Petition for Rehearing — Esther Darnell, Petitioner v. Department of Justice, et al.

No. 24-608 FILED

FEB 07 2025

OFFICE OF THE CLERK

Lit ht ¢ IURT Ts

IN THE

Supreme Court of the United States

ESTHER DARNELL,

Petitioner,

v.

DEPARTMENT OF JUSTICE, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UnItTep States Court or APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR REHEARING

ESTHER DARNELL

Petitioner Pro Se

11110 Sage Gale Drive

Houston, TX 77089

(832) 651-5226

edarnell2002@yahoo.com

120278 g

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a

TABLE OF CONTENTS

Page

TABLE OF CONTENTS. ....... ccc cece eee ee ees i

TABLE OF CITED AUTHORITIES .............. il

PETITION FOR REHEARING ...........2.5 0000s 1

CONCLUSION geese aie oe corenis a we werarerarets ae ara wits 8

CERTIFICATE OF GOOD FAITH................

w

TABLE OF CITED AUTHORITIES

Page

Cases

McDonnell Douglas Corp. v. Green,

411 U.S. 792, 98 S. Ct. 1817,

36 L.Ed.2d 668 (1978) ....... 2.2 cece ee eee 1,5, 7,8

Okoye v. Univ. of Tex. Houston Health Sei. Cnir,

245 F.3d 507 (5th Cir. 2001).............20200 00 5

Septimus v. Univ. of Houston,

399 F.3d 601 (6th Cir. 2005) .. 02... . cece eee eee 8

Rules and Other Authorities

Sup. Ct. R. 44.2 .. 0 ay ceaaedd 0% Ha FOREST 1G OE STES 1

Appellant’s Br, Darnell». Dept. of Justice, DEA etal,

No. 23-20399 (5th Cir. November 29, 2023) ........ 8

U.S. Department of Justice Office of the Inspector

General, Audit of Drug Enforcement

Administration’s Asset Forfeiture Program

Task Orders Awarded to Maximus, Inc., for

Financial Investigative Services, Redacted

for Public Release, Audit Division 18-26

(April 2018), https://www.org.justice.gov/

home (last visited January 28, 2025).......... 2, 3,4

1

PETITION FOR REHEARING

Petitioner Esther Darnell, a former Drug Enforcement

Administration (DEA) Senior Financial Investigator,

was hired by Professional Risk Management (PRM), a

subcontractor for Maximus, Inc. (Maximus) to work at

DEA. PRM and Maximus are not part of this appeal

because the United States district court (istrict court)

dismissed Darnell’s claims against the two contractors.

Darnell respectfully submits this Petition for Rehearing

of the January 13, 2025, Order of this Court denying her

petition for a writ of certiorari. Undersigned Petitioner

Pro Se, Attorney at Law, Esther Darnell, attaches the

certification required by this Court’s Rule 44.2.

Petitioner Esther Darnell (Darnell) submitted a

petition for writ of certiorari concerning her race and

sex discrimination claims of errors in the United States

Court of Appeals For The Fifth Circuit (Fifth Circuit)

and the United States district court’s (district court)

proceedings to determine whether it committed errors

when it: affirmed that her termination claims did not

meet the McDonnell Douglas burden-shifting framework;

denied her overtime claims under the continuing violations

doctrine, and affirmed the district court’s acceptance of a

declaration of discovery compliance by an attorney with

no personal knowledge of its contents which left Darnell

with no discovery to defend herself in summary judgment.

Two weeks after this Court denied Darnell’s petition,

while online searching for DEA’s and PRM’s recent cases

for Darnell’s Petition for Rehearing, the following was

noted.

2

The Department of Justice (DOJ) Office of the

Inspector General (OIG) audited DEA task orders issued

to Maximus and its subcontractor PRM for fiscal years

(FYs) 2014 and 2015, October 1, 2013, through September

30, 2015, which, incidentally, covers this lawsuit’s time

period, May 2014 through July 21, 2015. Maximus and

its subcontractor, PRM provided to DEA nationwide 82

contract personnel for Senior Financial Investigator’s

positions including Darnell’s job position to support

DEA’s financial investigations. See U.S. Department of

Justice Office of the Inspector General, Audit of Drug

Enforcement Administration’s Asset Forfeiture Program.

Task Orders Awarded to Maximus, Inc., for Financial

Investigative Services, Redacted for Public Release, Audit

Division 18-26 (April 2018), https://www.org.justice.gov/

home (last visited January 28, 2025).

To summarize, DOJ-OIG’s audit results of DEA will

have substantial effects on all of Darnell’s discrimination

claims because (1) PRM reclassified its independent

contractor Senior Financial Investigator’s positions

to employee positions and (2) of 82 contract personnel

working as Senior Financial Investigators, 33 (40 percent

were former DEA employees with an average of 22

years working at the DEA. Of the 33 Senior Financial

Investigators 21 reported to the same DEA office in which

they worked before retirement from DEA. For example,

OIG found one DEA Special Agent was the subject of an

OIG investigation regarding payments of $854,460 to an

Amtrak employee for confidential information. This DEA

Special Agent retired after an interview with OIG. The

agent five (5) days after the interview received an offer

from PRM to work as a Senior Financial Investigator

in his same DEA office. He reported to work one month

later. Id. at page 9.

3

DEA did not keep resumes of DEA employees

to compare with other applicants’ qualifications and

experience. Jd at i.

OIG’s investigation which involved a request for

resumes of the qualifications of DEA’s Senior Financial

Investigators and Darnell’s request for the qualifications

of the Senior Financial Investigator who replaced her are

very similar and provide a pattern of intent by DEA. DEA

did not comply with both requests. The reason why might

be in OIG’s audit report in the footnote “a” for Table 1, page

3, A Summary of Personnel. DEA, Maximus and PRM

refer to its personnel as Senior Financial Investigators

and OJG in its audit report refer to DEA, Maximus and

PRM personnel as Senior Investigators.

Petitioner attended a national meeting for all of PRM’s

Senior Financial Investigators in New York. The majority

PRM’s Senior Financial Investigators were male (very few

females) retired DEA managers and Special Agents. They

had more 20 years of service with DEA with little or no

financial investigative experience. They talked extensively

about their narcotics investigations and arrests and

nothing about financial investigations. ROA 780.

During the PRM national meeting Petitioner met

PRM Senior Financial Investigator Richard Woodfork,

black male, who like Petitioner was assigned to the New

Orleans Field Division. Richard Woodfork was a retired

DEA Special Agent with more than 20 years with DEA.

Before retirement he was assigned to DEA New Orleans

Office and when PRM hired him as a Senior Financial

Investigator in the same New Orleans office. When he first

met Petitioner he told her that he was very happy to meet

4

her because he knew nothing about financial investigations,

and he needed her help. Thereafter, Petitioner and

Woodfork had several telephone conversations during

which Petitioner told Woodfork how to conduct financial

investigations on his cases and afterwards emailed

him sample copies of her work. Petitioner’s Deposition

ROA.1364-1366. Declaration of Richard Woodfork ROA.

1536 at No. 4.

OIG de-obligated the remaining $350,000,000

($435,000,000 awarded less $85,000,000 DEA paid over to

Maximus, and suheontractor PRM, for Senior Financial

Investigators. Id. at 7.

This is an extraordinary situation because it involves

DEA’s financial Professional Assistance Contracts

(PACS) with a multi-year contract ceiling of $475,000,000

“inefficient use of government funds” because allegedly

the PACS might be cover-ups for lucrative post-retirement

jobs for former DEA Managers and Special Agents

who were Senior Narcotics Investigators but hired as

Senior Financial Investigators to support DEA financial

investigations?

Incidentally, currently, PRM has expanded its Senior

Financial Investigator’s services to FBI in addition to

DEA. Its funding will probably be near a billion dollars.

https://www.prmusa.net (last visited January 28, 2025).

The district court stated that to establish a prima

facie case of race, black, and sex, female, discrimination

Darnell must establish a prima facie case by providing

evidence that she: (1) is a member of a protected class; (2)

was qualified for her position; (8) was subject to adverse

5

employment action; and (4) was replaced by someone

outside her protected class or, in the case of disparate

treatment, shows that others similarly situated were

treated more favorably. Okoye v. Univ. of Tex. Houston

Health Sci. Cntr., 245 F.3d 507, 512-13 (Sth Cir. 2001).

Alda.

In Darnell’s petition she consistently argued that

DEA’s refusal to assign additional Financial Investigators

from DEA’s staff of 15 Financial Investigators (FIs), which

included PRM’s Senior Financial Investigators, Richard

Woodfork, Calvin Boyer and Gloria Newport, to assist her

on a grand jury investigation with 40 targets, $17 million

in currency transactions and 30 bank accounts, to analyze

in avery short period of time, caused her to incur unpaid

overtime hours and to not meet the requirements of a

prima facie case for discrimination under the McDonnell

Douglas framework test.

Specifically, first under the McDonnell Douglas

framework, DEA’s refusal to provide a document discovery

request for the race and sex of the person who replaced

Darnell after her termination negatively impacted her

right to defend herself in a summary judgment proceeding

because it automatically shifted her burden of proof to an

impossible standard for Darnell to prove, that “someone

similarly situated like Darnell” outside her sex and race

was treated more favorably than Darnell because DEA

refused to assign either Woodfork, Boyer or Newport,

valid PRM Senior Financial Investigators comparators

under McDonnell Douglas framework, to assist Darnell

on the grand jury investigation. Petition at 9-10, 15-19.

This is the one of the most significant discriminatory

claims that Darnell brought against DEA in her

6

Second Amended Complaint and the petition for a writ

certiorari, that DEA has consistently refused to address

this claim, but Darnell has addressed with supporting

evidence consisting of declarations, depositions, emails

and other documentary evidence. Petition at 9-10.

The other most significant discriminatory claim

that Darnell has brought against DEA in: her Second

Amended Complaint and on appeal that DEA has

consistently refused to address, but Darnell addressed

with supporting evidence consisting of declaration,

deposition, emails, timesheets, and other documentary

evidence, is Darnell’s employment status, independent

contractor versus employee issue. Petition at 2-3. Darnell

Deposition ROA.1399.

The next concern identified in the DOJ-OIG audit

report was whether contract personnel were improperly

classified as independent contractors rather than

employees Jd. at Executive Summary (i). Specifically,

the independent contractors (in audit report referred to

as contract personnel) provided services comparable to

services performed by other employees, such as serving

as investigators who meaningfully supported missioncritical DEA activities. Id. at 26. Some DEA employees

also directly supervised and guided contract personnel.

Id. at 16. Independent contractors largely did not report

having other current or ongoing financial investigation’s

business activities separate or discernable from Maximus

or PRM. Id. at 24. In response to a draft of OIG’s audit

report, PRM advised that it reclassified as an employee

except one, all independent contractors. Jd. at 26.

Darnell, aretired IRS Supervisory Special Agent with

34 years of financial investigative experience was hired

7

by PRM as an independent contractor to work for DEA.

Despite Petitioner’s independent contractor status, DEA

put her in the status of an employee by assigning her to

a grand jury investigation with $17,000,000 in currency

transactions, 31 targets and more than 30 bank accounts to

analyze in avery short period of time before the execution

of search warrants. In accordance with Petitioner’s

employment contract, her DEA supervisor approved in

advance her request to work overtime additional hours

and her request for additional financial investigators

assistance. Petitioner worked hundreds of hours overtime

additional hours. Petitioner did not receive overtime

compensation, and no additional financial investigators

were assigned to the grand jury investigation. Petitioner

filed a lawsuit in the Southern District of Texas, Houston,

Texas Division based on sex and race. DEA had total

control and a lock on the comparative evidence Petitioner

needed to establish a prima facie case under McDonnell

Douglas. First, despite a Petitioner’s motions to compel

and motion for sanctions, DEA refused to provide to

Petitioner the race, sex, financial skills and senior financial

qualification of her replacement. In addition, whether her

replacement is a former DEA manager or DEA Special

Agent. Next, by DEA refusing to assign other financial

investigators to the grand jury, Petitioner did not have

anyone similarly situated on the grand jury. In essence,

this failure to assign financial investigative assistance was

one of Petitioner’s discriminatory claims against DEA.

On appeal, despite Darnell’s statement in her Fifth

Circuit brief that during this litigation that she was an

employee because DEA controlled 99 percent of her time,

assigned her to mission-critical grand jury work that

required overtime and the DEA job was her only fulltime job, the Fifth Circuit Court’s fact for its Order was

8

that “Darnell, a black woman, worked as an independent

contractor in the United States Drug Enforcement Agency

(DEA) in Jackson, Mississippi.” The district court’s Order

stated that to maintain her Title VII claims, Darnell must

“establish a prima facie case of discrimination.” Septimus

v. Univ. of Houston, 399 F.3d 601, 609 (Sth Cir. 2005). To

make this showing Darnell must show she “was replaced

by someone outside her protected class, or that other

similarly situated persons were treated more favorably.

Id. See also McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973). A2a.

Petitioner cites to Appendix filed with her Petition for Writ

of Certiorari.. Appellant’s Br., Darnell v. Dept. of Justice,

DEA et al, No. 23-20399 (5th Cir. November 29, 2023) 4.

CONCLUSION

To sum, based on the foregoing, Darnell prays that

the Court takes exception to the McDonnell Douglas

framework and use the traditional method by presenting

evidence that establishes that the case is strong enough

to avoid summary judgment and go to the jury.

Respectfully submitted,

EstTHer DARNELL

Petitioner Pro Se

11110 Sage Gale Drive

Houston, TX 77089

(832) 651-5226

edarnell2002@yahoo.com

February 6, 2025

9

CERTIFICATE OF GOOD FAITH

The undersigned hereby certifies that this Petition for

Rehearing is restricted to the grounds specified in Rule

44.2 of the Rules of the Supreme Court and is presented

in good faith and not for delay.

bit

Nes

EstHER DARNELL

Petitioner Pro Se

11110 Sage Gale Drive

Houston, TX 77089

(832) 651-5226

edarnell2002@yahoo.com

SUPREME COURT OF THE UNITED STATES

No. 24-603

Sn gla nice ec ses acina tenance X

ESTHER DARNELL,

Petitioner,

v.

DEPARTMENT OF JUSTICE, ET AL.,

Respondents,

i i i RS Ae SL Sis X

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I certify that the

document contains 1,944 words, excluding the parts of the document that

are exempted by Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and

correct.

Executed on this 7*" day of February, 2025.

Aner Fal

Ann Tosel

Sworn to and subscribed before me

on this 7t» day of February, 2025.

DWMari'cena Preylo v2b

MARIANA BRAYLOVSKIY

Notary Public State of New York

No. 01BR6004935

Qualified in Richmond County

Commission Expires March 30, 2026

AFFIDAVIT OF SERVICE

SUPREME COURT OF THE UNITED STATES

No. 24-603

vo ceennnvennececacncecnceoeeeceeeceececesncecereceeneeeeeeewuceeceeceeeeeeeeeeeeeeeneeceneeeeeeeeeeeeeee X

ESTHER DARNELL,

Petitioner,

v.

DEPARTMENT OF JUSTICE, ET AL.,

Respondents,

sottibebanDbcaatesiierscuisoutautcbueeeassistenasnicissia nia Rem REUR SETS DORaCUaSneESEAa US caNenesiNS X

STATE OF NEW YORK )

COUNTY OF NEW YORK )

I, Ann Tosel, being duly sworn according to law and being over the age

of 18, upon my oath depose and say that:

I am retained by Counsel of Record for Petitioners.

That on the 7‘» day of February, 2025, I served the within Petition for

Rehearing in the above-captioned matter upon:

Sarah M. Harris

Counsel of Record

Acting Solicitor General

United States Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

202-514-2217

supremectbriefs@usdoj.gov

by sending three copies of same, addressed to each individual respectively,

through Priority Mail.

That on the same date as above, I sent to this Court forty copies of the

within Petition for Rehearing and two hundred dollar filing fee ch chet sh 7) : D_

. . , =

the Overnight Next Day Federal Express, postage prepaid.

FEB 11 2025

OFFICE O

SUPRE HEME COUN ims

All parties required to be served have been served.

I declare under penalty of perjury that the foregoing is true and

correct.

Executed on this 7 day of February, 2025.

Ai Yee

Ann Tosel

Sworn to and subscribed before me

this 7+ day of February, 2025.

QWMarvcuna Praylo rab

MARIANA BRAYLOVSKIY

Notary Public State of New York

No. 01BR6004935

Qualified in Richmond County

Commission Expires March 30, 2026

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