Petition for Writ of Certiorari — Ilic v. Liquid Air Corp.

_. §$dpreme Court, vU.8,

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941376 FEB | 4 19%

No.

ik Ob ink With

In The

SUPREME COURT OF THE UNITED STATES

October Term. 1994

ZARKO ILIC,

Petitioner.

VS.

LIQUID AIR CORPORATION,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

ZARKO ILIC, PRO SE

2500 Bay Leaf Dr.

Orlando, Florida 32837

(407) 859-7479

é as SoS ae sete ea

% ape si

Va "= (Vy try oe ie ee a7 ee a | : % ;

QUESTIONS PRESENTED

|. Does Watson v. Forth Worth Bank and Trust.

108 S. Ct. 2777 (1988), require that this case be analyzed

under disparate mpact theory?

2. Does Antonopulos v. Acrojet-General Corp.

E.D. Cal. 1968, 295 F.Supp. 1390, 1395 and Sanchez y.

Standard Brands. [nc.. 431 F.2d 455 (Sth Cir. 1970),

preclude holding against plaintiff when plaintiff had

written the wrong words and circled the wrong base in

filling out first questionnaire?

3. Does [Thompkins v. Morris Brown College, 752

F.2d 558 (11th Cir. 1985), Caban-Wheeler v. Elsea. 904

F.2d 1549 (11th Cir. 1990). and Lewis v. Smith. 731 F.2d

1535 (11th Cir. 1984), require, that when direct evidence of

discrimination or retaliation is introduced, a remand?

4. Does Lewis vy. Smith. 731 F.2d 1535 (11th Cir.

1984), require, that when the district court failed to state

what standard of proof was applied in promotion, a

remand?

5. Does Caban-Wheeler vy. Flsea, 904 F.2d 1549

(11th Cir. 1990), require, that when the magistrate did not

address the issue of fabricated memos, a remand?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED................... i

po As fe ys) ul

TABLE OF CITATIONS................ fer ee il

oo ig Cub sc sees cee scccce I

STATEMENT OF JURISDICTION ............. l

ea 8 8 2

STATEMENT OF THE CASE.................. 3

REASONS FOR GRANTING THE WRIT....... 4

[. The decision below present an important,

unanswered question, and conflicts with

Supreme Court: Watson v. Fort Worth

Bank and Trust, 108 S.Ct. 2777 (1988),

ee eee een aay

the issues or contentions presented by

iis a wllicdahss se 4

ll. The Eleventh Circuit has rendered a

decision in conflict with the decision

of another circuits and with precedent

of the Eleventh Circuit.............. 6

{11. The Eleventh Circuit has so far departed

from the accepted and usual course of

judicial proceedings, as to call for an

exercise of this Court’s power of

BC 10

ES ee 14

Page

TABLE OF CITATIONS

Cases Cited:

E.D. Cal. 1968, 398 F.Supp. 1390......... i, 6, 14

Caban-Wheeler v. Elsea.

904 F.2d 1549 (11th Cir. 1990)....... i, 7,8, 9, 14

731 F.2d 1535 (11th Cir. 1984)........... i, 8, 14

Sanchez v. Standard Brands, Inc.,

431 F.2d 455 (Sth Cir. 1970)............. i, 7, 14

752 F.2d 558 (11th Cir. 1985).......... i, 7,8, 14

Watson v. Forth Worth Bank and Tnust,

SU GA. BFE COED oo ccc ccec cece i, 4, 5, 14

Statutes Cited:

ee Es a > soa cake hae Pada ok teas |

Fe a8 Oa PO ee es 2

Te Pe 6 oe 8S RK em 1,2,3

ho ho a nee denned 1,3

APPENDIX

Appendix A - January 23, 1995 Eleventh

Circuit order denying rehearing.............. la

Appendix B - November 17, 1994 Eleventh

Circuit order affirming judgment............. 2a

Ma in Rn Sat sb

a I a ll i q _———_— == 'S 6S hme a i i OO a

Page

Appendix C - October 20, 1993 Order........... 3a

Appendix D - Supplemental Report and

S35 cds fw eaeeaddes se os’ Sa

Appendix E - Report and Recommendation . a

Appendix F - 42 U.S.C. § 2000e-2 & 2000e-3..... 17a

Appendix G - Excerpts from plaintiff's

SERRE Sele ae 18a

Appendix H - Excerpts from plaintiff's

ee gi ear ee eve i abs ve ine es 19a

Appendix I - Excerpts from plaintiff's

EN Se ee 20a

Appendix J -Excerpts from plaintiff's

fue cardia ys Che Wy ¢-4 06006 4% 22a

Appendix K - Excerpts from plaintiff's

ee ak ale ono 46 4 60.0 9-4 22a

dix L - Excerpts from trial testmmony

+ I ss cob ene edereave cea new's 23a

OPINIONS BELOW

Report and Recommendation by the United States

Magistrate Judge that this case be dismissed with prejudice.

is unreported. (App. E, 7a-16a). Supplemental Report and

Recommendation. is also unreported. (App. D, Sa-7a). The

Order and final judgment of the United States District

Court of Middle District of Florida, is unreported. (App.

C, 3a-Sa). The decision of the Eleventh Circuit Court of

Appeals, affirming judgment, is unreported. (App. B, 2a-

3a). The order of the Eleventh Circuit Court of Appeals

denying a Suggestion of Rehearing En Banc, is unreported.

(App. A, la-2a).

STATEMENT OF JURISDICTION

This Court’s jurisdiction to review a post-judgment

Order of the United States Court of Appeals for the

Eleventh Circuit. is invoked pursuant to 28 U.S.C. §

1254(1).

Petitioner brought this case in the United States

District Court for the Middle District of Florida. pursuant

to 42 U.S.C. § 2000e-2 & 2000e-3. A final judgment in

Respndent’s favor was entered by the District Court on

October 20, 1993. and Petitioner filed a timely notice of

appeal to the Eleventh Circuit Court of Appeals on

October 25, 1993. Title 28 U.S.C. § 1291 provided federal

appellate jurisdiction over the final judgment of the district

court.

The Eleventh Circuit affirmed the district court’s

decision on November 17, 1994. (App. B, 2a-3a). Petitioner

filed a timely Suggestion of Rehearing En Banc. The

suggestion was denied on January 23. 1995. (App. A, la-

2a). This Petition for Writ of Certiorari is timely filed

within 90 days of November 17, 1994, by February 17,

1995.

STATUTES INVOLVED

42 U.S.C. § 2000c-2 provides in pertinent part:

(a) It shall be an unlawful employment practice 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 his compensation, terms.

conditions, or privileges of employment. because of such

individual’s race, color, religion, sex, or national origin: or

(2) to lmnit, segregate, or classify his employees or

applicants for employment in any way which would deprive

2

or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an

employee, because of such individual’s race, color, religion,

sex, or national origin.

42 U.S.C. § 2000c-3, provides in pertinent part:

(a) It shall be unlawful employment practice for an

employer to discriminate against any of his employees or

applicants for employment, ... to discriminate against any

individual, ... because he has opposed any practice made an

unlawful employment practice by this subchapter, or

because he has made a charge. ... .

Reproduced in Appendix F at 17a-18a.

STATEMENT OF THE CASE

This action was brought by Petitioner under Title

VII of the Civil Rights Act of 1964, as amended, Section 42

U.S.C. § 2000e-2(aX 12) and Section § 2000e-3(a) to

correct unlawful employment practices on the basis of

religion, national origin and retaliation.

Trial commenced without a jury before the United

States Magistrate Judge, David A. Baker on July 12, 1993

and was concluded on July 15, 1993. Report and

Recommendation was submitted to the Honorable Anne C.

3

Conway on August 24, 1993. (App. E, 7a-17a).

Supplemental Report and Recommendation was submitted

on September 15, 1993. (App. D, 5a-7a). Judgment was

rendered in favor of the Respondent by Order of October

20. 1993. (App. C, 3a-Sa).

The Eleventh Circuit affirmed the district court’s

decision on November 17, 1994. (App. B, 2a-3a). The

appellate court’s ruling that there is simply not merit in any

of the issues or contentions presented by the appellant. is

the Order sought to be reviewed in this Court.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW PRESENT AN

IMPORTANT, UNANSWERED QUESTION, AND

CONFLICTS WITH SUPREME COURT: WATSON

V. FORT WORTH BANK AND TRUST, 108 S. CT.

2777 (1988), THAT THERE IS SIMPLY NO MERIT

IN ANY OF THE ISSUES OR CONTENTIONS

PRESENTED BY THE APPELLANT.

The Eleventh Circuit held that, there is simply no

merit in any of the issues or contentions presented by the

appellant.

[lic argued that the District Court had erred in

failing to apply "disparate impact" analysis to his claims of

discrimination in promotion. [lic challenged Liquid Air’s

subjective criteria used to make employment decision. In

Watson this Court held that:

... the necessary promise of the disparate impact

approach is that some emplo t practices,

adopted without a deliberately discriminatory

motive, may in operation be functionally

equivalent to intentional discrimination.

Id. 2785.

Also, this Court held that:

Neither the District Court nor the Court of

Ap has evaluated the statistical evidence

to determine whether petitioner made out a

prima facie case of discriminatory promotion

practices under disparate impact theory. It

may be that the relevant data base is too small

to permit any meaningful statistica! analysis,

but we leave the Court of Appeals to decide in

the first instance, on the basis of the record and

the principles announced today, whether this

case can be resolved without further proceedings

in the District Court. The judgment of the

Court of A is vacated, and the case is

remanded for further proceedings consistent

with this opinion.

Id. at 2791.

Thus, this case presents conflict with Watson. and

requires guidance on an mmportant but unanswered

question of federal civil rights law.

5

Il. THE ELEVENTH CIRCUIT HAS

RENDERED A DECISION IN CONFLICT WITH

THE DECISION OF ANOTHER CIRCUITS AND

WITH PRECEDENT OF THE ELEVENTH

CIRCUIT

1. The issue here is that Ilic in filling first

questionnaire supplied by the EEOC, circled wrong base of

discrimination "retaliation" and has written the words

"very outspoken”. This omission has been corrected by

EEOC in official charge of discrimination.

As Judge MacBride of Easter District of California

wrote in a Title VII case:

We are not dealing with businessmen-plaintiffs or

plaintiffs accustomed to consulting lawyers about

their rights. This law is a remedial one, and the

Congressional would not be furthered by

making plaintiffs of the kind with which we are

concerned, members of the working class who are

generally without substantial higher education,

dot every "i" and cross every "t" on their way to

the courthouse.

Antonopulos_v. Acroyt-General Corp, E.D. Cal. 1968,

295 F.Supp. 1390, 1395.

On same issuc, in his typically colorful manner.

Chief Judge Brown of the Fifth Circuit has characterized

the encounter between a Title VII complainant and "a huge

6

industrial employer” as a "modern day David and Goliath

confrontation.” In such a confrontation, surely Goliath

should not be allowed to fell David with the help of legal

technicalities. The most elementary principles of justice

require us to remove this club and compel a battle on the

merits of the controversy. Sanchez _v. Standard Brands.

Inc. 431 F.2d 455 (Sth Cir. 1970).

In Sanchez the District Court had found in favor of

the defendant. The Court of Appeals reversed and

remanded the judgment of the District Court and because

the District Court approach is not in keeping with the

words of the statute, with the intent of Congress, or with

the regulations adapted by the EEOC.

2. On issue of direct evidence im this case the

Eleventh Circuit is in direct conflict with precedent set in

Thompkins v. Morris Brown College. 752 F.2d 558 (11th

Cir. 1985) and Caban-Wheeler vy. EFlsca, 904 F.2d 1549

(11th Cir. 1990).

The statement made by Vice President Fracyman

constitute direct evidence of retaliatory intent. This

statement was introduced through Llic"s testimony, and

was not rebutted through cross-examination or subsequent

7

testrmony. Also, [lic introduced documentary direct

evidence through statements made by Fracyman and

Smith.

These statements of employer reflect discriminatory

or retaliatory attitude correlating to discrimination or

retaliation complained of by Llic.

In Thompkins the Eleventh Circuit state:

Thus, this case must be remanded to the district

court for a determination of whether Threatt and

Payne made the discriminatory statements. If

the district court finds that the statements

were made, it must enter } t for Plaintiff.

See Lewis v. Smith, 731 F.2d 1535 (11th Cir.

1984). If the court finds that the statements

were not made, it must clearly articulate this

finding.

Decision in the instant case, that there is simply no

merit in any of the issues or contentions presented by the

appellant is inconsistent with Lewis. Thompkins and

Caban-Wheeler

3. On promotion, in Lewis the situation was similar

to the present case. In Lewis Court stated:

The district court, in finding that the plaintiff

was less qualified than those hired, failed to

state what standard of proof was

Under most circumstances a for the

district court to make further findings in

accordance with law would be the appropriate

action.

8

4. The most significant to the instant case is the

comparison of Caban-Wheeler and the instant case. Llic has

shown a pattern of numerous proven fabricated facts,

falsified and forged documents to be used as a pretext for

termination.

Five memos and two statements were written

regarding [lic which were placed in his personne! file in an

attempt to support the termination of Ili for

insubordination and disruptive activity. Expert testimony

of Gerald R. McMenamin, PhD, Forensic Linguistics,

concluded that these five memos and two statements were

written by Charles Thompson, assistant manager who

terminated [lic. His testimony at trial state: "It’s simply, let

me say virtually impossible that you could have five people,

five different writers. share this large a set of characteristics

or even part of the set, even just the words and phrases, ..."

Also, was indroduced testimony of another expert

by Forensic Questioned Document Examiner.

The magistrate did not address the issue of

fabrication of these five memos and two statements.

In Caban-Wheeler court state:

Moreover, the court failed to address plaintiff's

contention that her supervisor, Melba Hill, tried

9

to create evidence of progressive discipline.

for instance, creating a memo dated July 6, 1984.

and further.

The magistrate did not address the issue of

whether Hill, fabricated the memo to support

laintiff’s suspension, ... If the memo was

abricated, this would provide pivotal evidence

on the issue of intent, and could very well affect

the ultimate finding on the question of

discrimination.

Decision in the instant case, that there is simply no

merit in any of the issues or contentions presented by the

appellant is virtually ignoring its own precedent.

fl. THE ELEVENTH CIRCUIT HAS SO

FAR DEPARTED FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEEDINGS,

AS TO CALL FOR AN EXERCISE OF THIS

COURT’S POWER OF SUPERVISION.

Facts on promotion issue are:

Mr. [lic was not promoted to the Manager or

Assistant Manager positions referred to in his Charge

because he never indicated an interest in being promoted to

these positions. (App. H. 20a).

Testimony of Barry Lucht state: Q. Did you

consider Zarko Llic headed for promotion to the plant? A.

10

——~™- rr

No, did not. Q. Could you tell us why? A. Nobody ever

called to say he wanted it."

Testmmony of Bruno Fracyman that [lic received

bonus for recognizing his efforts in training and that [lic

was giving training to new operators during his time.

Letter from Bruno Fracyman that John McGrew,

plant manager has a high opinion of him, he is.

knowledgeable on plant and computer, has been operator

for 20 years and clearly deserve to do something cise,

example become assistant plant Mgr. or plant Mgr.

Testimony of Robert Ferguson alleged that he

asked [lic if he would be interested in a one-man plant

which is a manager position.

[lic was in charge during manager’s absence for

total of four weeks in 1989 and received a letter which

states: "Your knowledge of the process and dedication to

duty ...”

Liquid Air started using word attitude at trial as

pretext for discrimination. The Eleventh Circuit decision

that there is simply no merit in any of the issues or

contentions presented by appellant has so far departed

from the accepted and usual course of judicial proceedings,

i!

as to call for an exercise of this Court’s power of

supervision.

[lic has shown that proffered explanation is

unworthy of credence is a matter of examining Liquid Air’s

vacillations.

On April 3, 1990, [lic told several of his co-workers

that he was carrying a gun. (App. G, 19a)

In late March 1990, the Company discovered that

[lic was carrying a gun on his person while at work. (App.

H, 20a).

Liquid Air understands that one or more drivers

have stated that [lic was carrying a gun on his person while

at work. Liquid Air does not know the identity of such

driver or drivers and does not know if he or they searched

{lic. (App. [, 21a).

The Eleventh Circuit decision that there is simply no

merit in any of the issues or contentions presented by

appellant has so far departed from the accepted and usual

course of judicial proceedings, as to call for an exercise of

this Court’s power of supervision.

It is clear that Lic has attitude even when Liquid Air

do not have written procedures and [lic can not comply

with the same as shown below.

All of the mistakes discovered by the FDA were

attributed to your omission of the required information on

the required forms.

If this attitude affects your compliance with

Company policy and procedures, ...(App. J, 22a).

FDA report state:

1. There are no written procedures for production

and process control. The lack of written procedures and

records was determined by asking Mr. Robert W. Ferguson

for the procedures or records and he replied that there were

none that he could find.

2. A review of the firm’s analytical records revealed

that some oxygen and nitrogen analytical records do not

have the initials or signature showing that the original

records have been reviewed for accuracy and/or

completeness by a second person.

He stated that he would contact corporate

headquarters the following day to obtain written

procedures for production and process control. (App. K,

22a-23a).

Testrmony of Bruno Fracyman state:

Q. Let me show you what has been marked as

Exhibit 26. Can you identify Exhibit Number 26. please?

A. Yes. It’s a written warning ietter.

Q. And this is about an FDA form?

A. Yes.

Q. It appears that you’re blaming Mr. [lic for a lack

of procedures at the plant: ts that nght?

A. Yes, that’s right. (App. L, 23a).

The Eleventh Circuit decision that there is smply no

merit in any of the issues or contentions presented by

appellant has so far departed from the accepted and usual

course of judicial proceedings. as to call for an exercise of

this Court’s power of supervision.

CONCLUSION

The decision below conflicts with Watson

Antonopulos. Sanchez, Thompkins. Caban-Wheeler and

Lewis. It presents an important unanswered question that

there is simply no merit in any of the issues or contentions

14

presented by the appellant. For the foregoing reasons,

certiorari should be granted.

Respectfully submitted.

iad Ml < Lid —e/ oo

Zarko llc, pro se

2500 Bay Leaf Dr.

Orlando, Florida 32837

(407) 859-7479

15

APPENDIX A - JANUARY 23, 1995 ELEVENTH

CIRCUIT ORDER DENYING REHEARING

{N THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 93-3332

ZARKO ILIC, Filed January 23, 1995

Plaintiff-Appellant,

versus

LIQUID AIR CORP.,

Defendant-Appelice.

OnA ! from the United States District Court

or the Middle District of Florida

ON PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING EN BANC

Before: ANDERSON and CARNES, Circuit Judges, and

FAY, Senior Circuit Judge.

PER CURIAM:

(x) The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure: Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing En Banc are DENIED.

la

ENTERED FOR THE COURT:

S/

UNITED STATES CIRCUIT JUDGE

APPENDIX B - NOVEMBER 17, 1994 ELEVENTH

CIRCUIT ORDER AFFIRMING JUDGMENT

{DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 93-3332

Non-Argument Calendar

D. C. Docket No. 92-199-CIV-ORL-22

ZARKO ILIC,

Plaintiff-Appellant,

versus

LIQUID AIR CORP..,

Defendant-Appellec.

Appeal! from the United States District Court

for the Middle District of Florida

(November 17, 1994)

Before ANDERSON and CARNES, Circuit Judges, and

FAY, Senior Circuit Judge.

PER CURIAM:

This is an appeal from an adverse ruling in a Title

VII case, 42 U.S.C. § 2000e et seq. The matter was tried

before a United States Magistrate Judge who filed

2a

extensive findings and recommendations by oral dictation

into the record on July 15, 1993, by a forma! Report and

Recommendation dated August 24, 1993. and by a

Supplemental Report and Recommendation dated

September 15, 1993. These findings of fact _ conclusions

of law were reviewed de novo by the district court and

adopted and confirmed. Judgment was entered in favor of

the defendant/appellee.

In his pro se briefs, appellant suggests many issues

and erroneous rulings. We have reviewed these in detail.

The record in this case provides ample evidentiary support

for the factual findings made and thus they are not clearly

erroneous. We also conclude that the correct rules of low

were applied by both the United States Magistrate Judge

and by the United States District Court. There is simply no

merit in any of the issues or contentions presented by the

appellant.

The judgment is affirmed.

APPENDIX C - OCTOBER 20, 1993 ORDER

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ZARKO ILIC,

3a

Plaintiff.

-VS- CASE NO. 92-199-CIV-ORL-22

LIQUID AIR CORPORATION,

Defendant.

ORDER

This cause is before the Court on the Magistrate

Judge’s Report and Recommendation (Dkt. 101), filed

August 24, 1993 and a Supplemental Report and

Recommendation (Dkt. 107), filed September 15, 1993.

The Magistrate Judge recommends that judgment

be found for Defendant, and that the case be dismissed

with prejudice.

After an independent de novo review of the entire

record in this matter, including Plaintiff's Objections, the

Court agrees entirely with the findings of fact and

conclusions of low in the Report and Recommendation.

Therefore, it is ORDERED as follows:

1. The Report and Recommendation filed August

24, 1993 (Dkt. 101) and the Supplemental Report and

Recommendation filed September 15, 1993 (Dkt. 107), are

adopted and confirmed and made part of this Order.

2. This action is DISMISSED WITH PREJUDICE.

4a

a eS ey Ee ee Ce

3. The Clerk is directed to enter final judgment in

favor of Defendant Liquid Air Corporation and against

Plaintiff Zarko Lic.

DONE AND ORDERED in Chambers in Orlando,

Florida, this 20th day of October, 1993.

Sv

ANNE C. CONWAY

United States District Court

Copies to: Zarko Ilic. pro se

Counsel of Record

APPENDIX D - SUPPLEMENTAL REPORT AND

RECOMMENDATION

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ZARKO ILIC,

Plaintiff.

-VS- Case No. 92-199-Civ-Orl-22

LIQUID AIR CORPORATION,

Defendant.

SUPPLEMENTAL

REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT

This cause came on for consideration without oral

argument on the following motion filed herein:

Sa

MOTION: DEFENDANT’S OBJECTION AND |

MOTION FOR MODIFICATION TO |

THE MAGISTRATE JUDGE’S |

REPORT AND RECOMMENDATION |

AND RECOMMITMANT TO THE |

MAGISTRATE JUDGE (#104)

FILED: September 3, 1993

With respect to Plaintiffs retaliation claim, to the

extent not mplicity included in the previous Report and

Recommendation entered August 24, 1993 (Doc. No. 101),

the issue is hereby clarified as follows. Plaintiff failed to

prove a prima facie case of retaliation against him based on

his having filed a discrimination claim. He simply failed to

establish any causal link between his filing a claim and

subsequent employment actions. As previously noted,

Plaintiff asserted he was being retaliated against even

before he filed a clam - a logical impossibility.

92-199-Civ-Orl-22

Page Two

Moreover, the findings and conclusions set forth in

the original Report and Recommendation also apply to

this clam. Plaintiff failed to show that Defendant’s stated

reasons for adverse actions were pretextural.

Failure to file written objections to the proposed

findings and recommendations contained in this report

6a

|

within ten (10) days of the date of its filing shall bar an

aggrieved party from attacking the factual findings on

appeal.

Respectfully recommended this [5th day of

September, 1993.

s/

DAVID A. BAKER

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Leo P. Rock, Jr., Esquire

Edward R. Gay, Esquire

APPENDIX E - REPORT AND

RECOMMENDATION

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ZARKO ILIC,

Plaintiff,

v. CASE NO. 92-199-CIV-ORL-22

LIQUID AIR CORPORATION,

Defendant.

REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT:

I. INTRODUCTION

Ja

Plaintiff Zarco [lic (Llic) brought this action under

litle VII of the Civil Rights Act of 1964, 42 U.S.C. § 20006e

et seqg., against Liquid Air Corporation (Liquid Air).

Pursuant to 42 U.S.C. § 2000e-5(f(5), the presiding District

Judge referred the matter to the United States Magistrate

Judge for all further proceedings, including trial. (Doc. No.

71). A four day trial was held July 12 - 15, 1993. Having

heard the evidence and considered the arguments presented

by counsel, the undersigned issues this Report and

Recommendation for appropriate disposition of this case.

II. GOVERNING LAW

42 US. C. § 2000e-2(a)(1) provides, "It shall be an

unlawful employment practice for an employer to fail or

refuse to hire or to discharge any individual, or otherwise

to discriminate against any individual with respect to his

compensation, terms, conditions. or privileges of

employment, because of such individual’s race. color.

religion, sex, or national origin.”

The Supreme Court has established an analytical

framework for Titk VIL cases in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), Texas Dep’t of

Commuaity Affairs v. Burdine. 450 U.S. 248 (1981), and

8a

ee ee ee ee ee ee -

their progeny. Under this framework, a plaintiff has the

burden of proving a prima facie case by the preponderance

of the evidence. A plaintiff can meet this burden if he can

show (1) he belongs to a protected group: (2) he applied for

and was qualified for the job; (3) despite his qualifications.

he was denied the position: and (4) a person outside the

protected group got the position. ! McDonnell Douglas,

411 US. at 802. If the plaintiff succeeds in proving a prima

facie case, the burden shifts to the employer to articulate a

legitimate, non-discriminatory reason for rejecting the

plaintiff. /d. This is a burden of production. Burdine. 450

U.S. at 255. The employer does not need to persuade the

court that it was actually motivated by the proffered

reasons. /d. at 254. Should the employer carry this burden.

the plaintiff must then prove by a preponderance of the

evidence that the legitimate reasons offered by the

defendant were merely a pretext for discrimination. /d. at

253.

The Court recently renewed its support for this

mode of analysis in St. Mary’s Honor Center v. Hicks, \13

S.Ct. 2742 (1993). Consistent with its prior cases, the Court

held that the ultimate burden of persuading the trier of fact

9a

that the employer intentionally discriminated against the

plaintiff remains with the plaintiff at all tomes. /d. at 2747.

The Court provided a further explanation of the shifting

burdens and held that even if the trier of fact finds that the

employer’s proffered reasons are not believed, the plaintiff

must still prove that the employer’s action was the product

of intentional! discrimination. /d. at 2751.

{il. FINDINGS OF FACT AND CONCLUSIONS

OF LAW

[lic alleges that Liquid Air violated Title VII in a

number of ways. Specifically. he claims that Liquid Air

treated him differently from other similarly situated

employees because of his national origin, Yugoslavian, and

his religion, Eastern Orthodox. He alleges Liquid Air

discriminated against him by not offering him overtime

opportunities which were offered to other employees: by

not promoting him to two management level positions: and

finally, by terminating his employment with Liquid Air.

[lic’s career with Liquid Air began in 1968. In the

late 1980s his relationship with Liquid Air soured. The

evidence demonstrated that [lic resented and was frustrated

by his not being promoted. He was upset by the promotion

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of other individuals who had less seniority than he had.

This resentment and frustration manifested itself in his

repeated challenges to and _ confrontations with

management and other employees regarding various

aspects of plant operations.

The situation was exacerbated, at least during a

period of time, by the absence of effective management at

the plant. For a period of time there was no assigned

manager. Management officials came to the plant on a

temporary basis, but the entire plant was swiftly descending

to a level that would not even support operations. This

instability and lack of leadership understandably caused

frustration for all employees, and particularly for someone

of Llic’s seniority and technical background. Seeing other

employees that he considered less qualified running the

plant created great frustration for Lic.

Management interpreted his conduct as poor

attitude: an attitude that was not at all conducive to

efficient functioning of the plant. A mutual hostility

developed ant fed upon itself, breeding additional mistrust

between Lic and management. At various points both

parties began consciously to document incidents to support

lla

their respective views of the derelictions or mproper

conduct by the other side.

[lic asserts that he was unfairly reprimanded or

otherwise disciplined on several occasions. The evidence

shows that Llic began insisting that he be given written

instructions before he would perform some tasks, and then

claimed that the act of singling him out for written

instructions should be construed as a form of discipline and

harassment. This inconsistent attitude led management to

some of its conclusions about Llic’s approach to his job.

The evidence also shows that at various times Llic

wanted to do what he wanted to do. when he wanted to do

it, without particular regard to what he had been asked to

do and what needed to be done in order to accomplish the

general and overall purposes of production at the plant.

That may, in part, flow from his prior experience of having

been in a union shop where job descriptions are more

narrowly drawn and more rigidly enforced. It may also

have been the result of his frustration and resentment. In

any event, it did manifest itself in an attitude that

management could properly conclude made [lk an

unproductive employee requiring reprimands and

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discipline. Further. [lic has not shown that his national

origin or religion had anything to do with the way he was

treated regarding the discipline he received. including the

incident involving the FDA report.

[lic also complains that he was not provided with

opportunities to work overtime commensurate with other

employees. Liquid Air has demonstrated that Llic often

refused overtime and. on at least one occasion. made

sarcastic responses to offered overtime. indicating that he

didn’t even know if he would be alive when the overtime

was required. Again. management was well within its rights

to conclude that this displayed an attitude not conducive to

harmony and good production.

The evidence establishes that [lic was not unfairly or

improperly treated with respect to overtime or discipline.

and even if Liquid Air’s conduct in these matters could be

interpreted as unfair, there is no evidence at all that Liquid

Air treated [lic unfairly because of his religion or national

origin.

[lic contends that Liquid Air promoted two

employees with less qualifications and less seniority. Liquid

Air argues that Michael Bostain and Charles Thompson

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were more qualified than Llic and that it was within their

prerogative to select them for promotion. Lic refers to

Liquid Air’s policy of promoting from within based upon

seniority and seeks to infer discriminatory intent from

Liquid Air’s failure to adhere to that policy when it

promoted Bostian and Thompson. Liquid Air established

that the preference for an employee with seniority exiered

the decision making process only when all other factors

were equal. Given the attitude that Mr. Llic had displayed,

Liquid Air was well within its rights to decide that [lic was

not qualitied to manage the plant and to choose Bostian

and Thompson over [lic.

[lic points to incidents involving Bostian and

Thompson which he believes should have disqualified them

from promotion consideration. The facts surrounding these

incidents are in dispute, but need not be decided here. Even

if the events occurred as [lic described them, it was still

within Liquid Air’s prerogative to conclude that Bostian

and Thompson were better qualified for the position. The

incidents in question were isolated in nature and are not

comparable to the general uncooperative attitude that Llic

displayed.

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[lic has not proven that he was qualified for the

promotions in question and thus has not established a

prima facie case of discrimination with regard to his failure

to promote claim.

Finally, Llic has not established a prima facie case of

discriminatory discharge. To establish a prima facie

discharge case, a plaintiff must prove that he is a member

of a protected class, that he was discharged, and he must

produce evidence of disparate treatment from which the

court may infer a causal connection between the plaintiff's

protected status and the discharge. Schlei & Grossman.

Employment Discrimination Law 595-96 (2d ed. 1983).

[lic had difficulty accepting Thompson as plant

manager. This difficulty was obvious in [lic’s attitude and

job performance. Despite his technical ability and

demonstrated capacity as an operator, [lic failed to

recognize that he was still in a subordinate position and

tried to challenge the decision to promote Thompson.

When that failed, he repeatedly questioned Thompson’s

authority. [lic went beyond expressing disagreement with

management decisions or making suggestions for more

efficient plant operations. His challenges to authority were

Sa

frequent and disruptive. Management was entitled to deal

with them and was entitled to resort to termination as the

ultimate solution to the problem.

[lic has not presented any evidence of disparate

treatment. Even assuming, arguendo, that Lic was treated

less tavorably than other employees at Liquid Air, there is

absolutely no evidence to support the inference that Llic

was singled out for this unfair treatment because of his

religion or national origin.

IV. CONCLUSIONS AND RECOMMENDATION

[lic has not proven a prima facie case with respect to

any of his claims. Accordingly, the undersigned respectfully

recommends that judgment be entered for Liquid Air and

that this case be dismissed with prejudice.

Failure to file written objections to the proposed

findings and recommendations contained in this report

within ten (10) days of the date of its filing shall bar an

aggrieved party from attacking the factual findings on

appeal.

Respectfully submitted this 24th day of August,

1993.

s/

DAVID A. BAKER

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UNITED STATES MAGISTRATE JUDGE

Copies to:

The Honorable Anne C. Conway

Edward R. Gay, Esq.

Leo P. Rock, Esq.

APPENDIX F - 42 U.S.C. § 2000¢-2 & 2000¢-3

42 US.C. § 2000-2 & 2000e-3 provides in pertinent

part:

Unlawful Employment Practices

42 U'S.C. § 2000e-2

Employer Practices

(a) It shall be an unlawful employment practice 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 his compensation, terms.

conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin: or

(2) to lmnit, segregate, or classify his employees or

applicants for empioyment in any way which would deprive

or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an

employee, because of such individual’s race, color, religion.

sex, or national origin.

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Other Unlawful Employment Practices

42 U.S.C. § 2000e-3

Discrimination for Making Charges, Testifying, Assisting,

or Participating in Enforcement Proceedings

(a) [t shall be unlawful employment practice for an

employer to discriminate against any of his employees or

applicants for employment, for an employment agency, or

joint labor-management committee controlling

apprenticeship or other training or retraining, including on-

the-job training programs, to discriminate against any

individual, or for a labor organization to discriminate

against any member thereof or applicant for membership,

because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has

made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under

this subchapter.

APPENDIX G - EXCERPTS FROM PLAINTIFF'S

EXHIBIT NO. 96

KATTEN MUCHIN & ZAVIS

June 6, 1991

Mr. Robert K. Metaxa

Supervisory Investigator

Equal Employment Opportunity

Commission

18a

... As set forth more fully below, Mr. Llic was not

promoted to the Manager or Assistant Manager positions

referred to in his Charge because he never indicated an

interest in being promoted to these positions. -

On April 3, 1990, Llic told several of his co-workers

that he was carrying a gun. [lic was advised on that same

date that carrying or possessing a firearm on Company

property or in a Company vehick is a violation of

Company policy and that he should cease from doing so.

Very truly yours.

Brian W. Bulger

Colette M. Foissotie

Attorneys for Liquid Air

- Corporation

APPENDIX H - EXCERPTS FROM PLAINTIFF’S

EXHIBIT NO. 97

KATTEN MUCHIN & ZAVIS

June 6, 1991

Mr. Robert K. Metaxa

Supervisory Investigator

Equal Employment Opportunity

Commission |

... Also, please be aware that Liquid Air considers

this position statement confidential and does not consent to

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the use or admission of the statements made herein as

evidence in any adiministrative or other proceeding.

... As set forth more fully below, Mr. [lic was not

promoted to the Manager or Assistant Manager positions

referred to in his Charge because he neyer indicated an

interest in being promoted to these positions.

In late March 1990, the Company discovered that

[lic was carrying a gun on his person while at work. [lic was

advised on April 3, 1990 that carrying or possessing a

firearm on Company property or in a Company vehicle is a

violation of Company policy and that a violation of this

policy would result in immediate discharge.

Very truly yours.

s/

Brian W. Bulger

Colette M. Foissotte

Attorneys for Liquid Air

Corporation

APPENDIX I - EXCERPTS FROM PLAINTIFF’S

EXHIBIT NO. 129

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ZARKO ILIC,

Plaintiff,

vs. CASE NO. 92-199-CIV-ORL-20

LIQUID AIR CORPORATION,

Defendant.

NOTICE OF SERVICE OF LIQUID AIR

eONS SECOND INTERROGATORIES

... 10. In relation to the statement made by Brian W.

Bulger and Colette M. Foissotte, Attorneys for Liquid Air

Corporation, in a latter to EEOC on June, 1991, "In late

March 1990. the Company discovered that [lic was

carrying a gun on his person while at work." Who was

person that discovered gun on Zarko [lic? Did that person

search Zarko Lic? Why Liquid Air did not terminate Zarko

[lic after that discovery?

ANSWER:

Liquid Air understands that one or more drivers have

stated that Llic was carrying a gun on his person while at

work. Liquid Air does not know the identity of such driver

or drivers and does not know if he or they searched Ilic.

Liquid Air considered the circumstances and [Ilic’s

statements and decided to call Llic’s attention to Liquid

Air’s long-standing firearms policy. After making a

reasonable inquiry, Liquid Air has determined that the

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information known or readily obtainable by it is

insufficient to enable Liquid Air to more fully respond to

this [Interrogatory.

APPENDIX J - EXCERPTS FROM PLAINTIFF’S

EXHIBIT NO. 26

LIQUID AIR

AN AIR LIQUIDE GROUP COMPANY

May 8, 1990

All of the mistakes discovered by the FDA were attributed

to your omission of the required information on the

required forms. :

... Uf this attitude affects your compliance with Company

policy and procedures, ... |

Bruno Fracyman

APPENDIX K - EXCERPTS FROM PLAINTIFF’S

EXHIBIT NO. 27

rtment of Health and Human Services

Public Health Service

Food and Drug Administration

4/24/90

1. There are no written procedures for

production and process control. The lack of written

procedures and records was determined by asking Mr.

Robert W. Ferguson for the procedures or records and he

replied that there were none that he could find.

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2. A review of the firm’s analytical records revealed

that some oxygen and nitrogen analytical records do not

have the initials or signature showing that the original

records have been reviewed for accuracy and/or

completeness by a second person.

.. He stated that he would contact corporate headquarters

the following day to obtain written procedures for

production and process control.

APPENDIX L - EXCERPTS FROM TRIAL

TESTIMONY OF BRUNO FRAEYMAN

Q. Let me show you what has been marked as

Exhibit 26. Can you identify Exhibit Number 26, please?

A. Yes. It’s a written warning letter.

Q. And this is about an FDA form?

A. Yes.

Q. It appears that you’re blaming Mr. Llic for a lack

of procedures at the plant: is that right?

A. Yes, that’s right.

! The elements of this test are flexible and can be adapted

to fit the requirements of a particular type of case, whether

the plaintiff alleges a discriminatory felure to hire, failure

to promote, or discriminatory discharge. McDonnell

Douglas, 411 U.S. at 802 n. 1B: Fenaee v. Johnson

Products Co.. Inc.. 698 F.2d 1138, 1141 (11th Cir. 1983).

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