# Petition for Writ of Certiorari — Fornaro v. Gannon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 1140

## Text

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
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Constitutional Provision Involved.................ccccceecee0s 1
Dtedonmnaih COE Te AAG isciiscsssciastrieniceccianncntaeannessccane 2
Reasons For Granting The Writ.................ccccccseeseeees 7
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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

|
|
|

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0849%3A1. Public record. Not legal advice.