Petition for Writ of Certiorari — Gilbert Edwin, Petitioner v. Clean Harbors Environmental Services Inc.
Supreme Court briefSep 11, 2023
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23-5603
Docket No. 233fn tJje
QSntteb States Supreme Court
FILED
SEP 1 1 2023
OFFICE OF THE CLERK
SUPREME COURT It St
Gilbert Edwin,
Petitioner,
v.
Clean Harbors Environmental Services Incorporated,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Gilbert Edwin
Appellant Pro Se
2205 N. Lake Michele Circle
Lake Charles, LA 70607
Direct: 337-522-9858
Email: gilbertedwin 140@gmail.com
QUESTIONS PRESENTED
This appeal presents this Court with an opportunity to resolve an conflict in the Circuits
concerning the construction of Fed.R.Civ.P. 54(b), namely whether the law of the case doctrine
precludes a successor judge’s reconsideration of prior interlocutory orders absent some altered
circumstance making the basis of that decision inapplicable, and whether, as held by the Seventh
Circuit in contrast to other Circuits, it is an abuse of discretion for a district judge to grant a motion
for a Rule 54(b) order when the motion is filed more than thirty days after the entry of the
adjudication to which it relates.
The case also presents the issue of whether there questions of fact as to whether the
Respondent discriminated against Petitioner because of his race, fostered a hostile work
environment, retaliated against him both for his reporting of the racial harassment and also for taking
workers’ compensation.
LIST OF PARTIES
All parties appear in the caption of the case on the cover page.
RELATED CASES
There are no related cases.
i
TABLE OF CONTENTS
QUESTIONS PRESENTED
i
LIST OF PARTIES
i
RELATED CASES
1
TABLE OF CONTENTS
u
TABLE OF AUTHORITIES
in
PETITION FOR WRIT OF CERTIORARI
1
OPINIONS BELOW
1
JURISDICTION
1
STATUTORY AND RULES INVOLVED
1
STATEMENT OF THE CASE
1
REASONS FOR GRANTING THE WRIT
6
I. THE COURT SHOULD RESOLVE TFIE CIRCUIT SPLIT CONCERNING THE
APPLICATION OF LAW OF THE CASE TO RECONSIDERATION
APPLICATIONS AS WELL AS WHETHER SUCH MOTIONS ARE SUBJECT TO
A 30 DAY TIME LIMITATIONS
6
II. THE FIFTH CIRCUIT DECISION CONFLICTS WITH SECOND CIRCUIT
PRECEDENT
8
IE. THE FIFTH CIRCUIT’S DECISION ON THE DISPARATE TREATMENT CLAIM
CONFLICTS WITH OTHER CIRCUITS
12
IV. THE HOSTILE WORK ENVIRONMENT CLAIM SURVIVES SUMMARY
JUDGMENT
14
CONCLUSION
19
Appendix A
Decision of the Court of Appeals
Appendix B.. Decision of District Court on Reconsideration of Reconsideration of 54(b) Motion
Appendix C
Decision of District Court on Reconsideration of 54(b) Motion
Appendix D
Original Decision of District Court
li
TABLE OF AUTHORITIES
FEDERAL CASES
AMTRAK v. Morgan, 536 U.S. 101 (2002)
15
Austin v. Kroger Texas, L.P., 864 F.3d 326 (5th Cir. 2017)
4
Bank of New York v. Hoyt, 108 F.R.D. 184 (D.R.I. 1985)
7
Bonilla v. City of New York, No. 18-CV-12142, 2019 U.S. Dist. LEXIS 198817, 2019 WL
6050757 (S.D.N. Y. Nov. 15,2019)...............................................................................
14
CPC Int’l, Inc. v. Northbrook Excess and Surplus Ins. Co., 46 F.3d 1211 (1st Cir. 1995)
6
Dawson v. County of Westchester, 373 F.3d 265 (2d Cir. 2004)
14
Elephant Butte Irr. Dist. of New Mex. v. U.S. Dep’t of Interior, 538 F.3d 1299 (10th Cir. 2008) 5
Feingold v. State of New York, 366 F.3d 138 (2d Cir. 2004)
11
Figueroa v. Pompeo, 923 F.3d 1078 (D.C. Cir. 2019)
13
Filebark v. U.S. Dep’t of Trans., 555 F.3d 1009 (D.C. Cir. 2009)
5
Gonzalez v. Hasty, 802 F.3d 212 (2d Cir. 2015)
15
Guessous v. Fairview Prop. Invs, LLC, 828 F.3d 208 (4th Cir. 2016)
16
Harris v. City of New York, 186 F.3d 243 (2d Cir. 1999)
15
James v. Van Blarcum, 782 F. App’x 83 (2d Cir. 2019)
14
Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005)
8
King v. Newbold, 845 F.3d 866 (7th Cir. 2017)
7
LaPierre v. Benson Nissan, Inc., 86 F.3d 444
11
Langevine v. District of Columbia, 106 F.3d 1018 (D.C.Cir.1997)
5
Lucente v. Cnty. of Suffolk, 980 F.3d 284 (2d Cir. 2020)
15
in
Marino v. EGS Elec. Grp., LLC, No. 12-CV-518, 2014 U.S. Dist. LEXIS 43131, 2014 WL
1289453..........................................................................................................................
15
Marshall v. Kingsborough Cmty. Coll, of CUNY, No. 1 l-CV-2686, 2015 U.S. Dist. LEXIS
134256, 2015 WL 5773748 ...........................................................................................
14
Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001)
15
Officer v. Chase Ins. Life & Annuity Co., 500 F. Supp. 2d 1083 (N.D. hid. 2007)
7
Official Comm, of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d
147 (2d Cir. 2003)
5
Okoli v. City of Baltimore, 648 F.3d 216 (4th Cir. 2011)
13
Patterson v. Cnty. of Oneida, 375 F.3d 206 (2d Cir. 2004)
15
Robb v. Sales, 54 F.R.D. 196 (E.D. Pa. 1971)
6
Rodriquez v. Cnty. ofNassau, 933 F.Supp.2d 458 (E.D.N.Y.20I3)
16
Schaefer v. First NatT Bank of Lincolnwood, 465 F.2d 234 (7th Cir. 1972)
7
Schwapp v. Town of Avon, 118 F.3d 106 (2d Cir. 1997)
14
United States ex rel. Petratos v. Genentech Inc., 855 F.3d 481 (3d Cir. 2017)
5
United States v. Brown, 368 F.3d 992 (8th Cir. 2004)
6
United States v. Koon, 6 F.3d 561 (9th Cir. 1993)
6
United States v. U.S. Smelting Co., 339 U.S. 186 (1949)
6
Virgin Atl. Airways, Ltd. v. NatT Mediation Bd., 956 F.2d 1245 (2d Cir. 1992)
6
Wallis v. J.R. Simplot Co., 26 F.3d 885 (9th Cir. 1994)
11
Washington v. Veneman, 109 F. App’x 685 (5th Cir. 2004)
11
Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987), cert, denied, 498 U.S. 939 (1990)
11
Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834 (2d Cir. 2013)
8
iv
Zdanok v. Glidden Co., 327 F.2d 944 (2d Cir. 1964)
5
FEDERAL STATUTES
Fed.R.Civ.P. 54(b)
STATE STATUTES
La. R.S. 23:1361
2
La. R.S. 23:967
2
v
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
The opinion of the Court of Appeals is not officially reported and may be found in the
Appendix. The opinions of the district court are not officially reported and may also be found in the
Appendix.
JURISDICTION
The Court of Appeals issued its decision on June 16, 2023. No petition for rehearing was
filed.
The jurisdiction of this Court is invoked under 28 U. S. C. § 1254.
STATUTORY AND RULES INVOLVED
Federal Rule of Civil Procedure 54(b):
. . [A]ny order or other decision, however designated, that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims
or parties and may be revised at any time before the entry of a judgment adjudicating all the claims
nd all the parties’ rights and liabilities.”
STATEMENT OF THE CASE
Petitioner, Gilbert Edwin, an African-American male began working with Clean
Harbors, a provider of environmental and industrial services, in September of 2015. Following a
ob injury in August of 2017, he was placed on LOA on the injury which required surgery.
Petitioner applied a short-term disability in September 25, 2017. Later he applied for
l
long term disability and was approved in December of 2017.
Petitioner filed a workers’ compensation claim in October and a charge for race
discrimination with the Equal Employment Opportunity Commission (EEOC) on December 13
2017. On December 21, 2017 both Petitioner and Respondent received a right to sue notice via
U.S Postal Mail. On September 12, 2018, Petitioner filed a Retaliation case with the EEOC, and
received a Right to Sue notice on September 20, 2018. Petitioner was uncleared to return on
LOA and had not received any finical assistance for four months. He shared this with his private
doctor, that suggested that he seek accommodation from Respondent, which Petitioner was
advised by Clean Harbors that he can only be cleared to return by their doctor BHP. Petitioner
was contacted by new Manager Michael Strain, whom he had never met, requesting he come into
the office.
Petitioner had no trust in the company prior to filing a case with the EEOC, so as a
precaution he introduced himself to Mr. Strain and told him that he is suffering from a work
injury and immediately self-disclosed his use of marijuana to deal with pain from his injury.
Manager Strain excused himself came back fifteen minutes later with paper work to take a
physical and drug test at Respondent’s doctor BHP.
After Petitioner was cleared to return to work in January 2018, Clean Harbors notified
him that he needed to schedule a drug test in accordance with company policy. At that time, he
told Clean Harbors that he had smoked marijuana and tested positive for it on January 16, 2018.
Petitioner was fired seven days later for violating Clean Harbors’s Alcohol and Drug Policy.
Petitioner requested that his termination be reconsidered, stating that he smoked marijuana for
medical purposes. However, following further investigation, Clean Harbors upheld the firing.
2
Petitioner then filed five claims against Clean Harbors: (1) a hostile work environment
claim, (2) disparate treatment claim, and (3) retaliation claim under Title VH, all based on racial
discrimination, (4) a state law retaliation claim under Louisiana's Whistleblower statute, La. R.S.
23:967, and (5) a state law retaliation claim under La. R.S. 23:1361, alleging that Clean Harbors
alleging that Clean Harbors retaliated against him for taking workers’ compensation.
Following discovery, Clean Harbors made a motion for summary judgment. The district
court (Judge Juneau) granted the motion in part and denied the motion in part. With respect to
Disparate Treatment Claims, the Court found that the plaintiff could not demonstrate a genuine
issue of material fact as to whether he was treated less favorably than other similarly situated
employees outside the protected group. Plaintiff also asserted disparate treatment, but the Court
found that Plaintiff never applied for a driving position. The claim under for retaliation under La.
R.S. §23:967 was dismissed for failure to specify the state law violated.
The hostile work environment claim was dismissed as untimely, the Court finding that
“[ajn individual claiming discrimination in violation of Title VII must file a charge of
discrimination with the EEOC within 300 days ‘after the alleged unlawful employment practice
occurred.’” The retaliation for seeking workers’ compensation was rejected as untimely and
failure to state a laim.
The Court found, however, that the retaliation claim under Title VH, predicated upon the
plaintiffs complaint to the EEOC, survived, because “a reasonable jury could find that Clean
Harbors chose to terminate Mr. Edwin because he had filed a claim with the EEOC.”
Clean Harbors then made a motion for reconsideration requesting that the Court dismiss
Edwin’s Title VII retaliation claim. ROA.3234. In its motion, Clean Harbors contended that it
3
had not received the notice of the EEOC charge prior to the determination due to an error in an
email address. It also contended that the dismissal conformed to company policy. It argued, for
the first time, that it was policy to fire any employees in safety sensitive positions who failed a
drug screening.
In opposition, Petitioner noted:
EEOC Edwin call[ed] HR Director Barbra Lynn Ward (CH1200) reveal that the
phone to Ward lasted one hour and three minutes. During this phone call Edwin
claims that he participated protected activity by informing HR Director Ward of
him moving forward with an EEOC Charge. Edwin July 15th, 2019, deposition
(Pg. 206 Q8-A11, Q16-A19, Pg. 207 Q4-A6, Q14-19). Edwin Mayl5,2019,
deposition (Pg. 287 Q24-A3, Q4-A7) reveals that Ward was aware of Edwin
moving forward with his EEOC complaint. Ward Pg.100 Q12-A14, Q1720-25Pg.l01, HR Director Ward has never denied Edwin infonn her of moving
forward with EEOC Claim on Dec 13th, 2017. Despite email error (Exhibit 18
CH0024) which defendant should have been of Edwin's EEOC Charge, Clean
Harbors was noticed by EEOC two days later via U.S. Mail.
Furthermore, due to the fact that he was not cleared to work by Respondent’s
doctor Petitioner was still an inactive employee who could not return to his duties because
of his back injury. According to Barbara Ward, Petitioner was terminated because he could not
work around industrial equipment with more than the allowed of marijuana in his system.
However, that reason does not apply because Gilbert Edwin was not medically cleared to
return to his duties working with the heavy industrial equipment for at least 30 more days.
ROA: 56,507. Petitioner was never cleared to return to work.
In addition, Petitioner noted that he had self-reported his marijuana use, which was
corroborated “during deposition testimony of human resource director Barbara Wards Pg. 138.
Q2-A3, Q10-A12, Q17-A2.” ROA,3265. In addition, under the policy
before undertaking disciplinary measures, with an employee who has failed to
4
comply with the requirements of clean harborsalcohol and drug policy or standard,
clean harbors must take the appropriate steps to determine if the violation of the
clean harbors alcohol and drug policy or standard is related to any disability which
dean harbors has a legal duty to accommodate, managers must contact their
human resources business partners to address all positive alcohol and drug test
results or any situation regarding the use of alcohol and or drugs in the workplace.
After defendant Clean Harbors received EEOC Notice on Dec 21, 2017, though
his termination Edwin has never received a Full Investigation, Defendant has yet
to provide any evidence that would confirm or prove that Clean Harbors was
acting in compliance with it Policy and Standard, showing they had a “legitimate,
non-discriminatory reason” for the adverse action.
The motion was reassigned to Chief Judge S. Maurice Hicks, Jr., who granted it. Judge
Hicks agreed that whether Clean Harbors had received notice of the EEOC charge prior to
termination was a question of fact. Instead, the Court accepted Clean Harbor’s argument, not
originally raised in the Motion for Summary Judgment, that it was policy to fire any employees
in safety sensitive positions who failed a drug screening. The action was thus dismissed in its
entirety.
On appeal, the Fifth Circuit affirmed. Citing Austin v. Kroger Texas, L.P., 864 F.3d
326, 337 (5th Cir. 2017), it concluded that there was no error in considering a new argument on
appeal. “Rule 54(b) allows parties to seek reconsideration of interlocutory orders and authorizes
the district court to ‘revisef ] at any time’ ‘any order or other decision.. .[that] does not end the
action.’” Id. at 336 (citing Fed. R. Civ. P. 54(b). It affirmed the grant of summary judgment on
all counts, finding that Petitioner failed to raise a question of fact.
5
REASONS FOR GRANTING THE WRIT
I. THE COURT SHOULD RESOLVE THE CIRCUIT SPLIT CONCERNING THE
APPLICATION OF LAW OF THE CASE TO RECONSIDERATION APPLICATIONS
AS WELL AS WHETHER SUCH MOTIONS ARE SUBJECT TO A 30 DAY TIME
LIMITATIONS
Courts disagree about whether the law of the case doctrine applies to situations such as
this one. Several Circuits have concluded that the law of the case doctrine does not apply to a
district court’s reconsideration of interlocutory orders. See United States ex rel. Petratos v.
Genentech Inc., 855 F.3d 481, 493 (3d Cir. 2017) (interlocutory orders remain open to trial-court
reconsideration and do not constitute law of case); Filebark v. U.S. Dep't of Trans., 555 F.3d
1009, 1013 (D.C. Cir. 2009) (‘“[ijnterlocutory orders are not subject to the law of the case
doctrine and may always be reconsidered prior to final judgment.’”) (quoting Langevine v.
District of Columbia, 106 F.3d 1018, 1023 (D.C.Cir.1997); Elephant Butte Irr. Dist. ofNew Mex.
v. U.S. Dep't of Interior, 538 F.3d 1299, 1306 (10th Cir. 2008) (same and so viewing
Fed.RXiv.P 54(b)).
In contrast, other Circuits, such as the Second Circuit, have held that law of the case is
applicable. See, e.g. Official Comm, of Unsecured Creditors of Color Tile, Inc. v. Coopers &
Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (“We have limited district court's
reconsideration of earlier decisions under Rule 54(b)by treating those decisions as law of the case
. . . .”). According to the Second Circuit, the “law of the case ... gives a district court discretion
to revisit earlier rulings in the same case, subject to the caveat that ‘where litigants have once
battled for the court’s decision, they should neither be required, nor without good reason
permitted, to battle for it again.’” Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964).
6
Thus, those decisions may not usually be changed unless there is “an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent a
manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d
Cir. 1992) (internal quotation marks omitted). The First Circuit seems to follow this rule as well.
See CPC Int'l, Inc. v. Northbrook Excess and Surplus Ins. Co., 46 F.3d 1211, 1215 n.4 (1st Cir.
1995).
To be sure, “law of the case” is only a discretionary rule of practice, but it is based upon
sound policy that when an issue is once decided that should be the end of the matter. United
States v. U.S. Smelting Co., 339 U.S. 186, 198-199 (1949). Even though the original order was
interlocutory, the reasons for the decision did not change. Permitting that order to be altered led
to a chaotic situation in which a successor effectively overruled another judge of the same court
who had ruled on a pretrial motion. See Robb v. Sales, 54 F.R.D. 196, 198 (E.D. Pa. 1971).
The better rule would appear to be that of the First and Second Circuits. “Courts are
reluctant to spend scarce judicial resources revisiting a decision that has already been made.
Thus, reconsideration of a summaryjudgment or denial of a summary judgment is considered
extraordinary relief, to be granted only in exceptional circumstances. This is true whether the
request for reconsideration is made pursuant to Rule 54(b) or under the court's inherent power to
reconsider interlocutory orders.” 11 Moore’s Federal Practice - Civil § 56.124[4] (2022).
Exceptional circumstances “are only those circumstances that are ‘clearly out of the
ordinary, uncommon, or rare.’” United States v. Brown, 368 F.3d 992, 993 (8th Cir. 2004)
(quoting United States v. Koon, 6 F.3d 561, 563 (9th Cir. 1993)). There were no such exceptional
circumstances here.
7
Moreover, there is a Circuit split concerning time limitations on making such motions.
The Seventh Circuit, in Schaefer v. First Nat'l Bank of Lincolmvood, 465 F.2d 234, 236 (7th Cir.
1972), held that “as a general rule it is an abuse of discretion for a district judge to grant a motion
for a Rule 54(b) order when the motion is filed more than thirty days after the entry of the
adjudication to which it relates.” This holding was then reaffirmed in King v. Newbold, 845 F.3d
866, 868 (7th Cir. 2017) (denying a Rule 54(b) motion because it “was made 13 months after
partial summary judgment was granted and more than 30 days after the entry of partial judgment
on the pleadings.”).
District courts in the Seventh Circuit have continued to follow Schaeffer, especially in
cases where the Rule 54(b) request was untimely. See Officer v. Chase Ins. Life & Annuity Co.,
500 F. Supp. 2d 1083, 1085 (N.D. Ind. 2007) (and cases cited).
The Schaefer decision has been sharply criticized for having established its 30-day rule.
In Bank ofNew York v. Hoyt, 108 F.R.D. 184 (D.R.I. 1985) the court stated:
This court eschews any such inflexible criterion. Rule 54(b), unlike a myriad, of
other provisions in the civil rules, e.g., Fed. R. Civ. P. 59(b), 59(e), 72(a), 74(a),
contains no express temporal restrictions. ... [Tjhough the seasonableness of an
effort to obtain Rule 54(b) certification is certainly a factor to be weighed in the
mix, it should not be accorded talismanic importance. In the absence of a fixed
time limit for taking action, it seems prudent for the court to assess the timeliness
of such an initiative on a case-by-case basis.
Id. at 185-86.
The division in the Circuits should be reviewed by this Court.
II. THE FIFTH CIRCUIT DECISION CONFLICTS WITH SECOND CIRCUIT
PRECEDENT
A prima facie case of retaliation requires that the plaintiff produce evidence that would be
8
sufficient to demonstrate that: (1) the plaintiff participated in a protected activity; (2) the
defendant had knowledge of the protected activity; (3) the plaintiff suffered an adverse
employment action; and (4) there is a "causal connection" between the protected activity and the
adverse employment action. See Zcinn Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir.
2013) (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)).
In Zann Kwan, the Second Circuit reversed the grant of summary judgment to the
defendant and remanded. Summary judgment was improper because the employee's complaint to
a company officer communicated her concerns to the company as a whole, the three-week period
from the employee's complaint to her termination was sufficiently short to make a prima facie
showing of causation indirectly through temporal proximity, and the employer provided
inconsistent and contradictory explanations for the termination.
As the Court explained, retaliation claims must be proved according to traditional
principles of but-for causation, and this requires proof that the unlawful retaliation will not occur
in the absence of an alleged wrongful action or actions of an employer. A plaintiffs injury can
have multiple "but-for" causes, each one of which may be sufficient to support liability.
Requiring proof that a prohibited consideration is a "but-for" cause of an adverse action does not
equate to a burden to show that such consideration is a "sole" cause. The determination of
whether retaliation is the "but-for" cause, rather than just a motivating factor, is particularly
poorly suited to disposition by summary judgment, because it requires weighing of the disputed
facts, rather than a determination that there is no genuine dispute as to any material fact. A jury
should eventually detennine whether the plaintiff proves by a preponderance of the evidence that
he or she does in fact complain about discrimination and that he or she will not be terminated if
9
he or she does not complain about discrimination.
Here, Clean Harbors asserted that Plaintiff was terminated for violations of their Alcohol
and Drug Policies. However, as the first judge found, “the policy does not mandate termination,
and more importantly the policy indicates that employees who proactively report issues with drug
use can be considered for assistance ‘without fear of reprisal.”* ROA.3218. (Quoting ROA.472).
The standards, as the judge observed, afforded substantial discretion in Clean Harbors. Dismissal
was not mandated.
Review of the record shows this analysis is correct. An email between Ernest Knight to
Ms. Barbara Ward dated January 9th, Tuesday, at 9:43 a.m., which was ignored by the second
judge, confirms this:
“Barb, Gilbert Edwin was released to return to work with restrictions from his
personal doctor . He will be bringing in the release today so that we can review
the restrictions. He shared with Michael Strain that he had smoked medical
marijuana without a prescription while out on his leave. Our plan is to review his
restrictions and send him to an AllOne to review his release and do a DNA, and
allow him to speak with the MRO if his test requires. Please advise if you’d like
us to handle this differently.”
ROA.261, ROA.813.
Michael Strain’s affidavit conflicts with this version. Accordingly to Strain, Plaintiff told
him. that he smoked marijuana and had gotten it off the street- although, as noted above, Plaintiff
testified under oath that he obtained it legally in Colorado- and then he immediately arranged for
termination. ROA.289. inasmuch as a drug test was administered thereafter, which is asserted as
a basis for termination, and the contents of the email, reliance upon the Strain affidavit is plainly
unwarranted. At best, there is a question of fact for jury resolution.
Clean Harbors has two polices that should have prevented Gilbert Edwin’s termination.
10
Its standard states that an employee who voluntarily seeks assistance on their own will not be
disciplined unless they have failed to comply with alcohol and drug standard. ROA.472.
Although he had been previously been tested on multiple occasions, Plaintiffs previous
history yielded no infractions of the drug policy. ROA.920. Clear Harbor concedes that plaintiff
made a voluntary disclosure. ROA.448.
The screening section of the standard states that an employee returning to work following
a thirty day absence may be subject to a “return from leave” alcohol and drug test. ROA.455. A
negative drug screening is required before the will be permitted to return to their duties.
ROA.466. Another portion of the standards protects employee whose substance abuse is related
to a disability for which Clean Harbors has a duty to accommodate. ROA.473.
It is undisputed that plaintiff was receiving long term disability based on the L5/S1
Extruded disc suffered from his employment. ROA.880. Plaintiff additionally sought a doctor to
treat his disability and was recommended to use marijuana for the pain as an alternative to
narcotics. ROA.880.The Clean Harbors manual directs employees to inform their supervisor of a
medication taken at the direction of their physician. It further extends instructions that any
employee with a substance abuse should again inform their direct supervisor. ROA.445. Again,
plaintiff made the voluntary disclosure. ROA.289, ROA.448.
The Standard contains a section for self disclosure. ROA.472.The Standard states that the
company believes that an alcohol or drug dependency is preventable and a treatable condition
and recognizes that an individual may want assistance. ROA.472-ROA.473. This Standard
encourages employees to voluntarily come forward to seek assistance of a substance abuse
expert, substance abuse professional, and or employee assistance program without fear or
11
reprisal. ROA.472. Plaintiff abided by both requirements of the drug standard when he informed
Micheal Strain of his marijuana use. ROA.448.
In sum, the first judge got it right. Whether the reasons given for the termination were
pretextual were for the jury to determine.
Ill THE FIFTH CIRCUIT’S DECISION ON THE DISPARATE TREATMENT CLAIM
CONFLICTS WITH OTHER CIRCUITS
In the Second Circuit, “A plaintiff may establish a claim of disparate treatment under
Title VII either (1) by showing that he has suffered an adverse job action under circumstances
giving rise to an inference of discrimination on the basis of race, color, religion, sex, or national
origin, or (2) by demonstrating that harassment on one or more of these bases amounted to a
hostile work environment.” Feingold v. State ofNew York, 366 F.3d 138, 149 (2d Cir. 2004).
In contrast to the Fifth Circuit, other Circuits hold that a “plaintiffs burden
on summary judgment is minimal and does not even need to rise to the level of a preponderance
of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (citing Yartzoff v.
Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987), cert, denied, 498 U.S. 939 (1990).” “The plaintiff
need only offer evidence which ‘gives rise to an inference of unlawful discrimination.’ ‘The
amount [of evidence] that must be produced in order to create a prima facie case is ‘“very
little.”’” Id. (internal citations omitted).
!. This contrasts with the prima facie requirements in the Fifth Circuit where a plaintiff
must show that he or she (1) is a member of a protected class, (2) was qualified for the position,
(3) suffered an adverse employment action, and (4) the employer continued to seek applicants
with the plaintiffs qualifications, the employer selected someone of a different race or sex, or
that others similarly situated were treated more favorably than plaintiff. Washington v. Veneman,
109 F. App'x 685, 688 (5th Cir. 2004) (citing LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448
n. 3 (5th Cir. 1996).
12
Here, the dispute centered on whether the employer continued to seek applicants with the
plaintiffs qualifications, and the employer selected someone of a different race or sex, or that
others similarly situated were treated more favorably than plaintiff.
Bryce Manuel was a proper comparator, as the district court itself found that the record
“does indicate that both men initially shared the same job title.” (See ROA.2520.) Bryce Manuel
was promoted ahead of plaintiff and, offered $2-$3 more compensation than the individual with
more press experience and the individual that trained him, which itself seems to be substantial
evidence that “a similarly situated employee outside the protected class was treated more
favorably.”
Bryce Manuel and Plaintiff were similarly situated for several additional reasons. They
were both hired with zero industrial press experience. They both worked the press while labeled
as Environmental Technician l. They both worked the same 12 hour shift. The both have the
same duties related to their job titles prior to Bryce’s promotion. Therefore, they were similarly
situated when they were working the same press, on the same shifts, with the same job title of
Environmental Technician 1.
According to Marcel Bienvenue there was racial tension at the Press. ROA.2210ROA.2211. Darrell Bush stated in his deposition that he witnessed Plaintiff experience racism.
ROA.2688. However, once Bryce was promoted the other three minorities were forced to share
hours. ROA.2680. Therefore, the evidence is sufficient to show that plaintiff was similarly
situated as Bryce Manuel and treated differently only due to race.
Bryce Marcel was not originally hired as a lead press operator contrary to the claims of
the Defendant and the following facts support this premise. Until the date of his altercation with
13
plaintiff, Bryce Manuel was labeled as a fellow Environmental Tech I in the Clean Harbors
system. ROA.2190-ROA.2191, ROA.2197. According to Ernest Knight’s email, plaintiff could
not be disciplined for not following Bryce Manuel’s directions because he was not listed as a lead
press operator in the Clean Harbors system. ROA.895.
Furthermore, a reasonable juror would not find that Bryce Marcel was the lead press
operator at the time of his hiring because prior to his employment with Clean Harbors, Bryce
Manuel had no experience on an industrial press.
Summary judgment should have been denied. See Figueroa v. Pompeo, 923 F.3d 1078,
1093 (D.C. Cir. 2019) (“ the District Court erred in accepting the Department's vague reason.”).
IV. THE HOSTILE WORK ENVIRONMENT CLAIM SURVIVES SUMMARY
JUDGMENT
To state a claim for hostile work environment under Title VII, a plaintiff must show that
the conduct complained of (1) was unwelcome; (2) was based on her membership in a protected
class; (3) was sufficiently severe or pervasive to alter the conditions of her employment and to
create an abusive work environment; and (4) was imputable to her employer. See Okoli v. City of
Baltimore, 648 F.3d 216, 220 (4th Cir. 2011).
As the district court noted, ROA.3209, the hostile work environment claim focuses on
three incidents followed by Clean Harbors’s alleged lack of response: (1) on his first day of work,
he was driven to a work site by his supervisor in a truck with a noose hanging in the cab. When
he confronted the supervisor in private, the supervisor allegedly told him to drop it and not be
difficult; (2) the second incident involved the same supervisor who showed plaintiff a comedy
routine that used racist language despite plaintiff asking him to stop the video; (3) the final
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incident occurred in November of 2016, where another supervisor allegedly told plaintiff and
another African American worker not to steal or return late from lunch break claiming those
actions are "what you people do."
Under settled precedent elsewhere, light of the frequent and enduring nature of this
conduct, and the conduct itself, a reasonable jury could find that the employe created an
objectively hostile work environment due to Petitioner’s race. See James v. Van Blarcum, 782 F.
App'x 83, 85 (2d Cir. 2019) ("[WJhether racial slurs constitute a hostile work environment
typically depends upon the quantity, frequency, and severity of those slurs, considered
cumulatively in order to obtain a realistic view of the work environment." (alteration in original)
(quoting Schwapp v. Town ofAvon, 118 F.3d 106, 111 (2d Cir. 1997))); Bonilla v. City of New
York, No. 18-CV-12142, 2019 U.S. Dist. LEXIS 198817, 2019 WL 6050757, *16 (S.D.N. Y.
Nov. 15, 2019) ("[Plaintiffs] claim does not rest on an isolated incident or stray remarks, but on
a pattern of abusive activity of a quality and quantity that a reasonable employee would find
worsened the conditions of his employment." (citing Dawson v. County of Westchester, 373 F.3d
265, 274 (2d Cir. 2004))); Marshall v. Kingsborough Cmty. Coll, of CUNY, No. 1 l-CV-2686,
2015 U.S. Dist. LEXIS 134256, 2015 WL 5773748, at *11, (E.D.N. Y. July 27, 2015)
(concluding that given the "the inflammatory and clearly gender-based nature" of the department
chair's references to plaintiff and "other female employees" in derogatory terms and statements
that "women don't belong in the work place" together with the chair's conduct of "weekly
'g[etting] in the face' of female colleagues in a physically intimidating manner," "a reasonable
jury could conclude that the weekly or even twice-monthly slurs were sufficient to create a
hostile work environment"), report and recommendation adopted in relevant part, 2015 U.S. Dist.
15
LEXIS 133298,2015 WL 5774269 (E.D.N.Y. Sept. 30, 2015)\ Marino v. EGS Elec. Grp., LLC,
No. 12-CV-518, 2014 U.S. Dist. LEXIS 43131, 201.4 WL 1289453, at *9 (D. Conn. Mar. 31,
2014) (denying summary judgment as to hostile work environment claim where "the record
showfed] that [the plaintiff] suffered from severe and pervasive harassment from [a coworker]
for over a year"); see also Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 873 (9th Cir. 2001)
(holding "that a reasonable man would have found the sustained campaign of [homophobic]
taunts, directed at [plaintiff] and designed to humiliate and anger him, sufficiently severe and
pervasive to alter the terms and conditions of his employment")
The courts below, however, deemed that the claims were barred by the statute of
limitations. This ignored the continuous violation doctrine.
“The continuing violation doctrine, where applicable, provides an 'exception to the
normal knew-or-should-have-known accrual date.’” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d
Cir. 2015) (quoting Harris v. City of New York, 186 F.3d 243, 248 (2d Cir. 1999)). The doctrine
"applies to claims composed of a series of separate acts that collectively constitute one unlawful
practice," icl, and functions to "delay the commencement of the statute of limitations period until
the last discriminatory act in furtherance of' that broader unlawful practice, Harris, 186 F.3d at
248. This doctrine does not apply, however, to ‘“discrete acts of discrimination or retaliation that
occur outside the statutory time period,’ even if other [related] acts of discrimination occurred
within the statutory time period.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir. 2004)
(quoting AMTRAK v. Morgan, 536 U.S. 101, 105 (2002)). Rather, the doctrine extends
exclusively "to claims that by their nature accrue only after the plaintiff has been subjected to
some threshold amount of mistreatment." Lucente v. Cnty. ofSuffolk, 980 F.3d 284, 309 (2d Cir.
16
2020).
There has been no severance of the acts because the defendant never took any remedial
action. In that circumstance, the action should be timely where tennination is the final incident.
This is the holding in Guessous v. Fairview Prop. Invs, LLC, 828 F.3d 208, 222 (4th Cir. 2016).
The United States Court of Appeals for the Fourth Circuit in Guessous examined the
issue of “whether non[ ]time[ jbarred discrete acts can be considered part of the series of separate
acts that collectively create a hostile work environment, thus rendering a hostile[ jenvironment
claim timely under the continuingf ] violation doctrine.” 828 F.3d at 223 (internal quotation
marks and citations omitted). The Fourth Circuit explained that the Supreme Court recently used
a constructive discharge as part of a hostile work environment claim. See id. As a result, the
Guessous court concluded that “so long as the [discrete] act is part of the pattern of
discriminatory treatment against the employee, then that act should be sufficient for the purposes
of the continuing[ Jviolation doctrine, even if the act would otherwise qualify as a discrete act
that is independently actionable.” Id. Therefore, the Fourth Circuit concluded that the plaintiffs
termination could suffice as a timely action and the continuing violation doctrine applied. Id.
Under the Guessous standard, a non time barred discrete act—such as a termination of
employment—can be considered an anchor for a pattern of discriminatory treatment under the
continuing violation doctrine.2
In an email dated December 12, 2017, Ernest Knight noted that plaintiff had called him
and reported racist remarks. ROA.484. This document alone shows the questions of fact
2. Admittedly, the rule in the Second Circuit is contra. See Rodriquez v. Cnty. ofNassau,
933 F.Supp.2d 458, 462 (E.D.N.Y.2013) ( “[Termination is a discrete act.”).
17
concerning the continuing racist harassment.
In his deposition, plaintiff showed that he continued to suffer severe and humiliating
harassment and the “stress” he had to interact with, which was constant in almost everything he
did. ROA.2461. Consequently the hostile work environment claim should survive summary
judgment.
Although the Court of Appeals said that the only timely act raised by Petitioner in the
district court was an August 2017 low performance review by his manager, Marcel Bienvenu,
and if this event contributed to a hostile work environment, then under Fifth Circuit precedent,
the Court may consider all of the prior acts of alleged harassment. “Edwin failed to adequately
brief this argument on appeal, however, so it is forfeited. fl|] Even if this issue was
adequately briefed on appeal, it would nevertheless fail because Edwin fails to show
how the low performance review constituted harassment based on race that contributed to a
hostile work environment.”
Petitioner’s performance review should have been considered, however, because the
performance review effected the employees wage increase. ROA:l 198, 1245. The Court of
Appeals also noted, Petitioner did not discuss the performance review being racially motivated in
the EEOC report or in his deposition but said that Bienvenu was not a fair supervisor.
In his deposition Bienvenu stated that Edwin called him racist twice. Petitioner’s
allegations can still be support his timely claims because if any of his charges are related to the
charge filed and requirements of title 7 does not bar employees from using prior acts of
discrimination for which no charge was timely filed with equal Employment Opportunity
Commission EEOC as background evidence in support of timely title seven claim
18
CONCLUSION3
For the reasons stated, certiorari should be granted.
Dated: September 6, 2023
d^Tb^zrt Edwin C~
3. The complaint contained two state law claims. Since they are not federal claims
certiorari would not lie. Nonetheless, in the event that certiorari is granted, Petitioner reserves the
right to argue that they present jury questions as well.
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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.