# Petition for Writ of Certiorari — Abdu-Brisson v. Delta Airlines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2307%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 534 U.S. 993 ## Text 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 iV 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; Vv 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 iX | 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 ll x 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: F “(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 3 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. 4 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, 2 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)). 6 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 7 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. 8 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 9 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). 10 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 12 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). 13 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 14 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} 15 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 16 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 a i i zS fu la APPENDIX A UNITED STATES COURT OF APPEALS, SECOND CIRCUIT. No. 1144, Docket 96-7721 MARK ABDU-BRISSON; et al. Plaintiffs-Appellants, Ta 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. 2a 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’ 3a 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). 4a 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. Sa 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). 6a 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 Ta 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 8a 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 9a 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 q a 1 ws 3 “4 x Ps ; 54 x 4 ay s 3 ; ey P es ‘ & * 2 ; : k, ¥ z % 5 ¢ | i . * a Es 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 a 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 § Se a & M4 $ & I ad % > RS & = = 4 ty 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 1 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2307%3A1. Public record. Not legal advice.