Petition for Writ of Certiorari — Carl A. Robertson, Petitioner v. Interactive College of Technology, et al.

IM

MINIM

Supreme Court of the United States

CARL A. ROBERTSON, SR.

Petitioner,

V.

INTERACTIVE COLLEGE OF TECHNOLOGY, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Carl A. Robertson, Sr.

120 NW 44111 Street, Apt. N-i

Lawton, Oklahoma, 73505

(678) 409-9645

carobertson58@yahoo.com

PRO SE LITIGANT

October 10, 2018

Document re-submitted after required corrections as prescribed

by the Clerk of the Supreme Court of the United States. Date of

re-submission October 26, 2018.

QUESTIONS PRESENTED

Based on the Supreme Court of the United States precedents:

Should a 'oro se litigant's" [or any litigant's] First Proposed

"Heightened" Amended Complaint with attachments be

.unfairly denied by any courts of law through its

discretionary privileges based on not following the Court's

Scheduling Order,' Undue delay, futility, employee's

knowledge of information available to employee before

filing suit, etc.; in spite of court records substantiating that

the "pro se litigant" did irrefutably believed he followed the

trial court's Scheduling Order; because the trial court

approved of and did not object to the proposed deadline to

amend complaint as designated within the "pro Se"

Plaintiffs, "Joint Preliminary Report?"

Under the second and third frameworks of McDonnell Douglas v.

Green, 411 U.S. 792 (1973), and within Title VI, Title VII, §§ 1981

and 1985 claims:

Does an employer's "verbal articulation(s)" without

providing any pulpable evidence or factual support [e.g.:

warning notices, other remedial write-ups, snapshots,

salary administration policy, etc.] be sufficient alone, in

validating pivotal segments of the employer's rebuttal for

its disciplinary adverse actions against an employee within

a summary judgment motion;

and, under the Constitutional Laws of the United States and

Evidentiary Rules:

Should any "litigant's" (especially pro se) submitted

documentary evidence [e.g.: business records, employer's

handbooks, policies, appraisals, memos, personnel files,

routine practices, affidavits, etc.], be calculatingly

eradicated by judicial discretion based on authenticationmanipulation, and/or one 'possible" hearsay statement,

which then makes invalid a "litigant's" substantial rights

and legal opportunities in establishing (by a preponderance

of evidence) pretext, race and compensation discrimination,

comparators, routine practices, and delayed retaliation

claims under the "cat's paw theory" of liability when

opposing a summary judgment motion?

PARTIES TO THE PROCEEDING

Petitioner, appellant/plaintiff below, is Carl A. Robertson, Sr.

Respondents, appellees/defendants below, are Interactive College

of Technology/Interactive Learning Systems, Inc, Thomas Blair, and

Elmer Smith.

CORPORATE DISCLOSURE STATEMENT

Pro se Petitioner/Plaintiff, Carl Robertson makes the following

statement as to corporate ownership: None

Interactive College of Technology/Interactive Learning Systems,

Inc. are a for-profit corporation registered under the laws of the State of

Georgia, Kentucky, and Texas. The organization is not publicly held and

issues no stock; therefore, no other organization owns 10 percent or more

of its stock.

arl A. Robertson, Sr.. Pro se

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED

i

.

PARTIES TO THE PROCEEDING ...............................................ii

CORPORATE DISCLOSURE STATEMENT .................................iii

TABLE OF CONTENTS .............................................................iv

TABLE OF AUTHORITIES ..........................................................vi

PETITION FOR A WRIT OF CERTIORARI ...................................1

OPINIONSBELOW ....................................................................1

JURISDICTION.........................................................................1

RELEVANT STATUTORY PROVISION ........................................1

SYNOPSIS..................................................................................6

STATEMENT OF THE CASE

[REASONS FOR GRANTING THEPETITION] ..............................7

Establishment of ICT's Co/manager Positions: ....................... 7

Discriminatory Compensation Decision: ............................... 9

Comparator and Routine Practices: ................................... 12

DELAYED RETALIATORY DEMOTION

AND EMPLOYMENT DISCHARGE ...........................................16

Unauthorized work

area:

17

...................................................

Unauthorized vehicle repairs: ............................................ 18

Unauthorized use of ICT's Master Keys: .............................. 19

Retaliatory Discharge: ..................................................... 21

REASONS FOR GRANTING

THE PETITION .......................................................................22

AUTHENTICATION OF DOCUMENTS

AND HEARSAY: ..................................................................... 23

STANDING TO SUE:

Title VI, Title VII, and § 1981 ....................................................24

V

TABLE OF CONTENTS (continued)

AMENDED COMPLAINT

AND 42 U.S.C. § 1985 ..............................................................25

CONCLUSIONS.......................................................................27

APPENDICES

PAGE No.

Appendix A, Opinion Eleventh Circuit (7/16/2018)

Co

urt

of

Appeals

.........................................................

la

20a

-

Appendix B, Order of the U.S. District Court (2/15/2017)

for the Northern District of Georgia ..............................21a

Appendix C, Report and Recommendation (1/13/2017)

SJM of the Magistrate, Northern District of Georgia .......32a

31a

-

103a

-

Appendix D, Report and Recommendation (7/13/2016)

of the Magistrate Judge, Northern District of Georgia

[Motion to Reconsider] ..........................................104a —121a

Appendix E, Order of the U.S. District Court, (4/14/2016)

NDGA [Denial Motion to Amend] ...........................122a —133a

Appendix F, Order of the U.S. District Court, (9/2/2015)

NDGA [Motion to Dismiss] ......................................134a —144a

Appendix G, Order of the Magistrate Judge, (2/19/2015)

NDGA [Scheduling Order] .......................................145a —146a

Appendix H, Segments: Defendants Initial

Disclosures...............................................................147a-148a

Appendix I, Segments: Plaintiffs Joint

Preliminary Report and Discovery Plan .........................149a —151a

Appendix J, Segments: Appellant's

AppealBrief..............................................................152a —177a

Appendix K, Segments: Appellant's Appeal

ReplyBrief...............................................................178a —193a

Vi

Appendix L, Segments of Witness Affidavits

And Exhibit Index Motion to Amend and

Appendix SJM Exhibits .............................................. 194a— 213a

TABLE OF AUTHORITIES

TABLE OF CITATIONS:

Cases

Page(s)

Aspilaire u. Wyeth Pharm., No.07 Civ.0952,

2009 WL 988648 at *10 (S.D.N.Y. Mar. 30, 2009) .....................12

Brock v. Georgia S.E. College,

765 F.2d 1026 (11th Cir. 1985) .................................................7

Brungart v. BellSouth Telecomms., Inc.,

231 F.3d 791, 799 (11th Cir. 2000) ..........................................20

Bryant v. Jones, 575 F.3d 1281,

1308 (111h Cir. 2009) .........................................................8, 20

Burlington N. & Santa Fe Ry, Co. v. White,

548 U.S. 53, 62 (2006) ..........................................................16

Bush v. Orange County Corr. Dep 't,

597 F.Supp.2d 1293,

1295-96 (M.D.F1a. 2009) .......................................................12

Clark v. City of Los Angeles, 650 F.2d 1033,

1036-37 (91h Cir. 1981), cert. denied,

456 U.S. 927 (1982) ...........................................................9, 11

Czeremcha v. Intern. Assn of Mach.

& Aero. Workers, 724 F.2d 1552,

1554-56 (11th Cir. 1984) ........................................................26

Edwards v. Sears, Roebuck & Co.,

512 F2d 276, 294 (51h Cir. 1975) .............................................11

E.E.O.C. v. Ohio Edison Co.,

7 F.3d 541, 545 (6th Cir.1993) ................................................25

VII

TABLE OF CITATIONS: (continued)

Cases

Page(s)

EEOC v. Reichold Chem., Inc.,

988 F.2d at 1571-72 (11t11 Cir. 1993) .....................................20

Glenn v. General Motors Corp. 841

F.2d 1567 (111h Cir. 1988) ....................................................7

Griffin v. Breckenridge, 403 U.S.

88, 91 S.Ct. 1790, 29 L.Ed.2d 338, (1971) ..............................26

Hall v. Commissioner of Internal Revenue,

729 F.2d 632 (9th Cir. 1984) ................................................11

Harper v. Blockbuster Entertainment Corp.,

139 F.3d 1385 (11th Cir. 1988) ..............................................16

Jackson v. State of Ala. State Tenure Comm 'n,

405 F.3d 1276, 1289 (11th Cir. 2005) .................................20

Jefferies v. Harris County Community

Action Association, 615 F.2d 1025,

1032 (51 Cir. 1980) ...........................................................23

Jones v. Flagship Intern., 793 F.2d 714,

727 (51h Cir.1986) cert. denied, 479 U.S. 1065,

107 S.Ct. 952, 93 L.Ed.2d 1001 (1987) ..................................25

Kouvchinov v. Parametric Tech. Corp.,

537 F.3d 62, 68 (1st Cir. 2008) ..............................................9

Lat hem v. Department of Children &

Youth Services, 952 F.2d 1274-80 (11th Cir. 1992) ...................9

Leach v. Baylor College of Medicine,

Civ. A. No. 07-0921, 2009 WL 385450,

at *17 (S.D.Tex. Feb. 17, 2009) ....................................................12

Linda Holt, v. JTM Industries, Inc.,

USPCI Inc, 105 F.3d 658 (5th Cir. 1996) ................................24

VIII

TABLE OF CITATIONS: (continued)

Cases

Page(s)

Loughan v. Firestone Tire & Rubber Co.,

749 F.2d 1519, 1523 (11th Cir. 1985) ....................................17

Mandia v. ARGO Chemical Co.,

618 F.Supp. 1248, 1250 (W.D.Pa.1985) ................................25

Maradiaga v. United States, 679 F.3d 1286,

1291 (11th Cir. 2012) .........................................................26

McDonnell Douglas Corp., v. Green,

411 U.S. 792, 804-05 (1973) ...............................................22

Meeks v. Computer Associates Inter.,

15 F.3d1013, 1021 (11th Cir. 1994) ......................................20

Mikula v. Allegheny County,

583 F.3d 181 (3d Cir. 2009) ................................................12

Mitchell v. Jefferson County Board of Edu.,

936 F.2d 539 (11t Cir. 1991) ...............................................7

Pegrain v. Honeywell, Inc., 361 F.3d 272,

281-82 (51h Cir. 2004) ........................................................16

Prudential Securities, Inc. v. LaPlant F.R.D.

678, 679 (D. Kan. 1993) .....................................................26

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 147 (2000) ..................................................... 9

Rice-Lamar v. City of Fort Lauderdale, Fla.,

232 F.3d 836, 843 n.h (11th Cir. 2000) ..................................24

Richardson v. New York State Dept.

of Correctional Service, 180 F.3d 426,

444 (2' Cir. 1999) .............................................................20

Robinson v. Canterbury Village, Inc.,

848 F.2d 424, 431, (3d Cir. 1988) .........................................26

ix

-

-

TABLE OF CITATIONS: (continued)

Cases

Page(s)

Rucker v. Higher Educational Aids, Bd.,

669 F.2d 1179, 1182 (71h Cir. 1982) ....................................16

Schroeder v. Greater New Orleans Fed.

Credit Union, 664 F.3d 1016 (5th Cir. 2011) ........................22

Sims v. MVM, I nc, 704 F.3d 1327,

1336 (11" Cir. 2013) ........................................................22

Summa v. Hofstra Univ., 708 F.3d 115,

127-28 (2d Cir.2013) .......................................................20

Supreme Fuels Trading FZE v. Sargeant,

689 F.3d 1244, 1246 (11'' Cir. 2012) ..................................26

United States v. Lanzon, 639 F.3d 1293,

1301 (11th Cir. 2011) ....................................................... 11

United States v. Lebowitz, 676 F.3d 1000,

1009 (11th Cir. 2012) .......................................................11

United States v. Rangel, 583 F.2d 344,

346 (81h Cir. 1978) ............................................................. 9

United States v. Siddiqui, 235 F.3d 1318,

1322 (11th Cir. 2000) .......................................................11

Vuong v. N. Y. Life Ins. Co.,

No.03 Civ. 1075, 2009 WL 306391

at *8..9 (S.D.N.Y. Feb. 6, 2009) ..........................................12

Statutes:

Title VII of the Civil Rights

Act of 1964 ..................................................................1,24

The Civil Rights Act of 1991 ................................................3

x

Statutes: (continued)

Lilly Ledbetter Fair Pay Act of 2009 ...........................3, 10, 11

Title VI of the Civil Rights

Actof 1964 ...................................................................4,24

42 U.S. Code § 1981 ......................................................5, 24

42 U.S. Code § 1985 ......................................................5, 26

42 U.S.C. § 2000e-5(e)(1) ....................................................11

Title VII, 42 U.S.C. § 2000e-2(a)(1) .....................................16

42 U.S.C. § 1981(a)(b) .......................................................16

29 U.S.C. § 623(d) ............................................................25

Rules and Regulations:

FED. R, Civ. P., Rule 15(c)(1)(C) .........................................25

FED. R, Civ. P., Rule 17(a)(1)(3) .........................................25

FED. R, Civ. P., Rule 59(e) .................................................26

FED. R, Civ. P., Rule 60(b) .................................................26

FED. R. EVID. 901(a) .........................................................9

FED. R. EVID. 901(b)(1) .....................................................9

FED. R. EVID. 902(8) .........................................................9

FED. R. EVID. 803(1)(6) .....................................................9

FED. R. EVID. 803(6) .........................................................9

FED. R. EVID. 401 ............................................................9

SCOTUS Rule 10 (a) ..........................................................6

A

Other Authorities:

11 C. Wright et al., Federal Practice and Procedure

§ 2810.1, at 124-25 (2d ed. 1995) ..........................................26

Black's Law Dictionary 802 (7th ed. 1999) .............................15

Ernest F. Lidge III, The Courts'Misuse of the

Similarly Situated Concepts in Employment

Discrimination Law, 67 Mo. L. Rev., 831, 863-64 (2002) ..........22

The Business Records Exception:

Something Less than

Revolutionary, 2 Litigation 25, 27 (Fall 1975) ........................11

WEINSTEIN & BERGER

902(8) [01] at 902-31 ...........................................................9

(1)

PETITION FOR A WRIT OF CERTIORARI

Petitioner Carl A. Robertson, Sr., respectfully petitions for a writ

of certiorari to review the complete case record of the lower courts and

judgment of the United States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eleventh Circuit July 16, 2018, (Pet. Appx. [A] la-20a) is unpublished.

The order of the district court February 15, 2017, (Pet. Appx. [B] 21a31a) is unpublished. The report and recommendation of the magistrate

judge January 13, 2017, (Pet. Appx. [C] 32a-103a) is unpublished. The

report and recommendation of the magistrate judge, Motion to

Reconsider July 13, 2016, (Pet. Appx. [D] 104a-121a) is unpublished.

Order of the district court, Denial Motion to Amend April 14, 2016, (Pet.

Appx. [E] 122a-133a) is unpublished. Order district court, Motion to

Dismiss September 2, 2015, (Pet. Appx. [F] 134a-144a) is unpublished.

Order of the magistrate judge, Scheduling Order February 19, 2015,

(Pet. Appx. [G] 145a-146a) is unpublished.

JURISDICTION

The judgment of the court of appeals was entered on July 16,

2018. [Pet. Appx. la-20a] This Court has jurisdiction under 28 U.S.C. §

1254(1).

RELEVANT STATUTORY PROVISIONS

Title VII of the Civil Rights Act of 1964:

42 U.S.C. § 2000e-2. [Section 703]

(a) Employer practices: "It shall be an unlawful employment

practice for an employer

to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate

against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of

.

.

.

(2)

such individual's race, color, religion, sex, or national

origin."

(h)Seniority or merit system; quantity or quality of

production; ability tests; compensation based on sex and

authorized by minimum wage provisions:

"Notwithstanding any other provision of this subchapter, it

shall not be an unlawful employment practice for an

employer to apply different standards of compensation, or

different terms, conditions, or privileges of employment

pursuant to a bona fide seniority or merit system, or a

system which measures earnings by quantity or quality of

production or to employees who work in different locations,

provided that such differences are not the result of an

intention to discriminate because of race, color, religion,

sex, or national origin..

42 U.S.C. 2000e-3. [Section 704]

Discrimination for making charges, testifying, assisting, or

participating in enforcement proceedings:

(a) It shall be an unlawful employment practice for an

employer to discriminate against any of his employees

or applicants for employment, for an employment

agency, or joint labor-management committee

controlling apprenticeship or other training or

retraining, including on—the-job training programs, to

discriminate against any individual, or for a labor

organization to discriminate against any member

thereof or applicant for membership, because he has

opposed any practice made an unlawful employment

practice by this subchapter, or because he has made a

charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing

under this subchapter.

(3)

The Civil Rights Act of 1991:

TITLE I FEDERAL CIVIL RIGHTS REMEDIES

-

"SEC. 1971A. DAMAGES IN CASES OF INTENTIONAL

DISCRIMINATION IN EMPLOYMENT." [42 U.S.C. 1981a]

"(a) RIGHT OF RECOVERY. "(1) CIVIL RIGHTS. In an

action brought by a complaining party under section 706 or

717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5)

against a respondent who engaged in'unlawful intentional

discrimination (not an employment practice that is

unlawful because of its disparate impact) prohibited under

section 703, 704, or 717 of the Act (42 U.S.C. 2000e-2 or

2000e-3), and provided that the complaining party cannot

recover under section 1977 of the Revised Statutes (42

U.S.C. 1981), the complaining party may recover

compensatory and punitive damages as allowed in

subsection (b), in addition to any relief authorized by

section 706(g) of the Civil Rights Act of 1964, from the

respondent.

-

-

Lilly Ledbetter Fair Pay Act of 2009:

Section 3. Discrimination in Compensation Because of

Race, Color, Religion, Sex, or National Origin: Section

706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e5(e)) is amended by adding at the end the following:

"(3)(A) For purposes of this' section, an unlawful

employment practice occurs, with respect to discrimination

in compensation in violation of this title, when a

discriminatory compensation decision or other practice is

adopted, when an individual becomes subject to a

discriminatory compensation decision or other practice, or

when an individual is affected by application of a

(4)

discriminatory compensation decision or other practice,

including each time wages, benefits, or other compensation

is paid, resulting in whole or in part from such a decision

or other practice."

Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et sea: 42

U.S.C. 2000d.

Prohibition against exclusion from participation in, denial of

benefits of, and discrimination under federally assisted programs

on ground of race, color, or national origin: "No person in the

United States shall, on the ground of race, color, or national

origin, be excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any program or activity

receiving Federal financial assistance."

42 U.S.C. 2000d-4a: "Program or activity" and program defined:

(2)(A) a college, university, or other postsecondary

institution, or a public system of higher education; or

(B) a local educational agency (as defined in section 198(a)

(10) of the Elementary and Secondary Education Act

of 1965), system of vocational education, or other school

system;

(3)(A) an entire corporation, partnership, or other private

organization, or an entire sole proprietorship—

(1)

If assistance is extended to such corporation,

partnership, private organization, or sole

proprietorship as a whole; or

(ii) which is principally engaged in the business of

providing education, health care, housing, social

services, or parks and recreation; or

(5)

any part of which is extended Federal financial assistance.

42 U.S. Code § 1981—Equal rights under the law:

(a) STATEMENT OF EQUAL RIGHTS: "All persons within the

jurisdiction of the United States shall have the same right

in every State and Territory to make and enforce contracts,

to sue, be parties, give evidence, and to the full and equal

benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens, and

shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other."

(b)MAKE AND ENFORCE CONTRACTS-DEFINED: For purposes of

this section, the term "make and enforce contracts"

includes the making, performance, modification, and

termination of contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual

relationship.

42 U.S. Code § 1985 Conspiracy to interfere with civil rights:

-

(3) DEPRIVING PERSONS OF RIGHTS OR PRIVILEGES:

If two or more persons in any State or Territory conspire

or go in disguise on the highway or on the premises of

another, for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and

immunities under the laws; or for the purpose of

preventing or hindering the constituted authorities of any

State or Territory from giving or securing to

all persons within such State or Territory the equal

protection of the laws;

if one or more persons engaged

therein do, or cause to be done, any act in furtherance of

the object of such conspiracy, whereby another is injured

in his person or property, or deprived of having and

exercising any right or privilege of a citizen of the United

.

.

.

(6)

States, the party so injured or deprived may have an

action for the recovery of damages occasioned by such

injury or deprivation, against any one or more of the

conspirators.

SYNOPSIS

Petitioner understands that a review on a writ of certiorari is not

a matter or right, but of judicial discretion; and, will be granted only for

compelling reasons such as: SCOTUS Rule 10 (a). a United States court

of appeals has

"so far departed from the accepted and usual course

of judicial proceedings, or sanctioned such a departure by a lower court,

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

.

.

.

.

The pending issues within this "Writ of Certiorari" are important

to the public as a whole, and is asking this Court whether: (1) an

employer should be required to justify the affirmative defense of

seniority, if an employee provides evidence capable of raising serious

doubts that an employer's legitimate nondiscriminatory explanation of

seniority or length of service as a factor in determining pay leads to

disparities in pay; (2) co/managers with the same direct supervisors,

same department and established policies be considered similarly

situated despite length of service, especially if "seniority" was not a

determining factor when the co/manger positions were established, (3)

compelling circumstantial documentary evidence can be artfully

excluded through the courts discretionary powers as being unauthenticated, and/or based on one possible hearsay statement which

then denies, harms, and prejudice a litigant's substantive rights in

proving his side of a particular litigation; and, (4) an employer's verbal

articulations alone (unauthorized work area, master keys, and vehicle

repairs), suffice in creating a legitimate nondiscriminatory explanation

within a Title 'S/fl disciplinary case without any palpable evidence

(written warnings, other remedial write-ups, etc.), to validate their

nondiscriminatory explanation(s)?

(7)

STATEMENT OF THE CASE

Title VII, Sections 703, 42 U.S.C. 2000e-2. (a)(h); § 1981a,

And the Lilly Ledbetter Act

A. Establishment of ICT's Co/manager Positions:

Respondent, Interactive College of Technology (ICT) consist of

seven campuses located in Georgia, Texas, and Kentucky with the main

campus location in Chamblee, Georgia. From October 2008 through May

2012, out of its seven campus locations, "ICT" had only one department

which consisted of co/manager positions. Those co/manager positions

were created by the Campus President/Owner, Elmer Smith on October

10, 2008, and the positions were designed specifically for ICT's

"maintenance department" at its main campus.

On October 10, 2008, and once ICT's co/managers positions were created

with Robertson performing all administrative, personnel, and

established routine practices within the maintenance department;

William Spyers "primary supervisory responsibilities," and/or

"seniority" went out the door, because ICT's maintenance department

went through an administrative, procedural, and policy change.

Petitioner, Carl Robertson was not promoted to assistant manager, but

co/manager [managerl. Petitioner became the lead or senior

co/manager over the entire department up to December 13, 2012, and

Robertson held that position for approximately four (4) years before and

after, William Spyers death.

The co/manager positions benefited William Spyers length of

service with continued employment, reduced responsibilities, and no

salary change; and, was made to not appear as if Spyers was demoted to

an assistant maintenance manager under his junior subordinate (before

promotion) Carl Robertson. See, Mitchell v. Jefferson County Board of

Edu., 936 F.2d 539 (111 Cir. 1991); Glenn v. General Motors Corp. 841

F.2d 1567 (11th Cir. 1988); Brock v. Georgia S.E. College, 765 F.2d 1026

(111 I Cir. 1985).

(8)

Robertson did not take over "some of William Spyers

responsibilities and handled additional responsibilities" as indicated by

the Eleventh Circuit. (Pet. Appx. [A] 9a, ¶1; [J] 196a). If believed and

liberally construed by the lower courts; Carl Robertson's original and

proposed amended complaints states, "Approximately 60 percent of Mr.

Spyers duties were at the residence of 'Elmer Smith,' and his other

duties included cleaning the student center, transferring information

from invoices to purchase order, and the procurement of keys."

ICT's *salary administration policies, states: "Salary

considerations are based wholly on employee performance and position,

not on length of service

pay wages based upon the nature of the job

performed... competitive with rate being paid for similar work

by other employers in the community."

.

.

.

.

Respondent(s) affirmative defense of seniority is no more than a

cover-up for racial animus, because within *Respondent(s) EEOC

Position Statement (Feb. 5, 2013, pg. 2, ¶ 2) it clearly states:

"His (Robertson's) direct supervisor was Mr. William Spyers

While his shoes were going to be big shoes to fill, the leaders of

ICT were confident that charging party should be given that

opportunity

And, eventually, charging party was made

supervisor over the department. Certainly, had he (charging

party) succeeded in the role afforded him, charging party could

have also attained a higher salary."

.

.

.

.

.

Why would Respondent(s) make it appear to the EEOC and the

lower courts, that "Robertson" did not become maintenance manager

until after William Spyers death? "Pretext" in the employment context,

means a reason for an action that is false, it is the covering-up by an

employer of its true motives. Pretext is established when a plaintiff

"present[s] concrete evidence in the form of specific facts" showing that

the defendant's proffered reason was pretextual. Bryant v. Jones, 575

F.3d 1281, 1308 (11th Cir.2009). (Pet. Appx. [J] 158a, 164a, [L] 198a).

1 * Documents excluded as not being authenticated by Petitioner, or other witnesses.

** Affidavits and/or documents excluded based on hearsay, and/or lack of personal

knowledge.

(9)

The Eleventh Circuit said in Lathem v. Department of Children

[t]he relevant

& Youth Services, 952 F.2d 1274-80 (11th Cir. 1992):

inquiry is not whether the employees hold the same job titles, but

whether the employer subjected them to different employment policies.

Although the Appellant is required to show both that the defendant's

reasons are false, and that discrimination is the true reason for the

adverse action, evidence of the first can suffice for the second." Reeves V.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000); See also,

Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62, 68 (1st Cir. 2008).

". . .

B. Discriminatory Compensation Decision:

Several months before Petitioner was promoted to co/manager,

Elmer Smith had Robertson to create what became known as ICT's

*Maintenance Manual.2 (Pet. Appx. [J] 160-61a). That manual was

written by Robertson, as instructed by Elmer Smith, to incorporate the

presented "sufficient documentary evidence" to make out a prima facie case

Petitioner

of racial discrimination in pay, and pretext. Most of the documentary exhibits

submitted in opposition to Appellees summary judgment motion, were either, within

Robertson's control and/or custody, made or written by Robertson as maintenance

manager, kept by Robertson in the regular course of departmental business activities,

the regular practice by Robertson to make such records, and made by a person

(Robertson) with knowledge or from information transmitted by a person with

knowledge. FED. R. EVID. 901(a). Within the FED. R. EVID., Rule 901(b)(1) it

provides that both documentary and real evidence may be authenticated or identified

by the testimony of a witness with knowledge that it is what its proponent claims it to

be; Federal Rule 902(8), "Extrinsic evidence of authenticity as a condition precedent to

admissibility is not required with respect to the following: ...**[d]ocuments

accompanied by a certificate of acknowledgement executed in the manner provided by

law by a Notary Public or other officer authorized by law to take acknowledgements."

See generally, WEINSTEIN & BERGER 902(8) [01] at 902-31. (Pet. Appx. [U] 194a97a, 206a-213a). Those overall excluded documents were submitted to show the

"routine practices" and "habits" of ICT's maintenance department over several years,

while both Robertson and Spyers were co/managers. As well as to demonstrate

"pretext" within the employer's legitimate nondiscriminatory explanation(s). See, Fed.

R. Evid., Rule 803(1)(6), Rule 902(8); Clark v. City of Los Angeles, 650 F.2d 1033, 103637 (91h Cir. 1981), cert. denied, 456 U.S. 927 (1982). If business records are not offered

as evidence of the truth of the matters recorded, then they are not hearsay and need

not meet the requirements of Fed. R. Evid., Rule 803(6). See, United States V. Rangel,

583 F.2d 344, 346 (81 Cir. 1978) (vouchers and attachments were introduced to show

deliberate act of alteration and not for purpose of establishing truth of statements in

them). See also, Fed.R. Evid. 401.

2

(10)

"routine practices" of the maintenance department before Petitioner was

ever promoted to co/manager. Once promoted, Elmer Smith instructed

Robertson to follow, and to use ICT's maintenance manual and routine

practices in accomplishing the maintenance department's tasks. (Pet.

Appx. [L] 196a-206a-13a).

During the month of December 2011, and after following Elmer

Smith's instructions for approximately (3) years as maintenance

manager. Robertson received his *yearly appraisal, and within that

appraisal Petitioner was given a 3.5% increase in pay. As required by

ICT's policies, Petitioner made *comments to that appraisal and

indicted:

"I welcome any increase in pay that I receive, nevertheless, I

firmly believe that I am decisively underpaid, because I do not

possess a degree, no matter the overwhelming improvements

(cleanliness, pest control, flags, cost control, security, etc.) I have

made within the maintenance department and the ICT

establishment as a whole. As maintenance manager, I am

called upon for every problem which exist or comes up about and

involves the department

Before Mr. Smith promoted me to

co/manager, the Campus President *directed me in creating the

maintenance manual. The manual is updated each year, and

consist of job descriptions, maintenance schedules.

.

.

.

.

.

.

Once Robertson said he "believed that he was decisively

underpaid," Petitioner's comments made a valid claim under the "Lilly

Ledbetter Fair Pay Act ("LLFPA"), which expands the statutory

limitations periods for Title VII claims based on paychecks, among other

types of statutory claims." The LLFPA broadens the statute of

limitations for Title VII claims by adding a definition of when an

unlawful unemployment practice "occurs."

"An unlawful employment practice occurs with respect to

discrimination in compensation in violation of this title, when a

discriminatory compensation decision or other practice is

adopted, when a person becomes subject to a discriminatory

compensation decision or other practice, or when a person is

affected by application of a discriminatory compensation decision

or other practice, including each time wages, benefits, or other

(11)

compensation is paid, resulting in whole or in part from such a

decision or other practice." Lilly Ledbetter Fair Pay Act of 2009,

Pub. L. No. 111-2, § 4, 123 Stat. 5, 5-6 (2009); 42 U.S.C. § 2000e5(e)(1).

ICT's affirmative defense (seniority and experience) in defeating

race-wage discrimination has an ostensive purpose,3 because within the

comments to Petitioner's *December 2011 appraisal, Robertson states:

Within Petitioner's Appendix to his Appellant's Brief, Robertson submitted several

documentary exhibits that were excluded by the lower courts as being

unauthenticated, [(1) Robertson's *personnel File [1-581; (2) *Appraisals [pgs. 162-72];

(3) *ICT's Maintenance Manual [pgs. 119-54]; (4) *Rescheduling memos and *Other

required procedures (2008-2012) [pgs. 309-63,]; (5) *ICT's Employee Handbook [17893]; (6) *personnel Policy & Procedures [264-89]; (7) *Memos from Carl Robertson

addressed as ICT's maintenance manager (2008-2012) [pgs.516-547]; (8)

*Documents obtained through Discovery from Respondents [pgs. 1-107, 421-861, etc.];

to prove compensation discrimination, routine practices, and pretext within the

employer's legitimate nondiscriminatory explanations. (Pet. Appx. [L] 212a-13a).

Those submitted documents went as far back as 2008 and up to 2012 and demonstrated

the maintenance department's habits while both Robertson and Spyers were

co/managers, and afterwards. "Under Fed. R. Evid. Rule 901(a), 'documents must be

properly authenticated as a condition precedent to their admissibility.' United States

v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000). 'To authenticate a document, Rule

901 only requires a proponent to present sufficient evidence to make out a prima facie

case that the proffered evidence is what it purports to be. After meeting the prima

facie burden, the evidence may be admitted, and the ultimate question of authenticity

is then decided by the jury.' United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir.

2012) (citations and internal quotation marks omitted); see also United States v.

Lanzon, 639 F.3d 1293, 1301 (11th Cir. 2011) (similar). Where objection is raised to

the admissibility of evidence on authenticity grounds, the trial court's inquiry is

whether the proponent of the evidence has shown authentication 'by evidence

sufficient to support a finding that the matter in question is what its proponent claims.'

Siddiqui, 235 F.3d at 1322. If so; the objection must be overruled." See also, The

Business Records Exception: Something Less than Revolutionary, 2 Litigation 25, 27

(Fall 1975); Fed.R. Evid. Rule 803(6), 903(b)(1); Clark V. City of Los Angeles, 650 F.2d

1033, 10367(9th Cir. 1981), cert. denied, 456 U.S. 927 (1982); Hall v. Commissioner of

Internal Revenue, 729 F.2d 632 (91h Cir. 1984) (church records admissible as business

records if proper foundation laid by qualified witness). "The Best Evidence Rule is of

little practical value, at least where there is no serious issue as to the accuracy or

authenticity of a duplicate." Edwards v. Sears, Roebuck & Co., 512 F2d 276, 294 (51,h

Cir. 1975). (Pet. Appx. [L] 206a-13a).

...

V

(12)

"As the maintenance manager, I am called upon for every

problem which exist. On the-other-hand when told that I need

to change my schedule 'Mr. Spyers will be part-time next year,'

also states that I hold the title and position 'assistant to

maintenance manager." (Pet. Appx. [K] 181a-82a).

.

.

The Eleventh Circuit has erroneously expressed Robertson's managerial

position when it states:

"As comanager, Robertson took over some of Spyers

responsibilities and handled additional responsibilities

In

addition, Robertson received a pay raise every year he worked at

ICT, and the difference between Spyers's pay and Robertson's was

shrinking over time." (Pet. Appx. [A] 9a; [L] 196a, ¶J 11-14).

.

.

.

However, there is nothing in the courts records which indicates

that Robertson "took over some" of Spyers responsibilities; and, as far

as Spyers pay (shrinking over time). It does not make any difference,

because the paychecks Robertson received within the statutory period

would have been more than that of Spyers but for the company's 2008

decision (paying Petitioner less than Spyers) when it made Robertson

(primary, lead, senior) co/manager above William Spyers under *ICT's

salary administration's performance-based pay system. See, Vuong v.

NY. Life Ins. Co., No.03 Civ. 1075, 2009 WL 306391 at *8..9 (S.D.N.Y.

Feb. 6, 2009), Leach v. Baylor College of Medicine, Civ. A. No. 07-0921,

2009 WL 385450, at *17 (S.D.Tex. Feb. 17, 2009); See also, Mikula v.

Allegheny County, 583 F.3d 181 (3d Cir. 2009); Aspilaire v. Wyeth

Pharm., No.07 Civ.0952, 2009 WL 988648 at *10 (S.D.N.Y. Mar. 30,

2009); Bush v. Orange County Corr. Dep't, 597 F.Supp.2d 1293, 1295-96

(1VI.D.Fla. 2009)(".

Though the court does not say so specifically it

seems, in referring to 'claims' plural that the court sees a "promotion

decision" as covered by the Act."). (Pet. Appx. [C] 62a-66a; [D] 105a-06a).

.

.

C. Comparator and Routine Practices:

As specified by the Eleventh Circuit Court of Appeals, Petitioner

did not present a prima facie case of race discrimination within his

suspension dated for July 2012, because the court states:

(13)

"To determine whether employees are similarly situated in a

discriminatory discipline case, we evaluate 'whether the

employees are involved in or accused of the same or similar

conduct and are disciplined in different ways

Where the

defendant offers the plaintiffs violation of a work rule as its

defense, the reason "is arguably pretextual when a plaintiff

submits evidence (1) that he did not violate the cited work rule,

or (2) that if [hel did violate the rule, other employees [Spyers]

outside the protected class, who engaged in similar acts, were not

And since Robertson has not identified a

similarly treated

comparator outside his protected class who was not suspended

under these circumstances (verbal altercation) or presented any

other evidence that would show that his suspension had anything

to do with race, he did not establish a prima facie case of

discrimination." (Pet. Appx. [A] lla-13a; [C] 66a-67a).

.

.

.

.

.

.

On September 9, 2016, (pgs. 13-15), Robertson describes to the

court what he considered as racial discrimination and pretext involving

his suspension. Within that Brief, Robertson states:

"After submitting the *required comments to his December 2011

*annua l review;4 Plaintiff starting in January 2012, was suddenly

accused of (1) violating policy, (2) not properly budgeting, (3)

employees acquiring too much overtime, (4) could not reschedule

employees to accomplish extraordinary assigned task, (5) not

ordering supplies properly, (6) unnecessary employee training,

(7) purposely leaving classroom furniture out, and (8) suspended

for insubordination, etc. Defendant's response does not coincide

December 9, 2011_*Annual Review from Thomas Blair: "You have done well to

The budget is to spend $160,000; you have spent $137,

maintain expenses in 2011

. . .

241 of revenue. You have conducted training sessions for your employees

The

building has continued to appear clean and neat under your management..' You have

done well with maintaining offices, classrooms, grounds (flags in the courtyard, trash

You have learned how to use/review the video surveillance

cans, parking lot, etc.)

system... In addition, you have been responsive and cooperative in request to review

system

You take pride in your work and the work of your department

The

building always looks aood when we have special events graduation, director

meetings. advisory boards, etc.) or when we have special guest. You provided some

good insights on developing a better process for registration

You work well with

vendors; you work well in scheduling and training employees including work studies;

and you pay close attention to the details in cleaning and maintaining the building."

...

.

. . .

.

.

.

...

.

.

.

-

(14)

with Plaintiff's *annual reviews as written over a three-year

period from 2009-2011

Plaintiff sincerely believed that due to

the December 2011 comments to his annual review. and what

he considered as unsubstantiated destructive criticisms; the

Defendants were purposely trying to set him up for failure, by

making it appear that he was incapable of doing his job. Further,

Robertson has also specified that what occurred with him and the

suspension for insubordination encompasses racial

discrimination, because it was Thomas Blair who altered the

routine scheduling practice of the department after some *(40)

extraordinary tasks was- given Robertson (by Smith and Blair) to

complete before an upcoming *Counsel on Occupational

Education (CEO) inspection for Accreditation purposes. At no

time before or after Robertson's promotion to co/manager, had the

ICT administration interfered with William Spyers (or Robertson)

in such a manner: especially, when the department was told to not

go into overtime. ICT purposely tied Robertson's hands as a way

to stymie Plaintiff's efforts in completing the various tasks

assigned, or to make some mistake involving the various tasks

assigned so that he could be accused of work-related misconduct."

.

.

.

.

.

.

.

On July 5, 2012, Robertson wrote a *memo to Blair expressing what

could possibly occur if Petitioner was unable to reschedule his employees

to complete the *(40) assigned tasks before the upcoming COE

inspection. Within that document Robertson states:

"I will now try to clarify my position as the 'Maintenance

Manager', and why/how I have directed the maintenance

department personnel over the past four (4) years as a means to

achieve extraordinary work (Graduations. CEO, Saturday duty,

furniture inventory /supplies, training, meeting, etc.) which have

occurred from year-to-year. Through unexpected changes

(retirement/death) within the managerial structure of the ICT

Maintenance Department, other employees are now utilized to

help maintain certain problems, assignments, or pending

upcoming matters when necessary. Even though schedules are

altered, the department have not received any complaints

because when extraordinary work is required, and man power

is needed, the departments' crew must do what needs to be done.

Or, the next thing which may be stated by the ICT Hierarchy is

that the Maintenance Manager now seems incompetent and

cannot get assigned tasks complete. Certain work cannot be

.

.

.

.

• .

.

.

(15)

done by the department between the hours of 9:OOAM-10:OOPM;

and according to the type of work needing to be done, some tasks

must be accomplished over the weekend. Therefore, the gist of

this letter is that it will be very hard during certain occasions for

the maintenance personnel to at all time work a straight schedule

as prescribed within the Maintenance Manuel. It should also be

noted, that if following a straight schedule at all times is required;

certain task will not and could not be accomplished by the

department as they have been in the past.

.

.

Robertson "obeyed" Blair's orders, and on June 9, 2012, it was

Thomas Blair's disrespectful actions and impertinent attitude

(belittling Petitioner to coworker via tehphone, raising his

voice, name calling, denying Robertson the opportunity to

speak, and threats to Petitioner's managerial position) which

caused the verbal altercation and a *counterreactjon from Robertson.

Petitioner sincerely believed that he was being "set-up for failure" by

Thomas Blair, and then was "cunningly coerced" into a verbal

confrontation. "Insubordination" is defined as 'a refusal to obey' an order

that a superior officer is authorized to give." Black's Law Dictionary 802

(7th ed. 1999).

As stated within the *letter (July 18, 2012) addressed from Elmer

Smith to Robertson concerning his suspension and discrimination

complaint, Smith states:

'We certainly respect your right to raise concerns regarding

discrimination in the workplace. But, again, the 'derogatory and

harassing' manner in which you communicate at work is

unacceptable."

In relations to the above comment, ICT never paid Robertson for the

second-week of suspension without pay; after claiming that Petitioner

could not be placed back onto the schedule after his one-week

suspension; and, not until his internal complaint of racial discrimination

was investigated. Robertson was suspended from (July 9-24, 2012).

It is obvious that Robertson's discrimination complaint is based

on his treatments as co/manager by ICT, "compared" to ICT's treatments

(16)

towards Spyers as co/manager; especially, after William Spyers death.5

Nonetheless, the lower courts insist that Robertson was "just treated

unfairly;" and, William Spyers (seniority precluded him) from being a

comparator to Petitioner within his racial discrimination and retaliation

complaints. Title VII, 42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 1981(a)(b);

See e.g., Pegram v. Honeywell, Inc., 361 F.3d 272, 281-82 (511i Cir. 2004),

Burlington N. & Santa Fe Ry, Co. v. White, 548 U.S. 53, 62 (2006)

(explaining that the language of Title Vii's antidiscrimination provision

"explicitly limit[s] the scope of that provision to actions that affect

employment or alter the conditions of the workplace"); See also, Harper

v. Blockbuster Entertainment Corp., 139 F.3d 1385 (111"h Cir. 1988);

Rucker v. Higher Educational Aids, Bd., 669 F.2d 1179, 1182 (7th Cir.

1982) (Interpreting Title VII, the court stated, "it is the good faith and

reasonableness, not the fact of discrimination, that is the critical inquiry

in a retaliation case.").

Delayed Retaliatory Demotion, and Employment Discharge:

The Eleventh Circuit states:

"Robertson also did not present a prima facie case because he did

not present a similarly-situated employee who was treated more

favorably than him

ICT claims it took away Robertson's

managerial responsibilities after several incidents in the

Fatal to Robertson's claims is that

maintenance department.

he did not offer evidence that a similarly manager outside his

protected class was also accused of multiple similar infractions,

but was not demoted from a managerial position. Title VII

.

.

.

.

.

.

.

Within Robertson's June 10, 2012 discrimination complaint, he states: "I am now

accusing you as V.P. Dean of College, as well as the Campus President (Elmer Smith)

of being in cahoots of racial animus by your own policy; and, by creating a double

standard over and above for me as a Black (Male) Maintenance Manager compared

to the White (Male) Maintenance Manager who until recently I co/managed the

department with. I attest that this problem has existed as far back as March 2010 and

became more prevalent after Mr. Spyers retirement and recent unexpected death. I

further complain that the two of you have done your best through various methods, to

make it appear as 111am not doing my job properly. I also accuse the both of you

of holding me to a higher standard with less pay than the previous manager (Mr.

Spyers) was ever held to. This is despite of the fact that it is I who has directed the

maintenance department. during the past four years."

. .

(17)

retaliation claims require proof that the desire to retaliate was

the but-for cause of the challenged employment action i.e., the

plaintiff must show that the unlawful retaliation would not have

occurred without the alleged wrongful action or actions of the

employer." (Pet. Appx. [A] 12a-17a; [C] 62a-101a; [J] 157a-175a;

[K] 189a-192a).

-

Petitioner have shown that Respondent(s) deviated from ICT's

policies and the routine practices. Fed. R. Evid., Rule 406. Habit;

Routine Practice, states:

"Evidence of a person's habit or an organization's routine

practice may be admitted proving that on a particular occasion

the person or organization acted in accordance with the habit or

routine practice. This rule permits a litigant to admit prior

conduct as evidence of similar conduct on a particular occasion if

the prior conduct amounts to a habit or routine practice. Loughan

v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1523 (11th Cir.

1985)."

Carl Robertson followed the established routine practices (before/after

the co/managers positions) of ICT's maintenance department; and,

although ICT has "articulated" their nondiscriminatory explanations (of

poor decision making), they have not provided any palpable evidence

based on Respondent(s) *disciplinary policies in verifying those

articulations:

1. Unauthorized work area:

Within the Magistrate Judge's (R&R) he states: "Plaintiff does not

dispute that, after the alleged theft, Dean Blair informed him that workstudy students were not allowed to work in the accounting department."

(Pet. Appx. [C] 46a). However, on September 19, 2012, (date of alleged

theft) the Dean's statement was that CWS students "were 'no longer'

allowed to work" within the accounting department, and "from now on"

he only wanted full-time employees to work within that area. (Affidavit

of Brandon Smoot, 11T 33-34) (Pet. Appx. [A] 12a-13a)

Pretext: By *ICT's maintenance manual, and witness

affidavits: "All full-time and college work study students

(18)

were routinely designated certain areas to work and clean

on a daily, weekly, and monthly basis; and, schedules were

regularly changed when necessary to accommodate for

upcoming events and extraordinary work assignments to

avoid overtime compensation." (Pet. Appx. [L] 196a, 200a,

203a).

Therefore, how could Robertson have been accused of such a policy

violation on December 13, 2012, that was not implemented by Dean

Blair, until after the alleged theft of September 19, 2012? Further, since

cleaning the accounting department was a routine practice for workstudies while Spyers and Robertson were co/mangers, when was that

routine practice changed; before or after William Spyers death, and if

after his death, why was it suddenly changed?

2. Unauthorized vehicle repairs:

ICT claims: Robertson took the "donated" company truck to his

nephew's auto shop for repair, and his nephew was arrested for driving

the truck while intoxicated, which resulted in the vehicle being

impounded. (Pet. Appx. [A] 13a). If Robertson would have been able to

acquire an account with MAACO, Classic Collision, Goodyear, or any

other body repair shop and the same had occurred, would Robertson

have been demoted for the actions of others (DUI with ICT's vehicle) who

was unrelated to him?

Pretext: On December 13, 2012), Respondents claimed

that Robertson took the vehicle to his nephew shop

"without permission or authorization." However, before

any purchases, contracts, or required work for ICT could be

initiated, "all invoices (purchases, contracts, outside work,

etc.) had to get approval by ICT's administration (Smith or

Blair)." (Pet. Appx. [L] 210a (J), 213a, pgs. 221-45). Thomas

Blair signed off on an *invoice (They should be able to order

the parts, or paint replacement parts to match [Thomas])

submitted by Melvin Sentmore, from "Sentmore

Automotive" with an estimated cost for repairs on October

7, 2012.

(19)

Therefore, all estimated repairs were authorized, and Robertson did

what was required of him, and as specified by *ICT's written and

unwritten policies.

3. Unauthorized use of ICT's Master Keys:

The Eleventh Circuit state: "Using ICT's master keys, for which

Robertson was responsible, a student worker assigned to Robertson's

department stole two laptops." However, within Respondent(s) * EEOC

Position Statement, February 5, 2013, they state: "Again, video footage

showed a student converting the property by using a Master Key he

accessed. The student used the key to access and clean the IT offices,

then returned to take two laptops." (Pet. Appx. [L] 160a-66a, 189a-90a).

.

.

Within Robertson's annual review written by Thomas Blair—

December 9, 2012, he states: "you have learned how to use/review the

video surveillance system... In addition, you have been responsive and

cooperative in request to review system."

Pretext: "Robertson observes by video footage an alleged

theft of $2,000.00 worth of company property by a

Caucasian male (CWS) student working under his

directions. Appellant and Chamblee Police Officers

questions the student about the theft. The student denies

everything and claims that he used ICT's master keys to

enter an unauthorized office area for cleaning purposes.

Robertson suspends the (CWS) student until further

investigation. After a second review of the video footage it

was determined that the student did indeed steal two

laptops, but never used master keys to open the door where

the theft occurred; the theft was also observed by (8) others

including Appellant's wife; some observed Thomas Blair's

entering and exiting Room 207 earlier that day.

Appellant left *snap shots and a note for Blair concerning

the incident." (Pet. Appx. [J] 162a); (Appellants Brief [pg.

121, Petitioner's Original [TT 51-53] and Proposed

Heightened Amended Complaint(s) [IJIl 219-63], Witness

Affidavit of Carolyn Tate-Robertson [TT 13-37]).

(20)

Pretext is established when a plaintiff "present[s] concrete

evidence in the form of specific facts" showing that the defendant's

proffered reason was pretextual. Bryant v. Jones, 575 F.3d 1281,

1308 (11th Cir.2009). "[The plaintiff] may succeed in this either directly

by persuading the court that a discriminatory [or retaliatory] reason

more likely motivated the employer or indirectly by showing that the

employer's proffered explanation is unworthy of credence." See, Jackson

v. State of Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir.

2005); See also, Richardson v. New York State Dept. of Correctional

Service, 180 F.3d 426, 444 (2nd Cir. 1999), Summa v. Hofstra Univ., 708

F.3d 115, 127-28 (2d Cir. 2013)("casual connection").

The Eleventh Circuit further states: Fatal to Robertson's claims

is that he did not offer evidence that a similarly-situated manager

(Spyers, Miller, Chrysanthis [white], Flores [Guamanian]) outside his

protected class was also accused of multiple similar infractions but was

not demoted from a managerial position. Kenneth Hamm (white

student), and Carolyn Tate-Robertson (female African-American

employee) were also considered as non-comparators. (Pet. Appx. [A] 13a15a).

However, if this Writ of Certiorari is accepted, and it is

determined by this Honorable Court, that the so-called multiple

infractions were/are made-up. Robertson claims of racial discrimination

and retaliation would not be "fatal," because the multiple infractions

would be shown to have been no more than pretext for discrimination

and delayed retaliation. To establish the causal connection element, the

plaintiff must demonstrate the "the decision maker was aware of the

protected conduct at the time of the adverse employment action;" and,

"the protected activity and the adverse action are not completely

unrelated." See, Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791,

799 (11th Cir. 2000); See also, Meeks v. Computer Associates Inter., 15

F.3d1013, 1021 (111h Cir.1994) (quoting EEOC v. Reichold Chem., Inc.,

988 F.2d at 1571-72 (111h Cir.1993).

(21)

4. Retaliatory Discharge:

The Eleventh Circuit state: "According to Blair and Smith,

Robertson was fired on December 26, 2012, for missing work and failing

to notify Blair, his supervisor,6 about the absences in accordance with

ICT written guidelines. Blair testified that ICT had terminated other

employees for violating the attendance policy."

On December 26, 2012, Robertson was discharged twelve-days

after threatening to file a formal charge with EEOC,7 for not calling his

direct supervisor when absent from duty; despite ICT's demotion of

Robertson to overnight floor technician. Yet, Appellant called each day

absent from duty, had eight (8) hours worked taken from his *pay

check without justification, and have insisted that neither he or

William Spyers had ever called (Blair or Smith) while working as

co/managers, despite ICT's call out policy.

Within *ICT's Employee Handbook (2011-2012), pgs. 19-20, it

states: Performance Appraisal: Employee evaluations will normally

take place as follows: "Upon promotion, demotion and transfer:

Required Evaluation." Within Petitioner's letter dated December 14,

2012, to both Blair and Smith he states: "However, what has occurred is

that my appraisal was overlooked (I believe purposely to accomplish the

task of demoting me)."

The exhibits [Appellees Ex. H. App'x @ 157-1601 submitted by Appellees are

related to ICT facilities outside of the Chamblee, Georgia area; and, are based on either

"no-call/no show—or job abandonment."Appellees provides no evidence of employees

being fired for not calling direct supervisors despite ICT's call-out policy.

In addition, The Eleventh Circuit states: "As for his December 14, 2012, letter to

Blair, in which he threatened to file a racial discrimination charge with the EEOC, the

magistrate judge did not consider this issue, and Robertson did not object to the

magistrate judge's failure to do so." Robertson objected to the magistrate judge's

"Entire" Report and Recommendation (R&R)." Additionally, although *Blair's letter

dated July 10, 2012 referenced Robertson's insubordination (I suggest allowing Mr.

Robertson to be reinstated as a third shift supervisor to oversee the cleaning of the

floors in the evening.); Petitioner was not placed onto the overnight shift but reinstated

back to his managerial position. That letter could possibly demonstrate motive on

Blair's part to retaliate against Robertson several months later with made-up job

deficiencies, and then demote him to the overnight shift floor tech position. (Pet. Appx.

[A] 16a-19a; [J] 170a-77a).

6

(23)

AUTHENTICATION OF DOCUMENTS AND HEARSAY:

By excluding all documentary evidence and

affidavits

presented by Petitioner within this case, the lower courts could easily

make it appear as if the Petitioner was incompetent, and no more than

a liar. No document presented by Petitioner was submitted for the truth

of its contents, they were based on personal knowledge, were presented

to show the routine practices of ICT's maintenance department over

several years, and/or to demonstrate the various communications which

evolved between Petitioner and Respondents which eventually lead to

Robertson's demotion and termination from employment.8

8

"Robertson's wife Carolyn Robertson also alleged another ICT employee, Victor

Ramirez was absent for three days without notifying his supervisor, but ICT never

terminated him. This inadmissible hearsay statement of this alleged fact came from

the **Affidavit of his wife, Carolyn Tate-Robertson, in which she stated: 'On April 8,

2013, I received a sixty *(60) day probationary period from Thomas Blair through my

direct supervisor Lucy Montes for missing too many days, and not calling my direct

supervisor (each day absent); even though at times during those instances I called, Mr.

Ronald Constance, the assistant to my direct supervisor, Ms. Montes. 'Sometime

around October 2014, I had a conversation with Mr. Victor Ramirez, about his being

removed from his office of several years by Elmer Smith and Thomas Blair, of what

Victor said was due to a no-call, no-show of three days and not calling his direct

supervisor or anyone else at the I.C.T. facility informing of his absence. In sustaining

the Defendants' hearsay objection, the District Judge excluded his wife's statement

regarding Ramirez. Further, hearsay or not, the statement did not support disparate

treatment. The statement established ICT terminated Ramirez, i.e., Ramirez was

"remove [d] from his office of several years by Elmer Smith and Thomas Blair" after he

failed to call in." (Appellees Brief 12/15/2017, Page: 40 of 64). Since Ms. Robertson

was/is providing her testimony as to her present sense impression of that conversation

and offering her statement to help controvert for impeachment purposes facts material

to the case (retaliatory demotion and discharge) and not for its truth, her testimony

could possibly fall under one of the Hearsay Exception Rules. Fed R. Evid., Rule 803(6),

and 806. Further, within their Appellees Brief, were the Respondents admitting that

Ramirez was "removed from his office," and if so, why was he removed from that office?

All submitted affidavits were based on personal knowledge; and, as far as witnesses(s),

Robertson submitted names of witnesses just as the Respondents did within "Initial

Disclosures," as well as within Petitioner's Original and Proposed Amended

Complaints. (Pet. Appx. [A] 5a). Petitioner cites: Ms. Robertson as a comparator (60day probation—not calling direct supervisor) based on Jefferies v. Harris County

Community Action Association, 615 F.2d 1025, 1032 (51h Cir. 1980), where the Court

said: "As an African-American woman, Jefferies stood in a class separate and

apart from African-American men and white women." (Pet. Appx. [A] 3a-7a, 10a15a). The same should hold true in opposite for African-American men.

(22)

Without, being provided with the required appraisal after

demotion, ICT left Robertson in a position of not knowing what ICT's

expectations were for him once demoted and transferred to the overnight

shift. Robertson had never called Smith or Blair when absent from duty

as co/manager [manager]; so how would he have known to call Blair or

Smith after demotion? See, e.g. Schroeder v. Greater New Orleans Fed.

Credit Union, 664 F.3d 1016 (5th Cir. 2011) (finding causal connection

where employer followed no policy in demoting or terminating plaintiff,

cutting her pay and receiving her complaints. (Pet. Appx. [J] 175a, [K]

180a-82a).

Further, there had never been a time in three years, while

Robertson managed the maintenance department, when an overnight

floor tech called Blair or Smith when absent from duty. "Indirect

discrimination occurs when a company's policies, procedure or rules

which apply to everyone has the effect that people with a certain

protected characteristic are put at a disadvantage when compared with

those who do not share it." Ernest F. Lidge III, The Courts'Misuse of the

Similarly Situated Concepts in Employment Discrimination Law, 67 Mo.

L. Rev., 831, 863-64 (2002); McDonnell Douglas Corp., v. Green, 411 U.S.

792, 804-05 (1973). (Pet. Appx. [J] 163a, 175a).

Under the subordinate bias, or "cat's paw," theory of liability in

employment discrimination cases, the illegal animus of a supervisor who

was not the decision maker with respect to an adverse employment

action may nevertheless be imputed to the employer. Sims v. M17]1/J, Inc,

704 F.3d 1327, 1336 (111h Cir. 2013).

REASONS FOR GRANTING THE PETITION

Petitioner respectfully request permission from this Honorable

Court, to allow Petitioner's "Statement of the Case" to be incorporated

and included as argument and citations within this "Reasons for

Granting the Petition."

(24)

STANDING TO SUE: Title VI, Title VII, and § 1981

The Eleventh Circuit states: ". . . Robertson did not allege how he

suffered any injury as a result of the disparate treatment of Bryant and

Hamm." Robertson has argued that the actions/non-actions taken

against students by ICT, and working under his directions were

discriminatory; and, his demotion which was based on their alleged

"immoral acts" were discriminatory, because the reasons given for

Appellant's demotion was made-up (pretext) and conspired. Within

Plaintiff/Appellant Original Pleading 11 11 46 and 56, Robertson states:

¶ 46 "Carl Robertson was demoted. . even though the Accounting

Manager Bridgette Chrysanthis a Caucasian adult female was

not demoted, admonished, or fired for this incident which

occurred through the negligence of one of her employees . . . The

Caucasian female who was negligent and left her purse on her

desk unattended . was not fired, but promoted;

Anthony

Bryant was removed from the Casual Labor Program, and

expelled from school . . ." J 56 "Carl Robertson was demoted

At no time did Thomas Blair follow the routine practice of

observing the recording of the recent theft [by Kenneth Hamm]

along with Carl Robertson who he placed in charge of the Remote

Camera System. When compared to what occurred to Anthony

Bryant . . Kenneth Hamm was not removed from the College

Work Study Program. . was not expelled from school.

.

.

.

.

.

.

.

.

.

Both students were similarly situated in all relevant respects and

involved in like circumstances (alleged theft), and the different

treatments amongst them was a clear violation of Title VI, Title VII, and

§ 1981.9 In the case of Linda Holt, v. JTM Industries, Inc., USPCI I nc,

105 F.3d 658 (5th Cir. 1996), the Fifth Circuit said:

Within footnote #1 (pg. 2) of the Eleventh Circuit's Ruling, the court says:

"Robertson did not raise any arguments in his initial brief about the district court's

denial of his § 1981 claims against defendants." (Pet. Appx. [F]). From pages 28-34 of

Petitioner's Appeals Brief he speaks about comparators, ICT's policies, creation of

co/manager positions, and seniority, and on page 34 Petitioner states: "The elements

of a claim of race discrimination under 42 U.S.C. § 1981— [stated first] —are also the

same as a Title VII disparate treatment claim in the employment context." Rice - Lamar

u. City of Fort Lauderdale, Fla., 232 F.3d 836, 843 n. 11 (11th Cir. 2000).

4

(25)

"The plain language of § 623(d) prohibits an employer from

retaliating against an employee because "such individual" has

opposed a practice prohibited by the ADEA or has participated "in

any manner" in a proceeding under the AIIEA. This section

permits third parties to sue under § 623(d) if they have engaged

in the enumerated conduct, even if the conduct was on behalf of

another employee's claim of discrimination. 29 U.S.C. § 623 (d);

See, Jones v. Flagship Intern., 793 F.2d 714, 727 (5th Cir.1986)

(acknowledging that 'employee opposition to discriminatory

employment practices directed against a fellow employee may

constitute' protected activity under the anti-retaliation provision

of Title VII), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d

1001 (1987); See, Mandia v. ARGO Chemical Co., 618 F.Supp.

1248, 1250 (W.D.Pa.1985); E.E.O.C. v. Ohio Edison Co., 7 F.3d

541, 545 (6th Cir. 1993)."

AMENDED COMPLAINT AND 42 U.S.C. § 1985:

On March 10, 2016, Appellant filed a Motion to Amend Complaint

with affidavits and exhibits, by following what he perceived as an

approved of deadline within the Court's Scheduling Order "Upon review

of the Preliminary Report and Discovery Plans [27]130] filed by the

parties, the Court approved the deadlines therein. .;"and, as related

to Petitioner's (JPR): "Plaintiff may file an Amended Complaint. no

later than the start of Discovery." (Pet. Appx. [G], [H] and [I]).

.

.

.

It was the Appellees Initial Disclosure (Question # 1— "If the

defendant is improperly identified

." Defendants states:

"Defendants' proper identity is: Interactive Learning Systems, Inc.

individually and dlb/al Interactive College of Technology.. . Defendants

will accept service of an amended summons and complaint reflecting the

information furnished in this disclosure response."), which placed

Robertson on alert to FRCP Rules 15(c)(1)(C) and 17(a)(1)(3).

.

.

At no time before Robertson filed his motion to Amend Complaint

did the Appellees or the trial court object to Petitioner's statement

within his JPR. Robertson's proposed Amended Complaint restored his

-

(26)

42 U.S.C. § 1985 Conspiracy claim as mandated with a "Heightened

Pleading." See, Czeremcha v. Intern. Assn of Mach. & Aero. Workers, 724

F.2d 1552, 1554-56 (111h Cir. 1984); See also, Supreme Fuels Trading

FZE v. Sargeant, 689 F.3d 1244, 1246 (ilth Cir. 2012) (per curiam).

Robertson's § 1985 claim was never certified (as final under Rule

54(b) by the district court) and its denial was an act of "manifest

injustice;" and, a "clear error of facts and law." Even though Robertson

did not provide "Counts" or a "Heightened Pleading" as required for a

pleading or an § 1985 conspiracy claim within his original complaint; he

did so within his proposed amended complaint.

Within the magistrate judge's (R&R) [August 6, 2015, pg. 51] he

sustained Respondents § 1985 argument by stating: "Defendants argue

that Plaintiff's § 1985 claim must be dismissed

under the

'intracorporate conspiracy doctrine,' a conspiracy requires the

participation of an outside actor because an entity such as a corporation

cannot conspire with itself or agents." (Pet. Appx. [D] and [E]).

.

.

.

Robertson alleged, that by observation of video footage (December

12, 2012), he (and several named others) saw Kenneth Hamm go into

Room 207 without the use of any keys, because the door was left

unsecured by Thomas Blair who entered and exited the room a few hours

earlier. Robertson believed the door was left unsecured by accident. But,

on December 26, 2012, when Respondent(s) fired Petitioner they then

claimed that he had allowed "Hamm" access to unauthorized master

keys.

A Section 1985(3) conspiracy between a corporation and one of its

officers may be maintained if the officer is acting in a personal, as

opposed to official, capacity, or if independent third parties are alleged

to have joined the conspiracy. See Robinson v. Canterbury Village, Inc.,

848 F.2d 424, 431, (3d Cir. 1988); Griffin v. Breckenridge, 403 U.S. 88,

91 S.Ct. 1790, 29 L.Ed.2d 338, (1971). Federal Rule 59(e) "codified the

trial court's inherent power to open and correct, modify, or vacate its

judgments." See, 11 C. Wright et al., Federal Practice and Procedure §

(27)

2810.1, at 124-25 (2d ed. 1995) (describing correction of manifesterror

of law upon which judgment is based as one of four basic grounds upon

which Federal Rule of Civil Procedure 59(e) motion may be granted).

Notwithstanding, a Rule 60(b) motion may also be construed as a

"motion for reconsideration" a motion to reconsider is appropriate where

the court has obviously misapprehended a party's position or the facts

Prudential Securities, Inc. v. LaPlant F.R.D. 678,

or applicable law.

679 (D. Kan. 1993); Maradiaga v. United States, 679 F.3d 1286,

1291 (11th Cir. 2012).

.

.

CONCLUSION:

For these reasons, Petitioner, Hopes and Prays the Court grant

the petition for a writ of certiorari and summarily reverse the decision

of the Court of Appeals.

Respectfully submitted by,

Carl A. Robertson

120 NW 44th Street, Apt N-i

Lawton, Oklahoma 73505

(678) 409-9645

carobertson58@yahoo.com

PRO SE LITIGANT

October 10, 2018

Document re-submitted after required corrections as prescribed by the

Clerk of the Supreme Court of the United States. Date of re-submission:

October 26, 2018.