Petition for Writ of Certiorari — Plaisance v. Travelers Insurance

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SuUpremé Court, U.S.

FILE D

CASE NO 9-3 0.5 AUG 2 2 1995

aissier Per: . seas *

IN THE SUPREM® COURT

OF THE UNITED STATES OF AMERICA

OCTOBER TERM, 199___

KENNETH M. PLAISANCE,

Petitioner,

TRAVELERS INSURANCE CO., Et Al.,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

K -nneth M. Plaisance

i titioner Pro Se

267 North Miro Street

New Orleans, Louisiana 70119

Telephone: (504) 945-4176

A. QUESTIONS PRESENTED FOR REVI2 W

l. Did the lower courts committ mznifest error

and violate 28 U.S..", section 636(b)and(c) by appointing

the magistrate(without the consent of the petitioner) to

dispose of the case, and did they committ manifest

injustice by adopting the magistrate’s recommendation to

deny petitioner's motion for summary judgment and

denying petitioner rig it to trial by jury and then granting

defendant's motion for summary judgment to dispose of the

case?.

2. Did the U.S. District Court for the Northern

District of Georgia(through the magistrate) affirmed by the

U.S. Court of Appeals violate and circumvent applicant's

constitutional right to a trial by jury as mandated by the

Seventh Amendment of the U.S. Constitution and 42

U.S.C. Section 1981(a)(c) of the 1991 Civil Rights Act

through Summary Judgment proceedings?

3. Did the lower courts committ manifest erred

by denying plaintiff's motion for summary judgment based

on Rule 36 of the Federal Rules of Civil Procedure?

4. Did the lower courts err by granting

defendant's motions for summary judgment by failing to

apply the “"Governig Substantive law” of discrimination

in connection with summary judgments as pursuant to Rule

56 of the Federai Rules of Civil Procedure?

1 Should Summary judgments be sparingly

used and then only in rare instances. Pollar v. Columbia

Broadcasting System, Inc., 368 U. S. 464, 473, 82 S.Ct.

486, 7 L.Ed 458, 464(1962), Adickes v. Kress, 398 U. S.

144, 90 S.Ct. 1598, 26 L.Ed. 142(1970), Nathanson v.

Medical College of Pennsylvania, 926 F.2d 1368 (3rd Cir.

i991). Johnson v. Minnesota Historical Society, 931 F.2d

1239 (8th Cir. 1991)?

6. Does this ruling set dangerous precedent that

acts as a deterrent for persons with limited means to bring

a discrimination claim.

case.

Aw >

LIST OF PARTIES

Names of all parties appear in the caption of the

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW... i

Lae UP FTE ooh 0 hese knees does ii

Teds OP CORN EEe 6 6 6 ekki cee ces il

TABLE OF AUTHORITIES ............ vii

REFERENCE TO THE OFFICIAL AND

UNOFFICIAL REPORTS OF OPINIONS ... 1

STATEMENT OF THE GROUNDS ON WHICH

JURISDICTION OF THE SUPREME COURT

Rs Br ee ee Poa a ae ]

THE STATUTES AND REGULATIONS

INVOLVED IN THE CASE ... 2.22.00. ]

CONCISE STATEMENT OF THE CASE.... 2

(INAPPLICABLE)

BASIS FOR FEDERAL JURISDICTION

IN THE COURT OF FIRST INSTANCE ..... 5

DIRICT AND CONCISE ARGUMENT

AMPLIFYING THE REASONS RELIED

ON FOR THE ALLOWANCE OF WRIT .... 5

1. The decision below conflicts with prior

decision regarding 28 U.S.C. Section 636

by appointing the magistrate to determine

summary judgment without consent... . . 5

y 5 The decision below conflicts with prior

decision regarding the court's failure to

give full faith and credit to an order of

mother Gistiict COMM... oe ace ee 8

See

3. The decision below conflicts with prior

decision regarding Rule 36 of the

Federal Code of Civil Procedure... ... 11

4, The decisions below conflict with this

court and other circuits regarding

summary judgments under Rule 56

of the Federal Rules of Civil Procedure

when the party established conclusive

facts as pursuant to rule 36.......... 13

>. The decision below conflicts with prior

decisions regarding the right to trial

by jury in discrimination cases....... 15

6. The lower courts’ decision conflicts with

this Court and other circuits regarding

summary judgment involving

discrimination, retaliation; and

the right to a jury trial............. 20

: A The decision below conflicts with prior

decisions of this Court regarding the

Civil Rights Act as amended in 1991... 22

8. Below are specific cases on point when

reviewing summary judgment involving

a ee 23

9. The lower courts’ decision conflicts with

other circuits regarding summary

judgments involving discrimination.... 24

10. The decision below conflicts with other

circuits regarding 42 U.S.C. Section

2000(a) (anti-retaliation statute) and

constructive discharge policy......... 27

11. | The lower courts decision conflicts with

this court's ruling regarding 42 U.S.C.

Section 1981 and the Patterson decision. . 28

ESE ee ee eee 30

CERTIFICATE OF SERVICE ............----- 32

K. APPENDIX

ili

TABLE OF CASES AND AUTHORITIES

PAGE

Adickes v. Kress & Co.,

398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed. 142 (1970) i, 23, 30

Aetna Ins. Co. v. Kennedy,

301 U.S. 389, 57 S.Ct. 809, 81 L.Ed 1177 (1937)... 17

Airco In ial Inc. v.

Teamsters Health & Welfare Pension Fund,

850 F.2d 1028, 1037 (3rd Cir. 1988). ............ 1]

American Auto. Ass'n v AAA Legal Clinic,

SR we Pilg h. Yo a.) ee 12

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)18-22

Bailey v. Central Vermont Railway

319 U.S. 350, 87 L.Ed. 1445 (1940). ............. 17

Beacon Theatres, Inc. v. Westover

359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988(1959).... 16

Benson v. Allphin.,

544 F: Supp 464 O4.D TL 1967)... 2. cee eee: 24

Borgh v. Gentry,

953 F.2d 1309, 1311 (11th Cir. 1992)............ 17

Branch-Hines v. Hebert,

SD Fea Bake Ce ey NE 6 ea ee ee eh a seees 14

Celotex Corp. v. Catrett,

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) 20

City of Morgantown v. Royal Ins. Co.,

337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed 1347 (1949)... 16

Conrad v. Delta Airlines, Inc.

SO8 Fe De ee es a ce eh eecece ee eaes 24

Cox v. C.H. Masland and Sons, Inc..,

GOT Fae Se Ce Ge PT 8 6 oo bw oS eee es 17

Curtis v. Loether,

415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed 2d 260 (1974) . 16

Dace v. ACF Industries, Inc.,

722 F.2d 376-377 (8th Cir. 1983)................ 7

Dairy Queen, Inc. v. Wood

369 U.S. 469, 82 S.Ct. 894, 8 L.Ed. 2d 44 (1962)... .13

Derr v. Gulf Oil Co.,

796 F.2d 340 (10th Cir. 1990).................. 27

Donovan v. Carls,

703 F.2d 650 (2nd Cir. 1983)................ 2: 33

Dukes v. South Carolina Ins. Co.,

TIO F.2d S45 (Sth Cir. 1985) ................. 13

EEOC v. Levi Strauss & Co.,

515 F.Supp. 640 (N.D. Illinois, E.D. 1981)........ 27

EEOC v. Jordan Graphics, Inc.,

135 FRD 126 (WD,NC 1991)................ 4,8

First Natl Bank of Ariz. v. Cities Services Co.,

391 U.S 253, 88 S.Ct 1575, 20 L.Ed.2d 569 (1968). 25

Frazier v. Heebe

482 U.S. 641, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987) . 9

Griggs v. Duke Power Co.,

401 U.S. 424, 91 S. Ct. 1089, 28 L.Ed 2d 158 (1971) 14

Hall v. Sharpe,

812 F.2d 644,647 (11th Cir. 1987)............. 5, 6

Halgof v. Northwest Rehabilitation, Inc.,

910 F.2d 492, 495 (8th Cir. 1990) ............. 2

Hayden v. Rand Corp.

605 F.2d 453,455 (9th Cir. 1979)............... 24

Held v. Gulf Oil Co.,

684 F.2d 427 (10th Cir. 1983)................ 27

Henson v. Falls,

912 F.2d 977(8th Cir. 1990)................. 7

Hill v. Goodyear Tire & Rubber Inc.,

BES Foe OF? 000 Cie. TON ona kv ik soe Sohne nce 29

Hill v. M-tron Indus., Inc.,

827 F.2d 363, 364 (8th Cir. 1987), cert denied

488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989). 25

Hulsey v. f Texas,

_ 2 & BF. Te a. |) era ee 12

In re Zweibon,

55 Fae Pea. ee Gh. Cor 1977)... ce cee n se 16, 18

Jackson v. University of Pi h

Sab F.20 a0 Cate CH. BREED vc cw ce vie ewences 25, 26

Jeffrey v. State Board of Education Of the State of

Georgia, 896 F.2d 507 (lith Cir. 1990)............. 7

Johnson v. Minnesota Histori iety,

931 F.2d 1239 (8th Circuit 1991)............ i, 22, 24

Kent v. Howard,

801 F. Supp 329, 336 (S.D.Cal 1992)............. 19

Landgraf v. USI Film Product ,

507 USS. Ca ae id ss ae are a ee 18

Leichihman _v. Pickwick Int'l,

814 F.2d 1263, 1268 (8th Cir.) cert denied

484 U.S. 855, 108 S.Ct. 161, 98 L. Ed.2d 116 (1987) . . 25

Lytle v. Household Mfg., Inc.,

494 U.S. 545, 110 S. Ct. 1331, 108 L.Ed 2d 504 (1990) 17

LoConte v. Dugger,

847 F.2d 745, 750 (11th Cir. 1987

cert. denied 109 S.Ct 397 (1988)................ 6

Lorillard v. Pons,

434 U.S. 575, 98 S.Ct. 866, 55 L.Ed. 2d 40 (1978)... 17

Lynch v. Freeman,

7h * 8 F f+ 2 |, Pe ee eee 28

Matsushita Elec. Ind. Co. v. Zenith Radio Corp.,

475 U.S. 574, 106 S.Ct.1348, 89 L.Ed.2d 538 (1986) 20

Mathews v. Weber,

423 U.S. 261, 96 S.Ct 549, 46 L.Ed 2d. 483 (1976)... . 5

vil

McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) . . 23

Mount Healthy City School Board v. Doyle,

429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) .. . 24

Patterson v. McClean Credit Co.,

491 U.S. 164, 109 S.Ct. 2363 (1989)............. 29

Perkins v. Spivey v. General Motors Corporation,

911 F.2d 2d 22 (6th Cir. 1990)................. 17

Pettway v. American Cast Iron Pipe Company,

Gis Fame Dew Gree Ge BOUIN. ie ek vec ee cvie ns 27

Poller v. Columbia Broadcasting System, Inc.,

368 U.S. 464, 82 S.Ct 486, 7 L.Ed. 458, (1962)..... i, 24

Prather v. Dayton Rowee and Light Co.,

918 F.2d 1255 (6th Cir 1990)................. 29

Rainbolt v Johnson,

Gip Paige Per ORG. 8088) wc 5 ice ce cece cs 12

Rivers v. Roadway Express Inc.,

U7 US. —_ , (1993), No. 92-936............ 28

Roscello v. Southwest Airlines Company,

og iy A. Lo | 17

Rosen _v. Thornburgh,

928 Fd.2d 528 (2nd. Cir. 1991)................. 26

Ross v. Berhard,

396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970) .. 17

Saint Mary’s Honor Center v. Hicks..

509 U.S. , 113 S.Ct.____, 125 L.Ed.2d 407 (1993). 23

Stubbs _v. Commissioner,

ie we bri) fe ae) |) a 8, 12

Sussman v. Salem, Saxon & Nielson, P.A.,

815 F. Supp 1447(MD Florida 1992) ............ 19

Talley v. United States, 990 F.2d 695 (ist Cir. 1993). 12

Texas Department of Community Affairs v.Burdine,

450 U.S. 248, 101 S.Ct.1089, 67 L.Ed 2d 403 (1983) . .23

Vil

Turner v. City Monroe,

634 So.2d 981 (La. App. 2 Cir. 1994)............. 32

Tyler v Pennsylvania, Dept. of Revenue,

793 F. Supp 98, (MD Pa. 1992)................ 19

United States v. Diebold, Inc.,

369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d. 176 (1962)... 20

U.S. V. Kasuboski,

fs tae fe Re, 7) rr 12

United States v. Lane,

- fk Be Yi Ge a ee 12

United States Postal Service Board of Governor v.

Aikens , 460 U.S. 711, 103 S.Ct. 1478

Fear Re EP CEI bo eve aed e cence eee tee 23, 26

United States v. Lane,

ote pe. Fi Ye Fe. + Bene 9

Wardwell v. School Board of Palm Beach County,

786 F.2d 1554, 1557 (11th Cir. 1986)............. 27

Walker v. Pettit Construction Corp.,

605 F.2d 128, 131 (4th Cir. 1979)................ 27

Watson _v. Fort Worth Bank and Trust,

487 U.S. 977, 108 S.Ct.2777, 101 L.Ed. 2d 827 (1988). 15

Western Elec. Co. V. Milgo Elec. Corp.,

573 F.2d 255, 257(Sth Cir. 1978) cert denied........ 17

Weaver v. Casa Gallardo,

ee ee Ce Ce fi en eae ek ee ee bee ess 28

Welmer v. Tennessee Eastman,a division

of Eastman Kodak, 919 F.2d 1160 (1990)......... 29

Williams v. First Union National Bank of N.C.,

Se eee ee I oe bree ce ok Gre wee we lce es 28

Wilson v. Belmont Homes, Inc.,

Pee ee ee GE, SE soo 5s wc a eb awe ee nee 18

U.S. Constitution

Pee Paes ee Ge GD eee keene ee ees 10

Seventh Amendment of the VU. S. Constitution... . . 6, 15

Article III, section 2 of the United States Constitution. 6

Statutes

28 U.S.C. Section 636 (b)(1)(A) and (c)........ 24, 5 6

Be Cs GU TI. ob Skewb be cece dwess 4

28 U.S.C. section 1331, section 1343, section 1339 ....5

ee Mes a es See i wee eee oss 2,9

42 U.S.C. section 2000e-5(f)(3)................ 35

42 U.S.C. Section 1981(a) (c).......... i, 2, 18, 28, 29

Section 704 of Title VII, 42 U.S.C. section 2000(a). 27, 28

Title VII of the Civil Rights Act, Sect 105........ 16

42 U.S.C.S. section 2000e-5(k).............. 28, 29

Rule 15 of the Federal Rules of Civil Procedure.... 19

Rule 36 of the Federal Rules of Civil Procedure 2,8, 11, 12

Rule 38 of the Federal Rules of Civil Procedure 4, 16, 20

Rule 56 of the Federal Rules of Civil Procedure. 2, 10, 15

Local Rule 225-1(a)of the U.S. District Court of the

Northern District of Georgia............... 8, 9, 10

Local Rule 220-1(b) of the Uniform Local Rules

of the United States District Courts for

the Norther District of Georgia............... 19

D. REFERENCE TO THE OFFICIAL AND

UNOFFICIAL REPORTS OF OPINIONS

As far as Plaintiff is aware, the district court and

court of appeals decisions are unreported. Both decisions

are reproduced in the appendix.

E. STATEMENT OF THE GROUNDS ON WHICH

JURISDICTION OF THE SUPREME COURT IS

INVOKED.

(i) Date of Decisions of U. S. Court of Appeals for

the Eleventh Circuit sought to be reviewed: May 24, 1995.

(ii) None. (iii) Inapplicable. (iv) The statutory provision

believed to confer on this Court jurisdiction to review by

writ of certiorari is 28 U.S.C. section 1254(1) et seq.

F. STATUTES AND REGULATIONS INVOLVED

Seventh Amendment of the U. S. Constitution

28 U.S.C. Section 636

28 U.S.C. Section 2071

42 U.S.C. Section 1981(a) (c)

Section 704 of Title VII, 42 U.S.C. section 2000(a)

Rule 36 of the Federal Rules of Civil Procedure

Rule 56 of the Federal Rules of Civil Procedure

Rule 2.25 of the Uniform Local Rules

of the United States District Courts for

the Norther District of Georgia

See Appendix

G. STATEMENT OF THE CASE

Petitioner brought this action seeking relief as

authorized by Title VII of the Civil Rights Act as amended

1991, the 14th Amendment of United States Constitution,

and damages for constructive discharge. Petitioner, a

Techinical Specialist for Travelers’ Insurance Co., Danver

Office applied for a vacate techinical specialist position at

Travelers--Atlanta Office. Petitioner also requested to be

considered for a vacate supervisor position at Travelers’

Danvers Office. Although petitioner was highly more

qualified , respondent chose less qualified white Americans

to file those job vacancy. On October 30, 1990, plaintiff

filed with the Equal Employment Opportunity Commission,

charging Travelers Insurance Co. with discrimination and

retaliation. Plaintiff supplied the EEOC the names of

several black employees for statements regarding racial

discrimination. The EEOC failed to question the blacks

employed by Travelers. On September 18, 1992, (two

years later) the EEOC Area Director, Charles Looney

concluded based on faulty investigation that there was no

evidence of racial animus towards the claimant, and

determined that there was no violation o: Title VII of the

1964 Civil Rights Statute. On December 18, 1992,

appellant timely filed Civil Action No. 92-4184 in the U.S.

District Court of the Eastern District of Louisiana.

FACT MATERAL TO THE QUESTIONS

PRESENTED

l. On January 13, 1993, Petitioner propounded

request for admission of facts upon Travelers. On January

25, 1993, defendant acknowledged receiving plaintiff's

discovery. On March 10, 1993, Magistrate Lemelle of the

Eastern District of Louisiana granted defendant a 30-day

extension of time and ordered defendant to answer

plaintiffs discovery after transferring the case to the

Northern District of Georgia. On May 11, 1993, the case

was assigned to Judge Robert Vining Jr., and was referred

to Magistrate William L. Harper. On June 16, 1993, Ms.

Dent, counsel for defendant, requested a leave of absence

until October of 1993. The Magistrate Harper granted the

leave of absence. Ms. Dent withdrew from the case. John

Wymer, enrolled as substitute. On August 4, 1993,

defendant answered the request. Traveler's admitted:

a. that it failed to promote or transfer eight

Black americans but grant promotion/transfers to several

White american,

b. that there are, or were no blacks in the

Technical Special unit in the Atlanta Office,

C. that the manager of the Atlanta Office,

received on or about January 12, 1990, petitioner's cover

letter along with a resume requesting to be considered for

any Technical Specialist position that may become

available,

d. That on Decembe* 29, 1989, Travelers

Insurance Co., in Atlanta accepted petitioner's employment —

application requesting to be considered for any claims

representative, technical specialist, or supervisory position.

e. That the salary of white persons hired in

1989 as a claims representative or technical specialist was

much higher than blacks hired in that same year.

These admissions revealed discriminatory intent and

illegal employment practices on the part of the defendant.

Petitioner a Travelers’ employee should not have been

considered an outside candidate for the vacant job.

Petitioner should have been hired for the position in

Atlanta because of respondent's promote within policy. On

September 24, 1993, plaintiff filed a motion for summary

judgment based on the admissions. On November 30,

1993, the magistrate recommended denial of the motion for

summary judgment and stated that the answer to the

requests were timely.

ya On September 24, 1993, petitioner filed an

unopposed demand for a jury trial in the form of a motion

to amend. On November 30, 1993, the lower court

conceded that the jury demand was unopposed but,

recommended denial of petitioner's demand for a jury trial.

On December 30, 1993, plaintiff requested additional time

for discovery. Magistrate Harper denied plaintiffs request.

On January 1, 1994, Judge Vining adopted the seen canal S

recommendation.

3 On January 20, 1994, defendant filed a

motion for Summary Judgment. On March 2, 1994, the

magistrate recommended that defendant's motion for

summary be granted. On May 20, 1994, the district court

adopted (without de novo review) the magistrate’s

recommendation and ruled in favor of defendant. Final

judgment was entered on May 23, 1994. On June 1,

1994, plaintiff appealed from this decision. On May 24,

1995, without oral argument, the Eleventh Circuit affirmed

the lower court's decision.

I. BASIS FOR FEDERAL JURISDICTION

IN THE COURT OF FIRST INSTANCE

The U.S. District Court for the Northern District of

Georgia had original jurisdiction under related statutes: 28

U.S.C. section 1331, section 1343, section 1339, 42 U.S.C.

section 2000e-5(f)(3), 42 U.S.C. section 1981(a)(c).

J. DIRECT AND CONCISE ARGUMENT

AMPLIFYING THE REASONS FOR

FOR GRANTING THE WRIT

The decision below conflicts with decisions of this

Court on important issues that has created substantial

uncertainty in the lower courts. The lower court's decision

affects federal procedure and the constitutional right to a

trial by jury being violated by summary judgment

proceedings

1. The decision below conflicts with prior decision

regarding 28 U.S.C. Section 636 (b)(1)(A) and (c)

by designating the magistrate to hear and

determine summary judgment without consent.

The purpose of 28 U.S.C. section 636(b) is to

increase the efficiency of federal judiciary.' Mathews v.

Weber, 423 U.S. 261, 96 S.Ct 549, 46 L.Ed 2d. 483 (1976)

According to Hall v. Sharpe, 812 F.2d 644,647

(11th Cir. 1987) the statute requires that parties and

District Court consent to transfer the case to the

magistrate. Explicit, voluntary consent is crucial to this

procedure, and concerns about the constitutionality of the

conduct of trials and entry of judgment by non-Article II

judicial officers. Consent also ensures against the

wholesale delegation of certain classes of cases and

discrimination among classes of litigants. The Article

III judge should be the ultimate adjudicatory power.

Petitioner never agreed or consented to Magistrate

Harper to conduct the proceedings of this case, thus, the

district court violated (c) of 28 U.S.C. section 636.

Furthermore, Magistrate Harper violated (b)(1)(A) and (B)

of 28 U.S.C. section 636 because the magistrate may not

hear or determine summary judgment.

In addition, according to LoConte v. Dugger, 847

F.2d 745, 750 (11th Cir. 1987 cert. denied 109 S.Ct 397

(1988), Hall v. Sharpe, 812 F.2d 644,647 (11th Cir. 1987),

" 28 U.S.C. section 636(b)(1

(A) provides that:

Notwithstanding any provision of law to the contrary-

a judge may designate a magistrate to hear and

determine any pretrial matter pending before the

court, except... for summary judgment.

recommendations under subparagraph (B) with the

court and a copy shall be mailed to all parties.

Within ten days after being served with a copy, any

party may serve and file written objections to such

proposed findings. A judge of the court shall make a

de novo determination of the report to which the

objections are made.

(1) Upon the consent of the parties, a full-time

United States magistrate...may conduct any or all

proceedings in a jury or nonjury civil matter..

Jeffrey v. State Board of Education Of the State of

Georgia, 896 F.2d 507 (11th Cir. 1990), the 11th Circuit

Court Appeals concluded that the district court shall

conduct a de novo review of the magistrate

recommendation and stated that a de novo review of the

record is essential to the constitutionality of section 636. It

requires independent consideration of factual issues based

on the record. In the instant case, the district court failed

to conduct a de novo review. Furthermore, in Henson v.

Falls, 912 F.2d 977(8th Cir. 1990), the 8th Circuit Court

of Appeals held that when de novo review is required, the

district court must consider the actual testimony, not

merely review the magistrate’s recommendation. It goes on

to say that when questions of fact are involved, our

longstanding commitment to preserving a litigant’s right to

a jury trial dictates that the decision be rendered based on

a jury's consensus rather than on one mind. Dace v.

ACF Industries, Inc., 722 F.2d 376-377 (8th Cir. 1983).

The court concluded that plaintiff was denied his Seventh

Amendment constitutional right to a jury because the

Magistrate granted a directed verdict against the plaintiff.

The court reversed the granting of a directed verdict and

remanded the case for trial. What is significant about the

Henson case is that the same requirement of a directed

verdict-- giving the nonmovant the benefit of all reasonable

inferences is found in a motion for summary judgment.

In this case, the lower courts was biased and committed

manifest injustice by adopting magistrate’s

recommendation to deny appellant’s motion for summary

judgment and then granting defendant's motion for

summary judgment. The lower courts erred by denying

petitioner's constitutional right to trial by jury through

summary judgment proceedings..

2. The decision below conflicts with prior decision

regarding the court's failure to give full faith and credit

to an order of another district court.

In January 1993, petitioner served defendant request

for admissions of facts. The U.S. District Court for

Eastern District of Louisiana ordered defendant, Travelers,

to answer appellant's discovery request within 30 days after

the determination of a transfer of the case. The case was

transferred on May 11, 1994. The U.S. District Court for

the Northern District of Georgia totally disregarded the

orders of the United States District Court for the Eastern

District of Louisiana and allowed the respondent until

August 4, 1993 to answer. The courts below determined

that discovery, in particularly, the request for admission of

facts is subject to the jurisdiction of Local Rule 225-1(a)’

of the U.S. District Court of the Northern District of

Georgia. The lower courts were bias in their

determination.

Petitioner disagrees that defendant responded timely

and cites EEOC v. Jordan Graphics, Inc., 135 FRD 126

(WD,NC 1991), for the rule that the time to respond

begins to run on the day the request for admissions are

mailed, not from the time the party receives the request.

The courts below erred and used the local rule in

contravention to the Rule 36 of the Federal Rule of Civil

Procedure and the United States Constitution. Petitioner

strongly asserts that the Northern District of Georgia

should have given full faith and credit of the order

submitted by the Eastern District of Louisiana.

The Full Faith and Credit Clause of the United

States Constitution * requires every state to accept as valid,

without reinvestigation on the merits, every judgment or

orders of judicial proceeding rendered by a court of

another state. Both the Eastern District of Louisiana and

the Northern District of Georgia are subject to the federal

constitution. The jurisdictional requirements that must be

Satisfied by both federal courts are the same. Therefore,

under the federal due process clause and under the full

faith and credit clause jurisdiction, any order or judgment

rendered in one federal court should be recognized in

another federal court. The Louisiana U.S. District Court's

order should have been recognized by the U.S. Court for

the Northern District of Georgia.

Furthermore, petitioner strongly asserts that local

rule 225.1(a) of U.S. District Courts for the

NorthernDistrict of Georgia is in violation of the U.S.

Constitution by impairing due process and equal protection

of law, and is in contravention to Rule 36 of the Federal

Rules of Civil Procedure.

Furthermore, 28 U.S.C. section 2071 provides that

the local rules of the District Courts shall be consistent

with the rules of practice and procedure prescribed by the

Supreme Court. Appellant cites Frazier v. Heebe, 482 U.S.

641, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987), as primary

authority for the rule that the District Court has the

discretion to adopt local rules that “are necessary to carry

out the conduct of its business,” so long as the local rule

is consistent with Federal Rules of Civil edure.

If the District Court uses a local rule inconsistently with

2 Local Rule 225-1(a) provides that:

“discovery does not commence until “30 days after

the appearance of the first defendant by answer to the

complaint.”

the principles of right and justice and arbitrarily rules

against a party, the rule is improper and the action should

be vacated and remanded. Local rule 225.1(a) is in

contravention to Rule 36 of the Federal Rules of Civil

Procedure. The Georgia District Court used the local rule

to disregard appellant's factual evidence. If the request for

admission of facts were allowed into evidence, it clearly

and convincingly proves that the defendant statistically

disallowed transfers to petitioner and other African-

Americans within Travelers; revealed that the Atlanta

Office had received plaintiffs resume and application;

revealed that defendant stated that it was trying to fill the

technical specialist position from within; and that plaintiff

met cut off date for inside candidates. The evidence

revealed that Plaintiff was the most qualified inside

candidate for the position. To say otherwise would be

pretext.

Furthermore, Article VI, section 2 of the United

States Constitution declares that this Constitution, and the

Laws of the United States... shall be the ‘Supreme Law of

the Land’... and the Judges in every State shall be bound

- Article IV Section 1 of the United States Constitution,

28 U.S.C. Section 1738, Full Faith and Credit Ciause

Provides: (In Pertinent Parts)

The records and judicial proceedings of any Court of

any such States, Territory or Possession, or copies

thereof, shall be proved or admitted in other courts

within United States. Such Acts, records and

judicial proceedings or copies thereof, shall

have the same full faith and credit in every

court within the United States as they have

by law usage in the court of such State, from which

they are taken...

thereby... The Supremacy Clause is relevant in this

Situation because it applies to the Federal Rule of Civil

Procedure and it demands that judges in every state shall

adhere to the Federal laws. The court below had an

affirmative duty to apply Rule 36 of the Federal Rules of

Civil Procedure to the instant case. Defendant delayed to

answer seven months. Appellant strongly asserts that if

there is any ambiguity or conflict of law between the

Federal Rules and the local rules and between two U.S.

Courts of Jurisdiction, the Federal Rules of Civil Procedure

should preempt and take precedent over the United States

District Court's local rules.

a The decision below conflicts with prior decision

regarding Rule 36 of the Federal Code of Civil

Procedure.

Rule 36 of the Federal Code of Civil Procedure’ is

designed to expedite litigation, and it permits the party

securing admissions to rely on their binding effect. Rule

36 serves two vital purposes, first to facilitate proof with

respect to issues that cannot be eliminated from the case,

and second, to narrow the issues by eliminating those

that can be eliminated. Rule 36 Clearly provides that a

party must answer each admission within 30 days or the

matter is deemed admitted. Several U.S. Court of Appeals

have held that an admission of facts made under Rule 36 is

an “unassailable

Statement of fact that narrows the triable issues of the

case.” Airco In ial Inc. v. T. ers Health &

Welfare Pension Fund, 850 F.2d 1028, 1037 (3rd Cir.

1988). According to Rainbolt v Johnson, 669 F.2d 767

(D.C. 1981), the Court of Appeals reversed the lower

court's ruling because it failed to give binding and

conclusive effects to unanswered request for admissions.

The Court of Appeals ordered the lower court to give full

effect to appellant's request for admissions, which were

automatically deemed admitted because they were not

answered within thirty days. This clearly indicates that the

request for Admission of Facts is automatically deemed

admitted if not answered within 30 days. Stubbs v.

Commissioner, 797 F. 2d 936 (11th Cir. 1986). It also

provides that a matter admitted is “conclusively

established” and applies equally to those admissions made

affirmatively and those established by default. An

admission under Rule 36(a) is binding on the party making

the admission and cannot be contradicted. Talley v.

United States, 990 F.2d 695 (1st Cir. 1993), U.S. V.

Kasuboski, 834 F.2d 1345 (7th Cir. 1987), Donovan v.

Carls, 703 F.2d 650 (2nd Cir. 1983). Hulsey v. State of

Texas, 929 F.2d 168 (Sth Cir. 1991), American Auto.

Ass'n v AAA Legal Clinic, 930 F.2d 1117 (Sth Cir. 1991).

According to United States v. Lane, 960 F.2d 126 (11th

y Rule 36 of the Federal Code of Civil Procedure

provides:

(a) Request for admission. A party may serve

upon any other party a written request for the

admission, of the truth of any matters within the

scope of Rule (26) set forth... Each matter of which

an admission is requested shall be separately set

forth. The matter is admitted unless, within 30

days after service of the request,... the party to

whom the request is directed serves upon the party

requesting the admission a written answer or

objection addressed to the matter.... a defendant shall

not be required to serve answers or objections before

the expiration of 45 days after service of the

summons and complaint...

(b) Effect of Admission. Any matter admitted

under this rule is conclusively established....

Cir. 1992), the 11th Circuit concluded that failure to

respond to request for admissions conclusively established

those facts sought by the moving party. Stubbs v.

Commissioner, 797 F, 2d 936 (11th Cir. 1986). According

to EEOC v. Jordan Graphics, Inc., 135 FRD 126 (WD,NC

1991), the time to respond begins to run on the day the

request for admissions are mailed, not from the time the

party receives the request. The courts below contradicts its

own rulings.

The facts reveals that on January 13, 1993,

petitioner served respondents a first set of Interrogatories

and Request for Admission of Facts by the Louisiana

Secretary of State.( See Record, note: record pages are

not numbered, R. 19, Vol. 1, Certified Mail P431051815)

Defendant's failure to timely respond to request for

admissions conclusively established that 1. the defendant

discriminated against black employees in the area of

promotion and transfers, and 2. established pretext

because defendant received plaintiff's application, resume,

and cover letter before June 29, 1990, the job vacancy cut

off date for internal candidates. Petitioner was entitled to

summary judgment because he established discrimination

and because there were no disputed genuine issues to a

material fact .

4. The decision below affirmed by the 11th Circuit

Court of Appeal conflicts with this court and

other circuits regarding motions for summary

judgment under Rule 56 of the Federal Rules of

Civil Procedure when the party established

conclusive facts through Request for admissions

of fact.

Admission made under Rule 36, even default

admissions, can serve as the factual predicate for summary

judgment. Dukes v. South Carolina Ins. Co., 770 F.2d 545

(Sth Cir. 1985); Donovan v. Carls, 703 F.2d 650 (2nd Cir.

;

iii cca

1983). Petitioner asserts that the trial court erred by failing

to grant his motion for summary judgment as pursuant to

Rule 56 of the Federal Rules of Civil Procedure*® based on

defendant's failure to respond to plaintiff's request for

admission of facts. Appellant's motion for summary

judgment which was not considered based on a local rule

of the Northern District of Georgia revealed that Travelers

statistically deprived several blacks (an identifiable group)

from transfers and overlooked blacks in terms of

promotions. The respondent failed to demonstrate that the

challenged practice is job related. The information in the

request for admission of facts revealed that Travelers

statistically committed an unlawful employment practice

based on disparate impact.

The 1991 Civil Right Act declares that facially

neutral employment policies that have a disparate impact

on protected groups are discriminatory and must be

eliminated. The plaintiff must prove disparate impact by

presenting statistical evidence that a particular employment

practice of the defendant had an adverse impact on an

identifiable group. Such evidence created a presumption of

discrimination. In Griggs v. Duke Power Co., 401 U.S.

424, 91 S. Ct. 1089, 28 L.Ed 2d 158 (1971), and Watson

v. Fort Worth Bank and Trust, 487 U.S. 977, 108

S.Ct.2777, 101 L.Ed. 2d 827 (1988) the U.S. Supreme

Court held the employer has violated the Civil Rights Act®

when they have engaged in facially neutral employment

practices that have significant adverse effects on protected

groups even without proof of intent. The disparate-impact

analysis may be applied to claims of discrimination caused

by subjective or discretionary selection processes.

Travelers discriminated against petitioner in the areas of

promotion and transfers. The evidence in applicant's

summary judgment revealed that defendant admitted to

certain unlawful discriminatory acts against blacks

Americans and favored white Americans. Because of

defendant's failure to respond to this evidence, there were

no genuine issues of material facts. Therefore, petitioner

was entitled to summary judgment.

5. The decision below conflicts with prior decision

below regarding the right to trial by jury in

discrimination cases.

This Honorable Court has implicitly held that the

right to trial by jury shall by preserved. Applicant states

that his constitutional right to trial by jury has been

violated through summary judgment proceedings. The

Seventh Amendment of the United States Constitution

provides that:

“In Suit of common law... the right of trial by jury

shall be preserved inviolate.”

; Federal Rules of Civil Procedure 56 provides that:

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law.”

(e)"When a motion for summary judgment is made

and supported as provided in this section rule, an

adverse party may not rest upon the mere allegation

or denial of his pleading, but his response, by

affidavits or as otherwise provided in this rule, must

set forth specific facts showing that there is a

genuine issue for trial. If he does not so respond,

summary judgment, if appropriate, shall be entered

against him.”

According to Curtis v. Loether, 415 U.S. 189, 94 S.Ct.

1005, 39 L.Ed 2d. 260 (1974), the U.S. Supreme Court

held that the Seventh Amendment of the Constitution

entitles either party to demand a jury trial in an action for

damages. According to Beacon Theatres v. Westover, 359

U.S. 500, 79 S.Ct. 948, 3 L.ed 2d 988 (1959), this

Honorable Court heid that any seeming curtailment of the

right to a jury trial should be scrutinized with the utmost

care and ruled that plaintiff had a right to trial by jury.

[See: Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8

L.Ed.2d 44 (1962). In City of Morgantown v. Royal Ins.

Co., 337 U.S. 254, 258, 69 S.Ct. 1067, 1069, 93 L.Ed 1347

(1949), the Supreme Court held that trial by jury is a

vital and cherished right integral in our judicial system,

and a waiver of this right must be meaningful, and should

be interpreted, where possible, to avoid giving effect to

dubious waivers of rights. Moreover, “as the right of jury

trial is fundamental, we must indulge every presumption

against waiver.” In re Zweibon, 565 F.2d 742,746 (D.C.

Cir 1977), the Court of Appeals stated that Rule 38(d) was

not “intended to diminish" the constitutional right to a

trial by jury in civil cases, and should be interpreted,

where possible, to avoid giving effect to dubious waivers

. The Civil Rights Act of 1991 Section 105,

42 U.S.C.S section 2000e-2(k)(1)(A) provides that:

“ An unlawful employment practice based on disparate impact

is established under this title only if--

(i) a complaining party demonstrates that a

respondent uses a particular employment

practice that causes a disparate origin and the

respondent fails to demonstrate that the

challenged practice is job related for the

position in question and consistent with

business necessity.

of rights. [See: Aetna Ins. Co. v. Kennedy, 301 U.S. 389,

393, 57 S.Ct. 809, 811-12, 81 L.Ed 1177 (1937); Borgh v.

Gentry, 953 F.2d 1309, 1311 (11th Cir. 1992). A court's

discretion to deny a jury trial is very narrowly limited and

must, be exercised to preserve a jury trial. Lorillard v.

Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed. 2d 40 (1978). ]

In terms of discrimination and retaliation, according to

Perkins v. Spivey v. General Motors Corporation, 911 F.2d

22 (8th Cir. 1990), the Eight Circuit Court of Appeals,

remanded the entry of summary judgment on allegations of

negligent retention of an employee, and ruled appellant

must be given a jury trial. In Lytle v. Household Mfg..

Inc., 494 U.S. 545, 110 S. Ct. 1331, 108 L.Ed 2d 504

(1990), the U.S. Supreme Court remanded the lower court's

ruling dismissing appellant's discrimination case and

entered a judgment on his retaliation claim. This Court

held that when legal and equitable claims are joined in the

same action, “the right to a jury trial on the legal claim,

including all issues common to both claims, remains intact.

Moreover, the U.S. Supreme Court in Bailey v. Central

Vermont Railway 319 U.S. 350, 87 L.Ed. 1445 (1940),

ruled that the right to trial by jury is a basic and

fundamental factor of Federal jurisprudence and that where

fair-minded men might reach different conclusions as to

breach of duty, the question is for the jury. See: Roscello

v. Southwest Airlines Company, 726 F.2d 217 (Sth Cir.

1984), Ross v. Berhard, 396 U.S. 531, 90 S.Ct. 733, 24

L.Ed.2d 729 (1970), Cox v. C.H. Masland and Sons. Inc.,

607 F.2d 138 (Sth Cir. 1979). (Jury trial is appropriate in

wrongful discharge actions.) Western Elec. Co. V. Milgo

Elec. Corp., 573 F.2d 255, 257(Sth Cir. 1978) cert denied.

(We must reverse judgments founded upon an

unconstitutional denial of jury trial.) Applicant strongly

asserts that a jury may draw different conclusions contrary

to the district court and therefore, a jury trial is necessary.

Furthermore, section 102 of the Civil Rights Act of

1991 42 U.S.C. 1981(a)(c) provides that any party may

demand a Jury Trial if a complaining party seeks

compensatory or punitive damages under this section.

According to Section 102, Title VII 1991, plaintiff

may seek compensatory damages for future pecuniary

losses, emotional suffering, inconvenience, mental anguish,

loss of enjoyment of life, and other nonpecuniary losses.

According to Landgraf v. USI Film Product, 507 U.S.

____ (1994), and in Wilson v. Belmont Homes, Inc., 970

F.2d (Sth Cir. 1992) both the Supreme Court and the Fifth

Circuit Court of Appeals held that Section 102 of the

1991 Civil Rights Act authorizes jury trial. The Courts

concluded that a right to trial by jury is applicable to cases

tried or litigated after the 1991 Civil Rights Act was

enacted (November 18, 1991). On December 18, 1992,

petitioner filed his case in Federal Court. According to

Section 102, appellant has a constitutional right for a jury

trial on the substantive and factual issues of discrimination.

On September 24, 1993, appellant filed an unopposed

demand for a jury trial by amending his petition under rule

15 of the Federal Rules of Civil Procedure’ and as

pursuant to the local rules of U.S. District Court for the

Northern District of Georgia.*

On September 24, 1993, Petitioner served defendant

a copy of the motion to amend.(See excerpts 16, R. 20

Vol. 1) There was no opposition to appellant’s motion for

a jury trial, thus, petitioner should have been granted a jury

trial. The lower courts committed manifest injustice error

by denying appellant's constitutional right to a jury trial.

Again, according to In re Zweibon, 565 F.2d 742,746

(D.C. Cir 1977), the Court of Appeals stated that Rule

38(d)’ was not "intended to diminish" the constitutional

right to a trial by jury in civil cases, and should be

interpreted, where possible, to avoid giving effect to

dubious waivers of rights.

The lower courts deprived applicant's constitutional

right to a jury trial. The magistrate should have allowed

right to a jury trial because it is a constitutional right under

both the 7th amendment of the U.S. Constitution and under

the 1991 Civil Rights Act, and because the manifest

injustice will result against applicant if he is not allowed a

jury trial. In addition, the rights at issue here involve “the

role of federal law in deciding an issue of great public

concem: "the procedural rights afforded victims of

discrimination." Kent v. Howard, 801 F. Supp 329, 336

(S.D.Cal 1992). Section 102 of the 1991 Act addresses the

mechanisms by which victims of discrimination are to be

made whole; it enhances the remedial rights of the plaintiff

while leaving unchanged the substantive obligation of

employers not to discriminate against employees on the

basis of race and color. Tyler v Pennsylvania, Dept. of

Revenue, 793 F. Supp 98, (MD Pa. 1992), Sussman vy.

Salem, Saxon & Nielson, P.A., 815 F. Supp 1447(MD

Florida 1992). Petitioner asserts that the right to trial by

jury is being obviated by summary judgment proceeding.

y Rule 15 of the Federal Rules of Civil Procedure provides that

a party may amend his pleading... by leave of court and leave

shall be freely given when justice so requires.

. Local Rule 220-1(b) states that:

“each party oppcsing a motion shal! serve his response no

later than 10 days after service of the motion. Failure to file a

response shall indicate that there is no opposition to the

motion.”

6. The lower courts' decision conflicts with this

honorable court and other circuits regarding

summary judgment in connection with

discrimination, constructive discharge and

retaliation; and the right to a jury trial.

When reviewing cases under Rule 56, the court

must apply the general standard; that is, whether there is

any genuine issue as to any material fact, whether movant

is entitled to judgment as a matter of law, and whether

substantive law was applied correctly. The record must

negate any evidence that may call for a contrary result or

evidence that might be developed at trial. The record is

replete with disputed genuine issues of material facts, and

therefore summary judgment is not appropriate. The

District Court through Magistrate Harper relies on Celotex

Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d

265 (1986), Anderson v. Liberty Lobby, Inc., 477 U. S.

242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106

S.Ct. 1348, 89 L.Ed.2d 538 (1986), United States v.

Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d. 176

(1962), to justify granting summary judgments in favor of

defendant. Magistrate Harper's interpretation of these cases

is incorrect and misplaced because these cases failed to

address race discrimination in connection with summary

judgment. The courts below incorrectly used the

; Rule 38(d) of the Federal Rules of Civil Procedure

which provides that:

“any party may demand a trial by jury of any issue

triable of right by jury by serving upon the other

parties a demand... not later than 10 days after the

service of the last pleading to such issues.”

substantive law in Celotex (products liability wrongful

death) to justify granting summary judgment in a

discrimination case. The substantive law in product

liability case is different from discrimination cases. You

must apply summary judgment cases as it relates to racial

discrimination. In Celotex, the facts revolved around

whether a widow was entitled to a wrongful death action

regarding exposure to asbestos.

In addition, the Eleventh Circuit Court of Appeals

relied on Anderson v. Liberty Lobby, Inc., 477 U. S. 242,

106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), to justify granting

summary judgments in favor of the appellees. The lower

courts misinterpreted the language in Anderson and

incorrectly applied it to the instant case. In Anderson, this

Honorable Court addressed the governing substantive law

and the standard of proof to be applied in summary

judgment cases regarding public-figure libel actions. The

governing substantive law and the standard of proof in

Anderson are different in discrimination cases. This

Court required that if the non-movant shows the existence

of any genuine issues for trial, the motion for summary

judgment must be denied. Furthermore, in Anderson, this

Court held that “inferences to be drawn from the

underlying facts contained in the evidential sources

submitted to trial court must be viewed in the light most

favorable to the party opposing the motion. The non-

movant's allegations must be taken as true and, when these

assertions conflict with those of the movant, the former

must receive the benefit of the doubt.”[also see Matsushita

Elec. Ind. Co. v. Zenith Radio Corp, 475 U.S. 574, 106

S.Ct. 1348, 89 L.Ed.2d 538 (1986).]

This Court held that material facts are those “that

might affect the outcome of the suit under the ‘governing

law’...” and clarified the term “genuine issue of material

fact” as follows as to materiality, the substantive law will

identify which facts are material. Only disputes over facts

that might affect the outcome of the suit under the

governing law will properly preclude the entry of

summary judgment. 477 U.S. 248. In Anderson, the

Supreme Court held that a summary judgment will not lie

"if the dispute about a material fact is ‘genuine’, that is, if

the evidence is such that a reasonable jury could not

return a verdict for the non-moving party.” 477 U.S. 249.

This Honorable Court was clear that the court's

ruling on a summary judgment motion must apply the

evidentiary standard of proof of the substantive law

applicable to the case. In Anderson, this Court held that

a ruling on a motion for summary judgment must be

guided by the New York Times “clear and convincing"

evidentiary standard in determining whether a genuine

issue of actual malice exists--that is, whether the evidence

presented is such that a reasonable jury might find that

actual malice had been shown with convincing clarity.

Petitioner strongly asserts that the lower courts

incorrectly applied the standard of review in Anderson, to

the instant case because it used evidentiary standard of

proof of the substantive law of libel case, instead of the

substantive law and standard of proof of discrimination

cases. In the instant case, the inquiry must be whether a

reasonable jury could find by a preponderance of the

evidence with indirect evidence inference of

discrimination. The standard of proof by a preponderance

of evidence is that it is more likely than not a reasonable

person would find that there was discriminatory intent,

7. The decision below conflicts with prior decisions

of this Court regarding 1964 Civil Rights Act as

amended in 1991.

The 1991 Civil Rights Act constitutes an innovation

of defining discriminatory practices as “indirect action of

discrimination. The courts below erred by failing to apply

the governing laws regarding discrimination and

constructive discharge in connection with summary

judgment. In discrimination cases such as this one, the

governing law includes the “method of ... presumptions and

shifting burdens of production” set forth by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas

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

248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981): United States

Postal Service Board of Governor v. Aikens. 460 U.S. 7] 2B

103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Saint Mary's

Honor Center v. Hicks., 509 U.S.____, 113 oan... , 125

L.Ed. 2d 407 (1993) and their progeny. The United States

Supreme Court set forth guidelines to analyze

discrimination claims in McDonnell Douglas Corp. This

Honorable Court held that to establish a prima facie case

of employment discrimination, plaintiff must show by a

preponderance of the evidence (more likely than not) that

the defendant discharged him “under circumstances which

gave rise to an inference of unlawful discrimination.”

Texas Dep't of Community Affairs v. Burdine, 450 U. S.

248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed. 2d 207 (1981).

Although, the above statutes and cases address the

evidentiary standard of proof and the substantive law of

discrimination, they failed to address discrimination

involving summary judgments.

8. Below are specific cases on point when reviewing

summary judgment involving discrimination.

The only U.S. Supreme Court case that comes close

to addressing summary judgments in connection with

discrimination is Adickes v. Kress & Co., 398 U.S. 144,

90 S.Ct. 1598, 26 L.Ed. 142 (1970). In Adickes, the

Supreme Court ruled against summary judgment in

discrimination cases (conspiracy to discriminate).

Furthermore, appellant cites Poller v. Columbia

Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct 486,

7 L.Ed. 458, 464 (1962), Johnson v. Minnesota Historical

Society, 931 F.2d 1239 (8th Circuit 1991), Hayden v. Rand

Corp, 605 F.2d 453, 455 (9th Cir. 1979), as primary

authority for the rule that summary judgment should be

used sparingly in complex litigation where intent and

motive play leading roles. The U.S. Supreme Court

concludes that “it is only when the witnesses are present

and subject to cross-examination that their credibility and

the weight to be given their testimony can be appraised.

The Supreme Court goes on to say that "Trial by affidavit

is no substitute for trial by jury which so long has been

the hallmark of "even-handed justice." Furthermore,

summary judgments should be precluded, if the factual

issue concerns the defendant's motive and should be

decided by the trier of fact.( a jury) Benson v. Allphin,

544 F. Supp. 464 (1982), Conrad v. Delta Airlines, Inc.,

494 F.2d. 914 (7th Cir. 1974), Mount Healthy City School

District v Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed. 471

(1977).

9. The lower courts' decision conflicts with other

circuits regarding summary judgments in connection

with discrimination.

In Johnson v. Minnesota Historical Society, 931

F.2d 1239 (8th Circuit 1991), the 8th Circuit remanded

the employment discrimination issue and held that the

lower court erred in granting the employer a summary

judgment on the discrimination issue. The 8th Circuit held

that summary judgments should seldom be used in cases

alleging employment discrimination because of the special

category in which Congress and the United States Supreme

Court visualized these cases. The 8th Circuit stated that

“Knowing that discrimination is difficult to prove by direct

evidence, employment discrimination cases require a

‘simplified proof from a claimant in order to create an

inference of discrimination and thereby establishing a

prima facie case’ Hillebrand v. M-tron Indus.. Inc., 827

F.2d 363, 364-366 (8th Cir. 1987), cert denied 488 U.S.

1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989)at 827 F.2d

364-366. Summary judgments should be used only in

those rare instances where there is no dispute of fact and

where there exists only one conclusion. All the evidence

must point one way and susceptible of no reasonable

inferences sustaining the position of the non-moving party.

[ See: Leichihman_v. Pickwick Int, 814 F.2d 1263, 1268

(8th Cir.) cert denied 484 U.S. 855, 108 S.Ct. 161, 98 L.

Ed.2d 116 (1987) Halgof v. Northwest Rehabilitation. Inc.,

910 F.2d 492, 495 (8th Cir. 1990) }

The 3rd Circuit Court of Appeals is against using

summary judgments in discrimination cases. The 3rd

Circiut in Jackson v. University of Pittsburgh. 826 F.2d

230 (3rd Cir. 1987), reversed the district's court entry of

summary judgment for defendants and remanded the issue

for trial on the merits. The 3rd Circuit held that at the

summary judgment stage, in other words, “all that is

required for a non-moving party to survive the motion is

that sufficient evidence supporting the claimed factual

dispute be shown to require a jury to resolve at trial the

parties’ different versions of the truth....” First Nat] Bank

of Ariz. v. Cities Services. Co., 391 U.S. 253, 288-89, 88

S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968).

In Jackson, the Court concluded that currently,

blatant acts of discrimination can easily be identified and

rectified. However, much of the discrimination that

remains is indirect and resists legal attack exactly because

it is so difficult to prove. Discrimination victims often

come to the legal process without direct evidence. This is

one of the reasons why our legal system permits

discrimination plaintiffs to prove their cases by either

indirect evidence or direct evidence. United States Postal

Serv. Bd of Governors v. Aikens, 460 U.S. 711, 714, 103

S.Ct. 1478, 75 L.Ed.2d 403 (1983). The 3rd Circuit Court

of Appeals concludes that because intent is a substantive

element of this cause of action--generally to be inferred

from the facts and conduct of the parties---the principle is

particularly apt that courts should not draw factual

inferences in favor of the moving party and should not

resolve any genuine issues of credibility. 826 F.2d 233.

The 2nd Circuit U.S. Court of Appeals is against

using summary judgments in connection with

discrimination. Petitioner cites Rosen v. Thornburgh, 928

Fd.2d 528 (2nd Cir. 1991). In Rosen, the 2nd Circuit

Court reversed the lower court decision in granting

defendant's motion for summary judgment, and recognized

that employment discrimination is often accomplished by

discreet manipulation and hidden under a veil of self-

declared innocence. An employer who discriminates is

unlikely to leave a “smoking gun,” such as a notation in an

employee’s file, attesting to a discriminatory intent. A

victim of discrimination is, therefore, seldomly able to

prove his or her claim by direct evidence and is usually

constrained to rely on the cumulative weight of

circumstantial evidence. The Court concluded that a jury

will be in a better position to determine whether the

defendants did or did not discriminate.(pg. 533).

Petitioner strongly asserts that because the motive

and intent are the substantive issues, it is more likely than

not that a jury would find disputed genuine issues of

material fact. Since in discrimination cases, inference of

discrimination is allowed, the use of irregular procedures

supports an inference of discrimination. Walker v. Pettit

Construction Corp., 605 F.2d 128, 131 (4th Cir. 1979).

10. The decisions below conflicts with other circuits

regarding Section 704 of Title VII, 42 U.S.C.

Section 2000(a) (anti-retaliation statute) '° and

constructive discharge policy.

Section 704(a) creates a uniquely federal right that

makes it unlawful for an employer to retaliate against an

employee who has engaged in Title VII protected activity.

The purpose of the anti-retaliation statute is to ensure an

employee's protected to challenge discrimination and

retaliation, whether in form of subsequent discharge or

court proceeding which places added cost on the a

exercise of those rights and as such has a “chilling

effect". Pettway v. American Cast Iron Pipe Company,

411 F.2d 998 (Sth Cir. 1969), and EEOC vy. Levi Strauss &

Co., 515 F.Supp. 640 (N.D. Illinois, E.D. 1981). TheCivil

Rights Act of 1964 and 1991 applies to constructive

discharge. Held v. Gulf Oil Co., 684 F.2d 427, Derr V

Gulf Oil Co., 796 F.2d 340 (10th Cir. 1990). To show

constructive discharge, a plaintiff “must prove that his

working conditions were so difficult or unpleasant that a

reasonable person in the employee’s shoes would have felt

compelled to resign.” Wardwell v. School Board of Palm

Beach County, 786 F.2d 1554, 1557 (11th Cir. 1986),

Lynch v. Freeman, 817 F.2d 380 (6th Cir 1987).

Petitioner's , affidavit, and pleadings shows that the

defendant forced petitioner to resign. Furthermore, the

court proceedings made it difficult to prove discrimination.

11. The lower courts decision conflicts with this

court's ruling regarding 42 U.S.C. SECTION

1981" and the Patterson decision.

The purpose of the 1991 Civil Rights Act was to

reverse or modify several recent Supreme Court decisions,

including Patterson v. McClean Credit Co., 491 U.S. 164,

109 S.Ct. 2363 (1989). The CRA of 1991 amended five

civil rights acts, and restored the law to the position in

which it was prior to Patterson. In Rivers v. Roadway

Express Inc., 507 U.S. ___ , (1993) No. 92-936, this

Court held that Section 101 of the 1991 Civil Rights Act

does not apply to cases that arose before it was enacted.

Ironically-- however, the Supreme Court immediately,

applied the Patterson decision retroactively. See: Weaver

v. Casa Gallardo, 922 F. 2d 1515 (1991), Williams v. First

Union National Bank of N.C., 920 F.2d 232 (1990).

- Section 704(a) of Title VII, 42 U.S.C. section 2000e(a) of the

Civil Rights Act provides as follows:

(a) Discrimination for making charges, testifying,

assisting, or participating in enforcement proceedings:

It shall be an unlawful employment practice for an

employer to discriminate against any of his

employees.... because he has opposed any practice

made by an unlawful employment practice by this

subchapter, or because he has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this

subchapter.

v. Tenn ivision of man

Kodak, 919 F.2d 1160 (1990), Prather v. Dayton Rowee

and Light Co., 918 F.2d 1255 (6th Cir 1990), and Hill v.

Goodyear Tire & Rubber Inc., 918 F.2d. 877 (10 Cir.

1990). It would seem logical and consistent that this Court

apply the Civil Rights Act of 1991, 42 U.S.C. Section

1981 as amended, retroactively as this Honorable Court did

when Patterson was decided in 1989.

Nevertheless, even if the Patterson case is

controlling, petitioner's case is actionable under 42 U.S.C.

Section 1981, 42 U.S.C. Section 1981 (b) because

discriminatory promotion claims are actionable under 1981,

if promotions rise to the level of an opportunity for a new

relation between employee and employer. Patterson v.

McClean Credit Co., 491 U.S. 164, 108 S.Ct. 2363 (1989)

Petitioner was entering into a new employment relationship

with defendant to be transfered/promoted to an entirely

new region with new terms, new salary, new local policy.

Petitioner's action is actionable because Respondent refused

to enter into an employment contract based on race.

sa 42 U.S.C. SECT. 1981 as amended provides that:

“All persons within the jurisdiction of the United

States shall have the same right in every State and

Territory to make and enforce contracts... as is

enjoyed by white citizens... .”

“For the purpose of this section, the term’

make and enforce contracts’ includes the making,

performance, modification, and termination of

contracts, and the enjoyment of all benefits, privilege,

terms, and conditions of the contractual relationship.”

“The rights protected by this section are

protected against impairment of nongovernmental

discrimination and impairment under color of law.”

IV. CONCLUSION

The U.S. District Court's decision affirmed by the

Eleventh Circuit U.S. Court of Appeals allowing summary

judgment in discrimination cases violates and circumvents

the right to trial by jury and is in contravention to the Civil

Rights Act. The Courts are drifting into clear and present

danger when it circumvent a U.S. citizens constitutional

rights to trial and trial by jury. The lower courts decision

conflicts with the decision of this Honorable Court and

decisions of the Eight Circuit Court of Appeals, the Second

Circuit Court of Appeals, and the Third Circuit Court of

Appeals regarding summary judgments in connection with

discrimination. Again, according to Adickes v. Kress &

Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed. 142 (1970),

this Court ruled against summary judgment regarding

discrimination and revealed the importance of the trial by

jury. Justice Black’s in a concurring opinion, stated that

the right to confront, cross-examine and impeach adverse

witnesses is one of the most fundamental rights sought to

be preserved by the Seventh Amendment provision--jury

trial in Civil cases. Justice Black goes on to say “the

advantages of trial before a live jury with live

witnesses, and all the possibilities of considering the

human factors, should not be eliminated by substituting

trial by affidavit and the sterile bareness of summary

judgment."

It is difficult to effectuate and vindicate the 1964

Civil Right Act when the system is geared towards failure,

frustration, and difficulty in financing the litigation. The

agency that was designed to assist-- hinders the process by

delaying the investigation for almost two years. In

addition the courts place a heavy burden on plaintiff's to

prove his or her case in court proceedings, and make it

difficult to try the case before a jury. In this particular

instance, the U.S. District Court for the Eastern District of

Louisiana transferred the case to the Northern District of

| Georgia. The Northern District of Georgia appoints the

magistrates without consent to dispose of the case through

summary judgment proceeding. It is higly irregular to

deny petitioner's motion for summary judgment and grant

defendant's motion for summary judgment. Logic does not

flow from the magistrate decision because if one denies a

motion for summary because there are disputed facts, then

it is improper and unconscionable to grant a motion from

summary judgment on the same set of laws and facts. It is

irregular to deny petitioner's unopposed motion for a jury

trial. It is irregular to apply the local rules in

contravention to the Federal Rules. It is irregular to affirm

the District Court's judgment without oral argument and by

failing to publish the opinion. The significance of not

publishing the reasons for the decision gives credence to

the assertion that many Americans have-- that is, the courts

are not to be trusted because they are maintaining the

Status quo and allowing discrimination to continue. How

can the judiciary expect America to respect the law and

constitution when the courts are not respecting the

individual rights of the constitution. America is in an

unhealthy state of denial.

Clearly, it is the legislative’s intent to provide equal

opportunity to enjoy a full and productive life and that the

failure to provide such equal Opportunity, because of

discrimination not only threatens the rights and proper

privileges of its inhabitants but menaces the institutions,

the foundations of a free democratic State, and threatens

the peace, order, health, safety, and general welfare of the

state and its inhabitants. Turner v. City Monroe, 634

So.2d 981 (La. App. 2 Cir. 1994).

Plaintiff has established by direct and indirect

evidence that defendant discriminated against him.

Petitioner prays that this Honorable Court grants the

petition for writ of certiorari and prays that the lower

courts’ decision be reversed and remanded.

Respectfully submitted,

KENNETH M. PLAISANCE

7 NORTH MIRO ST.

EW ORLEANS, LA 70119

504 945-4176

CERTIFICATE OF SERVICE

Pursuant to Supreme Court Rule 29.5, I herby

certify that on this _ /8 May of hase 199.5,

fourty copies of the above and foregbing Petition for Writ

of Certiorari were mailed to the Clerk of the Supreme

Court of the United States of America, Washington D.C. |

certfiy that two true and correct copies of the above and

foregoing Petition for Writ of Certiorari were mailed to the

person(s) identified below by depositing the same in the

United States mail at New Orleans, Louisiana, first class,

postage prepaid, and properly addressed to

Attorney for defendant/respondent

John F. Wymer, III

Powell, Goldstein, Frazer & Murphy

Sixteenth Floor

191 Peachtree Street, N.E.

Atlanta, Georgi

NNETH M. PLAISANCE

Pro Se

10.

11.

APPENDIX

Court of Appeal Decision, May 24, 1995

Trial Court Memorandum Decision, May 23, 1994

Order from the U.S. District Court for the Eastern

District of Louisiana

Article ITV Section 1 of the United States

Constitution, 28 USCS section 1738, Full Faith and

Credit Clause

Seventh Amendment of the U. S. Constitution

Rule 36 of the Federal Rules of Civil Procedure

Rule 56 of the Federal Rules of Civil Procedure

28 U.S.C. Section 1652

28 U.S.C. Section 2071

Section 704 of Title VII, 42 U.S.C. Section

2000(a) of the Civil Right Acts

42 U.S.C. Section 1981(a) (c)

Filed May 24, 1995

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-8719

District Court Docket No. 1:93-CV-1021

KENNETH M. PLAISANCE,

Plaintiff-Appellant,

versus

TRAVELERS INSURANCE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

Before KRAVITCH, DUBINA AND BARKETT, Circuit

Judges.

JUDGMENT

This cause came to heard on the transcript of the

record from the United States District Court for the

Northern District of Georgia, and was take under

submission by the Court upon the record and briefs on file,

pursuant to Eleventh Circuit Rule 34-3;

UPON CONSIDERATION WHEREOF, it is now

hereby ordered and adjudged by this Court that the

judgment of the said District Court in this cause be and the

same is hereby AFFIRMED;

IT IS FURTHER ORDERED THAT plaintiff-

appellant pay to defendant-appellee, the costs on appeal to

be taxed by the Clerk of this Court.

Entered: May 24, 1995

For the Court: Miguel J. Cortes,

by: Karleen McNable

ISSUED AS MANDATE; 6/26/95

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Kenneth M. Plaisance,

Plaintiff,

VS. CIVIL ACTION NO.

1:93-cv-1021-RLV

Travelers Insurance Co.,

Defendant.

JUDGMENT

This action having come before the court,

Honorable Robert L. Vining, Jr., United States District

Judge, for consideration of the defendant's motion for

summary judgment, and the court having granted the

defendant's motion, it is

Ordered and adjudged that the plaintiff take

nothing, that the defendant recover its costs of this action,

and the action be, and the same hereby is dismissed.

Dated at Atlanta, Georgia, this 23rd day of May ,

1994.

Luther D Thomas, Clerk

By:

Sherry Gibbons

Deputy Clerk

Prepared, Filed and Entered

in the clerk's office

May 23, 1994,

Luther D. Thomas, Clerk

By:

Sherry Gibbons

Deputy Clerk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

° CIVIL ACTION

KENNETH M. PLAISANCE * NO. 92-4184

Plaintiff . SECTION ”“M”

VERSUS . JUDGE BEER

° MAGISTRATE 1

TRAVELERS INSURANCE * MAGISTRATE

° LEMELLE

Defendant *

RDER

It appearing to the Court that Defendant's Ex Parte

Motion for Enlargement of Time is well taken, it is

ORDERED that Defendant, The Travelers

Companies, by and is hereby granted a thirty (30) day

extension of time from the date this Court enters judgment

on Defendant's Motion to Dismiss for Improper Venue and

for Failure to State a Claim upon which Relief can be

Granted, within which to respond and/or object to

Plaintiffs Interrogatories, Request for Admission of Facts

and Request for Production of Documents.

NEW ORLEANS, LOUISIANA, this 10th day of

March, 1993.

UNITED STATES MAGISTRATE JUDGE

Article [IV Section | of the United States

Constitution, 28 USCS section 1738, Full Faith and Credit

Clause Provides: (In Pertinent Parts)

"The records and judicial proceedings of any court

of any such States, Territory or Possession, or

copies thereof, shall be proved or admitted in other

courts within the United States. Such Acts, records

and judicial proceedings or copies thereof, shall

have the same full faith and credit in every court

within the United States as they have by law usage

in the courts of such State, from which they are

taken.”

AMENDMENT VII TO THE UNITED STATES

CONSTITUTION

In Suit of common law, where the value in

controversy shall exceed twenty dollars, the right of trial

by jury shall be perserved and no fact tried by a jury, shall

be otherwise reexamined in any Court of the United States,

than according to the rules of the common law.

Rule 36 of the Federal Code of Civil Procedure

provides:

(b)

(a) Request for admission. A party may

serve upon any other party a written request

for the admission, of the truth of any matters

within the scope of Rule (26) set forth...

Each matter of which an admission is

requested shall be separately set forth. The

matter is admitted unless. within 30 days

after service of the reque i,... the party to

whom the request is directed serves upon

the party requesting the admission a written

answer or objection addressed to the

matter.... a defendant shall not be required to

serve answers or objections before the

expiration of 45 days after service of the

summons and complaint...

Effect of Admission. Any matter admitted

under this rule is conclusively established...

RULE 56 OF THE FEDERAL RULES OF CIVIL

PROCEDURE

(a) For Claimant. A party seeking to recover upon a

claim, counterclaim, or cross-claim or to obtain a

declaratory judgment may, at any time after the expiration

of 20 days from the commencement of the action or after

service of a motion for summary judgment by the adverse

party, move with or without supporting affidavits for a

summary judgment in the party's favor upon all or any part

thereof.

(b) For Defending Party. A party against whom a claim,

counterclaim, or cross-claim is asserted or a declaratory

judgment is sought may, at any time, move with or without

supporting affidavits for a summary judgment in the party's

favor as to all or any part thereof.

served at least 10 days before the time fixed for the

hearing. The adverse party prior to the day of hearing may

serve opposing affidavits. The judgmen sought shall be

rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law. A summary judgment,

interlocutory in character, may be rendered on the issue of

liability alone although there is a genuine issue as to the

amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on

motion under this rule judgment is not rendered upon the

whole case or for all the relief asked and a trial is

necessary, the court at the hearing of the motion, by

examing the pleadings and the evidence before it and by

interrogating counsel, shall if practicable ascertain what

material facts are actually and in good faith controverted.

It shall thereupon make an order specifying the facts that

appear without substantial controversy, including the extent

spain

to which the amount of damages or other relief is not in

controversy, and directing such further proceedings in the

action as are just. Upon the trial of the action the facts so

specified shall be deemed established, and the trial shall be

conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense

Required. Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as

weuld be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to the

matters stated therein. Sworn or certified copies of all

papers or parts thereof referred to in an affidavit shall be

attached thereto’ or served therewith. The court may

permit affidavits to be supplemented or opposed by

depositions, answers to interrogatories, or further affidavits.

When a motion for summary judgment is made and

supported as provided in this rule, an adverse party may

not rest upon the mere allegations or denials of the adverse

party’s pleading, but the adverse party's response, by

affidavits or as otherwise provided in this rule, must set

forth specific facts showing that there is a genuine issue at

trial. If the adverse party does not so resond, summary

judgment, if appropriate, shall be entered against the

adverse party.

(f) When Affidavits are Unavailable. Should it appear

from the affidavits of a party opposing the motion that the

party cannot for reasons stated present by affidavit facts

essential to justify the party’s opposition, the court may

refuse the application for judgment or may order a

continuance to permit affidavits to be obtained or

depositions to be taken or discovery to be had or may

make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it appear to

the satisfaction of the court at any time that any of the

affidavits presented pursuant to this rule are present in bad

faith or solely for the purpose of delay, the court shall

forthwith order the party employing them to pay to the

other party the amount of the reasonable expenses which

the filing of the affidavits caused the other party to incur,

including reasonable attorney's fees, and any offending

party or attorney may be adjudged guilty of contempt.

28 U.S.C. SECTION 1652

The laws of the several states, except where the

Constitution or treaties of the United States or Acts of

Congress otherwise require or provide, shall be regarded as

rules of decision in civil actions in the courts of the United

States, in cases where they apply.

28 U.S.C. Section 2071

The local rules of the District Courts shall be

consistent with the rules of practice and procedure

prescribed by the Supreme Court.

Section 704 of Title VII, 42 U.S.C. section 2000(a)

of the Civil Right Acts provides that:

(a)

Discrimination for making charges, testifying,

assisting, or participating in enforcement

proceedings:

It shall be an unlawful employment practice for an

employer to discriminate against any of his

employees or applicants for employment, for an

employment agency, or joint labor management

committee controlling apprenticeship or other

training or retraining, including on the job training

programs, to discriminate against any individual, or

for a labor organization to discriminate against any

member thereof or applicant for membership,

because he has opposed any practice made by an

unlawful employment practice by this

subchapter, or because he has made a charge,

testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under this

subchapter.

42 U.S.C. SECTION 1981(a)

“(c) Jury Trial.-- If a complaining party seeks

compensatory or punitive damages under this section---

(1) any party may demand a trial by jury”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.