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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1196

## Text

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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).

l

2

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,

3

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).

4

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).

5

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.)

6

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-

ay

7

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

8

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

I.
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

ee

9

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).

10

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.

11

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.

12

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).

13

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).

14

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.

15

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
SHERMAN & HOWARD L.L.C.
633 Seventeenth Street

Suite 3000
Denver, Colorado 80202
(303) 297-2900

Attorneys for Respondent,
Albertson’s, Inc.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0139%3A2. Public record. Not legal advice.