Opposition Brief — Criley v. Delta Air Lines, Inc.

2 Supreme Court, U.S. |

as oo wD

No. 97-636 NOV 10 997

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

DAVID M. CRILEY; RONALD G. FITCH; DAVID E.

JONES; CONSTANTINE G. VLAHAKIS, individually and

on behalf of all other persons similarly situated,

Petitioners,

vs.

DELTA AIR LINES, INC.; AIR LINE PILOTS

ASSOCIATION INTERNATIONAL,

Respondents.

On Petition for a Wnt of Certioran

to the United States Court of Appeals

for the Second Circuit

BRIEF OF RESPONDENT DELTA AIR

LINES, INC. IN OPPOSITION

J. Michael Garner William H. Boice

LAW DEPARTMENT Counsel of Record

DELTA AIR LINES, INC. Stephen E. Hudson

Hartsfield Atlanta KILPATRICK STOCKTON LLP

International Airport Suite 2800

Atlanta, Georgia 30320 1100 Peachtree Street

(404) 715-2600 Atlanta, Georgia 30309-4530

(404) 815-6500

Attorneys for Respondent Delta Air Lines, Inc.

CASILLAS PRESS, 1717 K STREET, N.W., WASHINGTON, D.C. 20006 - 202-223-1220

ne

) |

4

(i)

QUESTIONS PRESENTED

1. Did the Court of Appeals for the Second Circuit correct-

ly affirm the district court’s judgment dismissing Petitioners’

‘‘failure to hire’’ age discrimination claims against Respondent

Delta Air Lines, Inc. (‘‘Delta’’) under the Age Discrimina-

tion in Employment Act of 1967, as amended, 29 U.S.C. § 621,

et seq., where the Asset Purchase Agreement (the ‘‘APA’’)

between Delta and Pan American World Airways, Inc. (‘‘Pan

Am’’) specified that Delta would hire only those Pan Am pilots

who were ‘‘fully trained and currently qualified’’ on the air-

craft that Delta was acquiring from Pan Am, and it is undisputed

that the Pan Am pilots Delta did hire were fully trained and

currently qualified on those aircraft but Petitioners were not?

2. Did the Court of Appeals correctly affirm the district

court’s judgment dismissing Petitioners’ ‘failure to train’’ age

discrimination claims where the APA specifically provided that

any training of Pan Am pilots at Pan Am was solely Pan Am’s

responsibility, the APA did not give Delta the power to con-

trol how Pan Am selected its pilots for training, and each Peti-

tioner was in fact offered training by Pan Am to become

qualified for employment by Delta on the same terms and under

the same conditions as was offered to similarly situated pilots

at Pan Am?

3. Did the Court of Appeals correctly affirm the district

court’s judgment dismissing Petitioners’ disparate impact age

discrimination claims where it is undisputed that Delta offered

employment to the Pan Am pilots who were “fully trained and

currently qualified’’ on the acquired aircraft with the result

that 94.1% of the former Pan Am pilots hired by Delta were

age 40 or older, 68.3% of the former Pan Am pilots hired by

Delta were age 50 or older, and only 5.9% of the former Pan

Am pilots hired by Delta were under age 40, and Petitioners

(i)

offered no evidence that any facially neutral employment policy

had an adverse or disparate impact on the relevant statistical

population?

(iii)

TABLE OF CONTENTS

Page

ee ee ac a's a alone a wa ee wadce we (i)

en MY ce abide ceeen (iv)

TE Eee SP EEE GPRD 6 cs - so bc cca Sia eaes 1

ag wa W Sige aoe

ee eee Gee © BOP ne os as ws wk eee Aaet

ee Dee Cee @ EPO SS ons ns oc vec ec esss 7

REASONS FOR DENYING THE WRIT ................. g

I. The Second Circuit’s Decision Was Correct ...... Q

A. The Second Circuit Correctly Affirmed the

District Court’s Judgment Dismissing Peti-

tioners’ ‘‘Failure to Hire’’ Age Discrimina-

Ne ae Sree caer Be 9

1. Petitioners Failed to Establish a Prima

i pT Rage Seng SESE STE CE is GAR came 10

2. Petitioners Offered No Evidence That

the Legitimate, Non-Discriminatory

Reason Articulated by Delta for Not

Hiring Them Was Pretextual ........... 12

B. The Second Circuit Correctly Affirmed the

District Court’s Judgment Dismissing Peti-

tioners’ ‘“‘Failure to Train’’ Age

BO ee eee 16

C. The Second Circuit Correctly Affirmed the

District Court’s Judgment Dismissing Peti-

tioners’ Age Discrimination Claims Under

a Disparate Impact Theory ............... 18

Il. No Issue Worthy of the Court’s Certiorari

Review is Presented by the Petition .......... 19

| Oe ere oe a age Wie esks tkehess 23

(iv)

TABLE OF AUTHORITIES

Cases Page

Caban-Wheeler v. Elsea, 904 F.2d 1549 (11th Cir. 1990)

Sane A FP mh nS esr Sen MERE a EEN PAT eee Le 10

(nilev v. Delta Atr Lines, Inc., 119 F.3d 102 (2d

a. ROT) Caer COS os i ee a ews iccees passim

District Council 37 v. New York City Dep't of Parks &

Recreation, 113 F.3d 347 (2d Cir, 1997) .............. 18

EEOC v. Borden’s, Inc., 724 F.2d 1390 (9th Cir. 1984) ..... 21

FEOC 9. Weel, OG Be iS Se 15-16 —

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ...... 22

(;raver Tank & Mfg. Co. v. Linde Air Prods. Co., 336

SS Beh CR sas os re a a i 22

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) .... passim

lackson v. Harvard Univ., 900 F.2d 464 (1st Cir),

cert. dented, 498 U.S. 848 (1990) ................... 10

Lopez v. Metropolitan Life Ins. Co., 930 F.2d 157 (2d

Cir. 1991), cert demed, 502 U.S. 880 (1991) .......... ll

Lowe v. Commack Union Free Sch. Dist., 886 F.2d 1364

(2d Cir. 1989), cert. denied, 494 U.S. 1026 (1990) ... 8, 19

Maresco v. Evans Chemetics, Div. of W. R. Grace & Co.,

SOG Fe Se Gee Ses BIE asda ik Nip hens cnn ks 18-19

NCAA v. Board of Regents, 468 U.S. 85 (1984) ......... 22

O’Connor v. Consolidated Coin Caterers Corp., 116

SEX, Sr Gee aks a ook cv oe bas 10, 13-14, 21

Pan Am Corp. v. Delta Air Lines, Inc. 175 B.R. 438

CE Bes, Ne pak oo a ark ea heck ees 2

Rogers v. Lotiee, 458 US. Gis CGE) om oak wh vs he chen 22

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993 .. 10, 12

Taggart v. Time Inc., 924 F.2d 43 (2d Cir. 1991) ........ 10

(v)

Cases (cont'd) Page

Teamsters v. United States, 431 U.S. 324 (1977) ......... 10

Texas Dep’t of Community Affairs v. Burdine, 450 U.S.

We ASOD sip whi ee Es Be De eh da 12

Texas v. Mead, 465 U.S. 1042 (1984) .................. 22

Tyler v. Bethlehem Steep Corp., 958 F.2d 1176 (2d Cir),

cert. demigd, S06 U.S. 826 (1902) ................... 10

United States v. Johnston, 268 U.S. 220 (1925) ........... 22

Statutes

we Ses SOR MM on A a ee - passim

New York State Human Rights Law, Exec. Law § 296(1)

PI A UI irs ciaiiias wt ee 6

Rules

[5 Sfees FO scious ic Chee 7

POs MS We A a5 dv a ve We Ska see 6

I ks cab oo ks eh eee ee 21

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

Petitioners, plaintiffs and appellants below, were formerly

employed as pilots by Pan Am. They allege that Respondent

Delta, defendant and appellee below, discriminatorily denied

employment to them because of their ages. They claim that

Delta should have hired them instead of some of the 774 former

Pan Am pilots that it did hire (median age 52) when it acquired

certain Pan Am assets in 1991. The district court judge

dismissed Petitioners’ age discrimination claims, and the Court

ot Appeals for the Second Circuit affirmed. Criley v. Delta Air

Lines, Inc., 119 F.3d 102 (2d Cir. 1997) (per curiam).

The Court should deny Petitioners’ request for a writ of

certiorari not merely because the Second Circuit’s decision

was correct in all respects, but most importantly because no

legal issue worthy of the Court’s certiorari review is presented

by the Petition. Indeed, the first three legal issues identified

in the Petition as ‘‘Questions Presented’’ are not in fact

presented by this case, although they would not justify this

Court’s certiorari review even if they were presented. As to

the fourth and final issue, which Petitioners acknowledge ‘‘this

Court may wish to decline to address as being premature,”’

Pet. 4, it is likewise not properly presented by the claims of

these Petitioners.

STATEMENT OF THE CASE

Factuai Background

Plaintiffs’ two-paragraph description of the facts (Pet. 2-3)

is incomplete and inaccurate, and the unsupported factual

assertions in the remainder of their Petition are a gross distor-

tion of the record evidence. The entire Petition is based on

an unsupported and erroneous factual predicate. A complete

2

statement of the undisputed facts relevant to the Petition is

set forth below.

In early 1991, Pan Am filed for bankruptcy protection under

Chapter 11 of the United States Bankruptcy Code. In July

1991, Pan Am and Delta entered into an Asset Purchase

Agreement, dated as of July 27, 1991, pursuant to which Delta

agreed to acquire certain equipment and routes from Pan Am.

The equipment that Delta agreed to acquire pursuant to the

APA included certain Airbus A-310 and Boeing 727 commer-

cial aircraft. APA, §§ 2.1(b) and 2.2(b). The APA specified

that there would be an interim closing on or about September

1, 1991, for Delta’s purchase of the Pan Am Shuttle, and a

final closing on November 1, 1991, for Delta’s purchase of

the remainder of the assets that it had agreed to acquire. On

August 12, 1991, the APA was approved by the United States

Bankruptcy Court for the Southern District of New York. Pan

Am Corp. v. Delta Air Lines, Inc., 175 B.R. 438, 447

(S.D.N.Y. 1994).

The APA provided that Delta would hire ‘‘at least’’ 700 Pan

Am pilots to fly the A-310 and B-727 aircraft that it had agreed

to acquire:

[Delta] will offer employment to at least seven

hundred (700) of [Pan Am’s] pilots, who must be fully

trained and currently qualified in the Boeing 727 or

Airbus A-310 categories . . . as of November 1, 1991

. . and who must meet all of [Delta’s] standards

and requirements for pilots . . . in order to be eligi-

ble for consideration by [Delta] hereunder. . . . /Pan

Am’s] pilots who meet such requirements will be of-

fered employment with [Delta] in seniority order by

category.

APA, \ 5.9(h)(i) (emphasis added): 2a.

3

The APA provided that Pan Am would be solely responsi-

ble for any training that it chose to offer to its own pilots who

were flying other aircraft so that they could become ‘“‘fully

trained and currently qualified’ on the aircraft that Delta was

acquiring:

Any training of [Pan Am’s] pilots required to make

them fully trained and currently qualified in the ap-

plicable Airbus A-310 or Boeing 727 categories as

described in subsection 5.9(h)(i) hereof shall be the

responsibility of and undertaken at the expense of

[Pan Am].

APA, § 5.9(h)(iv): 3a. Contary to Petitioners’ unsupported

assertion, Delta did not ‘‘authorize[] Pan Am to. . . inter-

view, screen and retrain the Pan Am pilots for potential hire

or re-hire by Delta.’’ Pet. 2.

The priority in which Pan Am pilots were considered eligi-

ble to be hired by Delta pursuant to the APA was dependent

upon two determinations: (1) identifying which Pan Am pilots

were or would become “‘fully trained and currently qualified’’

on the A-310 or B-727 aircraft by the closing dates, and (2)

ranking those pilots ‘‘in seniority order by category’’ for the

two aircraft as of the relevant dates. Both of these determina-

tions were made by Pan Am, not by Delta.

At various times between mid-August and late October 1991,

Pan Am supplied Delta with lists of its pilots who were or would

become ‘‘fully trained and currently qualified’’ on the A-310 and

B-727 aircraft by the closing dates. Pan Am ranked the pilots

on the lists on the basis of their Pan Am seniority. There is

no evidence to support Petitioners’ assertion that Delta

‘‘design[{ed] and caus[ed] Pan Am to implement a series of pilot

selection procedures which minimized the number of the oldest

pilots [that] Delta would have to hire.’’ Pet. 2.

4

Delta reviewed the lists of pilots received from Pan Am,

contacted each pilot, and determined who was interested in

employment with Delta. Those pilots who were interested

were scheduled for interviews. Delta filled its staffing re-

quirements for the A-310 aircraft with the most senior fully

trained and currently qualified pilots for the respective posi-

tions on that aircraft based on the lists supplied by Pan Am.

Likewise, Delta filled its staffing requirements for the B-727

aircraft with the most senior fully trained and currently qualified

pilots for the respective positions on that aircraft based on

the lists supplied by Pan Am. Delta eventually hired 774 former

Pan Am pilots — 74 more than it was contractually obligated

to hire.

Thus, being placed by Pan Am on a list of ‘‘fully trained and

currently qualified’ pilots on the A-310 or B-727 and having

sufficient Pan Am seniority were prerequisites for considera-

tion for employment at Delta. None of the Petitioners,

however, was ‘‘fully trained and currently qualified’ on either

the A-310 or the B-727 as of the final closing date. Delta did

not hire or even contact Petitioners because their names did

not appear on the lists of fully trained and currently qualified

A-310 or B-727 pilots supplied to Delta by Pan Am.

Although none of the Petitioners was ‘‘fully trained and cur-

rently qualified’’ on either the A-310 or the B-727, in late

August 1991 Pan Am offered to train each of the Petitioners

on the B-727 so that they could become eligible for employ-

ment by Delta on that aircraft by November 1, 1991. Each

of the Petitioners declined Pan Am’s offer of training. If Peti-

tioners had accepted Pan Am’s offers of training and suc-

cessfully completed the training, they would have been included

on the lists of fully trained and currently qualified B-727 pilots

supplied to Delta by Pan Am.

a

5

Petitioners declined Pan Am’s offers of training because they

were Captains on the B-747 aircraft at Pan Am, which was

a larger and higher-paying aircraft than the B-727. At the time,

it was anticipated that Pan Am would continue in business and

would use the B-747 aircraft in its operations. Petitioners

elected to remain at Pan Am flying the B-747 rather than ac-

cept Pan Am's offer of training on the B-727 to become eligi-

ble for hire by Delta as B-727 pilots. Other Pan Am pilots of

Petitioners’ ages accepted Pan Am’s offers, were trained in

place of Petitioners, and were ultimately hired by Delta.

Despite Petitioners’ allegations of age bias, Delta hired a

very senior group of Pan Am pilots. 728 of the 774 (or 94.1%)

ot the former Pan Am pilots hired by Delta were age 40 or

older. 529 of the 774 (or 68.3%) of the former Pan Am pilots

hired by Delta were age 50 or older. Only 46 of the 774 (or

5.9%) of the former Pan Am pilots hired by Delta were under

age 40. The mean age of the group hired by Delta from Pan

Am was 50, and the median age was 52.

Pan Am ceased its airline operations in December 1991. At

that point, Petitioners realized that they had made a mistake

in electing to remain at Pan Am as B-747 Captains. They filed

charges of discrimination against Delta with the Equal Employ-

ment Opportunity Commission (the ‘‘EEOC’’). That agency

investigated the allegations of discrimination but rejected them

as follows:

The evidence gathered during the investigation

does not disclose that [Delta] intended to

discriminate against [Petitione:] individually, nor

against the most senior pilots as a group, and the

ages of the pilot. actually hired does not lead to a

presumption that there was an intent to exclude the

oldest pilots or the most senior pilots.

6

Based on this analysis, | have determined that the

evidence obtained during the investigation does not

establish a violation of the statute.

6a.

The District Court’s Decision

Petitioners filed this action in the United States District

Court for the Eastern District of New York in Apmi 1993. They

asserted age discrimination claims against Delta! under both

the federal Age Discrimination in Employment Act of 1967 (the

“ADEA’’), as amended, 29 U.S.C. § 621, et seg., and the New

York State Human Rights Law, Exec. Law § 296(1) (McKin-

ney’s 1993). After two years of discovery, the district court

judge, The Honorable Jack B. Weinstein, granted Delta’s mo-

tion for summary judgment and dismissed Petitioners’ com-

plaint in an unpublished order. The district court judge

concluded:

This was essentially a turn-key operation. Pan Am

turned over aircraft and pilots authorized and train-

ed to operate those aircraft. There’s no showing of

any intention to discriminate on the basis of age.

Petitioners’ Appendix, 17a. Petitioners filed a motion for

reconsideration but the district court judge adhered to his

earlier ruling.

' Petitioners asserted no substantive claims against the other respon-

emt, the Air Line Pilots Association (‘‘ALPA’’), which was also a defen-

dant and appellee below. ALPA was joined as a defendant, pursuant to

Fed. R. Civ. P. 19, because of its ‘‘interest in the subject matter of this

action, and in order that complete and effective disposition of the [Peti-

uioners’} claims can be made herein.”

7

The Second Circuit's Decision

The Court of Appeals for the Second Circuit affirmed the

district court’s judgment dismissing Petitioners’ age

discrimination claims. Criley v. Delta Air Lines, Inc., 119 F.3d

102 (2d Cir. 1997) (per curiam). As to Petitioners’ disparate

treatment claims, the Second Circuit held that ‘‘the record

before the district court raised no genuine factual issue of

discrimination on Delta’s part.’’ Jd. at 103. The Second Cir-

cuit found that Delta had ‘‘offered unrebutted age-neutral ex-

planations’’ for not hiring Petitioners: They were not iden-

tified on Pan Am’s list of ‘‘fully trained and currently qualified’’

pilots on the aircraft Delta was acquiring. Jd. at 104-05.

In rejecting Petitioners’ pretext evidence concerning the

legitimate, non-discriminatory reason articulated by Delta for

not hiring them, the Second Circuit referred to ‘‘a variety of

unconnected fragments of evidence in which Delta personne!

might be understood to be making reference to age.’’ Id. at

105. The evidence consisted of comments in notes taken dur-

ing the exploratory stage of the Delta-Pan Am transaction.

which merely recorded accurate information about the ages

of the Pan Am pilot work force. The comments had nothing

to do with Petitioners, why they were not hired by Delta, or

any issue relevant to this case. Referring to these comments,

the Second Circuit stated, in dicta, that ‘“‘[n]one of the

Statements cited by [Petitioners] reflect any age-based

stereotype or belief that older pilots are less competent than

younger ones.’’ Jd. at 105. Although unnecessary to its deci-

sion, because the evidence did not relate to Delta’s legitimate,

non-discriminatory reason, the Second Circuit observed that

“‘[t]o the extent the comments cited by [Petitioners] implicate

age at all, they express considerations of the business effects

of the federally mandated retirement age [of 60 for commer-

cial airline pilots under 14 C.F.R. § 121.383(c)], not assump-

8

tions about employees’ abilities based on their age.’’ 119 F.3d

at 105. While the comments might indicate some concern about

the cost of hiring those pilots who were close to retirement,

there was no showing that this was a factor considered or acted

upon by Delta, as Delta later agreed in the APA to hire, in

seniority order (and regardless of age or proximity to retire-

ment), those Pan Am pilots who were ‘“‘fully trained and cur-

rently qualified’ on the acquired aircraft by the closing dates.

The Second Circuit nevertheless stated, relying on Hazen

Paper Co. v. Biggins, 507 U.S. 604 (1993), that “‘employ-

ment decisions driven by factors that are empirically intert-

wined with age are not discriminatory so long as they are

motivated by ‘some feature other than the employee’s age.’”’

119 F.3d at 105 (quoting Hazen, 507 U.S. at 609).

Contrary to Petitioners’ assertions, the Second Circuit

neither held nor implied that ‘‘the evidence adduced by Peti-

tioners showed that Delta declined to hire pilots over age 55,”’

Pet. 12, or that ‘‘Petitioners, in the Second Circuit’s view,

were refused employment by Delta because [of] their respec-

tive ages, per se.’’ Id. at 13. These assertions find no sup-

port in the Second Circuit's opinion.

As to Petitioners’ disparate impact claim, the Second Cir-

cuit acknowledged that ‘‘the Supreme Court has never decided

whether a disparate impact theory of liability is available under

the ADEA.”’ 119 F.3d at 105 (citing Hazen, 507 U.S. at 610).

The court recognized that prior Second Circuit decisions had

- permitted a disparate impact theory of liability under the ADEA

but had limited it to claims ‘‘alleg{ing] a disparate impact on

the entire protected group, t.e., workers aged 40 and over.’’

119 F.3d at 105 (citing Lowe v. Commack Union Free Sch.

Dist., 886 F.2d 1364, 1372-73 (2d Cir. 1989), cert. denied,

494 U.S. 1026 (1990)). The Second Circuit concluded that

since Petitioners ‘‘acknowledge that 94.1% of the pilots Delta

9

hired were aged 40 and older and that the hiring scheme had

no negative impact on the overall group of Pan Am pilots ag-

ed 40 and older[,] . . . [their] disparate impact claim cannot

survive’’ under existing Second Circuit precedent. 119 F.3d

at 105.

REASONS FOR DENYING THE WRIT

I. The Second Circuit’s Decision Was Correct.

The ADEA prohibits discrimination with respect to the

employment of workers age 40 or older on the basis of age.

29 U.S.C. §§ 621, 623, 631 (1994). Petitioners’ request for

a writ of certiorari is based entirely on the erroneous premise

that the Second Circuit affirmed the dismissal of Petitioners’

age discrimination claims despite finding that they had suffered

‘“an adverse employment action’’ because of their ages. Pet.

i, 12-13. To the contrary, the Second Circuit affirmed the

district court’s judgment precisely because it concluded the

exact opposite. Here, the EEOC, the district court, and the

Second Circuit have all concluded that Petitioners have failed

to come forward with evidence that Delta discriminated against

them in any respect because of their ages.

A. The Second Circuit Correctly Affirmed the

District Court’s Judgment Dismissing Peti-

tioners’ ‘‘Failure to Hire’ Age Discrimination

Claims.

In a “‘failure to hire’’ discrimination case, each plaintiff bears

the burden of proving that the adverse employment decision

about which he complains was a result of intentional discrimina-

tion. In this case, Petitioners had no direct evidence? that

? Direct evidence of discrimination is evidence which, if believed, would

prove without inference or presumption that the affected employee was

10

any action by Delta was motivated by their ages. The establish-

ment of a discriminatory motive was thus governed by the

allocations of burdens and order of proof most recently ex-

pressed in St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502

(1993).

Petitioners cannot establish a prima facie case of age

discrimination because they could not show that they were

qualified for the pilot positions that Delta offered to the Pan

Am pilots. Even if Petitioners had established a prima facte

case, the Second Circuit correctly held that they offered no

evidence that the legitimate, non-discriminatory reason ar-

uculated by Delta for not hiring them was pretextual.

1. Petitioners Failed to Establish a Prima Facie

Case.

To establish a prima facie case of age discrimination in a

‘failure to hire’’ context, each Petitioner was required to show

that (1) he belongs to the protected age group, (2) he applied

for and was qualified for the position sought, (3) he was not

hired despite his qualifications, and (4) the position was

ultimately filled by a younger person. Taggart v. Time Inc.,

924 F.2d 43, 46 (2d Cir. 1991). In O’Connor v. Consolidated

Coin Caterers Corp., 116 S.Ct. 1307 (1996), this Court held

that a prima facie case under the ADEA ‘‘requires ‘evidence

adequate to create an inference that an employment decision was

based on a[n] [illegal] discriminatory criterion . . ..’’’ Id. at

1310 (emphasis in opinion) (quoting Teamsters v. United States,

431 U.S. 324, 358 (1977)).

discriminated against. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1183

(2d Cir.), cert. denied, 506 U.S. 826 (1992); Caban-Wheeler v. Elsea, 904

F.2d 1549, 1555 (11th Cir. 1990); Jackson v. Harvard Univ., 900 F.2d

464, 467 (1st Cir.), cert. denied, 498 U.S. 848 (1990).

11

Petitioners could not even establish a prima facie case

| because they could not show that they were qualified for the

| pilot positions that Delta offered to the Pan Am pilots. It is

undisputed that none of the Petitioners was fully trained and

currently qualified on either the A-310 aircraft or the B-727

aircraft as of November 1, 1991. It is also undisputed that none

of their names appeared on the lists of fully trained and cur-

rently qualified A-310 pilots or B-727 pilots supplied by Pan

| Am to Delta. It is further undisputed that only those Pan Am

pilots whose names appeared on the lists of fully trained and

currently qualified A-310 pilots or B-727 pilots supplied by Pan

Am to Delta were eligible for hire by Delta.

Petitioners’ inability to establish the ‘‘qualification’’ prong

of the second element of their prima facie case required the

dismissal of their ‘‘failure to hire’’ age discrimination claims,

and neither the district court nor the Second Circuit needed

to proceed any further in their analysis. See Lopez v.

Metropolitan Life Ins. Co., 930 F.2d 157, 161-162 (2d

Cir.1991) (‘‘Having found that [the plaintiff] did not meet his

initial burden of producing sufficient evidence to establish a

prima facie case [of discrimination], the trial judge was under

no obligation to proceed further . . ..”’), cert. denied, 502 U.S.

880 (1991). In this case, the Second Circuit merely assumed

that Petitioners had established a prima facie case, and pro-

ceeded to consider Delta’s articulated, legitimate, non-

discriminatory reason for not hiring them. But the evidence

is undisputed that Petitioners have not established, and can-

not establish, a prima facie case of age discrimination against

Delta.

he ae

12

2. Petitioners Offered No Evidence That the

Legitimate, Non-Discriminatory Reason Ar-

ticulated by Delta for Not Hiring Them Was

Pretextual.

Even if each Petitioner had established a prima facie case,

such proof merely would have created a rebuttable presump-

tion of discrimination that Delta could dispel by articulating a

legitimate, non-discriminatory reason for its action. Hicks, 509

U.S. at 506. In this case, the Second Circuit correctly held

that Delta had dispelled any presumption that might have been

created by a prima facie case by its articulated, legitimate,

non-discriminatory reason for not hiring Petitioners: They

were not identified on Pan Am’s lists of fully trained and cur-

rently qualified pilots on the aircraft that Delta was acquiring.

119 F.3d at 104-05.

This legitimate, non-discriminatory explanation for Delta’s

failure to hire Petitioners would have destroyed any inference

of discrimination that might have been created if Petitioners

had been able to establish a prima facie case. Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981).

Once a defendant articulates a legitimate, non-discriminatory

reason for its action, the plaintiff must “‘prove by a

preponderance of the evidence that the legitimate reasons of-

fered by the defendant were not its true reasons, but were

a pretext for discrimination.’’ Jd. at 253. Hicks explained that

the articulated ‘‘reason cannot be proved to be ‘a pretext for

discrimination’ unless it is shown both that the reason was

false, and that discrimination was the real reason.’’ Hicks,

509 U.S. at 515-16 (emphasis in opinion) (quoting Burdine,

450 LS. at 253).

With regard to each Petitioners’ first burden, there is no

evidence that the reason Delta has articulated for not hiring

13

him is false. Indeed, it is undisputed, by Petitioners’ own ad-

missions, that they were not fully trained and currently qualified

on either the A-310 or the B-727 as of November 1, 1991.

It is also undisputed that their names did not appear on the

lists of fully trained and currently qualified pilots that Pan Am

sent to Delta. Likewise, it is undisputed that their names had

to be on those lists to be eligible for hire by Delta. The Se-

| cond Circuit thus correctly concluded that ‘‘the record before

the district court raised no genuine factual issue of discrimina-

tion on Delta’s part.’’ 119 F.3d at 103.

With regard to the second burden, there is mo evidence that

Delta was actually motivated not to hire Petitioners because

of their ages. The ‘‘variety of unconnected fragments of

evidence’’ referred to in the Second Circuit’s opinion, id. at

105, and quoted by Petitioners, Pet. 2-3 n.3, had nothing to

do with Petitioners or why they were not hired by Delta. None

of these ‘‘unconnected fragments of evidence’’ were or

reflected ‘‘ageist directives to Pan Am,’’ Pet. 2, and, con-

trary to Petitioners’ assertion, none of them ‘‘revealled] a

clear disinclination on Delta’s part to having too large a number

of the oldest Pan Am pilots join its job ranks.’’ Id. at 3.

Any assertion that Delta did not hire Petitioners because

of their ages or that Delta was biased against older pilots in

general is refuted by Delta’s agreement to offer employment

in seniority order and the resulting statistics of the group Delta

hired (discussed supra), which show very favorable treatment

of older pilots. For example, 94.1% of the former Pan Am

pilots hired by Delta were age 40 or older, and 68.3% were

age 50 or older. Delta hired 145 Pan Am pilots who, like Peti-

tioners, were 55 years of age or older. There is no significant

difference between the median age of the 774 pilots hired by

Delta (52) and the ages of the class (55 years and older) Peti-

tioners seek to represent. In O’Connor v. Consolidated Coin

ee

14

Caterers Corp., supra, this Court held unanimously that

evidence of ‘‘the replacement of a 68 year-old by a 65 year-

old’’ is ‘‘very thin evidence’’ of age discrimination, and that

an inference of age discrimination ‘‘can not be drawn from the

replacement of one worker with another worker insignificantly

vounger.’’ 116 S.Ct. at 1310.

Petitioners misrepresent the Second Circuit's reliance on

Hazen in dismissing Petitioners’ arguments about the ‘‘uncon-

nected fragments of evidence in which Delta personnel might

be understood to be making reference to age.’’ 119 F.3d at

105. Although this portion of the Second Circuit’s opinion was

completely unnecessary to its decision, because none of the

‘‘fragments of evidence’’ referred or related to Petitioners

or why they were not hired by Delta, the Second Circuit

observed, in dicta, that ‘‘[nJone of the statements cited by

[Petitioners] reflect any age-based stereotype or belief that

older pilots are less competent than younger ones.’’ Jd. ‘“To

the extent the comments cited by [Petitioners] implicate age

at all,’’ the Second Circuit observed, ‘‘they express considera-

tions of the business effects of the federally mandated retire-

ment age, not assumptions about employees’ abilities based

on their age.’’ Jd. Citing Hazen, the Second Circuit stated

that ‘‘employment decisions driven by factors that are em-

pirically intertwined with age are not discriminatory so long

as they are motivated by ‘some feature other than the

employee's age.'’’ Jd. (quoting Hazen, 507 U.S. at 609).

The ‘‘comments’”’ referred to by the Second Circuit were

found in notes taken during the exploratory stage of the Delta-

Pan Am transaction, where accurate information about the ages

of some of the Pan Am employees was recorded. The com-

ments did not relate to Delta’s later agreement to hire, in

seniority order, Pan Am pilots who were ‘“‘fully trained and

currently qualified’’ on the acquired aircraft, or Pan Am’s

\

15

training of its pilots to make them eligible for hire by Delta,

or any other issue in this case. Therefore, the comments were

completely irrelevant to Petitioners’ claims against Delta. But

the Second Circuit proceeded to the next step and found that

the comments did not even indicate ‘‘age bias’’ generally, but

merely an awareness of the ages of the Pan Am pilots. 119

F.3d at 105. Thus, the Second Circuit’s observations cited

by Petitioners — about whether acting on factors that are ‘‘em-

pirically intertwined with age’’ is actionable under the ADEA

— are clearly dicta since they were unnecessary to the deci-

sion in this case, and involved a purely hypothetical situation

since there is no evidence of any employment decision based

on concerns about increased costs, proximity to retirement

age, or any factor that is ‘‘empirically intertwined with age.’’

Indeed, the statistical evidence discussed above demonstrates

that Delta’s agreement to hire, in seniority order, those Pan

Am pilots who were ‘‘fully trained and currently qualified’’

on the acquired aircraft by the closing dates included pilots

of all ages, including large numbers of older Pan Am pilots who

were very close to retirement age.

In any event, nothing in the Second Circuit’s decision is in

conflict with, or contrary to, Hazen. Hazen considered ‘‘the

question whether an employer violates the ADEA by acting

on the basis of a factor, such as an employee's pension status

or seniority, that is empirically correlated with age.’’ 507 U.S.

at 608. This Court held, unanimously, that ‘‘there is no

disparate treatment under the ADEA when the factor

motivating the employer is some feature other than the

employee’s age.’’ Jd. at 609. The Court explained:

It is the very essence of age discrimination for an

older employee to be fired because the employer

believes that productivity and competence decline

with old age. As we explained in EEOC v. Wyoming,

16

460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983),

Congress’ promulgation of the ADEA was prompted

by its concern that older workers were being depriv-

ed of employment on the basis of inaccurate and

stigmatizing stereotypes.

Id. at 610. The Court concluded that ‘‘[w]hen the employer’s

decision is wholly motivated by factors other than age, the

problem of inaccurate and stigmatizing stereotypes disappears.

This is true even if the motivating factor is correlated with

age, as pension status typically is.’’ Jd. at 611.

B. The Second Circuit Correctly Affirmed the

District Court’s Judgment Dismissing Peti-

tioners’ ‘‘Failure to Train’’ Age Discrimina-

tion Claims.

Faced with the undisputed facts in this case, Petitioners tacit-

ly conceded below that they had failed to establish a prima

facie case of age discrimination against Delta directly for fail-

ing to hire them. In their brief to the Second Circuit, they ac-

cused Delta of ‘‘mischaracteriz[ing] the instant case as one

involving a ‘failure to hire.’’’ 8a. Instead, according to Peti-

tioners’ brief to the Second Circuit, ‘‘the age discrimination

occurred before the hiring took place’’ and was Pan Am’s

failure to train them so that they could become eligible to be

hired by Delta. Jd. (emphasis in original).

Although the Second Circuit did not directly address Peti-

tioners’ ‘‘failure to train’’ age discrimination claims, it implicitly

— and correctly — affirmed the district court’s dismissal of

those claims. Pan Am was not Delta’s ‘‘agent,’’ and the APA

did not appoint Pan Am to act as Delta’s agent with regard

to any retraining done at Pan Am of Pan Am pilots wanting

to become eligible for employment with Delta. Nothing in

17

that agreement gave Delta the power to control whether Pan

Am offered any training to its own pilots or how Pan Am

selected its pilots for training. As quoted above, whether Pan

Am offered or provided training so that non-qualified Pan Am

pilots could become ‘‘fully trained and currently qualified’’ on

the acquired aircraft by the closing dates was solely within

the discretion and control of Pan Am. APA, § 5.9(h)(iv): 3a.

Petitioners offered no evidence that Delta controlled how Pan

Am selected its own pilots for training so that they could

become ‘‘fully trained and currently qualified’ on the acquired

aircraft by the closing dates. Petitioners have not cited any

legal authority holding that Delta could be held liable for any

‘‘age discrimination’ of Pan Am under the facts of this case.

Petitioners not only offered no evidence that Delta controlled

how Pan Am selected its own pilots for training, but it is un-

disputed that Pan Am did, in fact, offer training to each Peti-

tioner so that he could become ‘‘fully trained and currently

qualified’’ on the B-727 aircraft by November 1, 1991. Each

elected to remain at Pan Am flying the B-747 rather than ac-

cept Pan Am’s offer of training on the B-727 so that he could

become eligible for hire by Delta as B-727 pilots. Petitioners’

failure to accept Pan Am’s offer of training should bar all of

their claims as a matter of law. Petitioners’ failure to receive

the training they needed at Pan Am so that they could have

become eligible to be hired by Delta was a result of their own

decisions for which they are responsible, not because of

anything that Delta did to them.

Finally, Petitioners argued in the district court and before

the Second Circuit — but not in their Petition here — that

Delta's ‘‘age discrimination’’ consisted of its failure to change

the APA unilaterally and adopt a pilot proposal (known as the

‘*system-wide seniority transfer’’ proposal) that would have

18

required bankrupt Pan Am to continue to train Pan Am pilots

after the closing for eventual hire by Delta so that the most

senior pilots could keep their options open about going to Delta

or remaining at Pan Am. 119 F.3d at 104. There is no evidence

that Pan Am or its creditors would have ever agreed to the

proposal or that it would have made any difference to which

Pan Am pilots were ultimately hired by Delta, nor is there

any evidence that Delta rejected the proposal for age biased

reasons. Thus, the Second Circuit correctly concluded that

Delta’s ‘‘age-neutral explanations for its decision to reject the

‘system-wide seniority transfer’ proposal’’ were ‘‘unrebut-

ted.’’ and ‘‘not effectively contradicted’’ by Petitioners. Jd.

C. The Second Circuit Correctly Affirmed the

District Court’s Judgment Dismissing Peti-

tioners’ Age Discrimination Claims Under a

Disparate Impact Theory.

Petitioners’ disparate impact claim was based on nothing

more than a simplistic comparison of the number of Pan Am

pilots age 55 and older who remained at Pan Am with the

number of Pan Am pilots of the same age who accepted

employment at Delta. Petitioners made no attempt to

distinguish between those Pan Am pilots who, like Petitioners,

elected to remain at Pan Am and those Pan Am pilots who

wanted to be hired by Delta but were not. Petitioners sub-

mitted no evidence that any facially neutral employment policy

disqualified a disproportionate percentage of older Pan Am

pilots who wanted to be hired by Delta.

The Court has never decided whether a disparate impact

theory of liability is available under the ADEA. Hazen, 507

U.S. at 610. The Second Circuit has recognized such an ac-

tion. District Council 37 v. New York City Dep’t of Parks &

Recreation, 113 F.3d 347, 351 (2d Cir. 1997); Maresco v.

19

Evans Chemetics, Div. of W. R. Grace & Co., 964 F.2d 106.

115 (2d Cir. 1992). However, the Second Circuit has held that

to establish a disparate impact claim under the ADEA, plain-

tiff must show a disparate impact on the entire protected group,

1.¢., workers age 40 and older, and not merely a disparate

impact on a particular sub-group, e.g., workers

age 55 and older. Lowe v. Commack Union Free Sch. Dist..,

886 F.2d 1364, 1372-73 (2d Cir. 1989), cert. denied, 494 U.S.

1026 (1990).

In this case, the Second Circuit correctly affirmed the district

court’s dismissal of Petitioners’ disparate impact claims under

existing Second Circuit precedent. As the Second Circuit

observed, Petitioners ‘‘acknowledge that 94.1% of the pilots

Delta hired were aged 40 and older and that the hiring scheme

had no negative impact on the overall group of Pan Am pilots

aged 40 and older.’’ 119 F.3d at 105. Thus, under existing

Second Circuit precedent, ‘‘[Petitioners’] disparate impact

claim cannot survive.’’ Jd. In any event, Petitioners produc-

ed no evidence that would support a disparate impact claim

for any sub-group of the protected class.

Il. No Issue Worthy of the Court’s Certiorari

Review is Presented by the Petition.

Petitioners’ request for a writ of certiorari should be denied

not merely because the Second Circuit’s decision was cor-

rect, but most importantly because the Petition presents no

issue worthy of the Court’s certiorari review. The first three

legal issues identified in the Petition as ‘‘Questions Presented”’

are not in fact presented by this case, although they would

not justify this Court’s certiorari review even if they were

presented.

Questions Nos. 1-3 are explicitly based on the erroneous

premise that the Second Circuit affirmed the dismissal of Peti-

20

tioners’ claims despite finding that Petitioners were subjected

to ‘‘an adverse employment action based on. . . [their] age’”’

(Questions Nos. 1 and 2) and ‘‘based on [their] proximity

. . toa predetermined . . . retirement age’’ (Question No.

3). The Second Circuit, however, made no such finding. It

is undisputed that Delta did not hire Petitioners because their

names did not appear on the list of ‘‘fully trained and current-

lv qualified’’ A-310 or B-727 pilots supplied to Delta by Pan

Am. The Second Circuit thus correctly affirmed the district

court judge’s dismissal of Petitioners’ age discrimination claims

precisely because ‘‘the record before the district court rais-

ed no genuine factual issue of discrimination on Delta’s part.’’

119 F.3d at 103.

Even Petitioners concede that ‘‘this Court may wish to

decline to address Question No. 4 as being premature.’’ Pet.

| 4. That is so, according to Petitioners, because Question No.

4 ‘‘relatles] to the applicability of the disparate impact doc-

) trine to an ADEA subclass, t.e., those persons age 55 and

over,’’ but ‘‘Petitioners recognize that the threshold issue,

whether the so-called disparate impact analysis is cognizable

for claims under the ADEA, has not yet been decided by this

Court."’ Id.

Moreover, this case is a particularly poor vehicle for the

Court to consider whether a disparate impact claim is available

under the ADEA, since that issue is purely hypothetical here.

First, Petitioners have identified no facially neutral employ-

ment policy that disqualified them from employment with Delta.

To the contrary, the evidence is undisputed that Petitioners

were in fact offered training by Pan Am so that they could

become eligible for hire by Delta but they rejected the offer

ol training. Second, Petitioners have presented no statistical

evidence showing that any facially neutral employment policy

had an adverse impact on the relevant population — those older

SAO TR en nese yer mene

21

Pan Am pilots who wanted to be hired by Delta but were

prevented from doing so by a Delta policy or decision, which

is a much different population from those Pan Am pilots who,

like Petitioners, rejected Pan Am’s offer of training and chose

to remain in more lucrative positions at Pan Am.

The Petition satisfies none of the considerations for certiorari

review set forth in Sup. Ct. R. 10. The Second Circuit in this

case did not decide an important question of federal law that

has not been, but should be, settled by this Court, nor did

the Second Circuit decide an important federal question in a

way that conflicts with relevant decisions of this Court.

Although Petitioners contend that particular language used by

this Court in its unanimous decision in Hazen ‘‘has spawned

great debate among the Circuits,’’ Pet. 8, Petitioners fail to

cite even a Single circuit court case expressing confusion or

uncertainty over Hazen. Nor has the Second Circuit so far

departed from the accepted and usual course of judicial pro-

ceedings, or sanctioned such a departure by a lower court,

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

Although Petitioners contend that the Second Circuit’s

refusal to recognize disparate impact claims under the ADEA

for sub-groups of the protected class conflicts with the Ninth

Circuit’s decision in EEOC v. Borden’s, Inc., 724 F.2d 1390

(9th Cir. 1984), Pet. 22, no conflict is in fact presented. The

Ninth Circuit in Borden’s recognized the disparate impact

theory of liability under the ADEA, but it did not consider

whether such a claim was available if the challenged employ-

ment policy adversely impacted only a sub-group of the pro-

tected class, e.g., workers age 55 and older, as opposed to

the entire protected class. Instead, in Borden’s, which pre-

dated this Court’s more recent ADEA decision in Hazen and

O’Connor, the Ninth Circuit considered only the defendant

employer’s argument that the disparate impact theory did

22

not apply to (1) lawsuits under the ADEA or (2) lawsuits con-

cerning employee compensation. 724 F.2d at 1394. Moreover,

as noted above, this issue concerns Question No. 4, which,

as Petitioners concede, ‘‘this Court may wish to decline to

address . . . as being premature.”’ Pet. 4.

At most, Petitioners are merely complaining about the Se-

cond Circuit’s analysis of the particular facts involved in this

case. This Court has stated: ‘‘We do not grant a certiorari

to review evidence and discuss specific facts.’’ United States

v. Johnston, 268 U.S. 220, 227 (1925); see Texas v. Mead,

465 U.S. 1041 (1984) (Stevens, J.). Indeed, this Court has

indicated that it is even less likely to review a case where,

as here, the factual analysis and conclusion of the district court

has received the concurrence of the court of appeals. In that

situation, the Court has often stated that it is not ‘‘a court

for correction of errors in fact finding,’’ and that it ‘‘cannot

undertake to review concurrent findings of fact by two courts

below in the absence of a very obvious and exceptional show-

ing of error.’’ Graver Tank & Mfg. Co. v. Linde Atr Prods.

Co., 336 U.S. 271, 275 (1949); accord, Goodman v. Lukens

Steel Co., 482 U.S. 656, 665 (1987); NCAA v. Board of

Regents, 468 U.S. 85, 98 n.15 (1984); Rogers v. Lodge, 458

U.S. 613, 623 (1982). Here, the EEOC, the district court,

and the Second Circuit have all concluded that Petitioners have

failed to come forward with evidence that Delta discriminated

against them because of their ages. Such ‘‘a very obvious and

exceptional show of error’’ is not present in this case.

23

CONCLUSION

For all the foregoing reasons, the Petition for a Writ of Cer-

tiorari should be denied.

Respectfully submitted,

J. Michael Garner William H. Boice

LAW DEPARTMENT Counsel of Record

DELTA AIR LINES, INC. Stephen E. Hudson

Hartsfield Atlanta KILPATRICK STOCKTON LLP

International Airport Suite 2800

Atlanta, Georgia 30320 1100 Peachtree Street

(404) 715-2600 Atlanta, Georgia 30309-4530

(404) 815-6500

Attorneys for Respondent Delta Air Lines, Inc.

la

ASSET PURCHASE AGREEMENT

AMONG

PAN AM CORPORATION,

PAN AMERICAN WORLD AIRWAYS, INC.

PAN AM SHUTTLE, INC.

AND

DELTA AIR LINES, INC.

JULY 27, 1991

2a

ASSET PURCHASE AGREEMENT

ASSET PURCHASE AGREEMENT dated July 27, 1991

among Pan Am Corporation, a Delaware corporation

(‘‘Parent’’), Pan American World Airways, Inc., an indirect

wholly-owned subsidiary of Parent and a New York corpora-

tion (‘Airways’’), Pan Am Shuttle Inc., a wholly-owned sub-

sidiary of Parent and a Delaware corporation (‘‘Shuttle’’),

debtors-in-possession (Shuttle and Airways being referred to

herein collectively as ‘‘Sellers’’ and each individually as a

‘‘Seller’’; where appropriate, the terms Seller or Sellers shall

refer only to the applicable Seller), and Delta Air Lines, Inc.,

a Delaware corporation (‘‘Buyer’’).

* * *

5.9(h)(i) Buyer will offer employment to at least seven hun-

dred (700) of Sellers’ pilots, who must be fully trained and

currently qualified in the Boeing 727 or Airbus A-310 categories

u.e., Airbus A-310 Captain, Boeing 727 Captain, Airbus A-310

First Officer, Boeing 727 First Officer, Boeing 727 Second

Officer) as of November 1, 1991 (subject to subsections

5.9(h) (ii) and (v) hereof), or such other date as may be agreed

upon in writing by Buyer and Sellers, and who must meet all

of Buyer’s standards and requirements for pilots, including

without limitation medical requirements, in order to be eligi-

ble for consideration by Buyer hereunder. Subject to subsec-

tions 5.9(h)(ili) and (vii), Sellers’ pilots who meet such re-

quirements will be offered employment with Buyer in seniority

order by category. Except as provided in subsection 5.9(h)(ii),

such offers shall be for employment effective upon the Clos-

ing. Buyer shall determine in its sole discretion the number

of Sellers’ pilots in each such category to whom Buyer will

offer employment.

3a

7*~ * *

(iv) Any training of Sellers’ pilots required to make them

fully trained and currently qualified in the applicable Airbus

A-310 or Boeing 727 categories as described in subsection

5.9(h)(i) hereof shall be the responsibility of and undertaken

at the expense of Sellers. Any additional training that Buyer

reasonably wishes to provide to Sellers’ pilots to prepare them

for Buyer’s operations (including differences training, indoc-

trination, familarization, operating specifications, flight opera-

tions procedures manual and the like) will be provided at

Buyer’s expense, using Buyer’s training personnel. Sellers

shall provide their pilots reasonable time off for such training.

* * *

4a

# *

IN WITNESS WHEREOF, the undersigned have caused

this Agreement to be executed as of the date first above

written.

?AN AMERICAN WORLD DELTA AIR LINES INC.

AIRWAYS, INC.

BY: _/s/ T.G. Plaskett BY: _/s/ Ronald W. Allen

Name: Thomas G. Plaskett Name: Ronald W. Allen

Title: Chairman and Chief Title: Chairman and Chief

Executive Officer Executive Officer

ATTEST: ATTEST:

Name: Name:

PAN AM SHUTTLE, INC.

sy fel tS

Name: Thomas G. Plaskett

Title: Chairman and Chief

Executive Officer

ATTEST:

Name:

AN AM CORPORATION

BY: _/s/ T.G. Plaskett

Name: Thomas G. Plaskett

Title: Chairman and Chief

Executive Officer

ATTEST:

Name:

5a

U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

New York District Office

David M. Criley Charge No. 160-92-1398

124 Hillcrest Avenue

Kentfield, CA 94904 Charging Party

Delta Airlines Respondent

P.O. Box 20530

Hartsfield International Airport

Atlanta, GA 30320-2530

DETERMINATION

Under the authority vested in me by the Commission, I issue

the following determination as to the merits of the subject

charge filed under The Age Discrimination in Employment Act

(ADEA)

” ” *

The investigation disclosed no evidence that Respondent

intentionally excluded the most senior pilots, nor that Respon-

dent intentionally excluded the oldest pilots. Unintentional ex-

clusion of many of the most senior pilots took place because

the most senior pilots were flying equipment which Respon-

dent does not utilize, and they were therefore not current on

the equipment which Respondent does utilize.

Respondent requested that Charging Party’s former

employer provide them with pilots for the equipment being

purchased, and gave a deadline of November 1, 1991 for these

pilots to be qualified to fly Respondent’s equipment.

6a

* *

The evidence gathered during the investigation does not

disclose that Respondent intended to discriminate against

Charging Party individually, nor against the most senior pilots

as a group. and the ages of the pilots actually hired does not

lead to a presumption that there was intent to exclude the

oldest pilots or the most senior pilots.

Based on this analysis, I have determined that the evidence

obtained during the investigation does not establish a viola-

tion of the statute.

JAN 15 1993 s/ Spencer H. Lewis, Jr.

Date Spencer H. Lewis, Jr.

District Director

cc: William H. Boice, Esq.

Kilpatrick & Cody

1100 Peachtree Street

Atlanta, GA 30309-4530

Deborah M. Neubert, Esq.

Updike, Kelly & Spellacy

One Century Tower

265 Church Street

New Haven, CT 06510-7002

enclosure: information sheet on

filing suit in federal

district court

7a

To be argued by

LEONARD N. FLAMM

96-7110

IN THE

United States Court of Appeals

FOR THE SECOND CIRCUIT

DAVID M. CRILEY; RONALD G. FITCH; DAVID E.

JONES; CONSTANTINE G. VLAHAKIS, individually and

on behalf of all other persons similarly situated,

Plaintiffs-Appellants,

V.

DELTA AIR LINES, INC.; AIR LINE PILOTS

ASSOCIATION INTERNATIONAL,

Defendants-Appellees.

On Appeal from the United States District Court

for the Eastern District of New York

BRIEF FOR PLAINTIFFS-APPELLANTS DAVID M. CRILEY;

RONALD G. FITCH; DAVID E. JONES; CONSTANTINE G.

VLAHAKIS, INDIVIDUALLY AND ON BEHALF OF ALL

OTHER PERSONS SIMILARLY SITUATED

LAW OFFICES OF

LEONARD N. FLAMM

Attorneys for

Plaintiffs-Appellants

880 Third Avenue

LEONARD N. FLAMM Suite 1300

NORMAN MEDNICK New York, New York 10022

MARIA D. BECKMAN (212) 752-3380

On the Brief

8a

* * *

. Delta has mischaracterized the instant case as one involv-

ing a ‘‘failure to hire’’; in fact, the age discrimination occur-

red before the hiring took place.!”. . .

Sad +

Ldated: Apnl 18, 1996 Respectfully Submitted,

New York, New York

THE LAW OFFICES OF

LEONARD N. FLAMM

Attorneys for Plaintiffs-

Appellants

880 Third Avenue

(Suite 1300)

New York, NY 10022

(212) 752-3380

On the Brief: BY: /s/ Leonard N. Flamm

Leonard M. Flamm Leonard N. Flamm

Norman Mednick (LF-9523)

Mana D. Beckman