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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1038

## Text

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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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0783%3A1. Public record. Not legal advice.