Petition for Writ of Certiorari — Timothy C. Yoakum, Petitioner v. Sabre GLBL Incorporated

Supreme Court briefDec 23, 2019

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No.

11-1101

3fn Wqz

Supreme Court of tfje ®ntteb States?

TIMOTHY C. YOAKUM

Petitioner

SABRE GLBL INCORPORATED,

Respondent

On Petition For Writ Of Certiorari To The

United States Court Of Appeal For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

TIMOTHY C. YOAKUM, pro se

1305 Glenfield Avenue

Dallas, TX 75224

Phone 214-233-6271

received

DEC 3 0 WW

QUESTIONS FOR REVIEW

Does the issuance of an undeserved Performance Improvement Plan (PIP) and

undeserved employee performance review become actionable under Title VII

as an adverse employment action if they negatively affect the employee’s

compensation arid employment?

Whether the appellate court decision to affirm, the district court opinion and

final judgment granting the defendants motion for summary judgment as a

matter of law, infringed on the rights afforded to us in Amendment VII?

PARTIES TO THE PROCEEDINGS

Petitioner Timothy C. Yoakum is the Plaintiff and Appellant below.

Respondent Sabre GLBL, Incorporated is the Defendant and Appellee below

•i

Ill

TABLE OF CONTENTS

QUESTIONS FOR REVIEW

PARTIES TO THE PROCEEDINGS

TABLE OF AUTHORITY

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THis PETITION

The underserved performance improvement plan

The undeserved employee performance review

The rulings and Amendment VII

CONCLUSION

Appendix A

Appendix B

Appendix C

r----

TABLE OF AUTHORITY

Cases

. Harvill v. Westward Communications.L.L. C., 433 F.3d 428, 434 (5th Cir. 2005). 15

929 F.2d 1054, 1058 (5th Cir. 1991)

Allbritain v. Texas Dep't of Ins., No. A-12-CA-431-SS, 2014 WL 272223, at *4 (W.D.

Tex. Jan. 23, 2014

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255 (1986)

Arey v. Watkins, 385 F. App'x 401, 404 (5th Cir. 2010

Bobo v. ITT, Continental Baking Co., 662 F.2d 340, 342-45 (5th Cir. 1981};

Brooks v. City of San Mateo, 229 F. 3d 917 - Court of Appeals, 9th Circuit 2000.” . 11

Brown v. Kinney Shoe

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986)

Cooper v. Texas Wesleyan Univ., No. 05-09-00347-CV, 1999 WL 1179613, at *3-4

(Tex. App.-Dallas Dec. 15, 1999, pet. denied}

E.E.O.C. v. Boh Bros. Constr.Co., L.L.C., 731 F.3d 444 (5th Cir. 2013

E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393 (5th Cir. 2007

Eure v. Sage Corp., 61 F. Supp. 3d 651, 660 (W.D. Tex. 2014}

Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)

Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002

Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012)).

Great S. R.R. v. Louisville & Nashville R.R., 224 F.2d 1, 5 (5th Cir. 1955)

Green v. Brennan, 136 s. Ct. 1769, 1776 (2016); Faruki v. Parsons S.I.P., Inc., 123

F.3d 315, 319 (5th Cir. 1997)

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993

Jones v. Borden Co., 430 F.2d 568,574 (5th Cir. 1970)

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587, 597 (1986)

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007

Mississippi Prot. & Advocacy Sys., Inc. v. Cotten, the Fifth Circuit

Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001 .. 13

Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002

S •. Ins. Co. v. Affiliated FM Ins. Co., 830 FJd 337,343 (5th Cir. 2016)

Shackelford v. Deloitte & Touche, L.L.P., 190 F.3d 398, 403-04 n.2 (5th Cir. 1999) 12

Stewart v. Miss. Transp. Comm n, 586 F.3d 321,328 (5th Cir. 2009)

Thomas v. Napolitano, No. 3:10-CV-265-B, 2013 WL 12250942, at *18 {N.D. Tex.

Jan. 15, 2013

Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014

Tucker v. Collier, 906 FJd 295, 302 (5th Cir. 2018)

Turner v. Novartis Pharmaceuticals Corp., 442 F. (5th Cir. 2011)

Turner v. Novartis Pharms. Corp., 442 F. App'x 139, 141 (5th Cir. 2011)......

Urrutia v. Valero Energy Corp. 1 841 F.2d 123, 125 (5th Cir. 1988

....13

Statutes

28 USC § 1254(1).

42 U.S.C. § 1981

42 U.S.C. §§ 2000e to 2000e-17

Rules

Fed. R. Civ. P. 56(a

Fed. R. Civ. P. 56(c)

Rule 56(a) of the Federal Rules of Civil Procedure

Other Authority

Summary Judgment Under Federal Rules, 99 F.R.D. 465, 472 (N.D. Cal. 2008)

OPINIONS BELOW

There was no opinion provided by the Court of Appeals. The order affirmed per

curiam and is included as Appendix A Motion for leave to file out of time for

rehearing was GRANTED and motion to petition for rehearing was DENIED

included as Appendix B. The district court opinion, order and final judgement

is included as Appendix C.

JURISDICTION

The Fifth Circuit issued its order per curiam August 22, 2019. Then denied the

Petition for Rehearing on September 24, 2019. The Court has jurisdiction

under 28 USC § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Amendment VII states “In Suits at common law, where the value in

controversy shall exceed twenty dollars, the right of trial by jury shall be

preserved, and no fact tried by a jury, shall be otherwise reexamined in any

Court of the United States, than according to the rules of the common law.”

STATEMENT OF THE CASE

The -Plaintiff Appellant Timothy C. Yoakum ("Yoakum" or "Plaintiff’)

filed charges of discrimination with the Equal Employment Opportunity

Commission October 23, 2017 which was 252 days beyond the last date

a violation of discrimination took place February 13, 2017. However, the

harassment and hostile work environment started in March 2016 and

continued through February 13, 2017. Administrative remedies were

exhausted with the EEOC and plaintiff received a Right to Sue Letter.

Plaintiff established a relationship with McBeth Law Office, Hiram

McBeth III, Esquire. Plaintiff filed charges against the defendant Sabre

GLBL Incorporated ("Sabre" or "Defendant") in the United States

District Court, Northern District of Texas, Dallas Division on February

2018 and by order of the court the case transferred on

Februaryl4,2018 to Forth Worth Division in Tarrant County

Yoakum’s leadership and comparable. Mr. Chris Wilding (“Wilding”)

Senior Vice President, Air Commerce (Tibor’s Supervisor) Mr. Chad

Tibor (“Tibor”) Vice President, Air Commerce — (Yoakum’s Supervisor)

Ms. Rowena Capili (“Capili”) Principle, Account Manager Air Commerce

-(Comparable)

Sabre filed a motion for Summary Judgement pursuant to Rule 56

Federal Rules of Civil Procedure on November 16, 2018.

Plaintiff filed a motion and brief in opposition of defendant’s motion for

summary judgment on December 6, 2018. Defendant filed a reply in

support of its motion for summary judgement on December 18, 2018.

“Citing Turner v. Novartis Pharmaceuticals Corp., 442 F. (5th Cir.

2011), the Defendant suggests that Tibor's reviews and his decision to

issue Yoakum a PIP cannot serve as adverse employment actions.”

“ In Turner, the court did not hold such decisions can never serve

as adverse employment actions; rather, thecourt explained that the PIP

could not serve this purpose where "[tjhere [was] no evidence that

Turner was demoted or received reduced compensation due to the PIP."”

“(Defendant ties decreased bonus to negative review) (PIP telegraphs

impending demotion with change of job title and responsibilities).

Yoakum further explained in his deposition that the PIP he received was

effectively a termination letter.”

“In March 2016, Yoakum received the 2015 bonus, which was part

of his compensation through Sabre's Variable Compensation Plan

("VCP"). (V CP is one of the plans under which bonuses were paid). Upon

receipt, Yoakum noticed that his 2015 payment was lower than that

received in the previous two years. (Yoakum received a 2015 payment

of$l,728 compared to a 2014 payment of $6,150 and a 2013 payment of

$6,648). When Yoakum asked his supervisor, Tibor, about this drop in

pay, Tibor refused to look Yoakum in the eye while telling him that

bonuses were lower that year because "the company did not make its

goals.

“The Defendant's only response in opposition to the application of

the continuing violation doctrine appears to be that "Plaintiff

conspicuously failed to check 'continuing action’ on his charge." Such

reliance on form over substance, however, is not one of the limitations

on the doctrine recognized by the courts. See, e.g., Stewart v. Miss.

Transp. Comm n, 586 F.3d 321,328 (5th Cir. 2009) (continuing violation

doctrine is limited in three ways: (1) plaintiff must demonstrate that

separate acts are related or else there is no single violation that

encompasses earlier acts, (2) violation must be continuing and

intervening action by employer, among other things, that will sever acts

that preceded it from those subsequent to it, precluding liability for

preceding acts outside filing window, and (3) continuing violation

doctrine is tempered by court's equitable powers, which must be

exercised to honor Title VII's remedial purpose without negating

particular purpose of charge-filing requirement).”

” The connection in the case at bar is evident from the beneficiary

at the end of all of Yoakum's mistreatment-his female coworker,

Capili. The rules that were imposed on Yoakum were not applied to

Capili, compare R. App. 12:16-24, with id. at 13:1-3. The compensation

through bonuses and stock options that Yoakum was denied inevitably

ended up being funneled to Capili. This was the case despite the fact

that Capili was responsible for the very problems that were being

attributed to the Plaintiff. See, e.g., R. App. 8:3-10:6. Tibor's preferential

treatment of Capili even provided her with access to, meetings where

Yoakum's demotion and reassignment was planned. Id. at 6:19-7:”

District Court filed an opinion, order and final judgment granting the motion

for summary judgment and dismissed all Yoakum’s claims on December 19,

2018.

“For example, placing an employee on a performance improvement plan

is not an adverse employment.” “Plaintiffs receipt of a smaller bonus than in

prior years was not connected to his PIP; nor was his failure to receive stock

options. Those events were tied to his 2015 performance review, which took

place a year before the PIP. “Further, plaintiff has nothing but his own

speculation to support the contention that the PIP invariably would have

resulted in his termination. Plaintiff resigned instead of making any effort

whatsoever to improve his performance or even address what he considered to

be unjust requirements.” “In fact, the court is satisfied that this claim is

frivolous. Plaintiff does not point to any evidence that even establishes the

nature of the hostility he claims existed. There is no evidence that race played

any role. His claim of sexual discrimination appears to be based solely on his

speculation that Capili was conspiring with Tibor to harm plaintiff. See, e.g.,

Doc. 24 at R. App. 6-7, 24 (assuming "[s]he was sabotaging my work" refers to

Capili), 25- 26, 27. And, there is no evidence of the existence of a hostile work

environment of the type that would support a claim at all.”

Yoakum filed a timely Notice to Appeal pro se with the District Court on

January 18, 2019.

Yoakum filed a motion to file out of time on the Principle Brief it was

GRANTED on May 29, 2019 and the Principle Brief was filed May 29, 2019.

The statement of issues presented for review on appeal were the

following. “(1) Whether the plaintiff is similarly situated to his comparator?

(2) Whether the continuing violations doctrine will be invoked for the hostile

work environment and constructive discharge violations beyond the 300-day

limitation period? (3) Whether the plaintiff established a prima facia case of

discrimination? (4) Whether the Performance Improvement Plan (‘PIP’) is

pretextual for discrimination and a tangible adverse job action? (5) Whether

the discrimination forced a constructive discharge?”

Sabre GLBL filed an Appellee brief on June 28, 2019.

10.

Yoakum filed a reply brief on July 19, 2019

Court of Appeals filed summary calendar PER CURIAM AFFIRMED see rule

47.6 on August 22, 2019

As the appellate court delivered no opinion there is no specificity in their

affirmation of the district court. “Rule 47.6 Affirmance Without Opinion. The

judgment or order may be affirmed or enforced without opinion when the court

determines that an opinion would have no precedential value and that any one

or more of the following circumstances exists and is dispositive of a matter .

submitted for decision: (1) that a judgment of the district court is based on

findings of fact that are not clearly erroneous; (2) that the evidence in support

of a jury verdict is not insufficient; (3) that the order of an administrative

agency is supported by substantial evidence on the record as a whole; (4) in the

case of a summary judgment, that no genuine issue of material fact has been

properly raised by the appellant; and (5) no reversible error of law appears. In

such.case, the.court mav,_in_its discretion, enter either of the following orders:

"AFFIRMED. See 5TH CIR. R. 47.6." or "ENFORCED.”

11.

Yoakum filed a motion for leave to file petition for rehearing out of time which

was GRANTED on September 24, 2019. Yoakum filed a petition for rehearing

DENIED September 24, 2019.

REASONS FOR GRANTING THIS PETITION

The underserved performance improvement plan

In the District Court, Yoakum was a represented plaintiff and his attorney

argued and shared the case law from the fifth and ninth circuits who recognize

that with evidence an

undeserved negative

employee review and a

performance improvement plan that demote or reduce compensation are

considered an adverse employment action. The district court and appellate

court believed the defendants proffered reason for placing Yoakum on the PIP

“ after receiving multiple customer complaints against Yoakum in 2016, Tibor

placed Yoakum on a PIP” as noted in the district court’s opinion further noted

“Internal complaints had been lodged, as well as customer complaints” This is

testimonial evidence brought forward from the defendant in the declaration of

Mr. Chad Tibor. However, there is no physical evidence brought forward by the

defendant of internal or customer complaints lodged against Mr. Yoakum. No

physical evidence from the defendant to prove their nondiscriminatory reason

is their true motivation for placing Mr. Yoakum on PIP. The undisputed facts

state in 2015 — 2016 Yoakum’s title was Principal Named Accounts and his pay

consisted of salary and bonus. Under item 2 of the underserved PIP Yoakum

had been demoted to Principal Account Manager and reprimanded for a delay

to a project that took place when he was a Principle Named Accounts in

October 2016. Yoakum was not a Principal Account Manager in October 2016

on this project, although he was on the project, his co-worker and comparator

Ms. Capili was the Principal Account Manager on this project.

In the

defendant’s testimony as a reason for the demotion Mr. Tibor states it was a

“reorganization that never occurred” this is referring to a meeting Mr. Tibor

scheduled in November 2016 when he informed Mr. Yoakum of the demotion.

However, that was 1 month after the delayed projected had completed in

October 2016. After the November 2016 meeting, there was no more discussion

about the demotion until the issuance of the underserved PIP in February

2017V This is when Mr. Wilding and Mr. Tibor documented the demotion by

identifying Yoakum as the Principal Account Manager to reprimand him, even

though Capili was the Principle Account Manager on the project, she was not

reprimanded. In Yoakum’s sworn testimony he states Mr. Tibor and Ms. Capili

were conspiring against him. Mr. Tibor shared with Ms. Capili in her 2015

performance review that job changes in 2016 would inevitably occur and they

were keeping a close eye on opportunities for Ms. Capili. Mr. Tibor required

her to be included on all Mr. Yoakum’s customer calls and meetings. Mr. Tibor

was keeping a close eye out for Ms. Capili and Ms. Capili was motivated to

keep her job and she sabotaged Mr. Yoakum’s work

In 2016 Mr, Yoakum was subject to reduced compensation and demotion

through issuance of an undeserved performance improvement plan and

employee

performance

review.

The

underserved

PIP

where

the

discrimination culminated and although the employee performance review is

outside of the limitation period it is a continuation of discrimination that

connects to the underserved PIP and their reasons of motivation are disputed.

The 4 elements of a prima facie case have been met 1) The plaintiff is a member

of a protected group. 2) The plaintiff was qualified for the position he was

performing 3) The plaintiff satisfying the normal requirements of the position.

4) The plaintiff singled out for discipline and discharge while a similarly

situated employee was not comparably disciplined and retained.

“When there is a conflict in the underlying evidence material to the

determination of the ultimate fact, there is of course a triable question

for the jury.”

[I]t is assumed that twelve men know more of the

common affairs of life than does one man, that they can draw wiser and

safer conclusions from admitted facts thus occurring than can a single

judge.Summary Judgment Under Federal Rules, 99 F.R.D. 465, 472

(N.D. Cal. 2008)

Mr. Wilding and Mr. Tibor provided 30 days in the PIP for Yoakum to improve

but success would never be attainable or allowed. The PIP was Yoakum’s

notice of termination an after a year of harassment in 2016, from Mr. Wilding

questioning his manhood, Mr. Tibor’s underserved comments, yelling and

criticism and the conspiracy between Mr. Tibor and Ms. Capili made for a

hostile workplace feeling isolated it was incredibly unbearable. Yoakum had

no other option their actions forced him to resign.

The undeserved employee performance review

Its Yoakum’s sworn testimony, that the overall performance evaluation

rating given to Yoakum for his 2015 performance is clearly misaligned with

the goals he achieved in that same year. Further to his sworn testimony there

is no documentation provided in the evaluation that would substantiate the

comments made by Mr. Tibor about Mr. Yoakum. “Among [the] employment

decisions that can constitute an adverse employment action are termination,

dissemination of a negative employment reference, issuance of an undeserved

negative performance review and refusal to consider for promotion. Brooks v.

City of San Mateo, 229 F. 3d 917 - Court of Appeals, 9th Circuit 2000.”

Yoakum’s sworn testimony states that he never has had a customer or

internal complaint raised against him and this was Yoakum’s first and only

negative performance review in his career working for the defendant

It is also Yoakum’s testimony that his supervisor Mr. Chad Tibor and his

colleague who is an Asian female in a similarly situated role, Ms. Rowena

Capili met bi-weekly and Ms. Capili shared with Mr. Tibor inaccurate

information about Mr. Yoakum, which amounted to nothing more than gossip

and innuendo -meant to sabotage Mr. Yoakum’s work. Mr. Tibor used this

information against Mr. Yoakum in his 2015 performance evaluation as Mr.

Tibor notes “he had received internal feedback.” Further, evidence of their

conspiring, Mr. Tibor informed Ms. Capili in her 2015 performance evaluation

of forward looking information about job changes in 2016 about keeping his

eyes open for opportunities and about job changes which would enviably occur,

yet Mr. Tibor did not shared the same information with Yoakum in his 2015

evaluation. Further, in Yoakum’s sworn testimony, he found out from a co

worker, that Ms. Capili told this co-worker, but only after he had retired, that

she had a voice in the decision of Yoakum’s demotion.

Even though Mr. Yoakum voiced his disagreement with his 2015 performance

review it was met with Mr. Tibor’s accepting no changes and offering no

documentation to substantiate his comments about Mr. Yoakum. Mr. Tibor

controlled Mr. Yoakum’s overall performance score because the defendant

weights the company values section at fifty percent of the total score. This gave

Mr. Tibor the opportunity of using this subjective values section to manipulate

the review and to achieve a’ partially successful’ overall score for Mr. Yoakum.

While Yoakum never agreed with his 2015 overall evaluation score it was

electronically signed and submitted without Yoakum’s knowledge or approval

a month after it was issued.

The underserved negative performance review

also became the defendants second proffered reason for negatively affecting

Mr. Yoakum’s compensation in the form of a significantly reduced,

disproportioned annual bonus and for not awarding him with stock options in

March 2016. As Mr. Tibor testified, if Mr. Yoakum had a better than “partially

successful.” overall performance score, his bonus would have been larger, and

he would have received stock option awards. However, Ms. Capili had an

exceptional overall performance, Mr. Tibor also relying on the values section

to reach her overall performance score. This action by Mr. Tibor and Mr.

Wilding gave Mr. Yoakum the feeling of intentional harassment discrimination

and with using gossip obtained from the comparator to negatively evaluate

Yoakum and adversely affect his compensation. This was exceptionally

egregious because Ms. Capili received a larger bonus and stock options for

sabotaging Mr. Yoakum’s work. When Mr. Wilding and Mr. Tibor imposed this

action on Mr. Yoakum it created the hostile work environment. Due to the

conspiring between Mr,. Tibor and Ms. Capili made the entire work

environment of deception and distrust made it difficult to get work done until

Yoakum was forced to resign in February 2017.

The rulings and Amendment VII

“When ruling on a motion for summary judgment, "[t]he evidence of the

non-movant is to be believed, and all justifiable inferences are to be drawn in

his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255 (1986); see also

Tucker v. Collier, 906 FJd 295, 302 (5th Cir. 2018) ("[T]he court views all facts

and evidence in the light most favorable to the nonmoving party."). The trial

court must also refrain from either making credibility determinations or

weighing the evidence. S \ Ins. Co. v. Affiliated FM Ins. Co., 830 FJd 337,343

(5th Cir. 2016) (citing Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012)).

Summary judgment may be rejected "in cases .'where motive, intent, subjective

feelings and reactions, consciousness and conscience (are) to be searched, and

examination and cross-examination (are) necessary instruments in obtaining

the truth.'" Jones v. Borden Co., 430 F.2d 568,574 (5th Cir. 1970) (quoting Ala.

Great S. R.R. v. Louisville & Nashville R.R., 224 F.2d 1, 5 (5th Cir. 1955)).

In the district court opinion, Yoakum’s claims of harassment were recognized

as frivolous and Yoakum’s certified and sworn testimony was viewed as

speculation. In the declaration of Mr. Chad Tibor, the defendant’s statements

attack Yoakum’s character and if these statements were taken as truth it

would call Mr. Yoakum’s credibility into question. These statements are

recognized in the undisputed facts of the district court’s opinion “he was

regularly late to calls and meetings”

internal complaints had been lodged,

as well as customer complaints.” “significant improvement was needed” these

statements require examination and cross examination because they are

historical facts in dispute and are material to the ultimate fact, which is not

a question of law, but they questions that need to be determined by a jury.

Even though the defendant does not have to prove the articulated proffered

reasons were not discrimination, the law does require the party bring forward

sufficient admissible evidence to support a particular proposition of fact to

satisfy the burden of production.

When James Madison drafted Amendment VII and included it into the Bill

of Rights which was added to our United States Constitution on September

5, 1789 and was voted for by 9 out of 12 states on December 15, 1791. This

shows the Framers had remarkable foresight, they understood the

importance of protecting our civil liberties and maintaining a fair court

system. These reasons are why Amendment VII is a fundamental law of this

country and why it remains just as important in the year 2019.

CONCLUSION

This petition for a Writ Of Certiorari should be

granted.

Respectfully submitted,

Timothy C. Yoakum, pro se

APPENDIX A

In The United States Court Of Appeals For The

Fifth Circuit

No. 19-10067

Summary Calendar D.C. Docket No. 4:18-CV-127

TIMOTHY C. YOAKUM,

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

FILED

Plaintiff - Appellant

AUGUST

22,2019

LYLE W. CAYCE CLERK

SABRE GLBL INCORPORATED,

Defendant - Appellee

Appeal from the United States District Court for the

Northern District of Texas

JUDGMENT

This Before WIENER, HAYNES, and COSTA, Circuit

Judges.

Cause was considered on the record on appeal and the

briefs oil file. It is ordered and adjudged that the judgment

of the District Court is affirmed. See Rule 47.6.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.