Petition for Writ of Certiorari — Heyward v. Monroe

Supreme Court, u Ss

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UF THE CLERK

NO,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1998

MAY LINDA HEYWARD,

Petitioner,

MICHAEL C. MONROE, individually and in

his official capacity as District Director of

Health Education for the South Carolina

Department of Health and Environmental

Control and SOUTH CAROLINA DEPARTMENT

OF HEALTH AND ENVIRONMENTAL CONTROL,

Respondents.

On Petition For Writ of Certiorari

To The United States Court of Appeals

For the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN R. HARPER I

1545 Sumter Street

Columbia, South Carolina 29261

(803) 771-4723

Attorney for Petitioner i

EE EEE

QUESTION PRESENTED FOR REVIEW

Whether the judgment of the Court of Appeals that

the Petitioner was not discriminated against compared to

other employees because her dismissal was not similar to

theirs in all relevant respects conflicts with decisions of

this Court and of other Courts of Appeals requiring only

that the misconduct of the plaintiff and of other employees

be of comparable seriousness.

LIST OF PARTIES TO PROCEEDING BELOW

The caption of the case contains the names of all

the parties to the proceeding in the court whose judgment

is sought to be reviewed.

There are no parent companies or nonwholly owned

subsidiaries involved in this case.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .........

LIST OF PARTIES TO PROCEEDING BELOW ... ii

TABLE OF CONTENTS ......---eeeeeeeeeee: ill

TABLE OF AUTHORITIES .........--0 ee eeeee: iV

OPINIONS AND ORDERS BELOW .......------ I

STATEMENT OF JURISDICTION ........---+-- I

STATUTORY PROVISIONS INVOLVED .....-.-. yf

STATEMENT OF THE CASE ......--- eee ee eee: 3

ARGUMENT

THE COURT OF APPEALS DECIDED

THE QUESTION OF WHETHER THE

PETITIONER WAS SUBJECTED TO

DISCRIMINATORY DISCIPLINARY

ACTION IN A WAY THAT CONFLICTS

WITH RELEVANT DECISIONS OF THIS

COURT AND OTHER COURTS OF

pO EE eee rr ee ee ee 7

Ce SINC ovo cin eviews eoeceveceesvaceesse 1]

Ee oe ean Ga vdhoeven keen setae eeves A-|]

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TABLE OF AUTHORITIES

Cases Page

Corley v. Jackson Police Department, 566 F.2d

SP COUN as SUPER Co ce hues DEKE & Oe cee 10

Friedel v. City of Madison, 832 F.2d 965

‘toe ss eee ow rer reer ry) 10

Garrett v. City & County of San Francisco, 818

Fo £55 Ce os AED haa wha eee 10

Hargett v. Westminster Bank, USA, 78 F.3d 836

(2d Cir.), cert. denied, 117 S. Ct. 84

CEE Va ec aairn whe eee TOK Ras eens 10

Lynn v. Deaconess Medical Center-West Campus,

160 F.3d 484 (8th Cir. 1998) ............. 10

McAlester v. United Air Lines, Inc., 851

F.2d 1249 (10th Cir. 1988) ............... 1]

McDonald v. Santa Fe Trail Transportation Co.,

tes Seki sR rere err 9

McDonnell Douglas v. Green, 411 U.S. 792

CRG Se ak ck ea EE ae oe 9

Worthy v. United States Steel Co., 616 F.2d 698

C0 Ga TOO cooks ape RCo eee hea 10

iV

TABLE OF AUTHORITIES (CONT'D)

Statutes Page

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yo OR Came Bhs See errr ere rr cr fe 7

pi RAE Tom Ot: Beer errer eee eee cy 7

yi gOS TOM BG y eer eee ee er te tat 7

ry Beh Tam 2, < Ree errr irs ery ay ce. 5,6

42 U.S.C. § 2000] 2... cere c cece eerecescccerress 5

42 U.S.C. § 2000-2 2... cc cee cere rerereeces 2

42 U.S.C. § 2000e-5 2. cece ere c ccc ceceres 7

Sup. COR. 10 occ ce ccesecsevertvecsccneceses 9

OPINIONS AND ORDERS BELOW

The Magistrate Judge's Report and

Recommendation, which recommended dismissal of the

Plaintiffs’ claims in Civil Action No. 3:95-3400-23, with

the exception of Petitioner Heyward's claim for disparate

treatment under Title VII against Respondent South

Carolina Department of Health and Environmental Control

(DHEC), is not reported.

The Order of the United States District Court in

Civil Action No. 3:95-3400-23, adopting in part the Report

and Recommendation of the United States Magistrate

Judge, and entering summary judgment for the

Respondents on all claims, is not reported.

The United States Court of Appeals for the Fourth

Circuit issued an unpublished per curiam opinion in Case

No. 97-2430 affirming the decision of the United States

District Court.

The United States Court of Appeals for the Fourth

Circuit issued an unpublished opinion in Case No. 97-

2430 denying the Petitioner's petition for rehearing.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit sought to be reviewed was entered

on December 7, 1998. The judgment of the United States

Court of Appeals for the Fourth Circuit denying the

Petitioner's petition for rehearing was entered on January

]

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25, 1999. This Court has jurisdiction to review the

judgment of the Court of Appeals pursuant to 28 U.S.C. §

1254(1).

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 2000e-2(a) provides, in pertinent part,

as follows:

(a) Employer practices. It shall be an

unlawful employment practice for an

employer—

(1) to fail or refuse to hire or

to discharge any individual,

or otherwise to discriminate

against any individual with

respect to his compensation,

terms, conditions, or

privileges of employment,

because of such individual's

race, color, religion, sex, or

national origin; or

(2) to limit, segregate, or

classify his employees or

applicants for employment in

any way which would deprive

or tend to deprive any

individual of employment

opportunities or otherwise

adversely affect his status as

2

an employee, because of such

individual's race, color,

religion, sex, or national

origin.

STATEMENT OF THE CASE

May Linda Heyward (Heyward) is a black female

who was employed by Respondent South Carolina

Department of Health and Environmental Control (DHEC)

continuously from September 17, 1987 until her

termination in January 1992. During her tenure at DHEC,

Heyward had an excellent employment record and a

reputation for dependability, loyalty, diligence, and

progressive approaches, as well as for her community

contributions.

In November 1988, Heyward sought a promotion,

but the position was given to Respondent Monroe, a white

male who was no better qualified than Heyward and who

had less or no seniority in the department in which the

vacancy existed, while Heyward did have seniority in that

department. From about the time that Monroe became

Heyward's supervisor, he harassed her and subjected her

to discriminatory treatment. On March 16, 1989, for

example, Monroe issued Heyward a written reprimand for

attending a meeting which was an integral part of her job

duties, but which he had instructed her not to attend "due

to the higher priority" of meeting with him concerning her

performance appraisal. In April/May 1991, similarly,

Monroe gave Heyward an action plan notifying her that

she was strictly to account for where and with whom she

3

would be at all times and that he would be checking on her

whereabouts. In fact, Monroe continuously monitored

Heyward, almost to the point of stalking. On November

15, 1991, Monroe issued another reprimand on Heyward

for negligence in following rules.

In April 1989, Heyward complained to the State

Human Affairs Commission, which contacted DHEC and

attempted to informally resolve the matter.

Notwithstanding those efforts by the Commission to

resolve the matter, Monroe continued his discriminatory

treatment of Heyward. Ultimately, at the first technical

opportunity to do so, he terminated Heyward's

employment on January 27, 1992, based on the allegation

that she had abandoned her position by not coming to

work for three consecutive days. Heyward's absence from

employment on January 22-24, 1992 was due to an illness

which was sufficiently severe that she was unable to report

to work. Under DHEC's Employee Handbook, an

employee who cannot report to work due to illness is to

notify his or her supervisor "as soon as possible." On

January 22, Heyward informed Monroe's secretary that

Heyward would be unable to report to work. On January

23 and 24, Heyward continued her efforts to speak directly

with one or more of her supervisors, but was unable to do

so as a result of their unavailability. Notwithstanding the

fact that Heyward had directly notified Monroe's secretary

of her absence and the reason therefor, Monroe terminated

Heyward from her employment on January 27, stating as

his basis that Heyward had failed to contact her work area

during the three-day period and had, accordingly,

abandoned her employment.

The Employee Handbook provides only that if an

employee cannot report to work because of illness, the

supervisor should be notified "as soon as possible."

Whatever the formal policy, the informal policy was one

of leniency. During the pe ‘od of Heyward's employment,

seven other employees of DHEC were terminated for job

abandonment, but under circumstances in which, unlike in

Heyward's case, they were given reasonable notice and an

opportunity to explain their absence from work. For

example, one white female employee who failed to return

to work under similar circumstances, with the difference

that she was given written notice that she would be

terminated if she did not return by a particular date, was

not terminated until a full week after the designated date.

Another white employee, who failed for three weeks to

either return to work or respond to a letter of inquiry

concerning her return, was then terminated, not as of the

date of the letter but as of two days thereafter.

On October 16, 1995, Heyward filed a complaint in

the United States District Court of the District of South

Carolina, Columbia Division. The complaint stated a

number of causes of action, including claims that the

Respondents discriminated against Heyward because of

her race and gender in violation of 42 U.S.C. § 2000e

(Title VII) and 42 U.S.C. § 1983, that the Respondents had

retaliated against her for filing an informal complaint with

the South Carolina Human Affairs Commission

concerning her treatment by her immediate supervisor,

Respondent Michael C. Monroe, in violation of Title VII,

and that the Respondents deprived Heyward of various

constitutional rights in violation of § 1983. The complaint

also raised several state law claims for breach of contract,

breach of the implied covenant of good faith and fair

, a

dealing contained in her contract, and violation of the

public policy of South Carolina, as well as a claim by Earl

Samuel, Heyward's husband, for loss of consortium.

The case was assigned to the Honorable Joseph R.

McCrorey, Magistrate Judge. On January 16, 1997, Judge

McCrorey filed a Report and Recommendation in which

he concluded that the Petitioner's § 1983 claims and state

law claims should be dismissed as being barred by the

statute of limitations. (A-21.) He also recommended

dismissal of Heyward's claim for a violation of the public

policy of South Carolina as not stating a viable cause of

action, and the dismissal of Samuel's loss of consortium

claim on the ground that Samuel and Heyward were not

married at the time of the injury. The Magistrate did,

however, recommend the denial of the Respondents'

motion for summary judgment as to Heyward's Title VII

claim of discrimination based on race and gender, but

recommended dismissal of Respondent Monroe in his

individual capacity.

On September 16, 1997, the United States District

Court, adopting in part the Report and Recommendation

of the Magistrate Judge, entered an Order granting

summary judgment in favor of the Respondents on all

counts. (A-11.)

The United States Court of Appeals for the Fourth

Circuit affirmed the decision of the United States District

Court on December 7, 1998 (A-2), and denied the

Petitioner's petition for rehearing on January 25, 1999.

(A-1.)

%

The district court had subject-matter jurisdiction

over this matter by virtue of 42 U.S.C. § 2000e-5(f)(3) and

28 U.S.C. §§ 1331 and 1343, and the court's supplemental

jurisdiction under 28 U.S.C. § 1367.

ARGUMENT

THE COURT OF APPEALS DECIDED

THE QUESTION OF WHETHER THE

PETITIONER WAS SUBJECTED TO

DISCRIMINATORY DISCIPLINARY

ACTION IN A WAY THAT

CONFLICTS WITH RELEVANT

DECISIONS OF THIS COURT AND

OTHER COURTS OF APPEALS.

In its decision affirming the summary judgment

granted to the Respondents on all counts, the Court of

Appeals acknowledged that '[e}vidence showed that other

employees were treated more leniently than Heyward."

(A-6.) The Court was referring to the seven other

employees of the DHEC who were terminated for

abandonment during the period of Heyward's employment.

As noted by the Court of Appeals, Heyward

contends that the other similarly situated white employees

and male employees were provided with notice of pending

termination for abandonment and were given more time to

resolve the matter. (A-5.) The Court agreed that the white

employees and the male employees, although eventually

terminated, were either given notice of pending

termination or more time to resolve the matter. (A-6.)

7

eee

The Court upheld dismissal of the discriminatory

termination claims, however, on the ground that these

employees who were treated more favorably than Heyward

were not similarly situated to Heyward.

In deciding that Heyward was not similarly situated

to the more favorably treated employees, the Court of

Appeals compared Heyward's circumstances especially to

those of the two white female employees. The Court

observed that one of these employees was on leave of

absence status due to a family illness, and the other

employee went on medical leave without pay due to a

work-related injury. (A-7.) The Court then stated

erroneously that "Heyward, on the other hand, did not

provide her employer any reason for her absence." (A-7.)

In its discussion of the comparison between the

disciplinary treatment of Heyward and the white

employees and male employees of DHEC who were

disciplined for job abandonment, the Court of Appeals

proceeded on the erroneous premise that "she [Heyward]

must show that they [the other employees] are similar in

all relevant respects." (A-7.) Accordingly, the Court of

Appeals placed undue emphasis on the fact that different

supervisors were involved in Heyward's situation and that

of the other employees. The Court also stressed

inconsequential differences between Heyward's case and

those of two white female employees, even though all

three cases arose from sick leave or leave due to illness in

the family. Such a "similar in all respects" standard

adopted by the Court of Appeals is in conflict with the less

rigid standard of "comparability" which has been accepted

by this Court.

This Court has stated:

Of course, precise equivalence in culpability

between employees is not the ultimate

question: as we indicated in McDonnell

Douglas, an allegation that other

"employees involved in acts against [the

employer] of comparable seriousness . . .

were nevertheless retained . . ." is adequate

to plead an inferential case that the

employer's reliance on his discharged

employee's misconduct as grounds for

terminating him was merely a pretext. 41]

U.S., at 804, 93 S.Ct., at 1825 (emphasis

added).

McDonald v. Santa Fe Trail Transportation Co., 427 US.

273, 283 n.11 (1976).

The Court of Appeals’ use of the more demanding

"similar in all respects" test in this case was in conflict

with the "comparability" test adopted by this Court in

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

McDonald. This error led directly to an erroneous

affirmance of the dismissal of Heyward's Title VII claims

on summary judgment. Under Rule 10(c) of the Rules of

the Supreme Court of the United States, this conflict

between the Court of Appeals’ decision in this case and

relevant decisions of this Court on an important question

of federal civil rights law affecting many pending and

future claims under Title VII of the Civil Rights Act of

1964, weighs in favor of granting this Petition.

Moreover, the Petitioner invokes Rule 10(a) of the

same rules in support of her Petition, since the Court of

Appeals’ application of a "similar in all respects" standard

in this case is at odds with the "comparability" test which

other Courts of Appeals have employed in cases of this

kind. See Hargett v. Westminster Bank, USA, 78 F.3d 836,

839-40 (2d Cir.), cert. denied, 117 S. Ct. 84 (1996)

(comparable seriousness test allows consideration of

positions held by employees, as well as acts committed by

them); Worthy v. United States Steel Co., 616 F.2d 698,

703-04 (3d Cir. 1980) (claim alleging discriminatory

suspension and demotion remanded for findings as to

whether conduct of white workers was of comparable

seriousness to conduct of black plaintiff); Corley v.

Jackson Police Department, 566 F.2d 994, 998-99 (Sth

Cir. 1978) (district court erroneously ruled for defendants

in discriminatory discharge case brought by black

employee without considering evidence that white

employees committing acts of comparable seriousness

were not investigated or discharged); Friedel v. City of

Madison, 832 F.2d 965, 974 (7th Cir. 1987) (white police

recruits dismissed for cheating on exams did not show that

employer knew that minority or female recruits were

engaged in acts against employer of comparable

seriousness); Lynn v. Deaconess Medical Center-West

Campus, 160 F.3d 484, 487-88 (8th Cir. 1998) (male nurse

alleging discriminatory termination produced sufficient

evidence to survive summary judgment; evidence showed

that female nurse who engaged in misconduct that was

different in type but of comparable seriousness to

plaintiffs misconduct was treated more leniently); Garrett

v. City & County of San Francisco, 818 F.2d 1515, 1519

(9th Cir. 1987) (district court erred in denying discovery

motion filed by black plaintiff seeking personnel records

10

to show that white employees who engaged in misconduct

of comparable seriousness as plaintiff's misconduct were

treated more favorably); McAlester v. United Air Lines,

Inc., 851 F.2d 1249, 1261 (10th Cir. 1988) (airline's

termination of minority employee for alleged rule violation

was pretext for race discrimination; "The fact that...

other employees did not commit the exact same offense as

McAlester, does not prohibit consideration of their

testimony. It is sufficient if these employees did acts of

comparable seriousness.").

CONCLUSION

For reasons discussed herein, the Petitioner

respectfully requests that this Honorable Court grant her

Petition for Writ of Certiorari.

Respectfully submitted,

a

John R. Harper I

1545 Sumter Street

Columbia, South Carolina 29201

(803) 771-4723

Attorney for Petitioner

11