Petition for Writ of Certiorari — Perkins v. United States (No. 07-999)

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No. 07-999 57% 23 2008

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

FRANKLIN R. PERKINS, PETITIONER

MICHAEL W. WYNNE, UNITED STATES OF AMERICA, EX

REL., SECRETARY, DEPARTMENT OF THE AIR FORCE;

ALLEN B. DECKER, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ALEXANDER L. BEDNAR 20BERT MITCHELL

Counsel of Record

Bednar Law Firm

204 N. Robinson, 205 NW 63rd

Suite 1000 Suite 330

Oklahoma City, OK 73102 Ok lahoma City, OK 73116

405) 609-6000 (405) 760 7501

Attorneys for Petitioner

CURRY & TAYCOR @ (272) 393-4141

QUESTIONS PRESENTED

Frank Perkins filed a lawsuit against Tinker Air

Force Base and his supervisor, Allen Decker after Decker

demoted Mr. Perkins from his probationary position as a

superviscr. As justification for demoting Mr. Perkins,

Allen Decker, who was newly supervising him, instigated

an unscheduled ad hoc performance review on October 9,

2002, and gave Mr. Perkins all “zeroes” for traits such as

“communication skills.’ Mr. Perkins, an African

American, is a decorated war hero, worked for a NATO

General, and had never been disciplined either in military

or ciyilian employment. He has previously been

responsible for negotiating multi-million contracts for the

Air Force. Decker’s comments on the review form

indicate subjective conduct issues, which Decker

identified thirty days later as reasons for removing Mr.

Perkins from the position. Mr. Perkins’s performance

reviews immediately prior to, and immediately after

Decker’s negative review, reflect the highest marks for

Mr. Perkins, completely contradicting Decker’s review,

and indicating manipulation of performance data. The

District Court found that Mr. Perkins suffered an adverse

employment action at the hands of Decker. (App.14a).

However, Mr. Perkins did not receive notice or an

opportunity to be heard regarding the demotion.

Thirty days after giving Mr. Perkins the glaring

negative performance review, on November 7, 2002,

Decker handed him a written letter of demotion, to

become effective November 17, 2002. This letter

misdirected Mr. Perkins regarding administrative appeal

of the matter in the short time before his removal. The

District Court found that due to the misinformation in

that letter, evidence exists on the record Mr. Perkins was

“actively misled” prior to being demoted. ‘This finding is

not disturbed on appeal. (App.29a).

Although Defendants argued to the Tenth Circuit

that the October 9, 2002 ad hoc performance review was a

“proactive attempt to inform Plaintiff of his deficiencies,”

(Appellee Brief p. 20), discovery produced an email

wherein Decker and a higher supervisor had apparently

planned and orchestrated Mr. Perkins’ removal in

September of 2002, prior to the negative performance

review. (App.36a). Furthermore, another of Decker’s

supervisors instructed him in October of 2002 not to

utilize subjective conduct criteria in critiques of

employees, using the word “segregate” in such email.

(App.44a). Nevertheless, Decker relied upon his

subjective conduct criteria in his November 7, 2002 letter

of demotion.

Immediately after delivering the termination

letter to Mr. Perkins, and not knowing Mr. Perkins was

nearby within earshot, Decker while laughing stated to

a co-worker in referencing the termination, “the dirty

deed is done.” Applt. App. at 179, § 14, at 249, § 6.

Decker admitted to having stated these words in his

deposition, and Defendants have never countered this

blatant statement of bias. Mr. Perkins pointed out these

and other genuine issues of material fact on the record

below, evidencing pretext or a “sham” reason for

termination. The District Court granted summary

judgment based on the fact that Mr. Perkins did not

present direct evidence of discrimination. The Tenth

Circuit upheld that decision.

Both the District Court and the Tenth Cireuit did

not address the record as a whole, which contained

numerous issues of material fact. Although the District

Court said on page 6 of its Order “Plaintiff admits he did

not hear Decker use any specific racial terms” (App.17a),

it should have interpreted Decker’s above statement and

222

acts as evidence of the employer's racial animus. Decker’s

statement “the dirty deed is done,” delivered in the

manner described above, creates genuine doubt as to

Defendants’ real motivation and sincerity in terminating

Mr. Perkins, and it clearly reveals the Defendant

employer’s underlying discriminatory motive. The other

compounding factors, such as Decker’s planning of the

removal, his failure to abide by an order not to utilize

conduct criteria in disciplining an employee in a

performance review, and his misleading statement in the

letter of demotion regarding Mr. Perkins’ ability to appeal

the matter, 77 toto, amount to an overwhelming amount of

circumstantial evidence of animus. As such, a strong

inference of discrimination remains on the record,

regarding the employer’s proffered reason for

terminating Mr. Perkins, evidencing pretext.

Mr. Perkins has established a prima facie case of

discrimination, has introduced enough evidence for a jury

to reject the defendant employer’s proffered explanation

as “sham,” and has produced additional evidence pointing

to underlying animus on the part of Defendants. This

appeal therefore focuses upon the second and third parts

of the McDonnell Douglas test. McDonnell Douglas v.

(rreen, 411 U.S. 792, (1973).

Questions presented:

Whether the District Court and the Tenth Circuit

improperly applied the McDonnell Douglas test, and the

holding in Reeves v. Sanderson, when they both

concluded that the Plaintiff failed to show direct evidence

of discrimination as their main reason for upholding

summary judgment.

Whether under Rule 56, the District Court and Tenth

Circuit failed to view the record as a whole in a light more

favorable to the non-movant, given the unique facts of

this case and the numerous genuine issues of material fact

on the record.

Whether Frank Perkins met his burden of proof

and demonstrated pretext by presenting evidence that

indicated Defendants: (i) orchestrated his removal in a

way that circumvented his due process rights; (ii)

presented inconsistent, contradictory material sworn

statements relied upon by the Courts below; (iii)

wrongfully manipulated his performance scores in order

to remove him, (iv) made conversational comments on the

record that a jury could interpret as evidence of animus,

using words such as “segregated” and laughingly calling

Mr. Perkins’ removal a “dirty decd done,” and (v)

misstated the context of statements by Petitioner

regarding the removal letter “appearing to comply” with

administrative requirements, and upon which the District

Court and Tenth Circuit relied.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

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PETITION FOR A WRIT OF CERTIORARI

Frank Perkins, an individual civilian employee of

Tinker Air Force Base, and a decorated veteran of the

armed forces, respectfully petitions that a Writ of

Certiorari be issued to review the judgment of the

United States Court of Appeals for the Tenth Circuit

entered on August 15, 2007, as it contradicts the

Supreme Court’s holding in Reeves v. Sanderson

Plumbing Prod., Jnc., 530 US. 1383, at 146-

52(2000)(stating that an employee need not introduce

independent evidence of discrimination beyond the

prima facie case). In Reeves, the Supreme Court

unanimously held that the Circuit below had ignored

crucial evidence favorable to the employee, confined its

review inappropriately, and that the respondent was

not entitled to summary adjudication under the

particular circumstances presented. /d. at 135. The

Court further found that the Fifth Circuit had

disregarded evidence that undermined the employer's

non-diseriminatory explanation, had failed to draw all

reasonable inferences in favor of the employee, and had

improperly given weight to the fact that no direct

evidence of discrimination was proffered beyond the

prima facie case. Id.

The Court is squarely presented with a holding

from the Tenth Circuit that contradicts Rule 56, and

contradicts the Reeves decision regarding the fact a

plaintiff need not present direct evidence of

discrimination in a McDonnell! Douglas burden shifting

framework. As such, the Tenth Circuit in its decision in

Perkins v. Wynne et al, appears to adopt the “pretext

plus” test that the Fifth Circuit inappropriately applied

in the Reeves case. Given the facts in this case, the

Court should set aside the Tenth Circuit’s decision

affirming of summary judgment, and remand the

matter for a trial on the merits.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Tenth Circuit is dated August 15, 2007,

and it is not published in the Federal Reporter, but is

published at Perkins v. Wynne ex rel Secretary, Dept.

of Air Force, 245 Fed.Appx. 771, 2007 WL 2319115

(C.A.10 (Okla.)). (App.la). The order denying the

Defendant Agency’ first Motion for Summary

Judgment of District Judge Vicki Miles-LaGrange,

United States District Court for the Western District

of Oklahoma in which the District Court found that the

Defendants “actively misled” Plaintiff (App.29a),

unpublished, is dated March 31, 2006. (App.19a). The

order of Judge Miles-LaGrange granting Defendants’

Motion for Summary Judgment, not reported in

F .Supp.2d, but available at 2006 WL 2583760, is dated

September 6, 2006. (App.10a).!

JURISDICTION

The judgment of the United States Court of

Appeals for the Tenth Circuit was entered on August

15, 2007. A Petition for Rehearing and Petition for

Rehearing En Banc was timely filed and was denied on

October 25, 2007. (App.3la). Pursuant to Supreme

Court Rule 13.1, this petition has been filed within 90

days of the denial of rehearing.

' References to the Appendix to this Petition are in the following

format: ” a.” References to the Tenth Circuit Appendix are in the

format: “Appit.App. at _.”

The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

RELEVANT PROVISIONS INVOLVED

The statute construed is 42 U.S.C. § 2000e-2(a)

which states:

“It shall be an unlawful employment practice for

an employer to fail or refuse to hire or to

discharge any individual, or otherwise to

discriminate against any individual with respect

lo his compensation, terms, conditions, or

privileges of employment, because of such

individual's race, color, religion, sex, or national

origin.”

STATEMENT

This case arises out of Mr. Perkins suffering an

adverse employment event, and demonstrating under

Reeves v. Sanderson that he has satisfied the third

prong of the McDonnell Douglas test, by showing the

proffered explanation was “sham.” Mr. Perkins was

promoted effective June 30, 2002 from his position as an

Industrial Engineering Technician, GS-895-11 to a

supervisory position as Planning Section Chief, GS-8%5-

12 at Tinker Air Force Base, civilian sector, where he

has worked for almost twenty (20) years. This

promotion required him to serve a probationary period

of one (1) year. He had been selected for this promotion

by a panel chaired by Garry Bostick, a Black male, his

then immediate supervisor. Shortly before the

promotion, in April of 2002, Mr. Perkins had scored

“excellent” ratings on his performance evaluation.’

(App.37a). Up until this promotion, Mr. Perkins’

employment records demonstrated that he met all

expectations of his employer, with favorable

employment evaluations.*

Within two months of his promotion, in mid-

August 2002, Mr. Perkins came under the immediate

supervision of Allen Decker (Caucasian), branch chief.

It was at this time his employment difficulties with

Defendants began. Decker had an argument with Mr.

Perkins the first day they met, when Mr. Perkins

accidentally parked in Decker’s parking space. Decker

never outlined his expectations for Mr. Perkins,

(Applt.App. at 249), and admitted he did not know

whether Mr. Perkins’ previous supervisor had drafted a

“position description” or “performance plan” for Mr.

Perkins’ new supervisory role. Applt.App. at 234.

Also, Decker indicated he had failed to complete a

requisite agency “CORE” personne! document listing

Mr. Perkins’ duties and that such document “did not

become official for Frank [Perkins].” Applt.App. at 231-

235. He also identified an incomplete Performance Plan

for Mr. Perkins’ supervisory job. Applt.App. at 243.

Decker was hostile and impatient with Mr.

Perkins, and within several wecks of supervising Mr.

Perkins, Decker commenced actively soliciting negative

° The highest score on the evaluation is 9, and Mr. Perkins scored

one 7, five 8’s and three 9’s en the following appraisal factors: work

effort, adaptability to work, problem solving, working

relationships, communications, work productivity, self-sufficiency,

ckill in work, and work management.

* Mr. Perkins spent twenty years in the military, is a decorated

veteran of the Vietnam War, and worked for a NATO General. He

has spent almost twenty years in civilian duty, and has never been

reprimanded or disciplined until this matter.

comments from other employees about Mr. Perkins.

Applt.App. at 249-250. Discovery in this case produced

an email between Decker and his superior Linda

Thomas (Caucasian), dated September 27, 2002, where

the two planned to remove Mr. Perkins from his

position without giving him due process, thirty days

after a performance review. (App.36a). That email also

referenced subsequent meetings between the two to

further discuss removing Mr. Perkins.

Two weeks after the planning email with

Thomas, on October 9, 2002, Decker conducted a

subjective ad hoc performance review, without giving

notice to Mr. Perkins (seven weeks after the incident

over the parking space). On that date, Decker

presented an Evaluation Form 860B that indicated Mr.

Perkins was completely deficient in all areas,

amounting to “zeroes.” (App.32a). Unlike any

performance review he had ever received in his deeades

of public service, and certainly contrary to the last

evaluation in April 2002 (App.37a), On October 9, 2002,

Mr. Perkins received the lowest possible ratings in

every category with vague criticisms and inaccurate

assessments of his performanec. (App.32a-33a).4 The

“comments” section of the review form indicate that

Decker focused upon Mr. Perkins’ conduct, and not

upon his performance of identified duties.

In email dated October 16, 2002, Charlotte

Corcoran, another Caucasian superior of Decker’s,

instructed Decker, prior to his letter terminating Mr.

* Among others, Decker’s “comments” section includes nonsensical

requirements for improvement, drafted in an unprofessional,

almost. childish manner, lacking specificity, and manifesting

pretext: “need a major adjustment in dealing with others”...“ask

questions but manner of questions is paramount!”

Perkins, not to utilize conduct criteria in performance

evaluation reviews. Applt. App. at 220. In her email,

Ms. Corcoran states that performance matters and

conduct matter must be “segregated.” (App.44a);

Applt.App. at 220. Decker disobeyed this order and on

November 7, 2002 drafted a removal letter relying on

subjective conduct criteria from the performance

review, in terminating Mr. Perkins. Applt. App. at 215.

Defendants have not explained why Decker utilized

inappropriate conduct issues to terminate Mr. Perkins.

Decker asserts on the October 9, 2002 review

(App.35a) in Duty 7, item 5 that Mr. Perkins “did not

complete” and “botched” a program called 185 SORAP.

However, an email chain between Decker and other

supervisors dated October 2, 2002 indicates the

opposite: that Mr. Perkins successfully completed the

project, and to Decker’s satisfaction. Applt.App. at 217.

In fact, in one email, Decker states that he is “please[d]

with the [135 SORAP] numbers” and that Mr. Perkins

“worked out a compromise.” Applt.App. at 217, and at

250. Neither the District Court, nor the Tenth Circuit,

applied this amazing contradictory evidence in a light

more favorable to Mr. Perkins, apparently discounting

it as inapplicable. See Fed. R. Civ. P. 56; Reeves, supra

at 135 (directing that Courts not weigh evidence, and

that the evidence on record be analyzed in light more

favorable to the nonmovant).

On November 7, 2002, exactly thirty (30) days

after the performance review,’ Decker relied upon the

* Decker acted according to the time frame referenced in the

planning email of September 27, 2002 with Tnomas (App.36a),

handing a notice of removal of Mr. Perkins from his position

exactly thirty days after the unscheduled ad hoc performance

review.

land

‘

same derogatory criteria he had created in the 860B

review Form and handed Mr. Perkins a letter removing

him from his supervisor position and demoting him

effective November 17, 2002. Applt.App. at 215.

Decker did not give Mr. Perkins notice or opportunity

to be heard prior to delivery of the November 7, 2007

letter. Interestingly, in its Order granting summary

judgment, the District Court found that Mr. Perkins’

removal amounted to an “adverse employment action.”

(App.14a). Ismployees who suffer adverse actions are

entitled to due process, and notice of the adverse action

in advance. Montgomery v. City of Ardmore, 365 F.3d

926, at 936-87 (10" Cir. 2004)(employer should provide

charges, summary of employer’s evidence, and an

opportunity to respond); see also 5 U.S.C. $ 2302.

However, Decker acted according to the planning email

of September 27, 2002, which laid out a strategy to

terminate Mr. Perkins from his position without giving

him notice. (App.36a).

In the November 7, 2002 removal Ietter, Decker

specifically guided Mr. Perkins to seek appeal remedy

under AFI 36-1203, an inapplicable regulation that

specifically excludes relief for individuals such as Mr.

Perkins. Applt.App. at 215, and at 86-92 Section 14.10.

Decker never informed Mr. Perkins that he had forty-

five (45) days in which to contact an EEOC counselor.

Applt.App. at 249. Immediately after delivering the

termination letter to Mr. Perkins, and not knowing Mr.

Perkins was nearby within carshot, Decker while

laughing stated to a co-worker in referencing the

termination, “the dirty deed is done.” Applt. App. at

179, | 14, at 249, 9 6. Decker admitted to stating these

words in his deposition, and Defendants have never

countered this blatant statement of bias and pretext.

Mr. Perkins was qualified for the supervisor

position, but was removed under circumstances that

support a claim of racial discrimination. Defendants

claim that Mr. Perkins did not communicate well

verbally or in writing and that his communications

were often difficult to understand as unnecessarily

complex, wordy, and overly rhetorical. Applt.App. at

124. Defendants misrepresented to the Tenth Circuit

that the October 9, 2002 performance meeting was a

“proactive attempt to inform Plaintiff of his

deficiencies,’ (Appellee Brief p. 20). The email of

September 27, 2002, where Decker and Thomas were

planning Mr. Perkins’ termination, proves the existence

of Defendants’ otherwise ulterior pretextual motive to

remove Mr. Perkins from his job completely, not to

rehabilitate him. Applt. App. at 195.

Furthermore, after Mr. Perkins was demoted, he

underwent another performance evaluation on April 4,

20038, where he received higher marks than the one

before the adverse event with Decker on October 9,

2002. (App.40a). On the April 4, 2003 performance

review, Mr. Perkins received an “8” (with “9” being the

highest) in “Communication” from reviewer Charlotte

Corcoran, who comments: “communicates clearly

and effectively, whether orally or in writing.”

Applt. App. at 199-200 (emphasis added). The

overpowering discrepancy between a “zero” on the

review at the adverse employment action, and a near

perfect score of “8” in employee performance reviews

less than six months apart, on the ability to

communicate effectively, gives rise to an inference of

pretext, and that Decker manipulated performance

data on October 9, 2002. Beaird v. Seagate Technology,

Inc., 145 F.3d 1159, at 1168 (10 Cir. 1998)(stating that

employee may show pretext by (1) showing the adverse

event does not accord with proper criteria utilized by

the employer, (2) by adducing evidence that the

employer’s criteria was deliberately falsified or

manipulated so as to adversely alter the employment

status, or (8) by adducing evidence that the employer's

action is generally pretextual).

In April of 2008, Mr. Perkins contacted an EEOC

counselor regarding matters of concern in this action.

On May 14, 2003, Mr. Perkins filed an informal EEOC

complaint and on July 21, 2003, filed a formal EEOC

complaint citing the October 2002 evaluation and

November 2002 demotion. He received a “right to sue

letter” from EEOC and filed this lawsuit in 2004,

alleging discrimination under Section 1981, the Fifth

Amendment, the Fourteenth Amendment, and Title

VII of the Civil Rights Act (42 U.S.C. § 2000e et seq).

The District Court dismissed Mr. Perkins’ § 1981, Fifth

and Fourteenth Amendment Claims in February 2005.

Thus, the sole remaining ciaim is under 42 U.S.C. §

Z2000e-2(a).

Defendants moved for Summary Judgment in

July 2005 partly on the grounds that Mr. Perkins failed

to commence his EEOC process in a timely fashion.

That motion was denied specifically because the Court

found evidence that the Defendants “actively misled”

Mr. Perkins with regard to his rights to appeal the

adverse event. (App.29a). The Court entered an Order

on March 31, 2006 that equitable tolling of EEOC

deadlines was in order, and granted Perkins the

opportunity to maintain his remaining claim.

Defendants then moved again for Summary

Judgment on Mr. Perkins’ remaining employment

discrimination action pursuant to Title VII of the Civil

Rights Act of 1964. In its Order of September 6, 2006,

the Court focused solely on the three-prong McDonnell

Douglas test. The Court found Mr. Perkins satisfied the

first prong and established a prima facie case of

discriminatory discharge. It then held that Defendants

articulated a legitimate, non-discriminatory reason for

terminating Mr. Perkins, overcoming their burden

under the second prong of the test. Under the third

prong, the District Court felt that Mr. Perkins did not

demonstrate pretext as he was replaced by a Hispanic

person and, among other matters, Mr. Perkins could not

cite to direct evidence of racism. The District Court

stated in its Order that “Plaintiff admits he did not hear

Decker use any specific racial terms.” (App.17a). In

granting the Defendants’ second Motion for Summary

Judgment the District Court states Mr. Perkins “failed

to show any inconsistencies or contradictions in

Defendant’s proffered,’ without taking into

consideration numerous contradictory facts on the

record. (App.17a). In its Order, however, the District

Court did not set aside its prior finding that Defendants

actively misled Perkins. (App.10a).

One key point the District Court misinterpreted

is a statement it cited from Mr. Perkins, where he

states on the record that the demotion letter of

November 7, 2002 “appears to comply with”

administrative protocols. (App.l6a-17a). Defendants

misguided the Court, as the sentence, when read in full

context of the preceding sentence, and the following

two paragraphs, clearly demonstrates that Plaintiff is

stating that although Decker’s letter appears

appropriate, in truth it is not. When read in context,

that sentence should be properly understood as follows:

Exhibit 13 is the attempt by Decker to comply

with AFI 36-1001, paragraph 4.7. The letter

appears to comply with the

requirements...according to his deposition,

Decker failed to establish a core personnel

document... Applt.App. at 186-87. (emphasis

added).

Mr. Perkins filed an appeal with the Tenth

Circuit, which corroborated the District Court’s

analysis that the record lacked direct evidence of

discrimination, and that Mr. Perkins therefore did not

prove pretext. (App.7a). The Tenth Circuit validated

the same statement above that the District Court took

out of context, regarding Mr. Perkins’ argument that

although Decker attempted to comply with

administrative requirement with his demotion letter, he

did not, as he had not identified proper core duties for

Mr. Perkins. (App.6a). The three-judge panel did not

read the full context of that sentence, and therefore did

not view it properly in a light more favorable to Mr.

Perkins, and instead based its approval of summary

judgment on its misinterpretation. Fed. Civ. R. P. 56.

The Tenth Circuit apparently did not review any of the

contradictory evidence favoring Mr. Perkins, as it must

have believed it inapplicable for some reason.

The Tenth Circuit affirmed the District Court’s

grant of summary judgment On August 15, 2007.

(App.la). A timely Petition for Rehearing and Petition

for Rehearing En Bane was denied. (App.3la). This

Court should now consider the Petitioner’s claim that

the Respondents are not prevailing parties in light of

this Court’s prior recent decision in Reeves, which held

that an employee is not required to submit more

evidence than (a) a prima facie case requires, coupled

with (b) evidence from which a rational factfinder

would conclude that the employer’s — proffered

explanation for its actions was false. Mr. Perkins

submitted evidence on the record that both the District

Court and the Tenth Circuit failed to recognize in a

light more favorable to him, just as the plaintiff did in

Reeves.

This Court should also review this case since the

approach of the Tenth Circuit is inconsistent with the

indirect evidence method of proof mandated by this

Court in McDonnell-Douglas Corp. v. Green, 411 US.

792, 804-05 (1973), and followed in Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 256

(1981), Hicks, 509 U.S. at 502 (1993), and most recently

Reeves, 5380 U.S. 143(2000). The theory underlying

McDonnell-Douglas and its progeny is that an

employer in an employment discrimination case will not

ordinarily admit employment discrimination. Because

of the unavailability of direct evidence, this Court

adopted the indirect burden-shifting method of proof.

Requiring direct evidence (i.e., "pretext plus") cannot

be reconciled with McDonmneil-Douglas and its progeny,

which hold direct evidence is not required. The Court

is presented with the opportunity to set aside the Tenth

Circuit’s judgment and remand the matter to District

Court for adjudication on the merits.

REASONS FOR GRANTING THE PETITION

A. The Tenth Circuit Decision in Perkins v. Wynne

et al. is in conflict with the Supreme Court

decision in Reeves v. Sanderson.

In a McDonnell Douglas burden shifting

framework, the burden of the employer to produce a

non-discriminatory reason for the adverse employment

action is one of production, not of persuasion, and

should not involve a credibility assessment. Reeves,

supra at 142, citing Burdine, supra at 254; 42 U.S.C.A §

200e-2(a)(1). On a motion for summary judgment, a

Court should review all evidence in the record, but in

doing so, must draw all reasonable inferences in favor of

the nonmoving party, without making credibility

determinations or weighing the evidence. Reeves at 150,

citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250-251 (1986). After the employer proffers a

nondiscriminatory reason for an adverse employment

action, a plaintiff need only produce sufficient evidence

to reject the employer’s explanation, and need not

introduce additional, independent evidence of

discrimination. Reeves at 149. The Courts below found

that Petitioner had successfully proven his prima facie

ease for discrimination. (App.ld4a, App.4da-5a). The

District Court found that Mr. Perkins had suffered an

“adverse employment action” (App.l4a), and this

finding was not. disputed by the Tenth Cireuit.

However, the Courts below failed to consider evidence

on the record that strongly contradicted the employer’s

proffered reason, and inappropriately weighed evidence

in favor of defendants. As such, summary judgment

should be set aside.

A wide deviation in scores from one employee

performance review to another demonstrates proof of

pretext and an inference that Defendants manipulated

evaluation criteria, therefore precluding summary

judgment. Beaird, supra at 1169-70.°. The strongest

° The Beard case is not only on point, but was the Tenth Circuit

case the Supreme Court analyzed for purposes of the split in

circuits resolved through the Reeves holding. The /teeves holding

supported the analysis in Beaird that employees be able to show

through circumstantial evidence and other evidence that an

evidence on the record includes the performance

reviews immediately before and after the performance

review at the adverse event. (App.37a, App.40). The

review on October 9, 2002 that Defendants utilized to

demote Mr. Perkins, included all “zeroes” for cach

criteria, such as communications and _ working

relationships with others. (App.32a). The Courts below

adopted and even quoted in their orders the

Defendants’ biased evidence regarding the adverse

event.’ (App.da, App.l4a). Neither Court below

addressed the glaring inconsistency between the

Defendants’ assessment of Mr. Perkins and the reviews

right before and after October 9, 2002.

In stark comparison, the performance review in

April 2002, six months before the review that

supported the adverse event, indicates that Mr. Perkins

scored the highest, a “9,” on element number 4, and that

he was “sensitive to the behavior of fellow workers,

supervisors, and subordinates; maintains effective

working relationships with others.” (App.37a). This

review also shows that on element 5, communication,

Mr. Perkins scored an “8” and that he “communicates

clearly and effectively; whether orally or in writing.”

Further damning is the performance review

inference of discrimination is present, without requiring direct

evidence.

’ The Tenth Circuit quoted Defendants’ brief that Mr. Perkins

allegedly had “uncooperative demeanor, poor communication skills,

and condescending, disrespectful manner of speaking.” App.5a.

This assessment of Mr. Perkins is contradicted in the record by

both of Mr. Perkins’s reviews before and after the adverse action

(App.37a, App.40a), and contradicted in the record by emails

showing Mr. Perkins communicating well with others. Applt.App.

at 217-220, and at 248. The Tenth Circuit should have viewed this

evidence in a light more favorable to Mr. Perkins, per Rule 56.

immediately after the October 9, 2002 review, where

Mr. Perkins scored even higher on the same criteria

than he did on the April 2002 review."

As such, the Courts below either failed to view

this evidence in Mr. Perkins’ favor, or they disregarded

it as not being direct proof of discrimination. Neither

Court below discussed the incredible contradiction

between the consecutive performance assessments.

Furthermore, neither Court below explained the fact

that Defendant Decker and another supervisor were

emailing each other a plan to remove Mr. Perkins two

weeks before Decker’s October 9, 2002 performance

review of Mr. Perkins, where Mr. Perkins received all

“zeroes” (App.32a, Applt.App. at 193), and that Decker

made the statement “the dirty deed is done,” while

rejoicing with another white supervisor upon

terminating Mr. Perkins.” Applt. App. at 179, § 14, at

249, ¥ 6.

Mr. Perkins has consistently argued on the

record that Decker purposefully misled him with

respect to the manner in which he could appeal his

termination in the demotion letter. Applt. App. at 15

(413); at 23, 27-29; at 73 (YB), and at 74 (41). He not

Whereas Mr. Perkins had scored a “7” on the April 2002

performance review for criteria number seven “skill in work,” he

scored an “8” in the same criteria in the April 2003 performance

review with the following assessment: “performs job-associated

tasks well, whether they require physical, technical, professional,

supervisory, or managerial skills, is considered very skillful on the

job” (emphasis added). Both the April 2002 and April 2003

assessments, on the first page indicate Mr. Perkins also received a

performance cash award for scoring so well on his performance

criteria. Applt.App. at 197, at 199.

* The record indicates that Defendant Decker did not know Mr.

Perkins was within earshot and overheard this conversation, and

Decker admitted in his deposition to having said such comment.

only contradicted the Defendants’ evidence, but also

put forward this other evidence that rendered the

Defendants’ explanation for termination unworthy of

credence. Mr. Perkins pointed to this evidence as proof

of pretext, yet neither Court below distinguished this

key evidence.

The District Court reasoned that summary

judgment was proper due to the fact that Plaintiff did

not identify any direct statements by Decker

evidencing discrimination. (App.17a). The Tenth

Circuit quoted the District Court’s Order (App.5a), and

mistakenly identified the McDonnell Douglas

framework to require an employee to deliver

independent evidence that the employer did not

“honestly believe that explanation” for the adverse

employment action. (App.7a). The statement by

Decker “the dirty deed is done” should have been

presented to a jury as it appears to meet the Tenth

Circuit’s own test.

The Tenth Circuit incorrectly limited its review

of Mr. Perkins’ proof of Defendants’ pretext to four

items. (App.5a). In truth, Mr. Perkins identified other

independent issues of material fact on the record that

support pretext, such as the evidence above, which was

completely neglecled by both Cuurts below. Surminary

Judgment was inappropriate, as the Tenth Circuit

should have viewed the evidence in a light more

favorable to Mr. Perkins, and determined that genuine

issues of material fact exist, under Rule 56, and should

not have given credibility to the Defendants’ witnesses,

and weighed evidence in their favor. Also, summary

judgment should be set aside as Mr. Perkins should not

have heen given the gargantuan task of placing direct

proof of discrimination on the record.

B. The Tenth Circuit's ruling upholding Summary

Judgment fails to address numerous genuine

issues of material fact highlighted on the record,

that should have been viewed in a light more

favorable to Petitioner

When determining whether summary judgment

is proper, a Court should view the evidence in the light

most favorable to the nonmoving party, and draw all

reasonable inferences in that party’s favor, and it

should be denied upon proof of genuine issues of

material fact. Anderson v. Liberty Lobby, 477 U.S. 242,

255 (1986).

# Contrary to the Tenth Circuit’s

finding, Mr. Perkins’ successfully

completed the project called KC 135

SORAP

The Tenth Cireuit improperly relicd upon

Defendant's statements that Mr. Perkins was fired for

“hotching”’ a project called KC 135 SORAP. (App.5a).

In truth, Mr. Perkins successfully completed it, and to

Defendant Wecker’s satisfaction. Defendant Decker

misrepre¢ sented on the S&60B October 9, 2002

performance review form and its attachment that Mr.

Perkins “botched” the KC 135 SORAP project. Appl

App. at 194, duty 7, item 5. Regarding the KC 135

SORAP project, Decker states in an email:

I .

Yes Jimmie got in touch with Frank this

afternoon and worked out compromise. I

am please with the numbers and my planners

will follow thru on rest of studies and actions

Thank again.” (emphasis added). Applt. App.

at 217-19, at 250 (email dated October 2, 2002).

Due to his satisfaction regarding Mr. Perkins’

successful completion of it, it appears Decker fabricated

the story he attached to the October 9, 2002

Periormance Review &60B form that Mr. Perkins

somehow “botched” this KC 135 project. This evidence

was presented to the Court below and should have been

resolved in Mr. Perkins’ favor, and not construed

against him on page 6 of the District Court’s Order.

(App.15a).

Mr. Perkins has consistently asserted that

Decker’s accusation regarding his “botching” the KC-

135 SORAP project are unfounded. Applt App. at 178.

A genuine issue of material fact thus exists as to

whether Frank Perkins’ work was deficient with regard

to the KC-135 SORAP project, lessening the strength

of Defendants’ proffered reason under the second prong

of McDonnell Douglas and supporting an inference of

pretext. The Tenth Circuit should have viewed this

evidence in a light more favorable to Mr. Perkins, and

denied summary judgment.

2. The Tenth Circuit did not address the

suspicious email between Defendants

where they are planning to remove

Petitioner without due process, as

well as the misleading termination

letter

The Tenth Circuit failed to address the fact that

Defendants communicated a plan to terminate Mr.

Perkins before his performance review, and expressed

an interest in removing him without affording him due

process. Applt. App. at 195."” The email is suspect, as it

identifies an organized, preplanned agenda by Decker

to remove Mr. Perkins. Defendants’ proffered reason

for terminating Mr. Perkins due to alleged failure to

perform his duties is thus questionable. On November

7, 2002, Defendant Decker acted upon this plan, and

handed Mr. Perkins a termination letter with two

glaring misrepresentations. Applt. App. at 215. First,

the letter wrongly instructed Mr. Perkins that his

termination “may not be appealed to the Merit System

Protection Act,” (Applt. App. at 215), although the law

allowed him to do so. See 5 USC §7702(a); 29 CFR

$1614.302; 5 CFR §§1201.151-1201.157; Coffman v.

Glickman, 328 F.3d 619, 625-24 (10th Cir. 2008).

Secondly, the November 7, 2002 letter further

misdirected Mr. Perkins to “contest this action under

the Administrative Grievance system in AFI 36-1203 if

you so desire.” Applt. App. at 215, § 3. However, AF |

36-1203, an Air Force regulation, does not pertain to

removal of a probationary supervisor and in fact

specifically contains an exception to such, as the Court

below was made aware. Applt. App. at 117-18 (Court’s

Order citing the inapplicability of the regulation and

proof of “evidence that [Mr. Perkins] was actively

misled”), Applt. App. at 74-5, 79, and at 179, 415.

Defendant Decker knowingly misled Mr. Perkins

regarding his appeal rights.

As a general rule, the Due Process Clause

requires “some kind of a hearing prior to the discharge

Linda Thomas emailed Decker on September 27, 2002, and

suggested a manner of terminating Frank Perkins from his

position without affording him due process. Applt. App. at 195

The Court below did not address this communication, which,

coupled with the November 7, 2002 letter misleading Mr. Perkins

about his rights to appeal the adverse event, manifests pretext.

of an employee who has a constitutionally protected

property interest in his employment.” Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 542 (1985); see also 5

U.S.C. § 2302. The purpose of the pretermination

hearing is to serve as “a determination of whether

there are reasonable grounds to believe that the

charges against the employce are true and support the

proposed action.” Jd. at 545-46. The District Court

stated in its Order granting Summary Judgment that

Frank Perkins had suffered an “adverse” employment

action in being removed from his supervisory position.

(App.l4a). Mr. Perkins was not afforded a

pretermination hearing. The Tenth Circuit should have

viewed this evidence in Mr. Perkins’ favor as well, as it

strengthens the inference of pretext.

3. Defendant Decker had not conveyed

to Mr. Perkins any expectations of his

new duties as a supervisor, as

required under agency protocol, and

thus inappropriately punished Mr.

Perkins through the performance

review of October 9, 2002

Defendant Decker stuled in deposition that a

required CORE document defining Mr. Perkins’ duties

was not completed for purposes of holding a

performance review on October 9, 2002. Applt. App. at

231-35. The Tenth Circuit should have considered this

proof that Decker’s ad hoc review was thus improper.

Decker admitted that when conducting a performance

review, he was required to follow Air Force protocol,

and utilize a pre-drafted CORE personnel document

that outlined an employee’s duties. Applt. App. at 230-

235. He faltered in his deposition and mixed his words

regarding the fact Mr. Perkins had not been properly

given a set of performance duties under an appropriate

CORE document. Applt. App. at 232-35 (Decker stating

“tthe CORE document] did not become official for

Frank,” Applt. App. at 233, and that “I was wanting to

get Frank and I together to sign it,” Applt. App. at

235). Decker’s own testimony thus creates an issue of

material fact as to whether his evaluation of Mr.

Perkins was appropriately conducted with relevant

criteria, and proper job duty expectations.

4. Petitioner was_ prevented = from

promoting two African American

females, and chastised for disciplining

a white employee, demonstrating

further evidence of pretext for his

removal

Mr. Perkins has argued on the record that

management terminated him because he was

attempting to discipline a white employee that Linda

Thomas wanted to protect, and because he attempted

to promote two black employees. Defendants never

explained why they redrafted the selection criteria for

a position that Mr. Perkins filled with an African

American woman. Applt. App. at 184-85. Mr. Perkins

identified on the record below that his promotion of one

black female was set aside after the promotion

occurred. Applt. App. at 250. Furthermore, Linda

homas ordered Mr. Perkins to destroy documents he

had drafted regarding a rogue white employee he was

disciplining. Applt. App. at 176, at 201.

Mr. Perkins’ managerial style as a supervisor

was met with certain disapproval, and he has argued on

the record that the Defendants maintain a prejudiced

bias against African Americans and thus actively

sought to demote him. Applt.App. at 248. A genuine

issue of material fact thus exists as to whether

management was predisposed to prejudice, and the

Tenth Circuit should have viewed this evidence as

supporting proof of pretext for discrimination.

5. Defendant Decker utilized

inappropriate conduct criteria in his

performance evaluation of Mr.

Perkins, contrary to Air Force

protocol and contrary to regulatory

law

Conduct issues are not proper reasons for

removal from a supervisor position. Applt. App. at 179,

185-86, 192. Air Force Instruction 36-1001 at Section

4.7.2 states that a supervisor in probationary status

may only be demoted for issues related to performance

of his supervisory role, not for subjective issues of

conduct:

Return an employee to a nonsupervisory or

nonmanagerial position for failing to complete

probation only for reasons that relate

directly to the employee’s performance as a

supervisor or manager. This return is not an

adverse action. Process actions to demote or

separate for conduct or performance unrelated

to supervisory or managerial performance under

5 CFR Part 432 or 752. Applt. App. at 185, at

192. (Emphasis added).

This directive identifies a completely separate

disciplinary process for issues of conduct, found at 5

CFR Part 432 and 752. Decker knew or should have

known not to discipline Frank Perkins on conduct

issues in a performance evaluation, given his high-level

supervisory position and the fact he had demonstrated

his knowledge of regulatory law. Applt. App. at 54

(Declaration of Decker who cites to another section of

Title 5 CFR); Applt. App. at 142 (Memorandum given

by supervisors such as Decker, citing 5 CFR Section

315). Furthermore, Decker’s own superior, Charlotte

Corcoran, emailed him and told him not to use conduct

criteria in a performance evaluation, before he

delivered his November 7, 2002 removal letter to Mr.

Perkins. App.44a.

At the performance review in question on

October 9, 2002, Decker acted contrary to proper

protocol: he criticized Mr. Perkins in an 860B Form

(Appit. App. at 108-09) for subjective conduct matters

not identified in a CORE document, and not related to

performance (Applt. App. at 179, 914). Decker’s

biased, personal criticism of Mr. Perkins’ conduct

should have been addressed in a disciplinary hearing

and not in a performance review, according to Air

Force Instruction 36-1001, in effect during the relevant

events at issue. Applt. App. at 177, 185, 190, 191, and

192 at § 4.7.2.

A Court should view evidence and all reasonable

inferences in favor of the non-moving party. /eeeves,

supra at 150. The District Court’s sidebar comment in

its footnote 4 regarding Mr. Perkins’ aptitude as a

supervisor (Applt. App. at 260), repeated by the Tenth

Circuit, shows that the Courts below failed to consider

Mr. Perkins’ evidence (Applt. App. at 85, at 186-87, at

197-200)'' that he was satisfactorily performing his job,

in a light more favorable to him, in violation of Fed. R.

Civ. Proc. Rule 56. Furthermore, the Tenth Circuit

failed to consider the remaining evidence that

Defendants’ proffered explanation was pretextual, and

it inappropriately weighed evidence in favor of

Defendants. As such, the Tenth Circuit should have

viewed the record as whole, and determined that

genuine issues of material fact remain. This Court

Should set aside summary judgment and remand the

matter for a trial on the merits.

CONCLUSION

For the foreguing reasons, a writ of certiorari

should he granted.

Respectfully submitted,

ROBERT MITCHELL

Counsel of Record

ALEXANDER L. BEDNAR

Bednar Law Firm

204 North Robinson,

Suite 1000

Oklahoma City, OK 73102

Telephone: (405) 609-6000

“ The record shows that Mr. Perkins had numerous important

duties over the past several decades, and that the Air Force sent

Mr. Perkins to remote areas across the United States to negotiate

large contracts on its behalf. Appit. App. at 58-64. The Air Force’s

trust in Mr. Perkins’ communication skills in allowing him to

negotiate multi-million dollar contracts for years contradicts

Decker’s performance review, and the Tenth Circuit should have

viewed this evidence in Mr. Perkins’ favor.

(any footnote(s) trail end of each document

No. 06-6321

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

FRANKLIN R. PERKINS,

Plaintiff-Appellant,

MICHAEL W. WYNNE, * United States of America,

ex rel., Secretary, Department of the Air Force;

ALLEN B. DECKER, individually and in his official

capacity,

Defendants-Appellees.

August 15, 2007, Filed

NOTICE: PLEASE REFER TO FEDERAL RULES

OF APPELLATE PROCEDURE RULE 32.1

GOVERNING THE CITATION TO UNPUBLISHED

OPINIONS.

COUNSEL: For FRANKLIN’ R. PERKINS,

Plaintiff-Appellant: Robert L. Mitchell, Mitchell Foley

& Jencks, Oklahoma City, OK; Alexander LL. Bednar,

Oklahoma City, OK.

For MICHAEL W. WYNNE, United States of

America, ex rel., Secretary, Department of the Air

Force, ALLEN B. DECKER, individually and in his

official capacity, Defendants-Appellees: Robert A.

Bradford, Asst. U.S. Attorney, Judy A. Copeland,

Office of the United States Attorney,Oklahoma City,

OK.

JUDGES: Before HARTZ, EBEL, and

TYMKOVICH, Circuit Judges.

OPINION BY: David M. Ebel

OPINION

ORDER AND JUDGMENT **

Plaintiff Franklin R. Perkins appeals from the district

court's summary judgment order that he failed to

present sufficient evidence to create a genuine issue as

to whether the defendant's explanation for his demotion

was a pretext for discrimination. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

On June 30, 2002, Mr. Perkins, a civilian employee of

the United States Department of the Air Force (Air

Force), was promoted to supervisory industrial

engineering technician. The promotion was subject to

his successful completion of a one-year probationary

period. Not long after the promotion, his relationship

with his direct supervisor and other colleagues became

strained. In October 2002, his direct supervisor, Allen

Decker, conducted a progress review which indicated

that he was performing poorly; however, Mr. Perkins

refused to discuss the review and stated that he no

longer wanted to work for Mr. Decker. In November

2002, Mr. Perkins was notified in writing that he had

not. passed the probationary period and would be

returned to his former position as a non-supervisory

industrial engineering technician.

In his suit against the Air Force and Mr. Decker, Mr.

Perkins claimed violations of 42 U.S.C. § 2000e ("Title

VII"), 42 U.S.C. § 1981, and the Fifth and Fourteenth

Amendments to the United States Constitution. The

district court dismissed all of the claims against Mr.

Decker and the § 1981 and constitutional claims against

the Air Force. Mr. Perkins dves not challenge this

order on appeal.

The Air Force moved for summary judgment on the

grounds that Mr. Perkins failed to timely exhaust his

administrative remedies. In denying the motion, the

district court found

there is a genuine issue of material fact as to

whether equitable tolling should apply to extend

the forty-five (45) day time limit for [Mr.

Perkins] to contact an EEO counselor.

Specifically, the Court finds that [Mr. Perkins]

has put forth evidence that he was actively

misled.Aplt. App. at 118.

The district court, however, did grant the Air Force's

second motion for summary judgment, holding that Mr.

Perkins failed to meet his burden of demonstrating that

the Air Force's explanation for his demotion was

pretextual. This appeal followed.

"We review the district court's grant of summary

judgment de novo, applying the same legal standard

used by the district court." Simms v. Okla. ex rel. Dep't

of Mental Health & Substance Abuse Servs., 165 F.3d

1321, 1326 (10th Cir. 1999). Summary judgment is

appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R.

Civ. P. 56(c). The evidence and reasonable inferences

drawn therefrom are viewed in the light most favorable

to the nonmoving party. Simms, 165 F.3d at 1326.

Il]

In cases such as this where a Title V11 plaintiff relies on

indirect evidence to prove discrimination, the claim is

analyzed under the burden-shifting framework set

forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Young v.

Dillon Cos., Inc., 468 F.3d 1243, 1249 (10th Cir. 2006).

Under McDonnell Douglas, the plaintiff carries

the initial burden of establishing a prima facie

ease of racial discrimination. Once the plaintiff

establishes a prima facie case, the burden shifts

to the employer to articulate some legitimate,

non-discriminatory reason for the adverse

employment action. If the defendant makes this

showing, the burden then shifts back to the

plaintiff to show that the defendant's proffered

justification is pretextual./d. (internal citations

omitted).

Applying this framework, the district court assumed

for purposes of summary judgment that Mr. Perkins

"established a prima facie case of discriminatory

discharge," Aplt. App. at 260, and further found that the

Air Force "met its burden to produce a legitimate, non-

discriminatory reason for terminating |Mr. Perkins's]

employment." Jd. Among other things, it noted the Air

Foree's evidence of Mr. Perkins's "uncooperative

demeanor, poor communication skills, and

condescending and disrespectful manner of speaking to

co-workers," id., as well as the inappropriate reaction to

his review, defensive response to negative feedback,

unsatisfactory performance on a repair plan, and lack of

skills and aptitude to be a supervisor.

The district court then turned to whether Mr. Perkins

met his burden of demonstrating a genuine issue of

material fact as to whether the Air Force's explanation

for his demotion was a pretext for discrimination. In

this regard, Mr. Perkins advaneed four theories: (1) he

was replaced by a non-African-American; (2) another

African-American employee was removed as a

supervisor at or about the same time he was; (3) a white

female worker was chosen over a female African-

American who he sponsored for a promotion; and (4) his

supervisor, Mr. Decker, failed to comply with the

procedure governing situations where an employee

does not pass probation.

As to each, the court found that the alleged action did

not establish pretext because: (1) Mr. Perkins's

replacement was a Hispanic, who is also a member of a

protected class; (2) he conceded that his supervisor, Mr.

Decker, "took no known action to remove [the other

employee] from his supervisury position," id. at 184; (3)

his suggested candidate for the promotion was not

qualified and he had no evidence that the successful

candidate was also unqualified; and (4) he admitted that

the letter regarding his failure to pass probation

‘appears to comply with the [procedures]." Jd. at 186.

Mr. Perkins first argues that the Air Force did not

meet its burden of establishing a facially

nondiscriminatory reason for his demotion. We

disagree. At this stage of the McDonnell Douglas

analysis, the Air Force was required

merely to articulate through some proof a

facially nondiscriminatory reason for the

termination; the defendant does not at this stage

of the proceedings need to litigate the merits of

the reasoning, nor does it need to prove that the

reason relied upon was bona fide, nor does it

need to prove that the reasoning was applied in a

nondiscriminatory fashion.EEOC v. Flasher Co.,

Inc., 986 F.2d 1312, 1316 (10th Cir. 1992).

The district court correctly applied the McDonnell

Douglas paradigm at this stage of the analysis, and its

finding that the Air Force met its burden of coming

forward with proof of a facially nondiscriminatory

reason for demoting Mr. Perkins is supported by the

record.

Having met its burden to articulate a legitimate, non-

discriminatory reason for its adverse employment

action, the court correctly held that the burden shifted

back to Mr. Perkins to show that the Air Force's stated

reasons were a pretext for unlawful discrimination. "To

show that the defendant's proffered race-neutral

reasons were actually a pretext for discrimination, this

Court has held that the plaintiff must demonstrate that

the defendant's proffered race-neutral reasons were so

incoherent, weak, inconsistent, or contradictory that a

rational factfinder could conclude the reasons were

unworthy of belief." Young, 468 F.3d at 1250 (internal

quotation marks and _ brackets omitted). Stated

otherwise, “[pJretext requires a showing that the

tendered reason for the employment decision was not

the genuine motivating reason, but rather was a

disingenuous or sham reason." Reynolds v. Sch. Dist.

No. 1, 69 F.3d 1523, 1535 (10th Cir. 1995).

The relevant inquiry is not whether the

defendant's proffered reasons were wise, fair or

correct, but whether it honestly believed those

reasons and acted in good faith upon those

belicfs. A plaintiff cannot avoid summary

judgment with an unadorned claim that a jury

might not believe defendant's explanation for his

termination; he must point to evidence

suggesting that defendant itself did not honestly

believe that explanation.Raum v. U.S. Olympic

Comm., 389 F.3d 1130, 1138 (0th Cir. 2004)

(internal citation, quotation marks, and brackets

omitted).

Although Mr. Perkins disagrees with the Air Force's

assessment of his job performance and personality, we

agree with the district court that he failed to come

forward with evidence sufficient to raise a genuine

issue of material fact concerning pretext. As to his

argument that the "self-serving," Aplt. Op. Br. at 13,

n.3, affidavits and declarations supplied by the Air

Force were “suspicious,” id., because “they appear to

have been drafted by the same person, using the same

language," id. n.3, he failed to raise this objection in the

district court and this challenge cannot be raised for the

first time on appeal. "By failing to object below, any

formal defects in tie declaration are deemed to be

waived." Thomas v. U.S. Dep't of Energy, 719 F.2d 342,

344-45, n.3 (10th Cir. 1983).

I‘inally, we disagree with Mr. Perkins's argument that

the district court's finding in its prior order that he "put

forth evidence that he was actively misled" Aplt. App.

at 118, regarding his appeal rights is evidence of

discrimination. Setting aside the fact that Mr. Perkins

himself argues that this demonstrates an “active[|]

conspir{acy] to remove him and deny him due process,"

Aplt. Op. Br. at 11, - not racial discrimination - we have

held that alleged irregularitics that occur following

adverse action are irrelevant to prove pretext.

Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1308, 1315

(10th Cir. 2005).

The judgment of the district court is AFFIRMED.

Entered for the Court

David M. Ebel

Circuit Judge

Footnotes

*Michael W. Wynne is substituted for James G. Roche

as defendant-appellee pursuant to Fed. R. App. P.

43(c)(2).

** After examining the briefs and appellate record, this

panel has determined unanimously that oral argument

would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). The case is therefore ordered submitted

without oral argument. This order and judgment is not

binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. It may be

cited, however, for its persuasive value consistent with

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

10a

Case No. CIV-04-715-M

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

FRANKLIN R. PERKINS,

Plaintiff,

UNITED STATES OF AMERICA, ex rel., DR.

JAMES G. ROCHE, Secretary, Department of the Air

Force,

Defendant.

September 6, 2006, Decided

COUNSEL: For Franklin R Perkins, Plaintiff:Robert

L Mitchell, Oklahoma City, OK.

For James G Roche, USA ex rel, Secretary,

Department of the Air Force, Defendant: Judy A

Copeland, Robert A Bradford, US Attorney's Office-

OKC, Oklahoma City, OK.

For Allen B Decker, individually and in his official

capacity, Defendant: Judy A Copeland, US Attorney's

Office-OKC, Oklahoma City, OK.

JUDGES: VICKI MILES-LaGRANGE, UNITED

STATES DISTRICT JUDGE.

OPINION BY: VICKI MILES-LaGRANGE

OPINION

lla

ORDER

Before the Court is "Defendant's Motion for

Summary Judgment” [docket no. 71], filed July 3, 2006.

On August 8, 2006, Plaintiff filed his response and on

August 28, 2006, Defendant filed its reply. The motion

has been fully briefed and is now ripe for adjudication.

IINTRODUCTION !

Plaintiff Franklin R. Perkins, a civilian employee of

the United States Department of the Air Force ("Air

Force"), was promoted effective June 30, 2002, to

supervisory industrial engineering technician subject to

Plaintiffs successful completion of a_ probationary

period of one year. Plaintiff's new immediate supervisor

was Allen Decker ("Decker"), branch chief. Plaintiff's

relationship with Decker and others including Linda

Thomas, employee relations specialist, was difficult, and

this difficulty led Mr. Decker to give Plaintiff low

marks on his performance evaluation in October of

2002, which, in turn, 7xter alia led to Plaintiff's return

to his former position as an industrial engineering

technician in November of 2002. Plaintiff asserts that

the low evaluation and the demotion were

discriminatory in nature and that he immediately

notified Mr. Decker's supervisors of his objection to

both.

Plaintiff brings this employment discrimination

action pursuant to Title VII of the Civil Rights Act of

1964. * Defendant moves for summary judgment. *

12a

Il. SUMMARY JUDGMENT STANDARD

Summary judgment is proper "if the record shows

that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a

matter of law" that is "where the record taken as a

whole could not lead a rational trier of fact to find for

the non-moving party." 19 Solid Waste Dep't Mechs. v.

City of Albuquerque, 156 F.3d 1068, 1071-72 (10th Cir.

1998) (internal citations and quotations omitted). When

deciding whether summary judgment is appropriate,

the Court views the evidence in the light most

favorable to the nonmoving party and draws all

reasonable inferences in their favor. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,

91 L. Ed. 2d 202; Simms v. Oklahoma ex rel. Dep't of

Mental Health, 165 F.3d 1821, 1326 (10th Cir. 1999).

At the summary judgment stage the Court's

function is not to weigh the evidence, but to determine

whether there is a genuine issue of material fact for

trial. Willis v. Midland Risk Ins. Co., 42 F.3d 607, 611

(10th Cir. 1994). "An issue is genuine if, [viewing the

full record] there is sufficient evidence on each side so

that a rational trier of fact could resolve the issue either

way." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670

(10th Cir. 1998) (citing Anderson, 477 U.S. at 248).""The

mere existence of a scintilla of evidence in support of

the [Plaintiff]'s position is insufficient to create a

dispute of fact that is 'genuine'... ." Lawmaster v.

Ward, 125 F.3d 1341, 1347 (10th Cir. 1997). "An issue of

fact is ‘material’ if under the substantive law it is

essential to the proper disposition of the claim." See

Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at

248). Where the undisputed facts establish that a

plaintiff cannot prove an essential element of a cause of

13a

action, defendant is entitled to judgment on that cause

of action. Celotex Corp. v. Catrett, 477 U.S. 317, 822, 106

S. Ct. 2548, 91 L. Ed. 2d 265 (1986), cited in Rocking

Chair Enters., LLC v. Macerich SCG Ltd. P'ship, 407

F. Supp. 2d 1268 (W.D. Okla. 2005).

III. DISCUSSION

Title VII prohibits an employer from discriminating

against an employee on the basis of, among other

things, the employee's race, color, national origin,

and/or religion. See 42 U.S.C. § 2000e-2(a). A plaintiff

alleging discrimination may _ prove _ intentional

discrimination through either direct evidence of

discrimination or indirect evidence of discrimination.

See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d

1220, 1225 (10th Cir. 2000). Where, as here, there is no

direct evidence of discrimination, the court applies the

three-step, burden shifting analysis set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.

Ct. 1817, 36 L. Ed. 2d 668 (1973). See Kendrick, 220

F.3d at 1225.

Under the McDonnell Douglas framework, the

plaintiff must carry the initial burden under the

statute of establishing a prima facie case of ||

discrimination. Once the plaintiff has established

a prima facie case, the burden then must shift to

the employer to articulate some legitimate,

nondiscriminatory reason for its employment

action. If the defendant makes this showing, the

plaintiff must then show that the defendant's

justification is pretextual.

14a

Kendrick, 220 F.3d at 1226 (internal quotations and

citations omitted).

To establish a prima facie case of discriminatory

discharge, a plaintiff must show that: (1) he belongs to

a protected class; (2) he suffered an adverse

employment action; and (8) he had been satisfactorily

performing his job. Watts v. City of Norman, 270 F.3d

1288, 1292 (10th Cir. 2001). For purposes of summary

judgment, Defendant does not dispute that Plaintiff, an

African American, belongs to a _ protected class.

Defendant also does not dispute that Plaintiff was

removed from his position as supervisor or that this

removal constituted an adverse employment action.

Defendant, however, does dispute the remaining

element of Plaintiff's prima facie case. Nevertheless, for

the purposes of this order, the Court finds analysis of

the third element unnecessary and assumes that

Plaintiff has established a prima facie case of

discriminatory discharge. 4

Once Plaintiff has established a prima facie case of

discrimination, the burden shifts to Defendant to

articulate a legitimate, non-discriminatory reason for

terminating Plaintiffs employment. Texas Dept. of

Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct.

1089, 67 L. Ed. 2d 207 (1981); Furnco Constr. Corp. v.

Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 57 L. Ed. 2d

957 (1978).

Defendant asserts Plaintiff was discharged because

of his uncooperative demeanor, poor communication

skills, and condescending and disrespectful manner of

speaking to co-workers. Defendant further asserts that

Plaintiffs reaction to the progress review was

inappropriate, that he conducted himself poorly in

15a

meetings in that he was rude and disruptive and

displayed an unwillingness to follow advice, and that

Plaintiff was overly defensive in response to negative

feedback. Finally, Defendant asserts Plaintiff's

performance on the KC-135 Source of Repair Plan

("SORAP") project was unsatisfactory and that Plaintiff

lacked the necessary skills and aptitude for the

supervisory position. In light of the foregoing, the

Court finds Defendant has met its burden to produce a

legitimate, non-discriminatory reason for terminating

Plaintiff's employment.

Because Defendant has provided a legitimate, non-

discriminatory reason for discharging Plaintiff, the

burden shifts to Plaintiff to show that there is a genuine

issue of material fact as to whether Defendant's

explanation is pretextual. Pretext can be established if

the Plaintiff shows either "that a discriminatory reason

more likely motivated the employer or . . . that the

employer's proffered explanation is unworthy of

credence." Texas Dep't of Cmty. Affairs, 450 U.S. at 256

(citation omitted). Also, "[a] plaintiff may show pretext

by demonstrating ‘such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action

that a reasonable factfinder could rationally find them

unworthy of credence and hence infer that the

employer did not act for the asserted non-

discriminatory reasons." Anderson v. Coors Brewing

Co., 181 F.3d 1171, 1179 (10th Cir. 1999)(quoting

Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th

Cir.1997)). "[A] plaintiffs prima facie case, combined

with sufficient evidence to find that the employer's

asserted justification is false, may permit the trier of

fact to conclude that the employer’ unlawfully

l6a

discriminated." Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 148, 120 S. Ct. 2097, 147 L. Ed. 2d 105

(2000).

To establish pretext, Plaintiff relies on the fact that

he was replaced by a non-black. The Court finds that

this does not establish pretext because Plaintiff was

replaced by Lonnie Valencia who, as a Hispanic male,

also belongs to a protected class. Plaintiff also relies on

the fact that he and Bostick were the only African

American employees under Decker's supervision and

that "both were removed during 2002." The Court finds

that this does not establish pretext because, according

to Plaintiff, "Decker took no known action to remove

Bostick from his supervisory position." Plaintiff's

response at 12. Additionally, Plaintiff asserts that he

and another supervisor, Michael Clonce, selected people

for a GS-0895-11 position for which GS-1152-09's were

believed to qualify. Plaintiff selected an African

American female and Clonce selecled a while female.

According to Plaintiff, Decker, Corcoran and another

employee determined that GS-1152-09's did not qualify

for the position. Subsequently, Plaintiff's selection was

disqualified and denied her promotion because of her

GS-1152-09 status while Clonce's white employee was

retained. The Court finds that this also fails to establish

pretext because Plaintiff does not allege or provide

evidence to show that Clonce's selection was also a GS-

1152-09 and thus disqualified. Finally, Plaintiff asserts

that Decker did not comply with the mandatory

procedure governing situations where an employee fails

to complete the probationary period and directs the

Court to paragraph 4.7 of the Air Force Instruction 36-

1001. The Court finds that this allegation also fails to

establish pretext because Plaintiff admits that the

17a

letter from Decker removing Plaintiff from his

supervisory position "appears to comply with the

requirements [of paragraph 4.7]."

The Court has carefully reviewed the parties' briefs

and evidentiary submissions. Viewing the evidence in

the light most favorable to Plaintiff and viewing all

reasonable inferences in Plaintiff's favor, as the Court

must when addressing a motion for summary judgment,

the Court finds Plaintiff has not presented sufficient

evidence to create a genuine issue of material fact as to

whether Defendant's explanation is _ pretextual.

Specifically, Plaintiff admits that he completed the KC-

185 Source Repair Plan after the deadline had expired.

Plaintiff submitted emails he exchanged with Lary

Mullinax, a fellow employee, and Linda Thomas which

also demonstrate the difficulty he was having

communicating with fellow employees. Additionally,

Plaintiff admits that he did not hear Decker use any

specific racial terms. ‘The Court finds that Plaintiff has

failed to show any inconsistencies or contradictions in

Defendant's proffered reason and that the evidence

overwhelmingly supports Defendant's proffered reason,

and, thus, there is no genuine issue of material fact to

support Plaintiff's claim.

IV. CONCLUSION

For the reasons set forth in detail above, the Court

GRANTS Defendant's Motion for Summary Judgment

[docket no. 71].

IT IS SO ORDERED this 6th day of September,

2006.

VICKI MILES-LaGRANGE

\Sa

UNITED STATES DISTRICT JUDGE

Footnotes

1 The following facts are described in the light most

favorable to Plaintiff. Immaterial facts or factual

averments not supported by the record are omitted.

2 Plaintiffs § 1981, Fifth Amendment, and Fourteenth

Amendment claims were dismissed by this Court's

February 16, 2005 Order.

6 Defendant did not seek leave of Court as required by

Local Civil Rule 56.1 to file the instant motion, which is

Defendant's second motion for summary judgment.

While the Court does not condone Defendant's failure

to seek leave of Court, it finds that it is proper to

consider the instant motion in the interest of judicial

economy.

4 ‘The Court, however, would note that the evidence

submitted does indicate that Plaintiff was not

satis‘actorily performing his job.

19a

Date: 3/31/2006

Case No. CIV-04-715-M

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

FRANKLIN R. PERKINS,

Plaintiff,

UNITED STATES OF AMERICA, ex rel., DR.

JAMES G. ROCHE, Secretary, Department of the Air

Force,

Defendant.

ORDER

Before the Court is “Defendant Secretary of

the Department of the Air Force’s Motion for Summary

Judgment” [docket no. 33], filed July 7, 2005. On

December 12, 2005, Plaintiff filed his response. The

motion has been fully briefed and is now ripe for

adjudication.

I INTRODUCTION'

Plaintiff Franklin R. Perkins, a_ civilian

employee of the United states Department of the Air

Force (“Air Force”), was promoted effective June 30,

2002, to supervisory industrial engineering technician.

Plaintiffs new immediate supervisor was Allen Decker,

branch chief. Plaintiffs relationship witi: Mr. Decker

was difficult, and this difficulty led Mr. Decker to give

Plaintiff low marks on his performance evaluation in

20a

October of 2002, which, in turn, led to Plaintiffs return

to his former position as an industrial engineering

technician in November of 2002. Plaintiff asserts that

the low evaluation and the demotion were

discriminatory in nature and that he immediately

notified Mr. Decker’s supervisors of his objection to

both.

In January of 2003, Plaintiff contacted an Equal

Employment Opportunity Commission (“EEOC”)

counselor on another matter and was informed thot he

had forty-five (45) days to initiate contact wi. an

EEOC counselor after any allegedly discriminatory

event or adverse employment action. Plaintiff asserts

that this is when he first learned of the forty-five (45)

day requirement despite the fact that posters setting

forth the requirement were posted in the break room,

and that Plaintiff had previously attended an EEOC

training block.

Plaintiff contacted an EEOC counselor

regarding matters of concern in the instant action in

April of 2003. On May 14, 2008, Plaintiff filed an

informal EEOC complaint, and on July 21, 2008,

Plaintiff filed a formal EEOC complaint citing the

October, 2002 evaluation and the November, 2002

demotion. On August 13, 2003, Defendant issued its

final decision dismissing Plaintiff's complaint as

untimely, and on March 12, 2004, the EEOC affirmed

Defendant’s decision. Plaintiff brings this employment

discrimination action pursuant to Title VII of the Civil

Rights Act of 1964.2 Defendant moves for summary

judgment on the ground that Perkins failed to properly

exhaust his administrative remedies under 29 C.F.R. §

1614.105(a)(1).

Zia

I]. SUMMARY JUDGMENT STANDARD

Summary judgment is proper “if the record

shows that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law” that is “where the record taken as a

whole could not lead a rational trier of fact to find for

the non-moving party,” 19 Solid Waste Dept Mechanics

v. City of Albequerque, 156 F.3d 1068, 1071-72 (10th

Cir. 1998) (internal citations and quotations omitted).

When deciding whether summary judgment is

appropriate, the Court views the evidence in the light

most favorable to the nonmoving party and draws all

reasonable inferences in their favor. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255; Simms v.

Oklahoma ex rel. Dept of Mental Health, 165 F.3d 1321,

1326 (10th Cir. 1999). At the summary judgment stage

the Court’s function is not to weigh the evidence, but to

determine whether there is a genuine issue of material

fact for trial. Willis v. Midland Risk Ins. Co., 42 F.3d

607, 611 (10th Cir. 1994). “An issue is genuine if,

[viewing the full record| there is sufficient evidence on

each side so that a rational trier of fact could resolve

the issue either way.” Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson, 477

U.S. at 248). “The mere existence of a scintilla of

evidence in support of the [Plaintiff]’s position is

insufficient to create a dispute of fact that is genuine’ ..

.. Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir.

1997). “An issue of fact is ‘material’ if under the

substantive law it is essential to the proper disposition

of the claim.” See Adler, 144 F.3d at 670 (citing

Anderson, 477 U.S. at 248). Where the undisputed facts

establish that a plaintiff cannot prove an essential

element of a cause of action, defendant is entitled to

22a

judgment on that cause of action. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986), cited in Rocking Chair

Enters., L.L. C. v. Macerich SCG Ltd. P’ship, 407 F.

Supp. 2d 1263 (W.D. Okla. 2005).

III. DISCUSSION

Defendant contends that Plaintiffs Title VII

claim must be dismissed for failure to exhaust

administrative remedies. Specifically, Defendant

asserts that Plaintiff failed to initiate contact with an

EEOC counselor within forty-five (45) days of the act

giving rise to his claim. Plaintiff asserts that the forty-

five (45) day time limit should be extended under the

facts of this case.

The Tenth Circuit has held that “exhaustion of

administrative remedies is a jurisdictional prerequisite

to suit under Title VII.” Sizova v. Nat'l Inst. of

Standards & Tech., 282 F.3d 1320, 1325 (10th Cir. 2002).

Although failure to file an administrative charge prior

to filing suit in federal court is a jurisdictional bar,

“failure to timely file an administrative charge ... is not

jurisdictional ...... Id. Thus, a plaintiffs untimely filing

of an administrative charge is not an absolute bar to

judicial relief, provided Uthat the plaintiff demonstrates

that the expired time should be extended.

Pursuant to EEOC regulations, Plaintiffs

complaint will be dismissed as untimely unless he

initiated contact with an EEOC counselor within forty-

five (45) days of the alleged discriminatory act. 29

C.F.R. § 1614.105(a)(1).. Two methods, one mandatory

and one discretionary, exist for extending the forty-five

(45) day time limit to initiate contact with an EEO

counselor. EEO regulations mandate that the forty-five

23a

(45) day time limit shall be extended

when the individual shows [I] that he or she was

not notified of the time limits and was not

otherwise aware of them, [2] that he or she did

not know and reasonably should not have

known that the discriminatory matter or

personnel action occurred, [3] that despite due

diligence he or she was_ prevented by

circumstances beyond his or her control from

contacting the counselor within the time limits,

or [4] for other reasons considered sufficient by

the agency or the Commission.

29 C.F.R. § 1614.105(a)(2).* The EEO regulations also

provide for a discretionary extension of the forty-five

(45) day time limit under the doctrine of equitable

tolling. 29 C.F.R. § 1614.604(c). In the case at bar,

Plaintiff alleges that he was discriminated against on

two occasions: (1) on October ¥9, 2002, when he recieved

a poor performance evaluation, and (2) on November 7,

2002, when his temporary promotion was rescinded.

Plaintiff admits that he first contacted an EEO

counselor on April 11, 2003, well after the expiration of

the forty-five (45) day time limit prescribed by §

1614.105(a)(1). He argues, however, that the forty-five

(45) day time limit should be extended because (1) he

was unaware of the time limitation; (2) he did not know

discriminatory acts had occurred because he did not

know they were discriminatory in nature until several

months after they occurred; and (3) there are “other

sufficient reasons.” Plaintiff also asserts that the

doctrine of equitable tolling should apply because he

was erroneously informed of his right to appeal the

allegedly discriminatory acts.

24a

A. Mandatory Extension of the Time Limit

Plaintiff asserts that he was not aware of the

forty-five (45) day time limit and, consequently, falls

within the first mandatory exception. Defendant

asserts that posters setting forth the requirement to

contact an EEOC counselor within forty-five (45) days

of a personnel action of concern were posted in

Plaintiff's work area and in the break rooms in his

building. In his affidavit Plaintiff denies that posters

advising of the forth-five (45) day time limit were

posted in his immediate work area but admits that such

posters were posted in the break room.’ Defendant also

asserts that Plaintiff completed EEOC training in 1998.

Plaintiff admits that he received EEOC training but

states that it was only introductory in nature and did

not provide detailed descriptions of the requirements.

Defendant further asserts that Plaintiff knew of the

forty-five (45) day time limit because, on January 29,

2003, Plaintiff signed an Election for Alternate Dispute

Resolution in another case which included the following

statement:

This is to certify that I have been counseled

concerning my rignts for presenting allegations

of prohibited discrimination with an EEO

Counselor. This includes the fact that I have

specifically been told of the 45-calendar [sic] time

frame for raising an allegation of prohibited

discrimination with a Counselor.

Defendant’s Exhibit 11 Attached to its Motion for

Summary Judgment. Plaintiff admits that he met with

an EEO counselor and was advised of the forty-five (45)

day time limit on January 29, 2003. Having carefully

25a

reviewed the parties’ submissions, and viewing the

evidence in the light most favorable to Plaintiff, the

Court finds that the undisputed facts establish that

posters setting forth the forty-five (45) day

requirement for contacting an EEO counselor were

posted in the break room and that Plaintiff was aware

of the forty-five (45) day requirement as of January 29,

2003 when he signed the Election of Alternate Dispute

Resolution which set forth the requirement. The Court

further finds that Plaintiff did not contact an EEO

counselor concerning the alleged discrimination that is

the subject of the instant action until April, 2003, at

least sixty (60) days after January 29, 2003, and more

than 120 days after the latest allegedly discriminatory

act.

Accordingly, the Court finds that there is no

genuine issuc of material fact as to whether the first

mandatory exception should apply. Specifically, the

Court finds that the undisputed facts, taken as a whole,

could not lead a rational trier of fact to conclude that as

of January 23, 2003, Plaintiff did not know about the

forty-five (45) day requirement, or that Plaintiff

contacted an EEO counselor within forty-five (45) days

of acquiring this knowledge.

Plaintiff asserts that he was not aware of the

discriminatory nature of the evaluation and demotion

until months after they occurred, and, thus, the second

mandatory exception applies. The Tenth Circuit has

held that in regard to the accrual of a discrimination

claim, “ [wle may presume that many facts will come to

light after the date of [a disciplinary action] . . ., and

indeed one purpose of a charge and a complaint is to

initiate the process of uncovering them,

{nevertheless, a plaintiff is] on notice at the moment [of

26a

the personnel action] to inquire whether there was [a]

discriminatory motive.” Hulsey v. Kmart, Inc., 43 F.3d

555, 558 (10th Cir. 1994) (quoting Olson v. Mobil Oil

Corp., 904 I°.2d 198, 202-08 (4th Cir. 1990)). “{I]t is

knowledge of the adverse employment decision itself

that triggers the running of the statute of limitations.”

Id. at 559 (citing Hamilton v. Ist Source Bank, 928 F.2d

86, 88-89 (4th Cir. 1990) (“to the extent that notice

enters the analysis, it is notice of the employer's

actions, not the notice of a discriminatory effect or

motivation, that establishes the commencement. of the

pertinent filing period.”)).

Having carefully reviewed the _ parties’

submissions, and viewing the evidence in the light

most favorable to Plaintiff, the Court finds that there

is no genuine issue of material fact as to whether the

second mandatory exception should apply.

Specifically, the Court finds that the undisputed

facts show that the acts which Plaintiff allezes were

discriminatory occurred in October and November of

2002 and that, based on Hulsey, whether Plaintiff

was aware of their discriminatory nature or not is of

no consequence.

Plaintiff asserts that the fourth mandatory

exception to the forty-five (45) day time limit applies

in this case. However, the Court finds that Plaintiff

has failed to put forth any evidence or argument

regarding any “other reasons considered sufficient

by the agency or the Commission.” In fact, it is

undisputed that both the agency and the EEOC have

already determined that the fortyfive (45) day

requirement should not be extended in the instant

matter. See Defendant’s Exhibit 6 Attached to its

27a

Motion for Summary Judgment.

Accordingly, having carefully reviewed the

parties’ submissions, the Court finds that there is no

genuine issue of material fact as to whether the

fourth mandatory exception applies. Specifically, the

Court fords that the undisputed facts, taken as a

whole, could not lead a rational trier of fact to find

that there are “other reasons” the agency or the

EEOC would have considered sufficient to extend

the forty-five (45) day time limit in this matter.

Accordingly, the Court finds that no mandatory

extension of time applies in the case at bar.

B. Equitable ‘Tolling

The United States Supreme Court has

advised federal courts to apply equitable doctrines,

such as equitable tolling, sparingly. Nat'l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

In the Tenth Circuit, “time limits contained in Title

VII will be tolled only where the circumstances of

the case rise to a level of ‘active deception’ sufficient

to invoke the powers of equity. For instancc ...

[where] a plaintiff is ‘actively misled,’ or “has in some

extraordinary way been prevented from asserting

his or her rights.’* Martinex v. Orr, 738 F.2d 1107,

1110 (10th Cir. 1984) (citations omitted) (quoting

Wilkerson v. Siegfried Ins. Agency, Inc., 683 F.2d

344, 348 (10th Cir. 1982)).

In the case at bar, Defendant asserts that

there is no basis for application of the doctrine of

equitable tolling. Although Defendant admits it did

28a

not inform Plaintiff of his EEOC rights in its

November, 2002 letter, Defendant contends that it

was not required to do so and that, as such, the letter

is not evidence of active deception on its part.

Plaintiff asserts that the letter is evidence that

Defendant actively misled him. The letter provides,

in pertinent part: “This is not an adverse action and

may not be appealed to the Merit System Protect

[A]ct. You may contest this action under the

Administrative Grievance [S]ystem in AFI 36-1203 if

you so desire.” Defendant’s Exhibit 2, Par. 2

Attached to its Motion for Summary Judgment.

Plaintiff further asserts that the Administrative

Grievance System instruction to which he was

directed does not even apply to Defendant’s decision

to remove Plaintiff from his supervisory position for

failing to satisfactorily complete the probationary

period. See Plaintiffs Exhibit A Attached to his

Response to Defendant’s Motion for Summary

Judgment. Subsection E of AFI 36-1203 provides, in

pertinent part, that “[aJny employment matter may

be grieved under this procedure except for ... [tJhe

return of an employee serving a probationary period

as a supervisor or manager to a non-supervisory or

nonmanagerial position for failure to satisfactorily

complete the probationary period.” Plaintiffs

Exhibit A Attached to his Response to Defendant’s

Motion for Summary Judgment.

Having carefully considered the parties’

submissions, and viewing the evidence in the light

most favorable to Plaintiff, the Court finds that there

is a genuine issue of material fact as to whether

equitable tolling should apply to extend the forty-

five (45) day time limit for Plaintiff to contact an

29a

I; EO counselor. Specifically, the Court finds that

Plaintiff has put forth evidence that he was actively

misled. As such, the Court finds that Defendant is

not entitled to summary judgment on the issue of

Plaintiffs failure to exhaust administrative

remedies.

IV. CONCLUSION

For the reasons set forth in detail above, the

Court finds that Defendant Secretary of the

Department of the Air Force’s Motion for Summary

Judgment [docket no. 33] should be DENIED. IT IS

SO ORDERED this 31st day of March, 2006.

Footnotes

'The following facts are described in the light most

favorahle to Plaintiff. Immaterial facts or factual

averments not supported by the record are omitted.

“Plaintiffs § 1981, Fifth Amendment, and Fourteenth

Amendment claims were dismissed by this Court’s

February 16, 2005 Order.

* This section provides in relevant part, “[a]n aggrieved

person must initiate contact with a Counselor within 45

days of the date of the matter alleged to be

discriminatory... .” 29 C.F.R. § 1614.105(a)(1).

‘Plaintiff does not assert, and presents no evidence to

establish, that the third mandatory exception applies.

‘Plaintiff asserts that he did not frequent the break

room but does not assert that he never used the break

room.

3la

Filed October 25, 2007

No. 06-6321

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

FRANKLIN R. PERKINS,

Plaintiff-Appellant,

MICHAEL W. WYNNE, * United States of America,

ex rel., Secretary, Department of the Air Force;

ALLEN B. DECKER, individually and in his official]

capacity,

Defendants-Appellees.

ORDER

Before HARTZ, EBEI, and TYMKOVICH, Circuit

Judges.

Appellant's petition for rehearing is denied.

The petition for rehearing en bane was transmitted to

all of the judges of the court who are in regular active

service. As no member of the panel and no judge in

regular active service on the court requested that the

court be polled, that petition is also denied.

32a

Civilian Progress Review Statement

* KK

Frank Perkins

* KK

Period Covered: 15 Aug -08 Oct 2002

* KK

1. Progress On Performance Plan Elements

Element 1-Element 7

(Needs significant Improvement)

Comments

*see specific comments on rear of form.

-need a more positive attitude to solve problems

-need a major adjustment in dealing with others

-ask questions, but manner of questions is paramount

2. Cooperation/Responsiveness

-Skilled at working with individuals or groups

-Is an enthusiastic follower

-Is a skilled leader

(Needs significant Improvement)

3. Organizational Skills

-Uses resources effectively

-Sees future problems and heads them off

-Plans and schedules work effectively

-Adapts well to new demands

(Needs significant Improvement)

4. Communication

-Listens well

-Effective in oral communication

-Writes clearly

(Needs significant Improvement)

Comments

-ready e-mail questions

-Answer e-mail questions

-too much rhetoric

5. Duty Performance

-Work of appropriate quality and quantity

-Work is timely

(Needs significant Improvement)

6. Thoroughness

-Complete a job *** to his/her own

Follows up when necessary

(Needs significant Improvement)

Rater: (Supervisor Signature) s/A.B. Decker

8 Oct 2002

Attachment for Civilian Progress Review for Frank

Perkins

Item 1:

Duty 1:

-Provide better supervision, delegation, and direction

to the MANB planning force

-Know specific planning references and the items under

discussion; talking multiple items makes it easy to get

subordinates and co-workers and supervisors confused

-Improve work allocations to handle total work taskings

34a

in a better way

-Provide recommendations to solutions rather than

surfacing problems.

Duty 2:

-Listen and follow recommendations and guidance of

DP employee relations

-Insure all employees are treated fairly under EEQ; but

uphold discipline standards

-—Improve manner when communicating with

subordinates

-continue to work improving our labor standards and

challenges of DMAP’s

Duty 3:

-work better to improve Material issues with and thru

SSC

-Make recommendations; Develop long term plans and

follow-thru;

-Need more close coordination over material costs and

recommended EISP increases.

Duty 4:

-[mprove working relations and communications within

and without Branch and Div.

-Show more Diplomacy; Don’t talk down or try to

impress with words or e-mails

-Work suspense in a timelier manner, Perform

adequate research before sending E-mail answers.

Duty 5:

-Work with Fixers and sections more closely on

Production issues

-Need major help this year with Labor standard

reviews and increases;

-Keep E-3 efforts going; Be Proactiv n ne

workloads into branch

Duty 6:

-No changing of performan u thout Branch or

Division Planner coordinati

Duty 7:

-Make sure planners use PPE while working issues o1

shop floor

Item 2:

-Need MUCH more Leadership, COOPERATION and

SKILL working with others

Item 3

-Watch Susp nse’s: More Li lit i oul f box”

ideas and thinking!!

Item 4:

-Need much improvement in listening and speaking;

answer the questions

Item 5:

-Did not complete 135 SORAP/botched Driver time

effort with — 135 acft Planner

Item 6:

-Learn SORAP process; Timely pursuit of facts and

administration/staff correspondence

36a

Decker Allen B Civ OC-ALC/MANB

irom: Thomas Linda J Civ 72 SPTG/DPCEM

Sent: Friday: September 7, 2002 1:47 B

To: Decker Allen B Civ OC-ALC/MANB

Subject: Frank

A. B., I just spoke with James Coil. He states we do

not have to do Notice of Improvement Period on a

Supv in ProbationaryPeriod He gave me some

guidelines and we need to get together next week.

Basically, James said just call him in, tell him the

specific problems and that right now he is not

performing acceptable manner. He has 30 days to

improve and if you got ore more complaint, he is being

taken off the supervisory position and put back to his

old position. We can talk more next weck.

LINDA THOMAS

ER SPECIALIST

72 SPTG/DPCEM

(405) 739-2262 | DSN 339-2762

4/2/02

Civilian Performance and Promotion Appraisal

Performance Rating

Franklin Perkins

Overall Performance Rating: Excellent: Employee

exceeds more than one-half of the critical elements and

meets all other elements.

1. Work Effort: Exerts effort and shows initiative in

starting, carrying out and completing tasks: spends

time effectively performing (Scale of 1-9 = 8: Far Above

Fully Suecessful)

2. Adaptability to Work: Picks up new ideas and

procedures quickly: is easy to instruct: can adapt to the

demands of new situations; understands and can oral or

written instructions (Seale of 1-9 = 9: Outstanding)

3. Problem Solving: Devises effective solutions to

problems or _ identifies effective methods and

procedures for accomplishing objectives. (Scale of 1-9 =

9: Outstanding)

4. Working Relationships: Sensitive to the behavior of

fellow workers, supervisors, and _ subordinates;

maintains effective working relationship with others.

(Seale of 1-9 = 9: Outstanding)

5. Communication: Communicates clearly and

effectively; whether orally or in writing. (Scale of 1-9 =

&: Far Above Fully Successful)

6. Work Productivity: Productive during work time;

38a

completes his/her work projects, duties, and tasks in a

timely manner. (Scale of 1-9 = 8: Far Above Fully

Successful)

7. Self-Sufficiency: Works independently with little

need for additional supervision or help: follows through

well: accomplishes all tasks required to con*** job on

his/her own. (Scale of 1-9 = 8 : Far Above Fully

Successful)

8. Skill in Work: Performs job-associated tasks well,

whether they require physical, technical, professional,

supervisory, or managerial skills, is con*** very skillful

on the job. (Seale of 1-9 = 7: Above Fully Successful)

9. Work Management: Effectively plans and organizes

work; properly follows or implements management

procedures, directives, regulations, or technical ability

to direct. or evaluate or substitute for absent

supervisor. (Seale of 1-9 = 8 : Far Above Fully

Successful)

Performance Award Nomination

Award Performance

Award Percentage: 1.29

EVALUATION AND SUBSTANTIATION OF

RATING

PE | | (C)Critical/ | Eval

# (N)NonCrit | *

1 | MET | ci ay - |clM

39a

2 “Mr. Perkins is very thorough in

reviewing technical data and other

| applicable data required for

developing repairs. He serves as a

consultant while implementing major

| | projects.13,9 °F

3 Mr. Perkins shows tnitative and is a |

| self starter in his approach to problem | |

|___ solving. 2,5,7, a an [C{|E

14 He plans, organizes, and coordinates |

technical project in an excellent | |

| manner.14,5 __|cle |

5 He exhibits the ability to effectively

communicate both orally and in | |

| writing. 4,6 ICIE |

a MINT. saeco _ | N| M

(7 | MET. IN| M

*Enter N(Did not meet) M(met) FE (Exceeded)

40a

Civilian Rating of ***

Perkins Franklin R

**K + kK

4/3/03

Part A. Position Requirements. (Was the employce’s

performance Unacceptable or Acceptable n_ the

Performance Plan’s critical elements?)

Element 1 — 6: Meets

Overall Performance Rating: R — Acceptable: Rated

“Meets Standards” on all critical elements

Part C. Awarded Justification (Part B may serve as

Part C award justification)

1. No complaints received during this rating period.

2. No complaints received during this rating period.

Provided exceptional technical support in technical data

review and recommendations provided to cognizant

engineering authorities regarding the TF33 Main Fuel

Control Cage and Valve Project.

4. No documented counscling sessiuns required during

this rating period.

5. No reprimands required during this rating period.

6. No instances of PPE or safety noncompliance

reported during this rating period.

Part D. Performance Award

Award P — Performance

Award Percentage or Amount - $711.00

Ala

Rater (Supervisor’s signature) s/Michael O. Clonce

Appraisal I*actors - Manner of Performance

Appraisal factors listed below represent work

behaviors that can be observed in the context of the

employee’s current position and are considered

predictive of performance at the next higher level.

Based on your observations of the employee's

performance, rate VERY appraisal factor, Use the

following scale making the ratings. Place the number

(1-9) in the block preceding the factor.

1. Work Effort: Exerts effort and shows initiative in

starting, carrying out and completing tasks: spends

time cffectively performing (Seale of 19 = 9:

Outstanding)

2. Adaptability to Work: Picks up new ideas and

procedures quickly: is easy to instruct: can adapt to the

demands of new situations; understands and can oral or

written instructions (Scale of 1-9 = 9: Outstanding)

3. Problem Solving: Devises effective solutions to

problems or identifies effective methods and

procedures for accomplishing objectives. (Scale of 1-9 =

9: Outstanding)

4. Working Relationships: Sensitive to the behavior of

fellow workers, supervisors, and — subordinates;

maintains effective working relationship with others.

(Seale of 1-9 = 9: Outstanding)

5. Communication: Communicates clearly and

effectively; whether orally or in writing. (Scale of 1-9 =

42a

8: Far Above Fully Successful)

6. Work Productivity: Productive during work time;

completes his/her work projects, duties, and tasks in a

timely manner. (Scale of 1-9 = 9: Outstanding)

7. Self-Sufficiency: Works independently with little

need for additional supervision or help: follows through

well: accomplishes all tasks required to complete job on

his/her own. (Scale of 1-9 = 9: Outstanding)

8. Skill in Work: Performs job-associated tasks well,

whether they require physical, technical, professional,

supervisory, or managerial skills, is considered very

skillful on the job. (Scale of 1-9 = 8: Far Above Fully

Successful)

9. Work Management: Effectively plans and organizes

work; properly follows or implements management

procedures, directives, regulations, or technical ability

to direct or evaluate or substitute for absent

supervisor. (Scale of 1-9 = 9: Outstanding)

43a

Decker Allen B Civ OC-ALC/MANB

From: Perkins Franklin R Civ OC-ALC/MANBP

Sent: Thursday, October 17, 2002 6:33 AM

To: Decker Allen B Civ OC-ALC/MANB

Subject: RE: 895 Performance Plans

Mr Decker: My performance plan submitted can be

modified without any problem. In the superman's class

they are instructing that only one plan is to be

submitted to the journeyman target grade. It was

mentioned previously, I'll make contact with Ms Gibson

who is the personnel rep to verify it and submit

whatever everyone else is doing. Realistically, we

already have Journeymen trainees.

Krank

---Original Message---

From: Allen B Civ OC-ALC/MANB

Sent: Thursday, October 17, 2002 5:58 AM

To: Perkins Franklin R Civ OC-ALC/MANBP;

Caban David Civ OC-ALC/MANBP Subject; Fw; 895

Performance Plans

Looks like we have some work to do,

We need to discuss ASAP with Charlotte when all

return A. B. Decker

A.B. Decker, Civ, USAF

Chief, Commodities Sheetmetal and Composites

Production Branch (MANB) DSN; 336-2684

commerdal: (405) 736-2684

Fax: {405} 734-8437 or DSN FAX 336-6437

44a

---Original Message----

From; Corcoran Charlotte A Civ OC-ALC/MANMP

Sent: Wednesday, October 16, 2002 5:35 PM

To: Decker Allen B Civ OC-ALC/MANB

Subject: 895 Performance Plans

I have reviewed MANBPs performance plans. | believe

all of the performance plans need rebuilt. During the

Employee Relations seminar on interim appraisals,

they were explicit that we could not include anything

that pertained to conduct. In my opinion absenteeism

end tardiness would be considered conduct issues. They

should be excluded from the performance plans.

Conduct is separate issue from performance. | know we

often question this, but according to Employee

Relations, the two must be segregated. | tried to reach

Daisy or Linda to confirm and get their opinion, but

both are on leave. I also noted that all grades had the

same criteria. ‘his must definitely be corrected. We

cannot expect trainee to perform to the GS-11 standard.

I amin class at Rose State Thursday and Friday, so |

will follow up Monday morning.

| had 2 meeting with all of the planning chiefs on the

30th of September. | thought | made it quite clear that

the performance plans would be consistent throughout

the division. Everyone agreed to use the performance

plans provided by Pat via e-mail. I did note that our

template was on the outdated form. I will also validate

with Employee Relations if this is a reason to

reconstruct them

Charlotte Corcoran

OC-ALC/MANMP/736-7660

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.