# Petition for Writ of Certiorari — Derbigny v. Glickman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1122

## Text

FILE D

-89ZLG4S nan 311998

OFFICE OF THE CLERK

In The
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

Connie Brown Derbigny
Petitioner.

Vv.

Dan Glickman, Secretary, Department of Agriculture
Respondent. .

ON PETITION FOR A WRIT OF CERTIORARI TO THE
FIFTH CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

LA QUETTA M. GOLDEN
Counsel of Record

2320 14TH ST., SUITE 206
GULFPORT, MS 39501
(228) 863-3152

Attorney for Petitioner

STI P NTED
Issue one:
Whether petitioner was discriminated against based upon her
race and retaliation when respondent violated petitioner’s federal civil

rights when respondent terminated her employment and when there
existed genuine issues of material fact and law.

Issue two:

Whether the lower courts erred in granting respondent’s
motion for summary judgment for petitioner’s alleged failure to
exhaust administrative remedies when petitioner had timely filed her
complaint, when respondents waived its opportunity to argue that her
claim was time-barred and when petitioner relied upon the Doctrine of
Equitable Tolling and Equitable Estoppel?

PARTIES IN THE PROCEEDING

A list of all parties to the proceeding in the court whose judgment
is the subject of this petition is as follows:

CONNIE BROWN DERBIGNY
PETITIONER

VERSUS

DAN GLICKMAN, SECRETARY,
DEPARTMENT OF AGRICULTURE
RESPONDENTS

il.
TABLE OF CONTENTS

QUESTIONS PRESENTED i
PARTIES IN THE PROCEEDING li
TABLE OF CONTENTS ul
TABLE OF AUTHORITIES Iv
PETITION FOR WRIT OF CERTIORARI I
OPINIONS BELOW l
JURISDICTION l
STATUTORY PROVISIONS INVOLVED l
STATEMENT 2
REASONS FOR GRANTING THE PETITION 4

I. THE DECISION BELOW IS IN DIRECT CONFLICT WITH
DECISIONS OF OTHER CIRCUITS 4

If. THE DECISION BELOW IS INCONSISTENT WITH
MCDONNELL DOUGLAS CORPORATION VERSUS GREEN
A UNITED STATES SUPREME COURT DECISION
CONCERNING THE IMPORTANT ISSUE OF RACIAL
DISCRIMINATION IN THE WORKPLACE 11

CONCLUSION 12

Ashagre v. Southland Corp.,
546 F. Supp. 1214, 1218 (S.D. Tex. (1982) 8

Bell v Veterans Admin. Hosp.

826 F.2d 357, 360-61 (Sth Cir. 1987) 1]
Boyd v Continental Baking Cor.,

887 F. Supp. 13 (N.D. Miss 1995) 5
Cooper v Federal Reserve Bank,

467 U.S. 867 (1984) 6
Eastland v Tennessee Valley Authority,

553 F. 2d 364, 365 (Sth Cir.) 11
Franks v Magnolia Hosp.,

888 F. Supp. 1310 (N.D. Miss 1995) 5

Gann v. Fruehaul Corp.,
52 F 3d 1320 (C.A. 5 Miss 1995) 5

Graham v. F. B. Leopold Co.,
779 F. 2d 170, 173 (3rd Cir. 1985) 8

Hernandez v Aldridge,
866 F. 2d 800, 802 (Sth Cir. 1989) 11

James v. Sadler,
909 F. 2d 834 (C.A. 5 Miss, 1990) 5

Josey v. Hollingsworth,
996 F. 2d 632 (3rd Cir. 1993) 4

iii

V

TABLE OF AUTHORITIES (CONTINUE)

Kizer v. Children’s Learning Crtr.,
962 F. 2d 608, 611 (7th Cir. 1992) 6

Little v. Liquid Air Corp.,
37 F. 3d 1069 (C.A. 5th Miss 1994) 5

Munoz v. Aldridge, Sect. Of the U.S. Dept. Of the Air Force,
894 F. 2d 1489 (Sth Circ. 1990) 10

McDonnell Douglas Corporation v. Green,
41 U.S. 792, 802 (1973) 4

McMillan v Rust College, Inc.
710 F. 2d 1112 (Sth Cir. 1983) 8

National Ass'n of Government Employees v City of Public Service Bd. Of
San Antonio, Tex..,

40 F. 3d 698, 711 (Sth Cir. 1994) 9

Oaxaca v Roscoe,
641 F. 2d 386, 380 (Sth Cir. 1981) 11

Oswalt v Sara Lee Corp.,

889 F. Supp. 253 (N.D. Miss 1995); 5
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) 12

Stewart v Stevenson Services, Inc.
980 F. Supp. 552 (N.D. Miss 1995) 2

vi
F AU NU
St. Mary's Honor Center v. Hicks,
509 U.S. 502,507 (1993) 12
Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248, 252-253 (1981) 1]

Thompson v. City of Starkville, Miss,

901 F.2d 456 (C.A. 5 Miss 1990) 5
Tolbert v U.S.
916 F. 2d 245, 247 (th Cir. 1990) 9

United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715 (1983) 12

Wade v Secretary of the Army,
796 F.2d 1369, 1377 (11th Cir. 1986) 7

Wilson v. Secretary, Dept. Of Veterans Affairs on Behalf of Veterans
Canteen Servs.,
65 F. 3d 402 (Sth Cir. 1995) 9

STATUTES AND RULES
F.R.C.P. 56
TITLE VU of the 1964 Civil Rights Act-
42 U.S.C. Section 2000e
42 U.S.C. Section 1981

l

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a Wnt of Certiorari issue to
review the judgment of the Fifth Circuit Court of Appeals in this matter
filed on December 31, 1997.

OPINIONS BELOW

The opinion of the United States court of appeals appears at
Appendix 101 to the petition and is unpublished.

The opinion of the United States district court appears at Appendix
106 to the petition and is unpublished.
The opinion of the U.S. Equal Employment Opportunity

Commission appears in part at Appendix 108 to the petition and is
unpublished.

R TION
The United States Court of Appeals filed its judgment on December

31, 1997. App. 101. The jurisdiction of this Court is invoked under 28
U.S.C. Section 1254 (1).

STATUTORY PROVISIONS INVOLVED

The constitutional and statutory provisions involved in the case at
bar include violations by Respondent against Title VII of the 1964 Civil
Rights Acts (42 U.S. C. 2000 e) on the issues of racial and retaliatory
discrimination.

————ee

2

STATEMENT

Your Petitioner timely initiated an appeal to the Equal Employment
Opportunity Commission (EEOC) from the final agency decision
concerning her equal employment opportunity (EEO) complaint, which
alleged discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. section 200 e et seq. The appeal was accepted
by the Commission in accordance with the provisions of EEOC Order No.
960.061.

Your Petitioner timely filed a Complaint of racial discrimination
and reprisal against respondents on March 22, 1996. Thereafter,
respondenis filed a Motion to Dismiss or in the alternative Motion for
Summary Judgment alleging petitioner's failure to exhaust her
administrative remedies. Then on March 31, 1997, the lower court judge
dismissed petitioner’s complaint with prejudice. Petitioner timely filed her
appeal to the Fifth Circuit Court of Appeals in New Orleans, Louisiana.

The facts indicate that your Petitioner began working for
Respondent in March, 1987, in a temporary capacity, at the GS-03 level;
thereafter, she became a permanent employee and was promoted tot he GS-
05 level. In August 1989, Petitioner resigned from her position to further
her education.

In March 1990, Petitioner resumed her employment with
Respondent as a Physical Science Technician (Temporary), GS-05, and she
occupied this position until the date of her unlawful termination.

During her entire tenure with Respondent, Petitioner has always
performed her duties and job responsibilities in a timely, professional and
efficient manner.

Pror to the initial reprisal activity, Petitioner had always enjoyed a
positive rapport with her colleagues and supervisors.

Then, prior to December 1990, Petitioner’s sister, Debora Brown

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Ladner, an African-American female, became engaged to Darren Ladner,
a Caucasian male, both were also employed by Respondent.

Thereafter, Dorothy L. Ladner, who was the supervisor of both
Petitioner and her sister, and who is related to Mr. Ladner, expressed her
displeasure with interracial relationships.

In December, 1990, the above named supervisor terminated the
employment of Petitioner’s sister. It was during this critical period that
Petitioner began experiencing a pattern of disparate treatment from her
supervisor. Such treatment included rating Petitioner at a lower scale on her
evaluation when she previously advised Petitioner that her performance was
outstanding; that the supervisor began demanding that Petitioner meet her
deadlines by one-hundred percent; the supervisor forbade Petitioner to keep
records when she had previously been allowed to maintain them: the
supervisor gave Petitioner unreasonable deadlines to complete her assigned
tasks; when Petitioner took her lab notebooks with her upon termination, the
agency called the Federal Bureau of Investigation and filed a complaint
against Petitioner, but Caucasian employees who customarily and routinely
took lab notebooks were never harassed and investigated by the FBI through
the direction of Respondent; the supervisor failed to render Petitioner
assistance when requested; the supervisor placed Petitioner on “AWOL”
status in October, 1990 unnecessarily; Petitioner could no longer attend her
classes to further her education; Petitioner was instructed not to utlize the
office copier machine; documents were falsified concerning Petitioner’s
work and job performance; Petitioner’s wages were illegally withheld for a
period in excess of one year; and Petitioner was unjustly terminated from
her employment in February 1991.

Petitioner strongly asserts that Respondent discriminated against her
on the basis of her race and reprisal based upon the aforementioned acts of
her Caucasian supervisor, Dorothy Ladner.

4.

REASONS FOR GRANTING THE PETITION

L. THE DECISION BELOW IS IN DIRECT CONFLICT WITH
DECISIONS OF OTHER CIRCUITS

Petitioner respectfully requests this Honorable Court to grant this
petition for a wnt of certioran because the ruling of the Sth Circuit Court of
Appeals is in direct conflict with decisions of other circuits.

The Sth Circuit Court of Appeals and the United States district
courts’ dismissed Petitioner’s racial discrimination claim when Petitioner
had properly met her burden of proof as established by the Josey v.
Hollingsworth 996 F. 2d 632 (3rd Cir. 1993) and McDonnell Douglas v.
Green 41 U.S. 792, 802 (1973) cases. Furthermore, Josey cited the
Supreme Court in rendering its conclusion that Plaintiff in Josey had been
discriminated based upon his race.

It is of national importance for the high court to render its opinion
of the issues of race discnmination and discrimination based upon reprisal
pursuant to Title VII of the 1964 Civil Rights Act. Petitioner brings this
action for other females in this nation and in Gulfport, Mississippi who
were terminated based upon their race and/or reprisal.

Petitioner strongly asserts that Respondents failed to diversify their
work force. Since Petitioner’s wrongful termination, Respondents have
allowed a Caucasian supervisor to terminate qualified African-Americans
within its work force. This is a very important issue since the city of
Gulfport, Mississippi has within it area at least 12 percent African-
American within its city; yet, Affican-Americans employees have been
terminated at an alarming ate.

A. SUMMARY JUDGMENT REVIEW

When Respondents filed their Motion for Summary Judgment, it
was premised upon allegations that Petitioner failed to establish subject
matter jurisdiction as well as Petitioner’s failure to exhaust administrative
remedies (See Record, Part I, pg. 90) The lower court overruled

5.

Respondents’ lack of subject matter jurisdiction claim, but dismissed
Petitioner’s suit for her failure to exhaust administrative remedies; and due
to her failure to establish her claims. (See Record, pg. 123)

Federal Rule Civil Procedure 56 specifically states as follows:

(a) A party seeking to recover upon a claim, counterclaim, or cross-
claim, or to obtain a declaratory judgment may, at any time after
the expiration of thirty days from the commencement of the action
or after service of a motion for summary judgment by the adverse
party, move with or without supporting affidavits for a summary
judgment in his favor upon all or any part thereof.

In the case at bar, Petitioner submitted a statement of facts, an
affidavit signed by Petitioner and an affidavit from Ms. Norma Turner
concerning Petitioner’s supervisor’s attitude against racially mixed couples
and the hostile treatment she received during her tenure with Respondent.
(See Record, pg. 91).

In Little v. Liquid Air Corp., 37 F. 3d 1069 (C.A. Sth Miss 1994),
the Court of Appeals for the Fifth Circuit rendered an extensive discussion
of the standard of review for summary judgments. In Little, the court held
that factual controversies are resolved in favor of the party opposing motion
for summary judgment, but only when there is actual controversy, i.e., when
both parties have submitted evidence of contradictory facts. Also see, Gann
v. Fruehaul Corp., 52 F 3d 1320 (C.A. 5 Miss 1995), James v. Sadler, 909
F. 2d 834 (C.A. 5 Miss, 1990); Thompson v. City of Starkville, Miss, 901
F.2d 456 (C.A. 5 Miss 1990); Stewart v Stevenson Services, Inc. 980 F.
Supp. 552 (N.D. Miss 1995); Oswalt v Sara Lee Corp., 889 F. Supp. 253
(N.D. Miss 1995); Franks v Magnolia Hosp., 888 F. Supp. 1310 (N.D. Miss
1995); and Boyd v Continental Baking Cor., 887 F. Supp. 13 (N.D. Miss
1995).

In the case at bar, Respondent alleged in his Motion for Summary
Judgment that Petitioner failed to establish her claims. However, Petitioner
submitted affidavits in rebuttal to Respondent’s motion. The contradictory
fact of whether Ms. Dorothy Ladner disliked mixed couples and the effect

6

that this had on Petitioner should be determined by a mer of fact and not a

judge.

Therefore, Petitioner respectfully requests that this Honorable Court
grants this petition, reverse and remand this cause to the lower court and
allow Petitioner to proceed to mal.

B. RACIAL DISCRIMINATION

The United States District Court for the Southern District of
Mississippi improperly denied Petitioner’s claim of racial discrimination
pursuant to Title VII of the 1964 Civil Rights Acts.

Jurisdiction is vested in federal courts pursuant to Title VII.
Congress’ purpose in adopting Title VII was to “assure equality of
employment opportunities and to eliminate those discriminatory practices
and devices which have fostered racially stratified job environments to the
disadvantage of minority citizens.” McDonnel Douglas Corp. V Green, 411
U.S. 792, 800 (1973). In Kizer v. Children’s Learning Ctr., 962 F. 2d 608,
611 (7th Cir. 1992), the court held that Title VII . . . makes it unlawful for
any employer “to discharge any individual, or otherwise to discriminate with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individuals’ . . . face.” 42 U.S.C. Sections 2000e-2(a)( 1).

Petitioner asserts that she has established by a preponderance of
evidence her prima facie case under Title VII. See Cooper v Federal
Reserve Bank, 467 U.S. 867 (1984). Petitioner also maintains that she has
met the standards as set forth in McDonnel Douglas.

Your Petitioner has further maintained that she was qualified to
perform her tasks; that she was minority and she was treated more harshly
than her Caucasian co-workers when she was discharged from her
employment for pretextual reasons. Respondent stated that Petitioner was
insubordinate and based upon this reason, Petitioner was terminated.
However, Petitioner presented a swom affidavit refuting her employer’s
claim of insubordination. Therefore, the employer’s proffered explanation

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is unworthy of any credence.

In the United States Postal Serv. Bd. Of Governors v. Aikens, 460
U.S. 711, 716 (1983), the court held that rarely will there be “eyewitness”
testimony with regard to the employer’s mental processes. Therefore, if an
employee doesn’t have direct evidence, he may use circumstantial evidence.
However, in the case at bar, Petitioner had direct evidence that her
super vr, Ms. Ladner, did not like interracial couple relationships and as
a result, Petitioner was terminated based upon her association with her sister
and her sister’s Caucasian male companion. Consequently, Petitioner and
her sister were dismissed from the agency. Petitioner strongly asserts that
the two dismissals warrant a review of circumstantial evidence of racial
discrimination. Prior to Ms. Ladner becoming Petitioner’s supervisor, your
Petitioner was able to enjoy her work without fear of any reprisal. Yet,
immediately upon Ms. Ladner’s discovery of Petitioner’s sister and the
sister’s relationship with a Caucasian male, both sisters were terminated.

Therefore, based upon the submitted affidavits, direct and
circumstantial evidence presented, Petitioner asserts that the issue of race
discrimination should proceed to a trial by jury.

In Josey v. Hollingworth, 996 F. 2d 632 (3rd Cir. 1993), the Court
held that to make 4 prima facie showing of racial discrimination, Plaintiff
must demonstrate that (1) he belongs to a racial minority; (2) he was
qualified for the position; (3) he was discharged; and (4) other employees
not in a protected class were treated more favorably. In the case at bar,
Petitioner has met this burden.

In Josey, the court further stated that the Supreme Court has
acknowledged that “there will seldom be eyewitness testimony as to the
employer’s mental processes. “Where direct ‘smoking gun’ evidence of
discrimination is unavailable, this court has found that the proper iniquity
is “whether evidence of inconsistencies and implausibilities in the
employer’s proffered reasons for discharge reasonable could 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

8

did act for discriminatory reasons,” (See Graham v. F. B. Leopold Co., 779 |
F. 2d 170, 173 (3rd Cir. 1985) |

The court further held that it has found that factors such as the
defendant’s credibility, the timing of an employee’s dismissal, and the
employer’s treatment of the employee could raise an inference of pretext
which would make summary judgment for the employer inappropnate.

In the case at bar, Respondent terminated Petitioner for alleged
insubordination is contrary to Petitioner’s job evaluations. The timing of
Petitioner termination along with the inconsistency could raise an inference
of pretext which could make summary judgment for the Respondent
inappropriate. Petitioner seeks a reversal since the ruling of the lower courts
are inconsistent with prior Supreme Court ruling and applicable federal
Statutes.

C. RETALIATION

Petitioner has also maintained that she has proven her claim of
retaliation. In order to prove retaliatory discharge, one must establish that
she engaged in a protected activity, that an adverse employment action
occurred, and that a causal connection between the two existed. See
McMillan v Rust College, Inc., 710 F. 2d 1112 (Sth Cir. 1983).

In the case at bar, Petitioner filed previous EEOC Complaints.
Subsequent to Petitioner engaging in these protected activities, she was
discharged on the guise of “insubordiration.” Prior to Petitioner filing any
complaints, she was able to work in a aostile free environment. Not until
her sister’s relationship with a Caucasian male and the previous filing of a
EEOC Complaint was Petitioner considered disgruntled or insubordinate to
her superiors.

In Ashagre v. Southland Corp., 546 F. Supp. 1214, 1218 (S.D.
Tex. (1982), the court held that some showing of satisfactory job
performance is necessary to raise the inference of discrimination. Plaintiff-
Appellant maintains that her job evaluations were satisfactory as evidence
by the record. (See Record, Part I).

science

9

With respect to the issue of whether Petitioner called her supervisor
a liar is a factual determination that should be decided upon by ¢ jury and
not a judge. However, as stated in her swora affidavit, Petitioner stated that
she never called her former supervisor a liar. This bold assertion by the
supervisor is simply another attempt to justify Petitioner’s unlawful
termination because there’s no other legitimate reason for terminating
Petitioner.

Therefore, based upon the foregoing, Petitioner respectfully requests
this Honorable Court to reverse the lower courts’ ruling since she has
established direct and circumstantial evidence concerning racial
discrimination and retaliatory discharge in the case at bar. Petitioner further
requests these issues be allowed to proceed to trial by jury.

D. DOCTRINES OF EQUITABLE TOLLING AND ESTOPPEL

In the March, 1997 ruling, the lower court held that it is well-
established that a plaintiff must exhaust administrative remedies before
filing an EEOC complaint or instituting a Title VII lawsuit. See Wilsgp v.
Secretary, Dept. Of Veterans Affairs on Behalf of Veterans Canteen Servs.,
65 F. 3d 402 (Sth Cir. 1995); National Ass'n of Government Employees v
City of Public Service Bd. Of San Antonio, Tex.., 40 F. 3d 698, 711 (th Cir.
1994); Tolbert v U.S. 916 F. 2d 245, 247 (Sth Cir. 1990)

However, Petitioner asserts the Doctrine of Equitable Tolling to
pursue her viable claims. Petitioner maintains that she went to an EEO
counselor in 1990 to pursue her administrative complaints against the
agency and that she followed the procedures given by the EEO counselor.
The Respondents never raised the issue of Petitioner’s failure to exhaust her
administrative remedies until six years after Petitioner’s initial EEO
Complaint. Petitioner believed that she was correctly told the procedures by
the EEO counselor. In fact, Petitioner recently received on June 20, 1997
another written statement from the United States Equal Employment
Opportunity Commission that Petitioner had timely initiated her appeal to
the EEOC. (See Appendix Pg 108)

10

The lower court cited in its opinion that the Fifth Circuit
acknowledges “three possible bases” for equitable tolling; (a) the pendency
of a suit between the same parties in the wrong forum; (2) plainuff’s
unawareness of the facts giving rise tot he claim because of the defendant’s
intentional concealment of them; and (3) the EEOC’s misleading the
plaintiff about the nature of her rights. “ See Wilson, 65 F. 3d at 404.

Petitioner relies heavily upon Munoz v. Aldridge, Sect. Of the U.S.
Dept. Of the Air Force, 894 F. 2d 1489 (Sth Cir. 1990). In Munoz, the
court held in this discrimination lawsuit that the Air Force waived its nght
to claim that employee’s Title VII employment discrimination action was
time barred by proceeding with administrative phase of the employee’s
complaint for four years without objection.

In the case at bar, your Petitioner maintains that Respondent’s claim
that her action was time barred should be waived since the agency waited a
period of over six years before asserting the claim.

Petitioner maintains that she never abandoned the administrative
process. She always intended to follow the EEO counsel’s directions and
then proceed to court. This would explain why the administrative process
lasted as long as it did. (1990 - 1996)

The court in Munoz further held that the purpose of exhaustion is to
give the agency the information it needs to investigate and resolve the
dispute between the employee and the employer. Good faith effort by the
employee to cooperate with the agency and EEOC and to provide all
relevant, available information is all that exhaustion requires. See, Wade
v Secretary of the Army, 796 F.2d 1369, 1377 (11th Cir. 1986)

Finally, Petitioner maintains that if her Title VII complaint was
timely filed, then the agency should be equitably estopped from alleging
untimeliness. In Munoz, the court stated that Manuel Munoz’s
administrative complaint was allegedly filed late, not his civil complaint.
The court in Munoz stated that civil actions under 42 U.S.C. Section 2000
e - 16 are actions against the United States, and as such are brought under
a statutory waiver of sovereign immunity. Because such waivers are

LR TT Te TT EE

lI

construed narrowly, this court has held that the limitations period for filing
of a civil complaint under this provision of Title VII is jurisdictional. See
Eastland v Tennessee Valley Authority, 553 F. 2d 364, 365 (Sth Cir.); Bell
v Veterans Admin. Hosp. 826 F.2d 357, 360-61 (Sth Cir. 1987); Hernandez
v Aldridge, 866 F. 2d 800, 802 (Sth Circ. 1989). The court in Munoz
further stated that because timely filing of a complaint in district court is
jurisdictional, it is not subject to waiver, estoppel or equitable tolling. But
see, Oaxaca v Roscoe, 641 F. 2d 386, 380 (Sth Circ. 1981) where the court
rejected the contention that “by merely accepting and investigating a tardy
complaint, (an agency) automatically waives its objection to the
complainant’s failure to comply with the prescribed time delays.”

However, in the case at bar, the Respondent did more than simply
accept and investigate Petitioner’s complaint. There was a specific finding
of timeliness of Petitioner’s administrative complaint after six years of
investigation.

Therefore, based upon the foregoing, Petitioner respectfully requests
this court to reverse and remand her case based upon tne Doctrines of
Equitable Estoppel and Equitable Tolling.

I. THE DECISION BELOW IS INCONSISTENT WITH
MCDONNELL DOUGLAS CORPORATION VERSUS GREEN,
A UNITED STATES SUPREME COURT DECISION
CONCERNING THE IMPORTANT ISSUE OF RACIAL
DISCRIMINATION IN THE WORKPLACE.

Plaintiff asserts that the decision below is inconsistent with
McDonnell Douglas Corporation v. Green, 41 U.S. 792, 802 (1973).
Plaintiff must initially establish a prima facie case of discrimination, in the
absence of direct proof. Also see, Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 252-253 (1981). Ifa prima facie case is established,
the Defendants must articulate legitimate non-discriminatory reasons for
Plaintiff's termination. McDonnel Douglas, supra; Burdine, supra.
Thereafter, Plaintiff must prove that the reasons advanced by the
Defendants are either untrue, or unworthy of belief, as to a pretext to hide,

12
or mask, discrimination. McDonnell Douglas, supra; Burdine, supra; and
St. Mary's Honor Center v. Hicks, 509 U.S. 502,507 (1993); and United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715
(1983).

To establish a prima facie case on the bases of race (African-
American), Plaintiff must establish by a preponderance of the evidence, that
she: (1) is an African-American; (2) was qualified for her position; (3) was
terminated from her position. McDonnell Douglas, supra; Burdine, supra.

In the case at bar, Petitioner established that she was qualified for
her position through her job evaluations.

Petitioner has proven that the reason Respondent gave for
terminating her (insubordination) was pretextual in aature since: (1)
Petitioner has shown through affidavits that her supervisor had a racial
motive in her termination; (2) that Petitioner had filed prior EEO against the
agency; (3) that defendants have failed to produce any disciplinary actions
taken against Petitioner during her tenure as a Physical Science technician;
and (4) where plaintiff has entered into evidence her court record which
rebuts the allegation of insubordination.

Defendants have not established, by demonstrable evidence, that in
the absence of discrimination, Plaintiff would still not have been retained |
as a Physical Science Technician . See, Price Waterhouse v. Hopkins, 490 |
U.S. 228 (1989). |

Therefore, based upon the foregoing, Plaintiff has established a
prima facie case of racial discrimination in the workplace.

CONCLUSION

Based upon the foregoing facts, federal statutes and case law,
Petitioner respectfully requests this Honorable Court to\receive this
Petition for Wnt Certiorari, grant a review on the issues presented and issue

ee

“

13

an opinion of reversal in accordance to the federal law. Petitioner

is certainly aware that this Honorable Court has discretion to determine
which cases it will review. Petitioner is not a public figure, famous, or
controversial. However, Petitioner is an African-American female who
believes in our United States Constitution as well as our judicial system.
Petitioner believes justice shouldn’t be afforded only to the famous, but to
the ordinary hard working citizens of these United States. Plaintiff

further believes that ultimate justice shail roll down like waters and
righteousness like a mighty stream!

Therefore, Petitioner seeks justice for herself and other females
desiring to work for Respondent. Petitioner prays that the petition for a
writ of certioran be granted.

Respectfully submitted,

La Quetta M. Golden,
Counsel of Record
LAW OFFICE OF
LA QUETTA “i. GOLDEN
2320 14TH STR., SUITE 206
GULFPORT, MS 39501
(228) 863-3152

Attorney for Petitioner

APPENDIX PAGE
101

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

Connie Brown Derbigny,
Plaintiff - Appellant,

VERSUS

Dan Glickman, Et al.,
Defendants - Appellees.

Case No. 97-60286

ORDER, dated December 31, 1997, Before Duhe’, DeMoss, and
Dennis, Circuit Judges: Per Curiam:'

Pursuant to Sth Cir. R. 47.5, the Court as determined that
this opinion should not be published and is not precedent
except under the limited circumstances set forth in
Sth Cir. R. 47.5.4.

APPENDIX PAGE
102

Appellant Connie Brown Derbigny (“Derbigny”) appeals the
district court’s grant of summary judgment dismsising her Title VII
employment discrimination claims. We affirm.

BACKGROUND

Derbigny, a black female, obtained temporary employment at the
National Monitoring and Residue Analysis Laboratory ("NMRA”) in
Gulfport, Mississippi, beginning in March, 1987. She was subsequently
promoted to the permanent position of physical science technician.
Derbigny resigned in August, 1989, to further her education. In March,
1990, she returned to the NMRA as a physical science technician, but this
time as a temporary employee. Her sister, Deborah Brown (“Brown”) , also
began work at NMRA around that time. Because Derbigny continued to
attend school, her work schedule was altered to accommodate her school
schedule. Sometime after Derbigny returned to NMRA, Brown began
dating a white, male coworker, Darren Ladner, whom she later married.

On October 23, 1990, Derbigny received her annual performance
review, which indicated a “fully successful” rating by her supervisor,
Dorothy Ladner (“Ladner”), a white female. Derbigny refused to sign the
evaluation from because she believed she should have been rated “exceeds”
in light of previous comments by Ladner that she was doing outstanding
work. For similar reasons, Brown also refused to sign her evaluation form.
That same day, Derbigny and Brown met with Joseph Ford, a black male
and second-level supervisor, to complain about their performance reviews.
Although Ford attempted to explain the evaluations, the meeting grew
heated and Ford terminated Brown for insubordination.

Following that incident, Derbigny’s relationship with her
supervisors and coworkers deteriorated. Over the next three months,
Derbigny failed a series of informal grievances with Ford, complaining,

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103

inter alia, about her evaluation and about warning letter from Ladner about
her work performance. Finally, during a dispute over Derbigny’s use of the
copying machine to copy her work folders, Derbigny apparently accused
Ladner of lying. Derbigny was subsequently terminated by Ford for
insubordination on February 11, 1991.

On September 17, 1991, Derbigny filed an EEO charge of
discnmuination, alleging that she had been discriminated against in the
workplace because of Ladner’s disapproval of her sister’s interracial
marniage. Her charge was denied on the merits in a final agency decision;
that decision was upheld by the EEOC. Derbigny then filed suit in federal
court under Title VII, 42 U.S.C. Section 2000 e et seq.

The district court granted the Secretary’s motion to dismiss claims
based on conduct occurring before January 12, 1991, for failure to exhaust
administrative remedies. See Pacheco v. Rice, 966 F. 2d 904, 95 (SthCir.
1992); 29 C.R.F. Section 1613.214 (a) (1) (1) (1991). The court also
granted the Secretary summary judgment on claims arising from conduct
after January 12,1 991, because, even assuming Derbigny had established
a prima facie case of employment discrimination, the Secretary provided
legitimate, non-discriminatory reasons for the challenged actions. See Long
v. Eastfield College, 88 F. 3d 300, 308 (5th Circ. 1996), citing St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). Derbigny now appeals. "

DISCUSSION

We review the district court’s grant of summary judgment de novo.
Bodenheimer v. PPG Industries, Inc., 5 F. 3d 955, 956 (Sth Cir. 1993).
Summary judgment shall be rendered if there is no genuine issue of material
fact and if the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56 (c). In making that determination, we must draw all justifiable
inferences in favor of the nonmovant. Anderson v. Liberty Lobby, 477 U.S.
242, 255 (1986). We need not address whether Derbigny failed to exhaust
administrative remedies as to some of her claims, because we find that,

————————————————

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104

even assuming Derbigny has stated a prima facie case’ of racially motivated
employment discrimination, the Secretary has advanced legitimate, non-
discrimintory reasons for her termination. See Long, 88 F. 3d at 304-05.

Title VII makes it unlawful for an employer “to discriminate against

{] any individual because of his race . . .” 42 U.S.C. Section 2000 e-2(a)(1).
Once a pliantiff makes out a prima facie case of discrimination, the

burden shifts to the defendant to articulate “reasons for its actions, which,
ifbelieved by thetrier of fact, would support a finding that unlawful
discrimination was not a cause of the employment action.” Hicks, 509 U.S.
at 507. If the defendant caries this burden of production, the plaintiff then
must show that the proffered reason is pretextual. Id. at 508, citing Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248,256 (1981). The
plaintiff retains the ultimate burden of proving that he was the victim of
intentional discrimination. Hicks, 509 U.S. at 508.

Although we have serious doubts whether Derbigny has established
her prima facie case, we need not reach that issue. The record shows that
Derbigny’s supervisors had legitimate nondiscriminatory reasons for

A prima facie case of employment discrimination under Title VII
requires the plaintiff to show: (1) she is within a protected group;
(2) she was adversely affected by her employer’s decision; (3) she
was qualified to retain her position or otherwise be free of adverse
employment decisions leading up to and including her termination;
and, (4) “evidence, either circumstantial or direct, from which a
factfinder might reasonably conclude that the employer intended to
discriminate in reaching its decision.” Woodhouse v. Magnolia
Hospital, 92 F. 3d 248, 252 (Sth Circ. 1996); see Meinecke v H&R
Block of Houston,66 F. 3d 77, 83 (Sth Cir. 1995)

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105

their actions’ against Derbigny and were not motivated by racial animus.
Derbigny fails to show that her “fully satisfactory” review was based on
anything but legitimate. objective workplace standards. Furthermore,
Ladner’s written warnings to Derbigny appear justifiable, given Derbigny’s
improper absence from the NMRA compound, her uncooperative attitude,
and her stubborn insistence on copying work folders in direct defiance of
Ladner’s orders. On the whole, the record shows that, following her
October evaluation, Derbigny became a disgruntled employee, whose unruly
behavior resulted in her dismissal. Finally, the record further shows that
Derbigny’s supervisors made a good faith, but ultimately fruitless, effort to
resolve Derbigny’s problems.

In sum, we find that the Secretary articulated legitimate, non-
discriminatory reasons for its actions against Derbigny. Furthermore,
Derbigny has not pointed to any evidence in the record showing that the
proffered reasons for her supervisor’s actions were pretextual. Since there
is MO genuine issue as to whether the NMRA intentionally discriminated
against Derbigny, the district court correctly granted the Secretary’s motion
for summary judgment.

AFFIRMED

We assume, as did the district court, that Derbigny’s performance
evaluation, the series of letters warning Derbigny about her work
performance, and finally the termination itself all constitute “adverse

employment actions” for purposes of Title VII. But see Dollis v. Rubin,

77 F. 3d 777, 781-82 (Sth Cir. 1995) (Title VII designed to address
ultimate employment decisions and not every decision made by

employers that might have some tangential effect on those employment

decisions.

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106

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OFMISSISSIPPI
SOUTHERN DIVISION

Connie Brown Derbigny, - Plaintiff
v.

Dan Glickman, Secretary, et. al. - Defendants

Civil No. 1:96cv180GR

ORDER, dated March 31, 1997, Walter Gex,
United States District Judge

This cause is before the Court on motion to dismiss, or in the
alternative, for summary judgment [32-1] filed by the defendant, Dan
Glickman, Secretary of the United States Department of Agriculture
[Secretary]. In accordance with the Court’s Memorandum Opinion issued
this date, incorporated herein by reference, it is hereby,

ORDERED AND ADJUDGED that the Secretary’s motion to
dismiss pursuant to Federal Rule of Civil Procedure 12 (b) (6) for lack of
subject matter jurisdiction [32-i] be, and is hereby, denied; It is further,

ORDERED AND ADJUDGED that the Secretary’s motion to
dismiss the plaintiff's Title VII claims based on conduct occurring before
January 12, 1991 [32-1], be, and is hereby, granted under Federal Rule of
Civil Procedure 56, as required by 29 C.F.R. Section 1613.214 (a)(1)(1), for
failure to exhaust administrative remedies, or alternatively, on the merits, It

APPENDIX PAGE
107

is further,

ORDERED AND ADJUDGED, that the Secretary’s motion to
dismiss claims occurring within the limitations penod governed section
1613.214(a)(1)(1) [2-1] be, and 1s hereby granted pursuant to Rule 56. It is
further,

ORDERED AND ADJUDGED, that all parties shall bear their
respective costs.

SO ORDERED AND ADJUDGED, this the 31st day of March, A.D., 1997

SO ORDERED AND ADJUDGED this the 25th day of July, A.D.,

1996

APPENDIX PAGE
108

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. BOX 19848
Washington, D.C. 20036

Connie L. Brown Derbigny,

)
Appellant, )
)
)
Vv. ) Appeal No. 01955049
) Agency No. 910917
Daniel Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
DECISION (STATED IN PART), dated June 20, 1997, Ronnie

Blumenthal, Director Office of Federal Operations

Appellant timely initiated an appeal tot he Equal Employment
Opportunity Commission (EEOC) from the final agency decision
concerning her equal employment opportunity (EEO) complaint, which
alleged discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. Section 2000 eet seq. The appeal is accepted
by the Commission in accordance with the provisions of EEOC Order No.
960.001.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1358%3A1. Public record. Not legal advice.