Petition for Writ of Certiorari — Bledsoe v. Nucor-Yamato Steel Co.

—_—_— eee Seca

Ee

D

Supreme Coun, U.S.

FILED

01147 4 an 28 2002

No. OFPIGE OF THE CLARK

IN THE

Supreme Court of the United States

RAYMON BLEDSOE SR.

Petitioner,

v.

NUCOR YAMATO STEEL COMPANY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

RAYMON BLEDSOE SR. ak le

710 Johnson Drive

West Memphis, AR. 72301

(870) 732-0269

Pro Se

January 28, 2002

r) Ott

SE EN nenne

i

QUESTIONS PRESENTED

Whether the Lower Courts holding on summary

judgement conflicts with this Court and, Anderson v. Liberty

Lobby Inc.

Whether the Eight Circuits holding conflicts with the

Congressional intent of the statutory scheme of the EEOC and

Title VII of the Civil Rights Act of 1964.

Whether the Eight Circuits holding conflicts with this

Courts interpretation of the 180 day limitations period for

filing a charge.

Whether the Eighth Circuits holding on the 180 day

limitations period conflicts with this Court and decisions of

the Eighth Circuit as it relates to the doctrine of stare decisis.

Whether the Eighth Circuits holding on equitable

tolling creates a Constitutional question as it relates to the

Fourteenth Amendment and equal access to the law.

Whether the Eighth Circuits holding on Arkansas

State Law claims conflict with this Court , the Arkansas

Supreme Court and Arkansas Law.

il

PARTIES TO THE PROCEEDING

The petitioner in this case is Raymon Bledsoe Sr.

The respondent is Nucor Yamato Steel Company.

ul

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

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REASONS FOR GRANTING THE WRIT ..................000008+ 10

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,

iv :

TABLE OF AUTHORITIES |

Page

Cases:

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

CIPTIIID scinisssicnsnnscesssncacsdaiisaniiniiibaniinsitinibiinmabenenianiabiabniiaasniiiggs 12, 16

Anderson v. Unisys Corp., 47 F. 3d 302, 306

Bh Se itsictescabccsiessnanidelestaaientibienioueiaionacianncines 9, 10, 21

Arkansas Associated Telephone Company v. Blankenship, ;

211 Ark. 645, 201 S. W. 2d 1019 (1947) ..0.... cc ceceeeeeseeeeees 27

Bailey v. Runyon, 167 F. 3d 466, 79 BNA FEP Cas.

Ge He ceiccsinccmennibennienstacaniinnndenitcnesianebon vitae 25

Bloomberg v. HCA Management Co., 858 F. 2d 642,

Oe, DOD sinnctatchcssatiscnsiininssentsitacsnitinstastsancinitinian 22

Chase Securities Corp. v. Donaldson, 325 U.S. 304,

316, 65 S. Ct. 1137, 1142-1143, 89 L. Ed. 1628

CII seidicsensisnnscsennnsdisosainepssesadsieiinesisbensusensleisiniouesinpiiasan 18, 24

De Bearn v. Safe Deposit & Trust Co. 233 U.S. 24,

SUA. TE GR, FE Be Se ep ac ciccaettcecnisscnsnsinisinctcincens 21

DeBrunner v. Midway Equip. Co., 803 F. 2d 950,

ee Se aciciescipieninccinnal veecnineasonesitonnccabions 10, 18, 21

Dillard Department Stores v. Felton, 634 S. W. 2d

Se SP ncscietseitsesisiiasitsehicnismentenncenisatuiietecienedinninindiisminbhaian 27

Donaho v. FMC Corp., 74 F. 3d 894,

I i I ni sicccshescchtctsienlinccendedecedaiDidaubmch oomiasbuemiodamnae 14

v.

Cited Authorities Page

Early v. Banks Life and Casualty Co., 959 F. 2d.

FS, BE FP Cie, TODD) asscnscssrnceanssicscccnsnsnssnnanaseisstnissmansisonaasnts 22

Electrical Workers v. Robbins & Myers, Inc., 429

U.S. 22D, 97'S. Ce. 4B, FOL wrccccsssccsscccscssnccsscensssesencsnssnssces 18

Feragher v. City of Boca Raton, 118 S. Ct. 2275

CAD Cie, BOTY aavsncnenssossnncsssasssnsnssnnnsanninnnsnsunsiinansanantacbennnans 26

Gundacker v. Unisys Corp., 151 F. 3d 842, 846

CO Ch. NODE) aersinnisnenesasnnscnninccnniasneenninnanssnassainensanmtstasnannies 14

E. g., Helvering v. Wiese, 292 U.S. 614, 615, 54S. Ct. |

O62, 7B be. Ed. 1473 (12GB) nncracenreccssssasssennstsansanssssassonansoneas 24

Hawkeye Nat'l Life Ins. Co. v. AVIS Indus. Corp.,

222 B. Sch GOD, BOG. GP Cie, LOGF) wccsrcntisensssisisaranintnsinones 14

Hill v. john Chezik Imports, 829 2d. 112, 1124

CB Che, BODD) ossecescnssnsstiesiienitinennansiatasasianiaetaaiitnesihaniniilans 18

Hollomon v. Keadle, 931 S.W. 2d 413, 415

(AS. DOD) scasccasnannsssncsrsnisanisrinsnsioninaininasinneiadasassmnanaaaiials 25

Holloway v. Lockhart, 813 F. 2d 874

PP Ce, BI asecivccctnnsnnnsesnsiiinsinnsct MANAAbabimsasinihatmonniiannibiaeinpats 23

Huddleston v. Dwyer, 322 U.S. 232, 88 L. Ed .......sesceeees 28

Martinez v. Orr, 738 F. 2d 1107, 1111-12

Lge MMMM be OTN nT 22

M.B.M. Co. v. Counce, 596 S.W. 2d 681, 687

CA, BOT siscccssnsininstaicscciiscntshiaeriine ai ligbesiiinacacaaiiaammiaaiiiaial 25

Cited Authorities Page

Melendez v. Singer-Finden, 529 F. 2d. 321, 323-24

CIF? Clin. BODO) evissitsscscussnivintiniciciniibnaiiibemaenamnel 18

Middleton v. Middleton, 68 S.W.. 2d. 1003, 188

Ales, TED cctencssiininttinttstiaiataabiitei eile ieee 28

Payne v. Tennessee 115 L. Ed. 2d. 720, 111 S. Ct.

2597, reh den (U.S.) 115 L. Ed. 2d. 1110, 112 S. Ct.

MB CAGFE, UB) ccorerrecssssnsvesscrntsiecsnctsessetnsnintiiansaieinisiiianenitn 20

Pope v. United States, 298 F2d 507; United States

ex rel. Fein v. Deegan, 410 F2d 13, cert. den. 395

U.S. 935, 23 L.Ed. 2d. 450, 89 S. Ct. 1997

(29009, CA, 2 PUY) cocersevesiessinivajnisstiscincatiniianinnnssineaiiaisisiaaiins 21

Rivers v. Roadway Express (1994, US) 128 L. Ed

2d 274, 114S. Ct 1510, 64 BNA FEP Cas 842, 64

CORE BPD GI cecnsressevsrnsnntcotesccnnnsesemantnnionnananinientens 19

Shempert v. Harwick, 151 F. 3d 793, 797 (8" Cir. 1998)

cert. denied, 525 U.S. 1139 (1999) <.ccccccsscsscsesssssssssss0000 10, 21

Stanback v. Best Diversified Product, Inc., 180 F. 3d.

90D. Che. TOAD cccsisennicciniinnamaanmanaane 13

United States v. Cooper, 462 F2d. 1343, cert. den.

409 U.S.1009, 34 L. Ed. 2d. 303, 93 S. Ct. 452

CRETE, CA, S FORD sccrensarsvssovesnnevbneseeeemananeneaciiianennaapiasdaanadd 21

United States v. Union P. R. Co. (1987) 98 U.S. 569,

BS Bee AG BED ccccrmsrremesrssienitseominnamninieiniaaiemaaiaal 20

vit.

Cited Authonties Page

United States ex rel. Fein v. Deegan, 410 F 2d 13 cert.

den. 395 U.S. 935, 23L. Ed. 2d 450 89S. Ct. 1997

(1969, C.A. 2 NY.) ccccccoccascorccssesscsssescosscosoqsesscnssssenseneeseess 21

Vermont Yankee Nuclear Corp., v. National Resources

Defense Council Inc., 435 U.S. 519, 556, 98 S. Ct.

1197, SB L. Ed. Bd 460 (197B) .n22.ccrcccccrescscccccccescccsccsccsocsces 23

\Varren v. Department of Army, 867 F. 2d 1156-61

BF Ge, GI catsescnsittieaseesielsnsntiiienitestineacnsiibidinatinmnaiiiaianiion 22

Zipps v. Transworld Airlines, Inc., 455 U.S. 385, 393,

102 S. Ct. 1127, 1132-33 71 L. Ed. 2d. 234

CC, CETRID cccecsitcnsccotsnsccsiscncasvcsnscntonsonsemennns 4, 17, 18, 19, 21

Constitutional Provisions, Statutes,

and Rules: Page

United States Constitution: Amendment XIV

ssiteetiesisatlbeiseseeastolasiaseeeaiatannistsinddaiacintaiteiiiiditi 10, 18, 23

United States Constitution: Amendment XIV,

GIT, BF scciccceisscscenmpectsntcinsincsiadtendanecapiaieimannaaaamineaenaammaninamanie 2

Aa, Codie Aah. B DSA OED cencenccsstacsssssennisasctnsncemsecssenen 28

Be USA, 6 Tae OD cntcncccnensiisscticcnstinseninsnssscsenninnsaateticensis 1

SE A, Be denneecintiisencetsniinniamninntiniaeaintanenianian 2, 24

EB UGA. 6 FO DED ceneecescccessesinszncsersserinenncesnentstennae 5

42 U.S.C.A. § 2000e-5(e) ard (f) .....ccsesssseesssseeesseeesen 2, 4,19

viii. ;

:

Cited Authorities Page |

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Federal Rule of Civil Procedure 50(a) 56(c)................... 13

Federal Rule of Civil Procedure 56 .00..........ccccccceeeeeeeeees 14

Federal Rule of Civil Procedure 56(c)..................0ccce0000- 13

Federal Rule of Evidence 401 .0.............ccccccssseesesseeeeeeenees 17

Federal Rule of Evidence 1004 (€) ............cccscscsceeeeeseneneees 28

Miscellaneous:

ae es I Se IED BRIE eiecierisciescencnsstiieschakensnteanicicadets 20

110 Congressional Record 12723 (1964) ..........ccccccceeeee 19

B.B.OC, Commpiiamce Magmsall ......cc-ccscsscssosesssessssesscss ty yp 9

SIT UIEIIIIS sfecrictiisicisitscisiddscnciccninscnanenaninicietisnen 17 |

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1X.

TABLE OF APPENDICES

Page

Appendix A — Order Granting Summary Judgement

Of The United States District Court For The

Eastern District Of Arkansas Western Division

Dated October 19, 2000 And Entered October

Appendix B — Order of The United States Court of

Appeals For The Eighth Circuit Dated And

Entered August 30, 2001 Affirming The District

Courts Order For Summary Judgement

Appendix C — Petition ler Rehearing En Banc And

Petition For Rehearing By The Panel Dated

September 10, 2001 And Entered September

El, BIOE ssrcessnsssanipsnegnssscncsesonsisensuncsénaunnhestenanssnnnsense 15a

Appendix D — Order Denying Petition For Rehearing

En Banc Dated and Entered October 30, 2001

siicsianmaclieaip ilimilasaice daichii ia en ia elect 24a

Appendix G — June 29, 1998 Letter From Raymon

Bledsoe Sr. Requesting Exercise Of Final Step

Of Nucor Yamato Steel’s Company Complaint

Procedure Received On June 30, 1998.

x

TABLE OF APPENDICES -

Page

Appendix H — October 27, 1998 Letter To The Little

Rock EEOC Office Requesting Finality And

Reconsideration File Stamped By The EEOC

CO CORSE BR GID cccimscnsssnstcniniminnasananonveninnsionen 30a

Appendix I — January 29, 1999 Letter To The Little

Rock EEOC Received February 1, 1999

Referencing The October 27, 1998 Letter To

TRE TRA snsesiecinsiiinineetasniassngienwminiiandeciniaanntcauabneseasinn 33a

Appendix J — June 1, 1999 Letter To The Little Rock

Area Office Of The EEOC — Exhibit #21 Of

Plaintiff's Opposition To Defendant's Motion

For Final Sununary Judgement ..................004 35a

Appendix K — June 11, 1999 Letter From The Little

Rock Area Director Referencing Refusal Of

Reconsideration And Misleading Mr. Bledsoe

Regarding The 90 Days To File Suit

Appendix L — June 14, 1999 Letter To The Little Rock

EEOC Area Director Correcting Misleading

90 Days To File Suit Information .........0..0..000. 53a

Appendix M — August 30, 2000 Letter To Counsel For

Nucor Yamato Steel Company Referencing

Intent To Compel Nucor fo Comply With

SAGE scinnicisanchsnsiaescinsnensinainistditisyeitiaamiauiaitenis 56a

ep ee ey eS ee ee

xl

TABLE OF APPENDICES

Page

Appendix N — Motion To Compel Nucor Yamato

Steel Company To Comply With Discovery

Dated And Filed September 11, 2000

rrr rrrrrrrrrrre reer eee reeeEe eee hee

Appendix O — Brief In Opposition To Defendant's

Motion For Final Summary Judgement Dated

And Filed On September 29, 2000

Appendix P — Nucor Yamato Steel's Original Answer

Affirmative Defense # 31 To Raymon Bledsoe

Sr.’s First Amended Complaint

1

PETITION FOR A WRIT OF CERTIORARI

Raymon Bledsoe Sr., respectfully petition for a writ of

certiorari to review the judgment of the United States Court

of Appeals for the Eighth Circuit in this case.

OPINIONS BELOW

The Order granting Summary Judgement of the

United States District Court-for the Eastern District of

Arkansas Western Division is unreported.

The decision of the Court of Appeals opinion is

reported at 2001 WL 987540 (8" Cir.(Ark)).’

The Order denying Reconsideration and Rehearing En

Banc is unreported.”

JURISDICTION

The judgement of the court of appeals was entered on

August 30, 2001, and a timely petition for rehearing was

denied on October 30, 2001. This Court's jurisdiction rests on

28 U.S.C. § 1254(1).*

STATUTORY AND

CONSTITUTIONAL PROVISIONS INVOLVED

The Civil Rights Clause provides that:

1. See Appendix A at 1a through 8a.

2. See Appendix B at 9a through 14a.

3. See Appendix D at 21a.

4. See Appendix E at 22a through 23a.

” ee a 0

2

All persons born or naturalized in the United States,

2 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.

U.S. Const., Amendment XIV, Sec. 1. The enforcement

provisions of the EEOC provides in relevant part that;

(e) Time for filing charges; time for service of notice of

charge on respondent; filing of charge by Commission

with State or local agency; seniority system.

(f) jurisdiction and venue of the United States courts

42 U.S.C. § 2000e-5(e) and (f)”

STATEMENT OF THE CASE

This is a job discrimination employment case as it

relates to 42 U.S.C. § 2000e and Title VII of the Civil Rights

Act of 1964 with discrimination so extensive that a claim of

vicarious liability under the doctrine of respondeat superior

for tort of outrage was entered. The petitioner, Raymon

Bledsoe Sr. who is black was employed by the respondent

Nucor Yamato Steel Company from June of 1992 until July of

1998.

During the course of his employment, petitioner

experienced numerous unlawful employment practices as it

relates to the EEOC Compliance Manual and Title VII of the

5. See Appendix F at 24a.

3

Civil Rights Act of 1964.° The unlawful employment acts of

respondent were supported by documented personal diary

notes of petitioner and certified letters from petitioner to

respondent during the course of his employment.

Psychological evaluations from respondent's company

psvchologist gave even more to support petitioners state of

mind as it relates to discrimination during the course of his

employment. Complaints from petitioner were met with

retaliation. The last act took the form of discharge by

respondent when petitioner prior to termination, requested

that he be allowed to exercise the final step of respondent's

company complaint procedure.’

After discharge, petitioner proceeded to file-a charge

of discrimination against respondent which was delayed by

the administrative dereliction of the EEOC. Petitioner filed

suit in U. S. District Court for the Eastern District of Arkansas,

Jonesboro Division which entered summary judgement in

favor of respondent. The District Courts ruling regarding the

doctrine of equitable tolling conflicted with relevant cases of

this Court and the Eighth Circuits. Petitioner appealed the

District Courts decision to the Eighth Circuit Court of Appeals

which ruling affirmed the District Courts ruling.

Petitioner filed for petition for rehearing en banc and

petition for rehearing by the panel stating that the Eighth

Circuits ruling would allow the EEOC to circumvent the

administrative responsibilities delegated to it by Congress

and that such abuses of the EEOC speak to the Public

6. See Appendix J at 35a through 47a and Appendix O at 94a

through 101a.

7. See Appendix G at 29a.

4

Interest.® The petition for rehearing en banc and the petition

for rehearing by the panel were denied without remarks.

The decisions below rest on erroneous views which are

in conflict with and contravene the Congressional intent of 42

U.S.C. §2000e-5(e) and (f) as it relates to this Courts

interpretation of the 180 day “limitations period” in Zipps v.

Transworld Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127,

1132-33 71 L. Ed. 2d. 234 (8" Cir. 1982) and other relevant

Eighth Circuit decisions which have followed. The’ Eighth

Circuits ruling in this instance throws the law governing

equitable tolling into complete confusion and it is critically

important for the Courts and litigants to know whether the

Eighth Circuits decision is right or wrong as it raises

important questions of law warranting this Court's plenary

review or summary reversal for discovery and trial.

BACKGROUND

1. Nucor Yamato Steel Company and Mr. Bledsoe. In

June of 1992, Mr. Raymon Bledsoe Sr. began his 6(six) year

employment with Nucor Yamato Steel Company.

During the six vear employment with Nucor Yamato

Steel company, Mr. Bledsoe acknowledged to Plant Manager

Dan DiMicco his desire for a management position. Annual

and sometimes semiannual meetings requested by Mr.

Bledsoe with Mr. DiMicco were conducted to reaffirm his

desire for a management position and to see how he

measured up. However, Mr. Bledsoe’s quest to rise from his

position as second helper on the furnaces was met by

numerous adverse actions as it relates to testing in the

promotion process and ultimately wrongful termination. In

i ina

8. See Appendix C at 18a through 19a.

5

spite of the discriminatory actions of employees of Nucor

Yamato Steel Company, Mr. Bledsoe made substantial

contributions to the operations of the company.

However, on July 02, 1998, Mr. Bledsoe was

terminated from his employment with Nucor Yamato Steel

Company by Melt Shop Manager-Mike Gurley. The Nucor

Yamato Steel Company had received certified letter #280 309

912 from Mr. Bledsoe addressed to Mr. Gurley on June 30,

1998 ° which referenced harassment and other discriminatory

actions by employees of Nucor Yamato Steel Company.

In terminating Mr. Bledsoe, Nucor Yamato Steel

Company violated the fourth step of its company complaint

procedure which allows employees to submit matters

regarding misunderstandings or complaints concerning work

conditions, procedures, policies or anything relative to work

to the President of the Company."” Mr. Bledsoe’s termination

also limited access to the internal grievance procedure of

Nucor Yamato Steel Company. It is clear that Mr. Bledsoe was

engaged in protected activity as it relates to 42 U.S.C. § 2000e-

3(a) and that Nucor Yamato Steel Company not only violated

its company complaint procedure but in an adverse action,

also retaliated against Mr. Bledsoe for his engagement in the

protected activity.

This violation of the company complaint procedure

does not represent an isolated incident and nor does the

discriminatory actions of Mike Gurley as a department

manager, as Mr. Bledsoe also experienced discrimination

from the 2 (two) predecessors of Mr. Gurley, John Beaton and

9. See Appendix G.

10. See Appendix J at 44a through 45a.

6

John Bell'' whose actions represent a pattern of discrimination

which is a claim of Mr. Bledsoe’s in his First Amended

Complaint.

The lack of diligence on the part of Nucor Yamato

Steel Company to respond to or correct harassment by

supervisor Glenn Wayne Brown which was complained of by

Mr. Bledsoe created a hostile working environment so

extreme that it caused Mr. Bledsoe to experience emotional

distress and an injured shoulder.

On July 02, 1998, Nucor Yamato Steel Company

terminated Mr. Bledsoe rather than correct or prevent the

adverse employment actions that he complained of.

at The Equal Employment OpportunityCommission

(E.E.O.C.) and Mr. Bledsoe. On August 6, 1998, Mr. Bledsoe

contacted the Little Rock office of the E.E.O.C. Mr. Bledsoe

completed the charge information form and returned to the

Little Rock E.E.O.C which transferred the case to the

Memphis, TN. office. The Memphis office contacted Mr.

Bledsoe by letter requesting time for an interview.

On September 15, 1998, Mr. Bledsoe contacted the

Memphis office by telephone and after a 10 minute

conversation with investigator Christine Wilson, she indicated

that based upon the information provided the E.E.O.C. would

not represent him in legal proceedings against Nucor Yamato

Steel Company.

Dissatisfied with the telephone interview, Mr. Bledsoe

mailed letter to the Little Rock office of the E.E.O.C. on

11. See Appendix J at 35a through 37a.

7

October 27, 1998"? requesting information regarding findings

from the E.E.O.C. that would allow him to seek the necessary

avenues to litigate the case and a request for reconsideration.

The Little Rock office received the letter from Mr. Bledsoe on

October 28, 1998, 60(sixty) days prior to the 180 day limitation

tor filing a charge which expired on December 29, 1998.

Since the Little Rock office of the E.E.O.C. had not

responded to the first element of his request, Mr. Bledsoe

believed that the E.E.O.C was addressing the second element

which was reconsideration. However, it was not until after

Mr. Bledsoe mailed a second letter on January 29, 1999"

relating back by referencing the October 28, 1998 letter and

the elements of it and the Little Rock office of the E.E.0.C.

responded by mailing charge information Form 5 on February

5, 1999. Mr. Bledsoe proceeded to file a charge of

discrimination of March 8, 1999.

Concerned about the dereliction and inconsistencies of

both E.E.O.C. offices in its failure to properly investigate his

claims, on June 01, 1999, Mr. Bledsoe with the use of the

E.E.O.C. Compliance Manual presented credible information in

support of his claims of discrimination against Nucor Yamato

Steel Company."

In defiance and considering the June 1, 1999 as request

for reconsideration, Ms. Kay Klugh, the Area Director of the

Little Rock office, response was that she would not reconsider

12. See Appendix H at 32a.

13. See Appendix I.

14. See Appendix J.

8

the issuance of the Notice of Right to Sue’ as she tried to

mislead Mr. Bledsoe into believing that he had missed the

90(ninety) day deadline to file suit.

Mr. Bledsoe’s final correspondence with the E.E.O.C.

was by letter dated June 14, 1999 correcting Ms. Klugh on the

miscalculation on the filing deadline and other occurrences

which led Mr. Bledsoe to believe that an obstruction of justice

had been committed by the E.E.O.C.'°

3. The District Court Proceeding. | Mr. Bledsoe filed

his initial complaint of discrimination against Nucor Yamato

Steel Company on June 03, 1999 in the United States District

Court Eastern District of Arkansas, Jonesboro Division on a

file form provided by the court entitle Complaint Under Title

VII of the Civil Rights Act of 1964. A motion for leave to file

amended complaint, stating damages, specified amounts for

relief and included agents or employees of Nucor Yamato

Steel Company under the theory of respondeat superior was

filed on November 19, 1999 . The District Court Order on

December 09, 1999 granted Mr. Bledsoe’s leave to filed to file

amended complaint with no objections from Nucor Yamato

Steel Company. Nucor Yamato Steel Company later filed an

objection to the amended complaint on December 20, 1999.

- Mr. Bledsoe filed additional motions for leave to file second

amended complaint for regarding Arkansas State Law claims

for 1) joint tortfeasors 2) retaliation 3)suppression and

spoilation of evidence and additional monetary damages for

defamation of character all of which were denied by the

District court.

15. See Appendix K.

16. See Appendix L.

9

On September 11, 2000, Mr. Bledsoe filed a motion to

compel Nucor Yamato Steel Company to comply with

discovery.” September 12, 2000, Nucor Yamato Steel

Company entered motion for summary judgement. Mr.

Bledsoe, without the benefit of discovery, filed objection to

summary judgement on September 29, 2000"* challenging the

elements the summary judgement citing relevant evidence,

the E.£.0.C Compliance Manual, Arkansas Case Law, Arkansas

Supreme Court decision, Eighth Circuit and relative decisions

from other circuits, federal statutes and relevant decisions of

this Court. Contrary to the Eighth Circuits statement of a “full

hearing” there was none.

The district court granted Nucor Yamato Steel

Company's motion for summary judgement on October 23,

2000 finding Mr. Bledsoe’s motion to compel moot. The

district court judge cited Anderson v. Unisys Corp., 47 F. 3d

302, 306 (8" Cir.), cert. denied, 516 U.S. 913 (1995) as a basis for

his denial of equitable tolling in Mr. Bledsoe’s case

misapplying the Eighth Circuits decision on equitable tolling.

4. The Court of Appeals’ Decision. On November 21,

2000, Mr. Bledsoe filed a notice of appeal to the Eighth Circuit

Court of Appeals from District court stating 5(five) issues in

which the District court was in error. Mr. Bledsoe filed

appellant brief challenging the summary judgement ruling of

the district court. Nucor Yamato Steel Company filed its

appellee brief and Mr. Bledsoe responded by filing a reply

brief.

17. Discovery was delayed by Nucor Yamato Steel Company for

8 months. See Appendix M at 58a and Appendix N at 71a.

18. See Appendix O.

10

The Eighth Circuit affirmed the district courts opinion

citing DeBrunner v. Midway Equip. Co., 803 F. 2d 950, 952 (8"

Cir. 1986) and Shempert v. Harwick, 151 F. 3d 793, 797 (8" Cir.

1998) cert. denied, 525 U.S. 1139 (1999) (citation omitted) which

_ Mr. Bledsoe stated in his petition for rehearing,” have no

direct application to his case which brings the before this

Court the question as to whether the Eighth Circuit properly

applied the doctrine of stare decisis in this instant.

In his petition for rehearing which was timely filed on

September 11, 2001, Mr. Bledsoe also cited the Eighth Circuit

precedent Anderson v. Unisys Corp., 47 F. 3d 302, 306 (8" Cir.

1995) as a case that directly applied to his case regarding

equitable tolling.

Mr. Bledsoe went on to state that the Eighth Circuits

ruling raised a questions of exceptional importance regarding

equitable tolling, Congressional intent as it relates to the

E.E.O.C. and summary judgement ruling in civil rights

actions.” The petition for rehearing was denied on October

30, 2001 without comment.

REASONS FOR GRANTING THE WRIT

Nucor Yamato Steel Company attempted to prevent

Mr. Bledsoe from exercising his Fourteenth Amendment right

of “equal access” to the Courts by contravening case law and

regulatory statutes regarding equitable tolling in this instant.

In spite of the evidence presented by petitioner, Nucor

Yamato Steel Company has maintained that the Equal

Employment Opportunity Commission (EEOC) is not

19. See Appendix C at 15a through 17a.

20. See Appendix C at 18a through 19a.

11

responsible for lulling Mr. Bledsoe into inactivity by missing

the 180 day deadline for filing a charge of discrimination.

However, the real tragedy in this case is that Nucor Yamato

Steel Company has known since the beginning of this

litigation that “the EEOC failed to comply with its statutory

duty to investigate and attempt to resolve the allegations in

accordance with Title VII of the Civil Rights Act of 1964, as

amended.””'

The Eighth Circuit has held in this instant that it is

permissible for the EEOC not to respond to claimants requests

for reconsideration of their claims of discrimination.

This holding if allowed to stand would completely

circumvent the Congressional intent of the EEOC in its

responsibilities to resolve issues of discrimination. This

decision is flatly inconsistent with Eighth Circuit precedents

. concerning equitable tolling which relate to this case. It is

squarely in conflict with this Courts interpretation of the 180

day filing period as a statute of limitations and the spirit of

the doctrine of equitable tolling.

If permitted to stand, the Eighth Circuits ruling in this

instant, would prevent future claimants trom having their

day in court. This decision would have an even more

devastating affect in states such as Arkansas where the EEOC

is the only avenue to administer federal issues of

discrimination. Claimants such as petitioner would be not

only be wronged once by their employer for discrimination

but also wronged twice by the federal agency whose assigned

task is that of investigating claimants charges of

discrimination presenting a Constitutional question of great

importance.

21. See Appendix P at 110a to 111a.

12

The improper adjudication of claims presented to the

Eight Circuit is the final reason why this writ should be

granted.

I.

THE LOWER COURTS HOLDING ON SUMMARY

JUDGEMENT CONFLICTS WITH THIS COURT

AND ANDERSON v. LIBERTY LOBBY, INC.

The district court entered summary judgement in

favor of Nucor Yamato Steel Company basing its standard for

summary judgement upon the Supreme Court established

guidelines of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986)~ to assist it in determining whether the standards for

summary judgement had been met. The threshold inquiry is

utilized in determining whether there is a need for trial.

However, when one examines the direct evidence presented to

the district court as it relates to the administrative dereliction

of the EEOC as well as the elements of Anderson, 477 U.S. 242,

upon which this Court based the inquiry threshold, the

district courts ruling for summary judgement fails. The

threshold is based upon the following elements;

1. “Summary judgement will not lie if the dispute

about a fact is “genuine,” i.e., if the evidence is that a

reasonable jury could find a verdict for the

nonmoving party.”

2. “Credibility determinations, weighing of evidence,

and drawing of legitimate inferences from the facts

22. See Appendix A at 3a through 4a.

13

are jury functions, not those of a judge,” whether his

ruling is on motion for summary judgement or for

directed verdict; evidence of the nonmovant is to be

believed and all justifiable inferences” are to be drawn

in his favor. Fed. Civil. Proc. Rule 50(a)56(c), 28

US.C.A

3. “Plaintiff must present affirmative evidence in

order to defeat a properly supported motion for

summary judgement, even where the evidence is

likely to be within the possession of the defendant, as

long as plaintiff has had a full opportunity to conduct

discovery. Fed. Rules Civ. Proc. Rule 56 (c), 28

US.C.A.

The reexamination of relevant direct evidence will

demonstrate that the district court did not meet the criteria set

fourth in elements (1) and (2). The district court also failed

element (3) when it stayed Mr. Bledsoe’s motion to compel

discovery as Stanback v. Best Diversified Product, Inc., 180 F. 3d.

903 (8" Cir. 1999) which states “although discovery does not

have to be completed before Court can grant summary

judgement, summary judgement is proper only after

nonmovant has had adequate time to engage in discovery.

23. Rule 56{a)-(c) was cited in Mr. Bledsoe’s Opposition to

Motion for Final Summary Judgement. See Appendix O at 78a.

24. The District Court was presented with cases trom the Eight

Circuit Court of Appeals that caution against summary judgement in civil

right pleadings and employment discrimination cases citing cases from this

court such as Adickes v. LU. S. H. Kress Co. 398 U,S.144, 153-5999 U-S-Ct.— —

1598, 26 L. Ed. 2d 142 (1970) and United States v. Diebold, Inc., 369 U.S. Ct.

993, 8 L. Ed 2d 176 (1962). See Appendix O at 76a through 78a. Inferences

of administrative dereliction are drawn from the time line of events and

correspondence between Mr. Bledsoe and the EEOC prior to him filing suit

in the District Court. See Appendix O at 78a through 86a.

14

Fed. Rules Civ. Proc. Rule 56.”

The Eighth Circuit cited Eighth Circuit cases Hawkeye

Nat'l Life Ins. Co. v. AVIS Indus. Corp., 122 F. 3d 490, 496 (8"

Cir. 1997); Donaho v. FMC Corp., 74 F. 3d 894, 897-98 (8" Cir.

1996); and Gundacker v. Unisys Corp., 151 F. 3d 842, 846 (8"

Cir. 1998) as it affirmed the district courts decision for

summary judgement. However, the doctrine of stare decisis

states that a Court of Appeals is bound by the decisions of the

Supreme Court. It is to that end that evidence will

demonstrate that the lower courts rulings of summary

judgement for Nucor Yamato Steel Company cannot “lie”

supporting the fact that this case should be summarily

reversed for discovery and trial. It is to this Courts

interpretation of the statutory scheme of the EEOC that we

now turn.

II.

THE DECISIONS BELOW CONFLICT WITH THE

CONGRESSIONAL INTENT ANB-THE STATUTORY

SCHEME OF THE EEOC AS IT RELATES TO TITLE VII

OF THE CIVIL RIGHTS ACT OF 1964.

It is well established within this Court that as a federal

agency, the EEOC has been given wide latitude by Congress

to enforce charges of discrimination as it relates to Title VII of

the Civil Rights Act of 1964 and its 1972 amendments.”

The crux of this case lies with the October 27, 1998

letter® from Mr. Bledsoe to the EEOC which language clearly

25. See Appendix O at 82a through 85a.

26. See Appendix H at 32a and Appendix O at 80a and 81a

15

states that he was requesting finality from the EEOC so that

he could litigate his case and reconsideration of his case. It is

undisputed by Nucor Yamato Steel Company that the letter

was received on October 28, 1998 by the EEOC 60 days prior

to the 180 day limitations period to file a charge of

discrimination.

It also undisputed that the EEOC did not respond to

Mr. Bledsoe’s request until 30 days after the expiration period

as Mr. Bledsoe was “lulled” into believing that the EEOC was

considering the second element of his request which was

reconsideration. These facts were presented to both courts

below. In his request for rehearing en banc to the Eighth

Circuit which was denied, Mr. Bledsoe stated that “During

the course of this litigation Appellee-Nucor Yamato Steel

Company nor the Courts have cited any cases or statutes that

support or justify the administrative negligence of the EEOC

as it relates to the above-entitled cause therefore the

preliminary opinion must be reversed.””

While Nucor Yamato Steel Company has presented

the argument of negligence on the part of Mr. Bledsoe, it has

failed to adduce any relevant evidence in support of the 90

day period of inactivity by the EEOC.

To the contrary, Nucor Yamato Steel Company used

as an affirmative defense to Mr. Bledsoe’s first amended

complaint the fact that the “EEOC failed to comply with its

statutory duty to investigate and resolve the allegations.” *

27. See Appendix C at 17a.

28. See Appendix P. The fact that the EEOC did not conduct a

proper investigation was addressed extensively by Mr. Bledsoe in his June

1, 1999 letter to the Little Rock EEOC prior to filing suit in Federal District

Court. See Appendix J at 47a through 50a.

16

This gives even more weight to Mr. Bledsoe’s claim of

administrative dereliction by the EEOC.

Lull is defined as “1. a period of less noise or violence;

brief calm. 2. Figurative. a period of reduced activity. To

understand lull in this instant, the court should have looked

to the evidence in the time line of events presented in Mr.

Bledsoe’s objection to motion for summary judgement.

The time line of events” clearly demonstrate that Mr.

Bledsoe diligently pursued his claim until October 27, 1998

when he experienced that period of reduced activity as he

waited for the EEOC to respond to his request. The court

should have also looked to Mr. Bledsoe’s diligence after

January 29, 1999” when the EEOC responded to his second

letter which referenced the October 27" letter.

The Eighth Circuit affirmed the district courts ruling

regarding summary judgement but its ruling actually speaks

to the fact that Mr. Bledsoe was lulled into inactivity when it

stated that “it is unfortunate that he;/waited to hear from the

EEOC before taking further action”*' and the district court as

it stated “it was his impression that the Little Rock office of

the EEOC had reconsidered the information submitted by

Plaintiff and was conducting an investigation.” “It is clear that

the district and the Eighth Circuit failed as the courts did not

satisfy elements (1) and (2) of the threshold requirements of

Anderson v. Liberty Lobby, Inc., 477 U.S.242, 250 (1986).

29. See Appendix O at 79a through 81a.

30. See Appendix I.

31. See Appendix B at 12a.

32. See Appendix A at 3a and 5a through 6a.

17

If the lower courts had applied Fed.Evid.R. 401 which

relates to relevant evidence and the Reasonable Man Standard

in determining its admissibility, this case would not be before

this Court.

Needless to say, the Courts nor Nucor Yamato Steel

Company adduced any statutes or case law that support the

EEOC’s negligence because there are none.~’ In this instant, it

is clear that the EEOC violated the Congressional intent for it

to enforce the discriminatory acts of Nucor Yamato Steel

Company.

it is clear that Mr. Bledsoe was mislead by the EEOC

and that the period for filing a charge against Nucor Yamato

Steel Company should be equitably tolled and that the lower

courts holding should not be allowed to stand. It is to this

Courts interpretation of the 180 day limitations period that

we now turn.

II.

THE EIGHTH CIRCUIT’S DECISION CONFLICTS

WITH THIS COURTS INTERPRETATION OF THE

CONGRESSIONAL INTENT OF THE 180 DAY

LIMITATIONS PERIOD FOR FILING CHARGE AS IT

RELATES TO ZIPPS v. TRANSWORLD AIRLINES, INC.

The doctrine of equitable tolling is appropriate only

33. Even though the June 11, 1999 letter from the Little Rock Area

EEOC Area Director was misleading regarding the time to file suit in

Federal District Court, it does imply that the EEOC could reconsider a

determination as late as the 90 day deadline for filing suit. See Appendix K.

The Little Rock EEOC Area Director was corrected regarding the 90 day

deadline by Mr. Bledsoe in his June 14, 1999 letter to the EEOC. See

Appendix L.

18

the circumstances that cause a Plaintiff to miss a filing

deadline are out of his hand as it relates to Zipps v. Transworld

Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132-33, 71 L.

Ed. 2d 234 (8 Cir. 1982) and Hill v. John Chezik Imports, 829

2d. 112, 1124 (8 Cir. 1989). Equitable tolling arises upon

some positive misconduct by the party against whom it is

asserted, De Brunner v. Midway Equipt. Co., 803, F. 2d 950, 952

(8"" Cir. 1986). Melendez v. Singer-Finden, 529 F. 2d. 321, 323-24

(10"" Cir. 1976), equitable tolling is warranted where matters,

beyond plaintiff's control are at work such as administrative

delay or dereliction.

Evidence has been presented which support the fact

that the EEOC was derelict in this instant causing Mr. Bledsoe

to miss the 180 day filing deadline.

The Eighth Circuit’s decision regarding equitable

tolling fundamentally misinterprets this Courts interpretation

of the 180 day limitations period to file a charge as it relates

to Zipps, 455 U.S. 385 (citation omitted), as this Court held

that “the statutory time provision for filing with the EEOC

Title VII claim against a private employer is not a

jurisdictional prerequisite to suite in federal court, but instead

subject to waiver, estoppel, and equitable tolling.” To lend

further support for its interpretation, this Court cited Electrical

Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97S. Ct. 441, 50

L. Ed 2d. 427 (1976), where this Court stated that “we also

hold that the 180 day “limitations period” enacted by the 1972

Amendments, was not jurisdictional.” In reaching this

conclusion, this Court cited-Chase Securities Corp. v. Donaldson,

325 U.S. 304, 316, 65 S. Ct. 1137, 1142-1143, 89 L. Ed. 1628

(1945), stating that “ Certainly it cannot be said that lifting the

bar of a statute of limitation so as to restore a remedy lost

through mere lapse of time per se an offense against the

Fourteenth Amendment.”

19

The Eighth Circuit cited 42 U.S.C. §2000e-5(1) which

it believes that Title VII requires a claimant to file an

administrative charge with the EEOC with 180 days of the

alleged discriminatory conduct. However, this Court held in

Zipps, 455 U.S. 385 (citation omitted) that,

“the provision granting district courts jurisdiction

under Title VII, 42 U.S.C. §2000e-5(e) and (f) does not

limit jurisdiction to those cases in which there has

been a timely filing with the EEOC. It contains no

reference the timely filing requirement. The provision

specifying the time for filing charges with the EEOC

appears as an entirely separate provision, and it does

not speak in jurisdictional terms or refer in any way to

the jurisdiction of district courts. The legislative

history of the filing provision is sparse, but Senator

Humphrey did characterize the time period for filing

a claim as a “period of limitations,” 110 Cong. Rec.

12723 (1964), and Senator Case described its purpose

as preventing the pressing of “stale” claims, id., at

7243, the end served by a statute of limitations.”

In Rivers v. Roadway Express (1994, US) 128 L. Ed 2d

274, 114 S. Ct. 1510, 64 BNA FEP Cas 842, 64 CCH EPD

42948 this Court ruled that “It is the Supreme Court's

responsibility to say what a federal statute means, and once

the Supreme Court has spoken, it is the duty of the other

courts to respect that understanding of the governing rule of

law.” For this cause alone, the Eighth Circuits ruling should

not be given binding affect. However we now turn to the

Eighth Circuits error of not following the above precedent as

well as precedents of the Eighth Circuit which are relative to

this instant.

20

IV.

THE EIGHTH CIRCUITS DECISION ON THE 180

DAY LIMITATIONS CONFLICTS WITH THIS

COURT AND RELEVANT DECISIONS OF THE

EIGHTH CIRCUIT AS IT RELATES TO THE

DOCTRINE OF STARE DECISIS.

It is clear that the EEOC was administratively derelict

in lulling Mr. Bledsoe into believing that the EEOC was

addressing his request(s) and it is also clear that Eighth

Circuits holding on the 180 day filing period is in direct

conflict with this Courts interpretation of the filing period.

It is even more apparent that the case law used by the

Eighth Circuit to render its opinion were not relevant to this

instant regarding the doctrine of equitable tolling. Mr.

Bledsoe addressed this issue at length in his reply brief as well

as his request for rehearing in banc to the Eighth Circuit.

As an appellate court, the Eighth Circuit must

determine the rights of the parties before it in accordance with

principle established by law, United States v. Union P. R. Co. 98

U.S. 569, 25 L. d 143. In the area of case law, the courts follow

the rule of stare decisis, which provides that a determination

of a point of law by a court will generally be followed by a

court of the same or lower rank if a subsequent case presents

the same legal problem, 20 Am. Jur. 2d, Courts §183.

Stare decisis promotes the evenhanded, predictable,

and consistent development of legal principles; fosters

reliance on judicial decision; and contributes to the actual and

perceived integrity of the judicial process, Payne v. Tennessee

115 L. Ed. 2d. 720, 111 S. Ct. 2597, reh den (U.S.) 115 L. Ed.

2d. 1110, 112 S. Ct. 28 (1991, U.S.). Accordingly, in deciding

21

a case, the Supreme Court is bound to examine its precedents,

De Bearn v. Safe Deposit & Trust Co. 233 U.S. 24, 58 L. Ed. 883,

34 S. Ct. 584 (1914). The Court of Appeals is bound by the

decisions of the Supreme Court until such time as the

Supreme Court informs it that the rule of decision has

changed, Pope v. United States, 298 F2d 507; United States ex rel.

Fein v. Deegan, 410 F2d 13, cert. den. 395 U.S. 935, 23 L. Ed. 2d.

450, 89 S. Ct. 1997 (1969, C.A. 2 NY).

The Eighth Circuit is therefor bound in this instant by

Zipps v. Transworld Airlines, Inc., 455 U.S. 385(citation

omitted).

The appellate court is also bound by prior decisions of

its own circuit, United States v. Cooper, 462 F2d. 1343, cert. den.

409 U.S. 1009, 34 L. Ed. 2d. 303, 93 S. Ct. 452 (1972, C.A. 5

Fla.). The Eighth Circuit affirmed the district courts ruling for

summary judgement citing Shempert v. Harwick, 151 F. 3d 793,

797 (8 Cir. 1998), cert. denied, 525 U.S. 1139 (1999) and De

Brunner v. Midway Equip. Co., 803 F.2d 950, 952 (8" Cir. 1986)

as cases in support of its affirmation which did not present

the same legal problem as Mr. Bledsoe’s case which was

" referenced in Mr. Bledsoe’s petition for rehearing en banc.™

Anderson v. Unisys Corp., 47 F. 3d 302, 306 (8" Cir. 1995) which

was cited by Shempert, 151 F. 3d 793 (citation omitted) was

cited by Mr. Bledsoe in his petition for rehearing en banc as

case law which presented the same legal problem. However,

the petition for rehearing en banc was denied without

comments.

Anderson, 47 f. 3d 302 (citation omitted) states “Other

34. See Appendix C at 15a through 16a. Concerns regarding the

misapplication of case law were also expressed by Mr. Bledsoe to the Eighth

Circuit Court of Appeals in his Appellants Reply Brief.

22

circuits, as well as our own, have held that when an

administrative agency misleads a complainant, particularly

one who is without the benefit of counsel, equitable tolling

may be justified., citing Warren v. Department of Army, 867 F.

2d. 1156-61 (8" Cir. 1989); Early v. Banks Life and Casualty Co.,

959 F. 2d. 75, 81 (7" Cir. 1992); Bloomberg v. HCA Management

Co., 858 F. 2d 642, 644 (5 Cir. 1988); and Martinez v. Orr, 738

F. 2d 1107, 1111-12 (10 Cir. 1984), where equitable tolling

was granted in each case due to misleading conduct of the

EEOC. Martinez like Mr. Bledsoe was lulled into believing

that the EEOC was reconsidering its decision.

Warren v. Department of Army, 867 F. 2d 1156 (citation

omitted) is another Eighth Circuit precedent which present

the same legal problem as this instant. Like Mr. Bledsoe’s

case, it speaks to the diligence of the plaintiff. The court stated

“Importantly, this is not a case where plaintiff needlessly

delayed instituting an action. Instead, the record reveals that

Warren acted with “utmost diligence,” only to find himself

caught up in an arcane procedural snare.”*”

In applying the doctrine of stare decisis, it is apparent that

the Eighth Circuit was in error in affirming the decision of

the district court of summary judgement for Nucor Yamato

35. See Warren v. Department of Army, 867 F. 2d. 1156, 1160-

61(8th Cir. 1989) citing Thomas v. KATV Channel 7, 692 F. 2d 548, 549-50 (8

Cir. 1982) (per curiam) cert. denied 460 U. S. 1039, 103 S. Ct. 1431, 75 L. Ed.

2d 790 (1983), We have previously indicated that because the remedial

character of Title VII, the filing period 42 U.S.C. § 2000e-5(f)(1) is more akin

to a statute of limitations than a jurisdictional prerequisite. Martinez v. Orr,

738 F. 2d 1107, 1111-12 (10" Cir. 1984), tolling limitation period where

plaintiff was lulled into inaction by EEOC. Bobby v. Dean, 821 F. 2d 346, 349-

50 (6" Cir. 1987); Hornsby v. United States Postal Service, 787 F. 2d 860, 862

(11" Cir. 1982); Paulk V. Department of the Air Force, Chanute Air Force Base,

830 F. 2d 79, 81, 83 (7 Cir. 1987).

23

Steel Company. For summary judgement is proper only

where there is no genuine issue of material fact, so that the

dispute may be decided solely on legal grounds as it relates

to Holloway v. Lockhart, 813 F. 2d 874 (8 Cir. 1987).

V.

THE EIGHTH CIRCUITS DECISION ON EQUITABLE

TOLLING IN THIS INSTANT WOULD CREATE A

FOURTEENTH AMENDMENT QUESTION

If the Eighth Circuits decision on equitable tolling in

this instant is allowed to stand it would create a major

Constitutional issue related to the Fourteenth Amendment

and equal access to the courts.

If this issue is allowed to stand, it would allow the

Eighth Circuit to engraft its own notion of proper procedure

upon an agency (EEOC) entrusted with the substantive

functions by Congress. This Court has cautioned reviewing

courts against such notions. Vermont Yankee Nuclear Corp., v.

National Resources Defense Council Inc., 435 U.S. 519, 556, 98 S.

Ct. 1197, 55 L. Ed. 2d 460 (1978) (“Court of Appeals has

unjustifiably intruded into the administrative process” )

It would say to the EEOC that it is not accountable as

an administrative agency for its actions in responding to

charges of discrimination if and when it decides to respond to

those charges.

Allowing this decision to stand would allow the Civil

Rights of citizens to be taken away by their employer and a

second time by the administrative agency whose task has

been assigned by Congress to enforce such violations,

denying citizens their right to the “due process” of the law.

24

The sanctioning of such holding would have a

devastating affect in states such as Arkansas where Mr.

Bledsoe resides since the EEOC is the only avenue to

administer the federal issue of discrimination.”

Summarily reversing the judgement of the Eighth

Circuit would be appropriate in this instance as it relates to E.

g., Helvering v. Wiese, 292 U.S. 614, 615, 54S. Ct. 862, 78 L. Ed.

1473 (1934) (Judgement summarily reversed).

It would also lift the bar of the statute of limitation so

as to restore a remedy lost through the mere lapse of time that

this Court speaks to in Chase Securities Corp. v. Donaldson, 325

U.S. 304, 316, 65 S. Ct. 1137, 1142-43 89 L. ed. 1628 (1945).

Mr. Bledsoe’s claims of racial discrimination,

harassment and retaliation under 42 U.S.C. § 2000e must

therefore be maintained as violations of Title VII of the Civil

Rights Act of 1964.

Vi.

THE EIGHTH CIRCUIT DECISIONS ON STATE LAW

CLAIMS CONFLICT WITH DECISIONS OF THIS

COURT, THE ARKANSAS SUPREME COURT AND

ARKANSAS LAW.

1. The Lower Courts Decisions on Tort of Outrage Claims

Conflict with Decisions of this Court and Arkansas Law.

The theory of respondeat superior became a tort claim

in Mr. Bledsoe’s motion to file first amended complaint. The

motion was granted by the district court without objection

36. See Appendix C at 18a.

25

from Nucor Yamato Steel Company.

The 4(four) certified letters mailed by Mr. Bledsoe and

received by Nucor Yamato Steel Company prior to

termination and the psychological evaluations conducted by

Nucor Yamato Steel Company psychologist speak to Mr.

Bledsoe’s claim of emotional distress.”

Evidence supports the fact that an hostile environment

was also created by supervisors of Nucor Yamato Steel

Company which led to the severe shoulder injury to Mr.

Bledsoe.*

The claims for tort of outrage exceed the criteria set

forth in Hollomon v. Keadle, 931 S.W. 2d 413, 415 (Ark. 1996)

and M.B.M. Co. v. Counce, 596 S.W. 2d 681, 687 (Ark. 1980).

It is clear that the hostile environment was fostered by

Nucor Yamato Steel Company in that no corrective action was

taken as Nucor Yamato Steel Company violated its company

complain procedure by not taking prompt action.” The

Eighth Circuit states that “employer is under dutv to take

corrective action when complaints to a supervisor of

harassment of coworker are made” in Bailey v. Runyon, 167 F.

3d 466, 79 BNA FEP Cas. 225 (8" Cir. 1999).

37. See Appendix G at 29a, Appendix J at 41a and Appendix O

at 92a through 94a. Certified letters and psychological evaluations were

referenced in Mr. Bledsoe’s Appellant Brief to the Eighth Circuit Courts of

Appeals and entered as part of the records to Federal District Court as

exhibits to Mr. Bledsoe’s Opposition to Summary Judgement - Appendix O.

38. See Appendix J at 39a through 41a.

39. See Appendix J at 42a through 46a and Appendix O at 92a

through 93a.

26

This Court in Feragher v. City of Boca Raton, 118 S. Ct.

2275 (11 Cir. 1998), Granting certiorari, held that;

“Employer is subject to vicarious liability under Title

VII to a _ victimized employee for actionable

discrimination caused by a supervisor, but employer

may raise an affirmative defense that looks to the

reasonableness of employers conduct in seeking to

prevent and correct harassing conduct and to the

reasonableness of employees conduct in seeking to

avoid harm.”

More humiliation and distress was brought upon Mr.

Bledsoe when he requested help to cope with the stress

caused by the harassment but was not afforded it.”

Since Nucor Yamato Steel Company has not presented

to the courts evidence that looks to the prevention or

correction of harassment, this Court must summarily reverse

the lower courts holding regarding Mr. Bledsoe’s claim for

tort of outrage in this instant.

ys

The Lower Courts Holding on Defamation and Qualified

Privilege Conflict with Decisions of the Arkansas Supreme

Court and Arkansas Law.

Remarks made by supervisors of Nucor Yamato Steel

Company exceed qualified privileged for business related

communications. Remarks made by supervisor in the

presence of Mr. Bledsoe’s wife and children that one of Mr.

Bledsoe’s children did not look like him was not qualified

40. See Appendix J at 41a.

27

business related communication."!

Remark made by department manager to Mr.

Bledsoe’s coworker that “I don’t care if Raymon is fucking

your wife, your are going to get along” if considered business

communications was exceeded qualified privilege in that it

was an intentional false communication which was publicly

spoken that injured not only Mr. Bledsoe’s good name but

also the good names of coworker and his wife.

Accusation by lawyers during deposition of drug use

by Mr. Bledsoe and his children which was supported only by

an internet inquiry and no adduced evidence from the 6(six)

vears of employment and numerous at random drug tests by

Nucor Yamato Steel Company nor a police report also exceed

qualified privilege business related communications.

Arkansas Supreme Court Justice, Judge J. Hays ruled

in Dillard Department Stores v. Felton, 634 S. W. 2d 135 (Ark.

1982) and citing Arkansas Associated Telephone Company v.

Blankenship, 211 Ark. 645, 201 S. W. 2d 1019 (1947) that;

“we, approved the following language: The protection

of the privilege may be lost by manner of its exercise,

although the belief in the truth of the charge exists.

The privilege does not protect any unnecessary

defamation. In order for a communication to be

privileged, the party making it must be sure to go no

farther than his interest or his duties require. Where

the party exceeds his privilege and the communication

complained of goes beyond what the occasion

demands that it should publish, and is unnecessarily

defamatory to plaintiff, he will not be protected, and

41. See Appendix O at 105a through 107a.

, e 8 ae

28

the fact that a duty, a common interest, or a

confidential relation existed to limited degree is not a

defense, even though he acted in good “faith” (At p.

651, 201 S. W. 2d 1019).

It is clear that qualified privilege for business related

communications was lost in all of the above instants. The

doctrine of stare decisis requires that in determining a matter

of state law, federal courts are bound to follow the decisions

of the highest court of the state as it relates to Huddleston v.

Dwyer, 322 U.S. 232, 88 L. Ed 1246, 64 S. Ct. 1015 (1944).

Accordingly, the Eighth Circuits holding regarding Mr.

Bledsoe’s claim should be summarily reversed.

3. The State Law Claims not Addressed by the Eighth Circuit

Should Stand be Summarily Reversed for Trial.

1. The Hate Offense Claim. The statement “When I

come after you, you will know it” qualifies under Arkansas

Law rises to the level of a civil rights offense as it relates to 16-

123-105 of the Arkansas Code.

2. Spoilation of Evidence/Willful Destruction. Claim

based upon the destruction of Mr. Bledsoe’s resume by Nucor

Yamato Steel Company. Middleton v. Middleton, 68 S.W. 2d.

1003, 188 Ark. 1022; Fed. Rules Evid. R. 1004(e) U.S.C.A.

Conclusion

The decisions of the court below collide with this

Court's interpretation, State Law and the Arkansas Supreme

Court. The error is so obvious and I suggest this is one of

those exceptional cases in which summary reversal for

discovery and trial are in order. If on the other hand, there

might be basis for oral arguments, certiorari should be

granted for plenary review of these questions, which are very

29

important especially equitable tolling.

Respectfully submitted,

Raymon Bledsoe Sr.

710 Johnson Drive

West Memphis, Arkansas 72301

(870)732-0269

Pro Se

January 28, 2002

APPENDIX

la

APPENDIX A — ORDER GRANTING SUMMARY

JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

ARKANSAS WESTERN DIVISION DATED OCTOBER

19, 2000 AND ENTERED OCTOBER 23, 2000.

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

RAYMON BLEDSOE SR. Plaintiff

v. J-C-99-220

NUCOR YAMATO STEEL CO. Defendant

ORDER

Pending are Defendant’s Motion for Summary

Judgement (Docket #33) and Plaintiff's Motion to Compel

(Docket #32). The parties have responded to the respective

motions. For the reasons set forth herein, the Court finds that

Defendant’s Motion for Summary Judgement should be and

hereby is granted. Plaintiff's Motion to Compel is denied as

moot.

Facts

Plaintiff filed this suit based upon Title VII of the Civil

Rights Act of 1964 for alleged racial discrimination,

harassment and retaliation. Plaintiff also presents a claim for

the tort of outrage and defamation under Arkansas Law.

Plaintiff was employed by Defendant from June 1992

through July 1998. During his employment Plaintiff was

2a

Appendix A

promoted twice. However, Plaintiff had a history of

performance problems including insubordination, sleeping on

the job and fighting with co-workers. Specifically, the

following performance incidents occurred:

° In August 1994, Plaintiff received a verbal warning

for an incident in which Plaintiff cured at a co-worker

and threw sand over the co-worker’s head.

¢ Plaintiff was suspended for one day in July 1996

for arguing with and pushing another employee.

¢ Plaintiff received a verbal warning for sleeping on

the job in April 1998.

¢ Plaintiff received a written warning on May 12, 1998

for instbordination.

¢ On May 13, 1998 Plaintiff received a written

warning for poor work performance.

¢ During a meeting on May 28, 1998, Plaintiff was

warned about numerous work rule violations.

° On June 22, 1998 after a co-employee complained

about Plaintiff, Plaintiff was placed on suspension for

three days.

* On July 2, 1998 Plaintiff was terminated.

Plaintiff claims that each of these disciplinary actions and his

termination represented adverse employment actions.

Following his termination, on August 6, 1998 Plaintiff

contacted the EEOC by telephone. The Little Rock EEOC

office provided Plaintiff with a charge information form along

with a notice entitled “You May File a Charge”. On August

24, 1998 Plaintiff Completed the Charge Information Form

and returned it to the Little Rock . Plaintiff also signed and

returned the “You May File a Charge” form acknowledging

3a

Appendix A

that he had read it. On September 8, 1998 the Memphis EEOC

office sent Plaintiff a letter stating that it had received his

information and needed to discuss the matter in more detail.

On September 15, 1998 Plaintiff spoke with Christine Wilson

at the Memphis EEOC office. In this conversation, Wilson

discussed Plaintiff's claims and advised him of the 180 day

statute of limitation in which to file his charge. On October 27,

1998 Plaintiff sent a letter to the Little Rock EEOC office

expressing his dissatisfaction with the interview process with

the interview with Ms. Wilson. Plaintiff contends that

following this letter he was under the impression that the

Little Rock office had reconsidered the information provided

on his claim and conducting an investigation. Plaintiff did not

take any further action until January 29, 1999, one month

following the expiration of the 180 day statute of limitation,

when Plaintiff sent another letter to the Little Rock EEOC

office requesting information on his claim. On March 8, 1999

Plaintiff filed his Charge of Discrimination with the EEOC.

Standard for Summary Judgement

Summary judgment is appropriate only when there is

no genuine issue of material fact, so that the dispute may be

decided sole on legal grounds. Holloway v. Lockhart, 813 F. 2d

874 (8" Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has

established guidelines to assist trial courts in determining

whether this standard has been met:

The inquiry is the threshold inquiry of determining

whether there is a need for trial - whether, in other

words, there are genuine factual issues that properly

can be resolved only by a finder of fact because they

may reasonably be resolved in favor of either party.

4a

Appendix A

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) The

Eighth Circuit Court of Appeals has cautioned that summary

judgement should be invoked carefully so that no person will

be improperly deprived of a trial of disputed factual issues.

Inland Oil & Transport Co. v. United States, 600 F. 2d 725 (8"

Cir. 1979), cert. denied, 444 U.S. (1979). The Eighth Circuit set

out the burden of the parties in connection with a summary

judgement motion in Counts v. Ferguson Co., 862 F. 2d 1338 (s*

Cir. 1998):

[T]he burden on the moving party for summary

judgement is only to demonstrate, i.e., ‘[to] point out to the

District Court,’ that the record does not disclose a genuine

dispute on a material fact. It is enough for the movant to bring

up the fact that the record does not contain such an issue and

to identify that part of the record which bears out his

assertion. Once this is, done, the burden is discharged, and, if

the record in fact bears out the claim that no genuine dispute

exists on any material fact, it is then the respondent's burden

to set forth affirmative evidence, specific facts, showing that

there is a genuine dispute on that issue. If the respondent fails

to carry that burden, summary judgment should be granted.

Id. at 1339. (quoting City of Mt. Pleasant v. Associated Elec.

Coop., 838 F. 2d 268, 273-274 ()8" Cir. 1988) (citations

omitted) (brackets original)). Only disputes over facts that may

affect the outcome of the suit under governing law will

properly preclude the entry of summary judgment. Anderson,

477 US. at 248.

Title VII Claims

Under Title VII, an administrative charge must be filed

Sa

Appendix A

within 180 days of the alleged discriminatory incident. In

order to valid, Title VII requires that “charges shall be in

writing under oath or affirmation and shall contain such

information and be in such form as the [EEOC] requires. 42

U.S.C.§2000e-5(e)(1). There is no dispute that the last alleged

discriminatory act occurred on July 2, 1998. Thus, Plaintiff's

Charge of Discrimination was required on of before December

28, 1999. It is also undisputed that Plaintiff did not file his

Charge until March 8, 1999.

Plaintiff contends that the doctrine of equitable tolling

should apply as the delay in filing his charge was due to the

administrative delay of the EEOC and was beyond his

control. It is well settled that equitable tolling is premised on

the “excusable neglect” of the filing party. Anderson v. Unisys

Corp., 47 F. 3d 302, 306 (8 Cir.), cert. denied, 516 U.S. 913

(1995). As a general rule, equitable tolling is a remedy

reserved for circumstances that a “truly beyond the control of

the plaintiff”. Hill v. John Chezik Imports, 869 F. 2d 1122, 1124

(8"" Cir. 1989). Instances in which equitable tolling would be

appropriate include: (1) a claimant has received inadequate

notice; (2) a motion for appointment of counsel is pending; (3)

the court has led the plaintiff to believe that he or she has

done everything required of him or her; or (4) affirmative

misconduct on the part of a defendant lulled the plaintiff into

inaction. Baldwin County Welcome Ctr. v. Brown, 466 U.S.

147,151 (1984).

Plaintiff does not contend that he was unaware of his

rights. In fact, Plaintiff admits that he was advised of the 180

day statute of limitations deadline. Plaintiff claims that

following his October 27, 1998 correspondence, it was his

impression that the Little Rock office of the EEOC had

6a

Appendix A

reconsidered the information submitted by Plaintiff and was

conducting an investigation. However, the EEOC did not

mislead the Plaintiff of give him false information regarding

the filing of his Charge of Discrimination. The delay in filing

was not due to circumstances beyond Plaintiff's control.

Plaintiff was aware of the statutory deadline and failed to file

his charge within that time period. Plaintiff cannot now

invoke the principle of equity to excuse his lack to diligence.

Id. For these reasons, the court finds that Plaintiff's claims of

racial discrimination, harassment and retaliation under 42

U.S.C. §2000e should be and hereby are dismissed based

upon Plaintiff's failure to file an administrative charge as

required by 42 U.S.C. §2000e-5(e)(1).

State Law Claims

Plaintiff also seeks relief based upon the state law

claim of outrage. In order to succeed on a tort of outrage

claim under Arkansas law, a plaintiff must prove that: “1) the

defendant intended to inflict emotional distress or knew of

should have known that emotional distress was the likely

result of his conduct; 2) the conduct was extreme and

outrageous, and was utterly intolerable in a civilized

community; 3) the defendant’s conduct was the cause of the

plaintiff's distress; and 4) the plaintiff's emotional distress

sustained by the plaintiff was so severe that no reasonable

person could be expected to endure it.” Hollomon v. Keadle, 931

S.W. 2d 413, 415 (Ark. 1996). “By extreme and outrageous

conduct, we mean conduct that is so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds

of decency, and to be regarded as atrocious, and utterly

intolerable in civilized society.” M.B.M. Co. v.Counce, 596 S.W.

2d 681, 687 (Ark. 1980). The Arkansas Supreme Court has

~

7a

Appendix A

noted in a multitude of cases that the tort of outrage is viewed

very narrowly in an employment setting. The Court finds that

Plaintiff's allegations do not rise to the level of the tort of

outrage under Arkansas Law.

Plaintiff's claims of defamation stem from employee write-

ups and supervisor comments in the employment setting. The

Court finds that the Defendant is entitled to a qualified

privilege for business related communications and Plaintiff

has not met his burden to prove that this privilege that this

privilege has been abused. Ikani v. Bennett, 284 Ark. 409, 682

S.W. 2d 747 (1985). In addition, the one vear statute of

limitations bars Plaintiff's claims relating to verbal statements

made in the workplace prior to June 3, 1998. Finally, the

words about which Plaintiff complains are not actionable and

do not meet the threshold requirement for a defamation

action. Thus, summary judgment is proper.

Conclusion

For reasons set forth herein, the Court finds that the

Defendant's Motion for Summary Judgement (Docket #33)

should be and hereby is granted. Plaintiff's Motion to Compel

(Docket #32) is denied as moot.

IT ISSO ORDERED this 19 day of October, 2000.

s/ James Moody

JAMES M. MOODY

UNITED STATES DISTRICT

JUDGE

Ma

8a

Appendix A

THIS DOCUMENT ENTERED ON

DOCKET SHEET IN COMPLIANCE

WITH RULE 58 AND/OR 79 (a) FRCP

ON 10-23-00 BY s/ TM

9a

APPENDIX B — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

DATED AND ENTERED AUGUST 30, 2001 AFFIRMING

THE DISTRICT COURTS ORDER FOR SUMMARY

JUDGEMENT 7

United States Court of Appeals

For the Eighth Circuit

No. 00-3895EA

Raymon Bledsoe, Sr., e

Appellant, e On Appeal from the

e United States District

v. ‘ Court for the Eastern

e District of Arkansas.

Nucor-Yamato Steel Co. ‘

Appellee. e [Not To Be Published]

Submitted: July 20, 2001

Filed: August 30, 2001

Before MORRIS SHEPPARD ARNOLD, RICHARD 5S. ~

ARNOLD, and BYE, Circuit Judges. Knit

PER CURIAM.

Raymon Bledsoe, Sr. filed suit against Nucor-Yamato

Steel Company (“Nucor”) claiming race discrimination and

retaliation under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e through 2000e-1, and defamation and outrage

under Arkansas law. The District Court granted summary

judgement on all of Mr. Bledsoe’s claims. He appeals and we

affirm.

10a

Appendix B

On July 2, 1999, Mr. Bledsoe’s employment with

Nucor was terminated. He contacted the Equal Employment

Opportunity Commission office in Little Rock, Arkansas. The

EEOC sent him a charge information form entitled “You may

file a charge.” Mr. Bledsoe completed the charge information

form and returned it to the Little Rock office. In September, he

was contacted by the EEOC office in West Memphis,

Arkansas. An EEOC agent informed Mr. Bledsoe that the

EEOC would not represent him in his claim, and that he had

180 days from the date of his termination to file and

administrative charge. During the following months, Mr.

Bledsoe sent two letters to the Little Rock office complaining

that his telephone interview with the West Memphis office

was inadequate and requesting that the Little Rock office

review his claim and render a decision. He did not file a

charge before December 29, 1998, the day on which the 180-

day time period elapsed. After receiving a right-to-sue letter,

Mr. Bledsoe filed this suit against Nucor.

Mr. Bledsoe filed suit, pro se, in the District Court

alleging race discrimination and retaliation in violation of

Title VII. The Court permitted him to file an amended

complaint to include state law claims of defamation and

outrage. During discovery, he filed four motions for leave to

file second a amended complaint, which were all denied by

the Court on the basis of either undue prejudice, undue delay,

lack of diligence, or futility. Near the close of discovery, he

filed a motion to compel, requesting documents from Nucor

pertaining to his Title VII claims. Nucor filed a motion for

summary judgment. After a full hearing, the Court

determined that Mr. Bledsoe’s Title VII claims were barred by

the 180-day statute of limitations. The Court declined to apply

the doctrine of equitable tolling, holding that the delay was

lla

Appendix B

not due to circumstances beyond Mr. Bledsoe’s control.

Likewise, the Court entered summary judgment on the state

law claims, holding that the complained -of behavior did not

rise to the level of outrageous conduct required under

Arkansas law. Similarly, the Court held that the alleged

defamatory statements were either time-barred, privileged, or

not actionable. Consequently, the Court held that the motion

to compel was moot. This appeal followed.

II.

We review a district court’s grant of summary

judgment de novo. Hawkeye Nat'l Life Ins. Co. v. AVIS

Indus. Corp., 122 F. 3d 490, 496 (8 Cir. 1997). We consider

“all facts in light most favorable to the non-moving party and

give to the non-moving party the benefit of all reasonable

inferences that can be drawn from the facts.” Donaho v. FMC

Corp., 74 F. 3d 894, 897-98 (8" Cir. 1996) (citation omitted).

Summary judgment is proper “where there is no genuine

issue of material fact and the moving party is entitled to

judgement as a matter of law.” Gundacker v. Unisys C9rp.,

151 F. 3d 842, 846 (8" Cir. 1998).

Mr. Bledsoe argues that the Court erred in failing to

apply the doctrine of equitable tolling because the EEOC

engaged in “positive misconduct” by improperly transferring

his claim to the West Memphis office, conducting only a ten-

minute telephone interview, not promptly responding to his

letters, and initially mailing the right-to-sue letter to an

incorrect address. See Debrunner v. Midway Equip. Co., 803

F. 2d 950, 952 (8" Cir. 1986) (holding “[e]quitable tolling arises

upon some positive misconduct by the party against whom it

asserted”). Thus he argues, the ability to file a timely charge

12a

Appendix B

was out of his hands. We disagree.

Title VII requires a claimant to file an administrative

charge with the EEOC within 180 days of the alleged

discriminatory conduct. 42 U.S.C. § 2000e-5(1). It is

undisputed that Mr. Bledsoe did not file a timely claim. “The

filing of a timely charge with the EEOC is a “requirement

that, like a statute of limitations, is subject to . . . equitable

tolling.’ “ Shempert v. Harwick, 151 F. 3d 793, 797 (8" Cir.

1998), cert. denied, 525 U.S. 1139 (1999) (citation omitted).

However, the doctrine of equitable tolling is a limited one

“reserved for circumstances that are truly beyond the control

of the plaintiff.” Shempert, 151 F. 2d at 798 (internal

quotations and citation omitted). The application of the

doctrine is appropriate where: “(1) a claimant has received

inadequate notice; (2) a motion for appointment of counsel is

pending; (3) the court has led the plaintiff to believe that he or

she has done everything required of him or her; or (4)

affirmative misconduct on the part of a defendant lulled the

plaintiff into inaction.” Id. (citation omitted).

None of the above circumstances is present in this

case. It is undisputed that Mr. Bledsoe understood that he had

180 days to file an administrative charge. See DeBrunner, 803

F. 2d at 952 (holding when “an employee is generally aware

of his rights, ignorance of specific legal rights or failure to

seek legal advice should not toll the 180-day notification

”). Although it unfortunate that he waited to hear from

the EEOC before taking further action, “ ‘[p}]rocedural

requirements established Congress for gaining access to the

federal courts are not to be disregarded by courts out of a

vague sympathy for particular litigants.’” Shempert, 151 F. 3d

at 797 (citation omitted). Further, nothing approaching

13a

Appendix B

affirmative misconduct occurred on the part of the EEOC.

Thus, we hold the Court did not err in granting summary

judgment on Mr. Bledsoe’s Title VII claims.

Moreover, after carefully reviewing the record we also

disagree with Mr. Bledsoe’s position that the Court erred in

granting summary judgment on his state law claims of

defamation and outrage. The alleged defamatory statements

(unjustified employee write-ups, a supervisor's comment in

1996 to Mr. Bledsoe’s wife and family that one of his children

did not favor him; a supervisor's statement to a fellow

employee that he did not care if Mr. Bledsoe was having sex

with the employee’s wife, Mr. Bledsoe and the employee were

going to get along; inquiries of Mr. Bledsoe during a

deposition as to possible past drug use and possession) were

either privileged, see Dillard Stores, Inc. v. Felton, 276 Ark.

304, 308, 634 S.W. 2d 135, 137 (1982), beyond the statute of

limitations, see Ark. Code Ann. 16-56-104 (Michie 1987)

(applying one year statute of limitations to defamation suits),

or not actionable.

Likewise, the conduct underlying Mr. Bledsoe’s claim

of outrage ((1) the supervisor's statement, “when I come after

you, you will know it,” (2) being forced to work on material

hotter than 1200 degrees, (3) a supervisor's statement to a

fellow employee that he did not care if Mr. Bledsoe was

having sex with the employee’s wife, Mr. Bledsoe and the

employee were going to get along, and (4) subjection to a

psychological interview during the promotional process) was

not “so outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized

society.” M.B.M. Co. v. Counce, 268 Ark. 269, 280, 596 S.W. 2d

l4a

Appendix B

681, 687 (1980).

As to Mr. Bledsoe’s remaining assignments of error,

we hold that it proper to rule the motion to compel moot once

the Court had correctly disposed of all to Mr. Bledsoe’s

claims. Likewise, the Court did not abuse its discretion in

denying Mr. Bledsoe’s motions for leave to file a second

amended complaint.

Accordingly, the judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

15a

APPENDIX C — PETITION FOR REHEARING EN BANC

AND PETITION FOR REHEARING BY THE PANEL

DATED SEPTEMBER 10, 2001 AND ENTERED

SEPTEMBER 11, 2001

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

Raymon Bledsoe, Sr. - Appellant

Vv 00-3895EA

Nucor-Yamato Steel Company - Appellee

Petition - For Rehearing In Banc

To the Honorable Judges of the United States Court of

Appeals for the Eighth Circuit.

Introduction Statement

The argument and matter contained herein were not

presented in the previous hearing to the above-entitled Court

due to the Courts ruling.

Petition For Rehearing

Pursuant to the provisions of Rule 40 of the Federal

Rules of Appellate Procedure, petitioner, Raymon Bledsoe, Sr.

- Appellant herein, respectfully petitions the judges of this

honorable Court for rehearing of the appeal in the above-

entitled cause. In support of this petition, petitioner shows the

Court as follows;

1. The cases relied upon in the Courts opinion regarding the

matter of equitable tolling in the above-entitled cause do not

l6a

Appendix C

speak to the issue of the administrative responsibility of the

EEOC.

In Shempert v. Harwick Chemical Corp. 151 F. 3d at

793 (8" Cir. 1998), Shempert had 180 days to file a charge of

harassment. She waited until almost 2 weeks before the filing

period expired to complete and mail Intake Questionnaire to

the EEOC. In addition Shempert had the benefit of counsel for

one full month before the filing period expired.

In DeBrunner v. Midway Equipment Co. 803 F. 2d 950

(8 Cir. 1986), DeBrunner had the benefit of EEOC counsel

initially but waited 246 days after her termination to file a

formal charge. And in each these cases the EEOC responded

in a timely manner.

However, Mr. Bledsoe without the benefit of counsel,

filed intake questionnaire, talked to EEOC representative at

the Memphis, TN. office and mailed certified letter which has

not been disputed by appellee-Nucor Yamato Steel nor the

Courts, to the Little Rock EEOC office 60 days prior to end to

of filing period. The EEOC had the administrative duty to

respond to Mr. Bledsoe but did not prior to the deadline. The

EEOC’s actions were misleading to Mr. Bledsoe causing him

to feel that the EEOC office was actually addressing the

requests of his letter.

Within the framework of the request, Mr. Bledsoe

expressed a desire to seek relief with an attorney of his hiring.

An action by which the EEOC as well as this Court knows

could have only been accomplished with a Charge of

Discrimination issued by the Little Rock or Memphis Offices

of the EEOC.

17a

Appendix C

The other primary issue expressed by Mr. Bledsoe was the

time frame in which he had to litigate his case. The EEOC

was aware of Mr. Bledsoe’s desire to litigate this case 60 days

prior to the end of the filing period but refused to respond.

Anderson v. Unisys Corp. 47 F. 3d 302, 306 (8" Cir.

1995) which is cited by the Court in Shempert 151 F. 3d at 793

is more akin to Mr. Bledsoe’s case where this Court stated that

“Other circuits, as well as our own, have held that when an

administrative agency misleads a complainant, particularly

one who is without the benefit of counsel, equitable tolling

may be justified. Citing Warren v. Department of Army, 867

F. 2d. 1156, 1160-61 (8" Cir. 1989)(permitting equitable tolling

of the statute of limitations in Title VII action in part because

of misleading right to sue letter issued by EEOC); Early v.

Banks Life and Casualty Co., 959 F. 2d. 75, 81 (7" Cir.

1992)(citing misleading conduct by the EEOC as a basis for

equitable tolling); Bloomberg v. HCA Management Co., 858

F. 2d 642, 644 (5" Cir. 1988)(finding that misleading

information from the EEOC may justify equitable tolling) cert.

denied, 488 U. S. 1007, 109 S. Ct. 789, 102 L. Ed. 2d 781 (1989)

Martinez_v. Orr, 738 F. 2d 1107, 1111-12 (10 Cir. 1984)

finding equitable tolling appropriate where notice from EEOC

mislead pro se claimant regarding the finality of EEOC

action).

During the course of this litigation Appellee-Nucor

Yamato Steel Company nor the Courts have cited any cases

or statutes that support or justify the administrative

negligence of the EEOC as it relates to the above-entitled

cause therefore the preliminary opinion must be reversed.

2. Mr. Bledsoe feels that the Courts opinion on the remaining

—~

18a

Appendix C

claims in the above-entitled cause were tainted by equitable

tolling ruling to the extent that the Court overlooked the fact

that Mr. Bledsoe was engaged in protected activity prior to

termination by Nucor Yamato Steel Company which is

supported by Reginelli v. Martin Industries, Inc., 987 F. a

1137 (8" Cir. 1997), Hagens v. United States Department of

Agriculture, 865 F. Supp. 1314 (8"" Cir. 1994) as well as cases

from other circuits. Mr. Bledsoe has also presented adequate

cases and statutes that fully support the remaining claims in

this cause, claims which surround the protected activity that

Mr. Bledsoe was engaged in prior to termination. Supporting

the fact that the summary judgement ruling was also

improper.

Suggestion That Case Be Reheard In Banc

Pursuant to the provisions of Rule 35 of the Federal Rules of

Appellate Procedure, petitioner respectfully suggests to the

judges of this honorable Court that the above-entitled cause

is appropriate for consideration on rehearing by all the judges

of this Court convened in banc, and in support of this

suggestion petitioner shows:

1. The proceeding involves a question of exceptional

importance in that the Courts opinion regarding equitable

tolling in the above-entitled cause would have a negative

impact on similar litigation allowing the EEOC to circumvent

the administrative responsibilities delegated to it by Congress.

2. Arkansas like many other states are without the benefit of

state or local fair employment agencies and the EEOC serves

as the only recourse for actions of discrimination as it relates

to Title VII of the Civil Rights Act. The Courts opinion

19a

Appendix C

regarding equitable tolling would relieve the EEOC of its

administrative responsibilities opening to the door to other

possible abuses. Such abuses speak to the Public Interest and

must therefore be reversed.

3. The summary judgement ruling is a question of

exceptional importance since the Eighth Circuit citing

Windsor v. Bethesda General Hospital, 523 F. 2d 891 stating

“in civil rights actions, pleadings are to be liberally

construed” which is consistent with other circuits which have

dismissed and vacated employers motion to dismiss. The

Eighth Circuit has noted that summary judgement is a

extreme remedy citing Robert Johnson Grain Co. v. Chemical

Interchange Company, 541 F. 2d 207. The question to this

Court is whether summary judgement is proper in light of

documentation by Mr. Bledsoe, containing personal work

related diary notes and certified letters to Appellee-Nucor

Yamato Steel Company prior to Mr. Bledsoe’s termination

that speak to as well inference racial discrimination by

Appellee-Nucor Yamato Steel Company.

4. The remaining claims of above-entitled cause have merit.

Each claim should be addressed on an individual basis by this

Court therefore the preliminary opinion must be reversed.

Wherefore, petitioner respectfully requests:

1. That a rehearing of the appeal in above-entitled cause be

granted; and

2. That the honorable judges of this Court order that the

above-entitled cause be heard by the court in banc allowing

oral arguments.

20a

Appendix C

September 10, 2001

s/ Raymon Bledsoe

710 Johnson Drive

West Memphis, AR. 72301

(870)732-0269

Certificate

I hereby certify that the fore going petition for rehearing is

presented in good faith and not for delay.

s/ Raymon Bledsoe Pe

710 Johnson Drive

West Memphis, AR. 72301

Pro Se

2la

APPENDIX D— ORDER DENYING PETITION FOR

REHEARING EN BANC DATED AND ENTERED

OCTOBER 30, 2001.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 00-3895

Raymon Bledsoe, Sr. a

Appellant, .

- Order Denying Petition

« for Rehearing and for

Vs. . Rehearing En Banc

Nucor-Yamato Steel Co.,

Appellee e

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

(5128-010199)

October 30, 2001

Order Entered at the Direction of the Court:

s/ MICHAEL E. GANS

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

22a

APPENDIX E — STATEMENT OF THE BASIS OF

JURISDICTION

UNITED STATES DISTRICT COURT EASTERN DISTRICT

OF ARKANSAS — JONESBORO, ARKANSAS

Cause - 42:2000e Job Discrimination (Employment) - Federal

Question

Relevant Facts - The Plaintiff, Raymon Bledsoe Sr., is resident

of Crittenden County of the Eastern District of Arkansas and

Nucor-Yamato Steel Company is a foreign corporation with

it principle place of business in Mississippi County of the

Eastern District of Arkansas.

Raymon Bledsoe Sr. was employed by Nucor-Yamato Steel

Company for 6 (six) years when he was discriminated against

and terminated for engaging in protected activity as it relates

to Eva v. Kansas City School Dist, 65 F. 3d 98, 100 (8"" Cir. 1995)

certi. denied 517 U. S. 1104, 116 S. Ct. 1319, 134 L. Ed 2d 472

(1996). An employer may not discriminate against an

employee because the employee “has opposed any practice

made unlawful employment practice, 42 U. S. C. A. 2000e-

3(a).

Raymon Bledsoe Sr. filed charge of discrimination against

Nucor-Yamato Steel Company with the EEOC on March 8,

1999 and filed complaint against Nucor-Yamato Steel

Company on June 3, 1999.

Plaintiff reserved all rights under any motions filed

previously concerning jurisdiction and transfer in First

Amended Compiaint.

The District Court has jurisdiction over this cause of action

23a

Appendix E

and the parties hereto, and venue is proper.

UNITED STATES COURT OF APPEAL FOR THE EIGHTH

CIRCUIT

Cause 42 :2000e - Job discrimination and employment

Relevant Facts - The U. S. District Court for the Eastern

District of Arkansas granted summary judgement order for

Defendant Nucor-Yamato Steel Company on October 23,

2000.

U. S. District Court for Eastern District of Arkansas is within

the Eight District Court of Appeals jurisdiction.

An appeal of the U. S. District Courts Order granting

summary judgement for Nucor-Yamato Steel Company was

appealed by Mr. Bledsoe from the U. S. District Court by Mr.

Bledsoe on November 21, 2000 establishing jurisdiction in the

Eighth Circuit Court of Appeals.

UNITED STATES SUPREME COURT

The judgement of the United State Court of Appeals for the

Eighth Circuit was entered on August 30, 2001. The United

States Court of Appeals for the Eighth Circuit denied a timely

petition for rehearing in an Order dated October 30, 2001.

This Petition is filed within ninety days of the United States

Court of Appeals for the Eighth Circuit’s denial of rehearing

and therefore, this Honorable Court has jurisdiction of this

Petition by virtue of 28 U.S. C. § 1254(1).

24a

APPENDIX F — 42 U.S.C.A. § 2000e-5(e) and (f)

(e) Time for filing charges; time for service of notice on

respondent; filing of charge by Commission with State or

local agency; seniority system

(f) Civil action by Commission, Attorney General, or person

aggrieved; preconditions; procedure; appointment of

attorney; payment of fees, costs, or security; intervention; stay

of Federal proceedings; action for appropriate temporary or

preliminary relief pending final disposition of charge;

jurisdiction and venue on United States courts; designation of

judge to hear and determine case; assignment of case for

hearing; expedition of case; appointment of master

25a

APPENDIX G — JUNE 29, 1998 LETTER FROM

RAYMON BLEDSOE SR. REQUESTING EXERCISE OF

FINAL STEP OF NUCOR YAMATO STEEL'S

COMPANY COMPLAINT PROCEDURE RECEIVED ON

JUNE 30, 1998.

Raymon Bledsoe

710 Johnson Dr.

West Memphis, AR. 72301

June 29, 1998

Mr. Mike Gurley, Melt Shop Supervisor

Nucor-Yamato Steel

P. O. Box 1228

Blythville, AR. 72316

RE; 6/26/98 and 6/27/98 Suspension and Notice.

Mike Gurley

This letter is in reference to the above stated notice and

suspension. In this letter I was suspended with the lost of

production bonus primarily on the basis of allegations made

by Albert Dyer which amount to hearsay.

When you approached me on 6/22/98 regarding this matter,

you stated that Albert, Jess Garner, you and myself would

meet on 6/26/98 to further discuss the matter. In a meeting

with Jess Garner a few minutes later, he also indicated that

the four of us would meet. Mr. Garner came to our work area

on the morning of 6/26/98 and made the same statement

again. But when Mr. Garner came over that afternoon to get

me for the meeting we passed by Albert on our way to your

office. Why wasn’t Albert asked to come to the meeting in

order to support the allegations made by you and Mr.

26a

Appendix G

Garner?

You made reference in your notice and the meeting that I had

a problem with “suggested direction from a fellow employee

with more job experience”. As it relates to Albert, I respect

him for the time that he has been in refractory but when he

violates practices taught to me by him and practices known to

the rest of refractory and the ladle wall, for safety reasons to

the men on the caster and the productivity of Nucor-Yamato

Steel I have th~ “esponsibility as an employee of this mill to

inform 4 and anyone else of possible problems.

This is not only based upon my 1.5 years of experience in

refractory as a “bricker” but is also based upon my 4.5 years

of experience on the furnaces where J have seen ladles wash

through the sides while a heat was being tapped into it.

Fortunately they didn’t wash out on the caster. Mike, I have

6 years of compiled experience that allows me to view areas

in refractory in a much broader since than Albert. Albert has

a personal problem with that position to the extent that he

becomes very upset when questioned.

On 6/21/98 when he bricked a whole ladle by himself, he

bricked it without the required stands that were in the ladle

that I was in. The one Mike that you guys could not agree on

which had priority. Due to the fact that he had no stands,

Albert left a bare spot on the slag line at 12 o'clock approx. 3

ft. from the top. He bricked over this spot without putting the

necessary amount of ladle-vibe behind the brick.

This situation is so out of hand that I was afraid to say

anything about it due to his temper when advised. -

27a

Appendix G

In my letter to Nucor dated 6/15/98, I indicated in paragraph

three of page two that “the tundish was hot when I cleaned it

out and set the plates”. I worked on this tundish by myself.

Albert was not working on a ladle but sitting down. I am

often put in this position in order to make sure that we have

adequate tundishes and ladles. I have worked alone many

times as Albert used company time to council members of his

church. I bricked a ladle alone 3 weeks ago.

As for as sleeping on the job is concerned. Mr. Garner told us

in one of our morning meetings that it was beneficial in taking

a short nap. But several other people have also been

reprimanded for sleeping on the job within the past weeks.

As to the counceling sessions referred to in your notice, the

first two were spent basically trving to find out what our

priorities are and the equal distribution on work which are

made reference to in my 4/27/98 letter to Nucor. As for my

session with Dan on 5/18/98, his suggestion was to not let

Glenn Browns actions affect my work.

As to your reference to an inaccurate statement regarding my

meeting with Dan on 5/18/98. I requested a meeting with

Dan on 4/2798 and did not get that meeting with Dan until

5/18/98 which was twenty-two days later. The insubor-

dination charge was 5/12/98 six days before | talked to Dan.

I hope that there is no more confusion regarding this.

Mike I have been written up for the same incidents twice.

Conduct/ insubordination 5/12 and again by you on 6/26.

Work performance/tundish plates 5/13 and again by you on

6/26. Work performance/ sleeping 4/18 and by you again on

6/ 26.1 believe that this is excessive Mike.

Appendix G

I believe that the real reason for the suspension was my

questioning management in areas such as the harassment of

employees by Glenn Brown and the lack of written guidelines

so that priorities and goals can be set for all the people in

refractory. | have requested a computer for refractory so that

not only would our record keeping be more accurate but so

that we might have some accountability which is what you

emphasized in your first safety meeting with our crew.

This is not the same Nvu-or-Yamato Steel that I began

employment six years ago when we struggling to make the

million plus tons a year. Every aspect of this operation was

open for constructive criticism. Mike, I have been apart of

two furnace records on number one furnace that have proven

to the rest of the crews that those once imagined goals could

be met in tap to tap. I have offered ideas that have and could

make our work in refractory a lot easier.

As I mentioned to you and Jess on 6/26/98, I overcame the

racist remark that John Bell made in reference to me being

hired as a quota in order to fulfill the minority mandate of the

federal government prior to hiring me as utility man on the

furnaces.

I overcame Donnie Crums open insult of my wife and

children in their presence as | tried to introduce him to them.

I worked for Donnie for 4.5 years.

I am working for Jess Garner who has been called a racist by

one of our fellow employees. While I have my concerns also,

I have tried to give Jess the benefit of a doubt.

You spent much of your time in our safety meeting stating

29a

Appendix G

that you are not the same person that you were 10 years ago.

While I have my concerns I have also given you the benefit of

a doubt because I have seen Mike Gurley in a neutral

environment. I encouraged you to seek the job as melt shop

manager.

As a member of the ISO 9002 team I volunteered my

experience in quality control and my time to make sure that

Nucor-Yamato remains the leader in the industry.

Mike I have overlooked and accepted a lot of garbage since

my employment at Nucor but as I stated to you and Jess, I

demand my respect as citizen of this great country that we

live in and as an employee of Nucor-Yamato Steel.

I have given Nucor-Yamato my best for the past six vears and

after three weeks on the job you say that it is not good

enough. I am not employed by Nucor-Yamato to make every

bodies day a happy one although I try. I am hired by this

company to brick tundishes and ladles and brick them safely.

This situation has gotten out of hand and it has began to affect

me physically as well as mentally.

_I am requesting that I exercise the final step of our open door

policy by informing our cooperate offices of this matter.

Respectfully,

s/ Raymon Bledsoe

Raymon Bledsoe

cc. Rib.

Certified Letter #280 309 912

30a

APPENDIX H — OCTOBER 27, 1998 LETTER TO THE

LITTLE ROCK EEOC OFFICE REQUESTING FINALITY

AND RECONSIDERATION FILE STAMPED BY THE

EEOC ON OCTOBER 28, 1998.

Raymon Bledsoe Sr.

710 Johnson Drive

West Memphis, AR. 72301

October 27, 1998

Equal Employment Opportunity Commission

Little Rock Area Office

425 W. Capital, Suite 625

Little Rock, AR. 72201

Dear Representive

This letter is in reference to my dismissal from Nucor-Yamato

Steel of Blythville, AR., as well as the telephoned conversation

with Ms. Christine Wilson on September 15, 1998 at approx.

10:00 a.m

I requested the necessary forms from your office via telephone

on August 6, 1998 for to complete for information regarding

my dismissal.

I received those forms. I completed the forms and I also

enclosed certified documents that I feel add more support to

my claims.

_ Ms. Wilson from your Memphis Office responded in writing

requesting the opportunity to discuss my situation in more

detailed letter dated September 8, 1998.

3la

Appendix H

I attempted to contact Ms. Wilson on September 14 and

successfully contacted here via phone on Sept. 15.

My more detailed discussion of my situation resulted in a

conversation which lasted less than ten (10) minutes when she

concluded that I had no grounds for filing a charge with

EEOC.

This not an effort to defame Ms. Wilson and or her

qualifications as an investigative support assistant. | feel that

the information that I submitted to your office carried more

weight and more validity than our brief conversation

exposed.

In your pamphlet entitled The Charging Party, Your Rights

and Responsibilities on page one (1) THE LAWS it states:

Title VII Prohibits——

Discrimination because of race, color religion, sex or

national origin. All employment practices are affected,

including hiring, firing, layoffs, promotions, wages,

training, disciplinary action and other terms, privileges,

conditions of benefits of employment.

The information submitted to vour office along with the

copies of certified documents lend overwhelming support

to the affected employment practices of hiring, firing and

disciplinary action.

I was employed with Nucor-Yamato Steel for a period of six

(6) years commuting 145 mile per day with a excellent work

record. There is no support for my termination other than a

_-32a

Appendix H

new melt shop manager wanting to make an example by

firing me.

Since my conversation with Ms. Wilson, I have not received

any documentation from your office or her Memphis Office

regarding your findings and or my rights to seek reliefswith

an attorney of my hiring and the time frame in which I have

to litigate this case.

It is my hopes that your office would review the information

submitted to you and render a decision. Thank you for your

time and patience.

Respectfully,

s/ Raymon Bledsoe Sr.

Raymon Bledsoe Sr.

33a

APPENDIX I — JANUARY 29, 1999 LETTER TO THE

LITTLE ROCK EEOC RECEIVED FEBRUARY 1, 1999

REFERENCING THE OCTOBER 27, 1998 LETTER TO

THE EEOC.

Raymon Bledsoe Sr.

710 Johnson Drive

West Memphis, AR. 72301

Home 870-732-0269

Mobile 870-243-3306

Pager 800-338-4839 pin 1042

January 29, 1999

Equal Employment Opportunity Commission

Little Rock Area Office

425 West Capital Office, Suite 625

Little Rock, AR. 72201

RE: Request for confirmation

To Whom It May Concern

I mailed a letter to your office dated October 27, 1998. A copy

of that letter has been enclosed. In that letter, I requested

another review of my allegations against Nucor-Yamato Steel

of Blythville, Arkansas.

I have not received any information trom the Memphis nor

the Little Rock Area Offices indicating acceptance or denial of

my claims. As you know, the element of time is of great

importance to me if I am able to seek my own counsel and file

a suit against the above stated company.

I am requesting a letter of confirmation of the enclosed letter.

34a

Appendix |

Respectfully,

s/ Raymon Bledsoe

Raymon Bledsoe

Certified Mail # Z 490 626 675