Petition for Writ of Certiorari — Riggs v. Orr

Supreme Court, U.S.

FILED

rf =6JUN 16 1986

JOSEPH F. SPANIOL, JR.

CLERK

NO.

IN THE SUPREME COURT OF THE UNITED STATES

JUNE TERM, 1986

VELMA L. RIGGS,

PETITIONER

Vy

VERNE ORR, SECRETARY OF THE UNITED STATES

DEPARTMENT OF THE AIR FORCE, AND

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES-

MATHER AIR FORCE BASE, LOCAL: 1692,

RESPONDENTS

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VELMA L. RIGGS

6805 LARCHMONT DRIVE

NORTH HIGHLANDS, CA 95660

PROPRIA PERSONA

QUESTIONS PRESENTED FOR REVIEW

Whether the dismissal of a complaint

as to one party without order or judqment and

without resolving the action as to all claims

and all parties a violation of petitioner's

United States Constitutional Right, X1V, Sec-

tion l.

Whether the Civil Service Reform Act

of 1978 imposes on the Union, acting by author-

ity of the Federal Service Labor-Management Re-

lations Statute as the exclusive representative

of the agency, the duty to represent all employ-

ees of the agency when requested without repri-

sal and discrimination becuse of race.

Whether forged and altered documents

are proper before the court when they purpose-

fully misstate the law as to the exhaustion st

administrative remedies and deprive a party

from knowing about her rights or from having a

fair opportunity at presenting them and to

fully litigate all rights and defenses that

she was enable to assert.

PARTIES INVOLVED

The following list is a complete list ©

of all of the parties to the action:

PETITIONER '

Velma L. Riggs

RESPONDENTS AND APPELLEES,

Verne Orr, Secretary of the United

States Department of the Air Force,

and .

American Federation of Government Em-_

ployees, Local 1692, affiliated with —

AFL-CIO

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW.......... i

i Se ke ae escccces ii

SE Ee OTE MU Deb cee See eee er eecnvececce iii

FABLE OF AUTHORITIES................... IV

MEMORANDUM BELOW...........eceeeeeeeeees 1

EE 1

CONSTITUTIONAL PROVISIONS, STATUTES

EE SRE ic caw a escencess 2

STATEMENT OF THE CASE..........eeeeeeeee 4

REASONS FOR GRANTING PETITION........-. 11

Nee cc usaccunceces 29

APPENDIX

iii

TABLE OF AUTHORITIES

CASES PAGE

Fine v Barry & Enright Pro. :

731 F.2d 1394, (9th Cir.), Cert. denied 105 |

S. Gt. 246 (1988). ...02.% eecesee couedd

\

Massey v Illinois Range Co.

358 F. Supp. (DC 111 Cer 27

CONSTTTUTTONAL PROVISTONS

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RULES

Federal Rules of Civil Procedure

DEG Se vs Oe ead ws been ee eksnes sa 9

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8 Le) Sepa yee aera Se Lae we eee

ik | eee ee Oe ee Tee re i

MUS oie én OS's 00k eee eee me eT

21,22,24

Rules of the District Court

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Rules of the Ninth Circuit

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Rule of the Supreme Court

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STATUTES

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rp) 12-318 @ reese yee ee 13 .

Tes 440004 bes ts kek sae ee 5

1V :

STATUTES PAGE

26 U.3.6. 2 8 Cg BR eee ]

EP UWseSebn 185

IGS, Seetien JOlte)..se. 3

185, Section 301(b)...... 4

185, Section 30l(e)..... 26

SZ BU.3.«hs BOs 6645660468666 60 5608 4,8,27

2 > LoL Ge Pee eee rere ee 5

REGULATIONS

Bee gg Be ic Be fy PP er rr 15

DE PA Rhe & 6 & 6 6-604 66400608 oe 15

foie BY > Saar rere yo 15

DOC PeU ieee ks ht dsee hues 16

fap Py. | Speer eee ee ee 15

RSP FOO eee kis cee hee eeescisciseee 20

Collective Bargaining Agreement Between

Mather Air Force Base and Local Number

1692, American Federation of Government

Employees Articlel, sectionl....... 3

U.S. ED Digest Administrative

ac) oe Veeeeeerererererererererere se 17

NO.

IN THE SUPREME .COURT OF THE UNITED STATES

JUNE TERM, 1986 .

VELMA L. RIGGS,

PETITIONER

DEPARTMENT OF THE AIR FORCE, AND

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES-

MATHER AIR FORCE BASE, LOCAL 1692,

RESPONDENTS

VERNE ORR, SECRETARY OF THE UNITED STATES

\

:

PETITION FOR WRIT OF CERTIORARI |

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, Velma L. Riqgs respect-

fully pray that a writ of Certiorari issue to

review the memorandum and judgment. of the

United States Court of Appeals for the Ninth

Circuit, entered March 17, 1986.

MEMORANDUM BELOW

The memorandum of the court of appeals

tee the Ninth Circuit, appears in Appendix "4a"

attached hereto.

The District Court issued Order Grant-

ina Verne Orr's motion for summary jiudament,

District Court civil docket sheet number 52,

Order Denying Motion for Reconsideration, civil

docket sheet number 52a, Order Granting Motion

to Dismiss without leave to amend, civil docket

sheet number 12.

JURISDICTION

The memorandum of the court of appeals

was dated on March 17, 1986. The judqment' was

entered on March 17, 1986(appendix 12a). The

jurisdiction of the Supreme Court to review

this case on Petition for Writ of Certiorari

is invoked pursuant to 28 USC 2101l(c). This

petition has been timely filed pursuant to Rule

20.2 of this court within 90 days after entry

of judqment,.

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

INVOLVED

U. S. Const. Amend X1V, Section 1, provides:

Section 1. All persons born or natural-

ized in the United States, and subject

to the jurisdiction thereof, are citi-

zens of the United States and of the

State wherein they reside. No State ;

shall abridge the privileges or immu-

nities of citizens of the United

States; or shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny

to any person within its jurisdiction

the equal protection of the laws.

ee ee

Rule 56(e) of the Federal Rules of Civil Pro-

cedure provides:

(e). Supporting and opposing affida-

vits shall be made on personal know-

ledge, shall set forth such facts

as would be admissible in evidence

and shall show affirmatively that

the affiant is competent to testify

to the matters stated therein. Sworn

or certified ccpies of all papers or

parts thereof referred to in an af-

fidavit shall be attached thereto or

served therewith. '

ee en ea

Cate.

28 Federal Procedure, L ED. 62:604 provides:

It has been held that a waiver of the

certification requirement of Federal

Rules of Civil Procedure 56(e) cannot

be extended to the instance of an

initial Federal Rule of Civil Pro-

cedure 12(b)(6) motion converted to a

motion for summary judqment, because

of the possibility of inadequate no-

tice of all parties that their case

may not only turn, but be disposed

of on basis of such an autnenti-

cated attachment.

The Civil Service Reform Act of 1978, Section

7114(b)(i)(ii) provides:

(b) Any examination of an employee

in the unit by its representative of

agency in connection with an investi-

gation if-

(i) the employee reasonably believes

that the examination may result indis-

ciplinary action against the employee;

and

(ii) the employee request represent-

ation.

The Collective Bargaining Aareement Between

Mather Air Force Base and AFGE Local 1692 Ar-

ticle 1, section 1 provides:

Section 1. The Employer hereby recog-

nizes that the Union is the exclusive

representative of all employees in the

unit as defined in section 2 below,

and the Union recognizes the responsi-

bilities of representing the interests

of all such employees without dis-

crimination and without regard to

membership in the Union.

The Labor Management Relations Act of 1947, Se-

ction 301, 29 USCA § 185 provides in part:

Section 30l(a) Suits for violation

of contracts between an employer and

a labor organization---may be brought

in any district court of the United

States having jurisdiction of the par-

ties, without respect to the amount in

controversy or without regard to the

citizenship of the parties.

Section 301(b) Any labor organiz-

ation which represents employees in

an industry affecting commerce as

defined in this Act shall be bound by

the acts of its agents. Any such

labor organization may sue or be sued

as an entity and in behalf of the em-

ployees whome it represents in the

courts of the United States.

STATEMENT OF THE CASE

This is an appeal from the memorandum

and judgment by the United States Court of Ap-

peals from the Ninth Circuit, affirming summary

judgment for respondants and against petitioner.

Petitioner former attorney Byron C.

Thompson timely brought this action against

Verne Orr (herein respondent Air Force) and

American Federation of Government Employees-

Mather Air Force Base Local Number 1692(herein

respondent AFGE). This action was brought on

June 2, 1982 under Title V1l of the Civil Rights

Act of 1978, as amended, 42 200N0e et seq, and

Nt A te eS DORA. ee

A ade GV Pee aA ote

.

UD acer antisera os Nee it cate ll ken te ad

Wire i0aac's

the Civil Service Reform Act of 1978, 5 USe

7501 et seq, 5 USC 7101 et seq, and 5 USC 7116

et seq. This action was brought to redress cer-

tain unlawful employment practices, unlawful

personnel practices, unfair labor practices, and

to redress the deprivation, on account of race

and petitioner exercise of rights under’ the

Civil Service Reform Act of 1978, of certain

contractual and employment rights belonging to

petitioner. Jurisdiction in the Title Vl]

claims was conferred on the District Court by

42 USC 2000e-5(f)(1).

Default was entered by the clerk

against respondent AFGE on November 24, 1982.

Counsel Thompson failed tp prosecute the case

and agreed with respondent AFGE without peti-

tioner's consent to set aside default.

Respondent AFGE failed a motion to dis-

miss pursuant to 12(b)(6), Federal Rules’ of

Civil Procedure (herein FRCP) for a_e more defi-

nite statement pursuant to Rule 12(e). In sup-

port of their motion, respondent AFGE alleged

that “paragraph 11 of the Fourth Count of Plain

tiff's complaint are so vaque and ambiguous

that Defendant, AFGE Local] 1692, cannot reason-

ably be expected to frame an answer." The com-

plaint was clear enough to apprise the res-

pondents of the nature of the suit against

them so that they could answer.

The ccse came on for oral argument on

May 23, 1983 and was dismissed in favor of re-

spondent AFGE. The June 14, 1983 Order aeunkedl

their motion to dismiss without leave to amend.”

The District Court's refusal to permit amend-

ment of the pleadings was an abuse of discre-

tion.

The order of dismissal did not dis-

posed of all of the claims against all of the

parties. The court had errored in entering the

judgment pursuant to 54(b), FRCP.

Petitioner appealed to the court of

Appeals. Counsel Thompson then failed tp pros:

cute the appeal and withdrew from the case.

The District Court had been divested

of jurisdiction to correct the error by the

docketing of the appeal. The May 2, 1984

order stated in part:

It is hereby ordered that the appel-

lant file a motion to dismiss the ap-

peal as improvidently taken in the

court of appeals for the Ninth Cir-

cuit, F.R. App. Pro. 27(a).

The Court of Appeals issued an order

on May 23, 1984, in light of the parties; re-

ponses to the order of June 22, 1984, and in

light of the District Court order of May 2,

1984, the sated entered in the case on June

14, 1983, was vacated as improvidently entered.

The appeal was dismissed for lack of jurisdic-

tion.

The District Court entered its order

of September 18, 1984,-naming two remaining

parties in the action, namely petitioner and

respondent Air Force.

The respondent AFGE defaulted by not

answering the Status Report pursuant to Local

Rule 125. The report stated in part:

However, this defendant understands

that the Order Granting Motion to

Dismiss stands unaffected. There-

fore, this defendant antici ates no

further participation in this case.

Whether it is proper before the court

for a respondent to disrespect court procedures.

and the law by not participating in the case.

Counsel Elaine W. Wallace filed peti-

tioner's amended complaint. The first cause

of action in the amended complaint was brought

against respondent Air Force for relief to re-

ee ee ee

dress deprivation of rights secured to peti-

tioner by Title V1ll of the Civil Rights Act of

1964, as amended, 42 USC 2000e et seq. The

second cause of action was brought against re-

spondent AFGE for relief to redress the depri-

vation of rights secured to petitioner by 29

USCA 185. The respondents failed to adcress

‘the amended complaint.

The amended complaint was submitted

late on December 3, 1984, Counselor Wallace

eliminated some of the charges against the re-

spondents. To eliminate any charges against

the respondents is an abuse of discretion and

it aad Cdididid of petitioners Constitutional

and Civil Rights.

Richard K. Willard, acting assistant

attorney general submitted the respondent mo-

tion and supporting declarations for summary

judament. The respondent Air Force counter

motion and respondent AFGE claims relate to

petitioners claims. Their claims arise‘put- of

the same cause of action. The motion “ea not

timely filed. Petitioner opening brief stated

in part:

The motion did not include the name

of all the parties or any appropiate

indication of other parties pursu-

ant to Rule 10, FRCP.

Oral argument came on January 14, 1985

and was dismissed for the second time in favor’

of the respondents.

Petitioner requested counselor to do

objections. Counselor Wallace informed us that

she was denied the right to do objections be-

cause of petitioners race. Petitioner filed

objections to the dismissal of the respondents

and documents used in support of summary judg- |

ment(number 53 on the docket sheet). To deny

petitioner the right to do objections to her

case violates her Constitutional and Civil

rights. The objections are waived if not

raised in the District Court and may not be

brought up on appeal.

When petitioner filed objections,

counsel Wallace filed request to the court

that Ms riggs letter not be considered motion

for reconsideration.

Petitioner was denied equal access to

the documents in court files. It appeared that

the District Court was withholding documents

from the case file to keep petitioner from ob-

jecting to any form of the action in a timely |

manner (petitioner reply brief, page 23-24).

Petitioner was deprived of discovery.

She was also denied request for al} copies of

documents as it pertain to her in the repon-

10

dents files. The documents were further de-

nied under the Freedom of Information Act.

Petitioner timely filed and properly

executed her opening brief on August 9, 1986.

The same requirements are not being used with

the respondents. Respondent Air Force opening

brief was filed late on september 23, 1985 and

was not properly executed.

Respondent AFGE was excluded from the

January 22, 1986 appeals court order.

In determining whether there is sub-

stantial evidence, the federal courts at least,

ee consider the whole record without pre-

judice and not just the case presented by the

respondents.

REASONS FOR GRANTING THE PETITION

Petitioner, Velma L. Riggs, a black

woman, was a GS-3 part-time civil service

worker. She was career-conditional and cov-

ered under the civil service retirement sys-

tem. More specifically, she had retention

Ul

rights. Petitioner was also an Official Shop

Steward for respondent AFGE.

This case involves the issue whether

the original complaint and the amended com-

plaint were deprived of equal benefits of all

laws and proceedings because of race.

Petitioner object to the memorandum

because it lack specificity and clarity. The

memorandum did not specifically address all the

issues in petitioners complaint.

The memorandum based its conclusion on

some court records. The court records contain-

ed; documents not in compliance with FRCP 56,

fraud, and continuous gross errors in the re-

cord made with willful wanton acts of knowledge

against only the petitioner. For example,

where is respondent AFGE memorandum pursuant tc

Order Denying Motion for Reconsideration, docket

number "52a," where is the judgment that recog:

nize respondent AFGE in the “above caption case

The original complaint states quite

12

explicity all of the claims raised by peti-

tioner in her March 16, 1981 and April 25, 1981

complaints (exhibit C and N in resopndent Air

Force opening brief addendum).

Respondent Air Force arbitrarily and

discriminatorly rejected the unlawful person-

nel practices and the unfair labor practices

from the March 16, and April 25, 1981 com-

plaints and thereafter alleged failure to ex-

haust administratives.

At the time of the rejection of issues

respondent AFGE was im violation of 5 USC 7116

(b)(1) and other sections of the Civil Service

Reform Act interfered with petitioner right to

act as an official Shop Steward in the incident

regardinq Manager Robert Bowls) grabbing

Sylvester Kieth, and calling him nigger names

in front of others. Bowls was not removed from

the job. Thereafter, petitioner was held im-

prisonment in a lock room. against her will,

and respondent AFGE refused to process” the

13

grievance according to its Collective Barqain-

ing eweonent. Petitioner suffered irreparable

harm, damage, and injury. Those issues have

not been address.

The rejection of issues were’ timely

appealed and the court file contained a April

23, 1981 letter from Robert Baker in Texas who

stated in part:

"Initial Interview-Counseling Work-

sheet" dated 19 Feb 1981, a = spe-

cific remedy sought was "Removal

of reprimand and removal of no-

tation on SF Form 971."

A conflict of interest exist petweent

the fraudulent April 23, 1981 appeal right from

Jose Arredondo in Texas and the April 23, 1981

letter from Robert Baker in Texas. The doc-

uments are also not in compliance with FRCP 56,

Petitioner have no authority to re-

view the counselor's notes to insure all of

her issues were addressed. The procedural as-

pects of grievance handling were improper an

discriminatory because white employees were no

deprived of redress of grievance as compared to

petitioner who sought redress but was subjected

to reprisals and fraudulent appeal rights. The

fraudulent appeal right affects all minority

government employees similarly situated as peti

tioner on Mather Air Force Base and other agqov-

ernment agencys.

The appeal rights were forged and al-

tered documents based on heresay, and they

failed to set forth the findings, analysis, and

decisions that specifically addressed which

issues were accepted. They did not specific-

ally provide the rihgt to appeal the rejection

of issues as quaranteed by 29 CFR 1613.215, 29

CFR 1613,.221. 29 CFR 1613.233. and 29 CFR 1613.

281 as stated in petitioners reply brief, paqes

5 through 8, The document was not in compli-

ance with FRCP (appendix 3a). The respondents

have not address the forged and altered docu-

ment issue.

The agency decision was not final be-

cause they failed to make a determination on

all of the issues in the complaint prusuant to

29 CFR 1613.271.

The ECOC fraudulent right-to- sue let-

ter failed to acknowledge petitioners evidence,

March 16, and April 25, 1981 letters and ad-

dressed all the issues in her complaint. It

appears that a conspiracy existed between re-

spondents and the EEOC. The document was not

in compliance with FRCP S56(exhibit J in respon-

dent Air Force brief addendum).

One of the serious problems is that the

District Court and the Appeals Court have fail-

ed to protect petitioners Constitutional and

Civil Rights.

Another serious problem is that the

respondents and the courts evades the forged

documents and the law requiring conjunctive use

of the requlatiecns. The documents were purpose

fully used to misstate the law as to the ex-

haustion of administrative remedies. To forge

16

and alter appeal rights is a crime unless it is

authorize by law. US ED Digest, Administrative

Law 87. What law authorized the forge and al-

tering of the April 23, 1981 appeal rigqht by

Jose Arredondo.

The agency appeal rights was consider-

ed to be an integral part of the regulatory

statute that governs substantive due process to

all employees regardless of race, color, re-

ligion, sex, or national orgin. The agency was

required to, but failed to provide rejection of

issue letter. If petitioner is deprived of her

rights, how would she know how to properly = ap-

peal them. The respondents’ have failed to ad-

dress the rejection of issue letter.

In reference to the rejected claim,

petitioner timely filed a December 15, 1980

racial discrimination complaint and respondent

AFGE letter stated in part:

The letter of reprimand dated Decem-

ber 3, 1980, and presented to Mrs.

Riggs on December 10, 1980, is in

direct violation of Civil Service Act

17

of 1978, as covered in Title Vll, Se-

ction 7114, Paragraph 2, Subparagraph

a & B, which states an exclusive re-

presentative of an appropriate unit

in an agency shall be given the opp-

ortunity to be presented at:

The respondent AFGEL did not make a de-

termination on any issues in the letter and they

refused to process the complaint through and in

cluding arbitration (appemdix la). They have

refused to address the reprimand issue and is

not properly participating in the case.

Prior to the reprimand petitioner

filed a complaint against a white lieutenant

who had verbally abusive her in the presence of

both customers and other personnel because~ she

asked him for his ID since he was using a check

to pay for his groceries. Standard procedure

for commissary patrons was followed. There was

no apologies from the lieutenant.

Further, petitioner had worked in the

on-call capacity as stated by supervisor and

had confronted her Union. On-call employee is

eligible for health and life insurance benefits

18

and also earned leave. Petitioner was covered

under the Civil Service Retirement System but

was told that she was not eligible for health

and life insurance coverage in the on-call

capacity.

The Chief of the EEO Colonel Bruce H.

Mosely responded to petitioners complaint and

his letter stated in part;

A full review was made of your griev-

ance of 15 Dec 1980 regarding the is- |

suance of your letter of Reprimand,

3 Dec 80.

Respondent Air Force did not make a

determination on the issues in the racial dis-

crimination complaint to correct the wrong nor

did they afford petitioner any protectional

rights (appendix 2a).

Respondent Air Force used petitioners

race as the prime factor in personnel decisions

determinative of inuthes she would have more

favorable rmployment status. Petitioner re-

ceived the retailatory reprimand and thereafter

a reduction in work hours.

19

Petitioner received a severe reprimand

with a two year penalty in her personnel re-

cord. There is no reprimand listed with a two

year penalty in the AF-750 regulation, Title

"Guide to Disciplinary Action." The highest

penalty listed is fourteen days. Because of

the respondents inproper motive petitioner has

suffered irreparable harm, damage and injury.

Further, petitioner was the only employee in

the history of Mather Air Force Base who re-

ceived such an improper, unjust and unwarrent

reprimand.

Petitioner working hours were reduced

in response to her exercise of statutory and

contractual rights to union represantation

through threatened and actual adverse personne]!

action in retailation for petitioners attempt

to exercise her right to union representation.

Respondent AFGE have refused to address those

issues and properly participate in this case.

In the January 14, 1985 transcript,

20

Jeffrey S. Paulsen stated to the court in part:

And we have included in our motion

a declaration from the plaintiff's

supervisor which states that she

was required to reduce the hours

across-the-board for budgetory

reasons.

Counselor Patricia Thomas declaration

was filed unexecuted, late and not in compli-

ance with FRCP 56 (docket number 47). The report

stated in part:

Scheduling problems arose when cash-

iers were scheduled ffor - five hours

plus a lunch break. For example,

cashier "A" comes in at C800 and

works until 1300 with one rest

break; cashier "B" comes in at

1300 and works’ until 1800.

The "new" schedules for cashiers work-

ing hours were not posted but was by word of

mouth and without witness. Petitioner worked

only 4.0 hours. Based on respondent Air Force

exhibit A-8, no two five hour shifts existed.

However, the cashiers did work irregular hours.

They worked 6.4 hours, 7.0 hours, or 4.0 hours.

If there were two five hour shifts, how do you

squeeze 7.0 hours, or 7.7 hours into a_ five

21

hour shift.

If the across-the-board reduction in

cashier hours were only for pay periods ending

on January 24, through February 21, 1981, and

the cashiers hours across-the-board "increase,"

the budgetory reasons given by Paulson are in

direct conflict with the March 7, 1981 column

of respondent Air Force exhibit. The super-

visor continued to hire more white cashiers.

After respondent Air Force decision to

reprimand, Lois D. Palermo declaration now

state in part:

In approximately December 1980, I

was directed by the Mather Commi-

ssary store manager to reduce the

total number of hours worked by

the checkers. To accomplish this

I decided to schedule an inter-

mittent or part-time checker in a

five hour shift, without a lunch

break, from 8 a.m. to 1 p.m., and

another from 1 p.m. to 6 p.m.,--

Lois 0D. Palermo declaration was filed

unexecuted, late and not in compliance with

FRCP 56. Palermo is discussing one or’ two

cashiers working hours. However, there is only

22

one cashier who appeared to have worked -5.0

hours. Further, all of the black cashiers

"Sworn affidavits" are in direct conflict with

Palermo declaration regarding the two five hour

shifts. The respondents have not address the

two five hour shift issue. The Exhibit A-8 is

clear on its face and not consistant with two

five hour shift (petitioners excerpt record,

exhibit 18).

During employment with respondent Air

Force, petitioner could not fully compete with

other employees for advancement but partically

because of illegal discrimination, her earned

Civil Service rating was reduced ten points

(see personnel folder). The reduce rating is

clear on its face for the courts and the public

to review.

The Appeals Court March 17, 1986 memo-

randum stated in part:

On April 28, 1981, Riggs was notified

that she was being removed from her

job. Causes given for her removal in-

cluded; being discourteous’ to a cus-

23

tomer, disobeying the orders of her

supervisor to discuss her proposed

Suspension, and being absent with-

out official leave.

The April 28, 1981 document by Lois D.

Palermo is not in compliance with FRCP 56 but

is in conflict with petitioners April 25, 1981]

letter giving notice of the firing on the spot

on April 22, 1981 and letter of April 23, 1981.

The April 22, 1981 wrongful removal

date is vertified in respondent AFGE February 15

1983 motion to dismiss and the 1983 transcript

and paragraph "e" of the proposed removal.

Respondent AFGE arbitrarily and dis-

criminatorly denied petitioner representation

when disciplinary action was being taken

against her by respondent Air Force. Respon-

dent Air Force also denied representation and

witness. The April 28, 1981 document further

show that the supervisor continued to order and

harass petitioner to to behind close doors

alone while she was taking disciplinary action

against her. Using petitioners request for

24

representation during discussions regarding

proposed suspension, and fired petitioner on

the spot from its employment on apeil aa, i961

in front of customers and other commissary em-

ployees. The April 28, document did not set

forth proof of its allegation in the’ record.

The document is clear on its face for the court

and the public to review. The respondents have

not’address the wrongful removal issue.

At the time of the wrongful removal

petitioner had charges of job discrimination

on the bases of race against respondent Air

Force pending in the Equal Employment Oppor-

tunity Commission and thereafter named her

union, EEQ, and others in the April 25, 1981

letter.

After the April 25, 1981 wrongful re-

moval letter was forward to respondent Air

Force, what action did they take on it.

Respondent Air Force failed to con-

front petitioner's representative Preston

Thompson Jr oe wee in the Commissary meat

department (see exnibit 22 and 31 in pe’itioner

excerpt of record). Respondent Air Force has

not address petitioner representative issue.

Respondent Air Force defaulted and ad-

mitted their total failure to process the wrong-

ful removal action (see declaration of Patricia

Thomas, docket number 47).

Respondent AFGE Order Denying Motion

for Reconsideration stated in part:

§301 of the Labor Management Re-

lations Act, 29 U.S.C. §185, is

not applicable to the Plaintiff

herein in that the Labor Manage-

ment Relations Act only applies

to the employment in the private

sector and does not apply to fed-

eral employment.

The §301 of the Labor Management Rela-

tions Act, 29 U.S.C. §185 also provided in

part:

Section 301(e) For the purpose

of this section, in determining

whether any person is acting as

an “agent" of another person so

as to make such other person re-

sponsible for his acts, the ques-

26

tion of whether the specific acts

performed were actually author-

ized or subsequently ratified

shall not be_ controlling.

However, under section 2000e et seq.,

of Title 42, a petitioner alleging employ-

ment discrimination is not required to allege

a violation of this section in order to main-

tain an action against aunion. Massey v

Illinois Range Co., DC 11]. 1973, 358 F. Supp.

1271.

The case Fine v Barry Enright Produc-

tienes, 731 F.20 1396,..1396. (9th Cie.), - cert.

denied, 105 S. 248 (1984) do not apply topeti-

tioner. Even though she was deprived of dis-

covery and denied request for documents as it

pertain to petitioner, she provided the courts

with pleadings, points, authorities, declara-

tions, together with exhibits, to show there

exist genuine issues of material facts.

on behalf of the respondents, there

are pleadings, supporting declarations, ex-

hibits, orders, and judgménts.

27

It is apparent that all declarations,

exhibits, orders, and judgment of the parties

set up assertions that are diametrically op-

posed, and taken together with the pleaded

allegations contained in the complaint, create

genuine issues as to material facts.

Furthermore, the.respondents in the

aboved caption case alleged that all the issues

in petitioner case have been addressed.

Petitioner has suffered irreparable

harm, damage, and injury. She is now at Col-

lateral Estoppel for the purpose of this ac-

tion to request respondent Air Force and re-

spondent AFGE to submit proof and respond to

the following:

1. Whether each document exhibit

in the court files are genuine.

2. Whether each of the state-

ments in the documents are true.

3, Proof that each document ex-

hibited in the court files are

genuine, sworn, certified, and

was timely mail to petitioner.

4. Proof of each and every al-

leqation made against peti-

tioner for summary judgment.

- CONCLUSION

The failure to exhaust was instituted

out of racial bias. Summary judgment deprived

petitioner of due process of law and equal pro-

tection of the laws in that the case was de-

cided based on fraudulent documents that show-

ed disrespect for the law and argument to

change the law to suit ones purpose without the

opportunity to confront and cross-examine wit-

nesses and to have a full trial on all_ the

issues.

The record show that petitioner is an

abused and exploited victim of racism and that

justice never existed for her in the courts be-

cause she is black. Justice delayed was jus-

tice denied to her for five years.

The petition for a Writ of Certiorari

should be granted.

Respectfully submitted,

Velma L. Riggs

6805 Larchmont Drive

North Highlands, CA 95660

PROPRIA PERSONS

June, 1986

29

SS oe . ” ”" oe a ie

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

MATHER A.F.B. LOCAL No. 1692

MATHER AFB, CALIFORNIA 95655

Phone (916) 363-6441

December 15, 1980

Colonel Bruce H. Mosley

323 ABG Commander

Mather A.F.B., CA 95655

Subject: Grievance, Mrs. Velma Riggs (Letter of Reprimand)

Dear Colonel Mosley:

The letter of Reprimand dated December 3, 1980, and

presented to Mrs. Velma Riggs on December 10, 1980, is in direct

violation of Civil Service Reform Act of 1978, as covered in Title

VII, Section 7114, Paragraph 2, Subparagraph a&b, which states

an exclusive representative of an appropriate unit in an agency

shall be given the opportunity to be represented at:

(A) “any formal discussion between one or more

representatives, of the agency and one or more employees in the

unit or their representatives, concerning any grievance or any

personnel policy or practices or other general condition of

employment; or

(B) “Any examination of an employee in the unit by a

representative of the agency in connection with an investigation

if;

(i) “the employee reasonably believes that the examination may

result in disciplinary action against the employee; and

(ii) “the employee requests representation.

Mrs. Velma Riggs request that a union representative be

present was denied by management, therefore, we ask this letter

or Reprimand be removed from her official personnel folder at

Civilian Personnel, also any remarks on her 971 in regards to this

letter be removed and not used against her in further disciplinary

actions.

Your upholding the employees rights under the Civil Service

Reform Act of 1978 is requested.

William D. Fish Carl Adair

lst Vice President Chief Steward

A.F.G.E. Local 1692 A.F.G.E. Local 1692

la

DEPARTMENT OF THE AIR FORCE

HEADQUARTERS 323D FLYING TRAINING WING (ATC)

MATHER AIR FORCE BASE, CA 95655

323 ABG/CC 30 December 1980

Grievance of Mrs. Velma Riggs

Mrs. Velma Riggs

OL OG AFCOMS

1. A full review as made of your grievance of 15 Dec 80 regarding

the issuance of your Letter of Reprimand, 3 Dec 80.

2. I find correct procedures were followed and the issuance of the

Letter of Reprimand was not in violation of Title VII, Section.

7114, paragraph (a) (2) (A) and (B). The issuance of the letter did

not include any formal discussion nor examination; consequently,

Union representation was not required and the request was

properly denied by Management.

3. On the basis of these findings, I cannot grant the remedy

requested in your grievance. Therefore, the Letter of Reprimand

and corresponding AF Form 971 remarks will remain on record

until the date of expiration.

BRUCE H. MOSLEY, Colonel, USAF

Base Commander

Za

wee a eR REET 8 RE,

DEPARTMENT OF THE AIR FORCE

HEADQUARTERS TRAINING COMMAND

RANDOLPH AIR FORCE BASE, TX 78148

Notice of Final Air Force Decision on Your Complaint of

Discrimination

Ms Velma L Riggs

6805 Larchmont Drive

North Highlands CA 95660

1. You have been informed by 10 April 1981 letter from the Vice

Commander of Mather Air Force Base of the allegation which

has been accepted. All other allegations are hereby rejected

because they lack specifically and were not discussed with an

EEO counselor in a timely manner.

2. If you are dissatisfied with this final decision, you have the

following appeal rights:

a. You may file a notice of appeal to the Equal Employment

Opportunity Commission Office of Review and Appeals within

20 calendar days of receipt of the decision and submit a brief or

statement to EEOC in support of your appeal within 30 calendar

days after filing your notice of intent. The appeal and any

representations in its support must be submitted in Guplicate,

and a copy furnished to AFCAPA/ARB, Bolling AFB,

Washington, D.C. 20332.

b. Your appeal should be addressed to the Director, Office of

Review and Appeals, Equal Employment Opportunity

Commission, 2401 E Street, N.W., Washington, D.C. 20506.

c. Instead of an appeal to the Commission, you may file a

civil action in a U.S. district court within 30 calendar days of

receipt of the decision. ;

d. If you elect to appeal to the Commission’s Office of

Review and Appeals, you m3y file a civil action in a U.S. district

court within 30 calendar days of receipt of the Commission’s final

decision.

e. A civil action may also be filed at any time after 180 days

of the date of initial appeal to the Commission, if a final decision

has not been rendered.

FOR THE COMMANDER

JOSE ARREDONDO

Acting Chief, Equal Employment

Opportunity & Affirmative Action Division

Directorate of Civilian Personnel Exhibit F

3a

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VELMA L. RIGGS,

Plaintiff-Appellant, No. 85-1704

v. PC CIV 5-82-445

RAR

VERNE ORR, SECRETARY OF THE

UNITED STATES DEPARTMENT OF THE MEMORANDUM*

AIR FORCE, and AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES — MATHER

AIR FORCE BASE, LOCAL 1692,

Defendants-A ppelliees.

Appeal from the United States District Court

for the Eastern District of California

Raul A. Ramirez, District Judge, Presiding

Argued and Submitted, December 12, 1985

Before: CHOY, Senior Circuit Judge, SKOPIL and

SCHROEDER, Circuit Judges

This appeal concerns the district court’s grant of summary

judgment and dismissal of claims against a Title VII plaintiff for

various claims against the plaintiff's employer, the United States

Air Force, and union. We affirm.

* This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by

9th Cir. R. 21.

4a

I

BACKGROUND

The plaintiff, Velma L. Riggs, a black woman, was employed by

the United States Air Force (“Air Force”) as a part-time cashier in

the Mather Air Force Base commissary in Sacramento, Califor-

nia. Riggs contends that prior to January 30, 1981, she contacted

an Equal Employment Opportunity (“E.E.0.") counselor and had

gone to her union, the American Federation of Government Em-

ployees — Mather Air Force Base, Local 1692 (“Union”), with

grievances. She asserts that because her E.E.O. counselor, Patri-

cia Thomas, informed her that she was required to choose be-

tween the E.E.O. procedure or the grievance procedure, she

withdrew her grievance and was assigned another E.E.O. coun-

selor. Riggs met with the counselor on February 19, 1981. She

filed a formal complaint on March 16, 1981, alleging that her em-

ployer had racially discriminated against her by passing her over

for promotion, reducing her working hours, giving her a letter of

reprimand in retaliation for filing a grievance against her supervi-

sor, maintaining a hostile work environment, constantly following

and observing her, preventing her from performing her duties as

union shop steward, and improperly handling her grievances.

On April 10, 1981, the Air Force sent Riggs a letter acknowl-

edging receipt of her complaint and informing her of her rights if

the complaint was accepted or rejected. Subsequently, Riggs re-

ceived two letters indicating that only her working hours com-

plaint was accepted. The April 23, 1981 letter discussed the

reasons her other claims were rejected, and explained her right to

appeal. Riggs did not appeal the rejected claims.

Riggs’ hour reduction complaint was assigned an investigator,

who found no evidence that her working hours were reduced be-

cause of race. Riggs was informed that she could challenge this

proposed decision before it was adopted as the fina] decision. She

did not enter a challenge. However, Riggs did appeal this final

action to the E.E.O.C. Office of Review and Appeals. The decision

was affirmed on April 30, 1982.

In an April 25, 1981 letter to the Air Force Director of the

E.E.O.C. in Washington, D.C., Riggs alleged that she had been

imprisoned against her will by her supervisor on April 10, 1981.

She also commented that the Union refused to represent her in

meetings with her supervisor. Moreover, she complained that she

had been relieved of her duty without personnel action papers or

counseling, and that she could not get a fair and impartial resolu-

tion of the matter through the Union.

On April 28, 1981, Riggs was notified that she was being re-

moved from her job. Cause given for her removal included: misin-

5a

forming a customer about the store’s coupon policy, being

discourteous to a customer, disobeying the orders of her superior

to discuss her proposed suspension, and being absent without of-

ficial leave. Riggs did not challenge her removal through the Air

Force E.E.O. a

However, Riggs’ April 25, 1981 letter was forwarded to Mather

Air Force Base for a determination of whether it constituted an

attempted to file a complaint of discrimination. Riggs did not

contact an E.E.O. counselor and officials at Mather were unable

to reach plaintiff regarding the letter.

Riggs brought suit against Verne Orr, in his capacity as Secre-

tary of the Air Force, alleging that she had been racially discrimi-

nated against by failing to promote her, reducing her working

hours, retaliating against her for filing grievances, maintaining a

hostile work environment, and ultimately terminating her. She

also charged her Union with assisting the Air Force in discrimi-

nating against her through intimidating her. In an amended com-

plaint, she withdrew several allegations previously made against

the Air Force, and additionally charged the Union with violating

its alleged duty of fair representation in failing to proceed to arbi-

tration with her grievances.

The district court dismissed the complaint against the Union

as to racial discrimination claims for failure to exhaust adminis-

trative remedies, and as to labor claims for lack of subject matter

jurisdiction. However, due to a clerical error, judgment was issued

dismissing the complaint against all defendants. Riggs appealed

to this court. The district court, recognizing that the appeal had

divested it of jurisdiction to correct the error, entered an order

directing Riggs to file a motion to dismiss the appeal as improvi-

dently taken. This court, on the basis of the district court's order,

vacated Riggs’ appeal. The district court than vacated the errone-

ous order, implicitly reaffirming the original order. It also denied.

Riggs’ motion to reconsider the dismissal.

A motion by the Air Force for summary judgment was granted.

The district court held that Riggs had not stated a prima facie

case that the reduction in her working hours was due to racial

discrimination. All other claims were dismissed for failure to ex-

haust mandatory administrative measures. Riggs timely appeals.

6a

II

CLAIMS AGAINST THE AIR FORCE

A. Standerd of Review

The district court granted the Air Force’s motion for summary

judgment against Riggs. We affirm the grant of summary judg-

ment only if, after viewing the evidence in the light most favor-

able to the nonmoving party, there exists no genuine issue of

material fact, and the moving party is entitled to judgment as a

matter of law. Fine v. Barry & Enright Productions, 731 F. 2d

1394, 1396 (9th Cir.), cert. denied, 105 S, Ct. 248 (1984). ,

B. Reduction in Hours Claim

The Air Force concedes that Riggs exhausted her administra-

tive remedies and timely appeals the final action against her re-

jecting this claim. However, it argues that Riggs has not

established a prima facie case of discrimination, specifically, that

she has presented no evidence pointing to race as the “likely rea-

son” for her reduction in hours. See Douglas v. Anderson, 656 F.

2d 528, 532 (9th Cir. 1981).

A prima facie case “raises an inference of discrimination only

because we presume these acts, if otherwise unexplained, are

more likely than not based on the consideration of impermissible

factors.” Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 254 (1981) (quoting Furnco Construction Corp. v. Wa-

ters, 438 U.S. 567, 577 (1978)). While acknowledging that the test

for a prma facie case will depend on the facts of a given case, the

Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792

(1973), held that a plaintiff meets the test by showing:

(i) that he belongs to a racial minority; (ii) that he ap-

plied and was qualified for a job for which the employer

was seeking applicants; (iii) that, despite his qualifica-

tions, he was rejected; and (iv) that, after his rejection,

the position remained open and the employer continued

to seek applicants from persons of complainant’s quali-

fications. a

411 US. at 802.

While Riggs can arguably establish the first three parts of the

test, i.e. she is black, she sought more hours, and she is qualified,

she has not produced any evidence from which an inference could

be made that white workers at the commissary were favored in

the supervisor’s assignment of work hours. We agree with the

7'a

finding of the district court that Riggs has failed to offer any

evidence indicating that this reduction was due to racial discrimi-

nation. Indeed, the record of work hour assignments of the com-

missary employees during the period in question shows that black

employees experienced no greater reduction in hours than did

white employees. Morever, Riggs’ supervisor stated in a declara-

. tion that Riggs could have been scheduled for additional hours,

but that she refused to work shifts longer than four hours.

Riggs contends that the explanation given by her supervisor

that there were two five-hour shifts and that Riggs refused to

work longer than four hours without a lunch break is false. How-

ever, even if Riggs’ contention is correct, the crucial fact that

black workers experienced no greater reduction in hours than did

white employees remains unaddressed. The mere fact that Riggs’

hours were reduced, without facts indicating that the hours re-

mained open or that they were filled with equally or lesser quali-

fied white employees, is not sufficient to state a prima facie case

of discrimination.

B. Other Claims Stated in the E.E.O. Complaint

Other than the reduction in hours complaint, Riggs alleged in

her formal E.E.O. complaint filed on March 15, 1981 that the Air

Force discriminated against her by 1) failing to promote her, 2)

unjustly reprimanding her, 3) recording character attacks on her

employment file, and 4) constantly observing and following her.

The Air Force rejected these claims in a letter dated April 10,

1981, and reiterated this rejection in a letter dated April 23, 1981.

Grounds for rejection included the lack of specificty of her claims

and her failure to discuss the allegations with an E.E.O. counselor

in a timely manner. Riggs admits that she received these letters.

In the April 23 letter, the Air Force explained to Riggs that she

had 20 days to appeal the rejection before the E.E.O.C. Office of

Review and Appeals or 30 days to bring action in federal district

court. Riggs was informed of these rights in another letter dated

April 10, 1981. Riggs did not appeal the rejection of the claims at

issue before the E.E.0.C. She did not bring suit in the district

court within the 30-day time pericd. The district court dismissed

Riggs’ claims, to the extent that they were alleged in the amended

complaint, because Riggs “failed to exhaust the mandatory ad-

ministrative remedies with regard to her rejected claims. . . .”

We affirm the dismissal by the district court of these claims,

but not for failure to exhaust remedies; rather, we find that these

claims were not alleged in the first amended complaint. Riggs’

original complaint states quite explicitly all of the claims raised

by Riggs in her initial E.E.O. complaint. However, the original

complaint was amended by Riggs, deleting many of the claims

Ba

ao ae Re ere

——

——

raised initially. Indeed, after comparing the original complaint

with the first amended complaint, we concluded that among the

allegations of discrimination in the original E.E.O. complaint,

only the reduction in hours claims has been preserved in this

action.' Because the rest of Riggs’ claims were not alleged in the

first amended complaint, those issues are not properly before this

court.? See Knutson uv. Daily Review, Inc., 548 F. 2d 795, 804 n.8

(9th Cir. 1976), cert. denied, 433 U.S. 910 (1977); Katsev uv. Col-

eman, 530 F.2d 176, 179 (8th Cir. 1976).

C. Claim of Discriminatory Removal

Riggs sent a letter to the E.E.O. Director for the Air Force in

Washington, asserting that she had been discriminatorily re

moved from her job. The letter was forwarded to Mather to deter-

mine whether Riggs was issuing a complaint. Riggs did not

contact an E.E.O. counselor and officials at Mather were unable

to reach her regarding the letter. We agree with the district court

that Riggs is precluded from asserting this claim because she did

not see an E.E.O. counselor regarding this claim, and thus failed

to exhaust administrative remedies available to her. See Boyd v.

United States Postal Service, 752 F.2d 410, 414-15 (9th Cir. 1985).

Moreover, because of her prior knuwledge of the grievance proc-

ess, she cannot claim lack of notice of her obligation to see a coun-

selor as ground for dismissal without prejudice to make an

appointment to see a counselor. See Ross u. United States Postal

Service, 696 F.2d 720, 722 (9th Cir. 1983).

1 In addition to the reduction in hours claim, Riggs alleges dis-

criminatory termination in her first amended complaint. Other

allegations appear to be factual allegations in support of her

claim. To the extent they represent new discrimination claims,

they are barred because they were not included in Riggs initial

E.E.O. complaint. See Scott v. Perry, 569 F.2d 1064, 1065-66 (9th

Cir. 1978).

? Moreover, we note that even if the first amended complaint could

be construed to include some of Riggs’ original, rejected E.E.O.

claims, those claims would be barred because Riggs did not ap-

peal the rejection, and thus failed to exhaust her administrative

a. See Gaballah v. Johnson, 629 F.2d 1191, 1199 (7th Cir.

1980).

9a

Iil

CLAIMS AGAINST THE UNION

A. Standard of Review

The district court granted the Union’s motion to dismiss and

denied Riggs’ motion for reconsideration. Dismissal is upheld

only when it appears certain that the plaintiff can prove no set of

facts in support of her claim that would entitle her to relief. Lit-

chfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984), cert. de-

nied, 105 S. Ct. 1753 (1985).

B. Claim of Discrimination

We affirm the district court’s dismissal of Riggs’ claims against

the Union for failure to exhaust administrative remedies. To the

extent that Riggs’ claims are based on Title VII, she did not in-

clude the Union in her E.E.O. complaint against the Air Force.

To the extent that Riggs’ claims are based on the duty of fair

representation imposed on the Union by Section 301 of the Na-

tional Labor Relations Act, 29 U.S.C. § 185 (1976), they were prop-

erly dismissed in light of the fact that Section 301 is inapplicable

to Riggs, a federal employee.’

* Section 301 applies to labor organizations that represents cer-

tain “employees.” Under the Act “employee” does not include

“any individual ... employed by an employer ... who is not an

employer as herein defined.” 29 U.S.C. § 152(3) (1976). The United

States is not an employer under the Act. 29 U.S.C. § 152(2) (1976).

Moreover, a claim that a federal union has discriminated

against an employee under Section 205 of the Civil Service Re-

form Act may be brought only after exhaustion of administrative

remedies, i.e. 30 dys after receipt of notice of judicially reviewable

action under section 7702. 5 U.S.C. § 7703(b) (2) (Supp. III 1979).

Riggs has filed no claim except her suit in district court.

10a

PES

IV

CONCLUSION

We AFFIRM the district court dismissal of claims against the

Union and grant of summary judgment in favor of the Air Force.‘

‘ Riggs’ additionally filed an inquiry concerning the propriety of

the Air Force brief filed pursuant to this court's order for supple-

mental briefs regarding the Air Force’s exhaustion defense. We

find that the Air Force brief was properly filed and prepared, and

that the requirements of Fed. R. App. P. 28 and 9th Cir. R. 13{b)

for opening briefs are not applicable to the supplemental! briefs at

issue.

lla

United States Court of Appeals

FOR THE NINTH CIRCUIT

VELMA L. RIGGS, No..85-1704 _

CV 82-0445 RAR

Plaintiff-Appellant,

vs.

VERNE ORP, Secretary of the United States

Department of the Air Force, and AMERICAN

FEDERATION OF GOVERNMENT

EMPLOYEES — MATHER

AIR FORCE BASE, LOCAL 1692,

Defendants-Appellees.

APPEAL from the United States District Court for the

Eastern District of California (Sacramento) __

THIS CAUSE came on to be heard on the Transcript of the

Record from the United States District Court for the

Eastern District of California (Sacramento) _

and was duly submitted.

ON CONSIDERATION WHEREOF It is now here ordered

and adjudged by this Court, that the

judgment of the said District Court in this Cause be, and hereby

is affirmed.

COSTS TAXED

Filed and entered ..March 17, 1986

12a

ennai am 8 yen ae 7 é wi SEI OE ee