Petition for Writ of Certiorari — Garrison v. City of Indianapolis
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IN THe
Supreme Court of the United States
October Term, 1990
ViEON GARRISON,
Plaintiff Appellant,
Appeal from the
United States Court
of Appeals for the
Ciry or INDIANAPOLIS and Seventh Circuit
INDIANAPOLIS DEPARTMENT OF
ADMINISTRATION,
i
Defendants-A ppellees.
PETITION FOR A WRIT OF CERTIORARI
Jeffrey S. Rasley
Christopher B. Rigsbee
BABCOCK & RASLEY
500 Barrister Building
155 East Market Street
Indianapolis, Indiana 46204
(317) 634-0229
Gregory J. Utken
Hudnall A. Pfeiffer
BAKER & DANIELS
Suite 2700
300 North Meridian
Indianapolis, Indiana 46204
(317) 237-0300
Lja
QUESTIONS PRESENTED FOR REVIEW
1. Isthe proper standard that should be used in this case to
compare the Plaintiff-Appellant with white employees that of
“employees involved in acts of comparable seriousness” rather
than the standard applied by the United States District Court
for the Southern District of Indiana, Indianapolis Division,
which was “similarly situated employees,” given the intentional
nature of the wrongdoing alleged against the Plaintiff-
Appellant by the employer, the City of Indianapolis?
2. Was Plaintiff-Appellant treated differently than white
employees involved in acts of comparable seriousness by the
City in the way it conducted an investigation of charges against
him?
3. Was the disciplinary action taken by the City against the
Plaintiff-Appellant more severe than actions taken against
white employees involved in acts of comparable seriousness?
4. Was the Plaintiff-Appellant’s proof sufficient to support an
inference of discriminatory intent on the part of the Defen-
dants?
TABLE OF CONTENTS
Questions presented for revieW ............06 000 eee
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Reports of Opinions Delivered in the Case ............
Statement of Jurisdictional Grounds .................
Constitutional Statutes Involved in the case ..........
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Reasons for Granting the Writ of Certiorari ..........
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TABLE OF AUTHORITIES
Cases:
Boner v. Board of Comnrrs, 674 F.2d 693 (Sth Cir, 1982) 8,9
Dodson v. Marsh, 678 F.Supp. 768 (S.D. Ind. 1988) .... 7
Doe v. First Nat‘onval Bank of Chicago, 865 F.2d864 (7th
I Go ily che Pu wang 4 Kxdc Kwan on ba 66 S11
Gill v. Western Electric Corp., 594 F.Supp. 48 (N.D. LL.
nee aes sb dhe ahh ehde oa vneeedinrvieds s,9
McDonnell Douglas Corp. v. Green, 41 U.S. 792 (1973) 10,11
McGee v. Randall Division of Textron, Ine., 837 F.2d 1365
ek TPIT Iie ne eae ee
Monroe v. Guardsmark, 851 F.2d 1065 (8th Cir. 1988). 10,11
Papritz v. United States Department of Justice, 1987 WL
~I
UE aw nic yb ie bee vnancascnscce 7
Ramsey v. America Air Filter Co., 772 F.2d 1303 (7th Cir.
i tL a avs ewek eh cee sabi abscess % 7
Rhode v. K.O. Steel Castings, Inc., 649 F.2d 317 (Sth Cir.
Cee Ceara e eh ose heb bss bes eeneh S90 % b a's §,10
Texas Department of Community Affairs v. Burdine, 450
ye ecb oN ck ota e hive ves ecGweane 7,10
Statutes:
IE I icc nck sccn sce cssscessercds 2
Ne oie Seve beds cb eon asen neces 6
caer n che aesccevuneesrecueen (5
ee re 2,3,6
i, Ci, ED, kicks cewessseccssuewess 23,6
iil
No. -
In THE
Supreme Court of the United States
October Term, 1990
VrEON GARRISON,
)
)
Plaintiff-Appellant, )
) Appeal from the
V. ) United States Court
) of Appeals for the
Ciry oF INDIANAPOLIS and ) Seventh Circuit
INDIANAPOLIS DEPARTMENT OF _ )
)
)
)
ADMINISTRATION,
Defendants-Appellees.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF
THE UNITED STATES OF AMERICA
Comes now the Plaintiff-Appellant, Veon Garrison, by coun-
sel and pursuant to Rule 12 of the Supreme Court Ruies,
respectfully requests that the Court grant a Writ of Certiorari
in the above- captioned case and in support thereof states the
following:
REPORTS OF OPINIONS DELIVERED
IN THE CASE
There was no formal opinion of the United States District
Court for the Southern District of Indiana, Indianapolis Divi-
|
i
sion. The Findings of Fact and Conclusions of Law are
reproduced in Appendix B of this Petition. No published opin-
ion Was issued by the United States Court of Appeals for the
Seventh Circuit. Its unpublished order is set forth in Appendix
C of this Petition.
STATEMENT OF JURISDICTIONAL GROUNDS
1. On the 28th day of November, 1988 the United States
District Court for the Southern District of Indiana, Indianap-
olis Division handed down its final judgment in favor of the
Defendants-Appellees.
2. Plaintiff-Appellant proceeded to file an Appeal in the
United States Court of Appeals for the Seventh Circuit.
>. On the 1&th day of July, 1990 the United States Court of
Appeals for the Seventh Circuit affirmed the grant of judgment
to Defendants- Appellees from the United States District
Court for the Southern District of Indiana, Indianapolis Divi-
SION.
4. On the 21st day of September, 1990 Plaintiff-Appellant
filed an Application fu an Extension of Time with the Supreme
Court of the United States of America.
5. On the 25th day of September, 1990 the Supreme Court
of the United States of America handed down an Order grant-
ing an extension of time to file a Petition for a Writ of Certiorari
from the 16th day of October 1990 to and including the 15th day
of December, 1990.
6. The statutory provision, 28 U.S.C. See. 1254(1), confers
on this Court jurisdiction to review the judgment in question
by Writ of Certiorari.
CONSTITUTIONAL ST! TUTES INVOLVED
IN THE CASE
The statutory provisions involved in the case are 42 U.S.C.
sec. 2000e-2(a) and 42 U.S.C. Sec. 2000e-2(h), both of which
are set forth in Appendix A of this Petition.
7.
ww
STATEMENT OF THE CASE
This is a civil action brought by the Plaintiff- Appellant, Veon
Garrison (Garrison), an individual black employee of the City of
Indianapolis, Indiana, to enforce the provisions of 42 U.S.C.
Sec. 2000e et seq.
On October 17, 1983 Garrison started work for the City of
Indianapolis as an hourly employee in the City Equipment
Maintenance Division of its Department of Administration
(CEMD). After a probationary period of sixty (60) days ending
December 15, 1983, Garrison was fired by CEMD on December
19, 1983 but was reinstated ten (10) days later after he filed a
grievance with the Equal Employment Opportunity Commis-
sion.
On February &, 1985, CEMD fired Garrison again, this time
on a disputed charge in which it was alleged he stole an auto
battery from a CEMD storeroom. At a meeting with CEMD
management on the same day, Garrison was told that he was to
receive a five (5) day suspension as requested by Garrison's
union representative, in lieu of termination. Garrison then left
the meeting. In Garrison’s absence, Charles Chapman, an
employee working at CEMD in the parts«lepartment, who first
reported the alleged battery theft, accused Garrison of three
(3) other thefts. CEMD then extended the five (5) day suspen-
sion pending further investigation. Garrison was not given a
chance to respond to these accusations before the suspension
was extended. When Garrison was notified of the extension of
his suspension, he was not told there were any additional
accusations made against him. CEMD management prepared a
letter of reinstatement dated February 21, 1985, however, Gar-
rison did not accept the terms of the offered reinstatement
because he would be put on a ninety (90) day probation period
and not allowed back pay. On the same day that Garrison
received this Notice of Reinstatement, he also received notice
that CEMD had rescinded it. Chief Administrator James B.
Garvie relied on the verbal report of Mr. Chapman concerning
earlier alleged thefts and decided to rescind the Notice of
Reinstatement. On February 25, 1985, Garrison filed another
KEOC charee.
On March 4, 1985 a hearing was held by CEMD administra-
tion concerning the charge of theft against Garrison. Garrison
Was not present and he was not represented at the hearing by
either union official or attorney. He was given no advance notice
of the hearing or its subject matter. He still had not been given
any notice that additional charges had been made against him
by Mr. Chapman. A letter was prepared by CEMD to Garrison
advising him of the hearing, but it was dated either the day of or
the day after the hearing. This letter to Garrison did state the
additional charges against him, but CEMD never delivered the
letter.
After learning of the CEMD administrative hearing, Gar-
rison filed a formal grievance through his union represen-
tatives, and the grievance went straight to a “stage three”
hearing before the City Personnel Director according to the
employee handbook. This occurred in mid-March of 1985 and it
Was at the “stage three” hearing that Garrison first learned of
the additional charges against him. Garrison was not repre-
sented by counsel at that hearing.
Garrison received confirmation of his termination by letter
approximately one (1) week following the “stage three” hear-
ing. Garrison then filed for unemployment compensation and
on March 28, 1985 the Indiana Employment Security Division
made an initial determination that Garrison was not discharged
for just cause and he began receiving benefits. CEMD
appealed the award and a hearing was held in Indianapolis,
Indiana on April 24, 1985 before the Indiana Employment
Security Review Board. The Review Board determined that
the findings of the initial determination were in agreement with
the evidence of the record and affirmed the determination of
the deputy.
On behalf of Garrison, his AFL-CIO Union Chapter submit-
ted the discharge yrievance to arbitration in August of 1985. On
the 6th day of November, 1985, the Arbitrator denied the
grievance filed by the Union on behalf of Garrison. At the
arbitration hearing, however, Garrison learned that a “Prime”
brand battery was what he allegedly stole. But the only battery
he possessed was a Fleener battery, a brand CEMD did not
stock. The City had not disclosed this as well as other mate: jai
information to Garrison during its investigation.
The original basis for Garrison’s dispute of his discharge was
that he did not steal the battery he was charged with stealing.
The claim he brought to the Courts was that the City treated
him differently than it treated white employees of CEMD who
committed acts of comparable seriousness. Garrison asserts
that white employees have been treated differently than him
both in the manner of the investigation by CEMD and the
resulting disciplinary action taken.
At Garrison's trial, James B. Garvie, Administrator of
CEMD, testified that the City Employee Handbook applied to
all City employees and sets out guidelines for the imposition of
progressive discipline for the offenses listed. It was up to the
facility coordinator, a white management level employee, to
determine the appropriate category of discipline as allowed by
the handbook, for a particular incident of alleged misconduct.
The discipline for a specific offense was thus determined by the
facility coordinator’s categorization of the incident under the
guidelines of the Employee Handbook.
One example of the importance of the facility coordinators
determination was the treatment of heavy equipment mechanic
Dominic Mangine, a white employee. He was accused of taking
an unplated City vehicle off the premises without authorization
and later becoming involved in a traffic accident with that
vehicle. Mr. Mangine could have been charged with unauthor-
ized use of City property or theft, but he was charged with
unauthorized absence from work place. The latter offense car-
ries a less severe recommended penalty, and he received only a
written reprimand. Garrison's offense, on the other hand, was
categorized as theft of City property, and he was ultimately
fired.
A second example is Jody Tilford, a white employee, who was
initially accused of theft but whose charge was categorized as
unauthorized use of City property. Mr. Tilford testified that in
order to get his stalled car off the freeway, he had taken a fuel
pump without the permission of CEMD from a vehicle con-
signed to the CEMD garage for storage and repairs, and put
the pump in a drawer at the garage, where it stayed for more
than a month until his actions were reported and an investiga-
tion begun. For that offense he received a (1) day suspension.
James Hanson is yet another example. He is a white male
who was employed by CEMD. On December 6, 1985 Hanson
was discovered in possession of City property which was
believed to be stolen. An investigation by CEMD ensued.
Hanson admitted his theft of City property on January 7, 1986.
He was ultimately discharged, but was allowed to work at
CEMD until January 15, 1986, six (6) weeks after the initial
discovery of the theft and eight (8) days after Hanson admitted
the theft to police. Hanson was never suspended and continued
to work while under investigation up until the date of termina-
tion. Thus Hanson lost no pay during the investigation by the
City.
Following an adverse arbitration award, Garrison pursued
his EKEOC claim through the administrative procedure and
then to trial at the District Court. His Complaint was filed in
the United States District Court for the Southern District of
Indiana, Indianapolis Division, on November 14, 1986 charging
the City of Indianapolis and its Department of Administration
with violations of his rights under 42 U.S.C. See. 2000e and
also under 42 U.S.C. Sec. 1981 and Sec. 1983. Garrison's com-
plaint went to trial on October 11, 12, and 1, 1988 and resulted
in a verdict for the City. The trial court issued its written
Findings of Fact and Conclusions of Law on November 28, 198s.
~l
Garrison then appealed his case to the United States Court
of Appeals for the Seventh Circuit. On July 18, 1990, the Court
of Appeals affirmed the grant of judgment to Defendants by
the United States District Court.
Garrison proceeded to file an Application to Extend Time to
File a Petition for a Writ of Certiorari with the Supreme Court
of the United States of America upon which the Court, on the
25th day of September, 1990 granted an enlargement of time for
filing a Petition for a Writ of Certiorari to and including the date
of December 15, 1990.
REASONS FOR GRANTING THE
WRIT OF CERTIORARI
The United States District Court for the Southern District of
Indiana, Indianapolis Division, stated that in order to establish
his case, Garrison had to show that he was a member of a
protected class, he was otherwise similarly situated to mem-
bers of the unprotected class, and he was treated less favorable
than the similarly situated members of the unprotect. .’ class.
(Appendix Bb, p. B-15, District Court’s Finding of Faet and
Conclusion of Law, Citing Teras Departinent of Community
Affairs v. Burdine, 450 U.S. 248, 101S.Ct. 1089, 67 L.Ed.2d
207 (1981); Ramsey v. American Air Filter Co., 772 F.2d 1303
(7th Cir. 1985); Dodson v. Marsh, 678 F.Supp. 768 (S.D. Ind.
198%)). The District Court concluded that Garrison failed to
establish a prima facie case, because the individuals Garrison
contended were treated more favorably were not similarly
situated to him. (Appendix B, p. B-15, District Court’s Find-
ings of Fact and Conclusions of Law). Two of the reasons given
for the dissimilarity of situation by the District Court are: (1)
two of the employees were members of management, and (2)
three of the employees had significantly more seniority than
Garrison. (Appendix B, pp. B-15, B-16, District Court's Find-
ings of Fact and Conclusions of Law, Citing McGee v. Randall
Division of Textron, Ine., 837 F.2d 1365 (Sth Cir. i988); Paprits
vw. United States Department of Justice, 987 WL 10, 877
(DDC. 1987): Boner e Board of Comnrrs, 674 F.2d 695 (sth
Cin 182); Gill v. Western Electric Corp., 594 F.Supp. 4&, 51
(N.D). PIL 1984)).
The United States Appeals Court for the Seventh Circuit
upheld the above finding by the District Court and relied on
Doc rv. First National Bank of Chicago, 865 F.2d 864, 877 (7th
Cir 1989) concerning similarly situated employees. (Appendix
C. pp. C-4, C-5, Appellate Court's Order). In Doe the Seventh
Circuit held that an employee's long tenure and generally
strong employment record were properly considered by the
District Court in finding that the plaintiff was not similarly
situated to certain other employees. However, in Rhode v. KO.
Steel Castings, Ine, GAY F.2d 317, 322 (Sth Cir. 1981) the Fifth
Circuit stated that, at the prima facie stage of a disparate
treatment by discharge case, the differences between the
employees in job skill and job status are largely irrelevant in
determining the similarity between the member of the pro-
tected class and the members of the unprotected class. The
Fifth Circuit Court of Appeals went on to state:
“What is relevant {to the establishment of a prima facie
case | is that two employees are involved in or accused of
the same offense and are disciplined in different ways” /d.
That is, differences in job statuses should not defeat a prima
facie case of disparate treatment by discharge. Thus, the Court
of Appeals for the Seventh Circuit is in conflict with the Court
of Appeals for the Fifth Circuit by affirming the District
Court’s decision that Garrison did not establish his case
because the white employees were not similarly situated based
on job position or tenure. (Appendix B, p. B-15, District Court's
Findings of Fact and Conclusions of Law).
A third basis that the District Court stated for finding that
certain employees were not similarly situated to Garrison was
that they were engaged in conduct different from his. (Appen-
dix B, p. B-15, District Court’s Findings of Fact and Conclu-
sions of Law). Plaintif’-Appellant concedes that no other
employee was accused of stealing a battery froma CkKMD store
9
room, however, he did present evidence of comparable alle-
gations against white employees. In determining whether dis-
parate treatment is indicative of discrimination, the District
Court's focus should be on the similarity of the misconduct
committed by the employees and employee work records. G//
v. Western Electric Corp., 594 F.Supp. 4&8, 51 0N.D. TIL 1984). It
is, of course, true that certain misconduct committed by differ-
ent employees is not comparable. In the case of Bower ve. Board
of Comners, 674 F.2d 693 (8th Cir. 1982), the Court of Appeals
concluded that the offense of suspected embezzlement was not
comparable to the offense of poor job performance. In such case
there is obviously no similarity between the offenses. In the
case at hand, however, Garrison presented evidence of dispa-
rate treatment of him as compared to white employees who
committed acts which constitute the unauthorized taking of
City property, i.e., theft. The City of Indianapolis simply chose
not to charge the employees compared to Garrison with the
same offense due to more lenient categorization of the offense
by the facility coordinator. But a different categorization of
similar acts by the white facility coordinator does not make the
offenses incomparable. To the contrary, it shows the means by
which the City discriminated against Garrison.
Jody Tilford, a white employee of CEMD, took a fuel pump
from CEMD premises and used it for personal use on his own
vehicle without permission of the City of Indianapolis. Dominic
Mangine, a white employee of CEMD, took a city vehicle off the
CEMD premises without permission or clearance and operated
the vehicle in an illegal manner due to the fact that the vehicle
was without license plates and was involved in an accident
subsequent to leaving the restricted area. James Hanson was
discovered in possession of city property which was believed to
be stolen and later admitted his theft of the property. All of
these acts of misconduct, including the alleged act of Garrison,
involved property that was taken without permission of the
CEMD. Thus, the District Court should have found that Gar-
rison had at least established a prima facie case for disparate
treatment by discharge.
10
Once the prima facie case had been established by Garrison,
the City of Indianapolis then would have had the burden of
articulating the legitimate nondiscriminatory reasons for its
actions. Teras Department of Community Affairs v. Birdine,
450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The Dis-
trict Court found that the City carried its burden in regard to
articulating a legitimate nondiscriminatory reason for dis-
charging Garrison. (Appendix B, p. B-16, District Court's
Findings of Fact and Conclusions of Law). The Defendants-
Appellees offered evidence of differences in job status and
tenure in order to prove a legitimate and non-discriminatory
reason for the differing treatment of employees. See Rhode v.
K.O. Steel Castings, Inc., 649 F.2d 317, 322 (5th Cir. 1981).
Under the triplicate standards as set out in Tewas Departinent
of Community Affairs v. Burdine, 450 U.S. 248, l01S.Ct. 1089,
67 L.Ed.2d 207 (1981) the burden then shifts back to the plain-
tiff to show that the articulated reasons for the discharge were
actually a pretext for discrimination. Under Monroe v. Guard-
smark 851 F.2d. 1065, 1067 (8th Cir. 1988), the Court of Appeals
stated that “especially relevant [to a showing of pretext] would
be evidence that white employees involved in acts of compara-
ble seriousness were nevertheless retained or rehired.” Citing
McDonnell Douglas Corp. v. Green, 4ULULS. 792, 804, 935.Ct.
1817, 1825, 56 L. Ed.2d 668 (1973). The Court of Appeals goes on
to state that an employer may justifiably discharge one who has
engaged in unlawful, disruptive, or improper acts against it,
but only if the criteria for employee discharge are applied
consistently to members of all races. /d.
The white employees of CEMD mentioned above committed
acts of at least comparable seriousness to the one allegedly
committed by Garrison, thus the City of Indianapolis should
have treated those white employees in the same fashion as
Garrison. But not one of those white employees were termi-
nated ipon CEMD’s first learning of the offense charged, as
Garrison was. White employees were usually given short sus-
pensions (three (3) days or less) or reprimands for their conduct
rather than discharge. And during an investigation of alleged
1]
misconduct, a white employee would ordinarily not be sus-
pended but remain on the CEMD payroll until the investigation
was concluded. As mentioned above, even the white employee
(James Hanson) who was caught with City property and later
admitted to theft from the City when the police arrested him,
was allowed to continue working for CEMD for six (6) weeks
after he was first caught. Garrison was treated differently than
white employees by CEMD and the City in the investigative
phase of the disciplinary procedure and in the result. And this
differing treatment was discriminatory on its face as the crite-
ria used for employee discharge was not applied the same to
members of protected classes as to the unprotected class.
The decisions reached under Monroe v. Guardsmark, 851
F.2d. 1065 (8th Cir. 1988) and McDonnell Douglas Corp. v-
Green, 411 U.S. 792, 93.S.Ct. 1817, 36 L. Ed.2d 66% (1973) hold
that employees of different races involved in acts of comparable
seriousness should be treated similarly in disciplinary action.
There is certainly a difference between unintentional wrong
doings by employees and intentional wrongs. Doe 1. First
National Bank of Chicago, 865 F.2d 864 (7th Cir. 1989), is the
case upon which the Court of Appeals for the Seventh Circuit in
the instant appeal relied in affirming the decision of the District
Court as to Garrison’s failure to present evidence of similarly
situated employees. (Appendix C, pp. C-4, C-5, of the Appel-
late Court's Order). In Doe, the allegedly similarly situated
unprotected class employee was not discharged after making
an excess distribution to the beneficiaries of an estate. /d. The
employee made an unintentional mistake, a clerical error to be
precise.
“.. the District Court found that this employee was
treated differently because of the long tenure, generally
strong employment record, the isolated nature of this
error and the employee's regret about the mistake”. /d at
X77.
The plaintiffs misconduct in Doe was also unintentional in that
it was her poor quality of work performance. But the instant
12
case involves conduct that should be classified as intentional
wrong doing. In such case, seniority or job position should not
vive an employer discretion as to discipline in these matters.
In order to serve the purposes expressed in the anti-discrim-
ination in employment statutes under which Garrison appeals
to this Court, the Court should clarify that all employees who
commit acts of comparable seriousness, when it comes to inten-
tional wrong doing, should be treated the same. Certainly,
allowances might be made for employees who have shown
loyalty and effort with regard to unintentional mistakes or poor
performance on the job. Those employees, however, who inten-
tionally commit acts of wrong doing, such as theft of company
property, must be disciplined according to the seriousness of
the act committed regardless of such other factors as seniority
and loyalty. Allowing an employer complete discretion as to
discipline in cases where intentional acts of wrong doing or
illegal acts have been committed on the job will perpetuate
discrimination against minorities and women and weaken stat-
utory protections afforded minority employees by Title 42. If
the employer is allowed to take into account job position,
seniority and subjective factors such as “company loyalty”,
when determining the proper discipline of an employee who has
committed an intentional wrong or illegal act, then senior and
upper Management employees will consistently receive less
severe treatment then those in lower and starting positions.
Most upper level positions are dominated by white males while
women and minorities occupy lower positions and have less
seniority. It is fair to assume that the dominant class will try to
protect its own to the extent allowed. And what interest is
served, other than protection of the dominant class, by allow-
ing employers to discriminate in the discipline of employees
who commit intentional wrongs or commit illegal acts on the
job? Discrimination against African Americans in employment
(liscipline is as American as apple pie. This Court should take
the opportunity to clarify the law as to the treatment of
employees who allegedly commit comparable intentional
wrongs on the job. This case is especially appropriate for such a
clarification. The City of Indianapolis is the employer in the
case at hand. [t is a municipality within the governmental
structure of the United States of America. Social policy, as
expressed in the civil rights laws is best applied first to the
government itself. Let us reverse what has been labelled by
some as a trend of this Court to “turn back the clock” on the
protections afforded minorities by the law. Here we have a
black man who insists on his innocence of the theft charged,
was so found by the unemployment office, and was treated
(differently than white employees in the way the City conducted
its investigation and the resulting discipline.
Perhaps it makes sense to allow employers significant discre-
tion in their discipline of employees who make errors, because
there are many different types and degrees of unintentional
wrongs one might commit in a job. And it would certainly
offend fairness and reasonableness to require an employer to
invoke the same discipline against an employee who made his
first error in twenty (20) years as against an employee who
makes a significant mistake on her first day on the job. But
what purpose is served by allowing employers to fire an entry
level black employee for theft but only slap the hand of a twenty
year vice president, who is white, for the same type of act? The
interest in maintaining such a double standard is either overt
or disguised racism.
CONCLUSION
For all foregoing reasons, including the conflict in the opin-
ions handed down by the Appellate Courts as stated earlier in
the petition, Plaintiff- Appellant respectfully requests the
opportunity to have the decision rendered against him in the
Ur ited States District Court of Indiana, Indianapolis Division,
and affirmed by the United States Court of Appeals for the
Seventh Circuit reviewed by this Court.
teview is especially important for the purpose of clarifying
whether or not a Plaintiff establishes a prima facie case under
the statutes plead by Garrison by showing that white employ-
14
ees Were consistently treated more favorably with respect to
discipline for intentional misconduct.
Respectfully submitted,
Jeffrey S. Rasley
155 Kast Market Street
Indianapolis, Indiana 46204
A-]
Appendix A
A-2
§$2000e-2. Unlawful employment practices
Employer practices
(a) It shall be an unlawful employment practice for an
employer—
(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color,
religion, sex, or national origin; or
(2) tolimit, segregate, or classify his employees or appli-
cants for employment in any way which would deprive or
tend to deprive any individual of employment opportunities
or otherwise adversely affect his status as an employee,
because of such individual's race, color, religion, sex, or
national origin.
Seniority or merit system; quantity or quality of
production; ability tests; compensation based on sex and
authorized by minimum wage provisions
(h) Notwithstanding any other provision of this sub-
chapter, it shall not be an unlawful employment practice for an
employer to apply different standards of compensation, or
different terms, conditions, or privileges of employment pur-
suant to a bona fide seniority or merit system, or a system
which measures earnings by quantity or quality of production
or to employees who work in different locations, provided that
such differences are not the result of an intention to discrimi-
nate because of race, color, religion, sex, or national origin, nor
shall it be an unlawful employment practice for an employer to
vive and to act upon the results of any professionally developed
ability test provided that such test, its administration or action
upon the results is not designed, intended or used to discrimi-
nate because of race, color, religion, sex or national origin. It
shall not be an unlawful employment practice under this sub-
a TT
A-3
chapter for any employer to differentiate upon the basis of sex
in determining the amount of the wages or compensation paid
or to be paid to employees of such employer if such differentia-
tion is authorized by the provisions of section 206(d) of Title 29.
B-]
Appendix B
h-2
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ViEON GARRISON,
Plaintiff.
IP &6-1387-C
Crry oF INDIANAPOLIS AND Its
DEVARTMENT OF
ADMINISTRATION,
i i i
Defendants.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
This matter came before the Court for bench trial on October
11, 12 and 1, 198. Prior to that, counsel had filed their respec-
tive pre-trial briefs and proposed findings. At the conclusion of
the trial, the Court, having been convinced that the Plaintiff
had failed to prove the material allegations of his Complaint,
announced that it w: quired to find against the Plaintiff and
for the Defendant. . The Court directed counsel for the Defen-
dants to refine their proposed findings in light of the evidence
submitted. The Court also invited a response from the Plaintiff
tothe Defendants’ amended proposed findings and conclusions.
Having analyzed the Defendants proposed findings and Plain-
tiffs response thereto, the Court is satisfied that the Defen-
dants’ proposed findings accurately and substantially conform
to the evidence.
Plaintiff would have the Court include additional findings
concerning the battery inventories. During the trial and final
arguments, Plaintiffs counsel vigorously argued the point
Plaintiff also attempts to make in his post-trial response with
B-5
respect to the discrepancies in the testimony relating to the
battery inventories. In the face of the credible eyewitness
testimony regarding the Plaintiffs taking of a “Prime” model]
battery, the Court finds that ample evidence is in the record to
support a finding that Defendants in good faith believed that
Plaintiff had taken a “Prime” model battery. That same evi-
dence leads the Court to find that Defendants were not racially
motivated in discharging Plaintiff and that Plaintiff was not the
victim of disparate treatment. Accordingly, the Court adopts
the findings and conclusions submitted by the defense. Those
findings and conclusions have been scrutinized and carefully
related to the evidence and are found to be amply supported in
the record.
Thus, the Court, having considered all the evidence, includ-
ing exhibits, testimony, and credibility of the witnesses, and
having further considered the arguments of counsel in their
pre-trial and post-trial briefs, hereby enters the following find-
ings and conclusions as, and for, those of the Court.
FINDINGS OF FACT
1. The City of Indianapolis is a municipality, and one of its
departments is the Department of Administration. One of the
divisions of that Department is the Central Equipment Man-
agement Division (““CEMD”). CEMD performs service and
maintenance on City vehicles and equipment.
2. Since 1980, James Garvie has been Administrator of
CEMD. Since 1983, Carl Bennett has been Assistant Admin-
istrator. Between 1982 and 1985. Gene Pennington was Facility
Coordinator.
3. At times material, approximately 30% of CEMD’s work
force were black employees and several of its supervisors were
black. At various times, CEMD also has employed temporary
help from Manpower, Ine.
4. Atall times relevant to this action, hourly employees at
CEMD have been represented by the American Federation of
b-4
State, County and Municipal Employees (““AFSCME”), AF L-
CIO, Indiana Council 62. Since 1976, Dominic Mangine, a
heavy equipment mechanic at CEMD, has been President of
the Local Union. AFSCME and the City have been parties to a
series of agreements including one that was in effect from
January 1, 1985, to December 31, 1986. Hourly CEMD employ-
ees were governed by this agreement.
5. The City also has an Employee Handbook given to all
employees. In the back of the Handbook are groupings and
tables of work rules that distinguish types of inappropriate .
conduct for employees and provide recommended guidelines
for disciplinary actions.
6. The City has no rule requiring or not requiring suspen-
sion pending investigation of an alleged rule violation. The City
has no rule requiring that before disciplinary action can be
taken against an employee accused of theft of City property
that employee must be arrested by the police or convicted of
theft.
7. Veon Garrison is a black male. He was hired by CEMD
on October 17, 1983, as a heavy maintenance mechanic's
apprentice. That position was part of the bargaining unit.
&. In December, 1983, CEMD informed Garrison that he
was terminated for performance during his probationary
period. However, CEMD reinstated Garrison on December 29,
1983, after determining it had not effectuated his termination
before the expiration of his 60-day probationary period.
9. During the next year, Garrison received a written repri-
mand for poor job performance, he was placed on 60-day disci-
plinary probation for poor job performance and warned that if
his performance did not improve he was subject to termination,
he received a written reprimand for poor performance and was
placed on 90 days’ probation.
10. Atall times relevant to this action, the procedure when
a mechanic or other CEMD employee needed parts, supplies or
B-5
fluids for a City vehicle on which he was working was for the
mechanic to go to the parts window with a pre-numbered
document called a “Repair Order.” The parts room employee
then prepared a pre-numbered document called a “Parts Req-
uisition” on which he listed the parts given to the mechanic, the
Repair Order number, the vehicie number and the date.
ll. At the far end of the CEMD facility, located off a cor-
ridor which runs from the parts room to a parts receiving door,
is a battery storage room. CEMD maintained its inventory of
vehicle batteries in this room. In February, 1985, CEMD’s
inventory consisted of “Prime” and “Delco” brand batteries.
The door to the battery room was kept locked. When a
mechanic needed a battery, he went to the parts window and
requested a battery just as he would request any other part. A
Battery Log was kept in which each battery issued to a
mechanic was recorded.
12. As part of standard inventory procedure, a battery
inventory was taken on the first of each month. Ron Stinson
was the Supply Room Supervisor at the Riverside facility and
responsible for the battery inventory. A battery inventory was
taken on February 1, 1985, by a supervisor, Mark Stahl.
13. During the first week of February, the battery room
was being painted for a period of two to three days. Apparently,
from time to time while the painting was ongoing, the batteries
were moved from the battery room to the hallway, and when
put back in the battery ruom, an inventory was taken. This
included an inventory taken on February 6, 1985, by a bargain-
ing unit employee named Darryl! Whitfield.
14. In February, 1985, Charles Chapman and Zane Geberin
were Manpower, Inc., employees working at CEMD as tempo-
rary parts clerks.
15. On the morning of February &, 1985, Chapman was
admitted to the locked battery room by Supervisor Ron
Stinson to work in the room. Later, Garrison came into the
battery room. He was not carrying anything. Chapman saw
B-6
Garrison put a new “Prime” brand battery in a white cardboard
battery box and start to leave the battery room. Garrison did
not present a Repair Order to Chapman. They heard someone
coming down the hall (Geberin), and Garrison put the battery
down. After Geberin went by, Garrison picked up the battery,
left the battery room and went through the parts receiving
door that led to the employee parking lot. Chapman saw Gar-
rison in the lot through a window.
16. That morning, temporary Manpower employee Geberin
came working through the corridor from the parts receiving
door (which comes from the employee parking lot) past the
battery room. He looked in as he passed by and saw a black
individual by the new batteries with his hands on a new battery
box. However, he could not identify the individual.
17. Shortly thereafter Chapman came to Geberin and
reported what had happened.
18. Because Chapman had been admitted to the battery
room by his supervisor and he was aware that battery invento-
ries had been taken, Chapman feared he would be held respon-
sible for the battery he saw Garrison take. Chapman asked
Geberin what he should do. Geberin suggested they report the
incident, and they went to Assistant Administrator Bennett's
office. However, Bennett was in a meeting, and they were
asked to come back around 11:00 A.M.
19. Chapman returned to the battery room, and Garrison
again came in. Garrison wanted to know if the new batteries
were fully charged. Chapman walked Garrison out of the room
and locked the door. He then went to Geberin again and told
him that Garrison had made a second trip to the battery room.
20. Chapman and Geberin later met with Bennett. Chap-
man told Bennett about Garrison coming into the battery room
and taking the battery. Geberin told Bennett that Chapman
had come to him and told him of the incident earlier that
morning. Geberin also informed Bennett he had been walking
down the corridor past the battery room around 8:30 A.M. He
Da ntecnneneneeeeel
B-7
told Bennett that he looked in the room as he walked by and
saw a black individual by the new batteries with his hands on a
new battery box, but he could not tell who it was.
21. Bennett contacted Facility Coordinator Pennington
and asked him to secure Garrison’s Repair Order and Parts
Requisition for that morning to determine whether they called
for a new battery. Pennington did so. Neither called for a new
battery. Pennington gave the documents to Bennett.
22. Additionally, Pennington personally went out to
inspect the vehicle Garrison had worked on that morning and
looked under the hood to ascertain if a new battery had been
installed. It had not.
23. Bennett asked Supply Supervisor Ron Stinson to
inventory the batteries in the battery room. Stinson did so and,
comparing the February 1 inventory to his, found the inventory
was short batteries — including “Prime” models. Stinson
reported this to Bennett.
24. Bennett and Pennington met with Mangine and Gar-
rison at 3:30. Bennett informed them that it had been reported
to him that Garrison had been seen taking a battery from the
battery room, and it was a dischargeable offense. Mangine
responded that Garrison had been with him all afternoon.
Mangine and Garrison asked for a caucus and left the room for
several minutes. When they returned, Garrison had a used
battery and placed it on the conference table. It was not a
“Prime” brand but a “Fleenor” brand. Garrison stated that the
battery Chapman had seen him with was from his own car and
Garrison had brought it in to charge it. This did not explain
Chapman and Geberin’s report since the battery Chapman
reported taken was new and a “Prime” brand. Also, there were
no battery chargers in the battery room.
25. The Indianapolis police had been called and arrived on
the scene. They talked with Garrison, but no arrest was made.
26. Union President Mangine asked that Garrison be given
a suspension pending investigation. It was agreed that Gar-
a
B-8
rison would be placed on a five-day suspension pending further
investigation. The suspension later was extended.
27. Later that day on the &th, Garrison sought Bennett
out. Garvie saw Garrison pass in the hall on his way to Ben-
nett’s office. Garrison approached Bennett to talk about the
charge of taking the battery. Garrison told Bennett that there
were two additional missing batteries located in the shop, one
in the steam cleaning bay and one located under a work bench
on the heavy equipment side of the repair shop. Garrison asked
Bennett if he provided the additional information, “would it go
lighter on him.” Bennett thought Garrison was looking for a
trade-off for the charge against him, but told him it was out of
his control. Garrison left.
23. Bennett then instructed that a search be conducted for
these additional batteries, one in the steam cleaning bay and
one located under a work bench on the heavy equipment side. A
search was made, and Stinson reported that no batteries were
found.
29. CEMD also tried to locate Garrison's daily time card for
February 8, which he was supposed to give to his supervisor at
the end of the shift. That card records each project on which an
employee works on that day. CEMD wanted to compare Gar-
rison’s card for February & with Mangine’s to see if they had
worked on the same projects. However, Garrison’s time card
was not located.
30. After reviewing the matter and consulting with an
attorney for the City and a representative of City Personnel
(Carolyn Smith), CEMD Administrator Garvie met with Man-
gine and Garrison on the morning of February 21, 1985, and told
them he had decided to give Garrison a second opportunity and
not terminate him at that time but return him to work the next
day and place him on 90-day performance probation.
31. Later in the morning after further discussion, Garvie
asked the attorney for the City and the Assistant Admin-
istrator of Personnel to talk with Chapman. Chapman was
B-9
brought in, and the attorney interviewed him about the battery
incident. Smith and Garvie were also present. In response to
questions during the interview, Chapman informed the
attorney about other incidents involving Garrison which
occurred before the battery incident. Chapman reported the
following to him:
(a) In December, 1984, Garrison approached the parts
room window where Chapman was working. Gar-
rison asked for several gallons of antifreeze. Chap-
man got the antifreeze and took a blank Parts
tequisition form to fill out. He waited for Garrison to
produce a Repair Order. Garrison did not produce a
Repair Order but stated that the antifreeze was for
his personal car.
(b) Inlate January, 1985, Garrison approached the parts
room window where Chapman was working. Gar-
rison requested three quarts of oil. Chapman gave
him the oil, took a Parts Requisition form and began
to fill it out asking Garrison for a Repair Order.
Garrison did not produce a Repair Order but stated
that the oil was for his own personal car. Chapman
voided the Parts Requisition form he had started to
fill out.
(c) In early February, 1985, Garrison approached the
parts room window where Chapman was working.
He requested a length of battery cable and a large
eyelet which Chapman retrieved and gave to Gar-
rison. Chapman began to fill out a Parts Requisition
form with the digits of a Repair Order that Garrison
was holding in his hand, but Garrison stated that the
cable and eyelet were for his personal use. Chapman
voided the partially completed Requisition Form.
(1) Chapman told him he had not reported any of these
three incidents at the time they occurred because he
just had started to work, and Garrison led him to
believe it was alright. Additionally, as a new and
temporary Manpower employee, C hapman Was hesi-
| ,
B-10
tant to get involved because CEMD was a union
shop, and he was not, part of the union.
This was the first time Chapman had been interviewed by
counsel and the first time he identified the three specific pre-
vious incidents.
32. After this interview, the attorney, Assistant Admin-
istrator of Personnel and Garvie discussed the matter. It was
decided to rescind the earlier letter given to Garrison, do a
further investigation and reconsider what discipline to give
Garrison. Garrison was notified that he was to remain on
suspension, that further information was being investigated
and that there might be other discipline.
oy
35. Thereafter, the two Parts Requisition forms Chapman
had begun to fill out but voided were retrieved from CEMD's
records. Parts Requisition forms used at CEMD are sequen-
tially numbered for audit purposes. All forms completed or
voided are retained.
34. A few days later, the attorney for the City took a
detailed sworn statement with a court reporter from Chapman
about all the incidents. He took a statement from Geberin also.
35. During the first week of March, 1985, after reviewing
all the evidence again, consulting with counsel and City Per-
sonnel and reconsidering, Garvie decided there would be a
basis to change the discipline and termination would be war-
ranted. Union President Mangine was asked to have Garrison
report for a meeting. However, Garrison did not show up.
Union President Mangine told Garvie to “go ahead” and send a
letter to Garrison and let him file a grievance. A certified letter
was sent to Garrison on that date outlining the infractions and
informing him of the determination that discharge was war-
ranted.
36. The next day Garrison invoked the grievance procedure
under the collective bargaining agreement between the City
and the AFSCME. Garrison’s grievance involved a termina-
oe etna
B-11
tion, and pursuant to the labor contract, it went directly to the
third step. There was a third step grievance hearing before
Thomas E. Parker (black) in which Garrison appeared with his
Union representative. Bennett and Pennington appeared on
behalf of CEMD. Garrison and the Union were given an oppor-
tunity to respond to all four of the incidents charged against
Garrison.
37. On March 13, 1985, Parker issued his decision and
agreed Garrison should be discharged.
38%. Under the labor contract, Garrison was entitled to have
the City’s decision reviewed by an impartial arbitrator. Gar-
rison requested arbitration. Arbitrator Peter DiLeone of
Cleveland, Ohio, was selected to hear the case (through the
processes of the American Arbitration Association).
39. A hearing was held before Arbitrator DiLeone in
August, 1985, in Indianapolis. Garrison was represented at the
hearing by three of his Union representatives and attorney
Charles Brown. Garrison testified at the hearing and denied
each of the incidents that Chapman had reported to CEMD.
soth parties had the opportunity to present witnesses and
documentary evidence and to cross-examine the other party's
witnesses.
40. On November 6, 1985, Arbitrator DiLeone issued his
written opinion in which he denied Garrison's grievance and
found that the City had acted cautiously and had good cause to
discharge him. Under the labor contract, this decision became
final and binding.
41. On February 26, 1985, Garrison filed a complaint alleg-
ing that his suspension was due to his race. Defendant received
a copy of this complaint sometime after March &, 1985.
42. After receiving the Arbitrator’s decision, on December
11, 1985, Garrison filed a second complaint with the Indiana
Civil Rights Commission. He alleged that his March, 1985,
termination was (lue to his race. He made no other allegations
of discrimination or retaliation.
B-12
43. In pre-trial discovery, Garrison identified three white
CEMD employees who he contends are similarly situated and
who were not terminated. They are Jody Tilford, Ron
Schauinger and Dominic Mangine. At trial, he also brought up
the names of Charles Chapman and Doug Riddle.
44. Ron Schauinger has over 20 years’ seniority with the
City and was employed by CEMD as Facility Supervisor at the
Belmont facility. InJanuary, 1986, he was charged with being in
the facility during unauthorized times and for unauthorized
purposes; allowing others in the facility during unauthorized
times; dispensing City keys to unauthorized personnel; using
City vehicles for personal use; and allowing the falsification of
time cards. As a result, Schauinger was demoted two manage-
ment levels, placed on a 90-day probation, transferred to the
Riverside facility on a less desirable shift and had his City
vehicle privileges taken away.
45. Jody Tilford was a supervisor at CEMD with severa!
years’ seniority. In May, 1983, Tilford’s car broke down on the
interstate while in route to work. His fuel pump failed. He
hitchhiked to the facility. He knew that a fuel pump on a
Zamboni ice machine that was in the Riverside Garage for
summer repairs would work on his car. He removed the pump
and had another employee drive him to his automobile. He
installed the pump and drove his car to the facility. That night
he bought a new fuel pump and installed it after removing the
Zamboni pump. He returned the Zamboni pump to the facility
the next day and locked it in the supervisor's desk drawer. On
June 22, 1983, the Union informed Garvie of the incident. The
matter Was investigated, and Garvie learned the above infor-
mation. Tilford was given a one-day suspension without pay for
unauthorized use of CEMD property.
46. Dominic Mangine was a heavy equipment mechanic
who had been employed since 1975. He also was the Local
Union President at CE MD and had been for 10 years. In 1985,
Mangine was arrested and charged with attempting to sell a
motorevcle engine casing without a serial number. However,
B-15
this arrest Was not for any act against the City. The City has a
specific procedure in its Handbook when an employee is
arrested for a criminal act. A committee of several individuals
(from City Legal, City Personnel, the Department of Admin-
istration and the respective department) meets to decide
whether to suspend the employee pending resolution of the
criminal charges or allow him to continue to work. Each
instance is handled on a case-by-case basis. The City also has a
work rule permitting discipline up to and including discharge if
an employee is convicted of certain crimes. After it became
known that Mangine had been arrested, a committee met and
decided not to suspend him pending resolution of the charges.
Mangine subsequently pled guilty to a misdemeanor and was
given a one-year unsupervised probation. Several months
later, it came to the attention of the City’s Department of
Personnel that Mangine had pled guilty to a misdemeanor.
However, since so much time had passed, it was decided not to
discipline Mangine for the misdemeanor. Subsequently, in
August or September, 1985, Mangine was arrested and
charged with possession of an altered motor vehicle case. How-
ever, again this was not an act against the City. It was decided
not to suspend Mangine pending resolution of the charges.
Manyine’s charges were not resolved for almost two years, and
in September of 1987, he pled guilty to a felony charge. Man-
vine was terminated on September 15, 1987. He subsequently
filed a grievance, and his case went to arbitration. An
arbitrator overturned Mangine’s discharge and ordered the
City to reinstate him. Mangine never has been charged with or
convicted of any crime involving City property and never has
been charged with or convicted of theft. Mangine never has
been charged by CEMD with theft of CEMD property.
47. Charles Chapman was a white temporary employee
working at CEMD in 1985. He and some other employees were
assigned to clean up a second floor room and dispose of obsolete
parts. These parts were thrown into a trash Dumpster. Some of
the obsolete parts being thrown out included spark plug wires.
Chapman asked his supervisor, Stinson, if he could have some
B-14
of the wires, and the supervisor gave him permission to take
some. A few days later, there were rumors that Chapman had
stolen property. He mentioned this to his supervisor who told
him not to worry about it; he had been authorized to take the
property. Chapman said he would return the wires. The next
day he returned the property to his supervisor, and it was then
thrown into the Dumpster.
48. Garrison failed to submit sufficient evidence to estab-
lish any similarity between his situation and Riddle’s. The
evidence that was presented does not show Garrison and Rid-
dle were similarly situated.
49. CEMD has terminated several white employees for
theft of CEMD property. Among those white employees who
have been terminated are: Gene Miller, Richard Schauinger,
John Tracey and James Hanson. Three of them were suspended
pending investigation, the fourth was not due to his willingness
to cooperate in an investigation of others involved in possible
theft.
CONCLUSIONS OF LAW
Race Claims
1. Plaintiff focused much of his case on challenging the
thoroughness of the CEMD investigation, whether CEMD had
sufficient evidence to terminate him or whether certain items
of evidence supported the decision. In employment discrimina-
tion cases, the Court does not sit as a super personnel depart-
ment to review business judgments made by employers or to
second-guess what it would have done in the same situation.
Pollard v. Rea Magnet Wire Co., 824 F.2d 557 (7th Cir), cert.
denied, 198 L.Ed.2d 486, 108 S. Ct. 488 (1987); Dale v. Chicago
Tribune, T97 F.2d 458 (7th Cir. 1986). However, the Court finds
that CEMD engaged in a reasonable investigation of the
reports it had received on Garrison. It also finds that there was
sufficient basis for the City reasonably to conclude that Mr.
Garrison had stolen the battery and engaged in the three other
B-15
incidents of misappropriation of property, and in this regard
the Court credits the testimony of Charles Chapman.
2. The issue the Court must determine is whether there
was race discrimination. Garrison contends he was terminated
clue to his race in violation of Title VII and 42 U.S.C. $1981. The
elements of proof under both of these statutes are the same
Ramsey v. American Air Filter Co., 772 F.2d 1303 (7th Cir.
1985); Mason v. Continental Illinois National Bank, 704 F.2d
361 (7th Cir. 1983).
3. Since Garrison contends he was terminated because of
his race, the merits of his claims must be analyzed under the
disparate treatment theory. International Brotherhood of
Teamsters v. United States, 431 U.S. 324, fn.15 (1977). Garrison
bears the burden at all times of persuading the Court that he
was discriminated against “because of” his race. United States
Postal Service v. Aikens, 460 U.S. 711 (1983); Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248 (1981). This is a
“but for” test, and the ultimate inquiry in a disparate treatment
case. McQuillen v. Wisconsin Education Ass'n, 850 F.2d 659
(7th Cir. 1987).
4, To establish his case, Garrison must show: (1) he is a
member of a protected class; (2) he is otherwise similarly
situated to members of the unprotected class; and (3) he was
treated less favorably than the similarly situated members of
the unprotected class. Tevas Dep't of Community Affairs v.
Burdine, 450 U.S. 248 (1981); Ramsey v. American Air Filter
Co., 772 F.2d 1303 (7th Cir, 1985); Dodson v. Marsh, 678 F.
Supp. 768 (S.D. Ind. 1988).
5. The Court finds that the white individuals Garrison
contends were treated more favorably were not similarly situ-
ated to him. Two of the employees were members of manage-
ment; three had significantly more seniority than he; and all
had engaged in conduct different from Garrison's. McGee +.
Randall Division of Textron, Ine., 837 F.2d 1365 Oth Cir. 1988):
Papritz v. United States Department of Justice, 1987 WL
B-16
10,877 (D. D.C. 1987); Boner v. Board of Comnrrs, 674 F.2d 695
(Sth Cir. 1982); Gill «. Western Electric Corp., 594 F.Supp. 48,
51 (N.D. TIL. 1984).
6. The City’s burden is only to articulate legitimate non-
discriminatory reasons for its actions. Texas Dep't of Comiu-
nity Affairs v. Burdine, 450 U.S. 248 (981); Dale v. Chicago
Tribune Co., 797 F.2d 458 (7th Cir, 1986); Tice v. Lampert
Yards, lne., 761 F.2d 1210 (7th Cir. 1985). The City is not
required to prove the absence of a discriminatory motive but
only explain what it has done. Board of Trustees of Keene State
College v. Sweeney, 439 U.S, 24 (1978). Once it presents legiti-
mate nondiscriminatory reasons for its action, any presump-
tion of unlawful discrimination is eliminated. Sweeney, supra,
at 25, n.2; LaMontagne v. American Convenience Products,
Tne., THO F.2d 1405 (7th Cir. 1984).
7. The Court finds that the City has articulated legitimate
nondiscriminatory reasons for terminating Garrison. It had
been presented with eyewitness evidence that Garrison had
stolen and misappropriated CEMD property on more than one
occasion. It investigated his work order, the vehicle he worked
on and checked the inventory; it took depositions of two wit-
nesses; and it located the voided parts requisition forms. Addi-
tionally, CEMD sought and obtained the input of counsel and
City Personnel. Garrison's explanation was denial that he had
committed any of the acts. The Court further notes that Gar-
rison testified that he knew of no reason why Chapman, Ben-
nett, Garvie or the others would be out to get him. Garrison
filed a grievance under the labor contract. Pursuant to the
grievance procedure, the recommendation to terminate Gar-
rison was reviewed by the City Personnel Director and upheld.
Additionally, an impartial arbitrator sustained Garrison’s (lis-
charge after a full hearing. That fact alone satisfies the burden
of articulating a legitimate nondiscriminatory reason. Jasany
ve. United States Postal Service, 755 F.2d 1244, 1252 (6th Cir.
1985); Becton vo Detroit Terminal of Consolidated Freight-
B-17
ways, O87 F.2d 140 (6th Cir. 1982), cert. denied, 460 U.S. 1040
(1985).
%. The burden returns to Garrison to establish that the
articulated reasons were not just pretext but a pretext for race
discrimination. Johnson v. University of Wisconsin-Mil-
waukee, 783 F.2d 59 (7th Cir. 1986); Matthews v. Allis-Chal-
mers, 769 F.2d 1215 (7th Cir. 1985); Tice, supra; Beard v.
Whitley County REMC, 656 F. Supp. 1461, 1472 (N.D. Ind.
1987), aff'd, 840 F.2d 405 (7th Cir. 1988). This final stage of the
McDonnell Douglas analysis merges with Garrison's ultimate
burden of proving that the Defendant intentionally discrimi-
nated against him because of his race. United States Postal
Service v. Aikens, supra. The Court finds that Garrison has
failed to show that the City’s reasons for terminating him were
a pretext for race discrimination, and the Court finds there is
no evidence that the Defendant was motivated by Garrison's
race when it terminated him.
9. Furthermore, surrounding facts negate any claimed
inference of discrimination. Approximately 30% of CEMD
employees are black, including several supervisors. Garvie’s
determination was reviewed under the contractual grievance
procedure by Thomas Parker (black), Personnel Director for
the City. It is highly unlikely Parker was motivated by Gar-
rison’s race when he issued his decision agreeing that the
discharge was warranted. More importantly, CEMD has dis-
charged several white employees for theft or misappropriation
of CEMD property. Harris v. Plastics Mfg. Co., 617 F.2d 438
(Sth Cir. 1980).
Retaliation Claim
10. Although Garrison's Complaint contains an allegation
of retaliation, he did not argue it in his pre-trial brief nor raise it
during the course of the trial or in final argument. However,
since it Was not withdrawn, the Court now will address that
Complaint allegation.
B-18
ll. Garrison never filed an administrative charge under
Title VII alleging that his discharge was in retaliation for filing
his February charge, and therefore he may not pursue a claim
of retaliation under Title VIL. 42 U.S.C. §20000-5; Shah v. Mt.
Zion Hospital, 642 F.2d 268, 271 (9th Cir. 1981). He only filed a
claim that his discharge was racially discriminatory. A claim of
racial discrimination is not the same as a claim of retaliation
under Title VIL. Ekanem v. Health & Hospital Corp., 724 F.2d
563 (7th Cir. 1985). Additionally, 42 U.S.C. $1981 may not be
used to bypass Title VIT'S procedures and enforce Title VITs
right not to be retaliated against for filing a charge under Title
VIL. CL Huebschen v. Department of Health, 716 F.2d 67 (7th
Cir. 19853).
12. Furthermore, retaliation claims are disparate treat-
ment claims. Thus, Garrison is required to show that “but for”
the City’s desire to retaliate against him “because” he filed the
February 26, 1985, discrimination claim he would not have been
terminated. Alein vc. Trustees of Indiana University, T66 F.2d
275 (7th Cir. 1985); Ekanem v. Health & Hospital Corp., 724
F.2d 563 (7th Cir. 1985).
13. Garrison's claim of retaliation under Title VIL and $1981
fails on its merits. Defendant did not receive a copy of Gar-
rison’s February 26, 1985, complaint of discrimination until
after March &, 1985, which was after CEMD decided to termi-
nate Garrison and after he had filed a grievance over CEMD's
action. Thus, CEMD could not have been motivated by the fact
Garrison had filed a charge, because Garvie was not even aware
Garrison had done so when he made his determination. Fur-
thermore, as noted earlier, the City has articulated non-
retaliatory reasons for its termination of Garrison which have
not been shown to be a pretext for retaliation.
12 U.S.C. $1985 Claims
14. Although Garrison's Complaint contains an allegation
of violation of 42 ULS.C. §1985, he did not argue or raise those
issues in his pre-trial brief, nor were they raised during trial or
B-19
at final argument. However, since they have not been with-
drawn by Plaintiff, the Court will now address those issues.
I. Garrison alleges violations of 42 U.S.C. $1983. The
doctrine of respondeat superior cannot be used in a §1983 claim
to impose liability against the City. Monell v. New York City
Dep't of Social Services, 436 U.S. 658 (1978). Neither is the
City’s acquiescence in an isolated personnel action taken by its
municipal officials sufficient to impose liability under $1983.
City of St. Louis v. Paprotnik, W088. Ct. 915 A988); Archie v.
City of Racine, 847 F.2d 1211 (7th Cir. 1988); Woods +. City of
Michigan City, 1988 U.S. Dist. LEXIS 4461 (N.D. Ind. 19s).
Garrison's $1983 claims, therefore, fail. Furthermore, equal
protection claims based on alleged race discrimination require
Garrison to prove intentional discrimination because of his
race. David kK. «. Lane, 839 F.2d 1265 (7th Cir. 1988); Bloow-
cuthal v«. Lavelle, O14 F.2d 1139 (7th Cir. 1980). For the reasons
cited above involving the Title VII and §1981 race discrimina-
tion claims, Garrison's claims fail.
16. Considering the record as a whole, each and every one
of Garrison's claims fail, and the City is entitled to judgment,
together with costs.
17. To the extent necessary to support the Court’s judg-
ment in this action, any finding of fact may be considered a
conclusion of law, and any conclusion of law may be considered a
finding of fact.
‘s/ William E. Steckler
Judge, United States
District Court
Date: November 28, 1988
‘
\
C-1
Appendix C
C-2
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
JUDGMENT — WITHOUT ORAL ARGUMENT
Date: July 18, 1990
BEFORE:
Honorable Walter J. Cummings, Circuit Judge
Honorable Harlington Wood, Jr, Circuit Judge
Honorable Wilbur F. Pell, Jr., Senior Cireait Judge
No. 89-1046 -
VrEON GARRISON,
Plaintiff - Appellant
v.
Ciry oF INDIANAPOLIS and INDIANAPOLIS
DievARTMENT OF ADMINISTRATION,
Defendants — Appellees
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division No. 86 C 1387,
Judge William E. Steckler
This cause came before the Court for decision on the record
from the above mentioned district court.
On consideration whereof, IT IS ORDERED AND
ADJUDGED by this Court that the judgment of the District
Court in this cause appealed from be, and the same is hereby,
AFFIRMED, in accordance with the order of this Court
entered this date.
IP ds ont!
Diane PAR mh VE Ae incl ee lee, ape ne
net tap a BOD ee EN
C-3
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 11, 1990*
July 18, 1990.
Before:
Hon. Wauren J. CUMMINGS, Cirenit Judge
Hon. Harnincron Woon, Jr., Circuit Judge
Honorable Winner FL Peer, Jr., Senior Cirenit Judge
Vtion GARRISON, ) Appeal from the
PlaintiffAppellant, ) United States District
) Court for the
No. 89-1046 ) Southern District
) of Indiana,
Vs. ) Indianapolis
) Division.
Ciry oF INDIANAPOLIS and ) No. 86 C 1387
INDIANAPOLIS DEPARTMENT OF _ )
ADMINISTRATION, ) William E. Steckler,
Defendants-Appellees. ) Judge.
ORDER
Appellant Veon Garrison appeals from the district court’s
entry of judgment in favor of defendants in this civil rights
action alleging discharge from employment based on racial
discrimination. We affirm.!
After preliminary examination of the briefs, the court notified the par-
ties that it had tentatively concluded that oral argument would not be helpful
to the court in this case. The notice provided that any party might file a
“Statement as to Need of Oral Argument.” See Fed. R. App. P. 34(a); Circuit
Rule 34). No such statement having been filed, the appeal is submitted on
the briefs and record.
' Appellees filed a motion to strike portions of Garrison’s Third Initial
Brief, arguing that his brief is not in compliance with two previous orders of
this court which granted appellees motions to strike. Given our disposition of
the case we deny this motion, but note that we have not considered any
material outside of the district court record.
C-4
I.
The details underlying Garrison’s action were adequately
presented by the district court and will not be repeated here.
In short, Garrison, who is black, was a vehicle maintenance
employee with the City of Indianapolis. He was discharged
from his position after being accused of stealing city property.
Garrison claimed the termination was actually the result of
racial discrimination, and filed an action in district court under
42 U.S.C. §§1981, 1983 and 200e et seq.. The district court held
a three-day bench trial, and entered judgment in favor of the
city. Garrison raises three issues on appeal from that judg-
ment.
II.
Our review of the district court’s decision that the city did not
intentionally discriminate against Garrison is limited to deter-
mining whether that decision was clearly erroneous. Siaison
. Elinhurst Chrysler Plymouth, 882 F.2d 1235, 1237 (7th Cir.
1989); Doe v. First National Bank of Chicago, 865 F.2d 864, $74
(7th Cir. 1989). To reverse such a finding, we must be “left with
the definite and firm conviction that a mistake has been com-
mitted.” Andersen v. City of Bessemer City, 470 U.S. 564, 573
(1985) quoting United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948)). The fact-finder’s choice between two
permissible views of the evidence cannot be clearly erroneous.
Swanson, 882 F.2d at 1237-38.
III.
Garrison first challenges the district court’s finding that he
Was not similarly situated to the white employees with whom
he compared himself. The court found that of the five white
employees Garrison compared himself to, two were members
of management rather than hourly employees, and three had
much more seniority than Garrison. In Doe, 865 F.2d at $77, we
held that an employee’s long tenure and generally strong
employment record were properly considered by the district
court in finding that plaintiff was not similarly situated to
certain other employees. Moreoever, the district court in our
case found that the acts of these employees were sufficiently
different than Garrison's since none of them had been accused
of theft of city property. Since the court’s finding that the other
employees were not similarly situated was plausible, it must
stand. Chesser v. Illinois, 895 F.2d 330, 334 (7th Cir. 1990).
Second, Garrison challenges as clearly erroneous the district
court’s finding that defendants’ articulated reasons for dis-
charge were not a pretext for discrimination. Again, we dis-
agree. Where, as here, the district court’s finding is based
heavily upon credibility determinations, we must be even more
deferential to the district court’s decision. Doe, 865 F.2d at 874.
The court specifically credited the testimony of Charles Chap-
man, who was the primary witness to the acts upon which the
discharged was based: the stealing of a car battery and three
other incidents of misappropriating city property. The reason-
ableness of the city’s investigation of the reports of Garrison's
thefts was also a determination based significantly upon cred-
ibility, and we believe the evidence presented by the city was
more than sufficient to prevent a clearly erroneous determina-
tion on review. Following Chapman's eyewitness account of the
theft of the battery, the city investigated Garrison’s work
orders, checked its inventory, took depositions of two wit-
nesses, located voided parts requisition forms, and received
the input of counsel. When the city confronted Garrison with
this information he provided an explanation of the facts which
Was inconsistent with the eyewitnesses’ testimony ‘and the
other facts the city had gathered. The City Personnel Director
upheld the termination in Garrison's grievance procedure, as
did an impartial arbiter after a full hearing. The only evidence
offered by Garrison to refute the legitimacy of the city’s prof-
fered reasons Was his testimony that he did not commit the
thefts of which he was accused. Given the evidence presented
by the city, we cannot find clearly erron¢ous the district court's
C-6
finding that the city’s legitimate reason for discharge (theft of
city property) was a pretext for discrimination.
Garrison's final argument on appeal is that his proof was
“sufficient to support the inference of discriminatory intent and
constitute a case of discriminatory discharge.” If Garrison’s
argument is taken to mean he made out a sufficient prima facie
case of discrimination, his argument is without merit since
such presumptions and burden shifting are irrelevant once a
discrimination case goes to trial.
| W Jhen the defendant fails to presuade the district court
to dismiss the case for lack of a prima facie case, and
responds to the plaintiffs proof by offering evidence of the
reason for plaintiffs rejection |or dismissal], the factfinder
must then decide whether the rejection was discrimi-
natory within the meaning of Title VII. At this stagé, the
McDonnell-Burdine presumption ‘drops from the case,’
. and ‘the factual inquiry proceeds to a new level of
specificity.’ . . .
The ‘factual inquiry’ ina Title VII case is ‘| whether] the
defendant intentionally discriminated against the plain-
tiff... .. In short, the district court must decide which
party's explanation of the employer's motivation it
believes.
U.S. Postal Service Board of Governors v. Aikens, 460 U.S.
711, 714-16 (1983) (citations omitted); see also Yowell v. United
States Postal Service, 810 F.2d 644, 647 (7th Cir. 1987).
If we instead interpret Garrison's argument to challenge the
ultimate finding of no discriminatory intent by defendants, we
still find no merit to the contention because we hold that the
district court's decision was not clearly erroneous. There was
more than enough evidence supporting the city’s explanation of
its motivation to prevent a holding here that the district court
- The city also presented evidence that in the recent past, four employees
other than Garrison had been charged by the city with theft of city property,
al] were terminated, and all were white.
Ae ee Oe NT to
C-7
was Clearly erroneous in believing that explanation. Given the
two findings we upheld above, the district court did not commit
flear error in finding that Garrison’s race was not a ‘but for’
cause of his termination, Doe, 865 F.2d at 875, but rather that
the termination was based on his alleged theft of city property.
The district court’s grant of judgment to defendants is
AFFIRMED.
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