Opposition Brief — Watson v. University Medical Center

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Supreme Court, U.S.

FILED

j JUL 24 1958

ett ee | DEEICE OF THE CLERK

———_-

In The

Supreme Court of the United States

October Term, 1997

a Ye

RAY WATSON,

Petitioner

UNIVERSITY MEDICAL CENTER,

MIKE PARKER, and BILL ANDREWS,

, = 904

Responde nts.

Dee YH a

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

eumaympnemenansmmeneeesnenstainetivit & pA ERS GEAR

PeteR M. ANGuLo, Esq.

Counsel of Record

301 E. Clark Ave., #1000

Las Vegas, Nevada 89101

(702) 384-4012

Counsel for Respondents

University Medical Center,

Mike Parker and Bill

Andrews

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (4 342-283)

™

QUESTIONS PRESENTED FOR REVIEW

Whether the Ninth Circuit correctly held Petitioner

failed to provide any evidence that the reasons identi-

fied by the employer for its rejection of Petitioner’s

application for employment or interview were pretex-

tual.

Whether the Ninth Circuit correctly affirmed the deci-

sion that no evidence supporting a claim for breach of

a Union contract existed.

PARTIES TO THE PROCEEDING

Respondents do not disagree with the characteriza-

tion of the parties to this proceeding identified in the

Petition for Writ of Certiorari.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

FAnmsins 10 THE PROCEEDING .................. ii

ES fe STS ia eek bees eo's wad auch aes 1

CONSTITUTIONAL AND STATUTORY PROVI-

ks gn ia was bad oy ov a uyaee es 1

Perea EP BOER CAGE... kc ccc uc cece’ 1

se) CEL a Vek acess 60 kG abs one ce os 10

I. SUMMARY JUDGMENT IS APPROPRIATE

WHEN INSUFFICIENT FACTS ARE

a Co GN sad a kas ys vm sed 6 cto 10

II. BASED ON PETITIONER’S EVIDENTIARY

DEARTH, THERE WAS NO TITLE VII

I Sere Edd kb ou oo os 8hewdpae cae 12

Ii]. PETITIONER HAS FAILED TO ESTABLISH

ANY FACTS SUPPORTING A BREACH OF

CONTRACT CLAIM OR DUE PROCESS VIO-

ERS U GN) aoa vp'n oa a aos ons DRO: dae c's 20

ead trib sia bp Wik Widcayseckossacs 25

TABLE OF AUTHORITIES

Page

CasEs

American Bank Stationery v. Farmer, 799 P.2d 1100

CPOEW, SINE 5 5 ich eeaies takateas Rev eaa eee abes 21

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .... 10

Armstrong v. Meyers, 964 F.2d 948 (9th Cir. 1992).... 22

Bally’s Grand Employees’ Federal Credit Union v.

Wellen, 779 P2a FG (NOV. PIGS on os ee eke as cs 21

Beales v. Hillhaven, Inc., 825 P.2d 212 (Nev. 1992) ....21

Board of Regents v. Roth, 408 U.S. 564 (1972)......... 21

Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988), cert.

meted, Se TiS. Ti Tees «bores 2 0h5sceechias ox 21

Britton v. City of North Las Vegas, 799 P.2d 568

ec Ma EE PEP yee Mee a try hr rs 24

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).......... 10

Chapman v. Houston Welfare Rights Organ‘zation,

ee ee gh, eee ere rer Tr rr es he er eee 12

Crank v. Nevada Industrial Comm'n, 675 P.2d 413

ON BOE Ss isc vin wan See wok den ad eae CATs 20

Day v. Wayne County Board of Auditors, 749 F.2d

BBW COR CAE. SG neva ecnckanesceCoseiacvades 12

Fonda v. Gray, 707 F.2d 435 (9th Cir. 1983) .......... 19

Foster v. Arcata Assoc., 772 F.2d 1453 (9th Cir.

1985), cert. denied, 475 U.S. 1048 (1986)............ 17

Griggs v. Duke Power Co., 401 U.S. 424 (1971)........ 13

Guy v. City of Phoenix, 668 F. Supp. 1342 (D. Ariz.

ef ee eee er ee Te rey eT EyY Derr 12

SRS SE SO. te TO RS es See fee eee

TABLE OF AUTHORITIES - Continued

Page

Hagans v. Clark, 752 F.2d 477 (9th Cir. 1985)......... 14

Horvath v. Gladstone, 637 P.2d 531 (Nev. 1981)....... 24

Huebschen v. Dept. of Health and Social Services, 716

Boe: FiG7 C7 Cat. BORD). oo ies eek bike esas ress eae 12

International Brotherhood of Teamsters v. United

Shales, O51 US. SEO CRIT TY ov coc wees hes ten voce we 14

Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262 (9th

+e, ) rer rere ay Pr PET rere rs tee 11

K-Mart Corp. v. Ponsock, 732 P.2d 1364 (Nev. 1987) .... 22

Lines-Miller v. City of Chicago, 773 F. Supp. 1130

EAE, Sle: SUED snc ccawesiveien saeewenes hearer ees 25

Lynn v. Regents of the University of California, 656

F.2d 1337 (9th Cir. 1981). ... 2. cnc cece sneccnss 14, 15

McCoy v. WGN Continental Broadcasting Co., 957

(Vel BO Bri ew ky 72 ee eee eens Creare 15

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

CRUE aos ca ka cay be ee LPNS KER URE wabes Cte 6 C ee Os 15

Palmer v. Circuit Court of Cook County, Ill., 905

F. Supp. 499 (N.D. Ill. 1995), aff'd, 117 F.3d 351

(7th Cir. 1997), cert. denied, 118 S. Ct. 893 (1998) .... 18

Renshaw v. Renshaw, 611 P.2d 1070 (Nev. 1980)....... 20

Richards v. Nielsen Freightlines, 602 F. Supp. 1224

(E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir.

(rer errr eT Tre ices herrea 11

Smith v. Cladianos, 752 P.2d 233 (Nev. 1988) ......... 22

Smith v. Flax, 618 F.2d 1062 (4th Cir. 1980).......... 16

TABLE OF AUTHORITIES —- Continuéd

Texas Dept. of Community Affairs v. Burdine, 450

Seah SC CAINE a 80 ew ob RKNAG EONAR KER ACERS 15

Vancheri v. GNLV Corp., 777 P.2d 366 (Nev. 1989) .... 22

Visser v. Packer Engineering Associates, Inc., 924 F.2d

Oe Re As Bed sh bed ca Ra ed eh ee eh ek 16

Warren v. City of Carlsbad, 58 F.3d 439 (9th Cir.

RGR 6 oh 6 cata nthe kines Ad GAs ee LARS ap ee Guess 14

Woodrum v. Woodward County, Oklahoma, 866 F.2d

BERS CF es PA cs 0 sok Aes ce ae sa Rees 19

RULES AND STATUTES

Seas Oe Ras 0 boobs VOW OE per Eeeee KES i 2a

Oe ees ae ED 2 kia Vink buys awe eceLeeese a A

BM EER 6h 5s FORE RRM UNSER FA hehe ae ae

JURISDICTION

On September 6, 1996, the Honorable Judge Howard

D. McKibben of the United States District Court for the

District of Nevada entered and served an Order which

dismissed Petitioner’s litigation in its entirety.! Thereaf-

ter, this matter was timely brought before the Ninth Cir-

cuit Court of Appeals and was subjected to its briefing

schedule. Upon receipt of the briefs, the Ninth Circuit

Court of Appeals properly affirmed the decision of the

District Court. Petitioner’s Appendix at Al, A8. Peti-

tioner sought rehearing which was ultimately denied on

March 27, 1998. Id. at A7. Thereafter, this Petition for Writ

of Certiorari was filed with the Clerk within ninety (90)

days after entry of that decision. Accordingly, jurisdiction

for this matter is found pursuant to Supreme Court Rule

13(1), (3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Respondents concede Title VII, 42 U.S.C. § 2000(e), as

stated by Petitioner on page 8 of his Petition is the

relevant statutory provision in this matter.

STATEMENT OF THE CASE

In Petitioner’s Complaint, filed on August 18, 1995,

he asserted a violation of his constitutional rights to be

1 A complete copy of the Order is found in Petitioner’s

Appendix beginning at page A2.

free from racial discrimination pursuant to 42 U.S.C.

§ 1983 and 42 U.S.C. § 2000(e). On January 31, 1996, he

filed a Second Amended Complaint making those same

accusations. Respondents’ Appendix (“RA”) 1. Essen-

tially, Petitioner —- a black male — has asserted he was

employed for a number of years at the University Medi-

cal Center (hereinafter “UMC”) as a per diem security

officer; he was ultimately denied an opportunity to inter-

view for one of two available full-time security officer

positions. He has asserted this failure was the result of

intentional discrimination because of his race by UMC

and Respondent PARKER. RA 3 at { 7. He further argued

UMC failed to comply with suggestions from Hearing

Officer William Andrews that UMC provide Petitioner an

interview on the next full-time opening in the Depart-

ment. RA 4-5 at {J 12-14. On the basis of these two

events, he has claimed damages.

From 1992 to 1993, Petitioner was employed part-

time by UMC. His employment relationship with UMC

was as a per diem employee. RA 9. As a per diem security

officer, Petitioner had no regular hours to work; in other

words, he was “on-call.” RA 10. His application for

employment with UMC ciearly cautioned simply being a

per diem employee may not lead to full-time employment.

RA 34.

Mr. Parker was, during the relevant time period, the

Director of Security Services at UMC. RA 43. The sworn

and unopposed testimony of Mr. Parker shows, out of

twenty-five (25) full-time security officers at UMC, four-

teen (14) were White, six (6) were Black, three (3) were

Hispanic, and two (2) were Pacific Islanders. Id. In the

course of working with UMC, Petitioner worked with

Supervisors Mathis, Yesko, Seeno, Ortego, Yuen, and

Allgood. RA 10-12. His sworn testimony was that each of

these individuals were generally obstreperous — as was

he, himself. RA 12-14.

In July or August of 1993, there was an opening for

two full-time security guard positions at UMC. RA 15.

Petitioner indicated he wished to be considered for the

position. Of the eight (8) individuals within the depart-

ment who applied for the position, David Brenn and

Brian Diaz? were ultimately selected to fill those posi-

tions. RA 16-17.

Petitioner was never interviewed; he claims he was

“better qualified” than the two individuals who ulti-

mately received the positions — based on his “glowing”

annual evaluation. RA 17-18. However, in his December

1992 job evaluation, it is undisputed he was noted as

having a tendency to take his job “a little too lightly” and

needed to be more attentive to the details of his job. RA

52.

Independent evaluations were given on each of the

applicants (and four other non-applicants) for the two

full-time positions by supervisors in the Security Depart-

ment at UMC. RA 18-20. The supervisors were told not

to discuss their feelings or judgments with each other but

to grade each of the per diem officers honestly. RA 46.

The resultant scores showed Petitioner scored slightly

higher in areas of conduct, attendance and professional

2 Mr. Diaz is a Pacific Islander. RA 47.

3 The racial mix of the supervisors were two Caucasians,

two Blacks, two Asians, and one Hispanic. RA 43-44 at ¥ 5(A).

appearance, but consistently scored poorly in areas of

quantity and timeliness of work output, quality of work,

knowledge and skill, and dependability. RA 54-61.

Indeed, of the twelve (12) per diem officers graded, Peti-

tioner ranked twelfth. Id.; RA 43.°

In addition to his evaluation problems, Petitioner

was also disciplined ten (10) times for improper behavior

in 1993 alone. RA 44, 47-48. He received discipline for

4 Petitioner has no evidence the evaluations were falsified,

or that they were done for other than the purpose of evaluating

applicants for the two full-time positions; likewise, he has no

understanding whether his evaluation was done any differently

than any one else’s. RA 19-20.

5 Mr. Mathis did not recall participating in this particular

process. However, each of the other participants, including

Mike Parker, submitted Affidavits stating there was an

evaluation process which incorporated Petitioner. This process

occurred on or about July 8, 1993. RA 62-66. The process

included filling out forms for the twelve (12) per diem

employees assessing their various qualifications without input

being received from Director Mike Parker in this process. Id.

Those Affidavits further indicate Mr. Mathis was present. In

addition, one of the undisputed facts in the matter as it was

brought before the District Court was that payroll information

showed Mr. Mathis had worked one hour and twenty minutes of

overtime on July 8, 1993 (the date the evaluations were

conducted) which was the same amount of overtime shown for

each and every one of the participants in that process. This

information, coupled with his failure to recall the event — as

opposed to a specific statement he never participated in the

event — support that Larry Mathis participated in the procedure.

Even setting aside Mr. Mathis’ evaluation, the unquestioned

result is that Petitioner was still ranked twelfth out of twelve

per diem employees.

such things as divulging privileged information and fail-

ing to follow the policies of UMC - prior to his applica-

tion for the full-time position. Id.; RA 22-24; RA 67-71. His

behavior was such that he could have been fired at any

time for his mistakes. RA 29.

There is little question Petitioner was not an ideal

employee and was certainly no lock for the next open

position. There was nothing in the Union contract or any

policy which required that merely because one applicant

had more hours than another applicant, they were enti-

tled to preference. RA 31-32. Petitioner conceded, how-

ever, the issue was not whether he should have received

an employment offer - simply whether he should have

been allowed the opportunity to interview. RA 28.

Yet the evidence showed attempts were made to con-

tact Petitioner to schedule an interview. Francine Quick

was employed as a Security Secretary at UMC during the

time the two full-time security positions were open. In

order to schedule Petitioner for an interview, she

attempted to call him on Wednesday afternoon, all day

Thursday, and Friday morning. RA 73. Likewise, John

Seeno — a Security Lieutenant at UMC - attempted to

contact Petitioner to come in for an interview regarding

the full-time security position. RA 74. These attempts

were made on Wednesday and Thursday evening. During

that time, he spoke to a woman and asked her to have

Petitioner call him or the Director’s office at his earliest

convenience.

Petitioner’s own wife testified she received

numerous phone calls from UMC in the months of July

and August, 1993. RA 77-78. She was unable to establish

that she definitely did not receive phone calls on this

issue during the pertinent time period.® RA 75-76. By the

time Petitioner finally chose to return the calls, it was too

late to allow him to interview for the position. That

Petitioner chose not to return the calls until later is, in

actuality, the primary reason why the interview was not

had.

Based on Petitioner’s disciplinary history, his poor

evaluation, and his failure to return the calls, Mr. Parker

determined the interview process could conclude without

Petitioner’s active participation. See RA 43-45. Accord-

ingly, the jobs were tendered to the two higher scoring,

qualified applicants from the same pool - one of whom

was an acknowledged minority.

Of the eight (8) people who applied, Petitioner was

the only Black applicant (RA 20); however, he was not the

only minority. When asked why he thought he was being

discriminated against, Petitioner specifically did not

identify race as a factor. Instead, he claimed he was

passed over because he was “an asshole.” RA 20-21. He

claimed the supervisors in place were a bunch of “mag-

gots” and had they given him that full-time position, they

were afraid he would “expose their weaknesses as man-

agers, supervisors, lieutenants, the whole nine yards.” Id.

During the duration of his employment at UMC,

Petitioner acknowledges he was only an at-will

the phone calls were made but the specific purpose behind

making the calls (to have Petitioner come in for the interview)

were not necessarily communicated to the person answering the

phone.

employee. RA 25. The Union representative testified Peti-

tioner was always considered a per diem employee under

the contract. RA 83. That contract mandated UMC would

provide Petitioner a full-time security officer position

without competition if he had logged two thousand and

eighty hours (2,080) hours. RA 90. Because he was

approaching these hours, and due to his poor work his-

tory at UMC, he was ineligible for a callback. It was,

without question, UMC’s right to do so. Id. Further, the

application for employment clearly warned being a per

diem employee was no magical talisman to give rise to

permanent employment. RA 34.

This decision notwithstanding, UMC still offered

Petitioner continued employment. Indeed, he was given

an opportunity to be employed at UMC on a per diem

basis starting with zero (0) hours again. RA 92. Petitioner

refused.”

The facts of this case show UMC originally hired

Petitioner. They did so knowing he was Black. They even

did so knowing he had been convicted of an embezzle-

ment charge. RA 36. They tried, from that point forward,

to help him improve in performing his job duties and

employment up to the point where a decision needed to

be made about giving him a full-time position without

7 When asked why he thought UMC made the decision

regarding his termination, again Petitioner refused to point to

his race as a factor. Instead, he claimed the reason he was

discriminated against and/or terminated from his employment

with UMC was simply because he intimidated his supervisors

RA 26-27. This only makes sense since there were other black

security officers working for UMC on a full-time and per diem

basis. RA 30-31.

SSSR any as i al a ee are nie RR ae eee

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competition. Based on concerns about his work perfor-

mance over the prior year and given his continually

decreasing performance at work, the decision was made

he was not the type of employee UMC wanted in its

ranks and, therefore, he was made ineligible for call-

backs. There is no evidence indicating, in any way, that

decision was made based on race.

Pursuant to Article V, Section 1A, of the Agreement

between the University Medical Center and Clark County

Public Employees Association, the manager has the

authority to select from the pool of applicants those per-

sons whom she or he feels are qualified. RA 88. Further,

Article XI, Section 1, of that Agreement states a per diem

employee’s eligibility for work scheduling can be discon-

tinued at any time at the sole discretion of UMC without

recourse through the grievance and arbitration pro-

cedures or discipline appeal procedures of that Agree-

ment. RA 89-90.

After not obtaining the position of full-time employ-

ment and being made ineligible for callbacks, Petitioner

went through the established grievance process. The first

grievance hearing resulted in a finding of no discrimina-

tion. RA 93-95. In that hearing, testimony and evidence

was presented. The Hearing Officer, Lynn Huff, found

sufficient justification existed for Mr. Parker to justify not

interviewing Petitioner. Id. The hearing officer further

determined the decision to not provide an interview was

appropriately made wnder Article V, Section 1(A). Id.

Additionally, it was determined the decision of UMC to

deem Petitioner as ineligible for per diem employment

was properly based in accord with Article XI, Section 1.

RA 95.

Based on the evidence presented, the decisions

made by management were within the scope of

his authority and were supported with evidence

that the employee was not qualified. Further-

more, the decisions were not found to be

racially motivated and, therefore, do not reflect

any racial discrimination. It is my decision to

uphold the action of management, the inel-

igibility of Ray Watson stands.

Id. Upon receipt of this Order, Petitioner forced the sec-

ond step of the grievance procedure. In a hearing before

Bill Andrews, evidence and testimony were again set

forth regarding claims of discrimination. As a result, Mr.

Andrews stated he felt “Mike Parker did not discriminate

on the basis of race.” RA 97. However, he conceded an

appearance of discrimination was “possible” since Peti-

tioner was the only applicant who did not get an inter-

view. If it was appropriate, he suggested Petitioner be

given an opportunity to interview on the next full-time

opening in the Department. However, the request to be

reinstated as a full-time employee with backpay was

denied. Id. Thereafter, the instant litigation was filed.

The only issue set forth at the hearings (conducted

under Article XI, J 3 of the Union contract with UMC)

was whether there was discrimination in the interviewing

process. Both hearing officers determined there was not.

The question is whether this evidence, properly pre-

sented without contravention before the District Court

and the Ninth Circuit Court of Appeals, establishes a

sufficient basis to warrant the dismissal of the litigation

by Judge McKibben and, later, by the Ninth Circuit Court

of Appeals. It is respectfully submitted it does.

LEGAL ARGUMENT

I. SUMMARY JUDGMENT IS APPROPRIATE WHEN

INSUFFICIENT FACTS ARE ASSERTED

“Summary Judgment procedure is properly regarded

not as a disfavored procedural shortcut but rather as an

intrical part of the Federal Rules as a whole, which are

designed ‘to secure the just, speedy and inexpensive

determination of every action.’ ” Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986). When a party fails to establish

the presence of a genuine issue of material fact, then the

litigation must be dismissed. See Anderson v. Liberty Lobby,

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

In proceeding forward with the Motion for Summary

Judgment, there is a burden-shifting phase that takes

place. The moving party must first establish the absence

of a genuine issue of material fact. The non-moving party

is entitled to oppose that position and bring forth evi-

dence which, if believed, would establish a basis for

denying the Motion. A party may not, however, in an

attempt to avoid summary judgment, manufacture issues

of fact by submitting conflicting sworn statements by that

party. Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266

(9th Cir. 1991). Likewise, mere allegations or denials,

unsubstantiated hope and threadbare conclusory state-

ments are all insufficient once the moving party has met

its initial burden. Richards v. Nielsen Freightlines, 602

F. Supp. 1224, 1231 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th

Cir. 1987).

Petitioner accepts, apparently, that he established a

prima facia case of discrimination. However, a legitimate

non-discriminatory motive for not hiring him was also

established. At that point, Petitioner had the obligation to

present evidence showing the stated reasons for his non-

interview was merely pretextual.

It is with this point that Petitioner apparently takes

umbrage. However, as will be seen in the foliowing sec-

tions, Petitioner failed to establish sufficient evidence to

support his burden of proof under either one of the two

claims remaining. Accordingly, the decision by the Ninth

Circuit was absolutely correct.

This is not the type of case warranting the intense

scrutiny provided by this Honorable Court in a certiorari

setting. There is no dispute as to the extant law, no

division among the Circuits, no pressing issue of law or

fact that needs to be decided. This is simply a run-of-the-

mill case in which Petitioner has failed to establish the

necessary proof to avoid the Court’s exercise of its sum-

mary judgment powers. Accordingly, certiorari should

not be granted.

EAL ia

Il. BASED ON PETITIONER’S EVIDENTIARY

DEARTH, THERE WAS NO TITLE VII ACTION®

The summon bonum of Petitioner’s claims in this case is

his allegation he was subjected to racial discrimination in

* As indicated, Petitioner has filed this action under 42

U.S.C. § 1983 and Title VII - for the exact same events. Of itself,

§ 1983 contains no substantive rights; it is simply a conduit

through which an individual may obtain redress for violation of

rights. Chapman v. Houston Welfare Rights Organization, 441 U.S.

600, 617-18 (1979). As Justice Stewart noted in his dissent in

Chapman, when “a state official is alleged to have violated a

federal statute which provides some comprehensive

enforcement scheme, the requirements of that enforcement

procedure may not be bypassed by bringing suit directly under

§ 1983.” 441 U.S. at 673 n.2. When a § 1983 action is based on the

claim that Title VII is violated, it is respectfully submitted Title

VII provides the exclusive remedy. See Day v. Wayne County

Board of Auditors, 749 F.2d 1199, 1204 (6th Cir. 1984). A party

cannot bring an action under § 1983, based upon Title VII

allegations, against an individual or organization who could not

be sued directly under Title VII. Guy v. City of Phoenix, 668

F. Supp. 1342 (D. Ariz. 1987).

The effect of allowing a plaintiff to bring an action

under § 1983 based upon Title VII against a defendant

who could not be sued directly under Title VII would

be to enlarge the relief available to one bringing an

action for violation of Title VII. Plaintiffs proceeding

under § 1983 for violation of Title VII would obtain a

substantive enlargement of the latter if they were able

to pursue a class of persons immune from actions

brought directly under Title VII.

Huebschen v. Dept. of Health & Social Services, 716 F.2d 1167, 1170

(7th Cir. 1983). Petitioner cannot pursue, within the context of

this litigation, a § 1983 action and a Title VII action for the exact

same events. Since his claims were based solely on allegations of

obtaining an interview for potential advancement and, fur-

ther, that such action violated the clear statutory confines of

42 US.C. § 2000(e) — better known as Title VII.

The objective of Congress in enacting Title VII is

plain from the language of the statute. It is to

achieve equality of employment opportunities

and remove barriers that have operated in the

past to favor an identifiable group of quality

employees over other employees. Under the

Act, practices, procedures, or tests neutral on

their face, and even neutral in terms of intent,

cannot be maintained if they offer a “freeze” of

the status quo of prior discriminatory employ-

ment practices.

Congress did not intend by Title VII, however,

to guarantee a job to every person who follows

the qualifications. In short, the Act does not

command that any person be hired simply

because he was formerly the subject of discrimi-

nation because he is a member of a minority

group. Discriminatory preference for any group,

minority or majority, is precisely and only what

Congress had proscribed.

Griggs v. Duke Power Co., 401 U.S. 424, 429-31 (1971). Title

VIL, therefore, only prohibits real employment discrimina-

tion on the basis of race, color, religion, sex and national

origin.

discrimination, analysis of this litigation under Title VII —- is

proper. Even if this Court chooses to disagree with this analysis,

the facts of this case do not sustain due process argument either.

Petitioner did not contest this argument on appeal.

——————

To maintain an action for racial discrimination under

Title VII, Petitioner must prove — either directly or indi-

rectly — his employer intentionally discriminated against

him on the basis of race.

A plaintiff can establish a prima facia case of

race discrimination under Title VII by establish-

ing that (1) he or she belongs to a racial minor-

ity; (2) he or she applied and was qualified for a

job for which the employer was seeking appli-

cants; (3) he or she was rejected for the position

despite his or her qualification; (4) the position

remained open after his or her rejection and the

employer continued to seek applications from

other people with similar qualifications to plain-

tiff.

Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).

The last element may also be met when the position was

given to an individual who is not of the same race as the

complainant. Hagans v. Clark, 752 F.2d 477, 482 (9th Cir.

1985); Lynn v. Regents of the University of California, 656

F.2d 1337, 1343 (9th Cir. 1981).

The question of whether the claimant is “qualified”

has never been clearly resolved by this Court. However,

in a footnote in International Brotherhood of Teamsters v.

United States, 431 U.S. 324, 358 n.44 (1977), discussing the

McDonnell-Douglas approach for establishing a prima

facia case, it observed the

alleged discrimatee [must] demonstrate at least

that his rejection did not result from the two

most common legitimate reasons on which an

employer might rely to reject a job applicant: an

absolute or relative lack of qualifications or the

absence of a vacancy in the job sought.

The Ninth Circuit allows the prima facia case to be shown

upon absolute qualifications — leaving it to the employer

to present a legitimate, non-discriminatory reason for its

actions. Lynn, 656 F.2d at 1344.

The establishment of the prima facia case creates a

presumption of unlawful discrimination. Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The

burden then shifts to the employer “to articulate some

legitimate non-discriminatory reason for the employee's

rejection.” McDonnell-Douglas Corp. v. Green, 411 US. 792,

802 (1973).

The defendant need not persuade the court that

it was actually motivated by the proffered rea-

sons. . . . It is sufficient that the defendant's

evidence raises a genuine issue of fact as to

whether it discriminated against the plaintiff. To

accomplish this, the defendant must clearly set

forth, through the introduction of admissible

evidence, the reasons for plaintiff’s rejection.

Burdine, 450 U.S. at 254-55. If this burden is satisfied by

the employer, the claimant must be afforded a fair oppor-

tunity to show the employer's stated reason for the rejec-

tion was, in fact, pretextual. McDonnell-Douglas, 411 U.S.

at 804. However, the only concern is whether the

employer honestly believes in the reasons it offers. McCoy

». WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th

Cir. 1992). Indeed, the court cannot act as a “superperson-

nel department that re-examines an entity’s business

decisions.” Id. “Discrimination law would be unmanage-

able if disgruntled employees - the friends of the plaintiff

——————————————

and often people in the same legal position as the plain-

tiff - could defeat summary judgment by affidavits spec-

ulating about the defendant’s motives.” Visser v. Packer

Engineering Associates, Inc., 924 F.2d 655, 659 (9th Cir.

1991).

In this case, the initial establishment of a prima facia

case was held by Judge McKibben to be met. Petitioner

belongs to a protected minority class; established he was

minimally qualified for the full-time security officer posi-

tion; was rejected for the position and ultimately had his

name removed from the call list of per diem guards; and,

finally, alleged neither of the two applicants who were

hired in the full-time positions were Black.

In Smith v. Flax, 618 F.2d 1062 (4th Cir. 1980), an

employee claimed to be the subject of disparate treat-

ment. The plaintiff contended he had versatility and was

competent to perform a certain job. In short, he believed

himself to be qualified. The court held, however, the

plaintiff's perception of himself was not relevant; “[i]t is

the perception of the decision maker which is relevant.”

618 F.2d at 1067. In this case, UMC has shown the indi-

viduals who were hired held required skills and lacked

Petitioner’s discipline problems. This made them “more”

qualified than Petitioner — or at least more desirable.

Petitioner has been unable to show any evidence of

discriminatory intent or that his treatment was pretextual

in nature. He has conceded he has no evidence of dis-

criminatory intent, practice, policy, or behavior on the

part of UMC, Mike Parker or Bill Andrews. He has been

able to show no discriminatory comments or other behav-

ior on the part of UMC, Mr. Parker or Mr. Andrews which

in any way implies discriminatory behavior or motivation

in the employment decision taken regarding Petitioner.

All he has is naked surmise. Yet, “Imjere assertions of

discriminatory motive and intent” are inadequate to

withstand summary judgment. Foster v. Arcata Assoc., 772

F.2d 1453, 1459 (9th Cir. 1985), cert. denied, 475 U.S. 1048

(1986).

In this case, Petitioner has, at best, been barely able

to establish a prima facia case. However, assuming — as

Judge McKibben did - that the prima facia case was

established, in cannot be gainsaid sufficient evidence was

presented by UMC to rebut the presumption of discrimi-

natory intent in the treatment Petitioner received at the

hands of UMC and its employees.

Clearly an independent survey of supervisors was

taken in which Petitioner ranked twelfth out of twelve

employees potentially eligible for this position.’ More-

over, Petitioner's increasingly declining performance,

° Assuming arguendo Petitioner’s contention that Larry

Mathis did not participate in the evaluation process is correct

(despite the clear factual evidence that disagrees with this), this

Court must ask itself what effect removing Mr. Mathis from the

evaluation survey may have had on Petitioner’s claims. Clearly

the answer is “none.” Petitioner still would have been the

lowest ranked applicant. He still had the discipline problems.

He still would have been called and not returned the phone calls

to set up the potential interview. Mr. Parker would still have

made the ultimate decision that Petitioner's participation in the

application process was not essential — having found two

qualified individuals who could fill the positions appropriately.

Petitioner has failed to show this is not true; that the absence of

Mr. Mathis is somehow fatal to the decision not to interview

Petitioner.

coupled with his own personality aberrations,!° did not

place him as a prime candidate for this position. The

evidence further attests attempts were made to contact

Petitioner and inform him of the pending interviews.

However, these calls were never returned. Ultimately, the

decision was made that, based upon the enumerated

problems with Petitioner, it would not be necessary to

interview him for this job application inasmuch as two

better-rated employees had been interviewed and chosen

for the positions.

Thereafter, in further evaluating Petitioner on this

objective criteria, it was determined it would not be

desirable for UMC to be required to have him mandatorily

placed in the next open position. Accordingly, discussion

was had with Petitioner wherein he was given the option

of maintaining employment with UMC with zero hours of

seniority. He declined this generous offer. He was, there-

fore, placed on a noncall back status with UMC.

Nothing in any of these facts establishes a claim of

discriminatory intent based on race. In fact, Petitioner’s

own admissions regarding why he believes he was not

given the position and/or terminated do not revolve

around race; instead, they pivot around his “intimida-

tion” of his employers and the fact that he perceives

10“An employee's insubordination towards supervisors

and co-workers, even if simply perceived rather than real, is

justification for termination.” Palmer v. Circuit Court of Cook

County, Ill., 905 F. Supp. 499, 504 (N.D. Ill. 1995), aff'd, 117 F.3d

351 (7th Cir. 1997), cert. denied, 118 S. Ct. 893 (1998) (internal

quotes omitted).

Milian ie. fined

himself — perhaps even prides himself - on being irasc-

ible. By his own admission, Petitioner has no evidence of

discriminatory intent or_practice by any of the named

Respondents in this case."

Given Respondents’ strong evidentiary showing,

supported by Affidavits and proper documentation in the

form of a Motion for Summary Judgment, Petitioner was

obligated to provide the Court with something more than

his mere surmise. However, he was unable to answer the

bell. Rather than providing direct (or even indirect) evi-

dence of discriminatory intent, Petitioner was content to

engage in vague assertions of “conspiracy” and “discrim-

ination” without any evidentiary support offered in defi-

ance of his own sworn testimony. This made his claim

insufficient as a practical matter and proper for summary

judgment.!2

11 Indeed, as to Mr. Andrews, there is not even an

allegation that anything he did was racially motivated. Instead,

it is simply that UMC failed to accept his - ostensibly

appropriate — recommendations. Therefore, the basis for the

claims against Mr. Andrews is completely unclear.

12 Brief comment should be made regarding Petitioner's

contention about the absence of a conspiracy. The comments

found in Judge Howard McKibben’s Order relate to the

assertion made by Petitioner that the supervisors at UMC were

insecure and afraid of him. He implied they had somehow

joined together to give him an unfairly low evaluation. Thus,

use of the term “conspiracy” was correct because — based on the

allegations of Petitioner — there was allegedly an agreement or

meeting of the minds to violate his Constitutional rights. See

Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121, 1126 (9th

Cir. 1989); Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). While

these allegations were only vague and conclusory (and thus

insufficient to withstand a motion for summary judgment) they

Ill. PETITIONER HAS FAILED TO ESTABLISH ANY

FACTS SUPPORTING A BREACH OF CON-

TRACT CLAIM OR DUE PROCESS VIOLATION

It is virtually tautological that, before a breach of

contract action can be maintained, there must be in exis-

tence of an express or implied contract setting forth the

responsibilities of the parties. To the extent that a written

agreement exists, if the document is clear and unam-

biguous on its face, the plain intent of the language used

dictates its interpretation. Renshaw v. Renshaw, 611 P.2d

1070, 1071 (Nev. 1980). The meaning and legal effect of

such unambiguous contracts is a question of law properly

left to the province of the Court. See Crank v. Nevada

Industrial Comm'n, 675 P.2d 413, 415 (Nev. 1984).

In this case, there is no allegation the agreement

between the Union and UMC was vague or ambiguous.

Therefore, the document means what it says. In reviewing

the document, Judge McKibben properly noted no breach

of the contract could be found. On appeal, the Ninth

Circuit sustained that position.

A state law claim of breach of employment contract is

specifically inapplicable to Petitioner. As noted, he was

an at-will employee. As such, he had no interest in con-

tinued employment. Before Petitioner may allege a cogni-

zable claim to deprivation of a property right, he must

show the property right arose from an outside source

such as state law or entitlement brought about by mutual

were nevertheless made. Hence, the Judge correctly

characterized Petitioner’s allegations as asserting the claim of a

conspiracy and then showed that the facts simply failed to

establish a valid basis for same.

“he ie ape

understandings of the parties. Board of Regents v. Roth, 408

U.S. 564, 577 (1972). A person “only has a constitutionally

protected property interest in continued employment .. .

if he has a reasonable expectation or a ‘legitimate claim of

entitlement’ to it, rather than a mere ‘unilateral expecta-

tion.’ ” Brady v. Gebbie, 859 F.2d 1543, 1547-48 (9th Cir.

1988), cert. denied, 489 U.S. 1100 (1989).

Property interests, of course, are not created by

the Constitution. Rather they are created and

their dimensions are defined by existing rules or

understandings that stem from the independent

source, such as state law-rules where under-

standings secure certain benefits and support

claims of entitlement to those benefits.

Roth, 408 U.S. at 577.

An employee is generally presumed to have “at-will”

status. American Bank Stationery v. Farmer, 799 P.2d 1100

(Nev. 1990). This presumption is not rebutted merely by

the existence of an employment contract; rather, it

requires the citation of additional facts indicating the

employer either expressly or impliedly agreed with the

employee that employment was to be for an indefinite

term and may be terminated only for cause or only in

accordance with established procedures or policies. See

Bally's Grand Employees’ Federal Credit Union v. Wallen, 779

P.2d 956 (Nev. 1989).

The subjective expectations of the employee for long-

term employment does not alter the at-will status. Beales

vy. Hillhaven, Inc., 825 P.2d 212 (Nev. 1992). Even the pres-

ence of an established discipline procedure, in and of

itself, fails to transform an affected employee from an at-

will status to one who can only be terminated for cause.

Id. In the situation of an at-will employee, the only

restrictions placed on the dismissal is not one of cause

but rather whether the dismissal violates public policy.

Vancheri v. GNLV Corp., 777 P.2d 366 (Nev. 1989); Smith v. :

Cladianos, 752 P.2d 233 (Nev. 1988); K-Mart Corp. v. Pon-

sock, 732 P.2d 1364 (Nev. 1987).

‘ ill he al ital ph ceaeates Diy

To the extent the Union agreement may have allowed

Petitioner to file a grievance procedure, that was done

and he was afforded a proper opportunity to air his

grievance before two different hearing tribunals. In each

case, after the evidence was heard, it was determined

Petitioner’s claims were baseless. In fact, the closest he

came to victory was when Mr. Andrews made the conces-

sion that — while there was no actual discrimination — there

could be an unfair appearance of discrimination and,

therefore, he suggested it might have been prudent to

keep Petitioner on.

In Armstrong v. Meyers, 964 F.2d 948 (9th Cir. 1992),

the Ninth Circuit acknowledged due process was flexible

and required only such procedural protections as a par-

ticular situation may demand. The Court further noted a

public employer can meet its obligations to provide due

process through grievance procedures established in a

collective bargaining agreement. 964 F.2d at 950. In that

case, the Court noted while the plaintiff’s interests in

keeping his job was substantial, the grievance/arbitration

procedure constituted “a universally accepted method of

resolving employment disputes, included in countless

collective bargaining agreements.” Id. The argument was

because the Union decided not to proceed forward with

the grievance/arbitration procedure, due process could

not be had. However, the Ninth Circuit strongly dis-

agreed.

Noting “a strong public and private interest in main-

taining an effective grievance/arbitration process to settle

disputes between employers and employees”, the Court

stated:

Allowing individual employees to decide which

claims to arbitrate would undermine that pro-

cess; if the individual employee could compel

arbitration of his grievances regardless of its

merit, the settlement machine to be provided by

the contract would be substantially undermined,

thus, destroying the employer’s confidence in

the Union’s authority in returning the individ-

ual grievant to the vagaries of independent and

unsystematic negotiations. Moreover, under

such a rule, a significantly greater number of

grievances would proceed to arbitration. This

would greatly increase the cost of the grievance

machinery and could so overburden the arbitra-

tion process as to prevent it from functioning

successfully. Exclusive union control of the

grievance process as the employees’ sole repre-

sentative also helps achieve one of the primary

purposes of the process: a prime function of a

grievance procedure is to secure uniformity in

interpreting the agreement and building a ‘law

of the plant’ with respect to matters not spelled

out in the agreement.

964 F.2d at 951. Thus, a grievance procedure such as that

which is before this Court adequately provided Petitioner

a forum to contest the validity of his employment — or

lack thereof.'* He, therefore, not only fails to establish a

state-law claim, he cannot be heard to argue his due

process rights were violated. Accordingly, dismissal is

appropriate.

1% Although not directly raised to the District Court, one

wonders whether the facts of this case sustain a claim of

administrative res judicata. The concept of administrative res

judicata began in Nevada with Britton v. City of North Las Vegas,

799 P.2d 568, 569 (Nev. 1990). In that case, a deputy city marshall

sued for wrongful termination and breach of fiduciary duty. The

former deputy marshall went before the North Las Vegas Civil

Service Board and argued his position that he had not resigned

but rather the City has violated a fiduciary duty owed to him.

The Board issued a written decision which supported the City of

North Las Vegas’ arguments and a subsequent Writ of

Mandamus was filed to the District Court. From there it

proceeded to the Supreme Court and, at that point, the Court

considered the binding effect of the underlying administrative

decision. The Court noted the required elements for res judicata

to apply were found in the Civil Service Board hearings.

Specifically, the Court held three elements had to be met. Citing

Horvath v. Gladstone, 637 P.2d 531, 533 (Nev. 1981), the Court

indicated res judicata will apply to an administrative

proceeding when there was a final adjudication on the merits;

and the party against whom the judgment was asserted is a

party in the present adjudication. Britton, 799 P.2d at 570.

In this case, Petitioner had a hearing before the

administrative board designed to resolve the disputes which are

raised in the instant Complaint. The final determination of these

facts by those officers that nothing improper was done should

also bar the resurrection of those claims at this time.

CONCLUSION

As if it were able to portend this litigation, another

| court has wisely stated:

When a disgruntled ex-employee vents his or

her spleen by launching a shotgun barrage of

groundless charges against the ex-employer, the

lawsuit ultimately loses. . . . But in the mean-

time, the justice system has been clogged to the

exclusion of meritorious (or at least colorable)

claims — and, even worse — the entire legitimate

area of employment discrimination stands in

peril of acquiring an undeserved taint.

Lines-Miller v. City of Chicago, 773 F. Supp. 1130, 1147

(N.D. Ill. 1991). Nowhere could that be truer than in the

instant Petition.

For the foregoing reasons, Respondents respectfully

request this Court deny Petitioner’s Petition for Writ of

Certicrari on the issues surrounding his ability to inter-

view for a job and/or his employment situation.

Respectfully submitted this 24th day of July, 1998.

Peter M. ANGuLO, Esq.

BRIAN C. Wuitaker, Esq.

301 E. Clark Ave., #1000

Las Vegas, Nevada 89101

Attorneys for Respondents

a |

No. 97-2078

United States Supreme Court

October 1997 Term

Watson v. University Medical Center, et al.

On Petition for Writ of Certiorari

RESPONDENTS’ APPENDIX

Plaintiff’s Second Amended Complaint filed

January 31, 1996 with the U.S. District Court for

et BASNRICE OF TMOURROi i. oo ces ken ksh 0 ce RA

Deposition excerpts of Ray Watson, taken on

DE “Re RG ic Gri So wele hee cao cea ks ewan RA

Ray Watson’s Application for Employment with

University Medical Center. ................. RA

Affidavit of Michael Parker dated February 28,

BCS 0h sae RG EUR s ab haa oe Rede kncdees sae RA

August 24, 1993 Security Services Memorandum

to Brian Claypool form Michael Parker regard-

ing Employment Selection Process........... RA

Employee Performance Evaluation for Ray Watson

from January 30, 1992 to January 29, 1993..... RA

Evaluations of Per Diem Personnel —- Ray Wat-

A ois nk Re Red CE LO MARR Kas eR CEE RA

Affidavit of Michael Parker dated June 11,

BOG 66 GK bark CSS TR ROE Sa eae ee heehee RA

Affidavit of John Seeno dated May 28, 1996... RA

Affidavit of Newton Yeun dated May 28,

Es DENS 3 Feeder hie SELES REET Wa ees RA

Affidavit of Kenneth Allgood dated May 28,

in TET Eee Peek PE er Te EO eT RE Ue: RA

Security Services Counseling Memos........ RA

Declaration of Francene Quick dated March 3,

SRS Aes veh bho enti sd wg baie arnme wide ei > sans RA

Affidavit of John Seeno dated February 29,

REMAN Ons 5b :0 465 Ce WORF a EKER Rd eed RA

Londa Watson deposition excerpts taken May

Se EE RK sod sual gru ahs tesckwhvibed ee keea’s RA

Carlos Henderson deposition excerpts taken

SRM Ac SU ds Libs Sec donee chee aie ee ees RA

Excerpts of Agreement between UMC and

RCRA AO 8 e's dp Was SUS e on eceh ee ee Os Veena eee RA

Affidavit of Kathy Silver dated March 1,

SRM 654 tr case sewa cheese de bk Caen tent een RA

Grievance Decision dated September 22,

SPR asd: de CN ERS adh cu RUMENEL AOAC US REO remae RA

Grievance Decision dated November 9,

re aS are ea arate ic wa ate el ong Wear ORS emt Pa fad RA

RA 1

RESPONDENTS APPENDIX

RAY WATSON,

608 Marcella

North Las Vegas, Nevada 89030

(702) 642-5702

Pro Per

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

RAY WATSON,

Plaintiff,

CV-S-95-00795-HDM (RLH)

)

) AMENDED COMPLAINT

VS. ) NO. 2

UNIVERSITY (Jury Demanded)

MEDICAL CENTER, ?

MIKE PARKER, |

)

BILL ANDREWS

Defendants

COMES NC‘, the Plaintiff Ray Watson, Pro Per, and

alleges as follows:

FIRST CAUSE OF ACTION

(Race Discrimination)

This is a civil rights action. Jurisdiction and venue

are based upon 42 U.S.C. § 1983 and Title VII 2000e.

RA 2

r S

At all times relevant herein, the plaintiff, Ray Watson,

a black male, a resident of Clark County, was employed

at the UNIVERSITY MEDICAL CENTER and was so

employed since January 29, 1992. The plaintiff’s title was

SECURITY OFFICER. The plaintiff is 35 years of age.

At all times relevant herein, the defendant, MIKE

PARKER, a white male, was employed by the UNIVER-

SITY MEDICAL CENTER. The Defendant title was

DIRECTOR OF SECURITY.

—s

At all times relevant herein, the defendant, BILL

ANDREWS, a white male, was employed by the UNI-

VERSITY MEDICAL CENTER. The Defendant title was

INTERNAL AUDITOR.

At all times relevant herein, the Defendant, the UNI-

VERSITY MEDICAL CENTER (hereinafter referred to as

“UMC”) was and is a political subdivision of the state of

Nevada.

That the Defendants were at all relevant times, acting

under the color of a state statue, [sic] ordinance, iegula-

tion, custom or usage and caused the Plaintiff to be

Se ee + RF eh es ted of Tee seein

Ketan ream

ial

en 0 Ese sin

RA 3

subjected to the deprivation of the privileges and immu-

nities secured by the constitution and laws.

That during his employment at UMC, plaintiff was

intentionally discriminated against because of his race,

Black, by defendants Michael Parker, Bill Andrews and

the University Medical Center. Specifically, Plaintiff was a

Per diem Security Officer and was denied a [sic] inter-

view for two (2) availavle full time security positions.

There were a total of eight applicants (8) recom-

mended for interviews by the personnel Department for

those openings. Those per diem employees recom-

mended, including plaintiff, were ser.t to Defendant Par-

ker for interviews. Defendant Mike Parker selected and

interviewed the seven white applicants and refused to

interview plaintiff, a black applicant.

That in his decision on November 9, 1993, UMC

Hearing Officer Bill Andrews reinstated Plaintiff and rec-

ommended that he be interviewed for the next available

full time position. Nearly two years later, plaintiff has

never been given his job back.

RA 4

10.

That as a result of aforesaid acts, Plaintiff has suf-

fered emotional, mental and economic hardship.

Throughout the termination, Defendants Michael Parker,

Bill Andrews and UMC, discriminated against plaintiff

and violated the equal protection clause of the United

States Constitution.

SECOND CAUSE OF ACTION

Pendant Claim

(Breach of Covenant of Good Faith and Fair Dealing)

11.

»laintiff repleads and realleges the allegations con-

tained in paragraphs 1 through 9 above and though fully

set forth herein.

12.

That Hearing Officer Bill Andrews is the duly

appointed, authorized and promulgated agent for the

principle, University Medical Center. Hearing Officer

Andrews gave Plaintiff a hearing on November 4, 1993.

He rendered a written decision ordering UMC to reinstate

Ray Watson, and instructing UMC that Plaintiff be given

an interview on the next full-time opening in the depart-

ment.

RA 5

13.

That Plaintiff has waited an inordinate and unreason-

able amount of time for compliance with the Hearing

officers written decision, to no avail.

14.

That neither UMC, nor Mike Parker has not complied

with the authorized decision and failed to reinstate plain-

tiff.

15.

That as a result of aforesaid acts, Plaintiff has suf-

fered emotional, mental and economic hardship.

Throughout the termination, occurring on August 22,

1993, Defendants Michael Parker and UMC, have refused

specific performance on the written decision of their own

agent, Hearing officer Bill Andrews.

THIRD CAUSE OF ACTION

(injunctive relief)

Plaintiff repleads and alleges the allegations con-

tained in paragraphs 1 through 15 above as though fully

set forth herein.

16.

Plaintiff asks the court to void Defendants termina-

tion and reinstate Plaintiff to a full-time position as a

Security Officer, as he is entitled but for Defendants

wrongful acts.

RA 6

17.

Plaintiff request the court's injunctive relief to pre-

vent retaliatory or wrongful acts by Defendant in

response to this action.

18.

Plaintiff has been issued a Right-to-Sue letter from

the Equal Opportunity Commission.

Wherefore, Plaintiff prays for the following relief:

1. Injunctive relief as set forth above with full

back pay and benefits if Plaintiff is not reins-

tated immediately;

ompensatory damages in the amount of

$200,000;

3. Plaintiff’s costs of suit; and

4. Punitive damages in the amount of $200,000;

5. Such other and further relief as the court

may wish to entertain.

DATED this 22 day of December, 1995.

/s/ Ray Watson

Ray Watson, Pro Per

608 Marcella

North Las Vegas, Nevada 89030

eee

RA 7

Certificate of Mailing

The undersigned hereby certifies that a true and cor-

rect copy of foregoing Plaintiff's Motion to Amend Com-

plaint No. 1, was mailed on this Friday [sic] 22, 1995,

postage-paid envelope to the following:

Attorney for the Defendants

Bryan Lewis, Esq.

301 East Clark Avenue,

Suite 1000

Las Vegas, Nevada 89101

Patricia A. Glasper

/s/ Patricia Glasper

RA 8

[p. 1] UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

RAY WATSON,

Plaintiff, CASE NO.

on. CV-S-95-795-

HDM(RLH)

UNIVERSITY MEDICAL

CENTER, MIKE PARKER,

BILL ANDREWS,

Defendants.

DEPOSITION OF RAY WATSON

Taken on MARCH 14, 1996

1:50 PM.

At 301 EAST CLARK AVENUE, #1000

LAS VEGAS, NEVADA

Reported by: Terri MacTaggart, CCR 156, CP, CM

* * *

[p. 14] Q. You know Mike Parker that’s a defendant

in this lawsuit?

A. Yes, I do.

How long have you known Mike Parker?

Oh, from the time I started to work.

At UMC?

Yes.

RA 9

Q. Did you know him any other way than your

work at UMC?

A. No.

Q. At the time you were working at UMC, weren’t

you also working at the Water District?

A. That’s correct. That’s correct.

Q. And what was your job at the Water District?

A. I was a water enforcement officer.

Q. How long did you work for the Water District?

A. I can’t remember.

Q. What was the reason that you stopped working

for the Water District?

A. I refuse to answer that.

MR. LEWIS: Certify that one.

BY MR. LEWIS:

Q. Your position with UMC was a per diem

employee, wasn’t it?

A. That’s correct.

[p. 15] Q. What’s your understanding of what a per

diem employee at UMC was?

A. Are you asking me a question?

Q. Yes. What’s your understanding of what a per

diem employee for UMC is?

A. I’m not here to give narrative answers, Counsel.

You ask me the question, I answer the question, not to

RA 10

elaborate on what my understanding is. You ask me a

question, I answer it, but I’m not going to give you my

understanding of what a per diem employee is.

Q. What did you do for UMC?

A. I was a security officer.

Q. You were a per diem security officer?

A. Yes.

Q. Do you understand there’s a difference between

a per diem employee and a full-time employee?

A. Yes, I do.

Q. As a per diem employee, security officer, for

UMC, did you have regular hours that you worked?

A. No.

Q. How often would you go into work for UMC?

A. It depends. It depended when they want to fuck

me around. So, it varies. 1 was on-call.

Q. All right. You didn’t have any regular hours?

A. No set hours.

* * *

[p. 17] Q. Did you ever ask Allgood why you

weren't getting more hours at UMC?

A. I don’t recall asking him that.

Q. Do you recall him ever counseling you about

female patients or employees complaining that you were

flirting with them at UMC?

ooh ya i a a ci aaal aaac

RA 11

A. I don’t recall that.

Q. Do you recall him counseling you that you were

tardy showing up for work at UMC?

A. I don’t recall that.

Q. Do you recall him counseling you that you didn’t

always get your paper work done per the procedure at

UMC?

A. At this time I don't recall that.

Q. Who’s Louis - and I’m going to mess up his last

name, I’m sorry - Chachere that you gave me the motion

for a protective order on? Who is he?

A. I refuse to answer that.

MR. LEWIS: Okay. Certify that.

BY MR. LEWIS:

Q. Did you ever work with Larry Mathis at UMC?

A. Yes, | did.

Q. How often would you work with him?

A. It varied.

OQ. How about Ed Yesko, Y E S K O?

A. Yes, I did.

[p. 18] Q. How often would you work with him?

A. It varied.

Q. How about John Seeno, SEEN O?

A. Yes, I did.

RA 12

Q. Was he one of your supervisors?

A. Yes.

Q. How about Cliff Ortego, O R T E G O? Did you

work with him?

A. Yes.

Q. Was he one of your supervisors?

A. Yes.

Q. And Newton Yuen, Y U E N, do you remember

working with him?

A. Yes.

Q. Do you remember how often you would work

with him?

A. It varies. I was on-call, you know.

Q. But at sometime or another you worked with all

of those people? Did you work with Allgood also at

different times?

A. Yes, I did.

Did you ever have any problems working with

any of those fellows that I just read off their names?

A. All of them are assholes.

Q. They’re all assholes?

[p. 19] A. As far as I’m concerned. That’s my consti-

tutional protected opinion.

Q. What gives you that opinion?

RA 13

A. Let’s move on, Counsel.

Q. You're refusing to answer that question?

A. Yes.

Q. Did you ever work with Lester Rowe?

A. Yes, I did.

QO. How often?

A. It varied.

OQ. Do you know what his position at UMC was?

A. | think he was a security officer, per diem.

OQ. Do you know how much experience he had?

A. He had less per diem experience at UMC than I.

Q. Did he have any more experience in being a

security officer than you did?

A. I can’t answer that because I don’t know.

Q. You don’t know how much experience he had at

being a security officer?

A. The only thing I can testify to, Counsel, is that I

knew I had more per diem security experience than he at

UMC.

Q. Other than your security officer experience at

UMC, had you had any other jobs as a security officer

before that time?

[p. 20] A. Yes, I did, but I can't remember at this

time when and what.

RA 14

Q. Do you know what kind of security - per diem

security officer Lester Rowe was at UMC? Was he good,

bad? Was he an asshole?

A. Sometimes, yes.

Q. Did you get along with him though?

A. Yes.

Q. How about Dave Vernon, did you work with

A. Yes. We were all assholes, including myself.

Q. Did you get along with Dave Vernon?

A. Yes, I did.

Q. Do you know what kind of experience he had as

a security officer other than at UMC?

A. No.

Q. Do you know if you had more per diem experi-

ence as a security officer at UMC than Dave Vernon did?

A. Yes, I did.

Q. Do you know any discipline that Dave Vernon

had while working at UMC?

A. I can’t testify to that. I don’t know.

Q. How about Mark Ballard? Did you work with

him at UMC?

A. Yes, I did.

Q. Do you know what his position at UMC was?

RA 15

[p. 25] A. He was a per diem security officer.

Q. Do you know if he had any disciplinary action

taken against him?

A. I don’t know.

Q. Do you know what kind of experience he had

other than working at UMC as a security person?

A. No.

Q. Now there came a time, didn’t there, when you

applied for a full-time position at UMC?

A. That’s correct.

Q. And that gives rise to this lawsuit?

A. That’s correct.

Q. Do you remember when you applied for that

position?

A. Not at this time.

Q. Do you know who else applied for the position?

In fact, there were two of them, weren’t there? There were

two full-time positions that were open?

A. That’s correct.

Q. Do you know who applied for those positions?

A. Yes. I did.

Q. Okay. Who? Who was it?

A. Don Hale, David Vernon, Mark Ballard —- Can

you strike that?

RA 16

Q. You can just say, “Strike that.” It’s not going [p.

26] to be stricken.

A. I’m not a — Okay. Strike that for me.

I can only testify who applied for it within our

department -

Q. Okay.

A. -— who was eligible for the full-time position

witnin our department.

Q. Okay.

A. And then the names are as follows. Don Hale,

Mark Ballard, Brian Dias, David Vernon, John Villano,

Ray Watson. Who am I missing, Counsel?

Q. You want other names? Is that all you remem-

ber?

Yes, the names.

Well, no. I want to know who you remember.

How many do you have?

Six.

Including myself?

Including you.

Lee Cain, Mr. Brenn.

Warren Brenn?

Warren. That should be eight total.

ee oe we eee. OP

Those are the ones you know of?

RA 17

A. Those are the ones who was eligible for the

position within the department.

Q. What did you have to do to be eligible for the [p.

27] position?

A. Bea per diem security officer within the depart-

ment.

Q. Is that it?

A. And meet the minimum requirements.

Q. What were the minimum requirements?

A. I can’t remember at this time.

Q. Do you know who got these two full-time posi-

tions?

A. From my understanding, as I recall, David Brenn

and Brian Dias.

Q. Warren Brenn and Brian Dias?

A. Yes, Warren.

Q. Do you know what their qualifications were for

the jobs?

A. I can’t remember at this time. I don’t know what

Dias’ qualifications was.

Q. How about Warren Brenn’s?

A. I can’t recall at this time.

Q. Do you know if you were better qualified for

those positions than Brian Dias or Warren Brenn?

x ae

RA 18

Why were you better qualified?

I think my evaluation speaks for itself.

What evaluation?

. 28] A. My annual evaluation.

Your annual evaluation?

Yes.

Do you understand that each of the applicants

for these two full-time positions were evaluated by super-

visors

in the security department at UMC?

No.

Well, I’ve given you the documents that show

you the evaluations. You don’t remember seeing those?

seeing

I don’t recall seeing any dates. I don’t recall

any names, who did the evaluation. As far as I’m

concerned, all I see is a document with a bunch of

numbers on it.

Okay. But you have those documents?

Yes, I have those documents. I don’t know who

did the evaluation. You could have done them. No one

signed them.

YO >? 2 ?

And you don’t know when they were done?

I don’t know when they were done.

Do you know why they were done?

I've been told why they were done.

Okay. Why is that? What were you told why they

were done?

RA 19

A. I can’t remember.

Q. Well, if I told you they were done to give an [p.

29] evaluation for the people that had — that applied for

these two full-time positions, would that refresh your

memory?

A. Maybe.

Q. Well, does it? I just told you.

A. Okay.

Q. Do you have any reason to believe that they

weren't done for that reason?

A. Yes.

Q. Okay. Why?2

A. To cover their ass.

Q. To cover whose ass?

A. Parker's.

Q. Have you —- Why do you think that?

A. Well, given the fact that I was never present, I

never had an opportunity to contest these evaluations

the fact that nobody signed them. They’re just out there.

Q. Has anybody told you those evaluations were

made up to cover anybody’s butt?

A. No.

Q. Do you have any evidence from anybody that

those evaluations were not done for the purposes of

evaluating people for those two full-time positions?

‘3

A. No.

Q. They just looked fishy to you? Is that right?

[p. 30] A. I’m trying to come up with a word other

than fishy.

Q. They looked unethical to you?

A. Unethical. Fishy sounds fishy. Unethical.

Q. Do you know if your evaluation was done any

differently than anyone else’s evaluation?

A. No.

No?

A. I would assume it was done the same.

Q. I can’t hear you, Ray.

I’m sorry. I would assume that it was done the

Q. Of the eight people you mentioned to me that

you knew of that had applied for these full-time posi-

tions, were you the only Black man?

A. Yes.

Q. Do you know if there were any other Black men

besides you that applied for the full-time position?

A. No.

Q. You don’t know? Or no, there wasn’t?

A. There wasn’t — Well, no. I was the only Black.

Q. Why do you think you were discriminated

against in trying to get one of these two full-time posi-

tions?

Rc ti 2 a ana a

———

RA 21

A. Can’t you tell?

Q. No.

[p. 31] A. I’m an asshole.

Q. You want to just stick with that answer? Or do

you want to give me another one?

A. Because they - they are a bunch of maggots. And

by giving me that full-time position, | would expose their

weaknesses as managers, supervisors, lieutenants, the

whole nine yards.

Q. When you say “they”, can you tell me names?

A. Meaning Mike Parker, meaning Cliff Ortego, and

the whole nine yards.

QO. Well, other than Mike and Cliff, who else are we

talking about?

A. Seeno, Allgood, because they're very ineffective

managers of people.

(Outside interruption.)

MR. LEWIS: Just a minute. We'll go off the

record.

(Brief recess was commenced at

2:40 p.m. and concluded at 2:46

p.m.) (Requested portion of the

record was read back by the repor-

ter.)

BY MR. LEWIS:

Q. Did Mike Parker — Well, let’s don’t start with

him. Did Ken Allgood ever do anything to you that leads

RA 22

you to believe that he was prejudiced against Black peo-

ple?

* * *

[p. 32] (Defendant’s Exhibit B was

marked for identification.)

BY MR. LEWIS:

Q. Here, Ray. Take a look at these four pages that

are Exhibit B (handing). Then tell me if you recognize

what those are.

A. Yes, I do.

Q. Okay. What are they?

A. Letters.

Q. You see the one dated February 21st, 1993? Do

you see that one? Do you see that one?

A. Yes.

Q. That’s for divulging privileged information?

A. Yes.

Q. And you recall being counseled -

A. Yes.

Q. - for doing that? And was that a violation of

UMC policy, what you did?

A. I don’t recall seeing a policy, but -

Q. But you were counseled for that?

A. Yes.

RA 23

Q. Is that your signature on there?

A. Yes, it is.

Q. The next one is May 22nd, 1993.

A. Yes.

[p. 34] Q. You were given a verbal counseling

again?

A. Yes.

Q. Okay. And that was for preparing a Visitor Log?

A. Yes.

Q. And you signed that one, also?

A. Yes. I signed it with objection.

Q. What were your objections?

A. Ican’t remember at this time, but each and every

one of these, for your information, I signed with objec-

tions.

Q. Is there anything on these documents that would

tell us you objected to them?

A. No, I guess it would be hearsay, wouldn't it?

Q. Did you file a grievance over any of these?

No. I did not.

Q. And the next one I’ve got is June 5th, 1993. You

were given verbal counseling about taking the property

of a patient and logging it in. Do you remember that?

A. Yes, I did. Yes, I do.

RA 24

Q. Did you do what it says on there?

A. I can’t recall the circumstance around this inci-

dent.

Q. Okay. How about the last one dated June 8th,

1993, incorrect processing of patient’s personal property?

A. Uh-huh.

[p. 35] Q. Was that one of your jobs as a per diem

security officer?

A. Yes, it was. Yes.

Q. Do you recall being counseled for anything else

in 1993 other than these four pages that we have as

Exhibit B?

A. No.

Q. You weren’t counseled for tardiness?

A. I don’t recall at this time, no.

MR. LEWIS: Mark this as C (handing).

(Defendant’s Exhibit C was

marked for identification.)

BY MR. LEWIS:

Q. Do you recognize this document we marked as

Exhibit C (handing)?

A. I sure do.

Q. What is that?

A. This is the agreement between the University

Medical Center and the CC Public Employees Associa-

tion.

RA 25

Q. Do you know how this agreement applies to per

diem employees?

Yes, I do.

Okay. And how does it apply?

en ee

Be more specific.

Q. Well, what’s it say with regard to per diem [p.

36] employees? :

A. The document speaks for itself, Counsel. Be

more specific. What do you want to know? Ask me - I’m

not here to give a narrative answer.

Q. I want to know what it says. Are you familiar

with this contract?

A. Yes, I am.

Q. What were the terms of your employment as a

per diem security officer for UMC?

A. I was an at-will employee, Counsel.

Q. So, they could let you go at any time they

wanted?

A. At any time, for any reason or no reason at all.

Q. And that wasn’t something that could be grieved

to the Union, right? That was reserved to management,

UMC, in this contract, wasn’t it?

A. No, I disagree, Counsel. There are some clauses

in here that would - that can be grieved to the Union.

Q. For letting you go as a per diem employee?

RA 26

A. Discrimination. It’s in there, Counsel. You can

find it for me.

Q. Why do you think you were let go from UMC?

A. Didn’t we answer that?

Q. I don’t think you did. But I mean, you want to

object that it’s asked and answered, you can, but then you

[p. 37] need to answer.

A. I object. I already answered why.

Q. But then you need to answer again for the

record.

A. I guess this would be part two of my part one. I

think I intimidate them.

Q. They let you go because you intimidate them?

A. I think I intimidate them.

QO. Is that it?

A. Yes, 1 think I intim - I really believe I intimidate

them. After all, who would want to employ someone who

their mere presence intimidates them?

Q. You think UMC violated this agreement that’s

Exhibit C when you didn’t get one of the two full-time

positions as a security officer?

A. Yes, I do, Counsel.

Q. Okay. What parts of that do you think they vio-

lated?

A. Article 11, Section 3.

rasa a RET eee,

RA 27

Q. Anything else?

A. Yes. Help me out, Counsel. Help me find the

managers’ rights.

©. Look in the front.

A. Okay. I should have known that. That would be

Article 5. Counsel, I don’t have my glasses on. It’s kind of

hard for me to read this. At this time, I can’t seem to [p.

38] find it in here, but it’s there.

Q. Do you claim anything other than this Exhibit C

gave you a contract of employment at UMC?

A. I can’t recall where it was in here. I can’t see. I

don’t have my glasses. Part of the contract states that a

manager cannot re-assign or transfer any employee for

the person’s discipline.

Q. You aren’t claiming you weren’t an at-will

employee though, right?

A. No.

Q. Right?

A. I agree. I was an at-will employee under certain

conditions.

Q. You just claimed they discriminated against you

because you intimidated them, is that right?

A. That’s my opinion, yes.

©. And that’s it?

A. And a violation of this contract clause.

Q. But they didn’t treat you any different than any-

one else?

RA 28

A. Yes, they did treat me different.

QO. How did they treat you different?

A. Now, we’re getting down to it. I was treated

different. Number one, I had more security experience at

UMC than those other per diem employees who applied.

[p. 39] Number two, my evaluation was satisfactory.

Number three, they were all given an interview. I was

denied an interview. That’s disparate treatment, Counsel.

My argument is not whether or not I should have

gotten the full-time job. My argument is simply you

should have given me the same opportunity to compete

for that job as you gave the other seven white employees,

for the record.

Q. Do you know that all other - all the other seven

that you gave me the names of were interviewed?

A. They were all interviewed, yes. That’s all -

That’s been admitted to. I was the only African-American

who applied.

Q. Were you called for an interview?

A. Not to my knowledge, no.

Q. Was your mother called and told that you should

come in for an interview?

A. My mother has been dead since ‘82, Counsel.

Q. Was your wife called? ae

A. No. So, the argument, Counsel, is not whether I

should have gotten a job. Given the fact that I had more

per diem experience than all of them.

RA 29

Q. You don’t have any problem with not getting the

full-time job, you’re just upset because you didn’t get an

interview. Is that what I’m hearing from you?

Aa * *

[p. 42] assholes had to come up with some way to get rid

of me.

If you will look at those letters, distinguished Coun-

sel, they had ample opportunity to get rid of me prior to

that day. If I was that big of a fuck-up, why would you

keep me around for two years?

Q. You think they could have fired you before that?

A. Ofcourse. You know that. I’m per diem. I was at-

will. And if I was that big of a fuck-up, get rid of me a

_long time ago. But you wait until you're close to 2080

hours and say, “Oh, by the way, we’ve got to let you go.”

Explain that to me, Counsel.

I was let go on, what, September what, “90 some-

thing? My last write-up was 6 of ’93. Am I mistaken? So,

between 6 of ‘93 nothing happened in that timeframe to

justify them letting me go.

Q. But they would have been justified in letting you

go before that, is that what you're telling me?

A. No, I’m not saying that. My point is, Counsel, is

that they could have let me go at any time. So, I beli2ve

when I said other than — One other motive which | forgot

to mention is that I was close to 2080 hours. As you can

see, my last write-up was June, yes, June of ’93. They let

me go in September. So, that’s the timeframe of three

months.

RA 30

Q. Was there anything that required UMC to give

you

[p. 45] QO. So, you were let go before your probation-

ary period expired?

A. Yes, because I couldn’t sleep at night which, in

turn, | couldn’t go to work and function properly, the

stress, trying to figure out how I was going to fight these

assholes in court.

Q. Are you getting along better now?

A. Of course.

Q. Are you able to go to work everyday now?

A. - Fea.

Q. Sleep at night now?

A. No.

A. Very seldom.

Q. Well, you look pretty fresh today, Ray. So, did

you sleep last night?

A. No. How could I sleep not knowing what you’re

going to hit me with?

Q. Do you know if there’s any other Black security

officers working for UMC, full-time or per diem?

A. Yes, I do. Yes.

©. There are?

RA 31

A. Yes.

MR. LEWIS: What are we up to?

COURT REPORTER: D.

t 4 4

[p. 53] Q. Well, is there anything in the Union con-

tract that says just because you’ ze been there longer than

anybody else you’re entitled to a job? Am I missing

something? I didn’t see anything in there that says you're

entitled to preference because you’ve got more hours

than anybody else. Did I miss something?

A. That’s not the issue, Counsel.

Q. I’m just asking you the question.

A. That there’s nothing that says that?

O. Yes. Is there something that says that you get

reference because you’ve got more hours as a security

\ i \

per diem officer than some other per diem officer?

A. I think there’s something in the Constitution that

says there’s equal protection under the laws, that all

employees will be treated equal under like or similar

circumstances.

QO. But there’s nothing that says because you've got

more hours than anybody else you should get the job?

A. No.

Q. It should be based on your abilities?

A. Yes.

Q. Well, are there any policies that you know of

other than the Union contract that would say you're

RA 32

entitled to preference because you have more hours than

somebody else?

[p. 54] A. I would think that the policy I think it’s

102 or 101, would more or less solidify my argument that

says it is a policy of UMC to treat employees equally

when it comes to employment and promotion.

Q. Okay, but that’s not my question. My question is,

is there some other written policy that says because you

have more experience and hours working as a per diem

security officer you get preference because you have that

extra hours?

A. No policy.

Q. So, just because you had more hours than some-

body else doesn’t mean you should get the job, is that

right?

A. I agree.

Q. Do you know of anyone else, any other per diem

security officers, that were discriminated against by Mike

Parker because of their race?

A. Again, I can only testify to hearsay, yes.

Q. Who is it that you know of that was discrimi-

nated against by -

A. A.J. Jackson.

Q. A.J. Jackson? When did he work for UMC?

A. He works there now.

Q. Is he a per diem security officer?

A. Qh, no. I’m sorry. He’s not per diem. He’s per-

RA 33

DEFENDANT'S EXHIBIT NO. 1

UNIVERSITY MEDICAL CENTER

OF SOUTHERN NEVADA

1800 W Charleston Blvd. (702) 383-2230

Las Vegas, Nevada

AN EQUAL OPPORTUNITY - AFFIRMATIVE ACTION

EMPLOYER (Including the handicapped)

APPLICATION FOR EMPLOYMENT

PLEASE TYPE OR PRINT IN BLACK INK

Resumes or additional sheets may be added to the back of

the application, but cannot be substituted for the

completion of this form.

Date: 10-5-91

WATSON RAY A 530-64-3094

Name (Last) (First) (MI) Social Security Number

608 MARCELLA N. LAS VEGAS NEVADA _ 89030

Mailing Address (Number-Street) (City) (State) (Zip)

(702) 642-5702 (702) 649-5612

Area Home Telephone Area Work or Other

Number Telephone Number

Referred By: (JACK STALEY) LAS VEGAS VALLEY

WATER DISTRICT

Have You Ever Been Employed

By UMC? Yes [ ] No [/]

Under What Name: _.._— Dates:

Position: Department:

Do You Have Relatives Working

at UMC? Yes [| ] No [4]

List All Relatives at UMC.

Name: Department:

Relationship:

Are you over 18 years of age? YES [“] NO[ ]

MARK ALL THE WORKING STATUSES YOU WILL

ACCEPT:

Full-Time [/] Days |v}

Part-Time [ ] Evening [/]

Temporary [ | Nights ee

Per-Diem [/] Weekends [4]

Part-Time/Per-Diem/Temporary employment may not

lead to Full-Time employment.

I am expressing an interest in the following positions:

1. SECURITY OFFICER 2.

Professional/Technical Applicant — License/Registra-

tion/ Certification

Type: N/A #:

State: Expiration Date:

Tsim cc: Sa em

Nel ;

RA 35

EDUCATION

School Name/ Mo/ Mo/

Location Yr to Yr Major Subjects

High School

RANCHO (LVN)

Did You Graduate? YES

Degree of Certificates Granted

College

IDAHO STATE, UNI 9/77 to 5/82 Security Admin/

Education

Did you Graduate? YES

Degree or Certificates Granted BA

Professional

Technical

Trades

SKILLS CHECK LIST (COMPLETE IF APPLICABLE TO

POSITION(S) APPLIED FOR)

SPEED SPEED OPERATE

Typing 35 Speed Writing —— Calculator v

Word Processor _ Shorthand aS Billing _

IDENTIFY ANY OTHER(S)

Computer —- Make IBM - Languages

CODE of FEDERAL REGULATIONS - Title 21

The Code of Federal Regulations, Title 21, as a matter of

business necessity which is essential to overall controlled

RA 36

substances security, requires hospital screen prospective

employees for criminal convictions or pending criminal

charges. Please read and respond carefully to the follow-

Ing:

INFORMATION FURNISHED OR RECOVERED AS A

RESULT OF ANY OF THE FOLLOWING WILL NOT

NECESSARILY PRECLUDE EMPLOYMENT BUT WILL

BE CONSIDERED AS A PART OF AN OVERALL

EVALUATION OF YOUR QUALIFICATIONS.

HOWEVER, ANY FALSE INFORMATION OR

OMISSION OF INFORMATION WILL JEOPARDIZE

YOUR POSITION WITH RESPECT TO EMPLOYMENT.

1. Within the past five years, have you been convicted of

a felony, or within the past two years, of any misde-

meanor or are you presently formally charged with

committing a criminal offense? (Do not include any

traffic violations, juvenile offenses or military convic-

tions, except by general court-martial.)

Yes [“] No[ ]

If yes, furnish details of conviction, offense, location,

date and sentence:

Conviction:

Offense: Ebellezment [sic]

Date: 5-30-89 Sentence: PROBATION

2. Inthe past three years, have you ever knowingly used

any narcotics, amphetamines or barbiturates, other than

prescribed to you by a physician? Yes[ ] No [/]

If the answer is yes, furnish details:

Rae ee RE eg Meee Ee EMT NEM To Te ee nC eee et

Oi, _ im

RA 37

WORK EXPERIENCE

It is necessary you provide a complete and accurate

record of past and present employment. List the last or

present employer first. List the last five employers or no less

than the last ten years of employment. Account for any

periods of unemployment between employers. Attach

additional sheet(s) of paper if necessary in the completion

of information required.

[“] I do NOT wish my present employer to be contacted.

DATES

1. From To

4/15/90 CURRENT

Employer Name & Address

LAS VEGAS VALLEY WATER DIST

3700 W CHARLESTON

Position SECURITY OFFICER

Monthly Salary 1200

Reason for Leaving CURRENT

Type of business: UTILITY BUSINESS Last Supervisor’s

Name Ron Woolridge/Jack

Your Name When Employed: RAY WATSON

Describe Your Duties: CONTROL CUSTOMERS, INVES-

TIGATE SUSPECTED AND/OR REPORTED CRIMINAL

ACTIVITIES EFFECTING THE DISTRICT POLICIES

WITH WRITTEN REPORT, ASSURE ALL EXTERIOR

DOORS, WINDOWS AND GATES ARE SECURED. PER-

FORM MONTHLY INSPECTION OF FIRE EXTIN-

GUISHERS

RA 38

DATES

2. From To

3/85 3/90

Employer Name & Address

Adaksco Export/Import

1701 W. CHARLESTON Position CUSTOMER REP.

Monthly Salary 1400

Reason for Leaving SOLD BUSINESS

Type of business: EXPORTATION Last Supervisor’s

Name Tim Illegible

Your Name When Employed: RAY WATSON

Describe Your Duties: SERVICE AND SOLD PRODUCE

TO LOCAL BUSINESSES

DATES

3. From To

3785 3/85

Employer Name & Address

FARMERS INSURANCE

PHOENIX ARIZONA Position AGENT

Monthly Salary COMM.

Reason for Leaving RESIGN

Type of business: INSURANCE Last Supervisor’s Name

None

Your Name When Employed: RAY WATSON

Describe Your Duties: SERVICE POLICYHOLDERS

ACCIDENT REPORT WRITING, CLAIMS HANDLING

RA 39

ECT.

DATES

4. From To

9/82 6/83

Employer Name & Address

WELLS FARGO

3306 WEST SPRING MOUNTAIN

Position SECURITY OFFICIAL

Monthly Salary 700

Reason for Leaving PART-TIME

Type of business: SECURITY Last Supervisor’s Name

Unknown

Your Name When Employed: RAY WATSON

Describe Your Duties: MONITOR AND PROTECT BUSI-

NESS ASSETS AND PREMISE, CONTROL PARKING

AND SET CONSTRUCTION) BARRICADE FOR TRAF-

FIC

DATES

5. From To

Employer Name & Address

Position

Monthly Salary

Reason for Leaving

RA 40

Type of business: Last Supervisor’s Name

Your Name When Employed:

Describe Your Duties:

FOREIGN LANGUAGE: Please note your knowledge of

: any language(s) other than standard English and indicate

| your level of competency.

Language

SPANISH

Reading

Fluent Good Fair

Speaking

Fluent Good Fair

Understanding

Fluent Good Fair

Writing

Fluent Good Fair

RA 41

AGREEMENT

(Read Carefully Before Signing)

I certify that the information provided UMC is true and

correct without consequential omissions of any kind. I

understand misrepresentation or omission of facts may be

cause for rejection of my application or dismissal from

employment. I understand that permanent employment

with the Medical Center is subject to the satisfactory

completion of the probationary period. I hereby authorize

the Medical Center to verify or confirm all responses to

the information I have voluntarily provided the Medical

Center and authorize all previous employers, persons,

schools or others referred to in this form to release the

factual information requested by the Medical Center. |

hereby release all parties from all liability or any damage

which might occur in issuing the information. I under-

stand this information will be used only in the evaluation

of my application for employment with University Medi-

cal Center of Southern Nevada.

| also understand that consideration for employment will

be given only if this form is complete; successful comple-

tion of the pre-placement physician examination as

scheduled; satisfactory former employment and other job

related background responses are received; and qualify

for the specific positions/s for which | apply. I under-

stand that I will be required to abide by the Medical

Center rules and regulations as defined by the UMC

Personnel Policies & Procedures and the department to

which I may be assigned.

RA 42

Date: 10/5/91 Applicant’s Signature: Ray Watson

In case of accident or personal emergency, the Medical

Center is authorized to notify the following individual:

Name: WILLIE WATSON Relationship: BROTHER

Telephone #: (702) 643-0241

Address: 4083 FERN LEAF City: NORTH LAS

VEGAS State: NEV

RA 43

AFFIDAVIT OF MICHAEL PARKER

STATE OF NEVADA )

) ss:

COUNTY OF CLARK )

MICHAEL PARKER, being first duly sworn deposes

and states as follows:

1. That your Affiant is over the age of eighteen (18)

years and is a resident of Clark County, Nevada.

2. That your Affiant makes this Affidavit in support

of Defendants’ Motion for Summary Judgment.

3. That your Affiant is Director of Security Services

at University Medical Center.

4. That as of September 7, 1993, there were twenty-

five full-time security officers in the Security Services

Department comprising fourteen Whites, six Blacks, three

Hispanics, and two Pacific Islanders. Since February 24,

1992, Affiant has been in a position to hire into the

department, and nine full-time officers have been hired

including four Whites, three Blacks, one Hispanic, and

one Pacific Islander.

5. That Affiant’s decision for not hiring Mr. Watson

as a full-time employee was based on the following:

A. When the twelve per diem security officers

were evaluated by the Lieutenants and lead security offi-

cers, Mr. Watson ranked at the bottom; number twelve

out of twelve. He received 36.5 points with the next

lowest officer, number eleven, receiving 42.2 points. The

RA 44

racial/ethnic mix of the officers performing the evalua-

tions was: two Caucasians, two African Americans, one

Oriental, and one Hispanic.

B. Mr. Watson was disciplined ten times:

1. 2/8/93: No call - no show.

2. 2/21/93: Divulged patient’s privileged

information.

3. 2/23/93: Tardy.

4. 4/28/93: Counselled by Affiant con-

cerning his work habits and the fact that the supervisors

were not happy with his output.

5. 5/22/93: Procedure violation.

5/23/93: Tardy.

5/24/93: Tardy.

6/5/93: Procedure violation.

a AAO SA

6/8/93: Procedure violation.

10. 6/20/93: Tardy.

B. That Article 5, Section 1(a) of the Agreement

between University Medical Center and CC Public

Employees Association, gives the manager the authority

to select from the pool of applicants those persons who

he/she feels are qualified applicants.

C. That Article 11, Section 1 of the Agreement

between University Medical Center and CC Public

Employees Association, states ... “a Per Diem

Employees’s eligibility for scheduling may be discon-

tinued at any time at the sole discretion of UMC and

RA 45

without recourse to the grievance and... . arbitration

procedures or discipline appeal prc ares of this Agree-

ment.”

FURTHER AFFIANT SAYETH NAUGHT.

/s/ Michael Parker

MICHAEL PARKER

SUBSCRIBED AND SWORN to before me

this 28th day of February, 1996.

/s/ Linda A. Lewis

NOTARY PUBLIC In and For Said

County and State

RA 46

MEMORANDUM

SECURITY SERVICES

TO: Blain Claypool, Associate Administrator

FROM: Michael Parker, Director of Security Services

SUBJ: Employee Selection Process

DATE: August 24, 1993

In reviewing the applicants for the full time employee

position I decided that it would be best to get input from

the Lieutenants and lead security officers. I like to

include them in the decision making progress whenever |

can so that we build a team relationship. I explain to

them that I take their input with high regards but that the

final decision is my responsibility. Those present for this

process were:

Lt Ken Allgood Lt John Seeno Lt Cliff Ortego

S/O Larry Mathis S/O Ed Yesko S/O Newton Yuen

I provided a form to each of these persons, which I made

using the UMC evaluation form as a format. They were

seated and told not to discuss their feelings or judgment

with each other. I instructed them to fill out the forms

using a scale of 1 to 10 (10 being best) in each of the

categories listed. They were also instructed that if they

felt they could not honestly grade an individual for any

reason that they should leave the form blank.

When I collected the forms I simply added the scores and

then averaged those figures. | averaged so that if one

officer was graded by six persons and another officer was

graded by three it would be fairly analyzed.

Bee

RA 47

The twelve per diem officers were graded in the follow-

ing order:

1) Lester Rowe (63)

2) Brian Dias (60)

3) David Vernon (56.4)

4) Warren Brenn (55.6)

5) Mark Ballard (55.5)

6) Wayne Smith (51.6)

7) John Villano (50.6)

8) Chris Bubel (49.1)

9) Lee Cain (47)

10) Don Hale (44.75)

11) Calvin Wallace (42.2)

12) Ray Watson (36.5)

rhe officers graded as number two (2) Mr. Brian Dias (a

Pacific Islander), and number four (4) Mr. Warren Brenn

(a Caucasian), were selected for the full time positions.

Reason for not hiring Mr. Ray Watson

Discipline:

8 Feb 93 No Call - No Show

21 Feb 93. Divulged Patients Privileged Infor-

mation

23 Feb 93 Tardy

28 Apr 93 Counselled by myself concerning

his work habits and the fact that

the supervisors were not happy

with his output.

RA 48

22 May 93 Procedure Violation

23 May 93 Tardy

24 May 93 Tardy

5 Jun 93 Procedure Violation

8 Jun 93 Procedure Violation

20 Jun 93s Tardy

Supervisors Grading of Applicants:

Mr. Watson was rated as number twelve out of

twelve security officer applicants. (See Example)

This rating was conducted by the shift super-

visors as well as the lead officers. This body was

made up of the following racial/ethnic mix; 2

caucasion, 2 African Americans, 1 Oriental, and

1 Hispanic.

Contract between CCPEA and UMC.

Article 5 Section 1 - a. gives the manager the

authority to select from the pool of applicants

those persons who he/she feels are qualified

applicants.

Article 11 Section 1. A Per Diem Employee eligi-

bility for scheduling may be discontinued at any

time at the sole discretion of UMC and without

recourse to the grievance and arbitration pro-

cedures or discipline appeal procedures of the

agreement.

Met w/ Ms. Thalia Dondero, Blain Claypool

and Ray Watson at 10 am 1/11/94 gave her

a copy of this packet.

RA 49

EMPLOYEE PERFORMANCE APPR L

(Received Dec. 8, 1992)

NAME: WATSON, RAY

POSITION TITLE: SECURITY OFFICER

DEPARTMENT: SECURITY BaR e

PERIOD COVERED/FROM: 1/30/92 TO: 1/29/93

PROBATIONARY Cries ec.

ANNUAL XX rea

PROMOTION/TRANSFER

OTH

RATINGS:

OUTSTANDING _ Performance Consistently Above

Standards

EXCELLENT ~Performance Above Standards on

a Regular Basis

SATISFACTORY -Performance Fully Meets Stan-

dards

UNSATISFACTORY —Performance Falls Below Stan-

dards

9nnnnesgnsengenthheeesehGheSekeGeeeeeeseseseees ee senes teases tases eres

PERFORMANCE CHARACTERISTICS

9 unnngesennedhethhthSSGSSSESGESESEESESSESTES ERE SEES ESSE SE SEE E ESET ETS

RATE THE FOLLOWING

[. QUANTITY/TIMELINESS OF WORK

The Level of satisfactory output

RATING: SATISFACTORY

COMMENT:

Ray normally does his share of the work. How-

ever, has been counseled (v erbally) about being

in his assigned area. Since the counseling his ~

performance has improv ed.

RA 50

II. QUALITY OF WORK

| Degree of accuracy, lack of errors. Overall excel-

lence of output.

RATING: SATISFACTORY 20%

COMMENT:

The quality of his work is good but makes a few

mental errors from time to time by forgetting to

double check his work. Again he has been coun-

seled in this area and improvement has been

seen. Improvement should continue with proper

attitude and guidenance [sic].

Hl. KNOWLEDGE/SKILL

Understanding of duties, performance of assigned

tasks.

RATING: SATISFACTORY 20%

COMMENT:

Has been late two (2) times, but, no pattern is

seen. Has a very good understanding of his

assigned duties and normally performs his

assigned tasks with little supervision. Ray has a

tremendous amount of ability and could be a

great asset if he electsto [sic] do so.

IV. DEPENDABILITY

Ability to follow through with assignments on

schedule & to follow policies & rules with mini-

mum supervision.

RATING: SATISFACTORY 10%

RA 51

COMMENT:

As mentioned above Ray has a tremendous

amount of ability should he choose to use it. His

knowledge of the rules and policies is very good

and normally abides by them with little supervi-

sion. Has the ability to follow through with all

assignments. :

V. CONDUCT/BEHAVIOR

Professional manner, courtesy, acceptance and

profit from constructive counseling. Ability to work

with others effectively, willingness to vary work

schedule/assignments as needed.

RATING: EXCELLENT 10%

COMMENT:

Very courteous with everyone and shows a good

willingness to accept and profit from construc-

tive counseling. Works well with his peers, with

an excellent willingness to very [sic] his work

schedule and assignments.

VI. ATTENDANCE

Promptness and regularity in being at work as

scheduled.

RATING: EXCELLENT 10%

COMMENT:

Ray is usually prompt for work and has never

called off. Often is call to work with short notice

and readily accepts the assignment.

RA 52

VII. PROCESSIONAL/PERSONAL APPEARANCE

Conformance to established dress codes and per-

sonal appearance.

RATING: SATISFACTORY 10%

COMMENT:

Was verbally counseled for failing to have the

proper equipment, but, has compliedwith [sic]

the established standards. His appearance is sat-

isfactory.

OVERALL RATING FOR EVALUATION PERIOD:

SUMMARY OF STRENGTH

1. Excellent personality

2. Very dependable in coming to work.

3. Excellent abilities

SUMMARY OF DEVELOPMENTAL NEEDS

1. This job is secondary to Ray as he has a full time

job. As a result he has a tendency to take this job alittle

[sic] to [sic] lightly.

2. Needs to be more attentive to details at the job. As

his [sic] gives the impression that he is just hanging out

and visiting. By being more professional in his

demeanor these things can be overcome.

*EMPLOYEE COMMENTS (Only if Desired): ——

PROBATIONARY PERIOD SATISFACTORILY COM-

PLETED: YES: X NO _

**EMPLOYEE’S SIGNATURE /s/ Ray Watson

Ray Watson

DATE: 12/3/92

EVALUATOR’S SIGNATURE /s/ Clifford Ortego

Clifford Ortego

DATE: 12-3-92

EVALUATOR’S SUPVR /s/ Michael Parker

Michael Parker

* If you wish to discuss this evaluation with the Evaluator’s

Supervisor, indicate on this line.

** Signature indicates the employee has read, received a

copy of the evaluation and it has been discussed with them. It

does not mean they agree with the contents

RA 54

MEMORANDUM

SECURITY SERVICES

Evaluation of Per Diem Personnel

Employees Name Ray Watson

Grade the above employee on a scale of 1 to 10 on the

following areas. 1 being low and 10 the highest grade.

Category Grade

[. Quantity/Timeliness of work .. .

The level of satisfactory output 5

Il. Quality of Work...

Degree of Accuracy, lack or errors. 4

Ill. Knowledge/Skill .. .

Understanding of duties, performance

of assigned tasks. 4

IV. Dependability...

Ability to follow through with

assignments on schedule & to follow

policies & rules with minimum

supervision. 4

V. Conduct/Behavior .. .

Professional manner, courtesy,

acceptance and profit from constructive

counseling. Ability to work with others

effectively, willingness to vary work

schedule/assignments as needed. 5

VI. Attendance...

Promptness and regularity in being at

work as scheduled. )

RA 55

VII. Professional/Personal Appearance .. .

Conformance to established dress codes

and personal appearance. 9

Total Score 40 a

MEMORANDUM

SECURITY SERVICES

Evaluation of Per Diem Personnel

Employees Name Ray Watson

Grade the above employee on a scale of 1 to 10 on the

following areas. 1 being low and 10 the highest grade.

Category Grade

I. Quantity/Timeliness of work . . .

The level of satisfactory output 4

I] Quality of Work...

Degree of Accuracy, lack or errors. 5

Ill. Knowledge/Skill . . .

Understanding of duties, performance

of assigned tasks. 6

IV. Dependability

Ability to follow through with

assignments on schedule & to follow

policies & rules with minimum

supervision. 6

V. Conduct/Behavior .. .

Professional manner, courtesy,

acceptance and profit from constructive

counseling. Ability to work with others

effectively, willingness to vary work

schedule/assignments as needed. 6

RA 56

VI. Attendance...

Promptness and regularity in being at

work as scheduled. 7

VII. Professional/Personal Appearance . .

Conformance to established dress codes

and personal appearance. 6 -

Total Score 40

MEMORANDUM

SECURITY SERVICES

Evaluation of Per Diem Personnel

Employees Name Ray Watson

Grade the above employee on a scale of 1 to 10 on the

following areas. 1 being low and 10 the highest grade.

Category Grade

I. Quantity/Timeliness of work .. .

The level of satisfactory output +

II. Quality of Work...

Degree of Accuracy, lack or errors. 4

III. Knowledge/Skill .. .

Understanding of duties, performance

of assigned tasks. 4

IV. Dependability...

Ability to follow through with

assignments on schedule & to follow

policies & rules with minimum

supervision. +

i ct is OR aa ab eal

RA 57

V. Conduct/Behavior .

Professional manner, courtesy,

acceptance and profit from constructive

counseling. Ability to work with others

effectively, willingness to vary work

schedule/assignments as needed. 5

VI. Attendance

Promptness and regularity in being at

work as scheduled. ]

VII. Professional/Personal Appearance

Conformance to established dress codes

and personal appearance. 4

Total Score 32

MEMORANDUM

SECURITY SERVICES

Evaluation of Per Diem Personnel]

Employees Name Ray Watson

Grade the above employee on a scale of 1 to 10 on the

following areas. 1 being low and 10 the highest grade.

Category Grade

[. Quantity/Timeliness of work...

The level of satisfactory output 2

I. Quality of Work...

Degree of Accuracy, lack or errors. 3

[ll. Knowledge/Skill .. .

Understanding of duties, performance

of assigned tasks. 3

VII.

RA 58

Dependability .. .

Ability to follow through with

assignments on schedule & to follow

policies & rules with minimum

supervision.

Conduct/Behavior .. .

Professional manner, courtesy,

acceptance and profit from constructive

counseling. Ability to work with others

effectively, willingness to vary work

schedule/assignments as needed.

Attendance...

Promptness and regularity in being at

work as scheduled.

Professional/Personal Appearance .. .

Conformance to established dress codes

and personal appearance.

Total Score

MEMORANDUM

SECURITY SERVICES

Evaluation of Per Diem Personnel

Employees Name Ray Watson

WwW

Grade the above employee on a scale of 1 to 10 on the

following areas. 1 being low and 10 the highest grade.

IT.