Petition for Writ of Certiorari — Davis v. Rice

Supreme Court brief1992

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No. | OF Ok OF The Giant

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

JAMES DAVIS,

PETITIONER,

VS.

DONALD RICE, SECRETARY OF

THE AIR FORCE,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LEWIS BARBER, JR.

1528 N.E. 23RD, SUITE 410

OKLAHOMA CITY, OKLAHOMA 73111

(405) 424-5201

COUNSEL OF RECORD

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

JAMES DAVIS,

PETITIONER,

vs.

DONALD RICE, SECRETARY OF

THE AIR FORCE,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

QUESTIONS PRESENTED

3% Whether eight year old

allegations of sexual harassment, coupled

with more recent allegations of sexual

harassment which in themselves. are

insufficient as a matter of law under

Meritor Savings Bank v. Vinson, 477 U.S.

57, 106 $.Ct. 2399 (1986) to support a

Claim of sexual harassment, may be used

by the Air Force as a basis for demotion?

2. Whether in a "mixed case" claim

under 5 U.S.C. § 7703 the reviewing court

must declare a Merit System Protection

Board (hereinafter “"MSPB") decision

which affirmed a demotion based on sexual

harassment as “arbitrary and capricious"

when the factual basis for the sexual

harassment charge is legally insufficient

to support a sexual harassment claim?

J Whether Davis presented

sufficient issue of material fact to

withstand summary judgment when he

demonstrated that the Charges of sexual

harassment whicn the Air Force relied

upon to effect his demotion were legally

insufficient under Meritor and further

alleged that the sexual harassment

charges were fabricated by the Air Force

in retaliation for his inter-racial

relationship with a Caucasian female?

4. Whether in a "mixed case" claim

under 5 U.S.C. § 7703, the trial court

denies a plaintiff a trial de novo on his

claims of race discrimination by failing

to review the decision of the MSPB, which

determined that a plaintiff engaged in

sexual harassment, under a Meritor

analysis, when the plaintiff asserts that

the claims of sexual harassment were

contrived, that the basis for those false

allegations were racial animus and that

the staleness of those allegations denied

him due process of law?

TABLE OF CONTENTS

PAGE(S)

TABLE OF AUTHORITIES... .ccccccceecs iii,

OPEREGMS BEM ccc ssccccncsvcesces 1

STATEMENT OF JURISDICTION......... 1

CONSTITUTIONAL PROVISION.......... 2

STATEMENT OF THE CASE...........2. 3

pS sy ae ee ee 7

COMPAR sc He ec ew ee rece cceecsesese 14

CERTIFICATE OF SERVICE... cccccccee 15

AFFIDAVIT OF MAILING.............. 16

APPENDIX A: Opinion of the United

States Court of Appeals

For the Tenth Circuit.

APPENDIX B: Opinion of United

States District Court

for the Western District

of Oklahoma.

APPENDIX C: Judgment entered in the

United States District

Court for the Western

District of Oklahoma.

APPENDIX D: Order denying rehearing

entered in the United

States Court of Appeals

For the Tenth Circuit.

APPENDIX E: Title 5 U.S.C. § 7703.

APPENDIX F: 29 C.F.R. §1613.2149(a) (i)

iii

TAB OF ORIT

SUPREME COURT CASES:

fe) vi ank v. Vinson,

477 U.S. 57,

206 &.CC. 2399 (ASSES) cc cccecsecess

FEDERAL CIRCUIT CASES:

Henson v. Dundee,

682 F.2d 897 (llth Cir. 1982)....

Hicks v. Gates Rubber Co.,

833 F.2d 1406 (10th Cir. 1987)...

nv. Cit u e,

890 F.2d 225 (10th Cir. 1989)....

CONSTITUTIONAL AMENDMENTS :

pa ee ee ee ee ee

STATUTES:

2 U.S.C. § FIO. dcwacsewesvctvenuas

$8 U.S.C. § USER icccsvecesccetves

42 U.S.C. § 2O0Q0Q0@ Ot OGG. es cecces

S§ U.S.C. Chapter 78... ccccccveves 7

FEDERAL REGULATIONS:

29 C.F.R. § 1613.214(a) (1)......- 2, 8

OP 2) Ow

The United States District Court for

the Western District of Oklahoma granted

summary judgment on September 24, 1990.

Appeal was taken in the United States

Court of Appeals for the Tenth Circuit

and on May 15, 1991 the Appeals Court

affirmed the decision of the District

Court. Both opinions are contained

herein as Appendix "A" and "B",

respectively.

(e) U ON

The date of the judgment sought to

be reviewed is May 15, 1991. The court

for which relief is sought is the United

States Court of Appeals for the Tenth

Circuit. Davis filed a petition for

rehearing which was denied by the Court

of Appeals on August 1, 1991. This Court

has jurisdiction pursuant to 28 United

States Code §1254.

The constitutional provision which

this case involves is Amendment V which

provides:

No person shall be held to answer

for a capital, or otherwise infamous

Crime, unless on ae presentment’ or

indictment of a Grand Jury, except in

cases arising in the land or naval

forces, or in the Militia, when in

actual service of time of War or public

danger; nor jeopardy of life or limb; nor

shall be compelled in any criminal case

to be a witness against himself, nor be

deprived of life, liberty or property,

without due process of law; nor shall

private property be taken for public use,

without just compensation.

The statutory provision upon which

this case relies is 5 U.S.C. §7703 and is

set out in the Appendix to this petition.

The Federal Regulation upon which

this case relies is 29 C.F.R. §

1613.214(a)(i1) and is set out in the

Appendix to this petition.

STATEMENT OF THE CASE

The basis for federal jurisdiction

in the court of first instance was a

violation of 42 U.S.C. § 2000e et seq,

and 5 U.S.C. § 7703.

Petitioner, James Davis, Appellant

below, Plaintiff at trial, (hereinafter

referred to as "Davis" or "Petitioner")

was employed by Defendant-Appellee-

Respondent, Donald B. Rice, Secretary of

the Air Force ("Rice" or "Respondent") as

a Supervisory Operating Accountant. On

August 7, 1989 Rice proposed to remove

Davis from Air Force employment based on

allegations of sexual harassment of

subordinate female employees. The

Notice of Removal was based on

allegations of misconduct of four (4)

female employees; Doris Mills, Cheryl

Dinwiddie, Londa Miranda and Rhonda

Brown. The allegations ranged from 8%

years to 9 months prior to the time that

Rice proposed to remove Davis. Mills’

allegations were the most senior; and,

Miranda’s allegations were the most

recent. However, none of the

allegations made reference to specific

time frames, dates, or places of the

alleged harassment.

Davis replied to the allegations and

stated that he had complimented 2 of the

4 females; however, those compliments

were not sexually oriented; and, Davis

made the comments in the presence of

others. Davis supplied affidavits of

sixteen (16) persons, both male and

female, who attested to the fact that

Davis had not sexually harassed female

employees. Moreover, the investigation

conducted by Rice resulted in the sworn

statements from six (6) persons’ who

stated that Davis had not engaged in

sexual harassment.

After Davis refuted the initial

charges, Rice presented Davis with an

additional affidavit from Londa Miranda,

which had been "inadvertently omitted"

from the investigatory file which was

much more graphic than her previous

statement. In response, Davis submitted

the statement of Patricia Higgins, a

friend of Miranda, which directly

attacked the credibility of Miranda and

pointed to Miranda herself as the

aggressor. Higgins stated that Miranda

had pursued Davis; that Miranda attempted

to call Davis from a night club; and that

Miranda and Higgins frequently visited

Davis’ office during work hours.

; After reviewing Davis’ additional

submissions, Rice then reduced Davis in

rank and grade; and, Davis appealed to

the MSPB which subsequently affirmed

Rice’s decision to downgrade.

Thereafter, on May 14, 1990, Davis filed

suit in federal court alleging that

Rice’s decision was based on race

discrimination and that reliance upon the

stale claims of sexual harassment denied

him due process of the law.

On July 16, 1990 Rice moved for

Summary judgment and included the

investigatory file of the agency and the

decision of the Merit Systems Protection

Board as exhibits in support of their

motion for summary judgment.

Thereafter, Davis submitted an affidavit

which further denied the allegations and

further contended that he had _ been

wrongfully charged with sexual harassment

under a calculated plan or scheme by Rice

based on his race and based upon his

inter-racial relationship with a female

supervisor. The trial court granted

summary judgment and the appeals court

affirmed the court’s decision.

ARG N

Davis seeks review of by this Court

on writ of certiorari on the basis that

the United States Court of Appeals has

decided an important question of federal

law which has not been, but should be,

settled by this Court.

Pursuant to 5 U.S.C. § 7703 when a

plaintiff raises allegations of both

discriminatica in violation of 42 U.S.C.

§ 2000e-et seq and procedural errors in

an adverse action taken against him in

violation of 5 U.S.C. Chapter 75, the

case is commonly referred to as a "mixed

case. In that instance, the claims of

discrimination are subject to a trial de

novo, and the procedural errors are

subject to a review of the MSPB record.

5 U.S.C. § 7703.

This case presents a situation where

there is no clear cut distinction between

the Agency’s procedural errors and Davis’

allegations of discrimination. Rice

contends that Davis was demoted based on

sexual harassment; and, in contrast,

Davis maintains that the allegations of

sexual harassment were contrived; and

moreover, those allegations were legally

insufficient under Meritor and 29 C.F.R.

§ 1613.214(a)(i) (which establishes a

limitations period of 30 days for claims

of sexual harassment) to support a

demotion. Davis contends that to the

extent that his procedural and

discrimination claims overlapped, he was

denied a trial de novo when the reviewing

court declined to examine those areas of

overlap.

5 U.S.C. § 7703 provides, inter

alia, that the court shall review the

record of the MSPB and set aside an

agency action only in the event that

action is found to be “arbitrary,

Capricious, an abuse of discretion or

otherwise not in accordance with law." 5

U.S.C. § 7703(c) (1). Section 7703

further provides that "except in the case

of discrimination... the employee or

applicant shall have the right to have

the facts subject to a trial de novo by

the reviewing court."

Davis contends that the application

of § 7703(c)(1), denies him of his right

to a trial de novo. More specifically,

Davis submits that under the "arbitrary

and capricious" standard § 7703(c)(1),

once the Agency’s legitimate business

reason for Davis’ demotion (sexual

harassment) was passed upon by the MSPB,

that finding must be affirmed by the

district court unless "arbitrary,

Capricious... or otherwise without

support in law." In contrast, §7703,

provides for a trial de novo in cases

which involve discrimination; and, in

this case, Davis maintains that the

sexual harassment charges, which were

passed upon by the MSPB, were a pretext

for discrimination and the Agency’s

disapproval of his inter-racial

relationship.

Davis respectfully submits that the

application of the two provisions, when

as in this case, pivotal issues overlap,

is legally inapposite. Specifically, by

application of § 7703(c)(1), Davis is

denied a trial de novo on his

discrimination claim because the

“arbitrary and capricious" language of §

7703(c)(1) prohibits the trial court from

examining whether the MSPB finding of

sexual harassment was pretext for race

discrimination. Thus, under § 7703(c) (1)

absent a showing of arbitrariness or

Capriciousness, the trial court must

affirm the MSPB’s' position; and the

ultimate effect of such an application is

to chisel the Agency’s legitimate

business reason in stone, beyond the

reach of the reviewing court and beyond

the ability of the plaintiff to further

attack the conduct as discriminatory or

pretext.

In particular, Davis contends that

the lower courts erred on two points of

law: first, by examining the

administrative record the trial court

denied Davis of a trial de novo!; and,

second, in affirming the decision by the

MSPB which concluded that Davis’ had

engaged in sexual harassment, the court

failed to apply any of the standards

which the courts developed in Meritor

Savings Bank v. Vinson, 477 U.S. 57, 106

1 see Williams v. Department of the

Army, 715 F.2d 1405, 1490 (Fed. Cir.

1983) where the court quotes legislative

history regarding bifurcated review which

states:

"In such cases, questions of

the employee’s inefficiency or

misconduct, and discrimination

by the employer, will be two

Sides of the same question and

must be considered together."

In this case, the question of demotion

for misconduct and the response that

discrimination was involved are but two

Sides of the same question. Therefore,

Davis submits that bifurcating the review

denied his right to a trial de novo.

Chandler v. Roundebush, 425 U.S. 840, 96

S.Ct. 1949 (1976).

S.Ct. 2399 (1986) ; ic v. Gates Rubb

Co., 833 F.2d 1406 (10th Cir. 1987);

s v. Dun , 682 F.2d 897 (11th Cir.

1982); Jackson v. City of Albuquerque,

890 F.2d 225 (10th Cir. 1989) and their

progeny, which establish the guidelines

for analyzing a sexual harassment claim.

Davis submits that the findings of the

MSPB were legally insufficient under

Meritor; and, the reviewing court should

have, as a matter of law set aside the

action for legal insufficiency under the

authority of § 7703(c)(1). Finally,

Davis submits that at a very minimum, the

court should have found that Davis had

established sufficient issues of fact,

with respect to his claim that the sexual

harassment charges had been fabricated

and were racially motivated, to withstand

summary judgment.

CONCLUSION AND PRAYER FOR RELIEF

Wherefore premises considered,

Appellant respectfully prays that this

Honorable Court grant his Petition for

Writ Certiorari.

R tfully submitted,

( vA

Ze: / / g

$83 "laws tee #500

B ER & MARSHALL, \PA.

1528 N.E. 23rd, Suite 410

Oklahoma City, OK 73111

(405) 424-5201

OF SERV

I hereby certify that on the 30th

day of October, 1991, a true and correct

copy of the above and foregoing Petition

for Writ of Certiorari was mailed,

postage prepaid, to the following:

Timothy D. Leonard

U.S. Attorney

Steve Mullins

Asst. U.S. Attorney

200 N.W. 4th Street

Room 4434 Federal Courthouse Building

Oklahoma City, OK 73102

Marc A. Fox, Captain, USAF

Trial Attorney

General Litigation Division

Office of the Judge Advocate General

1900 Half Street, S.W., Room 5142

Washington, D.C. 20324-1000

Solicitor General

Department of Justice

Washington, D

' v2 ; ° #500

BARBER & MARSHALJY, P.A.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

JAMES DAVIS,

PETITIONER,

VS.

DONALD RICE, SECRETARY OF

THE AIR FORCE,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AFFIDAVIT OF MAILING

This Petition For Writ of Certiorari

was mailed, first class postage prepaid

and correctly addressed to the Clerk of

the Supreme Court of the United States,

Haitian

on the 30th day of October, 1991, from

the Main Post Office, 320 S.W. 5th

Street, Oklahoma City, Oklahoma 73102.

(es

- Barber. byP aio"

1328 N.E. hg PF bP ic

Oklahoma City, OK 73111

(405) 424-5201

STATE OF OKLAHOMA )

) ss.

COUNTY OF OKLAHOMA )

Subscribed and sworn to before me

this 30th day of tober, 1991.

& ose SS

Notary Rublic

My Commission Expires:

‘ih Wane Sos ie oo

APPENDIX "A"

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAMES DAVIS,

)

Plaintiff-Appellant, )

) No. 90-6358

Vv. ) (>.¢. No.

) CIV-90-776-P)

DONALD B. RICE, )

Secretary, Department of )

the Air Force, ) (W.D. Okla.)

)

Defendant-Appellee.

ORDER AND JUDGMENT*?2

Before ANDERSON, TACHA and_- BRORBY,

Circuit Judges.

This appeal is from an order of the

1 This order and judgment has no

precedential value and shall not be

cited, or used by any court within the

Tenth Circuit, except for purposes of

establishing the doctrines of the law of

the case, res judicata, or collateral

estoppel. 10th Cir. R. 36.3.

district court granting summary judgment

to the defendant on plaintiff’s claims of

racial discrimination and denial of his

constitutional right to equal protection

and due process of law.* We affirm the

grant of summary judgment with respect to

the racial discrimination claim. We also

agree with the district court that it had

no subject matter jurisdiction over

plaintiff’s constitutional claims and

that those claims should be dismissed. 2?

2 The parties requested that this

matter be submitted on the briefs. After

examining the briefs and appellate

record, it was determined by the court

that oral argument would not materially

assist the determination of this appeal.

See Fed. R. App. P. 34(a); 10th Cir. R.

34.1.9. The case was therefore ordered

submitted without oral argument.

3 Because the district court had no

Jurisdiction over SLALaAsiztse* s

constitutional claims, as discussed

herein, those claims should have been

dismissed. To the extent that the

district court’s order purports to grant

summary judgment to defendant on those

Plaintiff James Davis, a black

American, waS employed by defendant

Secretary of the Air Force as a

Supervisory Operating Accountant at

Tinker Air Force Base. An investigation

by the Inspector General determined that

Mr. Davis had engaged in sexual

harassment. This conclusion was based on

statements by four female employees

detailing specific acts of sexual

harassment committed against them by Mr.

Davis ranging over a period of

approximately eight years. Two of the

women complained that the objectionable

conduct had occurred as recently as April

1989, the month in which the

investigation by the Inspector General

claims, that portion of the order is

vacated and Mr. Davis’ claims based on

due process and equal protection are

dismissed.

commenced.

Mr. Davis was initially informed by

defendant that he would be removed from

his job. In response to this notice, he

Submitted affidavits from various

employees, both male and female, stating

that he had not, in their presence,

engaged in acts of sexual harassment.

After considering Mr. Davis’

presentation, the Chief of Accounting and

Finance informed Mr. Davis that he would

be retained in federal service but

demoted from his GS-12 classification to

the grade of GS-1ll and assigned

nonsupervisory duties.

Contemporaneous with the adverse

action taken against plaintiff, defendant

also imposed disciplinary action against

Mr. Donald Fairbetter, a Caucasian, for

sexually harassing two female

subordinates. Mr. Fairbetter, like Mr.

Davis, was a GS-12 Supervisory Operating

Accountant, and he was similarly demoted

to a GS-il grade and deprived of

supervisory duties.

Alleging that he had been

discriminated against because of his

race, plaintiff unsuccessfully appealed

his demotion to the Merit Systems

Protection Board (hereafter MSPB or the

Board). The Administrative Judge found

that ‘24 plaintiff had failed to

establish a prima facie case of

discrimination; (2) the agency had proven

plaintiff’s sexual harassment of three

female employees; (3) there had been no

harmful error to plaintiff in the

processing of the proposed removal and

resulting demotion action; and (4) the

demotion action was "within the limits of

reasonableness and promotes the

efficiency of the service." Initial

Decision, Merit Systems Protection Board,

Dallas Regional Office, No. DA07529010070

(March 8, 1990). Mr. Davis did not

pursue his administrative appeal further,

and, thus, the Administrative Judge’s

decision became the MSPB final decision.

In response to his unsuccessful MSPB

action, Mr. Davis filed a complaint in

the district court for the Western

District of Oklahoma under Title VII of

the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000(a)-2000(h) (1988), alleging

racial discrimination and due process and

equal protection violations. Mr. Davis

contends that (1) he proved a prima facie

case of racial discrimination; (2) the

findings of sexual harassment’ were

erroneous for a variety of reasons; and

(3) the district court denied him his

right to a trial de novo by relying on

the record from the administrative

proceedings in his racial discrimination

case and by granting summary judgment for

the defendant.

Final decisions of the MSPB are

subject to review by the federal district

court and by this court. Wilder v.

Prokop, 846 F.2d 613, 620 (10th Cir.

1988). Where the MSPB is acting within

the scope of its authority, a fact not

disputed here, its findings will be

Sustained unless they are plainly

erroneous or inconsistent with the

Board’s own regulations. Id. at 619. A

reviewing court cannot substitute its

judgment for that of the Board and may

only act to insure that federal law and

required procedures have been followed

and that the action of the Board is not

arbitrary or capricious or an abuse of

discretion. Id. Under this standard, the

Board’s action needs only a rational

basis in law to be sustained. Id.

Because the reviewing district court

granted summ7cy judgment in this case,

our role is to view the case in the same

Manner as did that court. Clark v.

Atchison, Topeka & Santa Fe Ry. Co., 731

F.2d 698, 799 (10th Cir. 1984). We thus

are required to determine "whether any

genuine issue of material fact exists,

and, if not, whether the substantive law

was correctly applied." Id.

Prima Facie Case o iscriminatio

In granting summary judgment against

Mr. Davis and thus affirming the MSPB,

the district court concluded that because

he offered no evidence that he had been

treated differently than ae similarly

situated white worker, Mr. Davis failed

to prove even a prima facie case of race

discrimination. Davis v. Rice, No. CIV-

90-776-P, Order Granting Summary

Judgment, slip op. at 8-9 (W.D. Okla.

Sept. 24, 1990) (District Court Order).

We have reviewed the record and agree

that Mr. Davis failed to present

sufficient evidence of discrimination.

Mr. Davis advanced a discrimination

Claim based on disparate treatment and so

must show that he was treated in a

manner, which, "but for [his race] would

be different." City of Los Angeles Dep’t

of Water & Power v. Manhart, 435 U.S.

702, 711 (1978). In order to establish a

prima facie case of race discrimination

based on individual disparate treatment,

Mr. Davis must prove that (1) he is a

member of a protected group; (2) he was

Similarly situated by circumstance to an

individual not a member of such a group;

and (3) he was treated more harshly or

disparately than the similarly situated

non-group member. See McDonnell] Douglas

Corp. v. Green, 411 U.S. 792, 802 & n.13

(1973); s Vv U

ing,, $51 F.24 1249, 1260 (10th Cir.

1988). The plaintiff must_ produce

evidence of discriminatory intent or

motive to establish a prima facie case;

this intent can be inferred from the mere

fact of differences in treatment.

McAlester, 851 F.2d at 1260. Mr. Davis,

however, can point to no one who was not

a member of a protected group and whose

circumstances were similar to his who

received more favorable treatment than he

did. He therefore has not established a

prima facie case of race discrimination.

Indeed, the evidence indicates that Mr.

Fairbetter, a Caucasian similarly charged

with sexual harassment was given the

exact same penalty by the defendant as

was Mr. Davis.4

e Novo

Mr. Davis correctly argues that 5

U.S.C. § 7703(c) (1988) requires a trial

de novo in cases of discrimination. Mr.

Davis, however, has received a trial de

novo on his discrimination claim. He now

attempts to argue that the district

court, by considering the MSPB_ record

from the proceedings surrounding the

sexual harassment clain, has somehow

denied him his de novo review. This

argument is not persuasive.

4 Mr. Davis does not argue that he

waS sanctioned for less abusive behavior

than was his Caucasian counterpart.

Mr. Davis cites Whatley v. Skaggs

Cog... snGe, ~~ 707 F.2d 1129, 1137 (10th

Cir.), cert. denied, 464 U.S. 938 (1983),

for the proposition that an agency record

is inadmissable in a subsequent trial de

novo involving a claim of racial

discrimination. Whatley, however, is

distinguishable from this’ case. In

Whatley the court was reviewing an agency

finding regarding the plaintiff’s claim

of race discrimination in a subsequent

trial regarding the same claim. Here,

the district court reviewed the

defendant’s record regarding the sexual

harassment proceedings to determine

whether the defendant had a legitimate

nondiscriminatory reason for demoting Mr.

Davis. The district court was not

reviewing the record from the MSPB to

determine whether the finding of sexual

harassment could stand but rather was

considering whether the defendant had

raised a genuine issue of fact regarding

its treatment of Mr. Davis sufficient to

rebut the charges of race discrimination.

Texas Dep’t of Community Affairs _v.

Burdine, 450 U.S. 248, 254-55 (1981).

The district court, consistent with

Burdine, reviewed the MSPB- record to

determine whether it could rationally

conclude that the demotion of Mr. Davis

had not been motivated by discriminatory

animus. 1a. @t 267. Because of Mr.

Davis’ failure to prove a prima facie

case of discrimination, the court was not

required to examine defendant’s evidence

regarding his nondiscriminatory reason

for demoting Mr. Davis. However, the

court did not err in conducting this

review. >

Mr. Davis argues that because this

case was disposed of on summary judgment

he was denied his statutorily mandated

trial de novo. Mr. Davis cites no case,

however, holding that the rules of civil

procedure regarding summary judgment are

suspended in Title VII cases. On the

contrary, while the courts may be more

cautious in granting summary judgment in

cases where intent and motivation are at

issue, summary judgment may still be

appropriate in some circumstances.

Vv. : as 772 ¥.26

1453, 1459 (9th Cir. 1985), cert. denied,

° The court in Whatley was also

concerned about the problem of hearsay.

That problem does not exist in this case,

however, because the record considered by

the district court was not offered to

prove the truth of the matters contained

therein, but rather was offered to show

absence of discriminatory animus on the

part of the defendant.

475 U.S. 1048 (1986). "One purpose of

the allocation of burden in Title VII and

ADEA actions is to enable the district

courts to identify meritless suits and

dispense with them short of trial." Id.;

accord Schwenke v. Skaggs Alpha _ Beta,

Iinc., 858 F.2d 627, 628 (10th Cir. 1988).

Under the facts of this case, summary

judgment was appropriate and did not deny

Mr. Davis his day in court. ©

Constitutional Claims

In his complaint, Mr. Davis alleged

the deprivation of his constitutional

right to equal protection and due

process. Complaint at 4, 6. The

6 Mr. Davis’ remaining arguments

regarding procedural irregularity are

without merit. We are satisfied that

both the MSPB and the district court

followed federal procedural law in this

matter and that the action of the MSPB

was neither arbitrary mor capricious.

Wilder, 846 F.2d at 619.

» o

district court was correct in noting that

such constitutional claims are not within

its subject matter jurisdiction.

District Court Order at 13-14. In Bush

v. Lucas, 462 U.S. 367, 385-86 (1983),

the Supreme Court held that

constitutional claims raised by federal

employees are fully cognizable in the

elaborate, comprehensive civil service

system created by Congress. It thus

refused to recognize a Bivens’ remedy for

constitutional violations alleged by

federal employees. Jd. at 390; see also

Petrini v. Howard, 918 F.2d 1482, 1483-

84 (10th Cir. 1990) (citing Lombardi v.

Smal] Business Admin., 889 F.2d 959 (10th

Cir. 1989); Brothers v. Custis, 886 F.2d

1282 (10th Cir. 1989); v. De tment

7 Bivens v. Six Unknown Named Agents

of the Fed. Bureau of Narcotics, 403 U.S.

388 (1971).

fe) ce, 884 F.2d 1318 (10th

Cir. 1989), cert. denied sub nom. Hill v.

Britt, U.S. heaso §.Ct. 2206

(1990). Thus the merit system of which

Mr. Davis iS a part presented his

exclusive avenue for relief. See Wilder,

846, F.2d at 626-27.

The judgment of the United States

District Court for the Western District

of Oklahoma is AFFIRMED.

ENTERED FOR THE COURT

STEPHEN H. ANDERSON

Circuit Judge

APPENDIX "B"

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

JAMES DAVIS,

)

Plaintiff, )

)

vs. )No. CIV-90-

- 776-P

)

DONALD B. RICE, ) ORDER GRANTING

Secretary of the Air ) SUMMARY

Force, ) JUDGMENT

)

Defendant. )

I. INTRODUCTION

At issue is defendant Donald Bb.

Rice, Secretary, Department of the Air

Force’s motion to dismiss filed July 16,

1990, or in the alternative for summary

judgment. Plaintiff James Davis

responded on August 10, 1990, to which

Rice replied on September 7, 1990. This

is a racial discrimination case brought

by a federal civilian employee. 42

U.S.C. § 2000e; U.S. Const. fifth amend.

Essentially plaintiff claims that he was

treated more harshly than a non-Black who

was disciplined for recent’ sexual

harassment claims while such claims

against plaintiff were stale. Because

matters have been presented to the Court

outside the pleadings, which have not

been excluded by the Court, the Court

shall treat this motion as one_ for

summary judgment. read. &. Civ. #6.

12(b) (6) & 56.

II. STANDAR OR RY JUDGMEN

The facts presented to the court

upon a motion for summary judgment must

be construed in a light most favorable to

the nonmoving party. Oard oO duc. v.

Pico, 457 U.S. 853, 864 (1982); United

States v. Diebold, Inc., 369 U.S. 654

(1962). If there can be but one

reasonable conclusion as to the material

facts, summary judgment is appropriate.

Only genuine disputes over facts which

might affect the outcome of the suit

under the governing law will properly

preclude the entry of summary judgment.

derson v. Lj 4 ob c= @7) 0.8.

242 (1986). Finally, the movant must

show entitlement to judgment as a matter

of law. is _v. so_Na a as

Co., 754 F.2d 884, 885 (10th Cir. 1985);

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

Although the Court must view the

facts and inferences to be drawn from the

record in the light most favorable to the

nonmoving party, "even under this

standard there are cases where the

evidence is so weak that the case does

not raise a genuine issue of fact."

Burnette v. Dow Chem. Co., 849 F.2d 1269,

1273 (10th Cir. 1988). As stated by the

Supreme Court, "(sjummary judgment

procedure is properly regarded not-as a

disfavored procedural shortcut, but

rather as an integral part of the Federal

Rules as a whole, which are designed ‘to

secure the just, speedy and inexpensive

determination of every action.’" Celotex

Corp. v. Catrett, 477 U.S. S376 3a?

(1986) (quoting Fed. R. Civ. P. 1).

The Supreme Court articulated the

standard to be used in summary judgment

cases, emphasizing the "requirement is

that there be no genuine issue of

Materjal fact." Anderson v. Liberty

obb c., 477 U.S. 242, 248 (1986)

(emphasis in original). A dispute is

"genuine" "if a reasonable jury could

return a verdict for the nonmoving

party." Anderson, 477 U.S. at 248. The

Court stated that the question is

"whether the evidence presents a

sufficient disagreement to require

submission to a jury or whether it is so

one-sided that one party must prevail as

a matter of law." Id. at 251-52. "The

mere existence of a escintilla of

evidence in support of the _ ([party’s)]

position will be insufficient; there must

be evidence on which the jury could

reasonably find for the [party])." Id. at

252.

III. UNDIS F

Rule 14(B) of the Western District

of Oklahoma provides a framework for

determining undisputed facts at the

summary judgment stage. The Rule

provides:

The brief in support of a

motion for summary judgment (or

partial summary judgment) shall

begin with a section that

contains a concise statement of

Material facts as to which

movant contends no_ genuine

issue exists. The facts shall

be mumbered and shall refer

with particularity to those

portions of the record upon

which movant relies. The brief

in opposition to a motion for

summary judgment (or partial

summary judgment) shall begin

with a section which contains a

concise statement of material

facts as to which the party

contends a genuine issue

exists. Each fact in dispute

shall be numbered, shall refer

with particularity to those

portions of the record upon

which the opposing party

relies, and, if applicable,

shall state the number of the

movant’s fact that is disputed.

All material facts set forth in

the statement of the movant

shall be deemed admitted for

the purpose of summary judgment

unless specifically

controverted by the statement

of the opposing party.

W.D. Okla. R. 14(B).

A review of Rice’s brief and Davis’

| response reveals that the following facts

are undisputed within the meaning of Rule

14(B) for the purposes of this motion

only:

Ae On August 7, 1989, Davis was

notified of his supervisor’s intent to

remove him from federal employment. On

August 20, 1989, Davis notified the

agency that Lewis Barber, attorney at

law, would be his representative in the

proposed removal action. After

consideration of the matters presented by

Davis and his attorney as well as other

relevant factors such as his lack of

prior disciplinary actions, lengthy

service, etc., the deciding official,

Major Steven J. Nugent, Chief, Accounting

and Finance, Office of the Comptroller,

Tinker Air Force Base, Oklahoma, notified

Davis of his decision to retain him in

the federal service but demote him to the

grade of GS-11 and assign him to non-

supervisory duties. The reduction became

effective on October 15, 1989.

a Davis filed an appeal to the

Merit Systems Protection Board ("MSPB")

which was dated November 2, 1989, and

received by the Board on November 68,

1989. In the appeal Davis alleged that

he had been "discriminated against on the

basis of [his] race, Black-American." He

further alleged that he was involved in a

relationship with a Caucasian female and

"[bjecause of this relationship, the

Agency desired to terminate [his]

employment .. . {and that] [w]jere it not

for the Agency’s disapproval of

interracial veletionshine. it would have

dismissed the charges against [him])."

. 2 A hearing on the appeal was

scheduled for the week of February 5,

1990, but, at Davis’ request, the hearing

was cancelled and the Administrative

Judge decided the matter on the record

before him. The Administrative Judge’s

initial decision, issued March 8, 1990,

found (1) that Davis had failed to

establish a prima facie case of

discrimination; (2) that the agency had

proven Davis’ sexual harassment of three

female employees; (3) that there had been

no harmful error to Davis in the

processing of the propesed removal and

ultimate demotion action; and (4) that

the demotion action was "within the

limits of reasonableness and promotes the

efficiency of the service." The opinion

also affirmed the Agency’s action. There

being no appeal for review by the entire

Board, the Administrative Judge’s Initial

Decision became the MSPB Final Decision

on April 12, 1990. Thereafter, on May

14, 1990, Davis filed the instant suit.

Rice’s brief at 2-3; Davis’ response

brief at 1-2.

IV. AN Sis

A. Racial Discrimination Claim.

Davis alleges in his Complaint that

he was the victim of disparate racial

discrimination because Davis received a

notice of proposed removal based _ on

allegations of his sexual harassment

while a similarly-situated Caucasian

employee did not. This is so, argues

Davis, because the allegations against

him were eight years stale while the

allegations against the Caucasian

employee were more recent. A.F.R. 40-

750, at para. 20 ("management must

initiate inquiry while information is

fresh and readily available"). The Court

has carefully reviewed the evidentiary

submissions on this matter and finds

Davis’ claim to be without merit.?

The Court finds the sexual

harassment claim against Davis to be

well-grounded in fact. The disciplinary

action against him was initiated on

August 7, 1989, when Davis was notified

of his proposed removal from federal

employment. At the outset the Court

notes that Davis, a Black male

supervisor, admits to making some verbal

remarks to females. These admissions

1 pavis argues that he was notified

that he was going to be removed for

allegations of misconduct that occurred

eight years earlier. This

characterization is inaccurate. An

eight-year old allegation was made that

Davis took a married female co-worker,

Doris Mills, to his apartment where he

allegedly pulled down her panties and

while pulling down his own pants” she

fled. This incident was allegedly

verbally revealed to management, but no

written complaint was ever filed. There

were certainly more recent examples of

alleged harassment as found below, which

Davis fails to address in his brief.

make a good starting point for the

Court’s inquiry because unrefutably they

show that certain allegations were not

stale and raise suspicions that are

confirmed by other’ evidence. Davis

admits that in November 1988 he

"complimented" a Caucasian female, Rhonda

Brown, that she was "looking like a white

giri.* Rice’s brief at Ex. D, pp. 12,

14. Davis stated that the phrase was

used by many employees at Tinker Air

Force Base. Id. at p. 12. This incident

was witnessed by Brown’s’ supervisor,

Donna House, a Caucasian supervisor, whom

Davis dated. Incidentally, it was this

interracial relationship between Davis

and House, that Davis suggests was a

further motivation for the alleged racial

discrimination against him by the Air

Force. There is no evidence to support

this conclusionary allegation nor even a

hint of any evidence that could be

derived through further discovery. The

allegation is rejected outright. Dart

Indus. v. Plunkett Co. of Okla. Inc., 704

F.2d 496, 458 (10th Cir. 1983); Fed. R.

Civ. PB. S6(6). Davis did not even

address this issue in the affidavit he

submitted. e ace

Alliance v. Dole, 871 F.2d 943, 945-46

(Z9GR 6. CaF. 1989). However, even

conclusionary affidavits are insufficient

to overcome summary judgment. Luckett v.

Bethlehem Stee] Corp., 618 F.2d 1373,

1380 & n.7 (10th Cir. 1980).

Importantly, Davis also admitted

that he did not speak to Brown subsequent

to the admitted incident because she made

it clear that the "compliment" was

unwelcome. Rice’s brief at Ex. D, p. 12.

The unwelcome advance was acknowledged by

House. PS | ae - a © In a _ second

admitted incident Davis acknowledged

telling Cheryl Dinwiddie that she was

wearing a pretty dress. oo ac Pp. 12.

This incident occurred on April 6 or 7,

2969. id. at Ex. A, pp. 25, para. 8, 33-

34.

These two admissions by Davis are

informative. Sex discrimination in the

form of sexual harassment is’ seldom

admitted by perpetrators, and therefore

motivation must often be deduced from

circumstantial evidence. While these

admissions by themselves do not

incriminate Davis, they do raise serious

suspicions. A Black male supervisory

employee is clearly out of line when he

uses a sexually-loaded phrase such as

"you are looking like a white woman" to

an indirect, subordinate Caucasian female

employee. Second, this incident was

within nine (9) months of the initiation

of the disciplinary procedure and was not

stale. Significantly, Davis learned, or

should have learned, from the first

admitted incident that his compliments to

female subordinates were unwelcome.

Within five (5) months of this incident

he again admits to complimenting another

female subordinate, Cheryl Dinwiddie, in

regard to wearing a pretty dress. Even

this seemingly innocuous) admission

indicates questionable judgment in light

of the prior incident. Moreover,

Dinwiddie stated under oath that the

remark regarding her dress was not so

complimentary. She stated that Davis

remarked about her legs, and after

watching her come up a ramp told her that

she was going to have to quit wearing

that dress and showing off her legs. Id.

at p. 33. Brown also shed further light

on Davis’ "“compliment" to her. She

stated that he also stared at her and

looked her over from top to bottom. Id.

at p. 31. Brown stated that she felt so

uncomfortable that she began to avoid

Davis and changed her mode of dress.

16.3 Ga. B, ps 8.

The Tenth Circuit Court of Appeals

has expressed its strong concern for the

"menace of sexual harassment in the

workplace." tarrett v. Wadley, 876 F.2d

808, 815 n.9 (10th Cir. 1989). In

another case the Tenth Circuit decided

that an employer has the legal right to

terminate a supervisory employee based on

evidence in part that he pulled down his

zipper and told a female employee "if you

want it here it is." Wi iams v.

Maremont Corp., 875 F.2d 1476, 477-78

(10th Cir. 1989). In the instant case

the examples listed above justify the Air

Force’s action of demoting Davis from his

supervisory position. There is no

evidence before this Court that the Air

Force’s action was based on Davis’ race.

There is also no evidence in the record

that the Air Force disapproved of Davis’

interracial relationship. In the

administrative proceedings Davis’

principal evidence was affidavits from

female workers who stated that they were

not aware of any sexual harassment by

Davis. This character evidence simply

does not overcome the incriminating

evidence mustered against Davis. Davis’

Claims of discrimination are not well-

grounded in fact. and appear to be a

makeweight excuse by Davis to cover his

own misdeeds.

The Court also rejects Davis’

disparate treatment claim based on a

Caucasian, Don Fairbetter, receiving a

demotion based on fresh claims while the

allegations against Davis were stale.

The incidents cited above justify the Air

Force’s action and were not stale. Both

Davis and Fairbetter were given the same

punishment. There is also absolutely no

merit to Davis’ claim that he was

initially warned of removal while the

Caucasian was not. The evidence proves

otherwise. Rice’s brief at Ex. E, p. 27,

para. 1. The Court specifically finds

that Davis has not even proved a prima

facie case of racial discrimination.

McDonnel Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). Even if Davis had

shown a prima facie case then the non-

discriminatory reason for his demotion is

so overwhelming that summary judgment

would still have been granted to

defendant. Nix v. WLCY Radjo/Rahall

Communications, 738 F.2d 1181, 1184 (10th

Cir.) rehg denied en banc, 747 F.2d 710

(1984); see Grigsby v. Reynolds Metals

Co., 821 F.2d 590, 595-96 (11th Cir.

1987).

Furthermore, the Air Force had an

abundance of other evidence not admitted

by Davis, as weil as background

information, that supported the sexual

harassment claim against Davis.

Initially, in 1984 when Davis had first

been promoted to a supervisory position,

John Worley, retired Colonel, told Davis

that he was being promoted over the

objections of the General, which were

19°

based on protests by 20-30 women

employees concerning Davis’ reputation

for sexual harassment. Id. at EE, Ppp. 7-8.

Davis was on expressed notice of problems

with this behavior since that time and

had also received training as a

Supervisor on the problem of sexual

harassment. id, et xs. B, P-. 2. pare.

., €¢ & vB. 3. There was other evidence

of Davis’ misbehavior. For example,

Brown also swore under oath that Davis

had commented on her rear over the past

three years, had told her it was looking

good, and compared it with those of other

women. 8, Ot Oe. Ay OB Fi. There is

also persuasive, sworn evidence in the

record that Davis made many other

sexually-suggestive remarks, offensively

and aggressively touched femaie

subordinates, which included intimate

areas, and lewdly referred to various

women’s intimate body parts. 5 a... 2a.

at Ex. D, pp. 2, 5-11. There was further

evidence of uncomfortable physical and

pschological distress suffered by several

women, and background information that

one subordinate, Doris Mills, downgraded

her position to avoid further contact

with Davis. 1a, a wey 2s: Beco See

16. contrary to Davis’ argument to the

Administrative Law Judge on appeal this

evidence was corroborated by eyewitnesses

and was consistent with other evidence.

id. at Pp. 13. The Administrative Law

Judge did find that the alleged pre-1984

unwelcome sexual conduct toward Mills,

and the lack of specificity regarding

subsequent alleged harassment of her

could not be used to prove the charge

against Davis. Id. at p. 15; see note 1

above.

Finally, in his Complaint Davis

refers to several procedural problems

with the proceedings below, which were

only generally addressed in his brief.

First, Davis claimed that he was

threatened with a proposed removal, which

he contended was improper for a first

offense. This is really not an issue in

controversy as Davis was not ultimately

removed from federal service, but rather

only demoted. Moreover, if sexual

harassment by a supervisor is found to be

deliberate, which is supported by the

evidence here, then removal is within the

range of disciplinary options. Rice’s

brief at Ex. F, para. 29b. Second,

Davis’ contention in his Complaint that

Rice wilfully violated this procedure is

obviously without merit since no

foundational violation by Rice can be

found. Third, Davis’ contention in his

Complaint that Rice failed to perform a

proper investigation and therefore the

decision to demote Davis could not be

supported by the evidence is_ simply

unfounded. Davis did not even bother to

address this issue in his brief. If any

fault can be found with the Air Force it

might be that it erred on the side of

restraint in disciplining Davis. Davis

cannot quarrel with that result.

B. Fifth Amendment Due Process Claim

Davis argues that he was deprived of

fifth amendment due process because Rice

failed to follow its own regulations, and

the deciding official acted outside his

scope of authority. 0.8. Const. fifth

amend. In this respect, Davis argues

that his due process rights were violated

because Rice relied on stale,

unsupported, and internally contradictory

allegations of sexual harassment, and

such reliance was contrary to the Air

Force’s internal rules, regulations,

policies and procedures. The Court

rejects this contention. The Court has

already found that Davis’ demotion was

well justified by evidence that was

relatively recent to the disciplinary

event. For example, Cheryl Dinwiddie

provided evidence of sexually-suggestive

remarks which were made by Davis only

four months before disciplinary

procedures were initiated. Rice’s brief

at Ex. A, p. 33. This was one of several

examples which showed Davis participated

in recent, as well as chronic and

continuing, sexual harassment acts.

Davis did not explain in his brief how

the allegations of sexual harassment were

internally contradictory as alleged in

his Complaint. From a review of the

record the Court finds that the

allegations were consistent with each

other, and sworn statements by direct

witnesses were corroborated by statements

from eyewitnesses. Id. at Exs. A, pp.

28-54, & D, p. 13.

In his brief Davis argued that the

deciding official, Major Nugent, excluded

Davis’ supervisor from input into the

decision to demote Davis, and somehow

this violated Davis’ fifth amendment

rights. Davis did not offer any

citations of authority that required

input from his supervisor except a mere

conclusionary remark in an affidavit that

this was a violation of internal

procedures. This gesture does not

overcome summary judgment.

The Court also does not find this

argument persuasive even if input from a

Supervisor was required by regulation.

Davis had an opportunity to make a

written reply to the allegations and

could have elicited input from his

supervisor. See id. at Ex. E, p. 31.

Further, Davis had an opportunity to

present evidence and witnesses to the

Merit Systems Protection Board. Id. The

record reflects that Davis waived his

right to a hearing with the effect that

the appeal was decided on written

submissions. Id. at Ex. C, pp. 1-2. It

appears that Davis offered no affidavit

from his supervisor which he now meekly

argues would have changed the entire

outcome of the decision. This right if

it exists was waived.

In his Complaint Davis contended

that the demotion was arbitrary and

capricious because it did not conform to

a fair standard of proof. The only

argument that Davis conceivably makes in

his brief in this regard concerns the

stale claims, which the Court has not

found convincing. Davis’ due process

claim is without merit.

Furthermore, Rice argues that in his

Complaint Davis stated that he was

deprived of his due process’) rights

because of racial discrimination. If

this is so then Davis’ exclusive remedy,

as a federal civil employee, would be

under Title VII. Brown v. GSA, 425 U.S.

820, 824-29 (1976). Alternatively, if

the due process claims do not arise out

of. discriminatory acts, but rather under

procedural errors used to determine

Davis’ demotion, which is more likely,

then Davis’ exclusive remedy is the Civil

Service Reform Act. 5 U.S.C. Ch. 75; see

Bush _ v. Lucas, 462 U.S. 367, 386 (1983)

("Constitutional challenges to agency

action, such as the First Amendment

claims raised by petitioner, are fully

cognizable within the system.")

Therefore, even if Davis’ constitutional

Claims under the fifth amendment were

meritorious, which they are not, they

would have to be dismissed. Either way

Davis cannot prevail.

¢. Fifth Amendment Equal Protection

Claim

Finally, Davis contends that he has

been intentionally discriminated against

based on his race, and that similarly-

Situated persons have been treated

differently based on racial

consideration. In his brief Davis hinged

this claim on the staleness issue and his

supervisor’s lack of input in the

demotion decision. These arguments are

without force. The Court notes that

Davis did not allege that the input of a

Caucasian’s supervisor was elicited as an

example of unequal treatment. Outside of

Davis’ conclusionary statements the Court

has found absolutely no basis to conclude

that there was racial discrimination or

unequal treatment. The equal protection

claim is without merit, and also suffers

from the same subject matter jurisdiction

problems as the due process claims. 28

U.S.C. § 1331; Bush v. Lucas, 462 U.S. at

386.

V. CONCLUSION

Accordingly, summary judgment is

GRANTED to Rice, and he is hereby

directed to file a final entry of

judgment consistent with this Order and

the local rules. W.D. Okla. R. 23(A).

IT IS SO ORDERED THIS 24th DAY OF

SEPTEMBER, 1990.

Zs/

LAYN R. PHILLIPS

UNITED STATES DISTRICT JUDGE

APPENDIX "C"

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

JAMES DAVIS,

Plaintiff,

No. CIV-90-

776-P

vs.

DONALD B. RICE,

Secretary of the Air

Force,

Defendant.

JUDGMENT

Comes before the Court the Motion

for Summary Judgment filed by the

defendant, Donald B. Rice, Secretary of

the Air Force, on July 16, 1990. Being

fully advised of the premises, and in

accordance with this Court’s Order

Granting Summary Judgment dated September

24, 1990;

IT IS S$O ORDERED, ADJUDGED AND

DECREED that Judgment shall be entered on

behalf of the defendant, Donaid B. Rice,

Secretary of the Air Force.

IT IS SO ORDERED.

Dated this 17th day of October,

1990.

Ls/

LAYN R. PHILLIPS

UNITED STATES DISTRICT JUDGE

ENTERED ON JUDGMENT DOCKET ON

10-17-90

Approved as to Form Only:

Lewis Barber, Jr.

Attorney for Plaintiff

Steve K. Mullins

Assistant United States Attorney

Attorney for Defendant

APPENDIX "D"

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAMES DAVIS,

Plaintiff-Appellant,

No. 90-6358

DONALD B. RICE,

Secretary, Department of

the Air Force,

Defendant-Appellee.

ORDER

Filed August 1, 1991

Before ANDERSON, TACHA, BRORBY, Circuit

judges.

This matter comes on for

consideration of appellant’s petition for

rehearing filed in the captioned cause.

Upon consideration whereof, the

petition for rehearing is denied.

Entered for the Court

LZsl

ROBERT L. HOECKER, Clerk

APPENDIX "E"

TITLE 5 U.S.C. § 7703.

Judicial review of decisions of the

Merit Systems Protection Board

(a) (1) Any employee or applicant for

employment adversely affected or

aggrieved by a final order or decision of

the Merit Systems Protection Board may

obtain judicial review of the order or

decision.

(2) The Board shall be the named

respondent in any proceeding brought

pursuant to this subsection, unless the

employee or applicant for employment

seeks review of a final order or decision

issued by the Board under section 7701.

In review of a final order or decision

issued under section 7701, the agency

responsible for taking the action

appealed to the Board shall be the named

respondent.

(b) (1) Except as provided in paragraph

(2) of this subsection, a petition to

review a final order or final decision of

the Board shall be filed in the United

States Court of Appeals for the Federal

Circuit. Notwithstanding any other

provision of law, any petition for review

must be filed within 30 days after the

date the petitioner received notice of

the final order or decision of the Board.

(2) Cases of discrimination subject to

the provisions of section 7702 of this

title shall be filed under section 717(c)

of the Civil Rights Act of 1964 (42

U.S.C. 2000e-16(c)), section 15(c) of the

Age Discrimination in Employment Act of

1967 (29 U.S.C. 633a(c)), and section

16(b) of the Fair Labor Standards Act of

1938, as amended (29 U.S.C. 216(b)), as

applicable. Notwithstanding any other

provision of law, any such case filed

under any such section must be filed

a niet ee

within 30 days after the date the

individual filing the case received

notice of the judicially reviewable

action under such section 7702.

States Court of Appeals for the Federal

Circuit, the court shall review the

record and hold unlawful and set aside

any agency action, findings, or

conclusions found to be--

(1) arbitrary, capricious, an abuse

of discretion, or otherwise not in

accordance with law;

(2) obtained without procedures

required by law, rule, or regulation

having been followed; or

(3) unsupported by substantial

evidence;

except that in the case of discrimination

brought under any section referred to in

subsection (b)(2) of this section, the

employee or applicant shall have the

right to have the facts subject to trial

de novo by the reviewing court.

(d) The Director off the Office of

Personnel Management may obtain review

off any final order or decision of the

Board by filing a petition for judicial

review in the United States Court of

Appeals for the Federal Circuit if the

Director determines, in his discretion,

that the Board erred in interpreting a

civil service law, rule, or regulation

affecting personnel management and that

the Board’s decision will have a

substantial impact on a civil service

law, rule, regulation, or policy

direccive. If the Director did not

intervene in a matter before the Board,

the Director may not petition for review

of a Board decision under this section

unless the Director first petitions the

Board for a reconsideration of its

decision, and such petition is denied.

In addition to the named respondent, the

Board and all other parties to the

proceedings before the Board shall have

the right to appear in the proceeding

before the Court of Appeals. The

granting of the petition for judicial

review shall be at the discretion of the

Court of Appeals.

APPENDIX "F"

29 C.F.R. §$ 1613.214

Filing and presentation of complaint.

(a) Time limits. (1) An agency shall

require that a complaint be submitted in

writing by the complainant. The

complaint may be delivered in person or

submitted by mail. The agency may accept

the complaint for processing in

accordance with this subpart only if-

(i) The complainant brought to the

attention of the Equal Employment

Opportunity Counselor the matter causing

him\her to believe he\she had _ been

discriminated against within 30 calendar

days of the date of the alleged

discriminatory event, the effective date

of an alleged discriminatory personnel

action, or the date that the aggrieved

person knew or reasonably should have

known of the discriminatory event or

personnel action....

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