Petition for Writ of Certiorari — Brown v. Maintenance & Industrial Services, Inc.

Supreme Court

Cy) eo

y? 4201 O MAY 5 - i995

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

Gerald J. Brown, Sr.,

Petitioner

VS.

Maintenance & Industrial Services, Inc.;

Wes Nichols, Human Resources Manager;

Terry Coleman, Supervisor E. & I. Shop;

Fluor Daniel, Inc.; Michael Wright;

Fluor Corp. Inc.; V. L. Kontny, President, ;

Fluor Corporation, Inc.,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Gerald J. Brown, Sr.

913 - Lawrence Ave.

Nashville, Tn. 37204

(615)383-5206

Gerald J. Brown, Sr., ProSe

oe a A _ ——

i

QUESTIONS PRESENTED FOR REVIEW

1. The 1964 Civil Rights Acts (Amended)

and the United States Constitutional rights

prohibiting the respondents' disparate

standard treatment of the petitioner's

(Black Male) illegal termination of employ-

ment and forefeiture of $27,000.00 wages for

allegedly observed asleep(never proven) for

two(2) minutes at work-bench versus the

respondents’ standard treatment of a (White

Male's) employment not being terminated and

his only loss of $650.00 wages for sleeping

sixty(60) minutes in two(2) chairs (while

being observed by two(2) supervisors),;

2. The respondents' failure to employ

and promote a diverse mix of people due to

the respondents’ subliminal racial prejudice

practices and procedures covertly continued,

which is prohibited by the 1964 Civil Rights

Acts(Amended) and the United States Constitu-

tional rights of "equal treatment under the

laws" and the rights to "due process" in

ii

application of the laws?;

3. Whether an employee who is dismissed

in violation of the National Labor Relations

Acts is barred from obtaining any remedy if,

solely as a result of the unlawful dismissal

and the litigation challenging it, the employer

falsefies another basis for dismissal, a

question previously accepted for review by the

Court in Milligan-Jensen v. Michigan Technologi-

cal Univ., 975 F.2d 302 (6th Cir. 1992), cert.

granted, _— U.S.__, 125 L. Ed. 2d 686, cert.

dismissed, 125 L. Ed. 2d 773 (1993) and

Christine McKennon v. Nashville Banner Publish-

ing Co., (95-1543), United States Supreme Court

Case, Decision January 23, 1995., Writ of Cert.

iii

TABLE OF CONTENTS

Petition for Writ of Certiorari to the

United States Court of Appeals for the

Sixth Circuit

Page(s)

QURGTALGONS PREREWIED. 66 oie cck vvk cc cn i - ii

TABLE OF AUTHORITIES CITED/CASES....... iv

I 6 6 5 00k CC ao CS ke Vv

A WP GIS yo 6 5 kiko 6'o oo kcndcecn vi

DE NN 85 0s 6 ch book ok cake 2

" capaiac mest ihc ug PTE EE OPEC TT TCE OT Hore 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED............. 3-4

wamemnesn. OF THE CARE ig ca ccicnccrd @ 9

REASON FOR GRANTING THE WRIT....... 10 - 15

THIS CASE RAISES IMPORTANT ISSUE/

ISSUES REGARDING THE INTERPRETATION OF

THE ANTI-DISCRIMINATION IN EMPLOYMENT

STATUTES CONCERNING WHICH THERE IS A

CONFLICT BETWEEN THE APPEALS COURT

RPEUR MIA S 965 9 Ws 50% 8 OdR CAs bac cc ean 10

RRs RS aad oooh eed Co uG oSAceeuLe 15

APPENDIX ON DECISIONS BELOW

iv

TABLE OF AUTHORITIES/CASES

CASES: Page(s)

Kristufek v. Hussmen Foodservice Co.,

985 F.2d 364 (7th Cir. 1993).... 13

McKennon v. Nashville Banner

Publishing Co.,

U.S. Supreme Court #95-1543

MOGLEZOR GH S22 <1 995. cccccccces | ee 8 ee

Milligan-Jensen v. Michigan

Technological Univ.,

975 F.2d 302(6th Cir. 1992), cert. granted

U.S... , 125 L. Ed. 2d 686 cert.

dismissed, 125 L. Ed. 2d 773 (1993),

eT ee RET YT Ce EOC RE ee Tere Tee | Pee & Pie

National Labor Relations Board Case

FMCS No. 93-11153 ARBITRATION CASE BETWEEN:

Maintenance & Industrial Services, Inc.,

Vv.

United Rubber Workers Union #1055... 7 - 8

Price Waterhouse v. Hopkins,

nee Vs See COED cc awewh owcle ss ee

Summers v. State Farm Insurance

864 F.2d 700 (10th Cir. 1988)...... ll

Wallace v. Dunn Construction Co.

968 F.2d 1174 (llth Cir. 1992)..... 12

STATUTES : PAGE(S)

SO WineGs WORs SEPM. aks ct iver a «3

20 VsB.Gu BOG. TSG yi tc ceases 4 - 5

He dled Gs. Biss cen discs wns o3°9

eo Ws tne Oe a 6 oo 88s vn ewer :

3 Be pe a OS eee a. oO

“2 U.S.C. Sec. 1961, 1983.....6. 4-5

Tennessee Human Rights Act,

Tennessee Code Ann.,

SOC. S-dh°101, GEOG. —ccccceces 4-5

United States Constitution

Seventh Amendment.......... &, 8 3

Rights in Civil Cases

United States Constitution

Fourteenth Amendment

Gee MEE oe Ns Coe dee es 8 oe ee

vi

APPENDIX A - Order of The Court of Appeals

for the Sixth Circuit:

February 9, 1995

APPENDIX B - Order of The Court of Appeals

for the Sixth Circuit:

MANDATE for Costs Award

March 20, 1995

APPENDIX C - Denial of the Petition for

EnBanc Hearing

(Sixth Circuit Date-Stamp wrong)

APPENDIX D - Order of the District Court for

the Middle District of Tennessee

January 18,1994

APPENDIX E - AMENDMENT #7 to the

UNITED STATES CONSTITUTION

APPENDIX F - AMENDMENT#14 to the

UNITED STATES CONSTITUTION

APPENDIX G - National Labor Relations Board

Arbitration CASE No.

FMCS No. 93-11153:

Maintenance & Industrial ser.,inc.,

Vv.

United Rubber Workers Union #1055

Decision dated August 9, 1993

APPENDIX H - U.S.C. Title 42 - Sec. 1981,

Equal rights Under the Law

Appendix I - U.S.C. Title 42 - Sec. 1983

Civil Actions for Deprivation

of rights

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

Gerald J. Brown, Pek.

Petitioner

vs.

Maintenance & Industrial Services, Inc.;

Wes Nichols, Human Resources Manager;

Terry Coleman, Supervisor E. & I. Shop;

Fluor Daniel, Inc.; Michael Wright;

Fluor Corp. Inc.; V. L. Kontny, President,;

Fluor Corporation, Inc.,

Respondents

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Gerald J. Brown, Sr., respect-

fully prays that a writ of certiorari issue to

review the judgement and opinion of the United

States Court of Appeals for the Sixth Circuit

entered in this proceeding on February 09, 1995;

March 20, 1995; June 16, 1994.

ee

ae

OPINIONS BELOW

The opinion of the Court of Appeals is

reported as Gerald J. Brown, Sr., VS Mainte-

nance & Industrial Services, Inc., ETC. AL.,

Case #94-5353, Order dated February 9, 1995,

and appears in Appendix A to this petition.

The Court of Appeals Denial of the Petition

for Hearing EnBanc appears in Appendix C to

this petition. The Order of the District

Court for the Middle District of Tennessee

appears in Appendix D to this petition.

JURISDICTION

The decision of the Court of Appeals

for the Sixth Circuit was entered on February

09, 1995,; A petition for Hearing EnBanc was

filed on March 02, 1995, and denied shortly

thereafter. Jurisdiction of this Court is

invoked under 28 U.S.C.,Sect. 1254(1).

.

CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED

This case involves the Age Discrimination

in Employment Act, 29 U.S.C., Sec. 621, et.,

which provides in pertinent part as follows:

Sec. 623. Prohibition of Age Discrimina-

tion

(a) Employer practices: It shall be un-

lawful for an employer; (1). To fail to re-

fuse to hire or discharge any individual or

otherwise discriminate against any individual

with respect to his compensation, terms,

conditions, or privileges of employment,

because of such individuals age;

(2) to limit, segregate, or classify his

employees in any way which would deprive or

tend to deprive any individual of employment

opportunities or otherwise adversely affect

his status as an employee, because of such

individual's age; or

(3) to reduce the wage rate of any

employee or order to comply with this (Act).

4.

This case involves the 1964 Civil Rights

Acts(Amemded); Title 28,U.S.C., Sec. 1343(4);

Title 42,U.S.C., Sec. 2000e-5(f£); Title 42,

a hae ee

U.S.C., Chpt.21, Sec. 1981 and 1983 - The

1866 Civil Rights Act (May 31, 1879, Chpt. 114,

Sec. 16.16 Stat. 144), deprivation of rights;

Tenn. Code Ann. Sec. 50 - 3 -101l,et; Tenn.

Code Anna. Sec.4 - 31-101, et seq.

This case involves the United States

I TEN ERT Mee i” we Tae Neale? be 7

Constitution Amendments #7 - Rights in Civil

Cases and Amendent # 14 - Civil Rights

(Appendix E and F to this petition).

STATEMENT OF THE CASE

This action was filed by the petitioner,

Gerald J. Brown, Sr., ProSe, in the United

States District Court for the Middle District

of Tennessee on November 19, 1993, with "jury

demand", “jury trial requested" stipulations

plainly typed on the original complaint filed

at time of filing.

The complaint alleges that Gerald J.

Brown, Sr., was discharged from his employment

J

because of his race, age, and religion, in

violation of the 1964 Civil Rights Acts

(Amended), Labor Management Relations Act,

29 U.S.C. Sect. 143, et. seq., The Age

Discrimination in Employment Act, 29 U.S.C.,

Sec. 621, 623; Tennessee Human Rights Act;

Tenn. Code Annt., Sec. 4-21-101, et.seq.;

Civil Rights Act, 42 U.S.C. 1983 and 1981,

A on aaETD ci RI MA A EY 22.

May 31, 1870, Chpt. 114, Sec. 16.16, Stat.

144., et.seq.

The defendants-appellees, Maintenance &

Industrial Services, Inc., Respondent here,

filed motion to dismiss in a summary motion.

a, be LI RAIL TN is EMI. 4 a RSE ato ame! 04

The District Court granted the motion,

ignoring the petitioner's demand for a jury

trial because of all of the different facets

of the case. Petitioner was precluded from

es Ele aa Pb I SR i Pat B+ i Rig ete ut

any recovery. The District Court dismissed

the case with prejudice. The Court rejected

the petition of the petitioner's arguments

ite Seley AAS be Nir nde Cee RE) te

that he should have a jury trial to show

and prove that he was not asleep at work-

EL

Pe RIA ATI REA AID

LD EDS ARLE PELE GOP WA NR Cag CE LOT A GE, gS CGE IE ae

Oe SPS A A Ee ie

Se ae a Pa

6.

bench or did no type of misconduct as to

justify his employment termination.

The defendants-appellees(respondents)

Terry Coleman and Wes Nichols conspired to

find an excuse to terminate the petitioner's

employment after the petitioner had objected

to a illegal(mass-wholesale transfer) shift-

ing of many employees about without regards

to the employees seniority. The petitioner

filed a union grievance on Monday , November

16, 1992, verbally with supervisor Terry

Coleman. Terry Coleman failed to follow the

correct procedure and write-up the first step.

The petitioner then filed a written grievance

form with a union steward. Differences arose

over the filing and timing of the forms,

supervisor Coleman's timing and dating of

the forms.

On Friday, November 20, 1992, supervisor

Terry Coleman went to Human Resources Manager

Wes Nichols and alleged that he(Coleman) had

observed the petitioner(Brown) asleep at

8 2416 LO Neiaa iip ey OP a

Bias Ra Salas toed Sy)

7%

petitioner's work-bench for two(2) minutes

and that as the electronic/instrumentation

shop supervisor he(Coleman) wanted Wes

Nichols to terminate the petitioner's employ-

ment immediately. Wes Nichols told the

petitioner(Brown) that he was terminated

immediately as an employee and the petitioner

was not afforded a hearing or rebuttal to

respondent (Coleman's) charge allegeding

being asleep, in an area of work space that

was in violation of OSHA Clean-Air/Safe Air

work space. Tennessee OSHA issued a citation

against the respondents at a later date for

failing to provide work-benches and areas

with adequate fume and smoke removal apparatus

in the electronic/instrumentation shop at

work-benches and having an improper heating-

ventilation system for the whole area.

After a nine-month(9) delay of waiting

on the arbitration process(Appendix G to this

petition, Arbitration Decision Case No. FMCS

93-11153, August 9, 1993), the petitioner was

So eee me tame

aah Eli ie wae ll at atone Sea ll

EDD EE 6 read

8.

re-instated to his former position, referred

to as a "possum" by the arbitrator, had not

been proven to be asleep, but ordered to

forfeit allmost $27,000.00 in lost wages by

the arbitrator.

Petitioner's lawsuit/civil action in

District Court was to try to reclaim loss

wages, etc. Case never got a day in Court.

On Appeal, the Sixth Circuit affirmed the

District Court, rejecting arguments that it

is not legally allright for the respondents’

to violate petitioner's civil rights of due

process, (2) petitioner's rights under the

Collective Bargaining Agreement were ignored;

(3) that the arbitrator made "racist" comments

in his decision and may be "linked" TO

(through Name ties/familiar same surnames as

defendant-appellee(respondents') Human

Resources Manager Joel Odom in Greenville,

South Carolina home office for respondents'

home office; respondents made special effort

to get the arbitrator James J. Odom, Jr.,

SS Re POR INTEL

a ee

9.

during the selection process; the arbitrator

erred or purposely denied the petitioner's

back pay, whereas in two(2) other arbitrated

cases the grievants were awarded their full

back-wages; there was insufficient evidence

for the District Court's dismissal Order;

petitioner could not get the NLRB to censor

or review the case or the arbitrator because

there was not an appointed-yet Secretary of

Labor by the President of the United States

in Washington, D.C.; statistical evidence

submitted by the petitioner was ignored, the

evidence plainly showed that respondent

Maintenance & Industrial Services, Inc.

treated the minority employees in a discrimi-

natory manner with regards to the hiring

practices, policies and promotions because

their organization was devoid of any minority

office, clerical, supervisory or management

persons or personnel .

Stina ts Veith wks eae “oak be

este ihsla tet aicretous

10.

REASONS FOR GRANTING THE WRIT

This case raises an important issue

regarding the interpretation of the Anti-

discrimination in Employment Statutes con-

cerning which there is a conflict between the

Appeals Courts Circuits.

This case presents precisely the same

issue on which this Court granted certiorari

in the case of Milligan-Jensen v. Michigan

Technological Univ., 975 F.2d 302 (6th Cir.

1992), cert. granted, U.S. ,

125 L. Ed. 2d 686, cert. dismissed, 125 L. Ed.

2d 773(1993). Certiorari was dismissed in the

case solely because the parties reached a

settlement.

The issue presented in Milligan-Jensen v.

Michigan Technological Univ. and the case

Christine McKennon v. Nashville Banner Pub-

lishing Co., U.S. Supreme Court Case No.

95-1543, January 23, 1995, (date Of decision).

The issues presented in Milligan-Jensen v.

Michigan Technological Univ., and McKennon v.

- aematain " ed nearest ee a ah ae amen vanes

13

Nashville Banner Publishing Co. remains a

recurrent and vitally important question

about which the Courts Circuits are irrecon-

cilably in conflict.

The “after-acquired evidence" doctrine

deals with evidence that the employer discovers

after the challenged employment decision was

made, and which the employer alleges would

(if known) provide a non-discriminatory basis

for adverse employment action. The evidence is

usually, as in the McKennon case and this case,

discovered only as a direct result of the filing

of a claim of employment discrimination.

The Sixth and Tenth Circuits have held

that after-acquired evidence is a basis for

absolving an employer of any liability for

discrimination and discriminatory practices.

Summers v. State Farm, 864 F.2d 700(10th Cir.

1988); Milligan-Jensen v. Michigan Technologi-

cal Univ., (975 F.2d at 304-05., McKennon and

the present case applies the Sixth Circuit's

“after-acquired evidence" doctrine to an action

12.

brought under the ADEA.

The Eleventh Circuit, on the other hand,

has held that an employer is liable under the

same circumstances. Wallace v. Dunn Construc-

tion Co., 968 F.2d 1174(1llth Cir. 1992).

Wallace expressly rejected the reasoning of

the Tenth Circuit and held that an employer

may escape a finding of liability only by

showing that it had relied on a non-discrimi-

natory reason at the time of employment

So ne,

decision, citing Price Waterhouse v. Hopkins,

490 U.S. 228(1989)., 968 F.2d at 1180-81.

Thus "after acquired evidence" cannot defeat

liability, but may limit the relief available

in that reinstatement may be precluded and

backpay available only to the date that the

employer demonstrates that the new evidence

would have been discovered in the abscence of

the litigation.

The Seventh Circuit has taken a third and

intermediate position on the issue. Thus, newly

discovered evidence that shows that the

anne ates emt Binge a nt pe ers = .

. ak .

eer eae i i ak ah i ae aa ae Sa Aiea :

; ee

employee had made misrepresentations on his

or her employment application will not defeat

liability unless the misrepresentation is

related to a critical job element. Further,

in the Seventh Circuit backpay is cut off

as of the date after acquired evidence was

in fact discovered. Kristufek v. Hussmenn

Food Service Company, 985 F.2d 364, 369-70

(7th Cir. 1993).

As the United States and the Equal

Employment Opportunity Commission pointed

out in their brief as amici curiae in sup-

port of the grant of certiorari in Milligan-

Jensen, there has been a proliferation of

cases "in which employers offer "after-

acquired evidence" to defend their discrimi-

natory actions" and that the defense has

“broadly destructive impact... on non-

discrimination goals". Brief for the United

States and the Equal Employment Opportunity

Commission as Amici Curiae in No. 92-1214,

p.ll, citing, inter alia, the McKennon case

GOEL, Sb cee Stag ALA

et

saiaaei aad

Pere en

mR ee eee

14.

and the present case as one of "Many cases in

which the "after acquired evidence" defense

has been raised.

The petitioner urges that the approach

of the Eleventh Circuit is correct and

should be adopted by this Court. "After-

acquired evidence" cannot absolve an employer

of discriminatory action, allthough it may

affect the remedy to be granted the employee.

This rule would be consistent with the

decision of this Court in Price Waterhouse v.

Hopkins, supra, and with section 107 of the

Civil Rights Act of 1991, which provides

that if a reason for an employment decision

violates Title VII, then there is liability

under the statute; only the remedy is

affected if there is another, legal reason

for the action. As the United States has

pointed out, the "after acquired evidence"

doctrine of the Sixth and Tenth Circuits,

as applied in this case, is an unwarranted

obstruction to proper and effective

+P

enforcement of the non-discrimination re-

quirements of civil rights statutes, and

should be rejected.

CONCLUSION

For the foregoing reasons, the petition

for a writ of certiorari should be granted

and the decision of the Court of Appeals for

the Sixth Circuit reversed.

PR i WE NER LS, ARRON iat RAR ad WE Tera a nel a si eS A Pte all

ee ae

eM,

Respectfully submitted,

Loratd brown, be, th hehe,

Gerald J. Brown, Sr.,ProSe

Gerald J. Brown, Sr.

913 - Lawrence Ave.

Nashville, Tn. 37204

(615) 383-5206

LRN Jan MINES Wada irnemnend eA RS int ame Teen Aiello st tee

ea Beriten dun’

et Rares rains —

No.94-5353

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Gerald J. Brown,Sr.,

Plaintiff-Appellant

Vv.

ORDER

MAINTENANCE & INDUSTRIAL

SERVICES, INC.; WES NICHOLS, FILED

Human Resources Manager;

TERRY COLEMAN,Supervisor E & I Feb.09,1995

Shop; FLUOR DANIEL, INC.;

MICHAEL WRIGHT;FLUOR CORP.,

wt << Bia KONTNY, President,

Fluor Corporation, Inc.,

Defendants-Appellees

NNN NN Ne ee le tee tes aes a oa as

Before:MERRITT,Chief Judge;

BROWN and BATCHELDER, Circuit Judges

Gerald J. Brown, Sr., pro se, appeals

a district court order granting the defend-

ants' motion to dismiss for failure to state

a claim under Fed. R. Civ. T. 12(b)(6). The

case has been referred to a panel of the

court pursuant to Rule 9(a), Rules of the

Sixth Circuit. Upon examination, this

panel unanimously agrees that oral argu-

1 Appendix A

ment is not needed. Fed. R.App.P.34(a).

Brown sued his employer, Maintenance

& Industrial Services, Inc. (MISI), and

several management personnel within that

company, alleging that he was a victim of

discrimination based on race, age and reli-

gion, when he was terminated on November 20,

1992. On that day, Brown's supervisor and

the MISI human resources manager observed

Brown asleep at his work place and immed-

iately terminated Brown from employment.

Brown filed a grievance, and an arbitrator

eventually reinstated Brown without backpay.

Brown alleged that the defendants violated

his rights under the Labor Management Re-

lations Act (LMRA), 29 U.S.C. §!S#,ET SEQ.,

and his rights under numerous other federal

statutes. Brown also alleged that he is

entitled to damages under 42 U.S.C.§ 1983,

and under Title VII of the Civil Rights

Act, 42 U.S.C. §2000e,et. seq.

Upon consideration of the defendants’

2 Appendix A

motion to dismiss, the district court deter-

mined that Brown failed to establish a prima

facie case of discriminatory termination

under Title VII and failed to show causes

of action under the Fourth and Fourteenth

Amendents; under 42 U.S.C. §§ 1983 and 1988;

under 45 U.S.C. §§ 36,43 and 54; or under

Tenn. Code Ann. § 50-3-101,et seq. On appeal,

Brown raises the following issues: (1) the

district court's decision, in effect, held

that it is "legally allright for defendants

Coleman and Nichols to violate his civil

rights of due process"; (2) his rights

under the Collective Bargaining Agreement

were"ignored";(3) the arbitrator's deci-

Sion is evidence that the defendants' act

constituted a "wrongful and illegal termi-

nation"; (4) the arbitrator made "racist"

comments in his decision; (5) the arbi-

trator erred by denying him back pay; (6)

there was insufficient evidence to support

the district court's findings; (7)Brown

3 Appendix A

SOR A ce he At ted ee ge —eppagN

exhausted his administrative remedies; (8)

Brown was wrongly denied a jury trial; and

(9) statistical evidence Brown submitted

shows that MISI treats employees ir a dis-

criminatory manner with regard to hiring

practices and policies.

Whether the district court correctly

dismissed the suit pursuant to Fed.R. Civ.

P. 12(b)(6) is a question of law subject to

de novo review. Taxpayers United for Assess-

ment Cuts v. Austin, 994 F.2d 291,296(6th

Cir. 1993). The court must construe the

complaint in a light most favorable to the

plaintiff, accept all the factual allegat-

ions as true, and determine whether the

plaintiff undoubtely can prove no set facts

in support of his claims that would entitle

him to relief. Allard v. Weitzman(In re

DeLorean Motor Co.) ,991 F.2d1236, 1239-

40 (6th Cir. 1993).

The district court properly held that

Brown failed to establish a prima facie case

4 Appendix A

Cisne th lateutdi 2 heatigeeseeeeeeeeeetoee

2 NLS Ra EES bs

Re Sates g

of discrimination. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802 (1973). Moreover,

MISI produced sufficient evidence to show

that the company took action against Brown

for a legitimate, nondiscriminatory reason,

rebutting any presumption of discrimination.

Texas Dept of Community Affairs v. Burdine,

450 U.S. 248, 254 (1981). Brown cannot

establish a prima facie case by his statis-

tical evidence allegedly showing,without

more, racial imbalance in one segment of

an employer's work force. Wards Cove Packing

Co. v. Atonio, 490 U.S. 642, 653 (1989).

Brown's allegations of conspiracy and his

general attack on the company's policies

in regard to minorities are mere con-

clusory allegations not sufficient to

withstand the defendants' motion to dis-

miss. See McDonald v. Union Camp Corp,

898 F.2d 1155,1162 (6th Cir. 1990). The

plaintiff's claims must also fail under 42

U.S.C. §1983, because none of the defend-

5 Appendix A

SCP DS SER Ore nett tale _ Dit

ants were acting “under color of state law".

Rendell-Baker v. Kohn, 457 U:S. 830, 838

(1983); Simescu v. Emmet County Dept of

Social Servs., 942 F.2d 372,374 (6th Cir.

1991).

The district court applied the proper

standard to dismiss the claim under Fed. R.

Civ. P.12(b)(6). Further, no jury trial is

necessary when the matter may be dismissed

on the pleadings. The other claims that

Brown initially presented in district

court have been abandoned. Thus, this court

need not address those issues on appeal.

Boyd v. Ford Motor Co., 948 F.2d 283,284

(6th Cir. 1991), cert. denied, 112 S. Ct.

1481 (1992).

In their brief, the defendants argue

that this appeal is frivolous, and the

defendants request attorneys' fees and costs.

However, recently amended Fed. R. App.P. 38

requires that a party alleging that an appeal

is frivolous must file a separate motion for

6 Appendix A

attorneys’ fees and costs. Therefore, the

request is denied.

Accordingly, the district court's order

dismissing this claim is affirmed. Rule 9(b)

(3), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

Ns / Leonard Green

Clerk

7 Appendix A

Case No. 94-5353

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCULT

ORDER

GERALD J. BROWN, SR.

Plaintiff-Appellant

V.

MAINTENANCE & INDUSTRIAL SERVICES, INC

Bit. AL.,

Defendants-Appellees

"9

Before: MERRITT,Chief Judge;

BROWN and BATCHELDER,Circuit Judges

Upon consideration of the appellee's

motion for damages and costs from the

appellant,

It is ORDERED that the motion for double

costs be and it hereby is GRANTED. It is

further ORDERED that the motion for

attorney's fees be and it hereby is DENIED.

ENTERED BY ORDER OF THE COURT

"s/ Leonard Green, Clerk

FILED MAR. 20, 1995

1 Appendix B

No. 94-5353

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Gerald J. Brown,Sr.

Plaintiff-Appellant

Vv Filed:

March 20,1995

MAINTENANCE & INDUSTRIAL

SERVICES, INC.; WES NICHOLS,

Human Resources Manager;

TERRY COLEMAN,Supervisor E & I

Shop;FLUOR DANIEL, INC.;

MICHAEL WRIGHT;FLUOR CORP.,

INC.; V. L. KONTNY, President,

Fluor Corporation, anc.,

Defendants-Appellees

MANDATE

Pursuant to the court's disposition that

was filed 2/9/95 the mandate for this case

hereby issues today.

COSTS: $125.00

Paeeee TOG...

es! ene $

ESS 9s os @ A True Copy

Attest:

Patricia Elder

Deputy Clerk

2 Appendix B

No. 94-5353

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Gerald J. Brown, Sr., ) Filed

Plainciff-Appellant, )

) June 16, 1994

V.

SERVICES, INC.,ET AL.,

Defendants-Appellees

)

)

MAINTENANCE & INDUSTRIAL ORDER

;

)

The court having received a petition for

hearing en banc, and the petition having been

circulated to all active judges of this court,

and no judge of this court having favored the

suggestion,

It is ORDERED that the petition be and

hereby is denied.

ENTERED BY ORDER OF THE COURT

"s/ Leonard Green

Leonard Green, Clerk

Appendix C

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

GERALD J. BROWN, SR.

No. 3:93-0959

VS.

MAINTENANCE & INDUSTRIAL

SERVICES, INC., et al.

i a a a

ORDER

Pending before the Court is Defendants

Maintenance & Industrial Services, Inc., et

al. {"Defendants"]'s Motion To Dismiss (Doc.

No. 4), to which Plaintiff has filed a Re-

sponse (Doc. No. 5) on December 27,1993.

Consistent with the contemporaneous ly-

filed Memorandum, the Court hereby GRANTS

Defendats' Motion To Dismiss. Accordingly,

the Court ORDERS that this action be

DISMISSED with prejudice.

Entered this the 18th day of January,

1994, "s/_ John T. Nixon "

John T. Nixon, Chief Judge

UNITED STATES DISTRICT COURT

This document was entered on the docket

in compliance with Rule 58 and /or Rule 79(a)

FRCP, ON 1/25/94 by DEB

Appendix D

AMENDMENT 7 TO THE UNITED STATES CONSTITUTION

RIGHTS IN CIVIL CASES

In suits at common law, where the value

in controversy shall exceed twenty dollars,

the right of trial by jury shall be preserved,

and no fact tried by a jury, shall be other-

wise re-examined in any court of the United

States, than according to the rules of

common law.

Appendix E

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AMENDMENT 14 TO THE UNITED STATES CONSTITUTION

CIVIL RIGHTS

Section 1. All persons born or naturalized

in the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the state wherein

they reside. No state shall make or enforce

any law which shall abridge the privileges

or immunities of citizens of the United

States; nor shall any state deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

Appendix F

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IN THE MATTER OF THE ARBITRATION

BETWEEN

MAINTENANCE AND INDUSTRIAL SERVICES,INC.

( Company)

and

UNITED RUBBER, CORK, LINOLEUM & PLASTIC

WORKERS OF AMERICA,AFL-CIO,CLC,

LOCAL 1055

(UNION)

FMCS NO. 93-11153

The hearing was held on June 25,1993, at

the Holiday Inn, I-24 East, 350 Harding

Place, Nashville, Tennessee, before

James J. Odom, Jr., Arbitrator.

APPEARANCES

FOR THE COMPANY: Richard R. Parker,Esq.

FOR THE UNION:

1 Appendix G

Grace N. Burdette, Esq.

Ogletree, Deakins, Nash,

Smoak & Stewart

St. Cloud Corner

500 Church St., Fifth Fl.

Nashville, Tn. 37219

Mr. Tommy R. Powell

President

URW, Local 1055

Post Office Box 86

LaVergne, Tn. 37086

PERTINENT CONTRACT PROVISIONS

ARTICLE III

NO DISCRIMINATION

There shall be no discrimination on the

basis of race, color, religion, sex, national

origin, age, handicap, status as a veteran,

membership or non-membership in the Union,

or other legally protected activity or

status.

ARTICLE V

MAMAGEMENT RIGHTS

SECTION 1. The company retains all rights

and authority not expressly excluded or

limited by this Agreement including, but

not limited to, the right to... adopt and

enforce reasonable work rules, safety rules

and security requirements; and to discipline,

suspend or discharge employees for cause.

ARTICLE XXI

ARBITRATION

SECTION 4. The arbitrator shall issue a

decision within thirty(30) days of the

2 Appendix G

hearing which shall be final and binding on

both parties provided, however, that the

arbitrator shall not have the authority to

alter or amend the provisions of the Agree-

ment in any way.

ARTICLE XXV

UNDERSTANDING

This Agreement represents the complete

understanding of the parties and embodies

the entire Agreement between the Company

and the Union.

PERTINENT PROVISIONS OF THE JOB RULES AND

CONDUCT

Employees are expected to conduct them-

selves in a courteous and businesslike man-

ner at all times. Rules of conduct are nec-

essary for efficient and safe operations.

Work rules will be fairly and consistently

enforced. If you have questions about any

of these rules, you should discuss them

with your immediate supervisor to ensure

your complete understanding. These work

3 Appendix G

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rules are not intended to be all encompassing,

and do not address every conduct problem

which may occur or may be cause for dis-

cipline; hiwaver they do convey to employees

the type of conduct which will be tolerated.

Work rules may be altered and /or changed

from time to time as deemed appropriate.

The misuse, abuse, or nonadherence to any

of these rules and other generally accepted

rules of conduct will result in disciplinary

action which may include termination.

It is the policy of this company to be

fair and consistent in the treatment of all

employees. We expect each employee to respect

the rights of co-workers, Bridgestone employees,

contractor personnel, visitors and the property

of others.

BACKGROUND AND POSITIONS OF THE PARTIES

The Company is the on-site maintenance

contractor for Bridgestone(USA), Inc. at

its tire production facility in LaVergne,

Tennessee, with the responsibility of

4 Appendix G

keeping the Bridgestone equipment serviced,

repaired and running smoothly. It employs

approximately 200 hourly personnel. At the

time of his termination for sleeping on the

job, grievant Gerald J. Brown, a maintenance

mechanic, was assigned to a job calibrating

time clocks.

Company Position. The grievant was

properly terminated for sleeping on the

job. The prohibition against sleeping,

universal in industry, is a rule that is

especially necessary for workers in the

Bridgestone plant because of risks of ex-

posure to electrical shock. Discharge as a

penalty is also nearly universal, in recog-

nition of the seriousness of the offense.

There is no question that the grievant was

sleeping at his work bench. He was obser-

ved asleep not only by a supervisor, but

also by a bargaining unit member, the work

group's lead man. The two men observed

Brown with his head down and his hands in

5 Appendix G

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his lap for a period of several minutes.

"Yeah, he's sleeping", the lead man con-

firmed when he was called to Brown's work

bench by the supervisor, and Brown continued

to sleep until awakened by another employee

coming in off the floor.

There is a strict policy against sleep-

ing, a policy that has been enforced con-

Sistently and punished uniformly each time

by termination of the offender. The Company

has no provision for a suspension or any

lesser penalty.

Union Position. The Company's action is

subject to a number of defenses. First, the

supervisor was mistaken in his determination

that the grievant had fallen asleep at his

work bench. Brown insists that due to eye-

strain and fatigue from working on a time

clock with many small pieces, and from

irritation to his eyes due to the spray

he was using with his work, he had pushed

his chair back from his work bench to clear

6 Appendix G

his head and rest his eyes, but that he was

not sleeeping.

Secondly, even if the grievant did lose

consciousness briefly, the company overre-

acted. In that department, it was not unusual

for someone to stop work for a few minutes to

rest, even close his eyes, without being dis-

ciplined. All that might be anticipated from

a supervisor would be a tap on the back and

a mild admonishment to get back to work.

But even if Brown had gone fully to sleep, a

discharge as a penalty constituted widely

disparate treatment. There has been only one

sleeping incident involving discipline, and

that employee, Mickey Litchford, was given

a suspension.

Whatever position is taken regarding the

extent to which Brown was asleep, the severity

of the punishment given him appears to be

evidence to support Brown's claim that the

supervisor came down hard on him because of

personal dislike and because~he had challenged

7 Appendix G

a number of Company actions by filing griev-

ances.

ISSUE

Whether the grievant was discharged for

cause under the terms of the Collective

Bargaining Agreement.

DISCUSSION

On March 14, 1993, grievant Gerald J.

Brown was discharged for sleeping on the

job. The company contend's that Terry Cole-

man, the grievant's supervisor, observed him

asleep at his work bench, and that Coleman's

conclusion was confirmed by lead man David

Keever. The grievant nevertheless maintains

that he was not asleep, that he was "just

resting his eyes."

Was Brown Asleep At His Work Bench?

Terry Coleman, the Electronic and Instrument

("ENI")Superintendent, testified that he

walked into the shop about 3:30 P.M. and

saw the grievant sleeping in his chair in

front of his bench. Coleman said that he

8 Appendix G

walked within five feet of the grievant,

stood there and saw his head bob three or

four times as if asleep. Having determined

for himself that Brown was sleeping, Cole-

man felt that he needed a witness to cor-

roborate his observations; so, he motioned

David Keever to come over. Coleman said

that the two of them got within three feet

of Brown, could see that his eyes were

closed and his hands were in his lap, empty.

According to Coleman, Keever shrugged his

shoulders as if to say, "yeah, he's sleep-

ing,"

Coleman testified that Brown awoke when

Arnold Wright entered the room and banged

some equipment on the door frame, and that

when asked if he had "had a good sleep",

Brown denied that he had been asleep.

In its effort to substantiate its case

against Brown, the Company obtained a

statement from Keever shortly after the

incident. When the statement was not as

9 Appendix G

and then returned to his work station.

ass Soe pne Oy ETN ADS :

detailed as the Company would have liked,

Keever was asked to provide a second

statement. Neither corroborated Coleman's

version precisely. At the hearing,Keever,

a naturally reluctant witness, testified

that he couldn't tell whether Brown's eyes

closed, or whether he "was out of it",

because he was wearing a ball cap and

glasses. “He could have been daydreaming".

Keever conceded, though, that he got within

two or three feet of Brown and Brown did

not react. He also did not contest that

the grievant remained more or less in the

same position for the several minutes that

he was being observed by both him and

Coleman.

Brown testified that he definitely had

not been asleep, that he could not recall

all of the details specifically, but that

he had been working with a time clock with

many small parts. He speculated that his

eyes had been tired, and that he had just

10 Appendix G

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been resting them.

Not even Brown disputes that he was

slumped in his chair virtually motionless

for a period of three to five minutes, not

withstanding that two people came to within

three f +t of him and stood there looking

at then f Brown had not been asleep, I

can see reason why he would not have

acknowledged the approach of either, or

both of these men. If he was playing

"possum", perhaps the performance that he

gave was too good. But the conclusion that

Brown was asleep does not result in an

automatic dismissal of the grievance. The

Company's action in response to the viola-

tion of a work rule is subject to the

requirement of the parties' collective

Bargaining Unit that discharge must be for

cause. I take this to mean just cause.

Was Discharge A Permissible Penalty

Under The Collective Bargaining Agreement?

The Union argues that the discharge was an

ll Appendix G

A EC RO eR

EVEL Moe ay

improper punishment, first because the

severity is greatly disproportionate to

the misconduct. Second, it points out,

even for the generally serious category

of sleeping, the penalty was not consis-

tent with the punishment meted out

previously.

Is Sleeping A Capital Offense? The

Company contends that sleeping on the job

is universally considered to be among the

most serious breaches of plant rules. Going

from the general to the specific, it points

out that because of the opportunity for

coming in contact with live electricity,

going to sleep while working in the

Bridgestone Plant constitutes a serious

safety violation also. I agree with the

Company's contention that sleeping is

generally considered to be among the most

serious breaches of the rules of industrial

conduct. There is a seemingly unlimited

number of arbitration decisions which

12 Appendix G

8 RB, 6k nee tre ter aad ede gedine arnt

uphold discharges for first-time sleeping

offenses. (Some arbitrators reason that

sleeping is much the same as stealing from

the Employer).

A review of the reported decisions

where discharge has been the penalty for

sleeping reveals a common thread running

through many of them. The link is the

intentionality of the sleeping employee--

his purposefulness in carrying out the

act. Often, he has made plans and hidden

himself away in a closet,furnace room

or little-travelled area of the plant.

However, the grievant was in an open room,

fully subject to view and discovery(as the

facts bear out). There is no suggestion

that Brown's going to sleep was contemplated

in advance, planned, or anything other than

spontaneous.

Although it may be possible to differen-

tiate among various acts of sleeping on the

job, and possible too to conclude under the

13 Appendix G

facts that the grievant was substantially

less culpable than an employee who, for

example, was found sleeping in the cab of

an unused crane, determining that Brown's

act could have been more egregious does

not mean necessarily that his discharge

was without cause. The Company has retained

the right under its Management Rights clause,

to make reasonable rules and to provide

reasonable penalties for the enforcement

of those rules. The Company insists that

under the Contract, it is permitted to

establish, and has established, a rule that

all incidents of sleeping, however short,

and whether committed in the open, or in

secret, planned, or spontaneous, are pro-

hibited and that all violators will be

discharged upon their first offense. Such

a rule, properly published and consistently

applied, would appear to meet the require-

ments of the Collective Bargaining Agree-

ment.

14 Appendix G

The final inquiry is to determine

whether these standards were met.

If The Rule Which The Company Set Was

That All Employees Found Asleep Will Be

Discharged, Was The Notice Of The Rule And

Its Accompanying Punishment Adequate?

On November 20, 1992, what was the

understanding between the Company and the

Bargaining Unit regarding what constituted

the prohibited act of sleeping on the job?

Did an employee have to be prone with a

pillow under his head, or was a moment's

loss of consciousness sufficient to put his

job at risk? There is no written rule.

Couple this omission with the fact that in

the relatively young Management-Union

relationship, there has been but one ex-

ample of discipline for sleeping. .

So, there is practically no help to define

the boundaries of the rule against sleeping.

{1 And this example(the Litchford incident)

is obscured by a settlement agreement. ]

15 Appendix G

Nevertheless, both parties argue that the

Mickey Litchford incident supports their

respective contentions. Litchford was dis-

charged after two supervisors reported that

they had observed him sleeping. Thereafter,

a Union official negotiated his return

(according to the Union, by convincing

management that the evidence against

Lichford was not sufficient to support a

finding of sleeping and a discharge).

Because Litchford was reinstated without

backpay, the Union's interpretation is that

Litchford was given a suspension. The Com-

pany insists that it discharged Litchford

for sleeping and that bringing him back

to work without backpay was a compromise,

but not a suspension. I agree. However

the details of Litchford's alleged sleeping

were not disclosed at the hearing. There-

fore, the incident is not useful to compare

with Brown.

I do not challenge the Company's state-

16 Appendix G

ae

ment that it has not used suspension as a

method of disciplining its employees. But

the issue is not whether the Company

considered suspension an option. Rather,

it is whether Brown had notice or reason

to believe that he would be terminated if

he fell asleep in his chair at his work

bench. If he and other employees did have

reason to believe this, then the all-

inclusive rule is due to be enforced.

However, if it was not reasonable for them

to conclude that they would be terminated

the first time that they dropped off to

sleep at their work benches, the rule

lacked adequate publication, or consistent

enforcement. I find credence in the testi-

mony of the Union that Management had an

occasion given no more than a mild verbal

admonishment to employees in this depart-

ment who for a brief period were observed

to be sitting at their work tables with

their eyes closed, or not working. To the

17 Appendix G

extent these incidents have occurred, em-

ployees are given cause to believe that

they will not be terminated for similar

behavior. Managers must be allowed dis-

cretion in enforcing rules and applying

penalties, but when the discretion en-

compasses virtually ignoring the offense“,

on one end, and terminating the employee,

on the other, the required consistency of

enforcement is absent. With no express

admonition that all incidents of sleep-

ing will be dealt with by discharge, and

with incidents of employees "resting" or

not working for brief periods at their

work stations being treated lightly, I

find that the severity of the punishment

for dropping off to sleep at the work

bench could not have been anticipated by

any employee in the department. This lack

of notice of the harsh consequences invali-

ta mild verbal reproof that does not even

get into the employee's personnel record. ]

18 Appendix G

dates the discharge.Nevertheless, the

grievant was not blameless and is due a

reasonable penalty. He will forfeit back

pay.

Notwithstanding this finding that the

discharge was without sufficient cause,

I find no evidence whatsoever that the

punishment was rendered because of

discrimination--either racial or Union.

The record contains such charges made by

the grievant, but after all of the testi-

mony, the charges are unproven, bare

allegations.

AWARD

The discharge of Gerald J. Brown is

reversed. He is to be returned to work

as soon as practicable, without back pay.

"s/James J. Odom,Jr. ".

James J. Odom,Jr.,Arbitrator

Birmingham, Alabama

August 9, 1993

19 Appendix G

UNITED STATES CODE TITLE 42

Section 1981. EQUAL RIGHTS UNDER THE LAW

All persons within the jurisdiction of

the United States shall have the same right

in every State and Territory to make and

enforce contracts, to sue, be parties,

give evidence, and to the full and equal

benefit of all laws and proceedings for the

security of persons and property as is en-

joyed by white citizens, and shall be sub-

ject to like punishment, pains, penalties,

taxes, licenses, and exactions of every

kind, and to no other.

APPENDIX H

UNITED STATES CODE TITLE 42

SECTION 1983. CIVIL ACTION FOR DEPRIVATION

OF RIGHTS

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the

District of Columbia, subjects, or causes

to be subjected, any citizen of the United

States or other person within the jurisdic-

tion thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to

the party injured in an action at law, suit

in equity, or other proper proceding for

redress.

APPENDIX I