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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 879

## Text

\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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1458%3A1. Public record. Not legal advice.