Petition for Writ of Certiorari — Rivers v. Federal Express Corp.

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OFFICE oF

No. 95- THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES RIVERS,

Petitioner,

FEDERAL EXPRESS CORPORATION,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OR CERTIORARI

James Rivers, Pro sa

2165 Cowden, Suite

Memphis, TN 38104

(901) 274-2607

July 4, 1996

ee eee - tot ti | ~~ ”

eee mer

QUESTIONS PRESENTED FOR REVIEW

Whether the U.S. Court of Appeals for

the Sixth Circuit set a lesser standard

for a plaintiff in a Title VII case

to demonstrate dissimilar treatment.

Citing Brown v. State of Tennessee,

693 F. 2d 60, 603 (6th Cir. 1982).

Whether the U.S. Court of Appeals for

the Sixth Circuit set a lesser standard

for a plaintiff in a Title VII case,

to demonstrate pretext. Therefore,

allowing a defendant to make bold

contradictions and inconsistencies

in their articulated reasons for their

actions and not demonstrate pretext.

Whether the U.S. Court of Appeals for

the Sixth Circuit decision to affirm

a summary judgment creates an

environment that encourages the use

of a inappropriate weapon for resolving

Title VII violations, and sets a lesser

standard, which only applies to Title

VII cases..

Whether the U.S. Court of Appeals for

the Sixth Circuit decision to affirm

a summary judgment violates a

plaintiff's in a Title VII case Civil

Rights and Constitutional Rights, to

the right to a jury trail. citing ,

Miller v. Faircild Indusll, Inc. 797

F. 727, 732 (9th Cir. 1986) "Where

reasonable minds could differ, an issue

of material fact remains for the tier

of facts."

LIST OF PARTIES

Petitioner, James N. Rivers.

Respondent, Federal Express Corporation.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED Teececesccese i

LIST OF PARTIES PCPPRe teh edeccee:* Li

TABLES OF CITED AUTHORITIES .... iv

OPINIONS COU EEEEV ORS OS ecKbicicscoe- 2

JURISDICTION Pee Aghees 6606 ccna cs. 2

STATEMENT OF THE CASE Seeascieoce 3

REASONS FOR GRANTING THE WRIT .. 6

Facts material to Consider me wl -F

Statement of Facts Material To

Consideration of The Questions

Presented for Review aw Whew bes 13

Summary eo Se ee oe ee ee 2 ee 19

Argument POPP EO OD 866 6 64 6 ohh c 6% 21

Conclusion iN oh we en oe eS i oe a 23

iii

TABLE OF CITED AUTHORITIES

Cases Pages

Anderson v. Liberty Lobby,

Inc. 477, U.6. 242 (1966). ccacce

Brown v. State of Tennessee,

693 F. 24 60, 603,

(6th Ci, 1992) 6 ch cbs bios oe 4, 11

Chipollini, 814, F. 2d at 900. 5, 23

City Mgnt. Corp. v. U.S. Chem, Co.,

43 F. 3d 244, 250

(6th Cif. 1994) 0 0X0's's 6 60> COS oes 13

Coca Cola Co., v. Kelly Taunta

Ava Inc. (1970, DC R7)

308 Fs Supp SOG 6 eee device tv wows 22

Foster v. Barilow,

6 F. 3d 405, 407 (6th Cir. 1993). 14

Galbrraith v. Northern Telecom, Inc.,

944 F., 2d 275, 279

(6th Cir. TIO tts SAN Oe ORS haw ee 11

Graham v. F.B. leopold Co.

4296-30 ae +70, tF3

(3rd Car SOROS ceaddued CAR SSs 4, 23

Harper v. Franks, 985 F. 2d,

£05, 208 (6CH Car. VOR sb cccciiancse Ba

Hopwell Township Citizen I-95

Committee v. Volpe (1973, CAS NJ)

482 F2d SEO shit Been cee bicikweeue 23

iv

Knchins v. Linden Alimax, Inc.,

799 FP. 24 1128, 1133

(6th Gals CPUOT 6h 6 OMe Hs 6 ve o66 hes 10

McDonnell Douglass Corp. v. Green

Ot2 (eG OCs C1948 a. oa. cee ts

Miller v. Fairchild. Indus.,

ie BG date tee

(FER CAS. ASOG) Ss kkk ee. cose ap 6

St. Mary's Honor Ctr. v. hicks U.S.,

11S,’ 8. CO. 276252782 eueew tte te

Texas Dep't of Community Affairs

Vv. Burdine, 450 U.S. 248

(1981) es*eee#e€ eeeeeeeeeeeee 1t% iy - 13

Thornbrough v. Columbus + Gale

(1985 CA5 mis) 760 F2a 633, 37

BNA FED, CAS 1414, 37, EPD 35274. 22

United States v. Pery (1970) CA9 Cal)

Ag: Tae AOU s 0 bs coe ro oo ee

Wilson v. Stroh Co. 952 F. 23d 942,

(6th Cir. oP Sa rere ep een eee eee 11

Regulations

Fed. Rule Civ. pecs, 26 0.8.0... 8

No. 95-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

JAMES N. RIVERS,

Petitioners,

Vv.

FEDERAL EXPRESS CORPORATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEASL

FOR THE SIXTH CIRCUT

Petitioner, James N. Rivers,

respectfully request the a Writ of

Certiorari issue to review the Judgment

and Opinion and the United States Court

of Appeals for the Sixth Circuit entered

in the above entitled proceeding on

February 2, 1996.

A ited Dod. ai i ay iy.

OPINIONS

The Court of Appeals for the

Sixth Circuit's Opinion is reprinted

in the Appendix ( "App." ) to this

Petition at App - 1 °

This Decision affirmed the

District Court's Memorandum Opinion

an Order granting judgment in favor

the Respondents which is reprinted

gt App - 6 °

JURISDICTION

The United States Court of

Appeals for the Sixth Circuit affirmed

the Order Granting Summary Judgment

of the District Court for the Western

District of Tennessee Western Division

on March 16, 1995. This Court's

jurisdiction is invoked pursuant to

28 U.S.C. Section 1254(1).

U.S. Court of Appeals for the Sixth

Circuit, Appeal No. 95-5255, signed

February 2, 1996.

U.S. District Court for the Western

District of Tennessee Western Division,

Case No. 93-3023-G. Order Taxing Cost

Signed March 16, 1995,

U.S. District Court for the Western

District of Tennessee Western Division,

Case No. 933023-G. Order Granting

Defendant's Second Motion for Summary

Judgment, signed January 18, 1995,

STATEMENT OF THE CASE

The Plaintiff, James Rivers, (black

male) applied for a full time control

room agent position in Oakland,

California with his employer, the

Defendant, Federal Express Corporation

in June of 1991. Rivers was ranked

the number one (#1) candidate by CEV

points. which is a computer generated

ranking determined by the applicants

most recent evaluations and years of

continuous service with the company.

Rivers had worked for the Defendant

since November of 1981, and was

currently working as the lead control

room agent, in a part time capacity

at the Defendant's world wide

headquarters and primary sort facility

in Memphis, Tennessee. Rivers was

asked to complete a supplemental

application (questionnaire) by hiring

manager Marguerite Thompson (black

female). Thompson received the

supplemental application back and

conducted a telephone interview with

Rivers in July of 1991. The Plaintiff

was offer the full time control room

agent's position after the interview

and Thompson mailed Rivers an Oakland

newspaper to find an apartment. Soon

thereafter Rivers was contacted by

Micheal Meyer and Kenneth Allison,

(white males) and was informed that

he was not hired for the position and

they would have to start the hiring

process all over again. Rivers was

asked to complete another supplemental

application. After seven months of

telephone conversations and e-mail

letters between Rivers and Allison,

Rivers was interviewed a second time

by Meyer and Allison on February 4,

1992. On February 28, 1992 Rivers

received a rejection letter that stated

that Tim Breen (white male) was selected

for the position. On March 31, 1992

Rivers filed a complaint with the Equal

Employment Opportunity Commission,

On September 2, 1993 Rivers picked

up from the EEOC a no cause letter

of determination. According to an

internal memo dated May 5, 1993, in

the EEOC file, (obtained through the

Freedom of Information Act), Rivers

was to receive a no cause letter due

to his "failure to accept what the

EEOC felt was full relief remedy" at

that time. On June 21, 1993 Rivers

received a letter which stated that

the EEOC was wrong in calculating the

amount of back pay due Rivers. On

November 24, 1993, Rivers filed suit

in the District Court for the Western

District of Tennessee, Western Division,

for a violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C

s2000e. On November 4, 1994 the

Defendant filed a Second Motion for

Summary Judgment on merits and claimed

that there were no genuine issues of

material fact that exist, and that

Rivers failed to offer any evidence

whatsoever on the elements of proof

that is essential to a prima facie

showing. On January 18, 1995 Judge

Julia Smith Gibbons granted the

Defendant's Second Motion for Summary

Judgment. On February 13, 1995 Rivers

filed a Notice of Appeal with the United

States Court of Appeal for the Sixth

Circuit. On March 16, 1995 an Order

Taxing Costs against Rivers was signed

by Robert R. Di Trolio, Clerk for the

District Court.

On April 26, 1995, Rivers filed an

Appeal and Brief Opposing the Order

Granting The Defendant-Appellee Federal

Express Corporation Second Motion for

Summary Judgment. On February 2, 1996

the U.S. Court of Appeals for the Sixth

Circuit signed an order affirming the

District Court's previous order Granting

Summary Judgment in favor of the

defendant, Federal Express.

Riskiirl ed

BBN th atin ik, adie alas Ht

Cb LIS the

REASON FOR GRANTING THE WRIT

This case calls for an exercise

of the Supreme Court of the United

State supervisory power, due to the

fact that the U.S. Court of Appeals

for the Sixth Circuit has sanctioned

such a far departure from the previous

standards that has been established

by the Supreme Court of the United

States, the U.S. Court of Appeals

for the Sixth Circuit, and the state

court, in cases which have established

the current standard to protect the

civil rights of the plaintiff in Title

VII violations.

The decision rendered in this case

contradicts with the Supreme Court's

clearly established standard in

determining what direct and indirect

evidence is necessary to demonstrate

that the articulated explanation given

by a defendant in a Title VII case

is pretextual. citing Graham v. F.B.

zLeopold Co, 779 F. 2d 170, 173 (3d

Cir. 1995).

The U.S. Court of Appeals for the Sixth

Circuit has set a lesser standard for

a plaintiff in a Title VII case to

demonstrate dissimilar treatment. citing

Brown v. State of Tennessee, 693 F,

2d 60, 603 (6th Cir. 1982).

If the decision by the U.S. Court of

Appeals for the Sixth Circuit in this

case is left to stand, it would clearly

erode....the present degree of civil

rights protection of a plaintiff in

a Title VII case, and createsgan

environment that allows and promotes

a defendant and the courts, in Title

VII cases to inappropriately use a

motion for summary judgment as a “harsh

weapon" in resolving cases where there

is direct and indirect evidence of

dissimilar treatment, pretex, and

unresolved issues or material fact.

Fact Material To Consider

The Order Granting Defendant's Second

Motion For Summary Judgment, U.S.

District Court, January 18, 1995,.states

the following;

1.) Plaintiff met or exceeded all

requirements for the position and was

ranked first out of all applicants

in CEV Points.

2.) Summary judgment is appropriate

"if the pleading depositions, answers

to interrogatories, and admissions

on file, together with the affidavits,

if any, show that there is no genuine

issue as to any material fact and that

the moving party is entitled to judgment

as a matter of law." Fed. R. Civ. P.

96(c).

3.) The party moving for summary

judgment “bears the burden of clearly

and convincingly establishing the

nonexistence of any genuine issues

y |

of material fact, and the evidence

as well as all inferences drawn

therefrom must be read in a light most

favorable to the party Opposing tne

motion." Knchins v. Linden Alimak,

Inc., 799 F.2d 1128, 1133 (6th Cir.

1986).

4.) When confronted with a properly

Supported motion for summary judgment,

the non-moving party must set forth

specific facts showing that there is

a genuine issue for trial. A genuine

issue for trial exists if the evidence

is such that a reasonable jury could

return a verdict for the non-moving

party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

5.) To survive a motion for summary

judgment on a Title VII clam, plaintiff

must prove a Prima facie case of

discrimination by a preponderance of

the evidence. Wilson v. Stroh Cos.,

952 F. 23d 942, 946 (6th Cir. 1992)

citing Texas Dep't of Community Affairs

v. Burdine, 450 U.S. 248 (1981). If

plaintiff succeeds, the burden of

production shifts to defendant to

articulate a legitimate,

non-discriminatory reason for its,

action. Galbraith v. Northern Telecon,

Inc., 944 F, 2d 275, 279 (6th Cir.

1997)

6.) If defendant offers such a reason,

the burden shifts back to plaintiff,

who must show by a preponderance that

8.

Soren ,

defendant's proffered reasons are a

pretext for discrimination. St. Mary's

Honor Ctr. Vv. Bicks, U.8.,113 &. Ct.

2742, 2752 (1993).

7.) To establish a prima facie case,

plaintiff must show that:

(1) he belongs to a protected group;

(2) he applied for and was qualified

for the promotion;

(3) he was considered for and denied

the promotion; and

(4) a similarly qualified employee

who was not a member of a protected

group was promoted at time plaintiff's

request was denied. Brown v. Tennessee,

693 F. 2d 600, 603 (6th Cir. 1982).

8.) The District Court inappropriately

accepted the following articulated

reasons for the defendant's actions:

(1) Breen had held this position for

one month longer than plaintiff.

(2) Defendant claims that experience

acquired in the Oakland hub is more

valuable than that gained in Memphis.

(3) He (Breen) had a greater

familiarity with its operation.

(4) Finally, Meyer and Allison each

contend that Breen displayed greater

commitment and enthusiasm in the

interview and throughout the selection

process.

iN SS BS nee: 8 tee SR land

ee ee eee

A plaintiff may show pretext "either

directly by persuading the court that

a discriminatory reason more likely

motivated the employer or indirectly

by showing that the employer's proffered

explanation is unworthy of credence."

Burdine, 450 U.S. at 256.

The U.S. Court of Appeals Affirmed

the District's Court Order based on

the following reasons.

"Rivers met or exceeded all requirements

for the position and was ranked first

over all applicants in CEV points.

FE points are points reflected on

§ Yomputer-generated list that

considered company seniority and

individual's most recent evaluation."

“Upon review, we conclude that the

district court properly granted summary

judgment to the defendant as there

is no genuine issue as to any material

fact and the defendant is entitled

to judgment as a matter of law. See

Fed. R. Civ. P.56(c);City Mgnt. Corp.

Vv. U.S. Chem. Co., 43 F.3d 244, 250

(6th Cir. 1994),

Rivers is not entitled to relief because

he did not meet his burden of proving

employment discrimination as set forth

in McDonnell Douglas Corp. v- Green,

411 U.S. 802 (1973). Even if it is

assumed that Rivers established a prima

facie case of discrimination, the

defendant met its burden of articulating

10.

legitimate, non-discriminatory reasons

by stating that it selected Breen over

Rivers because Breen was already

working at the Oakland hub, had a

greater familiarity with its operation,

had more favorable evaluation that

Rivers, and displayed greater commitment

and enthusiasm in the interview and

throughout the selection process. See

St. Mary's Honor Ctr. v. Hicks, 113

S. Ct. 2742 2747-50 (1993); Texas Dept

of Community Affairs v. Burdine, 450

U.S. 248, 255 (1981). Ultimately,

however. when it was his burden to

do so, Rivers failed to raise a genuine

issue of material fact that the

defendant's reason for selecting Breen

over him were pretextual. See St. Mary's

Honor Ctr., 113 S. Ct/ at 2747-50;

Burdine, 450 U.S. at 254-56."

"In his brief on appeal, Rivers

advances new arguments as grounds

for finding a pretext of racial

discrimination. Unless exceptional

circumstances are present, the court

normally will not address an issue

not first raised in the district court.

See Foster v. Barilow, 6 F. 3d 405,

407 (6th Cir. 1993). No exceptional

circumstances warrant addressing these

arguments now. The critical question

in this case is whether the selection

criteria were applied to applicants

in a discriminatory manner. There

was an utter absence of evidence of

a racial animus in this case.

Accordingly, the district court's

ll.

order is affirmed Rule 9(b)(3), Rules

of the Sixth Circuit.

12.

STATEMENT OF THE FACTS

MATERIAL TO CONSIDERATION OF THE

QUESTIONS PRESENTED FOR REVIEW

The District Court totally disregarded

the following direct evidence that

was introduced in the Plaintiff's

Response to Defendant's Second Motion

For Summary Judgment, which clearly

demonstrated dissimilar treatment:

“Breen was required to make a 12

month commitment to the position, while

Plaintiff was informed that the position

required an 18 month commitment."

(page 7)

"Plaintiff was told that he would

not be paid the maximum starting pay

and the he would have to start at

something less than the maximum pay.

Breen,s offer letter give him the

maximum pay, a clear indication of

dissimilar treatment." (page 8). Breen

was in fac treated better than Plaintiff

during the selection process: Breen

was required to make a 12 month

commitment to the position, while

Plaintiff was informed that the position

required an 18 month commitment. (see

page 7, 8 plaintiff response)

"In his deposition Plaintiff stated

that he was subjected to a "hostile"

interview (Rivers Dep. 162). This was

support by Plaintiff's testimony that

he had worked in Personnel and had

been taught proper methods of

13.

interviewing candidates (Rivers Dep.

166). At one point the Oakland hub

Senior Manager looked the Plaintiff

in the eye and said that "you don't

want this job". (see page 4 plaintiff

response). The defendant has never

denied making this statement during

Rivers interview.

The District Court totally disregarded

the following direct evident that was

introduced in the Plaintiff's Response

To Second Motion For Summary Judgment

which clearly shows pretext by the

blatant contradictions, and

inconsistencies, in the defendant's

articulated reason for it's action.

Originally the defendant's primary

‘ reason for their selection of Breen

over Rivers was due to the fact that

Breen had held the job title of control

room agent 19 days longer that Rivers

had been a control room agent.

"The Defendant has also attempted to

rely on the fact that Breen was in

the department longer that Plaintiff

by 19 day, a factor that should not

even be utilized in the selection

process, as clearly show by the

testimony of Bennie Williams, (Director

of Personnel for Federal Express.)

Williams Dep. page 29, 30 Ex. U) and

Defendant's PEOPLE Manual." (see page

6 plaintiff response)

Bennie Williams stated, “In the

14.

selection in the CSSD division of the

hubs, departmental seniority has no

standing, it doesn't mean anything,

not for selection". Williams also

stated, on page 29, 30 that if a person

could do the job in one place [Memphis]

although not identical, they could

probably do the job in the other

location [Oakland]."

Prior to Williams contradicting the

defendant's reason for their action,

they had relied heavily on these reason,

After Williams made this bold

contradiction the defendant changed

their reason to Breen displayed more

enthusiasm in the interview, but the

defendant has never produced any

interview scores to support their claim.

The fact that Breen was, currently

working at the Oakland hub was also

contradicted by Williams as being a

legitimate reason to select Breen over

Rivers according to Federal Express

policy and procedures for selecting

hourly employees.

The District Court acknowledges that

Rivers CEV points ranked him the number

(#1) applicant for the position, and

that CEV points are based on the most

recent evaluations and years on

continuous service with the company.

The defendant attempt to mislead

intentionally mislead the District

court to believe that Breen evaluation

were higher, It was pointed to the

15.

District Court that Rivers and Breen

both feel into the category or

"excellent" employees, based on there

evaluations alone, and that Rivers

10 years of company service compared

to Breen's 4 years should have been

the determining factor, that is why

Rivers was ranked #1 in CEV point.

(see page 6, plaintiff response

The credibility of the defendant's

witnesses, could not be determined

within the context of a summary judgment

" This is supported by the fact that

Marguerite Thompson told the EEOC

investigator that she interviewed

Plaintiff for the position for which

he applied (Investigative notes, Exhibit

A) Thompson later stated during sworn

deposition that she did not interview

plaintiff and did not offer him the

position.

All these issues were also pointed

out in the Plaintiff-Appellant James

N. Rivers Appeal and Brief Opposing

the Order Granting The Defendant-

Appellee Federal Express Corporation

Second Motion for Summary Judgment,

in the following order and on the

following pages in his brief to the

U.S. Court of Appeal for the Six

Circuit.

Page 1

After Thompson received the supplemental

application back from Rivers, she

conducted a telephone interview with

16.

Rivers for the position. River

understood that he was offered the

position of full time control room

agent by Thompson during the interview.

Page 4, number 4. tie

The reason stated that Breen had been

in the department one month longer

than Rivers, and that he [Breen] knew

the players better than Rivers, were

strongly and unequivocally rebutted

by their own [Federal Express] Managing

Director of Personnel, Bennie Williams.

Williams stated during his deposition.

"in the selection in the CSSD division

of the hubs, departmental seniority

has no standing, it doesn't mean

anything, ont for selection”

and listed as )Ex., X, Williams Dep.

page 29, 30). Williams also state,

"that if a person could do the job

in one place although not identical,

they could probably do the job in

the other location,

page 6, number 8

The Record will show that there was

dissimilar treatment, in that Breen

was treated more favorably than Rivers.

Breen was quoted the maximum starting

salary, which Rivers was told during

his interview that he would not earn

the maximum salary and that he would

not be able to live in Oakland on a

full time control room agent's salary.

and was listed as (EX. Z, Rivers Dep.

page 169, 170, 171) Breen was offered

more favorable terms of employment,

17.

in that Rivers was told that he would

have to stay in the same position for

18 months before he could be promoted

or get a pay raise. (Ex. Z, Rivers

Dep. page 168) Breen signed an offer

letter which stated he would receive

the maximum starting salary and he

only had to stay in the position 12

months before he would receive a pay

raise. This is bold and blatant

dissimilar treatment, that was

introduced to the District Court and

the U.S. Court of Appeals. Such

dissimilar treatment smacks of racial

bias.

Thompson, Meyer and Allison's

motivation, internt, credibility and

state of mind could not be resolved

in the context of a summary judgment

by the District Court.

18.

SUMMARY

The Plaintiff has intorduce sufficient

direct and indirect evidence to show

pretex, by the pattern of

contridictions, and inconsistencies

indtoduced in the record between the

defendant's hiring managers, Meyer

and Allson and the defentant's Director

of Personnel, Bennie Williams

The Plaintiff has introduce sufficient

evidence to demonstrate the existence

of genuine issues of material fact

by showing that Allison and Meyer

intentionally deviated from the

company's printed guidelines for

selection, as stated by Bennie Williams,

Director of Personnel for Federal ‘s

Express.

The plaintiff has demonstrated

dissimilar treatment by showing in

the record that Breen was offered a

higher starting pay than Rivers and

more favorable terms and condition

of employment. The defendant admits

that Breen received the maximum starting

Salary and more favorable terms of

employment, and justify their action

by stating " that it is a small hook

to base a law suit on." The fact of

the matter is blatant dissimilar

treatment is a is still dissimilar

treatment,.. no mater how it is view

in the eyes of the defendant.

19.

The District Court did not have a record

of complete trial to determine intent,

motivation of the defendant.

The district Court improperly granted

Summary judgment in favor of defendant

after plaintiff raised triable issue

of fact that the explanation given

by defendant was pretextual.

The District Court and the U.S. Court

of Appeals fail to acknowledge that

the plaintiff meet all four elements

for a prima facie showing in Title

; VII case.

20.

ARGUMENT

According to the law, in a promotion

case, the plaintiff must prove similarly

situated non protected employee(s)

were treated better. Harper v. Frank,

985 F2d. 285, 288 (6th Cir. 1993).

Summary judgment is not appropriate

where trail with it's opportunity for

cross examination and testing of

credibility of witnesses, might disclose

picture substantially different from

that given by affidavits, United States

v. Perry (1970 CA9 Cal) 431 F2d 1020

19 AlK Fed. 537.

Summary judgment will not be granted

if affiants and deponents make

statements contradicting one another,

as this presents factual issue of

credibility, Coca-Cola Co. v. Kelly's

Taunton Ava., Inc. (1970. DC R1) 308

F. Supp 308.

In general, summary judgment s

inappropriate tool for resolving claims

of employment discrimination, which

involve nebulous questions of

motivations and intent. Thornbrough

v. Columbus + C. R. Co. (1985, CA5

Mis.) 760 F2d 633 37 BNA FED CAS 1414,

37 CCH EPD 35274.

Where opposing affidavits appeared

to conflict on important point in issue,

District Court improperly granted

defendant's motion for summary judgment

21.

ie

—_ $C Ol vo

Since any doubt must be resolved in

favor of party against whom motion

is made, and while it might turn out

that one witness was right and the

other wrong, or that affidavits could

in some way be reconciled this could

not be done in context of summary

judgment. Hopwell Township Citizens

I-95 Committee v. Volpe (1973, CAS

NJ) 482 F2d 376.

The Supreme Court has acknowledge that

“there will seldom be eyewitness

testimony as to the employer's mental

process 460 U.S. at 716, 103 S. Ct.

at 1482. Where direct "smoking gun"

evidence of discrimination is

unavailable, this court has found that

the proper inquiry is “whether evidence

of inconsistencies and implausibilities

in the employer's proffered reasons

for discharge reasonable court support

an inference that the employer did

not act for non-discriminatory reasons,

not whether the evidence necessarily

leads to the conclusion that the

employer did act for discriminatory

reason." Chipollini, 814 F. 2d at 900.

Graham v. F.B. Leopold Co. 779, F

2d 170, 173 (3d Cir. 1985).

22.

CONCLUSION

For the foregoing reasons, the

Petiton for a Writ of Certiorari should

be granted.

Respectfully submitted,

James N. Rivers

Pro sa

23.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

JAMER N. RIVERS,

Petitioner,

Vv.

FEDERAL EXPRESS CORPORATION

Respondents,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCIT

APPENDIX

Not Recommended For

Full-Text Publication

Pursuant to Sixth Circuit Rule 24

No. 95-5255

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES N. RIVERS

Plaintiff-Appellant,

ON APPEAL

from

the U.S.

District

Court

for tthe

Western

District

of

Tennessee

Vv.

FEDERAL EXPRESS CORPORATION

Defendant-Appellee.

ed

Decided and Filed February 2, 1996

APP-1

Before: NORRIS and MOORE, Circuti

Judges; and MILES, District Judge.

James N. Rivers appeals a district

court judgment granting summary judgment

in favor of the defendant in this action

brought pursuant to 42 U.S.C. §§ 2000e,

et seq. This case has been referred

to a panel of the court pursuant to

Rule 9(a), Rule of the Sixth Circuit.

Upon examination, this panel unanumously

agrees that oral argument is not needed.

Fed. R. App. P. 34(a).

Rivers, a black male, was hired by

the defendant, Federal Express

Corporation, in November 1981. In

May 1990, Rivers was promoted to

part-time control room agent at

defendant's Memphis, Tennessee hub.

Rivers' duties included monitoring

inbound and outbound aircraft and truck

and acting as liaison for the night

sort operation. In June 1991, Rivers

applied for a full-time position as

a control room agent at the defendant's

Oakland, California hub. Rivers met

or exceeded all rerequirements for

th position and was ranked first out

of all applicants in CEV points. CEV

points are points reflected ona

computer generated list that considered

company seniority and and individual's

APP-2

most recent evaluations. Rivers

interviewed for the postion on February

4, 1992. The only other candidate

interviewed was Tim Breen, a paret-time

control agent in Oakland. On February

28, 1992, Rivers was notified that

Breen was selected for the job.

Rivers filed a charge of discrimination

wth the Equal Employment Opportunity

Commission (EEOC) on March 31, 1992,

contending that the defendant's failure

to select him for the positon was a

result of racml discriminaiton. On

August 16, 1993, the EEOC issued a

"no cause" determination. Rivers filed

the prosent action on November 24,

1993, alleging racial discrimination

in the denial of a promotion.

The defendant filed a motion for summary

judgment solely on the grounds that

Rivers's complaint was untimely. The

district court denied this motion on

October 31, 1994. The defendant filed

a socond motionfor summary judgment

on the merits of the discrimination

clam. The district court granted the

motion for summary judgment in an order

entered January 20, 1995. This timely

appeal followed. Upon review, we

conclude that th district court properly

granted summary judgment to the

defendant as there is no genuine issue

as to any material fact and the

defendant is entitled to judgmetn as

a matter of law. See Fed. R. Civ.

P. 56(c); City Mgmt. Corp. v. .S. Chem.

APP-3

Co. 43 F. 3d 244, 250 (6th Cir. 1994),

Rivers is not entitled to relief because

he did not meet his burden of proving

employment discrimination as set forth

in McDonnell Douglas Corp. v.Green,

4111 U.S. 792, 802, (1973). Even if

it is assumed that Rivers established

a prima facie case of discrimination,

the defendant met its burden of

articulating legitimate,

nondiscriminatory reasons by stting

that ti selected Breen over Rivers

because Breen was already working at

the Oakland hub, had a greater

familiarity with ti operation, had

more favorable evauations than Rivers,

and displayed greater commitment and

enthusiasm in the interview and

throughout the selection process. See

ST. Mary's Honor Ctr. v. Hicks, 113

S Ct. 2742, 2747-50 (1993) Texas Dep't

of Community Affairs v. Burdine, 450

U.S. 248, 255 (1981) . Ultimately,

however, when it was his burden to

do so, Rivers failed to raise a genune

issue of material fact that the

defendnat's reason for selectng Breen

over him were pretextual. SEE ST. Mary's

honor Ctr., 113 S. Ct. at 274750;

Burdine, 450 U.S. at 254-56.

In brief on appeal, Rivers advances

new arguments as grounds for finding

a pretext of racial discrimination.

Unless exceptiona circumstances are

present, the court normmally willnot

addtess an issue not first raised in

APP-4

the district court. See Foster v.

Barilow, 6 F. 3d 405, 407 (6th Cir.

1993). No exceptional circumstance

warrant addrissing these arguments

now. The critical questionin this case

is whether the selection criteria were

applied to applicants ina

discriminatory manner. There was an

utter absence of evidence of a racial

animus in this case.

Accordingly, the district cort's order

is affirmed. Rule 9(b)(3), Rules of

the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

APP-5

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

JAMES RIVERS,

Case

No.

93-3023G

Plaintiffs,

Judge

Gibbons

FEDERAL EXPRESS CORPORATION,

°

ere eee ee ee ee ee ee ee

Defendant.

ORDER GRANTING DEFENDANT'S SECOND MOTION

FOR SUMMARY JUDGMENT

Before the court is the motion to

defendant, Federal Express Corp., for

summary judgment. Plaintiff brought

this action pursuant to 42 U.S.C. §

2000e et seq. for alleged racial

discrimination in the denial of a

promotion. For the following reasons,

defendant's motion is granted.

Plaintiff, a black male, was hired

by defendant, Federal Express, in |

November 1981. In May, 1990, plaintiff

was promoted to part-time control room

agent at defendant's Memphis hub.

Plaintiff's duties included monitoring

inbound and outbound aircraft and trucks

and acting as liaison for the night

sort operation In June, 1991, plaintiff

APP-6

applied for a full-time position as

a control room agent at defendant's

Oakland, California hub. Plaintiff

met or exceeded all requirements for

the position and was ranked first out

of all applicants in CEV points. CEV

points are points reflected on a

computer-generated list that considered

company seniority and an individual's

most resent evaluations. After

receiving plaintiff's application,

Marguerite Thompson, an operations

manager in Oakland, conducted a

telephone interview with plaintiff.

Thompson is a black female. When

Thompson was transferred, Kenneth

Allison, Thompson's replacement, and

Michael Meyer, a senior manager, both

white males, assumed responsibility

for filling the position. Plaintiff

interviewed with Meyer and Allison

in Oakland on February 4, 1992. The

only other candidate interviewed was

Tim Breen, a part-time control room

agent in Oakland. On February 28,

1992, plaintiff was notified that Breen

was selected for the job.

Plaintiff filed a charge of

discrimination with the Equal Employment

Opportunity Commission on March 31,

1992, contending that defendant's

failure to select him for the position

was a result of race discrimination.

On August 16, 1993, the EEOC issued

a “no cause" determinaiton. Plaintiff

filed the present suit on November

24, 1993.

APP-7

Summary judgment is appropriate

"if the pleadings, depositions, answers

to interrogatories, and admissions

of file, together with the affidavits,

if any, show that there is no genuine

issue as to any material fact ant that

the moving party is entitled to judgment

as a matter of law" Fed. R. Civ. P.

S6(c). The party moving for summary

judgment “bears the burden of clearly

and convincingly establishing the

nonexistence of any genuine issue of

material fact, and the evidence as

well favorable to the party opposing

the motion." Kochins v. Linden-Alimak,

Inc. 799 F. 2d 1128, 1133 (6th Cir

1986).

Wghen confornted with a properly

Supported motion for summary judgment,

the non moving party must set forth

specific facts showing the there is

a genuine issue for trial. Agenuine

issuefor trial exists if the evidence

is such that a reasonable jury could

return a verdict for the non-moving

party, Anderson v. Liberty Lobby, Inc.

477 U.S. 242 (1986). The party opposing

the motion must "do more that simply

show that thereeis some mete-physical

doubt as to the material facts."

matsushita Elec. Indus. Co v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

In short, the non-moving party may

not oppose a prpperly Supported summary

judgment motion by mere reliance on

pledings. Celotex Corp. v. Catrett,

APP-8

477 U.S. 317, 324 (1986).

To survive a motion for summary judgment

on a Title VII clain, plainfitt msut

prove a prima facie case of

discrimination by a preponderance of

the evidence. Wilson v. Stroh Cos.,

952 F. 2d 942, 945 (6th Cir. 1992)

citing Texas Dep't of Community Affairs

v. Burdine, 450 U.S, 248 (1981). If

plaintiff succeeds, the burden of

productionshifts to defendant to

articulate a legitimate,

non-discriminatory reason for its

action. Galbraith v. Northern Tlelcom,

Inc., 944 F.2d 275 (6th Cir. 1991)

citing Burdine, 450 U.S. at 253, cert,

112 S. Ct. 1497 (1992). If defendant

offer such a reason, the burden shifts

back to plaintiff, who must show by

a preponderance that defendant's

proffered reasons are a pretext for

for disctimination. St. mary's Honor

Ctr. Ve Hicks, U.S. 113, S&S. Ct 2742,

2752 (1993).

To establisha prima facie cse,

plaintiff umst sho that (1) he belongs

to a protected group; (2) he applied

for and was qualified for the pormotion;

(3) he was considered for and denied

the promotion; and (4) a similarly

qualified employee who was not a member

of a protected group was promoted at

time plaintiff's request was dinied,

Brown v. Tennesse, 693 F. 2d 600, 603

(6th Cir. 1982).

It is undisputed that plaintiff

APP-9

satisfies the first three elements

of the prima facie case. Defendant

argues that the fourth element is not

satisfied because Breen's qualifications

are not similar to plaintiff's The

court need not resolve this issue,

however, becoause even assuming tht

plaintiff state a prima facie case

of discirimination, defendant has

articulaed ligitimate,

non-discriminatory rasosn fo selecign

Breen over plaintif.

Although Breen was a part-time control

room agent, like plaintiff, Breen had

held this position for one month longer

that plaintiff. In addition, defendant

clamims that expreience acquied in

the Oakland hub ins more valuable that

that gained in Memphis because, due

to a size difference between the hubs,

control room agents in Oakland are

given broader responsibilities. (Meyer

Aff. 7). Moreover, because Breen

wasalready working at the Oakland

location, he had a greater lamiliarity

wiht its operations, particularly

certain computer systems fundtion.

(Allison Aff. 6) Also it is undisputed

that Breen's periodic evaluation were

more favorale that plaintiff's (Rivers

Dep at 190). Finally, Meyer and Allison

each cntend that Breen displayed greater

commitment and enthusiansm in the

interview and throughout the selection

process. Their impressionwas that

plaintiff sought the positon not for

the job itself, but because he waned

APP-10

to attend a flight dispatch school

in Oakland. (Meyer Aff. 10; Allison

Aft. 6}.

Court have consistently held that

"so long as its reason are not

discriminatory, an employer is free

to choose among qualified candidtes"

for a position. Wrenn v. Gould, 808

F. 2d 493, 502 (6th Cir. 1987). See

also Mesnick v. General Elec,.Co.,

950 F. 2d 816, 825 (1st Cir. 1991)

("Courts may not sit as suyper personnel

department, assessing the merit-or

even the rationality of employers'

nondiscriminatory business dicision."

cert. denied, 112 S. Ct 2965 (1992).

The easons offered by defendnat for

not selecting plaintiff are legitimate

and non-discrminatiory. The burden

thus shifts to plaintiff to establish

that defendant's reason for selectiong

Breen are pretextual.

Aplaintiff may show pretext "either

dircetly by persuading teh court tha

discriminatory reaosn more likely

motiviated the employer of indirectly

by showing that the employer's

proffered explanationis unworth of

credence." Burdine, 450 U.S. at 256.

Plaintiff offers two bases for his

coontentionthat defendant's failure

to select himwas sidciminatiory. first,

plaintiff note sthat his CEV points

were the highest of all the applicants

for the position, and the therefore

should have received the promotion.

APP-11

It is undisputed, however, that for

technical and leadership positons,

such as the control room agent positoin

sought by plaintfiff, coompany policy

dictates tha tCEV point ranking by

sued only to determin which candidates

are interviewed. (Thompson Aff. 10;

Meyer Aff 4; Allison Aff5) In fact

compy policy expressly prohibits

managment from such a positon. Def.

Ex B Rivers Dep. at 198 ).

Second, plaintiff contend sthat

Meyer and Allison conducted his

interview in a hostile manner.

Specifically, plaintiff claims they

asked him" negative questions" and

did not employ proper interview

techniques. (Rivers Dep. at 162-67).

Meyer and Allison claim they were

attempting to ascertain plaintiff's

commitment ot the job and to the Oakland

area. Specifically, they mention their

concern that plaintiff appreciate th

economic impact of moving to Oakland

form Memphis.

Even if the court accepted plaintiff'

contention that Meyer and Allison were

"hostile" in the interview, plaintiff

does not offer any evience indicatin

that they were hostile to plaintiff

aon acount of his race, Therefore,

even if plaintiff coul show that the

reasons offered by defendant are not

legitimat, plaintiff fails to extablish

the necessary causal connection between

discrimination and defendant's failure

APP-12

to promote. See St. Mary's, 113 S.

Ct. at 2749. Plaintiff offers no

evidence that Meyer and Allison

considered plaintiff's race a factor

in selection a candidate for the

promotion. Mere conclusory assertions

of discrimination are not sufficient

to withstand a motion for summary

judgment. Patterson v. General Motors

Corp., 631 Ff. 2a 476,° 482 t7en Ciz.

1980), cert. dinied, 451 U.S. 914

(1981).

The undisputed evidence cannot

support a conclusion that defendant

refused to promote plaintiff on account

of his race. Accordingly, defendant's

motion for summary judgment is granted.

IT IS SO ORDERED.

JULIA SMITH GIBBONS

UNITED STATES DISTRICT JUDGE

DATE

JANUARY 18, 1995

APP-13