Petition for Writ of Certiorari — Brownlee v. Lear Siegler Management Services Corp.

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| Supreme Court, U.S.

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5.88 1788 MAY - 5 1994,

OFFICE OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1993

HARRY E. BROWNLEE and ROY M. WADDELL, \

Petitioners,

vs.

LEAR SIEGLER MANAGEMENT SERVICES CORP.,

a foreign corporation,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION ad a WRIT OF CERTIORARI

FREDERICK W. SOUTHERN, jr.

Attorney for Petitioners

700 North Walker

Oklahoma City, OK 73102

(405) 236-3701 (Fax: 239-6825)

May 3, 1994

Any

\¥

gy VI

QUESTIONS PRESENTED FOR REVIEW

{ 1. Is an employer liable for the

discriminatory acts of a foreign

government where the employer de.legates

employment decisions to the foreign

government and has actual knowledge of age

discrimination by the foreign government?

2. When an employer has delegated

employment decisions to a foreign

government, does the foreign government

become the agent of the employer under the

Age Discrimination in Employment Act, and

will the acts of the foreign government

subject the employer to liability for

discriminatory acts of the foreign

government?

3. Where the United States

Government has reserved the exclusive

right to direct a contractor in the

performance of a contract, may the

a contractor circumvent the contractual

obligation so imposed by use of an

individual employment contract?

‘or

4. May a party in a trial deposition

introduce evidence through their own

witness and later attempt to exclude the

same evidence from trial through a Motion

in Limine?

ae eas eee

$ \ a see eb: ce.

OE ag. BO

iii

LIST OF PARTIES

The caption contains all of the

parties to the proceedings before the

United States Court of Appeals for the

Tenth Circuit and the United States

District Court for the Western District of

Oklahoma.

{ TABLE OF CONTENTS

Opinions Below ..-+-++-+«-e-reeeee 1

j Jurisdiction ....+++e-e«-ee-e. 2

Statutes and Constitutional

Provisions ...+++-+e«¢ee-e 4

Statement of the Case ....... 6

Reasons for Granting the Writ... 20

Denn» ¢.6¢e«-é¢«¢«*s <¢« 8s s * 31

TABLE OF AUTHORITIES

EEOC v. Gaddis,

733 F.2d 1373

(ieee Gees SOOO) ee ce eee th ee ew

Flosers v. Crouch-Walker Corp.,

552 F.2d 1277, 1282 (7th Cir. 1977) . 30

Hunter v. Allis-Chalmers Corp.,

re oe ee ae a ee a a

Jeter v. Boswell, 554 F. _—: 946, 952-53

Ce Se ee vee me

Kolb v. State of Ohio,

Dept. of Mental Ret. & Dev.,

721 F.Supp. 885 (N.D.Ohio 1989) ... 29

Lucero v. Beth Israel Hospital

& Geriatric Center,

479 F.Supp. 452, 455

(D.C@i0-. S779) «© 8c ee vorerevenvece

Miller v. Bank of America,

600 F.2d 211, 213 (9th Cir. 1979) .. 30

North v. Madison Area Ass'n,

844 F.2d 401, 407

(7am Cabs Beeer te eh we ew ew eww ol ew CS

Shager v. Upjohn Co.,

923 ¥.a0@ gee (7th Cis. 1990) ..-+- 2

Spirt v. Teachers Insurance and Annuity

Ass’n, 475 F.Supp. 1298, 1308 (S.D.N.Y.

1979), aff'd in relevant part,

691 F.26 1054 (2d Cir. 2962) .... 29

York v. Tennessee Crushed Stone Ass’n,

684 F.2d 360, 362 (6th Cir. 1982) .. 29

We ae eee cc he ee 8

28 U.S.C. §1291

28 U.S.C. $§ 1331,

1343(a)(4), 2201,

enG Byes sk se

29 U.S.C. § 621

29 U.S.C. § 623

29 U.S.C. § 626(c)

Rule 4(a), F.R.A.P.

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1993

oo,

HARRY E. BROWNLEE and ROY M. WADDELL,

Petitioners,

vs.

LEAR SIEGLER MANAGEMENT SERVICES CORP.,

a foreign corporation,

Respondent.

rice lage» OE aa

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners Harry E. Brownlee and Roy

M. Waddell respectfully pray that a Writ

of Certiorari be issued to review the

February 2, 1994, Order and Judgment of

the United States Court of Appeals for the

Tenth Circuit.

OPINIONS BELOW

The Order and Judgment of the United

States Court of Appeals for the Tenth

Circuit entered on February 2, 1994, is

reprinted as Appendix "A" hereto. This

Order and Judgment is reported at 15 F.3d

976 (10th Cir. 1994).

The Judgment of the United States

District Court for the Western District of

Oklahoma entered on February 24, 1993, is

reprinted as Appendix "C" hereto.

JURISDICTION

The Order and Judgment of the United

States Court of Appeals for the Tenth

Circuit was entered on February 2, 1994.

This Petition for Writ of Certiorari was

filed within ninety (90) days of the Order

and Judgment of the United States Court of

Appeals for the Tenth Circuit pursuant to

Rule 13.1 of the Rules of the Supreme

Court. This Court has jurisdiction

pursuant to 28 U.S.C. §1254(1).

The original action filed in the

United States District Court for the

Western District of Oklahoma was for

discrimination in employment in wilful

violation of the Age Discrimination in

Employment Act of 1967, as amended, 29

U.S.C. § 621 et seg., breach of written

contract of employment, and for

declaratory and injunctive relief, all for

which Petitioners timely demanded a jury

trial. Jurisdiction of the District Court

was based on 28 U.S.C. §§ 1331,

1343(a)(4), 2201, and 2202, and 29 U.S.C.

§ 626(c). The Judgment of the United

States District Court for the Western

District of Oklahoma entered on February

24, 1993, was a final order appealable of

right pursuant to 28 U.S.C. §1291. The

initial appeal was perfected in accordance

with Rule 4(a), F.R.A.P.

' STATUTES AND CONSTITUTIONAL PROVISIONS

The following provisions of federal

’ statutes are involved in the questions

presented by this Petition for Writ of

Certiorari.

29 U.S.C. § 623. Prohibition of age

discrimination.

(a) Employer practices.

It shall be unlawful for an

employer --

(1) to fail or

refuse to hire or to discharge

any individual or otherwise

discriminate against any

individual with respect to his

compensation, terms,

conditions, or privileges of

employment, because of such

individual’s age;

29 U.S.C. § 630. Definitions.

For the purposes of this act --

(b) The term “employer"

means a person engaged in an

industry affecting commerce who

has twenty or more employees

for each working day in each of

twenty or more calendar weeks

in the current or preceding

calendar year: Provided, That

prior to June 30, 1968,

, , employers having fewer’ than

fifty employees shall not be

considered employers. The term

' . also means (1) any agent of

such persos, and (2) a State or

political subdivision of a

State and any agency or

instrumentality of a State or

political subdivision of a

State, and any interstate

agency, but such term does not

include the United States, or a

corporation wholly owned by the

Government of the United

States.

ah 4 O52

“=. .?

STATEMENT OF THE CASE

The Petitioners are Harry E. Brownlee

and Roy M. Waddell, male citizens of the

United States and residents of the State

of Virginia (Brownlee) and the State of

Arizona (Waddell). Brownlee’s date of

birth is 1/8/38. Waddell’s date of birth

is 2/12/34.

This is a civil action for damages

brought by the Petitioners, Harry E.

Brownlee and Roy M. Waddell, male citizens

and residents of the United States,

against the Respondent, Lear Siegler

Management Services Corp., a Delaware

Corporation, for discrimination in

employment in wilful violation of the Age

Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. § 621 et _ segq.,

breach of written contract of employment,

and for declaratory and injunctive relief.

Petitioners were interviewed by

agents of LSI in Oklahoma City, Oklahoma,

and signed their employment contracts.

On 1/11/90 Brownlee entered into a

written standardized contract of

employment with LSI to perform services

for LSI under the Contract in Saudi Arabia

for the RSAF. Brownlee was employed by

LSI from 2/16/90 until his termination

from employment effective 8/15/90.

On 2/20/90 Waddell entered into a

written standardized contract of

employment with LSI to perform services

for LSI under the Contract in Saudi Arabia

for the RSAF. Waddell was employed by LSI

from 3/23/90 until his termination from

employment effective 8/15/90.

Brownlee and Waddell were fully

qualified for their positions, would have

been performing the duties of their

positions but for the improper acts of the

RSAF, were terminated from their

positions, and were replaced by younger

persons.

? Both Brownlee and Waddell relied on

the statements and representations of

? LSI’s agent when presented the written

contract for signature, including:

a. The contract was written in

both English and in Arabic,

allegedly in parallel

paragraphs;

b. The contract was adhesive and

not subject to negotiation or

modification in its terms or

conditions;

Cc. The contract was presented on a

“take it or leave it” basis;

d. The contract provided for a

thirty-six (36) month contract

term, raises, bonuses,

benefits, options and special

provisions for housing,

transportation, medical

examinations, probationary

period, specific contract

termination conditions, and

forum selection, jurisdiction,

venue, and applicable law

provisions;

e. The Arabic presentation was an

accurate translation of the

English contract.

Petitioners were not experienced in

contract negotiation or modification.

Petitioners relied heavily on _ LSI’s

agent’s statements and representations

that the contract was not subject to

modification and, that as a condition of

employment, they were required to sign and

accept the contract, both the English and

Arabic portions, as written.

Petitioners were assigned to work

with and under RSAF management. Upon

being introduced to the RSAF management,

Petitioners were confronted with the claim

of the RSAF management that they were "too

old" and were refused the opportunity to

enter the work station and refused the

opportunity to perform any of the job

duties.

This claim of the RSAF management

that Petitioners were "too old” was

repeated to other persons, including both

U.S. Government representatives and other

LSI employees. The RSAF management then

attempted to have the Petitioners removed.

The responsible U.S. Government

representative denied the request of the

RSAF management informing the RSAF

management that they had to have a reason

recognized under the individual employment

contracts.

The RSAF management then claimed that

the Petitioners were not qualified for

their positions and again attempted to

have the Petitioners removed.

The responsible U.S. Government

representative investigated the "not

qualified" claims of the RSAF management

and denied the claim finding that the

Petitioners were fully qualified for their

positions.

The RSAF management then claimed that

the Petitioners were not performing their

assigned duties.

The responsible U.S. Government

representative investigated the new claim

of the RSAF management and found that the

Petitioners were not performing their

assigned duties because the RSAF

management would not permit the

Petitioners into the assigned work station

and would not permit the Petitioners to

perform any duties at all. The

responsible U.S. Government representative

denied the claim informing the RSAF

management that they had to permit the

Petitioners access to the work station and

permit the Petitioners an opportunity to

perform their assigned duties.

The RSAF management persisted in

their refusal to permit the Petitioners to

enter the work station and refusal to

permit the Petitioners to perform any

duties, all in violation of the applicable

contracts and agreements between Saudi

Arabia, the U.S. Government, LSI, and the

individual employment contracts.

Petitioners wrote a letter to LSI

management on 5/22/90 requesting that LSI

intervene in the matter and seek a just

resolution.

Robert Winklepleck ("Winklepleck" )

was employed as the Respondent’s site

manager at Dhahran. The Director of Depot

Supply in 1990 (Saudi Royal Air Force) was

Lieutenant Colonel Misfer Al Ghamdi. The

Peace Hawk project officer in 1990 was

Lieutenant Colonel Abdullah A. Rajeh.

The first time Winklepleck was aware

of a problem for Petitioners was when he

was given a "back-door copy” of a letter

from Colonel Misfer to the Peace Hawk

project officer .stating that Colonel

Misfer wanted Petitioners terminated

because the Petitioners were "very poor in

their performance because of old age".

Winklepleck took a copy of the letter and

confronted Colonel Rajeh and asked him

what the letter was about. Colonel Rajeh

had his clerk retrieve a copy of the same

letter from his files and gave Winklepleck

a copy of his transmittal letter he had

written to the Chief Peace Hawk Officer in

Riyadh (Colonel Rajeh’s supervisor)

requesting Petitioners be terminated which

incorporated the letter from Colonel Al

Ghamdi to Colonel Rajeh by both reference

and by attachment (a copy of Colonel Al

Ghamdi’s letter was attached to Colonel

Misfer’s letter to the Chief Peace Hawk).

When Winklepleck questioned Colonel Rajeh

as to what this was all about, Colonel

Rajeh told Winklepleck that “they weren’t

qualified, Colonel Misfer said so, and

that was it." Winklepleck then faxed

copies of the two letters to the

Respondent’s head office in Riyadh.

Winklepleck attempted to talk with Colonel

Misfer Al Ghamdi about the situation and

was told "I’‘ll talk to you about anything

except them. It’s a closed issue.

They’re gone."

According to Winklepleck, the real

reason for Petitioners’ termination was

not because they were not qualified

“because everybody knew they were

qualified."

LSI, with knowledge of the facts and

circumstances and statements of RSAF

management that the Petitioners were "too

old", wholly failed, refused, or neglected

to intervene or assist the Petitioners in

violation of the applicable contracts and

agreements between Saudi Arabia, the U.S.

Government, LSI, the individual employment

contracts, and in wilful violation of the

ADEA.

LSI, rather than take appropriate

action in the Petitioners behalf, ordered

the Petitioners to leave Saudi Arabia on

very short notice and took action to have

their visas and work permits immediately

canceled.

As a result, Petitioners were forced

to leave Saudi Arabia quickly and their

individual employment contracts’ were

improperly terminated. No valid reason

for contract termination (as stated in the

written standardized employment contract)

was ever given to justify termination of

the Petitioners’ employment contracts.

In drafting the exculpatory

employment contracts, LSI knew or should

have known that the Petitioners would be

unable to enforce any rights as required

by Articles VII and VIII and would be

forced to leave Saudi Arabia on very short

notice, their visas and work permits

canceled, yet insisted on their inclusion

and applicability thus incorporating

unconscionable provisions in the

contracts.

Petitioners’ visas and work permits

were canceled and Petitioners were

compelled to leave Saudi Arabia on very

short notice with no right to remain even

if Petitioners wished to attempt to

litigate any matters in the courts of

Saudi Arabia.

Petitioners timely filed a Charge of

Discrimination with the Equal Employment

Opportunity Commission.

On 2/20/92 Petitioners timely filed

a lawsuit in the United States District

Court for the Western District of Oklahoma

and demanded a jury trial.

On 4/1/92, Respondent filed an Answer

to Petitioners’ Complaint.

On 10/7/92 the Respondent took the

trial deposition of their site manager

from Dhahran, Saudi Arabia, who would not

be present for the trial of this action,

in Tampa, Florida, pursuant to Notice from

the Respondent’s counsel. During this

deposition, Respondent’s introduced the

letter (Defendant’s Exhibit 3) from

Colonel Misfer to the Peace Hawk project

officer stating that Colonel Misfer wanted

the Petitioners terminated because the

Petitioners were "very poor in their

performance because of old age", which

constituted direct evidence of age

discrimination.

On 11/23/92 both Petitioners’ and

Respondent’s moved for partial summary

judgment and on 12/9/92 Petitioners and

Respondent responded to the respective

motions. Reply briefs were also filed by

both Petitioners and Respondent.

On 12/4/92 Respondent’s filed a

Motion In Limine and Brief In Support to

exclude, among other things, the letter

which was Defendant’s Exhibit 3 to the

Winklepleck deposition and on 12/21/92

Petitioners filed their Answer Brief To

Respondent’s Motion In Limine.

On 2/8/93 Petitioners iiled an

Application To Take fTelephonic Trial

Deposition of Alfred Leland Justice, the

Administrative Contracting Officer

responsible for administration and

enforcement of the LSI/USAF contract for

the United States Air Force in Saudi

Arabia. On 2/18/93 the Respondent’s

counsel withdrew his objection to the

taking of this deposition and the Court

was notified that the deposition would be

taken by agreement and furnished to the

Court. On 2/24/93, while counsel and a

court reporter were waiting for the

deponent to return a telephone call for

his telephonic deposition, counsel were

notified by the Court that the Court had

sustained the Respondent’s Motion in

Limine and had granted the Respondent’s

Motion for Summary Judgment.

On 2/24/93 the Court entered an Order

granting Respondent’s Motion For Summary

Judgment and denying Petitioners’ Motion

For Partial Summary Judgment, and entered

Judgment in this action.

Petitioners appealed the Judgment

entered by the District Court.

The Court of Appcals for the Tenth

ey ae ee te ee

AL See Pe se

2 e Uae er Zz rye

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2 eb ig i,

Circuit affirmed the decision of the Trial

Court on Respondent’s Motion In Limine and

the Trial Court’s entry of Summary

Judgment for the Respondent.

It is from this latter holding that

Petitioners seek review via a Writ of

Certiorari.

wee

: REASONS FOR GRANTING THE WRIT

The reasons for granting review of

the District Court and Court of Appeals

for the Tenth Circuit are as follows:

The Court of Appeals for the Tenth

Circuit has incorrectly decided issues of

agency and federal law involving the

discriminatory actions of a foreign

government in the execution of a contract

between the United States Government and

a United States corporation not previously

addressed to the Supreme Court which

should be decided by this Court and

incorrectly interpreted and failed to

apply the provisions a contract between

the United States Air Force and the

Respondent, Lear Siegler.

The reasons for granting review of

the District Court and Court of Appeals

for the Tenth Circuit are as follows.

In January, 1990, the Respondent

entered into a written contract with the

é@

United States Air Force to _ provide

Contractor "mission support and training

for the Royal Saudi Air Force (RSAF)" in

Saudi Arabia. The objective of the

contract was to provide "Contractor

manpower to augment the RSAF in

accomplishment of the Royal Saudi Air

Force mission. To accomplish this, the

[contractor] is to provide technically

qualified Contractor manning to augment,

assist, train and advise RSAF personnel."

The contract further provided that:

The contract, as an instrument

of the U.S. Government, will be

administered in accordance with

established US/DOD procurement

policies and procedures and

U.S. Laws. SOW @ 1.3.2(a).

The ACO [USAF administrative

contracting officer] is the

only person in-Kingdom who can

Ootficially enforce the terms

and conditions of the contract

and provide direction to the

Contractor. SOW 4 1.3.2(d).

The contractor shall be

responsible for selecting

personnel who are qualified to

perform the required services.

-»-.- The contractor shall make

——

@.<

every effort to sign incumbent

. employees to two or three year

employment agreements. {H-921.

The ACO may direct the

Contractor in writing to

remove, and the Contractor

shall remove, any employee from

an assignment to perform

services under this contract.

qH-918.

The Contractor ard Contractor

personnel shall respect’ the

laws, customs and regulations ‘

of Saudi Arabia, including the

laws prohibiting access to

certain areas of the country to

non-Muslims or non-Saudis;

provided that this obligation

to respect or comply with (i)

laws, customs or regulations of

Saudi Arabia, or (ii) any other

requirements imposed by Saudi

Arabia pursuant to this

contract, are subject to,

without limitation of, and

effective only to the extent

not inconsistent with or

penalized by applicable U.S.

laws and regulations, including

those relating to foreign

boycotts, those prohibiting

discrimination in employing or

assigning personnel (FAR 52-

225-7019) and those requiring

notification of any visa denial

believed to be attributable to

race, religion, sex or national

origin (FAR 52-222-29). qH-

900.

In an attempt to circumvent the above

stated requirements, the Respondent

incorporated the following provisions into

the employment agreements with their

employees or "contractor personnel" ({H-

921):

Article VI

Termination

A. EMPLOYER shall have the

right to terminate this

Agreement and, therefore, the

employment of EMPLOYEE

hereunder, provided that thirty

(30) days notice is given when:

5) The EMPLOYER is

directed by the United States

Air Force/LSG, Saudi Arabian

Government (SAG) or any other

U.S. Government representative

to terminate the employment of

the EMPLOYEE, or

Article VII

Applicable Law &

Sole Jurisdiction

This Agreement shall be

governed by the laws of the

Kingdom of Saudi Arabia. The

courts of Saudi Arabia shall

have sole jurisdiction over any

disputes arising out of this

Agreement.

Article VIII

General

Other employment matters which

relate to this Agreement, and

not specifically provided for

herein, shall be in accordance

with attached Exhibit A,

Company policy, or the laws of

the Kingdom of Saudi Arabia.

After reviewing the contract between

Lear and the United States Air Force, the

Tenth Circuit concluded that the United

States Air Force - Lear’ contract

contemplated that Lear employees may be

"terminated from employment under the

program because the [United States

authorities] and/or the Royal Saudi Air

Force/Saudi Arabian Government determines

such employee[s] may not remain in the

program. "

The Tenth Circuit failed to recognize

that the United States Air Force also

foresaw possible violations of United

States laws and provided protection for

United States employees. The entire

paragraph of the contract states:

An employee of the

Contractor/Subcontractor

terminated from employment

under the program because the

PCO/ACO and/or the Royal Saudi

Air Force/Saudi Arabian

Government determines such

employee may not remain in the

program shall be replaced in

accordance with the

requirements herein. However,

a Cc () t ainst the

Contractor/Subcontractor under

labor laws of the United States

ed valid

by US Courts, agencies or

officials having jurisdiction

shall be reimbursed to the

fe) 2) cost in

allocable G_ & A, excluding

‘ Such reimbursement

shall be made after the

Contractor has submitted prime

facia evidence to the PCO

establishing that, as regards

the subject of the claim, the

practices of the Contractor or

Subcontractor, with respect to

the individual employee, were

consistent with its standard

policy with respect to the

employee. The contractor will

submit invoices to the PCO of

decisions and settlements

awarded against the Contractor

by US competent authority. q

H-918. [Emphasis added]

This contract provision acknowledges

that the contractor (Lear) could be held

liable in United States Courts for

terminating employees for unlawful reasons

in the United States, even if directed to

do so by the RSAF. The United States Air

Force had the foresight to protect a

contractor from bearing the financial

burden of a judgment against them in the

United States Courts for a wrong the

contractor committed at the direction of

the RSAF.

The contract between the United

States Air Force - Lear, also provides

that:

The Contractor (LST) and

Contractor personnel

(Petitioners) shall respect the

laws, customs and regulations

of Saudi Arabia, including the

laws prohibit access to certain

areas of the country to non-

Muslims or non-Saudis:

provided that this obligation

and any other prcvision of this

contract requiring the

Contractor or its personnel to

respect or comply with (i)

laws, customs or regulations of

Saudi Arabia, or (ii) any other

requirements imposed by Saudi

Arabia pursuant to this

contract, are subject to,

without limitation of, and

effective only to the extent

to foreign

boycotts, those prohibiting

discrimination in employing or

assigning personnel (FAR 52-

225-7019) and those requiring

notification of any visa denial

believed to be attributable to

race, religion, sex or national

origin (FAR 52-222-29). qH-

900. [Emphasis added]

This contract provision clearly

provides that actions should not be taken

by the Contractor regardless of Saudi

Arabia laws, customs and regulations, if

they are inconsistent with applicable

United States laws. Clearly, terminating

Petitioners because of their age is

inconsistent with United States laws,

regardless if the Saudi’s thought the

Petitioners were "too old”.

The Respondent, acting without the

required authority from the USAF, have

acquiesced and ratified the discriminatory

acts of the RSAF. Either the Respondent

has delegated employment-making decisions

to the RSAF or has made the RSAF the agent

of the Respondent to make employment

decisions.

In regards to the establishment of an

agency relationship, the ADEA includes in

the definition of “employer” an agent of

an employer. 29 U.S.C. § 630(b).

The Age Discrimination in

Employment Act is not

. completely silent on the issue

of agency. The Act imposes

liability only on employers,

but defines “employer” to

include “agent,” 29 U.S.C. §

630(b), a term that embraces

but is more encompassing than

“employee"; all employees are

agents, but not all agents are

employees. Shager _v. Upjohn

Co., 913 F.2d 398 (7th Cir.

1990).

The deliberate act of an

employee acting within the

scope of his authority is the

act of the employer, for an

employer, at least where it is

a corporation, acts only

through agents. Hunter _v.

- e Corp., supra,

797 F.2d at 1422; 1 Vv.

Madison Area Ass'n, 844 F.2d

401, 407 (7th Cir. 1988).

Shager v. Upjohn Co., 913 F.2d

398 (7th Cir. 1990).

The Sixth Circuit has construed

the term "agent" to denote "a

supervisory or managerial

employee to whom employment

decisions have been delegated

by the employer." York v.

’

684 F.2d 360, 362 (6th Cir.

1982). Thus, supervisory

employees who had

responsibility for making

personnel decisions for a

defendant company were

considered its agents. Jeter

vy. Boswell, 554 F.Supp. 946,

952-53 (N.D.W.Va. 1982). Kolb

v. State of Ohio, Dept. of

Mental Ret. & Dev., 721 F.Supp.

885 (N.D.Ohio 1989).

Similarly, under Title VII, Courts

have held employers liable for the acts of

their agents. In Kolb v. State of Ohio,

Dept. tal Ret. Dev., 721 F.Supp.

885 (N.D.Ohio 1989), the Court stated:

Holding responsible those who

control the aspects of

employment accorded protection

under Title VII is consistent

with the congressional intent

both that the Act’s

effectiveness not be frustrated

by an employer’s delegating

authority cee Spirt Vv.

Teachers Insurance and Annuity

Ass'n, 475 F.Supp. 1298, 1308

(S.D.N.Y. 1979), aff'd in

relevant part, 691 F.2d 1054

(2d Cir. 1982). Accordingly,

those individuals who are

charged with the responsibility

of making and/or contributing

to employment decisions for the

defendant employer may be

liable as its agents under

Title VII.

Where the act is that of a supervisor

(agent), the employer will also be liable.

In EEOC v. Gaddis, 733 F.2d 1373 (10th

Cir. 1984), the Court stated:

An employer is liable under

both Title VII and section 1981

“where the action complained of

was that of a_ supervisor,

authorized to hire, fire,

discipline or promote, or at

least to participate in or

recommend such actions, even

though what the supervisor is

said to have done violates

company policy." Miller v.

, 600 F.2d 211,

213 (9th Cir. 1979); see also

552 F.2d 1277, 1282 (7th Cir.

1977); Lucero v. Beth Israel

enter,

479 F.Supp. 452, 455 (D.Colo.

1979).

It is clear that the Respondent

Claims that it received direction from the

RSAF to terminate the Petitioners’

employments. Since this "direction" was

not permitted by the USAF-Lear contract,

x = as » . oe z a _— _

nie pat ae a tho a tae 2 Oa ee eet dg few KE

and was in direct contravention of an

express contract provision (SOw

1.3.2(d)), either the Respondent had

delegated employment-making decisions to

the RSAF or the RSAF was acting as the

agent of the Respondent in making or

recommending employment decisions. In

either case, the Respondent employer is

liable for the acts of the RSAF to which

it acquiesced or ratified.

Both the Trial Court and the Tenth

Circuit erred in holding that the letter

introduced during the Winklepleck

deposition as Defendant’s Exhibit 3 from

Colonel Misfer to the Peace Hawk project

officer stating that Colonel Misfer wanted

the Plaintiffs terminated because the

Plaintiffs were "very poor in their

performance because of old age", (direct

evidence of age discrimination), did not

fall within the business record exception

to the hearsay rule. While Winklepleck’s

first acquisition of Defendant’s Exhibit

3 was a “back door copy”, he took this

letter and "confronted" Colonel Rajeh with

it, questioned him about it, and received

a copy of both letters from Colonel Rajeh

which were maintained in Colonel Rajeh’s

files. Winklepleck obtained and verified

both letters within the scope of his

employment as the Defendant’s site

manager. Colonel Rajeh was the recipient

of Exhibit 3 (from his subordinate,

Colonel Misfer Al Ghamdi) and the author

of the transmittal letter that had

Defendant’s Exhibit 3 attached. As such,

he qualifies as the custodian of both

documents. These documents were

maintained in the official files of the

RSAF in their normal course of business.

Both documents have been identified by

Winklepleck as being documents of the RSAF

obtained from and verified by the

custodian of these documents, Colonel

Rajeh. Both documents were placed in the

Plaintiffs’ site personnel files of which

Winklepleck was the custodian of,

maintained in the Plaintiffs’ personnel

files by Lear, and were produced to

Plaintiffs by Lear in response. to

Plaintiffs’ discovery request asking for

Plaintiffs’ complete personnel files.

This makes the letters admissible

business records of both the RSAF and of

the Respondent. The introduction of this

letter by the Respondent in their direct

examination of their own witness should

also permit this letter to be considered

as an admission by a party-deponent (Rule

801(d)(2)(c and d)) or a declaration

against interest (Rule 804(b)(3)).

CONCLUSION

For the foregoing reasons,

Petitioners ask this Court to grant the

Petition for Writ of Certiorari.

Respectfully submitted this 3rd day

of May, 1994.

JUL A, Gp |

Frederick/ W Outhern, jr.

Attorne or Petitioners

RTIF T RVICE

This is to certify that a true and

correct copy of the above and foregoing

instrument was mailed, postage prepaid,

this 3rd day of May, 1994, to:

George W. Dahnke, OBA # 2131

Hastie and Kirschner

3000 First Oklahoma Tower

210 West Park Avenue

Oklahoma City, Oklahoma 73102

(405) 239-6404 (Fax 239-6403)

- ar

ern, jr.

ee Ee ee ee er aa

;

‘

° 7

APPENDIX

Order and Judgment of the United

States Court of Appeals for the

Memenm CArGuie 1. 2 6 tt tw A-1

Notice of Appeal ae «6 « B-1

Judgment of the United States

District Court For the Western

District . . . . . . . . - . . . C-1

Memorandum Opinion of the United

States District Court for the

Western District of Oklahoma D-1

Order on Defendant’s

ET ee eee} |

A-1

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

HARRY E. BROWNLEE and

ROY M. WADDELL,

Plaintiffs-

Appellants,

Vv. No. 93-6121

LEAR SIEGLER MANAGEMENT

SERVICES CORP.,

a foreign corporation,

Defendant-

)

Appellee. )

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF OKLAHOMA

(D.C. No. CIV-92-318-AR)

Submitted on the briefs:

Frederick W. Southern, Jr., Oklahoma City,

Oklahoma, for Plaintiffs-Appellants.

George W. Dahnke of Hastie and Kirschner,

Oklahoma City, Oklahoma, for Defendant-

Appellee.

Before TACHA and BRORBY, Circuit Judges,

and BROWN, * Senior District Judge.

A-2

*Honorable Wesley’ E. Brown, Senior

District Judge, United States District

Court for the District of Kansas, sitting

by designation.

TACHA, Circuit Judge.

‘ a

ied teed Re

A-3

Plaintiffs Harry E. Brownlee and Roy

M. Waddell appeal from a summary judgment

entered by the magistrate judge’ in favor

of their employer, defendant Lear Siegler

Management Services Corp. (Lear), in this

employment discrimination/breach of

contract action. In early 1990,

plaintiffs signed three-year employment

contracts with Lear to work in Saudi

Arabia under the direction of the Royal

Saudi Air Force (RSAF), in connection with

Lear’s contractual commitment with the

United States Air Force to provide

technical assistance and support to the

RSAF. Sometime after plaintiffs’ arrival

in-country, RSAF personnel insisted

plaintiffs were unsuitable for their

assigned duties--allegedly based on

impermissible age considerations--and

The parties consented to

disposition of the case by the magistrate

judge pursuant to 28 U.S.C. §636 (c) (1).

Our jurisdiction therefore arises under §

636 (c) (3).

A-4

barred plaintiffs from their work

stations. When efforts to dissuade the

RSAF proved fruitless, Lear capitulated

and terminated plaintiffs. The magistrate

judge rejected plaintiffs’ resulting

Claims of age discrimination and breach of

contract, and this appeal followed.? On

de novo review, see Applied Genetics

Int'l, Inc. v. First Affiliated Sec.,

Inc., 912 F.2d 1238, 1241 (10th Cir.

1990), we affirm.

Based on uncontroverted evidence, the

magistrate judge held that Lear "only

terminated the Plaintiffs because of

directions by the RSAF and not because of

their age." App. Vol. I at 122. The

judge further noted that "Plaintiffs were

’ After examining the briefs and

appellate record, this panel has

determined unanimously that oral argument

would not materially assist the

determination of this appeal. See Fed. R.

App. P. 34 (a); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted

without oral argument.

A-5

hired specifically to perform work under

the contract in Saudi Arabia, and if they

could no longer perform that contract,

there has been no requirement shown that

[Lear] must find other work for them in

the United States." Id. Finally, the

judge concluded that "Plaintiffs have

failed to prove any legal obligation of

the Defendant Lear Siegler for the

actions, deeds or thoughts of the RSAF or

the [Saudi Arabian government]," id. at

123, and granted summary judgement for

Lear accordingly.

To give rise to an _ employment

discrimination claim for disparate

treatment, the employer must act out of an

improper discriminatory motivation. See

EEOC v. Flasher Co., 986 F.2d 1312, 1319

(10th Cir. 1992); Drake v. City of Fort

Collins, 927 F.2d 1156, 1160-61 (10th Cir.

1991). As the magistrate judge noted,

however, plaintiffs do not rely on any

;

A-6

evidence indicating Lear ever intended to

discriminate on the basis of age.

Consequently, plaintiffs’ case turns on

whether the RSAF’s alleged discriminatory

intent may somehow be imputed to Lear.

Despite the crucial nature of the

issue, plaintiffs do not cite a single

authority or even present a developed

argument for ascribing the requisite

discriminatory animus to Lear in this

unusual setting. Rather, we are provided

only the unsupported, conclusory assertion

that "[h]Javing knowledge that your boss

wants to discriminate and acquiescing in

his discrimination (or failing to take

available remedial action) makes’ the

subordinate equally liable for the

discrimination." Opening Brief of

Appellants at 22. This is not adequate

appellate argument. See Phillips v.

Calhoun, 956 F.2d 949, 953-54 (10th Cir.

1992) (quoting Pelfresne v. Village of

- Ns tee he i eh og ne me

4 5 5 ae Bin > ~ : > nod aa

Bi a 3 . bs Hie. a oth ae Ie le eas pea A A ea eae: Pe a oe in

ae ~ 7 baat ti Lee OG Nor ins Sa Pane ck 5 : Speer - i aie Mie ae ie a es np Rs Peg tte

i ig os a aL ae Le So Ct OE PIO a: ed Pee. ee eR NC LAY Soke " Bp INAS EG Wee A ae Tome i

oF te J : " z ‘ wad ers of we 2 ¥ Sah a

A-7

Williams Bay, 917 F.2d 1017, 1023 (7th

Cir. 1990), for litigant’s responsibility

"to press a point by supporting it with

pertinent authority, or by showing why it

is sound despite a lack of supporting

authority or in the face of contrary

authority").

If plaintiffs mean to suggest that

agency principles allow them to impute the

RSAF’s alleged discriminatory intent to

Lear because Lear acted at the direction

or compulsion of the RSAF, the law does

not support their position. While a

principal’s status as _ an employer can be

attributed to its agent to make the agent

statutorily liable for his own age-

discriminatory conduct, see 29 U.S.C. §

630(b); see, e.g., House v. Cannon Mills

Co., 713 F. Supp. 159, 161-62 (M.D.N.C.

1988); cf. Owens v. Rush, 636 F.2d 283,

286-87 (10th Cir. 1980), we know of no

authority for imputing a principal’s

we.

A-8

discriminatory intent to an agent to make

the agent liable for his otherwise neutral

business decision. Similarly, while

discriminatory practices of an agent may

be imputed back to a principal to render

the principal liable for its agent’s

statutory violations, see, e.g., Shager v.

Ohn Co., 913 F.2d 398, 404-05 (7th

Cir. 1990); cf. EEOC v. Gaddis, 733 F.2d

1373, 1380 (10th Cir. 1984), we have found

no authority for imputing' statutory

liability in the opposite direction, from

a culpable principal to an innocent

agent.?

: We note that the possibility of

characterizing Lear as an "employment

agency," i.e., an entity "regularly

undertaking to procure employees for an

employer," 29 U.S.C. § 630(c), which then

could be held liable for neutrally

executing the discriminatory directions of

its client, see authorities discussed in

Barbara lL. Schlei & Paul Grossman,

Employment Discrimination Law at 656-67

(2d ed. 1983), and Five-Year Cumulative

Supp. at 276-77 (1989), is precluded by

the fact that the RSAF is not a covered

"employer," as defined in § 630(b) and

(continued...)

A-9

We therefore affirm the magistrate

judge’s decision to grant summary judgment

for Lear on plaintiffs’ age discrimination

claim. Because our disposition is

analytically independent of the

motivations underlying the conduct of RSAF

personnel in the matter, we need not

address the admissibility of certain RSAF

documents reflecting a negative view of

plaintiffs’ ages.

The magistrate judge further held

that plaintiffs’ breach of contract claim

also must fail as a matter of law because

"{Lear], pursuant to the unambiguous

language of the contract, was entitled to

terminate the Plaintiffs if directed to do

so by the [Saudi Arabian government],

through its agent the RSAF." App. Vol. I

at 124. We agree.

3(...continued)

required by § 630(c), see, e.g., Shrock v.

Altru Nurses Registry, 810 F.2d 658, 660-

61 (7th Cir. 1987); Lavrov _v. NCR Corp.,

600 F. Supp. 923, 929 (S.D. Ohio 1984).

A-10

As the magistrate judge indicated,

the parties’ respective contracts of

employment specifically provided that Lear

had the right to terminate when "directed

by the United States Air Force/LSG, Saudi

Arabian Government (SAG) or any other U.S.

Government representative to terminate the

employment of the EMPLOYEE." App. Vol.

III at 486-87, 501-022 (emphasis added).

Plaintiffs insist Lear "can produce no

authorized document addressed to [Lear]

that ‘demands’ or ‘directs’ [Lear] to

terminate either Plaintiff’s employment, "

Opening Brief of Appellants at 19, and

argue that, therefore, the quoted contract

provision does not apply. That provision,

however, does not require an "authorized

document," and the undisputed evidence

regarding the circumstances surrounding

plaintiffs’ brief employment in-country

clearly establishes the RSAF’s operative

role in their termination. See App. Vol.

A-11

I at 116-17, 121-22.

Plaintiffs argue that the contract

between Lear and the United States (Lear-

U.S. contract) does not grant the RSAF the

same authority to direct termination of

personnel that is reflected in the quoted

provision from plaintiffs’ individual

contracts with Lear. While it is not at

all clear that such a divergence between

these related but distinct contracts would

undermine the provision relied on by Lear,

we need not reach the question because the

alleged conflict is illusory. In fact,

the Lear-U.S. contract plainly

contemplates that Lear employees may be

"terminated from employment under the

program because’ the [United States

authorities] and/or the Royal Saudi Air

Force/Saudi Arabian Government determines

such employee[s] may not remain in the

program." App. Vol. III at 595 (emphasis

added). Other cited provisions

A-12

identifying the United States personnel

responsible for execution or enforcement

of the Lear-U.S. contract do not undermine

Or preclude the authority accorded the

RSAF to direct termination under the terms

of plaintiffs’ contracts with Lear.

The judgment of the United States

District Court for the Western District of

Oklahoma is AFFIRMED.

B-1

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

HARRY E. BROWNLEE and

ROY M. WADDELL,

Plaintiffs,

Vv. CIV-92-318-AR

LEAR SIEGLER MANAGEMENT

SERVICES CORP., a

foreign corporation,

Defendant.

NOTICE OF APPEAL

me ee ee ee ee ee ee eee eee eee”

Notice is hereby given that Harry E.

Brownlee and Roy M. Waddell, Plaintiffs in

the above entitled and numbered action,

hereby appeals to the United States Court

of Appeals for the Tenth Circuit from the

Judgment entered on February 24, 1993.

Respectfully submitted,

/s/ Frederick W. Southern, jr.

Frederick W. Southern, jr.,

OBA # 10134

Attorney for the Plaintiff

1200 North Walker, Suite 500

Oklahoma City, Oklahoma 73103

(405) 236-3701 (Fax 239-6825)

B-2

“ ERTIFICATE OF RVICE

This is to certify that a true and

. correct copy of the above and foregoing

, instrument was mailed, postage prepaid,

this 25th day of March, 1993, to:

George W. Dahnke, OBA # 2131

Hastie and Kirschner

3000 First Oklahoma Tower

210 West Park Avenue

Oklahoma City, Oklahoma 73102

(405) 239-6404 (Fax 239-6403)

/s/ Frederick W. Southern, jr.

Frederick W. Southern, jr.

Attorney for the Plaintiffs

C-1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

HARRY E. BROWNLEE and

)

ROY M. WADDELL, )

)

Plaintiffs )

)

Vv. ) CIV-92-318-AR

)

LEAR SIEGLER MANAGEMENT )

SERVICES CORP., a foreign)

corporation, )

)

Defendant )

)

JUDGMENT

Upon consideration of the parties’

motions for summary judgment and the

Court’s Memorandum Opinion,

IT IS ORDERED, ADJUDGED AND DECREED

that the Plaintiffs’ motion for summary

judgment is DENIED and the Defendant’s

motion for summary judgment is GRANTED,

and judgment is hereby entered in favor of

the Defendant and against the Plaintiffs.

C-2

Dated this 24th day of February 1993.

: /s/ DOYLE W. ARGO

, UNITED STATES MAGISTRATE JUDGE

ENTERED IN JUDGMENT DOCKET ON

2-24-93

D-1

IN THE UNITED STATES DISTRICT COUNT

FOR THE WESTERN DISTRICT OF OKLAHOMA

HARRY E. BROWNLEE and

ROY M. WADDELL,

Plaintiffs

Vv. CIV-92-318-AR

LEAR SIEGLER MANAGEMENT

SERVICES CORP., a foreign

corporation,

)

Defendant )

MEMORAND PINION

On November 23, 1992, both the

Plaintiffs and the Defendant filed

separate motions requesting summary

judgment with the Plaintiffs asking for

partial summary judgment. Response briefs

have been filed by both sides, and thus

the motions are at issue and before the

Court for resolution.

The Plaintiffs (Brownlee and Waddell)

allege that they were both terminated from

their employment by the Defendant based on

their age in willful violation of the Age

Discrimination in Employment Act of 1967

D-2

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

further contend that their termination was

in breach of their written employment

contracts with the Defendant. The

Plaintiffs ask for partial summary

judgment on the issue of age

discrimination arguing that they have

established by the undisputed facts and as

a matter of law that the Defendant

discriminated against each Plaintiff based

on age.

Defendant asserts that it was bound

by but not responsible for the decision of

the Royal Saudi Air Force (RSAF), under

whose direction the Plaintiffs worked.

The Defendant maintains that the

Plaintiffs, based on the undisputed facts,

cannot, as a matter of law, prove that the

Defendant discriminated against them based

on age. The Defendant also argues that it

is entitled to summary judgment on the

contract claim ielying on the clause in

D-3

both Plaintiffs’ employment’ contracts

which allows the Defendant to terminate

Plaintiffs if directed to do so by the

RSAF or more specifically by the Saudi

Arabian Government (SAG).

STATEMENT OF FACTS

The undisputed facts relevant to a

determination of the summary judgment

motions are as follows. The Defendant

Lear Siegler Management Services Corp.

(Lear Siegler) entered into a written

contract with the United States Air Force

(USAF) to provide logistics support to the

RSAF in the Kingdom of Saudi Arabia.

Pursuant to the contract, the Defendant

Lear Siegler was required to provide the

RSAF with certain personnel who were to

work under the functional and supervisory

control of the RSAF, but who were to

remain under the administrative control of

the Defendant Lear Siegler. On January

11, 1990, the Plaintiff Brownlee entered

D-4

into a written contract of employment with

the Defendant Lear Siegler to perform

services in Saudi Arabia for a period of

three years. The Plaintiff Waddell

entered into the same type of written

agreement with the Defendant Lear Siegler

on February 20, 1990.

Thereafter, both of the Plaintiffs

went to Saudi Arabia where they performed

work pursuant to their contracts of

employment. It is undisputed that certain

members of the RSAF under whose guidance

and supervision the Plaintiffs were

working, were highly inquisitive about

personal matters of Lear Siegler

employees, such as how old they were and

whether they were married. It is further

undisputed that the Plaintiff Brownlee, at

least for a short period of time, had a

personality conflict with certain of these

RSAF members, precipitated by some of the

personal questions and the conclusions

D-5

drawn by the RSAF members from Plaintiff

Brownlee’s responses.

It is further undisputed that the

RSAF officers for whom the Plaintiffs

worked later requested that the Plaintiffs

be terminated although the parties dispute

the reasons why their termination was

requested. Plaintiffs contend that the

RSAF officers demanded that the Plaintiffs

be terminated because they were considered

to old for their positions, while the

Defendant claims that the reasons for the

RSAF decision are not clear. As will be

discussed more fully herein, this fact is

not material to a resolution of the

motions for summary judgment.

The parties to this lawsuit agree

that both Plaintiffs were fully qualified

for the positions and they believe that

the Plaintiffs were performing the jobs in

a satisfactory manner. The undisputed

facts further show that the Defendant Lear

D-6

Siegler made some efforts to intervene on

Plaintiffs’ behalf, both directly with the

RSAF officers and through the USAF.

Despite the Defendant Lear Siegler’s

intervention, the RSAF demanded that the

Plaintiffs be terminated, even going so

far as to lock the Plaintiffs out of the

work place. Finally, the RSAF officers

absolutely refused to discuss the

Plaintiffs or their situation with Lear

Siegler.

Article VI of the Plaintiffs’ written

contracts of employment with the Defendant

Lear Siegler addresses Lear Siegler’s

rights to terminate the contracts. This

Article provides in relevant part that

Lear Siegler had the right to terminate

the contract when:

5) The EMPLOYER is directed by

the United States Air Force/LSG,

Saudian Arabian Government (SAG) or

any other U.S. Government

representative to terminate’ the

employment of the EMPLOYEE, or...

D-7

After its efforts failed to convince

the RSAF that the Plaintiffs were

qualified for their positions, the

Defendant Lear Siegler by letters dated

July 17, 1990 terminated the employment of

both Plaintiffs effective August 15, 1990.

The reason given by the Defendant Lear

Siegler to the Plaintiffs for their

termination was due to directions received

from the RSAF. Following the Plaintiffs

termination, they were replaced by persons

over the age of 40, with the Plaintiff

Brownlee, who was 52 years old at the

time, replaced by a person 41 years of

age, and the Plaintiff Waddell, who was 56

years old at the time, replaced by a

person who was either 51 or 61 years old.’

The parties dispute whether Mr.

Waddell’s replacement was 51 or 61 years

of age. A letter from Lear Siegler to the

EEOC indicates that the replacement was 51

whereas Lear Siegler’s personnel records

clearly indicate that he was 61. Although

again, this fact will not be material in

the ultimate disposition of this matter.

D-8

The undisputed evidence also shows that

the majority of the individuals employed

by the Defendant to work in Saudi Arabia

on this project are retired military, with

the average age being somewhere around 44

years of age.

STANDARD FOR SUMMARY JUDGMENT

Summary judgment may be granted "if

the pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any, show

that there is no genuine issue as to any

material fact and that the moving party is

entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c). The Court views

the evidence and the inferences to be

drawn therefrom in the light most

favorable to the non-moving party.

Manders _v. State of Oklahoma ex. rel.

Department of Mental Health, 875 F.2d 263,

264 (10th Cir. 1989), citing Barber v.

General Electric Co., 648 F.2d 1272,1276

‘ ms, “5 fg. a ene tas oi ei ~ a < Meek’ - ot techie 2S se a et PAO REPS,

“s . < Pag? 5 ee oO 3 eB OF ” 4. . ¥

D-9

n. 1 (10th Cir. 1981). A dispute about a

material fact is genuine "if the evidence

is such that a reasonable jury could

return a verdict for the non-moving

party." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). "Material

facts" are "facts that might affect the

outcome of the suit under the governing

law." Id. Factual disputes that are

irrelevant or unnecessary will not be

counted. Id. In addition, a movant is

not always required to come forward with

affidavits or other evidence to obtain

summary judgment; once the movant points

out an absence of proof on an essential

element of the non-movant’s case, the

burden shifts to the non-movant to provide

evidence to the contrary. Celotex Corp.

v. Catrett, 477 U.S. 317, 322-24 (1986).

DISCUSSION

The Plaintiffs correctly state that

age discrimination can be established by

D-10

direct or indirect evidence. Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111

(1985); McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Brannon v. Price

River Coal Co., 853 F.2d 768 (10th Cir.

1988). Plaintiffs claim to have both

types of evidence in this case. In regard

to direct evidence, the Plaintiffs,

primarily rely on a letter allegedly

written by Misfer A. Al Ahamdi (sic), Lt

Col RSAF to the Peace Hawk Project

Officer.’

The Plaintiffs further rely on statements

allegedly made by RSAF officers to a Lear

Siegler employee and to the Plaintiffs.

This Court in its order on Defendant’s

motion in limine, has already ruled that

the letter and statements made by RSAF

officials, unless testified to by such

RSAF officers, are inadmissible as

. The Peace Hawk Project Officer

is a RSAF officer.

D-11

hearsay. Thus, disregarding this evidence

pursuant to the ruling on the motion in

limine, Plaintiffs have offered no direct

evidence of discrimination.

The Plaintiffs may also prove their

case of age discrimination by indirect

evidence, using the framework applicable

to discrimination cases under Title VII

and set out in McDonnell Douglas Corp. v.

Green, supra, and its progeny. See Cooper

v. Asplundh Tree Expert Co., 836 F.2d

1544, 1547 n. 1 (10th Cir. 1988). Under

the McDonnell Douglas test, a plaintiff

bears the burden of establishing a prima

facie case of discrimination, but the

Supreme Court has made clear that this

burden is not onerous. Texas Department

of Community Affairs v. Burdine, 450 U.S.

248, 253 (1981). Once the plaintiff

establishes a prima facie case, this

creates a presumption of unlawful

discrimination that requires the defendant

D-12

to come forward with evidence of a

nondiscriminatory reason for its actions.

Id. at 254-55. The plaintiff then has the

opportunity to show that the defendant’s

proffered reason was pretextual. Id. at

255-56. In this Circuit, a plaintiff

makes out a prima facie case of age

discrimination by showing (1) that he was

within the protected age group; (2) that

he was doing satisfactory work; (3) that

he was discharged; and (4) that his

position was filled by a younger person.

c ald v. Easte h

Center, 941 F.2d 1115 (10th Cir. 1991);

Merrick v. Northern a as Company,

911 F.2d 426 (10th Cir. 1990).

The parties here disagree whether the

Plaintiffs have met the fourth element of

the prima facie case stated above. First,

as noted, the Defendant contends that the

Plaintiff Waddell who was 56 at the time

of his termination, was replaced by

era

D-13

someone who was 61 years of age, while the

Plaintiff Waddell claims that his

replacement was 51 years old. Defendant

also claims that the Plaintiffs must show

that they were replaced by someone outside

the protected age group or someone younger

than 40 years old to meet the fourth

element of the prima facie case, while the

Plaintiffs claim that they need only show

that they were replaced by a younger

individual.

In the two Tenth Circuit cases cited

above, the Court indicates that the fourth

element of a plaintiffs’ prima facie case

is satisfied if the plaintiff is replaced

by a younger person, regardless of whether

that younger person is also within the

protected age group. Thus, for purposes

of discussion only, it is assumed that the

Plaintiffs have established their prima

facie case under the four-part test listed

D-14

above.’ In response to the prima facie

case, the Defendant has offered a

legitimate nondiscriminatory reason for

the challenged action; i.e., that the RSAF

refused to allow the Plaintiffs to work

and demanded that they be terminated. The

Plaintiffs now bear the burden of

persuasion to show that the Defendant’s

proffered justification was pretextual and

that the age of the employees was a

determining factor in the Defendant’s

decision. Merrick v. Northern Natural Gas

Company, 911 F.2d at 429. The Plaintiffs

are not required to come forward with

direct evidence of discriminatory intent,

but rather they are only required to show

' As already noted, there is

conflicting evidence as to the age of Mr.

Waddell’s replacement. In assuming

Plaintiffs have met the prima facie test,

the Court is also giving Plaintiff the

benefit of the doubt. With regard to the

age of the replacement, if Mr. Waddell’s

replacement was in fact 61, the Plaintiff

Waddell could not even establish a prima

facie case.

D-15

that the Defendant’s justification is

unworthy of credence. Id. However,

Plaintiffs have offered absolutely no

evidence to show that the proffered

justification was pretextual, nor have

they shown that the Defendant ’s

justification was unworthy of credence.

The central question is whether’ the

Plaintiffs have presented enough evidence

to permit a reasonable factfinder to

conclude that age was a determinative

factor in Lear Siegler’s decision. All of

the evidence before the Court supports the

Defendant’s position that the only reason

the Plaintiffs were terminated was due to

the demands made by the _ RSAF. The

evidence indicates that the majority of

workers hired by the Defendant to work in

Saudi Arabia were older individuals due to

the requirement that these individuals

have some past military experience. As

noted, the average age of the Defendant’s

“8 foe

D-16

employees in Saudi Arabia at the time of

Plaintiffs’ employment appears to be

approximately 44 years old, and many of

the Defendant’s other employees were in

fact older than the Plaintiffs.

When a sovereign nation such as Saudi

Arabia through the RSAF demands that the

employees over whom they have functional

and supervisory control be terminated,

there appears little if anything that the

Defendant could do to change that

decision. Again, the undisputed evidence

shows that the Defendant attempted to

convince the RSAF that the Plaintiffs were

qualified and should be retained, but

despite this, the RSAF demanded that they

be terminated. Plaintiffs’ contracts with

the Defendant specifically allow the

Defendant to terminate the Plaintiffs’

employment when directed to do so by the

RSAF. Further, it is undisputed that the

Plaintiffs were hired srecifically to

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D-17

perform work under the contract in Saudi

Arabia, and if they could no _ longer

perform that contract, there has been no

requirement shown that the Defendant must

find other work for them in the United

States. In short, the Defendant only

terminated the Plaintiffs because of

directions by the RSAF and not because of

their age.

Moreover, even if the Court were to

consider the hearsay statements that are

the subject of the order on the motion in

limine, the result here would not be

different. The Plaintiffs argue, but have

not proven, that the decisions of the RSAF

are the responsibility of the Defendant

Lear Siegler. Plaintiffs maintain that

the RSAF was the agent of the Defendant

Lear Siegler. However, according to the

contract with the USAF, if anything, the

Defendant could be viewed as the agent of

the RSAF. Moreover, the Plaintiffs

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D-18

contend that the Defendant Lear Siegler is

responsible for the RSAF under the Saudi

Arabian Labor and Workmen Law. Assuming

that this Court is somehow bound by Saudi

Arabian law, which the Court highly

doubts,‘ it would appear that’ the

Plaintiffs must demonstrate that the RSAF

was the agent of Defendant Lear Siegler to

make this law applicable.

Article 8

If the employer entrusts to a

natural or juristic person one

of his principal operations or

any part thereof, the latter

shall give his workmen all the

rights and privileges granted by

the employer to his own workmen,

and both shall be jointly and

severally responsible for such

rights and privileges.

It is beyond this Court’s comprehension

. The Saudi Arabian Law cited by

the Plaintiffs appears to be an

administrative remedy which the Plaintiffs

have failed to exhaust. An application

regarding the discharge should have been

submitted to the Director of Labor’s

office of the area in which Plaintiffs’

place of work was located within 15 days

of the decision to discharge. Labor and

Workmen Law, Art. 75.

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D-19

how the Defendant Lear Siegler could

entrust the RSAF with principal operation

of a project which is already a RSAF

project. The Defendant Lear Siegler did

not hire the RSAF to work on Lear

Siegler’s project. In fact, quite the

opposite occurred, as the USAF hired Lear

Siegler to work on or provide support for

the RSAF’s project. The Plaintiffs have

failed to prove any legal obligation of

the Defendant Lear Siegler for’ the

actions, deeds or thoughts of the RSAF or

the SAG.

The Defendant is also entitled to

judgment with regard to Plaintiffs’ breach

of contract claim. The Defendant,

pursuant to the unambiguous language of

the contract, was entitled to terminate

the Plaintiffs if directed to do so by the

SAG, through its agent the RSAF.

Accordingly, the Plaintiffs’ motion

for summary judgment is DENIED and the

D-20 \

Defendant’s motion for summary judgment is

GRANTED. Judgment will enter accordingly.

° IT IS SO ORDERED this 24th day of

February 1993.

/s/ DOYLE W. ARGO

UNITED STATES MAGISTRATE JUDGE

E-1

IN THE UNITED STATES DISTRICT COUNT

FOR THE WESTERN DISTRICT OF OKLAHOMA

HARRY E. BROWNLEE and

ROY M. WADDELL,

Plaintiffs

Vv. CIV-92-318-AR

LEAR SIEGLER MANAGEMENT

SERVICES CORP., a foreign

corporation,

)

Defendant )

RDER_ ON NDANT’S MOTION IN LIMINE

The Plaintiffs have brought this

action for age discrimination pursuant to

the Age Discrimination in Employment Act

of 1967 ("ADEA") and for an alleged breach

of their employment contracts against the

Defendant, their former employer. The

Plaintiffs were employed by the Defendant

to work in the Kingdom of Saudi Arabia in

partial fulfillment of the Defendant’s

contract with the United States government

to provide technical assistance and

Support to the Royal Saudi Air Force

("RSAF"). The Plaintiffs were to work at

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the functional and supervisory control of

the RSAF, but were to remain under the

administrative control of the Defendant.

The Plaintiffs allege that they were

terminated from employment by the

Defendant based on their age in willful

violation of the ADEA. Plaintiffs further

contend that their termination was in

breach of their written employment

contracts with the Defendant. Defendant

maintains that the Plaintiffs were

terminated at the insistence of the RSAF,

despite Defendant’s efforts. Defendant

asserts that they were bound by but not

responsible for the decision of the RSAF,

under whose direction the Plaintiffs

worked. The Defendant argues that it

terminated the Plaintiffs due to the

RSAF’s request and not based on age.

Further, the Defendant maintains that it

did not breach the employment contract

through this termination as the employment

E-3

contracts signed by each Plaintiff

specifically allowed termination of the

contract if termination was directed by

RSAF.

Through this motion, the Defendant

asks that three categories of evidence be

excluded on the basis of hearsay:

(1) a letter from an RSAF Lieutenant

Colonel, Misfer A. Al Ghamdi to another

RSAF officer which in part stated that the

Plaintiffs were "too old" to perform their

jobs;

(2) statements by a RSAF sergeant in

the presence of the Plaintiffs that the

Plaintiffs were "too old;" and

(3) a statement by Major Halawani of

the RSAF to an employee’ of Defendant that

the Plaintiffs were discharged because

they were unable to do their duties and

they were too old.

This employee, Philip Anastasia,

is no longer employed by the Defendant.

a J

E-4

The Plaintiff has filed an objection to

Defendant’s motion in limine.

The Defendant argues that this letter

and the other oral statements by RSAF

personnel are not admissible as_ they

constitute hearsay evidence. The letter

in question was allegedly written by Lt

Col Misfer A. Al Ghamdi, RSAF, to the

Peach Hawk Project Officer. The letter is

copied to Room 205, Bldg. 644, Depot

Supply, although an individual name is not

listed with that address. This letter is

without question "a statement, other than

one made by the declarant while testifying

at the trial or hearing offered in

evidence to prove the truth of the matter

asserted." Federal Rules of Evidence 801.

It is important to remember that Lear

Siegler Management Services Corp. ("Lear")

is the Defendant in this matter, not the

RSAF. The undisputed facts show that Lear

did not write the letter, and there is no

E-5

° evidence despite the argument of

Plaintiffs that the RSAF was the agent of

Lear. Therefore, the letter cannot be

‘ ee.

viewed as an admission of a party-

opponent. Accordingly, the letter is

hearsay and inadmissible unless it falls

within an exception to the hearsay rule.

The Plaintiffs contend that’ the

letter falls under the business records

exception, Rule 803(6), as it was produced

by the Defendant in each of the

Plaintiff’s personnel files. Documents

which fall under the business records

exception are allowed into evidence

because of their inherent trustworthiness.

Such documents are those that are created

and/or received in the ordinary course of

business.

A memorandum, report, record, or

data compilation, in any forn,

of acts, events, conditions,

opinions, or diagnoses, made at

or near the time by, or from

: information transmitted by, a

person with knowledge, if kept

in the course of a regularly

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E-6

conducted business activity, and

if it was the regular practice

of that business activity to

make the memorandum, report,

record, or data complication,

all as shown by the testimony of

the custodian or other qualified

witness, unless the source of

information or the method or

circumstances of preparation

indicate lack of

trustworthiness.

Fed. R. of Evidence, 803(6).

Robert Winklepleck testified that he

is the custodian of the personnel files

and he has also testified that he is the

one who obtained a copy of the letter in

question. Further, his testimony clearly

indicates that this letter was not created

or received in the ordinary course of

business, but rather it was obtained as a

"back door copy." He has also stated that

he did not believe that old age was the

real reason for termination based on other

circumstances. In order to be admissible

under the business record exception to the

hearsay rule, the document must have been

prepared in the ordinary course of

E-7

business, must be made at or near the time

of the events it records, and must be

based on personal knowledge of entrant or

on personal knowledge of informant having

business duty to transmit information to

entrant. Datamatic Services, Inc. vy.

U.S., 909 F.2d 1029 (7th Cir. 1990). This

letter was not prepared in the ordinary

course of Defendant ’s business and

therefore does not fall under the business

records exception to the hearsay rule.

Further, even if this letter was not

inadmissible hearsay, the letter would

still have to be authenticated pursuant to

Rule 901 of the Federal Rules of Evidence.

The requirement of

authentication or identification

as a condition precedent to

admissibility is satisfied by

evidence sufficient to support a

finding that the matter in

question is what its proponent

claims.

Federal Rules of Evidence, 901.

Although the Plaintiffs have filed an

objection to Defendant’s motion in limine,

E-8

the Plaintiffs’ brief only addresses the

letter and not the other two categories of

evidence which the Defendant seeks to

exclude. Even if Plaintiffs were to

object to their exclusion, the statements

by RSAF personnel to others is likewise

inadmissible hearsay. Just as the

document drafted by the RSAF officer to

another RSAF officer cannot be attributed

to the Defendant, neither can the oral

statements of RSAF personnel. The

statements, as already discussed, are not

admissions of a party opponent. Moreover,

the Plaintiffs have not even attempted to

suggest an exemption for these categories

nor is the Court aware of one. Therefore,

the statements of RSAF personnel will be

excluded as hearsay.

Accordingly, the Defendant’s motion

in limine is GRANTED.

IT IS SO ORDERED THIS 17th day of

February 1993.

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. /s/ DOYLE W. ARGO

{ UNITED STATES MAGISTRATE JUDGE

‘

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.