# Appendix — Wrenn v. Vanderbilt University Hospital

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 823

## Text

EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

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WILL BE ISSUED.

ee See . Supreme Court, U.S. : baad
y FI] LED

932049 JUN 1 319%

OEFICE OF THE CLERK
IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994

NO

J
a
CURTIS L. WRENN

95 Champion Street
West Carthage, NY 13619,

Petitioner,
vs

VANDERBILT UNIVERSITY HOSPITAL; JOHN C.
CALLISON, VANDERBILT UNIVERSITY HOSPITAL;
SECRETARY, DEPARTMENT OF HEALTH & HUMAN
SERVICES; CHAIRMAN, U.S. EEOC; & U. S&S.
ATTORNEY GENERAL DEPARTMENT OF JUSTICE.

Respondents.

1 PETITIONER'S APPENDIXES

j a eel
PETITION FOR WRIT OF CERTIORARI TOC THE
UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT
DOCKET NOS. 93-5994; 93-6181

Curtis L. Wrenn

°5 Champion Street 4
West Carthage, NY 13619 +
Tel: (315) 493-6801

TABLE OF CONTENTS
Order Sixth Circuit CA, 31 Jan 94....1-9
Order Sixth Circuit (A, 14 Mar 94..10-11
Order Sixth Circuit CA, 15 Mar 94..12-13
Order Sixth Circuit CA, 18 Apr 94. . 14-15

Memorandum and Order, USDC, Middle
District of TN, 10 Jun eee ap ae 16-43

Pro Se Appellant's Brief, 25 Aug 93 44-54

Reply Brief of Plaintiff-Appellant,
eh, TARE EE ie eet aed tals ae 55-96

Appellant's Motion for Leave of Court to
File his Memorandum in Opposition to

Appellees' Requests for Cost, 20 Feb 94
it tie esti dele, een ihn dine aii ace GMlae atid ke 97-104

Appellant's Petition for Rehearing Out
of Time, ae mee O86. i ee 105-125

Complaint With Jury Demand, 12 Dec 91
es ee eet ee ame age 126-131

Petitioner's Application for the Posi-
tion of Assistant Hospital Director, 11
co-op OEY POO Oe GE on en BE | 132-154

Successful Applicant's (Charlotte B.
WS I 155-161

Plaintiff's Motion for Leave of Court to
File First Amended Complaint, 1 Oct 92
Ree Se Se OO ET eee ee Fee 162-169

Plaintiff's Memorandum in Opposition to
Defendant EEOC's Request for Dismissal
and EEOC's Request for Fees and Costs
and Plaintiff's Cross-Motion for Rule
11 Sanctions and Cost............ 170-173

1

Plaintiff's Memorandum in Opposition to
Defendants’ (Vanderbilt and Callison)
Motion for Summary Judgment, 26 Feb 93
PORPEPCCrTer ery see ce ee re 174-188

Plaintiff's Material Facts in Support of
His Opposition to Defendant Vander-
bilt's Motion for Summary Judgment

and in Support of His Statement There
are Issues to be Decided by the Court

in this Case of Employment Discrimi-
nation, 10 DOC G2. ieee cc ew seas 189-191

Plaintiff's Material Facts in Support of
His Opposition to Defendant Department
of Justice and HHS’ Motion to Dismiss
and in Support of His Statement that
there are issues to be Decided by the
Court in this Case Involving Civil
Conspiracy, 28 Apr 9S............ 192-195

Plaintiff's Memorandum in Opposition to
Defendants HHS and DOJ‘s Motion to
Dismiss, 26 Apr 9S........-ecee0. 196-207

Plaintiff's Request for Leave of Court
to File Memorandum in Opposition to
EEOC's Motion to Dismiss, 10 May

OS. ccc c canned as dee ee ee eee 208-220

Petitioner's FOIA request to the EEOC
£4 Oct O43... 03.505 ee ee eee 221-225

Cur L. renn

ee

es

oo men antares Geese ewan

ee re

Appendix_A_

Page 1 of 9
No. 93-5994

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CURTIS L. WRENN,
Plaintiff-Appellant,

ORDER

)

)

)

)

)

V. )

)

VANDERBILT UNIVERSIT™’ )

HOSPITAL; JOHN C. CALLISON; )

U.S. DEPARTMENT OF JUSTICE, )
SECRETARY OF HEALTH AND ) NOT RECOM-
HUMAN SERVICES; EQUAL ) MENDED FOR

EMPLOYMENT OPPORTUNITY ) FULL-TEXT PUB-

COMMISSION, ) LICATION. Sixth
) Circuit Rule 24 limits
Defendants-Appellees. : ) citation to specific

) situations. Please see
) Rule 24 before citing
) in a proceeding in a
) court in the Sixth

) Circuit. If cited, a

) copy must be served
) on other parties and
) the Court. This

) notice is to be

) prominently dis-

) played if this

) decision is re-

) produced.

BEFORE: KEITH and RYAN, Circuit Judges, and
JOHNSTONE, Senior District Judge.*'

Curtis L. Wren, a pro se plaintiff, appeals a district
court order dismissing his complaint and amended complaint
brought under Titles VI and VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act (ADEA), the Freedom of Information Act
(FOIA), and 42 U S.C. $S1981, 1983, and 1985. The case
has been referred to a panel of the court pursuant to Rule
9(a), Rules of the Sixth Circuit. Upon examination, this panel

unanimously agrees that oral argument is not needed. Fed. R. |

App. P. 34(a).

Seeking monetary relief, Wrenn sued Vanderbilt

University Hospital (Vanderbilt), alleging that he was denied

employment because of his race and in retaliation for previous

*The Honorable Edward H. Johnstone, Senior U. S. District
Judge for the Western District of Kentucky, sitting by

designation.

employment discrimination lawsuits filed against Vanderbilt.
He further alleged that Vanderbilt had conspired since 1978
with the United States Department of Justice and with various
unnamed public and private employers to violate his rights to
equal employment because of his race. In an amended
complaint, Wrenn named as additional defendants the
Attorney General of the United States (USAG), the Secretary
of the Department of Health and Human Services (HHS), the
Chairman of the Equal Employment Opportunity Commission
(EEOC), and the Assistant General Counsel for Vanderbilt
University (Callison). He also added a claim under the Age
Discrimination in Employment Act (ADEA) and complained
that the federal defendants conspired to violate his rights by
refusing to process and investigate his complaint, refusing to
enforce equal employment law, and refusing to provide
records and documents requested under the FOLA. Wrenn

sought injunctive relief.

|

All defendants filed motions for summary judgment or
to dismiss, which were apposed by Wrenn. Additionally, the
EEOC sought a permanent injunction and sanctions against
Wrenn. In a memorandum and order entered on June 15,
1993, the district court concluded that all of Wrenn's claims
were meritless or barred by the doctrine of res judicata. The
district court, accordingly, granted summary judgment for
Vanderbilt and dismissed the claims against the remaining
defendants. It declined to enter a permanent injunction, but
ordered that no process should issue upon any future claim
brought by Wrenn against the EEOC until such claim was
reviewed by the district court. On appeal, Wrenn continues
to argue the merits of his Title VII, ADEA,FOIA, and
consp’7acy claims. The HHS and USAG request sanctions

pursuant to Fed. R. App. P. 38.
Upon review, we affirm the district court's order

because there is no genuine issue of material fact and the

defendants are entitled to judgment as a matter of law. See
Fed. R. Civ. P.56(c); Canderm Pharmacal, Ltd. v. elder
Pharmaceutical, Inc., 862 £.2d 597, 601 (6th Cir. 1988).

Wrenn has not raised on appeal his claims under Title
VI, the Civil Rights Act of 1991, and 42 U.S.C. $S1981,
1983, and 1985. thus, they are considered abandoned and are
not reviewable. See Boyd v. Ford Motor Co., 948 F.2d 283,
284 (6th Cir. 1991), cert. denied, 112 S. Ct. 1481 (1992).

Wrenn has failed to prove that he was not selected by
Vanderbilt for the position of Assistant Hospital Director for
illegal reasons or that the defendants conspired to deny him
equal employment opportunity. to establish a prima facia case
of race or age discrimination, Wrenn was required to show
that: (1) he was a member of a protected class, (2) he applied
and was qualified for a job for which the employer was
seeking applicants, (3) he was rejected despite his

qualifications, and (4) the circumstances give rise to an

inference of discrimination. See McDonnell Douglas Corp. v
Green, 411 U.S. 792, 802, (1973); Mitchell v. Toledo Hosp.,
964 F.2d 577, 582 (6th Cir. 1992). While he can prove the
first element of a prima facie case -- Wrenn is African
American and was over the age of 40 at the time of his
application -- he has utterly failed to prove that the
circumstances give rise to an inference of discrimination. The
position at issue was first offered to a black male. After he
withdrew his name from consideration, the position was
offered to a white female over the age of 40, who accepted it
These actions on the part of Vanderbilt belie any
discriminatory motive. Thus, despite Wrenn's assertion that
he was qualified for the position, he cannot satisfy the fourth

element of a prima facie case.

Vanderbilt is also entitled to summary judgment on

Wrenn's claim of retaliation. He has failed to refute the

affidavits of the two Vanderbilt officials who screened the

applications, in which the declared that they had no
knowledge of his prior Title VII actions against Vanderbilt.

Finally, Wrenn's vague allegations of a wide-ranging
conspiracy are wholly conclusory and are thus insufficient to
state a claim or withstand a motion for summary judgment.
See Mitchell, 964 F.2d at 584-85; McDonald v. Union Camp
Corp., 898 F.2d 1155, 1162 (6th Cir. 1990); Gutierrez v.
Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987).

The district court also correctly dismissed Wrenn's
claims against the federal defendants. Wrenn has raised the
same allegations of conspiracy and refusal to enforce Title VII
and the ADEA against these federal defendants in previous
actions. See, e.g., Wrenn v. Kemp, No. 1:92-CV-0122 (N.D.
Ohio Jan 3, 1992). The district court in Wrenn v. Kemp
found that there is no private cause of action for the improper
investigation or processing of a discrimination charge. A

panel of this court affirmed the district court's decision.

Wrenn v. Kemp, No. 92-3513 (6th Cir. Nov. 24, 1992).
Other circuits have come to the same conclusion. See
Scheerer v. Rose State College, 950 F.2d 661, 663 (10th Cir.
1991), cert denied, 112 S. Ct. 2995 (1992): Gillis v. United
States Dep't of Health and Human Servs., 759 F.2d 565, 574
(6th Cir. 1985); McCottrell v. EEOC, 726 F.2d 350, 351 (7th
Cir. 1984).

Thus, whether the issue is examined on the merits or
determined as a matter of preclusion, the federal defendants
are entitle to judgment regarding the alleged failure to
properly investigate or enforce employment discrimination
laws. Moreover, the conclusory nature of Wrenn's
allegations, particularly in relation to the alleged conspiracy,
make them insufficient to state a claim, as discussed above.

Finally, the district court did not err in concluding that
the EEOC is entitled to judgment as a matter of law on the

FOIA claim. The EEOC ultimately withheld only tow of the

g

cecal

documents requested by Wrenn. Those documents were

properly withheld uncer 5 U.S.C. SS 552 (b)(5) and (b)(7)(c).
Accordingly, the district court's judgment, entered on
June 15, 1993, is affirmed. Rule 9(b)(3), Rules of the sixth
Circuit. Pursuant to Rule 38, Federal Rules of Appellate
Procedure, we find this appeal to be frivolous and brought for
the purpose of harassment, and we award double costs and
reasonable attorney fees to each appeilee in this appeal The
appellees shall file affidavits and other appropriate material

with the Clerk within 14 days of the entry date of this order.

ENTERED BY ORDER OF THE COURT

/s/illegible
Clerk

REED es Sven VSR a Ree Dvn RII est MS te SS RG SE ETN FS See SA OER ee ME YTS
Appendix B
Page 1 of 2

Case No: 93-5994: 93-6181
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER
CURTIS L. WRENN
Plaintiff-Appellant

V.

VANDERBILT UNIVERSITY HOSPITAL;
JOHN C. CALLISON; U.S. DEPARTMENT
OF JUSTICE; SECRETARY OF HEALTH
AND HUMAN SERVICES; EQUAL EMPLOY-
MENT OPPORTUNITY COMMISSION

Defendants - Appellees
BEFORE: KEITH and RYAN, Circuit Judges;
JOHNSTONE, Senior District Judge. *
Upon consideration of the appellees’ bills of cost

submitted in the above cause,

The Honorable Edward H. Johnston, Senior U.S. District
Judge for the Western District of Kentucky, sitting by
designation.

10

"

It is ORDERED that costs shall be GRANTED in the
amounts listed below shall be taxed against the appellant and
ncluded in the mandate:

VANDERBILT UNIVERSITY _— $ 1692.90
EEOC $ 7598.20

JANET RENO; HHS $4172.64

ENTERED BY ORDER OF THE COURT

/s/Leonard Green
Leonard Green

I]

iia i

Appendix C
Page 1 of 2

Case No: 93-5994; 93-6181
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER
CURTIS L. WRENN
Plaintiff-Appellant

V.

VANDERBILT UNIVERSITY HOSPITAL;
JOHN C. CALLISON; U.S. DEPARTMENT
OF JUSTICE; SECRETARY OF HEALTH
AND HUMAN SERVICES; EQUAL EMPLOY-
MENT OPPORTUNITY COMMISSION

Defendants - Appellees

BEFORE: KEITH and RYAN, Circuit Judges,
JOHNSTONE, Senior District Judge.*

Upon consideration of the petition for rehearing

submitted by the appellant,

The Honorable Edward H. Johnstone, Senior U S. Distr
Judge for the Western District of Kentucky, sitting be
designation.

(2

IT is ORDERED that the petition for rehearing be and

it hereby is rejected for filing due to exceeding the page limit.

ENTERED BY ORDER OF THE COURT

/s/illegible signature
Leonard Green, Clerk

13

Appendix D
Page 1 of 2

Case No: 93-5994
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER
CURTIS L. WRENN
Plaintiff-Appellant

V.

VANDERBILT UNIVERSITY HOSPITAL;
JOHN C. CALLISON; U.S. DEPARTMENT
OF JUSTICE; SECRETARY OF HEALTH
AND HUMAN SERVICES; EQUAL EMPLOY-
MENT OPPORTUNITY COMMISSION

Defendants - Appellees

BEFORE: KEITH and RYAN, Circuit Judges;
JOHNSTONE, Senior District Judge. *

Upon consideration of the appellant's petition for

rehearing this Court's Order of March 14, 1994 allowing

The Honorable Edward H. Johnstone, Senior U.S. District
Judge for the Western District of Kentucky, sitting be
designation.

14

double costs for the appellee,
IT is ORDERED that the petition for rehearing be,

and it hereby is DENIED..

ENTERED BY ORDER OF THE COURT

/s/llegible signature
Leonard Green, Clerk

1S

Appendix EF
Page 1 of 28

APPENDIX
Page lof Pages

IN THE UNITED STATES DISTRICT COURT
THE MEDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CURTIS L. WRENN )

)
v. )NO. 3-91-1005

)
VANDERBILT UNIVERSITY )

HOSPITAL, et. al. )
MEMORANDUM

The plaintiff in the above styled case has filed a s
alleging that the defendants violated Title VII of the Civ
Rights Act of 1964, and the Age Discrimination in
Employment Act. Pending before the Court are motion
dismiss or, in the alternative for summary judgment filed
the defendant the Equal Employment Opportunity
Commission ("EEOC") through its Chairman Tony E.
Gallegos. For the reason stated below, the Court hereb

grants Vanderbilt's motion for summary judgment and t!

16

EEOC's motion to dismiss.
BACKGROUND

The plaintiff applied for the position of Assistant
Director of the Vanderbilt University Hospital. When the
plaintiff was not granted an interview for the position, he
charged Vanderbilt with discrimination. The plaintiff filed a
complaint alleging race and age discrimination in violation of
Title VII of the Civil Rights Act of 1964, and in violation of
the Age Discrimination in Employment Act ("ADEA"). In his
original complaint filed December 10, 1991, the plaintiff
named Vanderbilt University Hospital as a defendant alleging
that the hospital discriminately failed to hire him. On October
1, 1992, the plaintiff filed an amended complaint naming John
C. Callison, individually and as Assistant General Counsel for
Vanderbilt. The plaintiff further named the Department of
Justice, the Department of Health and Human Services, and

the EEOC and alleged that these agencies, together with the

1?

defendant Callison, conspired to deprive him of his rights
secured by the Constitution and the laws of the United States.
In their Answers to the Complaint, the defendants denied all
of the substantive allegations.

On September 30, 1992, Vanderbilt took the
deposition of the plaintiff, and the plaintiff took the
depositions of representatives of Vanderbilt, as well as the
defendants Callison and Mr. Donald Hancock, the Associate
General Counsel for Vanderbilt University.

Based upon the plaintiff's deposition, together with the
exhibits and the record in this case, Vanderbilt and Callison
have moved to dismiss or for summary judgment arguing that
the plaintiff cannot establish the essential elements of his
claims. Likewise, the defendant Tony E. Galiegos, Chairman
of the EEOC, has also filed for dismissal of this case arguing
that the plaintiff cannot prove the elements of his claim. |

FACTS

1%

Following the resignation of Ms. Sandra Randolph,
Vanderbilt University Hospital began advertising for a
replacement for her. Ms. Randolph held the position of
Assistant Hospital Director. Vanderbilt received over one
hundred applications including the plaintiffs. The plaintiff
supplied Vanderbilt with his resume, college transcripts, a
retirement form from the United States Army, a writing
sample, and various certificates of training.

The applications were initially reviewed by Ms. Carrie
Warring, then Administrative Resident in the Vanderbilt
University Hospital and Ms. Janice Hallmark, then Director of
Staffing and Recruitment. Ms. Warring and Ms. Hallmark
compared each of the applicant's qualifications with the
requirements for the position in an attempt to reduce the
number of candidates to a more manageable number. The
only information available to Ms. Warring and Ms. Hallmark

was the information supplied by the applicants themselves.

19

(See Affidavits of Warring and Hallmark)

Applicants were eliminated based upon their lack o
educational background for the position, or lack of relevar
experience for the position. Applicants were also eliminate
who, although they possessed the relevant experience, had
had recent experience in the areas necessary for the positio
Only those applicants whose applications and supporting
information indicated the ;most recent and the most relevai
experience survived this screening. Only 50 to 60 applican
survived this initial screening. The plaintiff was not one of
them and his application was not considered further.

The plaintiff's resume failed to indicate the length o
service or the dates of his work history and showed little
relevant experience.

During the next stage of the hiring process, Mr. Do
Hancock, Director of Vanderbilt University Hospital, and

other members of his staff reviewed the applicants who hac

20

survived the first stage. The list was further narrowed to 14
viable candidates for the position. These candidates were
then interviewed by telephone, after which time the list was
narrowed to six candidates. These six were invited to
Vanderbilt for personal interviews.

Following the personal interviews, Mr. Hancock
offered the position to Mr. Gerald Russell, a black male. Mr.
Russell, however, withdrew his name from consideration
because his present employer offered him a promotion with a
substantial increase in salary. The position was then offered
to Ms. Charlotte Rogers, a female who at the time was over
the age of 40.

The plaintiff was notified by letter dated November
26, 1990, that he did not receive the position because his
qualifications did not match the specific requirements of the
position.

On February 17, 1991, the plaintiff filed charges of

2!

race and age discrimination and retaliation for having filed
previous charges of discriminatory employment practices
against Vanderbilt with the EEOC. The EEOC determined
that no reasonable cause existed to believe that the plaintif
allegations were true. The plaintiff then filed the present
action.
SUMMARY JUDGMENT STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure
provides that sumr.ary judgment may be granted

"if the pleading, depositions, answers to

interrogatories, and admissions on file, together wit

affidavits, if any, show that there is no genuine issu

as to any material fact and that the moving party is

entitled to judgment as a matter of law."

The Advisory Committee for the Federal Rules has
noted that "The very mission of the summary ,judgment
procedure is to pierce the pleading and to assess the proof

order to see whether there is a genuine need for trial."

Advisory Committee Notes on Rule 56, Federal Civil Judic

22.

iim

Procedure and Rules (West. Ed. 1990).

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

106 S. Ct. 2505 (1986), the U.S. Supreme Court explained
the District Court's function in ruling upon a motion for

summary judgment:

Rule 56(c) of the Federal Rules of Civil Procedure
provides that summary judgment shall be rendered
forthwith if the pleading, depositions, answers to
interrogatories, and admissions on file, if any, show
that there is no genuine issue as tc any material fact
and that the moving party is entitled to a judgment as
a matter of law.

By its very terms, this standard provides that the mere
existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that
there be on genuine issue of material fact.

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. Factual disputes that are
irrelevant or unnecessary will not be counted.

** *%

More important for present purposes, summary
judgment will not lie if the dispute about a material

23

fact is "genuine," that is, if the evidence is such that a
reasonable jury could return a verdict for the

nonmoving party.

... we are convinced that the inquiry involved in a
ruling on a motion for summary judgment ...
necessarily implicates the substantive evidentiary
standard of proof that would apply at the trial on the
merits. If the defendant in a run of the mill civil case
moves for summary judgment..., on the lack of proof
of a material fact, the judge must ask himself not
whether he thinks the evidence unmistakably favors
one side or the other but whether a fair minded jury
could return a verdict for the plaintiff on the evidence
presented. The mere existence of a scintilla of
evidence in support of the plaintiff's position will be
insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff. The judge's
inquiry, therefore, unavoidably asks whether
reasonable jurors could find by a preponderance of the
evidence that the plaintiff is entitled to a verdict --
‘whether there is [evidence] upon which a jury can
properly proceed to find a verdict for the party
producing it, upon whom the onus of proof is
imposed.’

477 US. at 247-8, 106 S.Ct. at 2509-12. (emphasis in
original) (citations omitted).

The party that opposes the motion has the burden to

2.4

come forth with sufficient proof to support its claim,
particularly when that party has had an opportunity to
conduct discovery. Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S. Ct. 2548, 2552 (1986). It is true, however, the
"{iJn ruling on a motion for summary judgment, the court
must construe the evidence in this most favorable light in
favor of the party opposing the motion and against the
movant. Further, the papers supporting the movant are

| closely scrutinized, whereas the opponent's are indulgently
treated. It has been stated that: "The purpose of the hearing
on the motion for such a judgment is not to resolve factual

issues. It is to determine whether there is any genuine issue

of material fact in dispute..." Bohn Aluminum & Brass Corp.

v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962)
(citations omitted). As the Sixth Circuit Court of Appeals

stated recently:

Summary judgment may only be granted when the
pleading, depositions, answers to interrogatories,

25

admissions and affidavits demonstrate 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. Rule 56(c), Fed. R. Civ. P. All facts and
inferences to be drawn therefrom must be read in a
light most favorable to the party opposing the motion.

Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.) cart.
denied, 444 U.S. 986 (1979).

Duchon v. Cajon Co., 791 F.2d 43, 46 (6th Cir. 1986) app.

840 F.2d 16 (6th Cir. 1988) (unpublished opinion).

The Supreme Court has defined a ‘material issue of
fact’ as one "where the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party "

Matsushita Electrical Industrial Co. v. Zenith Radio, 475 US.

574, 587, 106 S. Ct. 1348 (1986) (citations omitted).

In Street v. J.C. Bradford & Co., 886 F.2d 1472,

1478-80 (6th Cir. 1989), the Sixth Circuit discussed the
trilogy of leading Supreme Court cases on summary
judgment, and synthesized ten rules to guide the Circuit into

the "new era" of summary judgment motions. J.C. Bradford,

886 F.2d at 1479-80. The Court of Appeals stated that "[t]he |

26

respondent must address more than a scintilla of evidence to
overcome the motions [and] .. must 'present affirmative
evidence in order to defeat a properly supported motion for
summary judgment." J.C. Bradford, 886 F.2d at 1479 In
addition, the Court of Appeals warned that:
The respondent must 'do more than simply show that
there is some metaphysical doubt as to the material
facts.’ Further, '[w]here the record taken as a whole
could not lead a rational trier of fact to find’ for the
respondent, the motion should be granted. The trial

court has at least some discretion to determine
whether the respondent's claim is ‘implausible.'

Street v. J.C. Bradford & Co., 886 f 2d 1472, 1480. See also
Hutt v. Gibson Fiber Glass Products No. 89-5731 (6th Cir.

Filed September 19, 1990) ("A Court deciding a motion for
summary judgment must determine ‘whether the evidence
presents a sufficient disagreement to require a submission to a

jury or whether it is so one sided that one party must prevail

as a matter of law." quoting Anderson v. Liberty Lobby,

supra).

27

In a recent decision, the Court of Appeals further

explained the District's role in evaluating the proof on a

summary judgment motion:

A district court is not required to speculate on
which portion of the record the nonmoving party
relies, nor is it obligated to wade through and search
the entire record for some specific facts that might
support the nonmoving party's claim. Rule 56
contemplates a limited marshalling of evidence,
however, does not require the nonmoving party to
"designate" facts by citing specific page numbers.
Designate means simply "to point out the location of."
Webster's Third New International Dictionary (1986).

Of course, the designated portions of the
record must be presented with enough specificity that
the district court can readily identify the facts upon
which the nonmoving party relies; but that need for
specificity must be balanced against a party's need to
be fairly appraised of how much specificity the district
court requires. This notice can be adequately
accomplished through a local court rule or a pretrial
order.

InterRoyal Corp. v. Spoonseller, 889 F.2d 108, 111 (6th Cir.

1989) (citations omitted) cart. den. 110 S. Ct. 1839 (1990).
Here, the parties have given specific references to the

proof upon which they rely, e.g., to "deposition excerpts” and

23

other documents.

Under these holdings, it appears that upon a motion
for summary judgment, three questions are to be asked: (1)
does the plaintiff present sufficient facts to establish all the
elements of his claim? (2) are those facts sufficient to support
a jury verdict or judgment? and (3) are there any material
issues with respect to those facts?

DISCUSSION

Chai inst Vanderbilt and Cali

In a employment discrimination action, courts apply
the order and allocation of proof as set forth in McDonnel-
Douglas Corp. Green, 411 U.S. 792 (1973). The plaintiff
first bears the burden of presenting a prima facie case of
discrimination. Upon presentation of a prima facie showing
of discrimination, the burden shifts to the employer to
articulate a legitimate nondiscriminatory reason for the

adverse employment action. Upon the defendant

29

demonstrating a legitimate non-discriminatory reason, to
prevail the plaintiff must demonstrate that the defendant's
reason is pre-textual or not valid. In the event that the
plaintiff cannot establish a prima facie case, or cannot show
that the employer's reason is pre-textual or not credible, the
defendant is entitled to judgment as a matter of law. See
McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th
Cir. 1990) (plaintiff making age discrimination claim carries
the initial burden of proving by a preponderance of the
evidence a prima facie case of age discrimination).

The plaintiff alleges that he was not hired because of
his race (black) and age (70 at the time of application) and
thus, was unlawfully discriminated against. To establish a
prima facie case of race or age discrimination, a plaintiff must
show: (1) membership in a protected class; (2) that he
possessed qualifications to perform the requirements of the

job; (3) that he was subjected to an adverse employment

30

decision; and, (4) that the circumstances of the adverse action
give rise to an inference of discrimination. See Gagne v.
Northwestern National Insurance Company, 881 2d 309,

313 (6th Cir. 1989); Simpson v. Midland Ross Corp., 823

F.2d 937, 940 (6th Cir. 1987); Blackwell v. Sun Electric

Corp., 696 F.2d 1176, 1180-81 (6th Cir. 1983).

While the plaintiff has shown that he is a member of
the protected classes (he is black and over the age of 40), he
-has not adequately demonstrated that the remaining three
factors are present. The position that is the subject of the
present litigation is one which the plaintiff also applied for in

1983. at that time, the job of Assistant Hospital Director
went to Ms. Randolph. The plaintiff sued Vanderbilt for
failing to hire him alleging discrimination. The case was
before Judge Wiseman who ruled that the plaintiff's
employment history did not indicate that he was qualified for

the position. [Wrenn slip op.] the plaintiff is back before the

3\

federal district courts once again after making another
unsuccessful bid for the position of Assistant Hospital
Director following the resignation of Ms. Randolph. Under
the principal of res judicata, Judge Wiseman's earlier finding
that the plaintiff is not qualified prevents the plaintiff from
asserting that he is under the present set of facts. Based upon
a review of the record in this case and the plaintiffs
credentials, the Court finds that the plaintiff has not
established that he was qualified for the position. He has
presented no new information regarding recent job
responsibilities which would have made him qualified for the
position applied for in 1990.

Even assuming that the plaintiff has established a
prima facie case the plaintiff would still have to overcome any
legitimate nondiscriminatory reason for not hiring him. Here,
Vanderbilt asserts that the reason the plaintiff was not hired

was because he did not possess the necessary criteria to be

my

considered for the position [namely prior related work
experience]. The plaintiff has failed to present any evidence
to the Court which would indicate that Vanderbilt's reason
was merely pre-textual. an examination of the record in this
case reveals that the position which the plaintiff sought
required that the applicant have three to five years of
progressive responsibilities in health care management.

} Vanderbilt also indicated a preference for experience in a
teaching hospital. While the plaintiff did work for the
University of Maryland's large teaching hospital, he held that
position for only two years. Moreover, the plaintiff held that
position more than 14 years ago and was fired. Additionally,
the plaintiff's resume does not indicate that he has had any
"progressive responsibilities in health care management" as
was required by the position. The court, therefore, finds that
the plaintiff cannot establish that he was qualified for the

position and thus cannot establish a prima facie case against

33

the defendants Vanderbilt and Callison.

As for his claims of conspiracy, the Court finds no
evidence to support such a finding. The plaintiff relies upon
vague conclusory statements that Vanderbilt has conspired
with other agencies in America to prevent his employment in
health care. Such conclusory allegations are not sufficient to
withstand a motion for summary judgment. See McDonald v.

Union Camp Corp., 898 F.2d at 1162 (6th Cir. 1990).

In the light of the plaintiff's inability to support his
allegations of discrimination and conspiracy, summary
judgment is appropriate.

Claims Against the EEOC

The plaintiff has also alleged that certain federal
agencies have conspired to deprive him of his constitutional
and statutory rights with regard to seeking employment and
refusing to process his complaints of employment

discrimination. The plaintiff further alleges that the defendant

3

| federal agencies illegally concealed their conspiracy by

' refusing to provide the plaintiff with records and other
documents he requested. The plaintiff claims that the act of
refusing him his request was a violation of the Freedom of
Information Act (FOIA). The defendant, the EEOC and its

Chairman, move for dismissal, or alternatively, for summary

judgment. As grounds for their motion, the defendant argues
that the plaintiff's claims of conspiracy should be denied on
the grounds of res judicata. The EEOC argues that it has
prevailed on virtually identical claims filed against it by the
plaintiff on at least four prior occasions. The EEOC also
argues that the plaintiff's claims involving a FOIA action are
invalid. alternatively, the EEOC argues that if this court were

to find that the plaintiff has articulated a cognizable claim

under FOIA regarding the plaintiff's request for Vanderbilt
{

| University Hospital records, that the Chairman of the EEOC

is not the proper party defendant.

35

The EEOC is also seeking a permanent injunction
against the plaintiff from further abuse of administrative
judicial processes and costs and attorneys fees.

The plaintiff has filed similar actions against the EEOC
in a number of circuits.?, Among those circuits is the Sixth

Circuit where plaintiff filed a complaint in the Northern

*Wrenn v. Kemp, et al., No. 90-1063 (D.D.C) (the
plaintiff filed a complaint naming the EEOC and the
Department of Health and Human Services (HHS) as
defendants alleging that these agencies had violated the FOIA
and had failed to implement certain provisions of the Civil
Rights Act of 1964 by refusing to investigate complaints. The
District Court granted the defendants’ motion for summary
judgment. On Appeal, the District of Columbia Circuit
affirmed except for two issues under the plaintiff's FOIA
claim; Wrenn v. Sullivan, et al., No. R-91-2460 (D.Md) (the
plaintiff filed for declaratory and injunctive relief as well as
monetary damages for defendants’ alleged denial of his rights.
The District Court granted the defendants’ motion for
summary judgment finding that the plaintiff had litigated the
same issues before the District Court for the District of
Columbia); Wrenn v. Rosa, et al., No. 92-CV-2091 (LBS)
(S.D.N.Y.) (the plaintiff filed a complaint against the New
York State Division of Human Rights, EEOC and HHS
containing general allegations of a conspiracy to violate his
constitutional rights. The District Court dismissed his
complaint in its entirety.)

36

;

1B, cna aaa abel COR IS MEA RES lace

District of Ohio alleging that the EEOC had conspired against

him by refusing to process or investigate the plaintiff's charges
of discrimination. Wrenn v. Kemp, No. 1:92 CV 0133 (N_D.
Ohio) (Defendant's Exhibit !!). The district court granted a
summary judgment for the EEOC. On appeal, the Sixth
Circuit affirmed the lower court's judgment finding that the
plaintiff had failed to state a claim. (Wrenn v. Kemp, No. 92-
3513 Slip op. (6th Cir. Nov. 24, 1992) defendant's exhibit no.
13)

Upon siti of these earlier claims and the plaintiff's
present claims, the Court finds that the plaintiff's claims of
conspiracy on the part of the EEOC are without merit and are
barred by the doctrine of res judicata.

Likewise, the Court does not find that the plaintiff has
stated a viable claim under the FOIA. The plaintiff requested

a copy of the charge file in Wrenn v. Vanderbilt University

Hospital. the Regional Attorney of the EEOC Memphis

3)

District Office responded to the plaintiff's request by granting
it in part and denying it in part. The Regional Attorney
withheld four documents from the charge file. The plaintiff
appealed to the Office of Legal Counsel which responded by
denying in part and granting in part the plaintiff's request

whereupon the plaintiff received all but two of the documents

he requested. The documents withheld were the investigator's
Memorandum and a computer printout. The documents
withheld contained investigative information used by the
EEOC in making a determination of the charge. The EEOC
withheld the Investigator’ Memorandum based upon a
determination that they came within the fifth exemption to the F
FOIA, 5 U.S.C. SS552 (b)(5), as an inter-agency pre- |
decisional, deliberative document. |
The computer printout withheld from the plaintiff i
contained a partial listing of charges in the EEOC' Charge

Data System. the printout contained information regardinga

33

charging party's name and other personal information
including the codes indicating the nature of the charge. The
EEOC argues that this computer printout was rightfully
withheld because under Title VI, such information is required
to be withheld to protect the privacy of a charging party. The
FOIA also provides exemptions for such information under
the third and seventh exemptions to the Act, 5 U.S.C. SS552
(b)(3) and (7)(C).

In support of their request for injunctive relief and the
imposition of sanctions, the EEOC argues that the handling of
the plaintiffs numerous complaints with the EEOC has cost
well over $300,000. Moreover, the plaintiffs complaints are
often vexatious or frivolous costing not only in money but in
time spent handling them.

The imposition of an injunction barring a litigant is not
unheard of. the plaintiff is one of few individuals barred from

filing in forma pauperis petitions with the United States

37

Supreme Court. Wrenn v. Benson, 490 U.S. 89, 89 n. 1, 109
S. Ct. 1629 (1989).

Other courts have also imposed sanctions and
injunctions on the plaintiff for instituting frivolous litigation.”
In so doing the courts send a message that abuse of the
administrative and judicial process will not be tolerated. The
Court, however, is not willing to prevent the plaintiff form
ever filing another claim. Such an injunction, the Court finds,
would be to great an impairment upon the plaintiff's access to
the courts for redress of alleged grievances. Instead, the
Court ORDERS that no process shall issue upon further
claims brought by the plaintiff against the EEOC until the
Court has had an opportunity to review them. any documents
submitted by the plaintiff will be stamped "Received" and will

not be stamped "Filed" until review by the Court.

See cases on pp. 10-12 of the EEOC's brief and give a
brief rundown of the piaintiffs sanctions and injunctions

Ho

, i it tae
a et Teer ’

Pere tee ee ee ee ee

CONCLUSION

Based upon the findings herein, the Court hereby
GRANTS the motion for summary judgment filed by the
defendants Vanderbilt and Callison. The Court also
GRANTS the EEOC's motion to dismis; all of the plaintiff's
claims against it and Dismisses all other claims against the
remaining defendants. The Court, however, DENIES the
EEOC’s motion for injunctive relief but GRANTS their
motion for attorney's fees and costs. An affidavit setting forth
reasonable fees and costs should be submitted separately to
the Court.

There being no other matters remaining, this case is
DISMISSED. An Order consistent with the findings herein is
submitted contemporaneously.

Entered this the 10th day of June, 1993.

/s/John T. Nixen
JOHN T. NIXON, CHIEF JUDGE

|

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CURTIS L. WRENN
NO. 3:91-1005

VS.

VANDERBIL1 UNIVERSITY
HOSPITAL, et al.

ORDER
Pending before the Court in the above styled case are

Motions to Dismiss, or alternatively for summary judgments
filed by the respective defendants. As grounds for their
motion, the defendants argue that the plaintiff has failed to
prove his case.

For the reasons set forth in the contemporaneously
filed Memorandum, the Court GRANTS the defendant
Vanderbilt University Hospital's motion for summary
judgment. The Court GRANTS the defendant Equal
Employment Opportunity Commission's motion to dismiss.

The Court further ORDERS that no process shall

U2

issue upon further claims brought by the plaintiff against the
~ EEOC until the court has had an opportunity to seview them.

The Clerk shall stamp all further documents as "Received".

documents will not be stamped"Filed" until they have been
reviewed.
There being no other matters in this case it is

DISMISSED.

Entered this the 10th day of June, 1993.

/s/John T. Nixon

JOHN T. NIXON, CHIEF JUDGE
UNITED STATES DISTRICT
COURT

43

Page 1 of 11

UNITED STAirS COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ceisiendererencsmcmmaalllll

Case Number: 93-5994

Case Name: Curtis L. Wrenn v. Vanderbilt Hospital, et al

PRO SE APPELLANT'S BRIEF

Directions: Answer the following questions about the appeal
to the best of your ability. Use additional sheets of paper, if
necessary, not to exceed 50 pages; doubled-spaced if typed.
You need not limit your brief solely to this form, but you
should be certain that the document you file contains answers
to the questions below. The Court prefers short and direct
statements.

Within 28 days you should return your completed brief to:

The Office of the Clerk
United States Court of Appeals, Sixth Circuit
538 U. S. Post Office & Courthouse Building
Cincinnati, Ohio 45202-3988

(1) Did the District Court fail to consider important
grounds for relief? _ Yes_ If so, what grounds?

Title VII, ADEA and FOIA. See continuation sheet

Lf

P ;

‘i

%

i

(2)

(3)

Did the District Court incorrectly decide the facts?
Yes If so, what facts?

See continuation sheet

Do you think the District Court applied the wrong
law? Yes_ Ifso, what law do you want applied?

Rule 56 FRCP, Title VII, and FOIA. See Continuation sheet.

(4)

. (5)

(6)

Do you feel that there are any other reasons why the
District Court's judgment was wrong? _Yes_ If so,
what are they?

See continuation sheet

What action do you want the Court to take in this
case?

Remand to District Court.
See continuation sheet.

Do you think that this Court should hear oral
argument in this case? Yes_ If So, why do you
think so?

See continuation sheet.

I certify that a copy of this brief was sent to opposing counsel
via U. S. Mail on the 25th day of August , 1993.

/s/Curtis L. Wrenn
Signature (Notary not required)

45

Case N0.93-5994 |
Wrenn v. Vanderbilt, et al |
District Court No 91-01005

PRO SE APPELLANT'S BRIEF
(Continuation Sheet)

(1) Did the District court fail to consider important grounds
for relief. Yes.

The District Court failed to consider that the plaintiff was
entitled to relief under Title VII, the ADEA and the FOIA.
(2) Did the District Court incorrectly decide the facts?

a. The District Court failed to consider the significant
facts submitted by the appellant in opposition to each
defendant's motion for summary judgment. More specifically,
the defendants did not clearly establish that there were no
genuine issues for trial. The following issues are submitted
for this Court's consideration and review:

(1) Whether the person hired by Defendant
Vanderbilt was more qualified than the appellant.

(2) Whether the federal defendants have

46

conspired with other federal agencies and public and private
employers to deprive the appellant of equal employment
opportunity. Moreover, whether there is a conspiracy to
deprive him of the right to seek legal redress against those
who denied him employment

(3) Whether the federal defendants have
unlawfully denied the appellant information, records,
documents and things which he requested under the FOIA.

(4) Whether the defendants, by depriving the
appellant information under the FOIA, have deprived him of
the right to seek information to comply with the provisions of
Rule 11 FRCP (the “reasonable inquiry" requirement
mandated by that Rule

b. The District Court either failed to consider that the

appellant was more qualified than the person hired by
Defendant Vanderbilt or it improperly weighed the evidence.

(3) Do you think the District Court applied the wrong law?

7

a. The court failed to consider the requirement of

Fed. R. Civ. P. 5(c). In this case the defendants did not meet

their burden of production by showing the absence of a

genuine issue of fact. See, eg, Washington Post Co v_ U.S.

Dept. of Health and Human Services, 865 F.2d 320, 325
(D.C. Cir. 1989), quoting Anderson v. Liberty Lobby, 477

U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). courts do not

"weigh the evidence and determine the truth of the matter.
"Id., 477 US. at 249.

b. Title VII (disparate treatment). The District Court
ignored the fact that disparate treatment is said to define a
situation where the employer simply treats some people less
favorably than others because of their race and/or age. In this
case the appellant has been repeatedly denied equal
employment opportunity. In over five cases, despite being
more qualified than other applicants, he was not even

interviewed for the positions which he applied. See e.g.,

8

Wright v. National Archives and Records Service, 609 f.2d

| 702, 711 (4th Cir. 1979), quoting from International

: Brotherhood of Teamsters v. United States, 431 U.S. 324,

335 n, 15, 97S. Ct. 1843, 1854 n 15,52 L_Ed 2d 396 (1977).
c. Freedom of Information Act (FOIA). The District

Court failed to consider that the records, documents and
information the appellant requested of the federal defendants
were not withheld for a legitimate reason. More importantly,
NO court has rendered a decision regarding the merits of
appellant's request for information under the FOIA. See, e.g.,

Shaw v FBI, (1985, DC Dist col) 604 F. Supp 342 (Purpose

of FOIA is to increase citizen access to government records
and burden is on government to prove that document is

exempt from disclosure); Jordan v. U.S. Dept. of Justice

(1978) app DC 144, 519 F2d 753 (FOIA establishes statutory
presumption that all federal records are available); Mead Data

Cent., Inc. v._ United States Dept. of Air Force (1977) 184

“7

Bite >

F

App DC 350, 566 F2 242 (Agency cannot show that withheld
material is exempt form disclosure by sweeping and
conclusory affidavits); and Vaughn v_ U.S. 936 F2d 862, 869
(6th Cir. 1991).
".. in instances where it is determined that
records do exist, the District Court must do
more to assure itself of the factual basis and
bona fides of the agency's claim of exemption
than rely solely upon an affidavit."
- and -
"... a court must have sufficiently detailed
information regarding the contents of withheld
documents along with reasoning for the
application of specific FOIA exemptions to
enable the court to make an independent
assessment of both the contents of the
documents in issue and the applicability of any
asserted exemption(s).
Appellant's FOIA claim turns on the fact that the federal
defendants have not met the test promulgated by the Supreme
Court concerning the exemption of "Deliberative Process

Privilege." The self-serving conclusory affidavits of the

defendants are clearly not sufficient to explain why the

50

i
‘

E from disclosure. That is, the defendants have not establish

informaticn requested by the appellant is somehow exempted

- that the information the appellant requested is both "pre-

| decisional" and "deliberative". See, e.g., National Labor

Relations board v. Sears, Roebuck and Co., 421 U.S. 132,

149, 95 S. Ct. 1504, 1515, 44 L1 Ed2d 29 (1975), United

- States Dept. of Justice v. Julian, 486 U.S. 1, 108 S. Ct. 1606,

100 L.Ed.2d 1 (1988). See also, Wolfe v. Department of

- Health and Human Services, 889 F.2d 768, 774 (DC Cir.

1988) (en banc) (citing Mink, 410 U.S. 73, 93, S.Ct. at 827).

_ Also see, Schell v. United States Department of Health and

=

Human Services, 843 f.2d 933 (10th Cir. 1988) (quoting

Sears, 421 U.S. at 151, 95 S. Ct. at 1516).

(4) Do you feel there are any other reasons ..? Yes
This case clearly demonstrates that the District court was
unduly influenced by the actions of the United States

Attorney, a pattern which has been repeated throughout this

5 |

country. Of particular concern in this case is the action of
federal agencies to deprive the appellant of employment and
the nght to vindicate his civil nghts. Instructive is Greene v.

McElroy, 360 U.S. 474 (1959); Merritt v. Mackey, No 85-

4111, CA 9th cir, September 16, 1987, 56 LW 2179.

(5) What action do you want the Court to take?

Remand the case to the District Court and require that court
to hold a hearing to decide the merits of the appellant's claims.
(6) Do you think that this Court should hear oral argument?
It is absolutely essential that oral argument be heard by the
Court. The reason being, since at least 1981 the United
States Attorney, in concert with federal agencies and private
and public employers, have conspired to deprive the appellant
of the right to equal employment and the right to vindicate his
legal and civil rights against those who have unlawfully denied

him employment.

52

2 Cok te, i he Ss »
A Aaah Re

~ I certify that a copy of the foregoing was mailed on August
_ 25, 1993 to Tim K. Garrett, Michael L. Roden, and Kathleen
Oram, via first class U. S. Mail, postage prepaid.

_ The appellant will include at least the following record parts

Respectfully submitted,

/s/Curtis L. Wrenn

Curtis L. Wrenn, Pro Se
95 Champion Street

West Carthage, NY 13619
Tel: (315) 493-4028

CERTIFICATE OF SERVICE

/s/Curtis L. Wrenn
Curtis L. Wrenn

ADDENDUM

_ in his joint appendix:

a.

b.

Plaintiff's resume

Memorandum USDC, June 15, 1993
Plaintiff's First Amended Complaint

Plaintiffs Memorandum in Opposition to HHS

Plaintiffs Opposition to EEOC's Motion

53

f. Plaintiffs FOIA requests

g. Plaintiffs Opposition to Motion for Sum Judge

/s/Curtis L. Wrenn
Curtis L. Wrenn

Appendix G

Page 1 of 42

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DOCKET NO. 93-6181
93-5994

_ CURTIS L. WRENN,
Plaintiff-Appellant
vs

| VANDERBILT UNIVERSITY
| HOSPITAL ET AL.,

Defendants-Appellees.

REPLY BRIEF OF PLAINTIFF-APPELLANT

' CURTIS L. WRENN, PRO SE
95 Champion Street

West Carthage, NY 13619
Tel: (315) 493-4028

4

TABLE OF CONTENTS

TAs GP CHAT andi ill-V
STATEMENT OF TRGUBS. 2.5.06: icisucicnmerins, vi
I. ARGUMENTS:

A. THE DISTRICT COURT ABUSED
ITS DISCRETION IN GRANTING
SUMMARY JUDGMENT TO THE
DEFENDANT VANDERBILT
UNIVERSITY HOSPITAL 1-5

B. THE EEOC DID NOT PROVIDE
LEGITIMATE JUSTIFICATION
FOR REFUSING TO DISCLOSE
INFORMATION TO THE
APPELLANT UNDER PROVISIONS
OF THE FREEDOM OF
INFORMATION ACT (FOIA) 6-15

C. THE DISTRICT COURT'S
DECISION TO AWARD
ATTORNEY FEES AND COSTS
TO THE EEOC IS A CLEAR ABUSE
OF DISCRETION, IN THAT THE
DECISION IS NOT SUPPORTED
BY APPLICABLE LAW, THE
FACTS IN THE CASE AND THE
DOCTRINE OF RES JUDICATA 16-24

EE, COPE RN isinrieni nl ntene ae 25
CERTIFICATE OF SER VIG ..........ccssccenescessccscanesnes 26

, 56
ooo

TABLE OF AUTHORITIES
CASES PAGE

Addickes v. S. H. Kress & Co., 398 U. S. 144, 90
S. Ct. 1598, 26 LE. 2d 142 (1970). ............ ee 5

? Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250
NNN Mf Ait, Basa a inn-Lansungesbninegs 4

| Bivins v. Six Unknown Named Agents, 403 U.S. 388
I REED nshacnssesunccsvoivosseereseesesceasoneyes Oey

Board of Education Cincinnati v. Department of
| HE W., 532 F.2d 1070 (6th Cir. 1976).................. ee

Bohn Aluminum & Brass Corp. v. Storm King, ‘iid
| 303 F.2d 425, 427 (6th Cir. 1976)..............0.... ieee

Brown v. FBI, 658 F.2d 71, 73 (2d Cir. 1981)................ 9

By-Prod Corp. v. Armen-Berry Co., 668 F.2d 956
CPU TID cise ccsckecccsecsetcendstbcecsssccsseceesssteceeeees 3

Christianburg Garment Co. V. EEOC, $#$ U.S. 412,
423, 98, S. Ct. 694, 701, 54 L_Ed.2d 648 (1978)........... 18

Church of Scientology v. United States Postal Service
700 F.2d 486, 492 (9th Cir. 1983)..............e 23

Conrad v. Delta Air Lines, Inc., 494, F.2d 914, 919
OPED. chscksc cess dase scsenciviecccckeccsesssnsecccecsenseeees 4

} Cochran v. United States, 770 F.2d 949, 954 (11th Cir.

: i Dames & Moore v. United States Dept. of Treasury
(1982, DC Cal) 544 F Supp 94... 10

57

;
,

EEOC v. Locals 14 and 15, Intgern. U. of Oper. Eng.,
408 F. Samp SPE, STS CIGTT)..........6c.cccsccsscinscccesovcesers 21

Dept. of Justice v. Reporters, Cert. to CA DC Sup Ct.
Case No 87-1379 (Mar 1989)... ae 6,9,16

F_ D. Rich Co. v United States ex rel., Industrial
Lumber Co., 417 U.S. 116, 126, 94 S. Ct. 2157, 2163
SD ho oskaiicds sae ei eke 23

The Gazette Newspapers (DOE/OHA, October 31, 1991)
Cle He rn bea tee 11

Griffith v. Breckenridge, 403 U.S. 88, 91 S. Ct 1790,
DP Ge Se eS 20

Harnett v. Billman, 800 f.2d 1313 (4th Cir. 1987)... 18

Jordan v. United States Dept. of Justice (1978) 192 App

ice OU, Ue a ee 11

King v. IRS (CA7 ILL) 684 F.2d 517.0000. ll

Landrigan v. City of Warwick (1st Cir. 1980) 628 F.2d

PR a ee ee 22

Logan v. Zimmerman Brush Co., 455 U.S. 422, 428,

102 S. Ct. 1148,1153, 72 L_Ed.2d 265 (1982).............. 22

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163,

yy S|. ante gle cect ted see aI 21

Montana v. United States, 440 U.S. 147, 153, 99 S.Ct.

. % -% : & % 2» \epiiRabetneed emtigtlnatiegaemmucianeny 19

Masson V. New Yorker Magazine, Inc., 111 S. Ct.

y |, Mt | ae | ef | RRR Aner 4
58

_—

Mohasco Corporation v. Silver, 447 U.S. 807, 65
L.Ed $32, 100 S Ct. 2486 (1960).....................- 7

National Labor Relations Board v. Sears, Roebuck
and Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1515,
a4 Baie aa oS aia 821

Northern California Police Practices Project v. Craig
(1979 3d Dist) 90 Cal App 3d 116, 153 Cal Rptr 173...9

Ray v. U.S. Dept of Justice, 908 F.2d 1549, 1555
(Rith Gir NIG oii a... 9

Sankovich v. Life Ins. Co. on N. Am., 638 F.2d 136
(Ste Cir. 1961)... i.e cceteeteteceeenetenerenens 4

Schell v. United States Department of Health and
Human Services, 843 F.2d 933 (10th Cir. 1988)......... 8

Schell v. United States Department of Health and
Human Services, 843 F.2d 933 (10th Cir. 1988)........ 21

Shell Oil Co. v. IRS, (1991, DC Del) 772 F.Supp.
Smith v. Hudson, 600 F.2d 60 (6th Cir. 1979) cert.
dismissed 444 U.S. 986 (1979).................:::: cece. 5

Southwest Marine, Inc. v. Gizon, 112 S. Ct.
MG CUI hii eee. 4

United States v. Article of Device, 527 F.2d 1008,
1011 (6th Cir. 1976)..............::ccccccccceseeeeesseeseereeeenens 5

United States v. Diebold, 369 U.S. 654, 655, 82 S. Ct.
993, 81 EBA 26 176 (I90R) die eee. 3,5

United States v. Hoyos (1978. CA9 Ariz) 573 F.2d

1111, 3 Fed Rules Evid Serv 776... 10

United States Dept. of Justice v Julian, 496 US. 1,
108 S. Ct. 1606, 100 L.Ed. 2d 1 (1988)... 8,21

Vaughn v. U. S. 936 F 2d 862, 869 (6th Cir 1991).....7

Wolfe v. Dept. of Health and Human Services, 889
F.2d 768, 774 (DC Cir. 1988) | 8,21

Wrenn v. Kemp, et al, DC Cir. No. 91-5382 20,24
Wrenn v. Kemp, No 1:92 CV 0133 (N._D. Ohio) 23

Wrenn v. et al, No 92 CV 2091 (LBS)
(S.D.N.Y.).... 24

Wrenn v. Shalala, et al., 4th Cir. No. 92-2197... 20,24

£0

STATEMENT OF ISSUES

I WHETHER THE DISTRICT COURT ABUSED ITS
DISCRETION IN GRANTING SUMMARY
JUDGMENT TO THE DEFENDANT
VANDERBILT ALLEGEDLY BECAUSE THE
PLAINTIFF-APPELLANT DID NOT
DEMONSTRATE THAT HE MET THE STATED
QUALIFICATIONS FOR THE POSITION OF
ASSISTANT HOSPITAL DIRECTOR

Il WHETHER THE EEOC PROVIDED LEGITIMATE
JUSTIFICATION FOR ITS REFUSAL TO
DISCLOSE INFORMATION FROM ITS SYSTEM

OF RECORDS WHICH THE PLAINTIFF-

APPELLANT REQUESTED UNDER THE
FREEDOM OF INFORMATION ACT,
REGARDING DOCUMENTS, RECORDS AND
THING WHICH THE EEOC COMPILED IN
CONNECTION WITH ITS INVESTIGATION OF

THE PLAINTIFF'S CHARGE OF UNLAWFUL

6]

II.

i

EMPLOYMENT DISCRIMINATION AGAINST
THE VANDERBILT HOSPITAL AND 100 OTHER
CHARGES ALLEGEDLY FILED BY HIM IN THE
NASHVILLE DISTRICT.

WHETHER THE DISTRICT COURT ABUSED ITS
DISCRETION WHEN IT IMPOSED
COSTS/SANCTIONS ON THE PLAINTIFF-
APPELLANT BECAUSE OF HIS EFFORTS TO
OBTAIN INFORMATION, UNDER THE
FREEDOM OF INFORMATION ACT, FROM THE
EEOC WHICH THAT FEDERAL AGENCY
ADMITS THAT IT HAS AND/OR MAINTAINS IN
ITS SYSTEM OF RECORDS BUT REFUSES TO

DISCLOSE SUCH INFORMATION TO HIM.

—— ee

62

WHETHER THE DISTRICT COURT ABUSED ITS
DISCRETION IN GRANTING SUMMARY
JUDGMENT TO THE DEFENDANT
VANDERBILT

1. The District Court decided, among other things,

that “the plaintiff resume does not indicate that he has had any
“progressive responsibilities in health care management." The
"facts" articulated by the District Court are not supported by
the following positions held by the appellant during his

employment in health care management:

Administrator - 25-bed acute care urban hospital
Administrative Residency - 860+ bed medical center
Personnel Director - 860+ bed medical center
Associate Director - 810 bed teaching hospital
Executive Director - 460 bed psychiatric hospital
Executive Director - 510 bed psychiatric hospital
Executive Director - Ambulatory Health Care Center
Health Systems Specialist - United States Army.

2. The District Court's statements concerning the

appellant's alleged lack of qualifications for the position which

he applied is not supported by any facts of records.

63

Moreover, the District Court's attempts to mask its
unfounded decision with reference to the same position the
appellant applied for in 1983, must also fail. Of particular
significance in this case is the court's reference at page two tc
the resignation of Sandra Randolph. Ms. Randolph, a former
student (the appellant was her preceptor at the University of
Maryland) of Wrenn, was hired because she was more
qualified than the appellant. Of particular concern in this casi
is the question of how the appellant was found to be qualifiec
for a higher position at Vanderbilt (Associate Director in
1978) but is not qualified for the position of Assistant
Director in 1993.

3. The District Court, while alleging that the
appellant was not qualified, has not articulated any
information regarding the employer's basis for the hiring of
the successful applicant. See Appendix B(7), esp. Exhibits A
and B. Thus this case turns on the relative qualifications of
the two applicants: the appellant who has extensive

experience in health care management and the successful

64

applicant who, according to her resume has had NO such
health care management experience.

4 The appellee has failed to adduce any reason or
argument to rebut the appellant's demonstration that the

District Court clearly erred in determining that the appeliant

_ did not present a prima facie case because he was not

| qualified. The facts of record clearly demonstrates that the

appellant met the employer's stated requirements for the
position at issue.

5. It is respectfully submitted that the District Court's
determination that the appellant failed to establish a prima
face case is clearly erroneous.

6. Summary judgment was not appropriate in this

case because, among other things, there is the issue of the

relative qualifications of the appellant compared with those of

> the successful applicant. Thus there remains questions of

facts regarding their qualifications. See, e.g., By-Prod Corp.

v. Armen-Berry Co., 668 F.2d 956 (7th Cir. 1982). See also,
Lujan v. National Wildlife Fed'n, 497 U.S. 871,110 S. Ct.

65

3177, 111 L.Ed. 2d 695 (1990).

7. The appellant argued that he is more qualified than
the successful applicant. The District Court's failure to
address the qualifications of the successful applicant, while
maintaining that the appellant was not qualified is a clear
abuse of discretion. The question: Did District Court find
that the successful applicant was qualified? If so, why is it the
court did not articulate its findings? In such a case, and in the
absence of such a decision, appellant's version of the facts
must be accepted, and all disputed matters resolved in his
favor. United States v. Dievold,.369 U.S. 654, 655 82S. Ct
993, 81 L. Ed. 2d 176 (1962).

8. In its broadest scope, the summary judgment
procedure is in the nature of a pretrial inquiry, brought on by
motion of either a claimant or a defending party, for a
favorable determination that a trial is unnecessary because
there is no genuine issue as to any material fact, and that on

the established facts the movant is entitled to judgment as a

matter of law. See, e.g., Masson V. New Yorker Magazine,

66

j nc. 111 S.Ct. 2419, 115 L. Ed. 2d 447 (1991). It is not the
nction of the trial court in considering summary judgment to
: esolve any genuine factual issue. For example, to hold that

{ the appellant was not qualified and while not considering the
: qualifications of the successful applicant is fact-specific, the
District Court deprived the appellant of the opportunity to

4 show that his qualifications exceeded those of the person

: hired. See, e.g., Southwest Marine, Inc. v. Gizon, 112 .
E 486 (1991). This is especially true when there are facts which
; different inferences might be drawn by reasonable minds.
Sankovich v. Life Ins. Co. on N. Am, 638 F.2d 136 (9th Cir.
| 9. This case turns on the abuse of discretion by the

j District Court in a case involving a well established principle
: that summary judgment is generally inappropriate in cases
involving questions of motive or intent, i.e. the motive or

{ intent of the Vanderbilt Hospital in denying the appellant

j employment for ever position which he applied, continuing

> since at least 1978. See, e.g., Conrad v. Delta Air Lines, Inc.,

6?

en

494, F.2d 914, 919 (7th Cir. 1974) Moreover, courts do not,

as was done in this case, weight the evidence and determine

the truth of the matter at issue. Anderson v. Liberty Lobby.

Inc. 477 U.S. 242, 250 (1986).

10. In summary, all of the evidence before the Court
on a summary judgment mot).9n must be construed in the light

most favorable to the non-moving party. See, e.g, Smith v.

Hudson, 600 F.2d 60 (6th Cir. 1979) cert. dismissed 444 US.

986 (1979). Board of Education Cincinnati v. artment of

H.E.W., 532 F.2d 1070 (6th Cir. 1976).

11. It is clear that the burden is on the moving party
seeking summary judgment to clearly establish the non-
existence of any material issue of fact. See, e.g., United
States v. Article of Device, 527 F.2d 1008, 1011 (6th Cir.
1976. In applying that standard, this Court has further held
that the evidence supporting the motion will be "closely
scrutinized" while that of the opposing party should be /
"indulgently treated". Bohn Aluminum & Brass Corp. v.
Storm King, Corp., 303 F.2d 425, 427 (6th Cir. 1962).

63

12. Finally, where conflicting inferences may be
drawn from the evidence before the court on a motion for
summary judgment, the court must draw those inferences
against the movant and in favor of the not-movant. United

States v. Diebold: Addickes v. S.H. Kress & Co., 398 US.

144,90 S. Ct. 1598, 26 LE. 2d 142 (1970). These standards
were not adhered to by the District Court. The District

Court's granting of summary judgment in favor of the

_ defendant-appellees was clearly erroneous. Accordingly, this
- Court should vacate and remand and/or reverse.

II. WHETHER THE EEOC PROVIDED LEGITIMATE
JUSTIFICATION FOR ITS REFUSAL TO
DISCLOSE INFORMATION REQUESTED BY
THE APPELLANT UNDER THE FREEDOM OF
INFORMATION ACT

1. The FOIA (5 USC552(a)(3) provides:

"An agency, upon request, must make its
records "promptly available to any person"
requesting them, provided the request
"reasonably describes” the records sought."

- and -
"When an administrative appeal is denied, a

requester has the right to appeal the denial in
court."

69

- and -

An FOIA appeal can be filed in the United

States District Court in the district where the

requester lives. The requester can also file in

the district where the documents are located or

in Washington, D.C.

- and -

"When a requester goes to court, "the burden

of justifying the withholding of documents is

on the government."
See, e.g., Dept. of Justice v. Reporters, Cert. to CA DC Sup
Ct Case No 87-1379 (Mar 1989). See also Appendix B and
B(1) through B(5). This court is being asked to bring to a
close the continuing denial of information the appellant has
requested from the EEOC concerning 100 charges the EEOC
alleges he filed in the Nashville District. Moreover, the court
is asked to bring to a close the EEOC’s continuing use of its
own rules to deprive the appellant of rights, privileges and
immunities secured by the Constitution (esp. the First and
Fourteenth Amendments) and laws (esp. The Equal
Employment Opportunity Act and the Age Discrimination in

Employment Act) of the United States. See, e.g., Mohasco

70

i. ee eee eee a ee ee ee ee) ee ee

" - ‘ ‘ * 7
gh a Oe eee NP eT ae eee ke ee, ee oe vee

Corporation v_ Silver, 447 U.S. 807, 65 L. Ed 532, 100 S. Ct
2486 (1980) where the Court noted: "The Equal

Employment Opportunity Commission Cannot adopt
regulations that are inconsistent with its statutory mandate
under the Civil Rights Act of 1964 .."

2. The FOIA issue in this case concerns a statement
by the EEOC that the appellant filed 100 charges in "this
distnict". The appellant submitted a legitimate request to the
EEOC for information concerning those charges. The request
was denied ond the appellant filed a complaint in the district
court, under that provisions of the FOIA which clearly states:
"When an administrative appeal is denied, a requester has the
RIGHT (emphasis added) to appeal the denial in court."

3. The EEOC has acknowledged that it refused
disclose information to the appellant concerning his charge
against the Vanderbilt University Hospital as well as 100
other charges. By acknowledging that the information exists,
the EEOC is obligated to provide the requested information

under the FOIA. See, e.g., Vaughn v. U.S. 936 F.2d 862,

71

869 (6th Cir. 1991):
"... In instances where it is determined that
records do exist, the District Court must do
more to assure itself of the factual basis and
bona fides of the agency's claim of exemption
than rely solely upon an affidavit."

- and -

"... a court must have sufficiently detailed
information regarding the contents of withhel
documents along with reasoning for the
application of specific FOIA exemptions to
enable the court to make an independent
assessment of both the contents of the
documents in issue and the applicability of any
asserted exemption(s)."

4. the esserce of the appellant's FOIA argument is
that the selfserving conclusory statements of the EEOC are
clearly not sufficient to explain why the information requeste:
by him is somehow exempted from disclosure and/or why he

is not entitled to pursue the denial of information in federal
court. See, e.g., National Labor Relations Board v. Sears,
Roebuck and Co., 421 U.S. 132, 149, 95 S. Ct. 1504, 1515,
44L Ed. 2d 29 (1975); United States Dept. of Justice v.

Julian, 486 U.S. 1, 108 S. Ct. 1606, 100 L.Ed. 2d 1 (1988).

See also, Wolfe v. Department of Health and Human

—

Wservices, 889 F.2d 768, 774 (DC Cir. 1988) (en banc) (citing

ink, 410 US. 73, 93 S. Ct. at 827). Also see, Schell v.

United States Department of Health and Human Services, 843

FF 2d 933 (10th Cir. 1988) (quoting Sears, 421 U.S. at 151, 95

7S. Ct. at 1516).

5. Appellant's argument turns on the issue

7 concerning whether the District Court abused its discretion in

» apparently refusing to consider important facts in the case.

r(

+ See Appellant's FOIA request at Appendix B(2) through

7 B(5). See also, Ray v. U. S. Dept of Justice, 908 F.2d 1549,

} 1555 (11th Cir. 1990):

"Because FOIA is a “broad disclosure statute
which evidence a ‘strong public policy in favor
of public access to information in the
possession of federal agencies Cochran v.
United States, v. federal Bureau of
Investigation, 658 f.2d 71, 73 (2d Cir. 1981),
the disclosure requirements of FOIA must be
construed broadly and the exceptions
narrowly, ... Documents are presumed to be
subject to disclosure, when the government
seeks to invoke an exemption, it bears the
burden of proving that the exemption applies."

6. The Supreme Court has made clear that the

FOIA's purpose is to provide the public with a mean of

"2

learning what its government is up to. U_s. Dept. of Justice
v. Reporters Committee, 489 U.S. 749, 109 S. Ct. 1468,
1481, 103 L.Ed. 2d 774 (1989).

7. The focus of the FOIA is information, not
documents, and agency cannot justify withholding entire
document simply by showing that it contains some exempt
material. The FOIA expressly requires disclosure of any |
reasonably segregable portion of public record. See, e.g. |
Norther California Police Practices Project v. Craig (1979, 34
Dist) 90 Cal App 3d 116, 153 Cal Rptr 173.

8 This case turns on the question regarding whether
the EEOC met its burden concerning its claimed exemptions,
esp. the "invasion of the personal privacy of each charging
party" exemption. In this case there is only one charging .
party - the plaintiff who requested information concerning
charges HE FILED and NO information regarding charges |

filed by others. the burden of proof is on agency claiming

exemption from statutorily imposed duty to disclose

information, and court must apply that burden with awareness

tks

that plaintiff is at distinct disadvantage in attempting to
Hcontrovert agency's claims. See, e.g., United States v_ Hoyos
4(1978, CA9 Ariz) 573 F2d 111, 3 Fed Rules Evid Serv 776.

9 In order to establish that documents are exempt

‘from disclosure under FOIA, the EEOC bears burden of

sshowing that each document (in this case each of the 100+
charges of unlawful employment discrimination which the
EEOC alleges that the appellant filed in this district) is wholly
xempt. Dames & Moore v. United States Dept. of Treasury
991982, DC Cal)544 F Supp 94.
: 10. this court is being asked to decide whether the
istrict Court abused its discretion in deciding in the
appellee's favor in response to appellant's FO"A claims. In
‘Jreviewing the case the court is asked to decide whether the
nauthorized disclosures concerning charges the appellant
{ led with the EEOC constitutes a waiver of EEOC's right to
deliberative process privilege under 5 USC 552(b)(5).
actors that should be weighed to determine whether

ocument is protected by deliberative process privilege

yiy

include whether document is deliberative, whether document
is predecisional, whether document is so candid and personal
in nature that public disclosure would stifle honest oll frank
communication in future, and whether document is
recommendation or in draft that will become final document;
only deliberative, predecisional inter-agency or intra-agency
memoranda come within scope of privilege. See Shell Oil Co.
v_ IRS, (1991, DC Del) 772 f. Supp. 202; The Gazette
Newspapers (DOE/OHA, October 31, 1991) Case No. LFA-
0149). Moreover, the EEOC bears burden of proving what
deliberative process is involved and what role document plays
in that process in order to exempt document. King v. IRS,
(CAT ILL) 684 f.2d 517.

11. The FOIA establishes statutory presumption that
all federal records are available to any person, and this
presumption is rebutted only be evidence presented by agency
that item sought is exempt from disclosure under one of nine
enumerated exemptions; to meet its burden, agency must

identify specific statutory exemption relied upon and

76

demonstrate that exemption applies to documents in question
(the 100+ charges allegedly filed by the appellant with the

EEOC). Jordan v. United States Dept of Justice (1978) 192

App DC 144, 591 F2d 753.

12. The EEOC cannot show that withheld material is
exempt from disclosure by sweeping and conclusory affidavits
together with submission of withheld material for in camera
review: agency must also submit relatively detailed
justification, specifically, identifying reasons that particular
exemptions are relevant and conrelating those claims with
particular parts of withheld documents to which they apply.

nt., Inc. v. Uni _of Air Fores
(1977) 184 App DC 350, 566 F2d 242.

13. The EEOC has not demonstrated its entitlement
to summary dismissal/judgment. Summary judgment in favor
of agency is proper only where agency proves that each
document (in this case the 100+ charges) that falls within
class requested either has been produced, is unidentifiable, or

is wholly exempt from Freedom of Information Act's

77

inspection requirements. National Cable Television Asso. v.

Federal Communication Com., (1973) 156 App DC 91, 479

F2d 183.

14. The EEOC has not proven that no substantial
material facts are in dispute. More specifically, the agency
has not established the status and/or disposition of the 100
charges allegedly filed by the appellant. Moreover, the EEOC
has not disclosed the requested information nor has it proven
that the information concerning the charge filed by the
appei:2znt against Vanderbilt Hospital or the 100 other charges
filed by him are somehow exempt from disclosure. Court
may grant summary judgment only if it is satisfied that moving
party has proven that no substantial material facts were in
dispute that it is entitled to judgment as matter of law.
Schlesinger v. CIA (1984, DC Dist Col) 591 F. Supp 60. the
substantial material fact at issue is the information contained
in the system of records concerning the “list of 100 charges".
Given that the list may be computerized, the FOIA applies to

computer tapes to same extent it applies to any other

78

documents. computer stored records, whether stored in
central processing unit, on magnetic tape or in some other
form, are still records for purposes of FOIA. Yeager v. Drug

Enforcement Admin. 91982) 220 App DC 1, 678 F2d 315, 8

Media L R 1959.
15. This case is a clear example of the abuse of
discretion by the District Court. That is, the court failed to

direct the disclosure of significant important information

_ which the appellant requested from the EEOC Moreover,

the court failed to examine important facts to justify its
decision to dismiss the EEOC. Courts were given authority
under 5 USC 5529a)(3) to review de novo any denial of
access in order that ultimate decision as to propriety of
agency's action is made by court and to prevent review from
becoming meaningless judicial sanctioning of agency's
discretion. See, e.g., Ray v. Turner (1978) 190 App Dc 290,
587 F2d 1187, on remand (DC Dist Col) 468 F Supp 730.
16. Based on the foregoing, the decision of the

District Court is clearly erroneous, in that the decision at

77

Appendix C is not supported by the facts of record. See

Anderson v. City of Bessemer City 470 U.S. ---(1985);
Pullman-Standard v. Swint, 456 U.S. 273 (1982); United

States v. United States Gypsum Co., 333 U.S. 364 (1948).
See also Appendix B and B(1) through B(5).

17. There is a major issue which the court failed to
address: That is whether the EEOC, in an attempt to coverup
its activities against the appellant has destroyed the appellant's
charges, and if so whether the destruction occurred before or
AFTER he filed his FOIA requests. More importantly, which
charges were destroyed, when, by whom and for what lawful
reasons. Of particular concern is that the EEOC has admitted
to numerous examples of charges "inadvertently being
destroyed". the question is why ANY of the charges were
destroyed. The FOIA provides:

"A requester who delays filing an appeal runs
the risk that the documents could be
destroyed. However, as long as an agency is
considering a request or an appeal, the agency
MUST (emphasis added) preserve the

documents."

18. This court is being asked to review the practices

- go

Slasssnschdvtca cided AAs det sl alADGA Risiti ad A Dah Ace deh eambemeemeiee mie Ce ee ee n

of the EEOC to deprive the plaintiff of the right to seek
redress against those who have denied him the right to equal
employment opportunity and EQUAL JUSTICE UNDER
THE LAW.

19. The plaintiff's action in this case turns on the
exercise of his free speech night under the First Amendment
and his lawful activities under following:

(J) The EEOC Act. The plaintiff has, since at
least May 1978, been trying to have the EEOC investigate his
charges of unlawful employment discrimination. The EEOC
has stated that its records show that one hundred 9100) such
charges were filed by the plaintiff in this district. However, its
has refused to provide him information.

(2) The FOIA. Upon the conclusion of those
investigation the EEOC allegedly did conduct, and those
which no investigation was apparently conducted, the plaintiff
exercised his lawful right and requested a copy of the
information, records, documents and things compiled by the

EEOC and which were maintained in its system of records.

3 |

the requests were denied.
(3) Rule 11 FRCP. the plaintiff requested

information under the FOIA in order to comply with that

provision of Rule 11 which states in part that:

"The signature of an attorney or party
constitutes a certificate by the signer .
that the signer has read the pleading,
motion, or other paper, that to the best
of the signer's knowledge, infurmation,
and belief formed after
REASONABLE INQUIRY (emphasis
added) it is well grounded in

Ill. |. WHETHER THE DISTRICT COURT ABUSED ITS
DISCRETION IN IMPOSING SANCTIONS/COSTS
ON THE PLAINTIFF-APPELLANT FOR
APPEALING THE DENIAL OF INFORMATION,
RECORDS, DOCUMENTS AND THINGS WHICH
HE REQUESTED UNDER THE FOIA.

a all OS a al ite

1. On or about September 17, 1991 the appellant

submitted his FOIA request to the EEOC Regional Attorney,

in Nashville, wherein he requested "Please provide (me) with

a copy of the complete case file of the above captioned case

53-91-0339). The request was
partially denied, and the appellant appeal to the Chairman of

the EEOC. The administrative appeal was partially denied,

$2

and the appellant appealed that administrative denial by filing

a timely complaint in the United States District court, for the
Middle District of Tennessee.
2. The FOIA (5 USC 552 (a)(3)) provides:

"When an administrative appeal is denied, a
requester has the right to appeal the denial in
court."

See, e.g., Dept. of Justice v. Reporters.

3. Rule 11 of the Federal Rules of Civil Procedure

provides, among other things, that:
The signature of an attorney or party
constitutes a certificate by the signer that the
signer has read the pleading, motion, or other
paper, that to the best of the signer’s
knowledge, information, and belief formed
after REASONABLE INQUIRY (emphasis
added) it is well grounded in fact and is
warranted by existing law ..."

(NOTE: The facts developed in this case as well as those the

appellant made a legitimate effort to develop do not support

any conclusion that the plaintiff's action was improper,

without foundation, unlawful or was not grounded in fact or

was not warranted by existing law. Of particular note is that

neither the District Court nor the EEOC has claimed or

$3

alleged that the information requested by the appellant does
not exist. The sole issue in the FOIA appeal by the appellant
is whether or not the federal agencies lawfully denied
information to him regarding Vanderbilt Hospital on the basis
of some claimed exemption(s)).

4 the appellant's argument is that, based on the facts
in the case, NO FORM of sanctions and/or awarding of
attorney fees and/or costs and/or admonishment should have
been imposed on him but rather on the EEOC. In support the
appellant respectfully submits that the FOIA appeal in this
case was lawfully filed in the District Court of Nashville. The
appellant had three choices where he could file his FOIA
appeal (the Nashville Court (the district where the records are
allegedly maintained), District Court in Washington, or the
District Court in Northern New York (the district where he
resides). he filed the appeal in the Nashville District Court
because he was appealing the FOIA denial of information
concerning the investigation the EEOC allegedly conducted of

his charge of unlawful discrimination against the University of

uy

| ae

Vanderbilt Hospital. this filing was based on his efforts to
maximize the use of his limited resources by filing his FOIA
appeal and his related failure to hire claim involving
Vanderbilt in the same court.

5. It must be noted that NO court has found that the
appellant's appeal of the denial of information concerning the
Vanderbilt investigation (including the denial of information
concerning 100 other charges the appellant allegedly filed in
the Nashville District of the EEOC) was NOT a legitimate
claim or that the claim was frivolous. Since filing his request
for information in September 1991, the appellant has filed NO
FOIA claim in connection with the denial in ANY court.
Contrary to the EEOC and District Court, NO court has
found that the FOIA claims in this case was "frivolous,
unreasonable, or groundless, or were brought or continued in
bad faith, or that the plaintiff continued to litigate after it
Clearly become so." See Christiansburg Garment Co. v.
EEOC, 434 U.s. 412, 423, 98 S. Ct. 694, 701, 54 L.Ed. 2d

648 (1978). Thus, there is no basis in fact or law for the

8S

awarding of attorney fees and/or costs by the court against
the plaintiff Moreover, the action by the District Court is not
supported by the doctrine of res judicata. for a matter to be
res judicata, there must be identity of parties, identity of cause
of action, and a final decision on the merits. See, e.g.,

Harnett v. Billman, 800 F.2d 1313 (4th Cir. 1987). Also, it is

well settled in federal law that res judicata and collateral
estoppel do not apply when a person has been denied a full
and fair opportunity to litigate the issues OR has not received
a final judgment on the merits in the earlier case. It is
undisputed by the admissible evidence which clearly
demonstrates that NO court has decided the merits of the
issue concerning the denial of appellant's appeal of his FOIA
request for information compiled in the investigation of claims
against the Vanderbilt University Hospital. See also,
Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970,
973, 59 L_Ed2d 210.

4. The actions by the EEOC should not have been

condoned by the District Court. For the court to do so was a

$6

clear abuse of discretion. What should have been a major
concern of the District Court is the appellant's argument
concerning the continuing brazen acts of the EEOC in
deliberately violating The EEOC Act, by not processing
and/or investigating the plaintiff's charges, and the agency's
violation of the FOIA, by refusing to provide the plaintiff with
information for his use in prosecuting those who have denied

him equal employment opportunity. See, e.g., Bivins v. Six

Unknown Names Agents, 403 U.S. 388 (1971).

5. The continuing actions and/or inactions of the
EEOC clearly demonstrate a conspiracy to deprive piaintiff of
the equal enjoyment of rights secured by law to all. More
specifically, the rights promulgated in the Constitution (Free
Speech and Procedural Due Process) and Titles VI and VII,
of the Civil Rights Act of 1964, as amended, esp. The EEOC
Act of 1972. See, e.g., Griffin v. Breckenridge, 403 U.S. 88,
91 S. Ct. 1790, 29 L.Ed. 338 (1971).

6. This Court is respectfully asked to note and

compare the action and the results of the EEOC against the

$7

plaintiff in other courts involving FOIA claims, where, not
only did the courts NOT label his claims as “frivolous” or
award costs but two courts of appeal have vacated and
remanded them to the district court. See e.g., Wrenn v.
Kemp, USCA DC Cir, No 91-5382, December 2, 1992 (A
case where the appellant appealed the denial of information
concerning an allegation made by the EEOC to Senator
D'Amato that the appellant had filed 324+ charges), See also,
Wrenn v. Shalala, No 92-2197, Fourth Circuit CA, September
14, 1993 (a case concerning the denial of information
(information which the appellant has been trying to obtain
since at least 1982) regarding appellant's charge of unlawful
discharge against the University of Maryland Hospital).

7. the essence of the plaintiffs argument is that the
selfserving conclusory statements of the EEOC are clearly not
sufficient to explain why the information requested by him is

somehow exempted from disclosure and/or that he is not

entitled to pursue the denial of information in federal court.

'
and Co., 421 U.S. 132, 149 95 S. Ct. 1504, 1515, 44 L.Ed.2d

29 (1975); United States Dept. of Justice v. Julian, 486 U S.
1. 108 S. Ct. 1606, 100 L.Ed.2d 1 (1988). See also, Wolfe v.
Department of Health and Human Services, 889 F 2d 768,
774 (DC Cir. 1988) (en banc) (citing Mink, 410 U.S. 73, 93

S. Ct. at 827). Also see, Schell v. United States Department
of Health and Human Services, 843 F.2d 933 (10th Cir. 1988)

(quoting Sears, 421 U.S. at 151, 95 S. Ct. at 1516). The
EEOC has refused to provide information under the FOIA
concerning the 100 charges allegedly filed with it in the
Nashville District by the plaintiff.

8 The case also turns on the question regarding the
continuing actions of the EEOC against the plaintiff because
of his eanaenil civil rights activities, in opposing perceived
unlawful employment discrimination. Instructive is EEOC v.
Locals 14 and 15, Intgern. U. of Oper. Eng., 488 F. Supp

876, 879 (1977) where the courts states:

"it has been recognized from t he very first
day of our country that (t)he very essence of

37

civil liberty certainly consists in the right of
every individual to claim the protection of the
laws, whenever he receive an injury. One of
the first duties of the government is to afford
him that protection. ..." citing Marbury v.
Madison, 5 U.S. (1Cranch) 137, 163, 2
L.Ed.60 (1803)."

- and -

"(2) part of this duty of the government to
provide the protection of law is that litigants
and witnesses who appear before federal
courts do so secure in the knowledge that they
cannot be harassed, intimidated, punished or
otherwise suffer harm because they availed
themselves of judicial system..."

9. The facts in this case present compelling and

convincing evidence that on the basis of the EEOC's action,

the plaintiff has been deprived of the right to pursue valid

claims in federal courts against those who denied him equal

employment opportunity. Thus this case was a request to the

court to determine whether the plaintiff had been denied equai

protection of the laws, and whether his request for

information was legitimate use of his First Amendment nights.

See, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422,
428, 102 S. Ct. 1148, 1153, 72 L.Ed.2d 265 (1982) (a cause

70

of action is a form of "property"); Landrigan v. City of

Warwick, (Ist Cir. 1980) 628 F.2d 736, 744 (coverup can

give rise to cause of action for deprivation of right of access
to courts).

10. The action of the EEOC is willful, malicious and
an intentional abuse of discretion. Moreover, the action
shows bad faith by the EEOC. in that the information
concerning Vanderbilt and the alleged 100 charges filed by the
appellant in the Nashville District Is NOT ALL RELATED
TO ANY other claims he filed in ANY other court. The
reference by the EEOC and the court to any other claims filed
by the appellant are not related to the action herein and is
solely an attempt to mask their unlawful conduct against him.
Therefore, the appellant is entitled to award of HIS costs (5
USC 52(aX4)(E)); appropriate sanctions (Rule 11, FRCP),
and punitive damages for the EEOC's misrepresentation of the
facts in this case, and that agency's intentional refusal to
provide information requested by the plaintiff concerning
Vanderbilt and 100 charges of discrimination which the

EEOC maintains that he filed with its Nashville District. See.

e.g., F.D. Rich Co. v. United States ex rel., Industrial Lumber

Co. 417 US. 116, 126, 94 S. Ct. 2157, 2163, 40 L.Ed.2d 703

(1974); Church of Scientology v. United States Postal Serv.,

700 F.2d 486, 492 (9th Cir. 1983).

11. In summary, the action by the District Court is
cleariy erroneously as well as a clear abuse of discretion. The
issue here is the denial of information under the FOIA by the
EEOC and other federal agencies (esp. EEOC and DHHS)
concerning the investigation of the charge filed by the
appellant against the Vanderbilt University hospital. Also, the
denial of information concerning a conspiracy to aid and abet
by the Department of Justice, DHHS and EEOC.

12. The following claims cited by the District Court
as having been pursued by the appellant in other courts have
not bearing and/or relevancy to the FOIA issue presented
here:

(1) Wrenn v. Kemp, No. 1:92CV 0133 (N_D.
Ohio) was and FOIA appeal of the denial by the EEOC of

br

copy of the "33-day Notice" which the EEOC allegedly
mailed to the app ‘lant and which he did not receive. The
court, based on the affidavit of the EEOC, decided that the
appellant was not entitled to receive the document, despite
the EEOC's allegation that the document was previously sent
to him.

(2) Wrenn v. Rosa, et al, No 92-CV-2091
(LBS) (S.D.N.Y.), a case involving a request by the appellant
to the court in which he requested that the responsible
agencies be directed to investigate and/or process three
charges of unlawful employment practices which he had filed
with those agencies. To date the charges have not been
investigated and/or processed.

(3) Wrenn v. Kemp, et al., No. 90-1063
(D.D.C), involves appellant's appeal of the denial of
information concerning 324+ charges the EEOC alleges he
had filed. the case is currently before the DC Court of
Appeals.

(4) Wrenn v. Sullivan, et al., No r-91-2460

73

(D. Md), a claim for the denial of information concerning the
appellant charge against the University of Maryland Hospital.
The Court of Appeals remanded the case to the District Court
of Maryland. The latter transferred the case to the District
Court in DC where the case is pending.

CONCLUSION
The facts and legal arguments herein presented paint a clear
picture of an abuse of discretion by the District Court.
Moreover, the decision by the District Court is clearly
erroneous, in that the decision has no basis in fact or the
decision is against the manifest weight of the admissible
evidence presented to the court. Of particular note in this
case is that contrary to the District Court (page 14 of
Memorandum of June 19, 1993), the doctrine of res judicata
does not apply to ANY of the issues presented in this case.
All the issues presented by the plaintiff relate to his charge of
unlawful discrimination in connection with the failure to hire
him by the University of Vanderbilt Hospital AND the efforts

of the various federal agencies to aid and abet that employer.

dy

Based on the abuse of discretion standards, this court has
authority to review this appeal. Accordingly, the curt should
review the case and upon completion of its review, vacate and
remand the case to the District Court for proper proceedings.
Respectfully submitted,

/s/ Curtis L. Wrenn

Curtis L. Wrenn

95 Champion Street

West Carthage, NY 13619
Tel: (315) 493-4028

CERTIFICATE OF SERVICE
I certify that a copy of the Appellant's Reply Brief was
mailed to the following individuals on the 17th day of

November, 1993, via first class U.S. Mail, postage prepaid:

Tim K. Garrett, Esq.
BASS, BERRY & SIMS
2700 First American Center
Nashville, TN 37238

Michael L. Roden, Esq.
Assistant U.S. Attorney
110 9th Avenue, South
Suite A-961

Nashville, TN 37203-3870

Kathleen Oram, Esq.
EEOC

1801 L. Street, NW ,
Washington, DC 20507

/s/Curtis L. Wrenn
Curtis L. Wrenn

G6

Appendix H
Page 1 of 8

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CURTIS L. WRENN,
Plaintiff- Appellant
vs Docket No 93-5994

VANDERBILT UNIVERSITY
HOSPITAL, ET AL.,

Defendants-Appellees.

APPELLANT'S MOTION FOR LEAVE OF COURT TO
FILE HIS MEMORANDUM IN OPPOSITION TO
APPELLEES' REQUESTS FOR COST

COMES NOW the appellant to file this Memorandum as his
request for leave of court to file his Opposition to the
appellees’ requests for costs. This motion should be granted
for the reasons set forth in the accompanying Memorandum in
Support, where the appellant will argue that his objection is
primarily on the grounds that the sanctions are excessive and

unwarranted action against him for exercising his lawful

rights. Moreover, the unjustified pains and sufferings visited

a

upon him constitute cruel and unusual punishments.

Respectfully submitted,

/s/Curtis L. Wrenn
Curtis L. Wrenn, Pro Se

MEMORANDUM IN SUPPORT

1. In response to the Order of the Court of January
31, 1994 the appellees have submitted their respective costs
allegedly associated with defending this case. The appellant
renews his opposition to the award of costs, damages,
sanctions and/or any form of admonishment. The reason
being EVERY act of the appellant in this case was pursuant
to the Constitution and laws of the United States. Moreover,

_the bills of costs submitted by the appellees show an

inordinate amount of time, unnecessary and excessive costs
associated with a simple case such as this. There is nothing
unusual about this case. Thus, the time and costs the

|
appellees say they are entitled to is not warranted by this
"non-complicated" case. This is not a "complex" case which

warrants the proposed costs of each appellee. See, e.g.,

Co., 502 F.2d 1309, 1322 (7th Cir. 1974) (citing Disciplinary

17

:
z
iii ei

;

:

Rule 2-206, ABA Code of Professional Responsibility). Also
see, Chnstianburg Garment Co., v. EEOC, 434 US. 412,
417, 98S. Ct. 694, 698, 54 L_ Ed. 2d 648 (1978); Albermarle

Paper Co v. Moody, 422 U.S. 405, 415, 95 S. Ct. 2362,

2370, 45 L.Ed.Ed. 280 (1975)

2. For more than fifteen years the appellant has been
denied equal employment opportunity by every acute care
hospital in America which he made application for an existing
vacancy. Similarly, his efforts to vindicate his rights under
governing laws have been prevented, and/or frustrated, and/or
impeded by the federal agencies that were mandated to
enforce his rights to equal employment opportunity.

3. The federal agencies and the courts in this case
have launched a vindictive campaign to punivh the appellant
for exercising his LAWFUL RIGHTS under Titles VI and
VII, the ADEA and the FOIA, to file claims against those

who have deprived him of his rights. More specifically, the

100

appellant's claims in this case were filed pursuant to
appropnate laws promulgated by the United States of
America, which expressly provides that he or any other citizen
has a "right" to pursue claims in the appropriate district court
AND to file an appeal if the decision of the former is clearly
erroneous and/or constitutes an abuse of discretion.

4. The appellees have used lawful and unlawful means
to deprive the appellant of his rights secured by the
Constitution (First, Fourth, Eight and Fourteenth
Amendments) and laws (The EEOC Act, FOIA and ADEA).
Now they would have the court to reward them for their
wrong doings by imposing unwarranted sanctions on the
appellant.

5. Based upon the foregoing the appellant renews his
objection to the imposition of sanctions and the awarding of
costs by the Court, and the "bill of costs" submitted by each

appellee. The reason being the Court has denied the appellant

Jo]

the required procedural due process hearing. More
importantly, the Court has not established that the appellant is
guilty of any wrongdoing and/or that his claims were
submitted in bad faith and/or that his Complaint in the District
Court or his appeal to this court was in violation of ANY law
or rules OR that his actions in this case was not supported by
facts and warranted by applicable statutes and/or caselaw

The following facts do not support ANY form of wrongdoing
by the appellant,

(1) He was denied equal employment
opportunity for a position which he was OBJECTIVELY
qualified for. A case which the appellant argued that “but for"
his race, age and previous opposition to the employment
practices of the Vanderbilt University Hospital he would have
been considered for employment. See, e.g., Clark v.

Atchison, Topeka and Santa Fe Ry co., 731 F.2d 698 (CA
OK 1984).

[02

(2) He was denied information from HIS
charge file, which the EEOC acknowledged that it had in its
system of record. The appellant has argued that he has a
"right" to pursue his request for information contained iri HIS
charge file. See, e.g, EEOC v_ Associated Dry Goods
Corp., 449 U.S. 590. 24 FEP 1356 (1981).

(3) He was denied information from other
federal agencies which they had compiled of HIM, including,
but not limited to, information concerning their concerted
action with officials of the Vanderbilt University Hospital.
WHEREFORE, the appellant prays the "bills of costs"
submitted by the appellees will be denied, in that there is no
basis for sanctions and/or the awarding of attorneys fees to
the appellees.

Respectfully submitted,

/s/Curtis L. Wrenn
Curtis L. Wrenn, Pro Se

95 Champion Street
West Carthage, NY 13619

[03

Tel: (315) 493-6801
RTIFICATE VI
I certify that a copy of the foregoing was mailed, via first
class U.S. Mail, on February 20, 1994 to the following:

Tim K.Garrett, Esq.

BASS, BERRY & SIMS
2700 First American Center
Nashville, TN 37238

Michael L. Roden, Esq.

Assistant U.S. Attorney

110 9th Avenue, South, Suite A-961
Nashville, TN 37203-3870

Kathleen Oram, Esq., EEOC

1801 L. Street, NW
Washington, DC 20507

/s/Curtis L. Wrenn
Curtis L. Wrenn

OY

Appendix I
Page 1 of 21

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CURTIS L. WRENN,

Plaintiff-Appellant

PETITION FOR
REHEARING OUT OF
TIME
vs Docket No 93-5994
VANDERBILT UNIVERSITY

HOSPITAL, ET AL.,

Defendants-Appellees.

COMES NOW the appellant and petitions the Court to accept
his petition for rehearing out of time. His previous petition
for rehearing exceeded the allowable Fifteen pages and was
rejected by the Court, as a result of petitioner misreading the
Rules of the Court. That is, he misread the Rule for briefs as
applying to petition for rehearing (15 pages). As grounds for
his request for rehearing, the petitioner respectfully submits
that the Court has misapprehended the facts AND has

[OS

misapplied the laws governing FOIA, Title VI and the ADEA,
conspiracy based upon circumstantial evidence, and punitive
action in the form of attorney's fees and double costs for

legitimate claims.

I_ INTRODUCTION:

This petition concerns this Court's Secision to uphold
the lower court's decision at the summary judgment level,
dismissing petitioner's FOIA and employment discrimination
claims. Petitioner believes the decisions are clearly erroneous,
in that they are: (1) against the manifest weight of evidence;
(2) contrary to decisions of the Supreme Court and the other

courts of appeal; and not supported by statutory and/or case

law.
ee RESENTED FOR REVIEW:
1. FOIA

(1) Whether the decision that "... the EEOC is

entitled to judgment as a matter of law on the FOIA claim" is

log

clearly erroneous, in that it is contrary to decisions of the
Supreme Court and the other courts of appeals? See, US.
Dept of Justice v. Reporters Committee, 109 S. Ct. (1989):
"_. the FOIA expressly places the burden "on the agency to
sustain its action”.

(2) Whether the district court conducted the
required de novo review. Petitioner submits that the court did
not, and as a result its decision was based on the conclusory
submission of the federal agencies. The failure of the court to
conduct a de novo review resulted in a decision not based on
the facts and/or applicable case law. See, e.g., Vaughn v.
US. 936, F.2d 862, 863 (6th Cir. 1991); DeSalvo v. IRS (CA

10 Okla 1988), 861 f.2d 1217; King v. Department of Justice,

No 84-5098, 9/25/87, 56 LW 2183.

2. EMPLOYMENT DISCRIMINATION:
Whether Exhibit 1 supports the Court's contention

that the petitioner did not establish prima facie case. Ex. | is

107

clear and convincing proof to support his claims in this

"mixed motive" case (race, retaliation and age), and as such

the burden is on the employer to demonstrate a reason for

denying him equal employment opportunity, "by proving that
it would have made same decision even if it had not allowed
gender (or race, or age) to play such a rule) (See, Price

Waterhouse v. Hopkins, 109 S. Ct. 1775, 1776 (1989)):

REQUIREMENTS: WRENN ROGERS
Education MHA/MBA MHA MBA

3-5 years of progressive

responsibilities in health care

management 10+ yrs 0

Teaching hospital experience yes No

(NOTE: Ms. Rogers' experience is that of health care
provider as Occupational Therapist. Wrenn's experience has
been in health care management, having risen from
Administrative Resident (Trainee) to Chief Executive Officer)
It appears that proper weight was not given to appellant's
qualifications. The Court is asked to review Exhibit 1, esp. p.

1 where is will find that the appellant met ALL of the

103

advertised objective requirements of the employer. See,

Burrus v. United Telephone Co. of Kansas, Inc., (CA Kan

1982), 683 F.2d 339 (Objective job qualifications are to be

considered in determining whether employment discrimination
plaintiff has established prima facie case, but subjective
criteria are to be treated at later stage of McDonnell Douglas,
three-step process).

3. Y MENT:

(1) Whether the defendants clearly established
that there were no triable issues, and that they were entitled to
summary judgement as a matter of law. The defendants’
motion for summary judgment should have been denied.
Under the FOIA Summary judgment in favor of agency is
proper only where agency proves that each document that
falls within class requested either has been produced, is
unidentifiable, or is wholly exempt from FOIA's inspection

requirements. National Cable Television Asso. v. Federal

(O7

Communications Com. (1973) 156 App DC 91, 479 F2d 183.
The federal agencies were not required to so prove.
(2) Similarly, Vanderbilt was not required to

establish that it provided the appellant equal employment

opportunity. In reviewing the defendant's motion, the Court
must consider the pleading, related documents, incorporated
exhibits and other admissible evidence, and all reasonable
inference in a manner most favorable to the non-moving
party. See, e.g., Adickes v. Kress & Co., 398 U. S. 144, 90
S. Ct. 1598, 26 L. Ed. 2d 142 (1970). The principle is well
established that summary judgment is generally inappropriate
in cases, such as this, involving questions of motive or intent.
See, e.g., Conrad v. Delta Airlines, Inc., 494 f.2d 914 (7th
Cir. 1974). As is demonstrated in Ex 1 it has not been shown
whether or how Vanderbilt met this requirement.

4. APPELLANT'S REQUEST FOR AWARD OF
COSTS:

119

(1) The critical question is whether the Court
erred as a matter of law in awarding sanctions and/or cost and
double costs to the defendant. Instructive is the fact that the
FOIA contains NO provisions for awarding costs to a federal
agency. Thus, this case turns on the question of whether the
appellant is entitled to and award of damages against the
defendants for the violation of his constitutional and/or other
federal rights. The actions in this case demonstrate concerted
action to deprive him of the equal enjoyment of rights secured
by law to all. Specifically, the nghts promulgated in the
Constitution (Free Speech and Procedural Due Process) and
Title VII (See, e.g., Griffin v. Breckenridge, 403 U.S. 88, 91
S. Ct. 1790, 29 L.Ed. 338 (1971)), and the ADEA.

(2) It appears that the courts in their zeal to
enforce the wishes of the federal agencies, AND to punish the
appellant for his opposition to perceived unlawful

employment discrimination, have failed to consider one

1]

central requirement before imposing sanctions on him, and
that is: "An objective standard of reasonableness is also
applied to the pleading as a whole in order to determine
whether it is frivolous within the meaning of Rule 11. If, at
the time an attorney files a pleading, reasonable practitioners
could have disagreed over the existence of a good faith
argument in support of that paper, sanctions are
inappropriate." See, e.g, Community Elec. Serv. v. National
Elec. Contr., 869 f.2d 1235 (9th Cir.), cert. denied 493 US.

891, 110 S. Ct. 236, 107 L_Ed.2d 187 (1989). See also

Riverhead Sav. Bank v. National Mortgage Equity Corp., 893

F.2d 1109 (9th Cir. 1990) (... since the cause of action was

objectively reasonable at the time the claim was filed, it could
not be deemed frivolous).

(3) The question the appellant is asking the
Court to reconsider concerns whether the imposition of costs,

attorney fees and double costs constitute cruel and unusual

Vi

punishment, excessive fine, and is a severe form of
punishment which was apparently imposed SOLELY because
the Court disagreed with the appellant's legal theories. Also,
whether the fines violate the Constitution and laws of the
United States, in that they were imposed without granting the
appellant a procedural due process hearing. Thus, the
question to be answered is whether the imposition of the fines
contravene decisions of the Supreme Court. See, e.g.,
_v. EEOC, 434 US. 412, 423, 98

S. Ct. 694, 701, 54 L_Ed.2d 648 (1978). (In order to assess
attorney's fees, the Court must find that plaintiff's claim "was
frivolous, unreasonable, or groundless, or that the plaintiff
continued litigate after it clearly became so.")

Whether a conspiracy, such as in this case, can
be demonstrated by circumstantial evidence. The basis for

this question is the Court has not recognized that the

113

petitioner cannot demonstrate a conspiracy when he cannot
obtain requested information under the FOIA. Similarly,
discovery requests have been denied, apparently under the
provisions of the Federal Rules of Civil Procedure that
discovery is not authorized since the very nature of the
actions (FOIA) itself is to obtain discovery. Thus on the one
the Court has denied petitioner's conspiracy complaint on the
ground that it is conclusory, while on the other hand the very
information he needs and has requested from the federal
defendants to establish his conspiracy claim, has also been
denied by the courts. The question is whether the Court's
decision is contrary to decisions of the Supreme Court and

the other courts of appeals. See, e.g., Carpenters v. Scott,

464 U.S. 875, 103, 104s. Ct. 211, 77 L.Ed 2d 1049 (1983);

Griffin v. Breckenridge, 402 U.S. 88, 102-03, 91 S. Ct.1790,
1798-99 |.Ed., 2d 338 (1971) THE conspiracy, ..., must aim

at a deprivation of the equal enjoyment of rights secured by

a

the law to all. (NOTE: The petitioner is complaining about

the denial of rights secured by the First, Fourth, Fifth, Eighth
and Fourteenth Amendments, and Title VII and the ADEA,
and the FOIA).

Ill. GENERAL NT.

The FOIA (5 USC(d)(1) provides that:

"An agency, upon request, must make its records
"promptly available to any person" requesting them,
provided the request "reasonable describes the records

sought."
- and -

"(g(1) CIVIL REMEDIES. Whenever any agency:
"(D) fails to comply with any other provision of this
section, or any rule promulgated thereunder, in such a
way as to have an adverse effect on an individual, the
individual may bring a civil action against the agency,
and the district courts of the United States shall have
jurisdiction ..."

- and -
"When a requester goes to court, "the burden of
justifying the withholding of documents is on the

government."

- and -

11s

"(g)(3)(B) The court may assess against the United

States reasonable attorney fees and other litigation

costs ... but in no case shall a person entitled to

recovery receive less than the sum of $1,000; ..."
Plaintiffs Complaint and exhibits demonstrate his efforts to
obtain information from federal agencies under the FOIA and
their failure to disclose the requested information. Thus, The
issue before the Court is whether the information requested
was denied for a legitimate reason.

2. It is well settled in FOIA law that "disclosure" and
not "secrecy" is the dominant objective of the Act. See, e.g,
Department of the Air Force v. Rose, 425 U.S. 352, 96S Ct
1592, 48 L.ed.2d 11 (1976). It is also well settled that the
burden is on the agency to justify its reason for not providing
the requested records under the FOIA. See, U.S. Dept. of
Justice v. Reporters Committee for Freedom of the Press, 109
S. Ct. 1468, 1484 (1989):

"This section (7(C)) does not apply to matters

that are - records or information compiled for
law enforcement purposes, but ONLY TO

116

THE EXTENT THAT THE PRODUCTION
OF SUCH LAW ENFORCEMENT
RECORDS OR INFORMATION .. COULD
REASONABLY (emphasis added) be
expected to constitute an unwarranted invasion
of personal privacy."

In this case, the federal defendant have failed to demonstrate
that they have disclosed every disclosable document from
their system of records OR that the documents not disclosed
where WHOLLY exempt from disclosure under Exemption
7(C) or some other specific statutory exemption, such as, for
example, 5 USC 552(b)5). In reversing the decision of the
Court of Appeals, the Supreme Court held in Justice, among
other things, that:
"In sum, Robbins’ focus on the singular "an" in
the phrase "an unwarranted invasion of
personal privacy" is not a sufficient reason to
hold that Exemption 7(C) requires ad hoc
balancing."
Accordingly, the petitioner submits as a result of the district

courts refusal to conduct a Vaughn Index and/or and In

Camera Inspection, it did not determine whether information

117

was withheld for a legitimate reason.

3. Whether the failure of the Court to acknowledge
that the plaintiff had met his prima facie case of unlawful
employment discrimination, under Title VII and the ADEA,
led to an erroneous conclusion of law AND was contrary to
decisions of the Supreme Court and the other courts of
appeals. See, e.g., Exhibit 2, esp. p. 1. Also, see McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248 (1981),

Connecticut v. Teal, 457, U.S. 440, 73 L.Ed. 2d 130, 2534-

2535:

"Section 703(a)(2) prohibits practices that
would deprive or tend to deprive "any
individual of employment opportunities.” the
principal focus of the statute is the protection
of the individual employee, rather than the
protection of the minority group as a whole.
Indeed, the entire statute and its legislative
history are replete with references to
protection for the individual employee.

- and -

"("Every man must be judged according to his
ability. In that respect, all men are to have an
equal opportunity to be considered for a
particular job")." (NOTE: The plaintiff was
not interviewed, while other similarly situated
applicants were).

- and -

The fact remains, however, that irrespective of
form taken by the discriminatory practice, an
employer's treatment of other members of the
plaintiffs group can be "of little comfort to the
victims of ... discrimination." (citing)

T v. Uni ra, 431 US. at
342,97 S Ct., at 1858. title VII does not
permit the victim of a facially discriminatory
policy to be told that he has not been wronged
because other persons of his or her race or sex
were hired. That answer is no more
satisfactory when it is given to victims of a
policy that is facially neutral but practice
discriminatory. Every individual employee is
protected against both discriminatory
treatment and "practices that are fair in form,
but discriminatory in operation. "(NOTE: The
question to be answered is whether the Court's
statement "...he has utterly failed to prove that
the circumstances give rise to an inference of
discrimination ... The position at issue was first
offered to a black male: is Clearly erroneous, in
that it is not supported by Exhibit 1: see esp
p.1 and 2-8" and the governing case law."
(ALSO NOTE: The Court is also asked to

i.

reconsider and /or clarify its statement "Wrenn
is African American ..." The origin of this
statement can't be found in ANY papers or
pleading filed by the plaintiff in this or any
other case. THE QUESTION is if the Court
misstated the appellant's race, what facts were
also misstated and/or misapprehended”)

4 In EEOC v. Associated Dry Goods Corp. 449 U.S

590 24 FEP 1356 (1981), the Supreme Court considered the
question "whether prelitigation disclosure of information in a
commission file to the employee who filed the Title VII claim
in a "public" disclosure within the meaning of the statutory
restrictions." A summary of the Court's decision:

"_.. we have concluded that Congress did not
include charging parties within the "public" to
whom disclosure of confidential information is
illegal under the provisions of Titie VII. The
charge of course, cannot be concealed from
the charging party. thus, the "public" to whom
the statute forbids disclosure of charges cannot
logically include the parties to the agency
proceeding. the parties to any agency
proceeding are hardly members of the "general
public,..."

Accordingly, the EEOC cannot invoke "member of the

120

public" for refusing to disclose information to the appellant.
the question is whether the decision applies to other agencies?
5. Finally, the Court is asked to reconsider its
decision that res judicata applies to issues presented in this
case. appellant submits that the decision is clearly erroneous.
it is well settled in federal law that res judicata and collateral
estoppel do not apply when a person has been « enied a full
and fair opportunity to litigate the issues OR has not received
a final judgment on the merits in the earlier case. The
admissible alii in this case clearly demonstrates that NO
court has ever considered the FOIA issues presented here,
involving Vanderbilt. Moreover, no court has rendered a
decision on the merits of the issues. See, e.g., Montana v.
United States, 440 U.S. 147, 153, 99S. Ct. 970, 973, 59
L.Ed.2d 210. See also, Harnett v. Billman, 800 F. 2d 1313
(4th Cir. 1987) (For a matter to be res judicata, there must be

identity of parties, identity of causes of action, and a final

121

decision on the merits).

CONCLUSION

1. The grounds for this complaint is that the EEOC
has refused to provide information from the appellant's charge
file which he lawfully requested under the FOIA. As a result
of the denial a complaint was filed in the district court and
was dismissed, resulting in this appeal.

2. Similar requests for information were also made of
the other federal agencies> the requests were also denied.
No legitimate justification has been offered for denials.

3. appellant's complaint against the Defendant
Vanderbilt is that he was denied equal employment
opportunity, because of his race, retaliation and age.

4. The essence of the petitioner's motion for
reconsideration is that: 91) summary judgment was not

justified, and (2) the excessive fine and unwarranted

punishments by the courts are not justified under the

Constitution and laws of the United States. Moreover, the
punishments were inflicted on the petitioner on the basis of
false and misleading information, and that it was unfairly
imposed by the courts without a procedural due process
hearing. The petitioner respectfully submits that if the orders
of the courts are permitted to stand, he will be deprived of
property and/or property interest, and nights privileges and
immunities secured by the Constitution (First, fourth and
Fourteenth Amendments) and laws (including but not limited
to the Civil Rights Act of 1964, as amended) of the United
States. More specifically, the petitioner, exercising his First
Amendment right, filed a complaint in the District Court
against unlawful employment discrimination and a Opposition
to the denial of information under the FOIA On the basis of
current laws, the petitioner had a reasonable expectation that
he would be given an Opportunity for fair and equal treatment,

including a hearing, to his dismay he was denied equal

123

a - PRAY TS
ee eS LONE, eR, eR |

treatment and equal nghts, in that the District Court abused
its discretion by refusing to acknowledge his prima facie case,
and dismissed his FOIA claim because, allegedly, ".. the Court
does not find that the plaintiff has stated a viable claim :nder
the FOIA .. 5 USC 552 9b) (5) (NOTE: The Court cites 5
USC 552(b)(5) as its basis for denying the information, the
EEOC cites 5 USC (b)(3) and (5) and (b)(7)(c) (Exhibits 2,
page 7). The courts have not required EEOC to justify its
non-disclosure, nor conduct the de nova review.
WHEREFORE, petitioner prays that the Court will reconsider
its decision and will remand the case. Should the Court not
remand, the petitioner requests that he be granted a hearing to
present oral argument regarding the issues in this case.
Moreover, the petitioner asks that if the Court, for any
reason, deny the request for reconsideration, he be excused
from paying the sanctions because of his poverty, resulting

from fifteen years of being denied employment in his chosen

124

profession of hospital and health care administration, and the
tremendous expenses he has incurred in his efforts to

vindicate his civil rights. See, e. g., Poe v. Deers Co, (CA 8th

Cir.) 695, F 2d 1103 (1982).
Respectfully submitted,

/s/Curtis L. Wrenn

Curtis L. Wrenn

95 Champion Street

West Carthage, NY 13619
Tel: (315) 493-6801

{25

APPENDIX I
Page | of 6 Pages

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF

CURTIS L. WRENN
$5 Champion Street
West Carthage, NY 13619

Plaintiff, COMPLAINT WITH
JURY DEMAND
VS
VANDERBILT UNIVERSITY
HOSPITAL

Box 160, Peabody Campus
Nashville, TN 37203

Defendants.

I_ COMPLAINT

1. COMES NOW the plaintiff and alleges that the
defendant has conspired with the United States Department of
Justice, and public and private employers to deny him the
rights, privileges and immunities secured by the Constitution
and laws of the United States including, but not limited to, the
First, Fifth, Eighth and Fourteenth Amendments, The Equal

employment Opportunity Act (The EEOC Act), the Civil

bah...

Rights Acts of 1866, 1964 and 1991, and the Freedom of
Information/Privacy Act (FOIA/PA).

2. The plaintiff's allegations against the defendant is
based on its continuing acts to deny him equal employment
opportunity in his chosen profession of hospital and health
care administration, and its continuing retaliatory actions
against him for his previous opposition to the continuing
denial of equal employment opportunity to Negroid
Americans in violation of the Constitution and laws of the
United States.

Il. JURISDICTION

3. The jurisdiction of this court is invoked pursuant
to the provisions of 28 USC 1343(a)(4), this being an action
in equity and a suit authorized by law to be commenced by
any person to recover damages for injury and to secure other |
forms of relief under acts of Congress providing for the
protection of civil and legal rights.

4. The jurisdiction of this court is also invoked

pursuant to 28 USC 1331, this being a civil action wherein the

127

matter in controversy exceeds the sum or value of fifty
thousand dollars ($50,000.00), exclusive

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1769%3A2. Public record. Not legal advice.