Opposition Brief — Thomas v. Monsanto Employees' Credit Union

ttupreme Gowt, U.S. |

FILED

DEC 23 1994

No. 94-973 OFFICE Or, HE CLERK |

In The

Supreme Court of the United States

October Term, 1994

¢

DOROTHY THOMAS,

Petitioner

MONSANTO EMPLOYEES’ CREDIT UNION,

Respondent.

— .

On Petition For Writ Of Certiorari To

The Eleventh Circuit Court Of Appeals

+

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

*

James H. Cor. II

(Counsel of Record)

WALTER E. JOHNSON

KILPATRICK & Copy

Suite 2800

1100 Peachtree Street

Atlanta, Georgia 30309

(404) 815-6500

Counsel for Respondent

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether certiorari should issue to the Eleventh Cir-

cuit, which affirmed without opinion the judgment of the

District Court rejecting Petitioner’s racially discrimina-

tory demotion and retaliatory discharge claims, where

Petitioner has presented no circuit conflicts, no real Con-

stitutional issues, and no real issues of federal statutory

construction, but simply asks this Court to review as on

appeal claimed errors of the District Court in rendering

its oral Findings of Fact and Conclusions of Law under

Fed. R. Civ. P. 52(a).

il

TABLE OF CONTENTS

Page

CRIBSTRIN PRICE oc cibics cusbvivipedcdieess. i

py 8 Be Bes, 5. Prep r re ere ii

TAR OF ALLE RAMEEMED 6c icdonbeccéseuhjunsaneds iii

SEATED OVC 6 bccn rudicdadacegavegebieass 1

STATERGSIGE OF Tie CA cc scvctaceeciscisteces 3

SUMMARY OF THE ARGUMENT ................. 9

ATA ATGIRGE oo ccccsciacccestsucesstnvabsensnen 9

1. The District Court’s Findings And Conclusions

Were Sufficient And Did Not Violate Peti-

tioner’s Due Process Rights.................. 11

2. The Eleventh Circuit Did Not Sanction A

Departure By The District Court From The

Accepted And Usual Title VII Analysis....... 18

CONC LAIN 0 cbc veverskesstenisineteeteeen 30

ili

TABLE OF AUTHORITIES

Page

CASES

General Talking Pictures Corp. v. Western Elec. Co.,

A Sa | eee 11

Guidry v. Texaco, Inc., 430 F.2d 781 (5th Cir. 1970).... 12

Gupta v. East Texas State Univ., 654 F.2d 411 (5th

DC Pek GREGGeAGS4A EY HOR RMh RE SA SR Oae ence ae ss 12

Irby v. Sullivan, 737 F.2d 1418 (5th Cir. 1984)........ 12

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

eG a ee Eb hr ee ss ananentaes 9, 10, 18, 19, 20

Murrell v. Trailways Southeastern Lines, Inc., 39 Fed.

me eee. aan Bee feet Ge, PGR). oi ck ec ecw coeess 16

Nix v. WLCY Radio/Rahall Communications, 738 F.2d

I ie ba vols OW es e¥.9 Seeds ene nee ess 22

Redditt v. Mississippi Extended Care Centers, 718

ee We SUE MIS BP ck cece cewcnsseeconeseurs 16

Ross v. Moffitt, 417 U.S. 600 (1974) ...............6.. 11

Texas Dept. of Community Affairs v. Burdine, 450

ES ee dc cue eck theses sesdscocusevxasuces 19

Texas v. Mead, 465 U.S. 1041 (1984).................. 11

United States Postal Serv. Bd. of Governors v. Aikens,

NN EE OED ae ee cdnneskssborevovensvaes'ss 19

United States v. Johnston, 268 U.S. 220 (1925)......... 11

Unt v. Aerospece Corp., 765 F.2d 1440 (9th Cir. 1985) .... 13

Weber v. McKee, 215 F.2d 447 (5th Cir. 1954)...... 12, 17

TABLE OF AUTHORITIES - Continued

Page

STATUTES AND RuLEs

5A Moore’s Federal Practice J 52.06[1] (1992)....... 12

OE Ui An. Be See OE ORG, ceivncicsadanecseurcivines i, o

ae Se Oe errr ee a, 3, ©, HB, 17;

nas *Oet: TOME Tek bss de sey ces danesse cea 18

ee ee. Pere rere err eriT ey ce errr eee 3

oe

No. 94-973

a a

In The

Supreme Court of the United States

October Term, 1994

*

DOROTHY THOMAS,

Petitioner,

MONSANTO EMPLOYEES’ CREDIT UNION,

Respondent.

o-—— ---—-_-—

On Petition For Writ Of Certiorari To

The Eleventh Circuit Court Of Appeals

+

BRIEF IN OPPOSITION TO z

PETITION FOR WRIT OF CERTIORARI

2

Respondent respectfully prays that the Petition for

Writ of Certiorari be denied.

STATUTES INVOLVED

The following provisions of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., are at issue

in this Petition:

§ 2000e-2. Unlawful employment practices

(a) Employer practices

It shall be an unlawful employment practice for

an employer -

(1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate

1

2

against any individual with respect to his com-

pensation, terms, conditions, or privileges of

employment because of such individual’s race

§ 2000e-3. Other unlawful employment practices

(a) Discrimination for making charges, testi-

fying, assisting, or participating in

enforcement proceedings

It shall be an unlawful employment practice

for an employer to discriminate against any of

his employees . . . because he has opposed any

practice made an unlawful employment practice

by this subchapter. .. .

The following Federal Rule of Civil Procedure is at

issue in this Petition:

Rule 52. Findings by the Court; Judgment on Partial

Findings

(a) Effect. In all actions tried upon the

facts without a jury or with an advisory jury, the

court shall find the facts specially and state sep-

arately its conclusions of law thereon, and judg-

ment shall be entered pursuant to Rule

58; . . . Findings of fact, whether based on oral

or documentary evidence, shall not be set aside

unless clearly erroneous, and due regard shall

be given to the opportunity of the trial court to

judge of the credibility of the witnesses. . . . It

will be sufficient if the findings of fact and

conclusions of law are stated orally and

recorded in open court following the close of the

evidence or appear in an opinion or memoran-

dum of decision filed by the court... .

ne

3

STATEMENT OF THE CASE

This is an action under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. Peti-

tioner, Dorothy Thomas, seeks to hold Respondent, Mon-

santo Employees’ Credit Union (“MECU”),! liable for

alleged racially discriminatory demotion and retaliatory

discharge. Although Ms. Thomas’s Statement of the Case

is accurate to some extent, it contains numerous omis-

sions and misstatements which MECU clarifies below.

The MECU is a state-chartered, member-owned, sav-

ings and lending institution located in Pensacola, Florida.

R2-179. In 1987, the MECU was governed by a 13-member

volunteer Board of Directors elected by the members of

the MECU. R2-180-81, 184. That Board was comprised of

ten white males, one black male, and two white females.

R2-183-84. Ms. Thomas, who is black, was a loan officer

for the MECU from 1980 until her demotion in July 1987

and subsequent discharge in August 1987. R1-2-3.

In early July 1987, MECU General Manager Doyle

Griffiths became aware through the Collections Depart-

ment that the number of delinquent car loans and

repossessions was higher than normal. R2-192, 330-31. As

a consequence, he directed Ms. Judy Cochran, who was

supervising the Collections Department, to look into the

matter. Her initial investigation revealed that the prob-

lems were coming from loans made for cars purchased

from a used-car dealer called “Autos by Dave.” R2-193.

Examination of some Autos by Dave loan files revealed

an unusual, and unauthorized, practice of cutting two

checks — one for the dealer and a separate check to a

used-car salesman, Buck English. R2-278.

On July 14, 1987, Mr. Griffiths presented the informa-

tion he had collected to that point to the Board, who

' As required by Supreme Court Rule 29, MECU states that

it has no parent companies and no non-wholly owned subsid-

iaries.

4

made the decision to stop all loans with Autos by Dave

until Mr. Griffiths could get to the bottom of the problem.

The Board also directed Mz. Griffiths to investigate fur-

ther and return with a report at the next meeting on July

21. R2-193, 278-79, 354.

During the week between July 14 and July 21, Ms.

Cochran, at Mr. Griffiths’s instructions, looked at more

Autos by Dave loan files to determine what problems had

led to the increased delinquencies and repossessions.

R2-194, 229, 279. Ms. Cochran discovered that Ms.

Thomas was the loan officer responsible for the files, and

that she had deviated in many instances from the guide-

lines and practices established by the MECU for loan

officers to follow in evaluating and processing loan

requests. R2-194-95, 279.2

At the Board’s July 21, 1987 meeting, Mr. Griffiths

presented information about Ms. Thomas’s large number

of delinquent loans (now totaling over $115,000; Def.’s

Exhs. 48-49), increased automobile repossessions, and

potential loan losses, as well as her violations of MECU

practices and procedures, such as cutting two checks (one

to Autos by Dave and one to Buck English), improperly

2 Petitioner admits that she was responsible for “several” of

the questionable Autos by Dave loans, but claims that no one

else involved with that dealer was disciplined. Petition, p. 5. As

the record shows, however, Ms. Thomas was responsible for

more than “several” questionable Autos by Dave loans. She was

responsible for virtually all of them. She also fails to mention

that the files of the few Autos by Dave loans processed by other

loan officers were checked prior to her termination, and no

irregularities were found. Petitioner also fails to mention that

her supervisor, Ms. JoAnne Cave (a white female), was disci-

plined for failing to detect Ms. Thomas’s derelictions of duty.

R2-203-204, 318-19, 365; Def.’s Exh. 90. Although Ms. Thomas

asserts that no other loan officer in the history of the MECU had

ever been demoted for loan delinquencies or repossessions, that

was because no one had ever had such a serious problem before.

a en A

5

calculating debt ratios, and failing to check credit prop-

erly. R2-194-95, 230-33, 280, 355-56.

The members of the Board were fond of Ms. Thomas.

Many of them had worked with her at the Monsanto

plant in Pensacola and did not want to believe that she

had exercised such poor judgment. Yet, when presented

with clear evidence of Ms. Thomas’s derelictions, the

large loan delinquencies, and the appearance of impropri-

ety in the dealings between Ms. Thomas and Buck

English, they decided that they must get Ms. Thomas out

of the loan officer position. Accordingly, the Board

directed that Ms. Thomas be demoted. R2-196, 235,

356-57. Some of the Board members thought at that time

that Ms. Thomas should be terminated, but were per-

suaded to accept demotion. R2-196, 356-57. The Board

again directed Mr. Griffiths to continue his investigation,

look at more Autos by Dave files, and determine whether

other preblems might surface. R2-196, 238, 280, 357-58.

Mr. Griffiths met with Ms. Thomas to notify her of

the demotion. He presented Ms. Thomas with a final

written warning concerning her situation. However, she

refused to sign the warning until she met with the Board

of Directors. Mr. Griffiths informed Ms. Thomas that he

would try to arrange for her to speak to the Board at its

next meeting on August 11. R2-200-201, 358.

Many members of the Board traveled to Orlando,

Florida on August 6-8, 1987, for a convention. Because

there would be some free time during the trip, the Board

asked Ms. Cochran to prepare a packet of information

containing examples of Ms. Thomas’s malpractice copied

from the actual loan files. Because the Board members are

lay people and not loan officers, Ms. Cochran circled the

numerous discrepancies and wrote on the paperwork an

explanation of their significance. The Board met infor-

mally, reviewed this packet, and discussed some of the

problems revealed to that date. R2-197, 280-81, 357-58.

Also during the period between July 21 and August

11, Mr. Griffiths met with the owner of Autos by Dave,

6

Dave Tinker, and learned that Buck English was selling

older junk cars for whatever he could, and that the

MECU, through Ms. Thomas, was the only place that

would finance them. R2-197-99. When Mr. Griffiths

informed Mr. Tinker that some of the repossessed cars

lacked the represented options, he agreed to reimburse

those members who had been cheated for the value of the

missing options. R2-199.

Accordingly, Mr. Griffiths directed his staff to contact

members who bought cars from Buck English to deter-

mine if their cars had the options they should. R2-200.

One member who was called, Regenold Williams,

informed MECU staffer Ms. Teresa Peacock that he was

not a Buck English relative (even though represented to

be in loan file documents), and that he was considering

hiring a lawyer because the car he bought from Buck

English and financed through the MECU was junk.

R2-259-60.

On August 11, 1987, while Mr. Griffiths and his staff

were continuing their investigation, the Board met with

Ms. Thomas as she had requested. At the meeting, she

stated that she did not believe that she had been treated

fairly, and she asserted that other loan officers were

doing the same things but had not been disciplined.

R2-359.

The Board felt no desire to punish Ms. Thomas for

her statement. R2-360, 364, 377, 397, 403, 406. The Board

made two decisions, however, after Ms. Thomas left the

meeting. First, the Board resolved to use the two weeks

between then and the next Board meeting to broaden the

investigation to include all loan officers and all of Ms.

Thomas’s Autos by Dave loan files to make sure that she

was not being singled out and to be completely fair to

her. R2-359-60. Second, because Ms. Thomas was visibly

distraught over her demotion and was having a difficult

7

time keeping her mind on her work, the Board directed

that she be given those two weeks off with pay.3

Unfortunately for Ms. Thomas, the expanded investi-

gation of all Autos by Dave loan files revealed more and

more examples of her malpractice. For instance, more

files showed incorrectly calculated debt ratios, which

resulted in loans being granted to people who had insuf-

ficient income to make the payments. In other instances,

Ms. Thomas failed to note that certain borrowers were

not credit worthy, or not even eligible to borrow from the

MECU. There were also suspicious increases in vehicle

selling prices to match loan values, and a suspicious

number of “relatives” of Buck English who had become

MECU members and received loans. Moreover, with

regard to the unauthorized cutting of two checks, the

amounts of commission payments to Buck English were

outrageous in many instances, leading to the conclusion

that some sort of a scam was being perpetuated. Finally,

the MECU was repossessing more junk cars; delinquen-

cies were still high; and concern had arisen among the

Board members over possible liability of the MECU to

disgruntled borrowers. R2-204, 247-49, 282, 361-63, 407:

Def.’s Ex. 82.

On August 25, 1987, the Board met, reviewed most of

Ms. Thomas’s Autos by Dave loan files themselves, had

their contents explained by MECU personnel, and thor-

oughly discussed the matter. As a result of the clearly

egregious pattern of conduct revealed over time by the

continuing investigation, the members of the Board,

many with tears in their eyes, unanimously came to the

personally difficult conclusion that their only alternative

was to terminate Ms. Thomas’s employment. It was clear

to them, given the facts, that they could not condone the

gross mishandling of their membership’s assets in the

fashion the direct and circumstantial evidence clearly

* Ms. Thomas was told she was being given two weeks of

paid vacation. R2-48.

8

revealed. The Board, as stewards of other people’s money,

could not justify maintaining Ms. Thomas’s employment

despite the personal friendships that existed between

many of the Board Members and her. Accordingly, they

directed that Ms. Thomas be discharged. R2-204-206, 284,

363-67, 372, 377-78, 385, 395-98, 402-404, 406-407. Ms.

Thomas’s supervisor, Ms. JoAnne Cave, was also

demoted and her pay frozen for two years because of her

failure to detect Ms. Thomas’s malpractice. R2-203-204,

318-19, 365; Def.’s Exh. 90.

Ms. Thomas was treated exactly like all other sim-

ilarly-situated loan officers. When the broadened investi-

gation ordered by the Board on August 11 revealed

possible improprieties by a white loan officer - Ms. Sam-

mie Singleton — she was, likewise, suspended pending

investigation and, ultimately, terminated by the Board in

November 1987 for similar gross dereliction of her fiduci-

ary duty to the MECU and its members in connection

with her mishandling of real estate loans.4 R2-207-208,

367-68, 397-98; Def.’s Exhs. 48, 49, 73, 85.

Ms. Thomas filed an EEOC charge and, after the

EEOC issued a No Probable Cause Determination, filed

this suit. After full discovery, the Honorable Lacey A.

Collier conducted a three-day bench trial.> At the trial’s

conclusion, he orally made Findings of Fact and Conclu-

sions of Law (hereafter “Findings and Conclusions”)

which rejected Ms. Thomas’s claims in their entirety. Ms.

Thomas appealed to the Eleventh Circuit, which heard

oral argument and affirmed without opinion. The Elev-

enth Circuit also denied her Petition for Rehearing and

Suggestion for Rehearing En Banc.

4 Ms. Singleton filed a Title VII retaliatory discharge action

against the MECU, which was also tried by the same District

Court Judge. He entered judgment for MECU in that case on

April 3, 1992. Def.’s Exh. 86.

> Ms. Thomas inaccurately asserts that the trial lasted two

days. Petition, p. 6.

SUMMARY OF THE ARGUMENT

This is not a proper case for grant of the writ of

certiorari. Ms. Thomas can point to no conflict among the

circuits, no real Constitutional issues, and no real issues

of federal statutory construction. All she has is what she

believes were erroneous Fed. R. Civ. P. 52(a) Findings and

Conclusions. Not to be deterred, however, she fashions a

denial of due process argument and the desperate conten-

tion that the Eleventh Circuit sanctioned the District

Court’s departure from the accepted and usual course of

judicial proceedings so that intervention by this Court is

needed.

Neither argument has any merit. The District Court’s

Findings and Conclusions are in compliance with Rule

52(a) and were made in the accepted and usual way. It is

apparent, therefore, that Ms. Thomas is simply unhappy

with the Findings and Conclusions made against her, and

she seeks to turn this Court into another Court of

Appeals by asking it to reverse them. Unfortunately for

Ms. Thomas, this Court does not use its certiorari jurisdic-

tion to determine whether a District Court’s Findings and

Conclusions are clearly erroneous. Because this case pre-

sents no question worthy of certiorari, Ms. Thomas's peti-

tion should be denied.

ARGUMENT

Although Petitioner has made two “arguments” why

certiorari should be granted here, they both attack the oral

Findings and Conclusions the District Court made pur-

suant to Fed. R. Civ. P. 52(a). By focusing on pieces of the

District Court’s Findings and Conclusions and ignoring

the whole, Ms. Thomas claims they (1) were so deficient

as to constitute a due process violation, and (2) failed to

include all the findings required by McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Ms. Thomas’s argu-

ments have no merit, because, as will be shown below,

10

the District Court followed faithfully Fed. R. Civ. P. 52(a)

and made all the Findings and Conclusions even argua-

bly necessary under McDonnell Douglas.

Before addressing these points, however, MECU

must comment on the unsupported factual assertions and

emotional appeals Ms. Thomas has made in her effort to

get this Court’s attention. Ms. Thomas argues that the

writ must be granted “to send a message” to the follow-

ing: (1) District Courts, who feel that Title VII cases so

“clog” their dockets that they “summarily dismiss” them

without giving them “their ‘day in court’ ”; (2) employer-

defendants, so that they will recognize that Title VII

litigants “will not be abused;” and (3) Title VII plaintiffs’

practitioners, who would recognize that “there will be a

chance of a fair trial to recover the fruits of their labor.”

Petition, pp. 7-8.

MECU submits that this Court should deny this Peti-

tion and, instead, send a message to Ms. Thomas that

frivolous appeals, such as this, must end. There is no

evidence that the District Court below believed that Ms.

Thomas's case clogged its docket. Ms. Thomas had more

than her “day in court” — she had three days in court, and

she failed to prove her case. She has certainly not been

“summarily” dismissed any where along the way by the

federal courts. The Eleventh Circuit entertained an appeal

by Ms. Thomas and granted her oral argument.

With regard to her second contention, at no time has

MECU abused Ms. Thomas. Instead, she has caused

MECU to expend much time and money in defense of

what has apparently become a personal vendetta. If any

party is being abused, it is MECU, because Ms. Thomas

will not accept personal responsibility for her own mal-

practice.

Finally, the third message Ms. Thomas wants this

Court to send is absurd in light of the record. Ms. Thomas

did not raise a claim of unfairness in the conduct of the

trial before the Eleventh Circuit. The reason is clear -

Judge Collier granted Ms. Thomas every opportunity to

11

present evidence and cross-examine MECU’s witnesses.

The only unfairness here is Ms. Thomas’s continued

assertion of frivolous appeals.

Ms. Thomas has apparently lapsed into these unsup-

ported arguments and emotional appeals to mask the fact

that she is seeking certiorari to review alleged errors by

the courts below in assessing the facts and granting judg-

ment to MECU. However, this Court uses its certiorari

jurisdiction to examine issues of Constitutional or federal

statutory importance, not to engage in the correction of

asserted errors in assessing evidence. Texas v. Mead, 465

U.S. 1041, 1043 (1984) (“’We do not grant a certiorari to

review evidence and discuss specific facts.’”) (quoting

United States v. Johnston, 268 U.S. 220, 227 (1925)); Ross v.

Moffitt, 417 U.S. 600, 616-17 (1974) (“This Court’s

review .. . is discretionary and depends on numerous

factors other than the perceived correctness of the judg-

ment we are asked to review.”); General Talking Pictures

Corp. v. Western Elec. Co., 304 U.S. 175, 178 (1938) (“Grant-

ing of the writ would not be warranted merely to review

the evidence or inferences drawn from it.”). Because this

Petition is simply another attempt at an appeal, it should

be denied.

1. The District Court’s Findings And Conclusions

Were Sufficient And Did Not Violate Petitioner’s

Due Process Rights

Ms. Thomas asserts that the District Court’s Findings

and Conclusions violated her due process rights. It is

clear, however, from both a review of Rule 52(a)’s

requirements and the entire analysis of the District Court

that no due process violation occurred.

Rule 52(a) provides in relevant part as follows: “In all

actions tried upon the facts without a jury... , the court

shall find the facts specially and state separately its con-

clusions of law thereon... . ” Oral Findings and Conclu-

sions are allowed. Id. The Fifth Circuit has summarized

that Rule’s requirements as follows:

12

The federal rule relating to findings of the

trial court does not require the court to make

findings on all facts presented or to make

detailed evidentiary findings; if the findings are

sufficient to support the ultimate conclusion of

the court they are sufficient. .. . Nor is it neces-

sary that the trial court make findings asserting

the negative of each issue of fact raised. . .. The

ultimate test as to the adequacy of findings will

always be whether they are sufficiently compre-

hensive and pertinent to the issues to provide a

basis for decision and whether they are sup-

ported by the evidence.

Weber v. McKee, 215 F.2d 447, 451 (5th Cir. 1954) (citations

omitted). The drafters of the Rule also intended that the

process need not be laborious:

The Rule does not place a severe burden upon

the trial judge, for the judge “need only make

brief, definite, pertinent findings and conclu-

sions upon the contested matters.”

5A Moore's Federal Practice 4 52.06[1] (1992) (quoting 1946

Advisory Committee Note). This is so because the pur-

pose of the Rule simply is “(1) to engender care on the

part of the trial judge in ascertaining the facts and (2) to

make possible meaningful review in the appellate

courts.” Gupta v. East Texas State Univ., 654 F.2d 411, 415

(Sth Cir. 1981).¢ If the record gives substantial support for

the ultimate conclusion that the employer’s actions

against the employee were indeed justified, and thus that

no retaliatory motive was involved, any deficiencies in

6 In any event, a district court’s failure to make all the

findings sought by a party “does not require remand where the

omitted findings would not change the outcome of the [case].”

Guidry v. Texaco, Inc., 430 F.2d 781, 784 (5th Cir. 1970). If the

record supports the district court’s conclusion, which it cer-

tainly does here, any error is harmless. Irby v. Sullivan, 737 F.2d

1418, 1421 n.2 (5th Cir. 1984).

13

the findings are irrelevant. Unt v. Aerospace Corp., 765 F.2d

1440, 1444 (9th Cir. 1985).

The entire record of this case has already been

reviewed by the Eleventh Circuit and found to support

the District Court's decision. But, even putting that aside,

a review of all the District Court’s Findings and Conclu-

sions related to the retaliatory discharge claim, not just

the few sentences quoted by Petitioner, reveals that the

District Court provided far more than just conclusory

findings. It considered all the evidence, as the excerpts

quoted below make clear:

I do have to take note that the evidence estab-

lishes that [Ms. Thomas] has made a significant

number and amount of bad loans as a loan

officer, and the credit union clearly had the right

to question and figure out and determine why,

which they undertook to do.

I think the evidence supports that they

found arguably incorrect debt ratios, at least

from the files, unverified income, and no

accounting for insurance, which is obvious in

any mortgage or lien for automobile; question-

able use of child support, particularly without

verification — I don’t attempt to list them all, but

just to point to some of them - the two-check

question, certainly is questionable when it

comes to making a check out for a commission,

and in the number and amount of loans that

took place; the questionable memberships, |

don’t know that the same day you get the loan is

too significant, but I think clearly when you

look at the number of alleged relatives that one

person has that she deals with should have

caused her some concern with the issue. All of

these things taken in combination cause ques-

tion as to her abilities, particularly when they all

come together in light of her relationship with

Autos by Dave, and in particular Buck [English].

14

I’m not sure that the question is whether

she acted in good faith or not, she may have just

been sloppy or may have been just careless, but

clearly the record demonstrates incompetence in

her role as a loan officer, particularly where it is

that she came in contact with Buck [English].

She may well have been scammed, too. . . by

one smooth operator, as apparently a lot of peo-

ple were in this case.

But whether she was part and parcel of that,

he surely took advantage of her sloppiness, and

perhaps I am more inclined to believe her trust-

ing nature.

Petitioner’s Appendix A, pp. la-3a.

With regard to the retaliatory discharge claim Ms.

Thomas has highlighted in her first argument, the District

Court set out the elements of her prima facie case as

follows:

In order to prove her retaliation claim, the

plaintiff had the burden of proof that she

engaged in activity protected under Title 7, and

clearly she has done that with her claim and

protest of discrimination; and that an adverse

employment action was taken against her, and

certainly that was, in fact, done; and thirdly,

which is the important one, that there was

causal link between the activity and the adverse

employment action.

Id. at 3a. In analyzing Ms. Thomas’s failure to establish

the third element of her prima facie case, the District

Court stated:

Then, as to the causal link between the

activity and the adverse employment action, I

do find that the credit union through the man-

agement and the board acted in good faith. You

certainly point out some instances where the

information and particular items and areas

might have been interpreted differently, or

might in fact have been an error, but that does

15

not distort the fact that they acted in good faith

in relying on that data that they had before

them, and made reasonable interpretations on

their own, right or wrong, but that they acted in

good faith.

Id. at 5a.

Although the District Court found that Ms. Thomas

had not established a prima facie case of retaliatory dis-

charge, it noted that

[t]he ruling would remain the same, even if the

plaintiff had proven her prima facie case,

because the defendant did, in fact, articulate

legitimate, nondiscriminatory reasons for the

demotion and the termination, and the plaintiff

has failed to meet her burden in establishing

that these reasons constituted pretext for dis-

crimination, because I find from the facts -and

the statistics that have been presented that they

were not pretextual but that they did, in fact,

exist.

Id. at 6a. The District Court thus concluded that the

Board’s reason for discharging Ms. Thomas was not pre-

textual because there was “sufficient basis for the termi-

nation.” Id.

In closing, the District Court made clear that Ms.

Thomas had simply failed to carry her ultimate burden of

persuasion:

Under the law of the circuit, therefore, you

need only produce credible evidence to support

these legitimate reasons, and does not carry the

burden of persuasion. That burden remains with

the plaintiff to show that her participation in the

protected activity was a significant factor in

Monsanto’s decision to terminate her, and | do

find that she has failed to meet that burden. In

fact, she has not proved to the Court’s satisfac-

tion that race played any role in the defendant's

actions in this particular case.

Id. at 6a-7a.

16

Despite the District Court’s specific findings, Ms.

Thomas cites cases which she says hold that a District

Court must do more than issue conclusory findings on

the pretext issue (Petition, p. 10), and asserts that the

District Court below made only conclusory findings on

the pretext issue relating to her retaliatory discharge

claim. Id. at 11.

The cases she cites did not have the type of detailed

Findings and Conclusions that were made here. For

example, in Redditt v. Mississippi Extended Care Centers, |

718 F.2d 1381 (5th Cir. 1983), the plaintiffs introduced |

evidence of numerous white employees who had engaged :

in similar misconduct but who had not been fired and of

many black employees fired on the first rule infraction.

Id. at 1385-86.7 The employer rebutted the evidence. Id. at

1386. The District Court, faced with conflicting pretext

evidence, simply made a general statement that plaintiffs

had not proven pretext because a “‘number of both black

and white employees have testified in this case that

blacks were not treated any differently than whites.’ ” Id.

This conclusory finding, according to the Fifth Circuit, in

no way indicated the factual basis for the District Court’s

7 The other case Petitioner cites as directly “on point” with

this one, Murrell v. Trailways Southeastern Lines, Inc., 39 Fed. R.

Serv. 2d 124 (4th Cir. 1984), is very different. In that case the trial

judge indicated in colloquy with counsel that plaintiff had

established a prima facie case and defendant had rebutted it,

but that the case was a close one and he would give it more

thought. A week later, the trial judge entered a memorandum

opinion dismissing the case, and stated that he would rely on

his statements from the bench to explain his decision unless |

plaintiff appealed, in which case he would prepare a more

detailed opinion. The plaintiff did appeal, but, before the trial

judge could prepare his opinion, he died. Id. at 125. In that case,

the Fourth Circuit quite naturally reversed and remanded for a

new trial because the inadequacy of the Findings and Conclu-

sions precluded effective appellate review. The Findings and

Conclusions here are not so fatally flawed.

ant: ety seee

17

decision, and flew in the face of the substantial record

evidence that pretext had been proven. Id. at 1386-87.

That case poses no problem here. As explained in the

Statement of the Case, supra, MECU’s evidence showed

that Ms. Thomas’s discharge followed a further, continu-

ing investigation. The information gathered between her

demotion and discharge revealed even more dereliction

of duty, and it became apparent that a demotion would

not be sufficient. Ms. Thomas’s Petition fails to describe

any evidence she presented which showed that this legiti-

mate, non-discriminatory reason for her termination was

pretext, but which the District Court ignored and failed

to make findings about.

The only “evidence” Ms. Thomas even refers to in

her Petition is that her discharge came “on the heels of

protected activity.” Petition, p. 15. But, the District Court

obviously rejected that evidence because it found no link

between her protest and the termination. Indeed, the

District Court found that the Board acted in good faith in

discharging Ms. Thomas, based on the information before

them. Petitioner’s Appendix A, p. 5a.

Under the Weber decision discussed above, the Dis-

trict Court’s findings here are adequate, because they

provide a basis for the decision and are amply supported

by the evidence. See Statement of the Case, supra. More-

over, the facts as found and the conclusions drawn show

that the District Court took great care in ascertaining the

facts, which provided the Eleventh Circuit with a sub-

stantive set of Findings and Conclusions that allowed for

meaningful review.’ Indeed, even Petitioner’s trial coun-

sel was satisfied that the facts and logic had been set

8 Even if the District Court’s Findings and Conclusions on

Ms. Thomas's retaliatory discharge claim do not meet the speci-

ficity requirement of Rule 52(a), the Eleventh Circuit obviouslv

reviewed the record and determined that it supported the Dis-

trict Court’s determination that Ms. Thomas’s discharge was not

retaliatory.

18

forth adequately. At the end of his oral ruling, Judge

Collier asked the parties if there were “any other findings

or points that you feel the Court should make?” In

response to this request, Petitioner’s trial counsel stated:

“None, Your Honor.” Petitioner’s Appendix A, p. 7a. The

appellate court has done its job in affirming the District

Court’s Findings and Conclusions as not clearly erro-

neous, with due regard to the District Court’s oppor-

tunity to judge the credibility of witnesses. There is no

need for another “appeal” to this Court.

2. The Eleventh Circuit Did Not Sanction A Departure

By The District Court From The Accepted And

Usual Title VII Analysis

Ms. Thomas attempts to fashion her second argument

on one of the grounds stated in Supreme Court Rule 10 as

a proper basis for certiorari.? Ms. Thomas claims that the

District Court departed from accepted and usual Title VII

analysis because “[eJach of the prongs of the four part

methodology of McDonnell-Douglas, requires the District

Court to make a subsidiary finding.” Petition, p. 12.

? Supreme Court Rule 10 provides in relevant part as fol-

lows:

Considerations Governing Review on Writ of Cer-

tiorari

-1. A review on writ of certiorari is not a matter of

tight, but of judicial discretion. A petition for a writ of

certiorari will be granted only when there are special

and important reasons therefor. The following, while

neither controlling nor fully measuring the Court’s

discretion, indicate the character of reasons that will

be considered:

(a) When a United States court of appeals

has . . . so far departed from the accepted and usual

course of judicial proceedings, or sanctioned such a

departure by a lower court, as to call for an exercise of

this Court’s power of supervision. . . .

19

Petitioner has cited no case which holds that a Dis-

trict Court must, after a full bench trial of a Title VII case,

structure its Findings and Conclusions so as to mirror

exactly the McDonnell Douglas four-part analysis of how

evidence should be presented. That is because no such

case exists. In the words of this Court, McDonnell Douglas

merely

set forth the basic allocation of burdens and

order of presentation of proof in a Title VII case

alleging discriminatory treatment. First, the

plaintiff has the burden of proving by the pre-

ponderance of the evidence a prima facie case of

discrimination. Second, if the plaintiff succeeds

in proving the prima facie case, the burden

shifts to the defendant “to articulate some legiti-

mate, nondiscriminatory reasons for the

employee's rejection.” Third, should the defen-

dant carry this burden, the plaintiff must then

have an opportunity to prove by a prepon-

derance of the evidence that the legitimate rea-

sons offered by the defendant were not its true

reasons, but were a pretext for discrimination.

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,

252-53 (1981) (citations and footnotes omitted).

The focus after a trial must instead be on the ultimate

factual issue — has the plaintiff proven intentional dis-

crimination — and not on the McDonnell Douglas four-part

analysis. United States Postal Serv. Bd. of Governors v.

Aikens, 460 U.S. 711, 715-16 (1983) (after trial, court must

decide whether discrimination was proved, and there is

no need to make the “inquiry even more difficult by

applying legal rules which were devised to govern ‘the

basic allocation of burdens and order of presentation of

proof,’ Burdine, 450 U.S., at 252, 101 S.Ct., at 1093, in

deciding this ultimate question.”).

On this ultimate issue in this case, the District Court

explicitly stated that Ms. Thomas “has not proved to the

20

court’s satisfaction that race played any role in the defen-

dant’s action in this particular case.” Petitioner’s Appen-

dix A, p. 7a. That holding is amply supported by the

Findings and Conclusions and the record. Even if the

District Court were required to make Findings and Con-

clusions on each point of the four-part McDonnell Douglas

analysis, that was done here, as explained below.

Ms. Thomas nevertheless argues first that the District

Court’s findings were in “confusion” on the issue of

whether she had established a prima facie case on her

demotion claim. Petition, pp. 12-13. MECU submits that

any confusion is merely the result of Ms. Thomas’s own

attempt to create confusion where rone exists. As shown

below, the Findings and Conclusions clearly state that she

did not prove her prima facie case.

The District Court first set out the following elements

of a prima facie demotion case:

That she was a member of the protected

group, which she has certainly done; that

. there was an adverse employment action

that was taken against her, and clearly . . . that

has been proven; and, thirdly, she must prove

that she was treated more harshly than persons

notin the protected group under similar circum-

stances.

Petitioner’s Appendix A, p. 3a.

The District Court found, however, that Petitioner

“failed to satisfy the third prong - that she was treated

more harshly than persons not in the protected group

under similar circumstances.” Id. at 4a. The District Court

considered the Petitioner’s evidence and argument that

white MECU employee Sue Culver was similarly situated

to her but not demoted, but rejected it. According to the

District Court,

I have looked carefully at all the data and all the

charts that have been prepared, and definitely

cannot see the same relationship there, that [Ms.

Culver’s] loans and her ratios and foreclosure,

21

or mortgage lien termination and losses simply

do not compare to this [plaintiff].

Id. Instead, the District Court credited the MECU’s evi-

dence that it had treated a similarly-situated white

employee ~ Sammie Singleton - the same by discharging

her, too. Id. at 4a-5a.

The failure of Ms. Thomas to prove a prima facie case

on her demotion claim could have ended the inquiry. But,

the District Court nevertheless made the following Find-

ings and Conclusions about the MECU’s legitimate, non-

discriminatory reasons for its action:

Clearly, the demotion was proper in that this

plaintiff was, in fact, failing to meet her respon-

sibilities as a loan officer, and the board [of

directors of the MECU] would have abrogated

their responsibility, their fiscal responsibility to

the members of the credit union by failing to

take action in allowing her to continue in this

fashion.

Id. at 5a.

On the issue of pretext, the District Court again

found that Ms. Thomas had failed to carry her burden of

proof:

The question then becomes whether the rea-

sons were, in fact, pretextual. And I do find,

though, that the reason for the demotion is

obvious from the record, I don’t think there is

any question whatsoever about that... .

Id. at 6a.

Ms. Thomas also attacks these Findings and Conclu-

sions by arguing that the District Court allegedly made a

finding that was contrary to what the MECU’s position

was at trial. Petition, p. 12, n.1. Ms. Thomas is again,

however, the one that is confused.

Specifically, Ms. Thomas claims that the reason

MECU advanced at trial for demoting Ms. Thomas -

failure to follow procedures — was not the same reason

advanced by the District Court in ruling that Ms. Thomas

22

was not similarly situated to Ms. Culver. In fact, the

District Court was simply responding to Petitioner’s

claim that Ms. Culver was similarly situated because she

allegedly had delinquencies, loan losses and reposses-

sions that were as bad as hers. The charts and statistics to

which the District Court referred were introduced to

show, and did show, that only Ms. Singleton among all

the loan officers came anywhere close to Petitioner in

terms of the factors relied upon by Petitioner - and Ms.

Singleton, a white, was demoted and terminated as well.

Ms. Thomas also disputes the factual findings the

District Court made on the “similarly situated” issue. In

her view, “any white loan officer who had any type of

delinquent loan balances . . . would be similarly situated

to the Petitioner.” Petition, p. 13. That is not, and never

has been, the law. Nix v. WLCY Radio/Rahall Communica-

tions, 738 F.2d 1181, 1185 (11th Cir. 1984) (for employees

to be similarly situated, the plaintiff must show that the

misconduct for which she was discharged was “nearly

identical” to that of employees outside the protected

class). The District Court’s finding on this point was not

clearly erroneous.!°

Ms. Thomas also believes that the Di-«trict Court |

advanced “some theory that was not raisea during the |

course of trial,” and she feels she did not get to rebut it.

Petition, pp. 13-14. The District Court did not, however, |

advance any theory. It simply judged the evidence that

had been submitted. Petitioner did not have to rebut the

District Court — she had to rebut MECU, and she could

not. She was fully aware of the evidence MECU would

submit once the Pretrial Stipulation was filed. She

allowed in without objection all of the documents and

charts (which Ms. Thomas calls “statistical data”) that

MECU prepared, which summarized her derelictions of

duty and compared her to all other loan officers, thus

10 This argument by Ms. Thomas simply underscores that

this certiorari petition is a poorly-disguised effort at an appeal.

aeeaenateconier caine eerie

23

buttressing MECU’s testimony that she was not “singled

out” while white employees got away with the same

policy violations.

Ms. Thomas contends that, had she known MECU

would use statistical data as the articulated reason for the

demotion, she would have objected because the evidence

was “after acquired.” Petition, p. 14.

Three points must be made in response to this con-

tention. First, this so-called statistical data was not after-

acquired evidence. In other words, it is not evidence of

which MECU was unaware when it fired Ms. Thomas and

only later stumbled across when preparing for trial (such

as a falsified employment application).

Instead, most of the information from which these

exhibits were created was available and known to the

Board when it demoted Ms. Thomas. For example, Defen-

dant’s Exhibit 70 is the vehicle repossession summary

report covering 1987-1990 for loans made by Ms. Thomas.

R2-459. MECU employee René Deese testified that she

prepared Exhibit 70 from Ms. Thomas's loan files, which

existed in 1987 and were introduced into evidence as

Defendant’s Exhibits 1 through 47. R2-458-59. The record

shows that the Board was concerned about repossessions

and delinquencies at the July 21 demotion meeting. See

Statement of the Case. Exhibit 70 reflects that numerous

“intent to repossess” letters had been sent out before this

meeting. Thus, the Board had knowledge that many of

Ms. Thomas’s loans were delinquent and headed to

repossession as of the demotion date, and Exhibit 70

merely summarizes the extant documents which estab-

lished these facts.

Exhibit 73 summarizes in graph form the contents of

two other exhibits - 48 and 49 - to which Ms. Thomas

posed no trial objection.'! Indeed, this graph simply

1! Exhibit 73 graphs the information contained in Defen-

dant’s Exhibit 48. R2-461-63. The delinquency numbers on

24

reflects the information the Board knew about Ms.

Thomas’s delinquencies in July 1987 - they totaled

$115,732 and far exceeded that of any other loan officer at

that time.

The testimony also reflects that the information in

Exhibit 75 and part of Exhibit 74 was collected during the

investigation ordered by the Board. R2-331-32. Exhibit 74

shows the actual dollar amount of auto loans written by

loan officers, each loan officer’s percentage of the total,

and the percent of losses to loans made. Exhibit 75 was

compiled from the monthly delinquency report for July

1987, which was in the Board’s possession at the demo-

tion date. R2-332; Def.’s Exh. 49. Therefore, the data in

Exhibits 74 and 75, from which many of the remaining

now objected-to exhibits were prepared, see note 12, infra,

was not after acquired.

Likewise, Exhibit 82 is a summary of all the problems

with Ms. Thomas’s Autos by Dave files. R2-418. Again,

Ms. Deese testified that she prepared Exhibit 82 from Ms.

Thomas’s loan files, which existed in 1987 and which

were in evidence. R2-418-19. The testimony is clear that

the Board was concerned about Ms. Thomas's failure to

follow MECU policy in making loans at the July 21 demo-

tion meeting. See Statement of the Case. Although it is

unclear which of the 47 Autos by Dave loan files were

reviewed with the Board at this meeting, every type of

error or irregularity discussed at that meeting is reflected

in Exhibit 82. Although this document did not exist on

July 21, many of the problems detailed in it were known

to and discussed by the Board at that time.

Exhibit 48 were taken directly from the monthly delinquency

reports provided to the Board, which were collectively submit-

ted as Exhibit 49. R2-461-62. Thus, the documents (Exhibit 49)

upon which both Exhibits 48 and 73 are based were in existence

and had been reviewed by the Board at the time of Ms. Thomas’s

demotion.

i icacieaiiiaieiaamidmaaciaiaaiiiluiiiiiiiaial

25

But even if all the evidence in these exhibits were

after-acquired (which it is not), the MECU did not put

them in the record simply to support the demotion deci-

sion, although many of them do. There was much oral

testimony, unaided by these exhibits, to support the exis-

tence of the problems that led to the demotion decision.

See Statement of the Case, supra. Instead, most of these

exhibits were used by the MECU to show the District

Court that there were no other loan officers similarly

situated to Ms. Thomas, with the exception of white loan

officer Sammie Singleton (who was also terminated a

short time later for similar malpractice).!?

12 Exhibit 73 shows that Ms. Thomas and Ms. Singleton had

the highest loan delinquencies, by far, of any of the MECU’s

loan officers.

Exhibit 74 shows that Ms. Thomas had the highest percent-

age of losses to loans and 60.10% of the losses due to reposses-

sions ($35,520.08) for the first eight months of 1987.

Exhibit 75 shows that in July 1987, Ms. Thomas had more

delinquent auto loans, both in quantity and dollar value, than

any other loan officer.

Exhibit 76 uses a bar graph to show more vividly some of

the data reflected on Exhibit 74. R2-465. This chart shows that

Ms. Thomas had twice as many losses due to automobile loan

repossessions than her closest comparator, Ms. Morgan.

Exhibit 77 also uses a bar graph to display some of the

information reflected on Exhibit 75. R2-466. This exhibit shows

in striking fashion that Ms. Thomas’s total auto loan delinquen-

cies far exceeded Ms. Morgan’s.

Exhibit 78 displays in graph form some of the information

found in Exhibit 74. R2-467. This chart belies any assertion by

Ms. Thomas that her delinquencies were high because she han-

dled more auto loans than anyone else. Indeed, this exhibit

reflects that she wrote fewer auto loans than many other loan

officers, but she had, by far, the greatest percentage of auto loan

losses. s

Exhibit 79 is also based on Exhibit 74. R2-468. This graph

simply reflects in a more readable fashion the fact that Ms.

26

Second, the MECU also used these exhibits to show

the District Court that Ms. Thomas’s malpractice cost the

MECU a lot of money; that real, not pretextual, reasons

drove the eventual termination as more and more infor-

mation was learned; and that the Board was justified in

its action.!9

For example, the exhibits show not only that Buck

English was the only salesman to whom Ms. Thomas cut

direct commission checks,!4 but also that a large numbers

of his “relatives” received auto loans.!5 Third, the exhibits

Thomas’s auto loan losses as a percentage of auto loans written

were twice as high as her nearest comparator, Ms. Morgan.

Finally, Exhibit 80, also based on Exhibit 74 (R2-468), graph-

ically illustrates how much worse Ms. Thomas was doing when

compared to the other loan officers in July 1987. Fully 21% of

Ms. Thomas’s loans were delinquent as opposed to only 6.8% of

those written by Ms. Morgan.

13 For example, Exhibit 70 shows that Ms. Thomas’s failures

to follow policy eventually cost the MECU over $93,000 in

losses. Loan losses just on cars purchased by members from

Buck English at Autos by Dave equaled at $49,487.26. Exhibit 70

also supports the testimony by Board members that further

repossession of junk cars between Ms. Thomas’s demotion (July

21) and discharge (August 25) was a factor in the latter adverse

action. Exhibit 70 shows five repossessions between the two

above-mentioned dates (13. Williams; 17. Knight; 23. Nelson; 24.

Suggs; and 35. English).

14 Exhibit 70 shows that Ms. Thomas’s unusual practice of

cutting two checks — one for the dealer and one to the salesman

- occurred only when Buck English was the salesman. R2-460.

1S Exhibit 72, prepared from the loan files which were avail-

able to the Board at the time of Ms. Thomas’s demotion, shows

how many “relatives” of Buck English were granted loans by

Ms. Thomas. R2-457-58. The District Court did not find that Ms.

Thomas’s granting of loans to so many Buck English relatives

was “too significant,” although it noted that this should have

raised questions in her mind. R2-558. Exhibit 72 thus shows the

extent of Ms. Thomas's carelessness.

27

summarized for the District Court the information that

the Board was getting piece by piece from July 14, 1987

until August 25, 1987 in an easy to read format, so that

the District Court could see the same picture eventually

developed for the Board —- total abdication of respon-

sibility by Ms. Thomas.

For example, Exhibit 82 capsulates all of the prob-

lems detected with Ms. Thomas’s auto loan files with

Buck English as the salesman. R2-418-23. This exhibit

notes “relatives” of Buck English; which loans had

improperly calculated debt ratios (19 of 47; R2-424);

which loans were made despite problems with income or

employment verification; which loans were made despite

the borrower's lack of established credit; the amounts

paid to Buck English as commission ($27,406.67);

instances where the amount loaned was greater than the

purchase price agreed to by the buyer (R2-425-30); and

the date when the MECU took action to notify borrowers

of intent to repossess and the date of actual repossession.

Moreover, the chart reflects that Ms. Thomas issued a

separate check to Buck English in 40 of 47 loans she made

where he was the salesman, (R2-423), and that 20 of these

47 car loans resulted in repossession, which at over 40%,

is an unusually high percentage rate of repossession.

R2-424.

The District Court recognized the usefulness of these

types of exhibits, and referenced them three times in its

Findings and Conclusions. In each instance, the exhibits

assisted the District Court in its search to determine

whether the MECU had treated Ms. Thomas differently

because of her race or whether the articulated reasons for

the decisions were pretextual.

For example, the District Court stated, “I have care-

fully looked at all the data and all the charts that have

been prepared, and definitely cannot see the same rela-

tionship [between plaintiff and white loan officer Sue

Culver], that her loans and ratios and foreclosures, or

28

mortgage lien terminations and losses simply do not com-

pare to [Ms. Thomas].” Petitioner’s Appendix A, p. 4a.

The District Court also used the charts to assist it in

finding that the only similarly-situated employee to Ms.

Thomas in terms of foreclosures and losses was Ms. Sam-

mie Singleton, a white loan officer also demoted and

discharged by the Board. Id. at 4a-5a. Finally, in determin-

ing whether plaintiff had proven pretext as to either of

her claims, the District Court stated: “I find from the facts

and statistics that have been presented that [the articu-

lated reasons] were not pretextual but that they did, in

fact, exist.” Id. at 6a.

Because a great deal of the information summarized

in the now objected to exhibits actually existed in July

1987, because the exhibits had uses other than showing

the legitimate, non-discriminatory reasons for the demo-

tion, and because the District Court properly understood

and utilized the ex iibits, use of the “statistical data” was

proper. The facts stated therein fully support both the

Board’s and District Court’s decisions and do not consti-

tute “after-acquired” evidence.

Ms. Thomas next argues that the District Court’s

analysis of her retaliation claim departed from the usual

and accepted analysis in Title VII cases. Petition, pp.

14-15. Again, this argument is based on an erroneous

reading of the record. The District Court did not rule, as

Ms. Thomas asserts, that she failed to establish a prima

facie retaliation case because she could not point to a

white person that had been treated better than she. Id.

Instead, the District Court held that Ms. Thomas had not

established a prima facie demotion case because of that

failure of proof. Petitioner's Appendix A, p. 4a.

The Findings and Conclusions clearly state that Ms.

Thomas failed to establish a prima facie retaliatory dis-

charge claim because there was no causal connection

between the termination and the protected activity.

Although Ms. Thomas apparently believes that the causal

connection is proven if the termination follows two

a

29

weeks after the protected activity (Petition, p. 15), that is

not so. Indeed, the District Court addressed this conten-

tion and rejected it as follows:

Then, as to the causal link between the

activity and the adverse employment action, I

do find that the credit union through the man-

agement and the board acted in good faith. You

certainly point out some instances where the

information and particular items and areas

might have been interpreted differently, or

might in fact have been an error, but that does

not distort the fact that they acted in good faith

in relying on that data that they had before

them, and made reasonable interpretations on

their own, right or wrong, but that they acted in

good faith.

Id. at 5a.

The final contention raised by Petitioner is yet

another attempt to reverse factual findings made against

her. In this argument, Ms. Thomas claims that the reasons

MECU advanced at trial as to why she was terminated do

not meet what even she admits is a “light burden of

production.” Petition, p. 16. To support this internally

contradictory assertion, Ms. Thomas claims that MECU’s

articulated reasons for the termination were her unhappi-

ness after being transferred and the fact that she cried a

lot. Id. Ms. Thomas has, again, engaged in selective

review of the record to mislead this Court.1¢

The evidence submitted by MECU, and obviously

credited by the District Court, was that the termination

came about because of additional damaging information

MECU learned about Ms. Thomas during the continuing

investigation following her demotion of not only her loan

files, but also the files of all other loan officers. See

‘6 The basis for this claim is testimony by the MECU Gen-

eral Manager, who was not a member of the Board who made

the decision, and he had no vote. R2-183-84.

30

Statement of the Case, supra. Ms. Thomas’s selective cita-

tion to the record should be rejected.

CONCLUSION

For the reasons set forth herein, this case is not a

proper one for certiorari. Ms. Thomas has presented no

circuit conflicts, no real Constitutional issues, and no real

issues of federal statutory construction. Instead, her art-

fully crafted due process deprivation argument and her

assertion that the Eleventh Circuit allowed the District

Court’s maverick Fed. R. Civ. Pro. 52(a) Findings and

Conclusions to go unreviewed are simply efforts to dis-

guise the fact that her Petition is really nothing more than

another attempt at an appeal. She seeks to have Rule

52(a) Findings and Conclusions overruled because she

disagrees with them. This Court's certiorari jurisdiction is

not reserved for that type of case. Accordingly, the instant

Petition should be DENIED.

Respectfully submitted,

James H. Cor III

(Counsel of Record)

Wa ttTER E. JOHNSON

Kivpatrick & Copy

Suite 2800

1100 Peachtree Street

Atlanta, Georgia 30309

(404) 815-6500

Counsel for Respondent

ee ee Ce ee ee