Petition for Writ of Certiorari — Graves v. Vesuvius USA

() Supreme Co''r

VJ F i

no.9% 611 AUG - 4 1990

OFFICE OE THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

TROY L. GRAVES,

Petitioner

VS.

VESUVIUS USA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

John B. McNamara, Jr.

Counsel of Record

LaNelle L. McNamara

McNAMARA & McNAMARA

501 Franklin Avenue, Suite 500

Waco, Texas 76701

(254) 754-5456/753-0719 (fax)

ATTORNEYS FOR PETITIONER

QUESTIONS PRESENTED FOR REVIEW

A Whether Petitioner’s summary judgment evidence was

sufficient to raise fact issues precluding the entry of

summary judgment in favor of Respondent on Petitioner's

Title VII claim of race discrimination.

2. Questions that are essential to the determination of the

ultimate legal issue cited above are:

A. Whether Petitioner’s summary judgment proof was

sufficient to raise a fact issue as to a prima facie

case of racial discrimination under McDonnell

Douglas Corp. V. Green and/or Mayberry v.

Vought; and

B. Whether Petitioner’s summary judgment proof,

which included Petitioner’s unrebutted testimony

that he had been disciplined on three occasions

prior to his discharge when a white person was at

fault and was not similarly disciplined, and which

included Petitioner’s unrebutted testimony that he

had been demoted from a position for which he

was qualified and he was replaced by a white

person, whom he had to train, and which included

Petitioner's testimony contradicting the reason

given by his employer for his discharge, were not

factually sufficient to avoid summary judgment

because Petitioner's testimony consisted of mere

conclusions and opinions.

C. If Petitioner's testimony, as described in B. above,

was factual, was his testimony sufficient to raise a

fact issue whether or not Respondent's proffered

reason for Petitioner's discharge was false and

pretextual.

Page

a CE ATTEN i cic ca ctedivecetens 2

LIST OF ALL INTERESTED PARTIES .....:.......... 5

CITATIONS FOR REPORTS OF LOWER COURT ...:... 6

DECISIONS IN THIS CASE

STATEMENT OF JURISDICTION ...............200-- 6

COURSE OF PROCEEDINGS BELOW

BASIS OF: SUPREME COURT JURISDICTION

STATEMENT OF MATERIAL CASE FACTS .........-.. 9

oe at ih eas kak Chae 11

NDEX O

CASES: Page

Barnes v. Yellow Freight Systems, Inc., .... 2.6.22 0eee ees 23 |

778 F.2d 1096, 1101 (Sth Cir. 1985)

Cole v. Ruidoso Municipal Schools, ........60+0eeeeeeeees 8

43 F.3d 1373 (10th Cir. 1994)

De Bardeleben v. Curnmings, ......0.cccccccscescccecs 10

453 F.2d 320 (Sth Cir. 1972)

Prancesch’ v. Fiyalt Coty oo cc ccccccccccvcccecsccesene 7

782 F.Supp. 712 (D.Puerto Rico 1992)

Franz Chemical Corp. v. Philadelphia Quartz, ..........+.: 10

594 F.2d 146 (Sth Cir. 1979)

Bienes & Te eo i a go ss 6 kn 6 40 UK ee ee kewehe 13

7 F.3d 137 (9th Cir. 1993)

International Shortstop, Inc. v. Rally’s Inc. .......++++++ 21, 22

939 F.2d 1257, 1265 (Sth Cir. 1991)

Impossible Electronics Techniques, Inc. V. Wackenhut, ....... 11

Protective Systems, Inc., 669 F.2d 1026, 1031 (Sth Cir. 1991)

Johnson v. Chapel Hill Independent School District, ......... 24

853 F.2d 375 (Sth Cir. 1988)

Kelly v. Boeing Petroleum Services, Inc.,... 1... +++e00005 23, 24

61 F.3rd 350 (Sth Cir. 1995)

Mayberry v. Vought Aircraft Co., .. 2.2.66 e eee eens 13, 15, 26

55 F.3d 1086, 1090 (Sth Cir. 1995)

—— eee

CASES: Page

McDonnell Douglas Corp. v. Green, ........200005: 12, 15, 24

411 U.S. 792 (1973)

BS A Sw hA 6640's 6 00 00 hb vé wh Oe eeeeS 11

990 F.2d 812, 815 (Sth Cir. 1985)

cert denied. 114 S.Ct. 467, 126 L.Ed.2d 419 (1993)

Nissho-Iwai American Corp. v. Kline, ........0200e0e000. 10

845 S.W.2d 1300 (Sth Cir. 1988)

PU Fees EY o.oo 5 oid 6 cee cecnvcccsuwcews 8

704 F.2d 860 (3rd Cir. 1986)

EES Pe re re Lee ere a ere one 21

12 F.3d 1373, 1379 (Sth Cir. 1994)

Rhodes v. Gulborson OF Tole, oo cc cccveccsess 21

75 F.3d 989 (Sth Cir. 1996)

Roms v. Gomera Biatere Core, . oc cs cctcecsecsceces 8

904 F.2d 531 (oth. Cir. 1990)

St. Mary’s Honor Center v. Hicks, ..........0.0008. 7, 8, 21 23

113 S.Ct. 2742 (1993)

Savers Federal Sav. & Loan Ass’n v. Reetz, ........000000. 10

888 F.2d 1497 (Sth Cir. 1989)

Talley v. Bravo Pitino Restaurant, Lid., ...........000000- 12

61 F.3d 1241 (6th Cir. 1995)

Texas Dept. of Community Affairs v. Burdine, ........ 12, 15, 24

450 U.S. 248, 253 (1981)

CASES: Page

Thombrough v. Columbus and Greenville R.R. Co. «2.4.54: 23

760 F.2d 633, at 648 (Sth Cir. 1985)

FORGE CBRE, ccc cccccccesscatedansescveceuen 12

954 F.2d 1125 (Sth Cir. 1991)

STATUTES:

United States Code

Be as SUES | 4.0 000 cen ég 5a tue dees beeen 6

ae Cs EE vs Kh hws BRS ee eS ck week 24

42 UB, GHG eee VER) nce cccenccuscces 8, 22

TREATISES:

C6. oer eee Let Beene GES cs d)s occ bbe Wa eek dee ah 8

LIST OF INTERESTED PARTIES

PETITIONER:

Troy L. Graves

4005 Paradise Island :

Waco, Texas 76705

COUNSEL FOR PETITIONER:

John B. McNamara, Jr., Counsel of Record

LaNelle L. McNamara

McNAMARA & McNAMARA

501 Franklin Avenue, Suite 500

Waco, Texas 76701

RESPONDENT:

Vesuvius USA

c/o Mr. James A. Showers

62 West Elm

Hillsboro, Texas 76645

COUNSEL FOR APPELLEE:

Stuart Smith

Naman, Howell, Smith & Lee P.C.

Ninth & Washington

Texas Center

P O Box 1470

Waco, Texas 76703-1470

United States District Court, Western Division of Texas,

Waco Division: not reported

United States Court of Appeals for the Fifth Circuit:

not reported

STATEMENT OF JURISDICTION

Course of Proceedings

The United States Court of Appeals for the Fifth Circuit

entered its judgment on the Sth of May, 1997. (A copy of the

Fifth Circuit Judgment and Opinion is filed with this Petition in a

separate volume designated as an "Appendix" to the Petition.)

Jurisdiction is vested in the Supreme Court pursuant to 28

U.S.C. § 1254(1)}, this being a petition for review of a judgment

entered by the United States Court of Appeals for the Fifth

Circuit on appeal from a summary judgment entered by the

United States District Court for the Western District of Texas,

Waco Division. (A copy of the District Court’s Order is filed with

this Petition in a separate volume designated as an “Appendix” to

the Petition.)

This Petition is filed for two purposes: (1) to bring up a

question of importance that significantly affected the outcome of

this case and that s of grave public interest in the area of

employment and civil rights, and (2) to secure uniformity of

decisions between Circuit Courts of Appeals and between Circuit

Courts of Appeals and this Supreme Court as follows.

Petitioner’s summary judgment evidence in this case was

entirely circumstantial.!_ The vast majority of Petitioner’s

circumstantial (or “indirect") proof of discrimination was not

rebutted by the summary judgment evidence of Respondent, which

included only two affidavits, (1) from Petitioner’s immediate

supervisor, Calvin Bell, and (2) from another employee whose

testimony corroborated a small part of Mr. Bell’s affidavit

testimony. Both affidavits related solely to the facts and

circumstances surrounding Graves’ discharge. Also, both of

Respondent’s witnesses are black males, as is the Petitioner, and

the district court? emphasized this fact in its opinion.?

Legal scholars, commentators, Congressmen and others

have predicted that, following this Court’s decision in St. Mary’s

Honor Center v. Hicks, 113 S.Ct. 2742 (1993), a Plaintiff asserting

a claim for individual disparate treatment will no longer be able to

prove intentional racial discrimination if the claim relies solely on

circumstantial or indirect proof. (See, e.g., Rewarding employer's

lies; Making intentional discrimination under Title VII harder to

prove, 44 DePaul Law Review 643 (1995), and references cited

therein.) The future of claims, such as the claim asserted by the

Petitioner in this case, is of great concern and interest to potential

! Asummary of Petitioner’s summary judgment proof

appears in the Statement of Material Facts, infra.

2 The Court of Appeals merely adopted the district court

opinion in this case.

3 The district court seemed to consider the race of

Petitioner’s supervisor, and the race of the corroborating

witness to be probative evidence against Petitioner’s claim

that Vesuvius intentionally discriminated against him (Court’s

Order, App. p.10-11) even though it has been well-established

in the past that intraracial discrimination can and does occur.

See Franceschi v. Hyatt Corp., 782 F.Supp. 712, 722

(D.Puerto Rico 1992) and cases cited therein.

7

litigants and professionals practicing in the area of employment

law and civil rights.

The author of the DePaul Law Review note, cited supra,

states that “while attempting to eliminate confusion regarding the

allocation of proof in discrimination cases, the decision in St.

Mary’s creates confusion..." and "the question of what constitutes

“sufficient” proof is presumably left open for the lower courts to

resolve..." (at 711). However, summary judgments in individual

disparate treatment cases based on circumstantial evidence

substantially similar to the evidence presented in this case were

denied and are still being denied in circuit courts other than the

Fifth Circuit despite this Court’s opinion in St. Mary’s. See, e.g.

Pollock v. A.T.&T Long Lines, 794 F.2d 860 (3rd Cir. 1986);

Rodriquez v. General Motors Corp., 904 F.2d 531 (9th Cir. 1990);

Cole v. Ruidoso Municipal Schools, 43 F.3d 1373, 1377-1381 (10th

Cir. 1994).

The district court and the court of appeals assumed that

this case had no legal significance and chose not to publish

opinions. Obviously the Petitioner believes his case to have grave

significance. If this Court compares this case with cases being

decided in other circuits--even after St. Mary’s--it should agree

that there are grave disparities between circuits in the burden

being placed on Plaintiff's asserting individual disparate treatment

claims of discrimination. For these reasons, Petitioner urges this

court to consider the summary judgment proof in this case as an

opportunity to clarify the circumstances under which indirect or

circumstantial evidence of discrimination will be sufficient to avoid

summary judgment in the future.

STATEMENT OF MATERIAL FACTS

The record in this case established that Petitioner,

"Graves", a black male, was employed by Respondent "Vesuvius"

in 1988 (R. 11), and his employment was terminated on January

11, 1993 (Ex. 6, R. 324). His employment history, prior to

8

termination, included adverse employment actions as follows: (1) a

written warning for "fighting" with a white employee, Meadors in

1990 (Ex. 8, R. 226), (2) a verbal warning for "carelessness" (Ex. 1,

R. 217) in January of 1992, and (3) a verbal warning for

“disobedience” in July of 1992 (Ex. 2, R. 218). The disciplinary

action forms produced by "Vesuvius" confirmed that Graves

disagreed with each disciplinary action at the time each occurred

and Graves testified that each action was unjustified because he

did not commit the acts that were alleged as the basis for the

discipline imposed and that the white persons who were known by

Vesuvius to be at fault in each instance were not similarly

disciplined (R. 114-118 and R. 199-201; R. 118-128 and R. 195-

196; R. 128-135). Vesuvius offered no summary judgment

evidence disputing Plaintiffs testimony in this regard.

The record further established that shortly before Graves

was discharged, a higher position, i.e. "lead man", was available

temporarily, with the possibility that the assignment might become

permanent. Graves had the highest seniority and was placed in

the position, but Graves was removed from the position after one

day and a white male, Danny Holt, who had less seniority than

Graves, replaced him as lead man (R. 108-113; R. 180-182; R.

191-192). Mark Sullivan, a white male, made the decision to

remove Graves from the position but he did not give any reason

for his decision (R. 180, L. 9-15; R. 191-192). Graves actually had

to train Holt for the lead man position (R. 191, L. 9-17). Danny

Holt also took Graves’ place after Graves was discharged and Holt

ultimately was promoted to the position of lead man, even though

there were three black males in the department who had seniority

(R. 154).

The record further established that Graves’ employment

with Vesuvius was terminated on January 11, 1993. The personnel

action form cited “disobeing orders" and "falsification of

information" as reasons for Graves’ discharge (Ex. 6, R. 324).

Graves testified that he did not commit either of the acts that

were cited as the basis of his discharge (R. 166-178 and R. 201-

204 and R. 209-212).4

As noted supra, Graves’ supervisor, Bell’, was also a black

male. Vesuvius’ summary judgment proof did not dispute Graves’

testimony that Mark Sullivan, a white male, actually controlled the

disciplinary actions and that Bell repeatedly told Graves that he

(i.e. Bell) was instructed by his white supervisor to impose

discipline on Graves (R. 199-200; R. 118, L 20-23; R. 131, 1. 19-24;

R. 134, L. 15; R. 135, L 7).6

Graves contended that his discharge was part of a pattern

and practice of discrimination against him on the basis of his race |

and was also part of a plan by Vesuvius to open up positions for |

white employees, like Danny Holt, who had been laid off when |

Vesuvius shut down one of its two divisions, i.e. its "Viso" division

(R. 159-164).

. A complete analysis of the summary judgment

evidence relating to the facts and circumstances surrounding

Graves’ discharge are discussed in detail in Petitioner’s

argument, in a section entitled “legitimate non-

discriminatory reason". The evidence consisted of

excerpts from Graves’ deposition (testimony and

exhibits) and two affidavits submitted by Vesuvius.

5 After Graves’ discharge, Bell was demoted from

his supervisory position to a lead man position and was

replaced by a white male (R. 161-162, 189). |

6 Graves also testified, without contradiction by

Vesuvius, that after Graves was discharged, Bell told him

that he was just following Sullivan’s instructions when he

terminated Graves and that either he (Bell) or Graves was

going to get fired (R. 187).

10

ARGUMENT

Standard of Review

A court’s grant of a summary judgment is to be reviewed

de novo. “Summary judgment is proper when no issue of material

fact exists and the moving party is entitled to judgment as a matter

of law. In determining whether summary judgment was proper, all

fact questions are viewed in the light most favorable to the non-

movant." Moore v. Eli Lilly Co., 990 F.2d 812, 815 (Sth Cir. 1992),

cert. denied, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993). The party

seeking summary judgment is supposed to bear an "exacting

burden of demonstrating that there is no actual dispute as to any

material fact in the case. Impossible Electronics Techniques, Inc.

vy. Wackenhut Protective Systemis, Inc., 669 F.2d 1026,1031 (Sth

Cir. 1982). In determining whether the movant has met its burden,

the Court must view the evidence presented and all factual

inferences from the evidence in the light most favorable to the

party opposing summary judgment. Id., at 1031.

1. Summary Judgment Evidence. In the instant case, the

District Court, and the Fifth Circuit, by adopting the District

Court’s findings and conclusions, implied that Graves’ Response to

Vesuvius’ Motion for Summary Judgment was insufficient because

it failed to "designate" specific facts as required by law, citing

Nissho-Iwai American Corp. v. Kline, 845 S.W.2d 1300 (Sth Cir.

1988); Savers Federal Sav. & Loan Ass’n v. Reetz, 888 F.2d 1497

(Sth Cir. 1989); Franz Chemical Corp. v. Philadelphia Quartz, 594

F.2d 146 (Sth Cir. 1979); and De Bardeleben v. Cummings, 453

F.2d 320 (Sth Cir. 1972). (Court’s Order, R. 321-322) All of the

cases cited by the court are clearly distinguishable from the case at

bar and the record in this case will show very clearly that Graves’

summary judgment proof was specifically referenced for the Court.

Vesuvius submitted two affidavits in support of its Motion

for Summary Judgment, both of which had assertions of fact

relating solely to Vesuvius’ alleged reason for termination of

11

Graves’ employment and to the facts and circumstances Vesuvius

alleged to have occurred in connection with Graves’ discharge (R.

60-63). In support of Graves’ Response to Vesuvius’ Motion,

Graves submitted deposition excerpts (R. 099-229)’ that contained:

1. A detailed statement of the events that occurred in

connection with Graves’ discharge, which

contradicted and refuted the events described in

Vesuvius’ affidavits; and

2. A detailed statement of facts sufficient to establish

a prima facie case of discrimination on the basis of

race under McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)* and under the Texas

7 In the district court’s Order (R.322), the Court

reiterated its implication that Plaintiff failed to meet his burden

to “designate” facts responsive to a summary judgment motion,

citing Topalian v. Ehrman, 954 F.2d 1125 (Sth Cir. 1991), which

is also clearly distinguishable from the case at bar. In Topalian,

the appellant, in response to motions for summary judgment,

relied on its unsworn Pre-Trial Order and its Complaint (FN 14

at 1132; Text at 1133; FN 19 at 1133; Text at 1136; FN 31 at

1137; Text at 1137-1138) and a one page deposition excerpt and

an unsigned letter (Text at 1138). In the instant case, Plaintiff

relied on selected deposition excerpts from his own sworn

deposition which is competent summary judgment proof clearly

distinguishable from the unsworn pleadings and Pre-Trial Order

offered in Topalian. The deposition excerpts include factual

detail and not merely conclusions or opinions of Plaintiff.

s Vesuvius never contested the fact that Graves’

position was filled by Danny Holt, a white male, who had

previously been laid off when the VISO division was shut down.

See Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1246

(6th Cir. 1995), wherein the Court held that the Plaintiff

employee was not required to establish that he was similarly

situated to the white employees who were rehired after layoff in

12

Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981) and under Mayberry v. Vought Aircraft Co., 55 F.3d 1086,

1090 (Sth Cir. 1995); and

3. A detailed statement of the events that occurred in

connection with prior disciplinary action by

Vesuvius and in connection with his removal as

"lead man” when he was first replaced by Danny

Holt; and Graves’ statement of facts was sufficient

to show that Vesuvius had engaged in a past

pattern and practice of disparate treatment of

Graves with respect to the terms and conditions of

Graves’ employment, particularly the terms and

conditions relating to past disciplinary action

imposed on Graves and not imposed on his

similarly situated non-minority counterparts.

The district court’s Order in this case (Order, R. 322)

stated that a non-movant cannot rely on "conclusory" affidavits,

citing Hansen v. United States, 7 F.3d 137 (9th Cir. 1993),

implying that Graves’ deposition excerpts are conclusory only.®

Again, to the contrary, the record will show that Graves’ testimony

is replete with statements of fact as required by law; the specific

statements of fact (as opposed to conclusions) were presented to

the district court and the court of appeals and are presented in

arguments below.

order to satisfy the fourth prong of the McDonnell Douglas

test where the Plaintiff presented evidence that his

previous position was filled by a white person.

% Again, the case cited by the District Court, to-wit

Hansen v. United States, is distinguishable from the case at bar.

13

All summary judgment proof referenced above is

incorporated by reference herein for all purposes.”

acknowledged that Graves could prove a prima facie case by

producing evidence that: (1) he is a member of a protected class;

(2) he was qualified for the job from which he was discharged; (3)

he was discharged; and (4) he was replaced by or the position was

given to a non-minority (Order, R. 324). McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of

Community Affairs v. Burdine, 450 U.S. 248 (1981). Alternatively

, the court stated that Graves could establish a prima facie case

by showing that he did not violate the work rule or by showing

that white employees who engaged in similar acts were not

punished similarly (Order, R. 325). Mayberry v. Vought Aircraft

Co., 55 F.3d 1086 (Sth Cir. 1995). Despite the fact that Graves

established a prima facie case of discrimination pursuant to

McDonnell Douglas and Burdine, the district court erroneously

assumed that Mayberry was the only paradigm applicable in this

case and further erroneously determined that Vesuvius was

entitled to summary judgment because Graves could not establish

a prima facie case pursuant to Mayberry (Order, R. 332).

Assuming arguendo that Mayberry is the only paradigm for a

establishing prima facie case in this case, the summary judgment

evidence, as a whole, including Graves’ deposition testimony and

statements, omissions and contradictions in Vesuvius’ affidavits,

nonetheless is sufficient to raise a fact issue with respect to

whether or not Graves violated a work rule, and therefore is

10 Graves’ argument and authorities in his Response to

Vesuvius’ Motion for Summary Judgment is also incorporated

by reference and reasserted herein.

14

sufficient to withstand summary judgment in this case according to

Mayberry (at 1090).1!

3. Legitimate, non-discriminatory reason. Vesuvius claimed

in court that Graves was terminated for violating two rules: (1)

refusal to follow a supervisor’s directive and (2) falsification of

information on his time card. However, the affidavits submitted

by Vesuvius did not support the district court’s conclusion that

Vesuvius cited both of these reasons at the time he was

terminated.'? Graves’ deposition was clear and unambiguous that

11 The district court made at least three significant factual

determinations that were simply not supported by the summary

judgment evidence in this case. These factual errors, more likely

than not, contributed to the court’s erroneous conclusion that

- summary judgment should be granted in this case. Exhibit "A",

attached hereto identifies the three major factual errors. The

first error is most relevant to the issue of whether or not Graves’

raised a fact issue with respect to a prima facie case of

discrimination. The first error identified in Exhibit "A" is

also extremely important to Graves’ position that the justification

stated by Vesuvius (via Bell’s affidavit) for Graves’ termination

was actually fabricated after Graves was terminated.

12 Bell's Affidavit referenced only one reason for Graves’

discharge as of January 11, 1993, as follows:

“On Monday, January 11, 1993, James Johnson, Mark

Sullivan, and I met about Troy Graves, and we

collectively decided that Troy Graves had to be

terminated for violating a work rule which required him

to follow a supervisor’s directive. We then met with

Troy Graves to discuss his refusal to return to work

the previous Friday and the fact that he was being

terminated for his refusal to follow a supervisor’s

directive..."(R.061)

Bell's affidavit did not state that Graves was told on January 11th

that he was being discharged for "falsification of information.”

15

on January 11, 1993, the day he was terminated, he was only told

that he was being terminated for not putting in his “whole eight

hours", and that he told his supervisors that he did put in his

whole eight hours and they could verify that fact by looking at his

time card. (See testimony in Exhibit "A", Error 1.) Vesuvius also

submitted a termination form in support of its justification for

Graves termination, but the form was not submitted to Graves for ‘

his signature on the day he was terminated and the Exhibit (No. 6, \

referenced in Exhibit "A", Error 1) showed on its face that it was

amended on January 12, 1993, to add a charge of “falsification of

information". Ex. No. 6 was also suspect because two distinctly

different handwriting styles appeared in the "Comments" section of

the form.

Bell’s affidavit does allege that Graves told him (Bell), on

January 8, 1993, at 1:40 p.m. that he (Graves) already clocked out.

Bell’s affidavit does not state, that he, Sullivan, and Johnson

discovered, on January 8, 1993, that Graves had not punched out

at 1:40 p.m. but had instead punched out at 2:04 p.m. Specifically,

Bell’s affidavit stated that:

"After Graves left, I explained the incident to my

supervisor, Mark Sullivan. He and I then informed James

Johnson, Manufacturing Manager, and they reviewed the

situation. After reviewing what had happened and looking at

Graves’ time card, it was learned that Graves had not

punched out when I first ordered him back to work at 1:40

p.m., but that he actually punched out at 2:04 p.m.... (R.

061, emphasis added).

"At no time did Graves ask me for permission to

leave work nor did I ever give him permission to leave.

Graves did not tell me that he was going to clock out, but

iS Implicitly referring to Graves’ departure on Friday,

January 8, 1993, afternoon.

16 d

did tell me at 1:40 p.m. that he had already clocked out.”

(R. 061)

These paragraphs precede the paragraph in Bell’s affidavit that

described the meeting between Graves, Johnson, Sullivan, and Bell

on January 11th, when Graves was discharged. The sequencing of

the paragraphs in Bell’s affidavit implies (but does not state) that

Bell discovered that Graves actually clocked out at 2:04 p.m.

before, rather than after the meeting on January 11th. The

district court erroneously interpreted Bell’s affidavit to mean that

Bell, Sullivan, and Johnson had learned on January 8th that

"Graves had not clocked out when Bell first ordered him back to

work at 1:40 p.m. but had instead waited until 2:04 p.m. after Bell

had ordered him back to work several times" (Order, R. 331) and

that they had told Graves on January 11th, that he had been

charged with “falsification of information" (Order, R. 331), i.e

lying about clocking out at 1:40 p.m..

Graves’ deposition testimony relating to the January 11th

meeting is fully set forth in Exhibit "A" attached and clearly

contradicts any implications that might have formed the basis of

the district court’s decision in this case.

In summary, based on the summary judgment evidence

presented by Vesuvius (particularly Exhibit No. 6), a finder of fact

could and probably would easily conclude that the only charge

appearing on the Vesuvius Termination Form on January 11, 1993

was a charge of “disobeing [sic] an order." Such a charge might be

consistent with Graves’ testimony that he was accused of only one

thing on January 11, 1993, i.e. "not working a full eight hours" or

punching out early (ostensibly in violation of an order to return to

‘work or without permission). It is much more likely that Bell,

Sullivan, and Johnson did not learn that Graves had clocked out

at 2:04 p.m. until after the meeting. When they discovered that

Graves had not clocked out at 1:40 p.m. as Bell had probably told

them, they had to deal with the time card that showed that he had

clearly completed his eight-hour shift, so they added the charge of

17

"Falsification of Information" based on Bell’s prior statement that

Graves had told him that he clocked out at 1:40 p.m. Also, Bell’s

affidavit confirmed that the "falsification of information" charge

was based on Graves’ alleged statement to him that he (Graves)

had “already punched out" at 1:40 p.m.

Graves testified that he did talk to Bell about 1:30 p.m.,

that he knew that he had to stay at his station until he was

relieved by the next shift, that he did so, that he helped clean up

in his area and the casting area and then left the plant (R. 201,

1.22 - R. 205, 1.10).

Bell’s affidavit omitted significant relevant facts. Bell’s

affidavit does not account for the twenty-minute period between

1:40 p.m. (i.e., the time that Bell allegedly issued his original order

to Graves to return to work and help clean up the floor) and 2:04

p.m. (i.e., the time that Graves clocked out and left the building).

In other words, Bell does not state what he was doing or what

Graves was doing during that time. Therefore, the twenty-minute

gap, unaccounted for by Bell, also would have provided fodder for

cross-examination questions such as "Why did Troy Graves hang

around work from 1:40 p.m. until 2:04 p.m. if he was disobeying

an order to return to work at 1:40 p.m.?"

Bell’s affidavit expressly referenced only two instances

when he allegedly ordered Graves to return to work, one at

approximately 1:40 p.m. and one that was apparently after Graves

clocked out at 2:04 p.m., i.e. after Graves had completed more

than a full eight-hour day (R. 060). Bell claimed that he followed

Graves out of the plant and ordered him to return to work.

Bell’s affidavit did not state that Graves had not completed the

work he was told to do at 1:40 p.m. (R. 060) and did not state that

there was still work to be done after Graves actually clocked out

at or about 2:04 p.m. Bell’s affidavit also did not state that other

employees, whose shifts ended at 1:30 or 2:00 p.m., had not yet

left the plant and/or were still working and/or cleaning their work

areas. In other words, Bell’s affidavit does not justify that his

18

=a

alleged post-2:04 p.m. order was a "reasonable one", as required

by the Employee Handbook introduced as summary judgment

proof by Vesuvius, which states the misconduct that may lead to

immediate termination includes: ..."6. Failing to carry out any

reasonable order by a management representative, including ..."

(R. 076, emphasis added) On the other hand, the undisputed

summary judgment evidence, offered by Graves, was that he

cleaned up his station, helped clean up two piles of debris that

remained on the casting floor, left the "hopper" at the end of the

aisle on the casting floor, and that other employees had already

clocked out before he left and that the remainder clocked out

shortly thereafter (R. 204).

Surely, under the state of the record in this case there was

a fact issue as to whether or not the reason given by Vesuvius’ for

discharging Graves was true. If a Plaintiff educes evidence that

the reason proffered by the employer is false or "incredible", and

the jury disbelieves the employer, the Plaintiff's evidence that the

employer’s reason was false may in and of itself be sufficient to

support a jury’s finding of discrimination. Rhodes v. Guiberson

Oil Tools, 75 F.3d 989 (Sth Cir. 1996). In the instant case,

Graves’ evidence contradicting the credibility of Vesuvius’ charges

is buttressed with evidence that he repeatedly been disciplined in

the past for acts which he did not commit, and the overall pattern

of false accusations should clearly be sufficient to defeat Vesuvius’

Motion for Summary Judgment.

4. Pretext. The district court unduly emphasized the fact that

the two primary witnesses for Vesuvius in the summary judgment

proceedings, i.e. Bell and Middleton, were themselves African-

Americans (Order, R. 333). In so doing, the court disregarded

Graves’ undisputed summary judgment proof that Bell told Graves

that he was just following Mark Sullivan’s instruction when he

recommended discharging Graves and that either he (i.e. Bell) or

Graves was going to get fired (R. 187). Also, the summary

judgment evidence is undisputed that Bell was subsequently

demoted from his supervisory position to a lead man position after

19

Graves’ discharge and was replaced by a white male (R. 161-162,

R. 189). In this case, Bell’s credibility and/or state of mind (e.g.

the threats of termination by his white male supervisor, Mark

Sullivan) are clearly at issue. As noted in Graves’ Response to

Vesuvius’ Motion for Summary Judgment, prior to this Court’s

decision in St. Mary’s, the Fifth Circuit had admonished that

summary judgment may be inappropriate and should be utilized

with extreme caution when either credibility or state of mind are

at issue. See, e.g. Richardson v. Oldham, 12 F.3d 1373, 1379 (Sth

Cir. 1994)("Credibility determinations have no place in summary

judgment proceedings."); International Shortstop, Inc. v. Rally’s

Inc., 939 F.2d 1257, 1265 (Sth Cir. 1991)("When state of mind is

an essential element of the non-moving party’s claim, it is less

fashionable to grant summary judgment because a party’s state of

mind is inherently a question of fact which turns on credibility.").

Credibility is an issue which can be resolved only through trial and

the tool of cross-examination. International Shortstop, 939 F.2d at

1265-66. Determinations of intent are ill-suited to summary

judgment for two reasons. First, “it is particularly difficult for the

moving party to challenge the ’self-serving testimony’ of the

moving party without the benefit of trial accessories, namely cross-

examination." International Shortstop, 939 F.2d at 1265. Second,

“evidence probative of the moving party’s state of mind may be

more difficult to procure because it typically is held in the

exclusive possession of the moving party". Id. at 1266. These

axioms are particularly applicable in employment discrimination

cases, warranting the sparing use of summary judgment for

disposition. The employee bears a difficult burden in proving

discriminatory intent.

Intent can usually only be inferred from

circumstantial evidence. Today, employers, and their

supervisors, who might choose to discriminate on the basis

of race have become, as a result of twenty years of Title

VII litigation, too sophisticated to use racial epithets or to

leave glaring tracks if an employee is being discharged for

race-related reasons. Instead, the motive is veiled behind

20

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sialic iii |

apparently neutral remarks about business necessity, an

employee’s inadequate performance and the like.

Thus, a court faced with a disparate treatment Title VII

case such as this one must often look behind and beyond

an employer’s words and ask probing questions about the

practices of the workplace, seeking out and attempting to

resolve any inconsistencies in the manner of dealing with

the employee in question. We should not be satisfied with

anything less than a probing analysis of the facts if two

people of different [protected classes], similarly situated,

receive different treatment from their employer.

Barnes v. Yellow Freight Systems, Inc., 778 F.2d 1096, 1101 (Sth

Cir. 1985). See also Thornbrough v. Columbus and Greenville R.

Co., 760 F.2d 633, 640-41 (Sth Cir. 1985)("Often, motivation and

intent can only be proved through circumstantial evidence;

determinations regarding motivation and intent depend on

complicated inferences from the evidence and are therefore

peculiarly within the province of the factfinder."). Do these rules

still apply after St. Mary's?

Contrary to decisions rendered by other Circuits courts, both

before and after St. Mary’s, in cases substantially similar to this

case, the district court, and subsequently the Fifth Circuit

erroneously held that Graves did not present any evidence of

pretext, finding that Graves’ examples of prior disparate treatment,

such as his removal as lead man and replacement by Danny Holt,

a white man, and past disciplinary actions that were unjustified by

facts, were merely “extraneous examples" of “perceived” past

discrimination and not probative evidence of pretext (Order, R.

333). ~

21

Prior to St. Mary’s,“ the Fifth Circuit had recognized that

past acts evidencing disparate treatment of employees on the basis

of race, sex, age, etc. are legitimate evidence of pretext and are

sufficient to raise a fact issue that will defeat summary judgment.

See, e.g. Johnson v. Chapel Hill Independent School District, 853

F.2d 375 (Sth Cir. 1988), wherein hearsay testimony of disparate

treatment of another employee, admitted without objection, and a

Plaintiff's testimony that her white replacement was less qualified

than she, was cited as sufficient evidence to support a trial court’s

finding that the Plaintiff had been discriminated against on the

basis of her race (at p. 381). See also the Eighth Circuit cases

that have held that an employer’s past discriminatory policy and

practice "should normally be freely admitted at trial" because it

may well illustrate that the employer’s asserted reasons for

disparate treatment are a pretext for intentional discrimination",

which cases are cited as authority by the Fifth Circuit in Kelly v.

Boeing, cited supra, at p. 358-359.

In the instant case, Graves presented summary judgment

evidence that he had been the victim of disparate treatment on

prior occasions. One such example of disparate treatment arose

within the two months preceding Graves’ termination, when

Graves was “in line" to serve as lead man in the absence of his

regular lead man, Mike Garcia. Graves did serve in that position

for one day, but was subsequently removed and replaced by a

white man, Danny Holt, who had less seniority than Graves. In

evaluating the probative value of Graves’ evidence relating to this

particular incident, the district court erroneously stated the

summary judgment facts presented by Graves, and erroneously

And in one case decided after St. Mary’s, to-wit:

Kelly v. Boeing Petroleum Services, Inc., 61 F.3rd 350 (Sth Cir.

1995), wherein the Court stated "In discrimination cases...such

background evidence may be critical for the jury’s assessment of

whether a given employer was more likely than not to have

acted from an unlawful motive" (at p. 360).

22

concluded that Graves’ evidence was insufficient to raise an issue

of discrimination because Graves relied "solely on seniority to

support his position that he was qualified for the position of lead

man." In addition to the evidence relating to Graves’ greater

seniority, Graves’ undisputed summary judgment evidence was (1)

that he had actually served as lead man for one day and (2) that,

when he was removed, by directive of Mark Sullivan, a white man,

Graves was assigned to train his white replacement to perform the

job of lead man. (See Factual Misstatement Example No. 2 in

Exhibit "A", attached, for complete details of Graves’ deposition.)

If one analyzes Graves’ evidence relating to this "lead man"

incident, the evidence clearly meets the McDonnell Douglas and

Burdine requirements for proving a prima facie case of

discrimination against Graves in the past. Graves’ testimony

established that he was a member of a protected class, that he was

qualified for the position (by actual service as lead man and by the

fact that he had to train his replacement), that he was removed

from the position, and that he was replaced by a white man.

Vesuvius did not present any summary judgment evidence

rebutting Graves’ testimony. Absent some statement of a

legitimate non-discriminatory reason by a Defendant, the

presumption of discrimination, created by a Plaintiff's prima facie

case, is clearly sufficient to raise a fact issue as to whether or not

disparate treatment occurred.

Other examples cited by Graves as evidence of past

discrimination against him also met the legal requirements of

proving a prima facie case of discrimination. For example, in July

of 1992, six months prior to Graves’ termination, Graves was cited

for alleged "disobedience" for not showing up for work on a

Saturday. Graves testified that he was not scheduled to work on

the Saturday in question, that Kent Leech, a white employee, was

scheduled to work, and that Kent Leech did not show up for work

and was not cited for failing to appear; Vesuvius did not offer any

rebuttal to Graves’ testimony. Under Mayberry, cited supra,

Graves’ evidence is sufficient to establish a prima facie case of

discrimination in this incident because the evidence establishes

23

without dispute that Graves did not commit the work rule

violation as charged; and therefore Graves’ testimony is sufficient

to establish a presumption of racial discrimination in the case of

the July, 1992, disciplinary action. (R. 128-135) By way of

further example, in January of 1992, twelve months prior to

Graves’ termination, Graves was disciplined for “carelessness” for

allegedly pouring molds improperly. Graves testified that he did

not pour the molds and played no role in the production of the

defective items except to deliver the funnels to the white

employees that poured the molds. Again, Vesuvius did not offer

any evidence disputing Graves’ testimony. Again, under Mayberry,

cited supra, Graves’ evidence would be sufficient to establish a

prima facie case of discrimination in this incident (involving an

allegation of a work rule violation) because the evidence

establishes without dispute that Graves did not commit the work

rule violation as charged and therefore Graves’ testimony is

sufficient to establish a presumption of racial discrimination in

connection with the January, 1992, disciplinary action. (R. 118-

128; 195-196) By way of further example, Graves was disciplined

for “fighting” in 1990. Graves testified that he did not fight, that

he did not start the fight, that he did nothing to incite a white co-

worker to kick him (i.e. Graves) and that the co-worker admitted

to Mr. Sullivan that it was his fault and that Graves had not done

anything wrong, but that Sullivan, a white male, would not believe

that Graves didn’t precipitate the kick. Again, Vesuvius did not

offer any evidence disputing Graves’ summary judgment evidence.

Under Mayberry, cited supra, Graves’ evidence again is sufficient

to establish a prima facie case of discrimination in this incident

(involving an allegation of a work rule violation) because the

evidence establishes without dispute that Graves did not commit

the violation. Therefore, Graves’ testimony is sufficient to

establish a presumption of racial discrimination in connection with

the 1990 disciplinary action. (R. 114-118; 199-201)

Graves also presented evidence that he was denied benefits

that were freely granted to white employees. Graves testified that

the week prior to his termination on January 11, 1993, another

24

Laci innit Spade,

employee, Ben White (who was white) was allowed to leave work

early because his wife was sick. Graves, who also requested to

leave because his wife was sick during the same week was not

allowed to leave early. The district court incorrectly stated the

facts relating to Graves’ request to leave early during the week

preceding his termination, concluding that Graves’ only request to

leave early was the request precipitated by the need to "fix a flat".

(See Court’s Order, R. 334 and Factual Misstatement No. 3 in

Exhibit "A" attached for complete detail.) In fact, the early leave

requests by White and Graves were exactly the same; however, the

white employee’s request was granted and Graves’ request was

denied. This testimony by Graves is also probative evidence of

disparate treatment, raising a prima facie presumption of

discrimination on the basis of race. Again, Graves’ testimony was

not rebutted by Vesuvius’ summary judgment evidence.

The accumulation of these examples of previous disparate

treatment in the terms and conditions of Graves’ employment

clearly is sufficient to raise a fact issue as to whether race

discrimination was a “motivating factor" in the final decision to

terminate Graves’ employment.

WHEREFORE, PREMISES CONSIDERED, Petitioner

prays that this Honorable Court grant Petitioner’s Petition for

Writ of Certiorari, review the decision of the Fifth Circuit Court

of Appeals, rendered on May 5, 1996, reverse the Judgment of the

Fifth Circuit Court of Appeals, and remand this case to District

Court for trial on the merits.

Respectfully submitted,

McNAMARA & McNAMARA

$01 Franklin Avenue, Suite 500

Waco, Texas 76701

(254) 754-5456

(254) 753-0719 - facsimile

ohn B. McNamara, Jr. A)

Attorney for Petitioner

1.

EXHIBIT "A"

"INCORRECT FACTUAL STATEMENTS

IN COURT’S OPINION"

COURT'S OPINION:

"On January 11, 1993, Bell, Johnson and Sullivan met with

- Graves and informed him that he was being terminated for

violating a work rule which required him to follow a

supervisor’s directive and for falsification of information on

his time card." (Opinion, p. 13, emphasis added)

Actual Evidence:

(a) Bell Affidavit:

"We then met with Troy Graves to discuss his refusal to

return to work the previous Friday and the fact that he was

being terminated for his refusal to follow a supervisor's

directive." (emphasis added)

(b) Graves Deposition: p. 101-103

"Q. ...what time did you go in on January 11, 1993?

A. About 5:00.

Q. And what happened after you went to work?

A. I was working on the casting floor and they told me

they -- Calvin came to me and said they’re -

having a meeting, they need you in a meeting.

About how long was that after you came to work at

5:00 a.m.?

Maybe about an hour, maybe about an hour.

Okay. And who was in that meeting that you went

to?

It was Calvin Bell, Mark Sullivan and Jim Johnson.

What were you told during that meeting?

Or OF OO

27

That I was being terminated for not putting in my

whole eight hours. (emphasis added)

On what day were they saying you had to put in the

whole eight hours?

That Friday, or let’s say January the 8th, if it was

that Friday.

Okay. Tell me what you recall Mr. Bell saying

during that meeting.

During the meeting, Mr. -- Calvin didn’t say

anything, he just told me it was a meeting.

And he --

Mark Sullivan and Jim Johnson was doing the

meeting.

So Calvin went to the meeting but he didn’t say

anything. Is that right?

Right.

And what did Mark Sullivan say during the

meeting?

He said that he had my files right here. He had

like a folder and he didn’t show me no documents

or anything and he said that -- that I had clocked

out early and that was my intention, and he said

that I clocked out early and they was going to fire me

-- determinate me or fire me for clocking out early,

that I didn’t put in my eight hours. (emphasis

added)

Do you recall Mr. Sullivan saying anything else

during the meeting?

And he said that, you know, he had, you know,

supposed to have been, I guess -- you know, a

witness at that time, you know.

Do you recall Mr. Sullivan saying anything else

during that meeting? |

That was it.

What --

He told me to leave at that time and I got up and

left.

Teor 8. Fe Ft Foe FS

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rOPr oO

28

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()

And departed the plant?

He told me to leave at this time, yes.

What did Mr. Johnson say during the meeting on

the morning of January 11, 1993?

They both agreed that was the reason that they was

determinated me, were firing me for, for leaving work

early, didn’t put in my full eight hours. (emphasis

added)

On the previous Friday?

On that Friday.

Do you recall anything else that Mr. Johnson said

during that meeting?

Not at this time, no.

What did you say during the meeting?

I told them to check the time card, theyll see what

time that I clocked out. (emphasis added)

. Do you recall saying anything else?

That’s it."

Graves’ Deposition: p. 182 - Re: Exhibit 6

(termination report)

"Q

OPOP

>

... I want to show you what’s been marked as

Graves Exhibit 6. Now, this document right here,

did you ever see that during that discussion that

you had with Mr. Sullivan and Mr. Bell and Mr.

Johnson?

No.

You never signed it?

No.

And did they ever prepare a form or do anything

or have you sign anything that was like in Exhibit 1

here?

No. I didn’t sign anything in that -- on that

morning.

29

(d) Note Re: Exhibit 6

Exhibit 6 shows on its face that it was amended on January

12, 1993 (the day after meeting with Graves) to include a

charge of “Falsification of Information". Also the statement

"He also lied about having punched out his time card”

appears to have been added to the form (under

"Additional Comments") since the handwriting is clearly

different from the handwriting of other statements

included in the “Additional Comments" section of the

form.

2. COURT’S OPINION:

“Plaintiff also complains that the decision to not appoint

him to a lead man position was discriminatory; however, he

fails to provide the Court with any summary judgment proof

of discrimination other than the fact that he claims the

position was given to a white man with less seniority."

(Opinion, p. 16, emphasis added)

Actual Evidence:

(a) Graves Deposition: Beginning on p. 136, line 1

"Q. _ ... I was denied this because they stated that they

didn’t want me to be the lead man over this crew."

That’s an accurate statement of your position?

I know they didn’t let me be the lead man over the

crew --

Yeah.

-- that would be almost accurate, yes.

Who told you they didn’t want you to be the lead

man over this crew?

Well, the job was took from me when Mark

Sullivan didn’t let me be the lead man.

When did that occur?

o. +: Ree. >

30

OPOP

>

Back in the fall of "92. Remember when I --

That’s when they put Danny Holt there?

Yes.

Okay. What I’m trying to find out is did anyone

specifically say to you, "We don’t want you to be

the lead man," or words to that effect?

Well, when they gave it -- no, they didn’t say those

exact words, but they didn’t let me be the lead

man, period.

(Resuming on page 176, line 3)

Q.

OP

Did you ever talk to Mr. Sullivan about -- Well, let

me ask you this: did you ever serve as the lead

man when Mike Garcia was either on vacation or

on decision-making leave or whatever he was doing,

did you ever serve as the lead man?

Yes, for one day.

And who -- who told you the next day or how were

you told -- When you came in the next day, did you

expect to be the lead man again?

Yes. But they had a meeting -- Mark Sullivan held

a meeting that morning and told me that I had to

train Danny Holt for that position and Danny was

going to be the lead men -- lead man.

And I trained him and I taught him, I trained him.

(emphasis added)

Did you express your -- any dissatisfaction with that

decision to Mr. Sullivan?

Yes, at the time, I told him that wasn’t right, I had

more seniority thar he did and that they told me

that whenever Mike Garcia was absent or Calvin be

absent, that Mike Garcia would go to Calvin’s

position and I would be the lead man. And it was

taken away from me, they didn’t let me be the lead

man.

31

Q. And how long did that occur, how long was it

before you were terminated that that occurred, if

you recall?

A. It wasn’t months, wasn’t’ even two months. Two --

a couple of months, put it like that.

COURT'S OPINION:

"Plaintiff claims that Brian West, another Vesuvius

employee, left work early, but Plaintiff was not allowed to

do so in this case. Bell Depo. (sic) at p. 74. The

situations, however were clearly not substantially similar;

West was allegedly allowed to leave early because his wife was

sick and Plaintiff requested to leave early because he wanted

to fix a flat." (Opinion, p. 15-16, emphasis added)

Actual Evidence:

(a) Graves Deposition: Beginning on p. 74, line 4

"Q. _ ... Okay, before we took the break you were telling

me about an incident involving Ben West. Would

you go ahead and tell me what involving Ben West

you think amounted to racial discrimination?

A. Yes. On Ben West, he was getting off at 3:30, he

was going -- leaving work early, where we had to

work -- where I had to work, you know, longer

terms, work back on the casting floor, and we were

supposed to go back to the casting floor and maybe

help out on the casting floor to get them out

earlier for due to the production.

And Mr. West was white?

Yes.

And you believe he got to leave early because he

was white and you had to stay later because you

were black?

A. Yes.

Or”

32

Q. Did that instance of Mr. White -- Mr. West getting

to leave early happen on more than one occasion?

A. Yes.

Q. On about how many occasions?

A. During that week, he was leaving all during -- all

during that week early. So it’s been more than

over four times.

Q. Did it happen just during one week?

A. It was -- happened before, you know. You know,

sometimes in that week or before that week,

sometimes he would leave early, wasn’t working the

-- the overtime.

Q. Do you have any idea why he was leaving early?

A. He had stated that his wife was sick. Due to that,

that’s the only reason I know, other than that.

Q. Do you have any reason to believe he was not

telling the truth?

(Resuming on p. 76, line 19)

Q. Was there ever an instance when your wife was sick

and you asked to leave early and they told you you

couldn’t leave?

(Brief pause.)

A. Can I say this? Yes, I -- I asked to leave early before

I was determinated that week or my wife also sick

that same -- during that week when I got

determinated. (emphasis added)

(Resuming on p. 77, line 6)

Who told you you couldn’t leave?

Calvin Bell.

Did you go ahead and leave anyway?

No.

POP

33