# Opposition Brief — Watson v. University Medical Center

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 827

## Text

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)

we
™

l.

No

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.

li
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

iv

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

vi

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 best inference Petitioner can make from these facts is
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
Se ee ee

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.

10

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

11

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

12
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

13

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.

——————

14

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.

15

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

——————————————

16

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

17

ol

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.

18

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

19

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

20

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

21

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.

i

22

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

nN
Ww

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

24

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.

25

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

N

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

64

65

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

73

75

80

93

96

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)

1.

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.

3.

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.

4.

—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.

a

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.

6.

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

ee

ial

en 0 Ese sin

RA 3

subjected to the deprivation of the privileges and immu-
nities secured by the constitution and laws.

7.

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.

8.

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.

9.

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.

ae

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;

_

he

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.

ee

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?

0

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.

Q.

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?

TT

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

[p

A.
Q.

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

A.
Q.

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?

A.

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.

Q.
A.

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.

Q.

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?

4
‘3
Ry
:

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.
A

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-

5

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.

i,

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.

ee

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.
©. Most of the time?
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.

a

Professional/Technical Applicant — License/Registra-
tion/ Certification

Type: N/A #:

State: Expiration Date:

Tsim cc: Sa em

a
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:

ee
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
A
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

Nm

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.
3.

*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

U1

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
ON

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

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

IT.

Category

Quantity/Timeliness of work...
The level of satisfactory output

Quality of Work...
Degree of Accuracy, lack or errors.

Grade

RA 59

Ill. Knowledge/Skill . . .
Understanding of duties, performance
of assigned tasks. 5

IV. Dependability
Ability to follow through with
assignments on schedule & to follow
policies & rules with minimum
supervision. +

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. 6

VII. Professional/Personal Appearance
Conformance to established dress codes

and personal appearance.

Total Score 27

RA 60

MEMORANDUM on
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 5

II. Quality of Work...

Degree of Accuracy, lack or errors. 7
Ill. Knowledge/Skill .. .

Understanding of duties, performance

of assigned tasks. 7

IV. Dependability .. .
Ability to follow through with
assignments on schedule & to follow
policies & rules with minimum
supervision. 5

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. 8

RA 61

VII. Professional/Personal Appearance
Conformance to established dress codes
and personal appearance.

Total Score _44

RA 62

Affidavit of Michael Parker

State of Nevada )

, oe

County of Clark )

Michael Parker, being first duly sworn and states as
follows:

Ff

ho

wy

That your affiant is over the age of eighteen
(18) years and is a resident of Clark County,
Nevada.

That your affiant makes this affidavit in sup-
port of Defendant’s Motion for Summary
Judgment.

That the one of the two officers selected for
the full time Position was Pacific Islander,
and the other officer selected was Cauca-
sian.

That the job description for the position held
by the plaintiff required A valid Nevada
Drivers License. (Exhibit “A” Attached.)

That at the time which all eligible candidates
were evaluated for the Full time position,
Mr. Larry Mathis was present and partici-
pated in The evaluation process.

Further Affiant Sayeth Naught

/s/ Michael Parker
Michael Parker

Notarized by
/s/ Claudette P. Harrington
6/11/96

RA 63

Affidavit of John Seeno

State of Nevada )

County of Clark )

John Seeno, being first duly sworn 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 sup-
port of Defendant’s Motion of Summary
Judgment.

3. That I was part of the team that was

involved in doing evaluations. The team
consisted of the following persons: Lt. John
Seeno, Lt. Ken Allgood, Lt. Cliff Ortego,
S/O Larry Mathis, S/O Ed Yesko and S/O
Newton Yuen.

4. The evaluations were conducted on July 8,
1993 between the hours of 2:00pm to
3:15pm.

oa

That S/O Larry Mathis was part of the eval-
uation team and did participate in the eval-
uation process.

Further Affiant Sayeth Naught.

/s/ John Seeno

Notarized by
/s/ Claudette P. Harrington
5/28/96

RA 64

Affidavit of Newton Yuen

State of Nevada )

) SS:

County of Clark )

Newton Yuen, being first duly sworn and states as
follows:

1.

J

GJ

wi

That your affiant is over the age of eighteen
(18) years and is a resident of Honolulu
County, Hawaii.

That your affiant makes this affidavit in sup-
port of Defendant’s Motion of Summary
Judgment.

That I was part of the team that was
involved in doing evaluations. The team
consisted of the following persons: Lt. John
Seeno, Lt. Ken Allgood, Lt. Cliff Ortego,
S/O Larry Mathis, S/O Ed Yesko and S/O
Newton Yuen.

The evaluations were conducted on July 8,
1993 between the hours of 2:00pm to
3:15pm.

That S/O Larry Mathis was part of the eval-
uation team and did participate in the eval-
uation process.

Further Affiant Sayeth Naught.

/s/ Newton Yuen 5-28-96

Subscribed and sworn to before me this 28th
day of May, 1996.

/s/ Ginny L. Lee
Notary Public, State of
Hawaii

My Commission Expires:
05/17/2000

RA 65

Affidavit of Clifford Ortego

State of Nevada )
:
County of Clark )

Clifford Ortego, being first duly sworn and states as

follows:

l.

¢.%
ae

fhat your affiant is over the age of eighteen
(18) years and is a resident of Clark County,
Nevada.

That your affiant makes this affidavit in sup-
port of Defendant’s Motion of Summary
Judgment.

That I was part of the team that was
involved in doing evaluations. The team
consisted of the following persons: Lt. John
Seeno, Lt. Ken Allgood, Lt. Cliff Ortego,
S/O Larry Mathis, S/O Ed Yesko and S/O
Newton Yuen.

The evaluations were conducted on July 8,
1993 between the hours of 2:00pm to
3:15pm.

Phat S/O Larry Mathis was part of the eval-
uation team and did participate in the eval-
uation process.

Further Affiant Sayeth Naught.

/s/ Clifford J. Ortego

Notarized by

‘'s/ Claudette P. Harrington
9/28/96

i RA 66

Affidavit of Kenneth Allgood

State of Nevada )

County of Clark )

Kenneth Allgood, being first duly sworn 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 sup-
port of Defendant’s Motion of Summary
Judgment.

3. That I was part of the team that was

involved in doing evaluations. The team
consisted of the following persons: Lt. John
Seeno, Lt. Ken Allgood, Lt. Cliff Ortego,
S/O Larry Mathis, $/O Ed Yesko and S/O
Newton Yuen.

4. The evaluations were conducted on July 8,
1993 between the hours of 2:00pm to
3:15pm.

SI

That S/O Larry Mathis was part of the eval-
uation team and did participate in the eval-

uation process.
Further Affiant Sayeth Naught.

/

/s/ Kenneth Allgood

Notarized by
‘s/ Claudette P. Harrington
3/28/96

RA 67

DEFENDANTS EXHIBIT NO. B

MEMORANDUM
SECURITY SERVICES

TO: Ray Watson, Security Officer
FROM: Kenneth Allgood, Security Shift Supervisor
SUB]: Verbal Counseling

DATE: June 8, 1993

You are receiving a verbal counseling for the incorrect

processing OF a patients personal property.
Date of error: 6/6/93
Patients Name: Kimbale, William

Discrepancy: Completed log book transaction incor-
rectly

On 6/6/93 you returned clothing to a patient. The log
number was 559 and instead of logging out on the same
line, you logged the items out on a separate line. This
caused confusion and the log numbers were then dupli-

cated, thus causing a domino effect of errors.

The bottom line is that you have enough experience that

you should not be making these type [sic] of errors.

If you do need assistance in re-training or an explanation
of procedure, please ask myself or any lieutenant and we
will be more than willing to assist you.
/s/ Lt. Kenneth Allgood /s/ Ray Watson
Lt. Kenneth Allgood (Signature acknowledges
receipt only)

RA 68

UMC
UNIVERSITY MEDICAL CENTER

To: Michael Parker, Director, Security Services
From: Clifford Ortego, Lieutenant, Security, Day Shift
Subject: Verbal Counseling on S/O R. Watson

Date: 6-5-93

On 6-4-93 at approximately 12:00pm you had the occasion
to take the property of one: Sarah BROOKER in the
emergency room. You filled out the clothing sheet (Form
958) listing only her clothing. You then placed the
clothing form and her clothing in the clothing locker.

The following discrepencies were found. (1) You failed to
get a nurse to witness and sign the inventory. (2) You
failed to check the clothing for valuables as a Wallet with
I.D. and one dime was found in the clothing. (3) Both
copies of the inventory sheet was left in the locker. The
Original goes with the chart and the pink stays with the
patients property.

Finally, you are being verbally counseled for the above
mentioned discrepencies as this is a prime example of

why we have claims of lost property and patients leaving
without their property. It is very important to follow

RA 69

established policy and procedures. Further counseling
will be dealt with progressively.

Signed: /s/ Ray Watson

S/O R. Watson

Signed: /s/ Lt. C. Ortego

Lt. C. Ortego

UMC
UNIVERSITY MEDICAL CENTER

To: Michael Parker, Director, Security Services
From Clifford Ortego, Lieutenant, Security, Days

Subject: Verbal Counseling for S/O R. Watson

Date 5-22-93

[his To/From is being sent to inform you that I have
given a verbal counseling to S/O Ray Watson for the

incident described below:

On 5-22-93 at or about 11:00am $/O R. Watson prepared
the Visitor Log for the 11:00am 1.C.U visitors. While
doing so, he put in the NFP patients names. This is
contrary to the To/From dated May 13, 1993 which states
that the letters N.F.P. should be put in where the patients

name would normally go.

S/O Watson has been verbally counseled about this and

instructed on the proper procedure and instructed to read

RA 70
the To/From posted on the bulletin board within the
Security Office.

Signed: Ray Watson
S/O R. Watson

cc: S/O Watson

UMC
UNIVERSITY MEDICAL CENTER

To: Michael Parker, Director, Security Services
VIA: Ray Watson, Security Officer, Security Services
From: Clifford Ortego, Lieutenant, Security, Services

Subject: Divulging Privileged Information

Date: 2-21-93

On 2-21-93 at approximately 1:20pm I received a call from
Sally (RN, ICU, Trauma Center) reporting that Officer
Ray Watson had breached Hospital Security by giving
information out and showing the Hospital Census Sheet
of patients in the Trauma Center.

This sheet shows where patients are, who the physician
is, Where they are located, why they are in the hospital,
etc. This type of information is priviledged. [sic] Officer

Watson showed the sheet to a female visitor who was
inquiring about one SILVER (Patient in ICU).

RA 71

I have verbally counseled $/O Watson on this matter. In
addition, I have explained the policy and reason for not

permitting anyone to read the Census Sheet.

Signed: Signed:
/s/ Ray Watson /s/ Lt. C. Ortego
S/O R. Watson Lt. C. Ortego
Date/Time: Date/Time:
2-21-93/2:00pm 2/21/93/2:00pm

RA 72

BRIAN C. WHITAKER, ESQ.
RAWLINGS, OLSON, CANNON,
GORMLEY & DISRUISSEAUX
301 E. Clark Avenue, Suite 1000
Las Vegas, Nevada 89101

(702) 384-4012

Attorneys for Defendants
UNIVERSITY MEDICAL CENTER
MIKE PARKER and BILL ANDREWS
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA

RAY WATSON,
Plaintiff,

CASE NO.
CV-S-95-795-HDM (RLH)

)
)
)
VS. )
UNIVERSITY )
MEDICAL CENTER,
MIKE PARKER, )
BILL ANDREWS, |
Defendants. }

DECLARATION OF FRANCENE QUICK

I. Francene Quick declare as follows:
1: Declarant is over the age of eighteen (18) years.

2: Declarant currently resides at 3725 W. Harbor, Betten-
dorf, lowa 52722.

3: Declarant makes this Declaration in support of Defen-
dants’ Motion for Summary Judgment.

4: Declarant was a Security Secretary at University Med-

ical Center.

RA 73

5: In order to schedule Ray Watson for an interview
regarding a full-time security position to be filled in
August of 1993, Declarant attempted to call Mr. Watson
on Wednesday afternoon, all day Thursday, and Friday
morning.

6: Declarant left several messages to call the director's
office at his earliest convenience. Declarant did not talk to
Mr. Watson personally until Friday around noon when he

returned Declarant’s calls.

y } 1
I declare under penalty of perjury under the laws

he State of Nevada that the foregoing is true and correct

a

1 ‘ :
and that this Declaration was executed on this 5 day of

oy = 1. 1 ; y
March, 1996, Bettendorf, lowa

AFFIDAVIT OF JOHN SEENO

STATE OF NEVADA

COUNTY OF CLARK

me : ‘
# That vour Affiant is over the age of eighteen (16

vears and is a resident of Clark County, Nevada
That your affiant makes this Affidavit in support
of Defendants’ Motion for Summary Judgment

~

3 That vour Affiant is a Security Lieutenant at Uni

versity Medical Center.

RA 74

4. That in order to schedule Ray Watson for an
interview regarding a full-time security position to be
filled in August of 1993, your affiant attempted to call Mr.
Watson during Affiant’s regular scheduled shifts on
Wednesday and Thursday evening. Affiant spoke to a
woman and asked her to have Mr. Watson call either
Affiant or the director’s office at his earliest convenience.

FURTHER AFFIANT SAYETH NAUGHT.

/s/ John Seeno
JOHN SEENO

SUBSCRIBED AND SWORN to before me
this 29th day of February, 1996.

/s/ Jeannett E. Bertoch
NOTARY PUBLIC In and For
Said County and State

RA 75

[p. 1] UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

RAY WATSON, ) COPY
re )
Plaintiff, : ee ite
VS. ) CV-S-95-795-HDM (RLH)
UNIVERSITY MEDICAL ?
CENTER, MIKE PARKER, ?
BILL ANDREWS,
Defendants. )
)

DEPOSITION OF LONDA WATSON

Taken on Wednesday, May 29, 1996

At 3:53 o’clock p.m.
At 301 East Clark Avenue
Las Vegas, Nevada
Reported by: Anna Maria Halverson, CCR 188

[p. 20] A. Seldomly I take calls, anyway. Because
he’s home, and he takes a call by himself.

MR. WATSON: Counsel, excuse me, can we

take a Te cess?

MR. WHITAKER: Well, let me finish my ques-

tion.
BY MR. WHITAKER:

Q. In July of 1993, do you recall whether he
received phone calls of any kind from UMC?

A.

Q.
A.

RA 76

I cannot remember.
Okay. So you could -

The calls - even when they call him for work, I

can’t remember the dates and the time either.

Q.

So if l asked you for August, which would be the

next month, you wouldn’t be able to tell me?

A.

Q.
A.

I won't, no.

You wouldn't be -

Because somebody -

MR. WATSON: Let’s go off the record.

MR. WHITAKER: No, we’re not off the record.

She’s still answering the question.

record.

MR. WATSON: Off the record.
THE WITNESS: Would you like me to stop?
MR. WATSON: Yes, stop. Let’s go off the

MR. WHITAKER: Well, we'll stay on the record.
MR. WATSON: I need to talk with her.

* * *

[p. 22] MR. WHITAKER: And you’re doing that.

I don’t have a problem with that, but I don’t understand
why we have to interrupt it to take a break -

MR. WATSON: Okay, go on.

BY MR. WHITAKER:

RA 77

Q. So if I go back to June of ’93 the month before,
would you be able to tell me how many times employees
from UMC called?

A. No, I would not be able to tell you.

Q. If I went back to May of 1993, could you tell me
how many times they called?

A. No.

Q. What you're saying is that they did call, you just
don’t know when they called?

A. I don’t know when they called. I just know they
called sometimes.

Q. In August of 1993, the month after July of ‘93,
could you tell me whether anyone called from UMC or
not? .

A. They could have called. You know. Because he
worked all that time, so -

Q. Right.

A. He worked in August - didn’t you work in
August? Yeah, he worked in August at UMC, so they
must have called. Whenever they need him, they call.

Q. So you would have expected phone calls up until
the [p. 23] point in time that -

A. I wasn’t expecting.
Q. It just happened?

A. It just happens.

RA 78

Q. And I guess what I’m gathering is that this isn’t
something you wrote down, so you don’t have a specific
recollection of when it happened?

A. Exactly.

Q. So you don’t have a log at home that logs all the
calls -

A. No.
Q. —- that Ray received?
A. No.

Q. So you don’t know when UMC called or why

they called, they just called sometimes?
A. They called sometimes.

Q. And I guess on occasions you've indicated they

would say we want Ray to come in and work on this day?
A. That’s it.

Q. And on other occasions they wouldn't even tell
you why they called? They’d just say have Ray call us?

A. That’s right.

Q. When they said have Ray call us, you didn’t ask
the male or the female who called why they were calling?

A. No.

[p. 24] Q. That was none of your business? You just
told your husband?

A. I just told him, yeah.

eel th

RA 79

Q. Now, as far as your husband, has he ever talked
to you about why he brought the lawsuit against Univer-
sity Medical Center?

A. I think he said — yes, I know why he did.

Q. Can you tell me what he told you as to why?
A. He said they discriminated against him.

Q. Did he tell you what he based that upon?

A. Yes.

Q. And what was it that he told you?

A. He told me they did not give him an interview,
and they gave all the other guys interview, and he was
the only black man.

Q. Is that what he told you, that he was the only

black man who was being considered for the position?

A. No. He was the only black man together with the
others, maybe six or seven others, he was the only black

man entitled for that interview, and he did not get it.

Q. So he felt that he was entitled to the interview?
Is that what he told you?

A. Yes.

Q. Is there anything else he told you about why he

brought the lawsuit, or is that the sum of it?

RA 80

In The Matter Of:

WATSON v.
UNIVERSITY MEDICAL CENTER

CARLOS HENDERSON
March 19, 1996

Western Reporting Services, Inc.
415 South Sixth Street
Suite 200
Las Vegas, NV 89101
(702) 474-6255 FAX: (702) 474-6257

Original File hendersn.asc, 69 Pages
Word Index included with this Min-U-Script®

CARLOS HENDERSON WATSON v.
March 19, 1996 UNIVERSITY MEDICAL CENTER

» * *

[Page 53] Q: Do you know of any policy at UMC
that would require, have required Mike Parker to give
Ray Watson an interview?

A: I could not answer that request right now. No.

Q: Is there anything in the union contract — that’s
Exhibit A - that would have required Mike Parker to give
Ray Watson an interview?

A: No.

Q: Were you aware that Mike Parker had super-
visors rate each of the per diem employees who were
applying for one of these two full-time positions?

RA 81

A: Yes, we were aware of that, and the union was
not in agreement with that procedure.

Q: What’s your understanding of the procedure
they used?

A: It was my understanding it had a one to ten scale
or one to fifteen scale, some kind of scale.

Q: Do you know if Ray Watson was the only Afri-
can American that applied for one of these two full-time
positions?

A: Ido not know.

Q: Do you know what the step two grievance hear-
ing decision was?

A: Rather than not speak about it without having a
copy of it in front of me, I cannot tell you in its [Page 54]
entirety.

QO: Well, let me get one.

A: Thank You.
(A recess was taken from 11:24 a.m. to 11:26 a.m.)
(The reporter marked Exhibit B.)

QO: (BY MR. LEWIS) Mr. Henderson, let me show
you what we have marked as Exhibit B. Do you recognize
that document?

A: (Witness perusing document.) Most certainly.

Q: Is that the decision from the step two grievance?

A: Yes, it is, sir.

RA 82

Q: Do you know why that document wouldn’t be in
the union’s file?

A: Well, there are times when things get misplaced.
We have three different offices, and things get misplaced.

Q: So typically it would be in the file?

A: Yeah. I’m certain you have lost documents in
your Office.
Q: Oh, we sure have. I just wanted to know if there

is any other reason.

A: No. That’s the first thing I stated when I came in
here.

Q: Now, this decision says: Also reinstate Ray Wat-
son on a per diem with opportunity to improve on weak-
nesses as [Page 55] stated in the management review.

Was the offer ever made to Ray Watson that he could
come back to work as a per diem employee for UMC?

A: You see in that — you see in that decision, it was

offered.
Q: That was offered?

A: That’s in the decision. Right there. That’s what
I’m saying. It’s in this decision.

Q: I don’t understand what you're saying.

A: What I’m saying — well, let me clear it up. You
asked the question about per diem offer to Ray Watson.

I stated to you — I should state to you if you would
read the November 9, 1993 decision given by the hearing

officer, it states it right in there.

RA 83

Q: States what?

A: States down here at the very bottom. Okay. Let’s
see: Based on the testimony evidence presented, I feel
that Mike Parker did not discriminate on the basis of race
although, as stated before, it may give the appearance of
discrimination, since Ray Watson was the only African
American who was recommended for an interview and
did not get one. I feel UMC administration should write a
policy for criteria to receive interview, also reinstate Ray
Watson on a per diem with the opportunity to improve on
weaknesses as stated in the management review, and if
improvement is [Page 56] made, he should be given an
interview on the next full-time opening in the depart-
ment. Mr. Watson’s request to be reinstated as a full-time
employee with back pay is denied.

OQ: Now, Mr. Watson couldn’t have been reinstated

as a full-time employee, could he?

A: The only thing - I’m not sure of that. I - excuse

Q: Well, was Ray Watson ever a full-time employee
at UMC?

A: Ray Watson was a per diem employee.
Q: So was he ever a full-time employee? Yes or no.
A: As far as I’m concerned, he was not.

Q: So he couldn’t be reinstated as one, because he
had never been one, could he?

A: I beg to differ with you. I beg to differ with you,
because management can do whatever they want. So I

beg to differ with you with that.

RA 84

Q: All right. So was Ray Watson offered per diem
employment after this decision?

A: I have no knowledge of that, sir.

Q: You weren't in a meeting with Kathy Silvers,
Blaine Claypool and Mike Parker where an offer to Ray
Watson was made for per diem employment with zero
hours?

A: No. I - I don’t thing so. Give me the time and
place. I don’t — I don’t recall that. No, I don’t.

RA 85

UMC

UNIVE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1165%3A3. Public record. Not legal advice.