Opposition Brief — University of Pittsburgh v. Jackson

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foe

FILED

DEC 14987

JOSEPH F, SPANIOL, UR.

CLERK

No. 87-787

In the

Supreme Court of the United States

October Term, 1987

UNIVERSITY OF PITTSBURGH

Petitioner,

Vi.

MATTHEW E. JACKSON, JR..

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

Matthew E. Jackson, Jr., Esquire

1017 Fifth Avenue

Pittsburgh, PA 15219

(412) 391-1700

Pro se

QUESTION PRESENTED

Whether a plaintiff, in an employment discrimination

action, at the summary judgment stage, must prove only by

direct evidence that there are genuine issues of material that

the employer’s profferred reasons for the adverse employ-

ment decision are a pretext to discrimination?

LIST OF PARTIES

Respondent disagrees with Petitioner’s attempt to

quietly remove David C. Sullivan and Wesley W. Posvar

as parties to this action.

1. UNIVERSITY OF PITTSBURGH

2. DAVID C. SULLIVAN

3. WESLEY W. POSVAR

TABLE OF CONTENTS

Page

ot i

ET ll

py | iV

Deepens Soe Eee CAE ........ ese. l

SUMMARY OF ARGUMENT.................. 13

REASONS FOR DENYING THE WRIT.......... 14

I. The Decision of the United States Court of

Appeals is Consistent With The Rulings

of The United States Supreme Court in

McDonnell Douglas v. Green, 411 U.S.

792 (1973) and Its Progeny .............. 14

II. Petitioners Have Grossly Distorted The

Record Evidence And The Decision Of

The United States Court Of Appeals in

Chipollini v. Spencer Gifts, Inc.,

Bie © .ae. ooo (ora Cir. 1987)........... 17

III. Respondent Has Presented Evidence

Which Is More Than Sufficient To Raise

Genuine Issues Of Material Fact So As

To Preclude Summary Judgment......... 18

IV. The Decision Of The United States Court

Of Appeals For The Third Circuit Does

Not Conflict With The Decisions Of

Cumer Courts Of Appeals ............... 19

gall a a 22

TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc.,

106 S.Ct. 2505, 91 L.Ed.

is I Fre TAS ae es te ds howe |

Bellissimo v. Westinghouse Electric

Corp., 738 F.20. 473: ork Ci: 1985)... 2. 15

Chipollini v. Spencer Gifts, Inc.,

814 F.2d. 893 (3rd Cir. 1987) ........ 1, 16, 18, 19

Clark v.. Huntsville City

Board of Ed., 717 F2d. 525, (11th Cir. 1983)

Dea v. Look, 810 F.2d. 12 (Ist Cir. 1987)....... 21

Dale v. Chicago Tribune Co.,

oie cr Me cy A. |) Sra 21

. Duffy v. Wheeling Pittsburgh

Steel Corp. 738 F.2d. 1393

CR rr kc casas nipinna oa 15

Firemans’ Fund, Inc. v.

Videfreeze Co., 540 F.2d.

Eri Ie lbic oa = Rg cade se es 19

Furnco Construction Corp. v.

Waters, Se te et CASIO)... oc ee ee eens 13

Jackson v. University of

Pittsburgh, et al, 826

Pe I sonst he koh eee ss one 15, 16, 17, 19

McDonnell Douglas v. Green,

ODE EF SS a aks ie ee TN gaits no ev 14

Slaugher v. Allstate Ins. Co.

SUS F.20..857 (Se Cw. 1966)... . . «2.22. os 19, 20

iv

ie hb Daca ‘dan ARSENE, Teint ARN

Texas Department of Community

Affairs v. Burdine, 450 U.S. 248 (1981) ..... 14, 15

Tunis Brothers Company v. Ford

Motor Company, 763 F.2d. 1482

SR en ere 18

United States Postal Service

Board of Governors v. Aikens

Re I a ca kk ck bcs Coen 13

l

STATEMENT OF THE CASE

Petitioners’ Statement of the Case is a dishonest and mis-

leading presentation of the record. Therefore, Respondent

submits the following Statement of the Case.

Petitioners have unashameably plagarized the dissent-

ing opinion of The Honorable James Hunter III, in Chipol-

lini v. Spencer Gifts, Inc., 814 F2d. 893, 1987.' They

reconstructed the facts of this case to fit within the framework

of their plagarized argument, necessitating the submission of

this correct Statement of the Case, based upon the record, by

Respondent.

Petitioners’ argument changes and moves around words,

from Judge Hunter's dissenting opinion, and uses his thoughts

and ideas, as if they were their own. Eventually, Petitioners,

in their lethargic intellectual effort, blatantly stole? verbatim

from Judge Hunter's dissenting opinion, two entire pages of

language, without bothering to acknowledge Judge Hunter

1. Chipollini v. Spencer Gifts, Inc. , 814 F.2d. 893, (3rd. Cir. 1987),

(9-1 en banc decision). petition for cert. filed 55 U.S.L.W. 3872 (June

17, 1987). The Honorable James Hunter III, senior judge. participated

since he was a member of the original panel. Id at 894. footnote 4.

2. The plagarized portion of the petition submitted by the Petitioners

begins on page 13, at the top of the page. The following was copied from

the opinion. **. . . no genuine issue of material fact remains for trial

‘unless there is sufficient evidence favoring the nonmoving party for a

jury to return a verdict for that party.’" Anderson v. Liberty Lobby,

Inc. U.S. . 106 S.Ct. 2505. 2511, 91 L.Ed.2d. 202. (1986).

. . ajudge must **view the evidence presented through the prism of the

substantive evidentiary burden”’ that the party must bear at trial. Ander-

son, 106S. Ct. 2513. . . . “the nonmovant will bear the burden of per-

suasion at trial, the party moving for summary judgment may meet its

burden by showing that the evidentiary materials of record. if reduced

to admissible evidence, would be insufficient to carry the nonmovant's

(continued next page)

2

as its true author, and they have the audacity to present it to

this court as their own astute, thought provoking argument

for the issuance of a writ of certiorari. Throughout their peti-

tion, Petitioners go beyond advancing a legitimate argument

to a reconstruction of the record to fit their plagarized

argument.

FACTUAL BACKGROUND

Respondent is a black citizen of the United States who

was recruited by the University of Pittsburgh, (hereinafter

**Pitt’’), as an attorney in its legal department, on July 15,

1975. Respondent had an excellent employment record at Pitt,

prior to his discharge, on January 3, 1984.

During his eight and one half years of employment at Pitt,

Respondent was responsible for providing legal services to

the various departments at Pitt on matters of a business-

corporate nature and for monitoring the conduct of litigation

being handled by outside legal counsel. Respondent’s simi-

larly situated coworker, Ronald Talarico, a white male, was

burden of proof at trial. See Celotex Corp. v. Catrett, U.S. . 106

S.Ct. 2548. [91 L.Ed.2d 265] (1986).°° In an [ADEA] action, the plain-

tiff has the burden of persuasion on the issue of discriminatory

intent . . . Furthermore, the plaintiff must persuade the jury not only that

the defendant's proffered explanation is **a pretext for unlawful discrimi-

nation” . . . itis the plaintiff who must prove discrimination; the defen-

dant is not required to prove the absence thereof. See Trustees of Keene

State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295. 58 L.Ed. 2d 216

(1978)(per curiam) ... Anemployer motivated by ill-will. nepotism

or unpublicized financial problems in his termination of an employee is

just as likely to use a pretextual explanation for his action as is an employer

motivated by statutorily-prohibited discrimination. Employers may even

resort to pretext for benign reasons. such as the desire to spare the feel-

ings of a loyal employee whose competence has declined. Chipollini v.

Spencer Gifts, Inc.. supra at 902-903.

3

hired in 1977 and was responsible for providing legal serv-

ices to Pitt departments on matters involving faculty , students

and employment discrimination. Each attorney dealt directly

with the department for which the legal service was being

performed.

From its inception in July 1975, the department was

supervised by William Hannan, a white male, until Hannan

left Pitt at the end of December 1982. Hannan’s specialty was

labor law. The department had two secretaries, both white.

One secretary was assigned to Hannan and Respondent and

the other was assigned to Talarico. Talarico and Respondent

were allowed to devote up to twenty percent of their time to

their private practices.

Hannan became a private labor arbitrator. He became

increasingly more involved with his arbitration practice and

began to spend greater amounts of time out of the office at

arbitrations. When in the office, he spent large amounts of

time writing arbitration opinions. During those periods when

Hannan was away from the office, Respondent oversaw most

of the operations of the department, although he and Talar-

ico performed their jobs independently. (Record on appeal

p. 70).

In 1980, Talarico, with Hannan as his mentor, also

became a private labor arbitrator. He, too, began spending

much of his time doing arbitration work. The secretaries

became increasingly more involved in typing Hannan’s and

Talarico’s labor arbitration opinions. In fact, Pitt work was

set aside so those opinions could be typed. (Record on appeal

pps. 70, 736).

By 1982, Hannan’s and Talarico’s arbitration practices

kept both of them out of the office for long periods. When they

4

were in the office, the secretaries were burdened with typing

their arbitration work. Respondent was left with an over-

whelming amount of Pitt work and without a secretary who

could readily type his work, between typing Hannan’s and

Talarico’s arbitration opinions and their other duties. The

secretaries were, by then, totally running the student loan col-

lection program, except for courtroom appearances. Finally,

during 1982, Hannan’s and Talarico’s inattentiveness to Pitt

affairs began to concern Pitt's administration. (Record on

appeal pps. 78-84).

Pitt's Chancellor Wesley W. Posvar asked the Dean of

Pitt's School of Law, John Murray, to review the operations

of the legal department. After conducting that review, Dean

Murray recommended that there be a change in the leader-

ship of the legal department and that the attorneys devote all

of their time to Pitt business. Dean Murray, in a letter to

Respondent, praised his efforts and accomplishments on

behalf of Pitt. Hannan left Pitt in late December 1982.

On January 3, 1983, Hanan was replaced by David C.

Sullivan, a white male. Respondent continued his responsi-

bilities. Talarico was now responsible for student loan col-

lections. [In 1981, Pitt had created a new department, the

Office of Employee Relations, which had taken a number of

responsibilities away from Talarico]. (Record on appeal

706-710).

When he arrived at Pitt, although Sullivan took little

interest in Respondent's legal work for Pitt, he was often rude

or attempted to belittle Respondent. (Record on appeal 41-53,

59-62, 199, 234-236).

In March of 1983, Responc — | was givena 17% salary

increase to forego any private practice. Although Respondent

was required to relinquish his private practice, Talarico, who

i

5

was also given a large salary increase (30%) was allowed to

continue his practice. Both attorneys received another salary

increase in July 1983. (Record on appeal 591], 613-616).

During the spring of 1983, Respondent learned from

reading an article in the student newspaper, the **Pitt News’’,

that Talarico had been appointed Assistant Secretary of Pitt's

Board of Trustees. As time went on, Talarico became Sul-

livan’s constant companion. When they were in the depart-

ment’s offices, they were constantly in each other's offices.

Although attempts were made, by Respondent, to familiarize

Sullivan with his work, Sullivan always refused to discuss

Respondent's work. The departments at Pitt usually bypassed

Sullivan and dealt directly with respondent. (Record on appeal

509, 634).

Sullivan hired another attorney, a white female named

Patricia McCullough. she began her employment at Pitt in

May or June 1983. She was assigned, by Sullivan, as an assis-

tant to Talarico. Eventually, she took over the student loan

collections. She also worked closely with Sullivan on several

projects during 1983, although Sullivan got involved in few

projects.

In late June or early July 1983, Sullivan hired another

attorney, Judy Frank, a white female. She was also assigned

to Talarico. Respondent continued to maintain his responsi-

bilities for business-corporate legal matters for Pitt. Although

Respondent requested that one of the new attorneys be

assigned to assist him, on a number of occasions, Sullivan told

Respondent that he would not ever be provided with any

assistance.

On July 18, 1983, Respondent became ill at work one

afternoon with a severe earache and facial paralysis that his -

doctor diagnosed as Bell's palsy. The condition made it neces-

6

sary for Respondent to be off from work for two and one half

days. Each morning when Respondent called off from work,

Sullivan would get on the telephone and harass him about

returning to work. On July 22, 1983, Respondent spoke, by

telephone with Sullivan, who was extremely agitated by

Respondent’s absence. Respondent, with a temperature of

104°, went to work on that Friday , because of Sullivan's atti-

tude towards him. When Respondent arrived at the office, Sul-

livan handed him a fifty page contract, which had just been

received for review, to revise over the weekend. (Record on

appeal 119-125).

There were some small matters which arose, requiring

the attention of another attorney, during Respondent’s

absence. Most of the work of the office seemed to collapse,

during Respondent's short absence, because Respondent was

doing most of the substantive legal work in the office and was

not permitted to have any assistance or backup on any of the

work that he performed.

Although McCullough had only started to work at Pitt

in May or June 18, 1983, she had taken a vacation by July.

Sullivan also sent her out of town, to a seminar, so that she

could visit her sister. Frank started to work in the department

in late June and immediately took a vacation. Talarico also

took a vacation in June. Sullivan took a month’s vacation, dur-

ing the spring of 1983 and, when he returned, he took a great

deal of time off to go to Florida, for personal reasons. When

Respondent’s white coworkers were at work, they appeared

to have little to do.

There were now three secretaries in the office. Respon-

dent shared a secretary, with Sullivan, who also had to

administer the office because Sullivan was seldom there.

Talarico had a secretary and McCollough and Frank shared

a secretary.

7

A number of Pitt’s departments relied solely upon

Respondent for legal advice because none of the other attor-

neys had developed a rapport with the departments of Pitt.

Respondent worked on all real estate matters, tax matters,

insurance matters, campus police matters, confidential mat-

ters for the senior staff, or business and finance matters.

Sullivan was rarely in the office. Talarico often left early

to attend arbitrations. McCullough came to work when, and

if, she felt like. Frank read the newspaper most afternoons.

Respondent was the only employee in that office who was

scrutinized by Sullivan and required to be constantly busy.

Respondent was usually singled out for unkind remarks at staff

meetings. No other employee was subjected to that kind of

treatment by Sullivan.

Respondent prepared a detailed memorandum of his

work for Sullivan when he took a two week vacation (from

August 8, 1983 to August 23, 1983) so that Sullivan would

be able to respond to inquiries in Respondent's absence. Upon

returning from vacation on August 23, 1983, Respondent

found, on his desk, a five page memorandum, from Sullivan,

containing unnecessary, unfounded and fabricated criticisms

of Respondent's work. Sullivan had taken Respondent's out-

line of his work and used it to fabricate petty criticisms. Sul-

livan had little or no first hand knowledge of the matters

complained about. (Record on appeal 84-208, 794-796, 781,

802-806).

The memorandum criticized Respondent because a

coworker hadd received a telephone call for him concerning

a project or projects of his, while he was sick or on vacation

and on projects of which Sullivan had only a superficial knowl-

edge and of which Sullivan had little or no grasp of the facts.

eis |

8

Sullivan constantly criticized Respondent. for things

others in the office would not be criticized for and expected

Respondent to handle all of his work alone. After reading Sul-

livan’s August 15, 1983 letter, Respondent replied with his

letter of August 23, 1983 attempting to respond to the numer-

ous fabrications, innuendo and needless criticism.

From September through December of 1983, the legal

department’s offices were being extensively remodeled and

it became very difficult to work in that area. Respondent found

temporary space in another office during the time the remodel-

ing took place. The other attorneys in the department did not

spend much time at work.

In September of 1983, Respondent had replaced Sul-

livan, as the general counsel for the Foundation for Applied

Science and Technology, (hereinafter ‘*FAST’’). FAST was

a corporation, formed by Pitt in 1983, for the purpose of com-

mercializing its research ideas into profit making ventures.

Its president was Richard K. Olsen. Sullivan had been asked

to resign, as the general counsel of FAST, because he had not

begun work on any of the projects that had been assigned to

him and FAST had generally become dissatisfied with

Sullivan.

There were several research projects for which FAST

was seeking investors. Respondent’s FAST responsibilities

became time consuming and he continued to be totally respon-

sible for all of his other work, as well. Respondent’s work

with FAST also required him to commute from Pittsburgh to

New York City, on a number of occasions, to meet with the

attorneys who were putting together the general limited part-

nership of investors for the research projects.

Respondent was also assigned, by the Chancellor of Pitt,

as the legal counsel for a trust fund, administered by Mellon

9

Bank, from which Pitt’s senior administrators would fre-

quently borrow, at a 3% rate of interest and repay interest only

during their employment at Pitt, funds for their personal use.

That work was performed outside Sullivan’s office because

neither Sullivan, nor his predecessor Hannan, were trusted

by the senior administrators at Pitt. These senior administra-

tors usually hired their own attorney to represent them when

entering into the various agreements with Pitt for repayment

of these low interest loans.

In November of 1983, Sullivan, a senior staff mem-

ber, applied for a loan from the trust fund. Sullivan came

to Respondent, stated that he was having difficulty, and

asked Respondent to assist him in closing on his resi-

dence. While at the closing, held in December 1983, Sul-

livan telephoned his bank and got into an argument with

someone at the bank. The bank refused to release the

funds, which Sullivan planned to use to remodel his new

residence. The closing was delayed, pending resolution of

Sullivan’s dispute with the bank. Respondent interceded,

on Sullivan’s request, and the bank released the funds.

The closing was finalized the following day. (Record on

appeal 268, 659).

In December of 1983, Pitt hired a new provost who

wanted to borrow funds from Pitt’s low interest trust fund as

soon as he found a residence. The provost found a house, a

closing was held on December 20, 1983 and was attended by

Sullivan and Respoudent, without a problem.

Respondent, like most employees at Pitt, was off work,

during the Christmas holidays, from December 21, 1983 to

January 3, 1984. On January 3, 1984, Respondent returned

to his newly remodeled office in the department for the first

time, in three months, since the renovations had just been com-

10

pleted. Shortly after 5:00 P.M., while Respondent was in his

office working, Sullivan asked Respondent to come to his

office. All of the other employees in the office had left for the

day. Sullivan told him to hand over his keys and I.D. card.

Sullivan spoke arrogantly and joked about firing Respondent.

Sullivan told Respondent not to return to the office and that

he would be paid until the end of March 1984. (Record on

appeal 218-222, 652-655).

On January 9, 1984, Respondent filed a formal griev-

ance with regard to his discharge, in accordance with estab-

lished, published Pitt procedures. The grievance was

delivered to the chancellor, in accordance with those proce-

dures, who turned it over to Sullivan to handle. Upon receiv-

ing the grievance from Respondent’s attorney, Sullivan

angrily told him that he would ruin Respondent’s career.

Respondent, on January 12, 1984, received a confusing let-

ter from Sullivan stating that Respondent would be paid until

the end of March 1984 and that Respondent was a ‘‘non-

classified’’ employee who was not covered by Pitt’s published

grievance procedure. Sullivan's ‘‘non-classified’’ category

of employee was a subterfuge.

On January 28, 1984, the black female attorney that Sul-

livan had quietly hired on December 21, 1983, began to work

in the department. She had never previously practiced law,

but had worked in an administrative capacity for an aquain-

tance of Sullivan. Respondent’s duties were divided among

the attorneys in the department who were all given salary

increases because of the sudden tremendous increase in the

workload of the department.

Following Respondent’s discharge, or even perhaps

prior thereto, Sullivan began disseminating to employees of

Pitt, who Sullivan called ‘*black opinion leaders’* , documents

11

which he indicated supported his discharge of Respondent.

Most of the documents, in the file which Sullivan dissemi-

nated, had not been seen by Respondent because Suilivan had

written them to ‘‘File’’, without Respondent's knowledge,

and had concealed the documents from Respondent. Respon-

dent heard from other employees about the file, but had no

idea what was contained in the file until discovery was con-

ducted in the instant action. On February 10, 1984, Respon-

dent went to Pitt and reviewed his personnel file, but found

nothing adverse in the file. (Record on appeal 686-694,

794-842).

Sullivan also became quite vocal in attacking Respon-

dent's competence as an attorney, making disparaging

remarks about his abilities, as an attorney, to just about any-

one who would listen to him. Sullivan made remarks, e.g.

‘*He screwed up my closing’’; **He [respondent] screwed up

Benjamin's [the new provost] closing’’. Even Sullivan’s

supervisor, Wesley Posvar, made a public statement to black

employees that Sullivan had reasons to discharge Respondent.

On February 18, 1984, Respondent received another cer-

tified letter from Sullivan. This letter told Respondent that,

if he did not withdraw his grievance, he would not be paid

through March 1984. On February 28, 1984, Talarico noti-

fied Respondent’s counsel, that Respondent’s medical benefits

had been terminated on February 28, 1984. On February 28,

1984, Pitt went into Respondent’s bank account and removed

his February paycheck. Respondent, although he attempted,

never had a grievance hearing.

On March 28, 1984, Respondent filed charges of

employment discrimination with the Pennsylvania Human

Relations Commission, (hereinafter **-PHRC**), and Equal

Employment Opportunity Commission, (hereinafter

12

““EEOC’’), against Pitt. On November 11, 1984, Respondent

received, after requesting, a Notice of Right to Sue letter from

the PHRC. Respondent received a Right to Sue letter

from EEOC on December 17, 1984. This suit was filed on

February 1, 1985.

During discovery, Petitioners took over 1000 pages of

Respondent's deposition testimony. Respondent took the

depositions of David Sullivan, Ronald Talarico, Judy Frank

and Wesley W. Posvar.

During his deposition, Sullivan appeared without any of

the files which Pitt contends support their reasons for discharg-

ing Respondent. Sullivan could not recollect any of the facts

relating to the reasons why he discharged Respondent or what

is the meaning of any of the letters, including the one Peti-

tioners have attached as Appendix C to their petition, con-

tained in his personal file on Respondent. Respondent

requested production of those files and Petitioners claimed

attorney-client privilege.

Sullivan could not cite one instance to support his *‘evalu-

ation’’ of Respondent’s work performance. He testified that

he did not make written evaluations of the attorneys in the

office, but he had a secret file on Respondent. Sullivan criti-

cized Respondent harshly for allegedly missing one (1)

appointment during the entire year. He didn’t know what the

appointment was about. He had simply overheard a secretary

tell Respondent that someone had called and wondered where

he was. But, he stated that he and the other attorneys in the

office have also missed appointments.

Sullivan testified that Respondent could only handle the

simplest of matters. Yet, Sullivan testified that the legal

department could not complete a sizable transaction because

Respondent was on vacation, eventhough Respondent had

13

explained the project, in writing, prior to going on vacation.

Sullivan testified that Respondent was a non-classified

employee. Yet, Sullivan could not explain what he meant by

‘*non-classified’’ nor show any document that used the word

**non-classified”’.

Sullivan testified that people complained about Respon-

dent’s work, but could not remember any complaints he

received.

Sullivan testified that he tried to rehabilitate Respondent

and solicited the assistance of Pitt’s Office of Affirmative

Action. It is unclear how the Office of Affirmative Action

rehabilitates attorneys unless there is some nexus between

race, or other protected class of employee, and the perfor-

mance of the attorney. (Record on appeal 565-702).

Sullivan was terminated by Pitt on March 31, 1985.

(Record on appeal 566, 766-767).

SUMMARY OF ARGUMENT

I. The decision of the United States Court of Appeals

for the Third Circuit in the instant case is consistent with the

rulings of the United States Supreme Court in Furnco Con-

struction Corporation v. Waters, 438 U.S. 5677 (1978);

McDonnell Douglas v. Green, 411 U.S. 792, (1973); Texas

Department of Community Affairs v. Burdine, 450 U.S. 248,

(1981); and United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711 (1983).

II. Petitioners have grossly distorted the record evi-

dence and the decision of the United States Court of Appeals

in Chipoilini v. Spencer Gifts, 814 F. 2d. 893, 3d Cir. 1987)

and the instant case.

14

III. Respondent has presented evidence which is more

than sufficient to raise genuine issues of material fact so as

to preclude summary judgement.

IV. The decision of the United States Court of Appeals

for the Third Circuit does not conflict with the decisions of

other courts of appeals.

REASONS FOR DENYING THE WRIT

I. The Decision of the United States Court of Appeals for

the Third Circuit Is Consistent With The Rulings of

the United States Supreme Court in McDonnell

Douglas v. Green, 411 U.S. 792, (1973) and Its Progeny

A review of the record, in the instant case, shows that

there are genuine issues of material fact. In McDonnell

Douglas v. Green, supra at 802, this court set forth the bur-

dens of proof in individual employment discrimination cases.

First, the plaintiff has the burden of proving, by a preponder-

ance of the evidence, a prima facie case of discrimination.

Second, if the plaintiff succeeds in proving the prima

facie case, the burden shifts to the defendant to articulate some

legitimate, non-discriminatory reason for the employee's

rejection.

Third, should the defendant carry this burden, the plain-

tiff must then have the opportunity to prove by a preponder-

ance of the evidence that the legitimate reason offered by the

defendant were not its true reasons, but were a pretext to dis-

crimination. See also Texas Department of Community Affairs

v. Burdine, supra.

Petitioners did not dispute whether Respondent estab-

lished a prima facie case in their arguments before the courts

15

below. They allude to the issue on page 5 of their petition,

but do not clearly address the question. All that the party alleg-

ing a discriminatory firing need show is that he was fired from

a job for which he was qualified, while others not in the pro-

tected class, were treated more favorably. Duffy v. Wheel-

ing Pittsburgh Steel Corp. , 738 F2d. 1393, 1395, (3rd. Cir.

1984). See also Bellissimo v. Westinghouse Electric Corp..,

764 F2d. 175, (3rd Cir. 1985). Respondent was qualified for

the position, which he had performed for eight and one half

years, and he was discharged while his white coworkers were

retained.

The court found that Petitioners had met their *‘ensuing

burden of production to articulate some legitimate. non-

discriminatory reason’’ for Jackson's dismissal. Jackson v.

University of Pittsburgh, et al., 826 F.2d. 230, 233-234, (3rd.

Cir. 1987).

Respondent contended that Petitioners had not met their

stage two burden of production because they did not dispel

the adverse inference of discrimination by producing legiti-

mate, nondiscriminatory reasons for his discharge. Petitioners

had simply entered into evidence letters written by Sullivan

and meaningless exhibits and left c pen any inference that may

support evidence of deficiencies in Respondent's job perfor-

mance. Petitioners failed to provide sufficient evidence to

frame the factual issues so that Respondent would have a full

and fair opportunity to demonstrate pretext. Petitioners rea-

sons were not worthy of credence. See Texas Department of

Community Affairs v. Burden, 450 U.S. 248, (1981). The

court, however, concluded that such an assessment must be

made by the factfinder at trial. Jackson v. University of Pitts-

burgh, et al, supra at 234.

At the third stage, the Third Circuit did not shift the bur-

16

den of persuasion to the defendant, notwithstanding Peti-

tioners argument that it did. see Petition p. 9. The defendant's

burden is to show that the plaintiff cannot meet his (or her)

burden of proof at trial. Chipollini v. Spencer Gifts, supra at

895. The plaintiff continues to have the burden of persuasion

after the defendants satisfy their burden of production of evi-

dence of legitimate non-discriminatory reasons. The plain-

tiff must provide persuasive proof of unlawful intent in order

to prevail. Such proof may consist simply of evidence that the

reasons proffered by defendants are simply not credible. Texas

Department of Community Affairs v. Burdine, at.255,n. 10

There is no conflict between the Third Circuit's interpre-

tation of the evidentiary burdens which must be met in a dis-

crimination case in order to survive a motion for summary

judgement and the rulings of the United States Supreme Court.

There was evidence offered to establish a connection between

the discharge and the racial motivation for the discharge. The

court found:

‘The record, including Jackson’s lengthy deposition,

contains more than a scrap of evidentiary materials to

support h[is] argument. (citing Alizadeh v. Safeway

Stores, Inc., 802 F.2d. 111, 113 (Sth. Cir. 1986).

Instead, throughout nearly 700 transcript pages, Jack-

son’s deposition in numerous ways Calls into question

appellees [petitioners’] claims that Jackson was dis-

missed for performance deficiencies.’’ Jackson v.

University of Pittsburgh, et al, supra at 234.

Citing the record at 59, #27, 482-484, 527, 234, 352.

283, 286, 360-261, 11-12, 546-550, 63-64, 87, 96, 137, 542,

205-206, 542-544, the court found that the record evidence

was:

17

. . more than sufficient to support the reasonable

inference that Sullivan's criticisms of Jackson's perfor-

mance are post hoc concoctions. It also suffices to sup-

port an inference that Sullivan orchestrated a campaign

to get rid of Jackson because he was black.’* Jackson,

supra at 234.

Contrary to Petitioners’ argument, the Third Circuit did

not hold that no nexus need be shown. See Petition p. 8-17.

II. Petitioners Have Grossly Distorted The Record Evi-

dence And The Decision Of The United States Court

of Appeals in Chipollini v. Spencer Gifts, 814 F. 2d

893, 3rd Cir. 1987).

Petitioners misrepresent Respondent's contentions and

the record evidence when they argue that Respondent **was

merely second guessing his employer's evaluation’’, *‘ten-

dered self-serving statements’’ and ‘‘none of Jackson's evi-

dence linked his discharge to race, either directly or

indirectly’’. see Petition pp. 15-16. Petitioners assert in their

petition that Respondent ‘suffered from atleast . . . [twelve]

deficiencies . . .’* see Petition, footnote 1.

Respondent did not merely second guess Sullivan's

evaluation with self serving statements. The record will show

that, in approximately 1000 pages of transcript, Respondent

produced evidence to establish that Sullivan and Pitt had fabri-

cated the reasons for his discharge. The court found that *‘a

factfinder reasonably could conclude that appellees* [peti-

tioners’] position is mere pretext. Jackson v. University of

Pittsburgh, et al. at 235.

Petitioners’ argument is that the employer need only

announce the reasons for the discharge, at some point in time

when they decide what the reasons will be, either before or

18

after discovery is complete, as they prepared their motion for

summary judgment. If the reasons sound legitimate and non-

discriminatory , Petitioners argue that the plaintiff cannot chal-

lenge those reasons because he is merely second guessing the

sound business decision of his former employer.

Petitioners argument is, essentially , that, in an employ-

ment discrimination case, all inferences should be resolved

in favor of the moving party, if the moving party is the

employer and the employee should not be allowed to dispute

the employer's proclaimed reason for the discharge, without

direct evidence of discrimination. The court, nevertheless,

held that defendants’ burden of production is not met by

‘*merely showing that the plaintiff's inability to prove by direct

evidence that defendant's proffered reason is a pretext for dis-

crimination’. Jackson v. University of Pittsburgh, et al at 233

citing Chipollini v. Spencer Gifts, Inc. 814 F.2d 893, 895 (3rd.

Cir. 1987).

The majority in Chippolini, supra at 895 held that:

‘*. . . the plaintiff is entitled to show that the employer's

explanation was pretextual by proffering evidence which

is circumstantial or indirect as well as that which shows

directly discriminatory animus (smoking gun)."’

III. Respondent Has Presented Evidence Which Is More

Than Sufficient To Raise Genuine Issues Of Material

Fact So As To Preclude Summary Judgment.

Summary judgment is inappropriate if the issues depend

upon the credibility of witnesses which can best be determined

only after the trier of fact observes the witnesses. Tunis

Brothers Company v. Ford Motor Company, 763 F.2d 1482.

(3rd. Cir. 1985). A review of the record in the instant case

will show that there are genuine issues of material fact. Peti-

tioners’ Appendix C to their petition raises genuine issues of

19

material fact. (Record on appeal 815-819, 411-416)

There is genuine evidence which calls into question Sul-

livan’s motivation for criticizing Respondent's work perfor-

mance and Pitt's discharge of him. Sullivan could not present

one factual instance to support his ‘‘evaluation’’ of

Respondent.

Rule 56 must by construed with due regard not only for

the rights of persons asserting claims and defenses that are

adequately based in fact to have those claims and defenses tried

to a jury, but also for the rights of persons opposing such

claims and defenses to demonstrate in the manner provided

by the Rule, prior to trial, that the claims and defenses have

no factual basis. Slaughter v. Allstate Insurance Company,

803 F2d 857, infra at 860 citing Celotex Corp. v. Catrett, 106

U.S. 2548, 1986).

The Third Circuit, like every circuit cited by Petitioners,

in ruling on a motion for summary judgment *‘does not assume

the role of factfinder’’. It is the function of the factfinder

alone . . . to evaluate contradictory evidence’’. Jackson v.

University of Pittsburgh, et al, supra at 235; App. A at 10a,

citing Firemans’ Fund, Inc. v. Videfreeze Co., 540 F.2d.

1171, 1178, (3rd Cir. 1976), cert. den. 429 U.S. 1053 (1977).

[V. The Decision Of The United States Court Of Appeals

for the Third Circuit Does Not Conflict With The

Decisions Of Other Courts Of Appeals.

Petitioners, on page 7 of their petition, misquote the court

in Chipollini, at 898, by stating that a plaintiff [in the third

circuit] can survive summary judgment ** without presenting

evidence specifically related’* to race. The correct quote is

‘Thus, in addition to establishing his prima facie case by

indirect proof, a plaintiff can prevail by means of indirect

=

20

proof that the employer’s reasons are pretextual without

presenting evidence specifically relating to age. Petitioners

failed to mention the court's requirement of indirect proof,

although they do include *‘indirect proof’ in their footnote

6 on page 7 of their petition.

Throughout the remainder of their petition, Petitioners

repeat their misstatement of the court in Chipollini.

Petitioners cited a number of cases which they claim are

inconsistent with the holding of the Third Circuit, in this case.

Dea v. Look, 810 F.2d 12 (1st. Cir. 1987), was an age

discrimination case in which the plaintiff, the fifty eight year

old airport maintenance supervisor, was discharged for con-

verting fuel to his personal use, giving improper instructions

to those he supervised and withholding information from the

airport manager.

The court entered summary judgment for the employer

because the employer articulated a plausible, nondiscrimina-

tory reason for treating Dea different from the other employee

who had taken fuel for his personal use. Dea, when pressed

at his deposition, about the reason for his discharge, admit-

ted taking the fuel and did not assert “‘age’’ as a reason for

his discharge. Dea alleged ‘‘unionization’’ and **coverup [for

some misdoing] by higher officials’’ as the reason for his dis-

charge. The court held that **. . . evidence contesting the fac-

_ tual underpinnings of the reason for the discharge proffered

by the employer is insufficient, without more, to present a jury

question.*’, Dea v. Look, supra at 15.

Slaughter v. Allstate Ins. Co., 803 F2d 857, (Sth Cir.

1986), was an age discrimination case in which the plaintiff,

an insurance sales agent, was fired for backdating an insur-

ance policy. Slaughter admitted backdating the effective date

21

of an insurance policy and pointed to nothing other than a con-

versation, during an investigation, in which he admitted mak-

ing the change to show that the reason for his discharge was

pretextual.

Dale v. Chicago Tribune Co. 797 F2d. 458, (7th Cir.

1986), was an age discrimination case in which the 55 year

old plaintiff failed to establish a prima facie case because of

a questionable employment history. Id at 465.

Clark v. Huntsville City Bd. of Ed., 717 F2d. 525, (11th

Cir. 1983) did not involve a ruling on a motion for summary

judgment, but was a trial on the merits. Clark had sued for

not being promoted and the court found that there was no

‘*proof of a discriminatory motive’’. The court noted:

**We stress that our opinion does not preclude the

trial court from basing its finding of a racially discrimina-

tory purpose on circumstantial evidence, including the

defendant's failure to rely on the reasons on which it

claimed to rely. We state merely that the plaintiff must

in fact persuade the court that the defendant acted with

a discriminatory purpose.”* Id at 529, footnote 5.

There is no conflict in the circuits.

22

CONCLUSION

For the reasons set forth above, the Petition for a Writ

of Certiorari to the United States Court of Appeals for the

Third Circuit should be denied.

Respectfully submitted,

MATTHEW E. JACKSON, JR., ESQUIRE

1017 Fifth Avenue

Pittsburgh, PA 15219

(412) 391-1700

Pro se.