on summary judgment reviews, the evidence

shows that Goldstein was an undependable employee and

that Delta fired her for that reason and not because she

exercised her rights under the employee benefits plan, or

because Delta wanted to prevent the vesting of the new

early retirement benefits. Summary judgment was proper

since there was no genuine issue of material fact and Delta

was entitled to judgment as a matter of law. See Sweat v.

Miller Brewing Co., 708 F.2d 655, 656 (11th Cir. 1983).

A-4

The district court correctly held that Goldstein had no

claim under 29 U.S.C.A. §1141, because only the United

States Attorney General may enforce this provision. See

West v. Butler, 621 F.2d 140, 243-44 (6th Cir. 1980);

Phillips v. Amoco Oil Co., 614 F.Supp. 694, 724 (N.D.

Ala. 1985), affid, 799 F.2d 1464 (11th Cir. 1986), cert.

denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500

(1987).

Goldstein's claim that the district court erred in

limiting discovery also lacks merit. The court entered a

protective order preventing Goldstein from deposing

Ronald Allen, Delta's Board Chairman. The record

shows that Allen did not make the decision to fire

Goldstein, he had no independent recollection of the

BNR RO I a i El Il, LT oer Paitin

events in question, and the information sought from him

was available from the supervisor who fired Goldstein.

The district court has broad discretion in discovery

matters, see Harden v. Adams, 760 F.2d 1158, 1167

(11th Cir.), cert. denied, 474 U.S. 1007, 106 S.Ct. 530,

88 L.Ed.2d 462 (1985), and Fed. R.Civ. P. 26(c)

authorizes it to grant protective orders when warranted.

AFFIRMED

a

|

Sn namie eet it sttahale

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 87-8951

No. 88-8138

LOU C. GOLDSTEIN,

Plainuff-Appellant,

versus

DELTA AIRLINES, INC.,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Georgia

Before RONEY, Chief Judge, TJOFLAT and JOHNSON,

Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

member. of this panel nor other Judge in regular active

service on the Court having requested that the Court be

polled on hearing in banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule 35-5), the

Suggestion (s) of Rehearing In Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Paul H. Roney

United States Circuit Judge

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 87-8951 & 88-8138

Non-Argument Calendar

D.C. Docket No. 87-8

LOU C. GOLDSTEIN,

Plainuff-Appellant,

versus

DELTA AIRLINES, INC.,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Georgia

Before RONEY, Chief Judge, TIOFLAT and JOHNSON,

Circuit Judges.

PER CURIAM:

JUDGMENT

These causes came on to be heard on the transcript of

the record from the United States District Court for the

Northern District of Georgia, and were taken under

submission by the Court upon the record and briefs on

file, pursuant to Circuit Rule 34-3;

C-2

ON CONSIDERATION WHEREOPF, it is now hereby

ordered and adjudged by this court that the judgments of

the said District Court in these causes be and the same are

hereby AFFIRMED;

IT IS FURTHER ORDERED THAT plaintiff-

appellant pay to defendant-appellee, the costs on appeal to

be taxed by the Clerk of this Court.

Entered: June 6, 1989

For the Court: Miguel J. Cortez, Clerk

By: /s/ David Maland

Deputy Clerk

ISSUED AS MANDATE: _ September 8, 1989

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

LOU C. GOLDSTEIN -

VS. : CIVIL NO. C87-8

DELTA AIRLINES, INC.

ORDER

This action seeking damages and reinstaternent under

the Employee Retirement Income Security Act (ERISA) is

before the court on Defendant's motion for summary

judgment. Plaintiff, a former flight attendant with Delta

Airlines, claims that she was fired as a pretext in order to

deprive her from receiving benefits under Delta's Family

Care disability and Survivorship Plan and the company's

Family Care Retirement Plan.

Plaintiff was a flight attendant with Delta from

October, 1966 through March 20, 1981. Her performance

record was poor. According to the employee evaluations

attached to Defendant's motion, Plaintiff experienced

chronic problems controlling her weight within acceptable

standards for flight attendants, and also had a very poor

attendance record. !

1 For example, in 1970, she was absent 29 days and

removed from the payroll twice. In 1971, she was out 43

days. In 1972, she was out 99 days. In 1973, when her

attendance record improved, she was cited for substandard

work performance and a poor working attitude.- In 1974,

she was suspended for failure to conform to her weight

restrictions. In 1975, she missed 100 days. In 1977, she

was again placed on weight suspension. Her employment

file contains numerous warnings regarding her attendance

record and weight problems.

D-2

While a portion of Plaintiffs absences were explained

by her ability to take advantage of Delta's generous

vacation benefits and sick leave program, she was

frequently absent due to health problems. Her maladies

ranged from depression to a chronic problem with an

illness of unexplzined origin, which produced cold-like

symptoms, and plagued Plaintiff for over five years.

Delta's Family Care Disability and Survivorship i

Plans, long term and short term, work as follows. An

employee who is too ill to work is given a certain number

of sick leave days during the year. Once these sick leave

days are used up, the employee must apply for short term

disability benefits. In order to obtain short term disability

benefits, the employee must provide a medical certificate

indicating that he or she is incapable of performing his or

her normal work duties. These short term benefits are

generous, but of fixed duration. Once all of an

employee's short term disability leave has been used up,

the employee must either return to work or apply for long

term disability benefits. In order to obtain long term

disability benefits, the employee must provide medical

certification proving that he or she is incapable of

performing any job.

Plaintiff was on short term disability several times

during her career with Delta. The prolonged absence

which culminated in her termination began in November

of 1978. She began taking sick leave at that time, and

exhausted her full-pay sick leave on January 15, 1979.

i

D-3

Plaintiff then filed a claim for short term disability

benefits. Her application was initially denied, however,

this denial was reversed by the administrative

subcommittee set up to review these requests pursuant to

$503 of ERISA, 29 U.S.C. §1133.

She exhausted this period of short term disability

benefits on May 7, 1979. At that point, she was examined

by a Dr. Whaley on behalf of Delta. He determined that

Plaintiff was capable of performing some occupation.

Delta therefore informed Plaintiff on July 18, 1979 that it

did not appear that she was eligible for long term disability

benefits, although at that time she had not formally filed

such a claim.

Delta generally allows an employee who has been

denied disability 90 days within which to return to work

before deeming the position abandoned. On August 2,

1979, Plaintiff wrote to Jenny Poole, the assistant

manager for in-flight service in Atlanta, and stated that she

felt she would be able to return to work within 90 days

from July 18. In response, Ms. Poole informed Plaintiff

that she would need medical certification covering Plaintiff

for the full period of absence between July 18, 1979, and

the date Ms. Goldstein eventually returned to work. She

stated that such medical certification must be submitted

"prior to your return to active status." On October 8,

Plaintiff again wrote Ms. Poole, and explained that she

would not be able to return to work within the 90 day

period, which expired on October 18. She then asked

whether she needed to submit medical certification, despite

D-4

the fact that Ms. Poole had just advised her that it would

be necessary to do so.

In light of Plaintiff's dismal attendance record, she

was terminated on October 24, 1979. Upon receipt of that

letter, Plaintiff contacted Delta and requested "another

chance," claiming that she was "disabled." Delta agreed to

reinstate her on the condition that she file a claim for long

term disability benefits.

Plaintiff received the forms necessary to file for long

term disability benefits in early December. However, she

delayed filing the request for over three months, finally

submitting the claim form in March of 1980. After

examining the form, Delta determined that she failed to

meet the eligibility requirements for long term disability

and her request for these benefits was denied on April 2,

1980. Another 90 day period was then tolled, and

Plaintiff returned to active flight status on July 1, 1980,

one day before her grace period expired. At that point she

had not flown with Delta for more than 18 months.

During July and August, 1980, Plaintiff flew a total of

17 days. Then, because she managed to accrue certain

vacation and authorized leave benefits during this time,

she took off the entire month of September and the first

three weeks of October. She was scheduled to return to

work on October 26. She called in sick and never

returned.

D-5

On October 16, 1980, Plaintiff again filed for full pay

sick leave. These benefits expired on January 3, 1981.

On January 22, Plaintiff was advised that she must submit

medical certification explaining the necessity for her sick

leave, or face termination. She filed such certification (a

letter from her treating physician) concurrently with an

application for short term disability benefits. The short

term disability claim was initially granted, but payments

were halted after Plaintiff was examined by another

physician on behalf of Delta, Dr. Dennis, who concluded

that there was no reason why Plaintiff could not return to

her customary job.

In February, the in-flight service department

determined that because of her poor dependability,

Plaintiff should be given a ground position.2 She was

offered a ground position and declined it. Soon

afterwards, she was asked for her resignation, and refused

to resign. She was ultimately terminated on March 20,

1981.

Plaintiff claims that Delta's conduct violated §510 and

§511 of ERISA. Section 511 makes it unlawful for any

person to interfere with or prevent the exercise of any right

that an employee may be entitled to under ERISA.

However, the law is clear that this provision does not

provide a private right of action Phillips v. Amoco Oil

Company, 614 F. Supp. 694 (N.D. Ala. 1985), aff'd,

799 F.2d 1464 (lith Cir. 1986). Thus Defendant is

entitled to summary judgment on this claim.

D-6

Plaintiff also c!,ims that Delta's conduct violated §510

of ERISA, which makes it unlawful for any person to

discharge, discipline or discriminate against an ERISA

plan beneficiary for exercising those rights to which the

employee is entitled under the provisions of an employee

benefit plan. It is clear that Plaintiff has completely failed

to provide any evidence in support of this claim. In a case

under §510 of ERISA, a plaintiff must demonstrate that

the loss of benefits was not simply a consequence of her

termination; the plaintiff must show that the employer

intended to deprive the employee of ERISA benefits,

and that this intent was a motivating factor

behind the termination. Titsch v. Reliance Group, Inc.,

548 F. Supp. 983 (S.D.N.Y. 1982) affd, 742 F.2d 1441

(2d Cir. 1983). A mere subjective belief that the

termination was related to an ERISA claim is not enough

to defeat summary judgment. Serb v nier Products

Company Pension Plan and Trust, 658 F. Supp. 6 (E.D.

Mich. 1986). It is obvious that Delta fired Ms. Goldstein

because she was an undependable employee, and Ms.

Goldstein has provided no evidence to the contrary.

2 Federal regulations requiring minimum number of flight

attendants on each flight, and Plaintiffs chronic

absenteeism required that Delta find replacements for her.

It should be noted that :he Disability Plan administrators

who denied her claim are not the same people who were

responsible for the decision to terminate Plaintiff.

D-7

The only argument which Plaintiff presents in support

of her claim is the assertion that Delta had 'decided" to fire

her before she was examined by Dr. Dennis (who

concluded that she was perfectly capable of working).

She bases this claim on the fact that her termination letter

informed her that all short term benefits would be stopped

as of February 19, 1981, the date of her first scheduled

appointment with Dr. Dennis, rather than as of February

27, 1981, the date on which she actually saw Dr. Dennis.

This is absurd. It is obvious that Delta retroactively

decided to make February 19 the cut-off date for short

term disability benefits for administrative reasons. Given

that Ms. Goldstein was not eligible for any short term

disability, Delta could just as easily have cut off her

disability benefits as of January 4, 1981, the day her sick

leave expired. At any rate the six day disparity in in dates

in no way suggests that Delta was trying to deprive Ms.

Goldstein of benefits, or retaliate against her for trying to

claim benefits. 3

3 Plaintiff also argues that Deita violated ERISA by not

giving her another 90 days to retuin to work after she was

denied short term disability. However, Plaintiff never

demonstrates that Delta's policy of considering a position

abandoned after 90 days is in any way connected to an

ERISA-related benefit, nor that Delta terminated her prior

to 90 days after February 27 because it intended to deprive

her of ERISA pian benefits.

: D-8

Finally, Plaintiff claims that she was discharged by Delta

in order to interfere with her ability to obtain early

retirement benefits at age 52 instead of age 55. Apparently

on January 1, 1981, the Delta Family Retirement Plan was

amended to allow early retirement at age 52 instead of age

55, provided that the employee was employed by Delta on

June 1, 1981. Ms. Goldstein has certain vested retirement

benefits, which she wil! receive at age 55. She will not

receive them at age 52 because she was not employed by

Delta on June 1, 1981. However, Plaintiff's argument

that she was intentionally fired by Delta four months

before June 1 for the purpose of depriving her of the

benefits of the amendment to the retirement plan is wholly

unsupported by anything in the record.

Finally, defendant argues that Plaintiff's claim was

barred by the applicable statute of limitations. Given

Plaintiff's complete failure to demonstrate any merit to her

claim, the court declines to address this issue at this time.

Defendant's motion for summary judgment is

GRANTED. The Clerk is DIRECTED to enter final

judgment for Defendant.

SO ORDERED, this 4 day of November, 1987.

/s/

ORINDA D. EVANS

UNITED STATES DISTRICT JUDGE

APPENDIX E

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JUDGMENT IN A CIVIL CASE

LOU C. GOLDSTEIN,

Vv.

DELTA AIRLINES, INC.,

CASE NUMBER C87-8A

JUDGE ORINDA D. EVANS

Decision by Court. This action came for

consideration before the Court. The issues have been

considered and a decision has been rendered granting

defendant's motion for summary judgment.

IT IS ORDERED AND ADJUDGED hat the plaintiff

take nothing, that the action be dismissed, and that the

defendant, DELTA AIRLINES, INC., recover of the

plaintiff, LOU C. GOLDSTEIN, costs of this action.

FILED IN THE CLERK'S OFFICE

November 5, 1987

ENTERED ON DOCKET

November 6, 1987

LUTHER D. THOMAS, Clerk

By: /s/ B. D. Hatcher

Deputy Clerk

November 5.1987 == |_LUTHERD.THOMAS _

Date Clerk

her

(By) Deputy Clerk

APPENDIX F

FEDERAL STATUTE INVOLVED

EMPLOYEE RETIREMENT INCOME SECURITY ACT

(ERISA)

29 U.S.C. §1140.

I With Righ nder A

SEC. 510. It shall be unlawful for any person to

discharge, fine, suspend, expel, discipline, or discriminate

against a participant or beneficiary for exercising any right to

which he is entitled under the provisions of an employee

benefit plan, this title, section 3001, or the Welfare and

Pension Plans Disclosure Act, or for the purpose of

interfering with the attainment of any right to which such

participant may become entitled under the plan, this title, or

the Welfare and Pension Plans Disclosure Act. It shall be

unlawful for any person to discharge, fine, suspend, expel,

or discriminate against any person because he has given

informaticn or has testified or is about to testify in any

inquiry or proceeding relating to this Act or the Welfare and

Pension Plans Disclosure Act. The provisions of section

502 shall be applicable in the enforcement of this section.

Title J -- ion of ] nefit Righ

Findings and Declaration of Policy

~- 29 U.S.C. §1002.SEC. 3: For purposes of this title:

(1) The terms “employee welfare benefit plan" and "welfare

plan" mean any plan, fund, or program which was

heretofore or is hereafter established or maintained by an

employer or by an employee organization, or by both, to the

extent that such plan, fund, or program was established or is

F-2

maintained for the purpose of providing for its participants

or their beneficiaries, through the purchase of insurance or

otherwise (A) medical, surgical, or hospital care or benefits,

or benefits in the event of sickness, accident, disability,

death or unemployment, or vacation benefits, apprenticeship

or other training programs, or day care centers, scholarship

funds, or prepaid legal services, or (B) any benefit described

in section 186(c) of this title (other than pensions on

retirement or death, and insurance to provide such

pensions).

lta Famil Disability and Survivorship Plan

Delta's Family Care Disability and Survivorship Plans,

long term and short term, work as follows: An employee

who is too ill to work is given a certain number of sick leave

days during the year. Once these sick leave days are used

up, the employee must apply for short term disability

benefits. In order to qualify for short term disability

benefits, an employee must be unable to perform his

customary occupation. In order to obtain short term

disability benefits, the employee must provide a medical

certificate indicating that he or she is incapable of performing

his or her normal work duties. These short term benefits are

generous, but of fixed duration. Short term disability

benefits are paid for a period of 26 weeks, including the time

an employee received full pay sick leave. As long as the

alleged disability commenced while the employee was

employed, Plan benefits would continue for that period of

disability regardless of the employee's employment status.

Once all of an employee's short term disability leave has

F-3

been used up, the employee must either return to work or

apply for long term disability benefits. In order to obtain

long term disability benefits, the employee must provide

medical certification proving that he or she is incapable of

performing any job. Eligibility for benefits under the

Disability and Survivorship Plan is independent from the

employment status of the employee. Thus, as long as the

alleged disability commenced while the employee was

employed, Plan benefits would continue for that period of

disability regardless of the employee's employment status.

Delta's Sick Leave of Absence Policy provides for leave

without pay for 90 days after benefit denial.

APPENDIX G

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

LOU C. GOLDSTEIN,

CIVIL NO.

VS. : 1:87-cv-8-ODE

DELTA AIRLINES, INC.:

RDER

This ERISA action is before the court on Plaintiff's

motion to proceed pro se, Plaintiffs pro se motion for

reconsideration of this court's order of November 5, 1987;

and Plaintiff's motion to strike Defendant's response to her

motion for reconsideration.

The motion for reconsideration will be denied. It was

untimely filed. Under Local Rule 220-6 for the Northern

District of Georgia such a motion must be filed within ten

days after entry of the order which the party seeks to have

reconsidered. Further, the motion is without merit. Plaintiff

has not presented any argument or evidence to disturb the

court's conclusion that she totally failed to show she was

fired by Defendant in violation of ERISA.

Because Plaintiff filed a notice of appeal, thus divesting

this court of jurisdiction on December 7, 1987, the court is

without power to review any further motions filed by

Plaintiff. Accordingly, the same are denied.

G-2

Plaintiff's motion for reconsideration is DENIED; the

motion to strike or dismiss Defendant's response to

Plaintiffs motion is DENIED; and Plaintiff's motion to

proceed pro se is DISMISSED AS MOOT. !

SO ORDERED, this_22 day of January, 1988.

AD. EVAN

ORINDA D. EVANS

UNITED STATES DISTRICT JUDGE

1 Should Plaintiff wish to proceed pro se on appeal she must

follow the appropriate procedures for doing so according 'o

the Rules of the Eleventh Circuit Court of Appeals.