Petition for Writ of Certiorari — Emerson v. Delta Airlines, Inc.

Le 8 mini

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

JOHN ALAN EMERSON,

Petitioner,

Vv.

DELTA AIRLINES, INC., et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

John Alan Emerson

Pro Se Petitioner

6317 Steepleride Court

Riverdale, Georgia 30296

(770) 996-4035

i

QUESTIONS PRESENTED

Whether a claim for age harassment is actionable under the Age

Discrimination in Employment Act (“ADEA”).

Whether the mixed motive standard is applicable to age

discrimination claims under ADEA.

Whether the “decisional process” involving age discrimination

claims is limited to the employment termination decision.

Whether the vicarious liability standard is applicable to age

discrimination claims under ADEA.

Whether the equitable tolling standing is applicable to Title VII

and Section 1981 claims.

iii

il

PARTIES TO THE PROCEEDINGS

In addition to the parties named in the caption, Donald Wesley

Hamel and Larry Stowers are parties in this case.

iil

TABLE OF CONTENTS

Page

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EERE OS A l

Statement of Jurisdiction ........ Laan SOLE RE AA Shs VOR OCECES l

Constitutional and Statutory Provisions Involved ................ 2

ae SE as kd natn 6 bak bc end oan cae ae °

A. ne +

B. er 5

SR Seg oS eee ee ean 8

A. Emerson’s Age Harassment Claim

Is Actionable Under The Age Discrimination

In Employment Act (“ADEA”) ...............0.. 8

B. The Mixed Motive Standard Is Applicable

To Age Discrimination Claims Under ADEA. ..... 10

i. The Statements Of Emerson’s Supervisor

Concerning Getting Rid Of The Older Mechanics

Were Direct Evidence Of Age Discrimination ..... 13

D. The Vicarious Liability Standard Is Applicable

To Age Discrimination Claims Under ADEA ...... 15

E. The Equitable Tolling Standard Is Applicable

To Title VII And Section 1981 Claims. ........... 16

ES CE ga Pe PN 17

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

iV

APPENDIX

Decision Denying Petition for Rehearing ......

Judgment of the United States Court of

Appeals for The Eleventh Circuit ............

Final Decision of the United States District

Court for the Northern District of Georgia .....

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Sect Wih ha ieseih tT ARC RIEE 6 iat Sa sas

TABLE OF CITATIONS

Cases Cited: Page

Browning v. President Riverboard Casino-Missouri:

139 F.3d 631, 634 (8" Cir. 1998)... 00... cece eee 10.13

Compston v. Borden, Inc.

S24 T. SU. TSF CG CO BSG vv on ko ck kek vce hanna 9

EEOC v. Alton Packaging Corp.,

S01 Fa SIO CEE Ge, TO w vo kc ki nc a thn cess 10

Faragher v. City of Boca Raton,

eh ee Eee) ee 15

Firefighter Institute for Racial Equality v. St. Louis,

SORT... 20 SOO Cae. FR ica os os ee a 8

Hanis v. Forlife Sys.

SEO US. 07, TRG BR SOT LIS? oc oh oes va esaca 9

Haysman v. Food Lion, Inc.

was ©. Sep, FOR CD. Oe, FRG o) ns i oy cw sees beveacs 9

McDonnell Douglas Corp. v. Green,

QE) US. POG Fe a BT a ks oe ce kena edad 10

Meritor Sav. Bank. FSB v. Vinson,

477 U.S. GO, FOG B. Gh: SISO CRI) vk vk oc cna naccnas 8

O*Connor v. Consolidated Coin Caterers, Corp.,

rIWASR. Fe: MS Re RR ek re 15

Price Waterhouse v. Hopkins,

490 U.S. 228, 109 S.Ct. 1775 (1989)... .....00... 10,11, 13

Rababaugh v. Zip Feed Mills, Inc.

O97 F-26004 (B Cie. 1993) 5 ook cou ccc vc ce ceksannns 10, 11

Rogers v. EEOC

REAP te OTE ivi kb ese se kee 8

Zipes v. Trans World Airline, Inc.

O55 CES. Ses, 02S. GA. Ear Cie) kwds ac ducees«avsns 16

vi

United States Constitution Cited:

Fourteenth AmenGiiel ooo ccc acd cévnes os ben¥eeaeeeaeee 2

Statutes Cited:

Witte Vib ka sc caueteyh ss een eee 2, 8,11

ADEA ©. éscseibewsnse sehen eee 2,11, 14

29 U.S.C. Seetion Glo GAN sos kin tbcsess eee 2

42 USC. Seeeee 1960 «seeks (ss edcuseseseee 3

42 U.S.C. Section 200GS-ZIONT) cis cccccuuccudeectswae 2

28 U.S.C. Section TESST sive cease a eee eae l

42 U.S. Section ZUG svcd nk daxvcessas eee 1]

42 U.S.C. Sect Des “sha ca wcnddavesecedeeeeeeee 1]

29 U.S.C. Goctiom Ga) nn i dacicsae eee 15

" Aeon ered ese Nans ln -0id PulrAinneretinbtaniones Sone

Petitioner, John Alan Emerson, respectfully requests that a writ

of certiorari be issued to review the judgment of the United States Court

of Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

No opinion was filed by the United States Court of Appeal for the

Eleventh Circuit. The appellate decision denying the motion for

rehearing is found in Appendix A. The appellate decision affirming the

order of the district court is found in Appendix B. The district court’s

final order is found in Appendix C.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for the

Eleventh Circuit was entered on March 23, 1999. A timely petition for

rehearing was denied on July 2, 1999. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

2 |

= :

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the United States Constitution

provides in relevant part:

... nor shall any state ... deny to any person

within its jurisdiction equal protection of

the laws.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-

2(a)(1) provides in relevant part:

...{i]t shall be an unlawful 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 Age Discrimination in Employment Act of 1967 (“ADEA”),

29 U.S.C. 623 (a)(1) provides in relevant part:

It shall be unlawful for an employer ... to

fail or refuse to hire or to discharge any

individual with respect to his

compensation, terms, conditions, or

privileges of employment, because of such

individuals’ age.

F

a

3

42 U.S.C. § 1981 provides in relevant part:

... all persons ... shall have the same right

to make and enforce contracts ... enjoyed

by white citizens.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. Course of the Proceedings

On or about September 6, 1994, John Alan Emerson, filed his

employment discrimination compliant in the office of the Equal

Employment Opportunity C ommission. Emerson complained of age and

race discrimination. The EEOC did not find cause for discrimination and

issued Emerson a “right to sue letter.”

On or about August 1, 1996, Emerson filed a civil complaint in

the district court alleging that his employer, Delta Air Lines, Inc.

(Delta’), supervisor, Donald Wesley Hamel (“Hamel”) and co-worker,

Larry Stowers, (“Stowers”), violated his rights under the Age

Discrimination in Employment Act (“ADEA”), Influenced Corrupt

Organization Act (“RICO”) and the Thirteenth Amendment to the United

States Constitution Title VII and Section 1981. Prior to discovery, Delta,

Hamel and Stowers moved to dismiss Emerson's RICO claim on the

ground that it was not specifically alleged in the compliant. They also

moved to dismiss Emerson’s Section 1981, Title VII and constitutional

claims on the ground that they were barred by the statute of limitations.

Hamel and Stowers further moved to be dismissed as parties to

Emerson’s ADEA on the ground that they were not Emerson’s employer

under the Act. The defendant's further complained that they were

entitled to attorney fees against Emerson and his attorney.

5

The district court granted the defendant’s motion to dismiss

Emerson's RICO, Title VII, Section 1981 and constitutional claims. The

court also dismissed Hamel and Stowers as parties to Emerson’s ADEA

claim. The court granted the defendants’ request for attorney’s fees

against Emerson and his counsel.

Following the discovery period, Delta moved for summary

judgment. Emerson filed a partial response to the motion because Delta

Was not compelled by the district court to produce relevant documents

and information which Emerson needed to file a complete response to

the motion. The district court adopted the magistrate’s recommendation

and granted Delta summary judgment on Emerson’s age discrimination

claim.

Emerson appealed the final judgment of the district court to the

Eleventh Circuit Court of Appeals. The appellate court denied Emerson’s

appeal on March 23, 1999. Emerson’s request for a rehearing was denied

on July 2, 1999,

B. Statement of the Facts

Emerson, an old white male, worked as a mechanic for Delta in

Department 587 from February 5, 1980 through March 9, 1994. Hamel,

a young white male, was Emerson’s immediate supervisor. Prior to his

election as Emerson’s supervisor, Hamel told other Delta mechanics

under the age of forty (40) that he intended to get rid of the older

mechanics in Department 587. The old mechanics who Hamel named

were Emerson, Ron Etchinson, Steve Lahr, Matthew Flanigan, James

Verock and John Buchanan. These mechanics were over the age of forty

(40). Buchanan heard Hamel make the age statements on the employees

bus. Buchanan told Emerson about Hamel’s statements. Buchanan,

Mies

6

Ftchinson and Brian Davis heard Hamel state after he was elected

supervisor that he intended to get rid of the old mechanics. Emerson,

Flanigan and Lahr were old mechanics specifically named by Hamel.

Buchanan. Etchinson and Davis told Emerson about the statements

concerning Hamel’s desire to get rid of Emerson and other old

mechanics.

In his position as supervisor, Hamel was responsible for assigning

certain job tasks to Emerson and other mechanics working under his

supervision. Hamel assigned Emerson and the other old mechanics the

least desirable job tasks. They were frequently assigned to repair the

sanitation vehicles and heavy equipment. Hamel also prohibited Emerson

from working over-time, going to the credit union on company time and

driving the company’s vehicle to the cafeteria. Hamel provided these

company benefits to younger mechanics. Emerson believed that he was

denied said benefits because of his age and the race of his wife, a dark-

skin Hispanic female.

Hamel also subjected Emerson to a hostile work environment.

Hamel frequently used profanity and abusive language when he directed

Emerson to perform job tasks. Hamel frequently referred to Emerson

and the other mechanics over the age of forty (40) as “old fuckers”. On

several occasions, Hamel referred to Emerson’s wife as a nigger. On

March 9, 1994, Hamel cursed Emerson in the presence of other workers.

When Emerson went to the foreman’s office to phone his foreman, and

report Hamel’s misconduct, Hamel grabbed the phone receiver, hit

Emerson in his face and physically assaulted Emerson. Hamel falsely

reported to the foremen that Emerson struck him with a work tool.

Hamel persuaded Stowers, a younger mechanic, to falsely state that he

saw Emerson swing the work tool. Hamel and Stowers made these false

statements when they testified during Emerson’s criminal trial.

7

During Delta’s investigation of the altercation involving Emerson

and Hamel, Flanigan and Etchinson reported to the foremen that Hamel

had made statements prior to the altercation that he intended get rid of

Emerson and the other old mechanics. Emerson also told the foremen

about the abuse which Hamel had subjected him to during work hours.

Delta decided that it would not protect Emerson and terminated his

employment. Hamel was allowed to continue his employment with Delta

as supervisor of the mechanics. Flanigan and Etchinson told the foremen

that they feared Hamel would continue his mission to get rid of them

because of his prior age statements and his success in getting Emerson

terminated. The foremen took no action against Hamel.

After Emerson was terminated, Delta hired five young mechanics

in Department 587. Peter Sutherland. age 24, was hired on October 14.

1994. Chris Little, age 26, was hired on May 22, 1995, Jayson Choat, age

22, was hired on November 1, 1995, and Damon Oden, age 21, was hired

on February 5, 1996. Delta paid each of these young mechanics about

one-third of what it paid Emerson. Emerson was forty-two years of age

When he was terminated by Delta. Hamel was in his middle thirties at the

time of Emerson’s termination.

ARGUMENT

A. Emerson’s Age Harassment Claim Was Actionable

In The District Court.

Emerson maintained in the district court and Eleventh Circuit that

the defendants, Delta Airlines, Donald Hamel, supervisor, and Larry

Stowers, co-worker, created a hostile work environment for him and other

mechanics who were over the age of forty (40). The lower courts did not

recognize the age harassment claim. Emerson was not allowed to

prosecute his age harassment claim in district court because the lower

courts did not believe that an age harassment claim was actionable.

The lower courts erred when they did not recognize Emerson’s

age harassment claim. Title VII protects employees from discriminatory

intimidation, ridicule, and insult in the workplace. Rogers v. EEOC, 454

F.2d 234 (5" Cir. 1971). In Rogers, the Fifth Circuit Court of Appeals

explained:

(T]he phrase “terms, conditions or privileges of

employment” in [Title VII] is an expansive

concept which sweeps with its protective ambit

the practice of creating a working environment

heavily charged with ethnic or racial

discrimination as to destroy completely the

emotional and psychological stability of minority

group workers ...

Id. at 238. In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 60, 106 S.Ct.

2399 (1986), this court applied the hostile work environment principle to

a sex discrimination claim. In Firefighter Institute for Racial Equality v.

St. Louis, 549 F.2d 506, (8yh Cir. 1977), the Eighth Circuit Court of

3

eee

9

Appeals applied the hostile work environment principle to a race

discrimination claim. The principle has also been applied by lower courts

to religion and disability claims. Compston v. Borden, Inc, 424 F. Supp.

157 (S.D. Ohio 1976) (religion); Haysman v. Food Lion. Inc., 893 F.

Supp. 1092 (S.D. Ga. 1995) (disability).

There is no language in Title VII or ADEA which would bar an

age harassment claim. In Hanis v. Forklife Sys., 510 U.S. 17, 21, 114

S.Ct. 367, 370 (1993), this court held that a claim for hostile work

environment is established when the discriminatory conduct is

“sufficiently severe or pervasive to alter the victim’s employment and

create an abusive working environment.” This principle is applicable to

age discrimination claims. Id.

This court should review this case to clarify the misunderstanding

of the Eleventh Circuit concerning ADEA’s protection of persons from

age harassment in the workplace. Clarification is needed because the

Eleventh Circuit refuses to recognize age harassment claims. The

Eleventh Circuit’s position concerning age harassment is contrary to the

above hostile work environment decisions of this court and the Fifth and

Eighth Circuits. If this issue is not clarified. the Eleventh Circuit will

continue to reject age harassment claims which are actionable under

ADEA. The employees who are subjected to age harassment in the

Eleventh Circuit will continue to receive less protection of their

constitutional and statutory rights than employees who are subjected to

workplace harassment based on race, religion, sex and disability if the

Eleventh Circuit is not directed to apply hostile work environment

principle to age discrimination claims. The Eleventh Circuit will only

change its position conceming age harassment when such claim is

expressly and directly recognized by this court.

10

B. The Mixed Motive Standard Is Applicable

To Age Discrimination Claims Under ADEA.

The district court and the Eleventh Circuit erred in not applying

the mixed motive standard to Emerson’s age discrimination claim. These

lower courts do not believe that the mixed motive standard apply to age

discrimination claims. The lower courts rely solely on the burden shifting

framework of McDonnell Douglas v. Green when analyzing an age

discrimination claim. Id. 411 U.S. 792, 93 S.Ct. 1817 (1973). The

Eleventh Circuit’s position concerning the application of the mixed

motive principle to age discrimination claims is contrary to the position

of this court and the Eighth Circuit.

This court established the mixed motive standard in Price

Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775 (1989). This court

held that an unlawful employment practice is established when an

individual demonstrates that an illegitimate criterion was a motivating

factor in an adverse employment action, even though other factors also

motivated the action. In Price Waterhouse, this court applied the mixed

motive standard to a sex discrimination claim. Id. In Browning v.

President Riverboat Cainso-Missouri. 139 F.3d 631 (8" Cir. 1998), the

Eighth Circuit applied the mixed motive standard to a race discrimination

claim. In Rababaugh v. Zip Feed Mills, Inc., the Eighth Circuit applied

the mixed motive standard to an age discrimination claim. 997 F.2d 444

(8" Cir. 1993).

The Eleventh Circuit has applied the mixed motive standard to a

race discrimination claim. EEOC vy. Alton Packaging Corp., 901 F.2d

920 (11" Cir. 1990) The Eleventh Circuit does not believe that this

standard applies to claims of age discrimination. This belief is contrary

a eee

1]

to this court’s holding in Price Waterhouse and the Eighth Circuit’s

decision in Browning and Radabaugh. Id.

The Eleventh Circuit's refusal to apply the mixed motive standard

to age discrimination claims is also contrary to Section 107 of the Civil

Rights Acts of 1991, 42 U.S.C. Section 2000d-2(m). This code section

also provides that an unlawful employment practice is established when

an individual demonstrates that an illegitimate criterion was a motivating

factor in an adverse employment action, even though other factors also

motivated the action. The Age Discrimination in Employment Act of

1967, 29 U.S.C. Section’s 621-634 (1988) (“ADEA”) forbids

employment discrimination against workers aged forty and older.

Radabaugh, at 448. The allocation of the burden of proof in ADEA

cases 1s the same as in cases arising under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. Sections 2000e to 2000e-17 (1988). Id at 448.

Thus, the mixed motive standard of Section 107 would apply to age

discrimination claims.

The pretext framework that the district court and Eleventh Circuit

applied to Emerson’s age discrimination claim differs from the mixed

motive standard established in Price Waterhouse and Section 107 of the

Civil Rights Act of 1991. Radabaugh, at 448. In the pretext case, the

plainuff employee must show an illegitimate factor led to the adverse

employment decision. Price Waterhouse, 490 U.S. at 247, 109 S. Ct. at

1789. In the mixed-motive cases, the plaintiff must show that the adverse

employment decision was “the product of a mixture of legitimate and

illegitimate motives.” Id. at 490 U.S. 247, 109 S.Ct. 1788. There will

rarely be a case where the plaintiff will be able to show that an

illegitimate factor was the sole reason for the adverse employment action.

Because of this onerous burden, the lower courts usually will grant

summary judgment to the defendants in pretext cases. In contrast, most

| 2)

employment discrimination cases involve mixed motives. In these cases,

the plaintiff employees more likely will offer sufficient evidence that an

iegitimate factor motivated the adverse employment decisions. Such

evidence would allow the plaintiffs to overcome motions for summary

judgments 1n most cases.

This court should review this case so that it can clarify for the

district court and the Eleventh Circuit the application of the mixed motive

standard to age discrimination claims. The Eleventh Circuit's refusal, to

apply the mixed motive standard to age discrimination claims

substantially affects the right to a jury trial for every plaintiff who file

these claims in the Eleventh Circuit. By not applying the mixed motive

standards, the district courts in the Eleventh Circuit are able to unfairly

dispose of most age discrimination claims on summary judgment. These

courts probably view jury trials on age claims as a burden on the court

system. Such view is contrary to the plaintiff employee’s rights to a jury

trial on his age discrimination claim. The Eleventh Circuit will not apply

the mixed motive standard unless it is directed to do so by this court. If

this court does not provide those directions, most age discrimination

plaintiffs in the Eleventh Circuit will be unfairly denied their rights under

ADEA, and their right to a jury trial on their age claims. This court

should not permit the Eleventh Circuit to provide the age discrimination

plainuffs with less protection of their statutory and constitutional rights

than is provided similar plaintiffs in the Eighth Circuit. Age

discrimination plaintiffs in the Eleventh Circuit should not be denied

equal protection of their rights under ADEA.

EDO EO aE

13

[ The Statements of Emerson's Supervisor Concerning

Getting Rid of The Older Mechanics Were Direct

Evidence of Age Discrimination.

The district court and the Eleventh Circuit erred in concluding

that the statements of Emerson’s supervisor concerning getting rid of

Emerson and other old mechanics were not direct evidence of age

discrimination. The lower courts believed that Emerson's supervisor was

a “nondecisionmaker.” The lower courts stated that Emerson’s

Supervisor did not participate in the termination decision and did not

possess authority to hire and fire Deltaemployees. The evidence showed

that Emerson’s supervisor created a hostile work environment for

Emerson and other mechanics over forty years of age. The evidence also

showed that the supervisor initiated the physical altercation which was

the stated reason for Emerson's employment termination. The evidence

further showed that the supervisor falsely reported to the person who

made the final termination decision that Emerson initiated the altercation.

Delta relied on this false report to justify the termination decision.

“Direct evidence” is “conduct or statements by persons involved

in the decisionmaking process that may be viewed as directly reflecting

the alleged discriminatory attitude ... sufficient to permit the fact finder

to find that attitude was more likely than not a motivating factor in the

employer's decision.” Browning v. President Riverboat Casino-Missouri,

139 F.2d 631, 634 (8" Cir. 1998). Direct evidence does not include

“stray remarks in the workplace,” statements by nondecision makers,” or

“statements by decisionmakers unrelated to the decisional process itself.”

Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 1805

(1989) (O’Connor, J. concurring).

14

This court has not defined the term “nondecisionmaker.” Justice

O’Conner’s statement about “decisionmakers” in Price Waterhouse

Suggests that a person who does not participate in the “decisional

process” is a“nondecisionmaker.” The term “decisional process” has not

been defined by this court. Is the term limited to termination decisions?

Are other adverse employment decisions (reprimands, demotions,

suspensions, allocation of assignments, harassment by supervisor) part of

the process? Is unlawful conduct by a supervisor which leads to a

termination decision part of the process? The lower courts have not

answered these questions. There is no uniform standard for determining

what constitutes the “decisional process.”

The Eleventh Circuit and the district court limited the term to

direct participation in the decision to terminate Emerson’s employment.

The Age Discrimination in Employment Act of 1967 protects persons

aged forty and older from employment discrimination. An employer’s

knowing and informed toleration of age harassment constitutes evidence

of age discrimination. Price Waterhouse, at 109 S.Ct. 1794. There is no

language in ADEA which limits protection to an unlawful termination

decision. Id. The Eleventh Circuit and the district court improperly

excluded other unlawful decisions of the supervisor from the mandate of

ADEA, by limiting the definition of “decisionmaker” to persons who

make the employment termination decision.

This court should review this case for the purposes of defining the

terms “nondecisionmakers” and “decisional process” and establishing a

uniform standard for determining what constitutes “stray remarks.” The

circuit courts have been unable to uniformally determine what constitutes

the “decisional process” and “stray remarks.” A uniform standard is

needed to fully protect the rights of old persons under ADEA. Without

a uniform standard, certain employees over the age of forty (40) will

15

receive less protection of their statutory and constitutional rights than

other age protected employees.

D. Vicarious Liability Standard Is Applicable To

Age Discrimination Claims.

The district court and Eleventh Circuit erred when they refused to

apply the vicarious liability standard to Emerson’s age discrimination

claims. These lower courts did not believe that the vicarious liability

standard applied to claims of discrimination based on age. The evidence

showed that Emerson’s supervisor created and maintained a hostile work

environment for Emerson and other workers over the age of forty (40).

The evidence also showed that De!ta had knowledge of the supervisor’s

unlawful conduct but took no action to protect Emerson and the other old

mechanics from Hamel, the supervisor.

The court established the vicarious liability standard for

employment discrimination case in Faragher v. City of Boca Raton,

__US.____, 118 S.Ct. 2275, 2280 (1998). In Faragher, the plaintiff

employee contended that the employer was vicariously liable for the

supervisor’s discriminatory conduct. Id. This discrimination was based

on sex. Id. This court held in Faragher that an employer is vicariously

liable for actionable discrimination caused by a supervisor. Id. This

court suggested in O’Connor v. Consolidated Coin Caterers Corp.. 517

U.S. 878, 116 S.Ct. 1307 (1996) that the standards applicable to Title VII

claims are also applicable to age discrimination claims filed under

ADEA. In O’Connor, this court assumed that the burden of proof

standard in ADEA case was the same as in cases arising under Title VII.

§17 U.S. at 878, 116 S.Ct. at 1310. In Faragher, this court did not

indicate that the vicarious liability standard was limited to Title VII

claims. Id. There is no language in ADEA which bars the application of

16

the vicarious liability standard to claims of age discrimination. 29 U.S.C.

sections 621-623 (1988). The vicarious liability standard is applicable to

age discrimination claims.

This court should review this case so that it can clarify the

application of the vicarious liability standard to age discrimination

claims. The Eleventh Circuit will not apply the vicarious liability

standard to claims of age discrimination until this court expressly decides

that the standard is applicable to such claims. If this court does not

expressly hold that the vicarious liability standard applies to age

discrimination claims, the plaintiff employees who file these claims in

federal courts will receive less protection of their constitutional and

statutory rights than plaintiffs who file claims under Title VII. This court

should not permit the Eleventh Circuit to continue denying the age

discrimination plaintiffs equal protection of federal laws.

E. Equitable Tolling Standard Is Applicable To Title VII

And Section 1981 Claims.

The district court and the Eleventh Circuit refused to apply the

equitable tolling standard to Emerson’s Title VII and Section 1981 claims

of discrimination based on the race of his wife. The lower courts’

inaction was contrary to this court’s decision in Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127 (1882). In Zipes, this court

held that the statue of limitations is subject to equitable tolling when the

plaintiff was not aware of the constitutional violation during the initial

limitations period. Id. at 455 U.S. 393, 102 S.Ct. 1132. The district court

and Eleventh Circuit did not believe that the equitable tolling standard

applied to discrimination claims. This court needs to clarify the

application of the equitable to the standards to Title VII and Section 1981

claims for the Eleventh Circuit. This court should not permit the Eleventh

17

Circuit to continue denying plaintiff employees equal protection of

statutory and constitutional laws. The equitable tolling standard should

be applied equally to all federal civil plaintiffs. The Eleventh Circuit will

not apply the equitable tolling standard to discrimination claims until it

is directed to do so by this court. This case gives the court an opportunity

to provide those directions to the Eleventh Circuit.

CONCLUSION

For the reasons stated above, the pro se petitioner respectfully

urges this court to grant this petition for writ of certiorari for the purpose

of reviewing the important issues raised herein.

This 30" day of September, 1999.

Submitted by

of Alan Emerson

Pro Se Petitioner

6317 Steepleridge Court

Riverdale, Georgia 30296

(770) 996-4035

la

Appendix A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[Filed July 2, 1999]

No. 98-8966

JOHN ALAN EMERSON,

Plaintiff-Appellant,

Versus

DELTA AIRLINES, INC.,

DONALD WESLEY HAMEL,

Defendants-Appellees.

On Appeal from the United States District Court for the

Northern District of Georgia

ON PETITION(S) FOR REHEARING AND PETITION(S) FOR

REHEARING EN BANC

(Opinion , i eae

F.2d )

Before: TIOFLAT, EDMONDSON, and COX, Circuit Judges.

PER CURIAM:

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 Petition(s) for

Rehearing En Bane are DENIED.

ENTERED FOR THE COURT:

E.R. Cox [Signed]

UNITED STATES CIRCUIT JUDGE

Ib

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-8966

Non-Argument Calendar

District Court Docket No. 1:96-CV-1939

[Filed March 15, 1999]

JOHN ALAN EMERSON,

Plaintiff-Appellant,

versus

DELTA AIR LINES, INC..,

DONALD WESLEY HAMEL,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Georgia

Before TJOFLAT, EDMONSDSON and COX, Circuit Judges.

JUDGMENT

This cause came to be heard on the transcript of the record from

the United States District Court for the Northern District of Georgia, and

was taken under submission by the Court upon the record and briefs on

flie, pursuant to Eleventh Circuit Rule 34-3:

UPON CONSIDERATION WHEREOF , it is now hereby ordered

and adjudged by this Court that the order of the District Court appealed

from in this cause be and the same is hereby AFFIRMED;

IT IS FURTHER ORDERED THAT plaintiff-appellant pay to

defendants-appellees, the costs on appeal to be taxed by the Clerk of this

Court.

Entered: March 15, 1999

For the Court: Thomas K. Kahn, Clerk

By:_Matt Davisdon [ Signed]

Deputy Clerk

ISSUED AS MANDATE:

Ic

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

[Filed June 19, 1998]

John Alan Emersion,

Plaintiff .

: CIVIL ACTION

v. > NO. 1:96-CV-1939-JTC

Delta Air Lines, Inc., Donald

Wesley Hamel and Larry Stowers, :

Defendants

ORDER

This case is before the Court on the Magistrate’s Report and

Recommendation [#31-1], Plaintiff's Objections thereto [#35-1], and

Delta’s Motion for Summary Judgment [#32-1].

I. Facts and Procedural Background

This case arises from Plaintiff's employment with, and ultimate

termination by, Defendant Delta Airlines (“Delta”). For almost twenty

years, Plaintiff worked for Delta as a mechanic. At the time he was

discharged, Plaintiff was forty-six years old.

Delta contends that Plaintiff was discharged because he assaulted

his immediate supervisor, Defendant Hamel. According to the evidence

—_—_——_Eo

submitted by Delta, on March 9, 1994, Defendant Hamel observed

Plaintiff reading a magazine and instructed him to return to work. Delta

contends that Defendant Hamel’s instruction caused an argument to

ensue. According to Delta’s evidence, Plaintiff eventually pursued

Defendant Hamel into his office and struck him in the head with a

crowbar. Delta notes that, based on this incident, Plaintiff was charged

with, and convicted of, misdemeanor assault.

Despite his conviction, Plaintiff denies that he assaulted

Defendant Hamel. First, although he does not deny that an altercation

occurred between himself and Defendant Hamel, Plaintiff claims that

Defendant Hamel initiated the altercation. In addition, Plaintiff denies

that he struck Defendant Hamel with a crowbar. Indeed, Plaintiff devotes

a substantial portion of his summary-judgment brief to impeaching the

testimony of the witnesses who corroborated Delta’s version of the

altercation.

Plaintiff also denies that this incident prompted his termination.

Plaintiff contends that Delta conspired to discharge the older mechanics

in order to hire younger mechanics who earned lower salaries. In support

of this theory, Plaintiff claims that Defendant Hamel, Plaintiff's

immediate supervisor, stated that once he became a supervisor he as

going to “get rid of the old mechanics.”

Based on this theory, Plaintiff filed his complaint in this case. In

his complaint, Plaintiff asserted claims against Delta, Defendant Hamel,

and Defendant Stowers, another Delta employee, under 42 U.S.C. §§

1981, 1983, 1985, and 1988; Title VII; RICO; the Thirteenth

Amendment; and the Age Discrimination in Employment Act (“ADEA”).

In an Order dated August 20, 1997, this Court adopted the

Magistrate’s recommendation and dismissed all of Plaintiff's claims

except his ADEA claim against Delta. Defendants now move for

sanctions based primarily on Plaintiff's initial compliant. In addition,

es ee as Seth

Delta moves for summary judgment on Plaintiff's remaining claim.

Il The Magistrate’s Report and Recommendation

The Magistrate recommended that this Court grant Delta’s Motion

for Sanctions [#15-1] and deny Plaintiff's Motion to Compel [#19-1].

In its motion, Delta alleges numerous grounds for the imposition

of sanctions. Specifically, Delta notes that Plaintiff asserted §§ 1981 and

19859b) (3) claims that were time barred, asserted a claim under the

Thirteenth Amendment despite a complete absence of any state action,

and asserted a Title VII claim without filing an appropriate EEOC charge.

In addition, Delta notes that Plaintiff asserted Title VI] and ADEA claims

against individual Defendants Hamel and Stowers despite clear Eleventh

Circuit authority holding that individual employees are not “employers”

under federal employment-discrimination law. Finally, Delta notes that

Plaintiff asserted a RICO claim without pleading any of the requisite

elements of a RICO claim. Based on these allegations, Delta requests

$6,500 in attorneys’ fees as a sanction.

After this Court dismissed the claims described above, the

Magistrate held a hearing on the sanctions issue. Neither Plaintiff nor

Plaintiff's counsel appeared for this hearing, and neither has offered an

explanation for their absence. Subsequently, the Magistrate granted

Defendant’s motion and awarded Defendant $1,000 in attorneys’ fees.

In accordance with 28 U.S.C. § 636 (b)(1) and Rule 72 of the

Federal Rules of Civil Procedure, this Court has conducted a careful, de

novo review of the Magistrate’s recommendation to grant Defendants’

Motion for Sanctions [#15-1] and deny Plaintiff's Motion to Compel

[#19-1]. After a thorough review of Plaintiff's objections, this Court

concludes that the Magistrate’s Report and Recommendation is correct

in all material respects. Indeed, this Court finds that, given the nature of

Plaintiff's complaint, the Magistrate exercised considerable restraint in

awarding Defendant only $1,000 in fees. Accordingly, this Court hereby

ADOPTS the Magistrate’s Report and Recommendation as the opinion

of this Court. Plaintiff's objections are OVERRULED.

For the reasons stated in the Magistrate’s Report, Defendants’

Motion for Sanctions [#15-1] is GRANTED and Plaintiff's Motion to

Compel [#19-1] is DENIED. Defendant is awarded $1,000 in fees. As

recommended by the Magistrate, Plaintiff and Plaintiff's counsel shall be

jointly and severally liable for this sanction.

III. Motion for Summary Judgment on Plaintiff's ADEA Claim

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure defines the

standard for summary judgment: Courts should grant summary judgment

When “there is no genuine issue as to any material fact ... and the moving

party is entitled to judgment as a matter of law.” The substantive law

applicable to the case determines which facts are material. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The district court should

‘resolve all reasonable doubts about the facts in favor of the non-movant,’

... and draw ‘all justifiable inferences ... in his favor ...°” United States v.

Four Parcels of Real Property, 941 F.2d 1428, 1437 (11" Cir. 1991). The

court may not weight conflicting evidence nor make credibility

determinations. Hairston v. Gainesville Sun Publ. Co., 9 F.3d 913, 919

(11" Cir. 1993), rh’g denied, 16 F.3d 1233 (1994) (en banc).

As a general rule, “[the] party seeking summary judgment always

bears the initial responsibility of informing the district court of the basis

for its motion, and identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, ‘which it believes demonstrate the absence of

a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). However, the moving party’s responsibility varies depending

upon which party bears the burden of proof at trial on the issue in

$ ,

question.

For issues upon which the moving party bears the burden of proof

at trial, the moving party must affirmatively demonstrate the absence of

a genuine issue of material fact as to each element of its claim on that

legal issue. It must support its motion with credible evidence that would

entitle it to a directed verdict if not controverted at trial. If the moving

party makes such a showing, it is entitled to summary judgment unless

the non-moving party comes forward with si gnificant, probative evidence

demonstrating the existence of an issue of fact. Fitzpatrick v. City of

Atlanta, 2 F.3d 1112, 1115 (11" Cir. 1993) (quoting Four Parcels, 941]

F.2d at 1437-38).

On the other hand, when the non-moving party bears the burden

of proof at trial, the moving party is not required to support its motion

with affidavits or other similar material negating the opponent’s claim.

Instead, the moving party may simply point out to the district court that

there is an absence of evidence to support the non-moving party’s case on

the issue in question. Id. at 1115-16. Of course, the moving party may

offer evidence to affirmatively negate a material fact upon which the non-

movant has the burden and which is essential to its claim. In either case,

the non-moving party may not rely upon allegations or denials in the

pleadings, but instead must respond with sufficient evidence to withstand

a directed verdict motion at trial. Fed. R. Civ. P. 56(e); Hammer v.

Slater, 20 F.3d 1137, 1141 (11" Cir. 1994) (citing Fitzpatrick, 2 F.3d at

1116-17).

The mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for

summary judgment. An award of summary judgment requires that there

be no genuine issue of material fact. Anderson v. Liberty Lobby, 477

U.S. 242, 248 (1986). An issue is not genuine if it is unsupported by

evidence, or if it is created by evidence that is “merely colorable” or not

39

significantly probative.” Id, at 250. Similarly, a fact is not material

unless it is identified by the controlling substantive law as an essential

element of the non-moving party’s case. Id., at 248.

B. Plaintiffs ADEA Claim

As with claims under Title VII of the Civil Rights Act of 1964, an

ADEA Plaintiff can provide discrimination with either direct or

circumstantial evidence. Walker v. NationsBank of Fla., 53 F.3d 1548,

1555 (11" Cir. 1995). The nature of the evidence produced by the

plaintiff alters the summary-judgement analysis.

:. Circumstantial Evidence

When relying on circumstantial evidence, an ADEA plaintiff must

first establish a prima-facie case of discrimination. Elrod v. Sears

Roebuck and Co., 939 F.2d 1466, 1469 (11" Cir. 1991) (holding that the

burden-shifting framework of McDonnell Douglas v. Green, 411 U.S.

792 (1973) applies to ADEA cases). Such a showing, which gives rise

to an inference of intentional discrimination, requires that the plaintiff

establish - (1) membership in the protected class, (2) that he or she was

minimally qualified for the position held or sought, (3) an adverse

employment action, and (4) that the job was awarded to someone

‘substantially younger” than the plaintiff. Turlington v. Atlanta Gas Light

Co. 135 F.3d 1428, 1432 (11" Cir. 1998)

If the plaintiff establishes a prima-facie case, an “exceedingly

light” burden of production shifts to the defendant to articulate a

“legitimate, nondiscriminatory” reason for the defendant’s employment

decision. Walker v. NationsBank of Fla., 53 F.3d 1548, 1556 (11" Cir.

1995); Maddow v. Procter & Gamble Co. Inc., 107F 3d 846, 851 (11"

Cir. 1997) (ADEA case). At this point, the plaintiff must establish that

the proffered nondiscriminatory reason was merely a “pretext for

discrimination.” Burdine, 450 U.S. at 253; Maddow 107 F.3d at 851.

When an ADEA plaintiff claims disparate treatment in the

defendant’s administration of workplace rules, the McDonnell-Douglas

model is slightly modified. As part of establishing a prima-facie case, the

plaintiff need not establish that he or she was replaced by someone

outside the protected class. Nix v. WLCY_ Radio/Rahall

Communications, 738 F.2d 1181, 1185-86 (11" Cir. 1984). Instead, the

plaintiff must establish that another of the defendant’s employees, who

is not a member of the protected class, was disciplined differently under

similar circumstances. Id.'

Under this modified version of the Mdonnell-Douglas framework,

the plaintiff cannot establish a prima-facie case without demonstrating

that he or she was “similarly situated in all respects” to the other

employee. Nix 738 F.2d at 1185; Martin v. Teledyne Brown Eng’g 924

F. Supp. 1131 (S.D. Ala. 1996). This standard requires the plaintiff to

establish that his or her misconduct was “nearly identical” to the other

employees who were outside the protected class and were less severely

disciplined than the plaintiff. Nix 738 F.2d at 1185 (quoting Davin v.

Delta Air Lines, Inc., 678 F2d 567 (5" Cir. Unit B 1982)).

When an employer offers the violation of workplace rules as a

non-discriminatory explanation for an adverse employment decision,

whether the plaintiff actually violated the rules is largely irrelevant. Nix,

738 F.2d at 1187 (holding that evidence which established that the

plaintiff had not committed the violation of the defendant’s policy was

insufficient as a matter of law to prove discriminatory intent). Instead,

when a plaintiff claims that an employer applied work rules in a

discriminatory fashion, the issue is whether the employer possessed a

good-faith policy belief that the plaintiff violated the employer’s policy.

'The Court assumes that in an ADEA claim based on the disparate application of

workplace rules, the plaintiff can demonstrate disparate treatment with evidence that a

“substantially younger” person who is also member of the ADEA protected class was less

severely disciplined than the plaintiff for substantially the same violation. See Turlington, 135

F.2d at 1432

Elrod_v. Sears Roebuck and Co., 939 F.2d 1466, 1470 (11" Cir.

1991 )(holding that even if employees who complained that the plaintiff

was committing sexual harassment were “lying through their teeth”, the

plaintiff has not established an intent to discriminate if his employer fired

him based on a reasonable belief that he had committed sexual

harassment); Hawkins v. Ceco Corp., 883 F.2d 977, 980 n. 2 (11" Cir.

1989).

In this case, Plaintiff has failed to demonstrate a genuine issue of

material fact with circumstantial evidence of discrimination. First,

Plaintiff has failed to establish a prima-facie case of discrimination.

Second, even if Plaintiff had established a prima-facie case, Plaintiff has

failed to reference evidence that would allow a jury to conclude that

Defendant’s explanation for his termination was a pretext for

discrimination.

To the extent Plaintiff alleges that he was discharged as part of a

conspiracy to replace older mechanics with younger mechanics, Plaintiff

has failed to make a prima-facie showing of discrimination. The

Supreme Court has clarified that in order to establish a prima-facie case

of discriminatory discharge under the ADEA, a plaintiff must produce

evidence that he or she was replaced by someone “substantially younger”

than the plaintiff. O’Conner v. Consolidated Coin Caterers Corp., 517

U.S. 308, 311 (1996). Plaintiff has produced absolutely no evidence of

the age of the person who replaced him. In fact, Plaintiff has not even

alleged that he was replaced by a younger employee.

Likewise, to the extent Plaintiff attempts to assert a claim based

on the disparate application of workplace rules, Plaintiff has also failed

to establish a prima-facie case of discrimination. Plaintiff alleges that he

was terminated because of an on-the-job altercation and that other

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employees had previously engaged in altercations but were not

terminated.

A number of factors precluded basing a prima-facie showing on

these allegations. First and most importantly, Plaintiff was not

discharged for his involvement in a simple “altercation.” He was

discharged because Delta concluded that he had attacked his supervisor

with a crowbar. Plaintiff has produced no evidence suggesting that any

other Delta employee has ever attacked another employee, and caused

serious injury, but was not terminated. In addition, Plaintiff has produced

no evidence of the age of the other employees who he claims were

involved in these “altercations.” Accordingly, even if other employees

were less severely disciplined than Plaintiff for similar conduct, Plaintiff

has produced no evidence that would allow the inference that any

disparate treatment was due to Plaintiff's age.”

Despite Plaintiffs failure to create an inference of discrimination,

Delta has produced significant evidence of a non-discriminatory

explanation for Plaintiffs termination. Delta has produced records,

affidavits, and deposition testimony all of which indicate that Plaintiff

was terminated because Delta concluded that Plaintiff had struck

Defendant Hamel in the head with a crowbar. In addition, Delta

produced evidence that Plaintiff's attack of Defendant Hamel was not as

isolated incident but was emblematic of Plaintiff's inability to control his

temper.

Plaintiff has not produced sufficient evidence to allow a

reasonable jury to conclude that this explanation was merely a pretext for

? The Court notes the perversity of one of Plaintiff's specific arguments. Plaintiff

argues that Defendant Hamel was involved in al altercation - the “altercation” with Plaintiff -

but was not fired. Because Defendant Hamel is “substantially younger” than Plaintiff,

Plaintiff claims this “disparate treatment” suggests age discrimination. Again, the Court notes

that Delta did not consider Defendant Hamel and Plaintiff to be equally at fault in this

incident. Instead, Delta concluded that Plaintiff had attacked Defendant Hamel. As discussed

above. whether Delta erroneously accused Plaintiff or being the aggressor is irrelevant.

discrimination. Despite his conviction for battery, Plaintiff continues to

deny vehemently that he struck Defendant Hamel with the crowbar.

While he concedes that he was holding a crowbar during his altercation

with Defendant Hamel, Plaintiff speculates that Defendant Hamel’s head

inadvertently collided with the crowbar during the altercation. As Nix

and Elrod establish, however, even if Plaintiff's version of events is

accurate, the fact that Delta mischaracterized his dispute with Defendant

Hamel is essentially irrelevant.

2. Di ect Evidence

A different analysis applies ifan ADEA plaintiff produces “direct

evidence” discrimination. With direct evidence of an employer’s

discriminatory animus, the burden of proof shifts to the employer to.

prove that the same employment decision would have been made in the

absence of a discriminatory animus. Carter v. Three Springs Residential

Treatment. 132 F.3d 635 641 (11" Cir. 1998); Evans v. McClain of

Georgia. Inc., 131 F.3d 957, 961 (11" Cir. 1997).

Evidence that someone with hiring authority possesses racial

animosity constitutes direct evidence of racial discrimination even if the

statement does not directly relate to the plaintiff's employment. EEOC

v. Beverage Canners, Inc., 897 F.2d 1067, 1071 n. 9 (11" Cir. 1990);

Thompkins v. Morris Brown College, 752 F.2d 558,, 563 (11 Cir. 1985).

However, not every comment about an employee’s race, gender, religion,

or age constitutes direct evidence of discrimination. Price Waterhouse v.

Hopkins, 490 U.S. 228, 277 (1989)(O’Connor, J. concurring). In Price

Waterhouse, Justice O’Connor cautioned that “stray remarks in the

workplace” such as “statements by nondecisionmakers, or statements by

decisionmakers unrelated to the decisional process itself” do not shift the

burden of persuasion on the issue of discrimination. Id. The circuits

have generally accepted Justice O’Connor’s reasoning as a limitation on

when a statement constitutes direct evidence of discrimination. Avala-

Gerena_v. Bristol Myers-Squibb Co., 95 F.3d 86, 97 (1" Cir.

1996)(holding that a decisionmaker’s statement that a “black mafia” was

talking over the company was unrelated to any employment decision and

thus not direct evidence); Tomsic v. State Farm Mut. Auto. Ins. Co., 85

F.3d 1472, 1478 (10" Cir. 1996) (holding that statements of personal

opinion unrelated to employment practices are only circumstantial

evidence of discrimination); Phillipp v. ANR Freight Sys. Inc., 61 F.3d

669, 674 (8" Cir. 1995)(holding that a supervisor’s repeated references

to the plaintiff as an “old man” were not direct evidence of discrimination

because the statements did not refer to an employment decision); Gagne

v. Northwestern Nat:l Ins. Co., 881 F.2d 309, 314 (6" Cir. 1989)(holding

than an isolated remark is not direct evidence).

Following this line of cases, in the Eleventh Circuit, a statement

about an employee’s race, gender, religion, or age can constitute direct

evidence of discrimination if: (1) the statement was made by someone

with the authority to make the challenged employment decisions and (2)

the statement has some kind of nexus with employment decisions in

general. Trotter v. Board of Trustees of Univ. of Ala., 91 F.3d 1449,

1453-54 (11" Cir. 1996) (holding that a statement by someone not

involved in the allegedly discriminatory employment decision is not

direct evidence); Allen v. City of Athens, 937 F. Supp. 1531, 1542 (N.D.

Ala. 1996)(noting that the Eleventh Circuit essentially has adopted Justice

O’Connor’s definition of direct evidence); see also Provident Life and

Accident Ins. Co. v. Eskra., 125 F.3d 1406, 1411 (11 Cir, 1997)(“A

statement by a person who played no part in the adverse personnel

decision is not direct evidence of discrimination.”); Haynes v. W.C. Caye

& Co., 52 F.3d 928, 930-31 (1 1" Cir. 1995)(holding that the statement

“women were simply not tough enough to do the job” constitutes direct

evidence of discrimination); Caban- Wheeler v. Elsea, 904 F.2d 1549,

1555 (11" Cir. 1990)(holding that the statement “the program needs a

black director” constitutes direct evidence of discrimination); Senneilo

v. Reserve Life Ins. Co., 667 F. Suppl. 1498 (S.D. Fla. 1987) (holding

that the statement “we can’t have women in management” is direct

evidence of gender discrimination), aff'd 872 F.2d 393 (11" Cir. 1989).

In this case, Plaintiff offers remarks made by Defendant Hamel as

direct evidence of discrimination. Plaintiff and other Delta employees

have offered affidavits in which they state that on several occasions

Defendant Hamel said that once he was promoted to supervisor, he was

“going to get rid of the old mechanics.”

Despite Plaintiff's arguments, these statements do not constitute

direct evidence of discrimination. Delta has introduced undisputed

evidence that Defendant Hamel did not participate in the decision to

discharge Plaintiff and that Defendant Hamel did not possess hiring and

firing authority over any Delta employee. Moreover, Defendant Hamel

allegedly made this remark before he had been given any supervisory

authority. Accordingly, the alleged statements by Defendant Hamel were

statements by a “nondecisionmaker” and thus constituted “mere stray

remarks” in the workplace. Cf. Chiaramonte v. Fashion Bed Group. Inc.,

129 F.3d 391, 396 (7" Cir. 1997)(holding that the plaintiff's supervisor,

who did not exercise firing authority, was a non-decisionmaker for the

purposes of evaluating putative direct-evidence of discrimination).

IV. Conclusion

For the reasons stated in the Magistrate’s Report, Defendants’

Motion for Sanctions [#15-1] is GRANTED and Plaintiff's Motion to

Compel [#19-1] is DENIED. Defendants are awarded $1,000 in fees. As

recommended by the Magistrate, Plaintiff and Plaintiff s counsel shall be

jointly and severally liable for this sanction.

For the reasons stated above, Delta’s Motion for summary

Judgement [#32-1] is GRANTED on Plaintiff's remaining claim. The

clerk is DIRECTED to enter judgment accordingly.

SO ORDER, this 18" day of June, 1998.

[Signed]

JACK T. CAMP

UNITED STATES DISTRICT JUDGE

ld

Appendix D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

[Filed August 21, 1997]

John Alan Emersion,

Plaintiff

CIVIL ACTION

Vv. : NO. 1:96-CV-1939-JTC

Delta Air Lines, Inc., Donald

Wesley Hamel and Larry Stowers, :

Defendants

ORDER

This case is before the Court on the Magistrate’s Report and

Recommendation [#22-1], Plaintiff's Objections thereto [#26-11], and

Plaintiff's Motion to Amend [#26-2]. The Magistrate recommended that

Defendants’ Motion to Dismiss [#3-1] be granted with respect to all

claims except Plaintiff's claim against Defendant Delta under the Age

Discrimination in Employment Act (“ADEA”).

In accordance with 28 U.S.C. § 636 (b) (1) and Rule 72 of the

Federal Rules of Civil Procedure, this Court has conducted a careful, de

novo review of the Magistrate’s recommendation that the Court grant

Defendants’ motion to dismiss Plaintiffs claims under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000¢e et de,; 42 U.S.C. §§ 1981,

1985, and 1988; the Racketeer Influenced and Corrupt Organization Act,

18 U.S.C. § 1961 et seq.: and Plaintiff's claims against Defendants Hamel

and Stowers under the ADEA, 29 U.S.C. § 631 et seq. After a thorough

review of Plaintiffs objections, this Court concludes that the Magistrate’s

Report and Recommendation is correct in all material respects.

Accordingly, this Court hereby ADOPTS the Magistrate’s Report and

Recommendation as the opinion of this Court. Plaintiff's objections are

OVERRULED. For the reasons stated in the Magistrate’s Report and

Recommendation, Defendants’ Motion To Dismiss [#3-1] is GRANTED

on all of Plaintiffs claims except Plaintiffs ADEA claim against

Defendant Delta Air Lines.

Plaintiff's Motion to Amend [#26-1] is DENIED.

Because the Magistrate is familiar with this case, the Clerk is

DIRECTED to resubmit the following motions to the Magistrate for

review: Defendants’ Motion for Sanctions [#15-1], Plaintiff's Motion to

Extend Discovery [#18-1], and Plaintiff's Motion to Compel Discovery

[#19-1].

SO ORDERED, this_20 day of August, 1997.

[Signed]

JACK T. CAMP

UNITED STATES DISTRICT JUDGE

init Ake Sa See

le

Appendix E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

[Filed June 17, 1997]

JOHN ALAN EMERSON,

Plaintiff :

: CIVIL ACTION NO.

: 1:96-CV-1939-JTC

V

DELTA AIR LINES, INC., DONALD

WESLEY HAMEL, and LARRY :

STOWERS,

Defendants

MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION

PART ONE HISTORY OF THE CASE

This is a Civil Rights employment discrimination case filed under

Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), 42

U.S.C. §§ 1981, 1985, and 1988, the Age Discrimination in Employment

Act of 1967, 29 U.S.C. § et deq. (“ADEA”), and Racketeer Influenced

Corrput Organization, 8 U.S.C. § 1961 et seq. (“RICO”) . Apparently,

the plaintiff also contends that Delta Air Lines terminated his wife

because of her race and in retaliation for his complaints of discrimination.

Specifically, the plaintiff contends, inter alia, that Delta Air Lines

terminated him because of his race (white) and age (45), and that

defendants have engaged in a pattern of unlawful activities.

Presently pending before the undersigned is the Defendant’s

Motion to Dismiss [Doc. 3], the Plaintiff's Response to the Motion to

Dismiss [Doc. 7], and the Defendant’s Reply to the Plaintiff's Response

[Doc. 13]. In its Motion to Dismiss, filed pursuant to Fed. R. Civ. P.

12(b)(6) and L.R.7.1 (N. D/ Ga) (formerly L.R. 220-1), the defendant

contends that plaintiff's compliant is facially insufficient and subject to

dismissal because:

(1) as of the §§ 1981 and 1985(3) claims, the complaint shows on

its face that it was filed beyond the two year statue of limitations;

(2) as to the Title VII and ADEA claims, the complaint shows on

its face that plaintiff failed to exhaust his administrative remedies, and

that Defendants Hamel and Stowers are not employers underthe meaning

of the ADEA statute;

(3) as to the Thirteenth Amendment claim, the complaint shows

on its face that the plaintiffs termination did not implicate state action;

(4) as to the RICO claim, the complaint fails to show, on its face,

the existence of any pattern of unlawful activities; and

(5) the plaintiff is not entitled to any attorney fees under § 1988.

PART TWO THE ISSUES

l. Whether Plaintiff’ s complaint, alleging race discrimination under

42 U.S.C. 1981, on its face, was filed within the statute of

limitations.

Whether Plaintiff's complaint, alleging race discrimination under

42 U.S.C. 1985(3), on its face, was filed within the statute of

limitations.

Whether Plaintiff's complaint, alleging age discrimination under

the ADEA, on its face, fails to show that Plaintiff exhausted his

administrative remedies.

Whether Plaintiff's complaint, alleging age discrimination under

the ADEA, on its face, fails to show that Defendant Hamel and

Defendant Stowers are employers.

Whether Plaintiff's complaint, alleging race discrimination under

Title VII, on its face, fails to show that Plaintiff exhausted his

administrative remedies.

Whether Plaintiffs complaint, alleging a violation of the

Thirteenth Amendment, on its face, fails to implicate any state

action.

Whether Plaintiff's complaint, alleging RICO violations, fails to

show any acts or a pattern of unlawful activity.

Whether Plaintiff is entitled to attorney fees under 42 U.S.C. §

1988.

Bn

PART THREE! CONCLUSIONS OF LAW

1. The Motion to Dismiss

When considering a motion to dismiss a complaint, the Court

must view all the allegations contained therein as true. Gardner v. Toilet

Goos Ass'n, 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967).

Nevertheless, pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a defendant may move to dismiss a complaint or a portion of

a complaint because the plaintiff has failed to state a claim upon which

relief can be granted. In order to state a claim, the plaintiff must allege

some fact, which, if true, states a claim upon which relief can be granted.

I]. Plaintiff's 42 U.S.C. §§ 1981 and 1985(3) Claims

Defendant Delta Air Lines terminated Plaintiffon March 21 , 1994

(Complaint § 20). Plaintiff filed this complaint more than two years later,

on August 1, 1996° Thus Plaintiff's 42 U.S.C. § 1981 claim is barred by

the two year statute of limitations. Wilson v. Garcia, 471 U.S. 261, 105

S.Ct. 1938, 85 L.Ed.2d 254 (1985); Clark v. City of Macon, 860 F. Suppl.

1545 (M.D. Ga. 1994); Evans v. Meadow Steel Prods., Inc., 572 F. Supp.

250 (N.D. Ga. 1983). Likewise, the statute of limitations bar Plaintiffs

42 U.S.C. § 1985(3) claim. Rozar v. Mullis, 85 F. 3d 556, 561 (11" Cir,

1996). Consequently, this Court must recommend that Plaintiff's claims

' As a Motion to Dismiss addresses the facial sufficiency of a complaint, it is not

necessary to set out any statement of facts.

? Plaintiff contends, in his brief, that the defendants made a continuing violation

after the termination date(and within the two years prior to plaintiff's filing his complaint), by

preventing him from retaining employment related to his position at Delta Air Lines [Doc. 74

1, 3]. However, this allegation is not present in Plaintiff's complaint, and such an allegation

in the Response to a Motion to Dismiss is not sufficient to state a claim. Moreover, such

conclusory allegations as “defendants’ discriminatory acts occurred within two years of the

date plaintiff filed his complaint” ({Doc. 7 4 3]) are insufficient as they do not allege any facts

to support the claims of discrimination.

under 42 U.S.C. § 1981 and 42 U.S.C. § 1985(3) be dismissed.’

V.__ Plaintiff's Thirteenth Amendment Claim

Plaintiff conceded in his Response to Defendant’s Motion to

Dismiss [Doc. 7, § 6] that he does not have a claim against the defendants

under the Thirteenth Amendment because Delta Air Line’s adverse job

action did not implicate state action. Thus this claim is deemed

abandoned.

VI._ Plaintiff's RICO Claim

The Plaintiff contends that he need not set out in detail the facts

upon which he bases his RICO claim, and that general allegations under

the RICO Act are sufficient to withstand a 12(b)(6) Motion to Dismiss.

This Court is compelled to disagree. First, Plaintiff must allege facts to

support the requisite elements of a cause of action under RICO;* and

Plaintiff has not alleged any such facts here. In addition, the elements of

a RICO claim must be pled with specificity. See Doxie v. Ford Motor

Credit Co., 603 F. Supp. 624, 62-628 (S.d. ga. 1984) (finding that the

plaintiffis subject, not only to the specificity requirements of Fed. R. Civ.

P. 9(b), but also to the special pleading requirements of the RICO statute.

See also Taylor v. Bear, Stearns & Co., 572 F. Supp. 667, 682-683 (N.D.

> These clams are dismissed as time barred by the statute of limitations, and this

Court need not reach the defendant’s other reasons for dismissing these claims.

* The essential! elements of a substantive RICO offense, 18 U.S.C. § 1961 et seq.,

are (1) the existence of an enterprise; (2) that the enterprise affected interstate commerce; (3)

that the defendant was employed by or associated with the enterprise; (4) that the defendant

participated, either directly or indirectly, in the conduct of the affairs of the enterprise; and (5)

that the defendant participated through a pattern of racketeering activity, i.e., through the

commission of at least two racketeering acts. United States v. Kopituk, 690 F.2d 1289, 1323

(11" Cir. 1982), cert. denied, 463 U.S. 1209 (1983).

Ga. 1983) (ruling that RICO claims must be plead with particularity),

Even if Plaintiff's contention that he need not plead with specificity were

true, he has failed to set out even general allegations that relate to alleged

RICO activity. As plaintiff has failed to plead any facts relevant to any

of the essential elements of a claim under the RICO Act, his claim under

RICO must also be dismissed.

Vil. Plaintiff's Attorney Fees (42 U.S.C. § 1988) Claim

Since plaintiff has one substantive claim remaining (a claim

against Delta Air Lines under the ADEA), his claim for attorney fees

under 42 U.S.C. § 1988 is not subject to dismissal at this juncture.

The defendant has also required costs and attorney fees under 28

U.S.C. § 1927 for filing the Motion to Dismiss. As the Court cannot say

at this juncture that this action was entirely frivolous, the defendant’s

request for attorney fees is denied.

PART FOUR CONCLUSION

For the aforementioned reasons,

IT IS HEREBY RECOMMENDED that the Defendant’s Motion

to Dismiss be GRANTED as to all claims except the ADEA claim against

Delta Air Lines, and that Delta Air Lines’ Motion to Dismiss this claim

be DENIED.

IT IS SO RECOMMENDED.

This 17" day of June, 1997

[Signed]

JOEL M. FELDMAN

UNITED STATES MAGISTRATE JUDGE