Petition for Writ of Certiorari — Duncan v. Delta Air Lines, Inc.

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001510 jan 25200

No. 00-

eiadeian a aeoadieenme tae

IN THE

Supreme Court of the United States

WILLIAM DUNCAN,

Petitioner,

DELTA AIR LINES, INC.,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

STEWART LEE KARLIN KENNETH J. KAVANAUGH P.A.

400 SE 8" Street Counsel of Record

Fort Lauderdale, FL 33316 400 SE 8" Street

(954) 462-1201 Fort Lauderdale, FL 33316

(954) 462-5255

Attorneys for Petitioner

166160 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

Whether the Eleventh Circuit applied the correct

standard under Rule 56(f) of the Federal Rules of Civil

Procedure when ruling that the District Court did not abuse

its discretion when it made no finding regarding Petitioner’s

Rule 56(f) application and denying it as moot when it granted

respondent’s summary judgment motion.

Whether the Court erred when affirming the granting of

summary judgment when the reasons for the termination were

in dispute and when developed in the record were similar

incidents occurring which did not result in any discipline to

similarly situated employees.

PARTIES TO THE PROCEEDINGS

Petitioner W.lliam Duncan was employed at the

Respondent as a pilv‘ (Captain) at the Miami International

Airport. He was the plaintiff in the district court and appellant

in the Eleventh Circuit Court of Appeals.

Respondent Delta Airlines Inc. was the defendant in the

district court and appellee in the Eleventh Circuit Court of

Appeals.

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TABLE OF CONTENTS

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Statement of Jurisdiction .....................

Statutory Provision Involved ..................

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‘Reasons for Granting Writ ....................

The Decision Of The Eleventh Circuit Court

Of Appeals Conflicts With The Decision Of

The Supreme Court And With Other Circuits

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A. The Rule 56(f) Motion Was Improperly

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Contents

Page

B. The Eleventh Circuit Failed to Follow

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I]. The Questions Presented Are Important And

There Is A Conflict In The Circuits ....... 16

III. The Decision Of The Court Of Appeals Has

A Particularly Debilitating Effect On

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TABLE OF CITED AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)

26 648 2 O44 D-DDA-D OS OOO 2S DT SE 24 2.4 6.8 2 4.4. O.2SG-SOR A CO

Atkinson v. Delta Airlines, 95 CIV 00472 ........

Buchanan vy. Starships Inc., 744 F.2d 1070 (Sth Cir.

| OR RT OP ty ea roca

Carmical Bell Helicopter Textron Inc., 117 F.3d 490

be, fe 4 Be rr err ere rrr yr

Condon vy. Delta Airlines, 93 CIV 00670 ........

First National Bank of Arizona v. Cities Service Co.,

FOE Re. Be Ee bk Os Reb oe

Florida Power & Light v. Allis Chalmers Corp., 893

Page URES CLG Feo view eee canes

Hicks v. Delta Airlines, 91 CIV 1523 ...........

International Shortstop Inc. v. Rally Inc., 939 F.2d

beret Lo AE. | weer errr rr ey.)

Kassa v. Delta Airlines, 93 CIV 1910 ...........

Lee v. Delta Airlines, 95 CIV 01056 ............

Miller v. Beneficial Management Corp., 977 F.2d

fk |) re ere hore rae

Page

Cited Authorities

Page

Naumanchi v. Delta Airlines, 95 CIV 00539 ..... 18

Prather v. Delta Airlines, 93 CIV 0231 .......... 18

Range v. Delta Airlines, 91 CIV 1673 ........... 18

Reeves v. Sanderson Plumbing Products Inc., 120

SB. CR; Beet Gee ccc cscceeceeens EES ES 15

Sallas v. Delta Airlines, 94 CIV 1012 ........... 17

Schoembaum vy. Firstbrook, 405 F.2d 215 (2d Cir.

1968), cert. denied, 395 U.S. 906 (1968) ...... 13

Sommer v. Delta Airlines, 95 CIV 00652 ........ 18

Sweat v. Miller Brewing Company, 708 F.2d 655

th) fe Bi er rer rrr rr 15

Thompson v. Delta Airlines, 93 CIV 00354 ...... 17,18

Visa Int'l Service Ass'n v. Bankcard Holders of

America, 784 F.2d 1472 (9th Cir. 1986) ....... 12

Statutes:

Flonda Civil Rights Act of 1992, Florida Statute 760,

GOR. oo cvesthandsaes4essa8 eae 2

Florida Civil Rights Act of 1992, Florida Statute

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Cited Authorities

Page

Rule:

Federal Rule of Civil Procedure 56(f) ...........

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TABLE OF APPENDICES

Page

Appendix A — Per Curiam Opinion And Judgment

Of The United States Court Of Appeals For The

Eleventh Circuit Dated And Filed October 25,

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Appendix B — Order On Motion For Summary

Judgment And Final Summary Judgment Of The

United States District Court For The Southern

District Of Florida Dated May 4, 2000 ........ 12a

]

Petitioner respectfully petitions for a writ of certiorari

to review the judgment of the Eleventh Circuit Court of

Appeals in this case.

OPINIONS BELOW

The Eleventh Circuit (App. A) is an unreported judgment

and opinion to wit William Duncan v. Delta Airlines Inc.,

Case No. 00-12939. The district court (App. B) opinion and

judgment is unreported to wit: William Duncan v. Delta

Airlines Inc., Case No. 99-6428-CIV-FERGUSON. |

STATEMENT OF JURISDICTION

The judgment of the Eleventh Circuit Court of Appeals

was entered on October 25, 2000.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISION INVOLVED

This case involves Rule 56(f) of the Federal Rules of

Civil Procedure which states:

(f) When Affidavits are Unavailable. Should it

appear from the affidavits of a party opposing the

motion that the party cannot for reasons stated

present by affidavit facts essential to justify the

party’s opposition, the court may refuse the

application for judgment or may order a

continuance to be obtained or depositions to be

taken or discovery to be had or may make such

other orders as is just.

This case also involves the Florida Civil Rights Act of

1992, Florida Statute 760.10 (patterned after Title VII)

It shall be an unlawful for an employer

(1) to fail or refuse to hire or to discharge

any individual or otherwise to discriminate

against any individual with respect to the

compensation, terms, conditions, or privileges of

employment, because of such individuals’s age

... handicap. .

STATEMENT OF THE CASE

This action was commenced by Petitioner Duncan

alleging that he was terminated due to his age, disability

and perceived disability. The complaint filed by the Petitioner |

alleged a cause of action for deprivation of employment

opportunities in violation of the Florida Civil Rights Act of

1992, Florida Statute 760, et seg. only. App. B at 15a. Captain

Duncan alleges that there was an age bias, particularly from

Chief Pilot Burnfeld who built a case of progressive

discipline against Captain Duncan which ultimately caused

his termination regarding an alleged improper taxing incident

App. B at 15a.

In one of several memorandum placed in Petitioner’s

personnel file without his knowledge, Chief Pilot Burnfield

stated that some crews preferred not to fly with Captain Duncan.

But when questioned at his deposition, he had no recollection

of which crews did not want to fly with him. Finally, the

memorandum dated April 16, 1996 by Burnfeld reflects an open

age bias when he states “HOPEFULLY THIS PROBLEM

WILL BE RESOLVED, BUT WE HAVE A DINOSAUR

ATTITUDE OF RESISTANCE TO CHANGE AND

FURTHER INCIDENTS WILL REQUIRE MORE

SUBSTANTIAL ACTION.” This memorandum was placed

in Petitioner’s file contrary to the agreement that was reached

that nothing was done wrong and that there would be nothing

placed in his personnel file and directly contrary to the

CBA and personnel rules and regulations of Delta since one is

suppose to receive a copy of any counseling and be signed

by the pilot before it goes in his file. App. A at 7a.

Delta, through Burnfield again seized on any opportunity

to discredit Captain Duncan in an attempt to set him up for

termination due to his age when a second officer complained

about Duncan. However, no credible investigation whatsoever

was done and apparently took the word of a second officer who

had almost no experience on a 727, who had recently returned

from furlough, and who felt that he was more qualified to make

critical decisions than himself or his experienced first officer.

Burnfield never took a detailed statement from Captain Duncan

nor first officer, Greg Knox. In fact, he never showed him a

copy of the complaint, nor did Burnfield advise him of the

specific allegations against him. Burnfield could not answer

why he did not interview the co-pilot who was also

accompanying Thompson and Duncan even though it is the

better practice to interview all significant witnesses when

suspending someone for thirty days on alleged serious safety

issues. He did not recall his conversation with Duncan but

concluded that Thompson’s complaint was accurate In fact,

when First Officer Knox was contacted by telephone and

indicated that nothing improper occurred, Delta decided not to

take a statement from Knox knowing that it would not support

a suspension. This was the first significant adverse employment

action (progressive discipline) taken in which Burnfeld was the

decision maker App. A at 3a.

The suspension which was baseless was not grieved since

he was. threatened with further pay loss and loss of health

insurance during the suspension and was intimated by a direct

threat of further financial hardship.

Delta once again suspended him for thirty days over

baseless charges and even went as far as instigating a

passenger to complain about him. The circumstances

regarding this incident which caused his suspension is as

follows. Captain Duncan was dead heading from Dallas to

Cincinnati aboard flight 1922. He did not have an altercation

with a passenger and in fact the passenger never complained

to anyone.

In a further attempt to build mountain out of a mole hill,

Delta took the unprecedented step of calling the passenger

to instigate a complaint since the passenger had never

complained. The only thing he did was move a small attache

case from the overhead compartment to an adjoining

compartment. The passenger asked Petitioner “what are you

doing” and he replied only trying to make room for my bag.

No other conversation took place between Captain Duncan

and the passenger. The only other thing that occurred on the

flight was when the flight attendant approached Captain

Duncan and a member of his crew and stated “they do not

have enough snacks for you” he replied in a joking manner

‘oh well, I guess we have to go by seniority”.) Subsequently,

the Captain Sultzbach (approximately 40 years old at the

time) of: the flight asked to speak to Captain Duncan and

approached him in an aggressive and threatening manner as

witnessed by members of his crew. Captain Duncan received

a suspension notice of thirty days over this incident which

is a shocking and grossly disproportionate penalty. It should

be noted that Captain Duncan instigated the investigation

when he along with his crew went into see Captain Tutt and

prepared CIOR (crew irregularity operational report) in

connection with the unprofessional behavior exhibited by

the Captain of that flight. Delta seized the opportunity

to turn the situation around (and favor a Captain who

was approximately 40 years old) despite the unrebutted

statements made by members of his crew regarding the

- aggressive and threatening manor in which this substantially

younger Captain approached him. Nothing was done to

Captain Sultzbach but Captain Duncan was once again

singled out for discriminatory treatment due to his age over

a non existent incident and key witnesses which supported

Duncan were not contacted. Captain Duncan was advised

that Delta, through Shand Gause, System Manager, that he

would seek a sixty day suspension if he contested the validity

of the suspension. This would have been a substantial loss

of income without insurance and thus he decided that

he could not afford to grieve the thirty day suspension.

(App. A at 3a)

In connection with the final incident at La Guardia

Airport, (LGA), Captain Duncan departing from LGA

on March 21, 1998 at approximately 6:30 P.M. and the

weather conditions was overcast and drizzling. (R1-43-7-9)

The aircraft was in the process of being pushed back to an

area known as spot 29 which is approximately one hundred

yards from the gate. All pre-start check lists had been

completed anu .ne plane was cleared to start the number two

engine while the aircraft was in the process of being pushed

backward from the alley way to spot 29. By the time the

aircraft was positioned at spot 29 by the ground crew, the

number two engine was still in the process of being started.

At this point Captain Duncan was advised “brakes set” from

the ground crew. He replied, “brakes set, clear to disconnect”.

At this point, the ground person immediately pulled the

headset jack used for communication thereby making any

further oral communications impossible.

The ground crew personnel never advised Captain

Duncan to stand by for hand signals which is part of Delta’s

procedures before breaking off communications with him.

Captain Duncan then looked ninety degrees to his left and

saw the marshaling agent (who is one of the ground crew

personnel) with his wands at a forty-five degree position

meaning the aircraft was suppose to be in a stopped position

with the brakes set which the aircraft was at that point.

The proper procedure is that the agent should have been at

10:00 to 12:00 position and thus in plain view of both the

Captain and First Officer. Instead the agent positioned

himself at 9:00 or ninety degrees directly to the left of the

Captain making it impossible for anyone but the Captain to

see him. At that point, he finished monitoring the start of

the number two engine which had now come up to idle, the

start being completed.

He then called for the number one engine to be started

and looked to his left and observed a salute from the

marshaling agent, returned his salute and he then disappeared

from view as was the Delta procedure. Captain Duncan asked

the first officer, Doug Schalfer for taxi clearance and turned

the taxi lights on and started a very slow roll with just the

number two engine at idle power. (The number one engine

had just started rotation and was not close to being minimum

rotation speed to engage the fuel to start the engine.) At that

time, Captain Duncan observed the marshaling agent again

ninety degrees to his left waiving a stop and other unknown

signs with his wands. He immediately stopped the aircraft,

and called operations to find out the problem. Immediately

his first officer terminated the number one engine. Operations

advised Captain Duncan that ground crew personnel were not

clear of aircraft at the time he started to taxi.

It should be noted that the first officer is also responsible

for making sure the aircraft is clear and if the Delta’s version is

believed that the marshaling agent was in front of the aircraft,

he would have been in plain view of the first officer, Doug

Schalfer. The first officer at that time was approximately

forty years old and did not even receive a suspension, or even a

counseling at the time for the incident which resulted in Captain

Duncan’s termination. It should be noted that Captain Duncan

has flown literally thousands of flights without incident as well

as his co-pilot who was a highly experienced and knowledgeable

pilot who would never taxi if he was not certain that the plane

was clear to do so. Subsequently, Captain Duncan was verbally

suspended with pay. (App. A at 3a) While Captain Duncan was

suspended, he decided to have his required FAA physical.

On April 7, 1998, he went to Dr. Perraud, his FAA examiner to

renew his first class medical certificate which is required every

six months. However, Captain Duncan was advised by

Dr. Perraud that he could not give him medical clearance

because he was now suffering from diabetes and high blood

pressure. As a result, he faxed a copy of the medical turn down

to Captain Columbia on April 8, 1998 who in turn faxed it to

Shand Gause. He was advised by Captain Columbia that Delta’s

position was that if he attempted to go out on medical disability

leave, that Delta would terminate him. Because of the severe

financial consequences resulting from a termination, he had no

choice and was forced to take an early retirement thus resulted

in a substantial financial loss of pension benefits. Problems

regarding the ground crews have reoccurred repeatedly.

The problem of taxing before getting the salute occurred in

New York. Captain Quiello stated that the pilots did not wait

for the marshaling agent’s salute before taxing which means

the area such as the tug etc. may not yet be clear and thus you

wait for the salute. It is the Captain’ responsibility to make sure

the salute is given by the marshaling agent prior to taxing.

At JFK, there were at least three incidents admitted (maybe

more) where the pilots did not obtain the salute from the

marshaling agent which resulted in having improper push backs.

(App. A at 3a) This argument was not addressed by either court

although developed in the record.

The exact same situation which occurred to Captain

Duncan. However, none of the pilots involved in these incidents

received any discipline. In fact, there was a safety bulletin on

this very point and a subsequent memorandum by Quiello

acknowledging this reoccurring problem in New York.

However, in an extraordinary memory lapse, Quiello could not

recollect the name of one person on one of the crew regarding

at least three occurrences (probably more) of the crew not

adhering to push back procedures. Further, none of the incidents

resulted in any formal counseling at all let alone a termination.

What is even more remarkable is that when an incident of this

nature has occurred a CIOR has to be prepared by the

flight crew and the ground crew. However, despite the requests

for information, Delta stated that it had no such documents

in its possession, although Captain Duncan and member of

his crew followed Delta procedures and prepared a CIOR.

(App. A at 3a) This argument was not addressed by either court

although developed in the record.

In addition, there was another accident at LGA involving a

727 push back with Captain Richard Knowski (approximately

forty years old) which took place in November or December,

1999. However, no disciplinary action whatsoever was taken

against this substantially younger pilot even though there was

substantial damage to the aircraft and no action taken against

the ground crew. Since the accident occurred in November,

1999, discovery concluded in December, 1999, and petitioner’s

56(f) application was denied, a deposition could not be obtained.

A. Proceeding Below

This action was commenced on March 16, 1999 in State

Court for age and disability discrimination in connection with

plaintiff's termination as a Delta pilot and was removed in April,

1999 to the United States District Court for the Southern District

of Florida. There was extensive motion practice early in the

case such as a motion to dismiss and a motion to remand. The

Court denied the motion to remand and granted the motion to

dismiss as to the individual defendant. Also, a pretrial status

conference was held in May, 1999 setting the discovery deadline

of November 22, 1999 which was extended to December 22,

1999 by order dated December 28, 1999. It should be noted

due to the vacation schedules and location of the witnesses and

difficulty in serving process since they are pilots frequently

traveling especially during Christmas, Petitioner-Duncan had

filed a Rule 56(f) motion and an extension motion requesting

that the discovery deadline be extended to January 22, 2000.

These motions were denied as moot when the District Court

below ruled on the summary judgment. (App. A at 5a)

The reason it was necessary for the extension was that

Plaintiff had served their initial discovery requests which have

been responded too. In addition, plaintiff's deposition was

conducted. Although the discovery has been responded to, the

adequacy of the responses by defendant were at issue. After

negotiations, it was settled that initially the crew irregularity

reports be produced for inspection. However, there were

approximately thirteen thousand crew irregularity report located

in Atlanta Georgia that was made available around November

15, 1999. The document production request was on July 14,

1999. Because of the volume of the crew irregularity reports,

plaintiff narrowed its request to only one category. In addition,

once the documents were inspected and copied, there would

have been several more depositions conducted regarding

similarly situated pilots. This information was critical since it

provided the comparatives to Captain Duncan. However, the

proposal to the narrow the request although made within the

discovery period fell on deaf ears.

In addition, the depositions of the witnesses was difficult

since most of the depositions were out of the state of Florida in

various States. Also, most of the witnesses are pilots and thus

are difficult to get a hold off and schedule since their job

obviously has them traveling particularly during December.

It should be noted that five depositions have been taken by

Duncan. Duncan had scheduled other depositions which had to

be continued since Petitioner’s counsel was actually engaged

in Court proceedings. But key witnesses agreed to the

subsequently appear but because of vacation schedules and their

work schedules, the depositions could not be conducted before

the discovery deadline. The case was far more complex than

Petitioner anticipated since the records and witnesses were |

located out of State and were voluminous. To obtain record |

regarding these types of incidents and similar incidents |

regarding pilot error is difficult since there are literally thousands

of pilots who are based out of Atlanta. Thus, this case was far

more complicated that originally contemplated at the initial

pretrial status conference. (App. at Sa) This argument although

developed in the record below was not addressed by either court

below.

Ey Oca ye a ee eae e

The Summary Judgment was granted due to Court ruling

that Petitioner failed to offer evidence which raises material

issues of fact giving rise to an inference of discrimination or

in the alternative that the legitimate reasons articulated by

defendant were not shown to be pre-textual in that there was

no evidence in the record that Petitioner was treated

disparately in connection with his termination. In addition,

the lower Court never ruled (it was denied as moot when the

court ruled on the summary judgment) upon plaintiff's 56(f)

motion, motion for an extension of discovery and motion

for a one week extension to submit opposition papers to the

summary judgment. (App. A at 10a)

The Court of Appeals adopted the district’s court’s

opinion and affirmed the district’s court judgment,

App. A at __, and also held that the District Court did not

abuse its discretion in denying plaintiff's Rule 56(f) motion

because plaintiff had failed to demonstrate how the additional

discovery would aid Duncan and that there was ample time

to complete discovery. (App. A at 10a)

REASONS FOR GRANTING WRIT

THE DECISION OF THE ELEVENTH CIRCUIT

COURT OF APPEALS CONFLICTS WITH THE

DECISION OF THE SUPREME COURT AND

WITH OTHER CIRCUITS

A. The Rule 56(f) Motion Was Improperly Denied

In the case at bar, the court below committed reversible

error by not allowing Captain Duncan an opportunity to

complete discovery or at least supplement the record below.

In fact, the District Court below clearly abused its discretion

when it granted defendant’s motion for summary judgment

but denied as moot plaintiff's Rule 56(f) motion without

determining the merits of the 56(f) motion at all. A rule 56(f)

motion should be liberally construed unless the motion is

dilatory or lacking merit. First National Bank of Arizona v.

Cities Service Co., 391 U.S. 253 (1968); Buchanan vy.

Starships Inc., 744 F.2d 1070 (Sth Cir. 1984). In fact it is

considered an abuse of discretion if the record below is

incomplete. Visa Int'l Service Ass'n v. Bankcard Holders of

America, 784 F.2d 1472 (9th Cir. 1986). In short, Rule 56(f)

may be utilized by the opposing party to state reasons why

one has not had sufficient time in which to utilize discovery

procedures. If those reasons appear reasonable, then the

motion for summary judgment should be denied. Adickes v.

S.H. Kress & Co., 398 U.S. 144 (1970). The Rule provides

an additional safeguard against an improvident or premature

grant of summary judgment. Courts have held that

continuances would be proper when the Court concluded that

the party opposing summary judgment had been diligent and

——

had acted in good faith. Miller vy. Beneficial Management

Corp., 977 F.2d 834 (3d Cir. 1992). Sufficient time for

discovery is especially important when the relevant facts are

exclusively in control of the Opposing party because only

one party has had an opportunity to present their side of the

case. Schoembaum vy. Firstbrook, 405 F.2d 215 (2d Cir.

1968), cert. denied, 395 U.S. 906 (1968). In addition, the

granting of continuances is more appropriate because

extracting information from an Opposing party who is the

sole source of that information may be a more difficult

process than obtaining information from an disinterested

source. In /nternational Shortstop Inc. vy. Rally Inc., 939 F.2d

1257 (Sth Cir. 1991), the court held that even though plaintiff

had several extensions of discovery, the delay was

attributable to defendant and thus the 56(f) application should

have been granted.

The case at bar which had been pending in State Court

(the action was a state claim only) first was removed in April,

1999. Motion practice ensued including a motion to dismiss

and motion for remand. The first status conference was held

in May, 1999 and the discovery deadline was set for

November 22, 1999. However, the case was far more

complex than originally contemplated due to the fact that

all of the witnesses and documents are located out of state.

In fact the witnesses are all pilots, were difficult to serve

since they are constantly traveling and due to their schedules

were extremely difficult to set Particularly from

Thanksgiving to the New Year. During the six to seven

months that discovery has been open, plaintiff has sent a

first set of interrogztories, a second set of interrogatories, a

first request for document production and a second request

for document production. In addition, plaintiff has taken the

deposition of five witnesses. Captain Duncan also has been

deposed and responded to interrogatories and document

production request. Thas, plaintiff has not sat idly by but a

great deal of activity had taken place.

Delta argues that Captain Duncan has not shown a need

for the additional discovery. However, the witnesses which

were identified are important. For example, Captain

Columbia was the union representative at the time of

plaintiff's termination and will verify that plaintiff was only

threatened with termination after they found about his

disability. Another witness, Richard Schaefler was plaintiff's

copilot at the time of the incident which led to his

termination. Moreover, the documents requested were also

critical since the documentation requested was for pilots who

reported the same incidents which led to plaintiff's

termination. Although the defendants, after negotiation made

available the crew irregularity reports in November, 1999

(the document production request was made on July 14, 1999;

thus taking four months before making the document

available) since there were well over thirteen thousand

reports, Captain Duncan narrowed his request to just one

category, improper taxing, but Captain Duncan did not

received a response back from Delta. Plaintiff has shown a

need for the additional discovery, and diligence in pursuing ~

the relevant information. Further to inspect thirteen thousand

documents which were located out of state (these documents

were incident reports of improper taxing and other crew

irregularities), and then subpoena the potential witnesses who

are pilots constantly traveling for deposition and out of state

within approximately a month was not possible.

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ener N en ere nr

B. The Eleventh Circuit Failed to Follow Reeves

In reviewing the granting of summary judgment, the

Court must view the evidence in a light most favorable to

the plaintiff. Sweat v. Miller Brewing Company, 708 F.2d

655 (11th Cir. 1983). A review of the record below reflects

that Delta built a case for his termination based upon

progressive disciplinary action. However, the three primary

incidents (two suspensions and the termination incident) are

in dispute as well as the minor incidents preceding

Petitioner’s suspensions and termination. As a result, if there

is a factual dispute in the record, the finder of fact can find

discrimination although it does not have to do so making

summary judgment inappropriate, Reeves v. Sanderson

Plumbing Products Inc., 120 S. Ct. 2097 (2000).

Also, developed in the record below was a statement by

a decision maker regarding the first suspension when in the

memorandum he reflected an open age bias against Duncan

when he stated:

HOPEFULLY THIS PROBLEM WILL BE

RESOLVED, BUT WE HAVE A DINOSAUR

ATTITUDE OF RESISTANCE TO CHANGE

AND FURTHER INCIDENTS WILL REQUIRE

MORE SUBSTANTIAL ACTION.

Problems regarding improper taxing by other pilots have

reoccurred repeatedly was developed in the record without

any discipline but entirely ignored by the courts below.

In addition, there was another accident at LGA involving a

727 push back with Captain Richard Knowski (approximately

forty years old) which took place in November or December,

1999. However, no disciplinary action was taken against this

substantially younger pilot even though there was substantial

damage to the aircraft. Because this occurred at the close of

discovery and Rule 56(f) Motion was denied, the deposition

of Captain Knowski could not be arranged.

In any event, Captain Duncan was suspended. While he

was suspended, Captain Duncan decided to have his required .

FAA physical. On April 7, 1998, he went to Dr. Perraud, his

FAA examiner to renew his first class medical certificate

which is required every six months. He was advised by

Dr. Perraud that he could not get his medical clearance

because he was now suffering from diabetes and high blood

pressure. As a result, he faxed a copy of the medical turn

down to Captain Columbia on April 8, 1998 who in turn

faxed it to Shand Gause. Captain Duncan was advised by

Captain Columbia that Delta’s position was that if he

attempted to go out on medical disability leave, that Delta

would terminate him. Captain Columbia’s deposition was

not taken because the Rule 56(f) was denied. This was

another error committed by the court below. (App. A at 10a)

Il.

THE QUESTIONS PRESENTED ARE IMPORTANT

AND THERE IS A CONFLICT IN THE CIRCUITS

The questions presented are important. Further

clarification regarding the circumstances of when a Rule

56(f) motion should be granted would enable the courts

below to apply a uniform standard of when to allow a

continuance for additional discovery when a case dispositive

summary judgment motion is made. The Eleventh Circuit

appears to follow a very narrow standard, a substantial harm

standard to party moving for the continuance instead of

RETR ARES ITN ores pete - ‘

: 2

“a

liberally construing Rule 56(f) to insure that the record is

complete as most other circuits do. Carmical Bell Helicopter

Textron Inc., 117 F.3d 490 (11th Cir. 1997); Florida Power

& Light v. Allis Chalmers Corp., 893 F.2d 1813 (11th Cir.

1990).

Il.

THE DECISION OF THE COURT OF APPEALS

HAS A PARTICULARLY DEBILITATING

EFFECT ON EMPLOYEES

The Eleventh Circuit standard regarding a Rule 56(f)

motion has a particularly debilitating effect on employees

since the employer generally possesses exclusive knowledge

of the documents and is control of the witnesses. In sum, the -

respondent should not be able to wait four months tu produce

documents in a six month discovery period and then require

the plaintiff to inspect over thirteen thousand documents out

of state. (Duncan attempted to narrow his request but there

was no response by Delta) After Petitioner inspected and

copied the documents and further investigated any incidents

regarding improper taxing and he would then have to

schedule the depositions of pilots, all of whom are located

out of state within a one month time table during the busiest

time of the year for air travel is not reasonable and thus the

courts below erred in denying the Rule 56(f) motion.'

1. It should be noted that there has been at least 15 summary

judgment motions granted in favor of Delta which many were

subsequently affirmed by the Eleventh Circuit concerning

employment cases under Title VII, ADA and ADEA. Put simply,

not one summary judgment was reversed by the Eleventh Circuit.

See Sallas v. Delta Airlines, 94 CIV 1012; Thompson v. Delta

(Cont'd)

CONCLUSION

For the reasons set for above, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

STEWART LEE KARLIN KENNETH J. KAVANAUGH P.A.

400 SE 8" Street Counsel of Record

Fort Lauderdale, FL 33316 400 SE 8" Street

(954) 462-1201 Fort Lauderdale, FL 33316

(954) 462-5255

Attorneys for Petitioner

(Cont'd) ,

Airlines, 93 CIV 00354; Hicks v. Delta Airlines, 91 CIV 1523; Range

v. Delta Airlines, 91 CIV 1673; Sommer v. Delta Airlines, 95 CIV

00652; Prather v. Delta Airlines, 93 CIV 0231; Kassa v. Delta

Airlines, 93 CIV 1910; Naumanchi v. Delta Airlines, 95 CIV 00539;

Lee v. Delta Airlines, 95 CIV 01056; Atkinson v. Delta Airlines,

95 CIV 00472; Condon v. Delta Airlines, 93 CIV 00670.

APPENDIX

APPENDIX A — PER CURIAM OPINION AND

: JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT DATED

AND FILED OCTOBER 25, 2000

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-12939

Non-Argument Calendar

D. C. Docket No. 99-06428-CV-WDF

WILLIAM DUNCAN,

Plaintiff-Appellant,

versus

DELTA AIR LINES, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Florida

(October 25, 2000)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant appeals the granting of Defendant-

Appellee’s motion for summary judgment. Because the

Appendix A

district court correctly found that there was no genuine issue

as to any material fact and that Defendant was entitled to

judgment as a matter of law, we affirm.

1. BACKGROUND

Northeast Airlines hired Plaintiff William Duncan

(Duncan) as a flight engineer in 1967. In 1972, Northeast

merged with Defendant Delta Air Lines, Inc. (Delta), and

Duncan progressed through Delta’s pilot ranks, eventually

attaining the position of captain in 1987.

In 1993, Duncan received a disciplinary letter for failing

to appear to fly a series of trips assigned to him. This letter

was the first of several disciplinary reprimands for violating

safety procedures and for unprofessional behavior that led

to Delta’s decision to terminate Duncan’s employment. In

1994, a Delta supervisor received a telephone call from

another pilot reporting that Duncan failed to operate his

aircraft in accordance with standard operating procedures

and that he acted unprofessionally towards other crew

members. In response to the call, Delta administered a “line

check” of a revenue flight Duncan commanded.'

In 1996, Duncan allegedly engaged in unprofessional

social conduct while on a layover. Duncan requested that a

van driver radio the hotel and order a round of drinks for the

crew, as the hotel bar closed before the crew normally

arrived. When the drinks were not available, Duncan became

1. A “line check” is an evaluation of a pilot’s flying skills,

normally administered to Delta captains bi-annually.

Appendix A

irate in the hotel lobby while in uniform. Later that year,

another crew member registered a complaint against Duncan

concerning his failure to abide by Delta’s standard operating

procedure. Delta’s chief pilot, Captain Chuck Burnfield,

counseled Duncan regarding these incidents.

Later in 1996, Burnfield received a letter from Second

Officer Paul Thompson, detailing many of Duncan’s failures

to follow standard safety procedures and his unprofessional

behavior. After Delta investigated this report, it suspended

Duncan without pay and benefits for thirty days. Burnfield

warned Duncan that any failures to comply with Delta’s

operating procedures “may result in the termination of your

[Duncan’s] employment.” Duncan did not file a grievance.

In 1997, another complaint was lodged against Duncan

for unprofessional behavior. It was alleged that Duncan was

rude to a passenger and flight attendant while traveling as a

passenger dressed in uniform. Delta again suspended Duncan

for thirty days without pay and issued to Duncan a “final

warning” that “disregard of Company policies and procedures

will not be tolerated in the future.” Duncan asked his union

to intervene, but decided not to file a grievance after being

threatened with a sixty day suspension if he decided to fight

the charge.

On March 21, 1998, Duncan was cited for failure to

comply with Delta’s safety procedures. Allegedly, Duncan

began to taxi an L-1011 aircraft at LaGuardia Airport before

the ground crew had moved away from the aircraft and before

the ground crew gave him clearance to taxi. The incident

allegedly endangered the lives of the ground crew member.

Appendix A

Based on this incident and Duncan’s past record, Delta

decided to terminate Duncan, and Chief Pilot Charles Tutt

informed Duncan’s union representative, Captain Richard

Columbia, of that decision on approximately April 1, 1998.

After discussing the matter with Duncan, Columbia requested

that Delta permit Duncan to voluntarily take early retirement

in lieu of being terminated. Delta agreed, and Duncan

submitted his signed request for early retirement on April 8,

1998.2 On that same day, Duncan received a letter from the

FAA informing him that his application for an airman

medical certificate had been denied.’ Duncan testified he

faxed this letter to his union several hours before faxing his

request for early retirement to Delta.

Six months after retiring, Duncan commenced this action

in a Florida court. He claimed that Delta violated the Florida

Civil Rights Act of 1992. See Fla. Stat. Ann. § 760.01

et seq. (West, 1997). Duncan alleged he “was subjected to

different terms, conditions and privileges of employment

which caused his termination due to his age, disability and

perceived disability.” Delta removed the case to the United

States District Court for the Southern District of Florida

based on diversity jurisdiction under 28 U.S.C. § 1441. The

district court set the initial discovery deadline at November

22, 1999. On December 6, 1999, the parties jointly moved

to extend the discovery period until December 22, 1999. The

2. Duncan was fifty-seven years old at the time. Mandatory

retirement age for airline pilots is sixty years old.

3. The letter from the FAA does not give the reasons for

denying the application. Duncan testified it was because he had high

blood sugar.

— <<

Appendix A

district court granted that motion. Delta moved for summary

judgment on January 5, 2000. In response, Duncan moved

- to the court to stay or deny Delta’s motion for summary

judgment so Duncan could take additional discovery pursuant

to Federal Rule of Civil Procedure 56(f). The district court

granted Delta’s summary judgment motion on May 4, 2000.

In granting the motion, the district court denied all pending

motions as moot. Duncan appeals the district court’s grant

of summary judgment and its denial of his Rule 56(f) motion.

II. DISCUSSION

This court reviews a district court’s decision to grant

summary judgment de novo, “construing all evidence in the

light most favorable to the non-moving party.” See Leigh v.

Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir. 2000).

“Summary judgment is only:proper when there are no

genuine issues of material fact.” Jd. “An issue of fact is

material and genuine if a rational factfinder could find for

the nonmoving party on a fact necessary to establish an

element of the claim under applicable substantive law.” Ross

Neely Sys., Inc. v. Occidental Fire & Cas. Co. of N.C., 196

F.3d 1347, 1350 (11th Cir. 1999) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). The movant bears

the initial burden of showing the absence of a genuine issue

as to any material fact. See Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986).

Duncan alleged that Delta discharged him because of

his age. In order to establish unlawful age discrimination

under the Florida Civil Rights Act of 1992, the plaintiff must

establish a prima facie case of discrimination. The employer

Appendix A

must then respond with a legitimate, nondiscriminatory

reason for its actions. If the employer does produce a

legitimate response, the plaintiff must establish that the

employer’s offered reason was a pretext to mask unlawful

discrimination. See Walker v. NationsBank of Florida N.A.,

53 F.3d 1548, 1556 (11th Cir. 1995).4

In proving an age discrimination claim, the plaintiff may

establish a prima facie case either through direct evidence

of discrimination or through a variation of a four-part test

for circumstantial evidence. See Damon v. Fleming

Supermarkets of Florida, Inc., 196 F.3d 1354, 1358 (11th

Cir. 1999), cert. denied, U.S. __, 120 S.Ct. 1962 (2000).

A plaintiff can satisfy the four-part prima facie requirement

if he demonstrates: “(1) that [he] was a member of the

protective group of persons between the ages of forty and

seventy; (2) that [he] was subject to adverse employment

action; (3) that a substantially younger person filled the

position that she sought or from which [he] was discharged;

and (4) that [he] was qualified to do the job for which she

was rejected.” Jd. at 1359.

Duncan argues that a statement Chief Pilot Burnfield

made in a memo summarizing an investigation into one of

the complaints against Duncan 1s direct evidence of

discrimination. Burnfield stated that Duncan had “a dinosaur —

4. Because the Florida Civil Rights Act is patterned after Title

VII, federal caselaw dealing with Title VII claims also applies to

cases construing the Florida Civil Rights Act. See Harper v.

Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir.)

(citing Ranger Ins. Co. v. Bal Harbour Club, Inc., 549 So.2d 1005,

1009 (Fla. 1989)), cert. denied, 525 U.S. 1000 (1998).

Appendix A

attitude of resistance to change ....” Burnfield explained

that he was referring to Duncan’s attitude, and not his age.

Even if Burnfield were referring to Duncan’s age, Burnfield

was not Chief Pilot when Delta decided to terminate Duncan,

Charles Tutt was. Burnfield, therefore was not a decision

maker in Delta’s decision to terminate Duncan. This Court

has held that age-related statements by non-decision makers

are not probative of a discriminatory intent behind a -

termination. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d

1318, 1329-30 (11th Cir. 1998). Because Burnfield was not

a decision maker, we do not find his comment probative of

any age-related bias behind Duncan’s termination.

Even if we assume, without deciding, that Duncan could

establish a prima facie case under the four part test outlined

in Damon, he would still have the burden to prove that Delta’s

offered non-discriminatory explanation was pretext to mask

unlawful discrimination. See EEOC v. Joe’s Stone Crab, Inc.,

220 F.3d 1263, 1286 (11th Cir. 2000); Walker, 53 F.3d at

1556. Delta’s non-discriminatory explanation for its decision

to terminate Duncan was that his repeated failures to follow

standard procedures and the incident at LaGuardia led Delta

to conclude that Duncan could no longer be trusted to safely

operate a Delta aircraft. Duncan offered no evidence, and

the record does not disclose any evidence that Delta’s

explanation was pretext to mask unlawful discrimination.

Because there is no genuine issue of material fact relating to

the age discrimination claim, the district court correctly

granted summary judgment, as Delta was entitled to

judgment as a matter of law.

Appendix A

To establish a prima facie case under the Americans with

Disabilities Act, and therefore, under the Florida Civil Rights

Act of 1992,° a plaintiff must show: “(1) [he] has a disability;

(2) [he] is a qualified individual; and (3) [he] was

discriminated against because of [his] disability.” Harris v.

H&W Contracting Co., 102 F.3d 516, 519 (11th Cir. 1997).

We assume, without deciding, that Duncan’s diabetes is a

disability and that he is a qualified individual. Duncan’s

claim fails because he failed to show any facts that he was

discriminated against because of his disability. The evidence

contained in the record shows that Duncan found out he had

diabetes on April 7 or April 8, 1998, and that he transmitted

the denial of his application for an airman medical certificate

to his union the same day he received it. In any event, Delta

made its decision to terminate Duncan before it could have

found out Duncan had diabetes. This Court has indicated

that an employer cannot take an adverse action because of

an employee’s disability when the evidence shows the

employer was not aware of the disability. See Morisky v.

Broward County, 80 F.3d 445, 448-49 (11th Cir. 1996).

Because Duncan can not show Delta knew of Duncan’s

alleged disability, Duncan can not show Delta discriminated

against him because of his disability. Therefore, Duncan can

not establish a prima facie case under the Florida Civil Rights

Act and Delta is entitled to judgment as a matter of law.

“This court reviews a district court’s ruling on a Rule

56(f) motion for abuse of discretion, and will not overturn

such an order unless it is shown that the district court’s ruling

resulted in substantial harm to appellant’s case.” Carmical

5. See supra note 4.

ELLIE ALT AAS NAR ia ea LORRI SPER NT had ‘i

ikcinuad SHEN eRe ZAP PRIMI RIS te feb NR DONMe Litera Sh i i al eae

/ Appendix A

v. Bell Helicopter Textron, Inc., 117 F.3d 490, 493 (11th

Cir. 1997) (footnote omitted). A district court need not wait

for the completion of discovery before ruling on a motion

for summary judgment, but [bJefore entering summary

judgment the district court must ensure that the parties have

an adequate opportunity for discovery.” Florida Power &

Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1316 (11th

Cir. 1990). In making a Rule 56(f) motion, a party “must

specifically demonstrate how postponement of a ruling on

the motion [for summary judgment] will enable him, by

discovery or other means, to rebut the movant’s showing of

the absence of a genuine issue of fact.” Wallace v. Brownell

Pontiac-GMC Co., Inc., 703 F.2d 525, 527 (11th Cir. 1983)

(internal quotation marks omitted).

In this case, Duncan’s memorandum in support of his

Rule 56(f) motion stated that he needed additional time to

depose witnesses, and to see if — after narrowing his request

for certain crew irregularity report documents — it was

necessary to go to Atlanta to inspect those documents.

Duncan offered no explanation of why he needed to depose

the witnesses or what the requested documents might show.

Thus, Duncan failed to specifically demonstrate how a

postponement of a ruling on Delta’s motion and his proposed

additional discovery would allow him to rebut Delta’s

showing of a lack of a genuine issue of material fact, and he

failed to meet his burden in making a Rule 56(f) motion under

Wallace. Furthermore, when the district court entered its

scheduling order on May 11, 1999, Duncan had six months

to conduct his discovery. This period was lengthened to seven

months where the district court granted the parties’ joint

motion to extend discovery. It appears, therefore, that the

10a

Appendix A

district court-ensured the parties “had an adequate

opportunity for discovery” before it entered its order granting

Delta’s motion for summary judgment. Florida Power &

Light Co., 893 F.2d at 1316. We do not find any abuse of

discretion in the district court’s decision to deny Duncan’s

Rule 56(f) motion.

III. CONCLUSION

Duncan failed to establish a prima facie case for either

his age discrimination or disability-based discrimination

claims. We agree with the district court’s decision to grant

Delta’s motion for summary judgment on those claims. The

district court did not abuse its discretion in denying Duncan’s

Rule 56(f) motion. For the foregoing reasons, we affirm the

decision of the district court.

AFFIRMED.

lla

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-12939

District Court Docket No.

99-06428-CV-WDF

WILLIAM DUNCAN,

Plaintiff-Appellant,

versus

DELTA AIR LINES, INC.,

Defendant-Appellee,

RICHARD COLBY,

Defendant.

Appeal from the United States District Court

for the Southern District of Florida

JUDGMENT

It is hereby ordered, adjudged, and decreed that the

attached opinion, included herein by reference, is entered as

the judgment of this Court.

Entered: October 25, 2000

For the Court: Thomas K. Kahn,

Clerk

By: McCombs, Elaine

12a

APPENDIX B — ORDER ON MOTION FOR

SUMMARY JUDGMENT AND FINAL SUMMARY

JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF

FLORIDA DATED MAY 4, 2000

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 99-6428-CIV-FERGUSON

WILLIAM DUNCAN,

| Plaintiff,

VS.

DELTA AIRLINES, INC. and RICHARD COLBY,

Defendants.

ORDER ON MOTION FOR

SUMMARY JUDGMENT

THIS CAUSE is before the Court on the Defendant Delta

Air Lines, Inc.’s Motion for Summary Judgment [D.E.37].

Factual Background

Plaintiff William Duncan (“Duncan”) was hired by

Northeast Airlines as a DC-6 flight engineer on January 3,

1967. Northeast Airlines and defendant Delta Airlines Inc.

(“Delta”) merged in August of 1972. Duncan progressed

through Delta’s ranks as a pilot and was promoted to L1011

captain in 1987.

13a

Appendix B

In October 1993 Duncan was given a disciplinary letter

for “failing to appear to fly a series of trips assigned to him.”

He did not file a grievance. Subsequently he received a series

of disciplinary reprimands for violating safety procedures

and for unprofessional behavior which led to Delta’s decision

to terminate his employment. Those violations are set out in

the following paragraphs.

In June 1994 Delta received a complaint from a first

officer who reported that Duncan was not operating the

aircraft in accordance with standard operating procedures.

Duncan, who was represented by his union, was counseled

by his chief pilot. He did not file a grievance. In February

1996 Duncan allegedly engaged in unprofessional social

conduct while on a layover. As charged he became irate and

caused a disruption when a round of drinks ordered by him

were not served. He was again counseled and did not file a

grievance. In April of the same year Delta received another

complaint from a different first officer concerning Duncan’s

failure to abide by the employer’s standard operating

procedure. During a final approach the first officer “thought

there was a chance of a conflict with another aircraft.” After

an investigation by the chief pilot, the matter was resolved

by “referring it to human factors.”

Just two months later, in June 1996, Delta received yet

another safety procedure complaint against Duncan: failure

to wear his head set; arriving late at the aircraft; operating

the aircraft above the recommended altitude; deliberately

flying into a thunderstorm; not setting an altimeter bug; and

failing to comply with special departure profiles. Based on

this last incident Delta suspended Duncan for thirty days

l4a

Appendix B

without pay and advised him that any further deviations from

Delta’s procedures, or any further findings of unprofessional

behavior or violation of Delta’s regulations, would result in

more severe disciplinary action up to and including

termination of his employment. He did not file a grievance.

Less than a year later in 1997 a complaint was lodged

against Duncan for unprofessional behavior. It was alleged

that Duncan was rude to a passenger and a flight attendant

while traveling as a passenger dressed in uniform. Duncan

was given a second thirty day suspension. He was informed

that this was his final warning and that any further complaints

would result in termination. Duncan testified that “I was not

guilty of what they accused me of and I refused to lay down

for it.” He asked his union to intervene but decided not to

file a grievance after being threatened with a sixty day

suspension if he fought the charge.

On March 21, 1998, Duncan was again cited for failure

to comply with Delta’s safety procedures. Allegedly he

endangered the life of the ground crew during departure from

LaGuardia airport. Delta investigated the incident concluding

“that plaintiff could no longer be trusted to safely operate

Delta aircraft.” Delta informed Duncan that he would be

terminated. Instead of filing a grievance Duncan’s union

representative advised him: to resign. An agreement was

reached with the employer to forgo termination proceedings

and instead allow Duncan to voluntarily retire. On April 8,

1998, Duncan’s retirement forms were signed.

By a form letter from the Federal Aviation Administration

[“FAA”] dated April 8, 1998, Duncan was informed that his

15a

Appendix B

application for an airman medical certificate had been denied.

The letter did not give a specific reason for the denial.'

Duncan testified that the denial of his application for an

airman medical certificate was faxed to the Airline Pilots

Association several hours before his voluntary retirement

form was sent to Delta. Duncan testified that he had no

knowledge whether Delta was aware of his disability. He

also testified that the results of his physical examination was

not a factor in his decision to retire.

Duncan commenced this action six months after retiring,

at age 58, alleging in his complaint that he was treated

differently from younger and non-disabled employees and

that Delta’s reason for removing him from service was

pretextual. .

Issues

Two issues are presented: (1) whether there is an adverse

employment action as an element of a cause of action for

employment discrimination where an empioyee requests

permission to and does voluntarily resign and retire with

benefits as an alternative to termination; and (2) whether

Delta was aware of Duncan’s disability and discriminated

against him on that basis.

1. During a routine physical examination Duncan learned that

he was suffering from diabetes and hypertension. In his deposition

he was not certain whether the physical examination was

administered on the 7th or 8th of April 1998. But he stated that he

faxed the FAA letter to the Airline Pilots Association and his

retirement forms to Delta on the same day.

l6a

Appendix B

Standard for Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that

summary judgment shall be granted if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P.

_56(c). A factual dispute is “genuine” if the evidence is such

that a reasonable jury could return a verdict for the

non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). Similarly, a fact is “material” if it might affect

the outcome of the suit under the governing substantive law,

Anderson, 477 U.S. at 247.

In considering this motion for summary judgment, the

Court must examine “whether the evidence presents a

sufficient disagreement to require submission to a jury or

whether it is so one-sided that the defendant should prevail

as a matter of law.” Jd. at 243. The movant bears the initial

burden of showing the absence of a genuine issue as to any

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). In deciding whether the movant has met this burden,

the Court must view the evidence and all factual inferences

in the light most favorable to the non-movant. Miranda v.

B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th

Cir. 1992). “If reasonable minds could differ on the

inferences arising from undisputed facts, summary judgment

should be denied.” Jd. at 1534.

Once the initial burden is met, the non-movant must

come forward with specific facts showing that there is-a

17a

Appendix B

genuine issue for trial that precludes summary judgment.

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). The evidence presented cannot consist

of conclusory allegations, legal conclusions or evidence

which would be inadmissable at trial. Avirgan v. Hull, 932

F.2d 1572, 1577 (11th Cir. 1991). Likewise, “a mere scintilla

of evidence supporting a position will not suffice; there must

be enough of a showing that the jury could reasonably find

for the [non-movant].” Anderson, 477 U.S. at 252. Failure

to make a showing sufficient to establish the existence of

any essential element of a claim is fatal and requires the

entry of summary judgment. Celotex Corp., 477 U.S. at

322-323.

Discussion

ADEA Claim

To establish unlawful discrimination under the Age

Discrimination in Employment Act of 1967, (“ADEA”),

29 U.S.C. § 623(a), the plaintiff, initially, must establish a

prima facie case of discrimination. The employer must then

respond with a legitimate, nondiscriminatory reason for its

actions. In order to prevail, the plaintiff must establ.sh that

the employer’s articulated legitimate, nondiscriminatory

reason was a pretext to mask unlawful discrimination. Walker

v. NationsBank of Fla. N.A., 53 F.3d 1548, 1556 (11th Cir.

1995).

In an ADEA case involving discharge, demotion, or

failure to hire, a plaintiff may establish a prima facie case

by showing: (1) that he was a member of the protected group

18a

Appendix B

of persoris between the ages of forty and seventy; (2) that he

was subject to adverse employment action; (3) that a

substantially younger person filled the position that he sought

or from which he was discharged; and (4) that he was

qualified to do the job for which he was rejected. Turlington

v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11" Cir.

1998).

First there is no prima facie case since there was no

adverse action by the employer; Duncan voluntarily retired.

Further there is no showing that a similarly situated younger

pilot was treated differently.

There may be cases where an employee’s resignation

may be an adverse employment action, as where the

employee is forced to choose between resignation and

termination. That is not the case here. Duncan sought the

advice of his union representative who, after examining the

employer’s evidence, concluded that exhaustion of grievance

procedures was not in his best interests. It was by request of

Duncan and his union that the employer permitted him to

retire with benefits rather than proceed on its termination

decision. An adverse employment action, which is an element

of a prima facie case, was thereby averted. Even if a prima

facie case could be presented Duncan has not shown that the

reasons advanced by the employer as a basis for termination

were not legitimate and discriminatory. After the series of

uncontested violations which reflected on the pilot’s ability

to safely operate a passenger aircraft, the employer could

have been found derelict in its responsibilities to the flying

public by not acting to remove him from the cockpit.

19a

Appendix B

Although Duncan’s counsel, in response to Delta’s

summary judgment, names two younger employees who

allegedly were treated differently, by deposition Duncan

testified that he did not know of any younger pilots charged

with the same type of violations who were treated differently.

Duncan cannot by an unsworn pleading contradict his

previous deposition testimony so as to raise a factual question

and thereby avoid summary judgement. See Van T. Junkins

& Assoc., Inc. v. U.S. Indus. Inc., 736 F.2d 656, 658 (11"

Cir. 1984) (holding that the District Court may find an

affidavit which contradicts testimony on deposition a sham

when the party merely contradicts the deposition testimony

without any valid explanation).

ADA Claim

Delta contends that the ADA claim is frivolous. The

Court agrees.

To establish a prima facie case under the Americans with

Disabilities Act of 1990 (“ADA”), 42 U.S.C.A. § 12132,

¢taimant must show that: (1) he has a disability, (2) he is a

qualified individual, and (3) he was discriminated against

because of the disability. Morisky v. Broward County, 80

F.3d 445, 448 (11 Cir. 1996); Klein v. Florida Dept. of

Children and Family Serv., 34 F. Supp.2d 1367, 1371 (S.D.

Fla. 1998).

Duncan’s argument that Delta, aware of his disability,

discriminated against him on that basis and forced him into

retirement is without a factual basis. Duncan admittedly did

not communicate to Delta management his disability; Delta

20a

_ Appendix B

decided to terminate Duncan before he took the physical and

Duncan, on the advice of his union, elected voluntary

retirement before failing the physical. The FAA letter

denying Duncan’s application for an airman medical

certificate was not sent to Delta prior to the formal retirement

forms. It cannot be said that the employer took an adverse

action because of the employee’s disability. where the

evidence shows that the employer was unaware of a

disability. Morisky, 80 F.3d at 448; Klein, 34 F. Supp.2d at

1372.

Accordingly, it is

ORDERED AND ADJUDGED that the motion [D.E.37]

is GRANTED.

DONE AND ORDERED in Chambers at Ft. Lauderdale,

Florida, this 4th day of May, 2000.

s/ Wilkie D. Ferguson, Jr.

WILKIE D. FERGUSON, JR.

UNITED STATES DISTRICT

JUDGE

2la

Appendix B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 99-6428-CIV-FERGUSON

WILLIAM DUNCAN,

Plaintiff,

VS.

DELTA AIRLINES, INC. and RICHARD COLBY,

Defendants.

FINAL SUMMARY JUDGMENT

IN ACCORDANCE with the Order granting defendant’s

summary judgment [D.E.37], it is

ORDERED AND ADJUDGED that final judgment is

hereby entered in favor of the defendant. The plaintiff shall

take nothing in this case. Any pending motions not ruled

upon are rendered moot by this final summary judgment.

This case is closed.

DONE AND ORDERED in Chambers at Ft. Lauderdale,

Florida, this 4th day of May, 2000.

s/ Wilkie D. Ferguson, Jr.

WILKIE D. FERGUSON, JR.

UNITED STATES DISTRICT

JUDGE

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