Opposition Brief — Richardson v. Albertson's, Inc.

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No. 96-1160

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

ROBERT RICHARDSON,

do , . ,

Ps {ition Fa

ALBERTSON’S, INC.,

;

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

JAMES FE. HAUTZINGER

(Counsel of Record)

HEATHER FOX VICKLES

SHERMAN & HOWARD L.L.C.

633 Seventeenth Street

Suite 3000

Denver, Colorado 80202

(303) 297-2900

Attorneys for Respondent,

Albertson’s, Inc.

(202) 328 3286

Washington, D.C. ¢ THIEL PRESS «

(:)

QUESTIONS PRESENTED FOR REVIEW

1. Whether Petitioner has presented compelling rea-

sons, as set forth in Supreme Court Rule 10, justifying

review of the Tenth Circuit’s decision.

2. Whether the Tenth Circuit correctly concluded that

Petitioner failed to establish a prima facie case of racial

discrimination in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §2000e (“Title VII”), and 42

U.S.C, §1981 (“§ 1981”).

3. Whether the Tenth Circuit correctly concluded that

the district court lacked jurisdiction over Petitioner’s

claim under the Americans with Disabilities Act, 42

U.S.C. §12101, et seg. (“ADA”), based on Petitioner’s

failure to adequately exhaust his administrative remedies.

(1)

LIST OF PARTIES

The petitioner is Robert Richardson. The respondent

is Albertson’s, Inc. Albertson’s, Inc. has no parent com-

panies or nonwholly owned subsidiaries.

(iit)

CITATIONS OF THE OFFICIAL AND

UNOFFICIAL REPORTS OF THE

OPINIONS AND ORDERS ENTERED IN THE CASE

The Petition sets forth this information in the Appen-

dix, Sections A-C.

(tv)

Page

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ............... i

LIGT OOF FARES 6k 6 6 ob 50 Oh Oe ee SAEs EEO ii

CITATIONS OF THE OFFICIAL AND UNOFFICIAL

REPORTS OF THE OPINIONS AND ORDERS

RIVE es AEG ROEM GRE 6 PRS a eee eA eee Rees iii

STATEMENT OF THE BASIS FOR JURISDICTION......... 1

STATUTES INVOLVED IN THE CASE ......2.csccececs 2

STATOR s WOE StU AD cca Chena ei niwwaees §

ee PO ers Ce eee er ee eee ee 5

Eh, CRROEE SNE, 5 6 6a aS Sees Ee Ce Ree KOR SR 6

Pi. Fite Tae GEE ook og 554 Wo 08 a 8s Chee 6

Dic Rae BE GEN 5 0 0 6 ke RS O aS ee RS 7

Pye 7 Seer oe arr enn er er er er ae ee eee 8

I. The Petition For a Writ of Certiorari Should Be Den-

ied Based On Mr. Richardson’s Failure to Present

Compelling Reasons Justifying Review of the

Tents CBee h DOCG 65 i i oo hc Ee Cees eee 8

A. The Petition Presents No Issues of Conflict Among

the Courts of Appeals or Between the Tenth Cir-

eg ne , Sea a rarer ar rare ae 9

B. The Petition Presents No Circumstances Calling

For Exercise of This Court’s Supervisory Power

Based on a Departure From the Accepted and

Usual Course of Judicial Proceedings............. 10

II. The Tenth Circuit Correctly Determined That Mr.

Richardson Failed to Establish a Prima Facie

Cone Gf Ractl TDMOcrROh 6k kc kK 8k cei ee ees 12

III. The Tenth Circuit Correctly Determined That the

District Court Lacked Jurisdiction Over Mr. Rich-

ardson’s ADA Claim Because He Failed to Ade-

quately Exhaust His Administrative Remedies. ........ 14

ee eS. § Perr rere eS eer re eer nee ae eS 15

(v)

Page

TABLE OF AUTHORITIES

Cases:

Allen v. Denver Pub. Sch. Bd., 928 F.2d 978 (10th

* | een a eg wee eS oe eee ee eee 12

Braxton v. United States, 500 U.S. 344 (1991)......-..--: 9

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .....---++-- 10

Equal Employment Opportunity Comm'n v. Flasher

Co., Inc., 986 F.2d 1312 (10th Cir. 1992) .......-.-+-- 12

Gross v. Burggraf Constr. Co., 53 F.3d 1531 (10th

oe er nr rer ter eee se ree ee 9

Key v. Wise, 454 U.S. 1103 (1981)... 62. eee eee eee ees 11

Khader v. Aspin, 1 F.3d 968 (10th Cir. 1993)........--+-- 14

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

}. | So Pe rie re he pik eM wt ee ea 9,12

New York City Transit Authority v. Beazer, 440

UB. 56S (1979) wc ccc tec cece er eesorceess 11

Patterson v. McLean Credit Union, 491 U.S. 164 (1989)...... 12

Randle v. City of Aurora, 69 F.3d 441 (10th Cir. 1995).... 9,12

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (° SOE 5 ig bee es 10

Texas Dep’t of Community Affairs v. Burdine, 450 US.

TAD CIDGLED occ tebe ssw reer sete reser eins 10

United States v. Williams, 504 U.S. 36 (1992). ........6+-+5- 8

Statutes:

28 U.S.C. §1254(1). 0... eee ee ee ee eee creer nneee 1

96 UBS. BIOSL 6 ci eta e se seresereserers 7

QD UBG SI9SL. ce cece eterveresenes i, 2

42 UG.C. S2Q00E . oc cece eres et cost seses i

42 U.S.C. §2000e-2. 2.0... cece cece e eee e seer recces 2

42 U.S.C. 820005... ccc e weer eecenerce 2,14

G2 UGC. BIMIOI, OF 80g. 66 cee cece peer e nese: i

Statutes, continued: Page

MOUSE CCE R e oik sk Sica wc de nade e cae ere 2

SEU BS BURA ks he ys Sa ek ee ea eee ee §,14

Rules:

Dae ee, ©. OR ik bie ks CARS Coke eeae@eee Obes 7

Supretes Cet RU 2S 6 63 8 hk Ae wat ae ON ee ARN i, 8,10

opens: Cheat TG BGS 6. 6 CREASES Cvs CSS 8

Se Garett TR Eo ib wise ka eee Ok Oe Pea eee 3

No. 96-1160

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

ROBERT RICHARDSON,

Petitioner,

ALBERTSON'S, INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF

THE BASIS FOR JURISDICTION

The Petition sets forth this information at page 1.

Although Petitioner did not include a citation to the stat-

utory provision believed to confer jurisdiction on this

Court, Petitioner is attempting to invoke jurisdiction

pursuant to 28 U.S.C. §1254(1).

STATUTES INVOLVED IN THE CASE

42 U.S.C. §1981(a):

All persons within the jurisdiction of the United States

shali have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give evi-

dence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as

is enjoyed by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and exac-

tions of every kind, and to no other.

42 U.S.C. §2000e-2(a):

It shall be an unlawful employment practice for an

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

any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, con-

ditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin;....

42 U.S.C. §2000e-5(f)(1):

. . . If a charge filed with the Commission pursuant to

subsection (b) of this section is dismissed by the Commis-

sion, . . . the Commission . . . shall so notify the person

aggrieved and within ninety days after the giving of such

notice a civil action may be brought against the respond-

ent named in the charge (A) by the person claiming to be

aggrieved ....

42 U.S.C. §12112(a):

No covered entity shall discriminate against a qualified

individual with a disability because of the disability of

such individual in regard to job application procedures,

the hiring, advancement or discharge of employees,

employee compensation, job training, and other terms,

conditions, and privileges of employment.

42 U.S.C. §12117(a):

The powers, remedies, and procedures set forth in sec-

tions 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9

of this title shall be the powers, remedies, and procedures

this subchapter provides to the Commission, to the Attor-

ney General, or to any person alleging discrimination on

the basis of disability in violation of any provision of this

chapter, or regulations promulgated under section 12116

of this title, concerning employment.

STATEMENT OF THE CASE

I. Factual Background.

Pro se Petitioner Robert Richardson (“Richardson’’)

was discharged from his job with Respondent Albert-

son’s, Inc. (““Albertson’s”’) for misconduct. Mr. Richard-

son is an African American who was employed by Albert-

son’s as a baker from 1981 to 1982, and from 1984 to

his discharge effective July 15, 1992. (Doc. 46 at Ex.

A-61:10-15, 64:19-23; Ex. B-1, q2).! Mr. Richardson’s

discharge arose from events occurring on June 2-5, 1992.

On June 2, 1992, Mr. Richardson left the store for his

lunch break. (Doc. 46 at Ex. A-126:16-127:1; Ex. B-1,

44). During this break, Mr. Richardson telephoned the

bakery manager, Jacqueline Johnson, and told her he

would be late returning to work because he had a flat

tire. (Doc. 46 at Ex. D-1, 993-5). While Mr. Richardson

| References to the record below are to document numbers

from the district court docket sheets and to numbered pages w.thin

the document, or to exhibits submitted with the document and to

numbered pages within the exhibit (see 10th Cir. R. 28.1).

was gone, two police officers came to the store with a

warrant for his arrest. (Doc. 46 at Ex. B-2, 95; Ex. E-1,

43). The police officers and William Winters, another

bakery employee, were at the store’s entrance when

Mr. Richardson drove into the parking lot. When he saw

the police officers, Mr. Richardson drove off and did not

return to work that day. (Doc. 46 at Ex. E-1, 43; Ex.

D-1, 46; Ex. B-2, 78).

The next day, June 3, 1992, Mr. Richardson called in

sick but did not state what the nature of his illness was.

(Doc. 46 at Ex. A-141:25-142:7, 142:20-143:13,

147:23-24; Ex. B-2, 49).

On June 4, 1992, Mr. Richardson arrived for work

around 2:00 a.m. Before punching in, he saw Mr. Winters

who asked him about the events of June 2, 1992. At that

time, Mr. Richardson admitted that he did not return to

the store because the police officers wanted him for fail-

ure to appear. Mr. Richardson then left the store and

asked Mr. Winters to lie if anyone asked him whether he

had seen Richardson. (Doc. 46 at Ex. E-1-2, 94). Three

other employees verified that Mr. Richardson had

reported to work the morning of June 4, 1992. (Doc.

46 at Exs. F, G and H).

On June 5, 1992, Mr. Richardson called Pat Hilde-

brand, the store director, and said that he had been ill on

June 2nd, 3rd and 4th and had gone to a doctor on June

4th.? (Doc. 46 at Ex. A-192:23-195:7; Ex. B-3, 414).

Mr. Hildebrand requested that Mr. Richardson bring in

some verification of his story, such as a doctor’s note,

prescription, bill or receipt. Mr. Richardson failed to

2 Despite Mr. Richardson’s assertion that he was only out sick

for one day (Petition at 4), the undisputed evidence shows that he

claimed to be sick for a portion of June 2nd, and all of June 3rd

and 4th. (Doc. 46 at Ex. B-3, 914).

produce any documentation. (Doc. 46 at Ex. B-3, 4 15).

When questioned, Mr. Richardson denied that he had

been at the store on June 4th. (Doc. 46 at Ex. B-3, 16).

Mr. Richardson was then suspended pending investiga-

tion. (Doc. 46 at Ex. B-3, 417).

Michael Schwarzkopf, Albertson’s Regional Director,

Labor Relations, sent Mr. Richardson a letter on June

25, 1992 setting forth the events of June 2-5 as Albert-

son’s understood them. Mr. Schwarzkopf requested that

Mr. Richardson respond with any documentation he had

to disprove the facts as set forth in the letter, along with

a written statement documenting the events of June 2-5.

Mr. Schwarzkopf indicated that a decision would be

made regarding Mr. Richardson’s continued employment

by July 15, 1992. (Doc. 46 at Ex. A — Richardson Dep.

Ex. 14; Ex. C-1, 44; Ex. B-4, 918).

Mr. Richardson responded to this letter with a one-

page, handwritten note and a copy of page 9 of the labor

contract between Albertson’s and the Union.® (Doc. 46

at Ex. A — Richardson Dep. Ex. 16; Ex. C-2, 445-6).

The information provided was not responsive to Mr.

Schwarzkopf’s requests. Mr. Ric iardson provided no ver-

ification of his claimed illness or alleged doctor’s visit,

and failed to even address the facts as set forth by Albert-

son’s. (Doc. 46 at Ex. C-2, 47). Because Albertson’s had

3 Page 9 of the labor contract actually authorizes the actions

taken by Albertson’s. The contract specifically provides that “[a]

doctor’s certificate or other authoritative verification of illness or

occupational or nonoccupational accident may be required by the

Employer and, if so, must be presented by the employee not more

than forty-eight (48) hours after return to work.” (Doc. 46 at Ex.

A — Richardson Dep. Ex. at 18 at 9). Moreover, the labor contract

emphasizes that any employee “found to have abused sick leave

benefits by falsification or misrepresentation shall thereupon be

subject to disciplinary action... .”’ (Jd.)

no evidence supporting Mr. Richardson’s version of the

events of June 2-5, he was terminated effective July 15,

1992 based on his failure to report for work as scheduled,

failure to provide documentation verifying his alleged

illness, and Albertson’s belief that he falsified his reason

for not returning to work, lied about being sick, asked a

co-worker to lie for him, and falsely denied reporting to

work. (Doc. 46 at Ex. C-2, 8; Ex. B-4, 422).

Mr. Richardson subsequently filed a charge with the

Equal Employment Opportunity Commission (“CEEOC’’)

alleging racial and disability discrimination. (Doc. 46

at Ex. O-1). Although Mr. Richardson received two let-

ters from the EEOC requesting information verifying his

disability, he failed to provide sufficient documentation.

(Doc. 46 at Exs. L and M). A determination letter was

executed April 21, 1994. The letter stated that due to

Mr. Richardson’s failure to provide documentation show-

ing that he was a qualified individual as required by the

ADA, the EEOC lacked jurisdiction over this claim. The

letter further stated that the evidence obtained during

investigation of Mr. Richardson’s claim did not support

a violation of the statutes. Mr. Richardson was informed

by the EEOC that he could “ONLY PURSUE THE

TITLE VII CLAIM BY FILING SUIT AGAINST THE

RESPONDENT NAMED IN THE CHARGE IN FED-

ERAI, DISTRICT COURT WITHIN 90 DAYS OF

RECEIPT OF THIS LETTER.” (Doc. 46 at Ex. A, Rich-

ardson Dep. Ex. 26 (emphasis in original)).

II. Procedural History.

A. The District Court.

Mr. Richardson filed this action in the U.S. District

Court for the District of Colorado, alleging that the term-

ination of his employment constituted racial discrimina-

tion in violation of Title VII and §1981, and disability

discrimination in violation of the ADA. (Doc. 1 at 3-5).

Jurisdiction over Mr. Richardson’s claims was based on

28 U.S.C. §1331. After a period of investigation and

discovery, including the deposition of Mr. Richardson,

Albertson’s moved for summary judgment on all claims

pursuant to Fed. R. Civ. P. 56. (Doc. 44 and 45).

The district court granted Albertson’s motion, finding

that Mr. Richardson had failed to provide any evidence of

a disputed issue of material fact. The district court

entered summary judgment on the ADA claim on three

separate grounds: (1) the events giving rise to the claim

occurred prior to the effective date of the Act; (2) Mr.

Richardson failed to exhaust his administrative remedies;

and (3) Mr. Richardson failed to file his action within

ninety days of receipt of the Notice of Right to Sue. The

district court granted summary judgment on the Title VII

claim based on: (1) Mr. Richardson’s failure to file his

action within ninety days of receipt of the Notice of

Right to Sue; and (2) Mr. Richardson’s failure to set forth

a prima facie case of racial discrimination. Likewise,

summary judgment was granted on the §1981 claim on

the basis of Mr. Richardson’s failure to set forth a prima

facie case of racial discrimination. (Petition at A5-A11).

B. The Tenth Circuit.

Mr. Richardson appealed the district court’s order to

the United States Court of Appeals for the Tenth Circuit.

After briefing by the parties, the Tenth Circuit issued its

Order and Judgment in the case, affirming the district

court’s judgment in favor of Albertson’s. (Petition at

Al-A4). The Order and Judgment agreed with the dis-

trict court’s conclusions that Mr. Richardson failed to

establish a prima facie case of racial discrimination, and

that the court lacked jurisdiction over his ADA claim

based on his failure to adequately exhaust administrative

remedies. (/d.) Mr. Richardson filed a petition for rehear-

ing which was denied by the Tenth Circuit on September

16, 1996.

ARGUMENT

THE PETITION FOR A WRIT OF CERTIORARI SHOULD

BE DENIED BASED ON MR. RICHARDSON’S FAILURE

TO PRESENT COMPELLING REASONS JUSTIFYING

REVIEW OF THE TENTH CIRCUIT'S DECISION.

As stated in Supreme Court Rule 10, a petition for a

writ of certiorari will be granted only for compelling

reasons and “‘is rarely granted when the asserted error

consists of erroneous factual findings or the misapplica-

tion of a properly stated rule of law.” While the fourteen

“Questions Presented”’ set forth in Mr. Richardson’s peti-

tion are practically unintelligible, it is clear that the peti-

tion consists entirely of assertions of erroneous factual

findings (Questions Presented numbers 3, 4, 5,* 6, and

13) or misapplied legal standards (Questions Presented

numbers 1, 2, 7, 8, 9, 10, 11, 12, and 14). (Petition at

i-ii). Most of the purported facts Mr. Richardson offers

to support his claims of discrimination are not properly

before this Court. (Petition at 3-4). None of Mr. Richard-

son’s facts are supported by a single citation to the record

* Pursuant to Supreme Court Rule 15.2, Albertson’s points

out that Mr. Richardson’s Question Presented number 5 (“How can

the Defendant write up the Plaintiff simply for asking for a pro-

motion?”) would not properly be before the Court if certiorari

were granted. This particular factual determination was not at

issue below and was thus not preserved for review. United States v.

Williams, 504 U.S. 36, 44 (1992) (party raising error must have

raised the issue below ©. ‘he issue must have been expressly relied

upon by the court be ow)

Se PN ee BE Cee eT ee ee eT ee

below, and in fact, are not part of the record because

they were never properly presented to the district court.®

Such unsupported assertions of error do not present

“compelling reasons” justifying review of the Tenth Cir-

cuit’s decision.

A. The Petition Presents No Issues Of Conflict

Among the Courts of Appeals or Between the

Tenth Circuit and This Court.

The petition does not present issues in which there are

conflicts among the courts of appeals or between the

Tenth Circuit and this Court (which this Court has in the

past indicated is a principal use of certiorari jurisdiction.

Braxton v. United States, 500 U.S. 344, 347 (1991)). To

the contrary, in reaching the conclusion that Mr. Richard-

son had not satisfied his initial burden of establishing a

prima facie case of discrimination, the district court and

the Tenth Circuit applied the well-established and uni-

versally accepted test (discussed below) set forth in this

Court’s decision in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). (Petition at A3 and A10-A11).

There is absolutely no conflict between this Court and

the Tenth Circuit’s test for what a plaintiff in an employ-

ment discrimination case must show to survive summary

judgment. The Tenth Circuit test is set forth in Randle v.

City of Aurora, 69 F.3d 441, 451-53 (10th Cir. 1995),

and is directly based upon this Court’s opinions in St.

5 Federal courts routinely reject claims of error by parties

who fail to provide citation to the record sufficient to determine

whether an error occurred. See, e.g., Gross v. Burggraf Constr. Co.,

53 F.3d 1531, 1546 (10th Cir. 1995) (“Without a specific refer-

ence, we will not search the record in an effort to determine

whether there exists dormant evidence which might require submis-

sion of the case to a jury. Judges are not like pigs, hunting for truf-

fles buried in briefs.””) (internal citations omitted).

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993), and

Texas Dep’t of Community Affairs v. Burdine, 450 U.S.

248 (1981).

Neither is there any conflict presented by the general

legal standards used below in determining Albertson’s

summary judgment motion. The district court’s analysis

of Mr. Richardson’s burden to establish a genuine issue of

material fact in responding to Albertson’s motion for

summary judgment relied upon this Court’s familiar and

widely relied upon decision in Celotex Corp. v. Catrett,

477 U.S. 317 (1986). (Petition at A8). Thus, none of

the issues that form the basis of the petition can be char-

acterized as issues in which the Tenth Circuit’s Order and

Judgment conflicts with a decision of this Court or of

another United States court of appeals.

B. The Petition Presents No Circumstances Calling

For Exercise of This Court’s Supervisory Power

Based on a Departure From the Accepted and

Usual Course of Judicial Proceedings.

To the extent that Mr. Richardson’s petition may be

interpreted to request that the Court grant certiorari

based upon the consideration that 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 supervisory power” (Supreme Court Rule

10.1(a)), such argument should be rejected because this

is not such a case and the “so far departed” test is only

very rarely expressed as a basis for this Court to grant

certiorari. To the contrary, this case presents a run-of-

the-mill summary judgment decision based on well-estab-

lished and correctly applied legal principles.

This Court relied on the “so far departed” test to grant

certiorari in New York City Transit Authonty v. Beazer,

440 U.S. 568 (1979). In that case, the Court found

granting certiorari appropriate based on the court of

appeals having affirmed on a constitutional issue with-

out first resolving a Statutory issue, which conflicted with

an established judicial principle. 440 U.S. at 570-71 &

n.l. In contrast, this Court denied certiorari under the

“so far departed’’ test in Key v. Wise, 454 U.S. 1103

(1981). In Justice Brennan’s dissent, he noted that even

the prevailing party below acknowledged that the court

of appeals egregiously erred in reaching its decision, the

case presented fundamental jurisdictional issues of great

importance, that it was an appropriate case for review

under the “so far departed” test, and that the decision

below should be summarily reversed. 454 U.S. at 1105

(Brennan, J., dissenting).

The present case is certainly not as significant as

Beazer, as there are no constitutional issues involved.

Nor does it present egregious errors or jurisdictional

issues that in Key v. Wise were only significant enough

to provoke a dissent from the denial of the petition for

a writ of certiorari. Here, the only issues which would

be properly before the Court if certiorari were granted

concern whether the district court properly applied

undisputed legal standards in resolving a run-of-the-mill

summary judgment motion. Such issues are not what

is contemplated by this Court’s “so far departed” test,

or review on certiorari generally. Therefore, Mr. Rich-

ardson’s petition should be denied.

Il.

THE TENTH CIRCUIT CORRECTLY DETERMINED

THAT MR. RICHARDSON FAILED TO ESTABLISH A

PRIMA FACIE CASE OF RACIAL DISCRIMINATION.

The district court and Tenth Circuit correctly dis-

missed Mr. Richardson’s Title VII and §1981 claims

based on his inability to establish a prima facie case of

racial discrimination. To prevail on a claim of racial

discrimination under Title VII, a plaintiff must show that

his race was a motivating factor for the employment

action of which he complains. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802 (1973). As set forth in

McDonnell Douglas, the plaintiff in a Title VII action

must first establish by a preponderance of the evidence a

prima facie case of racial discrimination. Jd. The burden

then shifts to the defendant to show a legitimate nondis-

criminatory reason for the challenged employment deci-

sion. Id. If the defendant meets its burden, the plaintiff

may then show that the legitimate reasons offered by the

employer were merely a pretext for unlawful discrimina-

tion. Id. at 804; Randle v. City of Aurora, 69 F.3d 441,

451 (10th Cir. 1995). The same analysis applies to a

§1981 claim. Patterson v. McLean Credit Union, 491

U.S. 164, 186-87 (1989) (superseded by statute on other

grounds); Randle, 69 F.3d at 450.

To set forth a prima facie case of racial discrimination,

Mr. Richardson was required to prove that: (1) he belongs

to a protected class; (2) he was qualified for the position

of baker; (3) he was terminated for violating a work rule;

and (4) similarly situated nonminority employees were

treated differently. Equal Employment Opportunity

Comm ’n v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10th

Cir. 1992); Allen v. Denver Pub. Sch. Bd., 928 F.2d 978,

985 (10th Cir. 1991).

Mr. Richardson failed to present any evidence what-

soever of racial discrimination beyond his own conclu-

sory, unsupported allegations that white coworkers were

treated more favorably than he was. Mr. Richardson

failed even to identify any nonminority coworkers who

were treated differently. Rather, the undisputed evi-

dence establishes that Caucasian employees were required

to provide doctor’s notes after being absent from work

for two or more days, just as Mr. Richardson was required

to do. (Doc. 46 at Ex. B-4, 423). In addition, two

Caucasian employees were discharged from their employ-

ment at the same store for failure to report to work as

scheduled. (/d. at 424). Mr. Richardson himself acknowl-

edged that he did not know whether other employees

were required to, or actually did, provide doctors’ notes;

rather, he merely believed that they were not required

to do so. (Doc. 46 at Ex. A — 183:24-186:1; 186:19-

187:1).

In his pleadings filed with the Tenth Circuit, Mr. Rich-

ardson referred to “his witness” who could prove his

prima facie case. Yet Mr. Richardson never identified

the witness or provided any evidence, through affidavit

or otherwise, regarding the witness’ anticipated testimony.

A general reference to an anonymous witness in the

pleadings is insufficient to raise a genuine issue of mater-

ial fact. As the Tenth Circuit correctly held, mere con-

clusory allegations unsupported by any evidence are not

enough to withstand a properly supported motion for

summary judgment. (Petition at A4).

Il.

THE TENTH CIRCUIT CORRECTLY DETERMINED

THAT THE DiSTRICT COURT LACKED JURISDIC-

TION OVER MR. RICHARDSON’S ADA CLAIM BECAUSE

HE FAILED TO ADEQUATELY EXHAUST HIS ADMIN-

ISTRATIVE REMEDIES.

The undisputed evidence ptesented to the lower courts

established that Mr. Richardson failed to exhaust his

administrative remedies with respect to his claim of dis-

ability discrimination under the ADA. Before bringing a

claim in federal court under Title VII or Title I of the

ADA, the charging party must exhaust his administrative

remedies. 42 U.S.C. §2000e-5; 42 U.S.C. §12117(a);

Khader v. Aspin, 1 F.3d 968, 970 (10th Cir. 1993). An

employee who refuses or fails to provide sufficient infor-

mation so that the agency can evaluate the merits of his

claim “cannot be deemed to have exhausted administra-

tive remedies” and the claims must be dismissed. Khader,

1 F.3d at 971 & n.2. As specifically stated in the EEOC’s

determination letter of April 21, 1994, Mr. Richardson

failed to provide any documentation upon which the

EEOC could determine whether he was a qualified indi-

vidual under the ADA. (Doc. 46 at Ex. A, Richardson

Dep. Ex. 26). Mr. Richardson never offered any evidence

in dispute of this statement. Thus, Mr. Richardson failed

to adequately exhaust his administrative remedies and the

district court and Tenth Circuit correctly found that jur-

isdiction could not be exercised over his ADA claim.

CONCLUSION

For the reasons set forth above, Respondent Albert-

son’s, Inc. respectfully requests that this Court deny Peti-

tioner Robert Richardson’s petition for a writ of certiorari.

Respectfully submitted this 25th day of March, 1997,

JAMES E. HAUTZINGER

(Counsel cf Record)

HEATHER Fox VICKLES