# Petition — Falkowski v. Perry > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1681%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 446 U.S. 936 ## Text ee eto | FILED 4 "FEB 11 1980 f; coieneiemientasl r« IN THE | SEEL RODAK, JF MEERA | SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1979 —¥%9-1244 No. EVELYN FALKOWSKI, Petitioner, Vv. LOWELL PERRY, et al., EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondents. BERTRAM PERRY, Respondent, v. ALVIN GOLUB, et al., EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondents, and EVELYN FALKOWSKI, Petitioner. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT OweEN E. PERRY 3000 Town Center Suit 2121 Southfield, Michigan 488075 (313) 358-0004 Attorney for Evelyn Falkowski Washington D.C «+ THIEL PRESS «+ (202) 638-4521 oy ee () TABLE OF CONTENTS Fage EE 2 Be Matha a a & A wwe a 2 Te eee eee 3 er 3 REASONS FOR GRANTING THE WRIT............. 5 I. The Court of Appeals by Implication Distinguishes Between the Collateral Consequences of Criminal Convictions and Findings of Criminal Activity in a Civil Case Which Indicates the Law Is Unsettled ..... 5 II. Due Process Required That the Court of Appeals Either Review the District Court Findings, or at Minimum, Summarily Reverse These Findings To Restore the Status Quo Ante and Preserve Peti- er Se i a wk tect ee 9 EE EL 11 APPENDICES A through M......... Index follows Petition TABLE OF AUTHORITIES Cases: Baltimore and Ohio Railroad Co. v. Anchor Coal Com- es re et te tt we 10 Berger v. United States, 255 U.S. 22, 35-36 (1921) ....... 9 Connell v. Shoemaker, 555 F.2d 483 (5th Cir. a 6,7 Falkowski v. Lowell Perry, 464 F. Supp. 1016, N.D. RE EIS ST SC 29.4 Ginsberg v. State of New York, 390 U.S. 576 ee 5 Nicodemus v. Chrysler, 596 F.2d 152, 155 (6th Cir. Tr ee ge se ec ee ew ew 9 Perry v. Falkowski, C.A. 78-M-0935 (pending) ....4,5,7, 8,9 Perry v. Golub, 464 F. Supp. 1016, N.D. Ala. (1978) Sibron v. State of New York, 392 U.S. 40, 57 (1968) (ii) A St. Louis-San Francisco Railway Co. v. Railroad Yard Masters of America, 347 F.2d 983 (5th Cir. 1965) ...... 9 Street v. New York, 394 U.S. 576 (1969) .............. 5 South Spring Hill Gold Mining Co. v. Amador Gold Mening Co., 145 U.S. $00 (1892)... ec ee es 10 United States v. Hamburg-American S.S. Co., 239 U.S. OR ee ae as aka abe e Ge Aldo has 10 United States v. Schrimsher, 493 F.2d 842 (5th Cir. tc, CERT ES ee ee, We ee Oe ee ee 6,7, 8 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1979 No. EVELYN FALKOWSKI, Petitioner, v. LOWELL PERRY, et al., EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondents. BERTRAM PERRY, Respondent, v. ALVIN GOLUB, et al., EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondents, and EVELYN FALKOWSKI, Petitioner. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Evelyn Falkowski petitions for a writ of certiorari to review the judgments of the United States Court of Appeals for the Fifth Circuit in this case. ] 2 OPINIONS BELOW The opinion of the court of appeals of July 25, 1979 is unpublished, and appears at Petitioner’s Appendix B, and the court of appeals decision of October 24, 1979 denying rehearing appears at Petitioner’s Appendix A. The opinion of the district court of November 21, 1978 is reported at 464 F. Supp. 1016 and appears at Peti- tioner’s Appendix C. Related opinions in these consoli- dated cases include a district court opinion of September 11, 1975 reported at 400 F. Supp. 409 and appearing at Petitioner’s Appendix K, a district court opinion of November 30, 1976 reported at 74 F.R.D. 360 and appearing at Petitioner’s Appendix F, an unpublished court of appeals opinion of April 25, 1979 appearing at Petitioner’s Appendix E, and an unpublished court of appeals opinion of May 29, 1979 appearing at Peti- tioner’s Appendix D. In Perry v. Golub, et al., the defendants, at the time of filing, included Alvin Golub and Donald L. Hollowell, then, respectively, the Acting Executive Director and Southeastern Regional Director of the Equal Employ- ment Opportunity Commission (EEOC), and the Peti- tioner. In Falkowski v. Lowell Perry, et al., Lowell Perry was the then Chairman of the EEOC, and the other defendants include the Commissioners and other officials in the chain of command of the EEOC. JURISDICTION The judgment of the court of appeals (Pet. App. A) denying rehearing was entered on October 24, 1979. On January 9, 1980, Mr. Justice Powell extended the time for filing a petition for a writ of certiorari to and including February 11, 1980. The jurisdiction of this court is invoked under 28 U.S.C. 1254(1). 3 QUESTIONS PRESENTED 1. Since this court has established that a criminal case is moot only if it is shown that there is no possibility that any collateral !egal consequences will be imposed on the basis of the challenged conviction, Sibron v. State of New York, 392 U.S. 40, 57 (1968), can Petitioner be denied appellate review of district court findings imputing criminal activity to her in a civil case deter- mined otherwise to be moot, unless the court of appeals also makes a determination that no collateral legal consequences will be imposed on the basis of those findings? 2. When the court of appeals summarily disposed of Petitioner’s appeal as moot, did minimum due process requirements dictate that the court of appeals also summarily reverse all findings adverse to Petitioner for the purpose of restoring the status quo ante to protect Petitioner from collateral estoppel in related pending litigation and to mitigate other adverse collateral conse- quences to Petitioner? STATEMENT Perry v. Golub was commenced under 28 U.S.C. §§ 1343, 2202, 5 U.S.C. §§ 701, 706; 42 U.S.C. §§ 1981, 1985 and 1986 and the First Amendment to the U.S. Constitution. Falkowski v. Lowell Perry was commenced under 28 U.S.C. §§ 1343 and 1361; 5 U.S.C. §§ 702 and 704; 42 U.S.C. 2000(e) et seq:; 42 U.S.C. §§ 1981, 1983 and 1985. After the 1975 decision in Perry v. Golub (Petitioner’s Appendix K), Petitioner was involuntarily dismissed as a + defendant on Respondent Bertram Perry’s motion (Pet. App. G). When Petitioner filed Falkowski v. Lowell Perry, the cases were consolidated. The district court opinion (Pet. App. C) resulted from petitions by the Respondent EEOC to transfer Petitioner and Respondent Bertram, Perry from the Birmingham District Office (BIDO) of the EEOC. After consolidated hearings, the district court entered findings that Bertram Perry was a “whistle blower” for having brought to the attention of the U.S. attorney and others irregularities and mismanagement that imputed criminal activity to Petitioner. There has never been a trial on the merits or a full evidentiary hearing in either case. The district court entered orders granting EEOC’s petition as to Petitioner but not as to Bertram Perry. Petitioner was promptly demoted and transferred to Washington, D.C. The court of appeals, in summary disposition of the appeal, limited its action to merely vacating the district court’s orders on the grounds that the case was moot. It did not review the findings against Petitioner nor did it order that these findings be reversed to restore the status quo ante. It left the findings undisturbed exposing Petitioner to collateral estoppel in related pending litigation. Petitioner has been sued by Bertram Perry in a jury case, Perry v. Falkowski, et al., Civil Action No. 78-M-~ 0935-S; pending in the same district court seeking an award of damages against Petitioner based on the findings against Petitioner in the case at bar. Bertram Perry has indicated his intention to collaterally support his claims 5 in Perry v. Falkowski, et al. with the findings made in the case at bar. REASONS FOR GRANTING THE WRIT I, THE COURT OF APPEALS BY IMPLICATION DISTINGUISHES BETWEEN THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTIONS AND FINDINGS OF CRIMINAL ACTIVITY IN A CIVIL CASE WHICH INDICATES THE LAW IS UNSETTLED. In a series of cases, this court has established that a criminal case can be considered moot for purpose of appellate review only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction. Sibron v. State of New York, 392 U.S. 40, 57 (1968); Street v. New York, 394 U.S. 576 (1969); Ginsberg v. State of New York, 390 U.S. 629 (1968). These cases negated mootness even though sentence had been served because of collateral legal consequences, such as the use of the conviction to impeach character, impairment of credibility as a witness or party in future litigation, civil or criminal, the impairment of the ability to keep or obtain a license to conduct a chosen business, or to be employed in a chosen field. A delay in determining the effects should be avoided, Sibron, 393 U.S. at 56, 57: . the sooner the issue is fully litigated the better for all concerned. It is always preferable to litigate a matter when it is directly and principally in dispute, rather than in a proceeding where it is collateral to the central controversy. Moreover, litigation is better conducted when the dispute is 6 fresh and additional facts may, if necessary, be taken without a substantial risk that witnesses will die or memories fade. And it is far better to elimi- nate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State’s right to impose it on the basis of some past action. In the case at bar, the district court has made findings (Pet. App. C, pp. 7a, 15a-18a, and Pet App. K, pp. 59a- 69a, 76a) imputing criminal conduct to Petitioner in a civil case. The court of appeals (Pet. App. B) has left these findings undisturbed. The court of appeals declined to apply, to the case at bar, the principles of its prior decisions in Connell v. Shoemaker, 555 F.2d 483 (5th Cir. 1977), and United States v. Schrimsher (In re Butts), 493 F.2d 842 (5th Cir. 1974). In Connell, the U.S. Army determined that a complaint of racial discrimination in housing had been sustained with respect to certain rental apartments and sanctioned the owner by prohibiting military personnel stationed at Fort Hood from entering leases for his apart- ments for a period of 180 days. The owner, Connell, filed suit, but when the 180 day period expired, the district court dismissed the case as moot. The court of appeals reversed, 555 F.2d at 486: - we view the continuing practical consequences of the Army’s determination of discrimination as sufficient to negate mootness. Appellants have interests in various businesses engaged in retail sales of goods and services directly to the public in the area adjacent to Fort Hood. Since a favorable public image is vital to the success of such enter- prises, the imputation of bigotry implicit in the Army's widely publicized sanctions against Appel- 7 lant could not but harm their reputations and, concomitantly, their livelihoods with clientele both black and white. Additionally, Appellant Ted Connell has various local, civil and elective political positions; whatever such aspirations he might yet harbor have almost certainly been undercut by the same stigma. The court in Connell also discussed its prior decision in Schrimsher, supra, in which a lawyer was summarily sentenced for criminal contempt to confinement in jail for 1% hours during a trial. In Schrimsher, the court ruled that the existence of potential collateral conse- quences, such as the possibility of harm to the attomey’s practice of law and to his opportunities for appointment to the bench or election to political office are sufficient reasons to negate mootness. The court stated ‘‘Although the present case [Connell] does not involve a criminal conviction, we view the collateral consequences in the two cases as analogous.” In the case at bar, the court of appeals, by implication or default, distinguishes between cases where a person has been convicted of criminal activity, and civil cases in which a party is found to be guilty of criminal conduct. The law appears to be unsettled, insofar as the court of appeals below is concerned, although Petitioner finds it difficult to distinguish the collateral legal and practical consequences imposed on Petitioner by the district court findings from those found to exist in Connell and Schrimsher. Immediate collateral legal consequences will be faced by Petitioner in Perry v. Falkowshki, et al., supra, pending in the same district court. Petitioner is faced with the immediate problem of whether the findings of criminal conduct on her part in the case at bar can be used as 8 evidence in Perry v. Falkowski, et al. either to rebut character evidence adduced by Petitioner, for impeach- ment, to establish facts, or to raise presumptions or inferences adverse to Petitioner. Furthermore, Petitioner is a lawyer, and is exposed to the same or greater disabilities than those that concerned the court in Schrimsher. She has been found by the district court, to be guilty, not of contempt, but of crimes of moral turpitude—of purposely failing concilia- tion of cases in order to increase the business of attorneys friendly to her. She has had a distinguished career as an administrator with EEOC, but the findings below have resulted in her demotion and transfer. Petitioner is also faced with adverse collateral conse- quences from the gratuitous references in the opinion to Petitioner as “a raving maniac” and a “wild screaming woman in a fit of hysteria” (Pet. App. C, pp. 13a-14a). Indeed, Petitioner and her family, long-time residents of Birmingham, have already been subjected to public scorn and ridicule by the front page publicity given to the district court opinion.! The official reports of the decision stand as a barrier to further assignment of lThe Birmingham News, November 22, 1978 carried a front page headline “U.S. Judge: EEOC Retaliated Against City ‘Whistle Blower’ and Ignored Incompetence”’. The ensuing article then quoted at length from the district court’s opinion (Pet. App. C, pg. 7a) stating that Bertram Perry was found to be a whistle blower for exposing irregularities in the Birmingham office to the U.S. Attorney, that the court said EEOC may seek disciplinary action and try to transfer the director of the Birmingham office, Mrs. Evelyn Falkowski, that the “order characterizes some of her behavior as ‘the fit of a raving maniac,” and quotes the district judge: “It is frightening to think that the Civil Service Board would discipline an employee for countermand- ing the orders of a wild, screaming woman in a fit of hysteria.” 9 Petitioner as an administrator, or to any promotion. Her ability to successfully litigate the related case, Perry uv. Falkowshi, et al., has been impaired; she will stand before the jury judicially branded as a “raving maniac” and a “wild screaming woman”.? DUE PROCESS REQUIRED THAT THE COURT OF APPEALS EITHER REVIEW THE DISTRICT COURT FINDINGS, OR AT MINIMUM, SUMMAR- ILY REVERSE THESE FINDINGS TO RESTORE THE STATUS QUO ANTE AND PRESERVE PETI- TIONER’S RIGHTS. An appellate court determination that a case is moot requiring dismissal of lower court judgments, without more, does not suggest that the appellate court deter- mines the propriety of findings made by the lower court, St. Louts-San Francisco Railway Co. v. Railroad Yard Masters of America, 347 F.2d 983 (5th Cir. 1965). In disposing of lower court judgments of a case considered moot, the appellate court should determine what its order with respect to the district court opinion should be on the basis of “what will ‘be most consonant to justice’ in view of the conditions and circumstances ?This court has firmly established that appellate courts be particularly sensitive to suggestions of lack of impartiality. Berger v. United States, 255 U.S. 22, 35-36 (1921): ‘“. .. [T]ribunals of the country shall not only be impartial in the controversies submitted to them but shall give assurance that they are impartial ... .” The sixth circuit court of appeals recognized this principle recently in reversing a district court opinion because the district judge used language against one of the parties which is mild in comparison to that used in the case at bar. Nicodemus v. Chrysler, 596 F.2d 152, 155 (6th Cir. 1979). 10 of the particular case,’ United States v. Hamburg- American S.S. Co., 239 U.S. 466, 478 (1915). When a case on appeal has become moot, the action of the appellate court must “dispose of the cause, not merely of the appellate proceedings which brought it here’, Baltimore and Ohio Railroad Co. v. Anchor Coal Company, 279 U.S. 812 (1928). Even though a case has become moot, the judgment of the district court must be reversed and remanded to allow further proceedings if necessary to preserve the rights of all interested parties, South Sprng Hill Gold Mining Co. v. Amador Gold Mining Co., 145 U.S. 300 (1892). Fairness requires that, at minimum, an appellate court’s order with respect to a moot case restore the status quo to preserve the rights of the parties. Funda- mental principles of due process require that a court of appeals either subject findings adverse to a party to appellate review on the merits, or at least summarily reverse any such findings, without prejudice, to preserve the rights of the parties. It is fundamentally unfair to shield findings of criminal activity from both appellate review and summary reversal by a determination that the case is moot. 1] CONCLUSION This Petition should be granted for the reasons speci- fied in Rule 19(1)(b) of this court. Respectfully submitted, OwEN E. PERRY 3000 Town Center Suit 212] Southfield, Michigan 488075 (313) 358-0004 Attorney for Evelyn Falkowski APPENDIX (7) Petitioner’s Appendix TABLE OF CONTENTS Appendix A: Denial of Rehearing, October 24, 1979, U.S. Court of Appeals, Fifth Circuit: Falkowski v. Lowell Perry and Perry v. Golub .............05. Appendix B: Decision (unpublished) July 25, 1979, U.S. Court of Appeals, Fifth Circuit, vacating district court opinion to extent lower court enjoined EEOC ....... Appendix C: Decision (464 F. Supp. 1016) November 21, 1978, United States District Court of the Northern District of Alabama, S.D. pursuant to retention of jurisdiction in Falkowski v. Lowell Perry and Perry v. Golub, previously dismissed as moot without full evi- dentiary hearings (Apps. F and I) ws............. Appendix D: Denial of Rehearing, May 29, 1979, U.S. Court of Appeals, Fifth Circuit, on Decision Affirming Mootness and Vacating Retention of Jurisdiction by CE EIR DB LM gs ae Oe ne en Appendix E: Decision (unpublished) April 25, 1979, U.S. Court of Appeals, Fifth Circuit, vacating underlying proceedings and retentions of jurisdiction (prior to hearing appeal on decision referenced in Appendix C) in Perry v. Golub and Falkowski v. Lowell Perry ..... Appendix F: Decision (74 Federal Rules Decisions 360) November 30, 1976, U.S. District Court, Northern District of Alabama, S.D., in Perry v. Golub (enjoin- ing EEOC from the action against Perry, sanctioning EEOC, and dismissing case as moot without full I ole ee ase bye Se Cale Appendix G: Order entered November 23, 1976, by the U.S. District Court, Northern District of Alabama, dismissing Falkowski as a party in Perry v. Golub ai as ele wa Miere Aa) b'e wa ees Appendix H: Denial of Motion to Reconsider, J anu- ary 14, 1977, dismissal of Evelyn Falkowski as a party defendant in Perry v. Golub, by US. Ra i FRA ee gr ee oa (ii) la Page Appendix I: Decision (unpublished) November 30, 1976, ca APPENDIX A U.S. District Court of the Northern District of Ala- bama, S.D., dismissing Falkowski v. Lowell Perry as UNITED STATES COURT OF APPEALS moot, without full evidentiary hearing ......7°...... 52a FIFTH CIRCUIT Appendix J: Order of April 1, 1977, U.S. District Court of the Northern District of Alabama, S.D., granting OFFICE OF THE CLERK ree > Falkowski motion and retaining jurisdiction in Fa/- October 24, 1979 kowski v. Lowell Perry, as done in Perry v. Golub Tel. 504-589-6514 at time of November 30, 1976 decisions (Apps. Gilbert F. Ganucheau 600 Camp Street fet REE TR PO ee Gg et ee oe 56a Clerk New Orleans, La. 70130 Appendix K: Preliminary Hearing Findings of Fact and (Filed: Oct. 29, 1979] Conclusions of Law, entered September 11, 1975, by U.S. District Court of the Northern District of Ala- TO ALL PARTIES LISTED BELOW: bama, S.D. in Perry v. Golub, published 400 F. Supp. 411 PE 2 ee Se Ee Cee, eat as ee a ee 58a No. 78-3716—Evelyn Falkowski Vv. Lowell Perry, et al. Appendix L: Consent Order entered September 9, 1974, in Falkowski v. EEOC, CA No. 73P 1109 (Evelyn Fal- a ee kowski vs. John H. Powell, Jr., Chairman, Equal Em- a ; ployment Opportunity Commission) .............. 8la This is to advise that an order has this day been entered Appendix M: Constitutional and Statutory Provisions denying the petitioner ( ) for rehearing, and no member Involved: of the panel nor Judge in regular active service on the Amendments I and V, U.S. Constitution. ......... 83a Court having requested that the Court be polled on Section 1981, Civil Rights Act of 1866, U.S.C. rehearing en banc (Rule 35, Federal Rules of Appellate Bk Pe iy tre oo hs Sait 83a Procedure; Local Fifth Circuit Rule 16) the petition( ) Title VII, Civil Rights Act of 1964, as amended for rehearing en banc has also been denied. in 1972, Sections 703, 704, and 717, U.S.C. See Rule 41, Federal Rules of Appellate Procedure Title 42, 2000e-2(a), 3(a), and 16(a) and (c). for ; d stay of the mandate (Amendment providing recourse to federal em- ee ee ; ployets unter Tithe VIR) os kc ee 84a Very truly yours, Gilbert F. Ganucheau, Clerk cc: Ms. Margaret A. Beller By /s/ Sally Hayward Ms. Evelyn Falkowski Deputy Clerk Mr. Owen E. Perry Ms. Vella M. Fink Mr. William F. Gardner 2a APPENDIX B DO NOT PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 78-3716 Summary Calendar * EVELYN FALKOWSKI, Plaintiff-Appfellant, v. LOWELL PERRY, ETC., ET AL., Defendants-A ppellees, * * * BERTRAM PERRY, Plaintiff-Appellee, v. ALVIN GOLUB, ET AL., Defendants-Appellees-Appellants, and EVELYN FALKOWSKI, Defendant-Appellant. *Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I. 3a Appeals from the United States District Court for the Northern District of Alabama July 25, 1979 Before CLARK, GEE and HILL, Circuit Judges. PER CURIAM: A brief recital of the underlying facts in these con- solidated cases will facilitate an understanding of the disposition of the appeal before us. Mrs. Falkowski was the District Director of the Jack- son, Mississippi, District Office of the Equal Employment Opportunity Commission (EEOC) before November 4, 1974. Unable to secure a lateral transfer to the Birming- ham, Alabama, District Office (BIDO), she filed suit against her employer, alleging discrimination. That case was amicably settled, the EEOC agreeing to give serious consideration to Mrs. Falkowski’s application for transfer, and a consent decree consistent with the agreement was entered. As a result of that agreement and consent decree, Mrs. Falkowski was, on November 4, 1974, trans- ferred to her present position as District Director of the BIDO. On Apmil 19, 1976, however, Mrs. Falkowski filed an action alleging that the defendants had failed to abide by the consent decree and were retaliating against her for bringing the prior action by refusing her the administra- tive support that was necessary for her to operate the BIDO effectively. On November 30, 1976, the district court dismissed the complaint without prejudice on account of mootness, but retained jurisdiction of the case 4a so that any proposal to remove Mrs. Falkowski from her position required approval upon petition to the district court. Mr. Perry has been with the BIDO since 1968 and has been Deputy Director of that office since 1972. On August 15, 1975, Mr. Perry received notice that he was being ‘‘detailed” to Washington, D.C., effective August 25, 1975. He brought an action on August 18, 1975, seeking to enjoin the detail.’ The district court issued a preliminary injunction prohibiting the defendants from removing Mr. Perry from his position, based upon a finding that the “detail” was initiated largely as a result of the EEOC’s attempts to suppress Mr. Perry’s continual and outspoken protests of the BIDO’s mismanagement and that the proposed “detail” was, in reality, a transfer from the BIDO. Perry v. Golub, 400 F.Supp. 409 (N.D. Ala. 1975). The preliminary injunction was dissolved on November 30, 1976, before the case was tried, on account of mootness, there then being no attempt to transfer Mr. Perry. The district court retained jurisdic- tion of the case to protect Mr. Perry from retaliation so that any attempt to remove Mr. Perry from his position required approval upon petition to the district court. Perry v. Golub, 74 F.R.D. 360 (N.D. Ala. 1976). The conflict in the BIDO between Mrs. Falkowski and Mr. Perry raged on, however, and on November py BOE de seeking to process adverse action against both Mrs. Falkowski and Mr. Perry, the EEOC filed petitions with the district court, requesting permission to process adverse action against the complainants or, in the alterna- tive, dissolution of the injunction. The district court denied the application to sanction Mr. Perry and granted the petition to sanction Mrs. Falkowski, thus holding that adverse action against Mr. Perry without the district 5a court’s approval would violate the terms of the earlier order. In the meantime, the EEOC had filed an appeal from the earlier order. On April 25, 1979, a panel for this Court decided that appeal. The decision affirmed the district court’s initial dismissal of Mrs. Falkowski’s and Mr. Perry’s actions without prejudice on account of mootness and specifically held that the other orders, including the orders requiring the EEOC to seek the court’s permission before altering the status of the com- plaining parties, were void for want of jurisdiction. The appeal before us now is from the orders issued in response to petitions which were apparently required by void orders. To the extent that the district court’s orders, the subjects of this appeal, may be construed as orders continuing the injunctive features of the void orders of November 30, 1976, those judgments are summarily vacated. VACATED. 6a APPENDIX C UNITED STATES DISTRICT COURT N.D. ALABAMA, S.D. Civ. A. Nos. 76-G-0545-S, 75-G-1476-S Evelyn FALKOWSKI, Plaintiff, v. Lowell PERRY, Chairman of the Equal Employment Opportunity Commission, et al., Plaintiff, Nov. 21, 1978 v. Alvin GOLUB, et ai., MEMORANDUM OPINION GUIN, District Judge. These consolidated cases are before the court on de- fendants’ amended petitions for approval to propose to the Civil Service Board that adverse action be taken against plaintiffs. Plaintiff Falkowski is the Director of the Birmingham District Office of the Equal Employment Opportunity Commission (BIDO). Plaintiff Perry is the Deputy Director of that office. Defendants are officials of the Equal Employment Opportunity Commission (EEOC). Mrs. Falkowski, before-November 4, 1974, was the District Director of the Jackson, Mississippi, District Of- fice. Unable to get a lateral transfer to Birmingham, she filed suit against her employer, alleging sex discrimina- 7a tion. That case was amicably settled, the EEOC agreeing to give serious consideration to Mrs. Falkowski’s applica- tion for transfer, and a consent decree consistent with the agreement was entered. As a result of that agreement and the consent decree, Mrs. Falkowski was, on November 4. 1974, transferred to her present position as District Director of the BIDO. The peace thus made was short lived. On April 19, 1976, Mrs. Falkowski filed the present action alleging that defendants had failed to abide by the consent decree and were retaliating against her for bringing the prior ac- tion, by failing to give her the administrative support that she required to run the BIDO effectively. By this court’s order and an amendment thereto, the complaint was dis- missed without prejudice, the court retaining jurisdiction of the case so that any proposal to remove Mrs. Falkow- ski from her position must be approved upon petition to this court. Mr. Perry has been with the BIDO since 1968 and has been Deputy Director of that office since 1972. On Aug- ust 15, 1975, Mr. Perry received notice that he was being “detailed” to Washington, D.C., effective August 25, 1975, ten days later. He then brought this action on August 18, 1975, seeking to enjoin the detail. At the pre- liminary injunction hearing, he established that the “‘de- tail” was initiated largely as a result of the EEOC’s at- tempts to suppress his continual and outspoken protests of the BIDO’s mismanagement, made to the Regional Director, the U.S. Attorney, and members of the public. The proposed “detail” was found to be, in reality, a transfer from the BIDO. Mr. Perry would have worked in Washington temporarily, but would have returned to work in an office other than the BIDO. Accordingly, this court issued a preliminary injunction prohibiting defend. ants from removing Mr. Perry from his position. Perry i Golub, 400 F. Supp. 409 (N.D. Ala. 1975). 8a Before the case was tried, defendants petitioned for dissolution of the preliminary injunction and for permis- sion to process adverse action against Mr. Perry. The peti- tion was stricken for defendants’ failure to comply with discovery orders. The preliminary injunction, however, was dissolved because there was no reason for its con- tinued effect, there then being no attempt to transfer Mr. Perry. The court retained jurisdiction of the case to pro- tect Mr. Perry from retaliation to the extent that any at- tempt to remove Mr. Perry from his position must be approved upon petition to this court. Perry v. Golub, 74 « F.R.D. 360 (N.D. Ala. 1976). On November 7, 1977, the defendants filed petitions to proceed against both plaintiffs before the Civil Service Board, there to seek their removal. Defendants later amended their petitions to pray for permission to seek plaintiffs’ mere transfers to Washington to jobs with less prestige and responsibility but with the same pay. The issue before the court in both cases, thus, is whether the proposed adverse actions are motivated by retaliation. The present actions are the culmination of a long- standing feud between Mrs. Falkowski and Mr. Perry. For almost fou. years, they have cursed, slandered, pushed, backbitten, and thrown wads of paper at one another. They have quarreled frequently in the presence of the public, charging parties, and employees of the BIDO. The proposed notice of Mr. Perry’s removal enumer- ates six reasons and sixteen specifications; that of Mrs. Falkowski’s removal, twelve reasons and forty-one speci- fications. The charges against Mr. Perry are based prin- cipally upon his feuding with Mrs. Falkowski. The char- ges against Mrs. Falkowski are based upon her feuding with Mr. Perry and on her mismanagement of the BIDO. 9a Both plaintiffs are charged with improprieties regard- ing two principal confrontations. One occurred about 4:20 P.M. on July 18, 1977; the other at about 2:00 P.M. on October 17 of that year. Mr. Perry had, on July 15, 1977, reprimanded an em- ployee. On July 18, Mrs. Falkowski had a letter to Mr. Perry typed up criticizing his reprimand and left the let- ter on her desk during the day in a sealed envelope with his name on it. That afternoon, Mr. Perry saw the enve- lope and inquired as to its contents. Mrs. Falkowski refused to let him see it until shortly before 4:20 P.M., when she delivered it to his secretary. Upon reading the letter, Mr. Perry, as expected, lost his temper. Anticipat- ing Mr. Perry’s outrage,! and in need of material on which to base an adverse action proceeding against Mr. Perry, Mrs. Falkowski returned to her office, turned on a tape recorder concealed in her purse, and awaited the angry Perry’s arrival. She did not wait long. Mr. Perry, as anticipated, burst into Mrs. Falkowski’s office, uttering a scream of obscen- ities that would curl a sailor’s hair. During the confronta- tion, an employee approached Mrs. Falkowski’s office and was ordered away by Mr. Perry. The verbal affrav finally ended upon the arrival of the building security guard. Mr. Perry is charged with using abusive language towards Mrs. Falkowski, engaging in the altercation, and usurping Mrs. Falkowski’s authority in ordering the em- ployee away from her office. Mrs. Falkowski is charged with provoking Mr. Perry into the exchange, and with ! (Understandable and justified, under all the circumstances, in the court’s opinion.) 10a recording the altercation without Mr. Perry’s permission, in violation of EEOC Order No. 165, Paragraph 6 (b).? On October 17, 1977, Mr. Perry and some other em- ployees were “sanitizing” copies of EEOC records, mark- ing out and making illegible the names of charging parties before the copies were delivered to a party to a lawsuit, in compliance with discovery rules. Mrs. Falkowski entered the office, assumed that Mr. Perry and the other employees were marking out names on the original records, and went into hysterics. Mr. Perry tried to explain to her that the documents were not orig- inals, but was unable to do so. Mrs. Falkowski ordered the employees to stop marking out names and attempted to collect the records from the employees’ desks. Mr. Perry instructed the employees to continue the sanitizing, countermanding Mrs. Falkowski’s instructions. Mrs. Fal- kowski went about collecting the copies and shouting, “‘ am in charge.” She then told Mr. Pugh, a supervisor, that she was appointing him Acting Deputy Director. Mr. Perry is charged, in connection with this incident, with unprofessional conduct in having participated in the exchange. Mrs. Falkowski, for her part, is charged with unprofessional conduct, poor judgment, and mismanage- ment. On july 25, 1977, Mr. Jeffrey issued written warnings to Mr. Perry and Mrs. Falkowski. The grounds for Mr. Perry’s warning were conduct prejudicial to the govern- ment, the use of abusive language, and maintaining low - “Recording of statement made in person: Manual vertaim transcripts or the use of electronic or mechanical recording devices in hearings, meetings, interviews, and conversations are authorized only when advance notification is given to all participants that the recording or transcription will occur.” lla morale. The grounds for Mrs. Falkowski’s warning were conduct prejudicial to the government, indecisive leader- ship, poor management practices, poor judgment in communications, unwillingness or inability to interact or relate, and maintaining low morale. Double punishment for the same offense is violative of the procedures set forth in the Federal Personnel Man- ual. Under EEOC Order No. 572, revised September 20, 1976, a letter of warning is a form of discipline. There- fore, any activities made grounds for the July 25, 1977, letters of warning could not properly be made grounds for the proposed adverse actions. Though, at one point, the Federal Personnel Manual apparently contemplates that letters of warning and ad- verse actions may be grounded upon the same offenses, the EEOC’s practice has been not to subject its employ- ees to double discipline. In fact, there is only one other case in which the EEOC has proposed adverse action on grounds previously made the basis of other discipline.* There, the Civil Service Commission refused to allow the employee to be subjected to double jeopardy. Mr. Jeffrey was notified of the confrontation of July 18, 1977, on July 21, 1977. He did not, however, learn that Mrs. Falkowski had tape recorded the spat until mid- August. Mr. Perry was punished for his part in the July 18 incident by the July 25 letter of warning. Mrs. Fal- Section $3-2b (1) of that document reads, in part: “Under the same reasoning, the Commission has found that agency adverse actions were not warranted where the employee had been previ- ously disciplined for the same offense. 4 Clarence Weahkee, Federal Employee Appeals Authority, United States Civil Service Commission, Dallas Field Office, Dallas, Texas (Decision dated May 6, 1976). 12a kowski was not, on the other hand, punished for tape recording the incident in violation of EEOC Order No. 165 by her July 25 letter. That letter did not purport to be based on her illicit recording, and Mr. Jeffrey was not even aware of the tape recording at the time he issued the letter. All of the grounds of the proposed adverse action were als grounds for the July 25 letters of warning except, in Mr. Perry’s case, those involving the October incident, and in Mrs. Falkowski’s case, those arising from the October incident and her tape recording of the July 18 incident. These are the only grounds, therefore, on which adverse actions may be based. The court finds that, though the decision to process adverse action against Mr. Perry was motivated by retalia- tion, the decision to proceed against Mrs. Falkowski was not retaliatory. Mrs. Falkowski claims that the present proposal is in retaliation for bringing suit in 1974 to obtain a transfer to Birmingham and for bringing the present action. Retaliation is made an unlawful employment practice by 42 U.S.C. §2000e-3 (a). To show that the proposed adverse action is improper, Mrs. Falkowski would have to show only that retaliation for engaging in protected activ- ity was a factor in the decision to proceed against her. United States v. Hayes International Corporation, 7 E.P.D. § 9164 (N.D. Ala. 1973), affirmed per curiam 507 F.2d 1279 (5th Cir. 1975); EEOC Compliance Manual, Paragraph 491.5 (4). To make out a prima facie case of retaliation, she must show that the attempted discipline followed protected activities of which her employer was aware, and, absent other evidence of retaliation, that the attempted discipline followed the protected activities 13a closely enough in time to justify the inference of retalia- tory motivation. The burden would then shift to the EEOC to show legitimate nondiscriminatory reasons for the discipline. Aguirre v. Chula Vista Sanitary Service, 542 F.2d 779 (9th Cir. 1976); Grant v. Bethlehem Steel Corporation, C.A. No. 76-Civ. 847 (S.D. N.Y. 1977); Hochstadt v. Worchester Foundation, 425 F. Supp. 318 (D. Mass. 1976). Mrs. Falkowski failed to make out a prima facie case. Though she engaged in protected activity and was subse- quently disciplined, the present adverse action did not so closely follow her protected activity as to justify an in- ference, without more, of causation. Neither has other evidence established a retaliatory motive. Mrs. Falkowski made much ado at the hearing about the EEOC’s failure to process properly the numerous grievances she filed against Mr. Perry. The EEOC’s shortcomings in this regard are a mere side issue, not evidence of retaliation. The agency acted, though not in accordance with its regula- tions, in an understandably human way which was not in the least retaliatory. Even if Mrs. Falkowski had made out a prima facie case of retaliation, still she would not have prevailed. The reasons for the proposed adverse action are legitimate and nondiscriminatory. Tape recording Mr. Perry’s outburst without his permission was a clear violation of EEOC Order No. 165. Though it may have been, at best, an at- tempt, born of desperation and conceived of righteous- ness, to trap her constant rival, it was yet a violation of agency regulations which the EEOC has the right to vin- dicate. Her behavior on October 17 is better character- ized as the fit of a raving maniac than the reasonable re- action of a competent district office director to a reason- able mistake. Again, the EEOC has the right to censure | l4a such behavior, and its attempt to do so in the instant case is both legitimate and non-discriminatory. Mr. Perry’s, on the other hand, is a different case. He claims that the present petition is in retaliation for his bringing this action and for his vocal objection to the BIDO’s lack of management. The court agrees with him. The only basis proposed for the adverse action against Mr. Perry which the EEOC could technically raise is his part in the October 17 sanitizing incident. This charge boils down to nothing. It is frightening to think that the Civil Service Board would discipline an employee for countermanding the orders of a wild, screaming woman in a fit of hysteria. The very frivolity of this charge be- speaks the improper motivation behind it. During the hearing on the present petitions, an offer of proof was made of a transcript of the July 18 tape re- cording, and the contents thereof. Mr. Perry objected to the introduction of the evidence, and the court reserved ruling on its admissibility. For two reasons, the court now holds that the evidence is irrelevant to Mr. Perry’s case, and, therefore, inadmissible: first, the EEOC may not proceed against Mr. Perry for his part in the July 18 incident; and, second, even if the EEOC could proceed against Mr. Perry for his part in the July 18 incident, the tape recording and the fruits thereof would not be admis- sible at that hearing. Mrs. Falkowski, in taping the conversation with the admitted purpose of obtaining evidence on which to base an adverse action against Mr. Perry, was acting in her ca- pacity as agent for the EEOC and in clear violation of EEOC Order No. 165, Paragraph 6 (b). The EEOC cannot take advantage of its own wrongdoing. The EEOC Com- pliance Manual, §494.3, prohibits use, in its own case 15a processing, of evidence obtained by improper means. This principle is a sound one from which the EEOC will not be allowed to deviate. The transcript would not be admiss- ible against Mr. Perry at the administrative level, and is therefore irrelevant to this petition to proceed against him. Knoll Associates, Inc. v. FTC, 397 F.2d 530 (7th Cir. 1968); EEOC v. Red Arrow, 392 F. Supp. 64 (E.D. Mo. 1974). Defendants cite United States v. Janis, 428 U.S. 433, 96S. Ct. 3021, 49 L.Ed. 2d 1046 (1976), for the general proposition that the taint of illegal procurement does not prevent evidence’s admissibility in a civil setting. Though the Janis doctrine is undeniably the law, it has no appli- cation to the present proceedings. Janis upheld a tax assessment based on illegally seized evidence. The Su- preme Court took pains to point out, however, that its holding was premised on the absence of federal participa- tion in the seizure. In the present case, however, Mrs. Falkowski was acting in her capacity as agent for the EEOC, providing the essential element of federal partici- pation. The doctrine that the federal government should not be permitted to avail itself of its own wrongdoing is yet good law. The evidence is overwhelming that the proposed ad- verse action against Mr. Perry is in retaliation for the ex- ercise of his first amendment rights. Mr. Perry’s obtaining the preliminary injunction in the instant case was an embarrassment to the EEOC, as well it should have been. Mr. Golub testified to that effect and to the effect that it was embarrassing to him persenally. The court is impressed by the similarity of the Com- mission’s treatment of Mr. Perry and that of one Jim Nunes. Mr. Nunes conducted an audit of the EEOC in ~ l6a which he recommended the removal of Mr. Golub. Mr. Nunes was thereafter transferred from a field office to the Office of Systemic Programs in headquarters in Wash- ington. Mr. Golub testified, with unmistakable satisfac- tion, that Mr. Nunes was a GS-14 before he was transfer- red and has not since been promoted. Ronald Dickerson, a supervisor in the Office of Government Employment in headquarters, testified, in deposition, that Mr. Golub stated that Mr. Perry was “‘aggressive or forward for a black man.” Though Mr. Golub denied making the state- ment, the court finds the testimony of Mr. Dickerson more credible. The court did not hear Dickerson person- ally, but did so hear the testimony of Golub. The treatment Mr. Perry has received is typical of that of instances documented in ‘The Whistle Blowers” report. The report found that “employees who have exposed governmental waste and abuse have been fired, trans- ferred, reprimanded, denied promotions, riffed, or har- rassed through the misuse of formal discipline proce- dures.””? Though Mr. Golub testified that he decided to remove himself from the BIDO situation, the evidence dis- closes that his removal was more apparent than real and raises the inference that it was he, or someone at his in- stance, who decided to process the instant adverse action against Mr. Perry, and that it was not Mr. Jeffrey as the defendants would have the court believe. The decision to process the proposed adverse actions was based in large part upon the results of an investiga- tion of the BIDO made by Mr. Krueger and Ms. Garcia. °The Whistle Blowers — A Report on Federal Employees Who Disclose Acts of Governmental Waste, Abuse and Corruption, page 1 (Senate Committee on Governmental Affairs, 95th Congress, 2nd Session, February 1978). 17a These two were selected by James Packwood and Cora Dixon, Mr. Golub’s assistants. Mr. Packwood attended the Chicago meeting at which the Krueger-Garcia investi- gation was planned. Both Mr. Krueger and Ms. Garcia were advised of the proposed investigation by head- quarters in Washington, not by Mr. Jeffrey. When the in- vestigation was complete, the report was delivered to Mr. Jeffrey in Washington; both Packwood and Dixon were present at the delivery. Mr. Jeffrey testified that he read only the first of the four volumes comprising the report. Mr. Golub, on at least one occasion, personally called Mr. Krueger to inquire about the investigation. Mr. Golub later presided at the May 1978 meeting where the deci- sion to propose a transfer instead of a removal was made. Mr. Jeffrey’s file was devoid of drafts and other materials that would have been present had he drafted the pro- posed adverse action. Mr. Jeffrey even testified that he didn’t know when the decision to discharge Mr. Perry was made and that the adverse action was typed in Washing- ton prior to the October meeting at which Mr. Jeffrey learned of the decision to proceed against Mr. Perry. Further, it is undisputed that Mr. Golub issued instruc- tions to personnel in headquarters not to inform Mr. Perry of the activities occurring there. It is obvious that Mr. Jeffrey did not make the decision to proceed against Mr. Perry, and it is equally obvious that it was Mr. Golub who made the decision. The only plausible reason that defendants would try to hide the origin of the proposed adverse action is that it would be easier to hide the retaliatory motive behind it if it looked as if it had come from Mr. Jeffrey instead of Mr. Golub. On February 25, 1977, Maxine Cade, the Director of EEOC’s own EEO office, issued a proposed disposition of Mr. Perry’s complaints of discrimination and reprisal. The 18a proposed disposition found that, while Mr. Perry had not been discriminated against on the basis of race or sex, he had been subjected to retaliation by the EEOC on ac- count of his protests of mismanagment.°® If the EEOC were concerned, as the proposed adverse actions would indicate, with promoting the efficiency of the service, then it would, logically, have investigated the finding of retaliation further. Instead, the proposed deci- sion was rescinded after what Mr. Golub’s answers to interrogatories characterize as his ‘discussions among a group of persons.” This was the first time in the history of the EEOC that a proposed decision was rescinded. In every prior case, the proposed decision was adopted as final. The Executive Director’s Office’s review of the decision was also novel. Despite the rescission, Ms. Cade, on September 30, 1977, adopted the proposed disposi- tion as the ageucy’s final decision under her authority as director of the office and pursuant to EEOC Order No. 577, which gives her such authority. The decision was final but a short while. On November 30, 1977, after Mr. Perry relied upon the finding of retaliation in defense of the present petition, headquarters withdrew the decision. Despite the fact that the Civil Service Commission’s regu- lations provide that an EEO complaint shall be processed before 180 days after it is filed,’ Mr. Perry’s case before the EEOC’s EEO office remains, to this day, unresolved. That proposed dispositian contained the following language: “Much of your protests regarding the definition of your duties, the work assignments given you, and your concern about irregularities in the Birmingham District Office are valid and are recognized as such by the Equal Employment Opportunity Commission.” * * * “The investigation and evidence of record shows that your protests resulted in a decision made by a person or several persons to re- move you from your position as Deputy Director of the Birming- [footnote continued] 19a By EEOC Order No. 572, each employee is to be given an annual performance appraisal. Until Mr. Perry went to the United States Attorney complaining of the BIDO sit- uation, he had received outstanding appraisals each year. From 1976 until November 1977, Mrs. Falkowski gave him no appraisal at all. The admitted reason for this viola- tion of procedure was to withhold potential ammunition for the present proceedings. One of the earmarks of retaliation is disparate treat- ment. McDonnel Douglas Corp. v. Green, 411 U.S. 792, 93S, Ct. 1817, 36 L. Ed. 2d 668 (1973); EEOC Compli- ance Manual §495.3. It is obvious from a review of the EEOC’s treatment of other cases of misconduct that the charges against Mr. Perry constitute excuses rather than reasons. The evidence revealed that gross incompetence and neglect of duty in the Memphis District Office was rewarded by promotions for three of the managers re- sponsible. Destruction of records in the Chicago District Office to create the impression of a decreased backlog was ignored. The Krueger-Garcia report revealed instances of supervisor Charles Davis’s misconduct, for which Mr. Davis received a mere “counseling memo.” These includ- ed his shouting obscenities at Mrs. Falkowski, usurping her authority, refusing to communicate with Mrs. Fal- kowski, and his daring Mrs. Falkowski to do anything ham Office.” * * * “The investigation shows that adverse actions were taken and/or attempted against you because of your persis- tence in making known irregularities in the Birmingham District Office. Through your persistence you have brought into focus seri- ous managerial problems which exist in the Birmingham District Office and you have attempted to avail youself of remedies through official channels. As a result you have been subjected to many adverse actions.” 29 C.F.R. §713.220 (a). 20a about his low productivity. Though Mr. Jeffrey grossly misstated his educational qualifications when he filled out his executive inventory for the EEOC, no action is proposed regarding his misconduct, and Mr. Golub even testified that Mr. Jeffrey had done nothing wrong. Perry’s Exhibit 28 reveals a fifteen-day suspension of a district director for failure to follow instructions, falsifi- cation of records, continued falsification of records after warning, and verbal abuse; a thirty-day suspension for fal- sification of time cards to the tune of $4,132.27; a thirty- day suspension for falsification of travel vouchers to the tune of $3,747.00; a one-day suspension for assaulting a supervisor, and so on. The issue in a case of disparate treatment is not one of precise equivalence in culpability but of incidence of comparable seriousness attended by lesser discipline. Mc- Donald v. Sante Fe Trail Transportation Co., 427 U.S. 273, 96S. Ct. 2574, 49 L. Ed. 2d 493 (1976). Clearly in- cidents at least comparable in seriousness to those with which Mr. Perry is charged have been met with much lighter discipline than that proposed against Mr. Perry. The disparate treatment indicative of retaliation is pres- ent in Mr. Perry’s case. The defendants’ decision to seek a mere transfer in- stead of removal makes the proposed discipline no less retaliatory. Apparently there is little difference in sub- stance between the proposed transfer and removal. The EEOC would, if permitted, transfer Mr. Perry to the Of- fice of Systemic Programs under the direct supervision of Mr. Golub. Mr. Perry’s proposed job description was drafted after the defendants amended their petition to seck a transfer instead of removal. Mr. Golub was not even sure of the name of the position, referring to it at first as “equal opportunity specialist”’ and later as ‘‘equal 2la employment officer.” The job description referred to the position sometimes as ‘equal opportunity specialist” and sometimes as “‘special assistant.”” The duties which Mr. Perry would assume consist of reviewing consent decrees, and, as Mr. Golub added at the hearing, reviewing concili- ation agreements. The function of the Office of Systemic Programs is to attack systems of discrimination. It is ap- parent that the duties thought up for Mr. Perry would be only tangential to the office’s function. The transfer would constitute a reduction in rank under the terms of the Federal Personnel Manual because Mr. Perry would no longer be in a supervisory position. The EEOC would propose, thus, to waste Mr. Perry’s tal- ents in the name of promoting the efficiency Jf the ser- vice. What the EEOC does cannot be reconciled with what it says. It can be reconciled only with an underlying retaliatory motivation. The office to which the EEOC proposes to send Mr. Perry is not matched to his abilities, but rather to his in- tolerance of an inefficient Commission. The office is a depositary for dissidents, the Siberia of the jealous guard- ians of our civil rights. Jim Nunes, the man who recom. mended Mr. Golub’s removal, was, thereafter, transferred to that office. Similarly, Mr. Perry would be going to work with Marvin Rogoff, an American Federation of Government Employees officer and outspoken critic of EEOC management. Certainly, Mr. Golub does not want these men under his direct supervision out of love for them. The logical inference is that he wants these people in positions where he can more easily silence them. The evidence is overwhelming that the adverse action was proposed against Mr. Perry because of his protests of mismanagement and inefficiency, in violation of his right to speak freely. Further, it is clear that had Mr. Perry not i i § | | j 22a 234 exercised his rights to protest conditions in the EEOC, | APPENDIX D this petition would not have been filed. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. IN THE ants’ petition for persmission to process adverse action FOR THE FIFTH CIRCUIT against Mr. Perry is due to be denied. No. 77-1719 [Filed: May 29, 1979] BERTRAM N. PERRY, Plaintiff-Appellee, Uv. ALVIN GOLUB, Et Al., Defendants-Appellees, EVELYN FALKOWSKI, Movant-Appellant. * * * No. 77-1865 EVELYN FALKOWSKI, Plaintiff-Appellant, Cross-Appellee, vU. LOWELL PERRY, Chairman, ETC., EY AL., Defendants-A ppelices, Cross-A ppellants. 24a Appeals from the United States District Court for the Northern District of Alabama ON PETITION FOR REHEARING (May 29, 1979) Before WISDOM, CLARK and FAY, Circuit Judges. PER CURIAM: IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied. ENTERED FOR THE COURT: /s/ John Minor Wisdom United States Circuit Judge 25a APPENDIX E DO NOT PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 77-1719 BERTRAM N. PERRY, Plaintiff-Appellee, v. ALVIN GOLUB, ET AL., Defendants-Appellees, EVELYN FALKOWSKI, Movant-Appellant. No. 77-1865 EVELYN FALKOWSKI, Plaintiff-Appellant Cross-A ppellee, vU. LOWELL PERRY, Chairman, ETC., ET AL.., Defendants-Appellees Cross-Appellants. 26a Appeals from the United States District Court for the Northern District of Alabama (April 25, 1979) Before WISDOM, CLARK and FAY, Circuit Judges. PER CURIAM: The district court correctly dismissed these actions without prejudice on account of mootness. The effect of such dismissals was to vacate all underlying proceedings in each case so as to spawn no consequences. The adjudi- cation of mootness eliminated all pending controversies and left the court without jurisdiction to enter those portions of the injunction orders restricting future actions of the parties in either case. The orders of dismissal, without prejudice, are affirmed but the “‘pro- tective orders” or injunctions are vacated. AFFIRMED and VACATED. 27a APPENDIX F BERTRAM N. PERRY, Plaintiff, v. ALVIN GOLUB, et al., Defendants. Civ. A. No. 75-G-1476-S United States District Court, N.D. Alabama, S.D. Nov. 30, 1976. Employee of Equal Employment Opportunity Com- mission brought action challenging his permanent reas- signment, in which defendants filed a “Petition for Per- mission to Process Adverse Action Against” plaintiff. Plaintiff moved to dismiss or strike petition for defend- ants’ failure to comply with order to produce documents. The District Court, Guin, J., held that defendants’ failure to file timely objection constituted a waiver of objection that documents were irrelevant and privileged, that dis- missal of the petition was an appropriate sanction for refusal to comply with production order since, among other things, the failure was wilful, notwithstanding con- tention that plaintiff was not prejudiced, that dismissal was not precluded by rule providing that a default judg- ment may not be entered against the United States unless the claimant establishes his right to relief by satisfactory evidence and that although there was no longer an actual existing controversy the court would retain jurisdiction to protect plaintiff against recurrence of allegedly retalia- tory actions. ee en | ee eee 28a Defendants’ petition dismissed; jurisdiction retained. See also, D.C., 400 F. Supp. 409. William F. Gardner, Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, Ala., for plaintiff. Edward H. Levi, Atty. Gen., John J. Pagano, Office of Gen. Counsei, Equal Employment Opportunity Commis- sion, Washington, D.C., Joseph L. Battle, Huntsville, Ala., Margaret A. Beller, Washington, D.C., Edward Still, Bir- mingham, Ala., Nicholas M. Inzeo, II, Equal Employment Opp. Comm., Washington, D.C., for defendants. ORDER GUIN, District Judge. This cause came on for hearing before the Court on November 22, 1976 on the plaintiff's Rule 37 (b) motion to dismiss or strike the defendants’ ‘‘Petition for Permis- sion to Process Adverse Action Against Bertram Perry.” At the same time, the Court has considered the question of the extent to which there remains an actual contro- versy in this case. Based on the factual circumstances here present, the Court finds as follows: I. RULE 37 (b) MOTION A.FACTS: The facts relative to this subject are the following: 1.On September 20, 1976, the defendants filed their “Petition for Permission to Process Adverse Action Against Bertram Perry.’’ On the same day, the Court held a conference with counsel for the plaintiff and defend- 29a ants and set the Petition for hearing on the earliest open date, which was November 22, 1976. 2.On September 23, 1976, the plaintiff filed a Re- quest for Production of Documents under Rule 34 with reference to the defendants’ Petition. 3. On October 8, 1976, which was the date set for the production of the documents, the plaintiff’s attorney telephoned the defendants’ attorney to inquire whether the documents would be produced that day. The defend- ants’ attorney replied that it would be another ten days before the documents would be ready, and the plaintiff’s attorney agreed that this would be satisfactory. (The con- tention that the defendants’ attorney understood from this conversation “that no strict deadlines were required” is true only to the extent of the plaintiff’s agreement to another ten days for the production of documents). 4. After the documents were not produced within this period, the plaintiff filed a motion to compel production. Since the defendants’ Petition was set for hearing on November 22, 1976 and the documents were needed with- out delay for the plaintiff’s preparation for the hearing, the Court took immediate action on the plaintiff’s mo- tion. Accordingly, by Order entered on October 26, 1976, the Court ordered the production of the docu- ments by November 1, 1976. 5. On November 3, 1976, the defendants filed with the Clerk of the Court their “‘Answer to Request for Produc- tion of Documents” stating that certain of the documents were being produced but refusing to produce the docu- ments called for by Paragraph 5 of the Request for Pro- duction on the asserted grounds that such documents were irrelevant and privileged. On the same date, the defendants filed a motion for protective order against the production of these documents. 30a 6. On November 4, 1976, the Court cancelled the hear- ing on the defendants’ Petition and set for hearing on November 22, 1976 the plaintiff’s motion under Rule 37 (b) for the dismissal or striking of the Petition and any other discovery motions which might be pending. 7. The documents which were produced by the defen- dants were produced on November 3rd and 8th. 8. The defendants only partially complied with other paragraphs of the Request for Production. With respect to Paragraph 2, which requested all documents as to all adverse actions proposed or initiated by the EEOC from 1965 to the present, the defendants produced, on No- vember 8, 1976, copies of “Standard Form 50”’ giving notice of adverse actions, but none of the underlying documentation was produced. With respect to Paragraphs 3 and 4, which requested all documents containing pro- posals for adverse actions and complaints or requests for investigation as to EEOC employees, the defendants pro- duced no documents on the asserted ground that no such files were maintained. At the hearing, it developed that the documents requested by Paragraphs 2, 3, and 4 do exist but are maintained in various EEOC offices and that the defendants had taken steps to collect the documents, although none have been produced. 9. Until the November 22nd hearing, the defendants’ position was that the documents called for by Paragraph 5 of the Request for Production would not be produced. At the hearing, the defendants announced that while they still objected to the production of the documents if the Court so ordered. 10. On the same day, however, the defendants sought to attach certain conditions to production of the docu- ments. By letter dated November 22, 1976 and written 3la after the close of the hearing, counsel for the defendants asked that the Court place the following restrictions on the production of the documents: “1. Disclosure limited to Counsel for Plaintiff Ber- tram Perry. 2. No reproduction of the ‘Audits’ without the specific authorization of the Court or Counsel for the EEOC. 3. Counsel should be prohibited from discussing the contents of the ‘Audits’ with Plaintiff or anyone else.” B. ANALYSIS: 1. Effect of the failure to file a timely objection: It is clear that the defendants’ failure to file timely objections to the Request for Production constituted a waiver of the objections. E.g., United States v. 58.16 Acres of Land, 66 F.R.D. 570 (E.D. Ill. 1975) (‘‘an objec- tion that the information sought is privileged, is waived by a failure to make it within the proper time limits’’); Davis v. Romney, 53 F.R.D. 247 (E.D. Pa. 1971) (“If discovery rules are to have ‘any effect or meaning, the failure to serve such objections within the time prescribed * * * should be considered a waiver of such objec- tions’ ”’); American President Lines v. Hartford Fire In- surance Co., 55 F.R.D. 61 (E.D. Pa. 1971). Similarly, the defendants’ protective order motion does not alter the situation, since Rule 34 required that the point be raised by timely objections. As Professor Moore says, “The party served with the request must respond to it within the time limits set forth in the Rule, or object, stating the reasons for the objection.” 4A Moore’s Federal Practice § 37.02, page 36-37 (2nd ed. 1975). 45 G0 4 a a ee ee BRP RINE Hc st 3 d 3 5 32a 2. Criticism of the Court’s Order: It is argued that the defendants’ failure to file timely * objections should be excused on the theory that the Court was in error in entering the Order on October 26, 1976 requiring the production of the documents without prior notice to the defendants. The Court finds this argument to be utterly lacking in merit for the following reasons: To begin with, the argument is irrelevant to the de- fendants failure to file timely objections. The defendants made no effort to file any objection before October 26th when the Order was entered, and the Order itself did not prohibit the defendants from filing an objection. It is obvious that the Order had nothing to do with the failure to file timely objections and that the defendants are wide of the mark in seeking to excuse their failure to object by criticizing the Order. Moreover, the defendants’ criticism of the Order disre- gards the circumstances in which it was entered. When the Court met with counsel for the plaintiff and defend- ants on September 20, 1976, it was pointed out that the defendants had not responded to the plaintiff's initial Interrogatories and Request for Production filed on March 22, 1976, some six months earlier. At the same conference on September 20th, the plaintiff stated that he would file Interrogatories and a Request for Produc- tion addressed specifically to the defendants’ Petition, and the Court asked the defendants to answer them as soon as possible in view of the defendants’ request for an early hearing on the Petition. The Court was also aware that the documents sought by the Request for Produc- tion were considered by the plaintiff to be critical to his defense against the Petition and that when the October 26th Order was entered, less than a month remained be- fore the hearing. It is settled that “A party to an action has the right to have the benefits of discovery procedure 33a promptly, not only in order that he may have ample time to prepare his case before scheduled trial, but also in order to bring to light facts which may entitle him to summary judgment or induce settlement prior to trial.” United States v. Continental Casualty Co., 303 F.2d 91 (4th Cir. 1962). Given the circumstances which existed in this case, the Court was clearly entitled to enter the Order immediately. It is also argued that the order came before the expira- tion of the period for the filing of the defendants’ re- sponse to the Production Request. But the facts are that the defendants had until October 26th to file a response and did not do so.! Moreover, the event which led to the motion to compel production was the fact that the defen- dants did not carry out their representation of October 8th that the documents would be produced in 10 days. 3. The appropriate sanction: Rule 37 (b) provides that “If a party — fails to obey an order to provide or permit discovery, — the court in which the action is pending may make such orders in _-regard to the failure as are just’, including ‘“‘An order striking out pleadings”’ and “dismissing the action or pro- ceeding or any part thereof”. It is well settled that the appropriate sanction is to be determined in the context of the particular facts of the case, with the Court’s discre- tion guided by the standard of the sanction which is just in light of the facts. It should initially be said that this is not a case in which a party attempted in good faith to comply with a I The Production Request was filed and served on September 23rd. The defendants were entitled to an additional 3 days under Rule 6 (e), and the 33 days expired on October 26th. Under Rule 5 (b), the defendants’ response was deemed served on November Ist. eT se e°5 Le ee a a RARE ates ts —s A bebe ee ee PP Ek Ra > SiS ORAS ar = 5 Yet there can be no reasonable 13See Judge Henry J. Friendly’s Federal Jurisdiction: A General View (1973). 80a doubt that a Court would fail to fulfill its responsibilities if it did not extend judicial protection to the plaintiff on the evidence in this case. ‘The very essence of civil liberty”, as Chief Justice Marshall said, “‘certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”’!* Guided by this fundamental precept, the Court is confident that Mr. Perry is entitled to the protection of the law on this evidentiary record which reveals a_ regrettably high handed and improper treatment of his rights and of the outstanding reputation which he has established as an able and dedicated career officer with the EEOC. 14 Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60 (1803). (tata Pedder Ot Me HR 8la APPENDIX L IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA Southern Division Civil Action No. 73P1009 [Filed: Sep. 9, 1974] EVELYN P. FALKOWSKI, Plaintiff, v. JOHN H. POWELL, JR., Chairman, Equal Employment Opportunity Commission, Defendant. CONSENT ORDER In this civil action, plaintiff charges defendant, and Donald Hollowell, Atlanta Regional Director of the Equal Employment Opportunity Commission, with discrimination based upon sex and race, in violation of 42 U.S.C. § 2000e and related executive orders. The parties, in order to avoid further litigation and trial, and without any admission of wrongdoing, have conferred at length and now advise the Court that they have resolved the controversy as hereinafter set forth; it is, therefore, hereby ORDERED, ADJUDGED AND DECREED: 1. That in the event vacancies arise in Birmingham District Office of the Equal Employment Opportunity 82a Commission, at levels considered desirable to plaintiff, including the positions of Director and Deputy Director, defendant shall consider plaintiff’s applications therefor [or requests for transfer thereto] in a very favorable light. Civil Service Commission regulations preclude any pre- selection of candidates for any position. 2. That the defendant EEOC shall amend Paragraph 15b(1), of the Equal Employment Opportunity Commis- sion’s “Merit Promotion Plan” to include the following footnote: “Provided, however, that such selection does not result in discrimination in violation of the principles of Title VII and other nondiscrimination laws.” 3. That defendant shall pay all costs incurred by plaintiff in pursuing her charge of discrimination, exclud- ing attorney’s fees. ORDERED, this 9th day of September, 1974. /s/ United States District Judge AGREED TO IN FORM AND CONTENT: /s/ Melvyn R. Leventhal Counsel for Plaintiff /s/ John J. Pagano Counsel for Defendant ; | E ; { : ; { 4 83a APPENDIX M CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Article [I.] Congress shall make no law respecting an establish- ment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Article [V.] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the military, when in actual service in time of war or public danger; nor shall any per- son be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be witness against himself, nor be de- prived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. SUBCHAPTER I—GENERALLY § 1981. Equal rights under the law All persons within the jursidiction of the United States shall have the same right in every State and Terri- tory 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 84a like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (R.S. §1977.) § 2000e-2. Discriminaton because of race, color, religion, | sex, or national origin (a) Employers. It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, con- ditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals’ race, color religion, sex, or national origin. § 2000e-3. Other unlawful employment practices (a) Discrimination on account of opposition to un- lawful practices or participation in investigation, pro- ceeding, or hearing. It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management com- mittee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organ- ization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this 85a title [42 USCS § § 2000e-2000e-17], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title [42 USCS § § 2000e-2000e-1 7]. § 2000e-16. Nondiscrimination in Federal Government employment (a) Discrimination prohibited. All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of title 5, United States Code, [5 USCS $102] in executive agencies (other than the General Accounting Office) as defined in section 105 of title 5, [5 USCS §105] United States Code (including em- ployees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, Or national origin. (c) Civil action by party aggrieved. Within thirty days receipt of notice of final action taken by a department, agency, or unit referred to in subsection 717(a) [| subsec. (a) of this section], or by the Civil Service Commission upon an appeal from a decision or order of such depart- ment, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Execu- tive Order 11478 or any succeeding Executive orders, or 86a after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Civil Service Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a depart- ment, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 706 [42 USCS §2000e-5], in which civil action the head of the department, agency, or unit, as appro- priate, shall be the defendant. (d) Application of certain provisions. The provisions of section 706(f) through (k) [42 USCS §§2000e-5 (f)-(k)], as applicable, shall govern civil actions brought hereunder. (e) Continuing responsibility of agencies and officials to assure nondiscrimination. Nothing contained in this Act [title] shall relieve any Government agency or official of its or his primary responsibility to assure non- discrimination or employment as required by the Con- stitution and statutes or of its or his responsibilities under Executive Order 11478 relating to equal employ- ment opportunity in the Federal Government. (July 2, 1964, P.L. 88-352, Title VII, §717, as added Mar. 24, 1972, P.L. 92-261, §11, 86 Stat. 111.) + a aS ee a ae ct hPL AA hi M62 PA TI wales Tat --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1681%3A1. Public record. Not legal advice.