Petition — Quintanilla v. Scientific-Atlanta, Inc.

Office - Supreme Court, U.S

FILED

83-798 OCT 17 1983

ALZ.ANOSL.. STEVAS,

CLERK

No, —

In Tue

Supreme Court of the United States

OCTOBER TERM, 1983

DIONICIO QUINTANILLA, JR,

PETITIONER

(PLAINTIFF-APPELLANT) ,

Ve

SCIENTIFIC-ATLANTA, INC.,

RES PONDENT

(DEFENDANT-APPELLEE),.

ETITION FOR A WRIT OF CERTIORARI

To tHe UniTeD STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

DIONICIO QUINTANILLA, JR.

1441 HARLIN DR.

WYLIE, TEXAS 75098

(214) 442-6254

PRO-SE

(LAY-LITIGANT)

oes

QUESTIONS PRESENTED

1. Should a court of appeals deny jur-

isdiction in appeal from an order refusing

to grant an extension of time to appeal

in Civil Procedure when trial counsel, a

sworn officer of the Court, allows time

for appeal to expire, as specified in

F.R.A.P. 4(a), without appealing an

adverse trial court decision, or advising

his client that said decision has been

rendered, thus being in clear breach of

duty and agreement with his client ?

2. Should an aggrieved party be denied

the right of appeal by a court of appeals,

effecting denial of DUE PROCESS OF LAW,

in Civil Procedure if his notice of ap-

peal is not filed timely in accordance

with F.R.A.P. 4(a) because his trial

counsel, a sworn officer of the Court,

fails to represent him in appeal in clear

breach of duty and agreement with the ~

aggrieved party ?

PARTIES IN THE COURT OF APPEALS

The parties to the proceeding in the

court below are those named in the cap-

tion of the case in this Court.

TABLE OF CONTENTS

page

Opinions LElOW ceccesscecseccevsesesesn 2

Jurisdiction cecsessccccccsccscscseeee 2

Statutory and Constitutional

PrOVISLONS ceccccccecseccccesscee 3

Statement of the Case .eccccccsesesee 4

Reasons for Granting the ‘rit ..eoee 15

I. The actions of the appeal

court below are inconsistent

with a previous fifth Circuit

opinion by Circuit Judge Bell

in 1967 in the case of Brewen

V. USA (375 F.2d 225) eeeereeee 15

II.

ii

TABLE OF CONTENTS

The action of the appeals

court below in dismissing this

petitioner's appeal differs

from the per curiam opinion of

the U.S. Court of Appeal (DC)

where in two instances effect-

ing Out-Of-Time Appeal, the

denial of these at District

Court were remanded for re-

hearing and appointment of

counsel. eeeeeveeeeweeeeeeeeeeee

page

16

Iil.

iii

rABLE CONTENTS

©

")

2)

The action of the appeals

court below in denying juris-

diction in this petitioner's

appeal differs from two pre-

vious Fifth Circuit actions

accepting jurisdiction in Out-

Of-Time Appeals in criminal

cases, as well as from similar

actions in™the Seventh Cir-

cuit, and the Court of Appeals

(DC) eeeeeereeeeereeeeeeeeeeeeee

page

18

IV.

iv

TALLE OF CONTENTS

page

The action of the appeals

court below in dismissing this

petitioner's appeal differs

from the per curiam opinion of

the U.S. Court of Appeal (DC)

in Alley V. Dodge Hotel, 501

F.2d 880, where the Court held

that F.R.A.P. 3 and 4 tolerate

a common sense approach to

timely filing of a notice of

appeal. seeeeveeeeeeeeeeereeeeee 20

Vv

TABLE OF CONTENTS

page

The action of the appeals

court below in dismissing this

petitioner's appeal differs

markedly from this Court’s

opinion in 1972 in the case of

Haines V. Kerner, 404 U.S.

519, 92 S.Ct. 594, declaring

that pro se complaints are to

be held to less stringent

Standards than formal plead-

ings drafted by lawyers cesese 21

Vi.

vi

TADLE OF CONTENTS

The actions of the courts be-

low in denying this petition-

er's motions for extension of

time for appeal and his mo-

tions for appointment of coun-

sel and in dismissing the ap-

peal disregard this petition-

er*s excusable neglect as set

forth by Judge Pell at the

Seventh Circuit in 1971 in the

case of Files V. City of Rock-

ford. 440 F.2d 811 eeereee eevee

page

23

vii

TABLE OF CO!TE?DTS

page

VII. The actions of the appeals

court below are inconsistent

with four appeals court cases

in which breach of duty and

agreement were cause for de-

nials of district court of ex-

tension of time to appeal to

be vacated or reversed and re-

manded. esereeeeeeeeeeeeeeeeeee 24

VIII. This petition raises the im-

portant issue addressed by the

Court of Appeals (DC) in 1974

in Alley V. Dodge Hotel, 501

F.2d 880, that civil appeals

are entitled to the same con-

sideration as criminal appeals

when pro se litigants are in-

volved. eeeeeeeeeeeeeeeeeeeeee 293

viii

TABLE OF CONTENTS

page

IX. The actions of the courts be-

low in denying this petition-

er's motion for extension of

time for appeal and his mo-

tions for appointment of coun-

sel and in dismissing the ap-

peal disregard the fact that

his right of <« ppeal was lost

because of the faithlessness

of an officer of the Court. .. 30

ix

TABLE OF CONTENTS

page

Conclusion cessesccesescesecessesees Ih

Certificate of Service ..sessesevees 33

Appendix A ...++.+. Order Dismissing

the Appeal

Appendix B ....++. Order Denying

Stay of Mandate

Appendix C ..e+e++. Order Denying

Motion to Prepare Transcript

at Government Expense

Appendix D .....+.+. Order Denying

Motion for Extension

of Time to Appeal and

Motion for Appointment

of Counsel

Appendix E ....+++. Findings of Fact: and

Conclusions of Law

Appendix F ccccsese Judgment

x

TABLE OF AUTHORITIES

Cases

page

Alley V. Dodge Hotel, 501 F.2d 080,

[C.A.(DC) 1974] woesceeee 17518,20,22,29

Atilus V. USA, 406 F.2d 694,

(5S Cir 1969) cecccccccsccvccscseses 26

Brewen V. USA, 375 F.2d 285,

(S cir 1967) secccvecevceseees 15919925

Calland V. USA, 323 F.2d 405,

(7 cir 1963) cevceccccevesvese 19527,30

Carrell V. USA, 335 F.2d 686,

[C.A.(DC) 1964] coccccccccccecsese 19927

Carrell V. USA, 344 F.2d 537,

(C.A. (DC) 1965] cesccccccsscscscees 17

Coppedge V. USA, 369 U.S. 438,

82 S.Ct 917, 8 L.Ed 21 (1962) ..e+. 15

Files V. City of Rockford,

(440 F.2d B11, (7 cir 1971) eeesesee 23

Haines V. Kerner, 404 U.S. 519,

92 S.Ct. 594 re eeerecevccecccoceees 21

xi

TABLE OF AUTHORITIES

Cases

page

Kent V. USA, 423 F.2d 1050,

(5 cir 1970) secscsvsevecesvevese 19,25

Orbitec Corp., 520 F.2d 358

(CoAsgNoXe 1975) cocevevevescesese 13,16

Constitutional Provisions

Fifth Amendment eeeeseeeeeeeeeeeeseeeeee 4.

Statutes & Rules

28 UsSeCe SL2Z54(1) eevee ecevccevvees 2

2B UcB.C. SILOS ccccccveccccccecsscsee 3F

42 UcS.C. G2000E ccccccccccccccccccs 598

FRAP. RULG 3 ccccccccccccsccccescce 20

F.R»A.P. Rule 4(a)(1) eovcseseeee 3,10,20

F.R.A.P. Rule 4(a) (5) eereeeeeees 4,10,20

xii

TABLE OF AUTHORITIES

Treatises

Advisory Committee Note to the

1966 amendment to former

Rule 73(a) coccccvcvcccscccccccves

Advisory Committee Note to F.R.A.P.

RUL@ 3 cesses cssssesevesesssvesese

9 Moore’s Federal Practice

@ 204.13(1], at 971-974

(2d Cds 1970) cecccsvevvevvsvccves

page

23

21

23

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

NO.

DIONICIO QUINTANILLA, JR,

PETITIONER

(PLAINTIFF-APPELLANT) ,

Vv.

SCIENTIFIC-ATLANTA, INC.,

RESPONDENT

(DEFENDANT-APPELLEE) .

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, Dionicio Quintanilla,

Jre, respectfully prays that this vener-

able Court issue a writ of certiorari to

review the judgment of the United States

Court of Appeals for the Fifth Circuit

2

entered on 20 July 1983.

OPINION BELOW

The Court of Appeals entered its

Order granting Respondent's motion to

dismiss on 20 July 1983. A copy of the

Order is attached as Appendix A.

The Court denied petitioner's motion

to stay mandate pending certiorari on

25 August 1983. A copy of the order is

attached as Appendix B.

JURISDICTION

The decision of the court of appeals

was entered on 20 July 1983. A timely

motion to stay the mandate pending

certiorari was denied by order of 25

August 1983. The jurisdiction of this

Court is invoked under 28 U.S.C.

& 1254(1).

| i

3

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

1. 28 U.S.C. 42106 provides:

The Supreme Court or any other court

of appellate jurisdiction may affirm,

modify, vacate, set aside or reverse

any judgment, decree, or order of a

court lawfully brought before it for

review, and may remand the cause and

direct the entry of such appropriate

judgment, decree, or order, or re-

quire such further proceedings to be

had as may be just under the curcum-

stances.

2. F.R.A.P. Rule 4(a)(1) provides:

In a civil case in which an appeal

is permitted by law as of right from

a district court to a court of

appeals the notice of appeal required

by Rule 3 shall be filed with the

clerk of the district court within 30

4

days after the date of entry of the

judgment or order appealed fromj3 ...

3. F.R.A.P. Rule 4(a)(5) provides:

The district court, upon a showing

of excusable neglect or good cause,

may extend the time for filing a

notice of appeal upon motion filed

not later than 30 days after the ex-

piration of the time prescribed by

this Rule 4(a). ... No such exten-

sion shall exceed 30 days past such

prescribed time ... .

4. The Fifth Amendment of the United

States Constitution provides :

Nor shall any person ... be deprived

of life, liberty, or property with-

out due process Of law eee -«

STATEMENT OF THE CASE

Petitioner, Dionicio Quintanilla, Jr.,

was employed by respondent company,

Scientific-Atlanta, Inc., an employes

5

within the meaning of 42 U.S.C. §&2000e,

from about 28 November 1977, until 15

August, 1980.

During this time petitioner was

employed as a sales representative mostly

for the Instrumentation Division. Then,

the National Sales Manager, Mr. Ben

Forrester, for the Cable Communications

Division offered petitioner a position

with the Cable Division because of his

demonstrated sales abilities with the

Instrumentation Division. Petitioner

was then employed as a Field Sales Repre-

sentative from about 15 December, 1979,

until 15 August, 1980.

Petitioner was attracted to the posi-

tion with the Cable Division with offers

of the opportunity to earn larger quar-

terly bonuses than he was previously

earning with the Instrumentation Division.

Indeed, petitioner did earn about

6

$5000.00 in bonuses for each of the two

full quarters, compared with an average of

$300.00 to $400.00 per quarter with the

Instrumentation Division, until he was

terminated by Mr. Ben Forrester on 15

August, 1980. The larger quarterly

bonuses were possible because of the

' large volume of sales which this peti-

tioner enjoyed, peaking at $1,000,000.00

per month. This large sales volume was

unmatched by any new Field Sales Repre-

sentative, and yet this petitioner was

terminated without recourse, for unjus-

tifiable reasons, and without proper ter-

mination benefits.

Upon termination, plaintiff appealed

to the respondent company’s corporate

officers for relief, subsequent to which

this petitioner received proper termina-

tion benefits, but no offers for coati-

nued employment or to salvage his career

with the company.

In five months subsequent to his dis-

missal from Scientific-Atlanta, this peti-

tioner consulted with Haldane Career Con-

sultants and the Human Potential Center,

as well as attending the University of

Texas at Dallas, all at tremendous finan-

cial expense to rehabilitate and retrain

for a new career in Computer Science. On

27 January, 1981, this petitioner accep-

ted a professional position as a Computer

Software Engineer.

On 11 February, 1981, this petitioner

filed his amended Charge of Discrimination

numbered 061311066, based on National

Origin (Mexican American), with the Equal

Employment Opportunity Commission at the

Dallas District Office. The EEOC conduc-

ted an investigation with Scientific-

Atlanta, for which investigation this

petitioner was not given an opportunity

8

to defend against the company's defenses

and new charges, further embellishing upon

the original reasons given for his termi-

nation, and subsequent to which the EEOC

issued its determination and Right to Sue

on 1 June, 1981.

Later in the summer of 1981, this

petitioner filed suit against Scientific-

Atlanta in the U.S. District Court for the

Northern District of Texas, *he Dallas

Division, with Ciwil Action number

CA-3-81-1437-D. This action was prepared

and filed by this petitioner's retained

counsel, Mr. Frank P. Hernandez, and

sought to recover for the wrongful termi-

nation of his employment with Scientific-

Atlanta., because of his Mexican-American

national origin, in violation of Title VII

of the Civil Rights Act of 1964, 42

U.S.C. 4 2000e et seg,

9

Subsequent to the filing of this peti-

tioner'’s complaint in district court, con-

siderable discovery was done in the form

of interrogatories and depositions until

trial om October 6, 1982. Then, on 6

January, 1983, district Court entered

Findings of Fact, Conclusions of Law, and

Judgment on this cause, ordering that:

" see the plaintiff take nothing,

that the action be dismissed on

the merits ... .”

It did not become known to this peti-

tioner until about 15 March, 1983, that

the district court had disposed of his

case. After one telephone conversation

with his trial counsel, this petitioner

was unsuccessful in repeated attempts to

contact his trial counsel again. At this

time, time had expired for filing Notice

of Appeal, or for filing a Motion for

Extension of Time to Appeal, in accor-

10

dance with F.R.A.P.4(a).

At this time, this petitioner's trial

counsel, a sworn officer of the Court,

has denied him the right of appeal, in

Clear breach of duty and agreement at

trial to appeal this cause should a

judgment be rendered adverse to this

petitioner.

Subsequent to this time, this peti-

tioner has researched and filed numerous

actions in courts below attempting to

recover his right of appeal. For his

efforts, this petitioner has suffered

mockery from counsel for the respondent,

Scientific-Atlanta, and summary dismissal

from the courts below. In respondent's

“MEMORANDUM OF APPELLEE SCIENTIPIC-

ATLANTA, INC. IN SUPPORT OF ITS

MOTION TO DISMISS THE APPEAL AND

IN OPPOSITION TO APPELLANT*S MOTION

FOR APPOINTMENT OF COUNSEL ”

11

counsel for respondent maintains that

“This appeal and Quintanilla's

motion are but the most recent

in a series of meritless papers

filed over the last few months

This memorandum is of date 9 June, 1983,

in the Fifth Circuit Court of Appeals.

But for these "meritless papers” this

petitioner would not now be in a position

to submit this petition to this Court.

On 16 August, 1983, counsel for the re-

spondent maintained at the Fifth Circuit

Court of Appeals in their brief

"“APPELLEE*S BRIEF IN OPPOSI-

TION TO APPELLANT'S MOTION

TO STAY MANDATE "

the following

"Appellant also has now attempted

to suggest that he has a meri-

torious claim that he will pre-

12

sent to the Supreme Court of

the United States ... ."

Likewise, the courts below have denied

jurisdiction or lack of authority to con-

sider this petitioner's extraordinary

circumstance for being out of time to

appeal with the following orders :

In District Court, 27 April 1983;

deny Motion for Extension of Time

for Appeal, and Motion for Appoint-

ment of Counsel.

In Fifth Circuit, 20 July 1983;

motions not considered because

the court has no jurisdiction

to entertain the appeal:

APPEAL DISMISSED.

On 5 May, 1983, this petitioner

filed timely his notice of intent to

appeal district court's denial of Motion

for Extension of Time for Appeal and his

Motion for Appointment of Counsel. An

13 we, o>

order refusing to grant an extension of

time to appeal is appealable. in re

Orbitec Corp., C.A.,N-Y¥. 1975, 520 F.2d

358. On 20 July, 1983, the court of

appeals below dismissed this appeal,

and did not consider this petitioner's

motions for appointment of counsel and

to strike exhibits from the appellee's

memorandum.

On 10 August, 1983, this petitioner

filed timely his motion to stay mandate

pending certiorari in civil action.

On 25 August 1983, the court of appeals

below entered its order denying this

motion without opinion. In the brief

“APPELLEE'S BRIEF IN OPPOSITION

TO APPELLANT*S MOTION TO STAY

MANDATE "

counsel for Scientific-Atlanta maintains

that ;

14

" .e. the unsuccessful civil li-

tigant whose lawyer fails to

take an appeal from an adverse

judgment is not left without

a remedy, for he always has avail-

able to him a malpractice

action against the attorney in

question.”

The suggestion in this brief is that this

petitioner is not entitled to

" eee the allowance of out-of-

time appeals (as) in criminal

cases."

because he has not suffered

eee loss of his liberty. ”

as the criminal defendant whose

"lawyer ... fails to take a timely

appeal, as he had agreed to do

These suggestions are preposterous be-

cause no malpractice action can remedy

15

the charges made against this petitioner

by the trial court, which cannot be

substantiated by the record, nor its

determination, and this petition follows.

REASONS FOR GRANTING THE WRIT

I. The actions of the appeal court below

are inconsistent with a previous

Fifth Circuit opinion by Circuit

Judge Bell in 1967 in the case of

Brewen V. USA (375 F.2d 285).

In the referenced case, Judge Bell held

"It is settled that an appeal from

the judgment of a Federal Dis-

trict Court is a matter of right.

Coppedge V. USA, 1962, 369 U.S.

438, 82 S.Ct. 917, 8 L.Ed.2d 21."

supra, 375 F.2d at 265 .

In this cause, this petitioner was de-

nied right of appeal effecting denial of

due process of law by the court below

when it granted respondent's motion to

16

dismiss his timely appeal from an appeal-

able order at district court denying

petitioner's Motion for Extension of

Time For Appeal, and his Motion for

Appointment of Counsel. In re Orbitec

Corp., C.A.N.Y¥. 1975, 520 F.2d 358.

II. The action of the appeals court

below in dismissing this peti-

tioner’s appeal differs from the

per curiam opinion of the U.S.

Court of Appeal (D.C.) where in

two instances effecting “OUT-OF-

TIME APPEAL", the denial of these

at District Court were remanded

for rehearing and appointment of

uns .

In this cause, the court below did not

even consider this petitioner's Motion

for Appointment of Counsel, submitted on

23 May, 1983, in which he subscribes te

the worthiness of his cause.

17

The two cases refered to here are first

a criminal case in Carrell V. USA, 344

F.2d 537 (1965), and second a civil case

in Alley V. Dodge Hotel, 501 F.2d 880

(1974)

In Carrel V. USA, the court held that

e+e a hearing to determine whe-

ther failure to take a timely

appeal is to be excused is so

critical to the basic right of

appeai that one who is without

counsel and urges the claim

must be offered the assistance

of counsel.” supra F.2d at 538

In Alley V. Dodge Hotel the court held

that :

“We also note that the district -

court’s responsibility on this

remand extends to the appoint-

ment of counsel, if deemed ne-

cessary, to assist Alley in sub-

18

stantiating his allegations, if

any of excusable neglect.”

supra, 501 F.2d at 886.

In dismissing the appeal, the court

below also denied this petitioner relief

from the district court's denial of his

Motion for Appointment of Counsel.

III. The action of the appeals court

below in denying jurisdiction in

this petitioner's appeal differs

from two previous Fifth Circuit

actions accepting jurisdiction

in “OUT-OF-TIME APPEALS” in cri-

minal cases, as well as from

similar actions in the Seventh

Circuit, and the Court of Appeals

(DC).

The cases involved are :

(1) ALLEY V. DODGE HOTEL, C.A.(DC)

Civil - 61 days after judgment

501 F.2d 880 (1974)

19

(2) Carrell V. USA, C.A.(DC)

Criminal-approx 333 days

after judgment

335 F.2d 686 (1964)

(3) Brewen V. USA, (5 cir),

Criminal, 375 F.2d 285

(1967)

(4) Kent V. USA, (5 cir),

Criminal, 423 F.2d 1050

(1970)

(5) Calland V. USA, (7 cir),

Criminal-approx 203 days

after judgment

323 F.2d 405 (1963)

Considering that this petitioner's

Notice of Intent to Appeal, from an

appeallable order, was filed timely in

district court on 5 May, 1983, the

appeals court below was clearly remiss

in denying jurisdiction in this appeal,

and further in refusing to consider

20

this petitioner's Motion to Strike

Exhibits from Appellee's Memorandum.

IV. The action of the appeals court

below in dismissing this peti-

tioner’s appeal differs from the

per curiam opinion of the U.S.

Court of Appeal (D.C.) in Alley

V. Dodge Hotel, 501 F.2d 880,

where the Court held that F.R.A.P.

3 and 4 tolerate a common sense

approach to timely filing of a

notice of appeal.

In the referenced case, the opinion of

the Court was :

“ It is clear beyond cavil that

Appellate Rules 3 and 4 toler-

ate a common sense approach to

timely filing and do not insist

upon ‘literal compliance in

cases in which it cannot be

fairly exacted ... * ”

21

(Advisory Committee Note to

F.R.A.P. 3), supra, 501 F.2d

at 884 .

It is clear that the court of appeals

below has not used a common sense

approach in considering this peti-

tioner's “extraordinary circumstance”

for not timely filing his Notice of

Intent to Appeal when his trial counsel

was in clear breach of duty and agreement

to appeal a judgment adverse to his cause.

V. The action of the appeals court

below in dismissing this peti-

tioner’s appeal differs markedly

from this Court's opinion in

1972 in the case of Haines V.

Kerner, 404 U.S. 519, 92 S.Ct.

594, declaring that pro se com-

plaints are to be held to less

stringent standards than formal

pleadings drafted by lawyers. __

22

In Alley V. Dodge Hotel, 501 F.2d 880,

the Court of Appeals (DC) held by per

curiam opinion that :

" Any approach to problems presented

in Alley's lawsuit must yield consi-

deration to the fact that he is a

pro se litigant untrained in

the law. " re Haines V. Kerner,

404 U.S. 519, 92 S.Ct. 594.

Not only district court but also the

appeals court below have held this peti-

tioner to strigent interpretations of

F.R.A.P. 4(a) in clear contradiction to

this Court's ruling cited above, and in

total disregard for this petitioner's

right of appeal and the fact he is with-

out counsel in his appeal because his

trial counsel abandoned the appeal in

breach of duty and agreement with this

petitioner.

23

VI. The actions of the courts below

in denying this petitioner's

motions for extension of time

for appeal and his motions for

appointment of counsel and in

dismissing the appeal disregard

this petitioner's excusable

neglect as set forth by Judge

Pell at the Seventh Circuit in

1971 in the case of Files V. City

of Rockford, 440 F.2d 81] .

In Files V. City of Rockford Judge

Pell held that :

" The matter of what constitutes

excusable neglect is discussed |

in 9 Moore’s Federal Proctice

204.13[1], at 971-974(2d ed.

i970)?

1 -eference Advisory Committee Note to

the 1966 amendment to former rule 73(a)

24

* wee that in cases not involving

failure to learn of entry of

judgment, the Districts Courts

may and should restrict ex-

tensions of time for filing

notice of appeal in civil cases

to extraordinary cases where

injustice would otherwise

result * ", supra, 440 F.2d

at 815 .

In this case, the courts below have ig-

nored the extraordinary circumstance

alledged by this petitioner that his

trial counsel abandoned him in clear

breach of duty and agreement to appeal

his case should an adverse decision be

rendered against him by district court.

VII. The actions of the appeals

court below are inconsistent with

four appeals court cases in which

breach of duty and agreement were

25

cause for denials at district

court of extension of time to

appeal to be vacated or reversed,

and remanded. _

The cases involved are :

(1) In the Fifth Circuit, in Brewen

Ve. USA, 1967, 375 F.2d 811, Judge

Bell held :

" «+. @ criminal defendant with

retained counsel must look to

his counsel for guidance in

taking the appeal. His right

of appeal is lost by a failure

to timely file a notice of

appeal through fraud and deceit

of his retained counsel." supra,

375 F.2d at 286, 287 .

(2) In the Fifth Circuit, in Kent V.

USA, 1970, 423 F.2d 1050, the Court

held by per curiam opinion that :

26

" Petitioner’s claim is that he

was denied effective aid from

his court-appointed counsel.

He alleges that he requested

his attorney to appeal the

conviction and that his attor-

ney intimated that he would do

so but never did.

ee2eeere2ee8

Atilus* is clearly controlling

here if Petitioner desired an

appeal and made this desire

known to Counsel and Counsel

declined to take and prosecute

the appeal.

kkeeene

If the request was made and’

not carried, for whatever rea-

son «++ Petitioner was denied

zatilus V. USA, 5 cir, 1969, 406 F.24a 694

27

effective assistance and is

entitled to an out-of-time

appeal.” supra, 423 F.2d at 1051

(3) Im the Seventh Circuit, in

Calland V. USA, 1963, 323 F.2d ~- ,

405, Judge Schnackenberg held :

“ We agree with counsel for

appellant that one who justi-

fiably believes that he is

represented by Counsel and

who instructs his counsel to

appeal and is assured by coun-

sel that the appeal will be

filed should not suffer a loss

of rights if Counsel proves

faithless ... ”

supra, 323 F.2d at 408.

(4) In the Court of Appeals (DC),

Carrell V. USA, 1964; 335 F.2d

686, the Court held by per curiam

opinion that the Denial of Motica

23

for Extension of Time to Appeal

be vacated and remanded to Dis-

trict Court. Petitioner's Mo-

tion for Extension of Time for

Appeal in forma pauperis alleged

that within ten days of sentence,

petitioner informed his trial

counsel, an officer of the Court,

that he wished to take an appeal,

and that trial counsel informed

petitioner that he would

timely notice of appeal.

In the same manner as these four

this petitioner deserved to have

file a

cases,

his

denial of Motion for Extension of time

to Appeal remanded for a determination

of excusable neglect because he has

maintained that his trial counsel proved

faithless in appealing his case,

thus

causing this petitioner to lose his right

of appeal.

29

VIII. This petition raises the important

issue addressed by the Court of

Appeals (DC) in 1974 in Alley V.

Dodge Hotel, 501 F.2d 880, that civil

appeals are entitled to the same con-

sideration as criminal appeals when

pro se litigants are invoived.

In Alley V. Dodge Hotel, the court

held by per curiam opinion that :

“ In view of the hospitable approach

which generally must be taken with

pro se litigants, we perceive no

reason why the same considerations

do not surround civil appeals (as in

Johnson V. USA, 132 U.S. APP.D.C.

4. " Alley V. Dodge Hotel, supra,

501 F.2d at 886.)

In this cause, this petitioner has been

denied the same relief afforded the civil

case of Alley V. Dodge Hotel and numerous

criminal cases in Out-Of-Time Appeals.

30

The financial losses that this petitioner

has suffered as a result of the loss of

his career with Scientific-Atlanta con-

stitutes LOSS OF PROPERTY, and thus en-

titles this petitioner to the same due

process of law guaranteed by the Fifth

Amendment as has been afforded criminal

appeals, even though his liberty or life

are not at stake.

IX. The actions of the courts below

in denying this petitioner's

motions for extension of time

for appeal and his motions for

appointment of counsel and in

dismissing the appeal disregard

the fact that his right of appeal

was lost because of the faith-

lessness of an officer of the

Court.

In the Seventh Circuit, in Calland v.

USA, 1963, 323 F.2d 405, Circuit Judge

31

Schnackenberg held

" ..e. those charged with fraud

(faithlessness) are officers of

the Court under whose sanction

they are permitted to practice

their profession therein ... "

supra, 323 F.2d at 409.

The courts below then have sanctioned the

faithlessness and breach of duty and

agreement by this petitioner’s trial

counsel who promised to appeal should an

adverse decision be rendered against him.

CONCLUS ION

The matter of the preservation of the

right of appeal in Out-Of-Time Appeals

in criminal cases where life or liberty

are at stake has generally been resolved.

However, this Court has yet to address

and resolve the issue of the preserva-

tion of the right of appeal in Out-Of-

Time Appeals in civil cases where the

32

loss of right of appeal has resulted

from the faithlessness and breach of duty

and agreement by trial counsel, an officer

of the Court. This petitioner respect-

fully prays for this Court to consider

the important issues presented in this

petition, protect the right of appeal in

civil cases, and remand this case for a

determination of excusable neglect in the

extension of time to appeal, and the

appointment of counsel.

Respectfully submitted,

Dionicio Quintanilla, Jr.

Pro Se Lay Litigant

1441 Harlin Dr.

Wylie, Texas 75098

(214) 442-6254

33

CERTIFICATE OF SERVICE

I hereby certify that copies of the

foregoing Petition for a Writ of

Certiorari to the United States Court of

Appeals for the Fifth Circuit were sent

by United States mail, first class, pos-

tage prepaid, to the following counsel of

record for Respondent, Scientific-Atlanta,

Inc., this 9th day of November, 1983 :

Susan A. Cahoon

Kilpatrick & Cody

3100 Equitable Building

100 Peachtree Street

Atlanta, Georgia 30043

Dionicio Quintanilla, Jr.

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

US Ct APPEALS

FILED

JUL 20 1983

GILBERT F.

GANUCHEA U, CLERK

REPRINT

DIONICIO QUINTANILLA, JR.,

Plaintiff-Appellant,

Ve

SCIENTIVIC-ATLANTA, INC.,

Defendant-Appellee,.

Appeal from the United States District Ct

for the Northern District of Texas

Before: BROWN, TATE and HIGGINBOTHAM,

Circuit Judges.

By the Court:

It is ORDERED that the motion of

Scientific-Atlanta, Inc., to dismiss the

appeal is GRANTED. The notice of appeal is

not timely. Fed. R. App. P. 4(a)

It is FURTHER ORDERED that the motions

of Dionicio Quintanilla, Jr., for appoint-

ment of counsel and to strike exhibits

from the appellee*s memorandum are not

considered because the court has no juris-

diction to entertain the appeal.

APPEAL DISMISSED.

ISSUED AS MANDATE: AUG 25 1983

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

US Ct APPEALS

No. 83-1288 FILE

AUG 25 1983

GILBERT F.

REPRINT GANUCHEAU, CLERK

DIONICIO QUINTANILLA, JR.,

Plaintiff-Appellant,

Ve

SCIENTIFIC-ATLANTA, INC.,

Defendant - Appellee.

Appeal from the United States District Ct

for the Northern District of Texas

ORDER

The motion of APPELLANT

for stay ... of the issuance of the

mandate pending petition for writ of

certiorari is DENIED. |

xeeeeee?

/s/ JOHN R. BROWN

UNITED STATES CIRCUIT JUDGE

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION») 5 piseRict COURT

NORTHERN DISTRICT OF

TEXAS

CIVIL ACTION NO. CA-3-81-1437-D FILED

MAY 13 1983

NANCY S. HALL

REPRINT CLERA

DIONICIO QUINTANILLA, JR.,

Plaintiff

Ve

SCIENTIFIC-ATLANTA, INC.,

Defendant

ORDER

The motion to have transcript prepared

at government expense for appeal purpose

filed by plaintiff came on for considera-

tion before the Court. Since the plain-

tiff has failed to properly perfect an

appeal of this action, the Court is of the

opinion that it should be denied.

It is so ORDERED.

Dated this 13 day of May, 1983.

/s/ R. M. HILL

United States District Judge

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

U.S.DISTRICT COURT

DALLAS DIVISION NORTHERN DISTRICT OF

TEXAS

saa

APRIL 27 1983

CIVIL ACTION NO. CA-3-81-1437-D NANCY S. HALL

CLERK

REPRINT

Plaintiff

Vv.

SCIENTIFIC-ATLANTA, INC.,

Defendant

ORDER

Came on for consideration the Motion

for Extension of Time for Appeal, filed

by Plaintiff Dionicio Quintanilla, Jr.,

on April 26, 1983, and his Motion for

Appointment of Counsel. The Court is of

the opinion that the motions should be

denied.

Quintanilla seeks to appeal from the

Judgment of this Court entered on January

6, 1983, denying him any relief and dis-

missing his claims. Rule 4(a)(1), Ted.

Rules App. Proc., provides that an ag-

grieved party must file notice of appeal

in a civil action within 30 days after

entry of judgment. Pursuant thereto,

Quintanilla was required to file a notice

of appeal by February 5; however, he

failed to do so. An extension of this 30

day time period can be granted by the

district court. Rule 4(a)(5) further

provides that the "district court, upon

a showing of excuseable neglect or good

cause, may extend the time for filing a

notice of appeal upon motion filed not

later than 30 days after the expiration

of the time prescribed by this Rule 4(a).

Quintanilla failed, however, to file a

motion for extension of time to file a

notice of appeal within the 30 day period

following February 5. Having failed to

do so, this Court lacks the authority to

grant an extension of time within which

Quintanilla can file a notice of appeal

from the January 6 Judgment. His motion

for such relief must be denied.

Quintanilla’s motion to have counsel

appointed should also be denied.

It is so ORDERED.

Dated this 27 day of April 1983.

Jef BR. Me HILL

United States District Judge

APPENDIX €£

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION U.S.DISTRICT COURT

NORTHERN DISTRICT

OF TEXAS

“2 FILED

CIVIL ACTION NO. CA-3-81-1437-D 534° € 1093

JOSEPH McELROY

JR., CLERK

2s Pe Tt NT

DIONICIO QUINTANILLA, JR.,

Plaintiff

V.

SCIENTIFIC-ATLANTA, INC.,

Defendant

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This cause came on for consideration

before the Court without a jury, the Hon-

Orable Robert M. Hill, United States Dis-

trict Judge, presiding. After considering

all the evidence and the arguments of

counsel the Court makes the following

findings of fact and conclusions of law.

till

Findings of Fact

1. Dionicio Quintanilla, Jr., plain-

tiff, seeks to recover for the wronfgul

termination of his employment with

Scientific-Atlanta, Inc., defendant, be-

cause of his Nexican-American national

origin, in violation of Title VII of the

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

2000e et seq.

2. Quintanilla is a United States

citizen of Mexican-American national ori-

gin, who was born in the United States.

3. Quintanilla was employed by

Scientific-Atlanta on November 28, 1977,

as a Field Sales Representative in the

Instrumentation Division. Quintanilla was

responsible for sales activities in an

assigned territory for the products pro-

duced in the Instrumentation Division of

Scientific-Atlanta. Quintanilla had a

tendency to be abrupt at times and impa-

tient while dealing with customers of

Scientific-Atlanta. He also experienced

some difficulty with working with person-

nel in the Atlanta, Georgia, headquarters.

4. On December 15, 1979, Quintanilla

moved to a Field Sales Representative po-

sition in the Cable Communications Divi-

sion. This Division produces a different

product line from the Instrumentations

Division. It manufactures and markets

equipment used in cable television sys-

tems, including ground stations, set top

units, head end equipment and other com-

ponents for cable television.

S. Quintanilla was recruited by the

Sales position in Cable Communications by

Ben Forrester, National Sales Manager for

the Division. Forrester, who is not of

Mexican-American national origin, learned

from Quintanilla’s superviser in the In-

strumentation Division that Quintanilla

could be released to Cable Communications.

Cable Communications desired to broaden

the scope of its coverage and to penetrate

the Southwestern territory then being cer-

viced out of the home office in Atlanta by

having an additional sales representative

available to cover that territory from

Dallas, Texas, where Quintanilla was sta-

tioned.

6. After an interview, Forrester em-

ployed Quintanilla in the Cable Communica-

tions Division and assigned him the South-

western territory. At the time, Forrester

did not Know that Quintanilla was a

Mexican-American.

7. After Quintanilla's employment,

the existing accounts of Scientific-

Atlanta in the Southwestern territory

which were being serviced by the sales

representative that Quintanilla replaced

were assigned to Quintanilla.

8. Quintanilla attended trade shows

in California and Texas and training pro-

grams in Atlanta, during which he had an

opportunity to hear explanations of the

products from technical personnel and how

to penetrate the cable television market.

Quintanilla was also accompanied by

Forrester in calling on accounts so as to

assist Quintanilla in learning how to make

sales. Quintanilla also made trips to the

Atlanta headquarters of Scientific-Atlanta

for the purpose of familiarizing himself

with headquarters personnel with whom he

would be dealing and to give him an oppor-

tunity to meet with the manufacturing and

other technical personnel to learn more

about the product lines he would be sell-

ing and requirements for making sales.

Quintanilla was furnished adequate train-

ing and instructions as to how to perform

his duties as a sales representative of

the Cable Communications Division.

9. Quintanilla developed substantial

problems in his working relationship with

Atlanta personnel of Scientific-Atlanta.

He had a tendency to function independent-

ly of headquarters and its procedures. At

times Quintanilla became impatient in his

dealing with headquarters personnel, who

were confronted with backlog of requests

for quotes or the development of proposals

for Cable Division customers. This was

evidenced by rudeness and abruptness in

communications from Quintanilla to head-

quarters personnel.

10. In some instances the nature of

the sales function in the Cable Division

involves assisting a customer to under-

stand how various products of Scientific-

Atlanta might be integrated most effec-

tively into that customer's existing sys-

tem and to project his future needs. This

entails an engineering function. In

Atlanta there were applications engineers

specifically trained and experienced in

this aspect of the sales process,

Quintanilla attempted to perform what

amounted to applications engineering func-

tions for customers on his own, without

proper consultation or coordination with

headquarters personnel. Quintanilla had

an engineering background, but he lacked

knowledge of the particular needs of the

cable television industry before trans-

ferring to the Cable Division. Quintanilla

made recommendations to his customers

which were not based on adequate study

nor proper recommendations to fulfill the

customer’s needs. Quintanilla also stated

or implied to Atlanta personnel that he

possessed superior knowledge about the

needs of his customers and how to do the

applications engineering and he refused

to accept recommendations from Atlanta

technical personnel. On occasion he sug-

gested approaches that would have violated

Scientific-Atlanta procedures and stan-

dards. As a result, several heated argu-

ments and a strained relation with techni-

Se ee ee

cal personnel at the Atlanta headquarters

occurred.

11. Without consulting with headquar-

ters personnel, Quintanilla developed his

own form letter involving a credit inquiry

of customers. As a result Quintanilla

developed a serious problem in his rela-

tionship with Sammons Communications, the

largest single account in his territory.

This customer became unhappy with the si-

tuation and it requested that Quintanilla .

no longer service its account. Forrester

advised Quintanilla of this problem, who

then had further cenmtact with the customer,

apologized for his form letter and ulti-

mately straightened out his relationship

so that the customer decided to continue

to permit Quintanilla to contact it.

12. Quintanilla's intense, aggressive,

and sometimes overbearing style in dealing

with people also caused difficulty with

other customers and produced at least one

other request from a customer that Quinta-

nilla no longer service that customer's

business,

13. Forrester did furnish Quintanilla

with a memorandum in May 1980 to the

effect that he was performing in a satis-

factory manner. A memorandum with iden-

tical language was furnished to all sales

personnel as an incentive message and it

was not intended to constitute an indivi-

dual evaluation of the qualifications of

an employee.

14. Because of Quintanilla’s problems

in interfacing, both in dealing with head-

quarters personnel of Scientific-Atlanta

and with customers, in July 1980

Forrester decided that Quintanilla was not

suited for continued employment in da sales

position in the Cable Division. On August

15, 1980, Forrester gave Quintanilla an

opportunity to resign his employment or

else be terminated. Quintanilla refused

to resign, whereupon Forrester terminated

his employment as of August 15.

15. On August 31 Quintanilla wrote

Scientific-Atlanta a letter regarding his

termination and requesting a reference

letter. Headquarters personnel of

Scientific-Atlanta ultimately arranged for

Quintanilla to receive a helpful reference

letter to assist him in obtaining further

employment and provided him with three (3)

months severance pay. In his dealings

with Scientific-Atlanta following his dis-

charge, Quintanilla did not assert or

Claim that his discharge was based on his

national origin. At the time Quintanilla

felt that Forrester terminated him so that

he could employ a younger person who would

not be as independent as Quintanilla’ had

been.

16. Quintanilla was replaced by a

Salesman who was an Ariglo.

17. Forrester was not aware of Quinta-

nilla's ‘::exican-American national origin

until after Quintanilla was terminated.

18. Quintanilla does not believe that

persons at Scientific-Atlanta other than

Forrester discriminated against him on the

basis of his national origin. Quintanilla

does not believe that Forrester discrimi-

nated against him in the terms and condi-

tions of his employment with Scientific-

Atlanta other than Forrester’s decision to.

terminate him in July 1980.

19. Scientific-Atlanta’s decision to

terminate Quintanilla was not based on his

national origin but because of his inabil-

ity to satisfactorily perform the duties

of his position.

20. Following his termination, Quinta-

nilla decided not to further pursue a ca-

reer in sales work because he lost confi-

dence in his ability to satisfactorily

perform sales work as a result of his ter-

mination by Scientific-Atlanta. Quinta-

nilla undertook a study in computer tech-

nology and was employed as a systems mana-

ger for E-Systems on January 21, 1981.

Quintanilla was initially employed at an

annual salary of $24,000, and he received

raises in December 1981 to $27,000 and in

May 1982 to $29,000. ‘vhen terminated by

Scientific-Atlanta Quintanilla was earning

$27,000 annually, plus bonuses of $5,000

each quarter of the year and a car allow- .

ance of $3,000 per year.

Conclusions of Law

l. The Court has jurisdiction over

this action under 28 U.S.C. 1343 and 42

U.S.C. 2000e et seg. Venue is proper in

the Northern District of Texas.

2. Scientific-Atlanta is an employer

within the meaning of 42 U.S.C. 2000e,

and all statutory conditions precedent to

the filing of Quintanilla's action under

Title VII of the Civil Rights Act of 1964,

have been fulfilled.

3. The plaintiff in a Title VII ac-

tion bears the burden of establishing a

prima facie case of discrimination. Texas

Comm ty Affairs v. Bu e, 450

U.S. 248, 252-53 (1981); McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973).

4. The plaintiff in a wrongful dis-

Charge action may establish a prima facie

case of discriminatory discharge under the

McDonnell Douglas model by showing that

(1) he was a member of a protected class,

(2) he was qualified for the job from

which discharged; (3) he was discharged,

and (4) after the discharge, the employer

filled the position with a nonclass member.

EEOC v. Brown & Root, Ince, 688 F.2d 338

(Sth Cir. 1982). 7

5. If the plaintiff succeeds in prov-

ing a prima facie case of discrimination,

the burden shifts to the employer to

Clearly set forth some legitimate, non-

discriminatory reason for the employee's

discharge. Burdine, supra, 450 U.S. at

253. This is merely a burden of produc-

tion, not persuasion. Id. at 256-57.

6. Should the defendant carry its

burden of production, the plaintiff must

then be given an opportunity to prove

by a preponderance of the evidence that

the proffered reasons were not the true

reasons for the employer's decision, but

rather were a pretext for discrimination.

Burdine, supra, 450 U.S. at 256. The

burden of showing that the reasons arti-

Culated by the defendant are pretextual

merges with the plaintiff's ultimate bur-

den of persuading the Court that he was

the victim of intentional discrimination.

Id, at 256.

| 7. Pretext may be shown through proof

that a discriminatory reason more likely

motivated the employer or that the emplo-

yer’s proffered explanation is unworthy of

credence. Id, at 256.

8. In light of these principles, this

Court finds, at the outset, that Quintan-

illa has established a prima facie case of

discrimination on the basis of national

origin. Quintanilla, as a Mexican-Ameri-

can, is a member of a protected class; he

was presumably qualified for the position

he held (he was hired for the position,

and Scientific-Atlanta has not contested

his basic qualifications for the job); he

was discharged; and he was replaced by a

nonclass member,

9. In response, Scientific-Atlanta

set out a legitimate, nondiscriminatory

reason for Quintanilla’s discharge.

Quintanilla was shown to have been dis-

Charged because of his inability to inter-

act both with customers of Scientific-

Atlanta and with headquarters personnel

in Atlanta and to satisfactorily perform

his assigned duties.

10. Quintanilla failed to demonstrate .

that the proferred reasons for his dis-

Charge were pretextual. Quintanilla at-

tempted to undermine the credibility of

Scientific-Atlanta’s explanation for his

discharge by attempting to show that much

of the underlying basis for Forrester's

decision to terminate him did not in fact

exist. He further explained that his

aggressive nature i: dealing with his cus-

tomers and other company personnel was a

trait growing out of his upbringing as a

Mexican-American in an Anglo environment.

However, this relationship was not shown

to have been Known to Forrester nor played

a role inhis decision to terminate Quin-

tanilla. "It is now well settled in em-

ployment discrimination cases ... that for

an employer to prevail the jury need not

determine that the employer was correct in

its assessment of the employee's perfor-

mance; it need only determine that the

defendant in good faith believed plain-

tiff's performance to be unsatisfactory

and that the asserted reason for discharge

is therefore not a mere pretext for dis-

crimination.” Moore v. Sears, Roebuck

and Co., 682 F.2d 1321, 1323 n.4 (11th

Cir. 1982); see Jeffries v. Harris County

Action Assoc,, 615 F.2d 1025, 1036 (Sth

Cir. 1980); Corley v. Jackson Police

Depte, 566 F.2d 994, 1003 & n.14 (5th Cir,

1978); Turner _v. Texas Instruments, Ince,

555 F.2d 1251, 1256 (Sth Cir. 1977).

.

*

‘ —S

11. Quintanilla did not carry his bur-

den of persuasion on the issue of discrim-

inatory intent in Scientific-Atlanta's de-

cision to terminate him.

12. Section 706(g) of Title VII pro-

vides that this Court may not accord re-

lief to an individual as an employee if he

was discharged "for any reason other than

discrimination on account of race, color,

religion, sex or national origin . . « «”

Therefore, the Court concludes that since .

Scientific-Atlanta did not termination

Quintanilla because of his national ori-

gin requires that he be denied all relief

and that judgment be entered in favor of

Scientific-Atlanta as to all claims.

13. Any finding of fact which is de-

termined also to be a conclusion of law

is so deemed, and any conclusion of law

which is determined also to be a finding ©

of fact is so deemed.

It is so ORDERED.

Dated this 6 day of January, 1983.

/s/ R. M. HILL

United States District Judge

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION U.S.DISTRICT COURT

NORTHERN DISTRICT

OF TEXAS

FILED

CIVIL ACTION NO. CA-3-81-1437-D JAN 6 1983

JOSEPH McELROY,

JR., CLERK

REPRINT

DIONICIO QUINTANILLA, JR.,

Plaintiff

V.

SCIENTIFIC-ATLANTA, INC.,

Defendant

JUDGMENT

This action came on for trial before

the Court, Honorable Robert M. Hill, Dis-

trict Judge, presiding, and the issues

having been duly tried and a decision hav-

ing been duly rendered.

It is ORDERED and ADJUDGED that the

plaintiff take nothing, that the action be

dismissed on the merits, and that the

defendant Scientific-Atlanta, inc.,

recover of the plaintiff Dionicio Quin-

tanilla, Jr., its costs of action.

Dated at Dallas, Texas, this 6 day of

January, 1983.

/s/ Robert M. Hill

United States District Judge