Petition for Writ of Certiorari — Jones v. Department of Human Resources

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No. [oer eme Court, U.S.

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IN THE | | YON 15 9g,

SUPREME COURT OF THE UNETED STRPBS |

TERM: OCTOBER 1983

ROLAND A. JONES,

PETITIONER,

DEPARTMENT OF HUMAN RESOURCES (DHR),

STATE OF GEORGIA, et al.,

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ROLAND A. JONES

PRO SE

1390 HEATHERLAND DR.

ATLANTA, GA 30331

(404) 344-1332

QUESTIONS PRESENTED FOR REVIEW

I. WHETHER A MEMBER OF THE PROTECTED GROUP

IS STILL PROTECTED UPON BECOMING A PRO-

BATIONARY EMPLOYEE?

II. WHETHER A CLASSIFICATION OF "PROBATION",

WITHOUT SAFEGUARDS TO PREVENT DISCRI-

MINATION, IS IN VIOLATION TO SEC. 703

(a), TITLE VII, AND CAN IT BE USED AS A

MECHANISM TO DISMISS MINORITIES PRIOR

TO THE END OF PROBATION?

III. WHETHER BISHOP AND ROTH WHEN INVOKED BY

f@ESPONDENTS AS A DEFENSE AGAINST DISCRI-

MINATION FORECLOSED ON RIGHTS PRO-VIDED

OR BY GRIGGS AND McDONNELL

IV. WHETHER BISHOP y. WOOD SHOULD BE OVER-

RULED, OR REDEFINED, IN ITS' APPLICATION

TO MEMBERS OF THE PROTECTED GROUP WHEN

THEY ARE PROBATIONARY/WORKING TEST?

V. WHETHER THE INVOLUNTARY SEPARATION RULE

12.301.1 IS VAGUE IN ITS MEANING, AND

BY PETITIONER'S SPEEDY TERMINATION,

IS ITS APPLICATION ARBITRARY AND FORE-

CLOSED ON 1ST AMENDMENT AND SECTION 704

(A) RIGHTS TO SPEAK AGAINST DISCRIMI-

NATORY TREATMENT AGAINST HIS PERSON?

VI. WHETHER NOT BEING ALLOWED ACCESS TO IN-

HOUSE GRIEVANCE PROCEDURES IS IN VIOLA-

TION TO SEC. 704 (a), TITLE VII?

VII. WHETHER ROTH, AND PICKERING SHOULD ,BE

OVERRULED, OR REDEFINED, IN THEIR APP-

LICATION TO PROTECTED GROUP 704 (a)

RIGHTS?

VIII. WHETHER PETITIONER PLACED BEFORE THE

COURTS SUFFICIENT PRIMA FACIA INFORMA-

TION/EVIDENCE FOR DISCRIMINATION AND

RETALIATION?

IX. WHETHER DISCRIMINATION WAS THE RESULT?

CERTIFICATE OF INTERESTED PERSONS

I HEREBY CERTIFY that the following persons

are interested in the outcome of this case:

The Honorables Godbold, Chief Judge, Roney,

and Tjoflat, Circuit Judges, 1lith Circuit.

The Honorable Marvin H. Shoob, District

Court for the Northern District of Georgia.

Roland A. Jones, Lt. Col., U.S. Army

(ret.) (Petitioner).

Respondents:

Dr. L. Patricia Johnson, Division of Family

and Children Services (DFACS), DHR, 47 Trinity

Avenue, S.W., Atlanta, Georgia 30334.

Mr. Douglas G. Greenwell, DFCAS, DHR, 47

Trinity Avenue S.W., Atlanta, Georgia 30334.

Mr. Truman A. Moore, DFACS, DHR, 47 Trinity

Avenue S.W., Atlanta, Georgia 30334.

Mrs. Barbara G. Deedy, DFACS, DHR, 47 Tri-

nity Avenue S.W., Atlanta, Georgia 30334.

Ms. Diana K. Fox, DFAC, DHR, 47 Trinity

Avenue S.W., Atlanta, Georgia 30334.

Mr. Wayne P. Yancey, Attorney for Respondents.

TABLE OF CONTENTS

QUESTIONS PRESENTED. .cccevcccvvcevecsceccvveed

OPINIONS. .cccccccccccccccccccccccsecccccccceel

JURISDICTION. .ccccccccccvccccccvcvesesesvcvssee

CONSTITUTIONAL PROVISIONS INVOLVED......XVI, 2

FEDERAL STATUES INVOLVED... .ccccceceeeeeXVI, 2

STATE STATUES INVOLVED... cccceveeeeeeeXVII, 3

F.R. Civ. P RULES. XVIII, 3, 10,11,13,14,18,20

MERIT SYSTEM RULES AND REGULATIONS

TRVOL VED eo cccccccccccccecececcesksahy 3» APPEN F

STATEMENT OF THE CASE... cccccccccccvcsccceeeed

SUMMARY OF ARGUMENT... cccccccccvcccvcesesees IO

REASONS FOR GRANTING THE WRIT... cccceccceveell

ARGUMENTS:

I. A MEMBER OF THE PROTECTED GROUP

IS STILL PROTECTED UPON BE-

COMING A PROBATIONARY EMPLOYEE......24

Il. A CLASSIFICATION OF "PROBA-

TION", WITHOUT SAFEGUARDS TO

PREVENT DISCRIMINATION, IS _ IN

VIOLATION TO SEC. 703 (a),

TITLE VII, AND CAN BE USED AS A

MECHANISM TO DISMISS MINORI-

TIES PRIOR TO THE END OF PROBA-

EE EE es err rerey +

III. BISHOP AND ROTH WHEN INVOKED BY

RESPONDENTS AS A DEFENSE

AGAINST DISCRIMINATION FORE-

CLOSES ON RIGHTS PROVIDED FOR

BY GRIGGS AND MACDONNELL... cece eeee eed

iii

IV. BISHOP vy. WOOD SHOULD BE OVER-

RULED, OR REDEFINED, IN ITS'

APPLICATION TO MEMBERS OF THE

PROTECTED GROUP WHEN THEY ARE

PROBATIONARY/WORKING TEST..... 20000225

V. THE INVOLUNTARY SEPARATION RULE

12.301.1 IS VAGUE IN ITS MEAN-

ING, AND BY PETITIONER'S

SPEEDY TERMINATION, ITS' APPLI-

CATION IS ARBITRARY AND FORE-

CLOSED ON 1ST AMENDMENT AND

SECTION 704 (A) RIGHTS TO SPEAK

AGAINST DISCRIMINATORY TREAT-

MENT AGAINST HIS PERSON... ..eceeeeeee 238

VI. NOT BEING ALLOWED ACCESS TO IN-

HOUSE GRIEVANCE PROCEDURES IS

IN VIOLATION TO SEC 704 (a),

TITLE SP ys Le ee

VII. ROTH, AND PICKERING SHOULD BE

OVERRULED, OR REDEFINED, IN

THEIR APPLICATION TO PROTECTED

GROUP 704 (a) Pdees 6686S esc cccsoeee

VIII. PETITIONER PLACED BEFORE THE

COURTS SUFFICIENT PRIMA FACIA

INFORMATION/EVIDENCE FOR DIS-

CRIMINATION AND RETALIATION..........48

IX. DISCRIMINATION WAS THE RESULT.25, 38, 48

CONSE BR Rs 6b 666 hROEHERE ENE DREESOOERES OCC eC eee

APPENDIX A = MEMORANDUM ORDER OF THE

U. S. COURT OF APPEALS

FOR THE 11th CIRCUIT.....APPEN, 1

APPENDIX B = MEMORANDUM ORDER OF THE

U.S. DISTRICT COURT FOR

THE NORTHERN DISTRICT

OF GEORGIA... ccc eeeeeeece se APPEN, 6

APPENDIX C = REHEARING JUDGMENT......APPEN, 16

APPENDix

APPENDIX

CASES:

D = COMPLAINT EVENTS/CIRCUMSTANCES.20

E = MOTION FOR RECONSIDERATION...A,50

F-MERIT SYSTEM RULES/REGULATIONS.A,75

G = GUIDANCE FROM THE MERIT SYSTEM'S

COMMISSIONER......++++--APPEN, 87

PETITIONER'S QUALIFICATIONS FOR

MGMT INFORMATION SYSTEMS.....A,94

PETITIONERS QUALIFICATIONS FOR

TRAINING COORDINATOR.

PETITIONER'S NOTIFICATION TO

SUPERVISORS OF HIS INTENT TO FILE

A GRIEVANCE, MERIT SYSTEM'S

GRIEVANCE PROCEDURE, AND

SUPERVISORS RESPONSE........-A4;96

PETITIONER'S BASIC RIGHTS.

PETITIONER'S BIRTH CERTICICATE.

TABLE OF AUTHORITIES

PAGE:

ADAMS V. MCDOUGAL,

695 F.2d 104 (11th Cir. 1982)

wee ces ell 28, 33439,44, 64

ADICKES V. S.H. KRESS CO.,

398 U.S

144 Cen) 660646 60600603000 ERO

AFRO AMERICAN PATROLMEN'S

LEAGUE V. DUCK, 503 F.2d 294 (1974).......28

AFL-CIO V PRAT=-FARNSWORTH,

690 F.2d 489 (11Th Cir of Prey re res

ALBERMARLE PAPER CO. V. MOODY,

422 U.S. 405 Err 6 nk 60 66066 460045504400608

ALBITZ V. STATE OF GEORGIA,

N.D. GA 4 ye Ly rere 10, 21, 28

ALLEN V. AUTAUGA COUNTY

BOARD OF EDUCATION,

685 F.2d 1302 (11th Cir. 1982 Aia.)..28, 47

ALLISON V. WESTERN

UNION TELEGRAPH CO.,

680 F.2d 1318 (11th Cir. 1982 Ga.)...28, 62

ARNETT V. KENNEDY,

416 U. Se 134 C19TR) wcccccccscescesccsesealD

BARNES V. COBT hic 000006650606 666000006006008

BARKSDALE V. KING,

699 F.2d 744 (11TH Cir. 1983 La.)....28, 61

BARNETT V. HOUSING AUTHORITY

OF CITY OF ATLANTA,

707 F.2d 1571 (11th Cir. 1983)...28, 47, 48

BISHOP V. WOOD,

426 U.S. 345 344 (1976)

BLACKE V. CITY OF LOS ANGELES,

19 FEP 1441 ec, ) Ae ere S eT Pe Tre eer

BOARD OF REGENTS V. ROTH,

408 U.S. 341 (1972)

BOARD OF TRUSTEES V. SWEENY,

58 LEd. 2d 216 See

BOURQUE V. POWELL ELECTRICAL MFG. CO.,

617 F.2d 61 (5th Cir. WOOO) c he dadecececcsde

BRACEWELL V. NICHOLSON AIR SERVICES,

680 F.2d 103 (11th Cir. 1982 Ga.)....14, 28

BRIDGEPORT GUARDIANS INc V.

BRIDGEPORT CIVIL SERVICE COMMISSION,

482 F.2d 1333 6) Serr TT

BROWN V. LANCE,

637 F.2d 272 (5th Cir. GUE a 60.06 6600056008

BURDINE V.. TEXAS DEPT

OF COMMUNITY AFFAIRS,

608 F.2d 563 (5th Cir. 1979)

CARPENTER V. STEPHEN F.

AUSTIN STATE UNIVERSITY,

706 F.2d 836 (5th Cir. FUT bs ceceenseeeee

CARPENTER V. STEPHEN F.

AUSTIN STATE UNIVERSITY, ~

706 F.2d 608 (11th Cir. 1983 Tex.).......61

CARPENTERS LOCAL UNION NO.

1846 OF UNITED BROTH.

OF CARPENTERS AND JOINERS

OF AMERICA, ALF-CIO V. PRATT-FARNSWORTH INC,

690 F.2d 489 (11th Cir. 1982 La.).. .18, 28

CARTER V. GALLAGHER,

452 F.2d 315 Pe tis 66x 06s oeeneeecns couse

CASTRO V. BEECHER,

459 F.2dd 725 Carrer err: TT Tee

CEADER COAL CO. V. UNITED

MINE WORKERS OF AMERICA,

506 F.2d 1153 (Ath Cir. 1977) -cceceeeseeee28

CENTRAL FREIGHT LINES, INV. V. U.S.,

669 F.2d 1063 (11th Cir. 1982)........25, 28

CERVANTEE V. GUERRA,

F.2d (Sth Cir. | , Prewrrrerr ere tT ree fe 28

CHANCE V. BOARD OF EXAMINERS,

458 F.2d 1167 4 PP eererrrTT eer TT TT TT

CLEVELAND BOARD OF ED. V. LAFLEUR,

414 U.S. 632 4. Ph rrerrrre et Pere reeT Te

CONERLY V. WESTINGHOUSE ELEC. CORP.,

623 F.2d 117 (9th Cir. WER) ccccsesecevesele

vii

CONNICK V. MYERS,

U.S. 103 S Ct. 1684,

75 L.Ed.2d 708 ER 40666660606 006066000088

COOPER V. ALLEN,

467 F.2d 836 (5th Cir. BOTA vcccccscsecesele

CORLEY V. JACKSON POLICE DEPARTMENT,

566 F.2d 994 (5th Cir. 1978)......28, 42, 43

DAVIS V. PASSMAN,

60L. Ed 2d 846 EOBTO) ccc covscdccseseecedbeee

DAVIS V. WEIDER,

596 F.2d 726 Co aero

(DHR GA) KENNEDY V. CRITTENDEN,

No.-77=-200-MAC (11th Cir. Nov 24 1982)4,21,28

(DHR GA) RAY V. JOSEPH EDWARDS,

11Th Cir. No. 82-2229. cee eeeeeneeeeer eee ecd

(DHR) WHITTAKER V. DHR GA,

US DIST Ct ND GA 1980 CA C79-2311A,

30 Fr Serv 2d 931....eeee00 0221, 22, 28, 62

DOE V. PLYER,

628 F.2d 448 (5th Cir. 1980 Tex.).28, 37, 63

DOLLAR V. HARALSON COUNTY, GEORGIA,

704 F.2d 1540 (11 Cir. 1983).....++2.-28, 53

DOTHARD V. RAWLINSON,

433 U.S. 321 fete ebb 60060 60060606605006008

DUMAN V. TOWN OF MT. VERNON,

612 F.2d 974 (5th Cir. See doccsteoscsacecsene

EASTLAND V. TENNESSEE VALLEY AUTHORITY,

704 F.2d 613 (11th Cir. |) res >

EEOC V. AMERICAN NATIONAL BANK,

652 F.2d 1176 (4th Cir. 1981). .cceceeeeeee28

EEOC V. AT&T,

556 F.2d 167 ROT Pc dcesenesctbassesesecceane

FF FF.

soe. h(6*S

EEOC V. NAVAJO REFINING CO.,

593 F.2d 988 etn hah eta} oe ee 6 oe a Oe

EEOC V. TROY STATE UNIVERSITY,

693 F.2d 1353 (11th Cir. 1982 Ala.). .14, 28

EL RANCO INC. V. FIRST

NATIONAL BANK OF NEVADA,

406 F.2d 1205 (9th Cir. 1968)......e00 000 228

ESTRBAN V. CENTRAL MISS STATE COLLEGE,

415 F.2d 1077 Us snide he0860660000606e00N8

FIREFIGHTERS INSTITUTE V.

CITY OF ST. LOUIS, 616 F.2d 350 (1980).....28

FISHER V. PROCTER & GAMBLE,

613 F.2d 812 4, | eae Peres

FLOWERS V. CROUCH=-WALKER,

552 F.2d 1277 (7TH Cir. PUTTTTITTT TT 49

FRIED V. LEIDINGER,

588 F.2d FT Ae ee ee

FURNCO CONSTRUCTION CORP.

V. WATERS, 438 U.S. 567 4 | ia

GARCIA V. GLOOR,

609 F.2d 156 modified

by 618 F.2d (5th Gale Weed ocececesvcsaes 61

GRAY V. FIDELITY ACCEPTANCE CORP.,

634 F.2d 226 (5th CAP. | er

GREEN V. MISSOURI PACIFIC

RAILROAD COMPANY,

423 F.2d 1290 Pur Dibne ob 666646660000000088

GRIGGS V. DUKE POWER CO.,

401 U.S. 424 (1971).6, 9, 11, 15, 28, 61, 65

GIVHAN V. WESTERN LINE CONSOLIDATED

SCHOOL DIST,

429 U.S. 410 4g )RRPPUTTTT TT PeTTTTTTTiieT

HAMILTON V. GENERAL MOTORS,

606 F.2d 576 (5th Cir. 1979)......24, 28, 54

HAMM V. MEMBERRS BOARD OF REGENTS

OF STATE OF FLORIDA,

708 f£.2D 647 (11TH cIR. 1983)......22..28, 44

HAMPTON V. MOW SUN WONG,

426 U.S. 88 (og A Pe ewer r see se ee ks eS

HANDLEY BY AND THROUGH

HERRON V. SCHWEIKWER,

697 F.2d 999 (11th Cir. VeOesiiccécsctsviconvtee

HARLESS V. DUCK,

619 F.2d a eg cree ee A ee

HARRELL V. NORTHERN ELECTRIC COMPANY,

672 F.2d at EEE oe aor tT

HAZELWOOD SCHOOL DISTRICT V. U.S.,

433 U.S. 299 hie ef Pee ere eee ra eee

HIGH OL' TIMES INC. V. BUSBEE,

673 F.2d 1255 (11th Cir. 1982 Ga.)....28, 60

HODGESON V. GREYHOUND LINES INC.,

499 F.2d 859 gt 8 ee es a

HOFFMAN=LAROCHE INC. V. GREENBERG,

872 875 (7th Cir. SEG Ratauere oo 0 hs he sees bee

HOHMAN V. HOGAN,

SOT £88 GOP Ue CEE VEIN. ac cdecesaeses9

JACKSON V. SEABOARD COAST LINE R. CO.,

678 F.2d 992 (11th Cir. 1982 Ga.).....28, 56

JEAN V. NELSON,

711 F.2d 1455 (11th Cir. 1983).19, 28, 49,51

JEFFERIES V. HARRIS COUNTY

COMMUNITY ACTION ASSOCIATION,

615 F.2d 1025 (5th Cir. 1980).28,35,45,46,64

JOHNSON V. CITY OF ALBANY GEORGIA,

413 F.Supp. 782 (M.D. Ga. Deer obeseeccedsi fe

JOHNSON V. CITY OF OPELOUSAS,

656 F.2d 1065 (5th Cir. 1961) ...00600+28, 37

JONES V. TRI-COUNTY ELECTRIC CORP.,

512 F.2d 1 (5th Cif. eee ee ee

JONES V. WESTERN GEOPHYSICAL CO. OF AMERICA,

669 F.2d 280 (5th Cir. 1982 2S eee.

JUNIOR V. TEXACO INC.,

688 F.2d 377 (11th Cir. 1982 Tex.)....14, 18

JURECZKI V. CITY OF SEABROOK TEX.,

668 F.2d 851 (5th Cit. 1982 Tee. Pas c00ss 008

KENNEDY V. (DHR GA) CRITTENDEN,

No.-77-200=-MAC (11th Cir Nov 24 1982)4,21,28

KING V. NEW HAMPSHIRE DEPT

OF RESOURCES AND ECONOMIC DEVELOPMENT,

562 F.2d ot op gk ee ee

KIRKLAND V. NEW YORK STATE

DEPARTMENT OF CORRECTIONAL SERVICES,

520 F.2d 420 CG 6 ban e's oh 6b 6 60s see e cee

LEWIS V. TOBACCO WORKERS,

577 F.2d 1135 | ea ee

MAEHREN V. CITY OF SEATTLE,

599 F.2d 1255 PD ci hick ce ebes cbee chant ee

MARKS V. PRATTCO, INC.,

607 F.2d 1153 (5th Cir.) esceveseeseeee28, 50

MARSHALL V. GOODYEAR TIRE & RUBBER,

554 F.2d 730 EF bd win de ci pulls Cease

MATTER OF GAC CORP,

681 F.2d 1295 (11th Cir. 1982 Fla.)...28, 46

MCDANIEL V. EXXES INT'L INC.,

571 F.2d 338 a) Se eae me ee

MCDONNELL DOUGLAS V. GREEN,

411 U.S. 792 (1973)...15, 28, 49, 57, 64, 65

MEYER V. BROWN & ROOT CONST. CO.,

661 F.2D 369 (5TH Car. 1981 TOG426s cvewsssne

MEYER V. MISSOURI STATE HIGHWAY COMMISSION,

567 F.2d 804 09097 8666s cot es 04635 0 od 0s eee

MILLER V. TEXAS BOARD OF BARBER EXAMINERS,

22 FEP 1128 (5th Cir. 1980) .cccccccccccceced

MONELL V. DEPT. OF SOCIAL SERVICES,

436 U.3. 658 1. err. Ll!

MONROE V. POPE,

365 Gee 167,

84 a 473-5L.Ed.2 492 (9061 1 .0<6sen cue

MONTGOMERY V. BOSHEARS,

698 F.2d 739 (11th Cir. 1983 Miss.)...28, 44

MOREY V. INDEPENDENT SCHOOL DIST. BD. OF

ED., 312 F. Supp 1257 (MINN 1969) aff'd

429 F. 2d 428 (8Th Cir do): eee er

MOSBY V. WEBSTER COLLEGE,

563 F.2d 901 a. 4 PR See

MT. HEALTH CITY SCHOOL DIST BD. OF ED.,

429 U. Se 410 (JET O 60.00.00 6v'o0 cudiee d¥s0008nF

MULLER V. U.S. STEEL,

509 F.2d 923 (10th Cir. 1973) .cecscceeeeee2d

NAACP V. ALLEN,

493 F.2d 614 Ae ee

NAACP V. CITY OF EVERGREEN ALABAMA,

693 F.2d 1367 (11th Cir. WER). daccdscenctlD

NAVARETTE V. ENOMOTO,

536 F.2d 277 (9th Cir. SOTG) oc ckénle cence

NORTHEAST GEORGIA RADIOLOGICAL

ASSOC. PC V. TIDWELL,

xii

OTe Peee Ser toem CAP. 1982) ....00000-28, 37

OSCAR MAYER & CO. V. EVANS,

60 LEd 2d, 609 LE SEE TOPE TEEEET {

PARHAM V. SOUTHWESTERN BELL TELEPHONE CO.,

433 F.2d 421 (8th Sar’. tt one oe ote

PAYNE V. TRAVENOL LABORATORIES INC.,

673 F.2d 798 (5th Cir. Pe

PERRY V. JOHNSON PRODUCTS CO. INC.,

698 F.2d 1138 (11th Cir. 1983)........28, 63

PERSONNEL ADMINISTRATION V. FEENEY,

60 | Ed.2d 870 EE ESTEE TELE

PETTWAY V. AMERICAN CAST IRON PIPE COMPANY,

4g4 F.2d 211 EEE Ee |

PHILLIPS V. JOINT LEGISLATIVE COMMITTEE,

PICKERING V. BOARD OF ED.,

PIERSON V. RAY,

286 = ¥ 547 ee cee cecces eck

POUNCY V. PRUDENTIAL INS. CO.,

668 F.2d 795 (5th Cir. 1982 Tex.).........28

QUALITY FOODD DE CENTRO AMERICA S.A. V.

LATIN AMERI AGRIBUSINESS DEV CORP.,

711 F.2d 989 (11TH Cir. 1983 Fla.)........28

RAY V. (DHR) JOSEPH EDWARDS,

11th Cir. No. EEE EE.

REDMOND V. GAF CORP.,

574 F.2d 897 eer ccccec eee

RHENQUIST, THE HONORABLE, IN BISHOP,

426 v.38. 345 IIS FFT TTET ETT >)

RIVERA V. CITY OF WICHITA FALLS,

614 F.2d 1358 1364 (5th Cir. 1980)........28

x11ii

ROBERTS V. WILLIAMS,

456 F.2d (5th Care WOT Cis kévecstescadeceiinste

ROBINSON V. DALLAS,

514 F.2d 1271 bo OPE eee ee ee

ROWE V. GENERAL MOTORS CORP.,

457 F.2d 348 359 (5th Cir. 7) aaa

RUTHLEDGE V. ELECTRIC HOSE AND RUBBER,

1267 CoD. CA 8) eS ee eee

SAGER V. YELLOW FREIGHT SYSTEM INC.,

529 F.2d 721 CU 666s b6ebebcbbonb6s ceascne

SARABIA V. TOLEDO POLICE PATROLMAN'S ASSOC.,

601 F.2d 914 ao) rere

SCHNEIDER V. THE CITY OF ATLANTA,

628 Fe 2d 915 (5Th Gir pacoweeee 6046066068050

SERVICE V. DULLES,

35% U.S. 372 (1957) wcccccvccccccccccsvccceed

SIAS V. CITY DEMONSTRATION AGENCY,

588 F.2d 692 ih 7 ES eke ee

SKEHAN V. BOARD OF TRUSTEES,

538 F.2d 53 (3rd Cir./en banc 1976).......28

SLEDGE V. J. P. STEVENS CO. INC.,

585 F.2d 625 i EE RP Ee ee ee

SMITH V. RABALAIS,

659 F.2d 539 (5th Cir. 1981 La.)......25, 28

STAFFORD V. MUSCOGEE COUNTY BD OF EDUCATION,

No. 81-7101 (11th Cir. Oct 15 aero

STATE EXCHANGE BANK V. HARTLINE,

693 F.2d 1350 (11th Cir. 1982 Fla.).......28

STROUD V. DELTA AIRLINES (11TH Cir)........35

TAYLOR V. PHILLIPS INDUSTRIES,

19 FEP 177 Leese babes 60 646660000 6640Re

X1V

TEAMSTER V. U.S.,

431 U.8. 324 CRT tT hos ke RRO SRS as Beha

TURNER V. FOUCHE,

396 U.S. 346 90 S.Ct. 532 24

L.Ed.24 567 4. | Te Pee PTTL TTT

U.S. V. CITY OF ALEXANDRIA,

614 F.2d 1358 (Sth Cir. 1980). .cccccveeeee28

U.S. V. CITY OF CHICAGO,

573 F.2d 416 a, a a ee

U.S. V. JACKSONVILLE TERMINAL CO.,

451 F.2d | eee a ee ee ee

UNITED CAROLINA BANK V. BOARD OF REGENTS,

655 F.2d 553 6, 7 eae ae ee eee

UNITED STATES V. HAYES INTERNATINAL CORP.,

456 F.2d 112 120 (5th Cir. 1972).....22+2228

UNITED STATES V. JACKSONVILLE TERMINAL CO.,

451 F.2d at eg a ee ee ee as a

UNIVERSITY OF CA REGENTS V. BAKKE,

438 U.S. 256 ¢.. >} Aer 37

VITARELLI V. SEATON,

359 U.S. 535 iC (ih rye

WASHINTONN V. DAVIS,

426 Dede 229 ET ai 646 60 65s aw eeeebes cane

WEBSTER V. REDMOND,

559 F.2d 793 (5th Cir. 1979)......28, 64, 65

WHIRL V. KERN,

407 F.2d 781 (5th Cir. TOR temas tgoxenneee

WHITING V. JACKSON STATE UNIVERSITY,

22 FEP 1296 (5th Cir. 1980).....22...-28, 52

WHITTAKER V. DHR GA,

US DIST Ct ND GA 1980 CA C79=-2311A,

30 FR Ser2d 931. ccccccccccccscely Sey 20, 62

WIERMAN V. UPDEGRAFF,

344 U.S. 183 192 PIU cccéuadnancendeeneaeue

WILKINS V. UNIVERSITY OF BOSTON,

654 F.2d 394 ree ee rere rrr rey

WILLIAMS V. CITY OF VALDOSTA,

689 F.2d 964 (11th Cir. 1983)......222-28, 43

WILLIAMS V. CODD,

459 F.Supp. 804 SD. NY & i Peer

WILLIAMS V. DEKALB COUNTY,

577 F.2d 248 (Paver cckeecdtavecdddeesekenee

WILLIAMS V. MACON TELEGRAPH PRINTING CO....35

WOOD V. STRICKLAND,

420 U.S. 308 ¢ eer ee

WRIGHT V. NATIONAL ARCHIVES

AND RECORDS SERVICE, 609 F.2d 702 (1979)...28

YUHAS V. LIBBEY OWNES FORD CO.,

562 F.2dd 496 CVOTT Sct ebb bree bdwaddebeeen Ge

CONSTITUTIONAL AND FEDERAL PROVS, INVOLVED

FIRST ANENDMERT.. ceccccccovsessoelis 39, 40, 43

FIFTH ANERDAENT . cc c'o nv ueeeseebuceeescousseeett

"no person...Shall be deprived of life,

liberty, or property, without due pro-

cess of law..."

FOURTEENTH AMENDMENT...14, 17, 25, 36, 55, 63

"no State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State ...deny to

any person within its jurisdiction the

equal protection of the laws" [emphasis

supplied].

FEDERAL LAWS

28 U.5.C. COSCO STs CRC Ccaseeeeeevesces B4% 18

42 U.S6C. 1981, MT VEPTTETECEETELEL ELT Tt 33

42 U. S. CC. 1981 - This provides in part

that "all persons... shall have the same

right in every State...to the full and

equal benefit of all laws..."

ES ge EOE, Oe

42u. §. CC. 1983 - This provides that

"every person, who under color of any

Statute, ordinance, regulation, custom,

or usage, of any State or territory,

subjects...any citizen...to the depriva-

tion of any rights...shall be liable to

the party injured..."

2 a ee re

42 U.S.C. 2000e, subsections (a) and (b),

provide as follows:

For the purposes of this subchapter-

"(a) The term ‘person' includes one or

more individuals, governments, govern-

mental agencies, political subdivi-

sions, labor unions, partnerships,

associations, corporations, legal

representatives, mutual companies,

joint-stock companies, trusts, unincor-

porated organizations, trustees, trus-

tees in cases under Title 11, or

hs ect penn epeasaeseeceeeaes Ste 50

SECTION tt. ieee eek tvespeeeeeeeeeeee FON 61

SECTION 703(a) provides in part:

xvii

"It shall be an unlawful employment

practice ... (1)...to discharge any

individual, or otherwise discriminate

against any individual with respect to

his compensation, terms, conditions, or

privileges of employment... (2) to

limit, or classify his employees or

applicants for employment in any way

SECTION 703(h) "Notwithstanding any

other provisions of this subchapter, it

Shall be an unlawful employment practice

for an employer to apply different stan-

dards of compensation, or different

terms, conditions, or privileges of

employment pursuant to a bona fide ...

merit system..."

SECTION 704 (a) states that it shall be

an unlawful employment practice for an

employer to discriminate against any of

his employees or applicants for employ-

ment...because he opposed any practice

made an unlawful employment prac-

tice...or because he has made a

charge...in any Manner

GEORGIA LAW

SECTION 6a, GEORGIA EMPLOYMENT

SECURITY in 6s ee 0b bee 6086 6s 640060000600026000

GEORGIA LAWS, SECTION 7,

APPEALS AND PRS 6 600660 6060000600000000000

FEDERAL RULES

Rule 12 (b) (1) Satan osu cucbewendwseesc te

Rule W2Ovcccecececseesesevduccewedseocoodeeesets

xviii

RULE 37 eo ccvccccccccccccccsccccccccccccccccce lh

Rule 81 Dececcccvccccccccvccccccccccccectt, 18

Rule 60 (b) (6). cccccccccccccceetO, 11, 13, 20

MERIT SYSTEM RULES

INVOLUNTARY SEPARATION

RULE 12.301.1,..23, 36, 51, 58, 55, 59, 60, 61

DHR RULE A.6. a..5, 36, 51, 54, 55, 59, 60, 61

SEE APPENDIX F FOR OTHER RULES

IN THE

SUPREME COURT OF THE UNITED STATES

TERM: OCTOBER 1983

No.

ROLAND A. JONES,

PETITIONER,

DEPARTMENT OF HUMAN RESOURCES (DHR),

STATE OF GEORGIA, et al.,

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ELEVENTH CIR.

The Petitioner, Roland A. Jones, respect-

fully petitions this Court for a Writ of

Certiorari to review the Judgment of the

United States Court of Appeals for the Ele-

venth Circuit for a discrimination complaint.

OPINION BELOW

On March 23, Petitioner's Petition for

Rehearing with a suggestion for Rehearing En

Banc was denied and judgment against Peti-

tioner's Discrimination and Retaliatory Dis-

charge Complaint was affirmed, with prejudice,

pursuant to, and justified by Bishop vy. Woods,

426 U. S. 341, 349-50, 96 S.Ct. 2074, 2079-80,

Board of Regents vy. Roth, 408 U. S. 564, 92

S.Ct. 2701, 33 L.Ed.2d 548 (1972), Pickering

vy. Board of Education, 391 U. S. 563, 88S.

Ct. 1731, 20 L.Ed.2d 811 (1968), and F. R.

Civ. P. Rule 12 (b). The Court of Appeals

Memorandum decision at Appendix A affirmed

only the 1893 claim. The District Court's

Bishop, Roth dismissal judgment against Peti-

tioner's discrimination complaint is at Appen-

dix B. An F. R. Civ. P Rule 60 (b) (6) again

asserting review of all the discrimination

issues was denied May 24, 1984, Appendix B32.

JURISDICTION

The jurisdiction of this Court is invoked

under Title 28, United States Code.

CONSTITUTIONAL PROVISIONS INVOLVED:

1st Amendment, U. S. Constitution

5th Amendment, U. S. Constitution

14th Amendment, U. S. Constitution

FEDERAL STATUTES INVOLVED:

42 U. S. C. 1981, 42 U. S. C. 1983, 42 U. S.

C. 2000e, Section 703 (a), 703 (h), and 704

(a), 706 (g) (2000e-5).

STATE STATUTES INVOLVED:

Georgia Law, Article IV, Section 6, Para. I,

State Constitution of 1976, Merit System Act

(GA Law, 1975, P 79), Georgia Law, 1975, Sec-

tion 7, Adverse Actions, Appeals and Hearings,

Georgia Law, Section 45-20-2 (16) and (17),

and Georgia Employment Security Law, Section

6 (a) with reference to the requirement: "pro-

vide employee with...document...giving the

reasons for separation."

FEDERAL RULES INVOLVED:

Rule 12 (b) (1) and (b) (6), Rule 12 (e),Rule

37, Rule 41 (b), Rule 60 (b) (6).

MERIT SYSTEM RULES AND REGULATIONS INVOLVED

(See Appendix F)

STATEMENT OF THE CASE

This action was filed November 19, i982 in

the United States District Court for the Nor-

thern District of Georgia, pursuant to 42

U.S.C. 1981, 1983, and 1985, and the First and

Fourteenth Amendments, alleging that defen-

dants entered into an agreement and an ensuing

and continuing "pattern" of disparate treate

ment, "discrimination", and "retaliation" de-

signed to deny appellant other job opportuni-

ties within the division; because of appel-

lant's opposition to discriminatory practices

and procedures used by the supervisors, super-

visors in the Division of Family and Children

Services (DFACS) terminated petitioner's em-

ployment with the DFACS, DHR, using practices

and procedures that were made unlawful under,

Title VII, U. S. Supreme Court decisions, and

decisions against the DHR in this circuit

(Kennedy vy. Crittenden, CA77-200 (MD GA 1982).

The complaint covers ten charges (10) of

Grievous Causes as Defined in Par. F.103 Regu-

lation F, State Merit System Rules and Regula-

tions, identified in the State of Georgia

Merit System's list of Grievous Causes that

could be brought within the Grievance Proce-

dure of the State Merit System at Appendix J2:

1. unlawful discrimination because of race, 2.

unfair discriminatory treatment, 3. erroneous

interpretation of DFACS/DHR policies, 4. erro-

neous application of DFACS/DHR policies, 5.

erroneous interpretation of the State Merit

System's Rules and Regulations, 6. erroneous

application of the State Merit System's Rules

and Regulations, 7. capricious interpretation

of DFACS/DHR policies, 8. capricious applica-

tion of DFACS/DHR policies, 9. capricious

interpretation of the State Merit System's

Rules and Regulations, 10. capricious applica-

tion of the State Merit System's Rules and

Regulations, 11. operating a probationary

period that is wholly subjective, and i2.

arbitrary discharging Petitioner using the

ambiguous Involuntary Separation Rule 12.301.1

coupled with the DHR Rule A.6.a (App. F#32) to

foreclose in-house grievance rights.

The complaint contains a demand for a jury

trial for a deprivation of civil rights for

$250,000.00 against each Respondent, indi-

vidually and in their capacities, and puni-

tive damages of $250,000.00 against each Res-

pondent, individually and in their capacities.

The action also seeks injunctive relief, rein-

Statement with all rights/benefits retroac-

tive, legal expenses, and any other action

deemed appropriate by the court.

The complaint set forth al] the discrimina-

tory event-by-event facts and circumstances

covering a four month, 23 day period (App. D),

and copies of the rules and regulations (App.

F) violated by the DFACS, DHR supervisors.

A Petition for Respondents to produce

appellant's personnel records and other

DHR/DFACS records necessary to maintain Peti-

tioner's Complaint was filed, at the time of

filing the complaint. This Petition was de-

nied. Statistics (App. E) were provided the

District Court in a Motion for Reconsideration

citing Griggs and McDonnell] Dougias. This

Motion for Reconsideration with additional

evidence of discrimination was denied. Other

motions/requests denied by the District Court

include: 1. Request for the "sealed" District

Court documents pertaining to the case of

Marvin Albitz v. State of Georgia, CA79-634A

(P) be opened for Petitioners inspection and

EI TTI 27 =

Petitioner's use as evidence of patterns of

discriminatory standard operating procedure

(SOP) in state government. 2. Reinstate Peti-

tioner's discrimination complaints in its

entirety, including the demand fora "jury

trial." 3. Withdraw the judgment against me.

4, Amend complaint to add as defendants also

engaged in the ensuing and continuing pattern

of conduct designed to terminate and perpet-

uate the termination in the same amounts and

conditions as outlined for defendants already

at pages 50, 51, and 52 of basic complaint. To

be added as defendants: a. Merit System Com-

missioner Charles E. Storm. b. ex=DHR Com-

missioner Dr. Joseph Edwards (Involuntarily

separated, retired). c. ex-DHR Personnel

Director Miss Martha Meyer (Involuntarily

separated, retired). d. DFACS Office Direc-

tor, Ms. Joyce Saye for hiring outside DFACS

Training Coordinator. e. Personnel Supervi-

sor Ms. Alice N. Echols. f. The Deputy Direc-

tor of the State Merit System, Mr. Franklin

Thomas, dereliction of duty. g. The Director

of the Georgia Office of Fair Employment Prac-

tices, Ms. Jewell Saunders (now termi-

nated)...dereliction of duty. h. Merit System

Staff Management employee, Mr. James Huges,

dereliction of duty. 5. Leave open the pri-

vilege to add others, as they are determined,

including those in positions of "trust" and

"administrative" responsibility shown to have

been negligent in the performance of their

duty, thereby, perpetuating my termination by

not assuring the proper application of the

rules and regulations or by not questioning

the oddity of the events and circumstances

connected with my termination; however, in all

fairness I will readily agree to a dismissal

from my complaint any individual, named or

added, who reasonably. shows the Court that

they were not negligent in the performance of

their positions of trust and responsibility.

6. Leave open the option of amending my com-

plaint to include other "probationary"

employees similarly situated. 7. Leave open

the option for other organizations to enter on

my behalf or as friends of the court. 8.

Defendants be ordered to provide data for

exhibit J for the years 1980, 1981, and 1982

for the total state work force, DHR, and DFACS

for the Court. 9. Request an injunction be

issued prohibiting the expenditure of federal

funds by thé Department of Human Resources

pending resolution of this matter; and an

injunction be issved prohibiting all promo-

tions and hiring within the Department of

Human Resources pending resolution of the

issues at bar. 10. Request an affirmative

action "quota" system for hiring minorities in

entry level (probationary level) and the top

administrative jobs of the state. 11. Request

that all federal funding be withheld from the

Department of Human Resources, the Division

of Family and Children Services, and the state

until reasonable levels of minorities are

attained at all levels of government.

The statistics (App. E) claiming that

Griggs and McDonnell Douglas applied were

submitted and also included in Opening Brief

placed before the U. S. Court of Appeals for

the 11th Circuit and denied. Other motions

and requests submitted and denied by the U. S.

Court of Appeals: 1. Motion to gain access to

the sealed District Court records and tran-

scripts for the Albitz discrimination case

against the State of Georgia. 2. In view of

the Bishop syndrome and its application to

discrimination and because of the possibility

of a misunderstanding of the nature of the

complaint, a motion to refile the case as a

new case was filed. 3. Motion for immediate

remand for consideration of the discrimination

issues. 4. Motion to relocate the case to the

Middle District of Georgia. 5. Motion for

relief pursuant to F.R.Civ. P Rule 60 (b) (6).

6. Letter citing as newly discovered histori-

cal evidence of the trend of the DHR not

providing employees a reason for their dis-

charge was returned without action.

SUMMARY OF ARGUMENT

Le At the time of the filing, as is now, I

was underrepresented only because no counsel

would accept the case because of the Bishop

probationary employee syndrome. This is tan-

tamount to raising a federal constitutional

question, and is an extraordinary circumstance

for triggering the application of Federal Rule

60(b)(6) and giving justice another oppor-

tunity to be heard. When Rule 60(b)(6) is

applied, it should work the way an aggrieved

cata expects their legal system to work by

permitting final judgment to be vacated, modi-

fied, and reexamined; however, in the face of

all the 11th Circuit Court of Appeals Prece-

dents concerning discrimination submitted

stili claiming Griggs and McDonnell Douglas

applied with a request for the application of

Rule 60(b)(6), the Court denied the applica-

tion which tends to signal that the legal

system resents pro se actions and punishes

them with a misapplication of justice. The

District Court's order plainly provides reason

for officials not to comply with "guidelines"

fAffirmative Action, included) established

against discrimination.

Il. Although underrepresented, the facts and

circumstances submitted to the District Court

(App. D) and the Court of Appeals conveyed the

message of discrimination; however, respon-

dents complained to the District Court that

the number of pages exceeded the administra-

tive page requirement by five pages...a proce-

dural question rather than substantive. It is

obvious that the District Court Judge was more

interested in procedure rather than substance

because of his ruling at Appendix B2. His

concern only for the length of the Motion was

clearly an abuse of discretion. Judge Shoob's

preoccupation with the "lengthy brief" (App.

B2) guided his judgment to administration

rather than the substantive discrimination

content of the brief. Eor this matter to be

understood, Appendices D, E, F, G, and the J

series, herein, must be read and compared. It

is obvious that the trend as indicated by both

courts with their refusal to confront the

issues and the facts is anti-pro se. If not,

the judgment would have been in the alterna-

tive as Respondents requested: "...move for

more definite statement of plaint's claims,

bursuant to 12 fe) FaR.Civ.P,, or dismissed

without prejudice, would not have attempted a

Gatch-all 1983 disposal ‘App, Bd, and

F.R.Civ.P Rule 60 (b) (6) claim would have

been honored when invoked by Petitioner, and

the judgment would not have been left to ap-

pear to be a punitive discouragement against

pro se filings. It is also obvious that both

courts are unaware of a Second Circuit holding

that:

"pro se complaints are held to less strin-

gent standards than formal proceedings

drafted by lawyers" Hohman vy. Hogan, 597

F.2d 490 (2d Cir. 1979).

Ill. Even if I lack the forensic skills and

do not plead persuasively, I am confident that

the Supreme Court will read and study the

facts contained at the Appendices and will not

permit a meritorious effort to be lost simply

because I am pro se.

IV. Motion to dismiss at pleading stage for

lack of jurisdiction should be treated with

caution and denied if petitioner alleged suf-

ficient facts in his complaint (Apps. D and E)

to support reasonable inference that respon-

dents can be subjected to jurisdiction.

Motions to dismiss for failure to state claim

should be denied unless it appears beyond

doubt that plaintiff can prove no set of

facts. Bracewell vy. Nicholson Air Services,

680 F.2d 103 (11th Cir. 1982 Ga.). Dismissal

of a civil rights suit, alleging racial dis-

crimination in employment practices, iS appro-

RPriate only when plaintiff has not made a

prima facie case. [Civil Rights Act of 1964,

701 et seq., 42 U.S.C.A. 2000e et seq.; Fed-

eral Rules Civ. Proc. Rule 41(b), 28 U.S.C.Al.

Junior ys Texaco, Inc,., 688 F.2d 377 (11th

Cir. 1982). Dismissal is generally proper

only where less drastic sanctions cannot sub-

Stantially accomplish its purpose. Federal

Rules Civ. Proc. Rule 37, 28 U.S.C.A. EEOC Ss

Irey State University, 693 F.2d 1353 (11th

Cir. 1982 Ala.). Ihe Sth (iith) Court of

Appeals has noted that:

"...[W]le do not believe that individual

federal judges should have almost

unchallengeable power to slow or halt the

progress of well-intentioned efforts to

eradicate the effects of past discrimina-

tion and prevent future discrimination."

Accordingly, the Court of Appeals under-

took a de nova review. U.S. vy. City of

Alexandria, 614 F.2d 1358 (5th Cir.

1980).

V. A Federal District Court and a Court of

Appeals are not duty bound to follow conflict-

ing precedents of Bishop which bear no simi-

larity to discrimination and no uniformity as

to discrimination claims brought within the

11th Circuit. They are, however, duty bound to

follow the preponderance of precedents estab=

dished by the U. 5S. Supreme Court and prece-

dents established within its own Jith fold

5th) circuit.

VI. A Conflicting Federal Court decision

dealing with discrimination and the restric-

tions placed on probationary employees has

resulted due to interpretation of Ribbon Vo

Wood. Accordingly, Bishop vy. Woods must be

overruled or redefined in its' application in

cases where Griggs vy. Duke Power Co,., and

McDonnell Douglas y. Green are involved.

VII. No summary of a court case can capture

the subtlety of reasoning and argumentation

which marks every page of an appellate deci-

sion; any summary represents a compression of

sometimes lengthy and complex decisions. Con-

trary to widely held belief, court cases are

written in the English language. Judicial

cpinions are seldom beyond the comprehension

of the layman or, needless to say, the profes-

sional manager or personnelist.

VIII. In our system of separation of powers

the courts are the final arbiters of constitu-

tional interpretation and of ste*utory con-

Struction. Unless an appellate court's deter-

mination is overturned by a higher appellate

court or modified by subsequent legislation or

by a constitutional amendment, it carries

precedential authority and is binding within

the boundaries of the court's jurisdiction.

Bishop, Roth, and Pickering must not be al-

lowed such authority in discrimination

against minorities probationary or ctherwise.

IX. Petitioner contends that the Petition for

a Writ of Certiorari should be granted for the

reasons that the Eleventh Circuit Court of

Appeals has rendered a decision in Petitioners

case that is in conflict with base-line legal

distinctions classifying discrimination as not

disposable under Bishop, Roth, and Pickering.

As a result of these time-worn precedents,

mind-sets have developed causing erroneous

classifications of members of the protected

group into the Bishop class of employees,

resulting in the issuing an illogical decision

that is in conflict with the correct civil

rights law in light of the historical purpose.

X. A lack of uniform decisions within the

circuit creates havoc among decisions on simi-

lar questions throughout the Federal Circuits.

Thus, Bishop merely created a general guide-

line of procedures that did not define its

impact on discrimination law.

XI. This case boiis down to Petitioner having

rights to file an in-house grievance for the

Merit System and civil Rights deprivations.

However, these rights were foreclosed by Sec.

704 (a) termination, and full rights further

foreclosed by the Court.

Rade With the power to destroy the remedy

for discrimination goes with it the power to

destroy the right. A destruction of rights is

clearly a substantive constitutional question

which the Court should address and resolve.

REASON FOR GRANTING THE WRIT

Where petitioner is a member of a protected

group, due process demands that he receive his

The application of Bishop and Roth by the

courts and is in direct conflict with many

other appellate holdings on discrimination and

denies full rights contained in the tenants of

the Constitution, the First, Fifth, and

Fourteenth Amendments, the Due Process Clause,

equal protection laws, and civil rights laws.

Ihe conflict is so deeply entrenched in mind-

sets and decisions so as to call for this

Court's exercise of the power of supervision

and a clear direction of uniformity.

Neither the District or the Appeals Court

reached the merits of the case and did not

rule on the issues of discrimination and

rights placed before them (App. K). The Dis-

trict Court dismissed per F. R. Civ. P. Rule

12 (b) (1) (6). On the contrary, a Court of

Appeals cannot Sustain Federal District

Court's dismissal unless it is beyond doubt

that plaintiff can prove no set of facts which

would entitle him to relief. Federal Rules

Civ. Proc. Rule 12(b)(6), 28 U.S.C.A. Carpen-

ters Local Union No. 1846 of United Broth. of

Carpenters and Joiners of America, ALF-CIO vy.

Pratt-Farnsworth, Inc,, 690 F.2d 489 (11th

Cir. 1982). It is impossible to be beyond any

doubt when the District court did not reach

the merits of the case. Dismissal of a civil

rights suit, alleging racial discrimination in

employment practices, js appropriate only when

Dlaintiff has not made a prima facie case.

(Civil Rights Act of 1964, 701 et seq., 42

U.S.C.A. 2000e€ et seq.; Federal Rules Civ.

Proc. Rule 41(b), 28 U.S.C.A]. Junior vy. Tex-

aco, Inc., 688 F.2d 377 (11th Cir. 1982).

The circumstances and events (App. D) were

provided to both courts, in actions challeng-

ing administrative action as discriminatory,

even where a Stark pattern of discrimination

is not evident, both courts did not consider,

but should have considered the specific se-

quence of events leading up to the challenged

decision, the departures from normal

procedural sequence, the foreseeability of

discriminatory impact, and the availability of

less discriminatory alternatives [e. g. Ihere

are 15 Merit System Rules that provide for

Jess punitive remedies than dismissal (App F,

#35 - 49), and more than 15 rules and regula-

tions that should not have been preempted by

dismissal that authorized Petitioner the right

to file a grievance within the State Merit

System (App. F)] discriminatory alternatives.

Jean y. Nelson, 711 F.2d 1455 (ith Cir.

1983). Had I been white, the rules would not

have been operated more harshly on me and

would have operated with a less punitive

alternative than discharge. 1. The District

Court, by reference to "lengthy brief", was

either too preoccupied with the complaint from

the respondents that Petitioner's complaint

was prolix and exceeded the page count by 5

pages, or there was a predisposition (Bishop)

that oppressed, preempted, and foreclosed on

the issues of discrimination invoking extraor-

dinary circumstance, thereby, triggering F. R.

Civ, P Rule 60 (b) (6). 26 The Court of

Appeals incorrectly applied Bishop to issues

of discrimination, and incorrectly applied

Roth to expressions of grievances while in

DFACS, DHR in contradiction to decisions of

this and other circuits (See cases listed

below) and in contradiction to Section 704

(a), Title VII. 3. The District Court,

ignored the proper application of principles,

prima facia, and burden of proof standards

established by the U. S. Supreme Court and

decisions of this and other circuits, and

refused petitioner discovery. 4. Both the

District Court and the Court of Appeals by

joining in judgment are perpetuating defen-

dants past/present discrimination reputation.

5. Both courts denied petitioner access re-

cords and transcripts pertaining to Albitz y.

State of Georgia and the patterns of discri-

mination within the Merit System of the State

of GA in the sealed court records and tran-

scripts. 6. Agaisnt Jean, both Courts ignored

the historical background for the DHR's repu-

tation for discriminating in Albitz y. State

of GA, Kennedy vy. (DHE) Crittenden, CA 77-200

(MD GA 1982) when Mr. Albitz testified:

"we are indeed a partner with the agencies

to maintain a discriminatory posture, using

Qur own rules and regulations to accomplish

Lhis.",

In Whittaker yj DHR, the conclusions of law

used by the District Court, ND Georgia that

plaintiff, a probationary emplovee for Georgia

DHR had not attempted to identify any of the

Merit System's practices and procedures as

discriminatory. The Court allowed great lati-

tude to plaintiff:

"so that the plaintiff could challenge

either employment practices...or policies

affecting working test employees." In _ the

footnote "the Court also extended class

discovery so that the plaintiff would have

full opportunity to explore the allegedly

discriminatory See ae employment prac-

tices" (used against DHR probationary em-

Dloyees Whittaker vy. DHR, CA79=-2311A, 30 FR

Serv 2d 931, 1980).

These Whittaker probationary latitudes were

not allowed in Petitioner's case. 7. In addi-

tion to both courts denying me access to court

records for the Albitz case, the District

Court denied my motion for defendants to

proauce documents. 8. Both courts considered

only Bishop and Roth and did not addressed:

a. Disparate treatment/impact in the denial

of length of service and benefits from the

first day that I actually reported to work,

and improper work assignments. b. Discrimina-

tion in denying petitioner opportunity for the

position of Director of Management Information

Systems in order for the position to be given

to a white male who was from outside of the

DFACS, DHR, and the State Merit System. Ce

Discrimination in denying petitioner the

opportunity for the position of Training Coor-

dinator in order that the position could be

given to a white female who was from outside

of the DFACS, DHR. d. Discrimination/dis-

parate treatment for not being allowed to file

a formal grievance, in accordance with State

Merit System Rules and Regulations. State

Merit System Rule 14.212 states:

"A person who feels that there has been a

violation of the Rules and Regulations or

Merit System Law which adversely affects

his rights may appeal..." (See # 20, App.

F).

and Rule 14 states:

"An employee who believes he has been

unjustly discriminated against in his

employment...may appeal to the Board..."

(See # 19 at App. F).

e. Disparate treatment/impact for improper -

discharge, short of completing the working

test, in violation of Merit System Rule 11, by

means of supervisor retaliatory subjective-

ness. f. Retaliation/disparate impact for

being abruptly discharged under Rule 12.301.1

without "advance" notice as required by the

rules and regulations and for expressing my

grievances concerning relief. g. Disparate

treatment for not being allowed to invoke the

exception clause of Rule 12.301.1 "...the

separation cannot be appealed except as other-

wise provided in these regulation" (App. F #8,

12-31, 33, 34), and file a grievance since the

discharge was also a grievous action in it-

self. h. Or, filing a grievance for any ac-

tion listed as non-grievous which automati-

cally became grievous if discrimination is

charged (Submitted as Ex "M", first and last

page, RECORD OF EXCERPTS FOR REPLY and Exs "G"

and "D", PETITION FOR REHEARING WITH A SUGGES-

TION FOR REHEARING EN BANC).

(I)

A MEMBER OF THE PROTECTED GROUP

IS STILL PROTECTED UPON BE-

COMING A PROBATIONARY EMPLOYEE.

(II)

A CLASSIFICATION OF "PROBA-

TION", WITHOUT SAFEGUARDS TO

PREVENT DISCRIMINATION, IS IN

VIOLATION TO SEC. 703 (a),

TITLE VII, AND CAN BE USED AS A

MECHANISM TO DISMISS MINORI-

TIES PRIOR TO THE EXD OF PROBA-

TION.

(III)

BISHOP AND ROTH WHEN INVOKED BY

RESPONDENTS AS A DEFENSE

AGAINST DISCRIMINATION FORE-

CLOSED ON RIGHTS PROVIDED FOR

BY GRIGGS AND McDONNELL.

(IV)

BISHOP y. WOOD SHOULD BE OVER-

RULED, OR REDEFINED, IN ITS!

APPLICATION TO MEMBERS OF THE

PROTECTED GROUP WHEN THEY ARE

PROBATIONARY/WORKING TEST.

(IX)

DISCRIMINATION WAS THE RESULT.

Due process is not a technical conception

with a fixed content unrelated to time, place

and circumstances; instead, it calls for such

procedural protections as the particular sit-

uation demands. U.S.C.A. Const. Amend. 14.

Central Freight Lines, Inc. vy. U.S., 669 F.2d

1063 (11th Cir. 1982). The very nature of due

process precludes establishing an inflexible

procedure applying without variation to vastly

variegated situations. Const. Am. 5, 14. Smith

vy. Rabalais, 659 F.2d 539 (5th Cir. 1981).

Bishop and Roth are inflexible barriers to

claims of discrimination by minority "proba-

tionary" employees and operate more harshly

against minorities on the job and in court:

"Merely classifying positions as “‘pro-

bationary' or “permanent' does not’ resolve

the hearing question..." (by Justice

Rehnquist in Bishop yj Wood, 426 U.S. 426,

344 (1976)).

In 1976 Justice Rehnquist signaled that

Bishop would be in direct conflict with other

This observation recognizes the long-range,

compounding, self=-perpetua't.ung, lasting ad-

verse effects of the problem of no hearing

falling more harshly on minorities when they

are "probationary employees". Minority pro-

bationary employees are also denied access to

in-house Merit System Grievance Procedures.

The inequities in Bishop and Roth provide the

foundation for discrimination against minori-

ties during a sort of "twilight zone" period

of employment called the probationary period.

It leaves minority probationary employees

vulnerable to uncontrolled discrimination and

dismissal without the protection of law.

Comparing all the law submitted me against

the Bishop analogy submitted by Respondents

for dismissal to the selection made by both

courts, a "picture" of justice out of balance

is at (Figure 1):

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bail TTT a » pers S61) | a 7

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we" ot ass (2) Toate) 2

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Figure 1

The application of incorrect precedents by

the Court of Appeals in its judgment of the

facts does not correct for the tests and stan-

dards foreclosed on by the dismissal of the

complaint by the District Court.

Both courts relied on this unilateral set of

Bishop, Roth, and Pickering precedents which

is unrelated to discrimination. These prece-

dents assert a unilateral notion that a proba-

tionary classification, a part of the hiring

process, is excluded from the hiring process.

When Bishop is applied, it forecloses on the

completion of the cycle of the hiring process

and the rights of a member of the _ protected

group who is to be protected from discrimi-

nation during the hiring process. 42 U5S.C,

2000e-2(a), made applicable to state and local

governments on March 24, 1972.

The question of a minority relinquishing his

constitutional and civil rights when crossing

the threshold of public employment as a proba-

tionary employee has not been adequately

addressed by the courts.

Bishop, Arnett vy. Kennedy, 416 U.S. 134

(1974), and Roth, 408 U.S. 341 (1972) estab-

lishes an irrebuttable presumption that a2

Minority, aS a probationary, is not a2 per=

protection against discrimination and not

entitled to due process rights under the i4th

Amendment and laws providing against discrimi-

nation under equal protection under the law.

Bishop and Roth contradict the Constitution

and previous Supreme Court decisions on dis-

crimination. Bishop and Roth operate more

harshly against minorities when they are em-

ployed as probationary employees.

Bishop and Roth, provide an jllegal argument

and legal loophole against claims of discrimi-

nation, thereby, providing a basis for future

discrimination, under color of law.

In dismissing my complaint, the district

court relied heavily on the ambiguous and

arbitrary language of Bishop and Georgia State

law. Acting together, they are a loop-hole

built-into the legal system designed to pro-

tect against mechanism for discrimination.

The language of Bishop provides an easy

mechanism and an additional tool that is used

to circumvent civil rights of minorities when

they are in a "probationary" status.

It is obvious that Bishop was enacted to

control the number of frivolous personnel

actions being placed before the court;

however, while accomplishing its purpose,

in 1976, in the 1980s it now operates more

harshly on minorities as a class.

According to Bishop (and/or Roth), all acts

of discrimination are justified because they

are merely "incorrect or ill-advised" person-

nel decisions.

No petitioner/plaintiff argument against

discrimination or other wrongful acts can ever

Survive under a court predisposition that

states:

"The federal court is not the appropriate

forum in which to review the multitude of

personnel decisions that are made daily by

public agencies. We must accept the harsh

fact that numerous individual mistakes are

inevitable in the day-to-day administra-

tion of our affairs. The United States

Constitution cannot feasibly be construed

to require federal judicial review of

every such error....the Due Process Clause

of the Fourteenth Amendment is not a

guarantee against incorrect or ill-advised

personnel decisions." Bishop vy. Wood, at

349-50 (1976).

In this context, Bishop is in direct

conflict with laws against discrimination,

because all discrimination is the result of

personnel decisions. And, under the above

Bishop rule, incorrect or ill-advised

discriminatory personnel decisions are not

actionable.

"the fact that the rules and regulations

of the State Personnel Board might provide

for certain procedures for terminating a

“working test employee' does not mean that

plaintiff has a federally-protected

interest in assuring that state officials

comply with the Board's guidelines."

However, the State Merit System Rules and

Regulations (Rule 2.202d, Pg. 7) states:

(Rules) "shall have the force and effect

of law and shall be binding upon the

state departments covered by the law."

The Merit System Personnel Board estab-

lishes the guidelines (Merit System Rules)

against discrimination per 42 U.S.C 2000e-2(a)

made applicable to state and local governments

in 1972. The above statement in Bishop lays

out an impossible course for an employee to

follow. Ihe Merit states that the rules,

which include anti-discrimination rules, have

the force and effect of law and must be fol-

dowed, but the court says, however, that the

officials are not required to "comply" with

the rules (App. B). Ibis encourages discrimi-

MDation that is sanctioned by the courts. The

District Court in judgment against Petitioner

citing that state officials did not have to

comply with the guidelines, states plainly

that officials are not required to follow any

of the State of Georgia's Merit System Rules

(Personnel Board guidelines) since they are

established by the Personnel Board constitute

the employment contract between the employee

and the employer. Not only is it an impossible

and conflicting course, jt is in direct con-

flict with the Civil Rights Act and Adams vy.

McDougal, 695 F.2d 104 (11th Cir. 1982 La.):

the term "contract," as used in Civil Rights

Act, refers to a right in ihe promisee against

the promisor, with a correlative special duty

in the promisor to the promisee of rendering

the performance promised. (See also 42 1981).

A contract (Merit System Rules and Regula-

tions) cannot be binding on one party (the

minority probationary employee) and not be

binding on the other party (Georgia Official)

(Adams vy. McDougal, 695 F.2d 104 (11th Cir.

1982 La.). Bishop and Roth are being used as

legal mechanism (barriers) for discrimination.

And, in Hamilton vy. General Motors, 606 F.2d

576 (5th Cir. 1979) it is stated:

«+e-evaluations by all white supervisors

provide a ready mechani3m for discrimina-

tion."

When compared against the Constitution,

there is no distinction allowed for a differ-

ence in the rights and treatment of this par-

ticular class of minority probationary employ-

ee, and when also compared to general and

civil rights law, Bishop and Roth are out

weighed; however, left to interpretation they

provide a legal mechanism used to discriminate

against minority probationary employees.

The 5th (11th) Court of Appeals agreed that

the use of the word "or" in Title VII's prohi-

bition of discrimination based on race, color,

religion, sex, or national origin evidences

the intent of Congress to prohibit employment

discrimination based on any or all of the

characteristics. In the absence of a clear

expression by Congress that it did not intend

Lo preclude protection against discrimination

directed especially toward black women (mino-

rity probationary employees) as a class, sepa-

rate and distinct from the class of women and

the class of blacks, the court refused to

condone a result which leaves black women

[minority males] without a viable Title VII

remedy. The court utilized the judicial rea-

soning in the line of "sex plus" cases [see,

for example, Barnes yj Costle; Willingham vy.

Macon Telegraph Printing Company; and Stroud

ve. Delta Airlines, in support of the proposi-

tion that an employer may not single out a

portion of the protected class for discrimina-

tion. Ihe court remanded. Jefferies y. Harris

County Community Action Association, 615 F.2d

1025 (5th Cir. 1980).

Bishop and Roth, coupled with the use of the

ambiguous Georgia laws, reinforced by a single

ambiguous Involuntary Separation Rule 12.301.1

(App. F, #10) in the State Merit Systems Rules

and Regulations, coupled with a special rule

(App. F, #32) used by DHR to prohibit the

filing of a grievance authorized by the rules

(App. F, #s 8, 12-31, 33, and 34) once the

employee has been notified of termination

overriding the 15 day time period authorized

for filing, overrides the preponderance of

laws against discrimination. Again, one DHE

rule is used to Soverrule® twenty three rules

of the higher authority, the State Merit Sys-

Len.

With or without considering the questions

of property or liberty interest, there can be

no such distinction or classifications for

minority probationary employees with birth

rights under the Constitution; such a dis-

tinction is in contravention with the prohibi-

tion against classifications in Section 703

(a) (2), Title VII. The 14th Amendment extends

itself to persons as citizens by its terms

alone. It has been reasoned that Bakke also

extended the 14th Amendment to persons-citi-

zens.

"The guarantees of equal protection

cannot mean one thing when applied to one

individual and something else when

applied to aperson of another color."

(The 14th Amendment is extended to

"persons" by Bakke) University of

California Regents vy. Bakke 438 U.S. 265

(1978).

Being a person, ENTITLED DUE PROCESS has,

thus ~s, been fully extended to everyone and

everything except minority probationary

employees.

Aliens are "persons" within meaning of the

Fourteenth Amendment. (Cervantes y. Guerra,

F.2d (5th Cir. 1981)).

Aliens, those illegally within territorial

boundaries of United States, are entitled to

equal protection of the laws; they are pre-

sumed to be persons. (Doe vy. Plyler, 628 F.2d

418 (5th Cir. 1980 Tex.)).

Non-citizens have a liberty interest. (Hampton

vy. Mow Sun Wong, 426 U.S. 88 (1976)).

Minors are "persons" and have fundamental

rights which state must respect. (Johnson vy.

City of Opelousas, 658 F.2d 1065 (5th Cir.

1981 La.)).

(V)

THE INVOLUNTARY SEPARATION RULE

12.301.1 IS VAGUE IN ITS MEAN-

ING, AND BY PETITIONER'S

SPEEDY TERMINATION, ITS' APPLI-

CATION IS ARBITRARY AND FORE-

CLOSED ON 1ST AMENDMENT AND

SECTION 704 (A) RIGHTS TO SPEAK

AGAINST DISCRIMINATORY TREAT-

MENT AGAINST HIS PERSON

(VI)

NOT BEING ALLOWED ACCESS TO IN-

HOUSE GRIEVANCE PROCEDURES IS

IN VIOLATION TO SEC. 704 (a),

TITLE VII.

(VII)

ROTH, AND PICKERING SHOULD BE

OVERRULED, OR REDEFINED, IN

THEIR APPLICATION TO PROTECTED

GROUP 704 (a) RIGHTS.

(IX)

DISCRIMINATION WAS THE RESULT.

1/ Cont.

Corporation (a thing) is a "person" who

possesses Fourteenth Amendment due process

rights which are protected by federal statute.

(Northeast Georgia Radiological Associated,

PC. ve Tidwell, 670 F.2d 507 (5th Cir. 1982).

Employers are persons. (42 U.S.C. 2000e, (b)).

Qne or more individuals, governmental agen-

cies, political subdivisions, labor unions,

partnerships, associations, corporations,

legal representatives, mutual companies,

joint-stack companies, trusts, unincorporated

organizations, trustees, trustees in cases

under Title 11, or receivers are persons. (42

U.S.C. 2000e, (a)).

38°

It is the right of every person to express

his First Amendment rights concerning his

welfare, health, and acts of discrimination

against him. This right of expressing grie-

vances is reinforced by the grievance proce-

dures in the contract of employment (See Adams

vy. McDougal, 695 F.2d 104 11th Cir. 1982, the

Merit System Rules and Regulations). Retalia-

tion in the fashion of dismissal is illegal.

With regard to the Appeals Court applying

Pickering, to prove a prima facie of violation

of First Amendment rights, it must be shown

that: (1) The speech or activity is protected

under the EFEirst Amendment; (2) The protected

activity was the motivating factor in the

action taken against the minority probationary

employee; (3) The action would not have been

taken absence the protected Section 704 (fa),

Title VII activity. Mt. Health City School

District Board of Education vy. Doyle, 429 U.S.

274 (1977); Givhan vy. Western Line Consoli-

dated School District, 429, U.S. 410 (1979).

The question of whether an activity is pro-

tected under the ist Amendment and Sec. 704

(a) is a question of law. The remaining two

questions, whether the protected activity was

a substantially motivating factor in the ac-

tion taken, and whether the action taken would

have occurred absent the activity protected by

Section 704 (a), are questions of fact that

were never decided. See Schneider vy. Ihe City

of Atlanta, 628 F.2d 915 (5th Cir. 1980).

The actions that can be violations of an em-

ployee's First Amendment rights are those

actions which take something away from the

employee. See Morey vy. Independent School

District, 312 F. Supp. 1257, 1262 (D.Minn.

1969), aff'd., 429 F.2d 428 (8th Cir. 1970).

To determine whether = an activity is

protected by the ist Amendment, a balancing

test is used. The balance that must be struck

is between the interest of a public employee,

aS a person and as a citizen. See Pickering,

at 568.

The activities, that are protected activi-

ties in this case are: 1. The right to object

to the decision not to upgrade my Planner II

position to Planner III as informed upon

accepting employment (Submitted to the Court

of Appeals in the Record of Excerpts [blue

cover] page 18, para 1, and page 24, para 19);

2. The right to object to the hiring cf a

white female from outside for the Training

Coordinator position in an organization whose

total population was represented by 88.7%

female against that of only 1.95% (App. €E)

minority male population (Submitted to. the

Court of Appeals in the Record of Excerpts

[gray cover] "E","F", and "H", to include the

graphs and statistics for my Reply, and at

the Record of Excerpts [blue cover]); .

Petitioner's right to object concerning the

lack of opportunity to compete for the Direc-

tor of Management Information Systems and the

hiring of a white male from outside and being

told, to keep my nose clean and in two years I

might be considered for the position. (Submit-

ted to the Court of Appeals in the Record of

Excerpts (blue cover) page 23, para 14-15);

;

€

and 4, captioned by Petitioner expressing

his right to file a grievances with the 15 day

filing period concerning the on-the-job in-

jury, the incorrect tenure starting date; to

complain of not being afforded the opportunity

for the job as the Director of Management

Information systems and Training Coordinator

for the DFACS, DHR; and defend my request

against the oppressive, and adverse personnel

decision made by the division's white Person-

nel Supervisor. (Submitted to the Court of

agpeais in the Record of Excerpts [gray cover]

"Di" and "Z4"),

A suit brought under discrimination law

that alleges discharged from a position be-

cause of race and because of opposition to

defendant's discriminatory practices cannot be

disposed per Bishop. In Corley the 5th (11th)

Circuit Court held, that the District Court

failed to follow the proper burden of proof

because it had not addressed the relevant

evidence of pretext. Such evidence is an

indispensable element of the Petitioner's case

which must be confronted by the Court. Corley

vy. sackson Police Dept, 566 F.2d 994 (5th Cir

1978).

In Williams, a firefighter was engaged ex-

tensively in his Section 704 (a) rights, a

conduct protected by the First Amendment,

which included his filing of affidavit in

support of suit challenging city's promotion

policies. The firefighter introduced suffi-

cient evidence to create jury question as_ to

whether this conduct was a substantial or

motivating factor in abolition of training

(probationary) for captain's position and his

demotion to rank of lieutenant. [42 1983].

Williams vy. City of Valdosta, 689 F.2d 964

(11th Cir 1983).

To establish prima facie case of retalia-

tion for participating in process of

vindicating rights through Title VII, a

petitioner must only show actions protected by

the statute, an adverse employment action, and

a causal link between protected actions and

adverse employment decision; burden shifts to

Respondents to articulate some legitimate,

nondiscriminatory reason for adverse decision.

Hamm vy. Members of Board of Regents of State

of Elorida, 708 F.2d 647 (11th Cir. 1983).

Nontenured librarian possessed burden of

proof in civil rights action to show that her

constitutionally protected conduct under’ the

First Amendment was a substantial or moti-

vating factor in decision not to rehire her.

The university was reguired to demonstrate by

a preponderance of the evidence that it would

have reached the same decision as to

employee's reemployment in the absence of such

- conduct. [U.S.C.A. Const. Amend. 1]. Montgo-

mery vy. Boshears, 698 F.2d 739 (11th Cir.

1983). The court further opined the

employer's right to run his business gust be

balanced against the right of the employee to

express his grievances and promote his own

welfare. (Also see Adams vy. McDougal, 695

F.2d 104 (11th Cir. 1982) (Exs "M", "pm, "Qn,

MR", "SS", "S1, "T" of RECORD of EXCERPTS FOR

REPLY, and items 14 - 36, Ex "A"/Ex "D", with

REHEARING WITH A SUGGESTION FOR REHEARING EN

BANC). Jefferies vy. Harris County Community

Action Asso., 615 F.2d 1025 (5th Cir. 1980).

In this case and regarding this Petitio-

ner's complaint of retaliation, the Court of

Appeals found in Jefferies that there was

uncontradicted testimony from both the plain-

tiff and her supervisor which suggested that

plaintiff had notified him of her intent Lhe

day before she was dismissed, While the Dis-

trict Court's finding is accurate insofar as

no formal notice was received by plaintiff in

Jefferies. Petitioner notified the white

supervisors of his intent to file a grievance

and was discharged before a written grievance

could be filed. Formal written advanced"

notice was required in my case per the rules,

delivered to Petitioner until the third day

after the effective date of Petitioner's dis-

Missal. In Jefferies because the court failed

to take into account the informal verbal no-

tice, the court remanded for a decision based

on the entire record. Jefferies y. Harris

County Community Action Association, 615 F.2d

1025 (5th Cir. 1980).

An elementary and fundamental requirement

of due process in any proceeding under all

the circumstances, is to apprise interested

parties of the pendency of the action and

afford them an opportunity to present their

claims. [U.S.C.A. Const. Amend. 14]. Matter

of GAC Corp, 681 F.2d 1295 (11th Cir. 1982).

During the term of employment, several memo-

randa with recommendations for improvement

of efficiency and operations of the division's

Welfare Budget Planning System were prepared

and staffed by Petitioner. Petitioner was

openly criticized for criticizing the "dirty

laundry" of the DFACS, DHR. These memoranda

with recommendations and requests, and

speech are most assuredly protected under the

First Amendment. Had the evidence been heard,

Petitioner is confident that it would have

been found that as the result of the memoranda

with critical recommendations against DFACS,

the objections to the DFACS supervisors not

providing an opportunity for other employment

opportunities within DFACS, DHR; the October

5, 1981 memorandum criticizing the Personnel

Supervisor for her bad and incorrect decision;

all of which combined to make up the discrimi-

natory motive for the Respondents to scheme

against Petitioner an jrrebuttable discrimi-

matory employment decision of termination.

In a similar 11th Circuit case evidence was

sufficient to support a finding that @

teachers protected conduct in circulating a

letter questioning use of certain earmarked

school funds was the sole cause of. decision

not to renew teaching contracts. Refusal to

order reinstatement of the teachers, who had

been discharged for exercising her First

Amendment rights, was error, [42 1983; Const.

Amend 1]. Reinstatement is basic element of

appropriate remedy in wrongful employee dis-

charge cases. [42 1983; Const. Amend. 1].

Allen y. Autauga County Board of Education,

685 F.2d 1302 (11th Cir. 1982) In Barnett

PP =

evidence was sufficient question as to whether

discharge for an jmproper motive and by means

that were pretextual, arbitrary and capri-

cious. [Const. Amend 14]. Barnett vy. Housing

Authority of City of Atlanta, 707 F.2d 1571

(11th Cir. 1983).

(VIII)

PETITIONER PLACED BEFORE THE

COURTS SUFFICIENT PRIMA FACIA

INFORMATION/EVIDENCE FOR DIS-

CRIMINATION AND RETALIATION.

(IX)

DISCRIMINATION WAS THE RESULT.

The panel decision is contrary to, and in

direct conflict with U. S. Supreme Court

decisions on discrimination and uniformity of

decisions of the lith Circuit has not been

Maintained.

In action challenging Government's allegedly

discriminatory administrative action, jit is an

error to hold Petitioner responsible for any

failings of data where almost all data ana-

idyzed by Petitioner came from Government (the

State of GA documents/information were secured

with no assistance from the court), and con-

Sidering that the District Court did pot

allow this Petitioner discovery. Jean vy. Nel-

son, 711 F.2d 1455 (11th Cir. 1983). In such

actions challenging allegedly discriminatory

administrative action, shifting burden to the

government to establish special qualifications

is appropriate when the data necessary to

evaluate alleged qualifications jis uniquely in

the government's possession. Jean vy. Nelson,

711 F.2d 1455 (11th Cir 1983).

McDonnell Douglas yj Green set forth the

elements of a prima facie case. The 5th

(11th) Court of Appeals joined three other

circuits in holding that the McDonnell] Douglas

formulation is applicable Lo discharge cases.

(Flowers vy. Crovch-Walker Corp, 552 F.2d 1277

(7th); Garrett F.2d 864 (6th). Thus, the

plaintiffs were required to show that 1) they

are members of a protected minority; 2) they

were qualified for the jobs from which they

were discharged; 3) they were discharged; and

4) after they were discharged, their employer

filled the positions with non-minority. Inas-

much as the evidence adduced at trials met

this test, the court found that plaintiffs had

established a prima facie case of discrimina-

tion. Marks vy. Prattco, Inc,, 607 F.2d 1153

(5th Cir.).

In actions challenging administrative ac-

tion as discriminatory, where voroof of impact

alone is insufficient, and where a stark pat-

tern of discrimination is not evident, the

District and Appeals Courts’ should have

considered "circumstantial evidence" (See App.

D) which includes historical background of

decision, specific sequence of events leading

up to the challenged decision, departures from

normal procedural sequence as well as substan-

tive departures, legislative or administrative

history, foreseeability of discriminatory im-

pact and availability of less discriminatory

alternatives (Petitioner submitted at page 5,

Ex "A", with REHEARING WITH SUGGESTION FOR RE-

HEARING EN BANC) provided for by the State

Merit System Rules and Regulations vice dis-

missal per Rules 12.301.1/DHR A.6.a). Jean Vs

Nelson, 711 F.2d 1455 (11th Cir. 1983). Had Il

been white (and assuming that I was wrong and

white), the alternatives to dismissal would

have been applied (App. F #35-49), but since I

am black, immediate dismissal under the IN-

VOLUNTARY SEPERATION RULE (App. F #10 fol-

lowed by # 32 when an appeal is attempted.

Also see App. J1). There are 15 rules that

provide for less punitive remedies than dis-

missal (App F, #35 = 49).

Citing the 5th Circuit's extension of the

McDonnell Douglas prima facie case test to

discharge cases in Burdine vy. Texas Department

eof Community Affairs, it was held that the

plaintiff was required to show that 1) he

belongs to a group protected by the Act; 2) he

was qualified for the job from which he was

suspended and not rehired; 3) he was ter-

minated; and 4) after his termination the

employer hired a person not in plaintiff's

protected class or retained those having com-

parable or lesser qualifications. TIhe plain-

Liff must be afforded a fair opportunity to

establish that the employer's asserted justi-

fication is in fact, a "ruse" for a discrimi-

natory decision. If the burden is met,

"our traditional reluctance to intervene

in...affairs cannot be allowed to undermine

our statutory duty to remedy the wrong."

The plaintiff introduced evidence countering

assertions and alleged that he wrote a

successful grant proposal, was denied

directorship of the program which he _ proposed

contrary to custom, was given inferior working

facilities and was relegated to performing

menial manual Jabor in moving to those

facilities. Whiting Ys Jackson State

University, 22 FEP 1296 (5th Cir. 1980).

Petitioner was also relegated to performing

menial jobs, one of which resulted in an

injury requiring two months recuperation. [The

State fired Petitioner and paid for the

hospitalization for the injury.

The four elements of the McDonnell Douglas

are not the only ways of proving a prima facie

case of racial discrimination in employment.

[Civil Rights Act of 1964, 701 et seq., 2000e-

5]. Jones vs Western Geophysical Co, of

America, 669 F.2d 280 (5th Cir. 1982).

In order to sustain an 1983 action, the

plaintiff must make a prima facie showing of

two elements: 1) that the act or omission

deprived plaintiff of a right, privilege or

immunity secured by the Constitution or Jaws

of the United States, and 2) that the act or

omission was done by a person acting under

color of law. (42 1983]. Dollar ys Haralson

County, Georgia, 704 F.2d 1540 (11 Cir. 1983).

The 5th (11th) court concluded however,

that "where the inference of discrimination is

supported by a compelling level of racial

underrepresentation in a sizeable work force

(See App. E for DFACS, DHR stats), the burden

of proving lack of qualifications jis on the

defendant." The court emphasized that in view

of the defendant's policy of hiring at Jow

devel] and unskilled jobs and promoting to

upper level positions based upon training

received and skills developed at the plant

itself, it is fitting that the defendant be

required to carry the burden regarding an

alleged lack of qualified blacks in the

community. Likewise, management performance

appraisals, experience forms and interviews

also provide a "mechanism for subjective ac-

tions. "This court recognized that promotion

systems utilizing subjective evaluations by

all white supervisors provide a ready

mechanism for discrimination. (Re: Petitioner

was denied an opportunity for promotion to the

DFACS position as the Director of Management

Information Systems, a position that Peti-

tioner was qualified for (App. H), and denied

opportunity for Training Coordinator, a posi-

tion that the Merit System had rated peti-

tioner better qualified than the DFAcS requir-

ments (App. I) at Hamilton vy. General Motors.

Like the state's Rule 12.301.1 used in

conjunction with the DHR Rule A.6.a, the pre-

cedents used by the courts to dispose of my

case compounds the insurmountable barrier

initially created by the rules (Rule 12,301,1

coupled with the DHE special Rule A.6.a) used

to execute my dismissal. Rule 12,.301.1 coupled

with the special DHR Rule A.6.a. is an insur-

mountable barrier. The Rule 12.301.1 (App. F,

# 10) “except as otherwise provided for by

these rules" clause is overruled by a subordi-

nate DHR special rule (A.6.a) which is used to

prohibit filing grievances before the expira-

tion of the 15 day filing period (Regulation

F, paragraph F. 402.2). Again, one DHR

special rule overruled twenty three other

rules. This rule [A.6.a] is nothing but a mere

tool for discrimination and oppression of

speech, under color of law. According to

Handley under the insurmountable barrier

test, a statutory scheme which makes the sta-

tus an insurmountable obstacle to the vindica-

tion of rights or the receipt of benefits

constitutes a denial of equal protection.

(Const. Amend. 14]. A law may violate the

constitutional guarantee of equal protection

when it conclusively denies to one subclass of

benefits which are potentially available to

others. [Const. Amend 14]. Handley, By and

Through Herron ys Schweikwer, 697 F.2d 999

(11th Cir. 1983)

Once civil rights plaintiff has established

discriminatory impact of employment practice,

defendant bears burden of proving that’ the

practice is justified by business necessity.

[Civil Rights Act of 1964, 701 et seq. as

amended 42 2000e et seq]. If civil rights

plaintiff successfully establishes prima facie

case of disparate treatment, then burden of

production, not persuasion, shifts to defen-

dant to articulate some legitimate, nondiscri-

minatory reason for its actions, and should

defendant carry such burden, plaintiff must

establish by preponderance of evidence that

defendant's nondiscriminatory reasons are pre-

textual. dgackson Y¥. Seabourd Coast Line R.

Co,, 678 F.2d 992 (11th Cir. 1982 Ga.).

Within the context of a Title VII action,

disparate impact is when practices that are

facially neutral, yet fall more harshly on a

protected class of employees; employer's in-

tent is not at issue, and a prima facie case

is established by identification of neutral

employment practice (Merit System Rule

12.3013,1 coupled with the DHR special Rule

A.6.a, App. F, # 32) coupled with proof of its

Giscriminatory impact. Plaintiff can also

create inference of discriminatory intent by

offering other evidence adequate to create an

inference that employment decision was based

on a discriminatory criterion illegal under

Title VII. Eastland y. Tennessee Valley Autho-

rity, 704 F.2d 613 (11th Cir. 1983).

Turning to the issue of whether Respondent

discriminated against Petitioner (Re: Burdine)

in not promoting Petitioner to Director of

DFACS Management Information Systems, the

court cited the four part McDonnell Douglas

prima facie test and found that plaintiff was

protected under Title VII from discrimination,

that she applied for the Project Director job

and was considered, that she was qualified for

the job, and that the employer rejected her,

and the position remained open and a male was

hired. Accordingly, the court concluded that

Dlaintiff proved a prima facie case of dispa-

rate treatment. My case of not being afforded

the opportunity for promotion fo Lhe position

as the Director of Management Information

Systems {See Administrative and Officials

Stats for lack of minorities at App. £) or

securing the position as the TJraining Coor-

Ginator for the Division of Family and Chil-

Gren Services (DFACS), DHE was shown by the

facts submitted to both courts but was not

addressed by either court, The court also

noted the Fifth Circuit's additional require-

ment that defendant Drove that those that he

hired or promoted were somehow better Quali-

fied than plaintiff. Defendants must show by

comparative factual data that those hired or

promoted from outside of the DFACS, DHR

discrimination against black males were (See

DFACS stats at App. E) better qualified than

Petitioner. "To say that defendant's decision

was rational begs the issue; an employer may

be rational and still intend to discriminate.

Burdine vy. Texas Department of Community Af-

fairs, 608 F.2d 563 (5th Cir. 1979)

Under Georgia law, an interest arises

whenever a public employee can be terminated

only for cause. Ihe DFACS, DHR gives the

terminated employee no reason for termination,

thereby, protecting themselves, because GA.

LAW, 1975, Section 7. Adverse Actions,

Appeals and Hearings does not exclude minority

brobationary employees:

"NO (emphasis supplied) employee of any

department who is included under this

Act or hereafter included under its autho-

rity and who is subject to the rules

and regulations prescribed by the

State Merit System MAY BE DISMISSED

from said department or OTHERWISE

ADVERSELY AFFECTED as to COMPENSATION OR

EMPLOYMENT STATUS EXCEPT FOR GOOD

CAUSE..."

Section 6 (a), Georgia Security Law,

requires that a reason be given upon

dismissal. There was no reason given for

Petitioner's dismissal. Georgia Law coupled

with Respondent's Rule 12.301.1/DHR Rule A.6.a

is combination designed to eliminate blacks

more so than whites. A statute is facially

vague in violation of due process only when

ihe law is impermissibly vague in all of its

applications; facial vagueness occurs when a

Statute is utterly devoid of a standard of

conduct so that it simply has no core and

cannot be validly applied to any conduct. High

Ql' Times, Inc. vy. Busbee, 673 F.2d 1225 (11th

Cir. 1982 Ga.)

Petitioner's complaint alleged a gansal

connection between a constitutional violation.

Barksdale vy. King, 699 F.2d 744 (11th 1983).

With regard to defendants Rule 12.301.1

coupled with the DHR special Rule A.6.a, under

disparate impact theory plaintiff must set

forth discrete, facirlly neutral practices

that have a more severe impact on protected

group than on unprotected group. (Civil

Rights Act of 1964, 701 et seq., 703(a)(2), 42

2000e et seq., 2000e-2(a)(2)]. To establish a

prima facie case of employment discrimination,

plaintiff need only show that facially neutral

employment Standards operated more harshly on

one group than another. [Civil Rights Act of

1964, 701 et seq., 42 2000e et seq.]. Carpen-

ter vy. Stephen F. Austin State University,706

F.2d 608 (11th Cir 1983).

Petitioner argued that the rule (Rules

12.301,i/DHR A.6.a.) LApp, Fl is discri-

Minatory in impact even if that result was not

intended. In Griggs the Court noted that

Griggs forbids the use of any employment

criteria, even one neutral on its face and not

intended to be discriminatory, if, in fact,

the criterion causes discrimination as

measured py Lhe impact on a person or group

entitled to equal opportunity. The court

found that Title VII forbids the imposition of

burdensome terms (See App. F) and conditions

of employment as well as those that produce an

atmosphere of racial and ethnic oppression.

(Re: Use of Rule 12.301.1 and DHR special Rule

A.6.a) Garcia vy. Gloor, 609 F.2d 156 modified

by 618 F.2d 264 (5th Cir. 1980).

Once plaintiff has made a prima facie case,

disparate treatment occurs when employer

treats some people less favorably than others.

(Re: Whittaker vy. DHE findings that "proba-

tionary employees are treated differently);

because of race, color, religion, sex or na-

tional origin; burden then shifts to employer

to go forward with evidence of some legiti-

mate, nondiscriminatory reason for employees

rejection, and if that is done, plaintiff, who

has ultimate burden, is then afforded opportu-

nity to demonstrate by competent evidence that

employer's presumptively valid reasons are a

coverup or pretext. If employer is silent in

face of presumption raised by it, that is,

that employer's acts are more likely than not

based on consideration of impermissible fac-

tors, court must enter judgment for Petitioner

because no issue of fact remains in the case.

Allison vy. Western Union Telegraph Co,., 680

F.2d 1318 (11th Cir. 1982 Ga.).

On equal protection grounds if a law threa-

tens fundamental right or impacts upon suspect

class, court must strictly scrutinize law and

uphold it only if it is precisely tailored to

further compelling government interest; if law

does not threaten fundamental right or impact

upon suspect class, it must be upheld only if

it bears some rational relationship to legiti-

Mate government objective. [Const. Amend.

14]. Doe vy. Plyer,628 F.2d 448 (5th Cir 1980).

In employment discrimination cases in which

Petitioner is able to prove existence of dis-

criminatory intent by direct evidence, plain-

tiff is not required to rely on inference of

discrimination created by prima facie case of

McDonnell Douglas: bresumption is created

that adverse employment action taken against

Dlaintiff was product of that discriminatory

intent and at that point burden shifts to

employer to prove by a preponderance of evi-

dence that adverse action would have been

taken in absence of discriminatory motive.

Perry ys wJobnson Products Co,, Inc,, 698 F.2d

1138 (11th Cir. 1983).

In Burdine plaintiff argued that the Dis-

trict Court erred in failing to address her

allegation that she was discriminated against

on the basis of both race and sex. The Court

of Appeals found that the District Court did

mot properly address the issue of whether

Dlaintiff made out a prima facie case under

the four part McDonnell] Douglas vy. Green test

nor did it make findings concerning the com-

parative qualifications of the plaintiff and

the selectee. Relying on Burdine, Respondents

must prove that those whom he hired were bet-

Ler qualified than the Petitioner. Since the

District Court did not make specific factual

findings on this issue, the court remanded for

proper treatment of the issve based on the

existing record, Jefferies, 615 F.2d 1025

(5th Cir. 1980).

In Webster plaintiff was a probationary

public school teacher. The Court, citing

Roth, noted that property interests are not

created by the Constitution itself, but their

dimensions are defined by existing rules or

understandings (App. F) Adams vy. McDougal, 695

F.2d 104 (11th Cir. 1982), and the term "con-

tract," as used in Civil Rights Act [42

1981]. In Webster the District Court had

dismissed plaintiff's allegations of discrimi-

nation. On appeal, Petitioner argued that

Griggs and McDonnell] applied. The court found

that reinstating him as a teacher following

his suspension showed lack of arbitrariness.

Although plaintiff failed to make his case

under both models, the 5th (iith) circuit

afforded the opportunity to do so. Webster

vy. Redmond, 599 F.2d 793 (5th Cir. 1979). The

Bishop groupthink syndrome, invoked by Respon-

dents and mandated by the Courts, forclosed on

Petitioner' FULL rights.

CONCLUSION

In view of the preponderance of discrimina-

tion law and the foregoing points and authori-

ties, and the number of "protected group mem-

bers" affected, the conclusion is inescapable

that Petitioner presents a case in which con-

flicting decisions in important questions of

constitutional and discrimination law should

be resolved and the judgment against Petitio-

ner overruled.

Re ctful Submitted,

Roland A. #Jones

CERTIFICATE OF SERVICE

I certify that I have served 3 copies of

the foregoing to counsel of record by hand on

this Mf day of June, 1984

oland ™. Jones

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.