# Opposition Brief — Adams v. Delta Air Lines, Inc.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0661%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 877

## Text

No. 99-188

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Osi re 1
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IN THE

Supreme Court of the United States

ERICH H. ADAMS, et al.,

Petitioners,
v.

DELTA AIR LINES, INC. and
AIR LINE PILOTS ASSOCIATION INTERNATIONAL,

Respondents.

ON PETITION FOR A WRiT OF CERTIORARI TO THE
UNITED STATES COuRT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT
DELTA AIR LINES, INC.

THOMAS J. MUNGER WILLIAM H. BoIce

THOMAS C. FRENCH Counsel of Record

LAW DEPARTMENT STEPHEN E. HUDSON

DELTA AIR LINES, INC. KILPATRICK STOCKTON LLP
Hartsfield Atlanta Suite 2800

International Airport 1100 Peachtree Street

Atlanta, Georgia 30320 Atlanta, Georgia 30309-4530
(404) 715-2600 (404) 815-6500

Attorneys for Respondent
Delta Air Lines, Inc.

154768 @) Counsel Press LLC
FORMERLY LUTZ APPELLATE SERVICES
(800) 274-3321 + (800) 359-6859

Se Oe ee oe) Pee

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1
QUESTION PRESENTED

Did the Second Circuit Court of Appeals properly affirm
the district court’s summary judgment dismissing
Petitioners’ age discrimination claims against Respondent
Delta Air Lines, Inc. (“Delta”) under the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. § 621,
et seg. (the “ADEA”), where the conduct complained of
was Delta’s agreement with the Delta pilots’ union to use
Petitioners’ flight engineer seniority at Pan American World
Airways, Inc. (“Pan Am”) to determine the order in which
Petitioners were placed into the flight engineer slots created
on the Delta pilots’ seniority list for Pan Am cockpit
personnel hired by Delta rather than attempting to re-order
the relative seniority rankings of Pan Am cockpit personnel
in a manner that Petitioners claim would have been more
favorable to them?

~ Chae es Se a ORE

ii
STATEMENT PURSUANT TO RULE 29.6

Delta has no parent corporation and no publicly held
company owns 10% or more of its stock.

iil

TABLE OF CONTENTS

Page
Er re i
Statement Pursuant to Rule 29.6 ..........4.... il
EEE TET PTT TP er err ere ill
Table of Cited Authorities .................... Vv
I I, oven ivcccencecsrtcntecers Vill
statement of the Case ........cccccccccvcccecs 3
A. POC BOCKATOUNE ... wn ccc ccc ccc ves: 3

1. The Asset Purchase Agreement Between
SS OUD on vivo veces ecerees 3

2. Creating Slots for Pan Am Pilots and

Flight Engineers on the Delta Pilots’
LE res 5

3. Delta’s Hiring of Pan Am Pilots and
Flight Engineers ..........cccccess 5

4. Filling the Slots for Pan Am Pilots and

Flight Engineers on the Delta Pilots’
Ee ree 8
B. The District Court’s Decision............ 9

C. The Second Circuit’s Decision ........... 11

iaeahiad sets ia aaseadalalal

iv
Contents

Page
Reasons for Denying the Writ ................. 12

A. The Second Circuit’s Decision Was Correct.
Garhee kee beac ee eee ace ae 12

1. The District Court Correctly Dismissed

Petitioners’ Age Discrimination Claims

Under the McDonnell Douglas Burden
DE TS 6 b's n ceduy teurecss 13

2. Petitioners Have No Direct Evidence of

Age Discrimination and This Not a

“Mixed Motive” Case Under Price
I, 64-s-aU bea ba es aa aré 464 21

B. No Issue Worthy of the Court’s Certiorari
Review is Presented by the Petition. ...... 25

eek a 27

TABLE OF CITED AUTHORITIES

Page
Cases:
Bovers v. Flying Tiger Line, Inc., 979 F.2d 291
Gee Rs BE 00 550044450000 erie 14
Caban-Wheeler v. Elsea, 904 F.2d 1549 (11th Cir.
8 Oe Oe rma ie MEM ih eh vranhtghys 23
Cook v. Pan American World Airways, Inc., 647
F. Supp. 816 (S.D.N.Y. 1986), aff'd per curiam,
817 F.2d 1030 (2d Cir. 1987) ................ 15, 21
Criley v. Delta Air Lines, Inc., 119 F.3d 102
(2d Cir.) (per curiam), cert. denied, 118 S. Ct.
PET Te PORTA MOM Lin tet Aer, 10

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953) .. 20
Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)
Graver Tank & Mfg. Co. v. Linde Air Prods. Co..,

SO Ue BIS CHD vnccccavcntcennccvciccas 26
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) .. 12

Jackson v. Harvard Univ., 900 F.2d 464 (ist Cir.),
cert. denied, 498 U.S. 848 (1990) ............ 23

McDonnell Douglas Corp. v. Green, 411 U.S. 792
GEPTEE 6 acaNdndaNd sche ddeee ene Soy Oey OO

vi

Cited Authorities
Page
NCAA vy. Board of Regents, 468 U.S. 85 (1984) .. 26
O'Connor v. Consolidated Coin Caterers Corp., 517
ak DO CEOUED 0006 600%es Crdaedeeenntane 13
Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171
CGE SOOED scncvcccandadenénccnveueeen 23, 25
Pan Am Corp. v. Delta Air Lines, Inc., 175 B.R. 438
Rens SUE cccvseersceicicreeeensen 3
Parcinski v. Outlet Co., 673 F.2d 34 (2d Cir. 1982),
cert. denied, 459 U.S. 1103 (1983) ........... 12

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
pee esectaecesoesncesestavesal 21, 22, 23, 24, 25

Raskin v. Wyatt Co., 125 F.3d 55 (2d Cir. 1997) .. 25
Rogers v. Lodge, 458 U.S. 613 (1982) ........... 26
Singleton v. Wulff, 428 U.S. 106 (1976) ......... 22
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)
WEUTTTTTTIPITTT TTT ee eee 13, 16, 18
‘Teamsters v. United States, 431 U.S. 324 (1977) .. 13

Texas v. Mead, 465 U.S. 1041 (1984) ........... 26

Vil

Cited Authorities
Page
Texas Dep't of Community Affairs v. Burdine, 450
ee Ee windwes Geusleceseseoure neaeee 18
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111
PPE ET ee ie ee are Aan) 4
Tyler v. Bethlehem Steel Corp., 958 F.2d 1176
(2d Cir.), cert. denied, 506 U.S. 826 (1992) .... 23
Jnited States v. Johnston, 268 U.S. 220 (1925) ... 26
Woroski v. Nashua Corp., 31 F.3d 105 (2d Cir. 1994)
cebbednecubnedeb teas token neeeleee 13
Statutes:
ype ee er en ee
BP Uae BLE 6. 0 v0.0 6a be cb bueesecesdens 12
Rule:
, 2 RM a Seen e ene 16
Other Authority:

14 C.F.R. § 121.383(c) . 0... ccc c ccc cccucucuces 7

vill

TABLE OF APPENDICES
Page

Appendix A Asset Purchase Agreement Dated
et ey SE: 4c do eae hs oe ane Reese he wee wan la

]

Petitioners, plaintiffs and appellants below, are 71 former
Pan Am flight engineers who were hired by Delta in 1991 in
connection with Delta’s purchase of certain Pan Am assets.
During the time period in question, their ages ranged from
29 to 71. Petitioners alleged that Respondent Delta,
defendant and appellee below, discriminated against them
on the basis of their ages by agreeing with the union that
represents Delta’s pilots on a seniority integration
methodology pursuant to which they were offered positions
on the Delta pilots’ seniority list that gave them less relative
bidding seniority than they wanted.

Petitioners were offered slots on the Delta pilots’
seniority list on the basis of a seniority integration
methodology that was negotiated between Delta and the
union that represents Delta’s pilots, the Air Line Pilots
Association International (“ALPA”), and was set forth in a
supplemental collective bargaining agreement. Absent such
a supplemental collective bargaining agreement — in which
the existing Delta pilots relinquished some of their
contractually protected relative bidding seniority, Delta
would have been contractually obligated under the existing
collective bargaining agreement to place all of the Pan Am
cockpit personnel hired by Delta, including Petitioners, on
the bottom of the Delta pilots’ seniority list.

It is undisputed that, at all times relevant to the seniority
integration, Delta and ALPA had agreed to use Pan Am
seniority rankings, if Pan Am provided them, for the purpose
of both hiring Pan Am cockpit personnel and placing them
on the Delta pilots’ seniority list. It is undisputed that Pan
Am provided seniority rankings for pilots (Captains and First
Officers) on one list and flight engineers on another list. It
is further undisputed that the Pan Am pilots’ seniority list

2

was used to hire Pan Am pilots and to fill the slots created
for them on the Delta list, and the Pan Am flight engineers’
seniority list was used to hire Pan Am flight engineers and
to fill the slots created for them on the Delta list. Petitioners
alleged in this case that Delta committed age discrimination
by not re-ordering or combining the two separate Pan Am
lists before filling the slots created for the Pan Am cockpit
personnel on the Delta pilots’ seniority list.

The district court judge granted Delta’s motion
for summary judgment dismissing Petitioners’ age
discrimination claims. Adams v. Delta Air Lines, Inc., 1997
WL 620823 (S.D.N.Y. Oct. 8, 1997). The district court held
that even if Delta’s then-Vice President of Flight Operations
harbored “age bias,” as Petitioners alleged, there was no link
or connection between such bias and any adverse action
against them on the basis of their ages. /d. at 620823, at *4.
The Second Circuit unanimously affirmed in an unpublished
opinion. 175 F.3d 1007 (2d Cir. 1999) (per curiam);
Petitioners’ Appendix, 1-5.

The Court should deny Petitioners’ request for a writ of
certiorari not merely because the Second Circuit’s decision
was correct, but also because no legal issue worthy of the
Court’s certiorari review is presented by the Petition.
The entire Petition is based upon the erroneous and
unsupported assertion that there is a conflict between the
Second Circuit’s decision in the case and decisions of other
United States Courts of Appeals. According to Petitioners,
the Second Circuit held that “direct evidence of
discriminatory animus on the part of a primary decision-
maker” is “insufficient to raise an inference of discriminatory
motive” (Pet. 12; see also, id. at i, 6-7, 10-12, 17-18), and
this holding conflicts with decisions of other United States
Courts of Appeals. /d. at 13-18.

3

The Second Circuit, however, held no such thing. The
Second Circuit merely affirmed the district court’s summary
judgment after applying well-established law concerning
burdens of proof in employment discrimination cases and
concluding that there was no evidence of discriminatory conduct
by Delta. There is no conflict between the Second Circuit’s
decision in this case and decisions of the other United States
Courts of Appeals cited in the Petition, nor is the “Question
Presented for Review” (Pet. i) actually presented by the Petition.

STATEMENT OF THE CASE
A. Factual Background

Petitioners’ “Statement of Material Facts” (Pet. 2-10)
is incomplete, and the factual assertions in their Petition are a
significant distortion of the record evidence. A more complete

statement of the undisputed facts relevant to the Petition is set
forth below.

1. The Asset Purchase Agreement Between Delta and
Pan Am

In January 1991, Pan Am filed for bankruptcy protection
under Chapter 11 of the United States Bankruptcy Code. In
July 1991, Pan Am and Delta entered into an Asset Purchase
Agreement (the “APA”), dated July 27, 1991. Pursuant to the
APA, Delta agreed to acquire certain equipment, route authority,
and other assets from Pan Am. The equipment that Delta agreed
to acquire in connection with the transaction included Airbus
A-310 and Boeing B-727 commercial aircraft. APA, J§ 2.1(b)
and 2.2(b). The APA was approved by the United States
Bankruptcy Court for the Southern District of New York on
August 12, 1991. Pan Am Corp. v. Delta Air Lines, Inc., 175
B.R. 438, 447 (S.D.N.Y. 1994).

4

The APA provided that Delta would hire at least 6,600
Pan Am employees, including 700 Pan Am cockpit
personnel, the approximate number required to operate the
aircraft that Delta had agreed to acquire. APA, J 5.9(a),
(h). The APA obligated Pan Am to “provide to [Delta] a list
of all employees in order of seniority and by ...
classification” (id., | 5.9(a)), and it required Delta to offer
employment to the Pan Am pilots (Captains and First
Officers) and flight engineers' “in seniority order by
category.” /d., | 5.9(h). The APA also provided that Delta
could not offer employment to Pan Am’s pilots and flight
engineers unless and until Delta had reached an agreement
with existing Delta pilots on the terms and conditions of
employment that Delta would offer, including the
methodology for placing the Pan Am pilots and flight
engineers on the Delta pilots’ bidding seniority list.
Id., 4, 6.11.

1. One of the two types of aircraft that Delta acquired in
connection with the transaction, the B-727, requires a three-person
cockpit crew, consisting of a Captain, a First Officer, and a flight
engineer (Delta calls the person who occupies this position a “Second
Officer”). The division of responsibility between these three cockpit
crewmembers has been described as follows:

The “captain” is the pilot and controls the aircraft. He

is responsible for all phases of its operation. The “first

officer” is the copilot and assists the captain. The “flight

engineer” usually monitors a side-facing instrument
— panel.

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 114 (1985).

5

2. Creating Slots for Pan Am Pilots and Flight
Engineers on the Delta Pilots’ Seniority List

Absent an agreement with the existing Delta pilots to
create positions for the Pan Am pilots and flight engineers
on the Delta pilots’ seniority list, the collective bargaining
agreement between Delta and the Delta pilots’ union (ALPA)
required that all of the Pan Am cockpit personnel hired by
Delta be placed at the bottom of the pilot seniority list (like
all new-hire pilots), below all existing Delta pilots. On
August 30, 1991, Delta and ALPA agreed on a “modified
status ratio methodology” that created slots for the Pan Am
cockpit personnel on the Delta pilots’ seniority list. The slots
were spread throughout the Delta pilots’ seniority list and
generally corresponded to the cockpit jobs being created at
Delta in connection with the asset acquisition.’ This
methodology was set forth in a supplemental collective
bargaining agreement between Delta and ALPA.

3. Delta’s Hiring of Pan Am Pilots and Flight Engineers
In the Asset Purchase Agreement with Pan Am, Delta

agreed to offer employment, “in seniority order by category”
as determined by Pan Am, to Pan Am pilots and flight

2. The “modified status ratio methodology” agreed to by Delta
and ALPA created ratioed slots for the Pan Am Captains beginning
with the positions held by Delta Captains on similar aircraft on the
Delta pilots’ seniority list and ratioed slots for Pan Am First Officers
and flight engineers among the remaining number of pilot positions
that were projected to be existing at Delta as of December 31, 1992.
The agreed upon methodology used the number of Delta pilot
positions anticipated (before the Pan Am acquisition) as of December
31, 1992 to give recognition to the Delta pilots’ expectations of
significant planned job growth in the airline.

6

engineers who were or would become “fully trained and
currently qualified” on either of the two aircraft types that
Delta was acquiring by the closing date, November 1, 1991.
APA, 4 5.9(h)(i). Unlike at Delta, where ALPA represented
all cockpit personnel, Pan Am cockpit personnel were
represented by two unions and had two seniority lists. ALPA
represented the Pan Am pilots (Captains and First Officers),
and the Flight Engineers International Association (“FEIA”’)
represented the Pan Am flight engineers. The Pan Am pilots’
seniority list was used for awarding Captain and First Officer
positions at Pan Am, ard the Pan Am flight engineers’ list
was used for awarding flight engineer positions at Pan Am.

Pan Am had numerous “professional flight engineers”
who were not eligible to occupy any other cockpit position.
They held positions only on the Pan Am Flight Engineers’
seniority list, not on the Pan Am pilots’ seniority list. Since
new-hire pilots at Pan Am also filled the flight engineer
position, typically early in their careers, some pilots at Pan
Am serving as flight engineers were on both the flight
engineer and pilot seniority lists. However, since only the
Pan Am flight engineers’ seniority list contained all Pan Am
flight engineers, that was the list used for flight engineer
bidding at Pan Am.

Delta, in contrast, hired only pilots and had only one
seniority list. The entry level position for pilots at Delta was
the B-727 flight engineer (or “Second Officer”) position, but
all pilots were eligible to bid out of the flight engineer
position once they had attained adequate seniority.

Pan Am provided Delta with lists of all eligible pilots
(Captains and First Officers) ranked in seniority order
according to the Pan Am pilots’ seniority list. Likewise, Pan

ets Daviallas ae

7

Am provided Delta with a list of all eligible flight engineers
ranked in seniority order according to the Pan Am flight
engineers’ seniority list.

Delta offered Second Officer {flight engineer) positions
on the B-727s being acquired from Pan Am to qualified Pan
Am flight engineers based on their rankings on the Pan Am
flight engineers’ seniority list. Many of the Petitioners were
relatively senior flight engineers at Pan Am. When they
learned that Delta would be offering employment to B-727
flight engineers, they used their Pan Am flight engineer
seniority to bid down from their flight engineer positions on
the more senior and higher paying B-747 or A-300 aircraft
to the B-727 flight engineer position so that they could
become eligible to be hired by Delta as B-727 Second
Officers.

Thus, while the B-727 flight engineer or Second Officer
position, as an entry level position for new-hire pilots, is
typically staffed by the youngest pilots, the average age of
Pan Am flight engineers hired by Delta was closer to that of
the Pan Am pilots hired by Delta. The average age of the
690 Pan Am pilots (Captains and First Officers) hired by
Delta was 50 (median age 52). Their ages spanned from 27
to 59 (a federal regulation prohibits any person from
occupying a Captain or First Officer position after the age
of 60).* The average age of the 84 Pan Am flight engineers
hired by Delta (which includes the 71 Petitioners in this case)
was 48 (median age 50). Their ages spanned from 71 to 29
(with six of the 84 flight engineers being over age 60).

3. 14 C.F.R. § 121.383(c).

8

4. Filling the Slots for Pan Am Pilots and Flight
Engineers on the Delta Pilots’ Seniority List

Since the APA obligated Delta to hire the Pan Am
cockpit personnel in seniority order as determined by Pan
Am, Delta and ALPA entered into a supplemental collective
bargaining agreement that likewise required Delta to use the
seniority order provided by Pan Am for filling the slots
created for the Pan Am cockpit personnel on the Delta pilots’
seniority list. Pan Am provided separate seniority lists for
pilots and flight engineers. In accordance with its agreement
with ALPA, Delta used the Pan Am pilots’ seniority list to
fill the Captain and First Officer slots and the Pan Am flight
engineers’ list to fill the flight engineer slots. While some
of the Petitioners (those who were not “professional flight
engineers”) also held seniority positions on the Pan Am
pilots’ seniority list, that list was not considered in filling
the flight engineer slots on the Delta seniority list because
Petitioners were not eligible for hire as Captains or First
Officers but only as flight engineers, and only the Pan Am
flight engineers’ seniority list contained all Pan Am flight
engineers.

The order in which the Pan Am pilots and flight
engineers filled the slots created for them on the Delta pilots’
seniority list (like the creation of the slots themselves) made
little difference to Delta. If Pan Am and its two unions had
created a single seniority list that included all Pan Am cockpit
personnel, pilots and flight engineers, Delta would have used
that list in filling the slots created for the Pan Am cockpit
personnel on the Delta pilots’ seniority list. However, Pan
Am could not get its pilots and flight engineers to agree to a
single seniority list for all Pan Am cockpit personnel. Delta
thus used the two lists provided by Pan Am to determine the

OI OI PE TE Tg

9

order of both hiring and placing the Pan Am cockpit
personnel on the Delta pilots’ seniority list.

The APA did not “require[{ ] Delta to give Pan Am
cockpit personnel written notice ... of the terms and
conditions upon which offers of employment would be
made,” as Petitioners assert. Pet. 3; see also id. at 5 n.3.
Instead, the APA actually stated that Delta “shall advise
Sellers [i.e., Pan Am] in writing of the material terms and
conditions upon which offers of employment to the selected
Sellers’ employees will be made.” APA, J 5.9(c)(i)(B). Delta
did that. The supplemental collective bargaining agreement
between Delta and ALPA was signed on August 30, 1991,
before any Pan Am cockpit personnel was offered
employment or hired by Delta.

B. The District Court’s Decision

In responding to Delta’s summary judgment motion,
Petitioners alleged that Delta discriminated against them on
the basis of their ages by agreeing with ALPA to offer them
positions on the Delta pilots’ seniority list according to their
seniority rankings on the Pan Am flight engineers’ seniority
list. Petitioners argued that Delta should have done what
they had been unable to do at Pan Am — combine the two
separate Pan Am seniority lists, by either date of hire at Pan
Am or its predecessors or by date of birth, and then use that
new Delta-created list to fill the slots created for the Pan
Am cockpit personnel on the Delta seniority list. Petitioners
argued that Delta’s failure to combine Pan Am’s two separate
seniority lists was due to its “age bias” against the Pan Am
flight engineers.

10

Lacking evidence of discriminatory treatment,
Petitioners attempted to avoid summary judgment by
arguing, based on certain handwritten notes taken out of
context, that Captain Harry C. Alger, Delta’s then-Vice
President of Flight Operations, was allegedly “biased”
against older airmen. Captain Alger was one of several Delta
officers who approved, on behalf of the company, the final
seniority integration methodology negotiated between Delta
and ALPA. Those same notes, however, were found by the
Second Circuit to be inadequate to defeat summary judgment
in Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105
(2d Cir.) (per curiam), cert. denied, 118 S. Ct. 626 (1997),
which was an age discrimination claim filed by a purported
class of Pan Am pilots who were 55 years of age and older
and were not hired by Delta in connection with the 1991
asset acquisition. Petitioners’ reliance on those notes in an
attempt to show age discrimination made even less sense in
this case because: (1) the notes had nothing to do with
seniority placement; (2) all Petitioners were hired by Delta;
and (3) the seniority placement itself actually favored older
airmen over younger airmen within the respective groups of
pilots (Captains and First Officers) and flight engineers.

The district court granted Delta’s motion for summary
judgment dismissing Petitioners’ age discrimination claims.
Adams v. Delta Air Lines, Inc., 1997 WL 620823 (S.D.N.Y.
Oct. 8, 1997). It is not true, as Petitioners repeatedly assert,
that the district court dismissed their age discrimination
claims “notwithstanding Petitioners’ direct evidence of age-
based discriminatory animus” merely because they could not
“establish any adverse age-related effect” resulting from the
integration methodology. Pet. 10, 11. Although the district
court criticized Petitioners for failing to present any evidence

BAO Ne BR BI ne, Cn climb

1]

to support their assertion that they had been harmed based
on where they had been placed on the Delta pilots’ seniority
list, the district court ultimately dismissed their claims
because they could not show any connection or link between
Captain Alger’s alleged “‘age bias” and any adverse action
against them on the basis of their ages. See, e.g., Adams,
1997 WL 620823, at *4 (“What [Petitioners] fail to show,
however, is a connection between the integration
methodology adopted by Captain Alger (crediting
[Petitioners] with the inference that Captain Alger
unilaterally changed the [supplemental collective bargaining
agreement]) and age-based bias.”); id. at *4 n.9
(“[Petitioners] 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.”).

C. The Second Circuit’s Decision

Petitioners appealed the district court’s dismissal of their
age discrimination claims to the Court of Appeals for the
Second Circuit. In an unpublished opinion filed on February
19, 1999, a panel of the Second Circuit unanimously affirmed
the district court’s grant of summary judgment dismissing
Petitioners’ age discrimination claims. 175 F.3d 1007
(2d Cir. 1999) (per curiam); Petitioners’ Appendix, 3-4. The
Second Circuit did not hold, as Petitioners mistakenly assert,
that “direct evidence of discriminatory animus on the part
of a primary decision-maker” is “insufficient to raise an
inference of discriminatory motive.” Pet. 12. The Second
Circuit also denied Petitioners’ motion for rehearing and
suggestion for rehearing en banc.

12

REASONS FOR DENYING THE WRIT
A. The Second Circuit’s Decision Was Correct.

The ADEA makes it unlawful for an employer to
discriminate against an individual “with respect to his
compensation, terms, conditions, or privileges of
employment[ | because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). Age discrimination laws were designed to
prevent discrimination on the basis of stereotypes about age.
Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)
(the ADEA is designed to combat discrimination against
older workers “on the basis of inaccurate and stigmatizing
stereotypes” — i.e., that “productivity and competence
decline with old age.”). Age discrimination laws, however,
do not require an employer to give older employees
preferential treatment. See, e.g., Parcinski v. Outlet Co., 673
F.2d 34, 37 (2d Cir. 1982) (“The ADEA does not require an
employer to accord special treatment to employees over forty
years of age.”’), cert. denied, 459 U.S. 1103 (1983).

Each of the 71 plaintiffs alleged that Delta discriminated
against him on the basis of his age when it offered him
employment as a B-727 Second Officer with a position on
the Delta pilots’ seniority list among existing Delta Second
Officers in the bottom portion of the Delta pilots’ seniority
list. While not challenging the location of the slots that were
created for the Pan Am pilots and flight engineers on the
Delta pilots’ seniority list, Petitioners complain about Delta’s
failure to re-order Pan Am’s separate pilot and flight engineer
seniority lists into one list, arguing that if that had been done
some of them would have filled higher slots occupied by

Pan Am pilots.

13

1. The District Court Correctly Dismissed Petitioners’
Age Discrimination Claims Under the McDonnell
Douglas Burden Shifting Formula.

The district court correctly dismissed Petitioners’ age
discrimination claims when analyzed under the McDonnell
Douglas* burden shifting framework, which was the only
approach argued by the Petitioners in the district court.
As an initial matter, Petitioners failed to establish a prima
facie case of age discrimination based on the order in which
the Pan Am cockpit personnel were placed into the slots
created for them on the Delta pilots’ seniority list. To make
out a prima facie case, as the district court correctly stated,
Petitioners were required to show, among other things, that
they suffered an “adverse employment action,” and that the
action occurred “under circumstances giving rise to an
inference of [age] discrimination.” Adams, 1997 WL 620823,
at *3 (citing Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d
Cir. 1994)). This Court has emphasized that a “prima facie
case [under the ADEA] requires ‘evidence adequate to create
an inference that an employment decision was based on a[n]
[illegal] discriminatory criterion. ...’” O'Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308, 312 ( 1996)
(emphasis in opinion) (quoting Teamsters v. United States,
431 U.S. 324, 358 (1977)). Petitioners have not and cannot
come forward with evidence to create such an inference.

Petitioners claim that Delta discriminated against them
on the basis of their ages by agreeing with the existing Delta
pilots, through ALPA, to use the Pan Am flight engineers’

4. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

14

seniority list to fill the slots created for the Pan Am flight
engineers on the Delta pilots’ seniority list. Petitioners,
however, cannot show that the use of the two Pan Am
seniority lists to fill the slots for the respective cockpit
positions “giv[es] rise to an inference of discrimination.”
It is undisputed that use of the two Pan Am seniority lists
within the relevant groups (pilots and flight engineers)
ensured that the most favorable treatment generally went to
the oldest members of each group.

Petitioners’ argument, then, is that by using the separate
Pan Am seniority lists for pilots and flight engineers, the
agreement negotiated between Delta and ALPA treated older
Pan Am pilots more favorably than it treated older Pan Am
flight engineers. Even if the agreement treated older Pan Am
pilots more favorably than it treated older Pan Am
flight engineers, that fails to give rise to an inference of
“age discrimination,” since it is undisputed that the two
groups had a roughly equivalent proportion of members
throughout the age spectrum. Indeed, the 690 Pan Am pilots
hired by Delta were, on average, older than the 84 Pan Am
flight engineers hired by Delta. The difference in treatment
between Pan Am pilots and Pan Am flight engineers was
obviously not age, since both groups had roughly equivalent
proportions of members throughout the age spectrum, but
position.

As the district court correctly observed, Petitioners “have
failed to show how that [the seniority placement]
methodology was age-biased (as opposed to ‘Flight
Engineer’ biased).” Adams, 1997 WL 620823, at *2 n.7. The
Second Circuit reached a similar conclusion in Bovers v.
Flying Tiger Line, Inc., 979 F.2d 291, 297-98 (2d Cir. 1992),
where it affirmed a summary judgment dismissing an ADEA

15

challenge to the integration of two air Cargo companies’
seniority lists because “the motivating distinction” between
the treatment of cockpit personnel on the integrated list “was
the airline of origin,” not age.

Petitioners complain that the final version of the
supplemental collective bargaining agreement, which set
forth the agreed upon seniority integration methodology,
“radically altered” (Pet. 5) earlier unsigned, draft versions
of the collective bargaining agreement, and that Delta’s
Captain Alger “had planned to and did unilaterally change”
the seniority integration methodology. /d. at 6. This is not
true. First, the APA between Pan Am and Delta obligted
Pan Am to provide Delta with the seniority order of the
cockpit personnel to be hired by Delta. APA, 94 5.9(a),(h)(i).
Delta and ALPA recognized this fact by including in every
draft and the final version of the supplemental collective
bargaining agreement that Delta would fill the slots created
for the Pan Am cockpit crewmembers on the Delta list
“in the seniority order as defined by Pan American World
Airways, Inc., and as conveyed to [Delta].” Earlier drafts
included a default provision that stated if Pan Am failed to
provide any seniority rankings and Delta was left without
any way to rank the Pan Am cockpit personnel, Delta would
use their dates of birth.’ The default provision was removed

5. Re-ordering the Pan Am cockpit personnel by date of birth
would have had the effect of completely scrambling the relative
seniority rankings of both pilots and flight engineers, since neither
the Pan Am pilots’ seniority list nor the Pan Am flight engineers’
seniority list was based on a date of birth ordering and both had
been constructed by an arbitration award (which is described in detail
in Cook v. Pan American World Airways, Inc., 647 F. Supp. 816,
818-21 (S.D.N.Y. 1986), aff'd, 817 F.2d 1030 (2d Cir. 1987)),
following the merger of Pan Am and National Airlines, Inc. in 1980.

16

during the drafting process after it became unnecessary, i.e.,
after Pan Am provided its seniority rankings in the form of
two seniority lists, one for pilots and one for flight engineers.

Second, neither Delta nor Captain Alger had the right
or the ability to impose “unilaterally” (Pet. 6) a seniority
integration methodology on the Delta pilots’ union, ALPA.
The seniority integration methodology contained in the
supplemental collective bargaining agreement between Delta
and ALPA was the product of the collective bargaining
process. Significantly, although ALPA also was named as a
defendant, Petitioners have asserted no substantive claim
against it.° Petitioners’ evidence of alleged personal
“age bias” on the part of Captain Alger, even if taken as
true, is thus completely irrelevant. The fatal defect in
Petitioners’ age discrimination claims, the district court
correctly held, was Petitioners’ inability to show any
connection or link between their evidence of alleged “age
bias” and any adverse action taken against them on the basis
of their ages. Adams, 1997 WL 620823, at *4.

Even assuming, arguendo, that each Petitioner had
established a prima facie case of intentional age
discrimination, such proof merely would have created a
rebuttable presumption of discrimination that Delta could
dispel by articulating a legitimate, non-discriminatory reason
for its actions. St. Mary's Honor Ctr. v. Hicks, 509 U.S. at
510-11. Delta easily met this burden by presenting

6. The district court ordered that ALPA be joined as a
defendant, pursuant to Fed. R. Civ. P. 19(a), because “ALPA has
an interest in the validity and construction of the collective
bargaining agreements which it negotiated and to which it is a
signatory,” and because “ALPA’s presence may be necessary to
protect the interests of its members who are not parties to this action.”

17

undisputed evidence demonstrating that it filled the slots
created for the Pan Am cockpit personnel on the Delta pilots’
seniority list using the two Pan Am seniority lists because:

(1)

(2)

bee i wine,

(3)

(4)

Delta had agreed in the APA with Pan Am (APA,
19 5.9(a),(h)(i)), as well as in every draft and the
final version of the supplemental collective
bargaining agreement with its existing pilots, to
follow Pan Am’s determination of seniority.

Early drafts of the supplemental collective
bargaining agreement provided that if Pan Am
failed to provide any seniority rankings to Delta,
then Delta and ALPA would fill the slots on the
Delta pilots’ seniority list using the dates of birth
of the Pan Am cockpit personnel. Pan Am, however,
provided two seniority lists, thus making the “date
of birth” default provision in the unsigned draft of
the supplemental collective bargaining agreement
inapplicable.

A majority of the Pan Am flight engineers hired by
Delta were “professional flight engineers” who held
no position on the Pam Am pilots’ seniority list.
Thus, the only existing Pan Am seniority list that
could be used to fill the flight engineer slots was
the Pan Am flight engineers’ seniority list.

Delta’s and ALPA’s use of the Pan Am flight
engineers’ seniority list to fill flight engineers slots
placed Petitioners, who were hired as B-727 Second
Officers (flight engineers), among Delta pilots
holding the same cockpit position.

18

(5) Combining the Pan Am pilot and flight engineer
seniority lists and using such a new combined list
to fill the slots would have required Delta to do what
Pan Am and its two unions could not or would not
do — reach an agreement on how to merge the two
separate seniority lists — and would have reduced
the seniority positions of similarly aged Pan Am
Captains and First Officers relative to Delta
Captains and First Officers.

Petitioners expressly conceded in the district court that
Delta had articulated legitimate, non-discriminatory reasons
for why it used the two Pan Am seniority lists to fill the
slots. Adams, 1997 WL 620823, at *3. Delta’s legitimate,
non-discriminatory explanation for why it used the two Pan
Am seniority lists destroyed any inference of discrimination
that would have arisen if Petitioners had been able to

establish a prima facie case. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981).

Once a defendant articulates a legitimate, non-
discriminatory reason for its action, the plaintiff must “prove
by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons,
but were a pretext for discrimination.” Burdine, 450 US. at
253. The Court explained in Hicks that the articulated “reason
cannot be proved to be ‘a pretext for discrimination’ unless
it is shown both that the reason was false, and that
discrimination was the real reason.” Hicks, 509 U.S. at 515
(emphasis in opinion) (quoting Burdine, 450 U.S. at 253).

With regard to Petitioners’ first burden, there is no
evidence that any reason Delta has articulated for the use of
the two Pan Am seniority lists is false. Petitioners made no

19

effort to dispute Delta’s evidence that the slots created for
the Pan Am cockpit personnel on the Delta pilots’ seniority
list were filled as they were for the reasons stated above.

With regard to Petitioners’ second burden in proving
pretext, there is no evidence that Delta was actually motivated
to discriminate against Petitioners because of their ages by
agreeing with ALPA to use the Pan Am flight engineers’
seniority list to fill the flight engineer slots on the Delta
pilots’ seniority list. The APA required Delta to defer to Pan
Am’s determination of seniority. Moreover, there would be
no benefit to Delta in the manner in which Petitioners were
placed on the pilots’ seniority list. Delta gained nothing by
the placement of Pan Am flight engineers above or below
Pan Am pilots. Bidding seniority only matters to those bid
against. As far as Delta was concerned, the order in which
the Pan Am cockpit personnel were placed on the Delta
pilots’ seniority list was a “zero sum” process.

Petitioners’ argument, reduced to its essence, is that
Delta engaged in unlawful age discrimination by not ignoring
all seniority rankings at Pan Am. Petitioners claim that Delta
should have unilaterally reordered the Pan Am pilots and
flight engineers by date of birth, and then used that new order
to fill all slots on the Delta pilots’ seniority list, despite the
wishes and protestations of the Pan Am pilots or ALPA.

For Delta to have attempted to create and use a combined
Pan Am seniority list, where Pan Am, ALPA, and the FEIA
had been unable to do so, would have disadvantaged similarly
aged Pan Am Captains and First Officers and would have
caused turmoil. If Delta had created and imposed a combined
Pan Am seniority list based on date of birth or date of hire at
Pan Am or its predecessors, some Petitioners would have

20

been placed higher on the Delta pilots’ seniority list, and
above or among some of the Pan Am pilots. This would have
resulted in some of the oldest and most senior Pan Am flight
engineers, who could not serve as pilots, being slotted among
Delta’s existing Captains and First Officers. As a
consequence, some Pan Am pilots hired as Captains and First
Officers would have been bumped down the Delta seniority
list, reducing their ability to compete against original Delta
pilots in bidding for the cockpit positions they were hired
into once the three-year bidding restrictions were removed.’

The consequences of Petitioners’ claims on the other
Pan Am cockpit personnel confirm that this case involves
nothing more than an internal struggle for seniority slots
among former Pan Am pilots and flight engineers — a dispute
that pre-dates any involvement by Delta. Those former Pan
Am pilots whose seniority positions were targeted by
Petitioners would no doubt claim that they should have higher
slots than Petitioners because they were in a recognized
higher category — i.e., they were hired as pilots (Captains
and First Officers) and Petitioners were not. Regardless of

7. If Delta had placed the Petitioners in this case higher on the
seniority list, as they now demand, it is likely that those Pan Am
pilots whom they displaced would have attempted to assert their
own claims against Delta for violating the supplemental collective
bargaining agreement and disregagding the two Pan Am seniority
lists. While those claims might have been as equally lacking in merit
as Petitioners’ claims here, the very nature of employee seniority
rights frequently generates litigation. See Ford Motor Co. v.
Huffman, 345 U.S. 330, 338 (1953) (“Inevitably differences arise
in the manner and degree to which the terms of any negotiated
agreement [on seniority] affect individual employees and classes of
employees. The mere existence of such differences does not make
them invalid. The complete satisfaction of all who are represented
is hardly to be expected.”).

21

the respective merits of the squabble, it has nothing to do
with Delta or age discrimination. Petitioners’ real motive in
filing this lawsuit was not to complain about alleged “age
discrimination,” but to try to use such a claim to achieve at
Delta what their union, the FEIA, had been unable to do in
negotiations with ALPA and Pan Am — merge the separate
pilot and flight engineer seniority lists to their advantage.®

Because there is no age discrimination in this Case,
Petitioners’ alleged evidence of “age bias” is irrelevant. Thus,
the district court correctly dismissed Petitioners’ age
discrimination claims, and the Second Circuit correctly
affirmed.

2. Petitioners Have No Direct Evidence of Age
Discrimination and This Not a “Mixed Motive”
Case Under Price Waterhouse.

In their Petition, Petitioners repeatedly argue that they
presented “direct evidence” of age discrimination. See, é.g.,

8. Petitioners’ use of an “age discrimination” theory is not a
new tactic. Ironically, it has been tried before by Pan Am pilots,
unsuccessfully, in Cook v. Pan American World Airways, Inc., 647
F. Supp. 816 (S.D.N.Y. 1986), aff'd per curiam, 817 F.2d 1030
(2d Cir. 1987). In Cook, certain Pan Am pilots mounted a challenge
under the ADEA to the Pan Am integrated seniority lists for pilots
and flight engineers at Pan Am after Pan Am’s merger with National
Airlines, Inc. in 1980. As a result of that merger, all cockpit
crewmembers, pilots and flight engineers, became Pan Am cockpit
crewmembers. The plaintiffs claimed in Cook, like the Petitioners
in this case, that they were victims of “age discrimination” because
they were not ranked as high as they would have liked on the
integrated seniority lists for pilots and flight engineers at Pan Am.
The district court in Cook granted the defendants’ motion for
summary judgment and dismissed the plaintiffs’ age discrimination
claims, and the Second Circuit affirmed.

22

Pet. i, 6, 10, 11, 12, 16, 17. Petitioners’ use of the term “direct
evidence” is apparently meant to refer to the Price
Waterhouse’ mixed-motive analysis. The district court did
not rule on whether Petitioners had made out a case of age
discrimination under a Price Waterhouse mixed-motive
approach because Petitioners never raised this argument in
the district court. Petitioners have waived this argument, and
they may not raise it for the first time on appeal. See Singleton
v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of
course, that a federal appellate court does not consider an
issue not passed upon below.”).

Even if Petitioners had properly preserved this issue for
appeal, the district court’s summary judgment order was still
correct. Since Petitioners could not come forward with
enough evidence to defeat Delta’s motion under the
McDonnell Douglas approach, they certainly did not come
forward with enough evidence to shift the burden of proof
to Delta under the more onerous Price Waterhouse mixed-
motive approach.

In Price Waterhouse, this Court dealt with a mixed-
motivation case, in which the plaintiff offered evidence,
credited by the district court as factfinder, that a forbidden
reason played a motivating role in the adverse employment
decision. 490 U.S. at 235 (plurality opinion). The defendant
presented evidence, also credited by the district court, that it
also had legitimate concerns about the plaintiff’s
interpersonal skills. A majority of this Court concluded that
if the plaintiff in a Title VII suit can establish that a prohibited
discriminatory factor played a “motivating part” in the
challenged employment decision, the defendant, in order to

9. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

23

avoid liability, has the burden of proving “by a preponderance
of the evidence that it would have made the same decision”
even if it had not taken the discriminatory factor into account.
Id. at 258 (plurality opinion); see id. at 259-60 (White, J.,
concurring); id. at 261 (O’Connor, J., concurring). As the
Second Circuit has made clear, “Price Waterhouse is thus a
defense.” Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171 ;
181 (2d Cir. 1992).

Here, Petitioners presented no “direct evidence” of age
discrimination. Captain Alger had neither the right nor the
ability to impose any seniority integration methodology on
the Delta pilots or their union. Moreover, the Asset Purchase
Agreement between Delta and Pan Am, and every draft of
the supplemental collective bargaining agreement between
Delta and ALPA as well as the final, Signed agreement,
provided that Delta was obligated to follow the seniority
rankings as determined by Pan Am and as conveyed to Delta.
The only relevant conduct or action was by Pan Am in
furnishing Delta with separate seniority rankings for pilots
and flight engineers. Even if Captain Alger were biased
against older airmen, and he is not'', there simply was no

10. Direct evidence of discrimination is evidence which, if
believed, would prove without inference or presumption that the
affected employees were discriminated against. Tyler v. Bethlehem
Steel Corp., 958 F.2d 1176, 1183 (2d Cir.), cert. denied, 506 U.S.
826 (1992); Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th
Cir. 1990); Jackson v. Harvard Univ., 900 F.2d 464, 467 (lst Cir.),
cert. denied, 498 U.S. 848 (1990).

11. Although irrelevant for the reasons stated in the text, the
comments in Captain Alger’s notes do not reflect age bias. Captain
Alger took these notes during a meeting with his counterpart at Pan

(Cont'd)

24

decision that he made, or action that he took, that even
arguably could be called “age discrimination.”

Thus, neither the district court nor the Second Circuit
held that Petitioners had presented “direct evidence” of age
discrimination. Instead, the district court held that
Petitioners’ inability to show any connection or link between
Captain Alger’s alleged “age bias” and any adverse action
taken against them on the basis of their ages doomed their
“age discrimination” claims. Adams, 1997 WL 620823, at
*4. The Price Waterhouse “mixed motive” approach, even
if properly preserved for appeal, does not apply. As the

(Cont’d)

Am, Captain Daniel J. Affourtit, Jr., as part of Delta’s initial fact-
finding investigation of whether it should pursue a transaction with
Pan Am. There is no dispute that during this meeting Captain
Affourtit did the talking and Captain Alger merely listened and took
notes. Captain Alger testified, “I’m taking notes . . . from listening
to my counterpart.” Captain Affourtit similarly testified that during
this meeting he told Captain Alger “about Pan Am and its pilots and
its facilities” and Captain Alger “took notes.” Notwithstanding
Captain Alger’s notes, Delta agreed to pursue the transaction, agreed
to hire qualified Pan Am flight engineers “in seniority order” (thus
assuring that the most senior Pan Am flight engineers would be
hired), and agreed with ALPA to place the Pan Am flight engineers
on the Delta pilots’ seniority list according to their flight engineer
seniority at Pan Am (again assuring that the most senior flight
engineers would receive the most favorable treatment). Moreover,
the relative ranking of the Pan Am pilots and flight engineers on the
Delta pilots’ seniority list was an internal Pan Am issue rather than
a concern of Captain Alger or Delta. Thus, the district court did not
need to reach the issue of Captain Alger’s alleged “age bias” to
grant Delta’s motion for summary judgment, nor did the Second
Circuit need to reach this issue to affirm.

25

Second Circuit stated in Ostrowski, “[t]he Price Waterhouse
issue does not arise for the trier of fact until the plaintiff has
carried the burden of persuading the trier that the forbidden
animus was a motivating factor in the employment
decision. . . .” 968 F.2d at 181; see also Raskin v. Wyatt Co.,
125 F.3d 55, 60 (2d Cir. 1997) (“To warrant a Price
Waterhouse burden shift, the plaintiff must initially show
that an impermissible criterion was in fact a ‘motivating’ or
‘substantial’ factor in the employment decision.”) (quotations
omitted). No such evidence was presented.

Petitioners’ problem under the McDonnell Douglas
approach was that they had no evidence that the conduct
complained of (Delta’s agreement to use the Pan Am flight
engineers’ seniority list to fill flight engineer slots) was age-
based. Having failed in this effort, they certainly have not
come forward with sufficient evidence to shift the burden of
proof to Delta under the Price Waterhouse “mixed motive”
approach.

B. No Issue Worthy of the Court’s Certiorari Review is
Presented by the Petition.

Petitioners argue that the Second Circuit’s unpublished
per curiam opinion in this case “is in direct conflict with the
decisions of several United States Courts of Appeals.” Pet.
12. The predicate for this argument is Petitioners’ assertion
that the Second Circuit “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.” /d.

As demonstrated above, the Second Circuit neither held
nor stated that “direct evidence of discriminatory animus on

26

the part of a primary decision-maker” for a defendant
employer is “insufficient to raise an inference of
discriminatory motive.” As a result, the Second Circuit’s
opinion is not in conflict with the decisions of other United
States Circuits Courts of Appeals discussed in the Petition
(13-16).

Petitioners argue that if the Second Circuit’s decision is
allowed to stand, “the civil rights laws enacted for the
protection of workers in this country will be effectively
nullified.” Pet. 17-18. This is sheer hyperbole. Petitioners
are merely disappointed with the outcome of this case and
have attempted to concoct a circuit conflict where none exists
by misstating the Second Circuit’s holding.

No novel, unique, or disputed issue of law is presented
by the Petition. At most, Petitioners are merely complaining
about the Second Circuit’s analysis of the particular facts
involved in this case. This Court has stated: “We do not grant
a certiorari to review evidence and discuss specific facts.”
United States v. Johnston, 268 U.S. 220, 227 (1925);
see Texas v. Mead, 465 U.S. 1041 (1984) (Stevens, J.).
Indeed, this Court has indicated that it is even less likely to
review a case where, as here, the factual analysis and
conclusion of the district court has received the concurrence
of the court of appeals. In that situation, the Court has often
stated that it is not “a court for correction of errors in fact
finding,” and that it “cannot undertake to review concurrent
findings of fact by two courts below in the absence of a very
obvious and exceptional showing of error.” Graver Tank &
Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275 (1949);
accord Goodman v. Lukens Steel Co., 482 U.S. 656, 665
(1987); NCAA v. Board of Regents, 468 U.S. 85, 98 n.15
(1984); Rogers v. Lodge, 458 U.S. 613, 623 (1982). Here,

27

the district court and the Second Circuit have both concluded
that Petitioners have failed to come forward with evidence
that Delta discriminated against them because of their ages.
Such “a very obvious and exceptional showing of error” is
not present in this case.

CONCLUSION

For all the foregoing reasons, the Petition for a Writ of
Certiorari should be denied.

Respectfully submitted,

THOMAS C. MUNGER WILLIAM H. Boice
Tuomas C. FRENCH Counsel of Record
Law DEPARTMENT STEPHEN E. Hupson
DELTA AR Lines, INc. KILPATRICK STOCKTON LLP
Hartsfield Atlanta Suite 2800

International Airport 1100 Peachtree Street
Atlanta, Georgia 30320 Atlanta, Georgia 30309-4530
(404) 715-2600 (404) 815-6500

Attorneys for Respondent

Delta Air Lines, Inc.

APPENDIX

eee een eee er Oe PE ————

la

APPENDIX A — ASSET PURCHASE AGREEMENT
DATED JULY 27, 1991

ASSET PURCHASE AGREEMENT

AMONG
PAN AM CORPORATION,
PAN AMERICAN WORLD AIRWAYS, INC.
PAN AM SHUTTLE, INC.
AND

DELTA AIR LINES, INC.

JULY 27, 1991

2a

Appendix A
ASSET PURCHASE AGREEMENT

ASSET PURCHASE AGREEMENT dated July 27, 1991
among Pan Am Corporation, a Delaware corporation
(“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
corporation (“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 applicable
Seller), and Delta Air Lines, Inc., a Delaware corporation
(“Buyer”).

2.1.(b) Aircraft. Subject to obtaining the
consent of the lessors, sublessors or mortgagees
with respect thereto, up to 9 Boeing 727 aircraft
listed on Asset Schedule 2.1(b)(i) (provided that
if for any reason (including the failure to obtain
any consent of a lessor, sublessor or mortgagee),
Sellers are unable to deliver any of such aircraft
designated by Buyer at the Closing free and clear
of all Liens other than Permitted Liens, Buyer may
at its option either substitute for such aircraft any
other aircraft listed on Asset Schedule 2.1(b)(11)
or eliminate without replacement such aircraft
from the Shuttle Aircraft to be delivered at
Closing; and provided, further, that in the event
Buyer is unable to obtain the five B727 aircraft

ne ee Cee Seen ee

3a

Appendix A

owned by Continental Airlines, Inc. that were
formerly used in the Shuttle Service, Buyer may
select up to 5 additional Aircraft listed on Asset
Schedule 2.1(b)(ii) if the transfer of such
additional aircraft (x) is not materially
inconsistent with Sellers’ ability to operate after
the Closing, as presently contemplated and
advised to Buyer in writing not later than August
15, 1991, and (y) does not materially delay the
Closing with respect to the Shuttle Assets) fully
equipped for revenue use and Federal Aviation
Regulations Part 121 operations, in airworthy
condition (except to the extent any such aircraft
are undergoing routine maintenance pursuant to
Sellers’ maintenance program) and, subject to
Section 5.21, in Sellers’ all economy shuttle
configuration (the “Shuttle Aircraft”), including
the documents specified in Asset Schedule
2.1(b)(ii1);

2.2.(b) Aircraft. Subject to obtaining the
consent of the lessors, sublessors or mortgagees
with respect thereto, the 21 Airbus A310 aircraft
identified on Asset Schedule 2.2(b)(i) and up to
10 Boeing 727 aircraft selected by Buyer from
the aircraft listed on Asset Schedule 2.2(b)(ii) and
Asset Schedule 2.2(b)(iii) (provided that (i) the
number of such Boeing 727 aircraft to be acquired
by Buyer and the identification by tail number of
such Boeing 727 aircraft shall be made by Buyer

4a

Appendix A

no later than September 15, 1991, and (ii) if for
any reason, (including the failure to obtain any
consent of a lessor, sublessor or mortgagee),
Sellers are unable to deliver their interest in any
of the Boeing 727 aircraft designated by Buyer at
the Closing free and clear of all Liens other than
Permitted Liens, Buyers may at its option either
substitute for such Boeing 727 aircraft any other
Boeing 727 aircraft listed on Asset Schedule
2.2(b)(ii) and Asset Schedule 2.2(b)(iii) or
eliminate without replacement such aircraft from
the Airways Aircraft to be delivered at Closing),
fully equipped for revenue use and Federal
Aviation Regulations Part 121 operations and in
airworthy condition (except to the extent any such
aircraft are undergoing routine maintenance
pursuant to Sellers’ maintenance program)
(the “Airways Aircraft”), whether owned, leased
or subleased, including all the documents
specified in Asset Schedule 2.1(b)(iii);

* * *

5.9. Employees. (a) As soon as practicable
and in any event within seven days after the date
hereof, Sellers shall provide to Buyer a list of all
employees in order of seniority and by location
and classification which list shall include the job
title, salary, status (i.e., whether the employee is
active or on furlough or leave of absence or other
status), employee number and date of hire of such
persons. Such list shall be accurate to the best of

Sa
Appendix A

Sellers’ knowledge and Seller shall supply on a
weekly basis all changes with respect to the
information set out therein. Sellers shall grant
time off during working hours to any employee
designated by Buyer to be interviewed, at times
reasonably designated by Buyer, for possible
employment.

5.9.(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,

(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 integration until
after the Transferred Employees have
been identified, in which case Buyer
will provide a description of Buyer’s
objectives and intentions with respect

6a
Appendix A

to seniority integration, as well as, a
description of the seniority integration
methodologies that Buyer is likely to
use.

5.9.(h)(i) Buyer will offer employment to at
least seven hundred (700) of Sellers’ pilots, who
must be fully trained and currently qualified in
the Boeing 727 or Airbus A-310 categories
(i.e., Airbus A-310 Captain, Boeing 727 Captain,
Airbus A-310 First Officer, Boeing 727 First
Officer, Boeing 727 Second Officer) as of
November 1, 1991 (subject to subsections
5.9(h)(ii) and (v) hereof), or such other date as
may be agreed upon in writing by Buyer and
Sellers, and who must meet all of Buyer’s
standards and requirements for pilots, including
without limitation medical requirements, in order
to be eligible for consideration by Buyer
hereunder. Subject to subsections 5.9(h)(iii) and
(vii), Sellers’ pilots who meet such requirements
will be offered employment with Buyer in
seniority order by category. Except as provided
in subsection 5.9(h)(ii), such offers shall be for
employment effective upon the Closing. Buyer
shall determine in its sole discretion the number
of Sellers’ pilots in each such category to whom
Buyer will offer employment.

* * *

| reenactment

7a

Appendix A

(vi) Buyer will meet with Sellers’ pilots, as
represented by ALPA and FEIA, at such times and
locations as are determined by Buyer before entering
into the agreement described in Section 6.11 hereof,
in order to receive input and to help Buyer
understand the issues considered by Sellers’ pilots,
as represented by ALPA and FEIA, to be significant
with respect to such agreement, including the
methodology for seniority integration. Buyer shall
not be required to obtain the consent or agreement
of Sellers’ pilots, as represented by ALPA and FEIA,
or of Sellers, as a condition to entering into the
agreement described in Section 6.11 or as a condition
to taking any other action pursuant to or in
connection with this Agreement. It is expressly
understood that this provision shall not create any
contractual or other rights in favor of Sellers’ pilots,
as represented by ALPA and FEIA or otherwise, or
any individual pilot, it being the sole purpose of this
provision to allow Sellers’ pilots, as represented by
ALPA and FEIA, to present their views to Buyer.

* * *

6.11. Labor Agreements. Buyer shall have
reached agreement with the Buyer’s pilots, as
represented by ALPA, concerning the terms and
conditions upon which the offers of employment
referred to in Section 5.9 hereof will be made to
Sellers’ pilots, including without limitation the
methodology for determining seniority integration.

* * .

8a

Appendix A

IN WITNESS WHEREOF, the undersigned have caused
this Agreement to be executed as of the date first above
written.

DELTA AIR LINES, INC.

BY: /s/ Ronald W. Allen
Name: Ronald W. Allen
Title: Chairman and Chief

Executive Officer

ATTEST:
Name:

PAN AMERICAN WORLD
AIRWAYS, INC.

BY: /s/ T. G. Plaskett
Name: Thomas G. Plaskett
Title: Chairman and Chief
Executive Officer

ATTEST:

Name:

9a

Appendix A
PAN AM SHUTTLE, INC.

BY: /s/ T. G. Plaskett
Name: Thomas G. Plaskett
Title: Chairman and Chief
Executive Officer

ATTEST:
Name:

PAN AM CORPORATION

BY: /s/ T.G. Plaskett
Name: Thomas G. Plaskett
Title: Chairman and Chief
Executive Officer

ATTEST:

Name:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0661%3A2. Public record. Not legal advice.