Petition for Writ of Certiorari — Thomas v. Trico Product Product Corp Corp (No. 07-1117)
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(D O72 117 FEB 2 5 2008
NO: _QRFIOB OF THE CLERK
IN THE
Supreme Court of the Gnited States
ROBERT THOMAS,
Petitioner,
V.
TRICO PRODUCT CORPORATION, ET AL.,
Respondents.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
ROBERT THOMAS
Pro Se
5702 S. Staples St. #B7
Corpus Christi, Texas 78413
Ph: 956-639-5791
E-mail: thomasr1025@yahoo.com
QUESTIONS PRESENTED
(a)
Whether a person can be coerced by a Judge by
ordering to incarcerate him until he signs consent on
the application for a passport of his minor child, and
with reference to the above situation, whether the
Court of Appeals erred in not finding that Thomas
was innocent.
(b)
In affirming the summary judgment granted by the
trial court, whether the court of appeals departed
from the accepted standard of review set by this
Court in Reeves v. Sanderson Plumbing Products,
Inc., 120 S.Ct. 2097, 68 USLW 4480, (U.S., Jun 12,
2000) and whether this affected Thomas 14th
Amendment rights?
(c)
In this case the trial judge refused to compel Trico
with regards to discovery on attendance records and
the judge declared that it is not relevant. But when
respondent filed the Motion for Summary Judgment,
the same judge allowed the respondents to bring
attendance records into evidence and the judge
granted summary judgment based on that. With
respect to this situation, did the trial judge abuse her
discretionary power?
I]
PARTIES TO THE PROCEEDING
Pursuant to Rule 14.1 (b), the following list identifies
all the parties appearing here and before the United
States Court of Appeals for the 5 Circuit.
The petitioner here and appellant below is
Robert Thomas (Thomas), who is a pro se.
The appellees below and the respondents here
are, Trico Product Corporation (Trico); Gates
Corporation (Gates); Tomkins ple (Tomkins); Jim
Gaither; and John Winn.
Ill
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 29.6, petitioner state as
follows:
Petitioner Robert Thomas, is a natural person,
he has no parent companies or subsidiaries.
IV
TABLE OF CONTENTS
QUESTIONS PRESENTED.------------------------------- II
PARTIES TO THE PROCEEDING --------------------- It!
CORPORATE DISCLOSURE STATEMENT-------- IV
TABLE OF AUTHORITIES.----------------------------- VI
OPINIONS BELOW .-.----------------------------------------- 1
JURISDICTION ---------------------------------------+------+++ 1
STATUTES INVOLVED.-------------------------+-------++--- 1
STATEMENT OF THE CASE.----------------------------- 2
A. Factual Background----------------------------- 3
B. Proceedings Below-District Court------------ 7
C. Proceedings Below-In the Court of Appeals-
REASONS FOR GRANTING THE PETITION------ 24
I THIS CASE RAISES THE CRITICALLY
IMPORTANT QUESTION WHETHER A
PERSON CAN BE INCARCERATED FOR
NOT SIGNING CONSENT------------------- 25
Il. THE DECISION BELOW CREATES A
V
DIRECT CONFLICT WITH THE
SUPREME COURT DECISION IN
Ill. THE DECISION BELOW VIOLATED
THOMAS’ 14TH AMENDMENT
RIGHTS ----------------------------+-+++-++---- 30
IV. THE RULING ON ATTENDANCE
RECORDS VIOLATED THOMAS’
SUBSTANTIAL RIGHT TO
IRE SIE 31
CONGLAIBION --~-----~-200-e-cennccseccccccencnecerncnnncneces 32
APPENDIX -------------------2----ee-nsoeconencenenesoeees la-42a
1.
Opinion entered by the U.S. Court of Appeals
for the 5** Circuit, entered on October 26,
2007. -------------------+- 2-2-2 - eee eee e eee eee e eee (la-8a)
Order denying the petition for rehearing en
banc, filed on November 26, 2007------- (9a-10a)
Order and Opinion entered by the U.S.
District Court, for the Southern District of
Texas, Brownsville, Division, on July 25, 2006
(Michael K. Milby, Clerk)---------------- (lla-21a)
Order (Judgment) entered by the U.S. District
Court, for the Southern District of Texas,
Brownsville, Division, on July 25, 2006
(Michael K. Milby, Clerk)--------------------- (22a)
Order (on motion to compel Trico) entered by
the U.S. District Court, for the Southern
Vi
9.
District of Texas, Brownsville, Division, on
May 31, 2006 (Michael K. Milby, Clerk)----------
wena cane nnene nn nne ence ne eeeee nnn nen en anne nn neeeen es (23a-30a)
Order entered in Cause No. 2001-12-5216-E,
In the interest of Gloria Thomas and As: iey
Thomas, on April 3, 2003, by Abel Limas.
(Filed on April 3, 2003, by Aurora De La
Garza, District Clerk, Cameron County,
Texas) ----------------------------------------- (3la-32a)
7. Article-Thanks Abel Limas ------------- (33a-34a)
8.
Article-Americas Most wanted yields few tips
on Amit Livingston------------------------ (35a-36a)
Constitution Topic-Due Process------- (37a-40a)
10.Supplementary Information regarding signing
consent ------------------------------++-----+-- (41a-42a)
Vil
TABLE OF AUTHORITIES
CASES:
1. Burel v. Dr. Pepper, 482 F.3d at 414 (5th Cir.
2007) ---------- 2-2 nee ene een e eee cen ene ee en nee ene none nen eenees 30
2. Compaq Computer Corp. v. Ergonome Inc., 387
F.3d 403,408 (5*» Cir.2004) --------------------------- 32
3. EEOC vu. Manville Sales Corp., 27 F.3d
1089,1095 (5 Cir. 1994)------------------------------- 32
4. Evans v. City of Bishop, 238 F.3d 586,592 (5th
Cir.2000).----------------------------------------0-0-22200-0- 23
5. Gee v. Principi, 289 F.3d 342, 347-48 (Sth
Cir. 200 2)----------2-----2---2e nen e nen n none necen nee nneenneee nes 29
6. Julian v. City of Houston, Tex., 314 F.3d 721, 728
(5th Cir.2002).------------------------2-20-- 2-22-22 2e eee nnee 28
7. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106
S.Ct. 1348)------------------- 22-22-2222 2-ne neon ene nnn en nnnee 27
8. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105
(2000)----------------------------------------3, 26, 27, and 30
9. Rhodes v. Guiberson Oil Tools, 75 F.3d 959 (5th
Cir: 1990). +... ee 27
10.Riverwood Int'l Corp. v. Employers Ins. of Wausau,
Vill
420 F.3d 378, 382 (5th Cir.2005)----------------------- 28
PASSPORT RULES-PUBLIC LAW
Section 236 of the Admiral James W. Nance and Meg
Donovan Foreign Relations Authorization Act, Public
Law 106-113, 113 Stat. 1501A-420 (22 U.S.C. 213n)
(*2-Parent Consent Statute"')----------------------++--+--- 26
U.S. CONSTITUTIONAL LAWS
14t* Amendment and Due Process------------------ 25, 30
IX
OPINIONS BELOW
The opinion of the Court of Appeals was
entered on October 26, 2007, and is reprinted in the
appendix at la-8a (a stands for appendix) The
opinion of the District Court was entered on July 25,
2006 and is reprinted at 1lla-2ia.
JURISDICTION
The Court of Appeal entered its judgment on October
26, 2007 and the petition for rehearing en banc was
denied on the 26° of November, 2007 (9a-10a) This
Court has jurisdiction under 28 U.S.C. § 1254 (1).
The district court had jurisdiction over this civil case
by virtue of Section 706(f)(3) of Title VII (42 U.S.C. §
2000e-5(f)(3), and 28 U.S.C §§ 1331 and 1343(a)(4).
STATUES INVOLVED
1. 42 U.S.C § 1981. Equal rights under the law:
(a) Statement of equal rights
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every
kind, and to no other.
(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and
enforce contracts” includes the making, performance,
modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.
2. Title VII of the Civil Rights act of 1964 (“Title
VII), as amended, 42 U.S.C §§ 2000e-2000h-6.
42 U.S.C. SEC. 2000e-2.
(a) It shall be an unlawful employment practice for
an employer -
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national
origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual's race, color, religion, sex, or national
origin.
STATEMENT OF THE CASE
This is the first time ever in the history of the
United States that a state District Judge ordered to
incarcerate a father (the petitioner Thomas, who is
an Asian by race and Indian by national Origin) for
not signing consent on the application for a passport
of his minor child. (The Judge’s order is attached as
appendix 3la-32a). Even though Thomas was
released after 4 months without signing, the
respondents refused to hire him back and instead
they hired several other employees (all from different
race) who were less qualified than Thomas. Thomas’
complaint was completely ignored by the EEOC, the
District Court and the 5 Court of Appeals. Even
though the respondents made false explanations for
not hiring in all the levels, neither the District Court
or the Appeal Court, consider those facts and denied
Thomas any relief. The district court's and the
appeal court’s refusal to consider Thomas arguments
and supporting evidences filed in this case is a
radical departure from the law established in this
Court, pursuant to, Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147
L.Ed.2d 105 (2000). The District Court and the
Appeal Court also did not make an opinion as to
whether a judge can force a parent to sign consent.
The issues presented in this petition are of
great concern, gravity, and importance to the public,
and this petition should be granted because the
opinion from the Court of appeals viclates Thomas’
14 Amendment rights, produces manifestly unjust
results, departs significantly from decades of legal
precedent, and defies common sense. The review of
the questions raised here is very important, which
could affect the outcome of future discrimination
cases.
A. Factual Background
Thomas when applied first time with Trico, on
March 28, 2001, provided his resume (R 1662, R for
Clerk’s record) and application (R 1663-64) showing
he has 23 years prior tool and die making experience.
The records in this case showed that Thomas
completed a 4years apprenticeship in tool and die in
1980 and he earned the diploma in Tool and Die
making (R 1656) and obtained a Journeyman
License in Tool and Die making (R 1660) At the time
of hiring him, he was interviewed by the Tool room
manager John Winn (who is a respondent and Tool
room Manger, where Thomas worked). Mr. Winn has
produced a satisfactory report, shows (R 1661) that
he had verified Thomas’ qualification and Thomas
was qualified to be selected for the Tool Maker ‘A’
position. . On March 30, 2001 Thomas received the
appointment letter, hiring him as Tool maker ‘A’,
with a starting wage of $18.00 signed by both him
and Jim Gaither (a respondent and _ personnel
manager of Trico) and Thomas agreed to start work
on April 14, 2001(R 1665-1666)
After Thomas started working with Trico, the
employees and a supervisor in the Tool room (Juan
Sauceda) started making fun of him by calling
“Gandhi”. At the time he was also going through a
divorce for the second time with a woman he married
before. His ex-wife’s attorney with the help of the
judge of the original court (the 357* district court of
Cameron County) started creating problems for
Thomas, by setting up the hearings late so that he
would be late for work. This time the time clock at
Trico was also turned 3 minutes ahead from the
standard time, to make it more difficult for Thomas.
So for these reasons Thomas was late several times
in his early periods of work with respondents. Most
of his tardiness was actually 1 minute late which was
negligible. The respondents counted all one minutes
and started giving him warnings. Even though he
requested the time clock to be corrected they refused.
But once the divorce was finalized Thomas made
perfect attendance.
Thomas in the mean time filed a notice appeal in
his divorce case. Once his ex-wife’s attorney found
that Thomas was perfect in his attendance and he
could not make Thomas loose his job any more, he
used a new tactic. He tried to force Thomas to sign
consent on the application for his younger daughter’s
passport, so his client could remove the children to
India, and so the appeal will have no effect.
The 357% Judge denied this request. But the
attorney somehow moved the case to the 404th Court,
where Judge Abel Limas resided. Judge Limas is
notorious for doing favors to persons he likes. Some
of his most notorious rulings are attached as
appendix 33a-36a. It shows that at 33a-34a a jury
convicted a man for aggravated sexual assault of an
E] Salvadoran immigrant. But Judge Limas allowed
him bond to remain free until sentencing and the
man never appeared for sentencing. In the same
page it shows that the Judge did favor for a drunk
driver who made an accident. The next pages (35a-
36a) show that he made another history by releasing
a murderer on bond for 60 days before the
commencement of his 23 years sentencing and the
murderer disappeared.
From the relevant records from Thomas’
divorce case (R 1586-1599), it shows that, on April 3
2003 (R 28-29, 3la-32a) Judge Limas ordered to
incarcerate him until he signs consent on the
application for his minor daughter. Because of this
illegal action, he was forced to stay in jail to save his
children being abducted to India (R 1546, R 1465-
1469). The evidence showed that the mother earlier,
in the year 1997, did abduct the children (R 1574)
SLL aac EL NN RS CO SEI RY ID ISIE TEI 1 we
and she was in jail for that until she surrendered the
children to Thomas’ family in India (R 1465-1466,
1574, 1836 and 1855-1858).)
While being incarcerated, Thomas asked for
leave of absence with Jim Gaither, but he refused
and advised Thomas to resign, in order to be eligible
to be hired back (R 22, R1681-1682).
On July 31, 2003, Thomas was released from
jail without signing the consent and he immediately
met with respondent John Winn and requested him
to hire him back (R 22-23). But he asked Thomas to
put an application again, and he applied.
When Thomas applied second time with
respondents on August 4, 2003 for the position of tool
maker (1470-1471 and 1550), he did not file his
resume and he did not mention all of his employers,
since the respondents already had that information
in his personnel file (Thomas just departed with
Trico only for 4 months). In the application he
mentioned only 3 of his previous employers (Trico,
Adtech and Orchid) and he mentioned that he
completed 4 years advanced training in Tool and
Making and he is licensed as Journeyman Tool
maker. The application showed that he has 11 years
of Tool and Die making experience (2 years with
Trico, 4 years with Adtech, 1 year with orchid and 4
years advanced training) and he has Journeyman
License in Tool making. This qualification itself far
exceeded the required qualification of an applicant
as per the advertisement made by Trico for Tool
makers, in the Brownsville Herald on the 20* of July
2003 (R- 1607-1608 ). The advertisement showed
that, the minimum qualifications for Tool maker
was; Journeymen License in Tool making and 8
years experience in the Tool and Die making field.
|
|
'
:
1
PA AAD LELETE NTL RCN oO LENE CE ae re
But Thomas was never called for an interview and
respondents hired Eich instead. Thomas worked
with Eich at Adtech and he knew that Eich is not a
licensed tool maker and he has only very few years
experience in the Tool making field. Thomas believed
that respondents hired him only because he is a
Caucasian male born in the U.S. (R1779) and
respondents hated Thomas due to his race being ;
Asian and born in India. Thomas then filed a F
complaint with EEOC. |
Respondents, Gates and Tomkins representing
Trico, misrepresented to the EEOC that Thomas had
only 7 years experience in Tool making and Eich had
8 years experience in Tool making. As per their
statement made to the EEOC which was made under
oath by Jim Gaither, showed that (at R 1682-84) the
legitimate reason for hiring Eich was that, he has 8
years experience in Tool making compared to
Thomas 7 years, and Eich had worked 9 years before
with Trico (it is notable that they did not mention,
what department he worked) and Thomas only Two
years. It is also notable that, respondents did not
mention to the EEOC that they did not hire Thomas,
because of his attendance problems or criminal
history. They also submitted their hiring policy (R
1685) to EEOC which showed that they have to
verify each applicant’s qualifications with supporting
documents. This made the EEOC believe that,
respondents are telling the truth and they denied
Thomas any relief, but issued right to sue letter (R
30)
B. Proceedings below-District Court:
On May 31, 2005, Thomas filed a petition in the
U.S. District Court in Brownsville, Texas against all
respondents except Gates (R21-30). Then he added
2
Gates after he found evidence that Gates has direct
involvement in the case (R 396-406). During the
discovery Thomas confirmed that respondents had
misrepresented to the EEOC about Eich’s experience.
Eich’s application (R1472-1473) showed that from
1986-1995 he worked with Trico as a press room
supervisor (please note that he did not work as a Tool
maker and not in the tool room department). Then it
shows from 1995-2000 (5 years) he worked at Adtech.
In the application he did not mention how many years
he worked at Adtech in the Tool making field, but he
wrote press room production supervisor, tool and die
repair and then, 5 years. Since he left Trico as press
room supervisor, there was no doubt that he started
working as press room supervisor and so out of 5 years
how many years he worked in the tool and die repair
was not clear by looking at his application. Then the
application showed that he worked at T&C Stamping
from 2000 to 2003 (less than 3 years, since he joined
with Trico in August 2003). So all tegether, his tool
maker experience shown in his application was only
about 3 years at T&C and few years at Adtech, but not
8 years as claimed by the respondents. His application
also showed that he did not have any Journeyman
license in Tool and die making. So just by comparing
the applications itself Thomas was far more qualified
than Eich and there was no doubt that Eich did not
had the minimum qualifications advertised by Trico (R
1607-1608, 1611 ).
Eich testified during his deposition conducted on
May 18, 2007 (R 1407) that he worked as a Heavy-
equipment operator and a truck driver in the
construction field for four years, before he joined at
Trico in the year 1986 (R 1412). Eich affirmed many
times that he was hired as a Lead person in the press
room (R 1412-1413). (As per his personnel files it
showed that he joined Trico on 10/27/1986 as an
Assembler/Operator/Inspector for a wage of $4.44 in
the plastic molding department, R 1422. He was
promoted as a Lead man in the punch presses only on
8/17/1987, R 1423) Also Eich testified that he has
submitted a hand written resume but he said he do
not have copy or he will not get a copy from his
personnel file (R 1409-1411). The opposing counsel
started testifying on behalf of Eich, to resist giving the
copy of his resume (R 1409-1411). This made a serous
doubt whether Eich lied that he submitted his resume.
Eich testified that he started working as a press room
supervisor at Adtech (same position he held at Trico
before) and then moved to the tool room department in
the year 1997 and started working as a Tool maker
apprentice . But he testified, that he never went to
School to learn tool making (R 1415) and never
completed the apprenticeship. So according to his
testimony at his deposition he worked 3 years at
Adtech in the Tool and Die making field and about 3
years at T&C, and so he had 6 years prior experience
in Tool and Die making, before he applied with Trico
(R 1416). As per his testimony it was also verified that
his 9 years prior work experience with Trico, he did
not work as Tool maker or in the tool room
department. So his prior experience with Trico, did
not qualify him for the position he applied as a Tool
maker. In comparison, Thomas when he worked before
with Trico for 2 years, he worked as a Tool maker, in
the tool room department. After his deposition, it was
also clear that Trico did not follow their company
procedure (R 1685, Hiring practices, policy #3 stated
that all applicants will be required to submit
documents supporting their qualifications) when they
hired Eich. They also did not produce Eich’s interview
report or his hand written resume (claimed by Eich
that he submitted), or any other documents that
showed that he is a Tool maker.
Thomas filed a motion for leave of Court to allow
him to file a second motion to continue to obtain,
mainly the personnel file of Eich from Adtech and to
obtain documents regarding newly hired employees
from Trico (R 1400-1446) In the motion Thomas
pointed to the trial Court that when compared with
the testimony of Eich (see R 1407-1420) and the
documents from his personnel file, it shows that his
testimony was not credible (R 1401). Thomas
submitted his affidavit with the said motion which
showed that, Eich started his apprenticeship at
Adtech, only in the year 2000 and he was still working
there when Thomas resigned from Adtech in the year
2001 (R 1406). Trico also provided a list of about 10
newly hired employees, after Thomas filed his
application (R1512). As per the list most of the
employees were less qualified than Thomas and also
Trico once again misrepresented to the court about
Eich’s tool and die experience. This time they
misrepresented that Eich has 17 years tool and die
experience (R 1512). In order to find the truth when
Eich started his apprenticeship in tool and die making
and when he left Adtech actually, his personnel file
was vital in this case (R 1402). But the district Judge
simply denied it without a hearing and response (R
1540).
After the case was filed in the US District Court,
when Trico produced the personnel file of Thomas,
they have to admit the fact that Thomas had 25 years
experience in Tool making. Then respondents started
10
telling that Thomas was not hired due to the
attendance problems. But they refused to allow
discovery and Thomas has to file a motion to compel.
The trial judge ordered on the motion to compel Trico
(at R 1394) that attendance records of other newly
hired employees and also the information regarding
punching clock used by employees were not relevant. It
shows:
“Request for Production No. 31(B) seeks
information about the attendance records of
individuals hired after Plaintiff's application date in
August 2003. This information is not relevant.
Plaintiff resigned from his former position in April
2003; he was not terminated for his absence from
work during his incarceration.
Request for production No. 32 _ seeks
information about the clock used to time-stamp the
employees’ timecards at Trico. This request is not
relevant to this case because this is a failure-to-hire
matter. Therefore, Plaintiff's request for production is
not relevant, and Defendants’ objections are valid”
Trial judge after denying appellant’s
interrogatory on time clock, once again confirmed its
finding that this case does not involve appellant’s
tardiness or absence from work. At R 1396 shows:
“‘Interrogatory No. 14 seeks information about
the time clock in the tool room in Brownsville.
This information is not relevant because this
case does not involve Plaintiffs tardiness or
absence from work.”
Respondents Trico product Corporation, Jim
Gaither and John Winn, filed their motion for
summary judgment (MSJ) on June 16, 2006 (R 1448-
1500). Thomas filed his response on July 6, 2006
(R1544-1768).
Thomas explained in his response (R 1544-1768) to
Trico’s MSJ that their legitimate non-discriminatory
reason for not hiring him was false or unworthy of
credence and were inconsistent. He also quoted the
Supreme Court case law of, Reeves v. Sanderson
Plumbing, 530 U.S. at 147, 120 S.ct 2097 (2000). As
explained at R 1553, on September 4, 2004, Jim
Gaither on behalf of Trico represented to EEOC that
(at R 1680) Trico’s reason for not hiring Thomas was
that Thomas had only 7 years prior tool and die
experience and only 2 years previous experience at
Trico. Same time the employee they hired (they
referred Eich here as employee #2, see R 1553) had 8
years prior tool and die experience and 9 years prior
experience with Trico. Mr. Gaither also confirmed this
as their legitimate non-discriminatory reason for not
hiring Thomas (R 1683). As mentioned earlier Trico
did not tell EEOC that they did not hire Thomas,
because of poor attendance or criminal history. On
May 16, 2006, Trico also stated in their response (R
1226-1265) to Thomas’ motion to compel that leaves of
absence and attendance records are not relevant (R
1230, under paragraph B).
But, Trico changed their story later. On June 16,
2006, in their MSJ (R 1448-1500), in contrary to the
judge’s ruling that the tardiness and absenteeism of
Thomas is not relevant in this case, they brought this
any way as one of the main reason for not hiring
Thomas back. (R 1448-1501). At R 1454 Trico stated
that they seeks trustworthy, dependable and qualified
employees who value a long term relationship (they
claimed they attached exhibit H to show this policy, but
Men orewtae Se AS I se em
the records shows that there was no exhibit filed with
the clerk). They further stated that Thomas’
application showed two years unreliability with Trico,
only 6 years industry-experience which was mostly
training, a pattern of short-term employment since
1996, a total employment history of less than seven
years with three different employers, no high school
education at all, a four month-absence from any work
and a criminal history of DWI and a contempt of court.
In contrast they stated that, Gary Eich was more
qualified because his application referenced that he
has a high School Diploma, versatility including
welding skills, almost a decade of previous
employment with Trico, management experience with
Trico, almost twenty years of industry-experience in
Brownsville, only two past employers, a history of
loyalty to past employers, positive reports from past
employers and no criminal records. They also stated
that his mother-in-law is working with Trico and she
has endorsed him and that his longevity was
unquestionable and that he demonstrated strong ties
to the community. In their conclusion to their motion
they stated that (at R 1455) they are entitled to
summary judgment because Eich was better applicant
based _on his superior application and _ appellant’s
habitual absenteeism. It is notable that in Trico’s MSJ
they did not mention about Eich’s prior Tool and die
experience.
In response to this, Thomas pointed to the
District Court that Eich’s application doe not show
anything that respondents claimed. Respondents have
not produced any documents that showed that Eich
was loyal to the past employers, and the records
showed that there was no positive reports from any of
Eich’s previous employers, that was claimed by
respondents. ( 1472-1473). The whole records in this
case shows that Trico did not make an investigation in
this case to find out the true experience of Eich from
his previous employers, or try to get his attendance
records from his immediate previous employers.
Thomas pointed to the tria] Court that he had 25 years
of prior tool and die experience when he applied second
time with Trico (R 1549-1551). He filed supporting
documents with his response to prove his quali ‘ication;
his resume, applications, diploma _ certificates,
transcripts of pre-degree course from the college (after
the completion of High School); Journeyman license in
Tool and Die making etc. At the same time even
though they claimed so many things about Eich, they
have not provided any supporting documents to justify
their statements or have provided any supporting
document that, Gary Eich was a Tool maker, other
than his employment application, which was not even
clear, how many years he worked in the tool and die
field with his previous employer, Adtech. Thomas
asked the trial court not to consider the attendance
history, since the court ruled that it is not relevant
(1545). Even if it considers the attendance records, it
showed that it was not the real reason, since before
Thomas was incarcerated illegally, he had perfect
attendance (R 1545-1546). The records provided by
Trico showed that Thomas had attendance problems
only in the year 2002 (R 1457-1464). Record at 1559,
signed by Thomas on January 29, 2002, it shows that
his attendance was average, but he mentioned that he
had little bit attendance problem due to his divorce
case. This is also supported by affidavit made by
Cuauhtémoc Garcia, a co-worker of Thomas, made on
Feb 7, 2003. He stated in his affidavit that Thomas
was harassed in his divorce case and the hearings
were intentionally delayed to make attendance
problem for Thomas at work (R 1547). Thomas
received a warning on May 14, 2002 in which he
complained to Jim Gaither that one of the reason for
attendance problems is due to the fact that the
company clock is 3 minutes ahead of standard time (R
1462). Even though Thomas requested Trico, but they
did not correct this and Thomas affirmed that most of
his tardiness was one minute late (R 1575, R 1545).
Thomas received his final warning letter on November
25, 2002 (R 1463-1464). It shows that (at R 1464) he
acquired 9 tardiness at the time he received this
warning letter. So there was no doubt that the time
clock’s accuracy was a major factor in his tardiness.
But respondents negiect to mention that Thomas was
working hard to improve these areas as evidenced by
Trico’s records reflecting that after October 2002,
Thomas had perfect attendance and was not tardy for
the last six months of his employment (R 1460-61).
Defendants did not mention Thomas’ attendance to the
EEOC as a reason for Trico’s failure to rehire him. A
reasonable jury could infer that Thomas’ attendance
was not an issue in the decision-making process. Thus
a fact issue has been raised as to whether Trico’s
explanation for failure to hire Thomas is a pretext.
Both the District Court and the Appeal Court has
agreed that Thomas has established a prima facie
case, since he is born in India and has the ethnic
character of an East in Indian ancestry and
respondents hired Gary Eich a Caucasian male born in
the U.S., instead of Thomas. (6a, 17a)
In his response to MSJ, Thomas also pointed to
the trial Court that, his affidavit showed that he was
called by the nick name ‘Gandhi’ by his colleges and
the lead person Juan Sauceda (R 1552). Declaration of
15
Donna Gonzalez which was attached with response,
showed on paragraph 12 (R 1677), she stated that,
appellant is a person of East Indian origin and an
Asian by race. She further stated that, after 9/11
incident, people like Thomas have undergone hatred
from.some of the people in the U.S. Even at his divorce
proceedings, plaintiff was discriminated because of his
race and national origin. The evidence shows that he
was insulted by his ex-wife’s counsel, Robert Sheline,
by comparing as “Taliban” (R 1581) Thomas stated
that the Mr. Sheline may have connections with Jim
Gaither (R 1544-1545), who issued warning letters to
Thomas. Cuauhtémoc Garcia’s affidavit dated Feb 22,
2006 shows that, one of the reason for Thomas’
incarceration for not signing consent was that, he is
from India (R 1601).
Thomas explained to the trial judge that his
criminal history is not relevant to this case. He
explained that his DWI is a misdemeanor happened in
the year 1998 and Trico hired him in the year 2001, so
it is not a valid reason (R 1549). Also he referred to his
criminal report submitted to Trico on 8-4-2003 (R
1669), which proved his statement. The said record
also showed that (R 1669) his contempt of court
conviction is a civil case and it was dismissed on July
31, 2003. Thomas explained to the trial Court that,
his contempt case for not signing consent was iilegal,
since the judge who ordered him to incarcerate did not
had any jurisdiction, because the case was illegally
transferred to his Court (Judge Limas’ Court, 404
district court of Cameron County, Texas), and the
Judge was fully aware that the mother has previously
abducted the children (R 1546). Thomas Also stated
that there was no allegation in the motion filed by his
ex-wife, saying that he has to sign consent (R 1546).
Also his response further showed that the same judge
who ordered to incarcerate him for not signing consent
also has entered an order saying that the children can
not be taken out of Cameron county, until the appeal is
over (R 1599 ). So there was no need for the passport
at that time. So the judge’s order did not make any
sense. Further it was unconstitutional to force some
one to sign consent and it was against the policy of the
International parental kidnapping act.
Thomas also explained to the Court that Eich in
his previous employment with Trico he started as an
operator in the Plastic injunction molding and he
moved to the press room. (R 1549). Eich’s application
also showed that he worked with Trico as a press room
employee and not a tool room employee (R 1616-1617) .
As per the job description of a Tool room employee
provided by Trico, it sows that operating a press, or
setting up of a press is not a tool room employee’s duty
and also welding is not a requirement ( R 1246 ). But it
shows that building jigs and fixtures were a duty of a
tool room employee (R 1246), but Mr. Eich did not had
this (R 1628). Also it showed (R 1246), an employee
should be able to read blue prints, but Eich never
went to school for that (R 1628). The records show
that, Trico provided this document in their response to
Thomas motion to Compel (at R 1227). The record
shows, they provided this after the statement ‘Trico
seeks trustworthy, dependable and_ qualified
employees who value a long term employment
relationship” (R 1227). Now this court may see that
this should be the same exhibit which was missing
(exhibit H) in their MSJ at R 1457, after the same
statement. So there is no doubt that they intentionally
did not file their exhibit ‘H’ to hide from the court that
Mr. Eich was not qualified.
In their reply on MSJ (1769-1774), once again
respondents confirmed that Thomas was not hired
because of his well -documented history of attendance
violations and Ejich’s superior application. But they
also added that, Eich lack any past attendance
problems (R 1773). Even though Eich departed Trico
for 8 years, before he applied again, the whole records
in this case shows that, Trico has not made any
attempt to get the personnel file/ attendance records of
Eich from his immediate previous employers, T&C
and Adtech, where he worked all together for 8 years.
. At the Summary Judgment level, Thomas clearly
raised facts questions about who is clearly better
qualified and whether the false and inconsistent
explanations given by Trico were a pretxt of an
intentional discrimination.
The trial judge Hon. Hilda Tagle, completely
ignored Thomas’ response and exhibits and granted
the MSJ (R 1775-1782). The record shows in deciding
who is better qualified, she compared only the
applications filed by Thomas and Eich in August, 2003.
Despite her earlier finding in the order on motion to
compel Trico (26a,29a) that the attendance was
irrelevant in this case, when respondents raised
Thomas’ attendance an issue in their MSJ, the trial
Court latched on to that argument and cited Thomas’
attendance as rationale for granting the MSJ. The
trial Court in her ruling also completely ignored the
facts and arguments regarding respondent’s false
explanations.
Earlier in the same way, without considering
Thomas’ arguments or statement of facts, the trial
judge also granted Tomkins plc’s (R 866-874) and
Gates Corporation’s (R 974-981) motion to dismiss for
lack of personal jurisdiction and dismissed both of
18
them from this lawsuit. Thomas filed a notice of appeal
on Tomkins’ dismissal (R 960-961). Since actions were
pending against remaining parties, the said appeal
was dismissed on August 8, 2006 (R 1949-1951). On
February 1, 2007 (after the trial judge denied Thomas’
motion to reconsider the ruling on the MSJ) Thomas
filed a second notice of appeal on all the respondents
and took this case to the U.S. Court of Appeals for the
Fifth Circuit.
C. Proceedings below-In the Court of Appeals:
Thomas filed his Brief on July 13, 2007 (which was
docketed in the U.S. Court of appeals for the 5
Circuit as cause No. 07-40114) and explained all the
above and provided arguments with supporting case
laws showing that the trial judge was erroneous in
granting the MSJ; granting the motion to dismiss
Tomkins and Gates; and abused her discretionary
power in discovery rulings.
Respondents filed their response’ on
September, 13, 2007 in the Court of Appeals. Now
again they change their explanation for not hiring
Thomas. Thomas hired a lawyer to represent him
and the counsel filed the reply brief in the Court of
Appeals on October, 1, 2007. In their brief they made
a new claim that they were not aware of Thomas’
past experiences or credentials (their brief at 13).
Respondents made this incredible assertion although
Trico had maintained Thomas’ permanent personnel
file and they had produced documents in the
discovery, that shows Thomas’ resume filed in the
year 2001, showing he had 23 years experience in
Tool and Die at that time; his applications; his
interview report showing that, he was interviewed
19
and verified his qualifications and experiences etc.
But it is notable that they are aware of his past
attendance problems, when Thomas worked with
them. Respondents argued in their brief that it did
not know about Thomas’ qualifications despite the
fact it hired him and he worked there for 2 years and
had only departed them for 4 months, before he
replied for the position. Respondents did not explain
why they were unconcerned about Eich’s past
experience and credentials since his employment
with respondent Trico had ended 8 years before he
applied for Thomas’ position. Under the heading
“Formal Training” in their chart, respondents stated
that Thomas has a diploma in tool and die making
from India (Respondents Brief at 5). They want to
stress that Thomas has a diploma in tool and die
making from India and not from here. However, on
his application under “Special training” which is the
closest category to the new requirement of “Formal
Training.” Thomas wrote “4 years advanced training
in Tool & Die, CNC Machining” (R 1470). Also
Thomas added “Journeyman Tool Maker” as special
job skill. India was not on there. In their chart,
respondents wrote that Eich had “Local on the job
apprenticeship.” (Res. Brief at 5). But LEich’s
application does not reflect that he had completed a
‘local on the job apprenticeship” or any other kind of
apprenticeship (R 1472-73). In fact Eich testified that
he had not completed an apprenticeship (R 1627, L.
10-23). Respondents stressed on to local to infer that
any training in Brownsville must be superior to that
in India. Respondents in their brief for the first time
claimed Thomas’ alleged prison time was a reason for
respondents’ failure to rehire him (Brief at 4,5,13).
This reason was patently false and unworthy of
20
credence because Thomas has never been to prison
and has never convicted of a felony. Only he was held
in contempt by the Family law Judge, for refusing to
sign consent on the passport application for his
minor child, which would have allowed his children
to be taken away to another country. After this case
was taken to the US Court of Appeals, on Feb. 15,
2007, the 13 Court of Appeals in Corpus Christi, in
their memorandum opinion ruled that (Please ref.
case No. 13-02-00504-CV, filed in the 13 Court of
Appeals, Corpus Christi) the family law Judge (Hon.
Abel Limas of the 404t* District Court) did not had.
jurisdiction over the case and he was ordered to
transfer back the case to the original court (the 357
District Court). The said opinion of the Court of
appeals was attached as Appendix 19, page 8, with
Thomas’ brief. (Also please visit
www.justiceisblind.info, for more details). So it was
clear that Thomas was innocent in that case and the
respondents should have sympathy on Thomas for
staying in jail to save his children, from being
abducted. Respondents knew about Thomas’ child
custody battle and subsequent incarceration because
he wrote to Jim Gaither about it (R 1465-69).
Respondents also falsely content in their brief that
Thomas had 2 DWI convictions (Brief at 5). Thomas
had one misdemeanor conviction in 1998 which he
had disclosed to respondents in his 2001 employment
application before he started working for them (R
1661-62). Thomas’ DWI conviction and probation
served did not prevent respondents from hiring
Thomas in 2001. So why should he be disqualified for
the same reason in the second time. So DWI
conviction was not the real reason
Respondents also claimed in their brief that they
do not have to do a rigorous screening process and that
they basically will only look at employment
applications (Respondents Brief at 14-15). This was
also a new claim, which they did not make with EEOC
or with the District Court. Thomas argued in his reply
brief that, in contrary to this, as per Trico’s “Hiring
Practices” all applicants are required to submit
documents supporting their qualifications (R 1685).
Hiring practice No.7 showed that applicants must go
through a screening and that, managers and
supervisors are responsible to hire the best candidate
(R 1685). This would have required interviews and
obtaining documents from Eich to prove his
qualifications to be hired as a Tool maker. But they
have not provided any.
Respondents completely ignored and failed to
answer Thomas’ statements and arguments regarding
their false and inconsistent explanations for the
legitimate reason for not hiring him. Also Respondents
in their brief failed to respond to Thomas’ arguments
in his brief that respondent Trico coerced employees to
sign declarations which contained false statements.
One of them Guadalupe Cardenas, admitted that he
was asked to sign a Declaration attesting to facts that
were not within his personal knowledge (R 1690-92,
1720, 1723-24). Juan Sauceda made a _ false
Declaration that he is a Toolmaker, and not a
supervisor, and that he did not call Thomas
“Gandhi’(R 1690). But Cardenas testified at his
deposition that Juan Sauceda is a Supervisor (R 1704,
L. 13-17).
Thomas also pointed to the Appeal Court that the
cases cited by respondents are not distinguishable and
controlling. None of the case discussed a disparity of 4-
22
6 times difference in qualifications like in this case.
More important, respondents were silent on the
subject of their false explanations pointed out by
Thomas in his brief.
Thomas argued in his reply brief filed in the
Court of appeals that given Respondents’ inconsistent
explanations for refusing to hire him and the timing of
its changing rationale, a fact finder could conclude that
Respondents’ “asserted justification is false” or
“unworthy of credence.” And quoted the Reeves case.
He further argued, as the 5 Circuit previously has
explained, “evidence of the prima facie case plus
pretext may, and usually does, establish sufficient
evidence for a jury to find discrimination , and he
quoted, ” Evans v. City of Bishop, 238 F.3d 586,592 (5th
Cir.2000).
Thomas wrote this argument and several other
arguments and all the facts stated above in his brief
and reply brief and asked the Appeal Court to reverse
the granting of summary judgment on respondent
Trico, Jim Gaither and John Winn. And also made
arguments with supporting evidence against the
dismissal of Gates and Tomkins and asked the Court
to reinstate them..
The Appeal Court, without allowing a hearing
entered its opinion on October 26, 2007. This opinion
was shocking. It simply cited the statements made by
the respondents lke a “parrot” and affirmed the
district court’s order. The opinion (la-8a) started with
statement about Thomas’ attendance problems, which
was quoted by the respondent and then it found this as
one of the legitimate reason for not hiring Thomas. It
did not consider Thomas’ argument that the trial court
had declared attendance history as_ irrelevant and
even it consider this, Thomas had perfect attendance
23
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for the past 6 months before he was illegally
incarcerated. The ruling shows that it did not evaluate
whether Thomas was innocent in the incarceration,
but it simply stated Thomas was held in contempt of
court in a child custody matter and was incarcerated
indefinitely. Those who read this opinion will think
that Thomas has done a severe crime like a murder or
a sexual assault, for to be incarcerated indefinitely.
The opinion further shows that it simply compared the
applications of Thomas and Eich and said both had
similar experience and qualifications. It just ignored
the supporting documents and statements and
arguments filed by Thomas that showed that he was 6
times qualified than Eich. Even though the disparity
in qualifications was so wide, the Appeal Court quoted
the Price case, which was not even 25% closer to this
case in disparity. The opinion shows that it did not
even review Thomas’ arguments and_ evidence
presented against the respondents false and
inconsistent explanations. For any standard, this
Court can see that, this opinion entered was
unconstitutional and depart from the summary
judgment standards set by this Court before. The
opinion also stated that, since Thomas’ claims against
all defendants fail on the merits, it declined to reach
the question of whether personal jurisdiction exists
regarding Tomkins plc and Gates Corporation. Thomas
also filed a petition for rehearing en banc, which was
denied by the Appeal Court on November 26, 2007.
Thomas is now filing this petition for certiorari within
90 days of the said denial.
REASONS FOR GRANTING THE PETITION
I. THIS CASE RAISES THE CRITICALLY
24
IMPORTANT QUESTION WHEATHER A PERSON
CAN BE COERCED TO SIGN CONSENT
In the history of the United States of America this
is the first time that a person is being coerced to sign
a consent on the passport application of his minor
child, by ordering to incarcerate Thomas, until he
signs consent. So the review of this issue is of public
importance. Since Thomas lost his job due to this
incarceration, which lasted for about 4 months, it
will give guidance for the lower courts, whether
Thomas was innocent.
Thomas requests this Court to consider his
pleadings liberally, since he is a pro-se.
The Fourteenth Amendment to the United
States Constitution provides, in relevant part: No
state shall . . . deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of
the laws (37a-40a). By coercing to sign consent Judge
Limas has clearly violated this constitutional right of
Thomas. Moreover this case was illegally transferred
to Judge Limas’ Court, so he did not even have any
jurisdiction to hear this case. It is also an issue,
whether even if the Judge had any jurisdiction, can a
State Judge (or even a Federal Judge) order like
this?
Statement of consent form (DS-3053) can be
found at;
http://www.state.gov/documents/organization/80106.
pdf. The document shows that it has to be made
under penalty of perjury. So even if Thomas is forced
to sign, he will be lying under oath.
Section 236 of the Admiral James W. Nance and Meg
Donovan Foreign Relations Authorization Act, Public
25
Law 106-113, 113 Stat. 1501A-420 (22 U.S.C. 213n)
(°2-Parent Consent Statute") provides that: the
Secretary shall require documentary proof of both
parents' or the legal guardian's consent before
issuing passports to children under age 14 “under
penalty of perjury." The requirement was added as a
measure to prevent the use of the United States
passport in international child abduction, and was
implemented by Section 51.27(b) of Title 22, Code of
Federal Regulations (CFR) (published at 66 Fed.
Reg. 29904, June 4, 2001). Section 51.27
provides that both parents must execute a passport
application on behalf of a minor under age 14 or, if
only one parent or a legal guardian executes the
application, such parent or guardian must provide
documentary evidence that he or she is the sole
parent or has sole custody of the child or that he or
she has the non-applying parent's or guardian's
consent, if applicable, to the issuance of the passport.
So it was clear that the Federal Government brought
the requirement of signing consent, in the year 2001,
to prevent child abduction. In all aspects, the ruling
clearly defies common sense. Since there is no
opinion or case laws can be found for this issue, the
review of this issue is of public importance.
II. THE DECISION BELOW CREATES A
DIRECT CONFLICT WITH THE SUPREME
COURT DECISION IN REEVES..
In granting summary judgment, the lower
court departed from the accepted standard of review
set by this Court in Reeves v. Sanderson Plumbing
Products, Inc., 120 S.Ct. 2097, 68 USLW 4480, (U.S.,
Jun 12, 2000). This departure was found in the
Fifth Circuit Court of Appeals ruling as well as in the
District court. The Fifth Circuit’s decision in
affirming the summary judgment also was in conflict
of their own standards set in several of their own
opinions.
In reviewing summary judgment, the court
must view the evidence presented in light most
favorable to the party opposing the motion. Rhodes v.
Guiberson Oil Tools, 75 F.3d 959 (5th Cir. 1996). In
the case of Reeves v. Sanderson Plumbing Products,
Inc., the unanimous U.S. Supreme Court reaffirmed
that "the standard for granting summary judgment
‘mirrors' the standard for judgment as a matter of
law, such that the inquiry under each is the same."
Reeves, at 2110. This Honorable Court held that,
although all of the evidence should be reviewed by -
the court, not all evidence should be given weight.
The court “must disregard all evidence favorable to
the moving party that the jury is not required to
believe. See Wright & Miller, at 299. That is, the
court should give credence to the evidence favoring
the nonmovant as well as that 'evidence supporting
the moving party that is uncontradicted and
unimpeached, at least to the extent that evidence
comes from disinterested witnesses.'" Reeves, at
2110. In the present case, jury question are present
because the petitioner presented evidence that, when
taken as a whole, created fact issues as to whether
Thomas is “clearly better qualified” and whether the
respondent’s “asserted justification is false” or
“unworthy of credence.”
"[T]he court must review the record taken as a
whole.' " Reeves v. Sanderson Plumbing Prods., Inc..,
530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105
(2000) (quoting Matsushita Elec. Indus. Co., 475 U.S.
at 587, 106 S.Ct. 1348): see Riverwood Int'l Corp. v.
Employers Ins. of Wausau, 420 F.3d 378, 382 (5th
27
a a aa .
s
[a
Cir.2005).;
Pointing to clearly superior qualifications is
one way to demonstrate intentional discrimination,
but it is not the only way. See Julian v. City of
Houston, Tex., 314 F.3d 721, 728 (5th Cir.2002).
This Court may see that the 5% Circuit Court
and the district Court did not follow the summary
judgment standard established in the above cases.
They did not review the whole records or did not
consider the false explanations made by the
respondents. If this Court review the whole record it
can see that Thomas is a licensed tool maker who
has 25 years of tool making experience, with
supporting documents and Eich had only 4 years
experience with no education and no license in Tool
and die and no documents to support his education or
experience. If the respondents had admitted about
Thomas true experience from the beginning and then
if they allow discovery and brought the attendance
records it would have been a different situation. But
they never want to admit the fact that Thomas had
25 years of Tool making experience and held
Journeyman License in Tool and Die making. In
order not to admit this, they kept on changing their
story. They told EEOC that Thomas had only 7 years
experience and Eich had 8 years experience in Tool
making. But they did not tell EEOC that Thomas
held a Journeyman License and Eich not. They did
not tell EEOC that Thomas was not hired because of
his attendance problems or criminal records. In the
district Court, when Eich testified that he had only 6
years experience and never went to school or never
completed an apprenticeship they changed their
28
story, saying that Thomas was not hired because of
his well documented history of attendance violations
and Eich’s superior application (R 1769-1774). Even
if this court only look the latest applications filed by
both applicants, it can see that Eich had no
Jorneyman License in Tool making and his 8 years
experience in his application, claimed by respondents
is only an assumption. (After Eich’s deposition it is
already proven, he did have 8 years experience). But
even Thomas’ second application showed that he had
11 years experience and completed 4 years advanced
training in Tool and Die making and he held Journey
man License.
Now if this Court look at their explanation to
the Court of Appeals, it can see that they again
changed it. Their story that, they were not aware of
Thomas’ previous experiences and credentials. But
they have no problem in remembering Thomas’
attendance records in the old file. No reasonable
person can believe this story since they have
produced Thomas’ interview report and his previous
resume and application, which showed that Thomas
has 23 years experience in Tool making when he
joined with Trico in the year 2001. But they can
remember about Eich who betrayed them and left
the company in the year 1995.
This unexplained inconsistency was further
evidence from which a jury could infer that Trico’s
proffered rationale is pretextual. See; Gee v. Principi,
289 F.3d 342, 347-48 (5th Cir.2002) (determining
summary judgment was improper where the plaintiff
produced evidence that the employer's explanation
for her non-selection had been inconsistent). Also
29
see; Burrel, 482 F.3d at 414 (5t» Cir. 2007
. Also a reasonable factfinder could conclude that
Trico’s asserted justification for hiring Eich (his
superior application and lack of any past attendance
problem) is “unworthy of credence” and a pretext for
intentional discrimination. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct.
2097, 2108, 147 L.Ed.2d 105 (2000) (“Proof that the
defendant's explanation is unworthy of credence is
simply one form of circumstantial evidence that is
probative of intentional discrimination, and it may
be quite persuasive.”).
As per the summary judgment standard this
was enough to deny the motion and if court has to
grant the Summary Judgment, respondents should
have proved their claim as a matter of law, which
they failed, when reviewing the whole record. But
the trial court and the appeal court did not follow
this well established laws and so there is reason to
grant this petition.
Ill. THE DECISION BELOW VIOLATED THOMAS’
14TH AMENDMENT ~ RIGHTS.
Under the Due process of the 14 Amendment of
United States Constitution, a person has the right to
be heard (37a-40a). In this case, by completely
ignoring Thomas’ arguments, statement of facts and
supporting evidence, it is a question whether the 5t
Court of Appeals and the District Court has violated
this constitutional right. So this is an important
question of law, and Thomas request this Court to
review this case and enter an opinion and grant this
30
petition.
IV. THE RULING ON ATTENDANCE RECORDS
VIOLATED THOMAS SUBSTANCIAL RIGHT TO
DISCOVERY. si
Respondents resisted discovery on_ the
attendance records of Thomas and other newly hired
employees and also the trial Court denied Thomas’
motion to compel respondents and it made the
finding that the attendance records were not
relevant in this case. And for the reason it said
Thomas was not terminated for absence from work
and this case is a failure-to —hire matter (18a). But
respondents brought the issue of attendance in their
MSJ and it shows that the trial judge and the appeal -
court allowed this to come into evidence and cited
this as one of the main reason for not hiring
Thomas. Thomas argued to the Appeal Court that
the district Court abused its discretion by its clearly
erroneous evidentiary ruling which affected Thomas’
substantial rights. The trial Court erred in ruling
that Trico did not have to answer Thomas’ discovery
requests related to his attendance at the company.
The trial court’s erroneous evidentiary ruling denied
Thomas access to the relevant and _ probative
discovery requests regarding his employment to
which he was entitled, and thereby precluded
Thomas from raising a fact question on that issue.
Thomas argued in his reply brief that, the trial
court’s error was not harmless because it affected a
substantial right of Thomas to discover the case and
put on evidence of pretext in order to defeat a motion
for summary judgment. See Compaq Computer Corp.
uv. Ergonome Inc., 387 F.3d 403,408 (5th Cir.2004); see
31
FED.R.EVID.103(a). The exclusion of the said
evidence was not harmless, because the court cannot
say with positive assurance that the jury would have
decided the same way had it been admitted. See
EEOC v. Manville Sales Corp., 27 F.3d 1089,1095
(5th Cir. 1994) (“{W]e cannot say with conviction that
this [excluded] evidence would not have affected the
jury’s determination.”) So it shows that Thomas was
prejudiced by the trial Court’s erroneous ruling,
which affected Thomas’ substantial rights to do
discovery, especially when the Judge changed her
mind. Thomas also asks this Court, whether a Judge
can rule against its own findings. Not many Judges
has done like this. So the review on this issue also
has public importance. So this is also a reason to
grant this petition.
CONCLUSION
The Petition for certiorari should be granted
Respectfully Submitted
QL
Robert Thomas, Pro Se
5702 S. Staples St. #B7
Corpus Christi, Texas 78413
Ph. 956-639-5791
Email: thomasr1025@yahoo.com
February 25, 2008.
32
7
8.
9.
APPENDIX
TABLE OF CONTENTS
. Opinion entered by the U.S. Court of Appeals
for the 5‘ Circuit, entered on October 26,
2007. ------+-------------n- ee nee eee n nee n een eee (la-8a)
Order denying the petition for rehearing en
banc, filed on November 26, 2007------ (9a-10a)
Order and Opinion entered by the U.S.
District Court, for the Southern District of
Texas, Brownsville, Division, on July 25, 2006
(Michael K. Milby, Clerk)---------------- (1la-21a)
Order (Judgment) entered by the U.S. District
Court, for the Southern District of Texas,
Brownsville, Division, on July 25, 2006
(Michael K. Milby, Clerk)--------------------- (22a)
Order (on motion to compel Trico) entered by
the U.S. District Court, for the Southern
District of Texas, Brownsville, Division, on
May 31, 2006 (Michael K. Milby, Clerk)----------
on nen anew enn nnn ne nen anne ween nen nennnnennennenne nee (23a-30a)
Order entered in Cause No. 2001-12-5216-E,
In the interest of Gloria Thomas and Ashley
Thomas, on April 3, 2003, by Abel Limas.
(Filed on April 3, 2003, by Aurora De La
Garza, District Clerk, Cameron County,
Te@X€S) ----------------+---------2 22-20-22 e ee eee (31a-32a)
. Article-Thanks Abel Limas------------- (33a-34a)
Article-Americas Most wanted yields few tips
on Amit Livingston------------------------ (35a-36a)
Constitution Topic-Due Process------- (37a-40a)
10.Supplementary Information regarding signing
consent ---------------------------------------- (41a-42a)
la
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
FILED
October 26, 2007
No. 07-40114
Summary Calendar
ROBERT THOMAS
Plaintiff-Appellant
v.
TRICO PRODUCTS CORP; TOMKINS PLC;
JIM GAITHER; JOHN WIN; GATES
CORPORATION
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No.1:05-CV-174
Before KING, DAVIS, and CLEMENT, Circuit
Oe
2a
Judges.
PER CURIAM:*
Robert Thomas ("Thomas") appeals the aistrict
court's grant of the defendants' motion for summary
judgment.! We AFFIRM
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be published and is
not precedent except under the limited circumstances set forth
in 5TH CIR. R. 47.5.4.
1 Thomas originally sued five defendants for employment
discrimination. On January 12, 2006 and March 28, 2006, the
district court dismissed the claims against two of the
defendants, Tompkins PLC and Gates Corporation,
respectively, for lack of personal jurisdiction. Thomas appeals
those dismissals here; however, because his claims against all
defendants fail on the merits, we decline to reach the question
of whether personal jurisdiction exists regarding Tompkins
PLC and Gates Corporation. The remaining defendants, Trico
Products Corporation, Jim Gaither, and John Win, are
collectively referred to as "Trico."
3a
No. 07-40114
Trico hired Thomas as a tool maker in 2001.
Thomas, who is from India, demonstrated chronic
attendance problems, resulting in multiple warnings
and, ultimately, suspension. On January 26, 2002,
Trico administered a written warning to Thomas
regarding his attendance. Thomas acknowledged his
problem with poor attendance, but proceeded to
incur twenty-one unexcused incidents of tardiness or
absences after the written warning. On April 24,
2002, Trico issued a second written warning
regarding Thomas's attendance, but the problems
persisted. Finally, Trico suspended Thomas for three
days on November 25, 2002.
On April 2, 2003, Thomas was held in
contempt of court in a child custody matter and was
incarcerated indefinitely. He had no available
annual leave and had been told by Trico that any
further absences would result in his discharge.
Rather than being fired, he voluntarily resigned
from Trico. On August 4, 2003, he reapplied for
employment with Trico as a tool maker. Although
Trico told Thomas that another candidate had
applied for the job, Thomas admits that he did not
include all of his experience on his application,
thinking that the application process was a
"formality." Trico considered both applicants, who
had similar experience and education, including
having worked for Trico, and hired the other
applicant, Gary Eich ("Eich"):~
Thomas filed a complaint with the Equal
Employment Opportunity Commission ("EEOC"),
alleging that Trico discriminated against him on the
4a
No. 07-40114
basis of his national origin and race when they hired
Eich instead of him. The EEOC dismissed Thomas's
case and informed him on February 28, 2005 of his
right to sue in federal court. Thomas filed a lawsuit
against Trico in federal district court on May 31,
2005, alleging employment discrimination under 42
U.S.C. § 1981 and Title VII of the Civil Rights Act of
1964("TitleVII"),as amended, 42 U.S.C. §§ 2000e-
2000h-6. On July 25, 2006, the district court granted
summary judgment in favor of Trico. Thomas now
appeals that ruling.
This Court reviews a district court's grant of
summary judgment de novo, applying the same
standards as the district court. Strong v. Univ.
Healthcare Sys., L.L.C., 482 F.3d 802, 805 (5th Cir.
2007). Summary judgment is proper when there
exists no genuine issue of material fact and the
movant is entitled to judgment as matter of law.
FED. R. ON. P. 56(c). "The evidence and inferences
from the summary judgment record are viewed in the
light most favorable to the nonmovant." Minter v.
Great Am. Ins. Co. of N. Y., 423 F.3d 460, 465 (5th
Cir. 2005). To survive a summary judgment motion,
the nonmovant "need only present evidence from
which a jury might return a verdict in his favor."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
(1986).
Title VII disallows discrimination in hiring or
termination of an individual based on his race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-
2(a)(1). In cases where no direct evidence exists, we
analyze discrimination claims under Title VII using
the burden-shifting framework created by the
Sa
No. 07-40114
Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).2 In cases involving
termination for workplace rule violations, an
individual must first establish a prima facie case for
discrimination. Id. at 802. Thomas can establish a
prima facie case for discrimination if he can show
that (1) he is a member of a protected class, (2) he
was qualified for the position for which he applied
and for which the employer was seeking applicants,
(3) he was not hired despite his qualifications, and
(4) someone outside of the protected class was hired
instead. Crawford v. U.S. Dep't of Homeland Sec.,
Nos. 06-11163, 06-11387, 2007 WL 2348661, at *6
(Sth Cir. Aug. 16, 2007); Septimus v. Univ. of
Houston, 399 F.3d 601, 609 (5th Cir. 2005). If a
prima facie case for discrimination can _ be
established, then the burden shifts to the defendants
to rebut Thomas's case by articulating a legitimate,
nondiscriminatory reason for’ his _ rejection.
McDonnell Douglas, 411 U.S. at 802. If the
defendants present such a reason, then the burdon
shifts back to Thomas to show that the defendants'
reasons for refusing to hire him are not true, but are
mere pretexts for discrimination, or that the reasons
are true, but his national origin was a motivating
factor. McDonnell Douglas, 411 U.S. at 804-05.
2 The analysis for claims under § 1981 and Title VII employ
identical burden-shifting frameworks ffor evaluating
discrimination claims, so we analyze Thomas's claims under
both simultaneously. See Jones v. Robinson Prop. Group, L.P.,
427 F.3d 987, 992 (5th Cir. 2005); Raggs v. Miss. Power &
Light Co., 278 F.3d 463, 468 (5th Cir. 2002).
No. 07-40114
Here, Thomas succeeds in establishing a
prima facie case for discrimination based on his
national origin. Thomas is a member of protected
class because of his ancestry and national origin. He
applied for an advertised job for which he was
qualified. Trico did not hire him, but instead hired
someone outside of Thomas's protected class. To
rebut Thomas's prima facie case, Trico articulates
legitimate, nondiscriminary reasons for rejecting his
application. Trico contends that Eich's reliability,
loyalty, ties to the community, and demonstrated
longevity in the field of tool- and die-making without
gaps in employment made him a superior candidate
compared to Thomas, who, although possessed
similar qualifications, nevertheless had a less stable
employment record, a criminal history, and was on
his final warning for attendance before he resigned
from Trico. Trico had employed both Eich and
Thomas before, so it was in a unique position to
evaluate their respective work ethics and abilities.
Shifting the burden of proof back to Thomas,
he may prove that Trico's reasons for not hiring him
were pretextual by demonstrating that he was
"clearly better qualified" than Eich. Manning v.
Chevron Chem. Co., 332 F.3d 874, 882 (5th Cir.
2003). Thomas attempts to show that he was better
qualified than Eich by presenting his educational
background and his technical skills as a tool-maker,
even though he admits he did not list all of these
qualifications on his application. He argues that
Eich's work experience and education fail to meet
the minimum qualifications listed in Trico's job
7a
No. 07-40114
advertisement. We have held, however, that "better |
education, work experience, and longer tenure with
the company do not establish that [an applicant] is
clearly better qualified," meaning that an employer
has a right to depart from published job
requirements and to value certain attributes over
others. Price v. Fed. Express Corp., 283 F.3d 715,
723 (5th Cir. 2002). "[T]he employer's judgment as to
qualifications will not be probative of the issue of a
discriminatory motive unless the qualifications are
so widely disparate that no reasonable employer
would have made the same decision." Deines v. Tex.
Dep't of Protective and Regulatory Servs., 164 F.3d
277, 282 (5th Cir. 1999). Ultimately, the law
requires only that the employer's decision is
"somewhere within the realm of reason." Id.
When viewing the two applications before it,
Trico found the work experience between Thomas
and Eich to be similar. Trico hired Eich based upon
his observed work ethic, acceptable attendance
record, and lack of criminal history. We hold that
Thomas has failed to disprove Trico's legitimate,
nondiscriminatory explanation that Eich was better
qualified for the position. He also has not presented
other evidence of pretext for discrimination, nor has
he shown that his national origin was a motivating
factor in Trico's hiring decision.
3 Thomas raises issues for appeal in his brief regarding the
district court's decisions on discovery that are outside the scope
of this proceeding and are not enumerated in his notice of
appeal. "Rule 3(c) of the Federal Rules of Appellate Procedure
No. 07-40114
Therefore, the judgment of the district court is
AFFIRMED
requires that the notice of appeal specify the order from which
the appeal is taken." Hinsley v. Boudloche (In re Hinsley), 201
F.3d 638, 641 (5th Cir. 2000). Therefore, we decline to address
those arguments.
9a
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
FILED
NOV 26 2007
No. 07-40114
ROBERT THOMAS
Plaintiff — Appellant
Vv.
TRICO PRODUCTS CORP; TOMKINS PLC; JIM
GAITHE; JOHN WIN; GATES CORPORATION
Defendants- Appellees
Appeal from the United States District
Court for the
Southern District of Texas, Brownsville
Se ee eee ee eee ee
ON PETITION FOR REHEARING EN BANC
(Opinion 10/26/07, 5 cir. , : F.3d )
10a
Before KING, DAVIS, and
CLEMENT, Circuit
Judges. PER CURIAM:
( x ) Treating the Petition for Rehearing
En Banc as a Petition for panel Rehearing,
the Petition for Panel Rehearing is DENIED.
No member of the panel nor judge in regular
active service of the court having requested
that the court be polled on Rehearing En
Banc (FED. R. APP. P. and 5T5 CIR. R.
35) , the Petition for Rehearing En Banc is
DENIED.
( ) Treating the Petition for Rehearing
En Banc as a Petition for Panel Rehearing,
the Petition for Panel Rehearing is DENIED.
The court having been polled at the request of
one of the members of the court and a
majority of the judges who are in regular
active service and not disqualified not
having voted in favor (FED. R. APP. P. and
5TH CIR. R. 35) , the Petition for Rehearing
En Banc is DENIED.
ENTERED FOR THE COURT:
UNITED STATES CIRCUIT JUDGE
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
ROBERT THOMAS, §
Plaintiff, §
§
Vv. § CIVIL ACTION
§ NO. B-05-174
TRICO PRODUCTS’ §
CORPORAION, JIM §
GAITHER AND JOHN §
WINN §
§
Defendants. §
§
ENTERED
JUL 25 2006
ORDER & OPINION
BE IT REMEMBERED that on July 24th
2006, the Court considered Defendants’ Motion for
Summary Judgment [Dkt. No.127].
Introduction
This is an employment discrimination suit
filed by Plaintiff Robert Thomas against his former
employer, Trico Products Corporation ("Trico")
alleging race, ethnicity, and national origin
discrimination.
Factual and Procedural Background
Plaintiff alleges that his former employer, Trico,
discriminated against him based on his ethnicity and
12a
national origin when he was not rehired following a
period of incarceration. The employer contends that
Trico hired a better qualified candidate for the
position , in part, because Plaintiff was frequently
absent or tardy during his years of employment.
Defendants contend that Plaintiff was offered a
choice at the time of his incarceration: either resign
voluntarily or be terminated. Plaintiff resigned
voluntarily after using all of his vacation days to
cover his absences during his incarceration. The
parties disagree about whether the Defendants
agreed to rehire Plaintiff following his incarceration
or whether Defendants encouraged Plaintiff to
reapply at that time. Plaintiff and other applicants
applied for an open position in August 2003, and
Trico selected one of the other applicants over
Plaintiff.
Plaintiff blames his divorce for his frequent
absences during his prior employment with Trico.
During the divorce and custody action in state court,
Plaintiff refused to consent to a passport application
for his seven-year-old daughter as part of a state
court divorce and custody action, and the judge
ordered Plaintiff incarcerated indefinitely unless he
signed the application. Plaintiff was incarcerated on
April 3, 2003 and released on July 31, 2003, despite
his failure to comply with the court's instructions
regarding the passport application. The employment
discrimination claims in this case arose following
Plaintiffs resignation from Trico Products
Corporation on April 17, 2003 and Plaintiffs August
2003 application. After Defendants refused to hire
Plaintiff, Plaintiff timely filed a charge with the
Equal Employment Opportunity Commission
("EEOC") and the Texas Human Rights Commission
13a
("THRC"). After completing the EEOC process,
Plaintiff filed this action. Plaintiff brings claims
under Title 42 United States Code section 2000e(5)
("Title VII") and under Title 42 United States Code
section 1981 ("§ 1981").
Plaintiff alleges that Trico and two Trico
employees refused to hire him following his
incarceration based on his ethnicity and national
origin. Plaintiff claims that other employees have
been permitted to take extended leaves and return to
work. Plaintiff believes that Defendants did not
permit him to take a leave during his incarceration
and did not rehire him based on the fact that he was
born in India and is Indian. Plaintiff also describes
the failure to rehire him as being based on "East
Indian ancestry" and “ethnic characteristics" [Dkt.
No. 1]. Plaintiff alleges that Defendants told him at
the time of his resignation that he would be rehired
when he reapplied. Additionally, Plaintiff contends
that an opening for the same or a substantially
similar job existed at the time of his application in
August 2003; however, he states that other
individuals were hired who were not Indian or from
India.
The parties agree that Robert Thomas and
Gary Eich submitted applications to Trico in August
2003. Trico offered Eich a position as Tool Maker on
August 18, 2003 [Dkt. No. 133, Ex. 8]. According to
Thomas' application submitted on August 4, 2003
{Dkt. No. 127, Ex. F], Plaintiff had previously worked
for Trico for two years, had been convicted of a
criminal offense, had earned a diploma in tool and
die making in India, and had worked as a tool maker
for approximately seven years total with three
differentcompanies. The criminal offense report
Ida
submitted with Plaintiffs application listed one
conviction for DWI in 1998 and the April 2003
incarceration for civil contempt in the custody matter
[Dkt. No. 133, Ex. 14]. Additionally, in his deposition,
Plaintiff confirmed the DWI conviction and added
that he had been “arrested maybe two or three other
times" for assault and interference with child custody
[Dkt. No. 127, Ex. H, p. 60-61}. According to Eich's
application on August 1, 2003 [Dkt. No. 127, Ex. G],
Eich has previously worked for Trico for nine years
in the press room, had no criminal convictions, had
worked in tool and die repair at T & C Stamping and
AdTech from approximately 1995 until 2003. In his
deposition, Eich testified that he had seven years of
experience in tool and die repair [Dkt. No. 133, Ex. 9,
p. 47], including an apprenticeship during his years
of working at AdTech [Dkt. No. 133, Ex. 9, p. 18].
Defendants contend they had legitimate, non-
discriminatory reasons for selecting Gary Eich over
Plaintiff to fill the Tool Maker position in the
Brownsville shop. In particular, Defendants cite
Thomas' attendance problems, frequent tardiness,
recent voluntary resignation, and criminal history as
reasons they did not select him to fill the open
position. Additionally, Defendants note Eich's
reliability, versatility, prior employment with Trico,
positive references, and ties to the community as
reasons he was chosen.
Summary Judgment Standard
Summary judgment shall be granted if the record,
taken as a whole, "together with 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.
15a
56(c). Factual controversies, if any exist, are
resolved in favor of the nonmoving party. See Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (Sth Cir.
1994) (en banc); Hunt v. Cromartie, 526 U.S. 541,
552 (1999). The party making a summary judgment
motion has the initial burden of informing the court
of the basis for its motion and identifying those
portions of the pleadings and discovery documents
that demonstrate the absence of a genuine issue of
material fact. See Celotex Corp. v. Catreff, 477 U.S.
317, 325 (1986). "[T]he burden on the moving party
may be discharged by ‘showing’ . . . that there is an
absence of evidence to support the nonmoving
party's case." Id.; see also Colson v. Grohman, 174
F.3d 498, 506 (5th Cir.1999). Although the party
moving for summary judgment must "demonstrate
the absence of a genuine issue of material fact,"
Celotex Corp., 477 U.S. at 323, the party "need not
negate the elements of the nonmovant's case.” Little,
37 F.3d at 1075 (citing Celotex, 477 U.S. at 323).
If the moving party meets this burden, the
non-movant then must designate specific facts,
beyond the pleadings, showing there is a genuine
issue for trial. See Fed. R. Civ. P. 56(e); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986); Little, 37 F.3d at 1075 (citing Celotex, 477
U.S. at 325). "Unsubstantiated assertions" or "mere
allegations or denials" will not adequately cast
doubt on material facts at issue. See id. Likewise,
the nonmovant must present more than a "mere
scintilla" of evidence. See Davis v. Chevron U.S.A.,
Inc., 14 F.3d 1082, 1086 (5th Cir. 1994). The
evidence must be viewed in the light most favorable
to the nonmovant. See Whelan v. Winchester Prod.
Co., 319 F.3d 225, 228 (5th Cir. 2003); Walker v.
16a
Thompson, 214 F.3d 615, 624 (5th Cir. 2000).
Summary judgment should be granted “when the
nonmoving party fails to meet its burden to come
forward with facts and law demonstrating a basis
for recovery that would support a jury verdict."
Little, 37 F.3d at 1071.
Analysis
In a Title VII action, the plaintiff has the
burden of proving a prima facie case of
discrimination by a preponderance of the evidence.
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Plaintiffs claims should be analyzed as a
failure-to-hire case. In a case alleging discriminatory
failure to hire, the plaintiff must show that (1) he is
a member of a protected group; (2) he applied for a
position for which he was qualified and for which
the employer was seeking applicants; (3) despite his
qualifications, he was not selected for the position;
and (4) after the employer declined to hire the
plaintiff, an individual not in the protected class was
selected to fill the position. Celestine v. Petroleos de
Venezuella SA, 266 F.3d 343, 354-55 (5th Cir. 2001).
After the plaintiff establishes a prima facie case, the
defendant must produce a_ legitimate, non-
discriminatory reason for the hiring decision. Id. If
the defendant succeeds in producing such a reason,
the plaintiff must prove the reason was a pretext. Id.
Courts analyze Section 1981 claims under the
McDonnell Douglas burden-shifting framework as
well. Patterson v. McLean Credit Union, 491 U.S.
164, 186 (1989); see Kokes v. Angelina College, 220
F. Supp. 2d 661, 665 (E.D. Tex. 2002). In a failure-
topromote claim under § 1981, plaintiff must
establish the same elements to prove a prima facie
EA RN RS OR TT pert oS me
ae
:
17a
case as under Title VII. Wheeler v. BL Development
Corp., 415 F.3d 399, 405 (5th Cir. 2005). Therefore,
the Court will analyze all of the Plaintiffs claims
under this same framework.
In order to establish a prima facie case,
Plaintiff has shown that he is a member of a
protected group because of his ancestry, East
Indian, and national origin, India [Dkt. No. 26]. He
applied for the position of tool maker that Defendant
Trico advertised in The Brownsville Herald on July
20, 2003 {Dkt. No. 133, Ex. 5]. Plaintiff was qualified
by education and experience for the position, and he
had held the same position prior to his resignation
[Dkt. No. 127]. Plaintiff was not hired. Instead,
Trico hired Gary Eich, a Caucasian man born in the
United States, thus, not a member of the protected
class [Dkt. No. 127]. Therefore, Plaintiff has met his
burden to establish a prima facie case of
discrimination.
Under the McDonnell Douglas burden shifting
framework, when the Plaintiff has established a
prima facie case of discrimination, the defendant
has a burden of production to show a legitimate,
non-discriminatory reason for the hiring decision.
411 U.S. 792 (1973). Trico indicates that Eich had a
longer and more reliable past work history with the
company than Thomas [Dkt. No. 127]. Plaintiff's
tardiness and absenteeism during his two year
tenure at Trico led to verbal and written warnings
that were documented by his supervisors [Dkt. No.
127, Ex. A, B, C, and D]. Additionally, Plaintiff had
a criminal history while Eich did not [Dkt. No. 127].
Although Plaintiff had many years of experience as
a tool maker and had completed formal training for
such a position, Eich also had experience in tool and
18a
die repair and had participated in a local on-the-job
apprenticeship. While Trico's advertisement
described the desired technical expertise and work
experience, Trico also valued _ reliability,
dependability, and timeliness in its prospective
employees [Dkt. No. 134].Trico has shown that
Plaintiffs poor attendance and _ tardiness, his
criminal history, and his_ recent resignation
provided legitimate, non-discriminatory reasons for
opting to hire Gary Eich instead of Robert Thomas.
Once a defendant has produced a legitimate, non-
discriminatory reason, the plaintiff has the burden
of proving that the reason was pretextual.
Showing that the applicant who was not hired
was "clearly better qualified" than the person hired
is enough to prove that the employer's reason was
pretextual. Price v.Federal Express Corp., 283 F.3d
715, 723 (5th Cir. 2002). The "clearly better
qualified"standard is high, requiring that “no
reasonable person, in the exercise of impartial
judgment, could have chosen the candidate selected
over the plaintiff for the job in question." Barnes v.
United States Dept. of the Navy, 95 Fed. Appx. 46,
50 (5th Cir. 2004)(citing Celestine v. Petroleos de
Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001)).
Unless the disparities in qualifications "are so
apparent as to virtually jump off the page and slap
you in the face," courts should hesitate before
substituting their judgment for that of the
individual evaluating the candidates. Deines v.
Texas Dept. of Protective & Regulatory Servs., 164
F.3d 277 (5th Cir. 1999). "[Cjourts do not function
as arbiters of employer's business decisions."
Gonzalez v.Conoco,Inc.,2000WL 251744 15(S.D.
19a
Tex. 2000).
Plaintiff contends that Trico did not rehire
him following his resignation due to his ethnicity
and national origin. He argues that he is clearly
better qualified than the individual selected for the
position based on his years of experience as a tool
maker and his training in India. Thomas had
worked as a tool maker for three companies
between 1996 and 2003. His application did not
indicate the exact start dates of each position, but
assuming the maximum months worked in each
year up to April 2003,Thomas had seven years of
experience as a tool maker prior to applying in
August 2003. At the time of his application, Thomas
had not worked for approximately 3 months during
the period of his incarceration. Gary Eich had
worked in tool and die repair for two companies
between 1995 and 2003. His application does not
indicate which year he was promoted from the
Press Room Supervisor to Tool and Die Repair at
AdTech. Based on the application, it appears that
Eich had as many as eight years of experience. In
his deposition, Eich clarified that he had seven
years of tool and die repair experience. Although
Plaintiff and the individual selected for the job had
equivalent years of experience, the Fifth Circuit has
held that attempting to equate vears served with
superior qualifications is unpersuasive.
Bodenheimer v. PPG Indus., 5 F.3d 955, 959 (5th
Cir. 1993). Based on their training and experience,
both Thomas and Eich were qualified for the open
position. Trico had previously employed both men,
and thus, Defendants were in a unique position to
evaluate the applicants based on their past work
’
20a
history and performance. Plaintiff has not produced
any evidence that Eich performed poorly during his
previous nine years of employment with Trico.
Additionally, Plaintiff has not presented any
evidence that Defendants based their hiring
decision on his race, ethnicity, or national origin.
On the contrary, Defendants kept a personnel file
on Plaintiff in which his supervisors documented
his history of poor attendance and frequent
tardiness [Dkt. No. 127, Ex. A, B, C, and DJ].
Defendants possessed past personnel files for both
applicants in August 2003. Thus, after determining
both men were qualified for the open position,
Defendants offered the position to the applicant
determined to be better qualified for the job.
Plaintiff has failed to meet his burden of proof
that he was "clearly better qualified" than other
applicants, and therefore, Plaintiff has failed to
establish that Defendant's reasons for failing to hire
him were pretextual. Plaintiff has failed to disprove
Defendant's explanation that Eich was better
qualified for the position. In conclusion, Thomas
has failed to present evidence from which a
reasonable factfinder could infer that he was
intentionally discriminated against. Although
Plaintiff may believe discriminatory animus
motivated Defendant's hiring decision, Plaintiff has
failed to produce any factual basis that his national
origin or ethnicity was a motivating factor in the
hiring decision. Absent a genuine fact question that
Plaintiff suffered unlawful discrimination in his
non-selection for the job, summary judgment is
proper. Therefore, the Court GRANTS Defendants'
Motion for Summary Judgment [Dkt. No. 127].
Zila
Conclusion
For the reasons discussed above, the Court
GRANTS Defendants' Motion for Summary
Judgment [Dkt. No. 127]. In addition, the Court
DISMISSES AS MOOT Plaintiffs Motion for
Extension of Time to Conduct Mediation [Dkt. No.
129]. Finally, the Court ORDERS the District Clerk
to close the above-styled case upon entry of final
judgment.
DONE at Brownsville, Texas, this 24th
day of July, 2006.
\ é
| y Lo }
TEAK nf 7 - *
i}
VU
Hinda G. Trgle
United States District Judge
22a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
ROBERT THOMAS, §
Plaintiff, §
§
Vv. § CIVIL ACTION
§ NO. B-05-174
TRICO PRODUCTS’ §
CORPORAION, JIM §
GAITHER AND JOHN §
WINN §
§
Defendants. §
ENTERED
JUL 25 2006
ORDER
BE IT REMEMBERED that on July 24th 2006,
having granted summery judgment in favor of
Defendants on all claims, the Court ENTERS final
judgment pursuant to Federal rule of civil procedure
58.
DONE at Brownsville, Texas, this 24th day of
July, 2006.
Hinda G. Trgle
United States District Judge
23a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
ROBERT THOMAS, §
Plaintiff,
CIVIL ACTION
NO. B-05-174
Vv.
§
§
§
§
TRICO PRODUCTS §
CORPORAION, JIM §
GAITHER AND JOHN §
WINN §
§
§
Defendants.
§
ENTERED
MAY 31 2006
ORDER
BE IT REMEMBERED that on May 31* 2006,
the court considered Plaintiffs Motion to
Comple[Dkt. No. 107], Plaintiffs motion to pay the
Filling Fee for the Appeal [Dkt. No. 116], and
Defendants’ Response [Dkt. No. 117].
Introduction
The Court has discussed the factual and
procedural background of this case in several other
recent orders [Dkt. No. 99, 100]. This is a failure-
to-hire employment discrimination case based on
national origin.
Frequently, discovery matters pose special
problems in employment discrimination cases. See
24a
Atkinson v. Denton Publishing Co., 84 F.3d 144 (5th
Cir. 1996); Beasley v. First American Real Estate
Info. Serv. Inc., 2005 WL 1017818 (N.D. Tex. 2005).
Privacy concerns for non-party employees as well as
extraordinarily broad requests for production are
common sources of conflict. Raddatz v. Standard
Register Co., 177 F.R.D. 446 (D. Minn. 1997). Some
courts hgxe ordered in camera inspection of
personnel files as a means to protect the privacy of
other employees. Atkinson, 84 F.3d at 148. Other
courts have ordered the production of redacted
versions of files. Beasley. 2005 WL 1017818.
Additionally, courts have imposed temporal and
geographic limitations on the discovery to limit the
risks to non-party employee privacy. Id.
In the present case, several of plaintiffs discovery
requests concern information from personnel files of
non-party employees [Dkt. No. 107]. Other requests
are overly broad especially in the context of a
failure-to-hire case involving one applicant. As
Plaintiff is proceeding pro se, the Court will address
each request in Plaintiffs Motion to Compel
individually.
Requests for Production
Both the scope and procedure for requests for
production are governed by Rule 34 of the Federal
Rules of Civil Procedure.
Request for Production No. 10 seeks perscnnel
files for Plaintiff; non-party employees Gary Eich,
Guadalupe Cardenas, and Joe De La Cerda;
employees hired since April 16, 2001; and all
Brownsville Trico tool room employees. Defendants
object due to the relevance, scope and potentially
25a
confidential nature of the request.
These requests are potentially relevant in
that this information may establish any pattern or
practice of discrimination on the part of the
Defendants. However, the scope of the request is
overly broad. Defendants shall provide Plaintiff his
complete personnel file. The request for information
about specific similarly-situated employees is
reasonable, but these requests shall be subject to
redaction of all confidential information in order to
protect the privacy of the individuals. Defendants
concede that Gary Eich and Plaintiff applied for the
same position. Therefore, Gary Eich's personnel file
is relevant to the failure-to-hire inquiry. Defendants
shall produce LEich's personnel file with all
confidential material redacted. Plaintiff has not
adequately identified why the personnel files of
Guadalupe Cardenas and Joe De La Cerda are
relevant in this matter. Thus, Defendants do not
need to produce these personnel files.
The production of personnel files for all
employees hired since April 2001 and all tool room
employees is overly broad. As Plaintiff seeks to
compare the rejection of his application with any
new hires following his August 2003 application
date, the Defendant shall provide the following
about new Brownsville tool room employees
hiredafter August 1, 2003 from existing documents:
(1) the identity of each employee; (2) the employee's
current or last known address; and (3) the race or
ethnicity of the employee, if previously provided in a
document such as an application. See Raddatz, 177
F.R.D. at 448. No other production in response to
this request is required.
In response to Request for Production No. 18,
Defendants cite privilege and agree to submit a
privilege log to Plaintiff. In Defendants’ response
[Dkt. No.117], Defendants state that the privilege
log has been provided to Plaintiff.
Request for Production No. 31(A) seeks
information about individuals hired after Plaintiff's
application date. While the scope of the request is
broad, the information may establish a pattern or
practice of discrimination. Therefore, the Court
orders Defendants to provide any documents that
include the following information about individuals
hired to work in the tool room of the Brownsville
shop after August 1, 2003: (1) specific training or
education prior to hire; (2) number of years of
applicable work experience; and (3) any prior
employment with Trico. See Beasley, 2005 WL
1017818.
Request for Production No. 31(B) seeks
information about the attendance records of
individuals hired after Plaintiffs application date
in August 2003. This information is not relevant.
Plaintiff resigned from his former position in April
2003; he was not terminated for his absence from
work during his incarceration.
Request for Production No. 32 _ seeks
information about the clock used to time-stamp the
employees’ timecards at Trico. This request is not
relevant to this case because this is a failure-to-
hire matter. Therefore, Plaintiffs request for
production is not relevant, and Defendants'
objections are valid. |
Request for Production No. 34 seeks telephone
records pertaining to calls made by Plaintiff from
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the detention center where he was incarcerated.
Defendants object that this request is unduly
burdensome. The Court agrees with Defendants and
refuses to compel production of any such records.
Request for Production No. 41 _ seeks
information about the resignation or termination of
other tool room employees in the period following
April 2001. This request is not relevant as this
matter is a failure-to-hire lawsuit. Defendants’
objections are valid.
Requests for Production No. 45, 46, 48, and 49
seek information about prior claims and suits against
Trico. Defendants object that these requests exceed
the scope of the matter, are not relevant, lack
reasonable particularity, and require the production
of confidential information of non-parties. Theses
type of requests are typical requests in employment
discrimination cases. See Beasley, 2005 WL 1017818.
However, courts often impose temporal and
geographic restrictions on such requests in response
to defendant objections. Id. Additionally, limiting the
request to employment discrimination matters is
appropriate as well. However, in Defendants'
Response [Dkt. No. 117], Defendants indicate that no
other employment discrimination lawsuits have been
filed against Trico in Texas. Therefore, Defendants
have complied with this request by informing
Plaintiff that no such documents are available.
Request for Production No. 51 _ seeks
information about the race of new hires after the time
of Plaintiffs application. This information is
adequately addressed by Request for Production No.
10. Therefore, Defendants need not produce any
additional information in response to this request.
28a
Request for Production No. 52 _ seeks
information from the personnel file of Joe De La
Cerda. Defendants object to the relevance, scope, and
lack of reasonable particularity of the request.
Additionally, Defendants object to the request of
confidential information regarding a _non-party.
Plaintiff has failed to establish the relevance of such
information. Therefore, no further response is
required to Request for Production No. 52.
Requests for Production No. 55 and 58 seek
information about parties who have been dismissed
from this action. These requests are not relevant.
Defendants' objections are valid.
Despite Plaintiffs objections, Defendants have
complied with Federal Rule of Civil Procedure 34(b)
by providing the records "as they are kept in the
usual course of business.”
Interrogatories ;
Rule 33 of the Federal Rules of Civil Procedure
govern interrogatories among the parties in a civil
suit.
Plaintiffs First Interrogatory No. 5 requested
information about individuals who applied for
employment between January 2005 and the present.
Plaintiffs Second Interrogatory No. 18 request
specific information about applicants between
January 2001 and the present. Further temporal and
job description restrictions are necessary to ensure
the relevance of this request. Therefore, Defendants
need not respond further to First Interrogatory No. 5
or Second Interrogatory No. 18.
Interrogatory No. 6 requests information about all
advertisements for Defendants' job openings between
29a
January 2001 and the present. Defendants object to
the scope and relevance of the request. According to
Defendants' Response [Dkt. No. 1171, Defendants
have provided Plaintiff with the available
information about the advertising of job openings.
Interrogatory No. 7 requests information
about Defendants’ reasons for not hiring Plaintiff
following his application. Defendant objects that the
interrogatory is vague and ambiguous. Defendants’
Response indicates that this information has been
communicated to Plaintiff.
Interrogatory No. 8 requests information
about the resignation of another employee. This
information is not relevant because this case is a
failure-to-hire case. Defendants' objections are valid.
Interrogatory No. 14 seeks information about
the time clock in the tool room in Brownsville. This
information is not relevant because this case does
not involve Plaintiffs tardiness or absence from
work. Defendants’ objections are valid.
30a
CONCLUSION
The Court GRANTS Plaintiffs Motion to
compel IN Part [Dkt. No. 107] with regards to
Request for production No. 10 and 31(A), as specified
above, and ORDERS Defendants to comply by June
6, 2006. The Court DENIES the remaining requests
by Plaintiff.
Additionally, the Court DENIES Plaintiffs
Motion to Continue and Extend Al! Deadlines in the
Scheduling Order [Dkt. 120] for failure to show good
cause and Plaintiffs Motion t pay the Filing Fee for
the Appeal in Installments [Dkt. No. 116] for the
reasons stated in the Court’s previous order denying
Plaintiffs Application to Proceed In Forma Pauperis.
DONE at Brownsville, Texas, this 31 day of
May 2006.
Hilda G. Tagle
United States District Judge
3la
NO. 2001-12-5216-E
IN THE INTEREST OF § IN THE DISTRICT
COURT
§
GLORIA THOMAS
AND ASHLEY
THOMAS § 357 JUDICIAL
§ DISTRICT
CHILDREN § CAMERON COUNTRY,
TEXAS
FILED
APR 03 2003
ORDER
On this the 3'¢ day of April, 2003, came on to
be considered the Motion for Enforcement filed on
February 13, 2003, by ELSY ROBERT.
ELSY ROBERT appeared in person and with
attorney of record, PETER C. GILMAN.
ROBERT THOMAS appeared in_ person
representing himself.
The Court finds that ROBERT THOMAS
enjoys representing himself and has done so for
numerous motions, both at the trial court level as
well as to the Court of Appeals in the form of an
Appeal and a number of Writs of Mandamus.
The Court, after hearing the evidence
presented, as well as the arguments of both sides,
finds that ROBERT THOMAS is not in contempt of a
prior order in that said order is not specific.
The Court went on to order ROBERT THOMAS
to sign the document "Statement of Consent:
Issuance of a Passport To A Minor Under Age 14", to
32a
which ROBERT THOMAS refused to sign. The Court
herein finds ROBERT THOMAS in contempt of
court.
IT IS. THEREFORE ORDERED J that
Respondent is committed to the county jail of
Cameron County, Texas, until Respondent has
signed the Statement of Consent: Issuance of A
Passport To A Minor Under Age 14 and shall remain
incarcerated until ROBERT THOMAS signs the
Statement of Consent.
SIGNED FOR ENTRY this the 3rd day of
March, 2003.
Pt
4/3/03 COPIES TO
HON PETER GILMAN
HON ROBERT THOMAS
33a ,
Tuesday, February 07, 2006
Thanks, Judge Abel Limas
How does this happen?
A jury 1n the 404th state District Court convicted 31-
year-old Joe] Isaac Vela on Friday with the aggra-
vated sexual assault of an El Salvadoran immigrant
after a week of testimony.
Vela failed to appear for his sentencing.
Judge Abel Limas with the 404th State District
Court allowed Vela to remain free on bond
until his sentencing.
If you see this man, call the police.
posted by CouldBeTrue @ 9:39 AM _
1 Comments:
At 1:07 PM, drtee3 said...
Judge Limas is very generous when dealing with
guilty people. He sentenced the drunk driver (0.24%
blood alcohol) who hit my son and then ran home and
hid his car, hoping to escape responsibility, to 90
days in the county jail and another three months to
be served on weekends. The driver's name is
Candelario Cantu and he lives on White Ranch Road
in La Feria. We were told that there were 40 letters
written on behalf of this miscreant, who stated, "It
wasn't a very big wreck" when asked to make a
statement.
The judge just doesn't like for guilty people to suffer
—_—. - —- —— —-— - +--+ —.
34a
the inconvenience of paying for their crimes. We
planned to help anyone who ran against him in the
last election, but he ran without competition
I guess we get what we vote for.
Wm. W. Thompson,PhD
La Feria, TX
The above article can be found at:
http://stxc. blogspot.com/2006/02/thanks-judge-abel-
limas.html
35a
“America’s Most Wanted” yields few tips on
Amit Livingston
Laura B. Martinez (The Brownsville Herald)
July 27, 2007 - 10:41PM
BROWNSVILLE — Fugitive and convicted murderer
Amit Livingston’s appearance on “America’s Most
Wanted” generated a few telephone calls to the
television show on his possible whereabouts, a show
spokesman said on Friday. However, none have
panned out. Livingston was featured on the show on
June 23 and his appearance generated “some
information,” said show spokesman Evan Marshall.
Marshall said he could not go into great detail on the
information received, but it was turned over to law
enforcement officials. “We got the tips and followed
them up, but they haven’t panned out,” said Rolando
Castaneda, a Ranger with the Texas Department of
Public Safety.
Livingston has been on the run since April 14 after
failing to turn himself over to Cameron County
authorities.
In February, he pleaded guilty to the September
2005 murder of Edinburg substitute teacher Hermila
Hernandez.
Livingston was sentenced to 23 years in prison,
but was granted 60 days of freedom by state
District Judge Abel Limas to “get his affairs in
order.”
Livingston appeared in the “15 Seconds of Shame”
piece on “America’s Most Wanted,” which gives
viewers a quick recap of why the person is sought
and features the fugitive’s photograph.
According to a profile on Livingston, he was last seen
in Chicago, which is where his parents live.
36a
Other possible locations he could be include
Honolulu, Baltimore, Seattle and Dallas.
He’s believed to be a medical transcriptionist and
“computer savvy,” according to the profile posted on
the TV show’s Web site.
Marshall said it usually takes a while for the wanted
person to be “flushed out” and if nothing pans out,
there’s a possibility the segment featuring Livingston
could be aired again.
“There’s no plans yet, but it wouldn’t surprise me if
does air again,” Marshall said.
Cameron County District Attorney Armando
Villalobos said he really couldn’t comment on what
his office is doing to locate Livingston, but said “we
are confident that he will be apprehended.”
The Texas Rangers had contacted the show,
requesting coverage of the case, Marshall said
The above article can be found at:
http://www.themonitor.com/onset?id=4092&template
=article.html
37a
Constitutional Topic: Due Process
The Constitutional Topics pages at the
USConstitution.net site are presented to delve
deeper into topics than can be provided on the
Glossary Page or in the FAQ pages. This Topic Page
concerns Due Process. Due Process is mentioned in
two places in the Constitution; in the 5th
Amendment and in the 14th Amendment.
ee ee ee em mm rm ee ee ee ee ee we
Due process is a difficult thing to define, and the
Supreme Court has not been much help over the
years. Here's what we can say about due process:
In the Magna Carta, due process is referred to as
“law of the land" and “legal judgment of peers.” Some
state constitutions continue to use these phrases.
The reference in the 5th Amendment applies only to
the federal government and its courts and agencies.
The reference in the 14th Amendment extends
protection of due process to all state governments,
agencies, and courts.
Due process, in the context of the United States,
refers to how and why laws are enforced. It applies to
all persons, citizen or alien, as well as to
corporations.
In that, the "how" is procedural due process. Is a
law too vague? Is it applied fairly to all? Does a law
presume guilt? A vagrancy law might be declared too
PP AE A NOD PU ORE OPEN re oe eS eer os snes -
———— =
38a
vague if the definition of a vagrant is not detailed
enough. A law that makes wife beating illegal but
permits husband beating might be declared to be an
unfair application. A law must be clear, fair, and
have a presumption of innocence to comply with
procedural due process.
The “why” is substantive due process. Even if an
unreasonable law is passed and signed into law
legally (procedural due process), substantive due
process can make the law unconstitutional. The Roe
vu Wade abortion decision declared a Texas law in
violation of due process and ruled that in the first
trimester, it is unreasonable for a state to interfere
with a woman's right to an abortion; during the
second trimester, it is reasonable for a state to
regulate abortion in the interest of the health of
mothers; and in the third, the state has a reasonable
interest in protecting the fetus. Another application
has been to strike down legislation requiring certain
non-dangerous mentally ill persons be confined
against their will.
Generally, due process guarantees the following (this
list is not exhaustive):
¢ Right to a fair and public trial conducted in a
competent manner
e« Right to be present at the trial]
e Right to an impartial jury
¢« Right to be heard in one's own defense
« Laws must be written so that a reasonable
person can understand what is criminal
behavior
« Taxes may only be taken for public purposes
39a
e Property may be taken by the government
only for public purposes
e Owners of taken property must be fairly
compensated
The above from;
http://www.usconstitution.net/consttop_duep.html
Amendment 14 - ne Rights. Ratified
7/9/1868. Note History
1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of
the laws.
The above from;
http://www.usconstitution.net/const.html#Am5
Deprive
deprive v. 1. To take something away from; divest. 2.
To keep from the possession of something. [<Med.
Lat. Deprivare
— emit, iis la
The above from:
http://www.usconstitution.net/glossary.html#DEPRI
VE
Jurisdiction
jurisdiction n the power, right, or authority to
interpret and apply the law : the limits or territory
within which authority may be exercised
The above from;
http://www.usconstitution.net/glossary.html#JURIS
4ia
SUPPLEMENTARY INFORMATION: 22 U.S.C. 213
provides that before a U.S. passport can be issued
the applicant “shall subscribe to and submit a
written application which shall contain a true recital
of each and every matter of fact which may be
required by law or by any rules authorized by law."
Section 236 of the Admiral James W. Nance and Meg
Donovan Foreign Relations Authorization Act, Public
Law 106-113, 113 Stat. 1501A-420 (22 U.S.C. 213n)
(*2-Parent Consent Statute”) provides that the
Secretary shall require documentary proof of both
parents’ or
the legal guardian's consent before issuing passports
to children under age 14 “under penalty of perjury."
The requirement was added as a measure to prevent
the use of the United States passport in
international child abduction, and was implemented
by Section 51.27(b) of Title 22, Code of Federal
Regulations (CFR) (published at 66 Fed. Reg. 29904,
June 4, 2001). Section 51.27(b)(2) provides that both
parents must execute a passport application on
behalf of a minor under age 14 or, if only one parent
42a
or a legal guardian executes the application, such
parent or guardian must provide documentary
evidence that he or she is the sole parent or has sole
custody of the child or that he or she has the non-
applying parent's or guardian's consent, if
applicable, to the issuance of the passport.
Subsection 51.27(b)(2)(11)(B) provides that the
applying parent or guardian may provide a written
statement of consent from the non-applying parent or
guardian, if applicable, to the issuance of the
passport.
The above from:
http://a257.g.akamaitech.net/7/257/2422/06jun20041
800/edocket.access.gpo.gov/2004/04-22937.htm
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.