Opposition Brief — Westfall v. Southwest Airlines Co.

guerra Overt, US

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No. 93-573 Ov 5 1993

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. CLERK |

In The ——

Supreme Court of the United States

October Term, 1993

+

DENNIS WESTFEALI

SOUTHWEST AIRLINES CO

*

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth

e

Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

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Rosi K. McCar

(La. Bar No. 9233)

Mc ¢ \ HOM N, PyYBURN, Hy

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Poydras Street

Suite 2800

New Orleans, Louisiana 70130

lelephone: (504) 524-2499

CyntTHiA S. Fox

(lexas Bar No. 0733110

Southwest Airlines Ci

Chief Counsel

PO. Box

Dallas, Texas 75235

felephone (214) 904-4046

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Litigation

3661 |

BEST AVAILABLE COPY

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QUESTION PRESENTED FOR REVIEW

Whether the Fifth Circuit Court of Appeals correctly

affirmed the District Court’s order granting summary

judgment to Respondent on the grounds Petitioner had

not submitted sufficient sworn admissible evidence that

would convince a reasonable jury the articulated reason

for Petitioner’s termination was simply a pretext for age

or retaliation discrimination?

LIST OF ALL PARTIES

TO THE PROCEEDINGS BELOW

1. Dennis Westfall, Petitioner

2. Southwest Airlines Co.', Respondent

| Pursuant to Sup.Ct.R. 29.1, Respondent informs the Court

that it has no parent companies or subsidiaries.

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TABLE OF CONTENTS

Page

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2. The Age Discrimination Claim ...........+4++5: Fa

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TABLE OF AUTHORITIES

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Sup.Ct.R. St rT ran mn a Fe ee PA OE Per BEATA ae ARH: A il

STATEMENT OF THE CASE?

Petitioner Mr. Westfall was promoted to the position

of station manager of Respondent Southwest Airlines’

New Orleans station on July 14, 1986. The decision to

promote him was made by Mr. Jim Wimberly, South-

west’s Vice President of Ground Operations and Provi-

sioning. (R. Vol. 1, p. 132, Affidavit of Jim Wimberly). At

the time of his promotion, Mr. Westfall was 39 years old

(R. Vol. 1, p. 72, Affidavit of Leroy Carroll). The same

person who approved his appointment to the position in

1986, when he was 39 years old, approved the decision to

terminate him on February 11, 1991, when he was 43

years old. (R. Vol. 1, pp. 77-78, Affidavit of Leroy Carroll;

R. Vol. 1, p. 135, Affidavit of Jim Wimberly; R. Vol. 1, p.

40, Nos. 1, 2, 3, 46, Defendant’s Statement of Uncontested

Material Facts).

In the position of station manager, Mr. Westfall was

responsible for all of Southwest's ground operations at

the New Orleans airport. Southwest’s ground operations

are divided into three departments: operations depart-

ment; ramp department; and customer service depart-

ment. (R. Vol. 1, p. 72, Affidavit of Leroy Carroll; R. Vol.

1, pp. 40-41, Nos. 4, 5, Defendant’s Statement of Uncon-

tested Material Facts).

The operations department is responsible for dis-

patching flights, loading fuel, performing weight and

2 Because Respondent Southwest Airlines Co. (“South-

west”) takes issue with Petitioner’s presentation of the facts of

this case, Respondent sets forth the “Statement of Facts” in

order to preserve its right to contest Petitioner’s version. See

Sup.Ct.R. 15.1.

balance calculations on the aircraft, and completing dis-

patch reports. The ramp department is responsible for

accepting luggage, deciding the bin placement of the

luggage aboard the plane, and loading and unloading of

freight and baggage on aircraft, pushing the plane back

for departure, and flagging in the aircraft upon arrival.

The customer service department is responsible for tick-

eting, checking passengers in at the gate, completion of

sales reports, and handling air freight. (R. Vol. 1, pp.

72-73, Affidavit of Leroy Carroll; R. Vol. 1, p. 41, Nos. 6, 7,

8, Defendant’s Statement of Uncontested Material Facts).

A very important part of the Southwest company

culture is to continually stress an upbeat, high morale,

team effort attitude by the employees. (R. Vol. 1, p. 73,

Affidavit of Leroy Carroll; R. Vol. 1, p. 41, No. 9, Defen-

dant’s Statement of Uncontested Material Facts). At his

deposition, Mr. Westfall acknowledged this was very

important.

Q. Would you agree with me that someone in a

position of station manager who does not

have the respect of the employees and the

supervisor is not an appropriate or capable

manager? Don’t you think that a manager

has to have the respect of the people in

order to manage?

A. Yes, sir.

Q. And in the Southwest Airlines culture,

wouldn’t you agree that leadership by the

station manager is terribly important?

A. Yes, sir.

Q. And morale is terribly important?

A. Yes, sir.

Q. They have a Southwest Airlines way of

doing things, don’t they?

A. Yes, sir.

Q. And it is an upbeat, positive work-together

type of culture, isn’t it?

A. Yes, sir.

Q. And if you are a station manager of a group

of people and you have not been successful

in causing that culture to continue or to

exist, you failed, haven’t you?

A. Yes, sir.

(R. Vol. 1, pp. 114-117, Petitioner's deposition excerpts,

pp. 270-271).

In October 1989, when Leroy Carroll was appointed

Southwest’s Regional Director of Ground Operations, he

reviewed the performance evaluations and audit reports

for all of the stations under his supervision, including the

New Orleans station. The audit reports consist of stan-

dard reviews of each station, performed by Southwest's

audit department once a year. The performance evalua-

tions are standard reviews of each station manager's

performance and are usually completed once each year.

The prior performance evaluations of Dennis Westfall

were completed by another Regional Director of Ground

Operations, Phil Gilbert, who supervised New Orleans

prior to Leroy Carroll's assignment as a Regional Direc-

tor. (R. Vol. 1, p. 73, Affidavit of Leroy Carroll; R. Vol. 1,

pp. 41-42, Nos. 10, 11, 12, 13, Defendant's Statement of

Uncontested Material Facts).

Leroy Carroll’s 1989 review of the prior audits raised

a question in his mind about the level of concern the New

Orleans station manager had about his station. For exam-

ple, the 1987 audit revealed that some equipment had not

been painted or repaired and that there were broken

telephones, doors, and formica around various counters.

Additionally, ticket lists were inaccurate, lost and found

forms were not completed, and there were errors in the

refund drafts. (R. Vol. 1, p. 73, Affidavit of Leroy Carroll;

R. Vol. 1, p. 42, No. 15, Defendant’s Statement of Uncon-

tested Material Facts).

The question about the level of concern by Mr. West-

fall as station manager was also reflected in some of the

comments on Mr. Westfall’s prior performance evalua-

tions. For example, on his December 16, 1988 Perfor-

mance Evaluation, Phil Gilbert rated Dennis Westfall

“below satisfactory” in the category dealing with main-

taining effective control over company resources and

monitoring expenditures. (R. Vol. 1, pp. 80-85, Affidavit

of Leroy Carroll). This evaluation stated, “[t]he most

recent audit revealed some glaring deficiencies in mon-

itoring and correcting these deficiencies.” Further, with

respect to his leadership, the 1988 evaluation stated,

“[wjithout applying a ‘whip cracking style,’ would rec-

ommend Dennis display a more aggressive management

style, particularly when personnel fail to provide quality

service in all respects.” (R. Vol. 1, pp. 80-85, Affidavit of

Leroy Carroll; R. Vol. 1, p. 42, No. 18, Defendant’s State-

ment of Uncontested Material Facts).

Mr. Westfall acknowledged at his deposition that Mr.

Gilbert had reviewed the performance evaluation with

him and he agreed with Mr. Gilbert’s conclusions con-

cerning his performance problems. (R. Vol. 1, p. 43, No.

19, Defendant’s Statement of Uncontested Material Facts).

Q. Referring to the first page of the appraisal

under Paragraph 4 where it states their rat-

ing you concerning “Maintain effective con-

trol over company resources, monitor

expenditures to ensure compliance with

budgetary guidelines. Accomplish goals

established locally and systemwide.” And

in the column over on the right under Rat-

ing, it’s rated you a 2.9; is that correct?

A. Yes, sir.

Q. And a 2.9 is not satisfactory; isn’t that cor-

rect?

A. Yes, sir.

Q. If you refer to the third page of the

appraisal under Paragraph 4, it has a narra-

tive. Is it your understanding that that nar-

rative describes why you received the

rating of 2.9?

>

Yes, sir.

©. And the rating says, “The most recent sta-

tion audit revealed some glaring deficien-

cies in monitoring and correcting these

deficiencies.” Do you agree with that?

A. Yes, sir.

Q. Referring to the second page of the Perfor-

mance Appraisal at the top under Para-

graph 2, it says, “What are the main areas

needing improvement?” And it has the

statement, “Needs to display more aggres-

sive management style where performance

A.

Q.

Q.

of employees is substandard.” Do you

remember that?

Yes, sir.

Do you remember Mr. Gilbert discussing

that with you?

Yes, sir.

What do you remember Mr. Gilbert telling

you about that?

That I should pay special attention to

employees that are having problems, and

the problem employees, that I should pay

more attention to them, and that, you know,

try to improve their performance or stay on

top of what they’re doing and be aware of

what their performance is.

Well, did he talk to you about the problems

that you were having that caused him to

put that on your Performance Appraisal?

I don’t remember that being directed at any

specific employee or specific problem.

Did you agree with that statement on your

appraisal?

Yes, sir.

Referring to the 'ast page of the appraisal in

Paragraph 2, Mr. Gilbert stated, and I quote,

“Without applying a ‘whip cracking style,’

would recommend Dennis display a more

aggressive management style, particularly

when personnel fail to provide quality ser-

vice in all respects.” Do you agree with that

statement?

Yes, sir.

Additionally, when Mr. Carroll took over the New

Orleans station in October 1989, the previous Regional

Director of Ground Operations, Phil Gilbert, told him Mr.

Westfall appeared to be lazy and that it would be wise “to

monitor him closely,” and that he was absent from his

office on many occasions when he should not have been.

(R. Vol. 2, pp. 410-411).

When Mr. Carroll met with Mr. Westfall shortly after

Mr. Carroll became Director of Ground Operations in

October 1989, Mr. Westfall represented that everything

was fine and that he had no problems. However, during

subsequent trips to the New Orleans station, Mr. Carroll

sensed that there were some morale problems there

because of complaints he was receiving from some of the

supervisors under Dennis Westfall. (R. Vol. 1, p. 74A,

Affidavit of Leroy Carroll; R. Vol. 1, p. 43, Nos. 20, 21,

Defendant’s Statement of Uncontested Material Facts).

When Mr. Carroll completed the performance evalua-

tion of Mr. Westfall on January 11, 1990, he noted that Mr.

Westfall, “[cjould be more aggressive in approach to

‘problem’ employees”; that he “[s]hould improve follow

up with employees in their problem areas”; and that,

“(t]he most recent station audit, October 24, 1989 indi-

cated improvement, however there remain some areas of

concern in documentation of bag reports, weight and

balance forms involving air freight, and recording of

negotiable documents.” Mr. Carroll discussed and

reviewed this performance evaluation with Mr. Westfall

on January 11, 1990. (R. Vol. 1, pp. 74-75, Affidavit of

Leroy Carroll; R. Vol. 1, p. 43, No. 23, 24, Defendant's

Statement of Uncontested Material Facts).

During his deposition, Petitioner acknowledged that

he was deficient as indicated by Mr. Carroll on the 1990

performance evaluation. (R. Vol. 1, p. 44, No. 25, Defen-

dant’s Statement of Uncontested Material Facts).

Q. Referring to Page 3 of the appraisal on

Paragraph 1, it’s stated that “Dennis under-

stands and applies basic principles of lead-

ership. Could be more aggressive in

approach to ‘problem’ employees.” Mr. Car-

roll talked to you about that?

A. Yes, he did.

Q. What did he tell you about that?

A. Basically, that I should monitor the problem

employees and be more aggressive in

applying disciplinary procedures and docu-

mentation and stuff like that.

Q. Paragraph 2, Mr. Carroll stated “Should

improve follow up with employees in their

problem areas.” Did you agree with that?

A. Yes, sir.

+ * +

Q. You had heard from prior managers, Mr.

Gilbert, essentially the same thing, had you

not?

A. Yes, sir.

Q. So would it be correct at this time that you

understood that you continued to have a

problem in this area?

A. Yes, sir.

On March 25, 1990, there was a serious incident at the

New Orleans station during which a provisioning stand

punctured the outer metal skin of one of Southwest's

multimillion dollar aircraft, because there was no bumper

on the stand and it had a bad wheel. Because of the

resulting damage, it was necessary to cancel the flight

and take the aircraft out of service for repairs. When Mr.

Carroll was notified of the incident, he thought it

reflected very badly on Mr. Westfall, and that a concerned

and diligent station manager would have observed the

condition of the stand and immediately taken steps to

correct the situation. (R. Vol. 1, p. 75, Affidavit of Leroy

Carroll; R. Vol. 1, p. 133, Affidavit of Jim Wimberly; R.

Vol. 1, p. 44, Nos. 26, 27, Defendant’s Statement of Uncon-

tested Material Facts). Mr. Carroll then wrote Mr. Westfall

a memorandum dated March 28, 1990 (R. Vol. 1, pp.

86-87, Affidavit of Leroy Carroll), which stated:

This has been an accident waiting to happen

and is one of the major items that Station Man-

agement and Supervisors are in place to pre-

vent. I find it inexcusable that a piece of

equipment that comes into contact with an air-

craft and is used daily to have exposed metal at

the aircraft contact point.

During November 1990, Mr. Carroll received a tele-

phone call from one of the New Orleans ramp super-

visors, John McGrath, asking for a meeting with him. Mr.

McGrath had worked for Southwest Airlines since South-

west first began operations in New Orleans in 1979. (R.

Vol. 1, p. 75, Affidavit of Leroy Carroll; R. Vol. 1, p. 44,

No. 29, Defendant’s Statement of Uncontested Material

Facts).

10

On November 27, 1990, Mr. McGrath met with Mr.

Carroll and separately with Mr. Jim Wimberly, South-

west’s Vice President of Ground Operations and Provi-

sioning. Mr. McGrath told them the Southwest employees

in New Orleans felt they were being lied to, that Mr.

Westfall did not have the respect of many of the

employees, and further that when he was told about

problems, he often would not see them through until they

were solved. Mr. McGrath also said that Mr. Westfall was

not effectively exercising control over the supervisors. (R.

Vol. 1, pp. 52-56, Affidavit of John McGrath; R. Vol. 1, pp.

70-79, Affidavit of Leroy Carroll; R. Vol. 1, p. 134, Affi-

davit of Jim Wimberly; R. Vol. 1, p. 45, No. 30, Defen-

dant’s Statement of Uncontested Material Facts). Other

employees and supervisors in the ramp department have

confirmed that most of the employees had no respect for

Mr. Westfall, and routinely referred to him as the “invisi-

ble manager” and “Mr. Mustfall.” They referred to him as

the “invisible manager” because he could rarely be

found. Telephone calls would come in for Mr. Westfall in

the operations department and frequently he was

nowhere to be found. Further, he had no rapport with the

employees in ramp and operations, and typically would

not even say hello to them when he came to the depart-

ment to pick up his mail. (R. Vol. 1, pp. 52-69, Affidavits

of John McGrath, Kurt Schellhaas, Peter Alongia, Brian

Plaisance and Ronnie Malinosky).

Additionally, on November 29, 1990, Mr. Carroll

received a telephone call from one of the operations

agents who had also been employed at the New Orleans

station from the beginning, Pam Gendusa, about prob-

lems at the New Orleans station. Ms. Gendusa followed

11

the telephone call with four letters describing a number

of serious complaints about supervision at the New

Orleans station, including the Petitioner, and represent-

ing that morale among the station employees was very

low. (R. Vol. 1, pp. 76, 88-98, Affidavit of Leroy Carroll; R.

Vol. 1, p. 46, No. 34, Defendant’s Statement of Uncon-

tested Material Facts). In one of the letters, Ms. Gendusa

states: “Dennis and Tom are successfully destroying my

attitude and diminishing my spirit .... 1 have been

threatened by my Station Manager several times for tak-

ing my legitimate problems to a higher authority.” (R.

Vol. 1, p. 89, Memo to Leroy Carrol! from Pam Gendusa).

In another memorandum, Ms. Gendusa states: “Station

morale, not Company morale is very low here and it

shows in the employees. A negative atmosphere was

brought on to employees by local management. Local

management shows no leadership or concern to work

with the employees.” (R. Vol. 1, p. 92, Memo to Leroy

Carroll from Pam Gendusa). In another memorandum,

Ms. Gendusa states: “This four hour class which is

instructed by Employee Development is OPTIONAL. I

was told it was mandatory and involuntarily scheduled

by Tom and Dennis with no reason given... . When I

informed Dennis that this class was volutary [sic], his

response was, ‘I made it mandatory.’ Blatant harass-

ment.” (R. Vol. 1, p. 97, Memo to Leroy Carroll from Pam

Gendusa). The memorandum goes on to say: “Dennis has

a problem with where I live. He is constantly harassing

me for my address. I willingly give it to him. This address

also happens to coincide with where my company mail

and tax returns are sent as well as my driver's license and

luggage tags. I can satisfy the State of LA and the U.S.

12

Government, but not Dennis.” (R. Vol. 1, p. 98, Memo to

Leroy Carroll from Pam Gendusa).

A few days later, Ms. Gendusa filed a charge with the

EEOC alleging sex discrimination with respect to her

evaluation, and intimidation and harassment. (R. Vol. 1,

pp. 99-100, Affidavit of Leroy Carroll; R. Vol. 1, p. 46, No.

35, Defendant’s Statement of Uncontested Material Facts)

In accordance with Southwest's normal procedures,

Mr. Carroll forwarded the EEOC charge to Mr. Westfall to

investigate. Petitioner testified that at the same time Mr.

Carroll wanted him to investigate a number of other

problems concerning the operations at the New Orleans

station, including complaints that a supervisor had made

very derogatory remarks about the company; a super-

visor had left work to get bait for a fishing trip; some

allegations about stolen company property; a super-

visor’s refusal to work overtime; and misuse of sick leave

by employees. (R. Vol. 2, pp. 373-382, Plaintiff’s Opposi-

tion to Defendant's Motion for Summary Judgment,

Exhibit G).

According to Petitioner's testimony offered by Peti-

tioner in the record below, Mr. Westfall first spoke to Mr.

Carroll about his investigation during a meeting on

December 11, 1990. Petitioner claims he was fired for his

statements to Mr. Carroll in this meeting and the subse-

quent written report dated January 10, 1991, which he

sent to Mr. Carroll. His testimony concerning that meet-

ing was as follows:

Q. What did you tell him? Do you remember

what you told him about the validity of her

complaints?

>

> O >? ©

13

Basically, what I put in the letter respond-

ing to — in reference to that that most of her

complaints were not valid, and we went

over those item by item.

You didn’t think her complaints were valid?

No, sir.

Did you think some of them were valid?

At the time that I reviewed this, I didn’t

have all the information then that I had

later in reference to her situation.

I want you to tell me at this time what you

told him.

Based on that time, as far as I knew then,

close to all of her accusations were not true.

So you told Mr. Carroll, as far as you were

concerned, none of her allegations were

true?

Excluding one. I believe we discussed the

job performance or the appraisal situation

in reference to her job performance where it

was noted that she was substandard in her

job performance, and I’m not sure - If |

could look at that letter there that I

responded to Mr. Carroll, | could probably

refresh my memory.

Sure.

(Witness reviewing.) Yeah, we did. I believe

— Let me read this again.

You did what?

Let me read this again. This letter was

issued January the 10th, so this letter had

14

not been issued when I went to meet with

Mr. Carroll on December the 11th.

(R. Vol. 2, pp. 388-389, Plaintiff’s Opposition to Defen-

dant’s Motion for Summary Judgment, Exhibit J).

On or about January 10, 1991, Mr. Carroll received a

written report from Mr. Westfall stating that:

Generally, there was no validity to the majority

of her complaints. From my investigation and

interviews with all of the Operations personnel,

the only real discrepancy was the actual perfor-

mance appraisal. Tom indicated that Training

Coordinator, Frank Davino, agreed with the Job

Performance part of her appraisal and in my

interview with Frank, he did not agree with the

Job Performance issue, but he would not com-

ment on the attitude portion of the evaluation.

(R. Vol. 1, p. 102, Memo to Leroy Carroll from

Dennis Westfall).

In the remainder of the memorandum and the attached

point by point response to Ms. Gendusa’s complaints,

Petitioner-concluded that fifteen points of Ms. Gendusa

were without merit, and that one sexual harassing com-

ment was made, but was made by a different person. (R.

Vol. 1, pp. 104-105, Memo to Leroy Carroll from Dennis

Westfall).

On December 14, 1990, Mr. Carroll went to New

Orleans and met with all of the supervisors and Mr.

Westfall in an attempt to straighten out the situation. In

view of the lack of management and leadership by Mr.

Westfall, and the serious morale problems at the station,

15

Mr. Carroll had serious concerns about keeping Mr. West-

fall as the station manager. (R. Vol. 1, pp. 76-77, Affidavit

of Leroy Carroll).

After this meeting with the supervisors, Mr. Carroll

also met separately with Mr. Westfall on December 14,

1990, and told him that the situation at the station was

unacceptable, and emphasized the serious nature of the

problems at the station. During the meeting with Mr.

Westfall, Mr. Carroll told him that whatever he felt he

needed to do at the station, he should do quickly. (R. Vol.

1, p. 77, Affidavit of Leroy Carroll). In testimony submit-

ted by the Petitioner, the Assistant Station Manager Nona

Rogers testified that Mr. Carroll told them on December

14th: “You've got a serious morale problem, you have to

find out what's going on. Fix it, I mean that’s just a gist of

it.” (R. Vol 2, pp. 399-400, Plaintiff's Opposition to Defen-

dant’s Motion for Summary Judgment, Exhibit P). Ms.

Rogers went on to testify:

Q. Okay. Did he indicate to you what would

happen if things were not corrected in your

meeting with Mr. Carroll and Mr. Westfall?

A. That people would be terminated if the

problems weren't solved.

* + *

Q. Were you confused about why you might

lose your job at that point?

A. No, there were obviously serious problems

in the station.

16

(R. Vol. 2, pp. 399-400, Plaintiff's Opposition To Defen-

dant’s Motion for Summary Judgment, Exhibit P).°

On or about January 3, 1991, Mr. Carroll received

another memorandum from Pam Gendusa discussing

problems with the station and with Mr. Westfall. (R. Vol.

1, p. 107, Memo to Leroy Carroll from Pam Gendusa).

In early February 1991, after discussions with both

Mr. Jim Wimberly, Vice-President of Ground Operations

and Provisioning, and Ms. Ann Rhoades, Vice-President

of Personnel, Mr. Carroll evaluated the situation again

and concluded that the problems at the New Orleans

station had progressed beyond the point at which they

’ Under Petitioner's theory of the case, Mr. Carroll visited

the station on December 14, 1990, and told Petitioner he felt

there were serious problems at the station, and that people

would be terminated if the problems were not solved, simply as

a coverup for Mr. Carroll's real motive; i.e., that he was so upset

with Petitioner’s preliminary verbal findings concerning the

Gendusa EEOC charge that he wanted to terminate him. How-

ever, according to Petitioner’s own testimony, the principal

thrust at that time, if not the entire thrust of Petitioner's prelimi-

nary report was that Ms. Gendusa’s complaints were not true.

(See Appellee’s Brief, pp. 18-19). In his deposition, Petitioner

couldn't remember with certainty whether he even mentioned

the job performance issue to Mr. Carroll. He certainly did not

remember delivering a message to Mr. Carroll that he had

uncovered widespread serious EEOC violations. Indeed, even

in his later written findings given to Mr. Carroll on or about

January 10, 1991, Petitioner did not find that Ms. Gendusa had

been discriminated against because of her sex by the job evalua-

tion. He simply found that the training coordinator agreed with

the job performance part of the evaluation, but not the attitude

portion. (R. Vol. 2, pp. 388-389, Plaintiff's Opposition to Defen-

dant’s Motion For Summary Judgment, Exhibit J, discussed at

Appellee’s Brief, p. 20)

17

could be corrected. (R. Vol. 1, p. 77, Affidavit of Leroy

Carroll).

In view of Mr. Westfali’s serious deficiencies as a

station manager, Mr. Wimberly and Mr. Carroll did not

feel comfortable that Petitioner could adequately function

as a station manager or supervisor in any capacity. Fur-

ther, because they had concluded that Mr. Westfall did

not have the high level of concern for Southwest's opera-

tions as they would expect of anyone working for the

airline, they did not feel he should be retained in any

capacity. (R. Vol. 1, pp. 78-79, Affidavit of Leroy Carroll).

On February 11, 1991, Mr. Carroll met with Mr. West-

fall and advised him that he was being terminated

because the station was not operating in an acceptable

manner, and that supervisors and employees had lost

respect for him. Mr. Westfall’s age and his participation

or findings in the investigation of the EEOC charge by

Pam Gendusa were not in any way a consideration in Mr.

Carroll’s decision to terminate Mr. Westfall. (R. Vol. 1, p.

77, Affidavit of Leroy Carroll; R. Vol. 1, p. 47, Nos. 44, 45,

Defendant’s Statement of Uncontested Material! Facts).

On February 14, 1991, Mr. Westfall wrote a letter to

Jim Wimberly asking for a meeting to review his termina-

tion. (R. Vol. 1, pp. 77-78, 108-109, Affidavit of Leroy

Carroll; R. Vol. 1, p. 135, Affidavit of Jim Wimberly).

Pursuant to his request, on March 7, 1991, Mr. Westfall

met with Leroy Carroll, Jim Wimberly, and Ann Rhoades

for the purpose of reviewing the decision to terminate

him. The Assistant Station Manager, Nona Rogers, and

prior Director of Ground Operations, Phil Gilbert, were

also present. (R. Vol. 1, p. 78, Affidavit of Leroy Carroll;

18

R. Vol. 1, p. 135, Affidavit of Jim Wimberly; R. Vol. 1, p.

48, No. 48, Defendant’s Statement of Uncontested Mate-

rial Facts).

After the meeting, Mr. Wimberly, Ms. Rhoades and

Mr. Carroll concluded that the decision to terminate Mr.

Westfall was a proper decision in view of his lack of

n. inagement leadership, and the unacceptable morale

problems at the New Orleans station. Mr. Westfall’s age

and his participation or findings in connection with the

investigation of the EEOC charge by Pam Gendusa had

nothing whatsoever to do with the decision to uphold the

termination of Mr. Westfall. (R. Vol. 1, p. 78, Affidavit of

Leroy Carroll; R. Vol. 1, p. 135, Affidavit of Jim Wimberly;

R. Vol. 1, pp. 154-155, Affidavit of Ann Rhoades; R. Vol. 1,

pp. 48-49, No. 50, Defendant's Statement of Uncontested

Material Facts).

At the time of Mr. Westfall’s termination, the station

managers for the seven stations Mr. Carroll supervised as

Regional Director of Ground Operations in February

1991, and their respective ages were:

1. Roy Mayo, Corpus Christi, age 56;

2. Rudy Lopez, El Paso, age 35;

3. Chuck Vanzant, Harlingen, age 33;

4. Randy Rickard, Houston Hobby, age 46;

5. Jones Dunnavant, Houston Intercontinental,

age 62;

6. Dennis Westfall, New Orleans, age 43;

7. Carl Warrell, San Antonio, age 63.

19

(R. Vol. 1, p. 78, Affidavit of Leroy Carroll; R. Vol. 1, p. 48,

No. 47, Defendant’s Statement of Uncontested Material

Facts). Southwest did not demote Dennis Westfall to

another management or non-management position within

Southwest because of his serious inability to manage and

failure to correct problems with Southwest's operations at

New Orleans, indicating he could not satisfactorily func-

tion in another operations or supervisory position at

Southwest, nor as a station manager at Southwest at any

future time. (R. Vol. 1, pp. 78-79, Affidavit of Leroy Car-

roll; R. Vol. 1, p. 49, No. 51, Defendant’s Statement of

Uncontested Material Facts).

S

SUMMARY OF THE ARGUMENT

Petitioner has failed to show any special or important

reasons why this Court should grant his Petition.

The holdings of the District Court and the Fifth Cir-

cuit Court of Appeals were correct.

There is no dispute over the elements of proof and

the burden of proof applicable to Petitioner’s claims. Nor

is there any dispute that Respondent Southwest Airlines

presented sworn admissible testimony in support of its

Motion for Summary Judgment that Petitioner was termi-

nated because he was not providing the kind of leader-

ship and management Southwest Airlines expects of its

station managers, and that Petitioner failed to present

sworn admissible evidence that these reasons were sim-

ply a pretext for discrimination.

+

20

ARGUMENT

THE DECISION BELOW WAS CORRECT

1. The Retaliation Claim

When asked at his deposition whether he had any

facts or evidence to support his claim that his termination

was retaliation for his participation in the investigation

and his findings, Petitioner had no facts or evidence. (R.

Vol. 1, pp. 192-198A). In his brief to the Court of Appeals,

Petitioner’s principal arguments in support of his retalia-

tion claim were first that he was doing fine as a station

manager; second, he was discharged a few weeks after he

uncovered evidence substantiating two significant sexual

harassment and sexual discrimination complaints by Ms.

Gendusa; and third, other station managers had compara-

ble problems and were not fired.

With respect to the first point, Petitioner offered affi-

davits from two employees, Ms. Frey and Mr. Aleman.

Ms. Frey worked as a Southwest ticket agent in the cus-

tomer service department, prior to resigning in June 1991.

Accordingly, she was not in a position and did not repre-

sent she was in a position to describe the problems in the

ramp and operations departments of Southwest’s New

Orleans station. As set forth in the affidavit of Mr. Car-

roll, his concern focused on the serious problems in the

ramp and operations departments. Mr. Aleman’s affi-

davit, at best, is simply a lukewarm endorsement of the

Petitioner from the view point of one employee. Even Mr.

Aleman states that, “Under Dennis Westfall, he consid-

ered morale to be average, although there were some

people who would complain about anything” and that

“he did hear some ramp and operations agents call him

— ———————eeeea_a___a

21

the “invisible manager.” (R. Vol. 2, pp. 433-435, Plaintiff’s

Opposition to Defendant’s Motion for Summary Judg-

ment, Exhibit DD). This affidavit does not in any sense

reasonably permit a conclusion that Mr. Carroll was not

concerned about the problems at the New Orleans station

or that he was not very concerned about Petitioner’s

failure to provide the type of management and leadership

Southwest Airlines expects of it station managers. From

the time Mr. Carroll became the Director of Ground Oper-

ations in October 1989, he had received a number of

negative reports concerning Petitioner. Some of his con-

cerns about Petitioner’s performance were specifically

noted in Petitioner’s performance evaluations, and Peti-

tioner acknowledges that he had management deficien-

cies. Nor is there any dispute that in the latter part of

1990, Mr. Carroll was informed of more very serious

management deficiencies by a long term supervisor, Mr.

McGrath, and a long term employee, Ms. Gendusa, and

that he made a special trip to New Orleans to look into

the problems at Southwest’s New Orleans station and

meet with the management employees. Nor is there any

dispute that at that meeting he told Petitioner he was

very concerned about the problems and if the problems

were not solved, Petitioner would be terminated.

With respect to the second point, it is not only absurd

but illogical to conclude that Mr. Carroli would think

badly about Petitioner, much less get so angry that he

would terminate him, simply and only because Peti-

tioner’s investigation of Ms. Gendusa’s EEOC charge

showed that two of her fifteen allegations had some

merit. Mr. Carroll had asked Petitioner to investigate the

EEOC charge. There would be no reason to assume that

22

Mr. Carroll did not want Petitioner to do a good and

thorough job of investigating the charge. There would be

no reason to assume and no evidence that Mr. Carroll did

not want Petitioner to accurately report back to him his

findings. After all, Ms. Gendusa’s charge was not going

to disappear, nor were Ms. Gendusa or the EEOC going to

go away without an investigation and possible litigation

simply because Petitioner, as the station manager,

reported back to Mr. Carroll that her allegations were

without merit. Petitioner even testified that when he

reported his findings to Mr. Carroll, Mr. Carroll was not

even upset. (R. Vol. 1, p. 198, Petitioner’s deposition

excerpts, p. 300). Without evidence that Mr. Carroll’s

motivation for the termination was because of Peti-

tioner’s investigatory findings, Petitioner’s attempt to

infer a retaliation motivation simply because Petitioner

was terminated a few weeks later wholly lacks any merit

and ignores the reasons for Petitioner’s termination as an

ineffective station manager. This is particularly true in

this case, where Petitioner’s deficiencies as a manager

had been documented long before his investigation of the

EEOC charge and the seriousness of his deficiencies had

been emphasized by Mr. Carroll, two months before his

termination.

With respect to the third point, Petitioner has failed

to produce admissible evidence that other similarly situ-

ated station managers who were supervised by Mr. Car-

roll had substantially similar management and leadership

deficiencies and morale problems at their stations.

Based on this record, the District Court and Court of

Appeals were correct in finding Petitioner has not carried

his burden of establishing that Southwest's articulated

23

reason for Petitioner's termination was simply a pretext

for alleged retaliation discrimination.

2. The Age Discrimination Claim

Petitioner argues he was discharged because he was

43 years old. Petitioner proposes that the Vice President

of Ground Operations, Mr. Jim Wimberly, promoted him

to the position of station manager when he was 39 years

old, and then in February 1991, because Petitioner was

four years older, terminated Petitioner because he was

then 43 years old. This proffered theory of Petitioner’s,

on its face, is absurd, and becomes even more so, when it

is considered that of the six other station managers under

Mr. Carroll’s supervision, four were older than the Peti-

tioner.

In any event, it is undisputed that the Regional Direc-

tor of Ground Operations, Mr. Leroy Carroll, and the Vice

President of Ground Operations, Mr. Jim Wimberly, had

been informed about serious management and morale

problems at the New Orleans station. It is also undis-

puted that a very important part of the Southwest Air-

lines’ culture and business philosophy is to continually

stress an upbeat, high morale, team effort attitude by the

employees. Under the circumstances, the decision to ter-

minate Mr. Westfall for these substantial business reasons

clearly refutes any claim that his termination was because

of his age, and substantiates that the lower court decision

dismissing his claim was correct.

+

24

CONCLUSION

It is respectfully submitted that in attacking and

alleging error in the lower court’s review of the record in

this case, Petitioner has failed to sustain its burden of

establishing under Sup.Ct.R. 10 that there are special and

important reasons the writ should be granted. The deci-

sion below does not conflict with applicable decisions of

this Court or of another Court of Appeals. The Fifth

Circuit Court of Appeals correctly decided that Peti-

tioner’s claims should be dismissed per curium.

Respectfully submitted,

Rospert K. McCatia

(La. Bar No. 9233)

McCatta, THOMPSON, PyYBURN,

Hymowitz & SHAPIRO

650 Poydras Street

Suite 2800

New Orleans, Louisiana 70130

Telephone: (504) 524-2499

CYNTHIA S. Fox

(Texas Bar No. 07331100)

Southwest Airlines Co.

Chief Counsel - Litigation

P.O. Box 36611

2702 Love Field Drive

Dallas, Texas 75235

Telephone: (214) 904-4046

Attorneys for Respondent

Southwest Airlines Co.

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