Petition for Writ of Certiorari — Fornaro v. Gannon

FILED

04147 9 MAY 2 - 2005

No.

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

¢

REX FORNARO,

Petitioner,

WILLIAM S. GANNON, ESQ.

WADLEIGH, STARR & PETERS, PLLC,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

PETITION FOR A WRIT OF CERTIORARI

REX FORNARO

Petitioner

41 Ann Road

Long Valley, New Jersey 07853

(908) 850-0980

QUESTIONS PRESENTED FOR REVIEW

The questions presented below relate to the legal

protection afforded to any person who identifies and

reports public-safety related issues. The protection af-

forded tc any person should be definitive thereby promot-

ing the populace to identify and report public-safety

related issues, thus leading to a safer society.

1. Although uncontradicted evidence confirms, and

the First Circuit acknowledged, that Petitioner com-

plained about the safe operation of the passenger airline -

Business Express (BEX), did the First Circuit infringe

Petitioner’s First Amendment Rights to the U.S. Constitu-

tion for such protected speech by affirming summary

judgment in favor of Respondents? _

2. Has the appropriate standard for summary

judgment requiring that there is no genuine issue as to

any material fact, and that all reasonable inferences and

disputed facts be resolved in favor of the non-moving party

been violated by the First Circuit affirming summary

judgment, thereby infringing Petitioner’s Rights of Due

Process protected by the Fifth and Fourteenth Amend-

ment to the U.S. Constitution?

3. Which Federal Circuit standard pertaining to the

temporal proximity sufficient to estabiish causation in

retaliation claims is necessary to withstand a motion for

summary judgment?

‘i

TABLE OF CONTENTS

Page

Questions Presented For Review..............cccccccceeeeeeees i

Table 6 AIOE sks ie iii

ei TOE ani sicsninscsonisagerletaknindianesciaendeaadathans 1

Statemont OF FurimGietiae on scscccssixacscoccnnscsccvesccsosooncee 1

Constitutional Provision Involved.................ccccceecee0s 1

Dtedonmnaih COE Te AAG isciiscsssciastrieniceccianncntaeannessccane 2

Reasons For Granting The Writ.................ccccccseeseeees 7

COG, xcsanniinnacnessnudaaceniaeedanasdetameiieabaadsentetenans 18

APPENDIX:

— Order of the First Circuit Court Of Appeals dated

Epona ¥,, TIPE ax uiinnissecsaunplinncancantioncittiibdahesnans App. 1

— Order of the District Court dated May 16, 2003....App. 15

— Order of the First Circuit Court of Appeals dated

Peery: 1, TU cccissniaisinadd anand App. 25

— Bankruptcy Court Testimony ..................::cccccceeees App. 27

— Aviation Expert Report ....................csccccseceseeseeeeees App. 34

ill

TABLE OF AUTHORITIES

Page

CASES

Adams v. Metiva, 31 F.3d 375 (6th Cir. 1994)..........0000.... 11

Anderson v. Coors Brewing Co., 181 F.3d 1171

IS TIT scniellictuisnsssiisiatuslactnteiblicdinagsbiedenmenddoduubonaae 15

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ... 11, 14

Bassett v. City of Minneapolis, 211 F.3d 1097 (8th

ya SR ne ee ae ee Ea A 15

Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d

339 (10th Cir. 1982), cert. denied, 459 U.S. 1071

ES Sat REE gS SO CE SEE MOEN a eo DSR ES 15

Carey v. Brown, 447 U.S. 455 (1980) ................ccc ee ececeeeeees 8

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).......... 5, 14, 18

Christian v. Wal-Mart Stores, Inc., 252 F.3d 862

RENE a Ae eens AON SR eR 11

Clark County School District v. Breeden, 532 U.S.

RE RE A NS aT ee 16, 17

Cone v. Longmont United Hosp. Association, 14

a ssenansunedinmuenebeasenisiin 12

Connick v. Myers, 461 U.S. 138 (1983) 0.0.0.0... 9,18

Courtney v. Biosound, Inc., 42 F.3d 414 (7th Cir.

RN SERECR UR STADE TERA a 2 sa OR a 12

Couty v. Dole, 886 F.2d 147 (8th Cir. 1989)........0000.. oe. 15

Ezekwo v. New York City Health & Hospitals Corp.,

940 F.2d 775 (2d Cir.), cert. denied, 502 U.S.

iar anna) isl chee ctdcamacinlotinoctingignaminnnennandns 9

Givhan v. Western Line Consol. School Dist., 439

I i suunosmonnede 10

~_— SA ELLE LLL LE ALL CT TTT Sm

iv

TABLE OF AUTHORITIES -— Continued

Page

Gorman-Bakos v. Cornell Coop. Extension of

Schenectady County, 252 F.3d 545 (2d Cir. 2001)........ 15

Hale v. Mann, 219 F.3d 70 (2d Cir. 2000):.................. ee ceeeee 9

LaFond v. Gen. Physics Servs. Corp., 50 F.3d 165

Ee TaTIEN Ls INPUT sisscssdapieinioeDpititccsisecapenassesatieniioendiicudatiahaulenibaaieanedn 10

Lewis v. Cowen, 165 F.3d 154 (2d Cir. 1999)...........0..00000... g

McDonnell Douglas Corp. v. Green, 411 U.S. 792

SITU sitesialisssnicistiecebnlnndiniccssibiahccbaaala haatidiesiaiinintiadeianindaalibiian 5, 17, 18

Mt. Healthy City School District Bd. of Educ. v.

SE, ee a BAO ETE serkcinctncicnscininitensivanienninnbialinns 10

NAACP v. Claiborne Hardware Co., 458 U.S. 886

IETUITIUII cocci tiohiielleitbaiaieiiiessuiah pha dbacaas TAL Aa ic ac 8

O’Bryan v. KTIV Television, 64 F.3d 1188 (8th Cir.

MITE sisisiisdaunsidpiactichigdusubigaaninadiainidediiidaieleieinisieiilimehiadeiaian 15

O’Neal v. Ferguson Constr. Co., 237 F.3d 1248 (10th

Suns: SEITE ca ciiccckicscsnsiiundeioeneslienundedbbanliehanbnncmiinasunmasdibiaiteatnsa 16

O’Shea v. Yellow Technology Services, Inc., 185

ee EE IU vccpsnnatisintinntininpnitinenisantidapniieinnes 12

Pastran v. K-Mart Corp., 210 F.3d 1201 (10th Cir.

RT NR ET SAAR I, NO aD OE ERI 13

Pearson v. First N.H. Mortgage Corp., 200 F.3d 30

CONE Os EE sinsininesshnpinssennsanhebssiiniiinasbaapenindakatanadieasonldadies 4

Rebarchek v. Farmers Co-op Elevator & Mercantile

Ass’n, 272 Kan. 546, 35 P.3d 892 (2001)...................00. 16

Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d

+E, ; SIREN NOE EMER eSB Fe MERON WOOT TORT 16

TABLE OF AUTHORITIES — Continued

Page

Smith v. St. Louis University, 109 F.3d 1261 (8th

ERs SUED avenichcdianhtnnscicnksiiiisabseeakamilnsiscseidplicailiaabasialtosadisias 12

Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir.

DIDI 2 ccisssucnssisnnnciniianhcsaecckevnsilauiciantiiaiiiainceaslactetelibaeddaae 15

FEDERAL CONSTITUTION

Wo ele GR, BI, Bs cisishascticscicicancsttinnseansgbclceienicialeananecinale 8

Crile SMU SEINE, WF cia sedis napnievaeinsitatcudsnbandsedadibadaniacanels 1,10

She SR TE, FEI ecishnctsnvcibinbiicciitenannectdecnainans 2, 10,17

FEDERAL STATUTES

By RRs UE cahinsnciniincnsticeibinoniniscinniiaieteiab animated 2

BO REARS, B RGD ossitssies siitecnsinicticincitebeniamptiiatidaimbennmuimimias 1

1

PETITION FOR A WRIT OF CERTIORARI

Rex Fornaro, respectfully petitions this Court to issue

a writ of certiorari to review the decision of the First

Circuit Court of Appeals in this case.

,

4

OPINIONS BELOW

The First Circuit Court of Appeals affirmed the

district court’s granting summary judgment to Respon-

dents on December 1, 2004. App. 1. Petitioner timely filed

a Petition for Panel Rehearing/Rehearing En Banc with

the First Circuit, which was denied by an unpublished

Order entered on February 1, 2005. App. 25.

The unpublished opinion and order of the district

court and of the First Circuit Court of Appeals affirming

summary judgment together with the denial of Petition for

Panel Rehearing/Rehearing En Banc are included in the

appendix to this petition.

+

STATEMENT OF JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

+

CONSTITUTIONAL PROVISION INVOLVED

This petition involves the Constitutional Right to

Freedom of Speech and the Due Process Clause of

Amendment V to the Constitution of the United States,

which provides, in pertinent part, that no person shall

2

“_.. be deprived of ... property, without due process of

law; ...” as well as Equal Protection of the laws contained

in Amendment XIV to the Constitution of the United

States.

-s

vy

STATEMENT OF THE CASE

During Petitioner’s employment with Business Ex-

press Airlines (BEX) in Westport, CT, Petitioner witnessed

BEX aircraft conducting passenger operations with air-

craft that were not airworthy as a result of the severe

regulatory violations that frequently occurred at BEX. At

the time, a BEX aircraft had recently crashed in a nearly

inverted attitude in the Atlantic Ocean killing all aboard.

Petitioner complained directly te BEX managers Wayne C.

Heller (Heller) and John O’Brien (O’Brien) on January 30,

1994, emphasizing that BEX should operate its airline

safely during an interstate telephone conversation re-

corded pursuant to 18 U.S.C. § 2511. App. 12. FAA Inspec-

tor Costa confirmed, during a similarly recorded

conversation, that Costa investigated and notified BEX of

Petitioner’s “dispatch” complaint that was filed with the

FAA on January 29, 1994. Petitioner’s complaints to both

the FAA and to BEX managers Heller and O’Brien per-

tained to BEX’s violations of Federal Aviation Regulations

(FAR) that jeopardized the safety of BEX passenger flight

operations. App. 12. Heller threatened_to fire Petitioner on

February 4, 1994, noting Petitioner’s prior employment

with the FAA. App. 13. Petitioner was fired by Heller on

February 28, 1994 from BEX shortly after Petitioner

complained directly to Heller and O’Brien, Petitioner’s

then supervisors at BEX, and to the FAA Aviation Safety

Hotline (FAA). BEX subsequently filed for bankruptcy.

3

During the bankruptcy hearing, Heller testified that

he was responsible for firing Petitioner and the decisive

reason Petitioner was fired was because Petitioner “posed

a significant safety threat”. App. 29-33. BEX manager

Mary DePaola testified that she was responsible for

producing unsigned tardiness reports, the first of which is

dated July 10, 199[4], App. 28, when Petitioner was fired

on February 28, 199[4], making tardiness impossible

according to BEX written records. Every report in Peti-

tioner’s BEX employment file is unsigned by Petitioner in

violation of the provisions of the forms and BEX company

policy, suggesting these reports were produced after

Petitioner’s termination to conceal the retaliatory dis-

charge.

Subsequently, both sides aviation experts confirmed

that EVERY safety report in Petitioner’s BEX personnel

file is without merit, App. 34, demonstrating that safety,

the basis for Petitioner’s termination, is false and there-

fore a pretext, thus establishing every essential element

necessary to prove the retaliatory discharge claim before

the district court. Further, the uncontradicted aviation

expert’s confirmation that every safety report is false

impeaches the unsigned tardiness reports as BEX manag-

ers Heller and DiPaola were responsible for producing

both the safety and tardiness reports. App. 34-36.

Defendant Gannon, Petitioner’s then counsel, missed

the deadline to amend Petitioner’s proof of claim in the

bankruptcy proceeding captioned Fornaro v. Business

Express, creating an irreconcilable conflict of interest.

During the bankruptcy trial, Attorney Gannon withheld

the above referenced tape recordings of Petitioner’s direct

safety complaints to BEX managers and the tape re-

cording confirming FAA Inspector Costa investigated and

notified BEX of Petitioner’s January 29, 1994 complaint to

4

the FAA. Attorney Gannon also refused to engage an

aviation expert to demonstrate that every safety report in

Petitioner’s BEX personnel file is falsified to demonstrate

safety, the basis for Petitioner’s firing is a pretext and to

impeach the tardiness reports.

Accordingly, it was impossible for Petitioner to suc-

ceed before the bankruptcy court or on appeal due to

Gannon withholding the tape recordings of protected

speech together with the lack of expert analysis demon-

strating every safety report is falsified, thus forcing the

malpractice action captioned Fornaro v. Gannon, et al. in

the district court. Attorney Gannon’s history of conflict

representation and fraud on the court is outlined in the

First Circuit opinion, Pearson v. First N.H. Mortgage

Corp., 200 F.3d 30 (1st Cir. 1999).

In opposing summary judgment in the matter cap-

tioned Fornaro v. Gannon, et al., before the district court

were the transcripts of the recorded conversations of

Petitioner complaining directly to BEX managers empha-

sizing the safety of BEX passenger flight operations (true

31-51lq claim), and of FAA Inspector Costa confirming

Costa investigated and notified BEX of Petitioner’s com-

plaint to the FAA Safety Hotline made on January 29,

1994.

Petitioner also provided the district court with

Heller’s bankruptcy court testimony confirming Heller

fired Petitioner for allegedly posing a “significant safety

threat”. App. 29-33. The district court was also provided

with undisputed aviation expert analysis confirming that

EVERY safety report in Petitioner’s BEX personnel file is

without merit, demonstrating safety, the basis for termi-

nation, is false and therefore a pretext. App. 34-36. Every

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essential element necessary to demonstrate Petitioner’s

retaliatory discharge claim was present before the district

court, prohibiting summary judgment for Respondents. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), McDon-

nell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

' The district court granted summary judgment in favor

of Respondents, holding that BEX was unaware that one

of its emplevees had made a complaint. App. 24. It is

impossible for BEX manager Heller not to have known of

Petitioner’s direct safety complaints to Heller that were

recorded on January 30, 1994. App. 12. Further FAA

Inspector Costa’s recorded confirmation that Costa inves-

tigated and notified BEX of Petitioner’s January 29, 1994

complaint to the FAA Safety Hotline similarly makes the

district court finding impossible.

Petitioner timely filed his notice of appeal for First

Circuit review of the impossible basis the district court

reached in granting summary judgment. The First Circuit

recognized “ ... that the district court overlooked certain

evidence (e.g., the Costa tape) and that the court did not

address what plaintiff now says was his “‘true § 31-51q’

claim” (complaints to Heller and O’Brien). App. 11.

Incredibly, the First Circuit found that, “... it was

just barely possible that the FAA investigated plaintiff’s

complaint ...”. App. 13. This finding by the First Circuit

is similarly impossible as FAA Inspector Costa informed

Petitioner during the recorded conversation:

C: Costa F: Fornaro

F: And I was wondering there was a complaint filed

on the 29th of January 1994 about staffing deficien-

cies and I'd like to know what date your office con-

tacted Business Express to inform them of that?

6

Staffing deficiencies in what area?

In flight operations to include the flight crews

You mean Dispatch (emphasis)

Yes

C: Well uhh... Iwas the POI (Principal Operations

Inspector) at that time, ... but I do remember some-

body stating that the dispatch was overbooked so I

went down and checked on it ... but I am sure that

the company (BEX) was notified of it (complaint) ...”

(emphasis)

F: You are?

C: Yes (emphasis)

Finding that the FAA “just barely possible” investi-

gated Petitioners “dispatch” complaint is contrary to FAA

Inspector Costa’s recorded confirmation. To date, BEX has

not offered any evidence that another BEX employee also

complained to the FAA regarding the staffing levels at

BEX dispatch that violated numerous Federal Aviation

Regulations (FAR), including FAR 121.395. Therefore the

Costa recording confirms that FAA Inspector Costa inves-

tigated a “dispatch” complaint filed on January 29, 1994 as

a result of Petitioner’s complaint to the FAA Safety Hot-

line.

The First Circuit similarly concluded, “ ... that no

reasonable jury could find that BEX discharged plaintiff

‘on account of’ the safety-related statements that he made

to his supervisors in the context of complaining about his

work schedule.” App. 14. This finding conflicts with the

First Circuits own finding establishing “ ... plaintiff

7

emphasized that BEX should ... operate its airline safely

”, App. 12, during Petitioner’s recorded complaints to

BEX manager Heller, who testified he was apa for

firing Petitioner.

The recordings of Petitioner complaining directly to

BEX managers and FAA Inspector Costa’s recorded con-

firmation that he investigated and notified BEX of Peti-

tioner’s January 29, 1994 complaint to the FAA was the

basis for Law Prof. Martin Margulies, Connecticut’s

leading Free Speech expert, to submit his uncontested

expert opinion confirming that Petitione:’s direct com-

plaints to Heller and O’Brien regarding the safety of BEX

passenger flight operations are protected by the First

Amendment. An example of the safety complaints memo-

rialized on audio tape that Petitioner made directly to

Heller includes Petitioner stating to Heller, “ ... I don’t

think its safe to operate in that fashion”. Petitioner com-

plained to Heller regarding the safety of BEX flight

operations six (6) times during the recorded conversation.

,

_

REASONS FOR GRANTING THE WRIT

This case involves questions of exceptional national

importance pertaining to airline safety -— a significant

public interest, U.S. Constitutional Rights of Free Speech,

Due Process and Equal Protection as well as Employment

Discrimination. The decisive legal rulings delineated

below conflict with the clear principles this Court has

established on Free Speech, Due Process, Employment

Discrimination, and Rights guaranteed “ad the U.S. Consti-

tution.

8

Every safety report in Petitioner’s BEX personnel file

has been demonstrated to be false by uncontradicted

aviation expert analysis. Left uncorrected, the adverse

BEX employment history will continue to harm Peti-

tioner’s career, in retaliation for Petitioner’s efforts to

uphold federal law, protect the flying public, and prevent

further fatalities that had recently occurred at Business

Express Airlines. This case also establishes dangerous

precedent for other whistleblowers, which is intolerable in

a post 9/11 era. This Court should grant certiorari to

reinforce that whistleblowers will be provided the utmost

protection by law, thereby encouraging any person to

identify and report safety-related issues, thus leading to a

safer society.

I. PETITIONER’S RIGHTS OF FREE SPEECH

GUARANTEED BY THE FIRST AMENDMENT

WERE DEPRIVED BY THE FIRST CIRCUIT

ERRONEOUSLY AFFIRMING SUMMARY JUDG-

MENT NOTWITHSTANDING THE FIRST CIR-

CUIT CONFIRMING THAT PETITIONER

“EMPHASIZED THAT BEX SHOULD ... OP-

ERATE ITS AIRLINE SAFELY” DURING PE-

TITIONER’S RECORDED COMPLAINTS TO

BEX MANAGER HELLER, THE INDIVIDUAL

RESPONSIBLE FOR FIRING PETITIONER.

This Court has frequently reaffirmed that speech on

public issues occupies the highest rung of the hierarchy of

First Amendment values, and is entitled to special protec-

tion. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913

(1982); Carey v. Brown, 447 U.S. 455, 467 (1980).

The First Circuit correctly acknowledged that Peti-

tioner “ ... emphasized that BEX should employ enough

9

staff to operate its airline safely ... ”, App. 12, in com-

plaining to Heller on January 30, 1994. This acknowledg-

ment overwhelmingly demonstrates that Petitioner’s

direct complaints to BEX manager Heller relates to the

safety of BEX passenger flight operations, clearly a public

concern. “Whether an employee’s speech addresses a

matter of public concern must be determined by the

content, form, and context of a given statement, as re-

vealed by the whole record.” Connick v. Myers, 461 U.S.

138 (1983). Under Connick and its progeny, employee

speech must address matters of public concern, as opposed

to purely personal concerns such as the employee’s own

status or standing in the workplace. Ezekwo v. New York

City Health & Hospitals Corp., 940 F.2d 775, 781 (2d Cir.),

cert. denied, 502 U.S. 1013 (1991). Whether employee

speech addresses matters of public concern is a question of

law. Hale v. Mann, 219 F.3d 61 (2d Cir. 2000); Lewis v.

Cowen, 165 F.3d 154, 161-62 (2d Cir. 1999) (citations

omitted). :

Therefore the First Circuit correctly found that

Petitioner “...emphasized that BEX should employ

enough staff to operate its airline safely ...”, App. 12, to

then erroneously find, “ ... that no reasonable jury could

find that BEX discharged plaintiff “on account of” the

safety-related statements that he made to his supervisors

... ” App. 14. The First Circuit failed to explain how

Petitioner’s complaints emphasizing safety, would not

allow a reasonable jury to find that BEX discharged

Petitioner “on account of” the safety-related statements

that he made to his supervisors.

Moreover, Heller testified before the bankruptcy court

that Petitioner was fired because he posed a “significant

safety threat”. App. 29-33. Every safety report in Peti-

tioner’s BEX personnel file has been proven false by

10

uncontested aviation expert analysis, App. 34, establishing

Petitioner could not be fired for safety reasons in the

absence of Petitioner’s safety coniplaints to BEX managers

and to the FAA, while also impeaching the unsigned

tardiness reports, the first one dated after Petitioner’s

firing. Mt. Healthy City School District Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977). The uncontested fact that

Petitioner complained privately and directly to BEX

manager Heller regarding the safety of BEX flight opera-

tions further establishes Petitioner’s direct complaints to

Heller are protected by the First Amendment. Givhan v.

Western Line Consol. School Dist., 439 U.S. 410 (1979).

Because the First Circuit’s interpretation of First Amend-

ment doctrines is an innovation, this Court should grant

certiorari to guide the First Circuit back to established

precedent that recognizes the First Amendment’s primary

aim is the full protection of speech upon issues of public

concern.

II. PETITIONER’S RIGHTS OF DUE PROCESS

GUARANTEED BY THE FIFTH AND FOUR-

TEENTH AMENDMENT WERE DEPRIVED

WHEN THE FIRST CIRCUIT GRANTED SUM-

MARY JUDGMENT BY RESOLVING DIS-

PUTED FACTS IN FAVOR OF THE MOVANT,

INCLUDING ISSUES OF CREDIBILITY.

The lower court’s allowance of summary judgment

was improper because the court did not evaluate the

record evidence in accordance with the proper standards

for deciding summary judgment motions and the court

usurped the function of the jury by making findings of fact

and drawing inferences from the evidence in favor of the

movant, rather than determining whether genuine issues

of material fact had been raised. LaFond v. Gen. Physics

a ee

11

Servs. Corp., 50 F.3d 165 (2d Cir. 1995). The judge is not to

“weigh the evidence and determine the truth of the matter

but to determine whether there is a genuine issue for

trial.” Such evidence is required to be viewed in the light

most favorable to the plaintiff. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986).

A plaintiff’s burden in establishing a prima facie case

is not intended to be an onerous one. Christian v. Wal-

Mart Stores, Inc., 252 F.3d 862, 870 (6th Cir. 2001). Any

direct evidence offered by the plaintiff in response to a

summary judgment motion must be accepted as true.

Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994).

Here, the First Circuit found, “Sometimes, plaintiff

was late for work. Although plaintiff insists that it (tardi-

ness) was all a fabrication ...”. App. 12. BEX’s evidence of

tardiness before the bankruptcy court consisted of tardi-

ness reports, ALL unsigned by Petitioner, in violation of

BEX company policy and the provisions of the tardiness

form itself. The first tardiness report is dated July 10,

199[4], when Petitioner was fired on February 28, 199[4] —

nearly five months after Petitioner’s firing making Peti-

tioner’s tardiness impossible according to BEX written

records. Ms. DiPaola’s bankruptcy court testimony con-

firmed that she dated the first tardiness report July 10,

199[4], which was before the district court and the First

Circuit. App. 28. If more were needed, BEX’s tardiness

records for February 1994 consisted of incomplete comput-

erized printouts from BEX’s security system containing

entry and exit times for other BEX employee’s, however

Petitioner’s alleged entry time on February 28, 1994

required Heller’s handwritten entry alleging tardiness on

the day Heller fired Petitioner. The BEX security system

was not even able to demonstrate the alleged tardiness

12

casting significant doubt on the tardiness records and

raising the crucial issue of credibility that was erroneously

resolved in favor of the movant.

Significantly, the First Circuit stated, “... the report

of plaintiff’s aviation expert did nothing to undermine the

evidence of plaintiff’s tardiness.” App. 14. Both sides’

aviation experts agreed that EVERY safety report in

Petitioner’s BEX file is without merit and false. BEX

managers Heller and/or DiPaola were responsible for the

production of the false safety reports and of the unsigned

tardiness reports, easily allowing a reasonable jury to

infer that the incorrectly dated and unsigned tardiness

reports were also falsified, similar to the proven false

safety reports.

Numerous federal circuits have cautioned that “sum-

mary judgment should seldom be used in employment-

discrimination cases.” By granting summary judgment the

courts below failed to consider BEX’s intent and failed to

apply the summary judgment standard “with added rigor

in employment discrimination cases, where intent and

credibility are crucial issues.” Summary judgments

“should seldom be used in employment discrimination |

cases.” O’Shea v. Yellow Technology Services, Inc., 185 F.3d |

1093, 1098 (10th Cir. 1999) (quoting Smith v. St. Louis

University, 109 F.3d 1261, 1264 (8th Cir. 1997). Because |

discrimination claims often turn on the employer’s intent,

courts ordinarily consider summary judgment inappropri-

ate to settle an issue like intent. Cone v. Longmont United

Hosp. Association, 14 F.3d 526, 530 (10th Cir. 1994); see

Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994)

(stating that “the summary judgment standard is applied

‘with added rigor in employment discrimination cases,

ee

13

where intent and credibility are crucial issues.’”) (citations

omitted).

The First Circuit resolved disputed issues of fact in

favor of the movant by establishing BEX’s disputed allega-

tion of tardiness as undisputed fact, when the tardiness

records are suspect as they are unsigned by Petitioner,

admittedly dated incorrectly and therefore impossible to

be true, thus raising the crucial issue of credibility. More-

over, the First Circuit found in favor of the movant by

finding that it was “just barely possible that the FAA

investigated plaintiff’s complaint ... ” App. 13. As out-

lined above, the transcript of FAA Inspector Costa con-

firms Costa investigated and notified BEX of Petitioner’s

January 29, 1994 complaint to the FAA which was before

the district court and the First Circuit. The First Circuit

also acknowledged that Petitioner, “emphasized that BEX

should ... operate its airline safely” during Petitioner’s

direct complaint to Heller, who clearly knew of Petitioner’s

complaints on January 30, 1994 App. 12. prior to firing

him on February 28, 1994. App. 13.

Therefore, the crucial issue of credibility that the

lower courts improperly decided in favor of movant, by

granting summary judgment, is contrary to the standard

established by the Tenth, Eighth and Seventh Circuits and

the Supreme Court. Finally, the evidence of pretext indi-

cates that the. issue of retaliation should go to a jury.

Pastran v. K-Mart Corp., 210 F.3d 1201 (10th Cir. 2000).

Accordingly, even Respondents’ counsel confirmed in a

February 19, 2002 letter to Respondents’ insurance carrier

that, “ ... this case will now be decided by a jury... ”

based upon the facts established in Petitioner’s expert

14

reports that were before both the district court and the

First Circuit.

Every essential element necessary to demonstrate

Petitioner’s claim for retaliatory discharge was before the

district court and the First Circuit thereby precluding the

granting of summary judgment. Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). Therefore, summary judg-

ment was clearly improper as the lower courts resolved

factual issues in favor of the movant, instead of determin-

ing whether factual issues exist for trial. The First Circuit

erroneously made disputed allegations of tardiness, into

undisputed issues of fact to improperly grant summary

judgment. App. 12. This Court should grant certiorari

because the First Circuit’s holding does not follow estab-

lished Supreme Court precedent and is inconsistent with

numerous other Federal Circuits.

Ill. THE TEMPORAL PROXIMITY SUFFICIENT

TO ESTABLISH CAUSATION IN RETALIATION

CLAIMS.

In this matter Petitioner complained directly to BEX

manager Heller on January 30, 1994. A falsified safety

report was inserted in Petitioner's BEX personnel file

without his knowledge on January 31, 1994. App. 36.

Heller (without justification) threatened to fire Petitioner

on February 4, 1994, App. 13, and Petitioner was fired on

February 28, 1994 — four weeks after Petitioner’s com-

plaint directly to BEX manager Heller and his complaint

to the FAA Aviation Safety Hotline on January 29, 1994.

App. 12.

Although Petitioner offered facts to support every

essential element of his claim, and the First Circuit

ee |

15

acknowledged that Heller threatened to fire Petitioner

within five days of Petitioner’s protected speech, summary

judgment was entered against him. In doing so, the First

Circuit standard is vastly different from the standard

established by numerous other Federal Circuits with

respect to causation. The Tenth Circuit held, causal

connection can be shown by “evidence of circumstances

that justify an inference of retaliatory motive, such as

protected conduct closely followed by adverse action.”

Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343

(10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982). See

also Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179

(10th Cir. 1999) (assuming that temporal proximity of two

months and one week is sufficient to support a prima facie

case of retaliation); see also Couty v. Dole, 886 F.2d 147,

148 (8th Cir. 1989) (temporal proximity sufficient as a

matter of law to establish final element in a prima facie

case.); Bassett v. City of Minneapolis, 211 F.3d 1097, 1105-

06 (8th Cir. 2000) (extensive pattern of protected activity

followed by disciplinary measures established causation);

O’Bryan v. KTIV Television, 64 F.3d 1188, 1193-94 (8th Cir.

1995) (three months between filing administrative com-

plaints and firing established causal connection); Woodson

v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997) (stating

that “temporal proximity between the protected activity

and the termination is sufficient to establish a causal

link”); Gorman-Bakos v. Cornell Coop. Extension of

Schenectady County, 252 F.3d 545, 554-55 (2d Cir. 2001)

(five months not too long to support an inference of

causation; four months sufficient to establish causation to

survive summary judgment; noting that the Second

Circuit “has not drawn a bright line to define the outer

limits beyond which a temporal relationship is too at-

tenuated to establish a causal relationship between the

16

exercise of a federal constitutional right and an allegedly

retaliatory action” but that other circuits have done so.);

Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir.

1997) (finding an inter-circuit conflict concerning the

element of causation and proving a causal connection

through timing).

In Rebarchek v. Farmers Co-op Elevator & Mercantile

Ass’n, 272 Kan. 546, 553, 35 P.3d 892 (2001), the Kansas

Supreme Court held that the passage of slightly more than

five months between the plaintiff’s filing of his workers

compensation claim and his discharge “probably ap-

proaches the limit that would be recognized as part of a

pattern for the purpose of establishing a causal connection

between the protected activity and termination.” 272 Kan.

at 556.

The First Circuit decision in this matter acknowl-

edged that Heller threatened to fire Petitioner on Febru-

ary 4, 1994, five days after Petitioner complained directly

to Heller “emphasizing” BEX should operate its airline

safely and six days after Petitioner’s complaint to the FAA.

Heller made note of Petitioner’s prior employment with

the FAA in threatening to fire Petitioner on February 4,

1994. App. 12-13.

In Clark County School District v. Breeden, 532 U.S.

268 (2001), the Supreme Court noted that courts examin-

ing temporal proximity as evidence of the causation

element in the prima facie case of retaliation require the

connection to be “very close.” Jd. at 273 (quoting O’Neal v.

Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001).

The facts present in this matter, applied to the various

federal circuit standards outlined above, would have

established causation and a prima facie case of retaliation,

17

thus precluding summary judgment. Instead, the First

Circuit established that causation is not for the jury in a

matter where Petitioner was threatened to be fired within

five days of his directly complaining to Heller, and was

ultimately fired four weeks later. If more were needed, a

demonstrably false safety report was inserted in Peti-

tioner’s BEX file on January 31, 1994 without his knowl-

edge, the day following Petitioner’s direct complaints to

Heller. App. 12, 36.

The prima facie and pretext showings of causation

should be clear in order to ensure that the McDonnell

Douglas framework remains efficacious in the context of

cases alleging retaliation. In Breeden, the Court found that

courts relying on temporal proximity generally hold that

the timing must be very close. Still, the exact limits of

what defines very close timing remains a question. In

McDonnell Douglas, the Court granted certiorari in order

to clarify the standards governing the disposition of an

action challenging employment discrimination. However,

because of the varying standards among the Federal

Circuits pertaining to the establishment of causation, the

McDonnell Douglas framework does not yet provide a

uniform standard governing the disposition of an action

challenging employment discrimination.

Every standard enumerated above from the various

federal circuits, applied to the facts in this matter, estab-

lishes causation that would have precluded the granting of

summary judgment.

This Court should grant certiorari to standardize the

temporal proximity sufficient to establish causation in

retaliation claims thereby providing a uniform standard.

ry

v

18

CONCLUSION

For the reasons stated, Petitioner respectfully re-

quests that this Honorable Court grant his Petition for

Writ of Certiorari, and decide this case consistent with its

holding in Connick v. Myers, 461 U.S. 138 (1983); Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973); and to

standardize the temporal proximity sufficient to establish

causation in retaliation claims.

Respectfully submitted,

Dated: May 2, 2005

REX FORNARO

41 Ann Road

Long Valley, New Jersey 07853

(908) 850-0980

App. 1

Not for Publication in West’s Federal Reporter

Citation Limited Pursuant to Ist Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 03-1816

REX FORNARO,

Plaintiff-Appellant,

ae

WILLIAM S. GANNON, ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Torruella, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge,

Rex Fornaro on brief pro se.

Michael M. Lonergan, Margaret H. Nelson and Sullo-

way & Hollis, P.L.L.C. on brief for appellees.

December 1, 2004

App. 2

Per Curiam. Pro se plaintiff Rex Fornaro appeals a

district court order that granted the defendants summary

judgment in this legal malpractice action. Plaintiff main-

tains that the defendants, New Hampshire attorney

William S. Gannon and the law firm of Wadleigh, Starr &

Peters, PLLC (WS&P), negligently litigated certain re-

taliatory discharge claims against plaintiff’s former

employer in the New Hampshire bankruptcy court. While

plaintiff has correctly identified minor errors in the

district court’s description of the evidence, we conclude

that the court reached the correct result and that the

-plaintiff’s claims of procedural error also fail. Accordingly,

we affirm, for the reasons explained below.

‘

Between 1993 and 1994, plaintiff worked as a flight

dispatcher for Business Express Airlines (BEX). On

February 28, 1994, BEX fired plaintiff. Plaintiff secured

Connecticut counsel and filed a civil wrongful discharge

action against BEX in the Connecticut superior court.

Inter alia, his complaint alleged that BEX terminated

plaintiff for reporting BEX’s alleged violation of flight

safety statutes and regulations to the Federal Aviation

Administration (FAA) and to other agents, servants, or

employees of BEX. Plaintiff sought compensatory and

punitive damages on the grounds that BEX discharged

him for exercising his constitutional rights to free speech,

as protected by Conn. Gen. Stat. Ann, § 31-51lq, and in

ie

App. 3

violation of Connecticut’s Whistleblower Law, Conn. Gen.

Stat. Ann. § 31-51m.’

BEX removed plaintiff’s civil action to federal court.

Thereafter, an involuntary Chapter 11 petition for BEX’s

bankruptcy was filed with the New Hampshire bank-

ruptcy court, and plaintiff’s Connecticut counsel filed a

proof of claim on his behalf. Plaintiff then hired the

defendants to represent him on his retaliatory discharge

claims against BEX in the New Hampshire bankruptcy

court.’ Attorney Gannon represented plaintiff in a two-day

trial of these claims. Plaintiff maintained that BEX fired

him because he made an anonymous telephone complaint

about BEX’s short-staffing to the FAA on January 29,

1994, one month before his discharge. Testifying on behalf

of BEX’s Official Unsecured Creditors Committee (OUCC),

- plaintiff’s former supervisors at BEX maintained that

they fired plaintiff for chronic tardiness and that they did

not know about his anonymous complaint to the FAA when

they fired him.

The bankruptcy court disallowed plaintiff’s claim in

its entirety. Assuming that both of plaintiff’s statutory

claims were based on his anonymous complaint to the

FAA, the bankruptcy judge ruled that plaintiff failed to

prove that BEX terminated him in violation of Conn. Gen.

Stat. Ann. §§31-51m and 31-51q because the evidence

failed to show that BEX knew about that complaint before

* Plaintiff’s complaint also asserted common law claims that are

not implicated in the instant appeal. We do not address them.

* The defendants also filed a separate civil action against BEX’s

officers and directors on plaintiff’s behalf. The district court dismissed

that action, and this court summarily affirmed. See Fornaro v.

McManus, 187 F.3d 621 (1st Cir. 1998) (Table).

App. 4

it fired plaintiff. The judge further concluded that even if

BEX had such knowledge, plaintiff’s supervisors had

established that plaintiff’s tardiness was a legitimate,

non-retaliatory reason for his discharge and that plaintiff

had failed to prove that this reason was a pretext.

Still represented by attorney Gannon, plaintiff ap-

pealed the bankruptcy court’s decision to the district court.

While that appeal was pending, plaintiff consulted attor-

ney John Burwell Garvey at present defense counsel’s law

firm (Sulloway and Hollis) with an eye toward securing

representation in this legal malpractice action. Ultimately

attorney Garvey declined to represent plaintiff. Seeking

$10 million in damages, plaintiff filed a pro se complaint

for legal malpractice that alleged, inter alia, that attorney

Gannon negligently failed to present sufficient evidence

that BEX fired plaintiff in retaliation for his complaint to

the FAA. Attorney Gannon promptly withdrew from

plaintiff’s bankruptcy appeal, and the district court

allowed plaintiff’s pro se motion to dismiss it. Present

defense counsel filed an answer approximately four

months after attorney Garvey had declined to take plain-

tiff’s side in this case.

At the initial pretrial conference plaintiff suggested

that defense counsel might have a conflict of interest

because plaintiff had consulted another attorney at Sullo-

way and Hollis before he filed this lawsuit. Defense

counsel indicated that he had looked into the matter and

did not believe that he had a conflict of interest. The

magistrate judge gave plaintiff until December 1, 2000 to

file a motion to disqualify defense counsel. Plaintiff did not

do so.

App. 5

Approximately one year later, plaintiff secured his

own counsel.* The parties engaged in discovery and the

court scheduled a jury trial to begin on May 6, 2003. One

day before the filing deadline for the defendants’ motion

for summary judgment, plaintiff’s counsel both moved to

withdraw. Citing only “irreconcilable disputes and conflicts

. concerning litigation strategy and other substantive

matters,” counsel informed the court that plaintiff opposed

withdrawal and requested an in camera hearing. Without

holding a hearing, the district court promptly allowed

counsel’s motions.

Plaintiff moved for reconsideration. Inter alia, he

complained that neither of his attorneys had identified a

reason that justified his withdrawal with a trial date set

and a dispositive motion pending and that the court

should hold a hearing and deny counsel’s motions or,

alternatively, extend all deadlines by sixty (60) days. After

plaintiff’s now-withdrawn attorneys filed oppositions, the

district court denied plaintiff’s motion for reconsideration

while granting his request for an extension. Judged from

_ the time plaintiff submitted his motion for reconsidera-

tion, plaintiff received another sixty (60) days to find new

counsel and ninety (90) days to oppose the defendants’

motion for summary judgment.

Stripped of his own counsel by the order denying

reconsideration, plaintiff sought to disarm his opponents by

filing a motion to amend his complaint to name Sulloway

and Hollis and the attorney he had previously consulted

* Plaintiff was represented by two attorneys in the district court. A

Massachusetts attorney served as lead counsel and a New Hampshire

attorney appeared as local counsel.

\

App. 6

there, John Burwell Garvey, as defendants. Plaintiff

purported to state a separate legal malpractice claim

against these attorneys on the ground that attorney

Garvey gave plaintiff bad advice about the statute of

limitations that governed his malpractice claim against

attorney Gannon. In addition, plaintiff alleged that he

gave attorney Garvey privileged information to see if

Garvey would represent him in this case, that present

defense counsel improperly had access to that information,

and that the district court should discipline Sulloway and

Hollis for unethical conduct. The defendants urged the

court to deny plaintiff’s motion to amend his complaint

and to sanction plaintiff for trying to force a change in

defense counsel long after the deadline for filing a motion

for disqualification had expired.

The magistrate judge denied plaintiff’s motion to

amend his complaint as both “untimely (unduly delayed

and prejudicial so close to trial) and as futile (failing to

state a cause of action).” Plaintiff filed a motion for recon-

sideration anc a wm otion for leave to file a reply to the

defendants’ objection to his motion to amend his complaint

that specifically asked the district court to disqualify

present defense counsel on the ground that plaintiff had

disclosed confidential information to attorney Garvey.

Without specifically addressing the disqualification issue,

the magistrate judge endorsed plaintiff’s proposed reply

“moot” in light of his previous order denying plaintiff’s

motion to amend his complaint. Plaintiff’s motion for

reconsideration of that order remained pending.

Thereafter, the district court docketed plaintiff’s

timely opposition to the defendants’ motion for summary

judgment and the defendants’ reply to same. Two days

later, the district judge announced that he had decided to

App. 7

grant the defendants’ motion and that an opinion justify-

ing the court’s decision would follow. Plaintiff moved for

reconsideration. The court then issued an unpublished

opinion which ruled that none of the evidence that plain-

tiff claimed attorney Gannon should have offered in the

bankruptcy court would have made any difference to the

trial’s outcome because that evidence still failed to show

that BEX knew about plaintiff’s complaint to the FAA.

Simultaneously, the court denied plaintiff’s motion for

reconsideration of the summary judgment order and his

motion for reconsideration of the order denying his motion

to amend his complaint to add Sulloway and Hollis and

_attorney Garvey as defendants. Plaintiff filed a timely

notice of appeal.

Il.

On appeal, plaintiff argues that the district court

erred in granting the defendants summary judgment. In

addition, plaintiff contends that the district court abused

its discretion by allowing his attorneys to withdraw and

thereafter denying plaintiff’s motion to amend his com-

plaint to make Sulloway and Hollis and attorney John

Burwell Garvey defendants. Repeatedly citing Pearson v.

First N.H. Mortgage Corp., 200 F.3d 30 (1st Cir. 1999),

plaintiff implies that he deserves a second bite at the

apple because the district court required him to proceed

pro se involuntarily and because defense counsel has a

conflict of interest. We disagree.

We review the orders granting plaintiff’s attorneys’

motions to withdraw only for an abuse of discretion. See,

Andrews v. Bechtel Power Corp., 780 F.2d 124, 134 (1st Cir.

1985). Plaintiff contends that the district court abused its

App. 8

discretion by allowing his attorneys to withdraw with a

trial date set, a dispositive motion pending, and without

the requisite showing of “good cause” or a hearing on

counsel’s motions. Defendants say that the district court

did not abuse its discretion because the court gave plaintiff

sufficient time to find new counsel and respond to their

summary judgment motion. The defendants have the

better argument.

Counsel’s motions to withdraw were governed by New

Hampshire Rule of Professional Conduct 1.16. In relevant

part, this rule provides that: “a lawyer . .. shall withdraw

... if (1) the representation will result in violation of the

rules of professional conduct ... . [,]” see Rule 1.16(a), and

that: “a lawyer may withdraw ... if withdrawal can be

accomplished without material adverse effect on the

interests of the client, or if: ... (6) other good cause for

withdrawal exists.” See Rule 1.16(b) (emphasis supplied).

The Comments to this rule suggest that the district court

had the discretion to treat plaintiff’s counsel’s representa-

tion that “irreconcilable disputes and conflicts” existed as

sufficient cause for withdrawal without requiring counsel

to spell out the conflicts at an in camera hearing.* More-

over, here the plaintiff and his counsel were able to air

* The ABA Model Code Comments that accompany Rule 1.16

recognize that:

Difficulty may be encountered if withdrawal is based on the

client’s demand that the lawyer engage in unprofessional

conduct. The court may wish an explanation for the with-

drawal, while the lawyer may be bound to keep confidential

the facts that would constitute such an explanation. The

lawyer’s statement that professional considerations require

termination of the representation ordinarily should be ac-

cepted as sufficient. (emphasis supplied).

App. 9

their dispute through plaintiff’s motion for reconsidera-

tion and subsequent filings which confirmed that their

relationship had become acrimonious. Since plaintiff had

represented himself during the first year and a half that

this case was pending and trial was still two months away

when the court denied reconsideration, the court could

reasonably assume that allowing withdrawal would not

have a material adverse effect on plaintiff. The district

court gave plaintiff a fair shot at finding successor counsel

and opposing the defendants’ motion for summary judg-

ment by granting plaintiff the extensions he requested.

If more were needed, we note that the record suggests

that plaintiff and his counsel had at least one serious

disagreement over what the rules of professional conduct

required plaintiff’s counsel to do in light of defense coun-

sel’s inadvertent disclosure of a privileged communication.

This alone supplies “good cause” for withdrawal. The

district court did not abuse its discretion by allowing

plaintiff’s counsel to withdraw.

Similarly, the district court did not abuse its discre-

tion by denying plaintiff’s motion to amend his complaint.

Insofar as plaintiff sought to add a separate legal malprac-

tice claim against attorney Garvey and Sulloway and

Hollis, his proposed amended complaint both failed to

state a viable claim and was unsupported by the record.

- See Hatch v. Dep't of Children, Youth and Their Families,

274 F.3d 12, 19 (1st Cir. 2001). The defendants’ submis-

sions showed that plaintiff could not reasonably have

relied on any comment attorney Garvey might have made

about the statute of limitations when plaintiff filed this

lawsuit because attorney Garvey expressly warned plain-

tiff not to rely on Sulloway and Hollis at that point. See

Sheinkopf v. Stone, 927 F.2d 1259, 1264-65 (1st Cir. 1991)

App. 10

(attorney-client relationship may be implied only where

record shows purported client’s reliance on attorney was

objectively reasonable or that attorney knowing of such

reliance did nothing to negate it) (citation omitted).°

We also reject plaintiff’s contentions that the district

court should have disqualified Sulloway and Hollis in

response to the allegations raised in plaintiff’s motion to

amend his complaint and that this court should do so now.’

To be sure, an attorney’s fiduciary duties may be triggered

by an initial consultation even if employment does not

result. See, e.g., Westinghouse Electric Corp. v. Kerr-McGee

Corp., 580 F.2d 1311 (7th Cir. 1978); Polyagro Plastics, Inc.

v. Cincinnati Milacron, Inc., 903 F. Supp. 253, 256 (D.P.R.

1995). And the fact that the defendants’ submissions

showed that Sulloway and Hollis never represented

plaintiff in this lawsuit does not necessarily mean that

plaintiff did not disclose confidential information to

attorney Garvey that might have disqualified Sulloway

and Hoilis from defending this case. But even if we as-

sume that plaintiff made such a disclosure, disqualifica-

tion was not required absent some showing that this gave

defendants an unfair advantage in this case. See Kevlik v.

Goldstein, 724 F.2d 844, 848 (1st Cir. 1984) (holding

dilatory disqualification motions may be granted when

* It is also clear that plaintiff had decided to sue attorney Gannon

and WS&P before he contacted Sulloway and Hollis and that plaintiff

voluntarily dismissed his bankruptcy appeal after attorney Gannon

properly withdrew from it. Plaintiff has only himself to blame for the

loss of this avenue of review.

* We reject defendants’ claim that plaintiff has waived the dis-

qualification issue. “Failures to object, unless a true waiver is involved,

are almost always subject to review for plain error.” See Chestnut v.

City of Lowell, 305 F.3d 18, 19 (1st Cir. 2002) (en banc) (per curiam).

App. 11

either the court’s confidence in the attorney’ vigorous

representation of his client is threatened or the attorney is

in a position to use privileged information to the unfair

advantage of the new client) (citations omitted). Plaintiff

made no such showing. Absent an actual adverse effect,

“merely ‘conducting [a] trial with counsel that should have

been disqualified does not “indelibl ly] stamp or taint” the

proceedings.’” See Fiandaca v. Cunningham, 827 F.2d 825,

831 (1st Cir. 1987) (citations omitted). Similarly, because

plaintiff has failed to show how any alleged conflict on the

part of defense counsel tainted the summary judgment

proceedings, he is not due a second bite at the apple now.

III.

Finally, we turn to the summary judgment. Like the

bankruptcy court, the district court assumed that plain-

tiff’s Connecticut whistleblower and free speech claims

both rested on the theory that BEX fired him in retaliation

for his anonymous complaint to the FAA. On appeal,

plaintiff argues that this was error, that his “true § 31-51q

claim” did not require him to prove that BEX knew about

his complaint to the FAA, and that the district court

erroneously overlooked this claim and failed to view the

record in the light most favorable to him. We recognize

that the district court overlooked certain evidence (e.g.,

the Costa tape) and that the court did not address what

plaintiff now says was his “true § 31-51q” claim. Even

when we account for these omissions, the record fails to

show that attorney Gannon’s aileged malpractice even

arguably caused the loss of plaintiff’s retaliatory dis-

charge claims.

App. 12

We review the district court’s decision de novo, mind-

ful that “on a motion for summary judgment all reasonable

inferences must be drawn in favor of the non-moving

party, regardless of who bears the ultimate burden of

proof.” See Douglas v. York County, 360 F.2d 286, 288 (1st

Cir. 2004). The record discloses that plaintiff worked for

BEX for approximately one year, during which he com-

muted to BEX’s Westport, Connecticut headquarters from

his home in Long Ann, New Jersey. Sometimes, plaintiff

was late for work. Although plaintiff insists that it was all

a fabrication, the OUCC’s evidence before the bankruptcy

court disclosed that plaintiff was late at least five times

before he engaged in any arguably protected conduct.

Indeed, on January 4, 1994, plaintiff’s supervisor (Di-

Paola) warned plaintiff that he would be terminated if he

was late once more.’

On January 29, 1994, plaintiff made an anonymous

telephone complaint to the FAA about BEX’s shortstaffing.

On the following day, plaintiff made similar complaints to

BEX managers O’Brien and Heller in two separate tele-

phone conversations that plaintiff secretly tape-recorded.”

In these conversations, plaintiff protested the fact that he

was scheduled to work the next day (1/31/94) even though

he had not had enough time off to rest to enable him to

dispatch aircraft safely. Although plaintiff emphasized

that BEX should employ enough staff to operate its airline

safely, he also complained that BEX had scheduled him to

work in retaliation for a grievance that he had previously

filed, and he only agreed to work (and indeed, did work)

” The district court erroneously attributed this warning to supervi-

sor Heller. The Heller warning came one month later.

* Heller eventually realized that he was being taped.

App. 13

after Heller assured him that he would be paid time and a

half for his efforts. A few days after that (i.e., on 2/4/94),

BEX supervisor Heller called plaintiff into his office and,

after noting that plaintiff had once worked for the FAA,

warned plaintiff that he would be fired if he was late for

work again or if he released a flight late. BEX records

indicate that plaintiff thereafter was late several more

times before his February 28th discharge.

Plaintiff maintains that the foregoing chain of events

suffices to prove that BEX fired him in retaliation for his

1/29/94 anonymous complaint to the FAA (in violation of

§ 31-51m and § 31-51q), and, if not for that, then for his

1/30/94 telephone complaints to managers O’Brien and

Heller (in violation of § 31-51q only). We disagree. The

record shows only that it was just barely possible that the

FAA investigated plaintiff’s complaint, and there was no

evidence that, if any such investigation occurred, it oc-

curred under circumstances that would have suggested

that plaintiff had triggered the investigation. On this

record, the proffered admissible evidence was simply too

weak and speculative to permit a rational factfinder to

infer that BEX fired plaintiff for whistleblowing. Thus,

summary judgment on this aspect of plaintiff’s legal

malpractice claim was proper. See 5 R. Mallen & J. Smith,

Legal Malpractice, § 33.11, p. 87 (5th ed. 2000) (“A possi-

bility is not sufficient to allow an issue to go to the jury,

even if the attorney’s negligence impaired the client’s

ability to marshal the necessary evidence.”). See also, Witte

v. Desmarais, 614 A.2d 116, 120-21 (N.H. 1992) (causation

is not for jury where reasonable minds can not differ on

the outcome); Arnone v. Town of Enfield, 831 A.2d 260, 267

(Conn. 2003) (holding plaintiff must “produce sufficient

App. 14

evidence to remove the jury’s function of examining infer-

ences and finding facts from the realm of speculation”).”

Similarly, we conclude that no reasonable jury could find

that BEX discharged plaintiff “on account of” the safety-

related statements that he made to his supervisors in the

context of complaining about his work schedule. See, e.g.,

Lowe v. Amerigas, Inc., 52 F. Supp. 2d 349 (D. Conn. 1999)

(citations omitted). On this record, the evidence of plaintiff’s

tardiness that was before the bankruptcy court remains

essentially unimpeached. As the district court correctly

noted, the report of plaintiff’s aviation expert did nothing to

undermine the evidence of plaintiff’s tardiness. Plaintiff’s

unsupported claims of fabrication add nothing to his case.

See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 533-37

(1st Cir. 1996). The record shows that, saddled with a

lengthy commute, plaintiff was sometimes late for work

notwithstanding repeated warnings. Even when the evidence

attorney Gannon did not offer is factored into the picture, no

reasonable jury could find that plaintiff's complaints to the

FAA or to BEX managers prompted his discharge. Therefore,

the district court did not err by granting defendants sum-

mary judgment on plaintiff’s legal malpractice claims.

The appellees’ motion to file a sur-reply brief is al-

lowed. The judgment of the district court is summarily

affirmed. See Loc. Rule 27(c).

* Contrast, LaFond v. General Physics Services Corp., 50 F.3d 165

(2d cir. 1995) (vacating summary judgment where plaintiff himself

informed employer of his whistleblowing activity). Here plaintiffs has

not suggested that he told anyone at BEX that he had complained to

the FAA.

App. 15

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Rex Fornaro Civil No. 00-189-B

Vv.

William S. Gannon, Esquire

Wadleigh, Starr & Peters, PLLC

MEMORANDUM AND ORDER

(Filed May 16, 2003)

Rex Fornaro brings this pro se legal malpractice

action against William S. Gannon, Esq. and Wadleigh,

Starr & Peters, P.L.L.C. (the “Wadleigh firm”), a law firm

located in Manchester, New Hampshire. Fornaro alleges

the defendants committed legal malpractice in the litiga-

tion of an employment claim against his former employer.

Before me is defendants’ motion for summary judgment.

(Doc. No. 37)

Defendants argue that they are entitled to summary

judgment because Fornaro cannot demonstrate that he

would have been successful in his underlying claim but for

defendants’ alleged negligence. I agree. Accordingly, I

grant defendants’ motion.

App. 16

I. BACKGROUND’

A. Facts Related to Fornaro’s Termination

Claim

Fornaro worked as a flight dispatcher for Business

Express (“BEX”), an airline carrier, from January 1993

through February 28, 1994. He worked at BEX’s head-

quarters in Westport, Connecticut

On January 24, 1994, Fornaro made an anonymous

complaint to the Federal Aviation Administration’s (“FAA”)

Aviation Safety Hotline. His complaint consisted of “non-

specific” information that BEX was understaffed and a

claim that scheduling of flight crews was an issue. Ex. J.

to Defs’ Mot. for Summ. J. The FAA memorandum detail-

ing his complaint states that the safety hotline took no

action on his complaint because “the caller” provided only

“non-specific” information. Jd.

Fornaro’s personnel file at BEX contains multiple

reports of tardiness. Fornaro’s supervisors, Mary DePaola

and Wayne Heller, both spoke with him about his tardi-

ness and entries reflecting these discussions were made in

Fornaro’s personnel file. On January 4, 1994, prior to

Fornaro’s FAA complaint, Heller told Fornaro that he

would be terminated the next time he was late for work.

BEX’s attendance log for the week of February 29, 1994

reflects that Fornaro was late for work on February 25, 26,

27 and 28, 1994. Fornaro was terminated on February 29,

1994.

* The background facts are presented in the light most favorable to

the non-movant, Fornaro. See Navarro v. Pfizer Corp., 261 F.3d 90, 94

(1st Cir. 2001).

App. 17

Fornaro’s supervisors both contend that they did not

learn of his FAA complaint until several years after he was

terminated. Fornaro claims, however, that two days after

he made his complaint, he overheard a fellow BEX em-

ployee, Tom DeMarco, comment that BEX was aware of a

pending FAA investigation against the company.

B. Litigation of Underlying Claim

Fornaro subsequently retained Richard Franchi, an

attorney in Connecticut, to represent him in a suit against

BEX. Franchi sued BEX in Connecticut Superior Court on

Fornaro’s behalf on October 9, 1995. The complaint in the

Connecticut action included a common law wrongful

termination claim, a claim based on Connecticut’s Whis-

tleblower Statute, Conn. Gen. Stat. § 31-51 (1997 & Supp.

2002) and a claim based on a Connecticut statute prohibit-

ing the discipline or discharge of employees on account of

employee’s exercise of certain constitutional rights, Conn.

Gen. Stat. §31-5l1q (1997 & Supp. 2002). BEX subse-

quently filed for bankruptcy protection in the United

States Bankruptcy Court for the District of New Hamp-

shire. In February 1996, Franchi filed a $199,856.62 proof

of claim in the bankruptcy court proceeding based on the

same legal theories that formed the basis of Fornaro’s

Connecticut lawsuit.

At Fornaro’s request, Attorney William Gannon filed

an appearance in the bankruptcy court proceeding on June

4, 1996. On April 15, 1997, the bankruptcy court issued an

order confirming a reorganization plan for BEX under

which its assets were to be sold and the proceeds distrib-

uted to creditors according to their priority. In May 1997,

the Official Creditors’ Committee for BEX filed an objection

App. 18

to Fornaro’s claim. The objection was served on Franchi,

who subsequently filed a response on June 4, 1997. After

Franchi filed his response, Fornaro informed Gannon that

he wanted Gannon, instead of Franchi, to be his lead

counsel in the bankruptcy proceeding.

The Creditors’ Committee subsequently offered

Fornaro a $175,000 allowance for his claim. Although

Gannon repeatedly recommended that Fornaro accept the

allowance, see Ex. H, (a)-(f) of Defs’ Mot. for Summ. J., he

refused because the offer did not require BEX to purge

several disciplinary reports from his personnel files.

Fornaro’s claim was tried before Judge Vaughn in the

bankruptcy court on February 22 and 23, 1999. In a

detailed order dated February 11, 2000, Judge Vaughn

rejected all three of Fornaro’s causes of action because he

determined that BEX had legitimately terminated Fornaro

for tardiness. See In re Business Express, Inc v. Fornaro,

2000 WL 33679420, No. 96-10130-MWV (Bankr. D.N.H.).

In reaching this conclusion, Judge Vaughn also necessarily

rejected Fornaro’s claim that BEX terminated him because

he had filed a complaint with the FAA. See id.

C. Malpractice Claim

Fornaro filed this action in April 2000. He claims that

Gannon and the Wadleigh firm committed malpractice by

failing to: (1) timely amend the proof of claim in the

bankruptcy proceeding; (2) retain an expert to quantify

Fornaro’s damages; (3) retain an expert to demonstrate

that his personnel file had been falsified; (4) take deposi-

tions and retain experts to rebut allegedly false testimony;

(5) call witnesses to demonstrate that Fornaro was fired in

App. 19

an act of retaliation; and (6) present sufficient evidence of

retaliation.

Fornaro retained legal malpractice trial experts,

David Scholl and Martin Margulies, for purpose of identi-

fying the appropriate standard of care, breaches of that

standard, and the effect that the breaches had on the

bankruptcy proceeding. Margulies and Scholl, in separate

reports, identified evidence that they claim either should

have been offered in the bankruptcy proceeding or at least

“investigated” by Gannon. This evidence consisted of: (1)

Fornaro’s secretly taped telephone conversations with his

supervisor Heller, and with John O’Brien, BEX’s vice

president of flight operations, the day after Fornaro’s

complaint to the FAA; (2) Fornaro’s secretly taped tele-

phone conversation with DeMarco and Joe Costa, the FAA

inspector. who oversaw BEX at the time of Fornaro’s

complaint; (3) testimony of Costa, O’Brien, DeMarco; (4) a

February 1995 letter from Tom Huettner, an FAA official,

stating that Fornaro’s FAA complaint had been passed on

to the regional FAA office; (5) a letter dated February 15,

1995 from Attorney Franchi to the president of BEX

discussing Fornaro’s FAA complaint; and (6) testimony of

an aviation expert, Kit Darby, challenging certain discipli-

nary reports in Fornaro’s personnel file related to his job

performance, but not his tardiness. Ex. M to Pls’ Obj. to

Defs’ Mot. for Summ. J.

Il. STANDARD OF REVIEW

Summary judgment is appropriate where “the plead-

ings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that

App. 20

the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). The party seeking summary

judgment must first demonstrate the absence of a genuine

issue of material fact in the record. See Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit

and a dispute over it is ‘genuine’ if the parties’ positions on

the issue are supported by conflicting evidence.” Intern

Ass’n of Machinists and Aerospace Workers, AFL-CIO v.

Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st

Cir. 1996) (citations omitted).

Once the moving party carries its burden, the burden

shifts to the nonmoving party to “produce evidence on

which a reasonable finder of fact, under the appropriate

proof burden, could base a verdict for it; if that party

cannot produce such evidence, the motion must be

granted.” Ayala-Gerena v. Bristol Myers-Squibb Co., 95

F.3d 86, 94 (1st Cir. 1996) (citing Celotex, 477 U.S. at 323;

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

If the non-moving party provides “evidence that is merely

colorable, or is not significantly probative,” summary

judgment should be granted. Wynne v. Tufts Univ. Sch. of

Med., 976 F.2d 791, 794 (1st Cir. 1992) (quoting Anderson,

477 U.S. at 249-50) (internal quotation marks omitted).

Moreover, Fornaro is not freed from the obligation to

comply with procedural rules merely because he is pro-

ceeding pro se. See Ruiz Rivera v. Riley, 209 F.3d 24, 27 n.2

(1st Cir. 2000).

Ill. ANALYSIS

A plaintiff in a legal malpractice case must prove that:

(1) an attorney-client relationship existed between the

a

App. 21

plaintiff and his attorney; (2) a breach of that duty oc-

curred; and (3) compensable harm was caused by the

breach. Wong v. Ekberg, 148 N.H. 369, 373 (2002) (citing

Mahoney v. Shaheen, Cappiello, Stein & Gordon, 143 N.H.

491, 495-98 (1999) (emphasis added). To satisfy the causa-

tion requirement in a case where the alleged malpractice

occurred in connection with a litigated claim, a plaintiff

must demonstrate that “but for” the attorney’s misconduct,

a claim or defense in the underlying action would have

been successful. See Fairhaven Textile Corp. v. Sheehan,

Phinney, Bass & Green, PA, 695 F.Supp. 71, 75 (D.N.H.

1988). Therefore, if a legal malpractice plaintiff has had

the benefit of a full trial on the merits with respect to an

underlying claim, the focus of the causation analysis

becomes whether the additional evidence, at this stage

construed in the light most favorable to the plaintiff,

would have produced a different result. See id.; see also

Morris v. Getscher, 708 F.2d 1306, 1310-11 (8th Cir. 1983)

(court in subsequent malpractice case is not free to rede-

cide issues decided in an underlying trial, instead, the fact

finder is limited to deciding whether but for the malprac-

tice, the result in the earlier case would have been differ-

ent).

Fornaro asserted three claims in the underlying

action: (1) wrongful termination;’ (2) a violation of Conn.

Gen. Stat. § 31-51m; and (3) a violation of Conn. Gen. Stat.

* The Connecticut Supreme Court has recently held that Conn.

Gen. Stat. § 31-51m provides the exclusive remedy for employees who

are terminated for whistleblowing. See Campbell v. Town of Plymouth,

811 A.2d 243 (Conn. 2002). Nevertheless, I will assume for purposes of

analysis that when Fornaro commenced the underlying action, he

would have been permitted to assert distinct claims for wrongful

termination and a violation of the whistleblower law.

App. 22

§ 31-51q. All three claims depend upon Fornaro’s assertion

that BEX discharged him because he had made an

anonymous complaint to the FAA rather than, as BEX

asserts, because he repeatedly was late for work. See, e.g.,

Thibodeau v. Design Group One Accountants, LLC, 802

A.2d 731 735-36 (Conn. App. 2002) (wrongful termination);

Lafond v. General Physics Services Corp., 50 F.3d 165, 172-

74 (2nd Cir. 1995) ( Conn. Gen. Stat. § 31-51m); Williams

v. Bayer Corp., 982 F.Supp. 120, 123 (D. Conn. 1997)

(Conn. Gen. Stat. §31-51lq.). Because Judge Vaughn

expressly rejected this assertion in the underlying action,

Fornaro cannot prevail unless he can prove that Judge

Vaughn would have reached a different conclusion but for

his attorneys’ malpractice.

The evidence that Fornaro’s experts identify does not,

by even the most lenient reading, support Fornaro’s claim

that he was discharged because he complained to the FAA.

First, Fornaro’s experts argue that DeMarco’s testimony

and a tape of a telephone conversation between Fornaro

and DeMarco should have been presented in the bank-

ruptcy proceeding. The transcript of the telephone conver-

sation indicates, however, that DeMarco does not

remember making any comments regarding a complaint

from the FAA to Fornaro while DeMarco was employed by

BEX. At most, the transcript demonstrates that, after both

DeMarco and Fornaro were no longer employed by BEX,

DeMarco “heard” that Heller was being investigated by

the FAA. This does nothing to connect Fornaro’s anony-

mous complaint to his termination.

Second, Fornaro’s experts allege that Gannon should

have offered as evidence taped telephone conversations

between Fornaro, Heller, and BEX’s vice-president,

O’Brien. As the transcripts of these conversations indicate,

a eA ie SR Mi itt Ae atin SS a tat Sill Pa i as eS NAO Che BORE Ser ee

App. 23

however, at no point in either conversation was a com-

plaint to the FAA mentioned. While these discussions

demonstrate that Fornaro was upset with his schedule at

BEX, they do not link him to the FAA complaint.

Third, Fornaro’s experts contend that Gannon should

have offered the transcript of a taped conversation be-

tween Fornaro and Costa, the FAA inspector who oversaw

BEX at the time. When read in its entirety, the transcript

of this conversation demonstrates nothing more than the

fact that Costa was not certain whether anyone ever

passed Fornaro’s anonymous complaint on to BEX. The

conversation does nothing to bolster Fornaro’s causation

argument.

Fourth, Fornaro’s experts argue that Gannon should

have offered a letter dated February 15, 1995 to BEX’s

president, Brian Bedford, from Attorney Franchi. This

letter explains that Fornaro intends to file a wrongful

termination suit against BEX. It does not support

Fornaro’s effort to prove a connection between the FAA

complaint and his termination.

Fornaro’s experts also argue that Gannon should have

introduced a letter from FAA supervisor Huettner to

Fornaro. In summary, this letter explains that a copy of

Fornaro’s complaint was provided to the FAA’s New

England regional office even though the complaint’s

“nonspecific nature” did not require a response. This letter

does not provide any link between Fornaro’s supervisors

and the FAA complaint. Indeed, the letter further demon-

strates that the FAA never investigated Fornaro’s com-

plaint.

After considering the evidence that Fornaro contends

should have been offered to support his claims, I am

App. 24

satisfied that he fails to establish that BEX was even

aware that one of its employees had made a complaint to

the FAA. Because such proof is vital to Fornaro’s malprac-

tice claim, defendants are entitled to summary judgment.’

IV. CONCLUSION

Viewing the record in a light most favorable to

Fornaro, he has failed to demonstrate facts sufficient to

fulfill the causation requirement of his legal malpractice

claim. Accordingly, I grant defendants’ motion for sum-

mary judgment (Doc. No. 37). The clerk of the court shall

enter judgment in favor of the defendant.

SO ORDERED.

/s/ Paul Barbadoro

Paul Barbadoro

Chief Judge

May 16, 2003

cc: Rex Fornaro, pro se

Michael Lonergan, Esq.

* Fornaro’s experts also contend that an aviation expert’s report

demonstrates that non-tardiness related disciplinary reports in

Fornaro’s personnel file were without merit. Because the aviation

expert's report does nothing to call into question Judge Vaughn’s

finding that BEX terminated Fornaro due to his tardiness, I decline to

analyze the merits of the report.

* Because Fornaro has not succeeded in calling into question Judge

Vaughn’s conclusion that Fornaro was terminated for tardiness rather

than for filing a complaint with the FAA, I do not consider the merits of

his other malpractice claims.

4A altel. nat ng 2 ane

App. 25

United States Court of Appeals

For the First Circuit

No. 03-1816

REX FORNARO,

Plaintiff, Appellant,

v.

WILLIAM S. GANNON, ESQ., ET AL.,

Defendants, Appellees,

ROBERT E. MURPHY, ESQ.,

Defendant.

Before

Boudin, Chief Judge,

Torruella, Selya, Circuit Judges,

Cyr, Senior Circuit Judge,

Lynch, Lipez and Howard, Circuit Judges.

ORDER OF COURT

Entered: February 1, 2005

The petition for rehearing having been denied by the

panel of judges who decided the case and the petition for

rehearing en banc having been submitted to the active

judges of this court and a majority of the judges not having

voted that the case be heard en banc, it is ordered that the

petition for rehearing and petition for rehearing en banc

be denied.

App. 26

By the Court:

Richard Cushing, Donovan, Clerk.

By: MARGARET CARTER

Chief Deputy Clerk.

[cc: Rex Fornaro, Michael M. Lonergan, Esq. and Marga-

ret H. Nelson, Esq.] ;

oO a eae wen blagi Sains tt Te! to 1 LL BS .

App. 27

UNITED STATES BANKRUPTCY COURT

DISTRICT OF NEW HAMPSHIRE

IN THE MATTER OF: Case #96-10130

Manchester, New Hampshire

BUSINESS EXPRESS, INC. February 22, 1999

Debtor 9:20 a.m. O’clock

TRANSCRIPT OF HEARING ON OBJECTION TO

CLAIM FILED BY OFFICIAL COMMITTEE OF UNSE-

CURED CREDITORS TO ALLOWANCE OF REX

FORNARO CLAIM; MOTION BY OFFICIAL COMMIT-

TEE OF UNSECURED CREDITORS FOR DECLARA-

TORY JUDGMENT REGARDING RESPONDENT'S

ALLEGED DAMAGE CLAIM; MOTION BY CREDITOR

REX FORNARO TO FILE AMENDED PROOF OF CLAIM

BEFORE THE HONORABLE

MARK W. VAUGHN, J.U.S.B.C.

(Filed Apr. 6, 2000)

~ ok *

(58] MARY DEPAOLA - Cross/Gannon

* OK *

Q. Now, Ms. DePaola, the — the first warning,

Plaintiffs Exhibit 1 —-

A. Mmhmm.

Q. -is dated July 10, 1993.

A. Mmhmm.

Q. That one may predate the employee handbook,

correct?

A. Right.

|

7

|

App. 28

Okay. But if you direct your attention —

Mmhmm.

— to that form for a minute —

Mmhmm.

oP Pp

— what day did you prepare this exhibit?

A. I don’t recall exactly the particular date that I

prepared it.

Q. You don’t?

A. No.

Q. Could it have been a year after the incident?

A. No. No, it would have been within a few days, but

I don’t know exactly which date I prepared it.

Q. Okay. Well, do you see your signature line?

[59] A. Yes.

Q. And what date is that?

A. It shows a 7-10, and I must have put ’94 instead

of ’93 by mistake, but that’s — it was 7-10 is when I pre-

pared it.

Q. 7-10 of what year?

A. It would have been ’93.

Q. You just wrote 94?

A. By mistake. I was — I may have been busy and —

as I was signing it.

App. 29

Q. How do you know the ’93 is correct and the ’94 is

wrong?

MR. FEINSMITH: Objection, Your Honor. She’s

already answered that question.

THE COURT: I think that’s argumentative.

She’s testified that, in fact, she signed it in 93, and she

made a mistake.

BY MR. GANNON:

Q. Okay. The — it doesn’t indicate in the upper right-

hand corner that copies of this were going anywhere, does

it?

A. No.

Q. And can you explain to me how this ended up in

Mr. Fornaro’s personnel file?

A. I always — anytime I counseled anyone or there

was a verbal or a written, I always put something in the

personnel file.

Q. And this doesn’t list any prior warning dates?

A. No, because that was the first warning.

* * *

[122] WAYNE HELLER - Cross/Gannon

* * *

Q. Okay, and for the sake of cleaning this up as we

go forward, you were the person who on February 28

actually fired Mr. Fornaro? ?

A. Yes.

App. 30

Q. Now I think your testimony, as I understand it, is

that Mr. Fornaro’s alleged tardiness, as you perceived it,

posed a significant threat to safety?

A. Yes.

* * *

[123] Q. And over a period slightly in excess of a

year, Mr. Fornaro was late, as I understand it, six docu-

mented times?

A. Six documented times.

Q. Okay, and do you have an idea what percentage

six over 365 is?

A. N-—lJIcouldn’t give you the percentile.

Q. Okay, but it’s relatively small?

A. Yes, but he was late a lot more than six docu-

mented times.

©

As reported to you?

Correct.

By someone else?

Yes.

Outside of your direct personal knowledge?

If you want to put it that way, yeah.

I do. Is that true?

Yes. I don’t feel that people would lie, though.

You don’t?

Or OP OP Oo P

RALLIES Te i ee

App. 31

A. No.

Q. Okay. Now if I’m understanding your testimony

correctly, it really wasn’t the lateness, it was the safety

issue?

MR. FEINSMITH: Objection, Your Honor. I

don’t think that he testified to that.

THE COURT: Why don’t you rephrase the

question.

BY MR. GANNON:

[124] Q. Were you concerned about the lateness

because it posed a significant safety threat?

A. Yes.

Q. ae thought — that’s what I thought you said, too.

A. Well, Rex’s tardiness inhibited his ability to do his

job.

Q. Im not arguing with that. I'm just trying to

understand where you were. That’s where you are, right?

Rex’s tardiness inhibited his ability to do his job properly,

and it created a significant safety risk?

A. Yes.

Q. You have to say Yes, Mr. Heller.

A. I’m hesitating because I feel like I’m being set up

here. I’m sorry.

THE COURT: Just answer the questions. Don't

worry about where he’s going.

* * *

App. 32

[131] MR. GANNON: Well, the relevance, Your

Honor, is clear and simple. Mr. Heller is trying to convert

an alleged lateness problem into a safety issue to justify

stepping around the normal policy, and the fact of the

matter is that this safety problem is just as fabricated as a

great deal of the rest of the testimony, and in about a

minute, we're going to prove that.

ok * *

MR. GANNON: It’s going to show in about three

questions, Your Honor, that safety was never an issue.

* * *

[132] BY MR. GANNON:

Q. Mr. Heller, have you had a chance to look at the

entries? |

A. Yes.

Q. Okay. Putting aside the question of whether this

is a self-serving letter or not, is — what Mr. Fornaro did is

he ran through all the adverse reports in his file, correct?

A. Idon’t know if he did or not.

Q. Okay. Well — so he may have simply selected

certain doc — let — tell you what, let me go at it this way. If

his tardiness raised the type of safety and performance

issues that you allege, releases going after the scheduled

departure time, can you show me an employee disciplinary

report that deals with that issue?

MR. FEINSMITH: Objection, Your Honor. How

could he possibly — he’s not the keeper of the records. He’s

here as a wit — as a fact witness today.

EATEN REE Ad Gane ate a nein a

App. 33

THE COURT: No, Ill allow him to answer the

question.

BY MR. GANNON:

Q. Can you show me one?

A. No. I don’t have one here.

Q. Okay. Did you ever complete any?

[133] A. No.

Q. But you knew about this problem?

A. I knew about Rex — late, yes.

Q. Well, you — did you or did you not know about .

releases going to the cockpit after the scheduled departure

time?

A. Yes.

Q. But you didn’t fill out an employee disciplinary

report?

A. No.

App. 34

ine omesedcwmanincanreensmsonimeias 5 Rama eee TNETaRM SRC

November 28, 2001

This is an analysis for Mr. Rex Fornaro and the Law Office

of Dan Neelon. It is a review and opinion of certain disci-

plinary reports that were placed in the personnel records

of Mr. Fornaro while he was employed as a dispatcher

with Business Express Airlines. This report was con-

structed by Mr. Kit Darby, President of Aviation Informa-

tion Resources, Inc. (AIR, Inc.) an aviation consulting and

career information firm in Atlanta, Georgia.

Mr. Darby is president of AIR, Inc. and former 3 owner

and executive vice president of the Future Airline Pilots of

America. Mr. Darby is a Captain for a major U.S. airline

and was a military standardization/instructor pilot and

instrument flight examiner in the United States Army and

Georgia National Guard for 23 years.

There are three disciplinary reports under this review.

Report 1 is related to a scheduling error that pertains to

weather minimums required for a flight. Report 2 is

related to Mr. Fornaro’s failure to issue a release with a

disclaimer. Report 3 is a flight control irregularity report

pertaining to the release time for a flight in accordance

with Business Express operating procedures. This analysis

involves a review of pertinent Federal Aviation Regula-

tions (FAR) as applied to Mr. Fornaro’s reports. The FARs

are federal regulations that govern many aspects of

aviation in the United States, including the licensing of

airmen (including dispatchers) and air carrier operations.

App. 35

Report 1

This report is dated May 9, 1993. Mr. Fornaro was accused

of issuing a dispatch release for a flight to Presque Isle,

Maine when the weather was below the minimums re-

quired. The weather report indicated that the forecast

visibility at the time of arrival for Presque Isle was 1 mile,

occasionally '/2 mile. A Notice to Airmen (NOTAM), was

also included in the weather report. A NOTAM advises

flight crews and planners of otherwise unpublished cir-

cumstances that may affect the flight. One NOTAM in the

weather report stated that the glideslope for the ILS 1

approach was out of service. This would affect the mini-

mums permissible for the flight to be dispatched. The

minimums for the approach with the glideslope out of

service is % mile. This minimum was met, and it was

appropriate for the aircraft to be dispatched under these

circumstances.

Report 2

This report is dated January 24, 1994. Mr. Fornaro was

accused of being behind in his releases for a portion of the

day. He advised his supervisor that he was awaiting a

minimum equipment list (MEL) item on an aircraft prior

to issuing the release. His supervisor stated that the

releases should have been issued with a disclaimer. This

in essence would be delegating part of his authority to

another person to determine whether the flight should be

dispatched in compliance with the MEL. FAR 121.663

clearly states, The dispatcher ... may not delegate his

authority to dispatch. Had Mr. Fornaro done what was

suggested by his supervisor, he clearly would have been in

violation of the FARs.

App. 36

Report 3

This report is dated January 31, 1994. Mr. Fornaro was

accused of not properly issuing a release for a flight. Each

airline has a set of operating rules that are approved by

the Federal Aviation Administration. These internal rules

are known as OP SPECS (Operations Specifications), and

each airline is required to comply with their OP SPECS.

The Business Express OP SPECS states that dispatch

releases will be sent between 30 minutes and one hour

before the departure time of the first flight authorized in

the release. The flight in question, flight 4502, was sched-

uled for a departure time of 3:45 PM. This means that the

flight would be released between 2:45 PM and 3:15 PM.

On the date in question, Mr. Fornaro completed his shift and

left work at 2:25 PM. Had Mr. Fornaro issued a release for

flight 4502 before leaving for the day, he would have been in

violation of his own company’s operating rules.

In summary, it appears that foundation for each of these

disciplinary reports is without merit. Mr. Fornaro would

have been required to violate FAA regulations or Business

Express procedures to avoid receiving them.

Sincerely,

/s/ Kit Darby

Kit Darby

President

AIR, Inc.

AVIATION INFORMATION RESOURCES

3800 Camp Creek Parkway, Suite 18-100 Atlanta, GA 30331-6228

Phone 800 247-2777 * Fax 800 247-3297

www .jet-jobs.com

www.air-experts.com