Petition for Writ of Certiorari — Coneisha L. Sherrod, Petitioner v. United Way Worldwide

No. _________

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------CONEISHA L. SHERROD,

Petitioner,

v.

UNITED WAY WORLDWIDE,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------BRIAN P. SANFORD

THE SANFORD FIRM

1910 Pacific Ave., Suite 15400

Dallas, Texas 75201

(214) 717-6653

bsanford@sanfordfirm.com

Counsel for Petitioner

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

(1) Whether the Civil Rights Act of 1866, 42

U.S.C. § 1981 (“Section 1981”) prohibits a non-contracting party from interfering with person’s contract, specifically, a person’s employment, based on race.

(2) Whether alleging that a party either participated in race discrimination directly or had knowledge

of discrimination, the authority to prevent discrimination, and refused to prevent the discrimination, is sufficient to state a cause of action under Section 1981.

ii

TABLE OF CONTENTS

Page

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

iv

PETITION FOR WRIT OF CERTIORARI ...........

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

STATUTORY PROVISION AND RULES INVOLVED ...........................................................

2

STATEMENT OF THE CASE..............................

3

REASONS FOR GRANTING THE PETITION ....

5

1.

2.

Section 1981 was meant to prevent interference in contracts ...................................

5

Iqbal and Twombly were not meant to bar

pleading relying on indirect evidence .......

8

CONCLUSION..................................................... 13

APPENDIX

Opinion, United States Court of Appeals for the

Fifth Circuit (July 30, 2020) ............................ App. 1

Charge of the Court, United States District

Court for the Northern District of Texas, Fort

Worth Division (February 8, 2019) ................ App. 12

Order of Dismissal with Prejudice, United

States District Court for the Northern District of Texas, Fort Worth Division (July 12,

2018) ............................................................... App. 27

iii

TABLE OF CONTENTS – Continued

Page

Order, United States District Court for the

Northern District of Texas, Fort Worth Division (April 18, 2018) ....................................... App. 29

Plaintiff ’s First Amended Complaint, United

States District Court for the Northern District of Texas, Fort Worth Division ................ App. 42

iv

TABLE OF AUTHORITIES

Page

CASES

Al-Khazraji v. Saint Francis Coll.,

784 F.2d 505 (3d Cir. 1986) ................................... 6, 7

Anderson v. Elec. Data Sys. Corp.,

11 F.3d 1311 (5th Cir. 1994) ....................................11

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ............................................. 8, 11

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ....................................... 8, 11, 13

Burton v. Freescale Semiconductor, Inc.,

798 F.3d 222 (5th Cir. 2015) ....................................12

Cruz v. Mattis,

3:15-CV-0590-D, 2017 WL 6381741

(N.D. Tex. Dec. 14, 2017) .........................................12

Daniels v. Pipefitters’ Ass’n Local Union No. 597,

945 F.2d 906 (7th Cir. 1991) ......................................7

Deets v. Massman Const. Co.,

811 F.3d 978 (7th Cir. 2016) ......................................6

Edwards v. A.H. Cornell & Son, Inc.,

610 F.3d 217 (3d Cir. 2010) .....................................11

George v. Junior Achievement of Cent. Ind., Inc.,

694 F.3d 812 (7th Cir. 2012) ....................................11

Goodman v. Lukens Steel Co.,

482 U.S. 656 (1987) ...................................................6

Griffin v. Pinkerton’s, Inc.,

173 F.3d 661 (8th Cir. 1999) ......................................6

v

TABLE OF AUTHORITIES – Continued

Page

Harris v. Allstate Ins. Co.,

300 F.3d 1183 (10th Cir.2002)...................................6

Hashimoto v. Bank of Haw.,

999 F.2d 408 (9th Cir. 1993) ....................................11

Imagineering, Inc. v. Kiewit Pac. Co.,

976 F.2d 1303 (9th Cir. 1992) ....................................6

Jett v. Dallas Indep. Sch. Dist.,

491 U.S. 701 (1989) ............................................... 5, 6

Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968) ............................................... 5, 6

King v. Marriott Int’l, Inc.,

337 F.3d 421 (4th Cir. 2003) ....................................11

McCoy v. City of Shreveport,

492 F.3d 551 (5th Cir. 2007) ....................................12

McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273, (1976) .................................................11

McIntyre v. Roly’s Trucking, Inc.,

2014 WL 1692782 (N.D. Tex. Apr. 29, 2014) .............7

Miller v. Wachovia Bank, N.A.,

541 F. Supp. 2d 858 (N.D. Tex. 2008) ........................7

Monell v. Dep’t of Soc. Services of City of

New York,

436 U.S. 658 (1978) ...................................................6

Moore v. Grady Mem’l Hosp. Corp.,

834 F.3d 1168 (11th Cir. 2016) ..................................6

Nicolaou v. Horizon Media, Inc.,

402 F.3d 325 (2d Cir. 2005) .....................................11

vi

TABLE OF AUTHORITIES – Continued

Page

Painter’s Mill Grille, LLC v. Brown,

716 F.3d 342 (4th Cir. 2013) ......................................6

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133 (2000) ........................................... 12, 13

Sexton v. Panel Processing, Inc.,

754 F.3d 332 (6th Cir. 2014) ....................................11

Swanson v. Gen. Servs. Admin.,

110 F.3d 1180 (5th Cir. 1997) ..................................12

Swierkiewicz v. Sorema, N.A.,

534 U.S. 506 (2002) ....................................... 8, 11, 13

United States v. Price,

383 U.S. 787 (1966) ...................................................6

Vietnamese Fishermen’s Ass’n v. Knights of

Ku Klux Klan,

518 F. Supp. 993 (S.D. Tex. 1981)..............................8

STATUTES

28 U.S.C. § 1254(1) ........................................................1

42 U.S.C. § 1981 .................................................. passim

RULES

Federal Rules of Civil Procedure 8 and 12 ..................3

Rule 8(a) ........................................................................3

Rule 12(b)(6) ............................................................. 3, 5

1

PETITION FOR WRIT OF CERTIORARI

Coneisha Sherrod petitions this Court for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Fifth Circuit.

---------------------------------♦---------------------------------

OPINIONS BELOW

The opinion of the Fifth Circuit is unreported but

available at 821 Fed. Appx. 311 and reproduced in the

Appendix (“App.”) at 1-9. The underlying district court

decision is unreported but available at 2018 WL

10435225 and reproduced at App. 29-41.

---------------------------------♦---------------------------------

JURISDICTION

The judgment of the court of appeals was entered

on July 30, 2020. This Petition is timely filed under

Supreme Court Rule 13 and this Court’s order dated

March 19, 2020, which extended the deadline for filing

any petition for writ of certiorari due after the date of

the order. The Court has jurisdiction under 28 U.S.C.

§ 1254(1).

---------------------------------♦---------------------------------

2

STATUTORY PROVISION AND

RULES INVOLVED

The relevant statute is Section 1981 which provides:

(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” DE-

FINED

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.

(c)

PROTECTION AGAINST IMPAIRMENT

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under

color of State law.

42 U.S.C. § 1981.

3

The relevant rules are Federal Rules of Civil Procedure 8 and 12.

Rule 8(a)

CLAIM FOR RELIEF. A pleading that states a

claim for relief must contain:

(1) a short and plain statement of the

grounds for the court’s jurisdiction, unless the

court already has jurisdiction and the claim

needs no new jurisdictional support;

(2) a short and plain statement of the

claim showing that the pleader is entitled to

relief; and

(3) a demand for the relief sought,

which may include relief in the alternative or

different types of relief.

FED. R. CIV. P. 8.

Rule 12(b)(6)

Rule 12(b)(6) provides that a party may assert a

defense by motion of “failure to state a claim upon

which relief can be granted.” FED. R. CIV. P. 12(b)(6).

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

United Way Worldwide oversees the operations of

its member organizations, such as United Way of Tarrant County, Texas. Coneisha Sherrod was the Vice

President of Human Resources of United Way of

4

Tarrant County. She alleged retaliation against her by

United Way Worldwide.

United Way Worldwide knew about a previous discrimination claim by an Executive Vice President of

United Way of Tarrant County, and that Ms. Sherrod

reported retaliation for being a witness, opposing discrimination against the Executive Vice President and

herself, and for correcting ERISA violations as a plan

administrator. United Way Worldwide communicated

with Ms. Sherrod multiple times about her claims.

United Way Worldwide member organizations are subject to United Way Worldwide who has the power to

force its member organizations to comply with the law

and has done so in the past. United Way of Tarrant

County terminated Ms. Sherrod within days of her reporting violations to United Way Worldwide.

United Way Worldwide told Ms. Sherrod after her

termination that it was reviewing the matter but then

tells her that it has contacted legal counsel and will

not be taking any further action. Coneisha Sherrod

sued United Way Worldwide and its member organization, United Way of Tarrant County, for retaliating

against her for opposing violations under Section 1981

and the Employee Retirement Income Security Act

(“ERISA”). Ms. Sherrod alleged that United Way

Worldwide retaliated against her in violation of Section 1981 and ERISA by either participating in her termination of employment or refusing to prevent the

discrimination and retaliation.

5

The Trial Court dismissed Ms. Sherrod’s claims

against United Way Worldwide upon a motion under

Rule 12(b)(6). A jury found that United Way of Tarrant

County retaliated against Ms. Sherrod for reporting

and opposing a violation of Section 1981, the ERISA

claim to be tried later to the judge. United Way of Tarrant County then settled with Ms. Sherrod and Ms.

Sherrod appealed the dismissal of United Way Worldwide. The Fifth Circuit Court of Appeals affirmed the

Trial Court.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

The application of Section 1981 and ERISA to prevent interference in employment by non-employers

needs clarification. The Courts of Appeal are not uniform in the application of these statutes.

1. Section 1981 was meant to prevent interference in contracts.

The significance of Section 1981 as American landmark legislation is hard to overstate. Section 1981 is

both a Thirteenth and a Fourteenth Amendment statute. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,

722 (1989) (citations omitted). The Act is “plainly

meant to secure that right against interference from

any source whatever, whether governmental or private.” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 424

(1968).

6

The broad language is not “a mere slip of the legislative pen.” Id. at 427. “We think that history leaves

no doubt that, if we are to give (the law) the scope that

its origins dictate, we must accord it a sweep as broad

as its language.” United States v. Price, 383 U.S. 787,

801 (1966) (construing Section 1982). The Civil Rights

Acts of 1866 and 1871 were each aimed primarily at

the Ku Klux Klan. Monell v. Dep’t of Soc. Services of

City of New York, 436 U.S. 658, 665 n.11 (1978); Jett,

491 U.S. at 722. Preventing interference with equal

rights is foundational to Section 1981.

The Supreme Court previously recognized a Section 1981 claim not only against an employer, but

against the union as a third party participating in the

violation, as well. See Goodman v. Lukens Steel Co., 482

U.S. 656, 668–69 (1987) (superseded on other grounds

by statute).

Most circuits have found Section 1981 to prohibit

third-party interference with contracts based on race.

See Deets v. Massman Const. Co., 811 F.3d 978, 984 (7th

Cir. 2016) (“a third party can be liable under § 1981 for

interfering with the plaintiff ’s relationship with his

employer”); Moore v. Grady Mem’l Hosp. Corp., 834 F.3d

1168, 1173 (11th Cir. 2016); Harris v. Allstate Ins. Co.,

300 F.3d 1183, 1197 (10th Cir.2002); Painter’s Mill

Grille, LLC v. Brown, 716 F.3d 342, 351 (4th Cir. 2013);

Imagineering, Inc. v. Kiewit Pac. Co., 976 F.2d 1303,

1313 (9th Cir. 1992) abrogated on other grounds recognized Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d

1038, 1055 (9th Cir. 2008); Griffin v. Pinkerton’s, Inc.,

173 F.3d 661, 664 (8th Cir. 1999); Al-Khazraji v. Saint

7

Francis Coll., 784 F.2d 505, 518 (3d Cir. 1986), aff ’d,

481 U.S. 604, 107 S. Ct. 2022, 95 L. Ed. 2d 582 (1987).

The issue is whether a third party must have managerial control over the plaintiff to be liable or can a

non-related party be liable for interference. See McIntyre v. Roly’s Trucking, Inc., No. 4:14-cv-193, 2014 WL

1692782, at *2 (N.D. Tex. Apr. 29, 2014) (“[T]he court

has found no Fifth Circuit case expanding race discrimination and retaliation claims under § 1981 in the

employment context to third parties who are not in

some form of employment relationship with the plaintiff as employer, coworker, or supervisor.”). See also

Miller v. Wachovia Bank, N.A., 541 F. Supp. 2d 858, 863

(N.D. Tex. 2008) (for 1981 liability to attach, the nonemployer defendant must have had control or managerial authority over the plaintiff, restricting the reach of

§ 1981 non-employer liability). The claim should be

based on substantial influence not managerial control.

See Daniels v. Pipefitters’ Ass’n Local Union No. 597,

945 F.2d 906, 1914 (7th Cir. 1991) (action against a union who had substantial influence on employment contracts).

Section 1981’s language itself is not restricted to

prohibitions against those in privity of contract. The

act affirmatively gives persons the right to enter into

and enforce contracts in the same manner as white citizens. Restricting Section 1981 beyond its plain language to allow those not in privity with a contract to

prevent the contract is not within the purpose of the

statute. For example, the Ku Klux Klan should be prohibited under Section 1981 from interfering with other

8

persons’ contracts on the basis of race. See Vietnamese

Fishermen’s Ass’n v. Knights of Ku Klux Klan, 518

F. Supp. 993, 1012 (S.D. Tex. 1981) (enjoining the KKK

from interfering with contractual rights). A fair reading and interpretation of Section 1981 would protect

employees from third parties who interfere with employment contracts on the basis of race, regardless of

managerial authority.

2. Iqbal and Twombly were not meant to bar

pleading relying on indirect evidence.

Clarification is needed between the standard in

Swierkiewicz, which does not require particularity beyond the elements of the claim and Iqbal and Twombly

which require pleading a plausible case.

Ms. Sherrod alleged that:

United Way Worldwide monitors and

oversees the operations of member organizations, including United Way of Tarrant

County.

United Way’s brand is interdependent

and connected with United Way Worldwide

and its member organizations across the

country.

United Way donors do not generally differentiate between United Way Worldwide

and its member United Way organizations.

A president of a United Way organization

stated that if a member organization violates

the law, it is “going to hurt everyone if it isn’t

9

brought under control – and quickly . . . The

United Way is the United Way is the United

Way.”

United Way Worldwide can remove the

head of the organization, remove the membership of the organization, and terminate the license of the brand.

United Way Worldwide communicates

regularly with its member organizations.

United Way Worldwide knew about the

discrimination claim of an Executive Vice

President of United Way of Tarrant County,

who also expressed concerns about discrimination against Ms. Sherrod by United Way of

Tarrant County, as African-Americans.

United Way Worldwide received a report

from Ms. Sherrod that she is being retaliated

against for reporting and correcting ERISA

violations, for opposing race discrimination,

for being a witness to race discrimination, and

because of her own race.

United Way Worldwide tells Sherrod that

it needs to think how to best handle the situation and will get back with her.

United Way Worldwide hears more details from Sherrod during few days.

United Way of Tarrant County terminates Ms. Sherrod about a week later.

United Way of Tarrant County sends Ms.

Sherrod a severance agreement conditioned

upon releasing United Way Worldwide, not

10

just United Way of Tarrant County, from any

discrimination or retaliation claims.

United Way Worldwide hears Ms. Sherrod’s story again a few months later, says it is

shocked, that it needs to investigate further,

and will get back with her.

United Way Worldwide tells Ms. Sherrod

the next day that the discrimination and retaliation was wrong, that it is continuing its

investigation, and will speak to its legal counsel.

United Way Worldwide tells Ms. Sherrod

a few days later that it contacted legal counsel

and now will not be taking any action to help

her, that she should sign the severance agreement releasing any claims it.

United Way Worldwide either participated in the termination of Sherrod, intentionally interfering with her employment at

United Way of Tarrant County and knowingly

participated in the discrimination and retaliation; or knew, or should have known, of

United Way of Tarrant County’s discrimination and retaliation and intentionally refused

to prevent the discrimination and retaliation.1

1

The Fifth Circuit did not prohibit the ERISA retaliation

claim based on an unsolicited report but recognized a circuit split

on the matter in its footnote: “We recognize that the circuits are

split over what constitutes statutorily protected activity within

the meaning of Section 510. Currently, the Fifth, Seventh, and

Ninth Circuits consider unsolicited, informal complaints to be

protected activity, and the Second, Third, Fourth and Sixth

11

Previous to Iqbal and Twombly, this Court has

never indicated that the requirements for establishing

a prima facie case rejected the argument that a discrimination complaint requires greater “particularity,”

because this would “too narrowly constric[t] the role of

the pleadings.” Swierkiewicz v. Sorema, N.A., 534 U.S.

506, 511 (2002) (citing McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273, 283 n.11 (1976)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A

plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

face.’ ” Id. (quoting Twombly, 550 U.S. at 555). While

factual allegations are accepted as true, legal conclusions are not. Id. at 679. The standard applied in Iqbal

and Twombly does not run counter to the standard in

Swierkiewicz that direct evidence is not required and

the prima facie case is not rigid. Twombly, at 570.

Ms. Sherrod has alleged the elements of a prima

facie case accepted by some courts: 1) a protected

Circuits have reached contrary conclusions. Compare Anderson v.

Elec. Data Sys. Corp., 11 F.3d 1311, 1314 (5th Cir. 1994), George

v. Junior Achievement of Cent. Ind., Inc., 694 F.3d 812, 816–17

(7th Cir. 2012), and Hashimoto v. Bank of Haw., 999 F.2d 408,

411 (9th Cir. 1993), with Nicolaou v. Horizon Media, Inc., 402

F.3d 325, 329 (2d Cir. 2005), Edwards v. A.H. Cornell & Son, Inc.,

610 F.3d 217 (3d Cir. 2010), King v. Marriott Int’l, Inc., 337 F.3d

421, 426–28 (4th Cir. 2003), and Sexton v. Panel Processing, Inc.,

754 F.3d 332–42 (6th Cir. 2014). Admittedly, however, Anderson

does not provide analysis on the topic and is not very clear.”

12

activity; 2) an adverse action; and 3) a short proximity

in time between the protected activity and the adverse

action. See Swanson v. Gen. Servs. Admin., 110 F.3d

1180, 1188 (5th Cir. 1997); see also Cruz v. Mattis, 3:15CV-0590-D, 2017 WL 6381741, at *8 (N.D. Tex. Dec. 14,

2017) (citing McCoy v. City of Shreveport, 492 F.3d 551,

562 (5th Cir. 2007).

Ms. Sherrod alleges all three. She reported discrimination and retaliation, United Way Worldwide

treated her adversely by either participating in the termination or refusing to prevent the termination, and

the timing was short. Ms. Sherrod alleges actual participation by United Way Worldwide, or alternatively

that it failed to take corrective measures within its

control. Courts have recognized the duty to take action

in the joint-employer relationship. Ms. Sherrod should

be allowed to proceed under at least the participation

allegation which should not be lessened by the alternative allegation. See Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 229 (5th Cir. 2015) (staffing

agency is liable for the conduct of its client if it participates in the discrimination, or if it knows or should

have known of the client’s discrimination but fails to

take corrective measures within its control.). The same

standard should apply to a parent company who controls the lesser organization.

The Fifth Circuit raises the bar and finds that Ms.

Sherrod’s allegations do not show that United Way

Worldwide’s actions are based upon discriminatory intent. The prima facie case is designed to infer intent.

See Reeves v. Sanderson Plumbing Products, Inc., 530

13

U.S. 133, 146 (2000). Requiring direct evidence of intent would create the “incongruous” result of requiring

a plaintiff “to plead more facts than [s]he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered.” Id. at

511-12. Furthermore, before discovery, “it may be difficult to define the precise formulation of the required

prima facie case in a particular case.” Id. at 512; see

also Twombly, 550 U.S. at 569–70 (explaining that

Swierkiewicz is consistent with Twombly’s facial plausibility standard). Ms. Sherrod’s allegations state a

sufficient cause of action under Section 1981.

---------------------------------♦---------------------------------

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

BRIAN P. SANFORD

THE SANFORD FIRM

1910 Pacific Ave., Suite 15400

Dallas, Texas 75201

(214) 717-6653

(214) 919-0113 Fax

Attorney for Petitioner

Coneisha Sherrod