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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1064

## Text

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No.

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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

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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

10a

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

12a

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

13a

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.

l4a

[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

l6a

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.

i7a

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

19a

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

2la

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.
22a

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).

23a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1286%3A1. Public record. Not legal advice.