Petition for Writ of Certiorari — Grey v. Carrier/United Technologies Corp.

\98-805 \ Wrrer

yyy it WP

No. , CLERK

In The

Supreme Court of the United States

October Term, 1998

Oe rene ey

DANIEL J. GREY,

Petitioner,

V.

CARRIER/UNITED TECHNOLOGIES CORPORATION,

Respondent.

On Petition For A Writ Of Certiorari

To the United States Court of Appeals

For The Second District

PETITION FOR WRIT OF CERTIORARI

Daniel J. Grey

| 421 Tennyson Avenue 9 ECEIVED

' Syracuse, N.Y. 13204-2518

Telephone: (315) 488-8726 . 201998

Petitioner, Pro Se Pret UP itt CLERK

wh Remit COURT, U.S.

QUESTIONS PRESENTED

1. Whether summary judgment is properly

granted to defendant when plaintiff

has established prima facie, and pre-

sented missed evidence of pretext, perva-

sive harassment and hostility, and re-

taliation.

2. Whether a plaintiff's case is jeop-

ardized, and risks being dismissed if

Court is one of the most heavily docketed

courts in the country.

3. Whether Court should increase its

support of A.D.E.A. to protect the in-

creasing number of elder workers against

growing abuses in the workplace, by

stronger application of F. R 56.

4. Whether 7th Amendment “right of trial

by jury" had been obstructed.

LIST OF ALL PARTIES

The parties to the proceedings in the

Second Circuit Court of Appeals were

petitioner DANIEL J. GREY, formerly a

Technical Writer for Carrier Air Condi-

tioning Company, located in Syracuse,

New York, a wholly owned subsidiary of

United Technologies Corporation, with

headquarters in Farmington, Connecticut;

and respondent CARRIER/UTC CORPORATION.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.....-+-eeeeee- 1

LIST OF ALL PARTIES... cssccccess Li

TABLE OF AUTHORITIES......+++++- 1V

ENTRODUCTION. ccccccccccsccesecese I

OPINIONS BELOW. .cccccccssccsvseee 4

JURISDICTIONS... cc cece eeeeessvees 4

CONSTITUTIONAL AND STATUTORY PRO-

VISIONS INVOLVED... .ceeeeeeeeeves 4

STATEMENT OF THE CASE.....eeeeee% 9

REASONS FOR GRANTING THE WRIT.... 9

I.THIS COURT SHOULD GRANT CERTIO-

RARI TO REESTABLISH THAT UNDER

AGE DISCRIMINATION IN EMPLOY-

MENT ACT CLOSE SCRUTINY OF ALL

EVIDENTIARY FACTS IS NECESSARY

IN CONCERT WITH FEDERAL RULE 56

ON SUMMARY JUDGMENT PROCEEDINGS

TO ASCERTAIN EVIDENCE OF

TRIABILITY . cc cccccccccccccscccces F

COMNCTUSTON ccc c esc eceeeseesceceoes 12

iv

TABLE OF AUTHORITIES

App.

Cases

Anderson v. Liberty Lobby, 477 U.S.

242, 255, 106 &. Ct. 2505, 2513

(19GG6) we cccvnccscccese Steeeeenivese bo

Benjamin v. United Merchants, 873

F.46 41 (208 Can. 1989 ec ccine ceeds 27

Franci v. Avco, 538 F. Supp. 250

(D. CORAM. TSE™r) sc ccecvceses eeeeeeeus 26

Gallo v. Prudential Residential

Services, 22 F.3d 1219, 1224

(26 Cis F9BG) 6 ccacew weeds ncscevees $2

Landan v. Bolger, 47 Empl Prac Dec

(CCH) P 38, 236 (E. D. NY) at

BD. BS, B37 ec wcvcccvecseenscevsseeeves 26

Lowe v. Commack Union Free School,

866 F.2d 1364 (2d Cir. 1989) cert.

denied 494 U.S. 1096 (1990) ..... 27

Maresco v. Evans Cosmetics, 964 F.2d

106. (2d Cie. T9914). scaccececedciceee $2

Owens v. N.Y. City Housing Authority,

934 F.2d 405,409 (2d Cit. 1991),

cert denied, 502 U.S. 964, 112,

Oo OG. SRE ese veneer cites cw 27

Vv

TABLE OF AUTHORITIES - Continued

App.

Parcinski v. Outlet, 673 F.2d 34, 36

(2d Cir. 1982) cert denied 459 U.S.

1103 (1983) -ccccccccsscececcsescers 27

Peele v. New York City Dept. of Social

Services/Human Resources Admin.,

1994 WL 389160, *5 (S.D. NY 1994

(citation Omitted. ).cccsccccsscsece 51

Rattner v. Netburn, 930 F.2d 204, 209

(26 -CEe. TOG viccicacnaesnsevisevar 15

Schwabenbauer v. Board of Education, Pg

667 ¥.24@ 308, 313 (2d Cir. i981)... §

Statutes Pg

28 U.8.C. $ 1331,.1337

29 U.S.C. § 216(b), 626(b),(c)

28 U.S.C. $3233

28 U.S.C. § 1254(1) ccces ceeesosecoeses 4

Rules

Fed. Rs Civ. P. SE6(G)ccccesceas eeeeeee#es. 5

U.S. Constitution

Seventh Amendment er Se Pee ree eee

own agli

1

INTRODUCTION

The law is clear on whether there

has been age discrimination as stated

under the Age Discrimination in Employ-

ment Act (ADEA) of 1967. After plaintiff

has show the existence of a prima face

case the employer can present a legiti-

mate, nondiscriminatory reason for its

action against the employee. To counter

the employer's reason, plaintiff must

then present convincing evidence the

employer's reason was pretextual.

Claims of harassment and hostility

in the work place may arise. These claims

must be shown to be pervasive. Employer

retaliation for filing a complaint with

government agencies is also unlawful.

This claim, also within the scope of the

ADEA, must include believable evidence

that retaliation took place.

There are also questions of prepon-

derance of the evidence, whether it be

circumstantial or statistical, or both.

These matters must be weighed and

examined by the Court. Through examina-

tion the Court must determine whether

there are facts worthy of a jury trial.

If the Court believes there are not, the

case will be dismissed without going to

trial, at a summary judgment hearing.

2

Fed. R. Civ. P. 56 is very clear on sum-

mary judgment matters (p 5, App. 29). If

the plaintiff appeals the lower Court's

decision to the Court of Appeals, that

Court may reexamine the facts and reverse

the decision of the lower Court, or af-

firm that Court's decision.

In this case, the District Court

said; there was no age discrimination

because even allowing that prima facie

may have been met there was no hostility,

that it appeared to be only the plain-

tiff's feeling there was hostility, that

there was no pervasiveness of harassment,

no evidence of pretext in the reason em-

ployer discharged plaintiff, no evidence

of retaliation, barely any evidence or

triable facts worthy of jury trial. These

were the views presented by defendant

although aware of the evidence. The Court

did not see even an allowable inference

of discrimination.

For whatever reason, the Court

missed all of the plaintiff's important

evidence, dismissing the case under ~.um-

mary judgment in approximately 15 min-

utes. The Judge read his decision from

notes, seemingly with his decision made

prior to entering the courtroom.

On appeal, after oral argument which

lasted approximately 10 minutes for each

3

counsel, the Court of Appeals announced

its affirming decision after several

days. In its written opinion (App. 37)

the Court of Appeals merely restated the

District Court opinions. Again, for

whatever reason, the Court of Appeals

did not see plaintiff's important evi-

dence.

During oral argument at 2d Circuit

defendant was erroneous in stating that

plaintiff had poor performance reviews

from Savin from the outset in 1987, and

from a previous supervisor, misrepre-

senting facts best left to a jury.

Petitioner respectfully prays that

this Court issue a Writ of Certiorari.

“

OPINIONS BELOW

The opinion of the United States Dis-

trict Court, Northern District New York

in Daniel J. Grey v. Carrier/United Tech-

nologies is unreported and is reprinted

in the Appendix to this Petition at App.

34.

The opinion of the Second Circuit

is unreported and is reprinted in the

Appendix to this Petition at App. 37.

JURISDICTIONS

Action filed in U. S. District Court

in Northern District of NY under 28

U.S.C. § 1331 and 1337, and 29 U.S.C. §

216(b),626(b),(c).

Appellate jurisdiction invoked under

District Court dispositive order pursuant

to 28 U.S.C. § 1291.

Second Circuit filed its judgment on

May 18, 1998.

This Court has jurisdiction under 28

U.S.C. § 1254(1).

5

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Seventh Amendment of the United

States Constitution provides:

In suits at common law, where the

value of the curency shall exceed twenty

dollars, the right of trial by jury shall

be preserved, and no fact tried by a

jury, shall be otherwise examined in any

Court of the United States, than accord-

ing to the rules of the common law.

(App. 7, 28).

2. Fed. R. Civ. P. 56(c) provides in

relevant part:

Summary judgment is appropriate only

where there is "no genuine issue as to

any material fact and ... the moving

party is entitled to a judgment as a mat-

ter of law," Schwabenbauer.

See App. 29 for additional provi-

sions of F.R. 56.

6

STATEMENT OF THE CASE

On Friday Sept. 3, 1993, plaintiff

was told by hie supervisor, Savin, with

human resources representative, Chamber-

lain, present, this was his last day of

work. He had heard earlier in the week

there was a rumor the department was be-

ing eliminated. He asked only one ques-

tion of Savin, "The whole department is

being eliminated?" She answered, Yes. The

department had 11 workers. DG dep p 269.

After 2 weeks, while attending the

company's outplacement center for dis-

placed workers, plaintiff noticed only 2

or 3 of the members intermittently in

attendance and learned that some had been

offered extended termination dates for up

to 3 months. In approximately 2 more

weeks he learned the department was being

reinstated under another division. Soon

after he noticed he (age 64) and one

younger member were the oniy two no long-

er at the outplacement center. App. 5.

On Oct. 19, 1993, plaintiff filed an

age discrimination complaint with N.Y.S.

Division of Human Rights (NYSHDR) which

led to automatic filing with the U.S.

Equal Employment Opportunity Commission

(EEOC). The Amended Complaint claims

were: 1) That supervisor Savin had cre-

ated a hostile work environment and sub-

7

jected him to unwelcome harassment

prompted by his age, which was not useful

to his job performance. 2) That plaintiff

was discharged on Sept. 3, 1993, with

official date being Oct. 1, 1993, while

several younger employers were retained,

with age being a determining factor. 3)

That the company later officially rehired

the majority of the younger workers, and

refused to rehire plaintiff, with age

being a determining factor. 4) That the

company retaliated against the plaintiff

by refusing to rehire him after learning

he had filed a complaint. App 25. Plain-

tiff sought lost pay and benefits, and

costs. Although not claimed in the case,

he also suffered loss of his severance

pay when he was told it could not be sent

to him “unless he withdrew his com-

plaint."

On Oct. 20, 1993, NYSDHR notifed the

company of plaintiff's complaint.

On. Oct. 27, 1998, EEOC notified the

company of plaintiff's complaint.

On Nov. 8, 1998, the EEOC notifica-

tion was date-stamped into Herb Smith's

office. Mr. Smith was a human resources

and diversity training manager, with ex-

pertise in equal employment opportunity

(EEO) and was involved in the depart-

ment's rehiring decisions. (App. 26).

8

On June 13, 1997, order dated June 30,

1997, plaintiff's case was dismissed by

the Honorable Frederick J. Scullin, Jr.

of the U.S. District Court for the North-

ern District of N.Y. for lack of evi-

dence, nonpervasive hostility, stray age-

related supervisory remarks, the compa-

ny's legitimate nondiscriminatory reason

for their adverse action, no evidence of

retaliation, no inference of age discrim-

ination, and the Court's opinion plain-

tiff's claims were based on only his

feelings he was discriminated against,

that the relationship between him and his

supervisor had seemingly risen to one of

animosity.

On June 30, 1997, the Court Order on

summary judgment was filed. App 1, 34.

_ On March 2, 1998, the case was heard

in oral argument by the 2nd Circuit Court

of Appeals in N.Y. City. App l.

On March 13, 1998, 2nd Circuit filed

its order of dismissal affirming the Dis-

trict Court decision, issued as mandate

May 25, 1998. App l, 37.

On May 18, 1998, the 2nd Circuit

denied rehearing. App l, 41.

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD GRANT CERTIORARI TO

REESTABLISH THAT UNDER AGE DISCRIMI-

NATION IN EMPLOYMENT ACT CLOSE SCRU-

TINY OF ALL EVIDENTIARY FACTS IS

NECESSARY IN CONCERT WITH FEDERAL

RULE 56 ON SUMMARY JUDGMENT PROCEED-

INGS TO ASCERTAIN EVIDENCE OF

TRIABILITY

The Court should acknowledge the need

to scrutinize with care all evidence in

A.D.E.A. cases that can encompass a

plaintiff's charges of pretext, harass-

ment, hostility, and retaliation, and the

need to increase the public good, App 3l.

The Court should recognize that when

it expresses "there is no question as to

the facts as to an employee's prior per-

formance," simply by agreeing with what a

supervisor has lately placed on the

employee's performance evaluations, a

powerful tool then exists for an employer

to use deviously to discharge an employee

for any reason; age, religion, color,

race, weight, appearance, politics, mari-

tal status, number of dependents, person-

ality, whatever reason that does not ap-

peal to a supervisor. This power of the

performance evaluation, App. 21, with

support of Court decision, therefore ren-

ders A.D.E.A. unenforceable.

10

Court should closely examine the

performance evaluations and work record

of the plaintiff which defendant claims

are subpar, rather than merely accepting

these claims as stated by defendant. Much

important evidence offered by the plain-

tiff has been overlooked by the Court,

evidence plaintiff believes should be

decided by jury trial. This evidence in-

cludes:

1. The 7-year handwritten record of

plaintiff's pervasive harassment and hos-

tility by Savin. DG dep. p 195, 235.

Sample in Exbt F (opp. to SJ).

2. The date-stamped letter to Herb Smith,

prior to rehiring of employees. Exbt K.

3. The first articulation by company that

poor performance was the reason for their

adverse action against him, 7 months af-

ter receiving notification of complaint

from NYSDHR. (response to NYSDHR).

4. Evaluation forms produced in discovery

for all dept. members showing the same

types of criticisms for all (records ob-

tained in discovery).

5. Manuscript work samples showing normal

criticisms for all, plaintiff and those

rehired. Exbt H.

11

6. Plaintiff's production output record

showing he frequently led the department

(plaintiff affid p 4).

7. Savin's hiring record which showed her

preference for young employees in her own

age category (20s-30s), particularly of

her own gender. (employee records from

discovery).

8. Attendance record showing plaintiff

lost only one day of work in 7 years un-

der Savin, for illness. (time sheets pro-

duced for discovery).

9. Taking assignments away from plaintiff

to give to new, young writers. (plaintiff

affid., dep p 124, 251).

10. Telling plaintiff the whole depart-

ment was eliminated when it was not.

Planning a writing/proofreading position

for a younger technical writer when

plaintiff had many more years experience.

(Savin dep p 59 and Excel committee

chart).

11. Defendant affidavits by managerial-

level employees who had no personal

knowledge of plaintiff. App. 23.

12. A note by the human_resources repre-

sentative stating she had been advised to

notify plaintiff he could not be sent his

12

severance check unless he withdrew his

complaint, obstructing his Seventh Amend-

ment right of trial by jury. (discovery

document, App. 7, 27.)

13. Final exit form given to plaintiff

showing he was discharged because of job

elimination. Boxes for performance or

cause were not checked. Exbt E.

14. Strong suggestion of scam in the de-

vious, disparate manner that Savin an-

nounced the department elimination, when

plaintiff was not present. Whitton dep p

47, Savin dep p 54, App. 5.

CONCLUSION

This Petition for Writ of Certiorari

should be granted.

Dated: August 17, 1998.

Respectfully submitted,

Daniel J. Grey

421 Tennyson Avenue

Syracuse, N.Y. 13204-2518

Telephone: (315) 488-8726

Petitioner, Pro Se

App. l

Daniel J. GREY, Plaintiff-Appellant,

Vv.

Carrier/United Technologies, Corp.

in the United States District Court,

Northern District of New York.

Summary Judgment Hearing and Decision

June 13, 1997.

Order Dated June 30, 1997.

in the United States Court of Appeals,

Second District.

Argued and Submitted March 2, 1998.

Decided March 13, 1998.

Issued as Mandate May 25, 1998.

Appeal from the United States Dis-

trict Court for the Northern District of

New York.

Before NEWMAN, CABRANES, and MERRITT,

Circuit Judges.

Rehearing petition denied May 18,

1998.

App. 2

BACKGROUND

Plaintiff was an employee of Carrier

Corporation for 17 years, 5 years as a

sales promotion copywriter and trade show

manager, and 12 years as a senior techni-

cal writer. He had always received excel-

lent performance evaluations from his

managers. In 1985 his department was

downsized for the first time from 13 to 5

personnel. Plaintiff was downsized but

his manager realized a mistake had been

made in headcount and plaintiff was asked

to remain. Of the several technical writ-

ers who lost their jobs, plaintiff was

the one chosen to remain. DG dep p 99,

131.

A new manager, Catherine Savin, took

over in 1987. Plaintiff alleges she was

hyper-critical, fault seeking, difficult

to communicate with, and created a hos-

tile workplace environment. She forced

out one co-worker (Doran, age 40), then

another (Lehman, late 50s) who filed an

age discrimination suit and lost. (DG dep

p 263, 301). Plaintiff was not spared

Savin's hostility, harassment, insults,

humiliation, and threats which he alleges

were based on his age. He kept voluminous

handwritten notes in the event he might

some day need them with upper management.

DG dep p 195, 235, sample in Exbt F opp.

to SJ.

. vsti

App. 3

Savin rebuilt the department from 5

to 11 personnel, plus one or two temps.

From 1987 through 1991 she hired only

employees in her own age bracket, 20s to

30s, and gender. During the last 2 years

of plaintiff's employ she hired two men

in the same age bracket, 20s - 30s, and

one woman (50s) (DG dep p 220). Plaintiff

was 64, the oldest and longest tenured

and by far the best work producer until

Savin rebuilt her staff and her harass-

ment increased. She began taking many job

assignments away from plaintiff without

explanation, giving them to the new,

younger writers (DG dep p 124, 251), re-

ducing plaintiff's output record. At

times she made age-related remarks.

She denied him certain employee

rights, such as not giving him a survey

form to participate in the first employ-

ees' satisfaction survey (DG dep p 164,

302), denied him raises during his last 3

years, reduced his contact at meetings,

denied him training given to younger

writers, and denied him freedom of inter-

face with other departments he had worked

with for years.

App. 4

Plaintiff frequently took single day

vacation days to avoid work pile-up. At

times on those days Savin conducted busi-

ness and held department meetings and

would not share new announcements with

plaintiff when he returned. Unknown to

Savin's own manager, Connie Whitton (CW

dep p 47), on August 30, 1993 Savin held

a department meeting to annnounce the

pending elimination of the department.

(DG dep p 266). Whitton stated she her-

self would not have held such a meeting.

Savin did not share this traumatic an-

nouncement with plaintiff during the re-

maining 4 days of that week. App 18.

He did not have the benefit of hear-

ing the news in advance as did his co-

workers, in which to inform his family

and possibly canvas for another position

in the company.

A co-worker asked plaintiff if he

heard the rumor. Another told him it

wasn't a rumor but a fact. On Fri. Sept.

3 he was called to Savin's office with

human resources representative, Chamber-

lain, present and was told by Savin it

was his last day. Plaintiff asked only

one question, "The whole department is

being eliminated?" The answer was Yes.

(DG dep p 269).

App. 5

Plaintiff had no complaint at this

point. He accepted a department down-

sizing as a legitimate business decision.

Plaintiff attended a daily outplacement

center provided by the company to assist

displaced workers. As days and weeks

passed, plaintiff discovered 3 of the 11

employees "supposedly" downsized were

not. Four others were given extended ter-

mination dates (DG dep p 275) of up to 3

months therefore continued to receive

their income, one chose private employ-

ment, another returned to college, and

only 2 continued at the outplacement cen-

ter, described differently by defendant.

The department was reinstated under a

different marketing division and dispar-

ately treated younger workers were of-

fered their jobs back except plaintiff,

the oldest, and one younger worker.

Plaintiff realized he had been duped

by Savin who twice had threatened she

would not be forced to work with him. He

had been victimized by her willful scam

to engineer his removal. Plaintiff had

filed his age discrimination complaint

with NY State Division of Human Rights on

Oct. 19, 1993 and with EEOC when he real-

ized the department had not been elimi-

nated as he was told. (DG dep p 276).

Company was notified of complaint

6

Oct. 20, 1993, again on Nov. 8, 1993 to

Herb Smith's office (Exbts J,K opp to

summ judg). Letters to workers offering

to rehire them were mailed Nov. 22, 1993

(Exbts L-N opp to summ judg). Retaliation

was Clearly established.

Company responded to plaintiff's com-

plaint May 2, 1994, seven months later,

stating for the first time plaintiff

was released and not rehired due to poor

performance (company response), although

plaintiff exit form (Exbt E) was checked

"job elimination". Boxes for "cause" and

"performance" were not checked.

Savin deposition also indicated she

had never considered laying off plaintiff

(CS dep p 97).

Plaintiff's claim of employer pretext

was clearly established by these events.

The concept of performance should be

closely analyzed. Technical writing per-

formance consists of numerous abilities

App. 23) excelled in by plaintiff.

Plaintiff also found himself disad-

vantaged by several changes of counsel

due to extenuating circumstances, which

delayed his case at times and caused

transition difficulties.

i

;

:

App. 7

Further retaliation took place when

company human resources representative,

Chamberlain, telephoned plaintiff at home

and told him they would not send him his

severance pay unless he withdrew his com-

plaint. Chamberlain's note, obtained

through discovery, was dated Dec. 10,

1993, and read:

"Advised Dan Grey I was advised

he had EEOC charge against Car-

rier and we could not process

waiver (agreement not to sue)

until we received notification

that charge was withdrawn."

- Luella (Chamberlain)

...ewith copy to Herb Smith (human re-

sources manager/manager of diversity

training.) DG dep p 277, 279.

In addition to showing the company's

retaliatory mindset, this act served to

interfere with plaintiff's Seventh Amend-

ment right to trial by jury. App. 27.

"In suits at common law, where

the value of the currency shall

exceed twenty dollars, the right

of trial by jury shall be pre-

served. "

The waiver agreement also became in-

valid when defendant did not reciprocate.

App. 8

Plaintiff argues he met all require-

ments for prima facie, and established

his claims of employer pretext, retalia-

tion, pervasive harassment, and a hostile

work environment.

In summary judgment hearing, June

13, 1997, the district court dismissed in

its entirety all eight causes of action

in plaintiff's case, four of which are

duplicated under NY State Human Rights

law. The four causes of action identified

by the Court as set forth in transcript

were:

I) Hostile work environment based on age

discrimination, with emphasis on severity

and pervasiveness.

II) Age discrimination based on plain-

tiff's initial layoff.

III) Age discrimination based on decision

not to rehire plaintiff.

IV) Retaliation for filing of complaint.

DISCUSSION

Plaintiff alleges the District Court has

overlooked many triable facts and issues

related to dismissal of the above four

charges, which should be given close

App- 9

' gserutiny in accordance with F R. Civ. P

56 and fully evaluated. Many details sur-

rounding plaintiff's allegations have

been not been considered. These triable

facts are set forth below regarding each

of the four dismissed charges.

I) The Hostile Work Environment Claim

The Court has minimized plaintiff's

claim of hostility in the workplace, and

disregarded its pervasiveness. As stated

in plaintiff's deposition, since Savin

became his supervisor in 1987, plaintiff

kept a handwritten 7-year record of his

difficulties with her, as the events oc-

curred, for documentation of her hostil-

ity and harassment in the event his notes

might be needed some day with upper man-

agement. p 10, App ll, 42. E

The notes were requested by and given

to defendant during discovery. They were

too numerous for total placement in

plaintiff's brief opposing summary judg-

ment, and are discussed at length in

plaintiff deposition (p 195, 235), a

sample of which appears as Exbt F in op-

posing brief. The notes bear review by

the reasonable trier of fact to demon-

strate overwhelming pervasiveness.

Court SJ transcript (p 5) states

plaintiff has no allegations Savin did

*

bs a

App. 10

not treat younger employees as she treat-

ed him. Plaintiff's allegations in his

deposition (pp 142, 143) do indicate dis-

parate treatment.

Court transcript p 5 states plaintiff

did not submit evidence as to how Savin

critiqued other employees. Plaintiff sub-

mitted copies of performance evaluations

of other employees in his opposition to

summary judgment that demonstrate Savin

frequently had the same criticisms for

other employees as for plaintiff, yet the

other employees were rehired. Also demon-

strated is a frequent bolstering by Savin

of other employee's evaluations with

meaningless mundane comments which are

noticeably absent in plaintiff evalua-

tions.

Savin, herself, admitted to juggling

plaintiff's evaluations as she pleased,

giving him a B for below target on a com-

bination of several topics in a section

when she was applying the B to only one

of the topics. In fact, the B itself was

not merited for even the one topic be-

cause it was based only on her assumption

that plaintiff did not respect her, and

therefore must not respect others. (DG

dep p 201-202, App 20).

For ambiguous reason, Court (tran-

script p 6) makes note 2d Circuit has not

App. 11

%

x

=

addressed hostility in the workplace un-

} der A.D.E.A. although 6th Circuit has,

and finds such doctrine may be appli-

cable, i.e., a hostile work environment

based upon age. Plaintiff questions if

the issue merited mention in his summary

judgment hearing, and whether if its

absence is significant it should re ad-

dressed by 2nd Circuit. It is curious

that in plaintiff's appeal decision the

2nd Circuit's affirmation changed the

words “addressed hostility" to "“recog-

nized hostility.” (App 39).

Pe ae a

District Court cites Harris v. Fork-

lift Systems, 510 U.S. 17,22 (1993) find-

ing hostility must also include altering

of conditions of employment, severity and

frequency of discriminatory conduct,

whether the conduct is threatening, hu-

miliating, or a mere offensive utterance,

and whether the conduct unreasonably in-

terferes with the employee's work perfor-

mance.

The District Court minimizes the ex-

tent of the hostility and harassment suf-

fered by plaintiff, and lists several

plaintiff allegations (transcr. p 7) con-

stituting the hostile work environment,

perceiving these as the total of plain-

tiff's charges. The total of his charges

are clearly represented in his 7-year

history of recording notes (App 9, 42) of

ee

App. 12

events as they occurred, and number in

the hundreds of examples of workplace

abuses, threats, and humiliation that

interfered with his work performance.

The 2nd Circuit Court of Appeals sim-

ply repeated this view of the District

Court in its affirmation without any fur-

ther analysis. (App 37).

Again, (transcr. p 8) the Court

states plaintiff does not allege personal

knowledge of Savin's critique of other

employees. Plaintiff repeats he has sub-

mitted copies of other employees' perfor-

mance evaluations, and copies of manu-

script samples (brief opp. SJ) which

clearly reflect younger employees being

excused for work infractions while plain-

tiff was criticized. A reasonable fact-

finder will ascertain this disparity.

The District Court indicates

(transcr. p 9) the majority of plain-

tiff's testimony relates only to his

“perception” Savin was unfair and overly

critical, and that her conduct was

"facially" related to her management

style and “presumably” her perception of

the quality of the plaintiff's work.

These observations are mere conjec-

tures by the Court and are refuted by the

actual evidence of Savin's record showing

q

3

Pa A SSS Ta ati

App. 13

her age bias: Her record of hiring only

those within her own age group (App. 3).

Her age-related remarks to plaintiff (App

3, 49). Her record of hostility toward

older employees (App 2). Her threats to

plaintiff, the oldest member (App 5). At

time of "false" elimination of "entire"

department, her selection of all younger

workers for continued employment, and

others for extended termination dates

(App 5). Her selection of all younger

workers for later rehiring (App 5). Her

enormous pervasive hostility toward

plaintiff borne out by his 7-year hand-

written record (App 9, 42). Her denial of

plaintiff training offered to others.

A reasonable factfinder would find

the above evidence more compelling than

the Court's mere notion that plaintiff's

experiences with Savin were based on his

perception.

The Court now states (transcr. p 9)

there is an issue of fact that the rela-

tionship between Savin and plaintiff had

rose to one of personal animosity, based

on Savin's statement she did not want to

work with plaintiff, the plaintiff admit-

ting he repeatedly argued with Savin, at

times raising his voice to her, and that

these actions cannot reasonably be re-

lated to harassment based on age.

App. 14

A suggestion of animosity between

Savin and plaintiff is more conjecture by

the Court. In addition, the statements

made by the Court are not accurate.

Savin's actual statement on two occasions

was, “I'm not going to be forced to work

with you,” (DG dep p 155, 236) which by

analysis would be clear to the factfinder

she meant something entirely different

than merely not wanting to work with him.

Rather, she was being advised she could

not discharge plaintiff without just

cause.

At no point did plaintiff admit he

repeatedly argued with Savin as the Court

stated. Regarding raising his voice he

merely stated that on a few occasions he

disagreed emphatically with her on mat-

ters. At plaintiff dep. pp 205-207 he

discusses the meaning of “raising one's

voice," i.e., a voice can be raised to

different levels, from shouting to merely

showing surprise. The Court incorrectly

implies plaintiff argued and shouted with

Savin regularly, which is not true.

The Court states the above actions

cannot reasonably be related to harass-

ment based on age. Plaintiff sees it

based heavily on age since he did not see

the younger employees treated this way.

At the least, all ambiguities and infer-

ences must be drawn in favor of the non-

oy

App. 15

moving party (Anderson.) In Rattner, if

there is evidence in the record from

which a reasonable inference could be

drawn in favor of the non-moving party,

summary judgment is improper.

Defendant and District Court disagree

with plaintiff's assertion that Savin's

hiring of only younger personnel showed

age bias since he had no way of knowing

the ages of all job candidates inter-

viewed (transcr. p 10). Plaintiff states

this logic is without merit, that what is

significant are the ages ultimately se-

lected, all between ages 24 and 32, and

finally an older person of 57, all

younger than plaintiff. Savin's choices

were younger candidates.

Additionally, plaintiff did not state

this practice represented harassment as

Court states. Plaintiff cites this prac-

tice merely as one of the indications of

Savin's age bias.

In conclusion regarding the claim of

hostile work environment, plaintiff re-

peats its severity and pervasiveness, and

its serious interference with his work

performance.

App. 16

II) The Age Discrimination Claim Based

on Initial Layoff

The Court assumes plaintiff has made

a prima facie case, and states the defen-

dant must now come forward and articulate

a legitimate non-discriminatory reason

for plaintiff's discharge. The Court

agrees, and the plaintiff agrees (DG dep

p 269) the department was downsized ac-

cording to a well-documented division-

level business plan.

Court states plaintiff has not come

forward with evidence this plan was a

sham to get rid of him because of his

age. Plaintiff agrees that no rational

juror could find a reduction-in-force a

pretext under the circumstances of this

case.

At no point did plaintiff ever state

or even imply the downsizing decision was

a sham to get rid of him. At no point did

he ever state the reduction-in-force was

a pretext. These were suggestions ad-

vanced by defendant. Plaintiff accepted

the downsizing as a business fact of life

and had no complaints. He began attending

the John Josephs Outplacement Agency set

up by the company to assist displaced

workers.

App. 17

Plaintiff filed his complaint with NY

State Division of Human Rights and EEOC

while he was in attendance at the out-

placement agency, because he noticed the

entire department had not been eliminated

as he had been told. The entire depart-

ment consisted of 11 employees. Without

those employees, their equipment, sup-

plies, and functions there would be no

department. However, three of those em-

ployees (Savin, Parr, Bellomo) were not

eliminated and continued to perform their

functions, four of the employees

(Kowalewski, Weiner, McGowan, Sherman)

continued to function on extended termi-

nation date basis for up to three months,

continuing to earn their livelihoods, one

employee (Donati) elected to return to

college, another (Harrison) chose private

employ, and only two (plaintiff, the old-

est), and Mirabito (a younger employee)

were officially discharged immediately.

Defendant wants Court to believe four, of

assorted ages, were laid off immediately.

This was the sham alleged by the

plaintiff, not the company's decision to

downsize. It was the sham of supervisor,

Savin, in misrepresenting to plaintiff

the whole department was being elimi-

nated. The sham was implemented on Mon.

Aug. 30, 1993 when Savin called a meeting

of the department and announced the im-

App. 18

pending elimination of the department.

Plaintiff had a single vacation day that

day, App 4. This traumatic announcement

was not shared with plaintiff when he

returned the next day, nor for the re-

mainder of the week, until Fri. Sept. 3,

1993 when he was called in and dis-

charged. It is of particular note that

her manager, Connie Whitton, was not

aware of Savin's initial Aug. 30 meeting

(CW dep p 47) and considered Savin's

meeting unusual.

Savin took advantage of the proposed

department elimination and used it as a

subterfuge for getting rid of plaintiff.

The sham grew with 3 employees continuing

to be employed, with one technical writer

designated to be a proofreader, a func-

tion for which plaintiff was more quali-

fied. It grew further with four of the

employees being kept on extended termina-

tion dates, and still further when the

majority was eventually hired back.

The Court erroneously states plain-

tiff believes the reduction-in-force was

pretext (transcr. p 11). The true pretext

occurred 7-months after plaintiff filed

his complaint, when the company responded

to the notification of complaint by NY

State Department of Human Rights. It was

then that the company first articulated

that the reason for discharging plaintiff

App. 19

and not rehiring him was his poor per-

formance. For evidence, they submitted

some performance evaluations and work

samples. Plaintiff states that for a fair

and accurate review these need to be com-

pared by reasonable jurors with documents

of the other employees.

Also, on plaintiff's exit papers the

company checked off "job elimination” as

the reason, not the performance box, nor

the cause box. In addition, in Savin's

own deposition she stated she had never

before considered discharging plaintiff

(CS dep p 97).

Savin's deposition p 84-86 is clearly

indicative of her confusion over plain-

tiff's performance, in her inability to

understand simple questions.

The pretext of poor performance nul-

lifies the company's legitimate non-dis-

criminatory reason offered as the reason

for plaintiff's discharge.

III) The Age Discrimination Claim Based

on The Rehiring

Regarding plaintiff's claim of fail-

ure to be rehired because of his age, the

Court states "there is no question as to

the facts of his prior performance.”

(transcr. p 12).

20

Plaintiff calls attention to his last

performance evaluation in which he wrote

that Savin's comments were extreme. He

further states her comments are distor-

tions of fact, exaggerated, and untrue.

(Brief in opp to SJ). In the 1992 evalua-

tion Savin manipulated one of the sec-

tions to be graded, in her ongoing cam-

paign to denigrate plaintiff's perfor-

mance record.

The section read, “Communicates with

clarity and conciseness, demonstrates

respect for others, shares knowledge."

Savin gave plaintiff a B for Below Target

explaining that because she feels he has

no respect for her he must have no re-

spect for others, totally disregarding

the entire content of the section, and

distorting it with a falsehood. App 10.

‘

|

App. 21

The Failures of Performance Evaluations

The distortion of evaluations is not

an uncommon practice. The Wall Street

Journal reported (11/21/96) results of a

survey by the Society of Human Resource

Management, of Alexandria VA. which con-

cluded: More than 90 percent of appraisal

systems are unsuccessful. A 1993 survey

by Development Dimensions International

of 1,149 human-resources managers and

others found overwhelming dissatisfac-

tion.

Basic problems are: Even when a re-

view is generally positive many seem to

hear only the negatives. Many employees

believe that if their boss dislikes them,

they will get a bad review regardless of

their work. Lawyers and human-resources

officials say reviews furnish useful

records to combat lawsuits. Usually a

person is rated as great, then great

again, then great again, then terrible,

and then is fired. Rapid company changes

can render reviews useless. In almost

every major survey, employees and super-

visors rate the process a resounding

failure.

An employment editor for the Syracuse

Newspapers wrote (7/20/97), Managers and

supervisors are sometimes guilty of hav-

App. 22

ing “selective memory". A manager might

note “Did not meet requirements" without

knowing all the circumstances that held

up a project.

A 1995 King Features Syndicate edito-

rial read in part: Evaluations encourage

corruption at all levels. A lot of fine

careers have been destroyed by evaluation

reports rendered by petty, vindictive,

and/or power-crazed raters. Too often,

evaluation reports are used as silencers,

weapons of terror or tools of reprisal by

those who want to cover up their own

wrongdoings.

A few well-placed words in an evalua-

tion report have always been enough to

scuttle a career. Many qualified person-

nel fear making the slightest error, and

are in fear of the next evaluation re-

port. The fear is they will be forced to

leave because they did not have the right

check mark on an evaluation. Many manag-

ers do not realize that if mistakes are

not being made, decisions are not being

made.

The Court makes only a general state-

ment as to plaintiff's performance, as

did the company, without any comparison

with the performance of the rehired em-

ployees, which would be utmost in impor-

tance for reasonable jurors.

Licence

App. 23

The Court should hear argument re-

garding the full meaning of performance.

The technical writing function entails

many aspects such as: writing ability,

typing, neatness, word processing, manu-

script output, rapport with internal cus-

tomers, productive speed, much voluntary

overtime, attendance, research into prod-

uct data, obtaining approvals, communica-

tion with other departments, and other

performance criteria. It is not logical

for someone to be discharged simply for

“poor performance", particulary one who

led the department for years in overall

performance (brief in opp to SJ, p 3, 4).

Ss]

Be

#

x

a

|

3

5

Plaintiff was given no opportunity to

defend his performance by Human Resources

or by Savin's own managers. Her whim to

discharge plaintiff at will for only her

Own reasons was permitted. He did not

approach upper management with a com-

plaint about Savin's actions because two

other employees lost their jobs under

Savin when they lodged complaints. App

56.

Defendant produced a handful of in-

nocuous affidavits indicating involvement

with the downsizing, none of which showed

any personal knowledge of plaintiff other

than through Savin input. Most of the

affidavits made a point of not admitting

to making the decision not to rehire

annem mmm ee

App. 24

plaintiff, and only being involved in the

process leading to the decision. p ll.

The Court states it must apply the

standard of the employer's view of

plaintiff's performance (transcr. p 13)

in deciding whether to rehire him. Plain-

tiff states his performance record was

not fairly evaluated, particularly when

viewed in the light of an extremely hos-

tile supervisor who had threatened his

job security on several occasions.

The Court additionally states that

regardless of whether Savin's criticism

of plaintiff is unfounded there is no

indication it was based on age. Plaintiff

emphasizes that her criticism was un-

founded, and that her behavior pattern

toward him, and toward other older em-

ployees in the past, and not toward the

younger employees, was based solely on

his age.

In 1992, when plaintiff was verbally

critical of a Savin action, she threat-

ened him by warning he need not expect

any satisfactory performance evaluations

in the future. (Plaintiff handwritten

notes).

Providing strong input to those de-

partment managers who would execute the

rehiring process finalized Savin's sham

App. 25

and promise to rid herself of plaintiff.

IV) The Retaliation Claim

2

os

‘4

=

a

Regarding plaintiff's claim of re-

taliation, that the decision not to re-

hire him was because he filed a complaint

with NY State Division of Human rights

and EEOC, the Court states plaintiff's

entire argument rests with the fact that

a person who was a company EEO employee,

was involved in the decison to rehire

some of the technical writers.

(transcr. p 13).

The Court and the defendant totally

ignore or overlook the facts in this in-

stance. Plaintiff did not make such a

meager statement. He clearly presented in

his brief opposing to summary judgment

there was a strong correlation between

the timing of when the company was noti-

fied of his complaint, and when the re-

hiring process took place, and who was

involved in the decision-making process

not to hire plaintiff. p 7, App 23.

Company was notified by NYSDHR of the

complaint, mailed to them on 10/20/93

(Exbt J).

Company was again notified, by EEOC,

of the complaint, mailed to them on

App. 26

10/27/93 (Exbt K). This notice was

stamped into Herb Smith's office on

11/8/93. Herb Smith was a Human Resources

Officer of the company, and a Diversity

Training Manager. Herb Smith was more

than just a company EEO employee who was

involved in the rehiring decision, as

described by the Court and the defendant.

A reasonable trier of fact would readily

recognize that Herb Smith was an indi-

vidual with great influence in this mat-

ter.

Notices to employees offering rehir-

ing were mailed on Nov, 22, 1993 (Exbts

L, M, N.), a full two weeks after the

complaint notification was stamped into

Herb Smith's office, and a full month

after the notification by NYSDHR was

mailed to the company. In Landan, a

causal connection can be established in-

directly by showing plaintiff's engage-

ment in the protected activity was

closely followed by the discriminatory

treatment.

A reasonable trier of fact must

clearly conclude that company retaliation

based on plaintiff's age was clearly es-

tablished. To establish prima facie in a

failure to recall complaint, the employee

must: be over 40, be qualified. for a re-

hire position, be not recalled, with age

being a contributing factor. Franci.

App. 27

Plaintiff must show he or she pos-

sessed the basic skills necessary to

perform the job. Owens.

Plaintiff was unmistakably qualified

after 12 years as a technical writer,

possessed more than the basic skills

required, and age was without doubt

taken into account. In Lowe, age need

not be the principal reason, but must be

a significant contributing factor. In

Parcinski, age need not be the only fac-

tor taken into account. In Benjamin, the

rehiring of younger persons as replace-

ments for an aggrieved plaintiff can

create an inference of discriminatory

intent.

Company responded to plaintiff's

complaint May 2, 1994, seven months

later, stating for the first time plain-

tiff was released and not rehired due to

poor performance (response to NYSDHR).

Plaintiff exit form (Exbt E) was checked

"job elimination." Boxes for "cause" and

"performance" were not checked.

Savin deposition also indicated she

had never considered laying off plain-

tiff (CS dep p 97).

Plaintiff's claim of employer pre-

text was clearly established by these

events.

App. 28

The concept of performance should be

closely analyzed. Technical writing per-

formance consists of many abilities. App

23.

It should be pointed out that retali-

ation did not end here, that the company

added further retaliation, and obstructed

plaintiff's right to trial by jury under

the Seventh Amendment (p 5, App 7) when

human resources manager, Chamberlain,

telephoned plaintiff at his home 12/10/93

and told him:

"I was advised you had an EEOC

charge against the company and

we could not process the waiver

until we received notification

that the charge was withdrawn."

The waiver referred to was the waiver

of right to sue the company, in exchange

for severance benefits. Plaintiff never

received his severance pay.

App. 29

Fed. R. Civ. P. 56 (also p 5)

1. Summary Judgment cannot deprive liti-

: gant of, or at all encroach upon, his

right to jury trial; judges in giving its

flexible provision effect must do so with

this essential limitation constantly in

mind. Whitaker v. Coleman (1940, CAS Ala)

115 F2d 305.

2. Rule 56 contemplates inquiry in ad-

vance of trial as to whether there is

genuine issue and may be invoked for pur-

pose of sham claims and defenses which

obstruct prompt determination of truth,

but rule cannot be applied so as to de-

prive litigant of his right to try any

genuine issue by jury. Curtis Publishing

v. Church, Rickards Co. (1973, ED Pa) 58

FRD, 17 FR Serv 2d 749.

3. Purpose of rule is to permit trier to

pierce formal allegations of facts in

pleadings and grant relief by summary

judgment, when it appears from uncontro-

vertable facts .... there are no genuine

issues for trial. Avrick v. Rockmont En-

velope, (1946, CA10 Colo) 155 F2d 568, 69

USPQ 431.

4. Summary Judgment may be awarded only

if proof is clear and convincing that no

material fact remains in doubt. Forstmann

Woolen v. J.W. Mays (1947, DC NY) 71 F

i

App. 30

Supp 459, 73 USPQ 283.

5. Any uncertainty regarding the exist-

ence of unsolved factual issues is suffi-

cient to deny summary judgment. Greenbaum

Mortgage v. Town & Garden Assoc. (1967,

CA7 Ill) 385 F2d 347.

6. Summary judgment should never be

granted unless the facts are clear and

undisputed. Dairy Engineering Corp v. De-

Raef Corp (1941, DC Mo) 1 FRD 674, 49

USPQ 160.

7. Summary judgment is not lightly to be

granted .... its use is limited to that

exceptional situation where there is no

genuine issue as to any material fact.

Lipschutz v. Gordon Jewelry (1974, SD

Tex) 373 F Supp 375.

8. Question of retaliation is particu-

larly inappropriate for summary judgment

disposition, since primary issue is one

of intent and motive. Romero v. Union P.

Railroad (1980, CA10 Wyo) 615 F2d 1303,

22 BNA FEP Cas 338, 22 CCH EPD § 30679.

9. Age discrimination, plaintiff's divi-

sion dismantled, 9 professional col-

leagues reassigned within same dept.,

evidence of disputed issues, SJ inapprop-

riate.Schmid v. Frosch (1982) 220 App DC

212 680 F2d 248,29 BNA FEP Cas 163, 29.

App. 31

The Public Good

The Court should increase its support

of A.D.E.A. to protect the increasing

number of elder workers against growing

abuses in the workplace, by more pen-

etrating application of F.R. 56.

The Syracuse Newspapers ran and edi-

torial 5/93 distributed by Knight-Ridder

Newspapers, which said in part:

“Age bias charges filed with

federal and state agencies

jumped 26% since 1990 - to

36,000 nationally last year,

according to U.S. EEOC. Discrim-

ination based on age is the

fastest growing form of dis-

crimination in the U.S. accord-

ing to former EEOC Chairman,

Evan J. Kemp."

Most experts cite economics, massive

layoffs and the relentless aging of the

American work force as the major con-

tributors. The Age Discrimination in Em-

ployment Act of 1967 grew out of Con-

gress’ conclusion that older workers were

stereotyped as less productive, more

costly, less able to learn new technology

and less willing than younger workers to

work full time or overtime. (Evidence in-

dicates these do not apply to plaintiff.)

App. 32

Was Plaintiff's Case Jeopardized by Heavy

Caseload at Summary Judgment?

Syracuse Newspapers 6/4/98 announced

that the U.S. Senate confirmed the ap-

pointment of Syracuse Federal Judge Rose-

mary Pooler to the 2nd Circuit Court of

Appeals in New York City.

District Court officials in Syracuse

and Binghamton are now busy trying to

develop an approach for handling the 725

civil and 145 criminal cases that Pooler

has pending before her.

Two senior judges will handle re-

quests in Pooler's civil cases that could

result in a disposal of a case, such as

motions for dismissal.

Three active judges each now carry an

average of 830 cases. The national aver-

age is 470 cases per judge. The dis-

trict's caseload is in the top 10 heavi-

est in the country's 92 federal district

courts. In the past, it has taken about

two years for a search committee to find

replacement candidates, make recommenda -

tions to the U.S. senator making the

nomination, and for the nominee to win

Senate approval.

The district's other federal judge

vacancy has been open for six years, with

App. 33

the nominee failing to get the approval

of the Senate Judiciary Committee.

Plaintiff has been aware from the

beginning of his case of the desire of

the District Court to move cases through.

At an early pre-trial conference he was

advised by the magistrate judge to keep

an open mind to offers of settlement, in

view of the fact that the President and

the Senate have not acted for some time

on the Court's need to fill some vacan-

cies. Showing concern for the amount of

time involved in hearing cases, the judge

also asked plaintiff how long he thought

his case might last. Plaintiff responded,

"About 3 or 4 days."

Plaintiff states that the haste in

which his summary judgment hearing was

handled indicates the Court may have re-

acted to its need to dismiss some of its

case volume, as discussed above.

Of incidental interest, the plaintiff

states that a bona fide offer of a

settlement never rose to date over this

five-year period. Plaintiff was also told

during the first year of trial prepara-

tion that defendant had remarked defen-

dant would not offer another nickle in

view of defendant's costs to date.

App. 34

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DANIEL J. GREY,

) No. 94-CV-1126

Plaintiff, )

)

)

)

MEMORANDUM

v. AND ORDER

CARRIER/UNITED )(Held June 13, 1997)

TECHNOLOGIES CORP- )(Filed June 30,1997)

ORATION, ) )

Defendant )

)

From Transcript:

"We have eight causes of action, actually

four duplicated, four under A.D.E.A. du-

plicated under NY State Human Rights Law.

Defendant brings motion for summary judg-

ment as to all causes of action and

costs."

"The majority of plaintiff's testimony

relates to his perception that his

supervisor's critique was unfair and

overly critical. Facially, this conduct

is solely related to her management style

and presumably her perception of the

quality of plaintiff's work."

"Even considering all the inferences in

favor of the plaintiff, at best, there is

App. 35

an issue of fact as to whether the rela-

tionship between plaintiff and his super-

visor had rose to one of personal animos-

ity. Her statement she did not want to

work with him would be consistent with

such an inference."

“Even if there were some sort of conflict

between supervisor and plaintiff, there

is no indication or permissible inference

it related to age."

"Thus, all the hostile conduct described

which relates to plaintiff's work cannot

reasonably be considered age harassment."

"I am going to dismiss (defendant's ?)

motion with respect to hostile work envi-

ronment."

"The defendant has come forward with a

legitimate non-discriminatory reason for

discharging plaintiff, that of a legiti-

mate department elimination."

"The defendant has come forward with a

legitimate non-discriminatory reason for

not rehiring plaintiff, that of a poor

performance record."

"In view of all the facts and evidence

before this Court, it cannot find evi-

dence to support plaintiff's claim on

retaliation, and dismisses that claim."

App. 36

Defendant Carrier/United Technologies

Corporation having moved pursuant to Rule

56 of the Federal Rules of Civil Proce-

dure for the entry of summary judgment

dismissing plaintiff's complaint in this

matter in its entirety, and the Court

having heard Hancock & Estabrook, LLP

(David E. Peebles, of counsel) in support

of that motion, and Donald Keinz, Esq.,

in opposition thereto, and; upon delib-

eration;

NOW, the Court having rendered a de-

cision from the bench on June 13, 1997

finding, inter alia, there exists no gen-

uine issue of material fact requiring

trial, and that defendant is entitled to

judgment as a matter of law on each of

plaintiff's eight federal and state

claims, it is therefore hereby

ORDERED, defendant's motion for sum-

mary judgment dismissing plaintiff's com-

plaint be and is granted; it is further

ORDERED, the court clerk is directed

to enter judgment in this action dismiss-

ing plaintiff's complaint in its entire-

ty.

s/

Hon. Frederick J. Scullin, Jr.

U.S. District Judge

Dated: June 30, 1997

Syracuse, NY

MANDATE App. 37

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

NDNY/SYNY

SUMMARY ORDER °4-CV~-1126

Scullin

THIS SUMMARY ORDER WILL NOT BE PUBLISHED

IN THE FEDERAL REPORTER AND MAY NOT BE

CITED AS PRECEDENTIAL AUTHORITY TO THIS

OR ANY OTHER COURT, BUT MAY BE CALLED TO

THE ATTENTION OF THIS OR ANY OTHER COURT

IN A SUBSEQUENT STAGE OF THIS CASE, IN A

RELATED CASE, OR IN ANY CASE FOR PURPOSES

OF COLLATERAL ESTOPPEL OR RESJUDICATA.

At a stated term of the United

States Court of Appeals for the Second

Circuit, held at the United States Court-

house, Foley Square, in the City of New

York, on the 13th day of March, one thou-

sand nine hundred and ninety-eight.

PRESENT:

Jon O. Newman,

Jose' A. Cabranes,

Gilbert S. Merritt,* Circuit Judges.

DANIEL J. GREY, Plaintiff-Appellant

Vv. No. 97-7988

UNITED TECHNOLOGIES CORPORATION, also

known as United Technologies Corporation/

CARRIER CORPORATION, Defendants-Appellees

Appearing for Appellant:

Anthony P. Belletier, Syracuse, NY

*Of U.S. Court of Appeals for 6th Circuit,

sitting by designation. MANDATED 5/25/98

App. 38

APPEARING FOR DAVID E. PEEBLES,

APPELLEE: Hancock & Estabrook, LLP

Syracuse, NY

This cause came on to be heard on

the transcript of record from the U.S.

District Court for the Northern District

of N.Y. (Frederick J. Scullin, Judge) and

was argued.

ON CONSIDERATION WHEREOF, IT IS

HEREBY ORDERED, ADJUDGED, AND DECREED

that the judgment of the district court

is AFFIRMED.

Plaintiff Daniel J. Grey alleges

that defendants violated the federal Age

Discrimination in Employment Act

(A.D.E.A.), 29 U.S.C. § 621 et seq., and

the N.Y. Human Rights Law (NYHRL), N.Y.

Exec. Law § 290 et seq., by dismissing

him because of his age, failing to rehire

him because of his age, retaliating

against him for filing an administrative

complaint alleging employment discrimina-

tion, and creating what he styles as "a

hostile work environment based on age."

The district court entered summary judg-

ment for defendants as to both the fed-

eral and state claims. Substantially for

the reasons stated by the district court,

we affirm.

We note that this Circuit has not

App. 39

previously recognized a hostile work en-

vironment cause of action under the ADEA,

nor have the New York courts recognized

such a cause of action in regard to age

discrimination under the NYHRL. However,

in this case we need not decide whether

the ADEA or the NYHRL contemplate a hos-

tile work environment cause of action for

age discrimination beause we agree with

the district court that plaintiff has

failed to adduce sufficient evidence to

support his claim that the harassment

allegedly directed against him was based

upon his age. Moreover, we find that the

isolated and ambiguous comments allegedly

directed against him by his supervisor,

which he claims created a hostile work

environment, would, in any event, not be

"severe or pervasive enough to create an

objectively hostile or abusive work envi-

ronment...." Harris v. Forklift Sys.

Inc., 510 U.S. 17, 21 (1993).

For the Court,

George Lange III, Clerk

by s/Lucille Carr

App. 40

United States Court of Appeals

For the Second Circuit

Daniel Grey, Plaintiff/Appellant/

Petitioner, Vv.

United Technologies, et.al. (short title)

NOTICE OF MOTION 97-7988

For Extension of Time To File

Petition for Rehearing

MOTION BY: Anthony P. Belletier, Esq.

204 E. Jefferson Street

Syracuse, N.Y. 13202

OPPOSING David Peebles, Esq.

COUNSEL: Hancock & Estabrook

One Mony Plaza

Syracuse, N.Y. 13202

Request: Extension of time within which to

file a Petition for Rehearing on grounds

that petition was filed 3/30/98 and judg-

ment from which a rehearing was requested

was filed 3/13/98. Counsel for Petitioner

was on vacation out of state from 3/12/98

through 3/24/98, was engaged in trial on

3/26/98, could not file petition sooner.

s/ Anthony P. Belletier, Esq. 3/31/98

Appearing for Daniel Grey, Plaintiff

ORDER

IT IS HEREBY ORDERED that the motion be and

it hereby is granted nunc pro tunc.

New petition deadline date is 4/21/98.

FOR THE COURT: GEORGE LANGE III, Clerk

by: s/ Beth J. Meador, Admin. Atty. 4/7/98

App. 41

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK, NY 10007

GEORGE LANGE III

CLERK

At a stated term of United States

Court of Appeals for Second Circuit, held

at United States Court House, Foley

Square, in City of NY, on 18th day of

May, one thousand nine hundred and

ninety-eight.

Present:

Hon. Jon O. Newman, CIRCUIT JUDGE

Hon.Jose' A. Cabranes, CIRCUIT JUDGE

Hon. Gilbert S. Merritt, CIRCUIT JUDGE*

Grey, Plaintiff-Appellant

¥

United Technologies, Defendant-Appellee

Docket No. 97-7988

A petition for rehearing having been

filed herein by the Appellant, Daniel J.

Grey. Upon consideration thereof, it is

Orderd that said petition be and it

hereby is DENIED.

For the Court: George Lange III, Clerk

By: s/ Beth J. Meador

Admin. Atty.

*Of U.S. Court of Appeals for 6th Circuit,

sitting by designation.

App. 42

CASE-RELATED TOPICS

1. Examples of Hostility: (samples

heavily documented in plaintiff notes).

a. Company president Bill Wilson called

for the first employee satisfaction sur-

vey to be completed. Mike Smoral division

head enouraged everyone's participation.

Technical Writing had only 5 members at

the time. Plaintiff had a vacation day

when survey forms were given to his de-

partment. After 2 weeks passed plaintiff

asked a coworker if she heard anything

about the survey forms. She said they

received them 2 weeks ago and sent them

through. Plaintiff called Smoral's office

and was told 5 survey forms were dropped

off and none were left. He obtained a

copy from human resources and sent it air

express within the deadline. Plaintiff

believes Savin deliberately kept the sur-

vey form from him expecting he would make

critical comments about her supervision.

Plaintiff included a comment that super-

visors should check that all employees

receive survey copies in the future. That

practice seemed to be installed later.

b. Plaintiff used a PC along with a type-

writer. Savin told him the typewriter

would have to go soon. One day, while

operating the typewriter, she barged into

his office without a word, snatched the

App. 43

typewriter from his table and deposited

it outside the office for pickup.

c. While assisting an engineer with re-

search from the obsolete file, Savin

nudged plaintiff aside and told him not

to go near those files again because they

were Angela's. He had been using them for

years. It was not a dept. announcement

and he never saw Savin push aside any of

the younger writers.

d. While discussing something for a 1/2

hour with Savin in her office she was

looking down at her desk for several min-

utes. Plaintiff felt the meeting had

ended and started to rise. She suddenly

snapped, Where are you going? Plaintiff

said, Oh I thought the meeting was over.

She said, Sit down, I'll tell you when

it's over. When he sat down she said, Now

it's over.

e. Savin came to plaintiff's office to

ask a question and his phone rang. He

reached for the phone and she said, Don't

touch that phone. He didn't. She had no

concern whether it might have been a

personal or business emergency.

f. At a division meeting in the audito-

rium, as plaintiff's dept. entered a row

of seats, it appeared Savin needed to

move in a seat to make room for plain-

App. 44

tiff who was at the far end. Bellomo told

Savin they needed to slide in one more

seat and Savin shouted, He can sit any-

where he wants.

g. On two occasions Savin told plaintiff,

I'm not going to be forced to work with

you.

h. Savin once threatened plaintiff with,

I guess you know what that comment will

do for your next performance review.

i. At the start of the 1990 performance

review Savin told plaintiff, Before we

start I just want to say your salary in-

crease will be coming through. Plaintiff

thanked her. There were some performance

disagreements. 15 minutes later Savin

came to his office and said, I made a

mistake regarding your salary increase. I

didn't realize there was a correlation

between reviews and salary increases, so

your increase won't be coming for a

while. He never received an increase af-

ter that.

j. On different occasions, Savin told

plaintiff he was sneaky, had a temper,

was over-sensitive, and told lies.

k. On two occasions Savin accused plain-

tiff of telling engineers and product

mgrs. she was holding up their projects.

App. 45

1. On one occasion Savin told plaintiff

he told an engineer she was sitting on

one of his projects. He had not. He told

the engineer that when he finished with a

project it went to Savin and Bellomo for

a final approval before going to art

dept., so it would be best to check with

them. Savin pointed her finger at plain-

tiff and said, No, you told him we were

holding it up, and for that matter it

went to the art dept. on Friday. Plain-

tiff knew it had not because he saw it on

her desk over the Labor Day weekend when

he worked overtime. On Tues. he checked

the art dept. log sheet and saw it had

just been logged in that day (Tues.).

m. Savin asked plaintiff if he had

checked everything on a project. He said

he didn't check everything cover to cover

but did check the physical data. She said

she didn't mean that. She meant, Did he

check everything affected by the changes.

he said, No, but had asked the applica-

tion engineer and product mgr. if they

had any further changes. She said he

didn't have to do that, it wasn't a re-

print job. He said, He knew that but

checked them anyway. Savin smirked at

plaintiff. He said he did check to see if

the changes affected anything else. She

said, Are you sure, it sounds as though

you didn't. He said if you want me to

check again I will. She walked out.

App. 46

n. Savin told plaintiff to leave a note

when he had a med. appt. stating time

left and time of return because she had

no way of knowing if he returned. In 17

yrs. with company he never failed to re-

turn from a med. appt. She also told

plaintiff to leave a note if he would be

away from his desk for more than 15 min-

utes. This frequently made it difficult

to use the restroom.

©. Regarding a proofreading note, Savin

asked plaintiff why he addressed the

hard-wire kit and not the proofreading

note. He was asked questions such as, Why

did you answer the wrong note? Did you

read it right the first time? She engaged

in bit-by-bit badgering of plaintiff's

thought process then walked out shaking

her head.

p. Savin told plaintiff he didn't turn in

his vacation time tracking slip, a new

procedure. He said he gave her his full

vacation schedule. She said, No not that,

I'm talking about off-time tracking,

you're not familiar with that? He said,

Yes, it was covered at the last meeting.

She said, Right. He said, No, I didn't

relate that to vacation time. She said

That's exactly what it's for. Plaintiff

said 0.K. She said, What do you mean O.K.

He said O.K. means O.K., understood. She

was extremely hostile over a minor cleri-

App. 47

cal omission.

q- Savin told plaintiff a Bryant UK

project he did was wrong. He checked the

artwork and it was right. The printer had

not re-shot a figure as requested.

r. On 30HW-1APD proofreader suggested

5.6C not 6C. Plaintiff checked marketing

and was told they wanted to round off and

use 6C. Savin told plaintiff he shouldn't

ask, Do you want it this way or that way.

He said he didn't ask that. He asked if

there was a marketing reason they wanted

to round it off. She was implying plain-

tiff did not know how to communicate.

S. Two of plaintiff's silverprints were

on the shelf for 2 days, both rush jobs.

Proofreader was out ill. Savin merely

shrugged her shoulders when plaintiff

inguired. Plaintiff said anyone could

have proofread them to help out.

t. Savin criticized plaintiff for sending

his personal data direct to a coordinator

rather than through Angela. Angela had

complained. He felt personal data should

not be passed through co-workers’ hands

and Savin should have exercised better

control over personal data.

u. Savin handed plaintiff his paycheck

with a smirk and gesture to indicate he

App. 48

didn't deserve it. Plaintiff thanked her.

v. When an engineer was checking a

project in plaintiff's office Savin stood

behind a partition staring over engi-

neer's shoulder to see if plaintiff was

allowing engineer to mark up the work.

w. Savin agreed with engineer that plain-

tiff's combining of 2 troubleshooting

books held up both jobs. It did not and

saved company considerable cost. (GN,GT).

Not the slighted recognition for effort.

x. Savin accused plaintiff of "camouflag-

ing" approval signatures. He suggested

she not use untrue negative comments in

work discussions, that “camouflage” means

deliberate concealment. She said, Don't

tell me what to say and what not to say.

y. When plaintiff was about to enter

Savin's office to ask a question she saw

him coming and slammed door in his face.

z. When a product mgr. did not have time

to check his project he asked if we could

pass it through to the art dept. and he

would check it later. She told plaintiff

to tell him No, and told plaintiff to

mark the signoff sheet, Mktg. waives its

right to review - forcing plaintiff to

falsify the record.

App. 49

2. Age-Related Remarks:

a. Savin said plaintiff was unwilling or

unable to modernize his practices, the

implication being he was of the old

school. Plaintiff states this was a tac-

tic to denigrate his performance.

Kloster, in affidavit, repeated this ver-

batim, showing he copied her thought.

Kloster had no personal knowledge of

plaintiff other than signing his last

review form as Savin's mgr.

b. When plaintiff asked Savin a business

question she replied, I don't have time

to go over these things with you. I'm too

busy training the younger writers. This

told plaintiff she created a distinction

between the young and older workers.

c. At a birthday cake celebration for two

younger writers, someone asked how old

they were. Savin said, For those who can

still mention their ages. Plaintiff felt

singled out as older and a person unwill-

ing to mention his age.

d. In a meeting with Savin she asked

plaintiff why he couldn't respond to

questions the way the other writers did,

that he seemed to be forgetful. Plaintiff

was used to being snapped at in discus-

sions with Savin and said he was only

App. 50

considering the question and the right

response.

e. Savin told plaintiff he was slow pre-

paring manuscripts. Plaintiff states he

is extremely fast writing and typing and

getting approvals. If manuscripts are

late it has been due to Savin sitting on

project requests rather that giving them

to plaintiff right away, and also Savin

giving proofreading priority and art

dept. priority to the younger writérs,

and holding up plaintiff's work.

District Court stated and Court of Ap-

peals agreed these were only innocuous

and stray remarks and were not pervasive.

Plaintiff states he felt these remarks

deeply, they caused him tension, a_ feel-

ing of being threatened, and interfered

with his daily work performance. Plain-

tiff states it is not important how many

remarks are made because even one remark

can have serious results. What is impor-

tant is the mind-set and the intent of

the supervisor which was clearly perva-

sive over a period of years. Court of

Appeals said (App 39) plaintiff claims

Savin's isolated remarks created a hos-

tile work environment. Plaintiff did not

make that claim. It was Savin's overall

behavior that created it. It was apparent

when Savin harassed Doran, Lehman, and

plaintiff, forcing all 3 out of their

App. 51

jobs, that Savin was cloaked in a pall of

age discrimination for years. Merely be-

cause she did not make discriminatory

remarks every day does not indicate she

was not discriminatory. Her everyday be-

havior and attitude toward older workers,

compared with younger workers are the

main measure. Even silence toward an

older worker without the abuse of remarks

is age abusive. In Gallo, 2nd Circuit

declared that when deciding whether the

“drastic provisional remedy" of summary

judgment is granted in discrimination

cases, there must be additonal consider-

ations.

A trial court must be cautious about

granting summary judgment when an

employer's intent is at issue ....

Because writings directly supporting

a claim of intentional discrimina-

tion are rarely, if ever, found

among an employer's corporate pa-

pers, affidavits and depositions

must be carefully scrutinized for

circumstantial proof which, if be-

lieved, would show discrimination.

At least one court has viewed the de-

cision in Gallo as having " ‘all but out-

lawed the use of summary judgment' in

employment cases, at least where an

employer's intent is at issue." Peele.

To establish prima facie in age dis-

App. 52

crimination, plaintiff must show that he;

was over 40, qualified to assume a posi-

tion that remained after the reduction in

force, was discharged and not rehired,

and others not in protected class were

treated more favorably, giving rise to an

inference of age discrimination. As

stated in Maresco at 111:

In the context of a consolidation

or reduction-in-force, where the

employer is concededly engaged in a

process that will legitimately re-

sult in the elimination of some

positions, an employee must estab-

lish not that he was qualified for

his previous position that has been

eliminated, but rather that “he was

qualified to assume another (avail-

able) position at the time of the

discharge." (citations omitted).

At the time plaintiff's position was

eliminated, efter being told the whole

department ws being eliminated, he held

the skills to ibe a proofreader, a posi-

tion offered to a younger, less qualified

writer (Parr, two grade levels below

plaintiff). Even that position never ma-

terialized as practically the entire de-

partment was reinstated under another

division with technical writers rehired

as technical writers, but not plaintiff.

App. 53

3. Too Many Errors:

In deposition, Savin said plaintiff

made too many errors. She was asked what

she meant by too many errors. She said,

In manuscripts he made a lot of errors.

She did not actually answer the question

posed. Plaintiff states there is no such

thing as a general statement of too many

errors. It was only a perception Savin

wanted to create, to support her response

of poor performance to NYS Division of

Human Rights. On a few occasions Savin

held up some proofreading sheets and told

plaintiff, These are too many errors. All

technical writers know that proofreader

comments often include many questions by

the proofreader for her own understanding

that she wants the writer to check with

the engineer.

These are not errors. There has never

been an established guideline that indi-

cated how many errors were "too many."

Manuscripts vary in size, some are one

page and some over 50 pages. Many errors

are mere spelling errors, or punctuation

errors, which at other companies would be

corrected automatically by the proofread-

er without calling them to the attention

of the writer. Savin insisted the proof-

reader mark down every question, every

correction, every observation, right or

wrong, so that Savin could oversee the

App. 54

minutest detail and deprive the writer of

any sense of professionalism in his or

her work. Savin used the proofreading

process as a means of badgering plain-

tiff, looking for deficiencies, and hold-

ing up his work.

The appearance of too many errors also

materialized in Savin's own proofing no-

tations. A proofreader can write observa-

tions on one or two sheets. Savin used

her large handwriting style to fill out

many sheets with overinflated commentary

that can take an entire day including

overtime to analyze, and another day to

check her comments with engineers and

product mgrs.

Example: Plaintiff wrote an installation

instruction in concert with the engineer

for a small portable room air conditioner

simply designed for a non-technical per-

son such as a working parent. The in-

struction advised the customer to tilt

the unit slightly to the outdoors to

avoid dripping of condensation into the

room, and to test the tilt by placing a

round pencil on top of the air condi-

tioner cabinet so that it rolls toward

the outdoors. When Savin read this she

told plaintiff it was a ludicrous idea

because she checked throughout the de-

partment and could find no round pencils,

therefore concluded the customer would

App. 55

also not be able to find a round pencil.

Plaintiff explained the customer would

find another round object as long as the

concept was understood. Objects that

would work would be a round lipstick

case, a ballpoint pen, a small round toy,

Or another similar item. Savin said she

didn't like any of the ideas and told

plaintiff to tell the engineer we should

only inform the customer to tilt the air

conditioner slightly to the outdoors to

avoid condensation dripping indoors. The

engineer said, Ok, let's finish it up.

App. 56

4. Grievance Redress Within Company:

There were various avenues of redress

within the company for employees to ex-

press grievances. Plaintiff chose not to

use these for fear of reprisal. He knew

of 2 co-workers who had taken complaints

to human resources and ended up losing

their jobs, one out of the company, the

second to another department. Some of the

avenues for redress were a Dialog pro-

gram, an Ethics manager, an Ombudsman, an

employee satisfaction survey, and private

consultation with human resources. It was

also possible to be anonymous, but plain-

tiff did not believe this would be effec-

tive because Savin would have to be in-

vestigated and would know who complained.

Plaintiff chose to complain in em-

ployee satisfaction surveys, but left

them anonymous. On one he suggested that

supervisors be required to check that all

of their employees receive a copy of the

survey form. Plaintiff believes his mes-

sage was heard because the following year

this was done in the department.

On his final performance review he

pointed out that he felt his supervisor's

comments were untrue, extreme, and exag-

gerated, that he considered himself an

exemplary employee. In two months, plain-

tiff was also out of his job.