Petition for Writ of Certiorari — Washington v. Washington Metropolitan Area Transit Authority

Supreme Court, U.S.

PILE D

8 81702 MAYS - 199

GrFICE OF THE CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1998

DONALD R. WASHINGTON, Petitioner,

v.

WASHINGTON METROPOLITIAN AREA

TRANSIT AUTHORITY Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS

FOR THE DISTRICT OF COLUMBIA

PETITION FOR WRIT OF CERTIORARI |

DONALD R.WASHINGTON

PRO SE

12605 KINGS TERRACE

MITCHELLVILLE, MARYLAND 20721

eS

QUESTIONS PRESENTED FOR REVIEW

|. Does a plaintiff have the right to invoke that

the rights be in granted under Certificate of

Assurance that is sworn to and signed by the

General Manager and Head of the General

Council of Washington Metropolitan Area Transit

Authority in front of U.S. Congress annually.

2. May a plaintiff who solely does transit work be

consider a Federal Transit worker and subject the

protection benefits afforded Federal Grant

recipients

1]

TABLE OF CONTENTS

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Appendix

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J.S. Court of Appeal for District of Columbia

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I

JURISDICTION

The Court of Appeals issued its oppion on December 1,

1998, and denied Petitioner’s petition for rehearing and

suggestion for rehearing en banc on January 6, 1999. This

petition is being filed after a 30 days extended time as

required by S. Ct. R. 30.2. This Court has Court has

jurisdiction pursuant to 28 U.S.C.§. 1254 (1). This petition

is not a cross-petition and Petitioners does not rely on S.

Ct. R. 125.

CONSTITIONAL PROVISION

Constitutional Provision the right to be free from cruel and

unusual Punishments Inflicted. Nor shall any person be

deprived of life, Liberty or Property with out Due Process

of Law and one has the right to be fairly heard and not

shock the sense of fair play,

STATEMENT OF CASE

This case stems from numerous forms of continuing

discrimination. The petitioner was called into an office,

demoted from second level management /supervisor

positions to mechanic with absolutely no due process. A

demotion form upper level management to Union

Mechanic is the evaluation of being fired. There was no

discussion of employee nights, There were no postings of

Federal guidelines of employee nghts and the personnel

department did not meet with the petitioner.

The petitioner then filed and internal complaint with

Washington Metropolitan Area Transit Authority’s

(WMATA) Equal Employment Office (EEO), It took

WMATA more than two hundred, eleven (211) days to

respond to the petitioners’ administrative complaint.

WMATA has not shown anything that resembles a two-

hundred (200) day report. There was no hearing, any

investigative sessions where the petitioner was present or

has knowledge of. The petitioner received no copy of such

report. The petitioner received a letter in the mail stating a

finding that no Probable Cause had been rendered form the

Director of Civil Rights (WMATA). Also, stated in the

letter if petitioner was dissatisfied with the decision a

complaint could be filed the Equal Employment

Opportunity Commission (EEOC) Washington Field

Office no later than one hundred eighty (180 days) from

the date of the last alleged incident.

Director of Civil Rights -WMATA. Willfully and

proposal held information on filing complaint with EEOC

for two-hundred twelve days (212), making sure the 180

days filing time had expired.

Petitioner went to EEOC and was issued a valid Right to

Sue letter. The District Court agreed with WMATA who

claimed they were a state agency and had nothing to do

with the Federal Government. This was not true; due to

iii

3

the billions of dollars WMATA received from the U.S.

Congress annually.

WMATA also seems to forget the Congress (Certificate of

Assurance) which is binding and signed by the WMATA

General Manager and head of General Council. WMATA

failed to follow its won Personnel Policies, EEO

procedures, Urban Mass C4704.1, C7R29, Federal Transit

Administration Certification and Assurance Act.

The petitioner is a FTA worker who has worked salary on

Mass Transit projects, therefore, a Federal employee.

The Petitioner requests the Honorable Court to issue Writ

of Certiorari WMATA have deprived the Petitioner of due

Process.

The U.S. Cont. of Appeals also errer when they found in

WMATA favor. WMATA states we are not an Agency.

They are an agency and in named so n UMTAC. 4704.1.

The Petitioner is entitled to equitable tolling do to the

holding his complaint for over 211 days and had no

posting as required by regulations. WMATA has been

given regulations to follow under FTA, WMATA and

fundamental fairness as a grant recipient. The Petitioners

got no help within WMATA General Manager and staff

gave him the run around, personnel referred to meet him

and the Board Members did nothing.

4

CONCLUSION

For all the reasons set forth above Donald R. Washington

respectfully request that this Court grants a Writ of

Certiorari.

la

APPENDIX A

UNTIED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIAL CIRCUIT

Argued October 9, 1998 Decided December 1, 1998

NO. 97-7227

DONALD WASHINGTON,

APPELLANT

V.

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

APPELLEE

Appeal from the United States District Court

For the District of Columbia

(No. 97cv00726)

Barbara B. Hutchinson argued the cause and filed the

briefs for appellant.

Nancy F. Langworth argued the cause for appealed.

With her on the brief were Robert L. Polk and Robert J.

Kniaz

Before: Edwards, Chief Judge, ROGERS and GARLAND

Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Bills of cost must be filed within 14 days after entry of

judgment. The court looks with disfavor upon motions to

file bills of cost out of time

2a

Edwards, Chief Judge: This case involves the timeliness

of a discrimination claim filed by Donald Washington

against the Washington Metropolitan Area Transit

Authority (“WMATA”). Washington raises various

arguments as to why this court should permit him to

proceed on his claim, notwithstanding his failure to satisfy

a clear filing requirement with the Equal Opportunity

Commission (“EEOC”). We find Washington’s

Contentions to be without merit. Accordingly, we affirm

the District Court’s grant of summary judgment in favor of

WMATA.

I Background

On March 31, 1975, Washington began his employment

with WMATA. He was hired for the position of

Mechanical Electrical Repairman and was subsequently

promoted to a supervisory position. According to

Washington, however he began to experience

discriminatory treatment by WMATA beginning in 1990.

See Complaint 6, reprinted in Joint Appendix (“J.A”) 6.

This alleged treatment consisted of inter alia unfair

promotion practices, “bogus” unfavorable performance

evaluations, and temporary re-assignments. See id 6-9,

11-13, reprinted in J.A. 6-8. The treatment allegedly

worsened after Washington complained of discrimination

to his supervisors. See Affidavit of Donald Washington

reprinted in J.A. 74. On August 8, 1995, Washington was

demoted to a non-supervisory position.

On September 5, 1995, Washington filed an internal

complaint of discrimination with WMATA’s Office of

Civil Rights (“OCR”), claiming age and race

discrimination and relations in the terms and conditions of

his employment, including his demotion. See J.A. 84-88.

On April 12, 1996, WMATA issued an internal decision,

finding that there was “ insufficient evidence to support a

charge of discrimination.” Letter from WMATA to

Washington (April 12, 1996), reprinted in J. A. 89. While

noting that the decision was “final with in WMATA” the

OCR’s letter informed Washington that he could file a

complaint with the EEOC “no later that in 180 days from

the date of the last alleged incident.” Id. Five months

3a

later, on September 12, 1996, Washington filed a race

discrimination charge against WMATA with the EEOC.

See J.A. 34. He amended this charge on January 6, 1997

to include claims of age discrimination and retaliation, as

he had originally alleged to the OCR. See id. In April

1997, Washington requested and received a right-to-sue

notice from the EEOC.

On April 11, 1997, Washington filea suit in District Court,

alleging violations of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. 621-634, and Title

VII of the Civil Rights Act of 1964 (“Title VII"), 42

U.S.C. 2000e to 2000e-17. On September 19, 1997,

WMATA filed a Motion to Dismiss and /or for Summary

Judgement, arguing that: (1) because the last-alleged

discriminatory act —-the demotion—occurred more than

180 days before Washington filed his charged with the

EEOC, his compliant was time barred under 29 U.S.C.

626(d)(1) and 42 U.S.C. 2000e-5 (e)(1), see J.A. 24-27;

and (2) the court nevertheless lacked jurisdiction over the

ADEA claim because of WMATA’s Eleventh Amendment

immunity issue, the District Court granted WMATA’s

motion, concluding that Washington claim was untimely

and that equitable tolling was not appropriate . See

Washington v WMATA, NO 97-0726, Memorandum and

Order (D.D. C. Nov. 17, 1997), reprinted in J.A. 1-3

II Analysis

Before suing under either the ADEA or Title VII, an

aggrieved party must exhaust his administrative remedies

by filling a charge of discrimination with the EECOC with

180 days of the alleged discriminatory incident. See 29

U.S.C. 626 (d)(1) (1994); 42 U.S.C. 2000e-5(e)(1) (1994);

Currier v. Radio Free Europe/Radio Liberty, Inc. NO. 98-

7020, 1998 WL 785623, at *2(D.C. Cir Nov 13, 1998).

Washington, however, did not file his charge with the

EEOC until more than a year after his allegedly

discriminatory demotion.

Washington’s first argument is that his September 5, 1995

internal complaint should be “considered filed with the

EEOC on the date it was filed with WMATA”. Brief of

da

Appellant at 4. For this argument, Washington relies on

EEOC regulation entitled, “Procedures for Complaints of

Employment Discrimination Filed Against Recipient of

Federal Financial Assistance,” see 29 C.FR. pt. 1691

(1998), which provided in pertinent part, that:

A compliant of employment discrimination filed

with an agency, which is transferred or referred to

EEOC under this regulation, shall be deemed a

charge received by EEOC. For all purposes under

title VII ..., the date such a compliant was

received by an agency shall be deemed the date it

was received by EEOC.

29 C.F.R. 1691. 6(a). WMATA, however is not an

“agency” within the meaning of this provision. “Agency,”

for these purpose, means “any Federal department or

agency which extends Federal financial assistance subject

to any civil rights provision(s) to which this regulation

applies.” 29 C.F.R. 1691.13 (a). This definition clearly

excludes WMATA, which is neither a federal department,

nor an agency that extends federal financial assistance.

Thus, WMATA’s internal procedures offer a separate

forum for pursuing discrimination complaints, which does

not displace the ADEA or Title VII filling requirements.

Washington next argues that, even if he did not satisfy the

filling requirement, the time for filing should be equitably

tolled on the ground that WMATA touted its internal

procedure as the appropriate forum for resolving

discrimination complaints, see Brief of Appellant at 10 15

and thereby lulled [him] .. into presuming that he had met

the requirements of the law.” Id. At 11. Although

Washington asserts be more accurately characterized as

one for equitable estoppel. See Currier, 1998 WL 785623

at *4. In either event, his claim fails. Washington is

correct that the administrative filing requirement is “not a

jurisdictional prerequisite to suit in federal court,” and is

therefore subject to equitable tolling. Zipes v. Trans

World Airlines, Inc., 45 U.S. 385, 393 (1982).

Washington is not entitled to tolling on either theory in this

case, however for he has not adequately explained his

failure to timely exhaust.

Sa

In Irwin v. Department of Veterans Affairs, the

Supreme Court noted:

We have allowed equitable tolling in situation

where the claimant has actively pursued his

judicial remedies by filing a defective pleading

during the statutory period, or where the

complainant has been induced or tricked by his

adversary’s misconduct into allowing the filling

deadline to pass. We have generally been much

less forgiving in receiving late filling where e the

claimant failed to exercise due diligence in

preserving his legal rights.

498 U.S. 89, 96 (1990) footnotes omitted). Thus

equitable principles favor tolling where, for example, a

defendant engaged in “affirmative misconduct, “Baldwin

County Welcome Ctr. V. Brown, 466 U.S. 147, 151

(1984), or misled [a plaintiff about the running of a

limitation period.” Bowden v United Sates, 106 F .3d 433,

438 (D.C. Cir 1997).

Here, Washington has demonstrated no affirmative

misconduct on the part of WMATA. Nor has he shown

that WMATA’s decision letter disposing of his claim was

misleading. Indeed, because 180 days had already expired

between Washington’s demotion and the date the letter

was issued Washington could not have relied on the letter

to his detriment. Moreover the letter’s reference to the

filing deadline was not literally incorrect, for it could have

applied to an instance of discriminatory conduct arising

after Washington’s demotion. Finally, Washington, who

was represented by counsel during at least part of the filing

period, failed to demonstrate diligence; he filed his charge

with the EEOC five months after receiving WMATA’s

decision letter and over a year after his demotion. “The

court’s equitable power to toll the statute of limitations

will be exercised only in extraordinary and carefully

circumscribed instances, “ Smith-Haynie v. District of

Columbia, 155 F. 3d 575, 579-80 (D.C. Cir 1998)

(quotation omitted), and does” not extend to what is at best

a garden variety claim of excusable neglect.”

ba

Irwin, 498 U.S. at 96. Thus, we find that equitable

principles do not warrant tolling in this case.

Because our resolution of the timeliness issue disposes of

Washington’s ADEA and Title VII claims, we need not

reach the question of whether his ADEA claim is

nonetheless barred by the Eleventh Amendment. We note,

however, that this issue is currently under advisement by

this court in Jones v. WMATA, No. 97-7186 (D.C. Cir

argued Sept. 9, 1998)

Ill. CONCLUSION

For the gorging reasons, we affirm the District Court’s

grant of summary judgement in favor of WMATA.

So ordered.

7a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DIRSTRICT OF COLUMBIA CIRCUIT

No. 97-7227 September Term, 1998

97cv0026

Donald Washington,

Appellant

Washington Metropolitan Area Transit Authority,

Appellee

BEFORE: Edwards, Chief Judge, Rogers and Garland ,

Circuit Judges

Upon consideration of appellant’s petition for rehearing

filed December 15, 1998, it is

ORDERED: that the petition be denied.

PER Cuuriam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Robert A. Bonner

Deputy Clerk

Sa

APPENDIX C

{Page 398-399]

TITLE 29—LABOR

CHAPTER XIV

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSON

Part 1691—PROCEDURES FOR COMPLANINTS OF

EMPLOYMENT DISCRIMINATION FILE

Sec. 1691.13 DEFINITIONS.

As used in this regulation, the term:

(a) Agency means any Federal department or agency,

which extends Federal financial assistance subject to any

civil rights provision (s) which this regulation applies.

(b) Assistant Attorney General refers to the Assistant

Attorney General, Civil Right Division, United States

Department of Justice, o his or her delegate.

(c) Chairman of the EEOC refers to the Chairman of the

Equal Employment Opportunity Commission, or his or her

delegate.

(d) EEOC means the Equal Employment Opportunity

Commission and where appropriate, any of its District

Offices and its Washington Field Offices.

(e) Federal financial assistant includes:

(1) Grants and loans of Federal funds,

(2) The grant or donation of Federal property and interest

in property,

(3) The detail of Federal personnel,

(4) The sale and lease of, and the permission to use (on

other that casual or transient basis), Federal property or

any interest in such property without consideration or at a

nominal consideration, or at a consideration which is

reduced for the purpose of assisting the recipient, or in

recognition of the public interest to be served by such sale

or lease to the recipient, and

(5) Any Federal agreement, arrangement, or other contract

which has.

Ya

[[Page 399]]

One of its purpose the provision of assistance.

For purposes of this regulation, the term Federal financial!

assistance also includes funds disbursed under the revenue

sharing act.

(f) Joint complaint means a complaint of employment

discrimination covered by title VII or the Equal Pay Act

and by title VI, title LX, or the revenue sharing act.

(g) Recipient means any State, political subdivision of any

State or instrumentality of any State or political

subdivision, any public or private agency, institution,

organization, or other entity, or any individual, in any

State, to whom Federal financial assistance is extended,

directly or through another recipient, for any program

including any successor, assign, or transferee thereof, but

such program does not include any ultimate beneficiary

under such program.

(h) Revenue sharing act refers to the State and Local Fiscal

Assistant Act of 1972, as amended 31 U.S.C. 12221 ET

seq.

(i) Tittle VI refers to the title VI of the Civil Rights Act of

1964, 4 U.S.C. 2000d-4. Where appropriate, title VI also

refers to the extended that they prohibit employment

discrimination on the grounds of race, color, religion, sex

or national origin in programs receiving Federal financial

assistance of the type subject to title VI itself as amended,

42 U. S.C. 2000¢e, et seq.

(k) Title [X refers to title [IX of the Education Amendments

of 197- 20 U.S. C. 1681 to 1683.

[48 FR 3574, Jan. 25, 1983, as amended at 54 FR 32063,

Aug. 4, 1989]

10a

[Page 395- 396]

TITLE 29—LABOR

Chapter XIV —

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

PART 1691

PROCEDURE FOR COMPLAINTS OF EMPLOYMENT

DISCRIMATION FILE

Sec. 1691.5 Agency processing of complaints of

employment discriminate

(a) Within ten days of receipts of a complaint of

employment discrimination, an agency shall notify the

respondent that it has received a complaint of employment

discrimination, including the date, place and circumstance

of the alleged unlawful employment practice.

(b) Within thirty days of receipts of a complaint of

employment discrimination an agency shall:

(1) Determine whether it has jurnsdiction over the

complaint under tittle VI, title LX, or the revenue sharing

act; and

(2) Determine whether EEOC may have jurisdiction over

the complainant under title VII or the Equal Pay Act.

(c) An agency shall transfer to EEOC a complaint of

employment discrimination over which it does not have

jurisdiction by over which EEOC may have

[[Page 396]]

Jurisdiction within thirty days of receipt of a complaint.

At the same time the agency shall notify the complainant

and the respondent of the transfer, the reason for the

transfer, the location of the EEOC office to which the

complaint was transferred and that the date the agency

receive the complaint will be deemed the date it was

received by EEOC.

(d) If an agency determines that a complaint of

employment discrimination is a joint complaint, then the

agency may refer the complaint to EEOC. The agency

sai

lla

need not consult with EEOC prior to such referral. Any

agency referral of a joint complaint should occur within

thirty days of receipt of the complaint.

(e) An agency shall refer to EEOC all joint complaints

solely alleging employment discrimination against an

individual. If any agency determines that special

circumstances warrant its investigation of such a joint

complaint, thin the agency shall determine whether the

complaint ahas filled a similar charge of employment

discrimination with EEOC.

(1) If an agency determines that the complaint has filed a

similar charge of employment discrimination with EEOC,

then the agency may investigate pending the agency

investigation.

(2) If an agency determines that the complainant has not

filed a similar charge of employment discrimination with

EEOC, then agency may investigate the complaint if

special circumstances warrant such action. In such cases,

EEOC shall defer its investigation of the referred joint

complaint pending the agency investigation.

(f) An agency shall not refer to EEOC a joint complaint

alleging a pattern or practices of a recipient, an agency

should absent special circumstances, handle the entire

complaint under the agency ‘s own whether the

complainant has filed a similar charge of employment

discrimination with EEOC. If such a charge has been

filed, the agency and EEOC shall coordinate their

activities. Upon agency request, EEOC should ordinarily

defer its investigation pending the agency investigation.

(h) When a joint complaint is referred to EEOC for

investigation, the agency shall advise EEOC of the

relevant civil night provision(s) applicable to the

employment practices of the recipient, whether the agency

wants to receive advance notice of any conciliation

negotiation relationship between the alleged discrimination

and the recipient, whether the agency wants EEOC to seek

information concerning the relationship between the

alleged discrimination and the recipient’s whether a

primary objective of the Federal financial assistance is to

provide employment. The agency shall also notify the

complainant and the complaint was referred, the identity of

the civil nghts provision (s) involved the authority of

ila

EEOC under this regulation and that the date the agency

receive the complaint will be deemed the date it was

received by EEOC. Specifically, the notice shall inform

the recipient that the agency has delegated to EEOC its

investigative authority under implementing regulations

lhe agency, therefore, may use information obtained by

EEOC under the agency’s therefore, may use information

obtained by EEOC under the agency's investigative

authority in a subsequent tittle VI, title LX or revenue

sharing act enforcement proceeding.

Se

l3a

FTA Certifications and Assurance

for Federal Fiscal Year 1997

Name of Applicant:

Washington Metropolitan Area Transit Authority

Name and Relation of Authorized Representative

Richard A. White, General Manager

By Signing Below I Richard A. White (name), on behalf of the

Applicant, declare that the Applicant has duty authorized me to

make these certification and assurance and bind the Applicant's

compliance Thus, the Applicant agrees to comply with all

Federal statutes regulation executive orders, and administrative

guidance required for each application it makes to the Federal

Transit Administration (FTA) in Federal Fiscal Year 1997

FTA intends that the certification and assurance the Application

selection on the other side of this document, as representative of

the certification and assurance in Appendix A. should apply as

required to each project for which the Applicant seeks now or

may later, seek FTA assistance during Federal Fiscal Year 1997

Che Applicants affirms the trustfulness and accuracy of the

certification and assurance it has made in the statements

submitted herein with is document and other submission made to

FTA and acknowledges that the provision of the Program Fraud

Civil Remedies Act of 1986, 31 US/C 38001 et seq., as

implemented by U.S. Dot equation, “Program Fraud Civil

Remedies. “49 CFR part 31 apply to any certification assurance

or submission made in connection with the Urbanized Area

Formula Program, 49 U.S.C 5307 and may apply to any other

certification assurance or submission made in connection with

any other program administered by FTA

In signing this document, | declare under penalties of perjury

that the foregoing certification and assurance any other

statements made by me on behalf of the Application are true and

correct

Date: 10/31/96 a: s /Richard A. White

Authorized Representative of Application

Ida

AFFIRMATION OF APPLICANT’S ATTORNEY

(Name of Applicant)

As the undersigned legal counsel for the above named

Applicant, I hereby affirm that the Applicant has authority

under sated and local law make and comply with the

certification and assurance as indicated on the foregoing

pages. I further affirm that, in my opinion, the

certification and assurance have legally made and

constitute legal and binding obligation on the Applicant.

I further affirm that to the best of my knowledge, there is

no legislation or litigation pending or imminent that might

adversely affect the validity of these certification and

assurance. or the performance of the project.

Furthermore, if | become aware of circumstances that

change the accuracy of the foregoing statements | will

notify the Applicant and FTA promptly.

Date: 10/31/96 b: s/Robert L. Polk

Applicant Attorney

regs EE c. Robert L. Polk

Unless the Applicant seeks only a FTA university and research-trapping

grant authorized by 49 U.S.C. 5312 (b) the Applicant legal contract is

required to affirm the legal capacity of the Applicant. The Attorney's

Affirmation for previous FTA project is generally valid in Fiscal Year

1997, provided the Applicant's communication have not changed in a

way that makes the certification invalid and the Attorney’s Affiliation

rename on file in the Applicant's office readily available to FTA. In

these case line “b” should remain blank and same Authorized

Representive alight “a” and “c”. See Procedures in introduction section.

Note: FTA however reserves the nght to require an Attorney signature

on line “b”.

FTA Certification and Assurance for Fiscal Year 1997