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

(1) Supreme Court, u.s.

/ FILED

99 1.88 ju 2709

GFFICE-OF TRE CLERK

In The

Supreme Court of the United States

°

ERICH H. ADAMS, et al.,

Petitioners,

DELTA AIR LINES, INC. and

AIR LINE PILOTS ASSOCIATION,

Respondents.

+

—_

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

*

PETITION FOR WRIT OF CERTIORARI

*

THomas M. SHEROUSE Mark Hicks; Esoa.*

SHooK Harpy & Bacon, LLP Hicxs & ANDERSON, P.A.

New World Tower, New World Tower

25th Floor Suite 2402

100 North Biscayne 100 North Biscayne

Boulevard Boulevard

Miami, FL 33132 Miami, FL 33132

305/358-5171 305/374-8171

SusAN P. Norton *Counsel of Record

ALLEN Norton & BLUE

121 Majorca Avenue

Coral Gables, FL 33134

305/445-7801

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

QUESTION PRESENTED FOR REVIEW

Can an employment discrimination plaintiff suffer a

summary judgment for allegedly failing to raise an infer-

ence that unlawful discrimination was at least a “motivat-

ing factor” in the adverse employment action at issue,

where the district court specifically finds »laintiff’s direct

evidence of discriminatory animus on the part of a pri-

mary decision-maker to be credible?

ii

LIST OF INTERESTED PARTIES

Petitioners:

Erich H. Adams; John Araiza; Paul Barker; Michael B.

Barry; Barry A. Bashore; Ross F. Bonny, Jr.; Gary L. Boyd;

Lane D. Browne; Marshall J. Burnette; Richard P. Cahill;

Ronald Cather; Gary H. Chapman; Leo D. Coffield;

Thomas P. Conroy; Jimmy R. Cornett; James C. Dawson;

Monte Downum,; Joseph Dubois; Richard A. Featherstone;

Charles Fentner; Robert G. Foster; Peter G. Ganotis;

Andrew L. Gattone; Murphy T. Gill; Henry Guttman;

Thomas R. Henry; Thomas Henry; Joiy Holder; James R.

Hurson; Donald W. Jenkins; Olav Jonassen; Paul S. King;

Henry J. Knoch; Tracy Qualls; Kenneth D. Lambert; John

A. Langford; Maurice T. Legare; Norman W. Letendre;

Lawrence M. Lund; Raymond J. Lund; Ralph A. Manley;

James R. Martinez; Richard A. Mau; Terry L. McCarthy;

Gerarde Meschino; Mike E. Millard; Stephen A. Mills;

James C. Montgomery; Francis Dale Morgan; James M.

Morris; Richard J. Naert; Frank Nyilas; George D. Pappas;

John R. Pottinger; Mark Powell; William J. Powers;

Thomas E. Ruland; Ronald K. Rupp; Jim Schultz; Patrick

Sheil; David A. Stephens; John F. Taylor; Robert Thrasher;

Charles F. Vaughn; Louis Villafane; Diana R. Wiggins, as

Personal Representative of the Estate of Robert H. Wig-

gins; Ken A. Williamson; George E. Wilson; Larry W.

Wilson; Hal J. Zamora; Richard C. Ziko; Mary Beth Lam-

bert, as Executrix of the Will of Thomas D. Lambert

Respondents:

Delta Air Lines, Inc. and Air Line Pilots Association

iii

RESPONDENTS’ PRIOR CORPORATE

DISCLOSURE STATEMENT

In their Answer Brief to the Second Circuit Court of

Appeals, Respondents filed the following corporate dis-

closure statement:

Pursuant to Fed R. App. P. 26.1, defendant-appellee

Delta Air Lines, Inc. states that it has no parent com-

panies, subsidiaries, or affiliates that have issued shares

to the public, except to the extent that Delta’s member-

ship on the Boards and/or corporate ownership of from

15% to 35% of shares results in the following publicly

traded companies being considered affiliates under Fed.

R. App. P. 26.1:

Atlantic Southeast Airlines, Inc.

Comair Holdings, Inc.

SkyWest, Inc.

Empresa de Transporte Aéreo del Peru, S.A.,

Aeropert

iv

- TABLE OF CONTENTS

QUESTION PRESENTED FOR WET Snctevessenc

LIST OF INTERESTED PARTIES ...............000.

RESPONDENTS’ PRIOR CORPORATE DISCLOSURE

PURINE 46:06 eh Uh 6 0i4a0 devil vateaesdiesneeese

EE nook NACA DECdvCERdAb ES CRRbaebeauNeeeueeewnTa

JURISDICTIONAL STATEMENT....................

STATEMENT OF MATERIAL FACTS...............

A. DELTA PURCHASES PAN AM, AND THE PAN

AM FLIGHT ENGINEERS ARE INTEGRATED

INTO THE DELTA WORKFORCE .............

B. PETITIONERS PRODUCED UNDENIABLE

DIRECT EVIDENCE THAT A PRIMARY DECI-

SION-MAKER AT DELTA REGARDING THE

INTEGRATION HARBORED IMPROPER AGE-

PE en stscudsustdonddewectietbucente

C. THE DISTRICT COURT GRANTED DELTA

SUMMARY JUDGMENT NOTWITHSTANDING

PETITIONERS’ DIRECT EVIDENCE OF AGE-

BASED DISCRIMINATORY ANIMUS..........

D. THE SECOND CIRCUIT PANEL AFFIRMED

THE SUMMARY JUDGMENT NOTWITH-

STANDING PETITIONERS’ DIRECT EVI-

DENCE OF AGE-BASED DISCRIMINATORY

10

TABLE OF CONTENTS - Continued

NUE. $60 bi 50606 dete cecdecunetenteadresdirs 13

I. SEVERAL UNITED STATES COURTS OF

APPEALS HAVE HELD THAT A PLAINTIFF

WHO PRODUCES DIRECT EVIDENCE OF DIS-

CRIMINATORY ANIMUS BY A DECISION-

MAKER HAS NECESSARILY MET HIS OR HER

BURDEN TO RAISE AN INFERENCE THAT DIS-

CRIMINATION WAS AT LEAST A “MOTIVAT-

ING FACTOR” IN THE ADVERSE EMPLOY-

te 8 PrP errrr ry rrr Tre rr ries 13

A. The Sixth Circuit Court of Appeals ........ 13

B. The Third Circuit Court of Appeals ........ 13

C. The Seventh Circuit Court of Appeals...... 14

D. The Eleventh Circuit Court of Appeals..... 15

CONCLUSION

vi

TABLE OF AUTHORITIES

Page

Cases

Adams v. Delta, 175 F.3d 1007 (2nd Cir. 1999)......... 1

Adams v. Delta, 1997 WL 620823 (S.D.N.Y. October

O, DOUG cccctcsvecscestgusicsseeaseeeee 1

Adams v. Delta, 1997 WL 805078 (S.D. N.Y. Decem-

Ber DE, TONG e xvetucdvevcrceveteterieesse eee 1

Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97

mM 9: re eae eee 14

Baker v. Delta Air Lines, Inc., 6 F.2d 632 (9th Cir.

SOOO. s 0:00000d00cseensekeckeeessa ee 10

Burns v. Gadsden State Community College, 908 F.2d

ir geek Es Se Rete er or 15, 16

Criley v. Delta Air Lines, Inc., 119 F.3d 102 (2d Cir.

BOOP cctcncesesyvincss cede cnet eee 10

McLee v. Chrysler Corp., 109 F.3d 130 (2d Cir. 1997).... 12

Randle v. LaSalle Telecommunications, Inc., 876 F.2d

SED GU Cie, Wyo vc vcccusvevacessveseneuseeries 15

Starceski v. Westinghouse Electric Corp., 54 F.3d 1089

Cor GA, Biles 00040 nnaseeeeeeesaeneeieeeeae 14

Terbovitz v. Fiscal Court of Adair County Kentucky,

SIS FAG BL Gk Cie. BP ie ou c ccecerecsvcuevicees 13

Venters v. City of Delphi, 123 F.3d 956 (7th Cir.

SROF Ds on vccsrvndenqes viene erste eee 14

STATUTES

56 CAR. © WZRDOI 8 0s vn as cecccvcecscuneusasseaue 7

29 UBA.. § GAR OO GG, vs vcnvsensavevsssavcessaeeee 2

Vii

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

Rule 10(a), Rules of the Supreme Court of the

Se SN 4s cccevausulvedsavienskesvacsed as 1, 17

Rule 13(3), Rules of The Supreme Court of the

United States

CITATIONS OF PRIOR COURT

OPINIONS IN THIS CASE

Second Circuit Opinions:

Adams v. Delta, 175 F.3d 1007 (2nd Cir. 1999) (unpublished

opinion). (App. 1-5).

District Court (S.D. N.Y.) Opinions:

Adams v. Delta, 1997 WL 620823 (S.D. N.Y. October 8,

1997). (App. 6-21).

Adams v. Delta, 1997 WL 805078 (S.D. N.Y. December mB

1997). (App. 22-24).

¢

JURISDICTIONAL STATEMENT

Petitioners respectfully submit that certiorari juris-

diction is proper in this case under Rule 10(a), Rules of

the Supreme Court of the United States, as the decision in

this case by the United States Court of Appeals for the

Second Circuit directly conflicts with the decisions of

several other United States Courts of Appeals - speci-

fically the Sixth, Third, Seventh and Eleventh Circuits -

on the same important matter.

The order sought to be reviewed was entered by the

Second Circuit on February 19, 1999.

On April 28, 1999, the Second Circuit denied rehear-

ing of its February 19, 1999 order. (App. 25-26).1

+

? As evidenced by the court’s order of April 28, 1999, the

Second Circuit treats suggestions for rehearing en banc as

STATEMENT OF MATERIAL FACTS

In this case, federal jurisdiction was based on peti-

tioners/plaintiffs’ claim that Delta Air Lines, Inc.

(“Delta”) violated the federal Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 621 et seq.

For the Court’s benefit, the following is a brief recita-

tion of the nature of the controversy, and the evidence

considered by the district court and the Second Circuit

panel in reaching their respective decisions.

A. DELTA PURCHASES PAN AM, AND THE PAN

AM FLIGHT ENGINEERS ARE INTEGRATED

INTO THE DELTA WORKFORCE

This petition is filed on behalf of the plaintiffs in the

proceedings below, Erich H. Adams and 70 other flight

engineers formerly employed by Pan Am World Airways,

Inc. and Pan Am Shuttle, Inc. (collectively “Pan Am”),

who were hired by Delta as part of Delta’s purchase of

Pan Am’s Shuttle and TransAtlantic routes in 1991. Pan

Am and Delta entered into an Asset Purchase Agreement

(“APA”), dated July 27, 1991, to effectuate the transaction.

The closing date was November 1, 1997.

The APA between Delta and Pan Am provided that

Delta’s pilot union (“ALPA”) had to approve any

seniority integration plan for the Pan Am cockpit person-

nel because Delta’s Collective Bargaining Agreement

(“CBA”) with the union otherwise required all newly

hired cockpit personnel to be placed on the bottom of

petitions for rehearing. See Rule 13(3), Rules of the Supreme

Court of the United States.

Delta’s seniority list. (App. 7). The APA also contained a

provision that required Delta to give Pan Am cockpit

personnel written notice, no later than August 15, 1991, of

the terms and conditions upon which offers of employ-

ment would be made. (App. 29). However, this same

provision recognized that Pelta might not be able to

finalize all of the details of the seniority integration until

after the transferred pilots had been identified; in that

event, Delta was required to provide a description of its

objectives and intentions with respect to seniority inte-

gration, along with a description of the seniority integra-

tion methodologies that Delta was likely to use. (App.

29).

The integration of Pan Am captains, first officers, and

flight engineers into the Delta seniority list was the sub-

ject of Section 20 of the Supplemental Collective Bargain-

ing Agreement (“Supplemental CBA”) between Delta and

Delta ALPA. As noted previously, Delta was required to

give Pan Am pilots written notice of the terms and condi-

tions upon which offers of employment would be made

to Pan Am employees, including Delta’s intentions with

respect to the seniority integration methodologies that

Delta might use.

As of August 26, 1991, Section 20(f)(2) of the Supple-

mental CBA read in part as follows:

November 1, 1991, or the date of the Closing,

whichever occurs last, shall be known as the

Integration Date. Effective upon the Integration

Date all Acquired Pilots, employed by the Com-

pany as of the date, shall be integrated into the

Delta Pilot’s System Seniority List, subject to the

following methodology:

* * *

b. Each member of the class of Acquired

Pilots employed by the Company as First Offi-

cer or Second Officer [flight engineer] shall be

ranked relative to all other members of that

class, in seniority order as defined by Pan

American World Airways, Inc. and as conveyed

to the Company. All members of the class

defined in this sub-section shall be integrated

into the Delta Pilot’s System Seniority list in the

seniority sequence defined in this sub-section,

with the most senior of the class being assigned

the four thousand, two hundred and thirty-

eighth (4238th) position on the list... . (App. 8).?

The August 26, 1991 version of Section 20(f) also

included a subsection (3), which provided: ;

If for any reason, Pan American World Air-

ways, Inc. does not convey to the Company

[Delta], the seniority rank order of the

Acquired Pilots by the Integration Date, the i

date of birth of each Acquired Pilot shall serve ;

to establish the seniority order of the Acquired :

Pilot for the purpose of paragraph 20.F.1 of this ;

Agreement, and to establish seniority order

within the respective classes as defined in para-

graphs 20.F.2a. & b. of this Agreement, with the

higher seniority attributed to the earliest date of

birth. (App. 8).

The Supplemental CBA was reviewed and revised by

Delta management at least four times between August 19,

atl, nds.

2 All emphasis has been supplied by counsel unless

otherwise noted.

1991 and August 29, 1991. Throughout the various revi-

sions, Sections 20(F)(2)(b) and 20(F)(3), as set forth above,

remained intact.

The final version of the Supplemental CBA, signed

on August 30, 1991, radically altered the version of Sec-

tion 20(F) which had been furnished to Pan Am cockpit

personnel on August 26, 1991.3 Section 20(F)(3), which

previously provided for integration based on date of

birth in the event Pan Am did not provide a list with the

relative seniority rank of first officers and flight engi-

neers, was deleted entirely and the remaining subsections

were renumbered. (App. 8-9).4 On August 27, 1991, Cap-

tain Harry C. Alger, Delta’s then Vice-President of Flight

Operations, had a telephone conversation with Richard

Burke at Pan Am regarding the integration. According to

Mr. Burke’s correspondence memorializing the conversa-

tion, Captain Alger and Mr. Burke spoke about the inte-

gration methodology three days before the final version

of the Supplemental CBA surfaced containing the previ-

ously unseen changes to Section 20(F). (App. 40). Of

course, the method which Captain Alger described was

identical to the one eventually contained in the final

3 It is uncontested that the final version of the

Supplemental CBA was not provided to Pan Am cockpit

personnel prior to its execution by Delta and Delta ALPA, in

contravention of the APA. (App. 9).

4 However, Delta knew as early as the spring of 1991 that

Pan Am had two seniority lists, thus making it difficult to devise .

a single list. (App. 32). Delta was also aware of the possibility

that Pan Am could not provide one seniority list, and it appears

that this date of birth default provision was expressly included

for such a contingency. (App. 39).

version of Section 20(F). Thus, Captain Alger - who had

the authority to make such last minute changes and who,

prior to August 27, 1991, was not involved in the Section

20(F) revision process - had planned to and did uni-

laterally change Section 20(F). (App. 8-10, 14-15).

This change severely damaged Pan Am’s former

flight engineers, including the petitioners in this case. For

example, as a result of Delta’s integration methodology,

66 of the 71 petitioners were furloughed by Delta in 1993.

In contrast, had a date of birth integration methodology

(the default methodology) been used, only 7 of the 71

petitioners would have been furloughed. (App. 43-44). In

addition, the handful of the petitioners who escaped fur-

lough were nonetheless unable to hold their positions

once Delta second officers (flight engineers) — with better

seniority rankings — were permitted to bid for their seats

in the cockpit. (App. 43-44). Lastly, under the integration

methodology instituted by Delta, the most senior flight

engineer acquired by Delta ended up being junior to

more than 95% of the cockpit personnel on the Delta

seniority list, and 43 of the 71 petitioners ended up with

seniority rankings in the bottom one percentile of the

Delta list. (App. 43).

B. PETITIONERS PRODUCED UNDENIABLE

DIRECT EVIDENCE THAT A PRIMARY DECI-

SION-MAKER AT DELTA REGARDING THE

INTEGRATION HARBORED IMPROPER

AGE-BASED BIAS

Before both the district court and the Second Circuit

panel, petitioners provided the following quantum of

ancients eee ia

evidence that one of, if not the primary decision-maker at

Delta regarding the integration method challenged by

petitioners as violative of the ADEA, harbored discrimi-

natory age-based animus. As detailed below, Captain

Alger, Delta’s then Vice-President of Flight Operations,

was heavily involved in Delta’s pre-purchase evaluation

meetings with Pan Am (as the district court so found). It

is important to note that Captain Alger’s involvement in

the integration process substantially pre-dated the last-

minute alteration of Section 20 of the Supplemental CBA

(discussed above).

In furtherance of the Delta purchase of Pan Am,

Captain Alger met and took notes of his meetings with

his counterpart at Pan Am, Captain Daniel Affourtit.

(App. 10-11, 52). Captain Alger’s notes contain a litany of

damning comments regarding the age of Pan Am’s flight

engineers and their seniority. For instance, Captain Alger

noted: “> [greater than] 60 inc[ludes] 72 year old

S[econd] Olfficer] and two step down bid former

Captlains].” (App. 53).5 Since Federal Aviation Adminis-

tration (“FAA”) regulations prohibit a pilot from flying a

commercial aircraft past the age of 60,6 Captain Alger

self-evidently was referring solely to the Pan Am flight

engineers.

Captain Alger also noted that “< [less than] % will

retire in next five years as most hiring done in ‘64, ‘65,

‘66.” (App. 53-54). In the “Conclusion Summary” section

° A pilot cannot occupy the captain or first officer seats

after he or she turns age 60. See infra note 6. There is no such

prohibition for flight engineers (like petitioners herein).

© 14 C.F.R. § 121.383(c).

of his notes on his meeting with Captain Affourtit, Cap-

tain Alger wrote: “Too much long term potential

prob[lem] here after the origitat bad apples have long

since retired.” (App. 54-55).”7 Other notes from Captain

Alger disclose his age-based animus. One such note

states: “Personnel: Contaminated Workforce esplecially]

since ‘87. Not meet Delta standards.” (App. 57-59, 64).

Directly below these words, Captain Alger again paid his

respects to Pan Am’s flight engineers: “68 > [greater

than] age 60, 4 > [greater than] age 70, 26 double bid

down, 50% retire 2001 not 1995.” (App. 64). An addi-

tional note penned by Alger says: “Dirty deal. Last 20

years drawing garbage.” (App. 57, 65).®

Captain Alger also authored a document titled “PAA

[Pan Am Airlines] Asset Acquisition Summary.” He wrote

under the “Negative” column in the summary: “Labor

force contaminated esplecially] since ‘87.” Next to that

statement are Captain Alger’s remarks: “68 [greater than]

age 60, 4 [greater than] age 70, 50% retire in 2001 not 5

years.” Moreover, Captain Alger noted under the “Labor

7 Captain Alger claims that “bad apples” was Captain

Affourtit’s term, not his. (App. 55). Captain Affourtit, however,

flatly contradicted Captain Alger on this point, testifying on-

deposition that he did not use the term “bad apples” to describe

Pan Am cockpit personnel nor did he relate any negative

information to Captain Alger regarding their age. Indeed,

Captain Affourtit considered his people to be extraordinarily

capable and well qualified. (App. 35-37). -

8 Once again, Captain Alger claims that Captain Affourtit

made the “dirty deal” reference. (App. 57). And once again,

Captain Alger’s testimony is refuted by that of Captain

Affourtit. (App. 37-38).

SS OOO

Force” category in the summary: “Pay off professional

Filight] Elngineers].” (App. 59-63).9

On May 2, 1991, Captain Alger reported the results of

his fact finding mission to Rex McClelland, Delta’s Senior

Vice-President for Operations. Mr. McClelland’s notes of

a telephone conversation with Captain Alger state: “Pan

Am is burdened with a two-step bid down system and

has several ‘aged’ flight engineers, some in their 70’s

and one in particular, age 72 plus (born 1919).” (App.

67). Mr. McClelland also writes “HCA [Harry C. Alger]

confirms approximately one-half of seniority list pilots

due to retire within five years.” (App. 68).

William Spalding, Delta’s Manager Contract Admin-

istration, was responsible for contacting qualified Pan

Am personnel and arranging interviews with Delta. Mr.

Spalding’s notes of a telephone conversation with Cap-

tain Alger state: “Nylias 727 S[econd] Offficer]-HCA

[Harry C. Alger] no hire.” Frank Nylias was one of the

oldest flight engineers at Pan Am and was the only flight

engineer hired!® by Delta who was over the age of 70.

(App. 70-72).

Finally, according to Captain Alger, an aircraft cannot

be operated at the “highest levels of safety” if someone

* Pan Am’s Captain Affourtit testified on deposition that he

could not imagine using the word “contaminated” with regard

to pilots, and he never suggested to Captain Alger that

professional flight engineers should be paid off. (App. 37-38).

© Delta apparently did not follow through on Captain

Alger’s directive not to hire Mr. Nylias on the advice of its legal

department. (App. 74-77).

10

over 60 years old is in the cockpit. (App. 46-51); a view he

likewise expressed on deposition in another age discrimi-

nation case when explaining the basis for Delta’s long-

standing policy banning pilots over age 60 from the

cockpit:

.. . knowing what we know about the aging

process, any crew member, in this case, a sec-

ond officer, to fly beyond 60, degradation that

goes with it happens, performance is going to

decline with age. (App. 79-80).!!

C. THE DISTRICT COURT GRANTED DELTA

SUMMARY JUDGMENT NOTWITHSTAND-

ING PETITIONERS’ DIRECT EVIDENCE OF

AGE-BASED DISCRIMINATORY ANIMUS

Presented with the above direct evidence, the district

court concluded that petitioners had adequately demon-

strated that Alger was the primary decision-maker in this

case, and that he was motivated by age bias, i.e., that

petitioners’ direct evidence was credible: “Such com-

ments [by Alger] certainly reflect a bias toward older

pilots, and the deposition testimony in particular evinces

a bias based on the sort of age-based stereotypes that the

ADEA was meant to combat.” (App. 14).!* The district

1! Delta has a checkered history on age-related issues, as

evidenced in the Ninth Circuit’s opinion in Baker v. Delta Air

Lines, Inc., 6 F.2d 632 (9th Cir. 1993), a case which, perhaps not

coincidentally, prominently features Alger and his age-based

views on cockpit personnel.

'2 The district court also recognized that with respect to

Alger’s discriminatory animus, the present case is factually

distinguishable from Criley v. Delta Air Lines, Inc., 119 F.3d 102

11

court nonetheless ruled that petitioners did not “establish

any adverse age-related effect” resulting from the inte-

gration methodology employed by Delta, and entered

summary judgment in favor of Delta on petitioners’ age

discrimination claims. (App. 19-20).}5

As discussed hereafter, the Second Circuit panel dis-

regarded or completely discounted the explicit findings

by the district court that petitioners’ direct evidence was

credible, and held that petitioners’ proof that Alger har-

bored substantial age bias (with all inferences drawn in

petitioners’ favor) was insufficient to raise a reasonable

inference of discriminatory motive.

D. THE SECOND CIRCUIT PANEL AFFIRMED THE

SUMMARY JUDGMENT NOTWITHSTANDING

PETITIONERS’ DIRECT EVIDENCE OF AGE-

BASED DISCRIMINATORY ANIMUS

In an opinion filed on February 19, 1999, a panel of

the Second Circuit affirmed the district court’s grant of

summary judgment on each of petitioners’ claims. In

affirming the district court’s summary dismissal of the

federal ADEA claim'4, the Second Circuit, with little illus-

tration or explanation, stated:

(2d Cir. 1997), where age-biased statements by Alger were held

to be unconnected to the plaintiffs therein.

13 The district court’s ruling that no adverse effect could be

proven is contrary to the evidence proffered by petitioners

regarding the severe damages they suffered as a result of the

altered integration method, e.g., furloughs and loss of bidding

rights. See supra.

'4 For the purpose of the present petition, petitioners only

seek consideration of the Second Circuit’s affirmance of the

summary judgment on their federal ADEA claim.

12

Because we agree with the district court that ,

plaintiffs failed to offer proof from which a rea-

sonable fact finder could infer that defendant

had a discriminatory motive in implementing its

integration methodology, see McLee v. Chrysler

Corp., 109 F.3d 130, 135 (2d Cir. 1997), we affirm

the grant of summary judgment on the federal |

claim. ;

(App. 4).'

Thus, despite the overwhelming evidence presented

to, and deemed credible by, the district court regarding

Captain Alger’s repeated derogatory statements about

older cockpit personnel, the Second Circuit nonetheless

ruled that petitioners’ direct evidence of discriminatory

animus on the part of a primary decision-maker at Delta

was insufficient to raise an inference of discriminatory

motive, and summary judgment was therefore proper.

This ruling is in direct conflict with the decisions of

several United States Circuit Courts of Appeals.

+

'S Notably, the district court did not rule that petitioners

failed to demonstrate an inference of discriminatory motive. See

supra. Thus, the Second Circuit's opinion cannot be squared

with that of the district court.

13

ARGUMENT

I. SEVERAL UNITED STATES COURTS OF APPEALS

HAVE HELD THAT A PLAINTIFF WHO PRO-

DUCES DIRECT EVIDENCE OF DISCRIMINA-

TORY ANIMUS BY A DECISION-MAKER HAS

NECESSARILY MET HIS OR HER BURDEN TO

RAISE AN INFERENCE THAT DISCRIMINATION

WAS AT LEAST A “MOTIVATING FACTOR” IN

THE ADVERSE EMPLOYMENT ACTION

A. The Sixth Circuit Court of Appeals

In Terbovitz v. Fiscal Court of Adair County Kentucky,

825 F.2d 111 (6th Cir 1987), the Sixth Circuit explicitly

ruled that an employment discrimination plaintiff neces-

sarily proves that unlawful discrimination was a motivat-

ing factor in the employment decision at issue when the

district court finds plaintiffs’ direct evidence credible.

Direct evidence of discrimination, if credited by

the fact finder, removes the case from McDonnell

Douglas because the plaintiff no longer needs

the inference of discrimination that arises from

the prima facie case. Upon crediting the plain-

tiff’s direct evidence, the district court finds

facts requiring the conclusion that unlawful

discrimination was at least a motivating fac-

tor” for the employer’s actions.

Id. at 115 (footnote omitted).

B. The Third Circuit Court of Appeals

The Third Circuit is likewise in accord that direct

evidence necessarily raises an inference that unlawful

14

discrimination was a motivating factor in the employ-

ment decision at issue. Starceski v. Westinghouse Electric

Corp., 54 F.3d 1089 (3rd Cir. 1995).

We believe, on the other hand, that the distinc-

tion between a Price Waterhouse and McDonnell

Douglas/Burdine case lies in the kind of proof the

employee produces on the issue of bias. In the

former, direct evidence of discriminatory

animus leads not only to a ready logical infer-

ence of bias, but also to a rational presumption

that the person expressing bias acted on it. As

Chief Justice Vinson put it in Avery v. Georgia,

345 U.S. 559, 562, 73 S.Ct. 891, 892-93, 97 L.Ed.

1244 (1953), he who has a mind to discriminate

is likely to do so.

Id. at 1097.

C. The Seventh Circuit Court of Appeals

The Seventh Circuit has also held that direct evidence

of discriminatory animus on the part of a decision-maker

creates (at least) an inference that unlawful discrimina-

tion was a motivating factor in the adverse employment

action. Venters v. City of Delphi, 123 F.3d 956 (7th Cir.

1997).

Still, remarks and other evidence that reflect a

propensity by the decisionmaker to evaluate

employees on illegal criteria will suffice as

direct evidence of discrimination even if the

evidence stops short of a virtual admission of

illegality. Proof of this nature supports the

inference that a statutorily proscribed factor -

race, sex, age, or in this case, religion — was at

15

least a motivating factor in the adverse employ-

ment action at issue.

Id. at 973.

In Randle v. LaSalle Telecommunications, Inc., 876 F.2d

563 (7th Cir. 1989), the Seventh Circuit was even more

definitive, holding that credible direct evidence is actual

proof of discrimination (which must be countered by the

defendant via Price Waterhouse), not just an inferential

showing that an employer was motivated by bias.

The [district] court noted that by definition,

direct evidence, if believed by the trier of fact,

will prove the fact in question without reliance

upon inference or presumption. Therefore, the

district court held that to render the indirect

method of proof of McDonnell Douglas is [sic]

inapplicable, a plaintiff's so-called “direct” evi-

dence must not only speak directly to the issue

of discriminatory intent, it must also relate to

the specific employment decision in question.

We believe that these two requirements are con-

sonant with the Supreme Court’s decision in

[Price Waterhouse v.] Hopkins.

Id. at 569.

D. The Eleventh Circuit Court of Appeals

Finally, the Eleventh Circuit shares the view of the

Seventh Circuit that direct evidence, if found credible by

the district court, is proof of a unlawful motive - not

merely an inference thereof. Burns v. Gadsden State Com-

munity College, 908 F.2d 1512 (11th Cir. 1990).

——

16

A prima facie case of discrimination may also be

proven by direct evidence of age or sex discrimi-

nation. Such evidence, if believed, proves the

existence of a fact in issue without inference or

presumption.

Id. at 1518 (citations omitted).

As the above decisions demonstrate, in the Sixth,

Third, Seventh and Eleventh Circuits, a plaintiff who

produces direct evidence of discriminatory bias which is

deemed credible by the district court has necessarily

shown that unlawful discrimination was at least a

motivating factor in the adverse employment action com-

plained of; ergo cannot suffer summary judgment.

The panel’s decision in the present case evinces that

the rule is not the same in the Second Circuit. There can

be no dispute that the district court found petitioners’

direct evidence regarding Alger’s age bias credible, as it

specifically stated as much. (App. 14-16). There can like-

wise be no dispute that the district court found Alger to

be a primary decision-maker in the integration process

which is the adverse employment action challenged by

petitioners here. (App. 9, 15). Despite these findings,

however, the Second Circuit panel ruled that “plaintiffs

failed to offer proof from which a reasonable fact finder

could infer that defendant had a discriminatory motive in

implementing its integration methodology[.]” This ruling

cannot be squared with the above decisions, which hold

that such inference necessarily follows the kinds of proof

the district court credited in this case. Accordingly, the

Second Circuit’s decision in this case conflicts with those

of other United States Courts of Appeals, and certiorari

17

jurisdiction is appropriate. Rule 10(a), Rules of the

Supreme Court of the United States.

+

CONCLUSION

In this case, petitioners produced direct evidence of

an unlawful discriminatory attitude on the part of the

primary figure responsible for the adverse employment

action at issue, and the district court specifically found

that direct evidence believable. Nonetheless, the Second

Circuit (as the district court had) ruled that petitioners

could not present their case of illegal discrimination to a

jury as a matter of law. Petitioners respectfully submit

that if credible direct evidence of unlawful bias is legally

insufficient to survive summary judgment, as the Second

Circuit appears to hold, no employment discrimination

plaintiff will ever be able to sufficiently prove his or her

complaint, and the civil rights laws enacted for the pro-

tection of workers in this country will be effectively

18

nullified. Therefore, the need for certiorari review in this

case cannot be overstated.

Respectfully submitted,

THomas M. SHEROUSE Mark Hicks, Esa.*

SHook Harpy & Bacon, LLP Hicks & ANpberson, P.A.

New World Tower, New World Tower

25th Floor Suite 2402

100 North Biscayne 100 North Biscayne

Boulevard Boulevard

Miami, FL 33132 Miami, FL 33132

305/358-5171 305/374-8171

SusAN P. Norton *Counsel of Record

ALLEN Norton & Bue

121 Majorca Avenue

Coral Gables, FL 33134

305 / 445-7801

App. 1

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

(Filed Feb. 19, 1999)

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN

THE FEDERAL REPORTER AND MAY NOT BE CITED

AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTEN-

TION OF THIS OR ANY OTHER COURT IN A SUBSE-

QUENT STAGE OF THIS CASE, IN A RELATED CASE,

OR IN ANY CASE FOR PURPOSES OF COLLATERAL

ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse, Foley Square, in the City of New York, on

the 19th day of February, one thousand nine hundred and

ninety-nine.

PRESENT: HON. JAMES L. OAKES,

HON. DENNIS JACOBS,

HON. ROSEMARY S. POOLER,

Circuit Judges.

x

ERICH H. ADAMS, JOHN ARAIZA, PAUL BARKER,

MICHAEL B. BARRY, BARRY A. BASHORE, ROSS F.

BONNY, JR., GARY L. BOYD, LANE D. BROWNE, MAR-

SHALL J. BURNETTE, RICHARD P. CAHILL, RONALD

CATHER, GARY H. CHAPMAN, LEO D. COFFIELD,

THOMAS P. CONROY, JIMMY R. CORNETT, JAMES C.

DAWSON, MONTY DOWNUM, JOSEPH DUBOIS, RICH-

ARD A. FEATHERSTONE, CHARLES FENTNER,

ROBERT G. FOSTER, PETER G. GANOTIS, ANDREW L

App. 2

GATTONE,: MURPHY T. GILL, HENRY GUTTMAN,

THOMAS R. HENRY, JOIY HOLDER, DONALD W.

JENKINS, OLVA JONASSEN, PAUL S. KING, HENRY J.

KNOCH, KENNETH D. LAMBERT, JOHN A. LANG-

FORD, MAURICE T. LEGARE, NORMAN W. LET-

ENDRE, LAWRENCE M. LUND, RAYMOND J. LUND,

RALPH A. MANLEY, JAMES R. MARTINEZ, RICHARD

A. MAU, TERRY L. MCCARTHY, GERARDE MES-

CHINO, MIKE E. MILLARD, STEPHEN A. MILLS,

JAMES C. MONTGOMERY, FRANCIS DALE MORGAN,

JAMES M. MORRIS, RICHARD J. NAERT, FRANK

NYILAS, GEORGE D. PAPPAS, JOHN R. POTTINGER,

MARK POWELL, WILLIAM J. POWERS, RONALD K.

RUPP, JIM SCHUL1z, PATRICK SHEIL, DAVID A.

STEPHENS, JOHN F. TAYLOR, ROBERT THRASHER,

CHARLES F. VAUGHN, LOUIS VILLAFANE, KEN A.

WILLIAMSON, GEORGE E. WILSON, HAL J. ZAMORA,

LARRY W. WILSON, RICHARD C. ZIKO, JAMES R.

HURSON, TRACY QUALLS, THOMAS E. RULAND,

DIANA R. WIGGINS, as Personal Representative of the

Estate of Robert H. Wiggins, deceased, and MARY BETH

LAMBERT, as Executrix of the Will of Thomas D. Lam-

bert,

Plaintiffs-Appellants,

-V.- 98-7120

DELTA AIR LINES, INC. and AIR LINE PILOTS ASSO-

CIATION,

Defendants-Appellees.

x

APPEARING FOR RALPH O. ANDERSON, Miami,

APPELLANT: FL (Hicks & Anderson, P.A.,

Anderson Moss Sherouse &

Petros, P.A., Miami, FL; Allen Nor-

ton & Blue, Coral Gables, FL, on

the brief)

nn eee

App. 3

APPEARING FOR’ WILLIAM H. BOICE, Atlanta, GA

APPELLEE: (Stephen E. Hudson, Kilpatrick

Stockton LLP; Thomas C. French,

Delta Air Lines Law Department,

on the brief).

Appeal from the grant of summary judgment in the

United States District Court for the Southern District of

New York (Baer, J.) on federal, state, and city age discrim-

ination claims brought by airline flight engineers.

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that the deci-

sion of the district court is AFFIRMED.

Plaintiffs are 71 flight engineers formerly employed

by Pan Am World Airways, Inc. who were hired by Delta

Air Lines, Inc. as part of Delta’s purchase of certain Pan

Am assets. At the time the disputed integration meth-

odology was implemented, plaintiffs ranged in age from

29 to 71. They allege that the manner in which they were

integrated into Delta’s seniority list discriminated against

them in violation of (i) the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. §§ 621-34, (ii) New

York State Human Rights Law, N.Y. Exec. Law § 296

(McKinney 1993), and (iii) the New York City Human

Rights Ordinance, N.Y. City Admin. Code §§ 8-107(1)(a)

and (c), and 8-107(17).

Defendants moved for summary judgment on the

federal claim, and to dismiss for lack of subject matter

jurisdiction on the state and city claims because of pre-

emption. The United States District Court for the South-

ern District of New York (Baer, /.), granted summary

judgment in favor of defendant-appellants on the federal

App. 4

age discrimination claim. See Adams v. Delta Air Lines,

Inc., No. 96-2871, 1997 WL 620823, at *1 and n.2 (S.D.N.Y.

Oct. 8, 1997). As to the state and city law claims, the

district court (i) granted summary judgment, and (ii)

ruled alternatively that “[t]o the extent the analysis of the

summary judgment motion differs under the state and

city laws,” the state and city claims were dismissed on

the ground that they were preempted by the Airline

Deregulation Act, 49 U.S.C. § 41713(b)(1). Adams, 1997

WL 620823, at *1 n.2 (citing Abdu-Brisson v. Delta Air

Lines, Inc., 927 F. Supp. 109 (S.D.N.Y. 1996), rev'd, 128 F.3d

77 (2d Cir. 1997)). This appeal followed.

Because we agree with the district court that plain-

tiffs failed to offer proof from which a reasonable fact

finder could infer that defendant had a discriminatory

motive in implementing its integration methodology, see-

McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997),

we affirm the grant of summary judgment on the federal

claim.

As to the state and city claims, plaintiffs argue on

appeal that the district court’s preemption analysis was

erroneously predicated on a precedent that was subse-

quently overruled. See Abdu-Brisson, 927 F. Supp. at 112,

rev d, 128 F.3d at 83-85. The district court relied on Abdu-

Brisson, however, only insofar as the substantive grounds

for dismissal of the federal claim did not dispose of the

state and city claims as well. We can affirm if the grant of

summary judgment was valid — i.e., if the dismissal of the

federal claim justified dismissal of the state and city

claims.

The elements of federal and state age discrimination

claims are the same. See Spence v. Maryland Cas. Co., 995

App. 5

F.2d 1147, 1158 (2d Cir. 1993); Tyler v. Bethlehem Steel

Corp., 958 F.2d 1176, 1180 (2d Cir. 1992). “This makes

sense, because the ultimate goals of the fact-finders in

both federal and New York age discrimination actions are

the same - to determine whether an adverse employment

decision was made ‘because of’ age.” Tyler, 958 F.2d at

1180. Consequently, the dismissal of plaintiffs’ federal age

discrimination claim justifies, without further analysis,

the dismissal of their state law age discrimination claim.

See Wanamaker v. Columbian Rope Co., 108 F.3d 462, 467 (2d

Cir. 1997) (“Hence, a district court may dismiss claims

brought under the New York State Human Rights Law, on

the ground that the plaintiff failed to establish a claim

under the ADEA.”); see also Spence, 995 F.2d at 1158

(“[Plaintiff’s] age discrimination claim under state law is

governed by the same standards as his ADEA claim and

was therefore properly dismissed.” (citations omitted)).

Although plaintiffs argue that a more liberal stan-

dard governs their city ordinance claim, they neither

describe that standard nor explain why it would result in

a different outcome.

Therefore, we also affirm the dismissal of their city ordi-

nance claim.

The district court’s grant of summary judgment on

all plaintiffs’ claims is affirmed.

FOR THE COURT:

CAROLYN CLARK CAMPBELL, CLERK

By:

/s/ Lucille Carr

Lucille Carr, Deputy Clerk

App. 6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ERIC H. ADAMS, et al.,

Plaintiffs, 96 Civ. 2871 (HB)

-against- OPINION AND ORDER

DELTA AIR LINES, INC.

and the AIR LINE

PILOTS ASSOCIATION,

Defendants.

ee

HAROLD BAER, JR., District Judge:

Defendant Delta Airlines (“Delta”)! moves for sum-

mary judgment dismissing plaintiffs’ age discrimination

claims. For the reasons discussed below, the motion is

GRANTED and the complaint is DISMISSED.?

1 Defendant Air Line Pilot Association, joined as a

necessary party, see Fed. R. Civ. P. 19, has not moved for

summary judgment, but the complaint against it is dismissed as

well.

2 Defendant also separately moved to dismiss plaintiffs’

state law claims for lack of jurisdiction, arguing such claims are

preempted by the Airline Deregulation Act (“ADA”), 49 U.S.C.

§ 41713(b)(1) and other statutes. In light of the resolution of the

summary judgment motion in defendant's favor, the Court need

not reach the motion to dismiss. To the extent the analysis of the

summary judgment motion differs under the state and city laws,

the court holds those claims are pre-empted by the ADA, for the

reasons articulated in this Court’s opinion in Abdu-Brisson v.

Delta Air Lines, Inc., 927 F. Supp. 109 (S.D.N.Y. 1996) (Baer, J.) (on

appeal).

App. 7

BACKGROUND

Plaintiffs are 71 former Pan Am Flight Engineers

hired by defendant Delta Airlines as part of Delta’s acqui-

sition of Pan Am’s Shuttle and Transatlantic Routes in

1991. They allege that the manner in which they were

integrated into Delta’s pilot seniority list discriminated

against them on the basis of age, in violation of the

federal Age Discrimination in Employment Act

(“ADEA”) and New York State and City law.

The Asset Purchase Agreement (“APA”) between Pan

Am and Delta required Delta to hire at least 700 Pan Am

pilots. Moreover, Delta needed to hire such pilots to

maintain continuous operation of the routes in question

because it did not have sufficient pilots trained to fly the

Boeing 727’s it was acquiring from Pan Am. The APA also

provided that Delta’s pilot union (ALPA) had to approve

any seniority integration plan for the Pan Am pilots,

bécause pursuant to Delta’s Collective Bargaining Agree-

ment (“CBA”) with the union, any newly hired pilots

would have to be placed at the bottom of Delta’s seniority

list. Delta negotiated a Supplemental CBA with ALPA,

which provided for a “modified status ratio methodol-

ogy” for integrating Pan Am pilots into Delta’s seniority

list. This methodology interspersed Pan Am pilots

throughout the Delta list, with the Pan Am pilots main-

taining their relative seniority to each other.

Plaintiffs’ complaint focuses on the integration of

Flight Engineers into the Delta list. Flight Engineers,

referred to as Second Officers at Delta, are the third

members of a three-member cockpit crew in a Boeing 727,

App. 8

along with a Captain and First Officer. The Flight Engi-

neer/Second Officer position was treated differently at

Delta and Pan Am prior to the acquisition. Pan Am Flight

Engineers were either (i) Professional Flight Engineers,

meaning they could not “bid” for pilot (Captain and First

Officer) positions or (ii) pilots, serving in Flight Engineer

positions with full “bid” rights based on seniority. Pan

Am Flight Engineers were also represented by a separate

union (FEIA) than Pan Am pilots (ALPA). Finally, sepa-

rate seniority lists were maintained at Pan Am for the two

positions — i.e., one list for Flight Engineers and another

list for pilots. When it came time to merge, therefore, Pan

Am provided Delta with these separate seniority lists. At

Delta, by contrast, all cockpit personnel* were hired as

pilots, most of whom served initially in the Second Offi-

cer position. All Delta pilots, including Second Officers,

had “bid” rights for all pilot positions, were represented

by one union (ALPA) and were ranked on one master

seniority list.

In initial drafts of the Supplemental CBA, which

were shown to the Pan Am pilots pursuant to the APA,

Pan Am First and Second Officers were to be ranked

against each other, collectively, and then integrated into

the Delta list behind Pan Am Captains. See Draft Supple-

mental CBA § 20(F)(2). Moreover, the initial drafts pro-

vided that if Pan Am failed to provide a list of First and

Second Officers by seniority rank, then the pilots’ birth-

date would be used to establish rank among them. See id.

§ 20(F)(3).

* The Court prefers “cockpit personnel” to the sexist

“airmen” used by the parties.

App. 9

The final version of the Supplemental CBA, however,

did not contain the birth-date fall-back provision, and

provided that Second Officers (i.e., Flight Engineers) be

ranked according to the Pan Am Flight Engineers’

union’s (FEIA) seniority list - i.e., Second Officers were to

be ranked separate from First Officers. Plaintiffs allege

(and defendant does not dispute) that, in violation of the

APA, this last minute change to the Supplemental CBA

was never shown to Pan Am pilots prior to its execution

on August 30, 1991. Plaintiffs also allege that Delta’s Vice

President for Flight Operations, Capt. Harry Alger,

advised Pan Am personnel of this methodology three

days before the supplemental CBA was executed. Plain-

tiffs believe this fact, as well as other evidence described

below, supports their contention that Capt. Alger uni-

laterally changed the ranking system.

The ranking system described above had the follow-

ing effects. First, all Pan Am Flight Engineers were inte-

grated into the Delta seniority list below Pan Am

Captains and First Officers - i.e., the open spots were

filled first from the Pan Am pilot list and then from the

Pan Am Flight Engineer list. Second, the integration

methodology provided that the Pan Am pilots be inte-

grated into a Delta seniority list that reflected expected

new hires at Delta. That is, the list contained hundreds of

empty “phantom” slots representing expected growth at

* Defendant points to deposition testimony by Alger that

he “approved” the revised CBA, and argue that this implies that

someone else revised the drafts. While this is a reasonable

inference that can be drawn from Alger’s testimony, the Court

must, on this motion for summary judgment, draw all

inferences in favor of plaintiffs.

App. 10

Delta, and Pan Am pilots were integrated among these

phantom slots. Once the list was collapsed as of the

effective date of the APA, and the unfilled phantom slots

eliminated, Pan Am Flight Engineers occupied the bottom

49 positions of Delta’s list. Finally, pursuant to FAA regu-

lation, 14 C.F.R. § 121.383(c), pilots over the age of 60 are

prohibited from flying as Captain or First Officer, but are

allowed to fly as Flight Engineer/Second Officer. Thus,

though the Second Officer position is usually filled by

young new-hires at Delta (those men and women starting

out and aiming to be Pilots and First Officers), some Pan

Am Flight Engineers were former over-60 pilots who had

“bid down” to the Flight Engineer position.> This resulted

in several older cockpit personnel being placed near the

bottom of Delta’s integrated seniority list.

In addition to their placement at the bottom of the

Delta seniority list, plaintiffs rely on certain incriminatory

comments found in notes taken by Delta's Capt. Alger in

his pre-purchase evaluation meetings with Pan Am.°

These notes include numerous references to the number

of Pan Am Flight Engineers over 60 years old; the number

> Surprisingly, in light of plaintiffs’ contentions of age bias,

plaintiffs did not identify in their papers (nor did the record

indicate) how may Flight Engineers fit into the over-60 category.

It is only in response to the Court’s prompting at oral argument

that plaintiffs subsequently provided this information. They

then still left it to the Court to cull the number of over-60 Flight

Engineers (apparently six, as of 11/1/91) from the raw data.

¢ At oral argument, plaintiffs also cited deposition

testimony of Captain Alger, regarding his belief that the FAA’s

over-60 rule should apply to Flight Engineers as well as pilots

because the effects of age-degradation create safety risks when

older Flight Engineers are in the cockpit.

ee er

App. 11

of pilots not expected to retire soon; and derogatory

references to “bad apples”, a “contaminated workforce”,

a “dirty-deal”, and “aged flight engineers”. Finally, plain-

tiffs describe a history of “age adverse employment prac-

tices” at Delta that are not directly related to this case.

DISCUSSION

I. Disparate Impact

To the extent plaintiffs are pursuing a disparate

impact theory, their claim cannot succeed. In order to

State a prima facie case on a disparate impact claim,

plaintiffs must show that they are members of a protected

class and that the challenged employment practice had a

significant disparate impact on that class. District Council

37 v. New York City Dept. of Parks and Recreation, 113 F.3d

347, 351-52 (2d Cir. 1997). Plaintiffs fail to meet the sec-

ond prong of this test.7 The Pan Am Flight Engineers

hired by Delta were younger, on average, than the Pan Am

pilots hired by Delta. That is, the group that allegedly lost

out by being placed at the bottom of the integrated

” Plaintiffs also concede that two of their members were not

over 40 years old - and therefore not members of a protected

group ~ as of the time of this action. See Pl. Br. at 14.n.10. What

plaintiffs failed to note - but what is evident from an

examination of the supplemental material provided by plaintiffs

after oral argument - is that another three plaintiffs were not 40

years old at the time of the APA and integration. That 5 of the 71

plaintiffs fail to meet the basic age requirement is indicative of

plaintiffs’ entire approach to this litigation. They

(understandably) feel aggrieved by the integration

methodology, but have failed to show how that methodology

was age-biased (as opposed to “Flight Engineer” biased).

App. 12

seniority list was younger than the group that was

treated better. Plaintiffs argue that the proper comparison

for this purpose is between the average age of the Pan

Am Flight Engineers and the Delta Second Officers. This

is akin to comparing apples and oranges. Any claim of

Disparate impact must be based on a comparison of the

Pan Am personnel whose rankings were affected by chal-

lenged employment action. The Delta Second Officers

maintained the same places on the integrated seniority

list regardless of the order in which the Pan Am person-

nel were integrated. It is among the Pan Am personnel

that the comparison must be made, and plaintiffs cannot

show a disparate impact based on age because those

adversely affected were younger as a group than those

who benefitted from the challenged action.

Furthermore, a disparate impact theory may not be

used to challenge “a bona fide seniority system that is not

intended to evade the purposes of” the ADEA. 29 U.S.C.

§ 623(f)(2)(A). A seniority system is not “bona fide,” but

rather a “subterfuge” to evade the purposes of the Act,

when defendant acted “in bad faith with an age-discrimi-

natory motive” in adopting the challenged system. Cook,

647 F. Supp. at 823. Thus, plaintiffs’ challenge to the

integration of the seniority list must rest on claims of

intentional discrimination or disparate treatment, and not

disparate impact. Hiatt v. Union Pacific R.R. Co., 65 F.3d

838, 842 (10th Cir. 1995) (“challenges to the routine opera-

tions of a bona fide seniority system must rest upon a

claim of disparate treatment”), cert. denied, 116 S. Ct. 917

(1996). I turn to an examination of plaintiffs’ disparate

treatment claim.

—

App. 13

Il. Disparate Treatment

In order to make out a Prima facie case of age dis-

crimination, plaintiffs must show that they (1) are mem-

bers of the protected age group, (2) are qualified for their

jobs, (3) suffered an adverse employment action and (4)

that the action occurred under circumstances giving rise

to an inference of discrimination. Woroski v. Nashua Corp.,

31 F.3d 105, 108 (2d Cir. 1994). If they meet this burden

and defendant comes forward with a legitimate, non-

discriminatory rationale for its action — as plaintiffs con-

cede happened here - then plaintiffs must prove that age.

was a motivating factor in defendant's actions. Renz v.

Grey Advertising, Inc., __ F.3d —_. 1997 WL 433675 at *4

(2d Cir. Aug. 4, 1997).

Delta argues that plaintiffs have failed to state a

prima facie case because they have not demonstrated that

the integration of the seniority lists occurred in circum-

stances giving rise to an inference of discrimination and

that in any event plaintiffs have failed to demonstrate

that age was a motivating factor in Delta’s decision

regarding integration of the pilot lists. Plaintiffs concede

that Delta came forward with legitimate non-discrimina-

tory rationales for its actions: Pan Am Provided Delta

with two separate seniority lists; the hiring practice at

Pan Am was such that new hires filled the Second Offi-

cer/Flight Engineer positions and were thus at the bot-

tom of the Delta seniority list; and Delta treated all Pan

Am hires within each category (Captain, First Officer,

Second Officer) equally, regardless of age.

Courts faced with similar cases have held that dis-

tinctions based on airline of origin, bidding practices at

App. 14

the two airlines, and expected success of the airlines at

the time of integration are all valid factors that may be

taken into account in creating and a viable integration

methodology. See Bovers v. Flying Tiger Line, Inc., 979 F.2d

291, 297-98 (2d Cir. 1992) (affirming summary judgment

to defendants where “the motivating distinction [in deter-

mining post-merger seniority] was the airline of origin”;

focusing on factors including premerger bid rights and

prognosis for future employment at each of the airlines);

Cook v. Pan American World Airways, Inc., 647 F. Supp. 816

(S.D.N.Y. 1986), aff'd, 817 F.2d 1030 (2d Cir. 1987).

Plaintiffs’ argument that the integration methodology

was motivated by discriminatory motive focuses on the

derogatory comments contained in Capt. Alger’s notes

and deposition transcript and Delta’s alleged history of

age discrimination. Such comments certainly reflect a bias

toward older pilots, and the deposition testimony in par-

ticular evinces a bias based on the sort of age-based

stereotypes that the ADEA was meant to combat. But see

Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir.

1997) (affirming summary judgment for Delta in case

brought by former Pan Am pilots notwithstanding plain-

tiffs’ reliance on unidentified “unconnected fragments of

evidence in which Delta personnel might be understood

to be making reference to age”).®

8 The Court recognizes that the fact scenario at issue in

Criley, involving only pilots over 55 years of age who would be

required to retire within five years pursuant to the FAA

regulation, is distinguishable from the facts present here.

Nevertheless, the Second Circuit’s affirmance of Judge

Weinstein’s grant of summary judgment in Criley indicates that

the mere existence of some evidence of age awareness coupled

App. 15

Plaintiffs also make much of the last-minute change

in the Supplemental CBA that resulted in Flight Engi-

neers being integrated according to the separate FEIA list

provided by Pan Am, as opposed to being ranked by

birth-date with First Officers. They also point to Capt.

Alger’s phone call to Pan Am’s Richard Burke in which

Alger referenced this ranking methodology - three days

prior to the adoption of this change in writing — as proof

that Alger was behind the change. Finally, they cite the

testimony of a Mr. Spallding from Delta, who testified

that Capt. Alger had the power to change a draft of the

Supplemental CBA. This evidence, plaintiffs contend,

raises an inference that Captain Alger — he of impermissi-

ble age-based bias - was responsible for the change in the

Supplemental CBA.

Up to this point, all is well and good for plaintiffs.

What plaintiffs fail to show, however, is a connection

between the integration methodology adopted by Cap-

tain Alger (crediting plaintiffs with the inference that

Captain Alger unilaterally changed the CBA) and age-

based bias. As noted above, plaintiffs as a group are

younger than the First Officers who allegedly benefitted at

their expense from Captain Alger’s machinations. Such a

comparison, therefore, cannot raise an inference of age-

based discrimination because its effect is to reward older

pilots.9

with an adverse action does not suffice to enable plaintiffs to go

to trial without more.

® Plaintiffs object to this analysis, contending that they are

not required to establish that they were treated differently than

any similarly-situated but younger group in order to survive

App. 16

At oral argument, plaintiffs advanced a slightly more

compelling theory. Because of the FAA regulation, the

only Pan Am cockpit personnel (Captains, First Officers

and Flight Engineers) that included among their members

individuals over 60 years old were the Flight Engineers.

Captain Alger was certainly aware of this, as his notes

indicate. Because of his bias against cockpit personnel

over 60, plaintiffs argue, Captain Alger collectively pun-

ished the entire group of Flight Engineers (who, as noted,

were younger on average than the First Officers) by plac-

ing them at the bottom of the seniority list.

While appealing at first blush, this theory too cannot

withstand scrutiny.!° Those plaintiffs most affected by the

change in the Supplemental CBA are those Flight Engi-

neers over 60 years of age. By definition, they would have

been placed in the top positions of the joint birth-date

ordered seniority list that plaintiffs claim would have

been prepared had the Supplemental CBA not been

changed. Yet it is these same over-60 Flight Engineers

who cannot — pursuant to FAA regulation — bid on Cap-

tain or First Officer positions. Rather, they are limited to

bidding on Flight Engineer spots against either (i) Pan

summary judgment. While this is technically true — plaintiffs

need only adduce evidence that can establish that

discrimination was a motivating factor in defendant's action -

plaintiffs have failed to articulate any theory by which the

integration advances a discriminatory motive. The mere fact

that Capt. Alger was biased cannot, without more, defeat this

properly supported summary judgment motion.

10 Indeed, plaintiffs failed to articulate the details of such a

theory, arguing simply that the entire group of Flight Engineers

was “punished” by Capt. Alger.

App. 17

Am Flight Engineers or (ii) incumbent Delta Flight Engi-

neers (called Second Officers). Yet the change in the CBA

had little or no impact on these plaintiffs’ ability to com-

pete against these two groups. These over-60 Flight Engi-

neers maintained their seniority rank vis a’ vis the other,

younger Pan Am Flight Engineers, and thus were not

adversely affected in their ability to bid against them. As

for their bidding rights against the incumbent Delta

Flight Engineers, plaintiffs have failed to present evi-

dence that the integration method ultimately adopted

resulted in any adverse impact on the Flight Engineers’

bidding rights for flight engineer positions. These Flight

Engineers were, in theory, at the top of the FEIA seniority

list, and thus not at the very bottom of the Delta list after

integration. The incumbent Delta Second Officers with

whom they were competing were at the bottom of the

Delta list prior to integration. While it is theoretically

possible that the over-60 plaintiffs’ bidding rights were

adversely affected, plaintiffs have failed to present any

evidence to show this was the case.

The same is true for the under-60 Pan Am Flight

Engineers. Their positions on the Delta list could have

been adversely affected by the changes in the Supplemen-

tal CBA in one of two ways also: vis a’ vis their Pan Am

colleagues or vis a’ vis their new Delta colleagues. Like

the over-60 Flight Engineers, the other Pan Am Flight

Engineers maintained their relative positions vis a’ vis

other Pan Am Flight Engineers. Plaintiffs contend that

some of these individuals lost their seniority ranking vis

a’ vis those Pan-Am First Officers who were junior to

them. The problem is that plaintiffs fail to adduce any

evidence to support this contention. They contend that

App. 18

“(t]he placement of the Pan Am flight engineers at the

bottom of the Delta seniority list resulted in flight engi-

neers with 15 to 35 years of relative seniority at Pan Am

being placed junior to junior Pan Am captains and first

officers at Delta.” Pl. Rule 3(g) Statement { 37. The only

evidentiary support for this statement is an unsupported

letter of protest from FEIA, the flight engineers’ union, to

Delta.

With regard to the impact on the under-60 Flight

Engineers’ positions vis a’ vis their Delta counterparts,

plaintiffs have also failed to establish any age-based dis-

criminatory effects resulting from the Supplemental CBA.

The older these plaintiffs are, the higher they would have

been placed on the seniority list had it been ordered by

birth-date, and the greater the possible impact the change

in integration methodology would have had on them.

But, at the same time, the older the plaintiff, the higher he

or she was (presumably) placed on the Flight Engineer

list ultimately used for integration, thus limiting the

impact of the change. Again, plaintiffs assert that “[t]he

placement of the Pan Am flight engineers at the bottom of

the Delta seniority list resulted in flight engineers with 15

to 35 years of relative seniority at Pan Am being placed

among the most recent new hires at Delta, some with less

than one year of seniority.” Pl. Rule 3(g) Statement { 38.

Again, the only evidentiary support for this contention is

the same letter from FEIA to Delta.”

11 Plaintiffs also allege that as a result of the change in the

CBA, “[p]laintiffs were among the first airmen to be furloughed

by Delta in 1993.” Pl. Mem. at 15. This claim suffers from the

same fatal flaws as plaintiffs’ other claims. First, plaintiffs cite

App. 19

Absent some concrete evidence that plaintiffs - or

particular plaintiffs - actually suffered some adverse

impact as a result of the change in the Supplemental

CBA, plaintiffs cannot survive the motion for summary

judgment. Plaintiffs could have submitted evidence

showing that particular plaintiffs suffered some age-

related adverse consequence as a result of the change in

the Supplemental CBA. Such evidence could include a

comparison between the actual seniority list used by

Delta and the seniority list that would have been used

under the birth-date ordering methodology, coupled with

an analysis explaining how oldeér persons fared worse

under the integration approach ultimately adopted.

While plaintiffs submitted a comparison of the two lists

in response to the Court's prompting at oral argument,

they have not taken the critical next step of explaining

how the differences in the two lists were age-related.

Plaintiffs rely solely on the fact that Pan [sic] Flight

Engineers were placed on the Delta list below Pan Am

First Officers. Absent an explanation - let alone a show-

ing — that this fact had a discriminatory effect, plaintiffs’

claims must be dismissed. It would be reasonable to draw

an inference of discriminatory motive based on Captain

Alger’s notes and statements if his actions served to advance

an age-biased agenda. Because plaintiffs have failed to

no evidence in support of this contention. Second, even if this

were factually true, plaintiffs have not articulated how this has

anything to do with age or the change in the Supplemental CBA.

Presumably, those plaintiffs who were furloughed were at the

bottom of the FEIA list used in the integration and would also

have been at the bottom of the birth-date ordered list they

contend should have been used.

App. 20

establish any adverse age-related effect, Delta’s summary

judgment motion must be granted.'?

Plaintiffs also allege discrimination on the basis of (i)

Delta’s refusal to allow Professional Flight Engineers

(PFEs) to bid for Captain and First Officer positions and

(ii) the three-year period it took Delta to increase plain-

tiffs’ pay to equal that of Delta Second Officers. These

claims are easily disposed of. As to the PFEs, as noted

above, they were barred from bidding for pilot positions

at Pan Am and courts have recognized the legitimacy of

maintaining pre-merger bidding distinctions. Bovers, 979

F.2d at 297-98; Cook, 647 F. Supp. at 819-20. Furthermore,

there is no evidence to support the contention that the

PFEs are older than either the Delta Second Officers or

the other Pan Am Flight Engineers.'* As to the incremen-

tal pay increases, the pay of all Pan Am hires was

“phased up” over a three-year period and plaintiffs have

put forth absolutely no evidence to indicate this was

anything other than an economic decision or, again, that

it had any negative impact correlated to age.

'2 It is not at all clear that a showing that some plaintiffs

fared worse under the integration plan ultimately adopted

would suffice to defeat summary judgment. By necessity, some

Pan Am personnel would fare worse than others under any plan

adopted. Absent a showing that older persons or members of

the protected class fared worse under the plan adopted,

summary judgment would still be appropriate.

‘3 Indeed, the oldest Pan Am Flight Engineers are barred

from bidding for the pilot positions by FAA regulation.

'

App. 21

CONCLUSION

For the reasons stated above, the motion for sum-

mary judgment is GRANTED and the complaint is DIS-

MISSED. The Clerk of the Court is instructed to close the

file.

SO ORDERED.

Dated: October 8, 1997

New York, New York

/s/ Harold Baer, Jr.

US.DJ.

App. 22

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

96 Civ. 2871 (HB)

MEMORANDUM AND

)

ERIC H. ADAMS, )

)

) ORDER

)

)

)

et al.,

Plaintiffs,

-against-

DELTA AIR LINES,

INC. and the AIR LINE ?

PILOTS ASSOCIATION, ?

Defendants. )

)

HAROLD BAER, JR., District Judge:

Plaintiffs move for reconsideration of this Court’s

Opinion and Order dated October 6, 1997 granting defen-

dants’ motion for summary judgment and dismissing the

complaint. The motion for reconsideration is GRANTED.

For the reasons discussed below, the Court adheres to its

original Opinion and Order and the complaint is DIS-

MISSED.

Plaintiffs raise two issues worthy of comment in their

motion for reconsideration. First, they contend that the

Court granted summary judgment for reasons not raised

in defendants’ motion papers. While in some circum-

stances this might justify a different result, this is not

such a case. I heard extensive oral argument on the

motion, at which time I informed plaintiffs of my con-

cerns and invited the submission of additional material.

Plaintiffs submitted such materials, which I relied upon

a

App. 23

and referred to in my opinion. See Opinion and Order at

12. After being fully apprised of the Court’s concerns and

provided with an opportunity to submit additional mate-

rial in response to these concerns, plaintiffs cannot now

be heard to complain that they were somehow prejudiced

by the fact that the Court decided the motion based on

those expressed concerns.

Plaintiffs also argue that the Court erred in “applying

the same standard to Plaintiffs’ city law claims that it

applied to the federal and state law claims.” Pl. Mem. at

6. In support if [sic] this argument, plaintiffs rely on dicta

in a Report and Recommendation written by Magistrate

Judge Peck. Burger v. Litton Indus., Inc., No. 91 Civ. 0918

(WK) (AJP), 1997 WL 421449 (S.D.N.Y. April 25, 1996),

recommendation adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22,

1996) (Knapp, S.J.). After citing a handful of cases apply-

ing the McDonnell Douglas analysis to New York City

discrimination claims, Judge Peck noted that the legisla-

tive history of the City’s Human Rights Law indicated it

was “to be even more liberally applied than the federal

and state anti-discrimination laws.” Id. at *19. In light of

his conclusion that the claims before him survived sum-

mary judgment under the federal standard, Judge Peck

noted that he “need not decide the scope of the more

liberal interpretation to be given the [City law claims].”

Id. Plaintiffs have not cited, nor has the Court located,

any cases applying the “more liberal” standard that

plaintiffs opine is applicable to City Human Rights Law

claims. See Torres v. Pisano, 116 F.3d 625, 629 n.1 (2d Cir.

1997) (noting Burger's “suggestion” that City law claims

are to be more liberally construed, but not reaching

issue); Hernandez v. New York City Law Dep't Corp. Counsel,

App. 24

No. 94 Civ. 9042 (AJP) (SS), 1997 WL 27047 (S.D.N.Y. Jan. _

23, 1997) at *13 n.10 (same). In fact, as noted by Judge

Peck in Burger, the weight of authority is that such claims

are to be decided under the same test as is applicable to

state and federal discrimination laws. Burger, 1997 WL

421449 at °18 (citing cases).!

For the reasons discussed above, the motion for

reconsideration is GRANTED. Upon reconsideration the

Court adheres to its original opinion, defendants’ motion

for summary judgment is GRANTED and the complaint

is DISMISSED.

SO ORDERED.

Dated: December 30, 1997

New York, New York

/s/ Harold Baer, Jr.

U.S.D.].

' Plaintiffs also failed to raise this argument in their initial

motion papers. Pursuant to their own reasoning, it would be

unfair to defendants were the Court to rely on this ground as a

basis for denying defendants’ motion.

App. 25

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

CAROLYN CLARK CAMPBELL

CLERK

(Filed Apr. 28, 1999)

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse, Foley Square, in the City of New York, on

the 28th day of April one thousand nine hundred and

ninety-nine.

Adams

Plaintiff-Appellant,

Vv Dkt No: 98-7120

Delta Air Lines, Inc

Defendant-Appellee.

A petition for panel rehearing and a petition for rehear-

ing en banc having been filed herein by the appellant’s

Erich H. Adams, et al.

Upon consideration by the panel that decided

the appeal, it is Ordered that said petition for

rehearing is DENIED.

It is further noted that the petition for rehearing en banc

has been transmitted to the judges for the court in regular

active service and to any other judge that heard the

App. 26

appeal and that no such judge has requested that a vote

be taken thereon.

FOR THE COURT

CAROLYN CLARK CAMPBELL, Clerk

By: /s/ Beth J. Meador

Beth J. Meador,

Administrative Attorney

App. 27

ASSET PURCHASE AGREEMENT

ASSET PURCHASE AGREEMENT dated July 27,

1991 among Pan Am Corporation, a Delaware corpora-

tion (“Parent”), Pan American World Airways, Inc., an

indirect wholly-owned subsidiary of Parent and a New

York corporation (“Airways”), Pan Am Shuttle Inc., a

wholly-owned subsidiary of Parent and a Delaware cor-

poration (“Shuttle”), debtors-in-possession (Shuttle and

Airways being referred to herein collectively as “Sellers”

and each individually as a “Seller”; where appropriate,

the terms Seller or Sellers shall refer only to the applica-

ble Seller), and Delta Air Lines, Inc., a Delaware corpora-

tion (“Buyer”).

RECITALS:

WHEREAS, each Seller is an air Carrier, as defined in

the Federal Aviation Act of 1958, as amended (the “ Avia-

tion Act”), and engages in the air transportation of per-

sons, property and mail; and Sellers desire to sell certain

assets described in Sections 2.1 and 2.2 hereof (defined

herein as the Purchased Assets).

WHEREAS, Buyer is an air carrier, as defined in the

Aviation Act, and engages in the air transportation of

persons, property and mail; and Buyer desires to pur-

chase the Purchased Assets.

WHEREAS, contemporaneously herewith Buyer has

agreed to extend credit to Parent and certain of its subsid-

iaries pending the completion of the transactions contem-

plated herein pursuant to the Credit Agreement dated as

App. 28

of the date hereof (the “DIP Agreement”) among Buyer,

Parent and certain of its subsidiaries.

WHEREAS, the proceeds of Sellers’ sale of the Pur-

chased Assets are to be applied in part in repayment of

amounts outstanding under the DIP Agreement.

NOW, THEREFORE, in consideration of the premises

and the mutual covenants and conditions contained

herein, the parties hereto agree as follows:

+ * *

[p. 52] accordance with subsection 5.9(h). Buyer will

determine in its sole discretion the number of Sellers’

employees to be offered employment in each location and

classification, and the terms and conditions of their

employment. Sellers’ employees in any classification shall

be required to resign from Sellers’ employment, in a

manner which does not give rise to Severance Liability, as

a condition of accepting Buyer’s offer of employment.

The employees who accept and commence employment

with Buyer (including Foreign Employees whose employ-

ment is continued with Buyer by operation of law) are

hereinafter referred to collectively as “Transferred

Employees”. Employees on medical, maternity and mili-

tary leave, and employees on personal leave who are

willing to return to work on the dates specified by the

Buyer, who are offered employment by Buyer shall not

become Transferred Employees until they commence

active service with Buyer. The provisions of this subsec-

tion 5.9(b) shall apply to Foreign Employees to the extent

permitted by applicable law.

2 eae

ee

ee ee eee ee ee ee eee ee ee re?’

App. 29

(c)(i) Except where not practicable because of the

constraints of foreign law and subject to (x) subsections

5.9(c)(ii) hereof and, with respect to pilots, 5.9(h) hereof

and (y) to reaching the agreement with Buyer’s pilots, as

represented by ALPA, described in Section 6.11 hereof,

(A) By no later than August 1, 1991 Buyer

shall advise Sellers in writing of the number of

Sellers’ employees, broken down by location

and job classification, to be employed by Buyer.

Buyer may revise such numbers within a rea-

sonable period of time based upon good faith,

unanticipated revisions to Buyer’s operating

- plans.

(B) By no later than August 15, 1991 Buyer

shall advise Sellers in writing of the material

terms and conditions upon which offers of

employment to the selected Sellers’ employees

will be made; provided that Buyer may be unable

to finalize all of the terms of seniority integra-

tion until after the Transferred Employees have

been identified, in which case Buyer will pro-

vide a description of Buyer’s objectives and

intentions with respect to seniority integration,

as well as, a description of the seniority integra-

tion methodologies that Buyer is likely to use.

(C) By no later than October 1, 1991 Buyer

shall provide Sellers with the names of all

employees to be given offers of employment;

provided that, if some of Sellers’ employees do

not accept such offers of employ-

4 * *

App. 30

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

CASE NO. 96-2871 (HB)

ERICH H. ADAMS, et al.,

Plaintiffs,

VS.

DELTA AIR LINES, INC. and the AIR LINE PILOTS

ASSOCIATION (joined pursuant to Fed.R.Civ.P. 19),

Defendant.

PLAINTIFFS’ MOTION TO STRIKE

DELTA’S SEPTEMBER 30, 1997 RESPONSE

Plaintiffs, ERIC H. ADAMS, et al., through under-

signed counsel, hereby move to strike the Delta Air Lines,

Inc.’s September 30, 1997 Response (the “September 30

Response”), and state:

1. In its September 30 Response, Delta misrepre-

sents the record before the Court with respect to a mate-

rial fact bearing on the Motion for Summary Judgment.

Delta states that “[i]t is undisputed that plaintiffs are not

similarly situated to the Pan Am pilots (Captains and

First Officers) who were hired into more senior cockpit

positions than plaintiffs.” See September 30 Response, p 2

(emphasis in original). However, Delta is well aware that

in their Memorandum of Law in Opposition to Delta’s

Motion for Summary Judgment (Plaintiffs’ Response),

Plaintiffs do, in fact, dispute this very issue. See Plaintiffs’

App. 31

Response, pp 11-12.1 Nonetheless, Delta carelessly — or

deliberately - misrepresents a disputed issue of fact as

undisputed. This misrepresentation is particularly impor-

tant in the present context as it is well established that

disputed issues of material facts preclude the entry of a

summary judgment. .

2. In addition, in its September 30 Response, Delta

argues in favor of its interpretation and its view of dis-

puted factual issues and evidence. However, the law

requires that all disputed factual issues be resolved in

favor of Plaintiffs (non-movants), and the Court must

view the evidence, draw all permissible factual inferences

and resolve all ambiguities in favor of the non-moving

party. Thus, this Court must ignore Delta’s argument —

that Alger eliminated the reference to date of birth inte-

gration from the Supplemental CBA because it was no

longer necessary — in favor of Plaintiffs’ theory that Alger

eliminated the reference to date of birth integration

because he knew that it would favor the Flight Engineers

against whom he was hopelessly biased because of their

ages.

3. As stated in Plaintiffs’ September 29, 1997 Sup-

plement to Opposition to Delta’s Motion for Summary

Judgment, date of birth integration was included in the

drafts of the Supplemental CBA as late as August 26,

1991, but was eliminated, by Alger, from the final version

‘In their Response, Plaintiffs also show that, under age

discrimination law, Delta’s “similarly situated” argument is not

part of Plaintiffs’ prima facie case. Since this “similarly

situated” argument forms the basis of Delta’s Motion for

Summary Judgment; Delta’s Motion must fail. Id. at 10.

App. 32

of the CBA, dated August 30, 1991. Thus, Delta’s explana-

tion — which Plaintiffs dispute - would be plausible only

if Pan Am had first provided Delta with the two Pan Am

seniority lists between August 26, 1991 and August 30,

1991. Of course, there is not a single piece of documen-

tary or testimonial evidence to support this latest Delta

theory.

4. Instead, the evidence shows that Delta was well

aware of the two Pan Am seniority lists long before

August 30, 1991. Captain Alger’s handwritten notes of his

meetings with Pan Am’s Captain Afourtit in the spring of

19912 contain numerous references to the two Pan Am

seniority lists. For example, in DL-AB 07006, Captain

Alger writes, “DL [Delta] needs to insist 1.F/E [flight

engineer] pilot single list.” See Exhibit “B” attached

hereto. Similarly, in DL-AB 07010, Alger writes, “Merge

Both Lists.” See id. Alger’s type-written notes confirm

that the “Lists” referenced in DL-AB 07010 are the Pan

Am ALPA and FEIA lists. Id. Continuing, in DL-AB 07012,

under the “Negative” column, Alger writes, “consolida-

tion of ALPA FEIA lists.” Id. Thus, Delta cannot dispute

that it was fully aware of the two Pan Am seniority lists

long before Alger eliminated the reference to date of birth

integration from the Supplemental CBA between August

26 and August 30, 1991.

2 See excerpts of transcripts of Captain Alger’s depositions

taken in this action and in the Abdu-Brisson v. Delta Air Lines,

Inc., No. 94-CIV-8-494 (HB) (S.D.N.Y.) case, attached hereto as

Exhibit “A.” Alger’s notes were marked and identified as

Plaintiffs’ Exhibit 100 in the Abdu-Brisson case.

App. 33

5. Under Delta’s new and unsupported rationale,

the date of birth “default” provision was unnecessary

since, at least, Spring, 1991, and should not have been

included in any of the early drafts of the Supplemental

CBA. Obviously, this is not the case; every draft of the

Supplemental C.A. contained the date of birth provision.

Thus, Delta’s explanation for the sudden disappearance

of the date of birth integration provision is both disputed

and implausible, and cannot support Delta’s Motion for

Summary Judgment.

6. Delta also argues, presumably for the first time,

that “there is no evidence that Alger ever reviewed or

even knew of the rejected ‘default’ provision.” See Delta’s

September 30 Response, n.1. This argument is addressed

in paragraph 27 of Plaintiffs’ Counter-Statement of Mate-

rial Facts Pursuant to Local Rule 3(G) (“Plaintiffs’ 3(G)

Statement”) which provides:

27. Correspondence from Richard Burke,

Chairman of the Pan MEC, to Captain Alger,

dated August 27, 1991, confirms a telephone

conversation wherein Captain Alger advised

Burke of Delta’s method for establishing

seniority of the Pan Am airmen. (Sherouse Aff

{ 22, Ex. 21, pp. 79-80; Sherouse Aff. { 33, Ex. 32

at DL-AB 06769). According to Burke’s corre-

spondence, this telephone conversation took

place three days before the final version of the

Supplemental. CBA surfaced containing the pre-

viously unseen changes to Section 20(F). (Id.)

According to Burke’s correspondence, Alger

described the method for establishing seniority

which was eventually contained in the final ver-

sion of Section 20(F) of the Supplemental CBA

but which, as of August 27, had not appeared.

App. 34

(Sherouse Aff | 22, Ex. 21, pp. 79-80; Sherouse

AFF. { 33, Ex. 32; Sherouse Aff. { 32, Ex. 31).

Alger had the authority to change Section 20

unilaterally at any time. (Sherouse Aff | 22, Ex.

21, pp. 80-81)

Drawing every permissible inference in favor of Plain-

tiffs, Delta’s argument, at most, creates another disputed

issue of material fact which precludes summary judg-

ment.

ZWERLING, SCHACHTER & ZWERLING, LLP

By: /s/ Robin F. Zwerling

Robin F. Zwerling (RZ 6736)

Oren S. Giskan (OG 3667)

767 Third Avenue

New York, NY 10017

(212) 223-3900

ALLEN, NORTON & BLUE

121 Majorca Avenue

Coral Gables, Florida 33134

(305) 445-7801

ANDERSON, MOSS, SHEROUSE

& PETROS, P.A.

100 North Biscayne Boulevard

2500 New World Tower

Miami, Florida 33132

(305) 358-5171

App. 35

[p. 1] UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

xX a»

ERIC H. ADAMS, ET AL., .

PLAINTIFFS,

VS.

DELTA AIR LINES, INC.,

AND THE AIR LINE PILOTS

ASSOCIATION (JOINED

PURSUANT TO F.R.C.P. 19)

DEFENDANTS.

CASE NO.

96-CIV-2871

X

LEESBURG, VIRGINIA

THURSDAY, MAY 15, 1997

VIDEO DEPOSITION OF

DANIEL JOSEPH AFFOURTIT JR., A WITNESS, WAS

CALLED FOR EXAMINATION BY COUNSEL FOR THE

PLAINTIFFS, PURSUANT TO NOTICE, TAKEN AT THE

OFFICES OF REMAX, 305 HARRISON STREET, S.E.,

SUITE 200, LEESBURG, VIRGINIA, BEGINNING AT

10:45 A.M., BEFORE JODI SCHEFFEL, A NOTARY PUB-

LIC IN THE COUNTY OF FAIRFAX, STATE OF VIR-

GINIA, WHEN WERE PRESENT ON BEHALF OF THE

RESPECTIVE PARTIES:

+ * +

[p. 29] Q. Did it cause you any concern that for the

purposes of safety or qualifications, in general, that Pan

App. 36

Am had 68 flight engineers who were over 60 years old or

four that were over 70?

A. No.

Q. And why not?

A. In my view, most of the professional flight engi-

neers — you could throw pilots parts on the ramp and

they’d build you the airplane in time for the departure.

They gave me no anxiety whatsoever, in terms of the fact

that they were over age 60.

Q. Is there any way - did you - did you at any time

in talking to Alger relate to him anything about age that

was negative?

A. No. I was 55 years old myself at the time, so I

doubt if I would have reflected on 60-year-olds or over

60-year-olds as being a negative, okay? And on top of

that, I had already been through an analysis, during the

time frame that I was the vice president of flight opera-

tions, with regard to the question of the older airmen.

—

Pan American being, quote, financially

* * *

[p. 33] So the part that I read is the part that I would

like to ask you about.

MR. BOICE: Objection in that you have not

properly indicated that. The “Contaminated work force,

especially since ’87,” then there is a parenthetical with an

arrow that says, “Not meet Delta standards,” referring to

that phrase.

App. 37

BY MR. SHEROUSE:

Q. Okay. With the objection noted, I’d like to ask

you some questions about the meeting that you had with

Alger. And what I’m going to focus on now is opinions

that you had and words that you expressed at that meet-

ing, in the context of the phrase that I’ve just read to you.

And I'd like to break it down.

With regard to the airmen, was there anything that

you felt was contaminated about the work force, as you

sat in that room or those meetings with Harry Alger?

A. I can’t imagine my using the word “contami-

nated” with regard to -

Q. With airmen?

A. Airmen.

* * *

[p. 43] Did you use, to Harry Alger, in that conversa-

tion, the term “bad apples” to describe any airmen at Pan

Am?

MR. BOICE: Objection to taking the phrase out

of context.

MR. SHEROUSE: You can go ahead.

A. No.

Q. Going to Page 7,007. At the top of Page 7,007 is

the phrase “dirty deal,” and then that is followed by the

sentence or the phrase “last 20 years drawing garbage.”

Did you use the term, in any form or fashion, or say

things to the effect that somebody would draw the con-

clusion that there was some dirty deal about what Pan

App. 38

Am had gotten in the way of airmen in the last 20 years

before 1991?

A. No.

Q. Did you feel, or have you ever felt, that there

was something - a dirty deal or something that was

negative, or bad, or contaminated, or anything like that

about the airmen that Pan Am had drawn in the last 20

years?

* * *

[p. 49] generalities of it and description, the overall

description you just gave, but do you recall that it would

be your suggestion to him, specifically, that he pay off the

professional flight engineers for some reason?

A. No.

Q. Now, going to what you had been talking about,

and, in fact, on this same page which is 7,012, a little

further down under the general heading “Political,” there

is a handwritten comment by Alger, “Consolidation of

ALPA FEIA list.”

Does this comment here apparently relate to what

you were just talking about?

A. Yes.

Q. Could you explain so that this makes some

sense, with regard to the Pan Am perspective, what the

A-L-P-A or ALPA list was, the official Pan Am list, and

what the FEIA list was, the official Pan Am list?

MR. HERMAN: Object to the form.

App. 39

MR. BOICE: Object to the question. Again, tak-

ing material out of context. I’ll also join in the objection of

Mr. Herman. |

* * *

[p. 55] A. The conversation or our meeting would

have ended had he suggested anything like that about

Pan American airmen. |

Q. Going back to this issue of the single list, did

Delta ever request of you a single list?

A. Yes.

Q. And when was that?

A. At some point in our - you know, I’m not going

to point to a date or time, but certainly I can recall their

requesting to be able to operate from a single list. And

that produced an explanation from us that you can take

our two lists and put them together for whatever exercise

you'd like, but we don’t have a single list. Because as I’ve

earlier explained, former National pilots can’t go on the

engineer listing. Former National engineers can’t go on

the pilot list. But if they wish to create a single list for

purposes of whatever exercise they were going to do at

Delta, it certainly would seem to me, and I can recall

stating, that’s not a complicated process.

Q. Did anybody ask you the specifics of this process

to put the two lists together?

App. 40

(LOGO) PAA-MEC OFFICE

AIR LINE PILOTS ASSOCIATION

201 MADEIRA AVENUE Q CORAL GABLES, FLORIDA

{ ] (305) 448-6968 :

August 27, 1991

CONFIDENTIAL

Mr. Harry Alger

Senior Vice President-Operations

Delta Air Lines, Inc.

Hartsfield-Atlanta International Airport

Atlanta, GA 30320

Dear Captain Alger:

Per our conversation this morning of 27 August 1991,

it is our understanding that the first 698 slots devoted to

acquired pilots on the Delta Pilot Seniority List will be

filled by pilots from the Pan American Pilots Seniority

List, in seniority order relative to that list. It is further

understood that the next 84 slots, numbers 699-782, will

be filled by engineers from the Pan American Flight

Engineer Seniority List, in seniority order relative to that

list.

Yours truly,

/s/ Richard L. Burke

Richard L. Burke

Chairman, PAA MEC

= Se

App. 41

ADAMS et al. vs. DELTA AIR LINES, INC. CASE NO.

96-2871

SEPTEMBER 29, 1997 SUPPLEMENT TO PLAINTIFFS’

OPPOSITION TO DELTA’S MOTION

FOR SUMMARY JUDGMENT

The integration of Pan Am airmen into the Delta

seniority list is covered in Section 20 of the Supplemental

Collective Bargaining Agreement (“Supplemental CBA”).

Under the Asset Purchase Agreement approved by the

Bankruptcy Court (the “APA”), Delta was required to

advise Pan Am, in writing, no later than August 15, 1991,

of the terms and conditions upon which offers of employ-

ment would be made to Pan Am employees, including

Delta’s intentions with respect to seniority integration

and the seniority integration methodology that Delta

intended to use. (Sherouse Aff. { 30, Ex. 29 | 5.9(c)(i)(B)).

Delta fulfilled this requirement by publishing Section 20

to the Pan Am airmen (albeit untimely-on August 26)

after numerous reviews and revisions by Delta manage-

ment and Delta ALPA.! Because it would directly affect

their seniority status, this information was crucial to

Plaintiffs’ ability to make an informed decision to accept

or reject employment at Delta.2 The Supplemental CBA

which was published pursuant to the APA contained a

* Delta ALPA was concerned solely with the creation and

location of the Pan Am slots on the Delta seniority list, not with

the ordering of the Pan Am list.

? As discussed in Plaintiffs’ Response to Delta’s Motion for

Summary Judgment, a pilot’s seniority rank affects almost every

important aspect of his working life including the aircraft and

routes that he can fly, the income he can earn, his pension upon

retirement and his job security.

App. 42

clause, Section 20(F)(3), which provided that if Pan Am

were unable to Supply Delta with the seniority rank order

of the acquired Pan Am airmen, their seniority rank order

would be determined by their respective dates of birth.

See Sherouse Aff. {¥ 26, Ex. 25, at § 20(F)(3). Delta has

repeatedly stated that it asked Pan Am for a single

seniority list that included all Pan Am airmen but that

Pan Am could not provide suctra list. Delta’s Memoran-

dum, pp. 6-7, 11; Delta’s Reply, p. 2; Greenberg Affidavit,

{ 8. Thus, pursuant to Section 20(F)(3) of the Supplemen-

tal CBA published pursuant to the APA, Plaintiffs should

have been integrated into the Delta list together with the

First Officers, on the basis of date of birth.

eo

Section 20 dealt fairly with the Flight Engineers in

relation to the First Officers, as a combined list would

have done. This, however, was unacceptable to Captain

Alger. Alger did not want the age-contaminated group

(the Flight Engineers)* to receive the fair treatment set

out in Section 20. Since these were the people whom -

because of their ages —- Alger was especially biased

against, he had to ensure that they did not benefit from

date of birth integration or any other fair integration

method. Thus, after providing Plaintiffs with a draft of

3 In fact, until it was eliminated by Alger from the August

30, 1991 (final) version, every single draft of the Supplemental

CBA contained this reference to date of birth integration. See

Spalding depo transcript; Alger depo transcript, p 130; Sherouse

Aff. {1 26, 27, 29, 31, 32, Ex. 25, 26, 28, 30, 31 at § 20(F)(3).

4In Alger’s eyes, the Flight Engineers are the only

“contaminated” group because only they represent a significant

number of “old” airmen approaching sixty, over sixty and,

indeed, over seventy who are entitled to remain in the cockpit.

—

——————

App. 43

the Supplemental CBA, Alger, unilaterally, and without

notice to Plaintiffs, eliminated any reference to date of

birth integration and otherwise altered Section 20 of the

final version of the Supplemental CBA to ensure that

Plaintiffs would wind up at the bottom of the Delta

seniority list. See Alger depo tr., p. 130.

Accordingly, after changing Section 20 to Plaintiffs’

detriment, Delta integrated the Pan Am Flight Engineers

at the bottom of the Delta seniority list. In fact, Delta has

admitted that “every place from 9226 through 9274 (the

end) on the [Delta] integrated seniority list was filled by a

former Pan Am flight engineer.” Excerpt of Delta’s Reply

Memorandum in Support of Defendant Delta Air Lines,

Inc’s Motion for Summary Judgment in Abdu-Brisson vs.

Delta Air Lines, Inc., 94 CIV8494(HB) (S.D.N.Y.), attached

hereto as Exhibit “A.” In fact, Delta assigned Frank

Nylas, the most senior Pan Am Flight Engineer, seniority

number 8843 out of 9274. Thus, 95.35% of all airmen on

the Delta seniority list were senior to the most senior Pan

Am Flight Engineer. Of course, all of the remaining Pan

Am Flight Engineers received seniority numbers below

Mr. Nyilas. Thus, 43 of the 71 Plaintiffs received seniority

rankings in the bottom one percentile of the Delta seniority

list. See Excerpt of the Delta Pilot System Seniority List

for November 1, 1991, attached hereto as Exhibit “B.” As

a result of their disrnal seniority status at Delta, Plaintiffs

were among the first to be furloughed by Delta in 1993,

resulting in millions of dollars of damages to Plaintiffs.

Generally, to avoid furlough required a Delta seniority

number of approximately 8900 or better. However, only 5

of the Flight Engineers received a seniority number of

8900 or better. See Exhibit “B.” Thus, almost every Pan

App. 44

Am flight engineer was furloughed by Delta, many

remaining unemployed for two years or more. Moreover,

those who were not furloughed were unable to hold their

positions once Delta second officers - with better

seniority rankings — were permitted to bid for their seats.

Thus, Delta’s discriminatory integration of Plaintiffs had

severe consequences on Plaintiffs’ employment.

Attached as Exhibit “C” is a list of the 513 Pan Am

First Officers and Flight Engineers acquired by Delta

ranked by date of birth — Captains are integrated ahead of

the Flight Engineers and First Officers, Exhibit “D” is a

list of the 71 Plaintiffs after integration into the Delta

seniority list (by date of birth) and contains each Plain-

tiff’s seniority ranking by number and percentile. As is

evident, date of birth integration results in Plaintiffs

being integrated evenly throughout the bottom half of the

Delta seniority list. By contrast, Delta’s integration

(Exhibit “B”) lumps Plaintiffs at the very bottom of the

Delta list. Under date of birth integration, only seven

Plaintiffs receive a Delta seniority ranking of 8900 or

worse; thus, the remaining 64 Plaintiffs would have

avoided furlough. By contrast, under Delta’s integration,

66 of 71 Plaintiffs receive seniority rankings of 8900 or

worse. Under date of birth integration, Pan Am’s senior

Flight Engineer, Frank Nyilas, receives a seniority rank-

ing in the forty fifth percentile (no. 4248) on the Delta

seniority list. Mr. Nyilas’ seniority was in the bottom 5

percentile (no. 8843) under Delta’s integration method.

Clearly, Captain Alger’s last minute changes to Section 20

had their intended catastrophic effect on Plaintiffs’

App. 45

employment conditions while providing no economic

benefit whatsoever to Delta.°

5 Based upon the plethora of age-biased comments and

testimony of Captain Alger quoted in Plaintiffs’ papers in

opposition to Delta’s Motion for Summary Judgment and at the

oral argument on Thursday, September 25, 1997, Plaintiffs are

entitled, for purposes of this Motion, to the factual inference

that Captain Alger’s actions against Plaintiffs were motivated

by age bias. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574 (1986) (in ruling on a motion for summary judgment,

the court must view the evidence, draw all permissible factual

inferences and resolve all ambiguities in favor of the non-

moving party.) The inference of age bias is particularly

appropriate here because there was no economic benefit to

Delta in forcing Plaintiffs to the bottom of the Delta seniority

list. It merely allowed Alger to give effect to his age bias.

Indeed, Delta has repeatedly stated that the order of integration

of the Pan Am airmen into the Delta’s pilot seniority list “made

little difference to Delta.” See Delta’s Reply p.2; Delta’s

Memorandum in Support of its Motion for Summary Judgment,

at p.6; Affidavit of H. David Greenberg, { 8.

App. 46

[p. 1] IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

ERICH H. ADAMS, et al.,

Plaintiffs, CIVIL ACTION FILE

)

)

)

~ ) NO. 96-CIV-2871

DELTA AIR LINES, INC., ?

and AIR LINE PILOTS ?

ASSOCIATION, joined

)

)

)

pursuant to FRCP 19,

Defendants.

VIDEOTAPE DEPOSITION OF

HARRY ALGER

March 21, 1997

9:00 a.m.

Delta Air Lines Administration Offices

1030 Delta Boulevard

Atlanta, Georgia

Marcia W. Welch, CCR-A-172

BROWN REPORTING, INC.

1740 PEACHTREE STREET

ATLANTA, GEORGIA 30309

(404) 876-8979

[p. 32] flying at optimum safety?

A. My professional opinion, yes.

Q. Yes, they were not?

A. That’s correct.

App. 47

Q. And Delta also had, at that time, in 1991, at least

in March-April of 1991, a rule that prohibited second

officers from flying beyond age 60?

A. Yes.

Q. Okay. And that rule also was changed, was it

not?

A. Through a court case, is the right terminology,

yes.

Q. Okay. And whatever the impetus, there came a

time when Delta permitted second officers to fly beyond

age 60; is that accurate?

A. Yes, sir.

Q. And can you please tell me the date, as close as

you can get it, to when that occurred?

A. I'll try. 1991, someplace; first, second quarter of

1991.

Q. The first or second quarter of 1991? Let’s see if

we can zero in on the date a little better.

When did Delta actually acquire Pan Am [p. 33] and

for purposes of Pan Am, I mean the acquisition involved

in this case; do you recall?

A. There were two dates. I think we took over the

shuttle on one date, which I believe was September; but I

think the official date was in November of ’91.

Q. Okay. Now, at the time that the acquisition was

completed, the deal was done, was Delta permitting sec-

ond officers to continue employment in the cockpit past

age 60?

App. 48

A. I believe they were, but I’m not absolutely sure.

Q. You, in 1991, were also opposed, were you not,

to a system that would permit second officers to continue

in the cockpit past age 60?

MR. BOICE: Let me have the question back

again. Did you say just in 1991?

Q. (By Mr. Norton) In 1991, you were opposed,

were you not, to a system that would permit second

officers to fly past age 60?

MR. BOICE: Objection, vague as to time.

THE WITNESS: I don’t know how you could

conclude I was opposed to it.

Q. (By Mr. Norton) Well, I’m asking you, [p. 34] sir?

A. Restate the question, please?

Q. Okay. In 1991, the entire year, calendar year,

were you, throughout that year, opposed to a system in

Delta that would permit second officers to fly past age

60?

A. I think a better characterization of that might be

that I felt that the highest levels of safety would not be

attained, if we allowed a second officer to serve past that

age.

Q. I trust in your role that you wanted Delta to fly

with the highest level of safety, true?

A. Of course.

Q. Then you were opposed to second officers flying

past age 60; were you not?

eee

App. 49

MR. BOICE: Objection, vague.

THE WITNESS: I had concern about that issue.

Q. (By Mr. Norton) Were you against it? Did you

disagree with it?

MR. BOICE: Object, compound.

Q. (By Mr. Norton) Did you disagree - let me make

it real easy for you. A court ordered you to permit -

ordered Delta to permit second officers to fly past age 60;

is that true?

[p. 35] A. Yes.

Q. Did you agree or disagree with the order of that

court?

A. I upheld the Court’s order.

Q. That wasn’t my question, sir. Did you agree with

that order or disagree with that order?

A. lIupheld the Court’s order. That’s the only issue I

had to look at, but I do have concern and would have

continued to have concern over the Court's decision as it

impacts the operation of my airline in the cockpit.

Q. Well, were you unhappy with that decision?

A. Yes.

Q. So, here today, Delta permits both two-step-

downs and second officers to fly past the age of 60,

correct?

A. Yes.

Q. Would it be fair to say, sir, that after Delta was

forced by the Court order to permit second officers to

App. 50

remain in the cockpit past age 60, that Delta, at that time,

in your view, was not flying at its —- at the optimum levels

of safety attainable?

A. In my judgment, in my professional judgment, I

would have preferred that we not have

* * *

[p. 46] possible, the highest degree of safety possible

consistent with the control they have. I would say no,

they are not, in my view.”

Are those yours words?

A. I don’t know. You tell me. I don’t -

Q. No, sir, I am not telling you anything I can’t tell

you anything. I am asking you if those are your words?

A. I don’t know. I don’t recall.

Q. Well, were those your feelings back in March of

1991? Did you believe that when those guys were in the

cockpit over age 60, that you were not “flying at the

highest levels of safety possible”?

A. In my view, there was some diminished margin

to reach the highest levels of safety possible, yes.

Q. The answer is yes, right? They were not flying at

the highest levels?

MR. BOICE: He answered the question yes.

Q. (By Mr. Norton) Now, are you aware, sir, that in

1984, the Federal aviation administration, FAA, did a

year-and-a-half-long study and came to the conclusion

that there was no reason to restrict [p. 47] second officers

after the age 60?

0 OO

App. 51

MR. BOICE: Objection, assumes facts not in evi-

dence.

Q. (By Mr. Norton) I’m asking you if you know

that?

A. I don’t at this particular moment. I may have at

one time.

Q. Let me ask you if you can recall this question

and answer. March 26th, 1991, “But is it a fair statement

that the FAA determined, after a year-and-a-half more

study, that the data was insufficient to propose and

implement an age limitation for position of flight engi-

neer?”

A. “Answer: At that point in time, they did con-

clude that, yes.”

“And you knew that at the time?”

“Yes.”

Do you recall that now? Does it jog your memory?

A. Not really, but I will accept it.

Q. Okay. Sir, back in 1991, when Delta was consid-

ering the Pan Am acquisition, can you name me a single

airline in the United States of America that prohibited

second officers from working past age 60 other than Delta

Air Lines?

* . *

[p. 79] discussion and I can’t really drill it down to that

level of detail. I’m sorry.

Q. I would like to pass you what is a composite

exhibit which is labeled as Plaintiffs’ 100.

App. 52

MR. BOICE: Do you have another copy?

Thanks.

Q. (By Mr. Norton) Do you recognize the handwrit-

ing on that first page?

A. Yes, sir, I do.

Q. Okay. Is that your handwriting?

A. Some people would call it handwriting, but

that’s my scribbling, yes, sir.

Q. Okay. And this scribbling was done around April

of 1991; is that accurate?

A. I don’t see a reference to date, but it would

probably have been in the spring of ‘91, yes.

Q. Well, these notes that you have here are - did

you take these handwritten notes which appear on Pages

07001 through 003 as a result of a meeting with Mr.

Affourtit?

A. I believe so, yes, sir.

Q. And at the top of that document, there’s a refer-

ence to facility/aircraft/ what is that? Cockpit?

* * *

[p. 81] A. Yes, sir.

Q. What are those two unions?

A. The Air Line Pilots Association and the Flight

Engineers International Association.

Q. All right. And the Flight Engineers Association,

obviously, represented the flight engineers; is that cor-

rect?

App. 53

A. Yes, sir.

Q. And if you will follow down a little bit, it says

40-plus professional engineers - 140, I’m sorry, 140 plus

professional engineers with no prior upgrade rights; is

that correct?

A. That’s what it says, yes.

Q. Or is that no pilot upgrade rights?

A. Pilots.

Q. That’s the professional engineer group. Look at

the next line. Tell me what that says.

A. Over 60 including 72-year-old second officer as a

two-step-down bid former captains.

Q. So what that says, does it not, sir, what that says

is that over 60 of these 140 professional engineers are

captains who did two-step-downs, correct?

A. No. I don’t think it says that.

Q. You don’t think it says that?

* * *

[p. 84] concerned of the aging process, certainly it

includes an individual who would be 72 operating in the

cockpit, yes.

Q. (By Mr. Norton) Down at the bottom of that first

page, it says: “Lastly, less than half will retire in the next

five years. Most hiring done in ‘64, '65, and '66.”

Is that accurate? Is that accurate to what it says, not

is the information accurate? Thank you.

App. 54

A. Yes. I think it says lastly, less than half who retire

in next five years and most hiring done in ‘64, ’5, and ’6,

yes, sir.

Q. And then up in the left-hand margin, up at the

top of the page, again, it says — what does it say there?

Approximately one-half? Can you read that?

A. “Approximately one-half retire next five years,

something, something, 64, ‘65, ‘66, three list F” - I don’t

know what that says. I really did a bad job there. I can’t

read the rest of that.

Q. It’s okay. That's fine.

A. Oh, no, no. I know. “Pan American National FE”

is what that says.

Q. Referring to the National Airlines?

* * *

[p. 86] labor strike on the seniority merger process is

real,” is om it says.

Q. That last sentence says: “Original bad apples

have long” — “after original long, bad apples have long

since retired”?

A. Where is that again?

Q. I’m sorry. It’s - look at the second-to-the-lzst line

where it’s underlined, “long-term potential”?

A. Yes.

Q. Help me with the rest of that.

App. 55

A. Again, I prefer to read the whole thing because I

don’t think I can just pull out a sentence and answer a

question. Do you mind reading the whole paragraph?

Q. No, sir. I’m asking you to read Starting at “long-

term potential, put here after the original bad apples have

long since retired.”

A. Well, again, I don’t know if that’s a whole sen-

tence or a piece of a sentence.

Q. Sir, I don’t care if it is a phrase. All I’m asking

you to do is starting with “long-term,” please read what

your handwriting states.

A. In the middle of the sentence begins “long-term

potential, probably here,” after the [p. 87] slash “bad

apples have long since retired?”

Q. Well, it’s original. Isn’t that that word out there?

A. It’s crossed out. I don’t know.

Q. What does the word look like? It’s your hand-

writing?

A. Could be origin. I don’t know what it says.

Q. “After the origin bad apples”?

A. I don’t know. It’s crossed out.

Q. Are you prepared to testify here today, sir, that

Mr. Affourtit used the term “bad apples” to you?

A. I am.

Q. You're positive of that?

A. Iam.

App. 56

Q. Did you ever consider negotiating with the Pan

Am ALPA MEC or with the FEIU or FEIA over the

integration of the seniority list with Delta?

A. No, sir.

Q. The answer is no?

A. Correct. The answer is no.

Q. And you did not negotiate with either?

A. That’s correct.

_ Q. Nor did anyone else from Delta, I

+ * +

[p. 94] He came out of the Air Line Pilots Association

as an officer. He was affording me the opportunity to get

inside their head because he wanted to see this thing go

through.

Q. But yet you never consulted with him what-

soever when you did the methodology for commingling

the seniority, did you?

A. That’s correct.

Q. He had all that experience, been a prior ALPA

officer, had the best interests of the Pan Am people at

heart, and you didn’t even talk to him about it when you

were doing the methodology?

MR. HERMAN: Objection to form.

MR. BOICE: Same here.

THE WITNESS: I respectfully had gleaned

enough information from him to know what the issues

App. 57

were and I had the interest of the Pan American pilots as

well.

Q. (By Mr. Norton) Okay. Let’s go to 007. “Dirty

deal.” Those are your words, aren’t they, sir?

A. No.

Q. You’re telling me those are Mr. Affourtit’s

words?

A. Yes, sir.

* * +

[p. 104] us on how to make sure we retain profitability.

He was obviously losing a great deal of money, had lost a

great deal of money, was bankrupt. This was his profes-

sional opinion on how you could turn it around.

Q. All right. Thank you. Now, if you would be kind

enough to turn to Page 009. Now, this is a typed page.

Who typed that up, do you know?

A. No, sir.

Q. You don’t?

A. No.

Q. Well, it wasn’t typed up by your secretary or

from your notes?

A. Not necessarily, no, not at all.

Q. Well, is this supposed to be a typed version of

some handwritten notes that you made?

A. It could well be. I don’t have any document that

suggests — oh, next page.

App. 58

Q. The word - under - over there, it says, “person-

nel contaminated workplace, especially since 1987.” Are

you prepared to testify that Mr. Affourtit used the word

“contaminated” with respect to the work force at Pan

Am?

A. Ihave no point of reference other than to suggest

that he did.

* * *

[p. 107] Q. Okay. I mischaracterized it, sir, by quot-

ing Delta’s words from Delta’s document which says

contaminated work force especially since 1987?

MR. BOICE: That’s not how you mischarac-

terized it.

Q. (By Mr. Norton) Now, I’m asking you, sir, is

contaminated your word?

MR. BOICE: Asked and answered.

(By Mr. Norton) Answer the question.

It may have been.

Thank you.

As it applies to new hires.

Or OP

I don’t care who it applies to. Contaminated is

your word. You know what contaminated means, don’t

you?

A. Yes.

Q. Next, “Does not meet Delta Standards.” You’re

telling me Mr. Affourtit is talking to you and telling you

App. 59

their work force doesn’t meet your standards; is that

correct?

A. No. That could have been an extension of the

first sentence.

Q. The reason it didn’t meet your standards is

because if you go on down there, it says 68 over

* * *

[p. 120] of the prior note that you took?

A. Yes.

Q. I would like to ask you one question. With

respect to the contaminated work force, are you aware of

the employees that Pan Am hired - let me start over and

do this a little easier.

Are you aware that once Pan Am started to hire in

1987, that the majority of the pilots, flight engineers, that

they hired were furloughees and most of them were

furloughees going back from the 1960s?

A. I was aware that there was a block of fur-

loughees that were recalled subsequent to 1987. yes.

Q. Were you aware they were, in fact, people that

had been furloughed back many, many years ago?

A. I didn’t remember that, but I knew it had been a

long time.

Q. So you knew that, I trust, they were people that

would be fairly old in age?

A. No, I-

App. 60

Q. Fairly up in years?

A. Again, I didn’t concentrate on that. That was not

a point of reference to me.

Q. Were you aware that Pan Am went for about [p.

121) 20 years without hiring any new pilots?

A. No. As a matter of fact, I think this is the first

time I have heard that. I’m surprised. It’s a shame.

Q. When you talk about the contaminated work

force since 1987, you testified earlier that related, to new

hires. Did that relate to the new hires and the return of

the furloughees?

A. Again, I would like to put this in the context

where we can get to a core issue. The reference was,

again, to who they were hiring as new hires in ‘87 and,

again, Dan’s frustration, inability, because of the uncer-

tainty or whatever, whatever other adjective you have

with Pan American, they would not have met the Delta

Air Lines standards for hiring.

Q. Okay. On this document, right out beside con-

taminated since 1987, even above it and below it, are

references to 68, over age 64, over age 70, I guess. Do you

see that?

A. Yes.

Q. Okay. Are you certain that those comments

aren't part of the same thought process relating to the

contaminated work force?

A. Not only am I certain, I’m absolutely [p. 122]

positive. I testified to that several times.

App. 61

Q. You just happened to put those references up

there but -

A. Especially since 1987, it says. No one age 70 has

been hired since 1987, more than likely. Again, I just must

emphasize that’s what I was referring to.

Q. Of course, the words especially since 1970,

would, of course, suggest that it was to some degree

contaminated even prior to that?

MR. BOICE: I think it was 1987. You said 1970.

Q. (By Mr. Norton) Than you, Counselor. Would

you agree with that?

A. Within the context that I thought I heard that

there were other times when they weren’t able to secure

the level of the pilots that they had hoped, yes.

Q. It says “pay off the professional flight engineers”

down there, about the third line down. Do you see that?

A. Yes.

Q. Is that Mr. Affourtit’s suggestion to you that you,

Delta Air Lines, pay off the professional flight engineers?

[p. 124] A. Terminology?

Q. Well, modified-status ratio is a name of a meth-

odology?

A. Right.

Q. Who came up with the notion that we — it would

be called modified status ratio? Was that the company

that did that? Was that Delta MEC? Who was it?

App. 62

A. ALPA in general terms, and I guess the Delta

MEC as you refer to them.

Q. So that was a name that ALPA came up with?

A. As far as I know. We would have no reason to

call it something.

Q. Now, in this modified status ratio method of

integrating these seniority lists, there were approximately

500 slots that were ghost positions, isn’t that - isn’t that

the term that’s been generally sed to describe positions

in which no person was currently employed?

A. I have never heard that term before until just

now.

Q. Let me try it again. Forgetting the ghost position

terminology, in the slotting process that was utilized,

there were 500 slots, at the time [p. 125] the slotting was

done, in which there was no active employee; is that true?

MR. BOICE: Objection, vague.

THE WITNESS: I believe so.

Q. (By Mr. Norton) Your answer was I believe so?

MR. BOICE: I really don’t know what you’re

talking about.

MR. NORTON: But the witness does, Counselor.

MR. BOICE: That’s fine.

THE WITNESS: If I understand your question,

my response was there were slots — there were positions

on the integrated seniority list to which no pilot’s name

was assigned. Is that your question?

App. 63

Q. (By Mr. Norton) There was no person? Nobody

had been hired yet?

A. Precisely.

Q. Precisely. That was my question. So that the peo-

ple coming over from Pan Am were slotted into an inte-

gration system in which there were hundreds of slots

where there really was no employee employed by Delta

at the time the slotting was done?

A. Some may and some weren't.

App. 64

FLT OPNS

Update Personnel: Contaminated Workforce esp since 87

not meet DL Standards |

68 > age 60

4 > age 70

26 double bid down

50% retire 2001

not 1995 ~

+B727

Non standard

(92 + 13)

Operating Plan today req pilots

Based on 40% credit solution in FRA

100% in South America due to frequency

Politics

PAA ALPA//IAFE Strategy

1. Long fences on aircraft and routes with Delta

paycheck .

2. Arbitration to DOH

3. 1st ROH (right of hire) for excess or furlough

Delta Strategy — Prenuptial (?)

Integration method & list part of agreement with

PAA to include: (no active face — face DL/PAA ALPA

Merge Both Lists

Extension on present contract w/ no strike

. clause

List integrated or status or ration not DOH

App. 65

(fence aircraft not route)

1 year to reshuffle and put seniority into

stovepipe (probably 600+ pilots)

Snapshot of list integration 1 year from deal

Furloughees granted Ist right of interview

Strategy

* Work 125 or 1250 pilots available

507

77

32

616

181

797

Don (C or G) p. 199

[Alger did not interpret the handwritten notes on this

page in his deposition (with the exception of the notes in

the lower left hand corner). The rest of the transcript was

created by counsel interpreting the handwriting in con-

junction with the testimony at pgs. 173-198 regarding pgs.

7009 and 7014 which is a typed version of the notes

created by Alger’s office.]

Dirty Deal _—

Last 20 years drawing garbage

+ ancient airplanes

+Delta employee perception cost to do deal to parity

(Delta folks no pay raise

Prenuptial agreement

App. 66

3 year fence to work and train

[st Right of Interview??

Buy assets that don’t require personnel ie shuttle

??Temporary Route Authority

Retirement _ Burden

Frankfurt base not economically feasible. L10 fly.

REDACTED

RAM _TELCON NOTES RE RCA/PAN AM MANAGE-

MENT PILOT CONTACTS OF MAY 2, 1991

CONFIDENTIAL

e HCA impressed with pilot management people.

e Simulator facility well designed.

¢ Simulator facility accrued over $6,000,000 in net reve-

nue through lease time to other OALs.

e Thirty Six [sic] Street_is the bedrock for all Latin

American aviation.

e Simulators are of 1971 vintage: however, they are well

maintained — visual systems far better than our own of

that era.

e Simulators: A-300, A-310 and 747 (HCA did not men-

tion 727 but believe they have 727 Sims as well).

¢ HCA likes philosophy of training.

¢ Opportunity for consolidation of Delta Flight Train-

ing/Pan Am Flight Training good.

e Aircraft cockpits include Sperry with dual Q flight

directors.

App. 67

727 Fleet is a hodgepodge of everything - aircraft

leased from all over the world; have many different

configurations.

Pan Am operates 727 fleet with a “Gold Book” which

is used by pilots for standardization/transition from

aircraft to aircraft.

A-300 is considered tc be the “work horse” of the

fleet; however, the A-310 is well respected.

A-310 is a two-man cockpit and is reasonably high

tech as opposed to the A-300.

People side: Three-man cockpit aircraft are flown with

two unions, i.e., ALPA and a Flight Engineers Union.

Pan Am has 140 professional engineers. There are three

other unions - International Union of Flight Atten-

dants; TWO (simulator maintenance and engineering

dispatchers [51]); and IBT (mechanics).

Pan Am is burdened with a two-step bid down system

and has several “aged” flight engineers, some in their

70s and one in particular, age 72 plus (born in 1919).

Some of their pilots are assigned to Al Nippon Air-

ways (Pan Am is paid a “finder’s fee,” pilots are paid

Pan Am salary plus 25%, plus a bonus at the end of

the three-year assignment. _

Pan Am Express pilots are on the Pan Am seniority

list.

Pan Am has five or six pilot bases throughout the

world but is in the process of consolidating to Miami

and New York City. (Berlin, for example, is still a

domicile.)

They have some pilot personnel problems but nothing

out of the ordinary, except they have one case where

they terminated a captain who permitted a flight

App. 68

attendant to “fly” the airplane from the left seat, air-

craft incurred an altitude bust, cited by the FAA, etc.

The arbitrator held in favor of the captain, so the case

is still pending.

On April 30, Pan Am furloughed 40 pilots and expects

to furlough another 100 within the next 30 days with

eight year recall rights.

Pan Am would furlough faster except for the CRAF

operation. They beg and borrow for opportunities to

fly CRAF charters. The revenue from these charters

appears to be critical.

HCA feels that we would have to look at a minimum

of a one-year plus fence, perhaps a fence for as long as

two to three years, which, of course, would require

agreement with Delta MEC.

All MIA facility leases, including the simulator facility,

are tied to a common expiration date (4/1/92). All

leases are primary leases with the Miami Airport

Authority.

All of their aircraft appear to be leased. (HCA did not

mention simulators, but suspect they are leased as

well.) .

All flight instructors are PA first officers (called “train-

ing captains.”)

Maintenance coordination, flight dispatchers, mete-

orology, reroute, and perhaps et al. are in one central

location, ala Western’s Operations Center in LAX.

HCA confirms approximately one-half of seniority list

pilots due to retire within five years.

Saw nothing really negative!

* + *

App. 69

[p. 1] IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

ERICH H. ADAMS, et al.

Plaintiffs,

CIVIL ACTION

)

)

)

FILE NO. 96-2871

)

)

vs.

DELTA AIR LINES, INC.,

Defendant.

VIDEOTAPE

DEPOSITION OF

WILLIAM SPALDING

April 29, 1997

12:56 p.m.

1030 Delta Boulevard

Atlanta, Georgia

_ Penny J. McPherson, CCR-B-914, RPR

BROWN REPORTING, INC.

1740 PEACHTREE STREET, N.W.

ATLANTA, GEORGIA, 30309-2335

(404) 876-8979

* * »

[p. 26] opportunity to have a job interview at Delta?

A. That’s correct, because of his seniority.

Q. And at that point it would be up to him to assess

whether he wanted to do that and to know whether he

was current and qualified on the equipment; and if those

things were positive, he would put in — that airman

would put into effect an attempt to get an interview at

Delta?

App. 70

A. Yes, that would be true.

Q. And if Harry Alger did not want this second

officer named Nyilas hired, how could he put that into

effect by telling you?

A. As I say, I don’t know right now what — where

these notes came from, what the meeting was or the

information that was being relayed at that point.

Q. Well, sir, what else in the whole world could it

mean, an entry on this piece of paper in your handwrit-

ing that says Nyilas second - 727 second officer, dash,

Harry Alger, no hire with the word “no” underlined?

MR. HUDSON: Objection as to the form. Calls

for speculation.

THE WITNESS: Again, right now other than

exactly what it says there, I don’t have [p. 27] any recol-

lection what that means.

Q. (by Mr. Sherouse) Okay. Well, let’s assume that it

means basically what it says in English, and let me ask

you the following questions about that. If Harry Alger

didn’t want Nyilas hired, how could he accomplish that

by telling you?

A. Again, it wouldn’t have any - for me I wouldn’t

be the one that would advise him that he wasn’t going to

be hired. That would have to come from somebody else.

Q. Could it be that the purpose in telling you was

so that Nyilas would never get a call from Delta stating

that he was eligible to have an interview? —

MR. HUDSON: Objection as to the form.

App. 71

THE WITNESS: I -

MR. HUDSON: Calls for speculation.

THE WITNESS: I really couldn’t tell you right

now because -

Q. (By Mr. Sherouse) It’s - it is true that’s the only

thing you had control over; if Alger didn’t want him

hired, the only thing you could do is make sure he didn’t

get that first telephone call, correct?

A. As far as I know we weren't —- at the [p. 28] time

we were calling, nobody up front was - we were not told

that anybody skip him on the list because he isn’t going

to be hired.

Q. But you do have this note in your own handwrit-

ing dated September 30th, 1991 that has the word “no

hire” next to Nyilas’ name, correct?

A. That’s what it says in the note, yes.

Q. And you have no reason to believe this informa-

tion originated with anybody other than Harry Alger,

correct?

A. Based on the format of it, I would assume that is

correct, yes.

Q. that this no hire information came from Harry

Alger, that’s correct?

A. Again, since I don’t recall what I was doing at

the time these notes were put together, I really couldn’t

Say.

Q. I'd like to show you some documents and have

you take a look at them first. This first one I’ve got I’ve

App. 72

only got one copy of. So I'll pass it to your attorney first,

but what it’s going to be is Supplemental Agreement

between Delta Air Lines and the Air Line Pilots in the

Service of Delta, what we were talking about earlier, and

this particular copy is marked Exhibit 57A.

* * *

/(2) Nyilas 727 S/0 - HCL No Hire

* ” *

CONFIDENTIAL

App. 73

[p. 1] UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

x

ERICH H. ADAMS, et al.,

Plaintiffs,

96 CIV 2871 (HB)

DELTA AIR LINES, INC.,

Defendant.

x

September 25, 1997

12:00 p.m.

Before:

HON. HAROLD BAER, JR.,

District Judge

APPEARANCES

ANDERSON, MOSS, SHEROUSE & PETROS

BY: THOMAS M. SHEROUSE

and

HOGG, ALLEN, NORTON & BLUE

BY: ROBERT L. NORTON

Attorneys for Plaintiffs

KILPATRICK & CODY

Attorneys for Defendant

BY: WILLIAM H. BOICE

COHEN, WEISS and SIMON

Attorneys for Air Line Pilots Assoc.

BY: PETER HERMAN

App. 74

* * o

[p. 10] employer’s concern about the economic consider-

ations of an employment decision has nothing to do with

ADA violations.

MR. NORTON: Your Honor, there is no eco-

nomic consideration here. They hired our people. That’s

not an economic issue.

THE COURT: I understand they hired them.

But your concern, in part, especially the way you talk

about these 500, these phantoms, it turns out, it seems to

me that that isn’t a phantom operation in terms of bias.

That’s a phantom operation in terms of who they have to

pay.

MR. NORTON: No, sir.

THE COURT: No, sir, your Honor. All that did

is push our people, when they jerked them back out on

November 1, to the bottom.

Let me ask you this, your Honor. If you don’t think

that we have established that Mr. Alger set out in a

devious direct way, explain this — I’m not asking you to

explain this. I apologize. If you will look at our exhibits,

he specifically, this almighty vice president over this huge

operation, specifically directed, “Don’t hire Nyilas. Don’t

hire Nyilas.” Do you know who he was? Our oldest

second officer.

Now here we got the vice president of the company

in the middle of a huge $4 million transaction, picking

out one little guy that happens to be the oldest guy and

[p. 11] instructing them not to hire him, until the legal

department came in and changed it. That is age adversity,

App. 75

your Honor. That is the kind of evidence that goes

together to show that the changes he made at the last

minute to Section 20 of that supplemental collective bar-

gaining agreement could only have been made for that

reason.

They will tell you in their brief that the logical things

in an airline merger is the captains are first, the first

officers second, and the second officers third. They

ramble along. They had negotiated a collective bargain-

ing agreement that went through four or five sessions

that said it would be by date of birth, directly contrary to

what they claim their business reason is. And at the last

minute, when it was obvious Pan Am was not going to

put one list together, they snuck in there and slam-dun-

ked our people, your Honor. And it is the kind of ques-

tion that has to be resolved by jury.

Please let me just read you one thing, because the

Second Circuit has a lot more about our case than it does

about theirs. As recently recognized by the Second Cir-

cuit. “Employment discrimination is often accomplished

by discrete manipulation, hidden under a veil of self-

declared innocence.” Delta in a nutshell. “A victim of

discrimination is unlikely to produce direct evidence of

discrimination or smoking gun,” although we have, “and,

[p. 12] therefore, usually must rely upon cumulative

weight of circumstantial evidence. Accordingly, where

the defendant’s intent and state of mind are placed at

issue, summary judgment is ordinarily inappropriate.”

There are so many facts in dispute in this case, I don’t

see how, where the two primary actors are confessed,

admitted stereotypical age-adverse individuals, that the

App. 76

court can possibly say we can’t prove our case. I mean,

the standards for granting summary judgment are well-

known to this court. I mean, to me, short of having a

confession, I can’t even imagine what more we could lay

in front of this court.

THE COURT: Let me hear from your adversary.

Maybe they will enlighten you, since I’m not sure I can

very well. You heard what he had to say.

MR. BOICE: I heard.

THE COURT: Let's be sure you respond to his

concerns. If I have some, I promise not to be bashful.

MR. BOICE: I understand, your Honor. I know

your Honor is not bashful, but let me address his con-

cerns directly. What he argues is that Mr. Alger, Captain

Alger, is age-adverse because he was concerned about the

court’s order with regard to over-age-60 second officers.

And here’s what the record is, your Honor.

The FAA has a rule called the Age 60 Rule which [p.

13] prohibits a captain or a first officer from flying past

age 60. For a number of years, in fact, throughout its

career, Delta has only hired pilots for all three cockpit

positions, that is, for the flight engineer position, for co-

pilot and captain. The FAA rule applies to captains and

co-pilots. Delta applied that same rule to flight engineers

because the reason behind the FAA rule is safety; that is,

there are detriments with the aging process. That’s why

the FAA today has that rule for captains and co-pilots.

Delta applied the same rule for flight engineers

because it is a safety position, also. That policy, your

Honor, was defended by Delta in lawsuits as late as 1984,

App. 77

successfully, and upheld in; «<«7ision by the Ninth Cir-

cuit Court of Appeals. It was cuallenged again in a law-

suit in 1991 for one second officer who was over age 60,

and the jury found that the company could not require

him to retire at age 60; that the Age 60 Rule of the FAA

did not apply. The company immediately changed its

policy and allowed second officers to be hired after or

continue to fly after age 60.

Captain Alger testified that caused him concern,

because the basis for the company’s policy was safety. If

the FAA rule permits safety by being applied to captains

and co-pilots, it’s safer to have flight engineers who are

also in safety-sensitive positions do the same thing. How-

ever -

[p. 14] THE COURT: If I understand it, all we

are talking about here these days seems to be motivation.

He has now pointed — not that you haven’t, and I haven’t

seen it before - to a variety of commentaries from your

captain that suggests fairly significant kinds of biased

statements with respect to age.

MR. BOICE: The proof is in the pudding, your

Honor. What he says is the court ordered us to do it and I

accept the court’s order. We will hire people over age 60.

And what is the proof? We hired flight engineers from

Pan Am over age 60, including a flight engineer up to age

72. The Nyilas that he said, the note says from Captain

Alger, “Don’t hire.” The company instead, in fact, hired.

Your Honor, if I might, because we really have been

mischaracterized as far as this motive, if I may put that in

context. The comments that the Second Circuit reviewed

in the Criley case are notes that Captain Alger took from

App. 78

conversations he had with the vice president of flight

operations at Pan Am. Captain Alger was vice president

of flight operations at Delta.

In May, when Delta was considering these assets, he

went on an investigatory mission to talk with the vice

president of flight operations at Pan Am. The vice presi-

dent of flight operations at Pan Am has testified - and

this is in the record and it’s undisputed - that he

* . *

App. 79

[p. 853] UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HONORABLE A. WALLACE TASHIMA,

JUDGE PRESIDING

JOHN H. BAKER, et al.

Plaintiffs,

and

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, CV 89-0517-AWT

Plaintiff-Intervenor,

vs.

DELTA AIR LINES, INC., COPY

Defendant.

VOLUME V

REPORTER’S TRANSCRIPT OF PROCEEDINGS

LOS ANGELES, CALIFORNIA

TUESDAY, MARCH 26, 1991

LU ANNA HOPKINS-WAMMACK,

RPR, CSR

432-A UNITED STATES

COURTHOUSE

312 NORTH SPRING STREET

LOS ANGELES, CALIFORNIA 90012

(213) 626-2412

* o *

App. 80

[p. 1043] Q Well, what is that? Would you explain

what the relationship is?

A Well, gee, I think it’s pretty straightforward. The

FAA had said that - I guess what my quagmire is that

how do we allow, knowing what we know about the

aging process, any crew member, in this case the second

officer, to fly beyond 60. Which we know about the aging

process performance degradation that goes along with it

happens, performance is going to decline with age.

We also know that with the aging process the risk of

incapacitation, whether it be acute or subtle, increases

with age, and more exposure, more risk with that. And

undermining and holding all of that up is the uncertainty

that there is no protocol; there is no indicator; there is no

predicator of who does age when, how fast the person

ages or when, who or the rate or when that person is

going to reach that point where you can no longer per-

form. There is no system in place that can define or

identify or distinguish those people.

FAA has in their wisdom -, and I believe it’s a very

sound policy — established that as a criteria for pilots and

first officers. We don’t differ with the FAA at all but also

encompassing the flight engineer as second officer

because the FAA has set that as a minimum standard with

the pilot and the copilot.