Petition for Writ of Certiorari — Abdu-Brisson v. Delta Airlines, Inc.

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Of 278 auc 1s 2001

IN THE

Supreme Court of the United States

MARK ABDU-BRISSON, ef al.,

Petitioners,

Vv.

DELTA AIR LINES, INC. AND

AIR LINE PILOTS ASSOCIATION INTERNATIONAL,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

EDWARD J.M. LITTLE ELIZABETH G. TAYLOR *

WILLIAM B. FLEMING ZUCKERMAN SPAEDER

ZUCKERMAN SPAEDER 1201 Connecticut Avenue, N.W.

27th Floor Washington, D.C. 20036

1114 Avenue of the Americas (202) 778-1800

New York, NY 10036

(212) 479-6500

August 13, 2001 * Counsel of Record

_——$—$———— TD

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

® <> 0

QUESTIONS PRESENTED

1. Whether the Second Circuit erred in concluding that

plaintiffs in an age discrimination case survive a motion for

summary judgment only if they are able to prove that the

employer’s asserted nondiscriminatory reasons for its

employment actions were “false.”

2. Whether the Second Circuit erred in granting summary

judgment against age discrimination plaintiffs on the ground

that they could not prove “falsity,” when they proffered

evidence from which the jury could find that adverse

employment actions were motivated by plaintiffs’ age.

(i)

PARTIES TO THE PROCEEDING

MARK ABDU-BRISSON; RALPH B. ABRAMES, DELBERT R.

ACKLEY; GEORGE ADALIAN; JOHN R. ADKINS, STEVEN A.

AIGNER; JAMES AINSWORTH; DAVID R. ALBERT; WILLIAM

ALLEN; CHARLES AMACKER; JOSEPH ANDERSON, JOSEPH

ANDING; RENNIE A. ANLLO; WILBERT Z. ANTILL; ERIC

ARCHER; STUART H. ARCHER; JOSEPH A. ARMSTRONG;

WILLIAM ATKINSON; LEONARD R. ATLAS; GEORGE J.

AVERY; CHESTER BAILEY; LARRY BAKER; JOHN M.

BANDY; RICHARD BARKER; MOHAMMAD BASHIR; PETER P.

BENDZLOWICZ; JOSEPH J. BENNETT; PETER BENNETT;

WILLIAM O. BENNETT; DAVID BENSON; THOMAS R.

BENTLEY: MICHAEL BERRY; JAMES BETHEL, ROBERT

BEZIAT; GORDON M. BIGGAR; STEPHEN BLANK; DAVID

BLoss; JOSEPH BLOYDER; JAMES BOGGS; CHARLES J.

BONINI; MARC L. BORNN; WALTER BOSSELMAN, STEVE D.

BOWDEN; NED C. BOWERS; JAMES W. BOWLES; GARY W.

BRANDT; STEPHEN W. BRANDT; CURTIS H. BRIGGS;

DONALD BRODHEUR; STEPHEN A. BRODHECKER, ALWYN

BROWN; ROBERT BROWN; JAMES BROWNE, RONALD H.

BUCHNER; GORDON BURGESS; ROBERT BURKE; THOMAS D.

CALLAHAN; RALPH L. CANDELLA; THOMAS F. CAREY;

DALE E. CARMAN; LOUIS CARRARA; T. BARRY CASEY;

LAMAR CASON; ROBERT T. CASSIDY; ROBERT CHANGERY,

LARRY E. CHAPPEL; RICHARD CHARBONNEAU, ALAN R.

CHARLEVOIS; STANLEY CHECKOWAY; DOUGLAS >.

CHRISTENSEN; LEE J. CHURCH; JAMES CIRILLI; ROBERT

CLACK: WALTER M. CLARK; PHILIP CLAUDY; HAROLD T.

CLEAVER; CHARLES CLEMENTS; RICHARD T. CLOUGH;

LAWRENCE D. COBB; WESLEY COLLINS; DONALD EB.

COMBEE; EUGENE M. COMFORT; HARRY G. COMPTON;

JoHN C. Cook; CLIFFORD COOL; DAVID L. COOPER;

DONALD C. CoRY; MARCUS COVINGTON; EUGENE Cox;

LYNN Cox; LYNN O. COx; HOWARD CROWELL;

J.N. CrumMpP; CHARLES CRUMPTON; JOSEPH oe

CUSHING; EDWARD CYWINSKI; THOMAS G. DAHONEY;

ill

JOSEPH DALTON; CHARLES R. DAvis; GERALD E. DAvis:

WADE L. DAvis; BRUCE W. DEAN; THOMAS A. DEAN:

ERNEST E. DELL, JR.; THOMAS J. DELNICKAS; HENRY P.

DENONCOUR; ROBERT DEVRIES; CLARENCE J. DIETER:

CHARLES DIKE, JR.; GERALD DION; JACK DiTZEL: STEPHEN

A. DODGE; WILLIAM DONNELLY; WILFREDO H. DORNA:

WILLIAM DORNA; DENNIS DOUGHERTY; CHARLES B.

DOUGLAS; ROBERT H. DROZD; VINCENT L. DUFFY; RALPH

DUNN; RICHARD C. DupPUIS; ROBERT DURANT: PATRICK

W. DwYER; ROBERT R. DZIMIDAS; ROBERT EBBLER; JACK

E. ELDRED; KENNETH ELIAS; WILLIAM C. ELLIS; DANNY

A. ENDRESEN; LEWIS W. ENGLISH; ROBERT ENGLISH:

SIGURD ERIKSEN; JOHN M. Esposiro; DOUGLAS S. EYRE:

DOUGLAS L. EZELL; JOHN R. FAHY: JEFFREY

FAIRBROTHER; ANDRAL P. FARIS; ROBERT FERREL; LEWIS

FIELACK; JERRY D. FIFER; JAMES FLAUGH; EUGENE FORET;

RICHARD FORTE; DUANE FOSTER; FRANCIS J. FOSTER;

DAVID FOUNTAIN; GEORGE V. Fox; ROLAND M. FRAGA:

ROBERT A. FRASER; BRUCE L. FRYE; JOHN FUCIK:; PAUL J.

FULLER; EDWARD R. FULLERTON; JOHN GALLAGHER:

ROGER P. GALLI; FREDERICK C. GARDNER; CHARLES

GARNER; EDWIN J. GEIGER; JAMES T. GETTYS; FRANK H.

GIBSON; ROBERT P. GICK; DONALD R. GIDDENS; JOSEPH A.

GIDDINGS; BERNARD D. GIERE; NORMAN GIROUARD;

CHARLES F. GLADISH; THOMAS E. GompF; JACK D.

GORDON; CONRAD GOSHEFF; ALTON G. GRAHAM; RITCHIE

L. GRIFFITH; KENNETH R. GROSS; JOHN GROUT; ROBERT P.

GUNST; WILLIAM HALVOSA, In; D.B. HAMAN; LLOYD

HAMILTON; ROSS M. HAMILTON; ROBERTO HANCHETT:

MICHAEL D. HANLEY; ALVIN C. HANSON; ROBERT

HARLAN; GARY HARMON; GARY L. HARRIS; ROBERT S.

HARRIS; DAN H. HARRISON; NILE L. HARTER, JR.; JOSEPH

HASELBY; WILLIAM HERNDON; DONALD C. HERTZFELDT;

LARRY HESS; LON HICKS; CARL E. HINDLE; RICHARD

HOHLOWSKI; FREDERICK W. HOLTGRAVE; DANIEL E.

Hoop; WILLIAM N. HOOVER; MICHAEL R. HOPKINS;

nae

DARRYL G. HUBBARD; JOHN E. HUBBARD; STANLEY C.

HulE; ARNOLD HUSEMANN; O.H. HUTCHINS; RAYFORD

HYMES; JOHN IISAGER; ANDREW C. ISOLA; ALLEN

JACKSON: DAVID H. JENKINS; WILLIAM K. JILLSON, JAMES

C. JOHNSON; PAUL FREDERICK JOHNSON, ROBERT

JOHNSON; RONALD W. JOHNSON; TERRILL C. JOHNSON;

J.H. JoNES; M. PERRY JONES; TERRELL JONES; DEAN JUNG;

HERMAN T. KAMERMAN; H.L. KARASOFF; WILLIAM G.

KARNS; GARY R. KASPER; PATRICK T. KAVANAGH; DAVID

KAWAMOTO: KEVIN P. KEHOE; RICHARD D. KELLY; GREG

KERHULIS; H.W. KING; CHRISTOPHER KIPFER; DAVID R.

KIRSCHNER; ROGER L. KLEIN; WILLIAM KLINE; RICHARD

KLINICKI; STEPHEN M. KORCHECK; JOHN KUHS; WILLIAM

KUNz:; ENRIQUE J. LANZ; LELAND T. LARSON; RICHARD

LAUMEYER; WARNER F. LEE; ALBERT LEET; FRANK M.

LENZ; IRA LESHIN; JOHN W. LEWIS, EDWARD R.

LINDGREN; B.L. LINDSAY; WILLIAM H. LINKROUM, Il;

GORDON M. LITTLEFIELD; DAVID LOOMIS; FREDERICK

LOSEN:; JAMES V. LOVEN; DANIEL W. LOVETT; EDWARD J.

LYNCH; M. LYON; RICHARD MACK; MICHAEL

MACQUARRIE; DENNIS MADDUX; EDWARD A. MAIELLARO;

ROBERT MANSKE; SIDNEY S. MARGREY; ANTHONY

MARMON: FRANK MARTIN; RODERICK MARTINDALE, JOHN

H. MASCALI, ROBERT J. MASSEY; ROBERT PAUL MASSI;

MICHAEL M. MATEI; BRIAN P. MATTHIESEN; RICHARD

MAYER: DALE Q. MAYO; THOMAS MAYS; BENEDICT L.

MCALEVEY; GUY L. MCCAFFERTY; PATRICK MCCALLUM;

Jim M. MCCONNELL; ROBERT B. MCEACHRAN, JAMES

MCFARLANE; WILLIAM MCINROE; ‘EDWARD A. MCKAY;

KENNETH R. MCKEE; HUDNALLE MCLEAN; MICHAEL ae

MCQUILLEN; CHRISTOPER L. MEGA; R. MERRILL;

LAWRENCE E. MEYER; JAMES W. MICHEL; GORDON

MILLER; GREGORY MILLER; JOSEPH P. MILLER; RICHARD

L. Mitts; EINAR J. MOGENSEN; WILLIAM J. MOONEY;

JAMES Moore; MARK Moore; ROBERT L. MOREY; PETER

J. Moriarty; J. EDWIN Morse; GORDON S. MOYER;

JAY MUFFETT; CHARLES F. MULIN; RICHARD MULLER;

JOHN NEILL; JACK A. NELSON; JEFFREY S. NELSON; LARRY

NELSON; LEONARD M. NELSON; VAN NELSON; JACKSON I.

NEWBERRY; VERNON J. NORDMAN; YAN NOVAK; JOHN M.

NUNEZ; JAMES R. NUSS; ROBERT OBER; STUART A.

O'BRIEN; CHARLES W. O'CONNOR; MICHAEL O’DONNELL;

KENNETH OLSON; LAURENCE H. OMURA; CLYDE ORR;

JOHN F. O'RYAN; ROBERT L. OSBURN; LANE OVERSTREET;

ROBERT B. OWENS; CAPT. DENNIS A. PANZER; HENRY

PAPA; THEODORE PATEAS; JOHN C. PATTEN; BRUCE

PATZMANN; RICHARD V. PAUL; FREDERICK PEARCE; PAUL

PEARCE; ROBERT A. PENN; RICHARD A. PERKINS; CAPT.

| T.C. PESTOLIS; STEPHEN T. PETERSEN; DAVID H.

; PETERSON; ROBERT PETERSON; KENNETH M. PFRANG;

| JAMES LARRY PHILLIPS; WILLIAM PICKEN; P.A. PIERCE;

RICHARD PIPKIN; VINCENT PISCHL; CURTIS R. PLATTE;

RICHARD P. PLATTS; DWIGHT PLYLER; JIMMIE R.

POLLOCK; JOHN T. POOL; JOHN C. POPKESS; RANDAL L.

PORTER; FREDERICK R. POUY; JOHN R. RAMEY; NORMAN

W. REAGAN; JOHN H. REEVES; MICHAEL REICHFELD;

ARNOLD REINER; FORREST RHODES; HAROLD W. RHODES;

HENRY H. RHYNE; WILLIAM L. RICE; JAMES RICHARDS;

HENRY RICHARDSON; JOHN B. RIEDERICH; ROBERT

RIGNEY; RANDOLPH RIME; JAMES DAVID ROACH; JAMES N.

ROBERTSON; RICHARD P. ROBINETTE; JACK ROCCHIO;

ROBERT ROGNLIEN; WILLIAM C. ROSE; EDMOND

ROUSSEAU; JOHN RUDL; KENNETH B. RUHM; TERRY RUSH;

PHILIP M. RUTH; ROBERT F. SABBATINO; SALVATORE

SALLIBELLO; KIT SANDERS; ANTHONY R. SAPORITO; JAMES

P. SASSER; FRANK SAVINO; P. SAYERS; FRANCIS E.

SCHLATER; JERRY SCHNELL; DONALD J. SCHOLTZ; PAUL —

W. SCHOLZ; HARRY SCHONING; ALLEN SCHWAB; JAMES G.

SCHWALBERT; CARL D. SCRIVENER; LAURENCE E. SENN;

RALPH M. SHAPE; JIMMY R. SHAW; MICHAEL SHEA;

GEORGE SHEASLEY; T.B. SHEEHAN; JAY F. SHINN; JIMMY

H. SHUMAN; DAVID M. SIMPLER; D.B. SIOTKAS;

a ee ee ian

en eNO remo

dhype ibe ae ~

JOHN SKINNER; JOHN E. SKOMARS, KENNETH SLOBODY;

ROBERT R. SMEDLEY; JAMES SMILEY; B. STAN SMITH;

CALVIN SMITH; DON P. SMITH; WAYNE A. SOLIDAY;

RICHARD SOMOYA; JAMES F. SONNHALTER, EDWARD W.

SpeIRS:; CHARLES C. SPENCER; LEON SPINNEY; TERRY J.

SPRING; ROBERT G. STALVEY; KENNETH J. STEFFAN;

LEONARD A. STILLER; THOMAS J. STONE; WHITNEY

STRAIN; JAMES STUART, DONALD R. STUBBS; ROBERT

STURGEON; JIMMY L. TALKINGTON, CHARLES TARPLEY;

JAMES R. TAYLOR; HJ. TEDESCO, PAUL T. THATCHER;

JACK THOMAS; JOHN M. THOMAS; BRENDA A. THOMPSON,

GEORGE F. THOMPSON; THOMAS H. TINGLE; EMMETT R.

TiTsHAW:; HENRY TOOKE; WILLIAM W. TRAVIS; ANTHONY

Tripopt, JERRY TROTT; JAMES VANDEMARK; S.B.

VANGORDER; THOMAS VANNOTE, WAYNE A. VEENEMAN,

RAFEL E. VELEZ; JAMES A. VERSCHAGE, DAVID M. VIKEN;

JAMES S. VITALE; LLOYD S. VOOGT, ROBERT VOSS; BRUCE

A. WADIAK; JAMES WAEBER; NEAL WALDRON; JOSEPH R.

WALKER: DAVID E. B. WARD; DANIEL WATROUS; RONALD

WEAVER: RANDOL B. WEBB; BRIAN WEISBLAT; LARRY J.

WELCH; PETER J. WENK; DONALD W. WETMORE; CuRT J.

WETZEL: AUSTIN WHELIHAN; JACK L. WHICKER; JAMES H.

Wuire: R.O. WHITE; WILLIAM O. WHITE; J.B. WILLIAMS;

C.R. WILLIAMS; J.A. WILLS; DONALD L. WILSON; JAMES

R. WILTJER; JOHN STEPHEN WOELFEL; LEONARD R.

WOHLETZ; MARK M. WOHLMUTH, CLIFTON WOODWORTH;

DONALD E. WRIGHT; F.E. WRIGHT; RUFUS YARBROUGH;

DAVID YARRI; JAMES YORK; GORDON YOUNG; Otis B.

YOUNG; WAYNE YOUNG; FORREST ZETTERBERG; RONALD

J. ZIMMERMAN, JAMES ZURCHER, AND FORMER PAN AM

PILOTS JOHN Dogs 489 THROUGH 700,

Petitioners,

—against—

DELTA AIR LINES, INC. and

Air LINE PILOTS ASSOCIATION, DELTA AIR LINES, INC.,

Respondents.

A LE AE A ee

duce tet ses eaten aoe

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDING ..............:ccceeceeseeeee il

TABLE OF AUTHORITIES ..............cscccessceeeseeeeeseeeesees ix

OPINIONS BELOW ......ccccccccccscccssccccsscccccccccsccccsssccsssess l

FURIBDIC TION ..nccccccscccccsseccescsssscscoscccsscsssccsscssssscsessosoess l

STATUTORY PROVISIONS AND RULE

BIOL VED ccccecsccccccccscsccssesseccscoseccescnssscssssssscsssocsssess l

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

Factusal History .........cc...ccccscsrssccccscccccccccccsscccscssssossesees 3

Procedural History .........cc.ccccccsccrscccccccccccscessecssecsoscees 5

REASONS FOR GRANTING WRIT...........cc.cccceeeeeeeees 8

I. THERE IS CONFUSION AMONG THE

CIRCUITS AS TO WHETHER A PLAINTIFF

IN AN EMPLOYMENT DISCRIMINATION

CASE MUST PROVE THAT THE EMPLOY-

ER’S ASSERTED NONDISCRIMINATORY

REASON WAS “FALSE.” ........cc.eccccccscccsscecseeees 8

Il. GUIDANCE IS NEEDED ON THE STAN-

DARD FOR DETERMINING A SUMMARY

JUDGMENT MOTION WHEN THE PLAIN-

TIFF DOES NOT PROVE THE EMPLOY-

ER’S PROFFERED REASON “FALSE..”........... 14

CONCLUSION .....cccccccscsccsssscccscccccccccccscscssccecssescsscossssees 16

(vii)

Vill

TABLE OF CONTENTS—Continued

APPENDICIES Page

Appendix A (Abdu-Brisson v. Delta Air Lines, Inc.,

128 F.3d 77 (2d Cir. 1997)) ....cccscesereeerreeeereseereees la

Appendix B (Abdu-Brisson v. Delta Air Lines, Inc.,

239 F.3d 456 (2d Cir. 2001)) .....ceseeceesreeeereeeeeeens 17a

Appendix C (Abdu-Brisson v. Delta Air Lines,

Inc., 927 F.Supp. 109 (S.D.N.Y. May 16,

1996) .....cccceccccsccssscocccessscsccsessssscesssssssscssscscesssnssonss 38a

Appendix D (Abdu-Brisson v. Delta Air Lines, Inc.,

1999 WL 64436 (S.D.N.Y. Feb. 9, 1999)... 45a

Appendix E (Rehearing Denial, Second Circuit,

May 14, 2001)......scscsssssesssesessssnenenenensansnensesecncnenses 55a

Appendix F (Abdu-Brisson v. Delta Air Lines, Inc.,

1999 WL 944505 (S.D.N.Y. Oct. 19, 1999)......++ 57a

| TABLE OF CITED AUTHORITIES

CASES Page

| Anderson . Liberty Lobby, 477 U.S. 242 (1986)... 15

! Cersad v. Delta Air Lines, Inc., 494 F.2d 914

SOE Res Fe ihcniiiincaiuhsnlesbascdedhiecdsalisntababbanecinaldiones 15

EEOC v. Louisiana Office of Community Service,

47 F.3d 1438 (Sth Cir. 1995) .......cccccccsscssesssee 12

Golomb v. Prudential Insurance Company of

America, 688 F.2d 547 (7th Cir. 1982)........ 10, 11, 12

| Hazen Paper Co. v. Biggins, 507 U.S. 604

! Sa eer iasbibtedind dichoibiadadehhamatdigmeiuabinnmapidleseitannes 9, 10, 11

Lindahl v. Air France, 930 F.2d 1434 (9th Cir.

i IIIT si sehiehitehntpeiahnicendatehdaaaibsastpenahaieatuniiteanindeniah 15

Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir.

PU eieidiakauciainiciidaclebanindiaaenacmnnocistionbn 14

McDonnell Douglas Corp. v. Green, 411 U.S.

| a i uicoais Mianasiuicatsiechuiaannsibiaetiuiiael 9, 13, 14

; Miller v. Cigna Corp., 47 F.3d 586 (3d Cir.

PITTED snicihibeinenidasuianshubisistonsisaioaphéscnpbanninasebannnns 11

Mitchell v. USBI Co., 186 F.3d 1352 (11th Cir.

i a RT SEN CARD COMET OEE 12

| Peacock v. DuVal, 694 F.2d 644 (9th Cir. 1982)... 15

Reeves v. Sanderson Plumbing Prod., Inc., 530

i aie Ma sehsishicsssipaitcincosbiaiuihcabdalennass 9, 12, 13, 14, 15

. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502

SERN ARON RD RON = 8,9, 12, 13

Texas Dep't of Community Affairs v. Burdine,

CA POU GIFT Drcsconnscsesensencahishonnieniianteat 8,9, 10, 13

Walton v. Bisco Indus., 119 F.3d 368 (Sth Cir.

SPT Spdotbcahnieccasniascailddectlassuenineaseinduenistmeabannaieniaciiae 12

STATUTES AND RULE CITED

Age Discrimination in Employment Act, 29

I 1,8

Airline Deregulation Act, 49 U.S.C. 41713........... 6

TABLE OF CITED AUTHORITIES—Continued

Page

Employee Retirement Income Security Act of

1974 (“ERISA”), 29 U.S.C. 1001, ef Seq....----+- 5, 6

Railway Labor Act, 45 U.S.C. 151, ef SCG. ..--eeeeee 6

Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 200D€ ef SOG. ...ceseeseeererreeersnssennensressenees 1-2,8

New York Executive Law § 296 ef S€q...+-+-+++++++0++ 2.39

N.Y. City Admin. Code §§ 8-107 Cf SOG. cseeeeeeeeeeee 2,5,8

Fed. R. Civ. P. 56(C) ...ss.ssssssressesseseneesrssrennennensersnnes 2-3, 6

Feed. R. Civ. P. 12.........ccscrssccecscecesnscsessesnessesonenees 6

Fed. R. Civ. P. 19..........cccccorsccoescersssescssccenssnsonsonsess 6

MISCELLANEOUS

110 Cong. Rec. 2728, 13837 (1964) ......eseeeeeeeeeees 11

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Second Circuit is reported at 239 F.3d 456 (2d Cir. 2001), and

is reprinted in the Appendix to the Petition for Certiorari

(“Pet. App.”) at 17a. The opinion of the District Court for the

Southern District of New York is reported at No. 94 CIV.

8494, 1999 WL 944505 (S.D.N.Y. Oct 19, 1999) and is

reprinted at Pet. App. 56a.

Other opinions below are: Abdu-Brisson v. Delta Air Lines,

Inc., 927 F.Supp. 109 (S.D.N.Y. 1996), reprinted at Pet.

App. 38a; Abdu-Brisson v. Delta Air Lines, Inc., 128 F.3d 77

(2nd Cir. 1997) reprinted at Pet. App. la; and Abdu-Brisson v.

Delta Air Lines, Inc., No. 94 CIV. 8494, 1999 WL 64436

(S.D.N.Y. Feb 09, 1999), reprinted at Pet. App. 45a.

JURISDICTION

The U.S. Court of Appeals for the Second Circuit entered

judgment on February 12, 2001. See Pet. App. 17a. The U.S.

Court of Appeals for the Second Circuit denied rehearing on

May 14, 2001. See Pet. App. 55a. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AND RULE INVOLVED

The Age Discrimination in Employment Act, 29 U.S.C. § 621

et seq., provides in relevant part that it shall be an unlawful

employment practice for an employer to:

“fail or refuse to hire or to discharge any individual or

otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's

age.”

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

2(a), provides in relevant part that it shall be an unlawful

employment practice for an employer:

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

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual's race, color, religion, sex, or national origin;

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

applicants for employment in any way which would

deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as

an employee, because of such individual's race, color,

religion, sex, or national origin.”

Section 296.1 of the New York Executive Law, the New

York State Human Rights Law (“State HRL”), provides in

relevant part that:

“It shall be an unlawful discriminatory practice: (a) For

an employer or licensing agency, because of the age...

of any individual, to refuse to hire or to bar such an

individual or to discriminate against such individual in

compensation or in terms, conditions or privileges of

employment.”

New York City Admin. Code §§ 8-107 et seq., the New York

City Human Rights Law (“City HRL”), provides in relevant

part:

“It shall be an unlawful discriminatory practice: (a) For

an employer or an employee or agent thereof, because of

the actual or perceived age . . . of any person, to refuse

to hire or employ or to bar or to discharge from

employment such person or discriminate against such

person in compensation or in terms, conditions or

privileges of employinent.”

Fed. R. Civ. P. 56(c) provides in relevant part that:

“(t]he judgment sought shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

ee ee re eEeEEeE

show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment

as a matter of law.”

STATEMENT OF THE CASE

Factual History

Plaintiffs are airline pilots employed by Delta Air Lines,

Inc. (“Delta”). Plaintiffs all worked previously for Pan

American World Airways, Inc. (“Pan Am’’) and were hired

by Delta in 1991 when Delta acquired two _ business

operations formerly run by Pan Am.

On January 8, 1991, Pam Am filed a voluntary petition in

bankruptcy pursuant to Chapter 11 of the United States

Bankruptcy Code in the United States Bankruptcy Court for

the Southern District of New York. During the admin-

istration of Pan Am’s bankruptcy case, Delta won a bidding

war among other airlines to acquire two coveted operations

run by Pan Am, that is, the Pan Am Shuttle, Inc. (a separate

corporation operating between New York, Boston and

Washington) and Pan Am’s Atlantic Division (a division of

the airline running its Transatlantic Routes). Both operations

continued to function during Pan Am’s bankruptcy, and Delta

ultimately acquired them in turnkey fashion as ongoing

businesses, complete with aircraft, gates and landing slots,

maintenance equipment, airport facilities, ground persemnel,

and most important, flight crews.

As Delta management knew, the former Pan Am pilots

hired by Delta were, as a class, considerably older and more

experienced than Delta’s own pilots. Delta needed \the

plaintiffs’ in order to operate the aircraft and fly routes

acquired from Pan Am. Delta did not have a sufficient

number of qualified pilots with the requisite certifications to

be able to redeploy its own pilots to handle those routes and

could not have hired and trained hundreds of new pilots

without a massive disruption of those operations.

Upon acquiring the Pan Am Shuttle and Transatlantic

Routes, Delta hired the needed Pan Am pilots manning those

routes and subjected them to terms and conditions of

employment inferior to those afforded Delta pilots of similar

age and experience. First, Delta management devised a

seniority integration methodology which they then used to

integrate plaintiffs into slots on Delta’s seniority list well

beneath significantly younger and less experienced pilots

from Delta’s incumbent pilot group with correspondingly

lower compensation. Second, plaintitfs were hired at lower

pay rates and were required to endure a three-year step-up to

full pay parity with incumbent Delta pilots. Third, days prior

to the beginning of the transfer of the older-aged Pan Am

pilots, Delta adopted a ten-year service requirement for full

post-retirement medical benefits. All incumbent Delta pilots,

including those over the age of 50, were exempted from the

requirement. Plaintiffs aged 50 or older were not exempted

from the requirement.

The effect of these three actions on plaintiffs was

devastating. Many of them were in their fifties when

defendant hired them, less than ten years away from

mandatory age-60 Federal regulatory retirement rules for

pilots flying as captains and first officers. They found

themselves at seniority levels so low they were flying junior

to less experienced pilots 20-years younger and with no way

to recover from the three-year pay discrepancy before being

forced to retire. Nor could most ever satisfy the newly

implemented ten-year service requirement for post-retirement

medical benefits.

Plaintiffs filed suit against their employer alleging age

discrimination by Delta in the following: (1) the manner by

which Delta integrated them into the seniority list; (2) a three-

year period of pay disparity between the plaintiffs and other

Delta pilots with the same experience; and (3) the imposition

on them of a ten-year service requirement before they could

receive post-retirement medical benefits. Through discovery,

atalino ae tee

Fd DAA,

plaintiffs obtained documents that provided direct evidence of

the discriminatory animus motivating Delta management.

Plaintiffs discovered that Delta’s files were littered with

documents containing derogatory references to plaintiffs’

“older ages.” Further, these documents were written by those

in Delta’s management charged with the responsibility for

developing the terms and _ conditions of _ plaintiffs’

employment. By way of example, Delta’s Vice President of

Flight Operations, and principal management person in

charge of plaintiffs’ hiring, wrote in a memo entitled “FACT

FINDING/OPINION” that Pan Am personnel represented a

“contaminated workforce, especially since 1987. Not meet

Delta standards—68 over age 60, four over age 70, 26 two-

step bid down, 50% retire 2001 not 1995.”' Overall, the

numerous documents discovered by plaintiffs repeated a

consistent theme, i.e., that Delta’s management viewed the

plaintiffs and their hiring, though necessary for its turnkey

aspirations, as a negative, and, in the context of discussing

plaintiffs’ ages, described plaintiffs as “burdened,” “aged,”

“contaminated,” “bad apples,” and “very senior.”

Procedural History

Plaintiff pilots filed a claim of age discrimination against

their employer, Delta Airlines. The plaintiffs’ action was

originally brought in state court®> but was removed by

defendants to federal District Court on the grounds that the

complaint “arose under” the Employee Retirement Income

Security Act of 1974 (“ERISA”), 29 U.S.C. 1001, et

seq., because plaintiffs were seeking to modify a medical

benefits plan.

' See Abdu-Brisson v. Delta, 239 F.3d 456, 462 (2d Cir. 2001).

See Id.

> Alleging violations of the New York State and City Human

Rights Laws. (N.Y. State Exec. Law § 296 and N.Y.C. Admin. Code

§§ 8-107(1)(a), (c}—107(17)).

In 1996, at the close of discovery, Delta moved to dismiss

under Fed. R. Civ. P. 12, or alternatively, for summary

judgment under Fed. R. Civ. P. 56.4 On May 20, 1996, the

district court granted Delta’s motion to dismiss on the ground

that the ADA preempted plaintiffs’ claims. Abdu-Brisson v.

Delta Air Lines, Inc., 927 F. Supp. 109 (S.D.N.Y. 1996).

In late 1997, the Second Circuit court reversed the decision of

the district court, ruling that the ADA did not preempt

plaintiffs’ claims. Abdu-Brisson v. Delta Air Lines, Inc., 128

F.3d 77 (2d Cir. 1997). Upon return of the case to the district

court, Delta renewed its motion to dismiss on the ground that

plaintiffs’ claims were preempted by the Railway Labor Act,

45 U.S.C. 151, et seg. (“RLA”), and on its earlier asserted but

unresolved arguments and its never-decided motion for

summary judgment.”

On January 6, 1999, the district court denied Delta’s

motion to dismiss.° On October 19, 1999, the district court

granted the motion for summary judgment and dismissed

plaintiffs’ age discrimination suit, ruling that the plaintiffs

were not similarly situated to Delta’s incumbent pilots and

4 In its motion to dismiss, Delta argued that: (1) The State and City

HRLs did not apply to plaintiffs’ claim, (2) plaintiffs’ claims were

preempted by the Airline Deregulation Act (“ADA”), 49 U.S.C. 41713;

(3) plaintiffs’ challenge to the ten-year service requirement in the post-

retirement medical benefits plan was preempted by ERISA; and (4)

plaintiffs’ claims were barred by a bankruptcy court order of August 12,

1991.

5 Delta also joined the Air Line Pilots Association International, Inc.,

the pilots’ union, as a co-defendant pursuant to Fed. R. Civ. P. 19, on the

ground that its presence was necessary for complete relief between the

parties. On its second motion to dismiss the district court denied Delta’s

assertion that plaintiffs’ claims were preempted by the RLA.

6 gee Abdu-Brisson v. Delta Air Lines, Inc., No. 94 CIV. 8494, 1999

WL 4959 (S.D.N.Y. Jan. 6, 1999), superceded by Abdu-Brisson v. Delta

Air Lines, Inc. No. 94 CIV. 8494, 1999 W). 64436, *2 (S.D.N.Y. Feb 09,

1999).

EMOC At MALAI ty PL Sy 6 nt BE

thus could not establish a prima facie case. See Abdu-Brisson

v. Delta Air Lines, Inc., No. 98 Civ. 8494 (HB), 1999 WL

944505, *3-4 (S.D.N.Y. Oct. 19, 1999).

The United States Court of Appeals for the Second Circuit

affirmed. In part, the Second Circuit disagreed with the

district court, ruling that plaintiffs had presented a prima facie

case of age discrimination, finding that the significant

documentary evidence that age was a factor in Delta’s

decisions to implement the seniority integration system

methodology it created and to subject plaintiffs to lower pay

and benefits than Delta employees doing the same work,

“inescapably lead to the conclusion that Delta’s actions may

indeed have been motivated by age-based animus.” Abdu-

Brisson v. Delta, 239 F.3d 456, 468 (2d Cir. 2001).’

Nevertheless, the Second Circuit ruled that Delta had met its

burden of producing evidence that the challenged

employment actions was based on its proffered nondiscrimin-

atory reason. Ultimately, the Court affirmed the grant of

summary judgment against the plaintiffs because it found that

they had presented no evidence to prove that Delta’s

proffered reasons were “false.” See Abdu-Brisson v. Delta

Air Lines, Inc., 239 F.3d 456, 470 (2d Cir. 2001).

’ The district court had concluded that plaintiffs could not establish a

prima facie case because they were not similarly situated to pilots who

had been at Delta before plaintiffs were hired. See Abdu-Brisson, v. Delta

Air Lines, Inc., No. 98 Civ. 8494 (HB), 1999 WL 944505, *3-4

(S.D.N.Y. Oct. 19, 1999). The Second Circuit disagreed with that

conclusion, determining that the plaintiffs’ had direct evidence of

discriminatory intent and therefore did not have to demonstrate that they

were “similarly situated” to previous Delta pilots. Abdu-Brisson, 239

F.3d at 466.

REASONS FOR GRANTING THE WRIT

I. THERE IS CONFUSION AMONG THE CIR-

CUITS AS TO WHETHER A PLAINTIFF IN AN

EMPLOYMENT DISCRIMINATION CASE

MUST PROVE THAT THE EMPLOYER’S

ASSERTED NON-DISCRIMINATORY REASON

WAS “FALSE.”

The Second Circuit held in this case that plaintiffs could

not survive a motion for summary judgment because they

produced no evidence to prove that the nondiscriminatory

reasons offered by the defendant for adverse employment

actions were “false.” Abdu-Brisson v. Delta Air Lines, Inc.,

239 F.3d 456, 461, 470 (2d Cir. 2001). The decision of the

Second Circuit is contrary to the guidance of this Court in a

line of decisions addressing discrimination claims.” The

Second Circuit’s decision also illustrates confusion among

the circuits over whether a plaintiff must prove that the

employer’s proffered nondiscriminatory reason for adverse

employment action was “false” and, more generally, over the

meaning of “pretext” in this Court’s discrimination decisions.

The ultimate issue in a discrimination suit is “whether

plaintiff has proved ‘that the defendant intentionally

discriminated against [him]’ because of his [membership in a

protected class].” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 511(1993)(quoting Texas Dep't of Community Affairs v.

Burdine, 450 U.S. 248, 253 (1981)). A plaintiff need not

demonstrate that discrimination was the sole reason for the

adverse action. The plaintiff's age must have “*played a role

* Age discrimination claims brought under the State HRL and the City

HRL are analyzed under the same burden shifting framework as claims

brought under the federal Age Discrimination Act (“ADEA”), 29 U.S.C.

§ 621 et seq., and Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C.§ 2000e et seq. Abdu-Brisson, 239 F.3d at 466 (2d Cir. 2001).

Thus, the Second Circuit decided this case under federal law.

et eit hs

Ddieikaiod

ate alii tid aks 24

in [the employer’s decisionmaking] process and had a

determinative influence on the outcome.’” Reeves v.

Sanderson Plumbing Prod., Inc., 530 U.S. 133, 141

(2000)(quoting Hazen Paper Co. v. Biggins, 507 U.S. 604,

610 (1993)). “

This Court has established a framework under which the

burden initially rests on the plaintiff to produce evidence

sufficient to establish a prima facie case of discrimination.

That burden may and often is met without any direct evidence

of discriminatory intent. The plaintiff may show only that he

or she (“he”) is a member of the protected class, that he is

qualified for the position, that he suffered adverse

employment action and that the circumstances surrounding

the action give rise to an inference of discrimination.” Once

the plaintiff meets that burden, a presumption of discrimin-

ation exists, unless the defendant produces evidence that the

employment action was taken for a non-discriminatory

reason. St. Mary's, 509 U.S. at 507 (citing Burdine, 450 U.S.

at 254). If the defendant meets this burden of production, the

presumption disappears. /d. The plaintiff then must prove

that the employer’s proffered reason is a “pretext” for

discrimination. /d. at 516 (citing Burdine 450 U.S. at 258).

The issue in this case concerns what a plaintiff must

demonstrate to meet the ultimate burden of proving

discrimination, after the employer has produced evidence of a

nondiscriminatory reason. This Court recently has addressed

issues Closely related to this. See Reeves, 530 U.S. 133; St.

Mary’s, 509 U.S. 502. This Court has not addressed the

issues presented here—whether a plaintiff must prove that the

employer’s proffered reason was “false” and, if not, what a

* See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973)(setting out the minimal requirements of a prima facie case);

Burdine, 450 U.S. 248, 253 n.6 (1981) (McDonnell Douglas framework

is flexible and can be adapted to fit the facts of each case).

plaintiff must prove to demonstrate that the employer's

proffered reason was “pretext.”

Courts have long wrestled with the question of whether the

class of explanations that may be deemed “false” are

precisely coextensive with the class of explanations that may

be deemed “pretextual.” See, e.g., Golomb v. The Prudential

Insurance Company of America, 688 F.2d 547 (7th Cir.

1982). Proof that an explanation is “pretextual” meets a

plaintiffs burden. Not all “pretextual” explanations,

however, are “false.” The Seventh Circuit in Golomb took

care to distinguish between the two and to conclude that

pretextuality is not synonymous with falsity. A plainuff who

cannot demonstrate the surface “falsity” of an explanation

nonetheless may meet his burden of showing intentional

discrimination if he shows that the proffered reasons are a

“pretext” for discrimination.

As the court in Golomb recognized, a proffered explanation

that the employer was concerned about costs may be, as a

general proposition, true (or at least nearly impossible to

prove false) and still not be the real or the only explanation

for adverse employment actions affecting the plaintiffs.

Requiring a plaintiff to demonstrate that a defendant's

proffered explanation was “false” sets too high a bar and

shifts the focus away from the ultimate issue of

discriminatory intent. It also runs counter to this Court’s

guidance in Burdine, which established the disjunctive that

the plaintiff may succeed in persuading the factfinder that he

has been the victim of intentional discrimination “either

directly by persuading the [factfinder] that a discriminatory

reason more likely motivated the employer or indirectly by

showing that the employer's proffered explanation is

unworthy of credence.” Burdine, 450 U.S. at 256. Finally, it

ignores the Court’s directive in Hazen Paper that the

discriminatory motivation need not have been the sole cause

of the employment action; it must be shown to have had a

“determinative influence in the outcome.” 507 U.S. at 611.

Only “when the employer’s decision is wholly motivated by

factors other than age, [does] the problem of [age

discrimination] disappear[].” /d. (emphasis in original). See

also Golomb, 688 F.2d at 552 (“[I]n describing the plaintiff's

burden of proof, [the district court] correctly instructed that

.Golomb had to prove that ‘age was a determining factor’

.... emphasis in original); Miller v. Cigna Corp., 47 F.3d

586, 594 n.6 (3d Cir. 1995)(granting of a new trial on basis

that plaintiff need not prove that age was the “sole cause” of

the employment action); /d. at 593-594 (citing 110 Cong.

Rec. 2728, 13837 (1964))(congressional rejection of an

amendment that would have placed the word “solely” in front

of the words “because of”).

The issue presented here is of considerable significance in

a discrimination case such as this. The plaintiffs presented

clear evidence of discriminatory intent, in the form of severe

disparities in treatment between plaintiffs and their younger

counterparts and of internal memoranda describing the

plaintiffs in derogatory terms because of their age. The

reasons offered by the defendant for the adverse employment

actions were broad and general—({1) a_ reasonable

accommodation of competing interests; and (2) costs.

It would be very difficult for any plaintiff to prove that the

reasons stated by the defendant in this case were “false,” and,

under this Court’s precedents, plaintiffs should not have been

required to do so. The plaintiffs’ evidence was sufficient for

the jury to conclude that, whether or not the defendant was

concerned about costs, a reason it used its unhealthy concern

about plaintiffs’ older ages was a formative factor in

its decisions relating to the establishment of plaintiffs’

employment terms and conditions. Thus, age clearly

was “a determinative influence” in the adverse employ-

ment action. Similarly, whether or not the seniority

integration system seemed “reasonable,” it also was the result

of an intent on the defendant’s part to discriminate against the

plaintiffs because of their age. Whether or not defendant’s

proffered reasons for its actions may have been “true” as

propositions of fact, they were pretextual nonetheless.

This Court should clarify whether a discrimination plaintiff

must prove that the nondiscriminatory reason offered as a

proposition of fact by a defendant is “false.” The Second

Circuit’s decision here, requiring that plaintiff prove falsity,

to survive a motion for summary judgement, stands in direct

contrast to the Seventh Circuit’s decision in Golomb,

recognizing that “pretext” must not be equated with falsity

688 F.2d at 552: see also EEOC v. Louisiana Office of

Community Service, 47 F.3d 1438 (Sth Cir. 1995)(equating

“pretext” with “falsity”.

In St. Mary’s and Reeves, this Court did not address the

question addressed in Golomb and presented by this case. In

St. Mary's, the Court held that a discrimination plaintiff who

proves that the reasons proffered by the defendant were not

credible does not necessarily meet the ultimate burden of

persuading the factfinder that the defendant intentionally

discriminated against him. Both the majority and dissent in

this case assumed that the plaintiff had demonstrated that the

employer’s proffered explanation was “false.” The issue,

stated repeatedly by the majority, was whether the plaintiff

must prove “both that the reason was false, and that

discrimination was the real reason.” St. Mary's, 509 U.S. at

515, 507-508 (emphasis in original); '” see also id. at 534-

535 (Souter, J., dissenting) (majority places plaintiff at

tremendous disadvantage in having to confront “not the

' The language in St. Mary’s, that an employer’s “reason cannot be

proved to be a ‘pretext for discrimination’ unless it is shown both that the

reason was false, and the discrimination was the real reason,” has been

quoted by numerous courts. See Walton v. Bisco Indus., 119 F.3d 368,

370 (Sth Cir. 1997); Mitchell v. USBI Co., 186 F.3d 1352, 1355

(11th Cir. 1999).

defined task of proving the employer’s stated reasons to be

false, but the amorphous requirement of disproving all

possible nondiscriminatory reasons that a factfinder might

find lurking in the record”’)(emphasis added).

Taken out of context, the language of St. Mary’s suggests

that a showing of falsity is a necessary element of a

successful plaintiff's discrimination case. The Court, how-

ever, was addressing the facts of that case. The Court’s

analysis does not support a requirement that a plaintiff prove

“falsity.” The Court quotes Burdine’s recognition that proof

that an employer’s proffered explanation is not worthy of

credence is but one way in which a plaintiff may meet his

burden of proving discrimination. St. Mary’s 509 U.S. at 519.

In addition, the Court explains that “pretext” is the ultimate

issue, not an intermediate showing required of the plaintiff. It

is simply another way of stating the requirement that

“whatever the stated reasons for [the plaintiff’s] rejection, the

decision was in reality racially premised.” St. Mary’s, 509

U.S. at 517-18 (quoting McDonnell Douglas, 411 U.S. at 805

n.18). “Pretext,” in other words, is not the same as “falsity.”

A plaintiff must demonstrate “pretext.” He is not required to

demonstrate falsity if he can make a showing of pretextuality.

Similarly, in Reeves, the Court described the plaintiff's

“substantial showing that the [employer’s] explanation was

false,” and addressed what additional evidence was required

to support a verdict in the plaintiff’s favor. 530 U.S. at 144.

The Court noted the probative force of showing that an

employer’s explanation was unworthy of credence and

concluded that “a plaintiff’s prima facie case, combined with

sufficient evidence to find that the employer’s asserted

justification is false, may permit the trier of fact to conclude

that the employer unlawfully discriminated.” /d. at 148.

The Court in Reeves did not hold that a plaintiff may

prevail only if he demonstrates that the proffered reason was

“false.” In fact, the Court acknowledged that “[p]roof that the

defendant’s explanation is unworthy of credence is simply

one form of circumstantial evidence that is probative of

intentional discrimination.” Jd. at 147. It also noted the

probative force of the evidence of discriminatory comments

made by the decisionmaker behind the plaintiff’s firing.

Id. at 152.

This Court should clarify what showing a plaintiff must

make when the defendant has proffered evidence of a non-

discriminatory reason for the action. This Court has

addressed this issue only in the context of cases in which the

plaintiff has presented evidence that the proffered reason was,

as a proposition of fact, false. It has not addressed the issue

in the context presented here, where the plaintiffs presented

substantial evidence of discriminatory intent, sufficient to

support a finding that the proffered reasons were a “pretext”

for discrimination but not sufficient to establish that

defendant’s proffered reasons were “false” as a proposition of

fact.

II. GUIDANCE IS NEEDED ON THE STANDARD

FOR DETERMINING A SUMMARY JUDG-

MENT MOTION WHEN THE PLAINTIFF

DOES NOT PROVE THE EMPLOYER’S PROF-

FERED REASON “FALSE.”

Plaintiffs in this case presented clear evidence that the

adverse employment actions were motivated by Delta’s intent

to discriminate against them because of their age. Included in

that evidence were derogatory comments made by Delta

management about plaintiffs’ ages. The Second Circuit's

decision, affirming summary judgment despite that evidence,

is in direct contrast to decisions of other circuits recognizing

that “the decision as to an employer’s true motivation is one

reserved to the trier of fact.” Lowe v. City of Monrovia, 775

F.2d 998, 1009 (9th Cir. 1986)(as amended)(“When a

plaintiff doesn’t rely exclusively on the [McDonnell Douglas}

presumption but seeks to establish prima facie case through

the submission of evidence, very little such evidence is

necessary to raise a genuine issue of fact regarding

employer’s motive.”)(quoting Peacock v. DuVal, 694 F.2d

644, 645 (9th Cir. 1982))(citations omitted); see also Conrad

v. Delta Air Lines, Inc., 494 F.2d 914, 918 (7th Cir.

1974)(reversing summary judgment for defendant; proper

interpretation of Delta’s comments should be decided by the

trier of fact); Lindahl v. Air France, 930 F.2d 1434, 1438 (9th

Cir. 1991)(reversing summary judgment; whether facts

indicate discrimination should be resolved by a factfinder).

The evidence proffered in this case created a factual

dispute over whether Delta’s proffered reasons for its actions

were the “real” and “only” reasons, or whether age

discrimination “had a determinative influence on_ the

outcome.” See Reeves 430 U.S. at 611. Instead of recogniz-

ing that the plaintiffs were entitled to have the jury decide the

question of “intent,” based on an examination of all of the

evidence—the Second Circuit’s “falsity” requirement

artificially altered the focus of this case. The court’s focus

should have been on intent. With that focus, summary

judgement clearly would be inappropriate, because “the court

must draw all reasonable inferences in favor of the

nonmoving party, and it may not make credibility

determinations or weigh the evidence.” Reeves, 530 US. at

150 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 254

(1986)). In this case, the Second Circuit asked only whether

there was evidence of “falsity.” Finding none, it granted

summary judgment against the plaintiffs.

This Court’s guidance is needed to make clear that a

plaintiff who presents legitimate evidence of discriminatory

intent is entitled to have the jury decide his case. Absence of

proof of “falsity” of the employer’s proffered non-

discriminatory reasons should not neutralize the plaintiffs’

evidence of discriminatory intent and nullify their right to a

jury trial. The employer's proffered explanation should be

decisive at the summary judgment stage only if, in light of

that explanation, no reasonable juror could decide that the

adverse employment actions were motivated by a discrimin-

atory intent. Had that test been applied in this case, summary

judgment could not have been granted.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

EDWARD J.M. LITTLE ELIZABETH G. TAYLOR *

WILLIAM B. FLEMING ZUCKERMAN SPAEDER

ZUCKERMAN SPAEDER 1201 Connecticut Avenue, N.W.

27th Floor Washington, D.C. 20036

1114 Avenue of the Americas (202) 778-1800

New York, NY 10036

(212) 479-6500

August 13, 2001 * Counsel of Record

APPENDICES

tha

Coie

APPENDIX A

UNITED STATES COURT OF APPEALS,

SECOND CIRCUIT.

No. 1144, Docket 96-7721

MARK ABDU-BRISSON; et al.

Plaintiffs-Appellants,

DELTA AIR LINES, INC.,

Defendant-Appellee.

Argued March 6, 1997

Decided Oct. 15, 1997

Before: WALKER, McLAUGHLIN, and WOOD, JR.,

Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge.

Plaintiffs-appellants are 488 former pilots of Pan American

World Airways (“Pan Am”) hired in 1991 either as captains

or first officers by defendant Delta Air Lines at the time of

Pan Am’s bankruptcy. As a part of a bankruptcy transaction

Delta also acquired certain of Pan Am’s routes, aircraft, and

other employees not involved in this litigation.

The problem at the heart of this case arises because plaintiffs,

Pan Am’s pilots, are generally older than Delta’s pilots with

whom plaintiffs had to be integrated. To effect the pilot

assimilation the Air Line Pilots Association International and

* Harlington Wood, Jr., Senior Circuit Judge of the United States Court

of Appeals for the Seventh Circuit, sitting by designation.

Delta entered into a supplemental collective bargaining

agreement. Plaintiffs now claim that three of the terms of

their Delta employment violate New York city and New York

state law. Those employment terms relate to seniority rights,

post-retirement medical benefits, and salaries.

Plaintiffs filed their complaint in the New York State

Supreme Court in 1994 asserting claims under the New York

State Human Rights Law (“State HRL”), New York Exec.

Law § 296 (McKinney 1993), and the New York City Human

Rights Law (“City HRL”), N.Y. City Adminis. Code

§§ 8-107(1)(a) and (c) 8-107(17). Specifically, the plaintiffs

claim that Delta illegally discriminated and continues to

discriminate against them in the terms of their employment

on the basis of age, resulting from the manner the plaintiffs

were integrated into Delta’s pilot seniority list. The plaintiffs

also complain of the imposition of a ten-year service

requirement before they can become eligible for full

company-paid post-retirement medical benefits, and lastly,

plaintiffs complain of the imposition of a three-year period

before they can reach pay parity with Delta’s other pilots.

Delta removed the case from the state court to the district

court on the basis that the plaintiffs’ cause of action arose

under the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1001 et. seq., because plaintiffs were

seeking to modify the medical benefits plan. Delta in its

answer also raised the defense of preemption under the

Railway Labor Act, 45 U.S.C. § 151 ef. seq. (“RLA”).

Following discovery Delta moved to dismiss pursuant to

Fed.R.Civ.P. 12, or, alternatively, for summary judgment

under Fed.R.Civ.P. 56. In its motion to dismiss Delta argued

that the state and city HRLs did not apply to plaintiffs’

claims, that the Airline Deregulation Act (“ADA”) preempted

the plaintiffs’ claims, and that ERISA preempted the post-

retirement medical benefits claims. In a second motion to

dismiss Delta argued that the RLA preempted plaintiffs’

claims. In general, Delta argued that the plaintiffs’ suit was an

attempt to use the city and state HRLs to dictate the economic

terms of Delta’s purchase of the Pan Am assets, which must

fail because there is a direct relationship between the relief

sought and Delta’s prices, routes, or services, a relationship

prohibited by the ADA.

The district court granted Delta’s motion to dismiss only on

the ground that the ADA _ preempted plaintiffs’ age

discrimination claims.' The district court did not address

Delta’s additional arguments on the motion to dismiss, its

summary judgment motion or the RLA preemption issues.

Delta’s motion invoked the ADA’s preemption provision

which prohibits enforcement of any state or local law which

relates to the “price, route or service of an air carrier.”

U.S.C. § 41713(b)(1) (1996).

Our review of legal conclusions is de novo and for clear error

as to any factual findings. In re Vogel Van & Storage, Inc.,

59 F.3d 9, 11 (2nd Cir.1995).

ANALYSIS

The congressional authority to provide for preemption of state

law is based on the Supremacy Clause of Article VI of the

Constitution. Based on that authority, the ADA preempts

claims arising under state and city statutes which relate to a

“price, route or service.” 49 U.S.C. § 41713(b)(1) (1996).

That standard can be simply stated, but its practical

application in particular circumstances is difficult, as this case

' Abdu-Brisson v. Delta Air Lines, Inc., 927 F.Supp. 109

(S.D.N.Y.1996).

? The ADA in part provides as follows:

[A] State [or a] political subdivision of a State . . . may not enact or

enforce a law, regulation, or other provision having the force and

effect of law related to a price, route or service of an air carrier... .

49 U.S.C. § 41713(b)(1).

amply illustrates. The Supreme Court has not drawn any

distinct preemption lines for guidance, and that may not be

possible.

In Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384,

112 S.Ct. 2031, 2037, 119 L.Ed.2d 157 (1992), the Supreme

Court did explain that a state law is “related to” airline routes

or services if it has “a connection with or reference to airline

‘rates, routes, or services.” “ Had the court stopped there

preemption would have a very broad sweep. However, the

court went on to note that “[sJome state actions may affect

{air line fares] in too tenuous, remote, or peripheral a manner”

to have a preemptive effect. Morales, 504 U.S. at 390, 112

S.Ct. at 2040 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S.

85, 100 n. 21, 103 S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490

(1983)); see also American Airlines, Inc. v. Wolens, 513 U.S.

219, 224, 115 S.Ct. 817, 821-22, 130 L.Ed.2d 715 (1995)

(reaffirming the preemption escape hatch set forth in

Morales ).

Therefore, if a state provision is “too tenuous, remote, OF

peripheral” to have an effect on “price, route or service,” the

ADA does not preempt that provision. The question in this

case is whether the New York state and local laws fit this

description.

A. Decision Below

In dismissing the complaint on the basis that the ADA

preempted plaintiffs’ state law claims, the district court read

Morales and Wolens to formulate a two-part test. 927 F.Supp.

at 111. Under the first part of the test, the plaintiffs’ claims

must involve the enforcement of a state law. Under the

second part, the state law must have a connection with or

relation to airline prices, routes, or services. Plaintiffs

acknowledge that Morales and Wolens define a two-part test

for analyzing ADA preemption issues, but plaintiffs challenge

the district court’s application of the second part of the test.

Delta argued that any change in the ten-year service

requirement for full post-retirement medical benefits and

plaintiffs’ pay scale would have a direct economic impact on

Delta’s prices and, thus, would relate to Delta’s prices. 927

F.Supp. at 111. Plaintiffs, however, argued that any supposed

effect on Delta’s prices would be too insignificant to take into

account. /d. Plaintiffs further argued that Delta could easily

absorb the limited number of plaintiffs into its pilot group

without the necessity of passing on any added costs to the

public. /d.

The district court saw the issue not as whether the state laws

would have a significant effect on price, but whether the state

laws would interfere with the congressional scheme of airline

deregulation intended to promote competition so as to achieve

“efficiency, innovation and low prices.’ /d. at 111-12. The

district court reached this conclusion on the basis of the sound

assumption that the states could not be permitted to undo —

federal deregulation with their own regulations. The district

court therefore determined that it was the potential impact of

state law that had to be considered, not any actual liability

exposure. /d. at 112. Otherwise, the district court observed, it

would inappropriately involve itself in the merits of the case,

not just the initial preemption issue. /d. Having found that the

plaintiffs “essentially concede[d] the logic of Delta’s

argument,” id. at 111, the district court accepted Delta’s

position that the medical benefit and pay scale provisions of

plaintiffs’ employment sufficiently related to price and that

claims concerning those provisions were therefore necessarily

preempted. /d. at 112.

The district court also considered the effect the resulting pilot

personnel changes might have on “services.” In the district

court’s judgment, it had to determine whether or not pilot

staffing was “related to” Delta’s “services,” rather than what

> 49 U.S.C.App. §§ 1302(a) and (9).

the actual effect on Delta’s services would be. /d. The district

court in interpreting “services” relied on Hodges v. Delta

Airlines, Inc., 44 F.3d 334, 336 (Sth Cir.1995) (en banc),

which defined “services” as the “[e]lements of the air carrier

service bargain include items such as ticketing, boarding

procedures, provisions of food and drinks and baggage

handling, in addition to the transportation itself.” Delta

argued that the changes in pilot staffing would cause turmoil

among Delta’s pilots, disrupting flight deck relationships and

thereby affecting Delta’s transportation services. 927 F.Supp.

at 112. Plaintiffs argued that Delta made an insufficient

showing that changes in the order of the seniority list would

result in turmoil on the flight deck, thereby disrupting flight

deck relationships to the extent that “services” would suffer.

However, the court adopted Delta’s argument and found that

the plaintiffs’ claims would impact transportation itself, not

the usual ticketing, boarding procedures, and that therefore

claims regarding the seniority list related to services and were

preempted. /d.

The district court’s approach and analysis is not unreasonable

considering the difficulties inherent in applying the imprecise

ADA preemption standard. However, in light of the Supreme

Court’s recent narrowing of ERISA’s preemption provision,

the district court’s approach would sweep too many state

regulatory statutes under the rug of ADA preemption.

Therefore, we cannot accept the district court’s approach as

applied.

B. Supreme Court Preemption J urisprudence

The “related to” language of the ADA provides neither a

predictable nor practical formula for distinguishing

preempted from non-preempted state and local laws, and the

Supreme Court has provided little guidance as to the meaning

of “related to” after Morales and Wolens. However, because

the language in the ADA’s preemption clause is similar to the

language in ERISA’s preemption clause, the Supreme Court

in Morales adopted the same standard. Thus, we may look to

ERISA cases for guidance.

The Supreme Court in addressing the preemption provisions

of ERISA has been limiting preemption’s reach.* “Related

to” appears to be developing, to some degree, to mean

whether state law actually “interferes” with the purposes of

the federal statute, in this case airline deregulation. See New

York State Conf. of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 1676-

77, 131 L.Ed.2d 695 (1995); see also Boggs v. Boggs, 520

U.S. 833, —, 117 S.Ct. 1754, 1760, 138 L.Ed.2d 45 (1997)

(“We can begin, and in this case end, the analysis by simply

asking if state law conflicts with the provisions of ERISA or

operates to frustrate its objects.”); Burgio and Campofelice,

Inc. v. New York State Dept. of Labor, 107 F.3d 1000, 1008

(2d Cir.1997). For example, in Travelers, 514 U.S. at 655,

115 S.Ct. at 1676-77, the Court noted that the literal text of

ERISA was “clearly expansive,” but for practical purposes

the statute had to be read more restrictively lest its reach stop

nowhere. The Court found that the “related to” language in

ERISA’s preemption clause did not modify the presumption

that Congress did not intend to supplant state law. 514 U.S. at

654, 115 S.Ct. at 1676. Thus, the Court began its analysis

with the assumption that “the historic police powers were not

to be superseded by the Federal Act unless that was the clear

and manifest purpose of Congress.” /d. at 655, 115 S.Ct. at

1676 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). The Court

conceded that its prior attempts to draw a preemption line

* See, e.g., California Div. of Labor Standards Enforcement v.

Dillingham Const., N.A., Inc., 519 U.S. 316, 117 S.Ct. 832, 136 L.Ed.2d

791 (1997); New York State Conf. of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695

(1995).

ning mania ii

a aaa ee a eae

were not always helpful, id. at 655, 115 S.Ct. at 1676-77, and

that ERISA’s text also is unhelpful in determining

congressional intent. Thus, the Court explained that it must

“look instead to the objectives of the ERISA statute as a

guide to the scope of the state law that Congress understood

would survive.” /d. at 656, 115 S.Ct. at 1677.

In another preemption case recently decided in the ERISA

context the Supreme Court in DeBuono v. NYSA-ILA Medical

and Clinical Serv., —U.S. —, —, 117 S.Ct. 1747, 1753, 138

L.Ed.2d 21 (1997), found no preemption in a majority

opinion written by Justice Stevens, and reversed. The Court

*83 explained that the court of appeals in holding otherwise,

had relied substantially on a too expansive and too liberal

interpretation of “relate to.” Id. at —, 117 S.Ct. at\1751. It

faulted the appellate court “for failing to give proper weight

to Travelers rejection of a strictly literal reading” of that

statute and reiterated the presumption against preemption. Id.

Because the challenged state law concerned health and safety,

an area traditionally regulated by the states pursuant to their

police powers, the Court explained that the party arguing in

favor of preemption “[bore] a considerable burden of

overcoming ‘the starting presumption that Congress did not

intend to supplant state law.” “ Id. at —, 117 S.Ct. at 1752

(quoting Travelers, 514 US. at 654, 115 S.Ct. at 1676).

Delta, therefore, would seem to bear the burden of

overcoming the initial presumption against preemption by

establishing that enforcing the state and city laws would

frustrate the purpose of the ADA. See Travelers, 514 USS. at

654, 115 S.Ct. at 1676 (“we have never assumed lightly that

Congress has derogated state regulation, but instead have

addressed claims of pre-emption with the starting

presumption that Congress does not intend to supplant state

law”); Gade v. National Solid Wastes Management Ass'n,

505 U.S. 88, 98, 112 S.Ct. 2374, 2383, 120 L.Ed.2d 73

(1992) (The court’s “ultimate task in any pre-emption case is

to determine whether state regulation is consistent with the

OE eT ee eR Ce Ee NE oe oe Mg eT ee ee Pat ee ae eae

ab SA i IN le SPP

structure and purpose of the statute as a whole.’’). In fact,

lower courts considering whether the ADA preempts a state

claim have required the airlines to meet this burden, and

several have found that they fail to do so. We begin with

Delta’s assertion that the plaintiffs’ pay parity claims and

benefits claims are preempted because they relate to airline

prices.

C. Preemption Based of Affect on Price

In Ruggiero v. AMR Corp., No. C 94-20160 JW, 1995 WL

549010, (N.D.Cal. Sept. 12, 1995), the district court ruled

against preemption of the plaintiff’s retaliatory discharge

claims because the airline put forth no evidence that the

plaintiff's claims would frustrate the purposes of the ADA. In

addition to citing this lack of evidence, the court also found

the plaintiff's retaliatory discharge claims distinguishable

from claims for discrimination based on_ physical

characteristics which other courts had held were preempted

because Federal Aviation Administration regulations

promulgated under the ADA _ prescribed physical

requirements for pilots but did not regulate wrongful

termination. /d.

Likewise, in Anderson v. American Airlines, Inc., 2 F.3d 590,

597 (Sth Cir.1993), the Fifth Circuit ruled against preemption

of a claim for monetary damages under a state retaliatory

discharge statute. Although the case came before the Fifth

Circuit on an appeal from a order denying remand, to resolve

the appeal, the Anderson court had to determine whether a

state’s retaliatory discharge statute related to airline services

in the context of ajmechanic’s claim that the airline

discharged him in retaliation for filing a workers

compensation claim. /d. In reaching its holding, the court

noted that Congress passed the ADA to deregulate the airline

industry and that the ADA authorized the Department of

Transportation to establish rules and regulations to promote

oe ae

10a

civil aircraft safety. Jd. Thus, the court explained that a claim

for monetary relief resulting from a retaliatory discharge

would have too remote an effect on services to be preempted,

while a claim for reinstatement may have a significant

enough effect on services to be preempted under the ADA

because the regulations promulgated under the ADA establish

the minimum requirements for the certification of airline

mechanics. /d.

Most notably, the New York appellate court recently upheld

several age discrimination and disability and marital status

discrimination claims filed by Pan Am flight attendants who

became Delta employees as the result of the same transaction

as the one at the heart of this case. Delta Air Lines, Inc. v.

New York State Div. of Human Rights, 229 A.D.2d 132, 652

N.Y.S.2d 253, 257-258 (N.Y.App.Div.1996), leave to appeal

granted, 657 N.Y.S.2d 891 (N.Y.App.Div.1997).

In reaching its holding the court noted that preemption is not

favored absent “persuasive reasons” that either the nature of

the subject matter of the state regulation requires preemption

or Congress has expressly prescribed *84 preemption, id. 652

N.Y.S.2d at 257, and that preemption must be determined on

a case-by-case basis, ascertaining whether “the dangers and

hardships of diverse regulation justify foreclosing a State

from the exercise of its traditional powers.” Id. 652 N.Y.S.2d

at 257-58 (quoting Colorado Anti-Discrimination Comm. v.

Continental Air Lines, 372 U.S. 714, 719, 83 S.Ct. 1022,

1024-25, 10 L.Ed.2d 84 (1963)). The court reasoned that

because compliance with the city and state human rights laws

would not interfere with the airline’s ability to comply with

the ADA, because the ADA did not prescribe what

constituted discrimination against airline employees and

because a finding either for or against the airline would not

frustrate the purpose of the ADA, the ADA did not preempt

the plaintiffs’ claims. /d. 652 N.Y.S.2d at 258. The same

might be said in this instance.

lla

Most central to this analysis, Delta is unable to establish that

enforcing the city and state human rights laws in this case

would frustrate the purpose of the ADA. See Gade, 505 U.S.

at 98, 112 S.Ct. at 2383. Although the policies behind the

ADA are several, the primary motivation for the reform—as

the name of the statute indicates—was to deregulate the

industry. The ADA was based on a Congressional assumption

that “ ‘maximum reliance on competitive market forces’

would best further ‘efficiency, innovation, and low prices’ as

well as ‘variety [and] quality . . . of air transportation

services’... .” Morales, 504 U.S. at 378, 112 S.Ct. at 2033

(quoting 49 U.S.C. §§ 40101(a)(6), 40101(a)(12) (formerly

codified at 49 U.S.C.App. §§ 1302(a)(4), 1302(a)(9))).

Permitting full operation of New York’s age discrimination

law will not affect competition between airlines—the primary

concern underlying the ADA. Unlike the regulation of

marketing practices at issue in Morales or the regulation of

frequent flyer programs at issue in Wolens, whether an airline

discriminates on the basis of age (or race or sex) has little or

nothing to do with competition or efficiency. Although one

may argue that shedding older workers can result in savings,

such savings will result in a better competitive position only

indirectly, if at all. Moreover, to the extent that the scope of

the protected group in age discrimination statutes may vary

from jurisdiction to jurisdiction, state and local age

discrimination laws are little different from generally

applicable tax, environmental, or blue sky laws, which as a

general matter are not preempted under the ADA.

Moreover, even were we to consider the actual impact of

New York human rights laws on Delta’s prices, we would

reach the same result on the record before us. Initial

preemption issues usually do not require extensive examin-

ation of the underlying facts of the case. Thus, the district

court’s reluctance to examine “the particular liability

exposure in this case” and deference to Delta’s representation

that the claims would affect price and services is

12a

understandable. See 927 F.Supp. at 112. However, sometimes

even a jurisdictional issue may even require a lengthy trial.”

This may be another such case where preemption can not be

easily determined from the pleadings. Thus, while in the

abstract post-retirement medical benefits and pilot pay scale

could affect price, we do not see that substantiated in this

particular case.

Delta claims and the district court accepted that the state laws

“would have a direct economic impact on the price it charges

consumers.” To Delta it is a matter of simple economics that

plaintiffs’ claims indisputably relate to Delta’s rates. In

general, Delta argues that an airline’s principal source of

revenue is from its passenger fares so that whatever an airline

has to pay out in salaries and benefits would impact its prices.

Delta argues paying out more in salaries and benefits would

increase-its costs, and it would have to increase its prices to

stay in business. Plaintiffs, however, dispute the common

economic relationship between costs and prices as applied to

airline pricing, and we agree with the plaintiffs that under the

peculiar circumstances of airline pricing such a relationship is

not a matter of simple economics. As a matter of airline

economics, not every airline cost has the requisite connection

with and effect on fares to justify preemption. As the

Supreme Court recognized in Morales, airline fare pricing is

based on “yield management,” a unique formula largely

controlled by the forces of demand and competition, not

costs. See 504 U.S. at 389, 112 S.Ct. at 2039-40 (explaining

yield management without using the term “yield

management”). Indeed, in their opening brief in the Supreme

Court in Morales, fourteen airlines involved in that case, but

not including Delta, explained airline pricing practices as

follows:

> See, e.g., Sherrill v. MoShan, 356 F.2d 607, 608 (9th Cir. 1966).

Sib esol Ip nr bet NOELIA RE,

13a

Airlines currently employ extremely sophisticated

computer programs to allocate fare on a flight-by-flight,

day-by-day basis under “yield management” systems

designed to ensure that each flight takes off with as

many seats filled as possible. Under this system, airlines

continuously analyze the demand for seats on each flight

and alter the mix of different fares in order to fill the

flight. The number of seats available at different fares

can change up to the departure of the flight... .

Moreover, fare adjustments are also made in order to

meet competition from other airlines. (Pls.’ Addendum

at 29, U.S. Supreme Ct. Resp. Br. in Morales at 29-30).

Plaintiffs point out additional support for this pricing

argument in a recent airline industry treatise:

In no other industry has the idea of demand-based

pricing been as thoroughly embraced as in the airline

industry. Since the early days of deregulation, domestic

carriers and, increasingly, international flag carriers,

have realized that they cannot price on a cost plus basis.

Unfortunately, this has led many pricing organizations to

ignore cost and, more importantly, supply in making

pricing decisions. The simple realization that airline

seats are, for the most part, a commodity product has led

airlines to match competitive actions quickly without

carefully analyzing the implications to _ the

supply/demand balance. Steven S. Kretsch, Airline Fare

Management and Policy, in Handbook of Airline

Economics, 477, 480 (Darryl Jenkins et al. eds., 1995)

(emphasis added). Delta does not contend that it adheres

to a different pricing practice.

It seems that under this pricing structure, even if plaintiffs’

demands would increase fixed costs, they would have an

inconsequential impact on Delta’s pricing. (According to

plaintiffs the total damages sought, including for benefits

payable in the future, even if all paid at once by Delta, would

l4a

amount to about 0.86% of Delta’s 1995 expenses and about

0.81% of Delta’s 1995 revenues.) Thus, even if we

considered their actual effect on prices, the city and state

statutes would not warrant preemption.

D. Preemption Based on Affect on Services

With respect to the seniority claims, the district court

accepted Delta’s argument that altering seniority would

disrupt flight deck harmony and _ thus affect services.

However, the record does not support that claim. Plaintiffs

point out that in a pending summary judgment motion also

filed by Delta, Delta claimed it would receive no benefit in

discriminating against plaintiffs on the basis of age since

seniority affects only the rights between the pilots themselves

for the purposes of their bidding for flights and job

assignments. In the summary judgment motion, Delta argued

that pilot seniority does not affect the company itself.

Plaintiffs in turn argue that Delta cannot have it both ways,

claiming in one motion that it has no motive to discriminate

because seniority is no concern to the company, and then

claiming that seniority does affect the company because it

impacts flight deck relationships, thereby affecting services.

We agree. Thus, even considering the actual effect, Delta

seems to have failed to establish that plaintiffs’ claims affect

its services.

CONCLUSION

In his concurring opinion in Dillingham Construction, Justice

Scalia labelled the ERISA preemption clause an “illusory

test,” a description which also fits the similar ADA

preemption clause. California Div. of Labor Standards

Enforcement v. Dillingham Const., N.A., Inc., 519 U.S. 316,

117 S.Ct. 832, 136 L.Ed.2d 791 (1997) (Scalia, J.,

concurring). We appreciate the difficulties for all parties,

including the district court, but we can offer no bright

15a

line relief. Our only recourse is to apply the ADA preemp-

tion provision as we understand its meaning on a case-by-

case basis.

In possible preemption areas where common federal and state

| interests exist, courts should seek, if possible, some

; reasonable and uniform accommodation which does not

frustrate either the full congressional purposes and objectives

or state policies in determining the relationship between

federal and state laws. If that is not possible, and state law

interferes and conflicts with federal law, then federal law

must prevail. Clearly state law cannot interfere, conflict with,

or frustrate federal law lest it be federal law that is preempted

by the state. If state laws, however, are preempted merely

! because they can be said to broadly and generally “relate to

prices or services” only in some tenuous, remote or peripheral

| way and thus preempted, then it is federal law which is

! unnecessarily interfering with legitimate state laws and

; policies. We do not believe that congressional intent should

) be so broadly interpreted without clear justification.

In this case the New York state and local laws do not directly

affect prices, routes or services and although enforcement of

the claims may have some effect on prices, routes or services,

nothing in the record suggests that this effect is the type of

effect which Congress intended to prohibit under the ADA.

Thus, the supposed state interference is too “tenuous, remote

or peripheral” to justify the preemption of New York’s

applicable laws, and we do not believe that we may sustain

the district court’s finding of preemption on this record. To

borrow the flight vernacular that the First Circuit used in

French v. Pan Am Express Inc., 869 F.2d 1 (1st Cir.1989),

New York’s laws have not yet been “grounded.”

The other related issues pled were neither discussed or

resolved by the district court, so we will not attempt to

resolve them here. They remain in the case for the further

consideration of the district court as it may deem necessary.

l6a

This case must therefore be remanded to the district court for

further consideration of those issues.

REVERSED AND REMANDED for further proceedings

consistent with this opinion.

17a

APPENDIX B

UNITED STATES COURT OF APPEALS,

SECOND CIRCUIT.

No. 99-9359.

MARK ABDU-BRISSON, et al.,

Plaintiffs-Appellants,

¥.

DELTA AIR LINES, INC. and AIR LINE PILOTS

ASSOCIATION INTERNATIONAL,

Defendants-Appellees.

Argued: Nov. 6, 2000

Decided: Feb. 12, 2001

Before KEARSE, McLAUGHLIN, and STRAUB, Circuit

Judges.

McLAUGHLIN, Circuit Judge:

Plaintiffs are several hundred pilots who were employed by

the now-defunct Pan American World Airways, Inc. (“Pan

Am’). They were hired by Delta Air Lines, Inc. (“Delta’’)

pursuant to an Asset Purchase Agreement between the two

airlines. The pilots filed an age discrimination action in New

York State Supreme Court challenging three specific terms of

their employment with Delta. Delta removed the case to the

United States District Court for the Southern District of New

York (Baer, J.), and eventually filed a motion for summary

judgment. The district court granted Delta’s motion, finding

that Plaintiffs had failed to establish a prima facie case of age

discrimination, and dismissed Plaintiffs’ complaint. Plaintiffs

now appeal.

18a

We hold that, while the district court erroneously concluded

that Plaintiffs had not met their prima facie burden, summary

judgment for Delta was nevertheless appropriate because

Plaintiffs adduced no evidence that Delta’s legitimate non-

discriminatory explanations for each of the challenged

employment terms were false. Accordingly, we affirm the

decision of the district court.

BACKGROUND

A. Facts

This age discrimination action against Delta has an unlikely

origin, rising, as it does, from the ashes of the bankruptcy of

Pan Am. In January 1991, Pan Am finally succumbed to two

years of crushing financial pressures caused by the bombing

of Pan Am Flight 103 over Lockerbie, Scotland, and the

dismal economic conditions that followed. Seeking protection

from its creditors, Pan Am filed for bankruptcy under Chapter

11 of the Bankruptcy Code.

In its attempt to hammer out a reorganization plan, Pan Am

contemplated the sale of some or all of its assets. By the early

spring of 1991, Pan Am was actively shopping its assets to its

competitors. Pan Am representatives met with several senior

officers of Delta to pitch Pan Am’s assets. Included in Pan

Am’s written presentation was a chart demonstrating that Pan

Am expected half of its pilot force to retire within five years,

(compared to only about 12% at Delta). Presumably, this was

viewed as a selling point because it anticipated a reduced cost

structure down the road for whoever purchased Pan Am’s

assets. Shortly after that meeting, Delta began a due diligence

campaign to evaluate the Pan Am assets.

The due diligence operation was headed up by Delta’s Vice

President of Flight Operations, Harry Alger. Alger quickly

concluded that Pan Am’s pilot retirement projections were

too rosy, due, at least in part, to the “two-step bid down”

a ae eee

19a

system that Pan Am employed. A commercial airline cockpit

crew includes a captain, a first officer (also known as a co-

pilot), and, usually, a flight engineer (also known as a second

officer). The Federal Aviation Administration (“FAA”)

requires that captains and first officers retire from those

positions upon reaching the age of 60. A “two-step bid down”

system allows captains who have reached the mandatory

retirement age to “bid down” and continue to fly as flight

engineers, a cockpit position that has no FAA-mandated

retirement age. In 1991, Delta, by comparison, did not permit

captains and first officers over the age of 60 to bid down for

flight engineer positions, although it did permit them to hold

ground positions with the airline. It was true that Pan Am

employed many pilots approaching the age of 60, but Alger

believed that few of them would, in fact, retire, surmising

most would simply bid down for flight engineer positions and

Stay on the payroll.

In May 1991, Alger reported his conclusion to his supervisor,

Rex McClelland. McClelland’s notes of the conversation state

that “Pan Am is burdened with a two-step bid down system

and has several ‘aged’ flight engineers, some in their 70s and

one in particular, age 72 plus (born in 1919).” In other

undated notes, Alger denigrated the Pan Am personnel as a

“Contaminated workforce especially since 1987.” He further

noted that 68 pilots were over age 60 and four were over age

70. Alger concluded that 50% of the Pan Am workforce

would not retire until 2001—not 1995 as Pan Am had

advertised. In another set of undated handwritten notes,

Alger, ruminating over the potential labor conflicts that could

emerge out of the integration of Pan Am personnel, wrote,

“Long Term potential [for labor strife] put here after the Bad

Apples have long since retired.”

Despite this apparent unhappiness with the age of Pan Am’s

cockpit personnel, Delta continued to pursue the acquisition

of Pan Am assets. By July 1991, Delta had agreed in principle

20a

to pay $260 million for Pan Am’s profitable transatlantic

routes, the Pan Am Shuttle, which offered hourly service

between Boston, New York and Washington, D.C., and the

aircraft which flew those routes. (Delta’s competitor airlines

quickly launched a bidding war that escalated the price of the

Pan Am assets dramatically.) On July 27, 1991, Delta entered

into an Asset Purchase Agreement (“APA”) with Pan Am

whereby Delta would pay $416 million in cash and would

assume certain Pan Am liabilities including $70 million in

aircraft mortgages and up to $100 million of previously

issued Pan Am passenger tickets on the purchased routes. The

APA also provided that Delta would offer permanent

employment to at least 6,600 Pan Am employees, including at

least 700 of Pan Am’s approximately 2,600 pilots. However,

the APA specifically stated that, “Buyer [Delta] will

determine in its sole discretion ... the terms and conditions of

[the Pan Am employees’] employment.” On August 12, 1991,

the deal was approved by the United States Bankruptcy Court

for the Southern District of New York. See Pan Am Corp. v.

Delta Air Lines, Inc., 175 B.R. 438, 447 (S.D.N.Y.1994).

The APA set up a procedure whereby Delta would first close

on the Shuttle assets, and then on the Pan Am transatlantic

operations shortly thereafter. Delta targeted September |,

1991 for the closing of the Shuttle acquisition and November

1, 1991 for all remaining aspects of the APA.

Additionally, Delta’s management decided that it wanted the

acquisition to be a “turnkey operation”—.e., ownership of

the assets would be transferred from Pan Am to Delta without

any disruption in service. Thus, the Shuttle, which would, on

August 31, be a Pan Am operation, would become, on

September 1, a fully functioning Delta operation. This

turnkey feature would eliminate the necessity for ticket

refunds and minimize passenger alienation. Delta, however,

needed to overcome several obstacles before it could meet

these objectives. The most formidable was the integration of

Pan Am pilots into the Delta’s pilot seniority list.

a I san ance ith. lt

2la

1. Seniority Integration Methodology

The APA required Delta to hire at least 700 Pan Am pilots.

As a practical matter—and quite apart from the APA—Delta

needed to hire Pan Am pilots to fly the newly acquired

transatlantic routes. This was because Pan Am’s transatlantic

routes were flown primarily with Airbus 310 (“A-310”)

aircraft, a twin-engine widebody jet. Since the A-310 makes

over-ocean voyages with only two engines, the FAA

mandates that pilots of that aircraft receive special training

addressing the particular safety concerns presented. Delta had

not owned any A-310s, and thus none of its pilots were

qualified to fly that aircraft. Therefore, in order to meet its

turnkey objectives, Delta needed to hire Pan Am pilots who

were qualified on the A-310.

Delta had purchased, in the transatlantic routes, the cream of

the Pan Am crop; and the pilots who flew those routes were

among the most senior at Pan Am. For commercial airline

pilots, seniority is everything. Airlines maintain seniority lists

ranking each of their pilots by their length of service for the

particular airline. Each month, to obtain work assignments,

pilots bid for particular positions (captain, first officer, second

officer), on particular aircraft, flying particular routes out of

particular airports, some more desirable than others.

Assignments are by seniority.The seniority status of Delta’s

pilots was protected in the collective bargaining agreement

Delta had with the pilots’ labor union, the Air Line Pilots

Association (“ALPA”).! As is the custom in the airline

industry, that agreement required Delta to place newly hired

pilots at the bottom of Delta’s seniority list, regardless of the

length of cockpit experience the newly hired pilot may have

had with other airlines. (For this reason, pilots typically spend

' ALPA finds itself a defendant in this action only because it was

joined as a co-defendant by Delta, pursuant to Fed.R.Civ.P. 19, as its

presence was necessary for complete relief between the parties.

22a

their entire careers with a single airline; the switching costs

for senior pilots are too high.) However, the senior Pan Am

pilots that Delta needed made it clear that they would not

leave Pan Am, even if it was in bankruptcy, if they were tq be

cast down to the bottom of the Delta pilot seniority list. Thus,

to close the APA and meet its turnkey objectives, Delta had to

negotiate a concession from ALPA that would amend the

collective bargaining agreement to let Delta integrate the Pan

Am pilots into the Delta seniority list.

The existing Delta pilots had to protect their own turf. They

were understandably concerned that the APA and the

integration of Pan Am pilots would dilute their own status on

the Delta seniority list. After extensive analysis of the impact

of various integration methodologies, Delta and ALPA

eventually agreed on a “modified status ratio methodology”

that would spread Pan Am pilots equitably throughout Delta’s

seniority list.

The starting point for the integration was the position held by

the most senior Delta pilot of whatever aircraft was deemed

to be most nearly equivalent to the A-310. Delta deemed its

Boeing 767ER (‘“B-767ER”) to be most equivalent to the A-

310 because both were long-haul twin-engine aircraft,

although the B- 767ER was not cleared for over-ocean

voyages. Delta’s most senior B-767ER pilot occupied spot

#590. Thereafter, the methodology separately integrated the

Pan Am captains, first officers and flight engineers, according

to a ratio based on the number of comparable positions

expected to exist at Delta, in the absence of the APA, as of

the end of 1992.* Thus, the formula called for dividing the

number of Delta captain positions (at B-767ER captain level

2 The methodology used the number of Delta pilot positions anticipated

(before the Pan Am acquisition) as of year end 1992 to account for the

Delta pilots’ expectation of significant job growth within the airline,

which, as of the fall of 1991, had not yet occurred.

23a

and below) anticipated to exist as of the end of 1992—that is,

3,360—by the number of Pan Am captains eventually hired

by Delta—286. This resulted in a ratio of approximately

twelve to one. Thus, one Pan Am captain was integrated after

every twelve spots beneath #590—at #603, #616, #629, #641

and so on. After all the Pan Am captains had been integrated,

the Delta first officers and flight engineers were then ratioed

with their acquired Pan Am counterparts, resulting in one Pan

Am position being created after each ten or eleven Delta

positions throughout the remainder of the seniority list.

While the modified status ratio methodology gave the

acquired Pan Am pilots enhanced bidding seniority vis-a-vis

new hires, it also resulted in placing many former Pan Am

pilots in spots below Delta pilots with less cockpit

experience. Thus, once they moved over to Delta, several Pan

Am pilots were relegated to cockpit positions, aircraft, and

routes less desirable than those they had flown at Pan Am.

For example, some 55-year-old Pan Am pilots found

themselves flying in positions junior to 35-year-old pilots

who had been with Delta their entire career. However, the

Pan Am pilots were integrated in seniority order—that is,

within the integrated seniority list, and thus, Pan Am pilots

maintained their seniority relative to other Pan Am pilots.

On August 30, 1991, Delta and ALPA entered into a

supplemental collective bargaining agreement authorizing

Delta to implement the modified status ratio methodology to

integrate the Pan Am pilots into the Delta seniority list on

November 1, 1991, the same day that the final aspects of the

acquisition were scheduled to close.

Immediately after the execution of the supplemental

collective bargaining agreement, Delta began to offer

employment to qualified Pan Am pilots according to their

relative seniority on the Pan Am seniority list, ultimately

hiring 774 Pan Am cockpit personnel. In addition to the

integration methodology, Delta set two other terms of

24a

employment for the Pan Am pilots that are at issue in this

case: a ten-year service requirement for fully paid post-

retirement medical benefits and a pay scale that increased pay

rates from Pan Am levels to Delta levels gradually over three

years.

2. Post-Retirement Medical Benefits

Years ago, Delta management had instituted a ten-year

service requirement before Delta would pay the full cost of a

non-pilot +employee’s post-retirement medical insurance

premiums. The ten-year service requirement was eventually

applied to Delta’s pilots when Delta and ALPA entered into a

collective bargaining agreement in October 1990. However,

in August 1991, the ten-year service requirement was waived

to exempt all pilots who were on the Delta seniority list as of

August 27, 1991 and had reached age 50 on or before January

1, 1992.

Because the Pan Am pilots were not integrated into the

seniority list until November 1, 1991, none of them qualified

for this grandfather clause. As discussed above, at the time of

the APA, Delta did not permit its captains and first officers to

bid down for flight engineer positions after they had reached

the FAA-mandated retirement age of 60. Thus, any Pan Am

pilots who were over 50 at the time of the APA would not be

able to qualify for fully paid post- retirement medical benefits

unless they were willing to accept employment in a ground

position after they turned 60.

3. Pay Scale Disparity

Due to Pan Am’s extreme financial distress when the APA

deal was struck most Pan Am employees were earning

significantly less than their Delta counterparts, and the pilots

were no exception. When Delta offered employment to the

Pan Am pilots, it did so at their pre-existing Pan Am pay rates

with scheduled incremental increases to parity with Delta’s

Bashar 6 Sacre n Siteopt rte uns wo 9 de

25a

pay scale spread out over three years. Delta’s pilot pension

benefits were calculated based upon the pilot’s final average

earnings (defined as the one-year average of the best 36

months’ earnings over the final ten years of employment).

Thus, by not immediately jumping all Pan Am employees up

to the Delta pay scale, the Pan Am pilots who retired within

six years of the closure of the transaction would receive

a reduced pension benefit vis-a-vis a similarly situated

Delta pilot.

Eventually, 774 Pan Am pilots accepted Delta’s offer of

employment. Because Delta offered positions according to

Pan Am’s seniority list, Delta ended up hiring a very senior

group of pilots. Approximately 95% of the Pan Am pilots

hired by Delta were age 40 or older and 70% were age 50 or

older. The acquisition of the Shuttle assets closed on

September 1, 1991, the remainder of the APA closed on

November 1, 1991, and Delta accomplished its turnkey

objectives. Pan Am, on the other *465 hand, ceased all

operations in December 1991, and one of the most venerable

names in American aviation was liquidated shortly thereafter,

leaving thousands of Pan Am pilots and employees not hired

by Delta jobless.

B. Procedural History

In 1994, Plaintiffs, 488 former Pan Am pilots and flight

engineers who were hired by Delta, filed this suit in New

York State Supreme Court alleging violations of the New

York State Human Rights Law, N.Y. Exec. Law § 296 (“State

HRL”) and the New York City Human Rights Law, N.Y. City

Admin. Code §§ 8-107(1)(a), (c),-107(17) (“City HRL”).

They alleged that Delta had discriminated against them based

upon their age by implementing the seniority list integration

methodology, the ten-year service requirement for full post-

retirement medical benefits and the three-year period of pay

disparity. More specifically, Plaintiffs alleged that Delta

knew it was hiring a group of Pan Am pilots that was, by and

26a

large, very senior, and that Delta crafted the terms of

employment with the specific intent of prejudicing them vis-

a-vis their largely younger Delta counterparts.

Delta removed the case to the United States District Court for

the Southern District of New York (Baer, J.) on the ground

that Plaintiffs’ claims arose under the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001,

et seq., insofar as the remedies sought by the Plaintiffs

required the modification of a medical benefits plan. Once in

federal court, Delta quickly moved for dismissal of the

complaint on the ground that the claims therein were

preempted by ERISA and the Airline Deregulation Act, 49

U.S.C. § 41713 (“ADA”), or alternatively, for summary

judgment.

In May 1996, Judge Baer granted Delta’s motion to dismiss,

finding that Plaintiffs’ state law claims were preempted by

the ADA. See Abdu-Brisson v. Delta Air Lines, Inc., 927

F.Supp. 109 (S.D.N.Y.1996). (The district court did not at

that time reach Delta’s other preemption arguments or the

motion for summary judgment.) The Plaintiffs timely

appealed to this Court. On that appeal, Delta argued that, as a

jurisdictional matter, Plaintiffs’ claims were preempted by the

Railway Labor Act, 45 U.S.C. § 151 et seq. (“RLA”). We

reversed Judge Baer’s decision based on the ADA, declining

to rule on Delta’s new RLA argument. We remanded to the

district court for consideration of the additional preemption

arguments and Delta’s motion for summary judgment.

See Abdu-Brisson v. Delta Air Lines, Inc., 128 F.3d 77

(2d Cir.1997).

On remand, Judge Baer, rejecting Delta’s remaining

preemption arguments, denied its motion to dismiss for lack

of subject matter jurisdiction. See Abdu-Brisson v. Delta Air

Lines, Inc., No. 94 Civ. 8494(HB), 1999 WL 64436

(S.D.N.Y. Feb. 9, 1999). Finally, in October 1999, Judge

Baer granted Delta’s motion for summary judgment and

27a

dismissed all of Plaintiffs’ claims on the merits. See Abdu-

Brisson v. Delta Air Lines, Inc., No. 94 Civ. 8494(HB), 1999

WL 944505 (S.D.N.Y. Oct. 19, 1999). Judge Baer ruled that

Plaintiffs had failed to establish a prima facie case of age

discrimination as to any of the three challenged terms of

employment. See id. Plaintiffs now appeal that order.

DISCUSSION

A. Standard of Review

We review a district court’s grant of summary judgment de

novo. See Weinstock v. Columbia Univ., 224 F.3d 33, 40 (2d

Cir.2000). Summary judgment is appropriate only when there

are no genuine issues of material fact and the movant is

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

56(c). A motion for summary judgment must be rejected “if

the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986). When making this determination, the court must view

the evidence in the record in the light most favorable to the

non-moving party, drawing all reasonable inferences in that

party’s favor. See Weinstock, 224 F.3d at 41.

It is now beyond cavil that summary judgment may be

appropriate even in the fact-intensive context of

discrimination cases. This Court has stated that: “the salutary

purposes of summary judgment—avoiding protracted,

expensive and harassing trials—apply no _ less _ to

discrimination cases than to ... other areas of litigation.” Meiri

v. Dacon, 759 F.2d 989, 998 (2d Cir.1985). Much more

recently, the Supreme Court “reiterated that trial courts

should not ‘treat discrimination differently from other

ultimate questions of fact.’” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109, 147

L.Ed.2d 105 (2000) (quoting St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 524, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).

28a

Further, it is axiomatic that an appellate court may affirm the

judgment of the district court on any ground fairly supported

by the record. See Shumway v. United Parcel Service, Inc.,

118 F.3d 60, 63 (2d Cir.1997) (citations omitted). Thus, we

may affirm a grant of summary judgment for different

reasons than those relied upon by the district court. See id.

B. Delta’s Motion for Summary Judgment

The State HRL makes it unlawful for an employer “to

discriminate against [an] individual in promotion,

compensation or in terms, conditions, or privileges of

employment, because of such individual’s age.” N.Y. Exec.

Law § 296 3-a. The City HRL prohibits the same conduct.

N.Y. City Admin. Code § 8-107(1)(a). Although there are

differences between the State HRL, the City HRL and the

federal Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. § 621 et seq., age discrimination suits brought

under the State HRL and City HRL are subject to the same

analysis as claims brought under the ADEA. See Lightfoot v.

Union Carbide Corp., 110 F.3d 898, 913 (2d Cir.1997). We,

in turn, analyze ADEA claims under the same burden shifting

framework as claims brought pursuant to Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et

seg. See Schnabel v. Abramson, 232 F.3d 83, 87 (2d

Cir.2000). Thus, we analyze an age discrimination claim

brought under the State HRL and City HRL as we would any

other Title VII claim.

Under this framework, first set out in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973), a plaintiff must first establish a prima

facie case of age discrimination. See id. Once the plaintiff has

made out a prima facie case, the employer is required to offer

a legitimate, nondiscriminatory business rationale for its

actions. See id. If the employer articulates such a reason, the

presumption of age discrimination dissolves, and the burden

shifts back to the plaintiff to prove that the employer’s stated

ee ee os bt hee

29a

reasons are merely pretextual and that age discrimination was

the true reason for the adverse employment action. See id.

1. The Prima Facie Case

To establish a prima facie case of age discrimination, a

plaintiff must show four things: (1) he is a member of the

protected class; (2) he is qualified for his position; (3) he has

suffered an adverse employment action; and (4) the

circumstances surrounding that action give rise to an

inference of age discrimination. See McDonnell Douglas, 411

U.S. at 802, 93 S.Ct. 1817; Weinstock, 224 F.3d at 42. A

plaintiff's burden of establishing a prima facie case is de

minimis. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-

04 (2d Cir.1995). The requirement is neither “onerous,”

Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir.1997)

(en banc) (quoting Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207

(1981)), nor “intended to be ‘rigid, mechanized or ritualistic.’

“ Meiri, 759 F.2d at 996 (quoting Furnco Constr. Corp. v.

Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957

(1978)). The district court concluded that Plaintiffs here had

failed to meet the fourth component of their prima facie

burden. Specifically, Judge Baer held that, because Plaintiffs

were not similarly situated to the Delta pilots in all material

respects, the differences in treatment did not prove any age-

based animus. See Abdu-Brisson, 1999 WL 944505.

On appeal, Plaintiffs contend that Judge Baer erred when he

embraced the notion that the only way a plaintiff can make

out an inference of discrimination is to demonstrate that he

3 While one must reach the age of forty before falling under the

protection of the ADEA, see 29 U.S.C. § 631(a), the employment

provisions of the State HRL apply to all employees over the age of

eighteen, see N.Y. Exec. Law § 296(3-a)(a), and the employment

provisions of the City HRL do not have any specific age limitation, see

N.Y. City Admin. Code § 8-107(1).

30a

was treated differently from other similarly situated

employees. Plaintiffs concede that, while such a showing of

disparate treatment is probably the most common way to

create an inference of discrimination, it is not the only

method. They contend that Delta management’s singular,

laser-like focus on the age and retirement schedule of the Pan

Am pilots, most graphically represented by Harry Alger’s

several written derogatory comments, sufficiently evinces the

discriminatory intent needed to make out the prima facie —

case. This argument is not without appeal.

At the outset, we concede that the case law on this particular

point—whether a discrimination plaintiff may or must show

disparate treatment—is confusing. Courts, including ours,

have struggled with this fourth element of the prima facie

case, as the language of the element itself has “gone through

various iterations in the years since McDonnell Douglas was

decided.” Denny Chin & Jody Golinsky, Moving Beyond

McDonnell Douglas: A Simplified Method for Assessing

Evidence in Discrimination Cases, 64 Brook. L Rev. 659,

663-64 & n. 26 (1998). Indeed, this Court’s decisions have

occasionally adopted apparently inconsistent positions—even

within a single case. Compare Shumway, 118 F.3d at 63

(“This last element of a prima facie case may be proven by

showing that a man similarly situated was treated

differently.” (emphasis added)) with id. at 64 (“To establish

the fourth element of a prima facie case, Shumway must show

that she was treated differently from ‘similarly situated’

males.” (emphasis added)); see also Chambers v. TRM Copy

Centers Corp., 43 F.3d 29, 37-38 (2d Cir.1994) (noting the

many types of circumstances that could create a permissible

inference of discriminatory intent).

In the run of the mill discrimination cases, this may/must

controversy is of littke consequence because a plaintiff-can

make a showing of disparate treatment simply by pointing to

the adverse employment action and the many employees who

3la

suffered no such fate. This is not in any way surprising, for

disparate treatment is the essence of discrimination. However,

cases occasionally arise where a plaintiff cannot show

disparate treatment only because there are no employees

similarly situated to the plaintiff. A simple example of such a

case is where an employer has only one employee. If that

employee were fired for a discriminatory reason, and no one

was hired to replace him, he could never demonstrate

disparate treatment because there is no point of comparison.

Bearing in mind the flexible spirit of a plaintiff's prima facie

requirement, see Meiri, 759 F.2d at 996, it stands to reason

that, in such a case, the plaintiff should be able to create an

inference of discrimination by some other means.

While Delta is a long way from the days when it had only a

single employee, the 488 Plaintiffs in this case find

themselves in a similar conundrum: they are in a class all by

themselves. Because all the Pan Am pilots hired by Delta

were subjected to the same three employment terms

challenged in this action, and because the Pan Am pilots

differed materially from the pre-APA Delta pilots in terms of

their airline of origin and career expectations, there are no

Delta employees similarly situated to Plaintiffs who did not

suffer the adverse employment actions. Under the “must”

construction of the fourth prima facie element, it would be

impossible for Plaintiffs to meet their prima facie burden,

because, like the lone employee in the example, they have no

appropriate point of comparison with which to show disparate

treatment. This presents the grotesque scenario where an

employer can effectively immunize itself from suit if it is so

thorough in its discrimination that all similarly situated

employees are victimized.

For the foregoing reasons, we conclude that a showing of

disparate treatment, while a common and especially effective

method of establishing the inference of discriminatory intent

necessary to complete the prima facie case, is only one way

32a

to discharge that burden. This position is consistent with our

prior decision in Chambers, where we wrote that the

inference of discriminatory intent could be drawn in several

circumstances including, but not limited to: the employer's

continuing, after discharging the plaintiff, to seek applicants

from persons of the plaintiff's qualifications to fill that

position; or the employer's criticism of the plaintiff's

performance in ethnically degrading terms, or its invidious

comments about others in the employee's protected group; or

the more favorable treatment of employees not in the

protected group; or the sequence of events leading to the

plaintiff's discharge. Chambers, 43 F.3d at 37 (citations

omitted).

x * * *

Having reviewed the record, we conclude that Plaintiffs have

produced enough evidence to meet their de minimis burden of

raising an inference of discriminatory intent by Delta. While

it is true that the stray remarks of a decision-maker, without

more, cannot prove a claim of employment discrimination,

see Woroski v. Nashua Corp., 31 F.3d 105, 109-110 (2d

Cir.1994), we have held that when “other indicia of

discrimination are properly presented, the remarks can no

longer be deemed ‘stray,’ and the jury has a right to conclude

that they bear a more ominous significance.” Danzer v.

Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir. 1998).

Here, Plaintiffs have shown that Alger, the Delta management

representative assigned to investigate and evaluate the Pan

Am acquisition, made numerous comments about the age of

the Pan Am pilot force, referring to them as “contaminated”

and “Bad Apples.” Even if his pattern of derogatory

statements could be dismissed as “stray” under Woroski, by

no means a certainty, when Alger’s comments are viewed

against the background of Delta’s all-consuming interest in

the age and projected retirement rates of the Pan Am pilots,

they inescapably lead to the conclusion that Delta’s actions

33a

may indeed have been motivated by age-based animus. Once

that possibility has been demonstrated, at this stage in the

analysis where a plaintiff's burden is de minimis, Plaintiffs

have raised an inference of age discrimination.

Thus, while we agree with the district court that Plaintiffs

satisfied the first three elements of their prima facie case, we

disagree with the conclusion that Plaintiffs failed to create an

inference of discrimination. Therefore, we find that Plaintiffs

successfully established their prima facie case of age

discrimination.

2. Delta’s Non-Discriminatory Rationale

The prima facie case is not the end of the story. If a plaintiff

successfully presents a prima facie case, the employer may

rebut it by articulating legitimate and non-discriminatory

reasons for the adverse employment action. See Burdine, 450

U.S. at 254, 101 S.Ct. 1089; Weinstock, 224 F.3d at 42. A

defendant meets his burden if he presents reasons that, “taken

as true, would permit the conclusion that there was a

nondiscriminatory reason for the adverse action.” St. Mary's

Honor Ctrs 509 U.S. at 509, 113 S.Ct. 2742 (emphasis

omitted); see also Schnabel, 232 F.3d at 88. Here, Delta has

presented legitimate, non-discriminatory reasons for each of

the three employment terms challenged by Plaintiffs.

a. Seniority Integration Methodology

As discussed above, at the time of the APA, the relative

bidding seniority of the Delta pilots was protected in Delta’s

collective bargaining agreement with ALPA. Before Delta

could offer the Pan Am pilots bidding seniority positions

above those of new hires, Delta and ALPA had to amend the

collective bargaining agreement. Indeed, the APA itself

expressly provided that an amendment to the ALPA

collective bargaining agreement was a condition precedent to

the closing of the acquisition. Delta has presented evidence

that it accepted the modified status ratio methodology

34a

“because of its belief that it was a reasonable methodology,”

and “because it believed that this reasonable methodology

was likely to be approved by ALPA.” Both of these reasons

are undeniably legitimate and non-discriminatory.

b. Post-Retirement Medical Benefits

Prior to entering into the APA, Delta required ten years of

service before a pilot qualified for fully-paid post-retirement

medical benefits. In August 1991, Delta waived the

requirement for all pilots who reached the age of fifty by

January 1992, so long as they were on the Delta seniority list

by August 27, 1991. Delta did not extend this grandfather

clause to Plaintiffs, who were not integrated into the seniority

list until November 1991. Delta’s stated reason for this was

that the service requirement was a company-wide policy

initiated to reduce the costs of providing medical benefits. An

extension of the grandfather clause would undoubtedly

increase the cost of the benefit. Such financial motivations are

legitimate business reasons for an employment action, even

where “the motivating factor is correlated with age.” Hazen

Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 123

L.Ed.2d 338 (1993).

c. Pay Disparity

When Delta hired Plaintiffs, it did so at their existing Pan Am

pay rates with scheduled increases to Delta’s higher pay rates

staggered over three years. Delta has produced deposition

testimony that the reason behind this initial disparity was that

under its then-existing financial conditions, Delta could not

afford the additional costs. These economic concerns are

legitimate business reasons for the initial pay disparity.

3. Plaintiffs’ Evidence of Defendant’s Actual

Discriminatory Motives

Once the employer has articulated non-discriminatory reasons

for the challenged employment actions, the presumption of

“4

;

‘

;

35a

discrimination vanishes and the burden shifts back to the

plaintiff to come forward with evidence that the employer’s

proffered explanations were merely pretextual and that the

actual motivations more likely than not were discriminatory.

See St. Mary’s Honor Ctr., 509 U.S. at 510-511, 113 S.Ct.

2742; Weinstock, 224 F.3d at 42.

The Supreme Court illuminated this requirement in Reeves,

530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105, and this

Court recently had the opportunity to apply Reeves in the

summary judgment context. See Schnabel, 232 F.3d at 83. In

Schnabel, we interpreted Reeves to reject any categorical rule

requiring age discrimination plaintiffs to offer, in addition to

their prima facie case and evidence of pretext, further

evidence that age discrimination was the actual motivation in

order to satisfy their burden. See id. at 90. Once a plaintiff has

made a showing that the defendant’s asserted reason for the

employment action was false, Reeves mandates “a case-by-

case approach, with a court examining the entire record to

determine whether the plaintiff could satisfy his ‘ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff.’ “ Schnabel,

232 F.3d at 90 (quoting Reeves, 120 S.Ct. at 2106). However,

Reeves in no way relaxed the requirement that plaintiffs make

a showing that the defendant’s proffered explanations were

pretextual.

Having thoroughly reviewed the record before us, we can find

no evidence to suggest that Delta’s stated non-discriminatory

reasons for the challenged employment actions were false.

Therefore, we are led to the conclusion that summary

judgment was appropriate in this case.

Plaintiffs attempt to rebut Delta’s explanations for the

seniority integration methodology by pointing out that when a

merger occurs, the negotiations on seniority integration are

conducted very differently, with the pilot unions from each

airlines negotiating directly. Plaintiffs claim the Pan Am

36a

pilots should have been negotiating directly with ALPA. Of

course, the APA in this case was not a merger. Delia acquired

specific Pan Am assets, eventually hiring less than one-third

of Pan Am’s 2,600 pilots. Plaintiffs’ analogies to seniority

integrations after other airline mergers are thus inapposite.

Plaintiffs do not otherwise contest Delta’s assertions that it

agreed to the modified status ratio methodology because it

seemed reasonable, given the circumstances, and because

ALPA was willing to make the necessary concessions.

Plaintiffs have presented no evidence that Delta believed the

Pan Am pilots should have received a more favorable

integration, or that ALPA would have been willing to make

greater concessions at the expense of its own members.

As for the post-retirement medical benefits and pay disparity,

Plaintiffs have again failed to produce any evidence to

suggest that Delta’s stated financial rationale wa’ ‘pretextual.

There is no evidence in the record that Delta’s management

was not concerned with containing costs of the acquisition, or

that Delta’s shareholders would have been willing to accept

reduced profits in order to ramp up Plaintiffs’ salaries to

Delta levels and to extend the waiver of the service

requirement for post-retirement health evidence. The written

comments of Alger—which, in truth, are not only the

centerpiece, but the entirety of Plaintiffs’ case—are not

sufficient to establish that Delta’s stated financial rationale

was a ruse.

* * * *

Although Plaintiffs met their de minimis burden of

establishing a prima facie case of age discrimination, they

have failed to produce sufficient evidence to support a

rational finding that the non-discriminatory business reasons

proffered by the defendant for the challenged employment

actions were false. See Weinstock, 224 F.3d at 50. The plain

reality is that these employment actions were business

decisions reflecting the grim economic realities affecting

37a

Delta and Pan Am at the time. Delta took full advantage of

Pan Am’s financial misfortunes, giving Plaintiffs the

unenviable choice of joining Delta as second-class citizens or

hanging on with Pan Am, which had already filed for

bankruptcy. While we sympathize with the pilots who were

impaled on the horns of this dilemma, we can find no

actionable misconduct by the defendants.

CONCLUSION

We have considered the appellants’ remaining contentions

and find them to be without merit. Accordingly, we AFFIRM

the order of the district court granting summary judgment to

the defendant.

38a

APPENDIX C

UNITED STATES DISTRICT COURT,

S.D. NEW YORK.

No. 94 Civ. 8494 (HB).

MARK ABDU-BRISSON, ef al.,

Plaintiffs-Appellants,

Vv.

DELTA AIR LINES, INC. and AIR LINE PILOTS

ASSOCIATION INTERNATIONAL,

(joined pursuant to Fed.R.Civ.P. 19),

Defendants.

May 16, 1996.

OPINION AND ORDER

BAER, District Judge:

Currently before the Court are defendant Delta Air Lines,

Inc.’s motions to dismiss the complaint and for summary

judgment. For the reasons that follow, the motion to dismiss

is granted. Accordingly, it is unnecessary to reach the motion

for summary judgment.

I. Background

Plaintiffs are 488 of the approximately 774 former pilots for

Pan Am World Airways, Inc. who were hired by Delta in the

fall of 1991 in connection with Delta’s purchase of certain

Pan Am assets. Plaintiffs allege that Delta discriminated

against them in the terms and conditions of their employment

based on their age in violation of the New York State Human

Rights Law (State HRL), N.Y.Exec.Law § 296 and the New

York City Human Rights Law (City HRL), N.Y.City

39a

Admin.Code §§ 8-107(1)(a) and (c), 8-107(17). Specifically,

plaintiffs challenge the manner in which they were integrated

into the Delta pilots’ seniority list, Delta’s requirement that

they serve for ten years before they become eligible for full

post-retirement medical benefits, and the manner in which

their pay is increased over a three-year period to reach parity

with existing Delta pilots.

II. Discussion

This action was filed in New York Supreme Court. Delta

removed the case to this Court on the ground that plaintiff's

complaint “arises under” the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. § 101 et seq.

because it seeks to modify the Delta Medical Benefits Plan.

This Court has supplemental jurisdiction over plaintiffs’ state

law claims under 28 U.S.C. § 1367. Delta’s motion to dismiss

challenges this Court's jurisdiction pursuant to Fed.R.Civ.P.

12(b)(1).

In adjudicating pendent state law claims, “a federal court acts

essentially as a state court.”. Baker v. Coughlin, 77 F.3d 12,

15 (2d Cir.1996). Therefore, if a state court lacks jurisdiction

over a cause of action, the federal court is also deprived of

jurisdiction. See id. (“If a state would not recognize a

plaintiff’s right to bring a state claim in state court, a federal

court exercising pendent jurisdiction, standing in the shoes of

a state court, must follow a_ state’s jurisdictional

determination and not allow that claim to be appended to a

federal law claim in federal court.’ “ (quoting Promisel v.

First American Artificial Flowers, Inc., 943 F.2d 251, 257 (2d

Cir.1991), cert. denied, 502 U.S. 1060, 112 S.Ct. 939, 117

L.Ed.2d 110 (1992))).

Delta argues that this Court has no jurisdiction on several

grounds. Most importantly, Delta contends that plaintiffs’

complaint is preempted by the Airline Deregulation Act

(ADA), 49 U.S.C. § 41713(b)(1). The ADA provides that:

40a

[A] State [or a] political subdivision of a State . . . may

not enact or enforce a law, regulation, or other provision

having the force and effect of law related to a price,

route or service of an air carrier. ...

49 U.S.C. § 41713(b)(1).’ I agree that this federal law

preempts plaintiffs’ age discrimination claims and dismiss the

complaint on this ground only.

The Supreme Court considered the predecessor to

§ 41713(b)(1) in two recent opinions. In Morales v. Trans

World Airlines, inc., 504 U.S. 374, 112 S.Ct. 2031, 119

L.Ed.2d 157 (1992), the Court interpreted the term “relating

to” as used in the ADA. The Court adopted the interpretation

it had applied to the “relates to” language used in ERISA and

held that a state law is related to rates, routes or services if it

has “a connection with or reference to” them. Id. at 384, 112

S.Ct. at 2037. The Court followed its ERISA jurisprudence

and noted the expansive reach of the ERISA preemption. /d.

(citing cases). Preemption does have its limits, however,

where the effects of the state law are “ ‘too tenuous, remote,

or peripheral.’ “ Jd. at 390, 112 S.Ct. at 2040 (quoting Shaw

v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct.

2890, 2901, 77 L.Ed.2d 490 (1983)).

The Court next addressed ADA preemption in American

Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130

L.Ed.2d 715 (1995), where it considered the words “enact or

enforce any law.” Wolens sued American for violation of the

Illinois Consumer Fraud Act and breach of contract after the

airline retroactively amended its frequent flyer program. The

_ |! prior to 1994, when Congress reenacted Title 49, the ADA

preemption provision applied to state laws “relating to rates, routes, OF

services of any air carrier.” 49 U.S.C.App. § 1305(a)(1). Congress did not

intend to make any substantive changes in the revision. American

Airlines, Inc. v. Wolens, 513 U.S. 219, —n. 1, 115 S.Ct. 817, 821 n. 1, 130

L.Ed.2d 715 (1995) (citing Pub.L. No. 103-272, § 1(a), 108 Stat. 745).

4ia

Supreme Court held that the ADA preempted the Consumer

Fraud Act claim, but not the breach of contract claim. In

making this distinction, the Court found that the Illinois

statute was a prescriptive rule of state public policy and thus

an action based on it involved the enforcement of state law.

Id., at — - —, 115 S.Ct. at 823-24. In contrast, state court

adjudication of an action based on a private contract did not

involve a sufficient imposition of state policy on air carrier

operations to warrant preemption. /d., at —, 115 S.Ct. at 824.

Read together, Morales and Wolens create a two-part test for

ADA preemption of state law claims. First, the state law

claim must involve the enforcement of a state law. Second,

the state law must have a connection with or relation to

airline prices, routes, or services. See Travel All Over The

World v. Saudi Arabia, 73 F.3d 1423, 1432 (7th Cir.1996);

Continental Airlines v. Kiefer, 920 S.W.2d 274, 281

(Tex.1996).

Plaintiffs do not dispute that this action seeks to enforce a

prescriptive state statute that, like the Illinois Consumer

Fraud Act, “controls the primary conduct of those falling

within its governance.” Wolens, 513 U.S. at —, 115 S.Ct. at

823. Therefore, the first prong is satisfied. The focus of this

dispute is on whether the State HRL and the City HRL relate

to prices or services. Delta argues that any change to the ten-

year service requirement for full post-retirement medical

benefits and the plaintiffs’ pay scale would have a direct

economic impest on the price it charges consumers. Plaintiffs

essentially concede the logic of this argument, but respond

that any effect on price would be too insignificant because

there are only a limited number of plaintiffs and Delta could

easily absorb the added costs rather than pass them along to

the public. The issue, however, is not whether enforcement of

the state law in this case would have a definite and significant

effect on price, but rather whether enforcement of the law

would interfere with the congressional scheme of deregu-

42a

lation. See Morales, 504 U.S. at 378, 112 S.Ct. at 2034

(finding that Congress included the preemption provision

“(tlo ensure that the States would nof undo federal

deregulation with regulation of their own”). Thus it is the

potential impact that must be considered. Any examination of

the particular liability exposure in this case would be an

evaluation of the merits which is inappropriate on a challenge

to the Court’s jurisdiction. I agree with Delta that the claims

based on the medical benefits and pay scale provisions of

plaintiffs’ employment contracts are sufficiently related to

price and therefore preempted. Cf. Kiefer, 920 S.W.2d at 281

(holding that common law tort liability is “clearly” related to

price under Morales because such liability “cannot but have,

in Morales’ words, ‘a significant impact upon the fares

[airlines] charge’ “ (quoting Morales, 504 U.S. at 390, 112

S.Ct. at 2040)).

Delta argues that the challenge to the seniority integration

plan relates to the services of air transportation because

alteration of the seniority list would impact pilot staffing.”

Major changes in staffing would in turn “cause tremendous

turmoil among Delta’s pilots,” Def.Mem. at 12, and disrupt

the “harmonious relationship[s]” in the cockpit that are

necessary to the provision of quality air transportation

services. Def.Reply Mem. at 6. Plaintiff disputes this factual

assertion and claims that once certified, all pilots are “[iJn

every important respect ... fungible.” Pl.Mem. at 9. Although

I find it inappropriate to consider the exact effect personnel

changes may have on services, I must analyze whether pilot

staffing is “related to” Delta’s services.

2 Defendant does not claim that changes to the seniority list would

affect price because such changes would have a neutral effect on Delta’s

labor costs. Any increase in pay granted to a plaintiff who was advanced

on the list would be offset by the decrease in pay sustained by the Delta

pilot who was moved down on the seniority list.

43a

The term “services” has generally been interpreted with

reference to the contractual exchange between the air carrier

and the consumer. As the Fifth Circuit held, “[e]lements of

the air carrier service bargain include items such as ticketing,

boarding procedures, provision of food and drink, and

baggage handling, in addition to the transportation itself.”

Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (Sth

Cir.1995) (en banc); see also Travel All Over, 73 F.3d at

1433. I conclude that the order of a pilot seniority list has a

connection with and therefore is “related to” the provision of

air carrier services within the meaning of Morales. Indeed,

pilot staffing is an integral element of “the transportation

itself.”

Several other courts have found state employment laws are

preempted by the ADA. In Marlow v. AMR Services Corp.,

870 F.Supp. 295 (D.Hawaii 1994), the plaintiff had been

employed by a jetbridge maintenance company as a

supervisor. The court held that Marlow’s_ wrongful

termination claims based on alleged violations of the Hawaii

Whistleblowers’ Protection Act and public policy as stated by

the Hawaii.Supreme Court were preempted by the ADA.

Applying the Fifth Circuit’s definition, the court found that

jetbridge maintenance was a service under the ADA. /d.

at 299.

Similarly, in Belgard v. United Airlines, 857 P.2d 467

(Colo.Ct.App.1992), cert. denied, 510 U.S. 1117, 114 S.Ct.

1066, 127 L.Ed.2d 386 (1993), the plaintiffs sued after they

had been denied employment as pilots because they had

undergone eye surgery to reduce the effects of myopia. The

court held that the claims based on the Colorado handicap

discrimination statute and related regulations were preempted

by the ADA. The court concluded that: any law or regulation

that restricts an airlines’ selection of employees, based on

their physical characteristics, must necessarily have a

connection with and reference to, and therefore must be one

44a

“relating to,” the services to be rendered by that airline.

Id. at 471. See also Lewonchuk v. Business Express, Inc., No.

CV 940315626S, 1995 WL 781431, at (Conn.Super.Ct. Dec.

15, 1995) (dismissing claim by a pilot “because the ADA

preempts a wrongful termination action in which the

underlying public policy is a state law’’).

Ill. Conclusion

For the reasons discussed above, the motion to dismiss is

granted.

SO ORDERED.

45a

APPENDIX D

UNITED STATES DISTRICT COURT,

S.D. NEW YORK. -

No. 94 Civ. 8494(HB).

MARK ABDU-BRISSON, et al.,

Plaintiffs,

¥.

DELTA AIR LINES, INC. and the AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL,

Defendants.

Feb. 9, 1999.

AMENDED OPINION and ORDER

BAER, J.'

Defendant, Delta Air Lines, Inc. (“Delta’”) moves to dismiss

plaintiffs’ claims of age discrimination under the New York

State and the New York City Human Rights Laws, for lack of

subject matter jurisdiction pursuant to Rule 12(b)(1) of the

Fed.R.Civ.P. For the reasons set forth below, the defendant’s

motion to dismiss is DENIED.

I. BACKGROUND

The origins of this Complaint stem from Pan Am Airways’

(“Pan Am”) filing for bankruptcy in January 1991. As a

result, in July 1991, Pan Am and Delta entered into an Assets

' Fernando A. Bohorquez, Jr., a third year law student at New York

Law School, assisted in the research and preparation of this opinion.

46a

Purchase Agreement (“APA”). Pursuant to the APA, Delta

acquired certain Pan Am routes, aircraft, and other employees

not involved in this litigation. The APA provided that Delta

would hire at least 6,600 Pan Am employees, including

approximately 700 Pan Am pilots and flight engineers. The

United States Bankruptcy Court for the Southern District of

New York approved the APA on August 12, 1991. See Pan

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

(S.D.N.Y.1994). Plaintiffs are 488 former pilots of the now

defunct Pan Am hired by Delta under the APA.

Following the execution of the APA, Delta proceeded to

integrate the ex-Pan Am pilots and flight engineers into the

Delta pilots seniority list in conjunction with the Delta pilots’

union--the Air Line Pilots Association (“ALPA”). On August

30, 1991, Delta signed a supplemental collective bargaining

agreement (“CBA”) where it committed to use a “modified

status ratio methodology,” approved by ALPA, for creating

slots on the seniority list for the ex-Pan Am pilots. Delta hired

774 Pan Am pilots and flight engineers, and placed them into

the slots created under the CBA.

Prior to the Pan Am acquisition, Delta had adopted a ten-year

service requirement for post-retirement medical benefits. The

policy was amended, effective January 1, 1992, to exempt all

employees who were on the Delta Seniority List as of August

27, 1991 and had reached age 50 on or before January 1992.

Fleming Aff., Ex. 15 at 5. The amendment also allows service

at Western Air Lines, which had been acquired by Delta in

1987, to be counted toward the ten-year requirement. /d. at 3.

In contrast, the 1992 supplement to the Delta Pilot Benefit

Handbook provides that former Pan Am American personnel

are not included in this grandfather provision. Fleming Aff.,

Ex. 16 at 3.

Plaintiffs allege that Delta discriminated against them in the

terms and conditions of their employment based upon age and

thereby violated the New York State Human Rights Law

47a

(“NYSHRL”), N.Y. Exec. Law § 296,” and the New York

City Human Rights Law (“NYCHRL”), N.Y. City Admin.

Code §§8-107(1)(a) and (c), 8-107(17).° Specifically,

plaintiffs claim that Delta discriminated on three scores: (1)

the fashion in which Delta integrated plaintiffs on to the

seniority list; (2) the requirement that the plaintiffs serve ten

years before they become eligible for full post-retirement

benefits; and (3) the manner in which plaintiffs pay is

increased over a three year period to reach parity with the

existing Delta pilots.

Plaintiffs originally filed this action in New York State

Supreme Court. Delta subsequently removed the case here.

Defendant moved to dismiss and argued, among other

grounds, that plaintiffs’ state law claims were preempted by

the Airline Deregulation Act (“ADA”). See Abdu-Brisson v.

Delta Air Lines, Inc., 927 F.Supp. 109, 111-12

(S.D.N.Y.1996). This Court agreed, and granted the motion to

dismiss. /d. at 13. The Second Circuit reversed and remanded,

and directed this Court to consider the additional preemption

and summary judgment issues raised by the defendant. See

Abdu-Brisson v. Delta Air Lines, Inc. 128 F.3d 77, 86

(2d Cir.1997).

? The NYSHRL is a comprehensive anti-discrimination statute which

prohibits a long list of employment discrimination. Section 296.1

provides: “It shall be an unlawful discriminatory practice: (a) For an

employer or licensing agency, because of the age ... of any individual, to

refuse to hire or to bar such an individual or to discriminate against such

individual in compensation or in terms, conditions or privileges of

employment.”

> Section 8-107 of the NYCHRL provides in similar language:

“Employment. It shall be an unlawful discriminatory practice: (a) For an

employer or an employee or agent thereof, because of the actual or

perceived age . . . of any person, to refuse to hire or employ or to bar or to

discharge from employment such person or discriminate against such

person in compensation or in terms, conditions or privileges of

employment.”

48a

Il. DISCUSSION

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

The defendant argues that the NYSHRL and NYCHRL are

completely or partially preempted by: (1) the Railway Labor

Act (“RLA”), 45 U.S.C. § 151, et seq.; (2) the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 621, et seqg.; and (3) the Employment Retirement Income

Security Act (“ERISA”), 29 U.S.C. § 101, et seq.

Whether federal law preempts a state law is largely a matter

of the interpretation of Congressional intent. See Hawaiian

Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994). There are

three ways that federal law may preempt state law. First, state

law may be explicitly superseded by a federal statute. See

Michigan Canners and Freezers Ass'n, Inc. v. Agricultural

Marketing and Bargaining Bd ., 467 U.S. 461, 469 (1984).

Second, under implicit field preemption, Congress may

indicate an attempt to occupy an entire field of regulation, in

which case the state must leave all regulatory activity in the

area to the Federal Government. /d. Finally, preemption may

occur to the extent that a conflict between state and federal

law exists. Jd. Such preemption arises when compliance with

both the state and federal law is impossible or the state law

stands as an impediment to the execution and goals of the

federal law. See Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

1. RLA Does Not Preempt Plaintiffs’ Claims

Congress enacted the RLA to create a federal scheme that

governs the negotiation, interpretation, and enforcement of

labor contracts in the railway, and thereafter, airline

industries. See Hawaiian Airlines, 512 U.S. at 259. Defendant

contends that plaintiffs seek to modify the RLA approved

CBA under which the current terms of employment were

forged. I disagree.

49a

Under the RLA, “[w]here the resolution of a state-law claim

depends on the interpretation of the CBA, the claim is pre-

empted.” Hawaiian Airlines, 512 U.S. at 261. Conversely,

when the state law claim is based upon a right independent of

the CBA and entails an inquiry into factual questions that

concern an employer’s conduct in the way it does here, the

Court is not required to interpret any terms of the CBA, and

therefore the state law claim is not preempted. /d.; see also

Shafii v. British Airways, PLC, 83 F.3d 566, 569-70 (2d

Cir.1996) (state law wrongful termination and violation of

mediation agreement claims not preempted by the RLA since

they rested on rights available under state law that did not

require interpretation of the CBA); Gay v. Carlson, 60 F.3d

83, 87-88 (2d Cir.1995) (defamation, prima facie tort and

conspiracy claims not preempted by the RLA since state law

provides the exclusive source of these rights and the only,

issues to be resolved were the employer’s conduct and

motive).

In the instant case, plaintiffs assert their rights under the

NYSHRL and NYCHRL to be free from age discrimination.

The issue, then, turns on whether the defendant intended to

discriminate. A claim based on a substantive protection

against age discrimination that focuses on the issue of an

employer’s discriminatory animus does not necessitate an

interpretation of the CBA such that preemption is required.

See Foy v. Pratt & Whitney, 127 F.3d 229, 235 (2d Cir.1997)

(state law misrepresentation claims against employer that

concerned the issue of employers’ intent did not require

interpretation of the CBA and _ warrant preemption).

In response, defendant contends that the remedies plaintiffs

seek—modification of seniority integration, post-retirement

benefits, and pay parity schedule—are in fact an attempt to

rewrite the CBA. Therefore, defendant maintains, preemption

is warranted. However, the Second Circuit has consistently

held that it is of littke moment that a plaintiffs’ state law claim

may entail some reference to the CBA. See Hernandez v.

50a

Conriv Realty Assocs., 116 F.3d 35, 40 (2d Cir.1997) (not

every dispute that tangentially involves a CBA is preempted);

see also Gay, 60 F.3d at 88-89 (rejecting argument that

reference to the CBA in order to assess damages requires

preemption under the RLA). Moreover, courts have held that

the reordering of seniority lists is an acceptable remedy

because victims of discrimination are entitled to relief that

entails a rightful place in seniority status. See Truskoski v.

ESPN, Inc., 60 F.3d 74, 77-78 (2d Cir.1995) (award of

retroactive seniority status falls within the scope of the

district court’s equitable power to fashion remedies) (citation

omitted). Since the plaintiffs’ claims do not involve the

interpretation of the CBA, the motion to dismiss pursuant to

the RLA is denied.

2. ADEA Does Not Preempt Plaintiffs’ Claims

Defendant also contends that the ADEA preempts the

NYSHRL and NYCHRL since the ADEA provides a safe

harbor for seniority systems, whereas State and City laws do

not. As a result, the defendant argues that the laws

irreconcilably conflict. I disagree. “The ADEA broadly

prohibits arbitrary discrimination in the workplace based on

age.” Lorillard v. Pons, 434 U.S. 575, 577 (1978); 29 U.S.C.

§ 623(a)(1).4 As a general matter, the NYSHRL and

NYCHRL are governed by the same legal standards as the

ADEA and share the same goal. See Tyler v. Bethlehem Steel

Corp., 958 F.2d 1176, 1180 (2d Cir.), cert. denied, 506 U.S.

826 (1992). In fact, anti-discrimination employment laws

such as the NYSHRL and NYCHRL are integral to the

federal scheme designed to combat discrimination.

Nevertheless, defendant argues that since the ADEA provides

4 Section 623(a)(1) provides that it is unlawful to “fail or refuse to hire

or to discharge any individual or otherwise discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's age.”

Sla

a safe harbor for seniority systems, and the NYSHRL and

NYCHRL do not, the laws conflict.

Defendant misconstrues the language of the ADEA. It too,

along with the NYSHRL and NYCHRL, prohibits a non-

bona-fide, seniority system that acts as a_ subterfuge.”

A seniority system built to discriminate on an illegal basis is

not bona-fide under the ADEA. See Acha v. Beame, 570 F.2d

57, 64 (2d Cir.1978). Thus, it can hardly be said that the

NYSHRL and NYCHRL conflict with the ADEA. See Cable

Television Ass'n of N.Y. Inc. v. Finneran, 954 F.2d 91, 98 (2d

Cir.1992) (state law “will be pre-empted when it is

impossible to comply with both state and federal law . . . or

where the state law stands as an obstacle to the

accomplishment of the full purposes and objectives of

Congress”).° Since plaintiffs allege that the seniority system

at issue is not bona fide, as a result of intentional

discrimination, there is no conflict and preemption must be

denied.

> 29 U.S.C. § 623(f) states in pertinent part: “It shall not be unlawful

for an employer, employment agency, or labor organization—(2) to take

any action otherwise prohibited under subsection (a), (b), (c), or (e) of this

section—(A) to observe the terms of a bona fide seniority system that is

not intended to evade the purposes of this chapter; 29 C.F.R. § 1625.9(a)

states that a “purported seniority system which gives those with longer

service lesser rights . . . may, depending on the circumstances, be a

‘subterfuge to evade the purposes’ of the Act.”

° Defendant correctly points out that ADEA challenges to seniority

systems must allege disparate treatment. See Lorance v. AT & T

Technologies. Inc., 490 U.S. 900, 908 (1989) (discriminatory intent is a

necessary element of an action challenging a seniority system). Plaintiffs

satisfy this burden by alleging intentional discrimination, buttressed by

disparate impact evidence which can be used to support a disparate

treatment claim.

52a

3. ERISA Does Not Preempt Plaintiffs’ Challenges to

Delta’s PostRetirement Medical Benefits Plan

Lastly, defendant asserts that plaintiffs challenge to the Delta

Pilots Post-Retirement Medical Benefits Plan (“Delta

Benefits Plan”) is preempted by ERISA. ERISA is a federal

law designed to promote and protect the interests of

employees and their beneficiaries in benefits plans. See

Nachman Corp. v. Pension Ben. Guaranty Corp., 446 US.

359, 361-62 (1980). ERISA defines an “employment welfare

benefits plan” as any program that provides benefits for

contingencies such as illness, accident, disability, death, or

unemployment. 29 U.S.C. § 1002(1).

Section 514(a) of ERISA, 29 U.S.C. § 1144(a), preempts

“any and all State laws insofar as they may now or hereafter

relate to any employee benefit plan.”’ Given this language,

defendant argues that since the Delta Benefits Plan is covered

by ERISA, and the NYSHRL and NYCHRL clearly “relate”

to the Delta Benefits Plan, § 514(a) explicitly preempts the

plaintiffs’ State and City law claims.

There is no dispute that the Delta Benefits Plan falls within

the rubric of ERISA, or that the NYSHRL and the NYCHRL

“relate” to an employee benefits plan for preemption

purposes. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97

(1983) (N.Y.SHRL prohibition of employers’ employee

benefits plan that discriminates on the basis of pregnancy

relates to an employee benefits plan for purposes of ERISA

” Section 514(a) provides: “Except as provided in subsection (b) of this

section, the provisions of this title and title IV shall supersede any and all

State laws insofar as they may now or hereafter relate to an employee

benefit plan described in section 4(a) and not exempt under section 4(b).”

29 U.S.C. § 1144(a). The term “State Law” includes “all laws, decision,

rules, regulations, or other state action having the effect of law, of any

State.” 29 U.S.C. § 1144(c)(1).

53a

preemption).” However, the inquiry does not end there.

ERISA provides a “savings clause,” § 514(d), that limits the

scope of the otherwise expansive § 514(a) preemption. 29

U.S.C. § 1144(d). Section 514(d) states in pertinent part that

“{njothing in this subchapter shall be construed to alter,

amend, modify, invalidate, impair, or supersede any law of

the United States . . . or any rule or regulation issued under

any such law.” /d. As interpreted by the Supreme Court, this

clause dictates that ERISA only preempts state laws that

prohibit practices that federal law permits. See Shaw, 463

U.S. at 103.

In Shaw, the Supreme Court held that to the extent the

NYSHRL provided a means of enforcing Title VII mandates,

preemption of the NYSHRL would modify and impair federal

law within the meaning of § 514(d). /d. at 101-02; see also

International Ass'n of Machinists and Aerospace Workers

Local Lodge No. 967 by McCadden v. General Electric Co.,

713 F.Supp. 547, 550-51 (N.D.N.Y.1989) (ADEA and

NYSHRL are designed to work together to attack age

discrimination in the employment context). Indeed, ERISA

does not preempt all NYSHRL claims with respect to benefit

plans. If it did, a whole host of state agencies would be

prevented from addressing discriminatory employment

practices. See Shaw, 463 U.S. at 102. Consistent with Shaw, I

conclude that the plaintiffs’ claims fall within the savings

clause and are therefore not preempted, since the NYSHRL

* The NYCHRL explicitly accounts for potential conflicts such as the

instant matter. “The provisions of this subdivision and subdivision two of

this section: (1) as they apply to employee benefits plans, shall not be

construed to preclude an employer from observing the provisions of any

plan covered by [ERISA] that is in compliauce with applicable federal

discriminatiom laws where the application of the provisions of such

subdivisions to such plan would be preempted by such act.” N.Y. City

Admin. Code § 8-107(1)(e). This clause simply parrots the Shaw language

that a state amti-discrimination law cannot prohibit employment beneSts

plans which are lawful under federal law.

54a

and NYCHRL prohibitions against age discrimination assist

in the enforcement of Title VII mandates.

Ill. Conclusion

For the reasons discussed above, the motion to dismiss is

DENIED and oral argument is scheduled on the motion for

summary judgment for February 23, 1999 at 4:00 p.m.

SO ORDERED. 2M

55a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK. 10007

At stated term of the United States Court of Appeals for the

Second Circuit, held at the United States Courthouse, Foley

Square, in the City of New York, on the 14th day of May

two thousand one.

Dkt. No: 99-9359.

ABDU-BRISSON, et al.,

Plaintiffs-Appellants,

DELTA AIR LINES, et al.,

Defendants-Appellees.

A petition for panel rehearing and a petition for rehearing en

banc having been filled herein by the appellants Abdu-

Brisson, et al.

Upon consideration by the panel that decided the appeal,

it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the petition for rehearing en banc has

been transmitted to the judges for the court in regular active

service and to any other judge that heard the appeal and that

no such judge has requested that a vote be take thereon.

56a

FOR THE COURT

ROSEANN B. MACKECHNEE, Clerk

/s/ Beth J. Meador,

Beth J. Meador,

Administrative Attorney

57a

APPENDIX F

UNITED STATES DISTRICT COURT,

S.D. NEW YORK.

No. 94 Civ. 8494(HB).

MARK ABDU-BRISSON, ef al.,

Plaintiffs,

DELTA AIR LINES, INC. and the AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL,

' Defendants.

Oct. 19, 1999.

MEMORANDUM AND ORDER

BAER, J.

The plaintiffs, former Pan American Airways (“Pan Am”)

pilots hired by Delta Air Lines (“Delta”) in connection with

Deilta’s purchase of certain Pan Am assets, commenced this

class action lawsuit in 1994. Employing both disparate

treatment and disparate impact theories of discrimination, the

complaint alleges that Delta discriminated against the

plaintiffs on the basis of age in violation of the New York

State Human Rights Law (N.Y.SHRL), New York Executive

Law § 296 et seg., and the New York City Human Rights

Law (“NYCHRL”), N.Y. City Admin. Code §§ 8-107 et seq.,

' Defendant Air Line Pilots Association is joined under Rule 19 for

relief purposes only, and no substantive allegations are pled against it.

(See Complaint (“Compl.”) { 3.)

58a

Pursuant to Rule 56 of the Federal Rules of Civil Procedure,

Delta now renews its motion for summary judgment. For the

reasons stated below, the defendant’s motion is GRANTED.

I. BACKGROUND

A. Factual Background

After Pan Am filed for bankruptcy in January 1991, it entered

into an Assets Purchase Agreement (“APA”) with Delta in

July 1991 through which Delta acquired certain Pan Am

routes, aircraft, and other employees not involved in this

litigation. The APA, approved on August 12, 1991 by the

U.S. Bankruptcy Court for the Southern District of New

York, provided that Delta would hire at least 6,600 Pan Am

employees, including approximately 774 Pan Am pilots and

flight engineers. The plaintiffs are 488 former pilots, who

ranged in age from 27 to 59 in 1991, of the now defunct Pan

Am who were hired by Delta under the APA.

On August 30, 1991, Delta signed a supplemental coliective

bargaining agreement with the Delta pilots’ union—the Air

Line Pilots Association (“ALPA”)—whereby it committed to

use a “modified status ratio methodology” for integrating the

ex-Pan Am pilots into Delta’s pre-existing seniority list. This

methodology created positions for the Pan Am pilots that

spread them throughout Delta’s seniority list, rather than

placing them at the bottom of the list. The starting point for

the first Pan Am pilot slot was the position held by the most

senior Delta pilot of the aircraft deemed to be most nearly

equivalent to the specific aircraft acquired from Pan Am. The

remaining pilot jobs at Delta were then ratioed with their

newly-hired Pan Am counterparts, which resulted in one Pan

Am slot being carved out between every tenth or eleventh

Delta slot throughout the remainder of the list. Thus, although

some Pan Am pilots were placed in slots below younger Delta

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pilots,” the Pan Am pilots were integrated into the seniority

list so as to maintain their seniority relative to other (former)

Pan Am pilots. In other words, amongst the Pan Am pilots

hired by Delta, the most senior Pan Am pilots were given the

most senior of the newly-created slots.

Prior to the Pan Am acquisition, Delta had adopted a ten-year

service requirement for post-retirement medical benefits. This

plan requires an employee to work for Delta for 10 years

before Delta will pay the full cost of his or her post-

retirement medical insurance premiums. The policy was

adopted for Delta pilots in October 1990 and was later

amended to exempt all employees who were on the Delta

Seniority List as of August 27, 1991 and had reached age 50

on or before January 1, 1992. Because they were integrated

on November 1, 1991, potentially eligible plaintiffs were

excluded from this waiver.

Additionally, at the time of the APA most Pan Am

employees, including pilots, were paid less money than their

Delta counterparts. As a result, Delta hired all Pan Am

employees at their then-existing Pan Am pay rates with

scheduled incremental inereases to parity with Delta’s higher

wages spread out over three years.

The plaintiffs now allege under both disparate treatment and

disparate impact theories that Delta discriminated against

them in the terms and conditions of their employment based

on age and thereby violated the New York State Human

Rights Law (“State HRL”), N.Y. Exec. Law § 296, and the

New York City Human Rights Law (“City HRL”), N.Y. City

> The plaintiffs’ papers fail to offer many, if any, statistics on this

score. One rather ambiguous figure was contained in paragraph 39 of the

plaintiffs’ Rule 56.1 Statement, which reads: “The placement of the Pan

Am pilots on the Delta Seniority List resulted in instances where 55 year-

old former Pan Am pilots were flying junior to 35 year-old original Delta

pilots.” (Pls.’ Rule 56 .1 Statement § 39.)

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Admin. Code §§ 8-107(1)(a) and (c), 8- 107(17). More

specifically, the plaintiffs claim that Delta discriminated

against them on three grounds: (1) the way in which Delta

integrated them into the seniority list; (2) the requirement that

the plaintiffs serve ten years with Delta before they become

eligible for full post-retirement benefits; and (3) the manner

in which the plaintiffs’ pay was increased over a three-year

period to reach parity with the existing Delta pilots.

B. Procedural Background

The plaintiffs originally commenced this action in the York

State Supreme Court in 1994. Delta subsequently removed

the case to this Court on the basis that the plaintiffs’ cause of

‘action arose under the Employee Retirement Income Security

Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., because the

plaintiffs were seeking to modify the medical benefits plan.

Delta later made motions to dismiss and for summary

judgment, arguing, inter alia, that plaintiffs’ state law claims

were preempted by the Airline Deregulation Act (“ADA”).

This Court granted the motion to dismiss, see Abdu-Brisson v.

Delta Air Lines, Inc., 927 F.Supp. 109 (S.D.N.Y.1996), but

the Second Circuit reversed that decision and remanded the

case for this Court to consider the additional preemption and

summary judgment issues raised by Delta. See Abdu- Brisson

v. Delta Air Lines, Inc., 128 F.3d 77 (2d Cir.1997). On

February 9, 1999, I denied the defendants’ motion to dismiss

for lack of subject matter jurisdiction, leaving resolution of

the current motion for summary judgment before the Court.

See Abdu-Brisson v. Delta Air Lines, Inc., No. 94 Civ. 8494,

1999 WL 64436 (S.D.N.Y. Feb. 9, 1999).

fl. DISCUSSION

A. Standards for Summary Judgment

Summary judgment is properly granted only’ when the

pleadings, depositions, answers to interrogatories, admissions

6la

on file, and affidavits show that there is no genuine issue of

material fact and the movant is entitled to summary judgment

as a matter of law. Fed.R .Civ.P. 56(c). The substantive law

determines what facts are material to the determination.

Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In

assessing the record before the court, the “non-movant will

have his allegations taken as true,” Distasio v. Perkin Elmer

Corporation, 157 F.3d 55, 61 (2d Cir.1998), but he or she

may not oppose summary judgment merely by offering

conclusory allegations or denials. See Podell v. Citicorp

Diners Club, Inc., 112 F.3d 98, 101 (2d Cir.1997).

B. Standards for Age-Related Employment Discrim-

ination” |

l. Disparate Treatment

To make out a prima facie case of age discrimination under a

theory of disparate treatment, the plaintiffs must show that

they (1) are members of the protected age group, (2) are

qualified for their jobs, (3) suffered an adverse employment

action, and (4) that the action occurred under circumstances

giving rise to an inference of discrimination. Viola v. Philips

Medical Systems of North America, 42 F.3d 712, 716 (2d

Cir.1994). To establish the fourth element of their prima facie

case, the plaintiffs must show that they were treated

differently than similarly situated employees. Shumway v.

United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir.1997)

> Age discrimination suits brought under the New York human rights

statutes receive the same analysis as claims brought under Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., or the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et

seq.. Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir.1997);

Tyler v. Bethlehem Steel Corporation, 958 F.2d 1176, 1180 (2d Cir.), cert.

denied, 506 U.S. 826 (1992); Maniatas v. New York Hospital-Cornell

Medical Center,—F.Supp.2d—, No. 97 Civ. 6112, 1999 WL 553831,

(S.D.N.Y. July 26, 1999).

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(sex discrimination under Title VII); Tunnell v. United

Technologies Corporation, 54 F.Supp.2d 136, 140

(D.Conn.1999) (age, sex, and race discrimination under Title

VII and ADEA); Richardson v. Newburgh Enlarged City

School District, 984 F.Supp. 735, 741 (S.D.N.Y.1997) (race

discrimination under Title VII). If a prima facie case of

discrimination has been shown, the burden then shifts to the

defendant who must articulate a _ legitimate, non-

discriminatory reason for the challenged conduct at issue.

Viola, 42 F.3d at 716. The burden then shifts back to the

plaintiffs, who must then establish that the employer’s stated

reason was a pretext for improper discrimination. Jd

2. Disparate Impact

In order to state a prima facie case of age discrimination

under a theory of disparate impact, the plaintiffs must show

that they are members of a protected class and that the

challenged employment practice had a significant disparate

impact on that class. District Council 37, AFSCME, AFL-CIO

v. New York City Department of Parks and Recreation, 113

F.3d 347, 351 (2d Cir.1997). A disparate impact is present

where “a neutral practice falls more harshly on one group

than another.” Lowe v. Commack Union Free School District,

886 F.2d 1364, 1373 (2d Cir.1989) (internal citations and

quotations omitted), cert. denied, 494 U.S. 1026 (1990). An ~

employer may then show that the challenged practice had a

legitimate purpose, after which the plaintiffs must prove that

the proffered purpose is pretextual. /d.

C. Seniority Integration

With respect to their integration into Delta’s then-existing

seniority list, the plaintiffs’ have failed to establish a prima

facie case of disparate treatment. Although the plaintiffs have

undoubtedly met their burden with respect to the first three

prongs of the analysis, their claim fails on the fourth prong.

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More specifically, Delta argues that since the piaintiffs were

not similarly situated to the “regular” Delta pilots, the

plaintiffs cannot show—as the following analogies

demonstrate—that they were treated in such a way that gives

rise to an_ inference of discrimination. I agree.

Indeed, differences in treatment are probative only if the

individuals used for comparison are similarly situated to the

plaintiff “in ail material respects.” Shumway, 118 F.3d at 64;

Martinez v. United Technologies Corporation, 50 F.Supp.2d

130, 133-34 (D.Conn.1999) (race discrimination under Title

VID); Cunliffe v. Sikorsky Aircraft Corporation, 9 F.Supp.2d

125, 131 (D.Conn.1998) (sex discrimination under Title VII).

One such factor includes the comparability of the two groups’

“occupational status.” Richardson, 984 F.Supp. at 746. With

these standards in mind, and in conformity with the Court’s

prior decision on this score, I find that “[aJny claim of

[discrimination] must be based on a comparison of the Pan

Am personnel whose rankings were affected by the

challenged employment action.” Adams v. Delta Air Line,

Inc., No. 96 Civ. 2871, 1997 WL 620823, (S.D.N.Y. Oct. 8,

1997) (finding that comparison between Pan Am and Delta

personnel was “akin to comparing apples and oranges”),

aff d, 175 F.3d 1007 (2d Cir.1999), cert. denied,—S.Ct.—,

1999 WL 552851 (U.S. Oct. 4, 1999). Indeed, it is beyond

peradventure that the two groups of pilots are not similarly

situated since differences such as their airline of origin and

the expected success of each airline at the time of the

integration were “taken into account in creating ... a viable

integration methodology.” /d. (citing Bovers v. Flying Tiger

Line, Inc., 979 F.2d 291, 297-98 (2d Cir.1992)). Accordingly,

the Court’s analysis here will center on possible age-based

discriminatory treatment, if any, endured by older Pan Am

pilots vis-a-vis younger Pan Am pilots.

Plaintiffs have failed to show that they received less favorable

treatment than similarly situated employees because of their

age. Indeed, all the plaintiffs—whether 27 or 57 at the time of

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their being hired—uniformly suffered a relative loss of

seniority after the integration with Delta’s then- existing

seniority list. The plaintiffs have not shown—nor can they—

that the Pan Am pilots were disadvantaged on the basis of

their age. That being said, it becomes clear that the distinction

here is not age, but rather the permissible criteria of airline of

origin. See Bovers v. Flying Tiger Line Inc., 979 F.2d 291,

297 (2d Cir.1992) (affirming summary judgment against

plaintiffs of ADEA claim since allegedly discriminatory post-

merger seniority system was motivated by the plaintiffs’

airline of origin, not the plaintiffs’ age); Cook v. Pan

American World Airways, Inc., 647 F.Supp. 816, 823

(S.D.N.Y.1986) (finding as bona fide a seniority system that

was “reasonably designed to _ preserve pre-merger

expectations” for each merging airline), aff d, 817 F.2d 1030

(2d Cir.), cert. denied, 484 U.S. 913 (1987). For this reason,

the plaintiffs’ disparate treatment claim necessarily fails as a

matter of law.

The plaintiffs make much of written comments made by

Harry Alger, then Delta’s Vice-President of Flight Operations

alleged to have had authority to approve the seniority

integration method for Delta. Alger’s comments referred to

Pan Am’s “contaminated work force” and made several

references to the Pan Am pilots’ ages. (See Pls .’ Rule 56.1

Statement 9§ 14-19.) These remarks and_ surrounding

circumstances, however, fail to address the fact that the key

distinction here and the basis for the slotting was the

plaintiffs’ airline of origin, not age. While it might be argued

that such evidence would permit an_ inference of

discrimination which would complete the plaintiffs’ required

showing for a prima facie case, the plaintiffs simply have not

overcome the “similarly situated” requirement. The Second

Circuit has recognized that differences in pilots’ pre-merger

airline and accompanying future expectations justifies

treating differently two groups of employees in_ the

integration of seniority rights. See Bovers, 979 F.2d at 297-98

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(finding “age neutral” and thus permissible defendant

airline’s unequal treatment of new employees based on the

latter’s lower pre-merger employment prospects). Moreover,

even crediting the plaintiffs’ evidence on this score, a

modicum of “unconnected fragments of evidence in which

Delta personnel might be understood to be making reference

to age” has been held insufficient to withstand summary

judgment in similar contexts. See Criley v. Delta Air Lines,

Inc., 119 F.3d 102, 105 (2d Cir.) (affirming district court’s

granting of summary judgment in favor of defendant airline),

cert. denied,—U.S.—,118 S.Ct. 626 (1997).

The plaintiffs’ disparate impact claim meets a similar fate.*

As indicated above, “[a]ny claim of disparate impact must be

based on a comparison of the Pan Am personnel whose

rankings were affected by [sic] challenged employment

action.” Adams, 1997 WL 620823 at *2. Indeed, the plaintiff

cannot show a disparate impact based on age since al/ Pan

Am pilots hired by Delta—whether age 27 or S57—

encountered a loss of seniority as compared to what they had

at Pan Am. Thus, any “negative” impact here was felt by both

younger and older former Pan Am pilots and, as previously

discussed, was based on the plaintiffs’ airline of origin and

not their ages.

* With respect to the plaintiffs’ three theories of disparate impact, I

have serious questions whether, under the fac

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