Petition for Writ of Certiorari — Denny's Inc. v. Thomas

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

(ey = oe

(1) 97 646 OCI - 6 1997

No.

—~OFFICE—OF-THE-CLERK _

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

DENNY’S, INC.,

Petitioner,

RONALD K. THOMAS,

Respondent.

ne ee

we ew a Ww

Baecase

Simin

Str

—~ Sa

Ma Perera ee

wee

On Petition for Writ of Certiorari

to the United States Court of Appeals

For the 7 “th Circuit

SI rn

Salas OP ee ee

RE a -

i Pee Oe

- Scene

pet

eo ed

ae yee:

ee ew

. we ee Cy

0 ae

PETITION FOR WRIT OF CERTIORARI

SO ann

- —

J. Patrick Cremin

Counsel of Record

Frank M. Hagedorn

Judith A. Colbert

HALL, ESTILL, HARDWICK,

GABLE, GOLDEN & NELSON, P.C.

320 South Boston Avenue, Suite 400

Tulsa, Oklahoma 74103-3708

(918) 594-0400

Counsel for Petitioner

LEO IO NON EE OS

SPLICE II IIS

x a

ve Fewer ey see S

SOG Nene es vie

‘at Pt ans

sa ~ 7 ~~ Yr:

BoE Ee: peaed as ac

Se wr’

Pecan

)

‘

ate

ate!

‘

+t»

QUESTIONS PRESENTED FOR REVIEW

3 Whether, during the prima facie stage of a failure to

promote case, Plaintiff does not have to demonstrate that he at least

had the same objective qualifications for the job as the person hired.

2. Whether a mixed motive instruction must be given

in a failure to promote case when requested by the Plaintiff, even

though the Defendant did not request the instruction, the only

defense offered for not promoting Plaintiff was his lack of

qualifications, and no direct evidence was presented that the

decisionmakers placed substantial negative reliance on an

illegitimate criterion.

PARTIES TO THE PROCEEDINGS

Respondent, Ronald K. Thomas (“Thomas”) instituted this

action in the United States District Court for the Northern District of

Oklahoma against Petitioner, Denny’s, Inc. (“Denny’s”).

The parent company of Denny’s is Flagstar Companies, Inc.

There are no nonwholly owned subsidiaries.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .............-5. i

PARTIES TO THE PROCEEDINGS ...........cccsceness ii

DO CT RIIIEE SE oka bracts eee seca Eeeseweeenes i

eyo G2 a aye has.» Ieee er nae anne ree Vv

REFERENCE TO OPINIONS RENDERED BY COURTS BELOW

SRE Rg hd gS is iio, <a hone see ROO Porn bP arcr ah ae ae a ae l

FURISDICTIONAL STATEMENT 2... ccsccccccccevcsvecs l

CONSTITUTIONAL, STATUTORY AND

PIRES CRT PURI VIGIOING nics cect cece ees ecreeees |

ee EE Se OCA ok sc cebu ee eseaccevnswesens 2

I ig ie aids bla wwabanedeevewanns 4

REASONS FOR GRANTING REVIEW ..............55- 1]

I, THE COURT OF APPEALS’ DECISION IS IN

CONFLICT WITH DECISIONS FROM THIS

COURT REGARDING PLAINTIFF’S BURDEN

OF PROOF AT THE PRIMA FACIE STAGE OF A

FAILURE TO PROMOTE CASE. ................ 1]

l. The Tenth Circuit’s decision conflicts with

decisions from this Court and other Tenth

GI, onli sve besa tach ei ass 13

2. The Tenth Circuit’s decision provides

preferential treatment to applicants in the

ER acc eee ba wil v eee eas os 15

3. The Tenth Circuit misapplied Kenworthy to

US Sus ces den db ies sheen wees 17

4. The Kenworthy language requested by

Thomas was redundant. ......---+-++e505 18

I, THE COURT OF APPEALS’ DECISION IS IN

CONFLICT WITH DECISIONS OF THIS COURT

AND OTHER CIRCUIT COURTS REGARDING

WHEN A MIXED MOTIVE INSTRUCTION

MUST BE GIVEN IN ACASE. ......--- 0508+ 00) 19

Ill. THE COURT OF APPEALS’ DECISION HAS SO

FAR DEPARTED FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEEDING

AS TO CALL FOR AN EXERCISE OF THIS

COURT’S POWER OF SUPERVISION .......-->: 25

OOIOT ISIN og cc cena saab ie vaeewer teense enews 29

TABLE OF AUTHORITIES

Cases Page

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

CREE Le SOD ak oa oa 0 CORR Eis he ke Aa aOO 13,15

Considine v. Newspaper Agency Corp., 43 F.3d 1349

(eC: WR 6 so Ie as 24

EEQC v. WilTel. Inc,, 81 F.3d 1508 (10th Cir. 1996) . 13, 14,22

FDIC v. Mijalis, 15 F.3d 1314 (Sth Cir. 1994) ............. 25

Fuller v. Phipps, 67 F.3d 1137 (4th Cir. 1995) .......... 20, 24

Hargett v. Nat’| Westminster Bank, 78 F.3d 836 (2d Cir. 1996),

cert. denied, 519U.S.__, 117 S. Ct. 84,

556 E ik kA) CNG acs hs scp ewe 24

Hinds v. General Motors Corp., 988 F.2d 1039 (10th Cir. 1993) 29

Hook v. Emst & Young, 28 F.3d 366 (3d Cir. 1994) ........ 24

Hutson v. McDonnell Douglas Corp,, 63 F.3d 771

COC AG SOROS aie ick oo 4 ees eA neha weeuss 24

Kenworthy v. Conoco, Inc,, 979 F.2d 1462

CT CO BA is ev kes be eee 12, 13, 17, 18, 29

Langley v, Jackson State Univ,, 14 F.3d 1070 (Sth Cir. 1994) . 23

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

CRD ESP eo ks 64k KeGa SPEER PERO a ees io, 4,20, 44s eee

McEwen y, City of Norman, Okla,, 926 F.2d 1539 (10th Cir. 1991)

Ay ey er Pee. PPE ed Re ee eyrante rr eet 29

Mooney v. Aramco Servs, Co., 54 F.3d 1207 (Sth Cir. 1995) 23, 24

Ostrowski v. Atlantic Mut. Ins. Co,, 968 F.2d 171

5k Co NEE go oo oe a eck cha 19

Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775,

SOE L,. Ok Be ee CN ae ches kas de Khe eee 19, 20, 24 30

Texas Dep’t of Community Affairs v, Burdine, 450 U.S. 248

CRORES vos ceccawcn eerie oi 13, 15,17

Unit Drilling Co, v, Enron Oil & Gas Co,, 108 F.3d 1186

CLO COE, SOIR 6 6s eek oe Dec wise 29

Walden v, Georgia-Pacific Corp,, 1997 WL 584552

DEC. Ok FOTE oie bleh eee ence siaeeineeer 20, 24

Statutes and Regulations

MUAC SIME. lak eee

USO PIM i ese 3,9

SURE A eo carrie 3

QUuUSC. C1 ee ee

¢USC. 5 MMI. ooh a ee 2

BUuUSC (20S he eee 2

REFERENCE TO OPINIONS

RENDERED BY COURTS BELOW

The opinion of the United States Court of Appeals for the

Tenth Circuit is reported at 111 F.3d 1506 (10th Cir. 1997). A copy

of that opinion is reprinted at Pages A-3 through A-18 of the

Appendix to this petition. It reverses the judgments and findings of

the United States District Court for the Northern District of

Oklahoma in Case No. 91-C-715-C in favor of Denny’s. Copies of

the District Court’s judgments and findings are reprinted at eight A-

19 to A-29 of the Appendix to this petition.

JURISDICTIONAL STATEMENT

The judgment of the United States Court of Appeals for the

Tenth Circuit was entered on April 25, 1997. On May 24, 1997,

Denny’s timely filed a Petition for Rehearing. The Tenth Circuit

entered an Order denying the Petition for Rehearing on September 2,

997, which is reprinted at Pages A-53 and A-54 of the Appendix to

this petition. This Petition for Writ of Certiorari is filed within thirty

days of that date. The jurisdiction of this Court to review the

judgment on Petition for Writ of Certiorari rests upon 28 U.S.C. §

1254(1).

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS

42 U.S.C. § 1981. Equal rights under the law

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and to the full and equal

benefit of all laws and proceedings for the security of persons and

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

punishment, pains, penalties, taxes, licenses, and exactions of every

kind, and to no other.

42 U.S.C. § 198la. Damages in cases of intentional

discrimination in employment

(a) Right of recovery

(1) Civil rights

In an action brought by a complaining party under section

706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5) [42

U.S.C.A. §§ 2000e-5 or 2000e- 16] against a respondent who engaged

in unlawful intentional discrimination (not an employment practice

that is unlawful because of its disparate impact) prohibited under

section 703, 704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3)

[42 U.S.C.A. §§ 2000e-2, 2000e-3, or 2000e- 16), and provided that

the complaining party cannot recover under section 198] of this title,

the complaining party may recover compensatory and punitive

damages as allowed in subsection (b) of this section, in addition to

any relief authorized by section 706(g) of the Civil Rights Act of

1964 [42 U.S.C.A. § 2000e-5(g)], from the respondent.

42 U.S.C. § 2000e-2. Unlawful employment practices

(a) Employer practices

It shall be an unlawful employment practice for an employer-

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

individual, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's race, color, religion, sex,

or national origin; or

42 U.S.C. § 2000e-3. Other unlawful employment

practices

(a) Discrimination for making charges, testifying, assisting,

| or participating in enforcement proceedings

It shall be unlawful employment practice for an employer to

discriminate against any of his employees or applicants for

employment, for an employment agency, or joint labor-management

committee controlling apprenticeship or other training or retraining,

including on-the-job training programs, to discriminate against any

individual, or for a labor organization to discriminate against any

member thereof or applicant for membership, because he has

opposed any practice made an unlawful employment practice by this

subchapter, or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing

under this subchapter.

STATEMENT OF THE CASE

Respondent ("Thomas") filed this action against Petitioner

("Denny's") seeking damages for racial discrimination and retaliation

Sa Ml a Nr MT oN ee

in violation of the Civil Rights Act, 42 U.S.C. § 1981 and 42 U.S.C.

§ 1981(a), and pursuant to Title VII of the Civil Rights Act, 42 U.S.C.

§§ 2000e, ef seg. Thomas alleged that Denny's failed to promote him

to a position of manager and/or assistant manager because of his race

and/or because Thomas had complained of racial discrimination to the

EEOC. Thomas alleged that such discriminatory and retaliatory

failures to promote commenced in 1984 and continued through the

time Thomas left Denny's in early 1993. Thomas also alleged claims

for intentional infliction of emotional distress and constructive

discharge. At the conclusion of Thomas’ case in chief, Denny's

moved for judgment as a matter of law on all of Thomas’ claims. The

trial court granted the motion as to Thomas’ claims for intentional

infliction of emotional distress and constructive discharge.

After conclusion of the trial, the jury rendered a unanimous

verdict in favor of Denny's on Thomas' claims for failure to promote

based on race discrimination (Appendix F) and retaliation by failure

to promote (Appendix G). On both claims, the jury concluded that

Thomas had failed to establish a prima facie case. The district court

also found in favor of Denny's on Thomas’ non-jury claims of failure

to promote based on race discrimination and retaliation for filing a

charge of race discrimination in violation of the Civil Rights Act of

1964, U.S.C. §§ 2000e, ef seg., to the extent that they were not

disposed of by the jury’s verdict on the Section 1981 claims.

(Appendix B and C).

On appeal, the Tenth Circuit ruled that two of the trial

court’s jury instructions were erroneous. Petitioner requests that this

Court review the published opinion of the Tenth Circuit Court of

Appeals because the decision raises two issues of error which are in

conflict with decisions of this Court and other circuit courts.

Specifically, the Tenth Circuit ruled that in a failure to promote case,

the plaintiff did not have to show during the prima facie stage of his

case that he at least had the same objective qualifications for the job

as the person hired. The Tenth Circuit also ruled that a trial court

must give a mixed motive instruction when requested by the plaintiff,

even though no such instruction was requested by Denny’s, the only

defense offered for not promoting Thomas into management was his

lack of qualifications, and no direct evidence was presented that the

decisionmakers placed substantial negative reliance on an

illegitimate criterion.

SUMMARY OF FACTS

From 1978 through February 1993, Thomas, an African

American, was employed by Denny's as a cook in Tulsa, Oklahoma.

Thomas was liked by his co-workers and no negative comments were

made about Thomas. During his employment with Denny's, Thomas

also worked part-time as a cook for his father who owns "The Burger,"

which sometimes caused a scheduling conflict with Denny's. The

territorial district of Denny's which is referred to as the Tulsa district

included stores in Missouri, i.e., Joplin and Springfield. Denny's four

Tulsa restaurants are at the fol lowing locations: Unit #247 located on

Sheridan Avenue and 1-244, Unit #1310 located on 71st Street and

Memorial Avenue, Unit #196 located on 48th Street and Yale Avenue,

and Unit #482 located on | Ith Street and Garnett Road. Thomas was

assigned to work at Unit #247 and later transferred to Unit #1310.

Thomas occasionally worked at Units #196 and #482. During 1980

through 1981, Denny's had two African American managers on its

Tulsa management staff. Cajetan Dikeh was Assistant Manager at

Unit #247 and Unit #482. Kenneth Cooper was a General Manager

at Unit #196.

For every district, the District Leader (also known as the

District Manager) is the only person authorized to make personnel

decisions regarding hiring, promotions and transfers within the

district. General Managers, Unit Managers, Assistant Managers, Unit

Aides (a/k/a Service Coordinators) and Managers-in-Training do not

have any authority to make such personnel decisions. However, when

the District Leader asked for candidates, the General Manager of a

restaurant can only recommend to the District Leader that a unit

employee be considered as a potential candidate for management.

During 1978 through 1985, Denny's Oklahoma restaurants

were included in Region 10, with the operations office located in

Kansas City. During 1985, Denny's reorganized its regional offices

and transferred the Oklahoma district to Region 11, with the

operations office located in Denver, Colorado. Region 11 utilized the

Preparatory Management Program (“PMP”) for the purpose of helping

to assist unit employees make the transition into management. The

PMP is a self-initiative program with hypothetical problems that a

candidate completes on his own.

In September 1983, Michael Kearney ( "Kearney") was

transferred to Tulsa as the District Leader and met Thomas within his

first week in Tulsa. Kearney discussed Thomas with Joe M. Smith

("Smith"), who transferred to Unit #247 as General Manager in

September, 1984. Smith told Kearney that Thomas was interested in

getting into management. Thomas testified that he did not believe he

was discriminated against because of race in 1984. In March 1985,

Smith was present during Thomas’ interview with Kearney, which by

Smith's observation, did not go well, i.e., Thomas avoided any eye

contact with Kearney, and Thomas' answers were incomplete and

indicated his lack of scope, comprehension and insight into a

manager's responsibilities. As a result of the interview, Kearney

formed the opinion that Thomas did not have much understanding

about the task of a manager and the challenges of the job. Kearney

decided not to put Thomas into management. Collectively, the

management team determined that it would be to Thomas' benefit and

development to participate in the PMP. On or about September 17,

1985, a PMP packet was sent to the store for Thomas. Thomas

testified that he received it on November 13, 1985. Thomas admitted

he did not understand the PMP packet, and needed help to complete

the assignments.

Richard Clemons ("Clemons"), Assistant Manager at Unit

#247, was asked to work with Thomas on completing the PMP packet.

Clemons set a goal to have Thomas complete the PMP by April 1986.

Clemons explained to Thomas that it was Thomas' responsibility to

take the initiative to start working on the materials in the packet and

that success in the self-initiative PMP was entirely up to Thomas.

Clemons set up meetings to go over the progress Thomas was making

in the program but Thomas failed to attend some of the meetings.

Denny’s operates 24 hours a day, seven days a week. Some meetings

were scheduled for early in the morning as a result of their work

schedules. Kearney followed Thomas' progress with the PMP through

conversations with Smith and Clemons. Thomas failed to complete

the requirements of the program and failed to start assignments or

complete case studies. Because of Thomas' lack of initiative, interest

and failure to start or complete specific assignments and goals set for

him, the management team decided that Thomas would no longer

participate in the PMP until he demonstrated a sincere commitment to

participate in and complete the PMP. Thomas never made this

commitment and he never completed the PMP. In fact, Thomas

conceded at trial that he had the PMP packet in his possession (at

home) from 1985 through 1993 but never completed the program. A

copy of Thomas’ incomplete packet appears at Pages A-121 to A-163

of the Appendix.

In 1986, the only manager hired by Kearney while he was a

District Leader in Tulsa was Chauncy Tipton, an African American

hired from outside the company. Tipton was chosen over 10 to 12

other candidates. Alonzo Batson and Danny Jackson were two other

African American managers who worked in Tulsa during Thomas’

employment with Denny's.

On September 25, 1986, Thomas filed a discrimination

complaint with the Oklahoma Human Rights Commission ( "OHRC")

alleging failure to promote based on his race, because Gladys Harris

was assigned to the position of Unit Aide rather than Thomas.

Thomas never complained of any discrimination prior to that time.

The Unit Aide position is not a management position, but a position

held by a trusted employee used to watch the restaurant when the

manager is not present. There is no selection process for the Unit

Aide position and the General Manager selects the employee for this

position. The Unit Aide basically "baby-sits" the restaurant and has

no authority to make any decisions. During 1985 through 1986,

Thomas never told any of his managers that he was interested in

becoming a Unit Aide. Thomas testified that he first became aware of

the Unit Aide position in June 1986 when Gladys Harris, a waitress at

Unit #247, was assigned Unit Aide responsibilities rather than

Thomas. However, Harris was also a certified trainer and had been

active in training and coaching new and existing employees.

Nevertheless, in February 1987, Thomas got the opportunity to

perform Unit Aide duties.

Deborah Reynolds ( "Reynolds") was transferred to Tulsa as

District Leader in 1986. After learning of Thomas' interest in a

management position, Reynolds interviewed Thomas in

December 1986. After interviewing Thomas, Reynolds, like Kearney

and Smith, concluded that Thomas did not have an understanding of

how to drive sales or develop employees. His communication skills

were weak, he had a hard time communicating his thoughts, he had

little knowledge of the restaurant industry and he lacked the

business knowledge to be a manager at that time. For example,

Thomas was unable to even describe to Reynolds the meaning of

“profit.”

Reynolds asked Ken Agorichas (“Agorichas”), the Human

Resources Manager, to interview Thomas to ensure she was not

"missing something." The purpose of the interview was to assess

whether Thomas would be a candidate for the management training

program. Agorichas concluded that Thomas had not demonstrated the

skills and knowledge to be placed in the management program.

Reynolds sent Thomas a memo in August 1987, listing suggestions to

help him pursue a management position. She also suggested that he

enroll in a college business course, but he did not. Reynolds discussed

Thomas with Jamie Cullinan ("Cullinan"), another General Manager,

and asked Cullinan to work with Thomas to develop his interviewing

skills. Thomas failed to make all the appointments and failed to do

the work. Thomas was frustrated because he could not answer the

proposed questions. He did not communicate well, mumbled and

lacked knowledge of the restaurant industry. After working with

Thomas over a seven-month period, Cullinan determined that Thomas

had made little improvement and needed to continue to develop his

skills. In fact, Cullinan testified that on a scale of | to 10, Thomas had

only progressed to a 3. Reynolds, Agorichas and Cullinan discussed

Thomas and concluded that Thomas needed additional training.

Reynolds decided Thomas was not qualified to be promoted to the

management program at that time. Reynolds later promoted Diana

Newhouse, a college graduate who completed the unit promotable

program packet.

In 1987, Irene Johnson (“Johnson”), former General Manager

over Unit #482, used Thomas on two occasions (two shifts) as a Unit

Aide. Reynolds asked Johnson and Chauncy Tipton, an African

American manager, to interview Thomas to assess his strengths and

weaknesses. Johnson concluded that Thomas needed to find out more

about management. He was unsure of himself in the administrative

department due to his lack of knowledge. Johnson suggested that

Thomas enroll in college business courses to overcome his weaknesses

and get additional training by doing Unit Aide work in order to get

into management. However, Thomas did not enroll in any courses.

Other than this contact with Thomas, Johnson was never in an official

position to recommend Thomas for management; however, she would

bring up Thomas’ name for consideration.

Johnson conceded that she liked Thomas, that he confided in

her, and he was one of her favorite employees. He never told her that

he felt he was being discriminated against because of his race. She

never heard anyone say anything negative or derogatory about

Thomas. She spent extra time with her favorite employees outside of

work and was counseled for getting too close to her subordinates and

letting it affect her decision-making. Johnson was never in a position

to promote anyone. She admitted that she enrolled in college courses

to help her understand management. She conceded at trial that she did

not know other members of management had tried to work with

Thomas to help him get into management. Johnson further testified

that Thomas' race was not an issue with Denny's.

During May 1988, Reynolds promoted Shoiab Ahmed

(“Ahmed”) into the management program. Ahmed was a unit

employee who had enrolled in college courses to develop a better

understanding of management skills. He previously completed the

UPP. On August 29, 1988 Reynolds hired Danny Jackson

(“Jackson”), an African American.

Herbert Rapier (“Rapier”) transferred to Tulsa in 1988 as the

new District Leader. After completing the management program,

Jackson was promoted to Assistant Manager by Rapier and transferred

to Unit #247. Upon learning of Thomas' interest in management,

Rapier met with Thomas to consider Thomas' qualifications for

management and to put him into the unit promotable program. Rapier

advised Thomas of what was expected of him to be considered for a

Promotion into management. Rapier transferred Thomas to Unit

#1310 to participate in the Model Unit program, which was the "role

model" for all other restaurants. Thomas became the “training cook"

for the Model Unit. Additionally, Rapier gave Thomas a UPP packet

as well as a list of goals and objectives to complete.

In 1988, Masood Kasim ("Kasim"), Assistant Manager at Unit

#1310, was assigned to work with Thomas as his Supporting manager.

Kasim did not know Thomas’ educational level and he did not have

any hiring authority. Thomas took no action on the goals and

objectives given to him by his managers, and he showed little

initiative, if any, in completing the UPP packet. Rapier did not

promote Thomas due to his lack of initiative and failure to complete

the goals and objectives given to him. During 1989, John Lynch

(“Lynch”) was hired as the General Manager for Unit #13] 0, but he

did not have any authority to promote unit employees or hire outside

candidates for the management program. Lynch could only

recommend to the District Leader potential candidates for the

management program.

During early 1990, Hassib Darweesh (“Darweesh”) received

training in the Oklahoma City district as a manager. During this time,

Darweesh recommended Imogene Warren (“Warren”), an African

American working in the Oklahoma City area, for the management

program. Warren started working for Denny's in January 1989,

completed the management program and was promoted by her District

Leader to Unit Manager in August 1991. During 1990, Darweesh was

transferred to Tulsa as the new District Leader and assumed the

responsibility for all employees within the Tulsa district. Thomas told

Lynch that he had completed the PMP. As a result, Lynch

recommended Thomas for management to Darweesh. However, at

trial Lynch learned that Thomas had never completed the PMP. After

reviewing the little effort Thomas made on the PMP, Lynch testified

that he would not have recommended Thomas for management, and

felt Thomas misled him. Lynch testified that being a good cook and

trainer does not qualify an employee for getting into the management

program.

Kasim did not like Darweesh and considered suing Darweesh

and Denny's. Darweesh was going to discharge Kasim because Kasim

owned and operated a convenience store which conflicted with his

employment at Denny's. Subsequently, Kasim resigned his

employment. In 1990, Darweesh interviewed John Meaux (“Meaux”),

an African American, for the MIT program. In September 1991,

Darweesh once again interviewed Meaux and extended him an offer

of employment for management. However, due to a conflict with his

college schedule, Meaux declined Darweesh's offer of employment.

On September 12, 1991, Thomas filed the instant lawsuit

alleging that he was denied a promotion with Denny's because of his

race, African American, in violation of Title VII of the Civil Rights

Act of 1964 and 42 U.S.C. § 1981. Thomas further alleged claims for

breach of contract, intentional infliction of emotional distress,

constructive discharge, retaliation and civil conspiracy. Thomas

considered leaving Denny's in June 1992. Thomas' civil conspiracy

claim and breach of contract claims were dismissed by the district

court upon Denny’s motion.

In 1991, Jeff Bell (“Bell”) became a manager and worked in

the same store as Thomas. He testified that he never saw Thomas

show the initiative to become a manager. Bell had attempted to

become a manager for ten years. However, he completed the PMP

and completed a two-year food service management program at Vo-

Tech.

John Lynch (“Lynch”) resigned his employment with Denny's

in October 1992. Lynch testified at trial that he never saw Rapier or

Darweesh act or display prejudice or discrimination toward any

employees, including Thomas. In 1992, Darweesh selected Thomas

as Employee of the Year based on his performance within his job

code. The award is presented annually to a Unit Level employee and

is not characteristic of anything in the management ranks. Thomas

also continued to receive pay increases throughout his employment.

Darweesh and Tom Taylor ("Taylor"), the District Human

Resources Representative, interviewed Thomas on November 3, 1992

to evaluate his background and qualification for management.

Thomas’ answers were short with weak or perhaps no responses.

Thomas lacked knowledge of the restaurant business and had

difficulty in taking the initiative and motivating and instructing others.

After this meeting, Darweesh and Taylor discussed Thomas' potential

for a management position and decided to provide feedback to

Thomas on how he could perhaps improve in areas where he had

shown weakness as well as Suggesting things that Thomas could do to

help himself obtain a management position. On December 27, 1992,

Darweesh and Scott Vanarsdel, General Manager for Unit #1310, met

with Thomas to discuss the results of the meeting Thomas had with

Darweesh and Taylor for the purpose of offering Thomas feedback.

suggestions, and a position in management. Thomas demanded that

Darweesh give him a written guarantee that he would be placed in

management. Thomas became very hostile, cursed and called

Darweesh a liar, told Darweesh he did not believe him, and left the

meeting. After Thomas failed to act upon any of their suggestions

Darweesh made the decision not to promote Thomas into the

management program. Darweesh did not use a negative term in

discussing Thomas with Rapier, Lynch or anyone.

On February 13, 1993, Thomas resigned h.. employment with

Denny's after his attorneys drafted his letter of resignation.

Subsequently, he worked at “The Burger” and as a forklift driver

through Talent Tree Personnel.

In May 1993, Darweesh interviewed and hired Henry

Thomas, an African American, for the management program. After

Henry Thomas completed the program, Darweesh promoted him to

Assistant Manager and transferred him to Unit #1310. David Booker

(“Booker”), an African American, started working for Denny's in 1976

in Texas, and worked his way through college as an employee of

Denny's. Booker was promoted to Regional Leader for Denny's

Region 104 and reported to Dennis Ekstrom, the Director of

ect

Operations for Denny's, which includes the Tulsa district. Booker

currently owns and operates a Denny's franchise restaurant located in

Beaumont, Texas. He testified that Agorichas and Taylor had been

supportive of his efforts for advancement at Denny's.

In October 1993, Thomas' attorneys hired two eighth grade

English teachers employed by Monte Cassino Middle School (Pat

Efird and Mary Strakoulas), to tutor Thomas in grammar lessons in

preparation for the trial of this matter. Thomas had a couple of

sessions at the Monte Cassino Middle School, but the majority of the

sessions were held at Thomas' attorneys’ law offices. Mary Strakoulas

had at least sixteen (16) tutoring sessions on grammar with Thomas,

which were paid for by Thomas' attorneys’ law firm.

REASONS FOR GRANTING REVIEW

I. THE COURT OF APPEALS’ DECISION IS IN

CONFLICT WITH DECISIONS FROM THIS COURT

REGARDING PLAINTIFF’S BURDEN OF PROOF AT

THE PRIMA FACIE STAGE OF A FAILURE TO

PROMOTE CASE.

In his Appellate Brief to the Tenth Circuit, Thomas argued

that the trial court erred in instructing the jury as to what he needed to

prove to establish that he was qualified for a management position.

After instructing the jury on the elements of a prima facie case for

failure to promote, the trial court also gave the following instruction

to the jury:

QUALIFIED APPLICANT - DEFINED

To meet his initial burden, the plaintiff must prove that he

was qualified for the position for which he applied. To show

that he was qualified, plaintiff must show that he possessed

the necessary requirements for the position he sought. You

should consider evidence concerning the education, training

or experience necessary to perform the job. The plaintiff is

not required to prove his qualifications were superior relative

to other employees in like positions. The plaintiff must

prove, however, that he was at least as well qualified for the

position as the person hired instead of him. (Page A-36 of the

Appendix).

At trial, Thomas’ counsel objected to the above instruction

as not being the law. In response to the trial court’s question: “What

do you say the law is?” Thomas’ counsel responded:

MR. BLEDSOE: “The law is based on the Kenworthy case --

| believe the instruction should read as

follows: To meet his initial burden, the

plaintiff must present some credible

evidence that he possessed the objective

qualifications for the position or positions

for which he applied. This burden is not

onerous and may be presented through his

own testimony and the testimony of others,

even when disputed by the defendant

employer.”(Page A-5i of the Appendix).

After some discussion on the matter, the trial court asked

Thomas’ counsel:

THE COURT: “Give me the words you say should be used.”

MR. BLEDSOE: “The words are, ‘The Plaintiff must present

some credible evidence that he possessed the

objective qualifications for the position for

which he applied.’ And then in line with the

language of Kenworthy, which perhaps is

duplicitous, ‘The burden is not onerous and may

be presented through his own testimony and the

testimony of others’ --” (Page A-52 of the

Appendix).

The trial court declined to modify its instruction. The jury returned

the following verdict:

VERDICT FORM I

Plaintiff's Claim

Failure to Promote Based on Race Discrimination

(Your answers to each of the following questions must be

unanimous.)

l. Do you find from the preponderance

of the evidence that plaintiff Ronald Thomas has

ia wala: a

Soins Pinata) Sagi wed awh

Dea Ci Dat an en See

established each essential element of his prima facie

case of failure to promote based on race

discrimination as defined in these instructions?

‘niciscibubiosalie ead

Yes No

On appeal, the Tenth Circuit ruled that the trial court’s

“Qualified Applicant” instruction did not state the applicable law and

the trial court’s failure to give the instruction requested by Thomas

constituted an abuse of discretion. Specifically, the Tenth Circuit

concluded that the trial court’s instruction did not accurately state

Plaintiff's burden at the prima facie stage of the case. The panel

ruled that according to Kenworthy v, Conoco, Inc,, 979 F.2d 1462

(10th Cir. 1992), the employer’s subjective business reasons are not

properly considered at the prima facie stage, and should instead be

“considered in addressing whether those articulated reasons are

legitimate or merely a pretext for discrimination.” Specifically, the

Tenth Circuit criticized the last sentence of the trial court’s

“Qualified Applicant” instruction that provided:

The Plaintiff must prove, however, that he was as least as

well qualified for the position as the person hired instead of

him. (Page A-32 of the Appendix).

Denny’s respectfully submits that the Tenth Circuit’s opinion

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

U.S. 248, 259 (1981); McDonnell Douglas Corp, v, Green, 411 U.S.

792, 802 (1973); EEOC v. WilTel, Inc,, 81 F.3d 1508 (10th Cir.

1996); and Allen v. Denver Public Sch, Bd,, 928 F.2d 978 (10th Cir.

1991). Also, the opinion is erroneous and provides preferential

treatment to applicants within the protected class. Moreover, the trial

court's “qualified applicant” instruction did not direct the jury to

consider the employer’s subjective business reasons at the prima

facie stage of the case. In fact, there is absolutely nothing in the

record even to suggest that the jury considered subjective job

requirements at the prima facie stage of the case. Finally, the Tenth

Circuit misapplied Kenworthy to the case at bar.

3. The Tenth Circuit’s decision conflicts with

decisions from this Court and other Tenth

Circuit opinions.

Denny’s respectfully submits that the Tenth Circuit’s opinion

is in conflict with language from Texas Dep't of Community Affairs

y. Burdine, 450 U.S. 248, 259 (1981), where this Court ruled as

follows regarding objective qualifications of applicants in a Title VII

case:

[T]he employer has discretion to choose among equally

qualified candidates, provided the decision is not based upon

unlawful criteria. (emphasis added).

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

802 (1973), this Court set forth the elements of a prima facie case of

racial discrimination as follows:

This may be done by showing (i) that he belongs to a racial

minority; (ii) that he applied and was qualified for a job for

which the employer was seeking applicants; (iii) that, despite

his qualifications, he was rejected; and (iv) that, after his

rejection, the position remained open and the employer

continued to seek applicants from persons of complainant’s

qualifications. (emphasis added).

Further, in EEOC v, WilTel, Inc., 81 F.3d 1508 (10th Cir.

1996) an employee complained that she was not hired for a position

because she was an evangelical Christian. The Tenth Circuit ruled

that in order to establish a prima facie case for failure to promote, an

employee must prove the following elements:

(1) [S]he was a member of a protected class; (2) she applied

for and was qualified for an available position; (3) she was

rejected despite those specific qualifications; and (4) WilTel

hired other persons

who were not members of her protected class. St. Mary’s

Honor Center v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct.

2742, 2747, 125 L.Ed.2d 407 (1993); Patterson v. McLean

Credit Union, 491 U.S. 164, 186-87, 109 S.Ct. 2363, 2377-

78, 105 L.Ed.2d 132 (1989); Drake v, City of Fort Collins,

927 F.2d 1156, 1160 (10th Cir. 1991) (emphasis added).

The Tenth Circuit ruled that the “EEOC failed to

demonstrate that [plaintiff] had similar experience and skills to those

possessed by the persons who were hired.” Jd. at 1516-17. It was

” SY sate aah

{

)

undisputed that plaintiff did not possess the minimum qualifications

of two to four years of customer service/telephone experience, and

organizational, communications, and interpersonal skills. The Tenth

Circuit concluded that the evidence produced by WilTel

demonstrated that the hired applicants who did not have two to four

years experience were not “like-qualified,” and plaintiff had failed

to establish that she was qualified for the position for purposes of

establishing a prima facie case. Id. at 1516.

Also, in Allen v, Denver Public School Board., 928 F.2d 978,

984 (i0th Cir. 1991), an employee claimed she failed to receive'a

promotion to “career” or “college” counselor. The Tenth Circuit

ruled:

In order to establish a prima facie case on this issue, Allen

must provide some evidence to establish “[s]he was equally

or better qualified than those employees actually promoted.”

Clark v. Atchison, Topeka & Santa Fe Ry. Co., 731 F.2d

698, 701 (10th Cir. 1984).

In that case, the plaintiff presented no evidence regarding the

qualifications of the white men who were chosen for the position, but

merely testified that she was more qualified. The court concluded

that the plaintiff did not present evidence to establish that she was

equally or better qualified than those promoted, and thus, failed to

establish a prima facie Title VII discrimination case.

In the case at bar, the trial court’s “qualified applicant”

instruction provided that Thomas did not have to prove that his

qualifications were superior relative to other employees in like

positions, but he only had to demonstrate that he at least had the

same objective qualifications for the job as the person hired. The

jury instruction is consistent with this Court’s holdings in Texas

Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981)

and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

However, the opinion of the Tenth Circuit is in conflict with those

opinions.

2. The Tenth Circuit’s decision provides

preferential treatment to applicants in the

protected class.

Thomas testified at trial that he was more qualified than all

the employees who were promoted during his tenure. (Page A-120

of the Appendix). Denny’s submits that decisions regarding

Promotion were not made on an “ad hoc basis” or solely on “the

interviewer's subjective evaluations.” as indicated in the Tenth

Circuit’s opinion. Rather, Denny’s presented evidence that

candidates selected in place of Thomas met the objective and

subjective requirements of the job. Examples of some of the

objective qualifications of employees promoted in place of Thomas

included:

|. Diana Newhouse Completed college courses; completed UPP.

(Pages A-53 and A-54 of the Appendix).

. Shoaib Ahmed Completed business courses at Rogers

College as recommended by Reynolds;

completed UPP; obtained a Marketing

(Business) Degree; worked in his father’s

import/export business. (Pages A-54 through

A-56 of the Appendix).

os)

. Dava Stark Completed college courses; completed UPP;

worked several years with the company.

(Page A-57 of the Appendix).

Bay

. Jeff Bell Completed UPP; started as busboy in 198]

while in high school: completed 2 year Vo-

Tech program on restaurant management;

took 10 years to get promoted. (Pages A-58

through A-67 of the Appendix).

. Housam Elsoueissi Completed UPP and college courses. (Pages

A-58 and A-59 of the Appendix).

. Masood Kasim Obtained Bachelors and Masters degrees;

promoted through ranks in 1984 before UPP

Started. (Pages A-68 and A-69 of the

Appendix).

. Alvin Clement Obtained Bachelors Degree; started as

dishwasher; worked as cook throughout

college; promoted in 1984 before UPP started.

(Page A-70 of the Appendix).

Rather than follow this Court’s decision in Texas Dep't of

Community Affairs v. Burdine and McDonnell Douglas Corp. v.

Green (as well as previous Tenth Circuit decisions), in the case at bar

the Tenth Circuit opinion provides preferential treatment to Thomas

by suggesting that he did not have to have the same objective

qualifications for the job as those hired. The opinion has a “chilling

effect” and places companies in a “catch-22" situation. Specifically,

if a company hires the best qualified candidate, an applicant in the

protected class can sue and establish a prima facie case by simply

announcing “I’m qualified.” Also, companies will be faced with a

flood of reverse discrimination lawsuits because the decision

encourages the hiring and promotion of less qualified “protected”

candidates. In short, the Tenth Circuit’s decision forces employers to

give applicants in the protected class preferential treatment in hiring

and promotion by ruling that applicants in a protected class do not

have to have the same objective qualifications as “non-protected”

applicants.

Thus, Denny’s respectfully requests that this Court grant this

Petition For Writ of Certiorari, overrule the Tenth Circuit’s opinion

and affirm the trial court’s judgment.

KH The Tenth Circuit misapplied Kenworthy to the

case at bar.

In Kenworthy, the Tenth Circuit ruled that at the prima facie

stage of the case, only “objective” requirements of the job should be

considered. In the case at bar, the trial court :astructed the jury to only

consider evidence regarding “education, training or experience

necessary to perform the job” at the prima facie stage in determining

whether Thomas was qualified. “Education, training or experience”

are objective job requirements. In its opinion, the Tenth Circuit

suggests that the trial court and jury considered “subjective” job

requirements at the prima facie stage of the case when they found that

Thomas did not establish a prima facie case of discrimination.

However, there is absolutely nothing in the instructions or record to

support such a conclusion. The Tenth Circuit’s opinion focuses on the

fact that Denny’s maintained that Thomas did not meet the

“subjective” job requirements (e.g.,interviewing, communications,

lack of initiative). However, the Tenth Circuit’s opinion fails to

recognize that Denny’s presented evidence and also maintained that

Thomas did not meet the “objective” job requirements

(e.g.,completion of the PMP, completion of college business courses,

completion of various work assignments, goals and objectives). The

jury and trial court apparently agreed and determined that Thomas did

not even establish a prima facie case of failure to promote based on

race.

4. The Kenworthy language requested by Thomas

was redundant.

Finally, Denny’s respectfully submits that the Kenworthy

language requested by Thomas’ counsel was redundant and not

needed. Specifically, Thomas’ counsel! wanted the trial court to

instruct the jury that Thomas could establish he was qualified for

promotion through his own testimony and the testimony of others.

However, Denny’s respectfully submits that evidence is always

presented at trial through the testimony of the plaintiff and other

witnesses. Also, the Court’s other instructions informed the jury

regarding the proper use of evidence. For example, in discussing the

burden of proof, the trial court explained:

In deciding whether any fact has been proved by a

preponderance of the evidence, you may consider the

testimony of all the witnesses, regardless of who may have

called them, and all the exhibits received in evidence,

regardless of who may have produced them. (Page A-27 of

the Appendix).

The trial court also instructed the jury as follows:

CREDIBILITY OF WITNESSES

Now in saying that you must consider all the evidence does

not mean that you must accept all of the evidence as true or

accurate. You should decide whether you believe what each

witness had to say, and how important that testimony was. In

making that decision you may believe or disbelieve any

witness, in whole or in part. Also, the number of witnesses

testifying concerning any particular dispute is not controlling.

You may decide that the testimony of a smaller number of

witnesses concerning any fact in dispute is more believable

than the testimony of a larger number of witnesses to the

contrary. (Page A-39 of the Appendix).

In deciding whether you believe any witness you should ask

yourself a few questions: did the witness impress you as one

who was telling the truth? Did the witness have any

particular reason not to tell the truth? Did the witness have a

personal interest in the outcome of the case? Did the witness

seem to have a good memory? Did the witness have the

opportunity and ability to observe accurately the things he or

she testified about? Did the witness appear to understand the

questions clearly and answer them directly? Did the witness’s

testimony differ from other testimony or other evidence?

(Page A-39 -40 of the Appendix.).

Denny’s submits that the Tenth Circuit’s ruling implies that

Thomas presented credible testimony at trial that he was qualified for

promotion through his testimony and the testimony of former

managers which required a reversal of the jury verdict and trial court’s

ruling. However, the trier of the facts apparently determined that

Thomas and his witnesses were not credible, and found that Thomas

did not even establish a prima facie case. Accordingly, Denny’s

respectfully requests that this Court grant this Petition For Writ of

Certiorari.

Il. THE COURT OF APPEALS’ DECISION IS IN

CONFLICT WITH DECISIONS OF THIS COURT AND

OTHER CIRCUIT COURTS REGARDING WHEN A

MIXED MOTIVE INSTRUCTION MUST BE GIVEN IN

A CASE.

In the case at bar, the Tenth Circuit relied on Ostrowski v.

Atlantic Mut. Ins. Co., 968 F.2d 171, 181 (2d Cir. 1992), and ruled

that the trial court should have given a mixed motive instruction in

this case as requested by Thomas with respect to his claim that he was

denied promotions in retaliation for filing a discrimination complaint.

In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct.

1775, 104 L. Ed. 2d 268 (1989), this Court dealt with a mixed motive

case, in which the plaintiff offered evidence, credited by the district

court as fact finder, that a forbidden reason played a motivating role

in the adverse employment decision. This Court held that if the

plaintiff in a Title VII suit can establish that a prohibited

discriminatory factor played a “motivating part" in the challenged

employment decision, the defendant, in order to avoid liability, has the

burden of proving "by a preponderance of the evidence that it would

have made the same decision" even if it had not taken the

discriminatory factor into account. Jd. at 258. This Court made clear

that the burden shifting threshold a plaintiff must cross is proof that

the forbidden animus was at least one of the “motivating” factors in

the employment decision. /d. at 247. This Court noted that the issue

does not arise for the trier of fact until the plaintiff has carried the

burden of persuading the trier that the forbidden animus was a

motivating factor in the employment decision but has failed to

persuade the trier that non-discriminatory reasons proffered by the

employer were pretext and not also motivating factor. A plaintiff will

be entitled to a burden shifting instruction on the Price Waterhouse

defense where the evidence is sufficient to allow a trier to find both

forbidden and permissible motives. However, not all evidence that is

probative of discrimination will entitle the plaintiff to a Price

Waterhouse charge. Jd.

In Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995), the

Fourth Circuit ruled that to earn a mixed motive instruction a plaintiff

must present “direct evidence that decisionmakers placed substantial

negative reliance on an illegitimate criterion” (quoting Price

Waterhouse, 490 U.S. at 277). What is required is “evidence of

conduct or statements that both reflect directly the alleged

discriminatory attitude and that bear directly on the contested

employment decision.” 67 F.3d at 1142. The Fourth Circuit ruled

that whether a plaintiff has satisfied this evidentiary threshold is a

decision for the district court after it has reviewed the evidence. Id

If, as in the case at bar, the plaintiff failed to meet this threshold, then

the plaintiff must proceed under the standards that apply in pretext

cases. Jd. at 1143.

As noted by the Third Circuit in ja-

Corp., 1997 WL 584552 (3d Cir. Sept. 23, 1997):

. . . [A] plaintiff must clear a high hurdle to qualify for a

mixed motives instruction: “The burden of persuasion shifts

to the employer ‘only after the plaintiff ha[s] proven that her

employer acted unlawfully,’ and not merely ‘on the basis of

-4 prima facie showing.’” (quoting Binder v, Long Island

Lighting Co., 933 F.2d 187, 192 n.1 (2d Cir. 1991)). Put

differently, a mixed motives instruction is warranted only

when the “evidence is sufficient to permit the factfinder to

infer that [a discriminatory] attitude was more likely than not

a motivating factor in the employment decision.” Griffiths,

988 F.2d at 470.

Justice O’Connor shed light on what constitutes such “direct”

evidence as follows: [S}tray remarks in the workplace, while

perhaps probative of sexual harassment, cannot justify

requiring the employer to prove that its hiring or promotion

decisions were based on legitimate criteria. Nor can

statements by nondecisionmakers, or statements by

decisionmakers unrelated to the decisional process itself,

suffice to satisfy the plaintiffs’ burden in this regard.

In the case at bar, at no time during the course of trial did

Denny’s claim that even if race or retaliation were a motivating factor

in its decision, that it, nevertheless, would have refused to promote

Thomas into management. The sole defense relied upon by Denny’s

was that Thomas was not qualified for promotion into management.

Nevertheless, the Tenth Circuit relied upon the following testimony

by Johnson and Kasim in reaching its decision:

(a) Johnson testified she mentioned Thomas’

name to Ken Agorichas, Human Resources Depart-

ment, when he was conducting management

interviews and Agorichas stated, “You know Thomas

has a suit against us.”(Page A-71 of the Appendix).

Denied at trial by Agorichas.(Page A-72 of the Appendix).

(b) Johnson testified she mentioned Thomas’

name to Reynolds in 1986, and Reynolds said: “We

have a problem with Ronnie Thomas and his suit

against Denny’s.” (Page A-73 of the Appendix).

Denied at trial by Reynolds. (Page A-74 of the

Appendix).

Thomas’ name to Rapier as a management candidate

and Rapier responded: “They will never allow

Ronnie to become manager.” (Page A-75 of the

Appendix). When asked “why” at trial by Thomas’

attorney, Johnson responded, “Because he has a suit

against Denny’s.” (Page A-75 of the Appendix).

However, the record is unclear as to whether she was quoting

Rapier or if Johnson was stating her opinion. Nevertheless,

Rapier denied making such statements. (Page A-76 of the

Appendix).

(d) Kasim testified that in 1991 he asked Darweesh why

he did not promote Thomas (in the presence of Housam

Elsoueissi) and Darweesh answered “{W]ould you promote

someone who has sued?” (Pages A-77 and A-78 of the

Appendix). However, Darweesh denied making the statement

(Page A-79 of the Appendix), and Elsoueissi testified he

never heard Darweesh make the statement. (Page A-80 of

the Appendix).

However, no testimony was presented that anyone in upper

management actually stated: “Thomas will not be promoted because

he filed a discrimination complaint.” Further, Agorichas, Reynolds,

Rapier and Darweesh testified that Thomas’ lawsuit or discrimination

complaints were not factors in their decisions not to promote him.

Thomas simply was not qualified. Moreover, in EEOC vy, WilTel,

Inc., 81 F.3d 1508 (10th Cir. 1996), the Tenth Circuit explained:

In contrast, we have held that statements which are merely

expressions of personal opinion or bias do not constitute

direct evidence of discrimination. {Heim v. State of Utah, 8

F.3d 1541, 1546-47 (10th Cir. 1993)} (manager’s remark that

“I hate having fucking women in the office” was not direct

evidence of discriminatory intent); i

of Denver, 907 F.2d 1004, 1008 (10th Cir. 1990), cert.

denied, 506 U.S. 907 (1992)} (director’s “feelings about

women being better suited to some jobs than others” was not

direct evidence of discriminatory intent); Furr v. AT&T

Technologies, Inc., 824 F.2d 1537, 1547, 1549 (10th Cir,

1987) (managers’ statement that a plaintiff could not be

promoted because “he was too damned old,” and that other

plaintiffs were too old to learn new technologies necessary to

promotion and too old to be in supervisory or management

positions was not direct evidence of discriminatory intent),

reh’g denied, 842 F.2d 253 (1988). Jd. at 1514.

Here, the trial evidence was insufficient to support the

inclusion of a “mixed motive” instruction. In fact, the jury and the

trial court ruled that Thomas did not even establish a prima facie case

of race discrimination or retaliation. Moreover, the Tenth Circuit's

opinion also conflicts with Mooney v. Aramco Servs. Co., 54 F.3d

1207 (Sth Cir. 1995). In Mooney, 54 F.3d at 1218, 1219 the Fifth

Circuit ruled as follows regarding when a mixed motive instruction

should be given:

“[t]o shift the burden on the employer to show by a

preponderance of the evidence that it would have made the

same decision even without the forbidden factor, the

employee must show that ‘the employer actually relied on

[the forbidden factor] in making its decision.” Langley v.

Jackson State University, 14 F.3d 1070, 1075 (Sth Cir. 1994)

(emphasis in original).

Although the statement allegedly made to Thim” and

the statement allegedly overheard by Mooney* create

inferences that age played a part in their terminations, when

taken in their entirety, both statements are primarily indicative

of a desire to save money by employing persons at lower pay.

The statements to Olson® and Williams* merely constitute a

According to Thim, his supervisor stated, “If I can replace an expensive

American expat with a younger and cheaper Brit, I can save the company

a lot of money.”

Mooney testified in part,

“Well, as I recall, Dan Lawlor, who was a younger engineer, was afraid

that he might be surplussed. So, he was talking to Dan Christy about this

and Dan told him that, ‘Don’t worry. They’re going to get rid of the older

employees with the higher salaries.’”

Olson testified in part,

“\. Did you ask Mr. Combs at your January, 1985, meeting why you

were being fired?

A. Yes.

Q. What did he tell you?

A. He said it couldn't be because of my performance because that’s

been excellent. ‘So it must be your age.’”

Williams testified in part,

". Did you overhear Mr. Churchville make any other comments

about your termination at a later date?

speculation as to possible discrimination in the termination of

Trial Plaintiffs. There is no evidence that Appellee “actually

relied on” Trial Plaintiff's age in making the decision. While

we could infer such a conclusion from these statements, we

cannot say that they provide “direct evidence" of age related

animus.

In footnote 17, the Fifth Circuit went on to rule as follows:

Finally, “even if the jury instructions were erroneous,

we will not reverse if we determine, based on the entire

record, that the challenged instruction could not have affected

the outcome of the case.” FDIC v, Mijalis, 15 F.3d 1314,

1318 (Sth Cir. 1994). Trial Appellants have failed to satisfy

this burden. The jury plainly did not believe their testimony

under the lower “inferential evidence” standard employed in

the McDonnell Douglas analysis. Consequently, a reasonable

jury could not have found that the evidence presented

constituted the higher level of “direct evidence” necessary to

shift the burden of persuasion to the defendant.

In the case at bar, the trial court, after reviewing the evidence,

determined that Thomas failed to meet the threshold required for a

mixed motive instruction. Also, the jury determined that Thomas did

not even establish a prima facie case of retaliation under the lower

“inferential evidence” standard employed in the McDonnell Douglas

analysis. In short, Denny’s respectfully submits that the Tenth

Circuit's opinion is in conflict with Mooney v. Aramco Servs, Co.,

Price Waterhouse v. Hopkins, Fuller v. Phipps, Walden v. Georgia-

Pacific Corp., and the case law cited below. Thus, this Court should

grant this Petition for Writ of Certiorari, overrule the Tenth Circuit’s

opinion and affirm the trial court’s decision.

See also Considine v. Newspaper Agency Corp., 43 F.3d

1349 (10th Cir. 1994) (NAC did not invoke the “mixed motive

defense” and instead argued that age was simply not a factor in its

hiring decisions); Hook v, Emst & Young, 28 F.3d 366 (3d Cir. 1994)

(mixed motive instruction not warranted); Hargett v. Nat’]

A. Yes. Within a week after I had been gi. _n my formal letter I was

sitting at my desk and. . . | overheard Pat talking to the other person and saying,

“Willams has a good case against Aramco for age discrimination."”

i ia hak:

Westminster Bank, 78 F.3d 836 (2d Cir. 1966), cert. denied, 519 U.S.

__, 117 S. Ct. 84, 136 L. Ed. 2d 41 (1996) (same); Hutson v.

McDonnell Douglas Corp., 63 F.3d 771 (8th Cir. 1995) (same).

Ill. THE COURT OF APPEALS’ DECISION HAS SO FAR

DEPARTED FROM THE ACCEPTED AND USUAL

COURSE OF JUDICIAL PROCEEDING AS TO CALL

FOR AN EXERCISE OF THIS COURT’S POWER OF

SUPERVISION.

Denny’s respectfully submits that the Tenth Circuit’s opinion

fails to include relevant facts that were presented at trial that

significantly impact the issues addressed in its opinion. Specifically,

in its opinion, the Tenth Circuit states that “the promotion procedure

at Denny’s was not particularly structured.” However, the statement

is not supported by the record. Denny’s requested-that employees

seeking promotion: (1) complete the unit promotable program packet;

(2) complete college courses; (3) perform unit aide work; (4) interview

for the position; (5) communicate effectively; and (6) demonstrate

knowledge of the restaurant industry. However, Thomas did not

comply with Denny’s requests. He had a high school education and

worked at Denny’s as a cook since high school. He was given a unit

promotable packet to complete as early as 1985. (Page A-81 of the

Appendix). This self-initiative packet contained case studies,

hypotheticals and tasks to educate and develop employees who did not

have management skills and experience, or an understanding of

business operations.” Thomas conceded that he never completed the

packet. (Pages A-82 and A-83 of the Appendix). However,

testimony was presented at trial that Thomas told members of

management that he had completed the packet. Also, although

Denny’s requested that Thomas take college courses to increase his

knowledge of business operations, he did not. Failing to comply with

these objective requirements, Thomas did not have an understanding

of the restaurant business, could not answer questions regarding the

business when he was interviewed, and had poor communication

. A copy of Thomas’ incomplete packet that he had in his possession since

1985 is contained at Pages A-121 through A-163 of the Appendix.

skills.* He did perform some unit aide work.” Those employees who

were promoted in place of Thomas complied with the company’s

requests to become promotable candidates.

Additionally, in its opinion, the Tenth Circuit states that “in

each instance in which Mr. Thomas was not promoted, the position

was filled with a non-African American.” However, the record

reflects that during Mr. Thomas’ tenure at Denny’s, other African

Americans were placed or offered employment into management in

Oklahoma, including the following:

1973-83 Alonzo Batson 1991 Imogene Warren ®

1980 Catejan Dikeh Andy Goodwin

1980 Kenneth Cooper 1992 John Meaux”

1986 Chauncy Tipton 1993 Henry Thomas

1988 Dana Jackson

(Pages A-88 through A-96 of the Appendix).

In fact, Warren, Goodwin, Henry Thomas and Meaux were hired,

recommended for promotion, or offered a management position by

Darweesh, a District Leader, who Thomas alleged did not recommend

him for promotion because of his race.

= Kearney, Rapier and Darweesh testified that they also provided Thomas

with specific assignments to aid him in becoming promotable, but he

failed or refused to complete the tasks. (Pages A-84 through A-86 of the

Appendix).

+ In footnote 3 of its opinion, the Court states that a “ unit aide runs the

restaurant in the absence of a manager or assistant manager.” The opinion

implies that a person performing the duties of a unit aide is actually

performing the same duties as an assistant manager or a manager which is

inaccurate. Rather, a unit aide is a trusted employee who “babysits” or

carries the keys to the restaurant for a few hours at a time, generally when

business is very slow. They follow managers’ directives and do not make

business decisions and do not independently determine what is gong to

happen in the restaurant. (Page A-87 of the Appendix).

too

Warren and Goodwin worked in Oklahoma City. The remaining listed

employees were hired in Tulsa restaurants where Thomas worked.

Meaux declined an offer by Darweesh to be placed in Denny’s

management in order to pursue his college education.

In its opinion, the Tenth Circuit states that Thomas presented

testimony of Irene Johnson and Masood Kasim, former general

managers, that they believed Thomas was qualified for promotion into

management. However, the Tenth Circuit’s opinion does not state

additional testimony that was introduced at trial regarding Johnson

and Kasim that was relevant to the issue of Thomas’ qualifications.

First, as managers” Johnson and Kasim simply recommended

employees to be considered for management. The district leader

determined who would be promoted. Johnson and Kasim did not

participate in the actual selections and promotion process. Further,

Johnson testified that she used Thomas as a unit aide in the summer

of 1987, that Thomas needed to learn more about what a manager

does; that he needed to read some books or take a college course on

management; that Thomas was concerned about his lack of knowledge

of the administrative work required to be a manager; that Thomas did

not complete the assignments in the Unit Promotable Packet; that

Thomas worked at a different restaurant than Johnson, and she did not

work closely with him. (Pages A-97 through A--99 of the

Appendix). Johnson conceded that she did not find out until trial that

Rapier, a District Leader, and Smith, a manager, had tried to work

with Thomas to become promotable and had given Thomas a UPP

packet and goals to complete, but he did neither. She also conceded

that if she had that information, her opinion as to whether Thomas

should be in management may change. (Pages A-100 through A-102

of the Appendix).

Also, no evidence was presented that Kasim knew Thomas

had failed to comply with management requests to complete the UPP,

failed to take college business courses, made misrepresentations to

management that he had completed the UPP, and knew of upper

management’s efforts to assist Thomas in becoming promotable. The

overwhelming trial evidence simply did not support Kasim’s and

Johnson’s testimony regarding Thomas’ abilities or credibility.

In its opinion, the Tenth Circuit notes that evidence was

presented that Smith, a former manager, stated during a Human Rights

investigation that Thomas was “at least as promotable as candidates

hired off the street into the management training program.” However,

the Tenth Circuit’s opinion fails to include the following statements

~ In fact, several managers throughout the District recommended their

favorite employees for promotion.

by Smith regarding Thomas’ abilities: Thomas did not interview well

but kept looking at his hands and at the floor while answering

questions, his answers to questions indicated his lack of scope on what

a manager's responsibilities included, Thomas showed no interest in

Starting the UPP packet, Thomas consistently failed to complete

assignments, Thomas failed to show up for meetings, and Thomas

lacked the initiative and cooperation to complete the UPP packet.

(Page A-103 of the Appendix). Smith also testified that he had no

evidence that Thomas was denied a promotion because of his race.

(Pages A\-104 through A-108 of the Appendix).

At footnote 4 of its opinion, the Tenth Circuit cites a

statement by Thomas that meetings to assist him with the UPP were

set by assistant manager, Dick Clemmons, at 2:00 a.m. in 1985 or

after Thomas’ shift. However, Denny’s operates 24 hours a day, and

because the Court’s opinion does not state what shift Thomas worked

in 1985, the footnote implies that Denny’s purposely scheduled these

appointments at inconvenient hours, which is not supported by the

record.

The Tenth Circuit's opinion also fails to mention the

following relevant evidence: during Reynolds’ tenure as District

Leader, Cullinan, a manager, assisted Thomas with his communication

and interviewing skills through mock interviews in an attempt to help

him become promotable. However, Cullinan testified that after

working with Thomas, he demonstrated little knowledge of the

restaurant industry, Thomas mumbled, and had no knowledge on how

to enhance employees’ performance. Cullinan had to assist Thomas

to reanswer 75% of the questions, and, in Cullinan’s opinion, on a

scale of 1-10, Thomas’ improvement level was only a 3 after Cullinan

had worked with Thomas. Cullinan testified that Thomas was not

qualified for promotion. (Pages A-109 through A-113 of the

Appendix). Also, Lynch, a former manager, testified at trial that he

recommended Thomas for promotion because Thomas had told Lynch

that he had completed the UPP. At trial, Lynch learned for the first

time that Thomas had not completed the UPP. He testified that he

would not have recommended Thomas for a promotion into

management if he had known Thomas had not completed the UPP,

and after learning at trial that Thomas had misled him. (Pages A-114

through A-116 of the Appendix). Also, when Thomas was

interviewed by Darweesh in 1992, Thomas became hostile and cursed

Darweesh. (Pages A-117 and A-118 of the Appendix). Finally,

Thomas conceded at trial that after his resignation, and shortly before

trial, his attorneys arranged for him to be tutored by an 8th grade

English teacher. These lessons were held at Thomas’ attorneys’ law

offices and paid for by Thomas’ attorneys. (Page A-119 of the

Appendix). An impression was left with the jury that Thomas was

trying to improve his communication skills before trial in an effort to

dispute Denny’s claim that he had poor communication skills.

In his Appellate Reply Brief, Thomas argued that the trial

court erred in including the following sentence in the instruction

defining “Qualified Applicant:” The Plaintiff must prove, however,

hat } ) lified for 1 a , hired

instead of him. In footnote 5 of its opinion, the Tenth Circuit states

that “Denny’s suggested for the first time at oral argument, that Mr.

Thomas did not adequately inform the trial court of his objection to

this instruction in light of Kenworthy.” That is a misstatement of the

facts, which omits that Thomas never complained on appeal about the

last sentence of the instruction until his Reply brief. This effectively

precluded Denny’s from having the opportunity to present argument

on this particular issue prior to oral argument. The Tenth Circuit’s

published opinion implies otherwise.

Also, during oral argument, the Tenth Circuit asked Denny’s

counsel if Thomas’ counsel specifically objected to the last sentence

of the Court’s instruction. Counsel for Denny’s directed the panel to

the record and read the statements Thomas’ counsel made to the trial

court regarding the “Qualified Applicant” instruction, none of which

focused at all on the last sentence. The Tenth Circuit has ruled that in

order to preserve an issue for appeal, the objection at trial must be

timely, clear and specific. Unit Drilling Co. v. Enron Oil & Gas Co.,

108 F.3d 1186 (10th Cir. 1997); Hinds v. General Motors Corp,, 988

F.2d 1039 (10th Cir. 1993); and McEwen vy, City of Norman, Okla.,

926 F.2d 1539 (10th Cir. 1991). During oral argument, Denny’s

simply maintained that Thomas’ trial objection did not specifically

address the last sentence of the Court’s “Qualified Applicant”

instruction.

CONCLUSION

Petitioner, Denny’s, Inc., respectfully requests this honorable

Court to grant this Petition for Writ of Certiorari, in order to resolve

the conflict existing between the circuits, and even within the Tenth

Circuit Court of Appeals, regarding what exactly a Plaintiff in a Title

VII action must prove in order to establish a prima facie case, in

order that employers in this country have some guidance in the

employee selection process, and, further, to guide the trial courts in

determining the appropriate point in a Title VII lawsuit to instruct on

the Price- Waterhouse mixed motive instruction in order to avoid

costly and docket clogging retrials of cases. These two issues are

critical to efficient and effective processing of employment and

promotion applications and the resultant litigation when a “protected’

employee or applicant is rejected for the position sought. This is

especially critical because the prima facie case requirements and the

mixed motive holding, both developed when these cases were tried

to the court. Now tried to a jury, guidance for application to jury

trials is essential. Left unreviewed, employers, the EEOC and the

Federal Trial Courts are left with mixed directions from the appellate

courts, conflicts within the various circuit courts of appeal, and

employers such as the Petitioner herein, who operate nationally, are

faced with differing standards and different rules they must operate

under depending upon where their particular outlet is located.

Respectfully submitted,

J. Patrick Cremin

Counsel of Record

Frank J. Hagedorn

Judith A. Colbert

HALL, ESTILL, HARDWICK,

GABLE, GOLDEN & NELSON, P.C.

320 South Boston Avenue, Suite 400

Tulsa, Oklahoma 74103-3708

(918) 594-0400

October 3, 1997 Counsel for Petitioner

TABLE OF CONTENTS

APPENDIX A Opinion of the United States Court

of Appeals for the Tenth Circuit,

Ronald K. Thomas _y. Denny's,

Inc,, No. 95-5146, April 25, 1997.

APPENDIX B Judgment of the Trial Court,

United States District Court for the

Northern District of Oklahoma,

Ronald K. Thomas v. Denny’s,

Inc., No. 91-C-715-C, June 7, 1995.

;

P APPENDIX C Findings of Fact and Conclusions

4 of Law, United States District

: Court for the Northern District of

Oklahoma, Ronald K. Thomas v.

Denny's, Inc., No. 91-C-715-C,

gk re A-16

APPENDIX D Judgment of Trial Court, United

States District Court for the

Northern District of Oklahom

Ronald K. Thomas v. Denny’s,

Inc., No. 91-C-715-C, February 21,

RES RA Sapa ae ogie A A-24

APPENDIX E Instructions to the Jury, United

States District Court for the

Northern District of Oklahoma,

Ronald _K. Thomas vy. Denny’s,

Inc., No. 91-C-715-C, January 30,

SPSS ee ee A-26

APPENDIX F Verdict Form I, United States

District Court for the Northern

District of Oklahoma, Ronald K.

Thomas v. Denny's, Inc., No. 91-

C-715-C, January 30,1995. ...... A-43

APPENDIX G Verdict Form II, United States

District Court for the Northern

District of Oklahoma, Ronald K.

Thomas v, Denny's, Inc,, No. 91-

C-715-C, January 30,1995. ...... A-46

APPENDIX H Order Denying Appellee’s Petition

for Rehearing and Suggestion for

Rehearing in Banc, Tenth Circuit

Court of Appeals, Ronald K.

‘ , No. 95-

5146, August 27, 1997........... A-48

APPENDIX | Excerpts from jury trial transcript,

and Denny’s trial Exhibit No. 7,

United States District Court for the

Northern District of Oklahoma,

Inc, No. 91-C-715-C, January 17 --

January 30,1995............... A-50

APPENDIX J Thomas’ incomplete PMP Packet. A-12]

Appendix A A-l

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RONALD K. THOMAS,

Plaintiff-Appellant,

v. No. 95-5146

DENNY'S, INC., a California

corporation,

Defendant- Appellee.

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 91-C-715-C)

D. Gregory Bledsoe, Tulsa, Oklahoma (G. Steven Stidham and Brian S.

Gaskill of Sneed, Lang, Adams & Barnett, Tulsa, Oklahoma, with him on

the briefs), for Plaintiff-Appellant.

J. Patrick Cremin (Frank M. Hagedorn and Judith A. Colbert with him on

the brief) of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa,

Oklahoma, for Defendant-Appellee

Before SEYMOUR, Chief Judge, PORFILIO and EBEL, Circuit

Judges.

SEYMOUR, Chief Judge.

Ronald K. Thomas brought this action under 42 U.S.C. § 1981

and 42 U.S.C. §§ 2000e et seg (Title VII) against his former employer,

Denny’s, Inc. (Denny’s). Mr. Thomas alleged that he was denied

promotions because of his race and in retaliation for the filing of

discrimination charges, and that his failure to be promoted resulted in his

A-2

constructive discharge. The discrimination and retaliation claims under

section 1981 were tried to a jury, which returned a verdict for Denny’s.

The district court ruled at trial that the evidence was insufficient to send

the constructive discharge claim to the jury.' The court subsequently

found against Mr. Thomas on his parallel Title VII claims.

On appeal, Mr. Thomas contends the trial court erred in

instructing the jury on the definition of one of the elements of a prima

facie case of discrimination under section 1981. He also contends the

court erred in refusing to give a “mixed-motives” instruction, in failing

to submit the constructive discharge claim to the jury, and in limiting the

damages to the two year period prior to the filing of the lawsuit. We

agree that the court’s definition of the prima facie case was erroneous,

and that the jury should have been given a “mixed-motives” instruction.

Accordingly, we reverse the jury verdict on the section 1981 claims and

remand for further proceedings. We also agree that the court’s ruling in

favor of Denny’s on the Title VII claims must therefore be reversed.

However, we affirm the court’s refusal to send the constructive discharge

claim to the jury, and we conclude that the court’s limitation on the

period for which Mr. Thomas could recover damages was proper.’

This action was filed September 12, 1991. Under then-existing law, a

discriminatory discharge claim was not actionable under 42 U.S.C. § 1981. See

ion, 491 U.S. 164, 179-80 (1989). “However, a

racially discriminatory failure to promote [was] actionable under § 1981 if ‘the

Promotion rises to the level of an opportunity for a new and distinct relation between

the employee and the employer.”” Patrick v. Miller, 953 F.2d 1240, 1251 (10th Cir.

1992) (quoting Patterson, 491 U.S. at 185). Although The Civil Rights Act of 1991,

enacted November 21, 1991, in part overrode the Supreme Court’s restrictive

reading of section 1981 in Patterson, see id, at 1251 n.6, that Act does not apply

retroactively, see Si v 28 F.3d 1029, 1032 (10th

Cir. 1994). In this case, Denny’s agreed that the promotions sought by Mr. Thomas

were within the narrow ambit of section 1981 as construed in Patterson. As we

discuss infra part VI, the court and the Parties erroneously considered the

constructive discharge ciaim under section 1981.

Mr. Thomas also asserts on appeal that the district court erred in refusing

to allow a witness to testify about Mr. Thomas’ comparative qualifications, and in

failing to adequately separate the race and retaliation claims for the jury. Since the

section 1981 claims must be retried and these issues may not arise on retrial, we do

not consider them here.

A-3

BACKGROUND

Mr. Thomas, who is an African American, began his employment

at Denny’s in 1978 as a dishwasher/busboy. He was promoted to the

position of cook in 1979 and soon became a trainer for new cooks. He

first expressed interest in promotion to management in 1981. The

promotion procedure at Denny’s was not particularly structured. The

turnover was high and the company was always looking for managers.

Ordinarily, a general manager would recommend to a district manager

that a particular employee under the general manager’s supervision

should be considered for promotion. Mr. Thomas was mentioned by

several of his general managers as a likely candidate for promotion to

management, and was interviewed a number of times. In 1984, he was

interviewed by district manager Michael Kearney. In 1987, he had

interviews with Debbie Reynolds, a district manager, and with Kenneth

Agorichas, the personnel manager. In 1989, he was interviewed by

district manager Herbert Rapier, and in 1992 he interviewed with district

manager Hassib Darweesh and human resources manager Tom Taylor.

At the time of each interview with a district manager, Mr. Thomas had

been recommended for promotion by at least one of his general

managers. In each instance in which Mr. Thomas was not promoted, the

position was filled with a non-African American.

Irene Johnson, a general manager, testified that she believed Mr.

Thomas was qualified for promotion as early as 1983. She recommended

him to Ms. Reynolds in 1987, to Mr. Agorichas in 1988, and

subsequently approached Mr. Rapier to express her interest in promoting

Mr. Thomas. Mr. Thomas also presented the testimony of general

manager Masood Kasim, who recommended Mr. Thomas to Ms.

Reynolds several times, and to Mr. Rapier and Mr. Darweesh. Both Ms.

Johnson and Mr. Kasim testified that their personal experience in

supervising Mr. Thomas was the basis for their belief that he was

qualified to be promoted to management. In addition, Shoib Ahmed,

who worked with Mr. Thomas when they were unit aids for Ms. Johnson,

testified that Mr. Thomas’ performance as a unit aid was outstanding.’

Mr. Thomas also presented evidence that his former manager, Joe Smith,

A unit aid runs the restaurant in the absence of a manager or assistant

manager. The experience was often a stepping stone to a management position at

Denny's. Mr. Thomas was a unit aid at Ms. Johnson’s restaurant for several months

along with Shoib Ahmed.

A-4

Stated during a state human rights investigation that Mr. Thomas was at

least as promotable as candidates hired off the street into the management

training program.

Mr. Thomas filed a discrimination complaint with the Oklahoma

Human Rights Commission in 1986. Ms. Johnson testified that when she

brought up Mr. Thomas’ name to Ms. Reynolds for promotion, Ms.

Reynolds stated that they had a problem with Mr. Thomas, namely his

Suit against Denny’s. When Ms. Johnson mentioned Mr. Thomas’

Promotion to Mr. Agorichas, he too mentioned that Mr. Thomas had a

suit against Denny’s. Mr. Rapier told Ms. Johnson that they would never

allow Mr. Thomas to become a manager because he had sued Denny’s.

Mr. Kasim testified he told Mr. Darweesh that he wanted to take Mr.

Thomas as a manager and asked why he had not been promoted. Mr.

Darweesh stated: “Would you promote somebody who has sued?” Aplt.

app. at 123.

Denny’s presented evidence that Mr. Thomas did not answer

questions well in his interviews, and was uncomfortable and unable to

make eye contact. The interviewers felt that Mr. Thomas did not have a

clear understanding of the goals and functions of management. Although

Mr. Thomas was provided with management promotion packets, he did

not complete them. These packets were not requirements for promotion,

but were viewed as useful tools for assessing management potential.‘

Mr. Thomas was also advised to take some relevant college courses,

which he did not do.

FAILURE TO PROMOTE

Mr. Thomas argues the trial court improperly instructed the jury

on the element of a prima facie discrimination case that requires a

plaintiff to show he was qualified for the position sought. “We review a

district court’s refusal to give a requested jury instruction for abuse of

An assistant manager was assigned to meet with Mr. Thomas to help him

work on the material in the packets. Although Mr. Thomas missed several of these

meetings, he testified that he was often kept waiting for long periods of time while

the assistant manager worked with another management candidate, that meetings

were set for 2:00 a.m., and that many of the meetings were scheduled early on a

morning after Mr. Thomas had worked a late shift.

A-5

discretion. However, we review de novo the question of whether the

court’s instructions, considered as a whole, properly state the applicable

law and focus the jury on the relevant inquiry.” York vy. American Tel.

& Tel. Co,, 95 F.3d 948, 953 (10th Cir. 1996) (citation omitted).

The framework for assessing discrimination claims that are not

based solely on direct evidence is well known. The plaintiff has the

initial burden of establishing a prima facie case. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973). If the plaintiff does so, the

defendant then has the burden of articulating a “legitimate,

nondiscriminatory reason for the employee’s rejection.” Jd. The plaintiff

must then be afforded a full and fair opportunity to show that the

employer’s proffered reason was in fact a pretext for unlawful

discrimination. See id. at 804. Although this analytical framework was

first articulated in a Title VII case, it applies as well to claims under

section 1981. See Durham v. Xerox Corp. 18 F.3d 836, 839 (10th Cir.),

cert. denied, 115 S. Ct. 80 (1994).

To establish a prima facie case of failure to be

promoted on the basis of [race] discrimination, a

plaintiff must show: (1) that []he was a member of a

protected class; (2) that [Jhe was qualified for the

position; (3) that [Jhe was rejected; and (4) that the

position was filled by someone who was not a member

of the protected class.

Kenworthy v. Conoco, Inc,, 979 F.2d 1462, 1469 (10th Cir. 1992).

Here we are concerned with the second element, the requirement

that a plaintiff show he was qualified for the position sought. The district

court defined this element for the jury as follows:

To show that he was qualified, plaintiff must show that

he possessed the necessary requirements for the position

he sought. You should consider evidence concerning

the education, training or experience necessary to

perform the job. The plaintiff is not required to prove

his qualifications were superior relatively [sic] to other

employees in like positions. The plaintiff must prove,

however, that he was at least as well qualified for the

-0¢ : hired j ‘of him.

A-6

Aplt. app. at 19 (emphasis added). Mr. Thomas contends the court erred

in adding the italicized sentence, arguing that it is directly contrary to this

court’s holding in Kenworthy.’ We agree.

In Kenworthy we held the district court misapplied the law by

holding that the defendant's proffered nondiscriminatory reasons for the

plaintiff's rejection could prevent the plaintiff from establishing a prima

facie case. 979 F.2d at 1469-70. We pointed out that relying on a

defendant’s reasons for the adverse action as a basis for ruling against a

plaintiff at the prima facie Stage raises serious problems under the

McDonnell Douglas framework because it frustrates a plaintiff's ability

to establish that the defendant’s proffered reasons were pretextual. See

id. at 1470. If at the prima facie Stage the fact finder credits the reasons

offered by the defendant for the failure to be promoted, the jury is not

required to even consider the plaintiff's evidence on the critical issue of

pretext. In Kenworthy and in

Health Ctr, 941 F.2d 1115 (10th Cir. 1991), upon which

relied, we were concerned with subjective qualifications. Such

subjective criteria “are particularly easy for an employer to invent in an

effort to sabotage a plaintiff's prima facie case and mask discrimination.”

irli » 73 F.3d 999, 1005 n.8 (10th Cir.), cert.

denied, 116 S. Ct. 2500 (1996). To avoid this result, we held, in

agreement with other courts addressing the issue, that the employer’s

subjective reasons are not properly considered at the prima facie stage,

and should instead be “considered in addressing whether those articulated

reasons are legitimate or merely a pretext for discrimination.” Id.

Applying our holding, we stated that a prima facie showing can be made

through credible evidence that a plaintiff was qualified even if that

evidence was disputed by the employer, and that this burden may be met

Notwithstanding the concession in its brief that Mr. Thomas had properly

objected below, Denny's Suggested for the first time at oral argument that Mr.

Thomas did not adequately inform the trial court of his objection to this instruction

in light of Kenworthy. This argument not only comes too late,

18 F.3d 836, 841 n.4 (10th Cir.), cert. denied, 115 S. Ct. 80 ( 1994), but our review

of the record reveals that it is utterly lacking in merit. The exchange between court

and counsel, as well as the court’s order denying Mr. Thomas’ motion for new trial,

clearly reveal that the court understood the nature of the objection and simply did not

agree with it. Indeed, counsel for Mr. Thomas quoted the relevant portion of

Kenworthy to the court, which dismissed it as “the rhetoric of the appellate judges,”

apit. app. at 136, and stated “{i}t can’t be the law. That just can’t be the law,” id, at

137.

A-7

through the plaintiff's own testimony and that of co-workers who were

in a position to know the plaintiff's qualifications. ]d.°

In the instant case, as in Kenworthy and MacDonald, the

qualifications at issue were purely subjective. As Denny’s conceded in

oral argument, it had no posted objective criteria that were applied across

the board to all candidates for promotion. The record indicates that

promotion decisions were made on an ad hoc basis, and were determined

by the interviewer’s subjective evaluation. Mr. Thomas presented

evidence through his own testimony and that of Ms. Johnson, Mr. Kasim,

Mr. Ahmed, and Mr. Smith that he was qualified to be promoted. This

evidence was clearly sufficient under Kenworthy to establish a prima

facie case and thus entitled Mr. Thomas to a proper instruction under

which the jury could consider his evidence of pretext if it chose to credit

his evidence of his qualifications. Instead, the jury found that Mr.

Thomas had not established a prima facie case under the erroneous

instruction directing it to consider Denny’s evidence that Mr. Thomas

was not as qualified as those promoted. Because the court improperly

instructed the jury that such a finding eliminated the need for it to

consider pretext, Mr. Thomas was deprived of the opportunity to show

that Denny’s proffered reasons were not worthy of credence.

Accordingly, we reverse the verdict on the discrimination claim under

section 1981 and remand for a new trial under proper instructions.’

Our holding in these circumstances may not be applicable to a case

involving “objective hiring criteria applied to all applicants,” Ellis v. United

Airlines, Inc,, 73 F.3d 999, 1005 n.8 (10th Cir.), cert, denied, 116 S.Ct. 2500 (1996),

such as the weight qualifications at issue in Ellis, or the education and experience

requirements involved in York v. American Tel. & Tel. Co,, 95 F.3d 948, 952-54

(10th Cir. 1996).

On appeal, Denny’s relies upon St. Mary's Honor Ctr, v, Hicks. 509 U.S.

502 (1993), to assert that the instruction here was proper. We find nothing in that

case to cast doubt upon our holding in Kenworthy. In St. Mary’s, the Court

addressed whether “the trier of fact’s rejection of the employer's asserted reasons for

its actions mandates a finding for the plaintiff,” Id at 504, and decided that it did not.

In passing, the Court reiterated its holding in i i

Burdine, 450 U.S. 248, 252-53 (1981), that a plaintiff must establish a prima facie

case by a preponderance of the evidence. That statement, however, does not shed

light upon the issue here, namely, what evidence is properly considered by a faci

finder in determining whether a plaintiff has met this initial burden. The Court in

St.Mary's likewise did not directly address the problem with which we were

concerned in Kenworthy, that collapsing the first and second stages of the

A-8

Il]

MIXED-MOTIVES INSTRUCTION

Mr. Thomas maintains the trial court erred in refusing to give the

jury a “mixed-motives” instruction with respect to his claim that he was

denied promotions in retaliation for the filing of a discrimination

complaint. In Waterhouse v. Hopkins, 490 U.S. 228 (1989) the Supreme

Court held that when a discrimination case challenges an employment

decision that may have been “the product of a mixture of legitimate and

illegitimate motives, . . . it simply makes no sense to ask whether the

legitimate reason was ‘the “true reason.”” Id, at 247.8 The Court

therefore rejected the argument that “the plaintiff in a mixed-motives

case must squeeze [his] proof into Burdine’s framework.” Id, at 246-47.

The Court held that “once a plaintiff . . . shows that [an improper motive]

played a motivating part in an employment decision, the defendant may

avoid a finding of liability only by proving that it would have made the

same decision even if it had not allowed [the improper motive] to play

such a role.” Jd, at 244-45 (footnote omitted). On appeal, Denny’s

asserts the instruction was not appropriate here because Denny’s did not

request the instruction and because the evidence did not warrant such an

instruction in any event. We disagree with both arguments.

Although the Court in Price Waterhouse described the burden-

shifting nature of the mixed-motives approach as “most appropriately

deemed an affirmative defense,” jd. at 246, it does not follow from that

Statement that a mixed-motives instruction is only available when

requested by the defendant. Indeed, in that case the defendant disputed

McDonnell Douglas inquiry would eliminate the plaintiff's opportunity to present

evidence of pretext to the fact finder at a point when the fact finder would be able

to consider it. If anything, the analysis in St. Mary’s supports the holding in

Kenworthy. The Court in St. Mary’s described the prima facie requirements as

“minimal,” 509 U.S. at 506, and pointed out that what is not required to establish a

prima facie case “is a degree of proof so high that it would, in absence of rebuttal,

require a directed verdict for the plaintiff .... Quite obviously, however, what is

required to establish the McDonnell Douglas prima facie case is infinitely less than

what a directed verdict demands,” Jd, at 515.

The Civil Rights Act of 1991 superseded in part the mixed-motive analysis

set out in Price Waterhouse v, Hopkins, 490 U.S. 228 (1989). See 42 U.S.C. §§

2000e-2(m), 2000e-5(g)(2)B). Mr. Thomas does not argue on appeal that the 1991

Act applies to him and we therefore do not address the issue.

A-9

both that any discrimination occurred and that it played any part in the

challenged decision. Jd. at 255. As one court has explained:

The Price Waterhouse principle often leads to

the paradoxical situation ... of a plaintiff asking for a

mixed-motive instruction. The Price Waterhouse issue

does not arise for the trier of fact until the plaintiff has

carried the burden of persuading the trier that the

forbidden animus was a motivating factor in the

employment decision but has failed to persuade the trier

that non-discriminatory reasons proffered by the

employer were pretexts and not also motivating factors.

Once the presentation of evidence is sufficient to create

this possibility, the employer has the option of defending

on the Price Waterhouse ground that it would have made

the same decision even in the absence of a

discriminatory motive. Price Waterhouse is thus a

defense. However, for tactical reasons. it is often only

the plaintiff who asks for a Price Waterhouse

instruction, for when requests to charge are submitted,

the employer may well choose to avoid the burden-

shifting language in the Price Waterhouse charge,

hoping that the jury either will not find a forbidden

animus or will believe the burden is on the plaintiff in

the case of a mixed motive. We thus believe that the

plaintiff will be entitled to a burden-shifting instruction

on the Price Waterhouse defense where the evidence is

sufficient to allow a trier to find both forbidden and

permissible motives. In such circumstances, the failure

to give such an instruction would create a risk that the

jury, having agreed with the plaintiff s evidence that a

forbidden animus played a motivating part in the

employment decision but not with the plaintiff s

contention that the employer’s proffered explanations

were pretextual, would mistakenly believe that the

plaintiff had the burden of showing that the same

employment decision would not have occurred in the

absence of the forbidden motive.

Ostrowski v, Atlantic Mut. Ins. Cos., 968 F.2d 171, 181 (2d Cir. 1992).

We agree with the Second Circuit that a plaintiff is entitled to a mixed-

motives instruction upon a proper evidentiary showing even if the

A-10

defendant does not request one. Accord Kenworthy, 979 F.2d at 147]

(“[O]nce a plaintiff has shown that an improper reason was a substantial

or motivating factor in the defendant's adverse treatment, the employer

must prove by a preponderance of the evidence that it would have

reached the same decision even absent the improper motive.”).

We also conclude that Mr. Thomas made such a showing here.

“A plaintiff will be entitled to the burden-shifting analysis set out in Price

Waterhouse upon presenting ‘evidence of conduct or statements by

persons involved in the decision making process that may be viewed as

directly reflecting the alleged [retaliatory] attitude.’” Kenworthy, 979

F.2d at 1471 n.5 (quoting Ostrowski, 968 F.2d at 182). As set out above,

Mr. Thomas presented evidence through the testimony of Ms. Johnson

and Mr. Kasim that several people involved in the promotion decision

process had stated that Mr. Thomas would not be considered for

promotion because of his discrimination complaint. Although Denny’s

points out on appeal that some of these decision makers denied making

the statements, such credibility determinations are for the jury to make

upon a proper instruction. We therefore reverse on the section 198]

retaliation claim and remand for a new trial.

PARALLEL TITLE VII CLAIMS

Mr. Thomas argues that in the event we reverse the jury verdicts

on the section 1981 claims and remand for a new trial, as we have done,

we must also reverse the district court’s findings of fact and conclusions

of law rejecting his parallel claims under Title VII. We agree.

We considered these circumstances in Skinner_v. Total

Petroleum, Inc., 859 F.2d 1439 (10th Cir. 1988) (per curiam). In that

case, as here. the plaintiff brought parallel actions under section 198] and

Title VII. After concluding that the section 1981 claim had to be retried,

we pointed out:

In a case under Title VII and § 1981 arising out

of the same facts, the commonality of factual issues

between the § 1981 and Title VII claims is nearly all-

encompassing. The elements of each cause of action

have been construed as identical, and a jury verdict on

the issue of liability ... under § 1981 is normally

A-1]

conclusive on the issue of liability in a parallel action

under Title VII.

Id. at 1444 (citations omitted).

We further observed:

The strictures of the Seventh Amendment are

particularly applicable in a case where, due to the

presence of both equitable and legal issues, trial is both

to the jury and to the court. In such a situation, when a

case involves both a jury trial and a bench trial, any

essential factual issues which are central to both must be

first tried to the jury, so that the litigants’ Seventh

Amendment jury trial rights are not foreclosed on

common factual issues.

Id. at 1443.

Because “the jury’s findings on factual issues common to claims

under § 1981 and Title VII are binding on the district court,” id, at 1445

n.6, and because we have held that the section 1981 claims here must be

retried to the jury, we must vacate the district court’s ruling on the

parallel Title VII claims as well to preserve the parties’ Seventh

Amendment rights.

LIMITATION ON DAMAGES

Mr. Thomas contends the district court erred in instructing the

jury it could only award damages for discrimination and/or retaliation

occurring after September 12, 1989, the date two years prior to the filing

of the lawsuit. The court thus ruled that the award of damages was

limited by the applicable statute of limitations. Mr. Thomas maintains

that he can recover damages beyond that period under a theory of

continuing violation, asserting that because the alleged illegal acts began

prior to the limitation period and continued up to the filing of the suit, he

is entitled to recover for all of the continuing course of conduct.

This continuing violation theory is a creation of federal law that

arose in Title VII cases. This theory recognizes that certain violations are

continuing in nature and provides that a claim asserting such a violation

A-12

is timely if administrative charges are filed within the period applicable

to the last act in the continuing series. See e.g., United Air Lines, Inc. v.

Evans, 431 U.S. 553, 561-62 (1977) (Marshall, J., and Brennan, J..

dissenting). Although this theory thus allows a plaintiff's claims to

encompass acts that would otherwise be time-barred by the relatively

short limit for filing administrative charges, a plaintiff can only receive

back pay for the two years prior to the filing of administrative charges.

See id.; see also 42 U.S.C. § 2000e-5(g).

As an initial matter, we have some doubt that a principle of

federal law pertaining to a Title VII limitation period should be applied

to a section 1981 claim. Mr. Thomas relies on the opinion in Chung v.

Pomona Valley Community Hosp.,667 F.2d 788, 791 (9th Cir. 1982), in

which the court concluded that the continuing violation rule did apply to

a section 1981 claim, observing that while state law might govern the

choice of an applicable period of limitation, federal law would govern the

expiration of that period. Chung, however, was decided prior to the

Supreme Court’s decision in Wilson v. Garcia, 471 U.S. 261 (1985), in

which the Court held that when borrowing state limitation periods under

42 U.S.C. § 1988, a court must also borrow a state’s ““provisions

regarding tolling, revival, and questions of application.’” Jd. at 269 n.17

(quoting Johnson v. Railway Express Agency, Inc,, 421 U.S. 454, 464

(1975)).

Moreover, while the continuing violation theory as it funci.ons

in a Title VII case in essence extends the limitation period, it does not

address the period within which damages can be recovered. That period,

as we have stated above, is specifically limited by section 2000e-5(g) to

the two years prior to the filing of administrative charges. See Komegay

y. Burlington Indus., Inc., 803 F.2d 787, 788 (4th Cir. 1986). Moreover,

we agree with the court in Kornegay that because the continuing violation

theory is a creature of the need to file administrative charges, and

because a section 1981 claim does not require filing such charges before

a judicial action may be brought, the continuing violation theory is

simply not applicable. The state limitation period in a section 1981 suit

serves the same function that section 2000e-5(g) performs in a Title VII

case, that is, it provides a cap on the period for which damages can be

recovered. Accordingly, the district court here properly instructed the

jury that any damages awarded under section 1991 were to be limited by

the applicable two year-statute of limitation.

A-13

CONSTRUCTIVE DISCHARGE

Finally, we address Mr. Thomas’ contention that the district court

erred in refusing to send the constructive discharge claim to the jury. As

we pointed out in note one, supra, under the law in effect at the relevant

time, a claim of discriminatory discharge was not actionable under

section 1981. See Patterson vy. McLean Credit Union, 491 U.S. 164

(1989). Thus the district court did not err in refusing to send the

constructive discharge claim brought under section 1981 to the jury, even

though the court did not rely on Patterson in so ruling. A claim of

constructive discharge is, however, cognizable under Title VII. The court

here ruled that the evidence was not sufficient to create a fact issue on the

claim and would presumably have reached the same result if the claim

had been asserted under Title VII. Because we are remanding this case

for further proceedings and vacating the district court’s disposition of the

Title VII claims. We address the merits of the trial court’s disposition

briefly in the interests of judicial economy.

A plaintiff asserting a claim of constructive discharge must

produce evidence that the “‘employer by its illegal discriminatory acts

has made working conditions so difficult that a reasonable person in the

employee’s position would feel compelled to resign.”’ Spulak v. K Mart

Corp., 894 F.2d 1150, 1154 (10th Cir. 1990) (quoting Derr v, Gulf Oil

Corp., 796 F.2d 340, 344 (10th Cir. 1986)). “‘[P]roof of constructive

discharge depends upon whether a reasonable [person] would view the

working conditions as intolerable.”’ Id. (quoting Derr, 769 F.2d at 344)

(internal quotations omitted).’ Our review of the record reveals that the

conditions of Mr. Thomas’ employment, viewed most favorably to his

claim, do not rise to the level necessary to create a fact issue on this

claim, and that the district court was therefore correct in so ruling.

Denny's argues on appeal that this claim must fail in part because Mr.

Thomas presented no evidence that the actions of which he complains were taken by

Denny's personnel with the specific intent to force him to resign. We have held,

however, that the employer’s subjective intent is irrelevant and that the employer

will be held to have intended the reasonably foreseeable consequences of its acts.

See Spulak v. K Mart Corp., 894 F.2d 1150, 1154 (10th Cir. 1990) (quoting Derr v.

Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir. 1986)). Thus the lack of evidence of

Denny's specific intent to force Mr. Thomas to resign does not, of itself, defeat his

constructive discharge claim.

A-14

In sum, we REVERSE the jury verdict on the section 198]

claims asserting discriminatory and retaliatory failure to promote. We

also REVERSE the district court’s disposition of the Title VII claims.

We REMAND these claims for further proceedings in light of this

opinion. We AFFIRM the district court's ruling that Mr. Thomas can

recover damages only for the two years preceding the filing of his

lawsuit, and we AFFIRM the lower court’s disposition of the constructive

discharge claim.

REVERSED in part, AFFIRMED in part, and REMANDED for

further proceedings.

Appendix B A-15

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

RONALD K. THOMAS, )

Plaintiff,

vs. ! Case No. 91-C-715-C

DENNY’S, INC.,

Defendant. ‘

This matter came before the Court for non-jury trial on

plaintiff's claims brought pursuant to Title 42, United States Code,

Section 2000e. The issue having been duly considered and a decision

having been rendered in accordance with the Findings of Fact and

Conclusions of Law filed contemporaneously herewith,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED

that judgment is entered for defendant, Denny’s, Inc., and against

plaintiff, Ronald K. Thomas.

IT IS SO ORDERED this 7th day of June, 1995.

ls/___H. Dale Cook _

H. DALE COOK

United States District Judge

Appendix C A-16

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

RONALD K. THOMAS,

Plaintiff,

Case No. 91-C-715-C

vs.

DENNY’S, INC.,

i i i ee

Defendant.

FINDINGS OF FACT

AND

CONCLUSIONS OF LAW

This matter came before the Court for trial by jury January 17

through 30, 1995. Plaintiff asserted claims of race discrimination and

retaliation. The jury considered plaintiff s claims under Title 42, United

States Code, Section 1983, and returned separate verdicts in favor of the

defendant as to each claim. Simultaneously for nonjury consideration,

the Court considered plaintiff's claims under Title 42, United States

Codes, Section 2000e, Title VII of the 1964 Civil Rights Act.

The scope of the Court’s consideration of the evidence is from

1981, when plaintiff first expressed to Denny’s his interest in being

promoted to management, through November 1991, the effective date

of the amendment to Title VII.

Plaintiff, an African-American citizen, alleges that from the

onset of his employment with Denny’s in 1978, he performed at all

times as an employee capable of being promoted to a position in

management. Plaintiff asserts that he first expressed a desire to be

promoted to management in 1981, and that he continued to request

promotion until his employment with Denny’s ended in 1993. Plaintiff

asserts that he demonstrated the ability and willingness to be a manager.

Plaintiff asserts that non-African-American employees with fewer

qualifications and experience were Promoted to management.

A-17

In 1986, Plaintiff filed a complaint of race discrimination with

the Oklahoma Human Rights Commission. Plaintiff asserts that after he

filed his complaint, despite his qualifications, the defendant retaliated

against him by refusing to promote him into management.

In response, Denny’s denies discriminating against the plaintiff

in any manner. Denny’s contends that its managers interviewed and

evaluated plaintiff s qualifications for a management position on several

occasions, but that plaintiff did not demonstrate the skills, knowledge

and ability to be promoted. Denny’s offered plaintiff the opportunity to

participate in a preparatory management program. Denny’s contends

that plaintiff showed little interest in the program and failed to complete

it. Denny’s denies that plaintiff was a qualified candidate for

management and denies retaliating against the plaintiff. Denny’s also

denies that race was a factor in its decision not to promote the plaintiff.

After consideration of the pleadings, testimony and exhibits

admitted at trial, the briefs and arguments presented by counsel, the

Court enters the following findings of fact and conclusions of law.

FINDINGS OF FACT

A lurisdicti Ly

¢ Plaintiff Ronald K. Thomas is a male African-American

citizen of the United States, a resident of Tulsa, Oklahoma, and this

judicial district.

x A Defendant Denny’s is a California Corporation doing

business in the State of Oklahoma.

3. Denny’s was at all times pertinent to this action

engaged in an industry affecting commerce with fifteen or more

employees for each of twenty or more calendar weeks in the current or

proceeding calendar year.

4. During his employment with Denny’s, plaintiff worked

at various restaurants located in the Tulsa area which are owned and

operated by Denny’s.

A-18

5. Plaintiff timely filed charges of race discrimination with

the Oklahoma Human Rights Commission which were transferred to the

Equal Employment Opportunity Commission (EEOC).

6. In 1990, the EEOC issued a “no-cause” determination,

concluding that Denny’s had not discriminated against the plaintiff. In

1991, the EEOC dismissed plaintiff's complaint and issued a Notice of

Right to Sue. Plaintiff filed another complaint with the EEOC in 1993,

and subsequently amended his complaint. Plaintiff's second complaint,

as amended, was dismissed by the EEOC.

7. Plaintiff timely filed the action herein.

B. Background

8. In 1978, at the age of seventeen, plaintiff was hired by

Denny’s as a service assistant (dishwasher/busboy).

9. Plaintiff graduated from high school in 1979, and was

promoted by Denny’s to the position of cook.

10. Directly after high school plaintiff attended Spartan

School of Aeronautics, a vocational/technical school, while working part

time as a cook at Denny’s. In 1980, plaintiff discontinued his education

at Spartan without receiving a degree and worked full time for Denny’s.

Plaintiff s job performance as a cook was good and he became a “cook

trainer” for Denny’s new employees.

11. At plaintiff’ s request in 1981, plaintiff was interviewed

by Terry Lee, a district manager with Denny’s, for possible promotion

to management.

12. In 1982, plaintiff spoke to James Carney, a general

manager with Denny’s, regarding his desire to be promoted to

management.

eS. In 1984, plaintiff completed an application and was

formally interviewed by Michael Kearney, a general manager, for a

management position. Plaintiff was interviewed approximately ten

times between 1981 and 1993 for promotion into management.

A-19

14, In 1985, Denny’s offered plaintiff the opportunity to

participate in the Preparatory Management Program, (the “PMP”). The

PMP is a self-motivated program designed to aid individuals who are

interested in a management position and a mechanism used by

management to assess an individual’s potential skills as a manager.

Although there is no predetermined time in which to complete the

program, those who successfully completed the program could be

offered entry into the Management Training Program (MIT). Employers

with prior restaurant experience or with prior college training qualified

for direct participation in the MIT program.

15. Richard Clemons, an assistant manager at Denny’s,

reviewed the requirements of the PMP packet with plaintiff. Plaintiff

failed to appear at several meetings which were scheduled by Mr.

Clemons as part of the program. After approximately eight weeks of

effort, plaintiff dropped the PMP without completing its requirements.

Plaintiff did not make a dedicated effort to complete the PMP.

16. Irene Johnson, a unit manager who was fond of the

plaintiff, provided him the opportunity to work as a unit aid. A unit aid

functions in a quasi-management position overseeing the restaurant

activities and filling in for any absent restaurant employee. Ms. Johnson

considered plaintiff a good employee and recommended him to the

district manager for participation in the MIT.

17. In his performance reviews by management from 1978

through 1992, plaintiff received average to below standard ratings

through the mid-1980's. In the late 1980's, plaintiff's ratings increased

to above average although there were some intermittent below standard

ratings. Plaintiff's physical appearance throughout his employment was

below the standards required by Denny’s.

18. Plaintiff was considered by all Denny’s managers to be

a good cook and a diligent worker.

19. The majority of the employees who entered and

successfully completed the MIT were either college graduates, had

completed relevant college courses, or had prior management

experience. Plaintiff had not taken any college courses. Denny’s

recommended that the plaintiff attend a local college as preparatory

training for promotion, but plaintiff did not follow through with the

A-20

recommendation. Plaintiff failed to show any incentive to take the

necessary steps which would lead to a managerial position.

20. There is no indication that plaintiff worked in a racially

hostile environment. The evidence was undisputed that plaintiff was

well liked by his co-workers, and there was an absence of any racial

slurs directed toward the plaintiff or other African-American employees.

21. Although a few of Denny’s local managers

recommended plaintiff for participation in the MIT, there was no

evidence that plaintiff had the requisite management experience or

college education necessary to qualify him for the MIT program or

direct promotion into management.

22. The district managers, general managers, and the

personnel manager who interviewed Plaintiff unanimously testified that

Plaintiff lacked the requisite communication skills, professional

presence, business ability, and initiative to enter the MIT or be promoted

to an assistant manager or manager. It was recommended that plaintiff

enroll in some business courses to acquire skills in business management

including accounting, marketing and management discipline. Again,

plaintiff failed to take the required initiative to qualify for the position

he sought.

y The evidence established that there were several white

employees who were offered participation in a preparatory management

training program, but they failed to complete the program and

accordingly were not considered for management. There was also

evidence that several white assistant managers were not promoted to

manager. A bona fide employment qualification was the determining

factor used by upper management for selection of employees for

promotion to a unit manager. There is a complete absence of evidence

that race played any part in Denny’s promotion policy.

24. Denny’s promoted Imogene Warren and Andy

Goodwin into management. Both of these employees are African-

American. Imogene Warren had taken bookkeeping and accounting

courses prior to joining Denny’s. Andy Goodwin started at Denny’s as

a cook and qualified for the management program. Denny’s also offered

a management position to John Meaus, an African-American male, but

he declined the offer in order to complete his college education.

A-21

25. There was no evidence to indicate that plaintiff was

retaliated against by Denny’s for having filed a race discrimination

complaint with the Oklahoma Human Rights Commission in 1986.

Both prior to and after filing the complaint, plaintiff lacked the

necessary qualifications for participation in the MIT or for promotion

into management, and plaintiff lacked the fortitude to obtain the training

or education which would have qualified him for a management

position.

26. Plaintiff had little knowledge of the restaurant industry,

business ability or management skills even though he was considered to

be a good cook, a good employee and had been employed with Denny’s

since 1979,

ae Plaintiff was interviewed in 1986 by Debbie Reynolds

(the district manager), Ken Agorichas (the human resource manager),

and Jaimie Cullinan (a general manager). Collectively these managers

concluded that plaintiff lacked the initiative, commitment, education and

ability to qualify for a management position. The Court finds that this

conclusion is supported by the evidence.

28. At his request, in 1992, plaintiff was again interviewed

by Denny’s for a management position. Plaintiff had not completed the

PMP package or enrolled in any college courses. Throughout the course

of his employment, plaintiff failed to act upon the suggestions of

management to qualify for participation in the MIT program. Plaintiff s

request for promotion was again denied in 1992. On February 13, 1993,

plaintiff voluntarily resigned his position as a cook with Denny’s.

CONCLUSIONS OF LAW

ry jurisdicti iV

l. All filing requirements of Title VII of the 1964

Civil Rights Act, 42 U.S.C. §2000(e)-(5)(e) which are prerequisites to

the jurisdiction of this Court have been satisfied by the plaintiff.

2. The defendant is an employer within the

meaning of 42 U.S.C. §2000e-(b).

B. Nontiahility of Defendant D .

A-22

3. Denny’s did not commit unlawful acts of race

discrimination or retaliation against the plaintiff by its failure to promote

plaintiff into management.

4. In order to establish a prima facie case of race

discrimination by failure to promote, plaintiff must show by a

preponderance of the evidence each of the following essential elements:

(1) that he is a member of the class protected by the statute; (2) that he

applied and was qualified for an available position in management, (3)

despite his qualifications, he was rejected by defendant’s failure to

promote him; and (4) after he was rejected the defendant continued to

seek applicants for positions in management, and that the defendant

filled the management positions with non-A frican American employees.

See, Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1469 (10th Cir. 1992)

and St. Mary’s Honor Center v, Hicks, 113 S.Ct. 2742 (1993).

'F The Court concludes that plaintiff did not

establish his prima facie case of race discrimination by a preponderance

of the evidence. First, the evidence established that the plaintiff was not

qualified to either participate in the MIT program or be promoted into

management. Plaintiff lacked the initiative to complete the PMP

package which would have positioned him to commence the MIT

program. Neither did plaintiff take relevant college preparatory classes

to acquire a basic understanding of business and finance.

6. The Court concludes that those individuals who

were invited to participate in the MIT program and were advanced to

management had either (1) prior management experience in the industry,

(2) had completed several college preparatory course, or (3) had

obtained a college decree. Rudimentary educational skills were

necessary prerequisites for participation and completion of the MIT

program. Plaintiff lacked both the initiative and ability to complete even

the PMP package which indicated his lack of readiness for the MIT

program and a management position.

‘2 Second, plaintiff failed to establish by a

preponderance of the evidence that Denny’s failed to promote qualified

African-Americans into management or allow them participation in the

MIT program. The evidence established that Denny’s promoted

qualified African-Americans to management.

A-23

8. In order to establish a prima facie case of

retaliation, plaintiff must show: 1) protected opposition to

discrimination; (2) adverse action by an employer contemporaneous with

or subsequent to the employee’s protected activity; and (3) a causal

connection between such activity and the employer’s action. Purrington

v. University of Utah, 996 F.2d 1025, 1033 (10th Cir. 1993).

9. In order to meet this burden, plaintiff must

show a “a causal connection between the first two elements, tha’ is, a

retaliatory motive playing a part in the adverse employment actions. “Id.

10. Plaintiff failed to establish a “causal

connection” between his filing a charge of race discrimination and

Denny’s decision not to promote him to management and/or not to offer

him participation in the MIT program. The Court concludes that the

defendant’s failure to promote plaintiff into management was unrelated

to plaintiff filing a charge of race discrimination. The evidence

established that there was no difference in the manner in which the

defendant treated the plaintiff regarding its decision not to promote him

to management either prior to or after plaintiff filed the complaint with

the Oklahoma Human Rights Commission. Thus, plaintiff failed to

establish a causal connection evidencing retaliation.

11. _ Plaintiff failed to show that Denny’s engaged

in any discriminatory or differential treatment which would support a

claim of race discrimination or retaliation.

Based on the evidence presented, the Court concludes that the

plaintiff, Ronald K. Thomas, has failed to establish either his prima facie

case of race discrimination or retaliation. Accordingly, the Court finds

in favor of the defendant Denny’s, Inc. on plaintiff's claims under Title

42, United States Code, Section 2000e, Title VII of the 1964 Civil

Rights Act.

IT IS SO ORDERED this 7th day of June, 1995.

ts/H, Dale Cook

H. DALE COOK

United States District Judge

Appendix D A-24

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

RONALD K. THOMAS, )

Plaintiff, ;

vs. Case No. 91 C-715-C

DENNY’S, INC.,

Defendant. ‘

JUDGMENT

Judgment, pursuant to unanimous jury verdict, is entered in

favor of the Defendant, Denny’s Inc., and against Plaintiff, Ronald K.

Thomas, on his claims of failure to promote based on race

discrimination in violation of the Civil Rights Act of 1866, 42 U.S.C.

§ 1981, and retaliation for filing a charge of race discrimination, also

under Section 1981. This Court previously determined that any jury

claims under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§

2000¢ et seg.) after the effective date of the Civil Rights Act of 1991

would not be actionable, pursuant to 42 U.S.C. § 1981a(a)(1), since

Plaintiff had claims under Section 1981. This Court also previously

granted Defendant's Motion For Judgment As A Matter Of Law on

Plaintiff s claims for constructive discharge under Section 1981 and for

infliction of emotional distress.

The Court has reserved for its own determination and will issue

separate Findings of Fact and Conclusions of Law on Plaintiff's non-

jury claims of failure to promote based on race discrimination and

retaliation for filing a charge of race discrimination in violation of the

Civil Rights Act of 1964, 42 U.S.C. §§ 20006 et seq., to the extent that

they are not disposed of by the jury’s verdict on the Section 1981

claims.

ENTERED this _2]st_ day of February, 1995.

—___/s/H. Dale Cook _

H. DALE COOK

Senior United States District Judge

A-25

APPROVED AS TO FORM:

By:

___/s/ Brian S. Gaskill

G. Steven Stidham, OBA #8633

Brian S. Gaskill, OBA #3278

SNEED, LANG ADAMS & BARNETT

Two West Second Street, Suite 2300

Tulsa, Oklahoma 74103-3136

(918) 583-3145

D. Gregory Bledsoe, OBA #874

Council Oak Center

1717 South Cheyenne Avenue

Tulsa, Oklahoma 74119-4664

(918) 599-8123

Attorneys for Plaintiff,

Ronald K. Thomas

——/s/ Frank M. Hagedom

Frank M. Hagedorn, Esq.

Judith A. Colbert, Esq.

J. Patrick Cremin, Esq.

Hall, Estill, Hardwick, Gable,

Golden & Nelson, P.C.

320 South Boston Building, Suite 400

Tulsa, Oklahoma 74103-3708

Attorneys for Defendant

Appendix E A-26

THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

RONALD K. THOMAS

VS NO. 91-C-715-C

DENNY ’S, INC.

INSTRUCTIONS

TO THE

JURY

OPENING -- PROVINCE OF THE COURT

Ladies and gentlemen of the Jury, it is now time for the Court to

advise you as to the law to apply in this case; and I ask that you pay close

attention -- as you have during the trial -- because you must consider all of

these instructions in your deliberations.

You have heard the evidence and the arguments, and the Court now

instructs you as to the law governing the case.

Although you as Jurors are the sole judges of the facts, you are duty

bound to follow the law as stated in the instructions of the Court and to

apply the law, so given, to the facts as you find them from the evidence

presented to you.

Regardless of any opinion you may have as to what the law ought

to be, it would be a violation of your sworn duty to base a verdict upon any

other view of the law than that given to you in these instructions from the

Court

CONSIDER WHOLE INSTRUCTIONS

You are not to single out any certain sentence or any individual

point or instruction and ignore the others, but you are to consider all

instructions as a whole; and you are to regard each instruction in the light of

all the others.

)

;

A-27

PLAINTIFF’S- BURDEN OF PROOF

In this case it is the responsibility of the plaintiff to prove every

essential part of his claim by a “preponderance of the evidence.” This is

sometimes called the “burden of proof.”

You are instructed that the term preponderance of the evidence does

not necessarily mean the greater number of witnesses. Rather, a

“preponderance of the evidence” simply means an amount of evidence

which is enough to persuade you that the plaintiff's claim is more likely true -

than not true.

In deciding whether any fact has been proved by a preponderance

of the evidence you may consider the testimony of all the witnesses,

regardless of who may have called them, and all of the exhibits received in

evidence, regardless of who may have produced them.

SHIFTING BURDENS -- BOTH PARTIES

There are two concepts in a civil rights trial that are distinguishable.

The first concept is what is called the “burden of proof” as to the ultimate

trial issue. In this case the ultimate trial issue is whether Denny’s

intentionally and purposefully discriminated against the plaintiff Ronald

Thomas, by its failure to promote him to management based on his race. As

previously instructed, the burden of proof at all times remains the

responsibility of the plaintiff.

The second concept involves a shifting of responsibility between the

parties to produce evidence to the jury to persuade you of a fact. This is

commonly referred to as a “burden of persuasion.”

In an action based on allegations of race discrimination under the

Civil Rights Act, the plaintiff has the initial burden of establishing a “prima

facie” case of discrimination by a preponderance of the evidence. Later in

these instructions, the elements necessary for plaintiff to establish a prima

facie case will be provided to you.

If plaintiff establishes a prima facie case by a preponderance of the

evidence, a presumption of discrimination arises. The defendant then has a

burden of production, to rebut this presumption by stating a legitimate

nondiscriminatory reason for its actions toward plaintiff.

A-28

If the defendant articulates reasons for not promoting plaintiff other

than race discrimination a factual dispute exists, then the burden shifts back

to the plaintiff to persuade you by a preponderance of the evidence that

defendant’s stated reasons are pretextual, that is, a cover up for a racially

discriminatory motive.

As previously stated, even though this formula proves a shifting of

the burden of persuasion and production of evidence, the overall burden of

proof as to the ultimate trial issue as to whether the defendant engaged in

| purposeful and intentional race discrimination remains with the plaintiff at

| all times.

INFERENCES AND PRESUMPTIONS -- DEFINED

An inference is a deduction or conclusion which reason and

common sense lead the jury to draw from facts which have been proved.

A presumption is a conclusion which the law requires the jury to

make from particular facts in the absence of convincing evidence to the

contrary, but, unless so outweighed the jury is bound to find in accordance

with the presumption.

CLAIMS AND DEFENSES

This is a civil action brought by the plaintiff Ronald Thomas against

the defendant Denny’s, Inc. seeking money damages for alleged racial

discrimination in violation of his civil rights. Plaintiff brings this action

pursuant to the Federal Civil Rights Act, Title 42, United States Code,

Section 1981.

In support of his claim plaintiff an African-American citizen alleges

that he was employed by Denny’s, Inc. from 1978 until February 12, 1993.

Plaintiff asserts that in the early 1980's Denny’s failed to promote him to a

position of manager and/or assistant manager because of his race. Plaintiff

asserts that from the time of his employment in 1978 and throughout his

employment with Denny’s, he performed at all times as an employee capable

of being promoted and capable of being a candidate for the position of

manager and/or assistant manager, and that he continued to express that

desire to be promoted to management until his employment with Denny’s

ended in 1993. Plaintiff asserts that he demonstrated the ability and

willingness to perform all requirements necessary to become a manager

and/or assistant manager. Plaintiff further asserts that non-A frican-American

A-29

employees with fewer qualifications and experience were promoted to

management positions.

Plaintiff seeks compensatory damages in the form of back wages for

which he alleges he would have earned if he had been promoted to

management by Denny’s and compensatory damages for his alleged

emotional suffering as a consequence of the alleged discriminatory treatment

by Denny’s.

Additionally, plaintiff alleges that after he filed a claim of

discrimination against Denny’s, Denny’s retaliated against him by failing to

promote him to management.

In response to these allegations, Denny’s denies that it discriminated

against the plaintiff in any manner. Denny’s contends that its managers

considered and interviewed plaintiff, Ronald Thomas, for a management

position on several different occasions, but that plaintiff did not demonstrate

the skills and knowledge to be promoted into management. Denny's

contends that it attempted to assist plaintiff to improve his skills, but alleges

that plaintiff made very little progress. Denny’s further asserts that plaintiff

failed to actively pursue a management position at Denny’s in that he

allegedly failed to complete Denny’s preliminary training program, allegedly

failed to perform other objectives requested of him in order to get into

management and allegedly failed to appear for meetings as scheduled by

Denny’s. Denny’s further denies that plaintiff was as or better qualified for

a management position than the other persons selected by Denny’s.

Denny’s denies plaintiffs claim of race discrimination by asserting

that it placed qualified African American in management positions during

plaintiff's employment with Denny’s. Further, Denny’s denies plaintiff s

claim of retaliation and asserts that its actions regarding the plaintiff, Ronald

Thomas, were nondiscriminatory and were made for legitimate business

reasons.

CLAIMS OR DEFENSES NOT PROOF

The claims of the plaintiff and the defenses of the defendant are

provided to you simply to define the issues to be tried between the parties,

and such statements do not constitute proof of any fact in issue in this case.

A-30

CORPORATION CAN ACT ONLY THROUGH ITS

MANAGERS AND EMPLOYEES

A corporation such as Denny’s, Inc. is in law a person; but of course

it cannot act otherwise than through its directors, managers or employees.

A corporation is responsible for the acts of its directors, managers, or

employees, provided such acts are done within the actual, apparent, or

adopted scope of such directors, managers or employees authority, as would

usually be the case if done in the ordinary course of such director, manager

or employee’s employment, or in the ordinary course of the corporation's

business.

When the act of the director, manager or employee is within the

scope of that person’s employment or apparent authority, it is the act of the

corporation itself, and the corporation is held legally responsible for it.

ALL PERSONS EQUAL BEFORE THE LAW -- CORPORATIONS

This case should be considered and decided by you as an action

between persons of equa! standing in the community, of equal worth, and

holding the same or similar stations in life. A corporation is entitled to the

same fair trial at your hands as a private individual. The law is no respecter

of persons. All persons, including corporations, stand equal before the law

and are to be dealt with as equals in a court of justice.

PLAINTIFF’S CLAIMS

42 U.S.C. § 1981

Plaintiff asserts two claims for violation of his civil rights under

Title 42, United States Code Section 1981, based on allegations of race

discrimination by Denny’s failure to promote him into management.

In this regard plaintiff asserts that he commenced working for

Denny’s, Inc. in 1978 primarily performing the duties of a cook receiving an

hourly wage. Plaintiff asserts that some time prior to 1985 he made

application to enter into a new contractual relationship with Denny’s by

applying for a position in management. This new position would include

new monetary benefits.

Under plaintiff s first claim he asserts that Denny’s denied him the

right to enter into this new contractual relationship by its failure to promote

him to management because of his race.

A-31

Under plaintiff's second claim, he asserts that Denny’s denied him

the right to enter into a new contractual relationship by its failure to promote

him in retaliation for having filed a claim of discrimination.

STATUTE DEFINING THE CLAIM

42 U.S.C. § 1981

The statutory provision in which plaintiff asserts his claim, Title 42,

United States Code, Section 1981 provides as follows:

All persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make

and enforce contracts, to sue, be parties, give evidence, and

to the full and equal benefit of all laws and proceedings for

the security of persons and property as is enjoyed by white

citizens and shall be subject to like punishment, pains,

penalties, taxes, licenses, and exactions of every kind, and

to no other.

The purpose of Section 1981 is to secure freedom to all persons and to

protect individuais in the full enjoyment of the rights of persons and property

by prohibiting all racially motivated discrimination.

THE RIGHT TO CONTRACT

42 U.S.C. § 1981

Section 1981 guarantees each person, regardless of race, freedom

from discrimination in the making and enforcing of contracts. The

opportunity to contract, or enter into agreements, is denied in violation of

Section 1981 when, on the basis of race, a defendant refuses to contract at

all or when, on the basis of race it varies the terms of its offers or

acceptances to contract. If, because of his race, the plaintiff is denied the

right to contract entirely, or is given less opportunity to contract, or is offered

less favorable contractual terms or unequal treatment so as to discourage him

from entering the contract, he has a claim under Section 1981.

ESSENTIAL ELEMENTS OF PLAINTIFF’S

PRIMA FACIE CASE

FAILURE TO PROMOTE

To establish a prima facie claim of failure to promote on the basis

of race under 42 United States Code, Section 1981, plaintiff Ronald Thomas

A-32

must prove by a preponderance of the evidence each of the following four

elements:

& That he is a member of the class protected by the statute;

pe That he applied and was qualified for an available position

in management;

3. Despite his qualification, plaintiff was rejected by

defendant’s failure to promote him; and

4. That after plaintiff was rejected the defendant continued to

seek applicants for positions in management, or that

defendant filled the management positions with non-

African- American employees.

QUALIFIED APPLICANT - DEFINED

To meet his initial burden, the plaintiff must prove that he was

qualified for the position for which he applied. To show that he was

qualified, plaintiff must show that he possessed the necessary requirements

for the position he sought. You should consider evidence concerning the

education, training or experience necessary to perform the job. The

plaintiff is not required to prove his qualifications were superior relatively

to other employees in like positions. The plaintiff must prove, however,

that he was at least as well qualified for the position as the person hired

instead of him.

ESSENTIAL ELEMENTS OF PLAINTIFF’S

PRIMA FACIE CASE

RETALIATION

Regarding plaintiff's second claim of retaliation, you are instructed

that to establish a prima facie claim of retaliation under 42 United States

Code, Section 1981, plaintiff Ronald Thomas must prove by a

preponderance of the evidence each of the following elements:

l. That he engaged in protected opposition to race

discrimination or participated in a legal process arising out

of race discrimination;

That he suffered an adverse employment action

contemporaneous with or subsequent to such opposition or

participation; and

3. ‘There is a causal connection between the protected activity

and adverse employment action.

riven

A-33

You are instructed that by plaintiff filing a claim of race

discrimination with a state or federal agency, the first element of the above

prima facie case is satisfied.

You are further instructed as to the second and third element,

plaintiff asserts that the “adverse employment action” was Denny’s

decision not to promote plaintiff to a management position by reason of

race and/or retaliation for filing a claim of race discrimination.

CAUSAL CONNECTION -- DEFINED

The requisite causal connection may be established by evidence of

circumstances that justify an inference of retaliatory motive or intent.

DISCRIMINATORY-- INTENT

To establish his case under section 1981, the plaintiff must

convince you by a preponderance of the evidence that the defendant was

motivated by a racially discriminatory purpose - that is, the plaintiff must

prove that the defendant intentionally and purposefully discriminated based

on race and/or retaliated against him because he filed a claim based on race

discrimination.

In determining whether the defendant intentionally, discriminated

and/or retaliated on the basis of race, you may consider all the evidence

presented in the case. The plaintiff may use either direct or indirect

evidence to meet this burden in attempting to prove that the defendant

intended to discriminate and/or retaliate against him. You should also

understand that the plaintiff must prove that the defendant actually was

motivated by a racially discriminatory purpose as to plaintiff's race

discrimination claim. It is not enough for the plaintiff to show, for

example, that the defendant’s conduct had a negative impact on members

of the plaintiff s race or that a policy of the defendant, neutral on its face,

had a disproportionate negative effect on members of his race. When taken

together with other evidence, such evidence may prove that the defendant

was motivated by a racially discriminatory purpose. You must remember,

however, that the mere existence of such disparities does not automatically

demonstrate a discriminatory intent.

A-34

DIRECT EVIDENCE OF INTENT

42 U.S.C. § 1981

The plaintiff, Ronald Thomas, may prove that Denny's was

motivated by a racially discriminatory purpose by presenting direct

evidence. Direct evidence is evidence which, by its very nature, speaks to

the issue sought to be proved. An example of direct evidence, would be a

statement by an employee, manager or officer of Denny’s that he/she

intended to discriminate and/or retaliate against plaintiff Ronald Thomas

or the racial group to which plaintiff belongs. Plaintiff is not required to

prove his case by direct evidence, but may do so. You should consider

direct evidence along with all of the evidence in the case and determine

whether it convinces you, by a preponderance of the evidence, that Denny’s

was motivated by a racially discriminatory purpose.

INDIRECT EVIDENCE OF INTENT

42 U.S.C. SECTION 1981

Plaintiff, Ronald Thomas, may prove Denny’s was motivated by

a racially discriminatory purpose by presenting indirect evidence. Indirect

evidence is evidence, (historical, comparative, or individual) which, though

it does not speak directly to the issue sought to be proved, provides the

basis for an inference with regard to this issue. An example of indirect

evidence would be evidence that an apparently neutral policy consistently

and strongly works to the disadvantage of the group to which plaintiff

belongs.

The plaintiff may use such evidence in attempting to prove to you

that the defendant was motivated by a racially discriminatory purpose, and,

if you believe the evidence establishes that fact, you may use it as the basis

of your finding of intent.

As you consider this evidence, remember that the plaintiff must

prove more than the occurrence of isolated or accidental acts; he must

establish by a preponderance of the evidence that the defendant

intentionally discriminated and/or retaliate against him on the basis of race.

You should consider the plaintiff's indirect evidence along with all of the

evidence in the case and determine whether it proves by a preponderance

of the evidence, that the defendant was motivated by a racially

discriminatory purpose.

A-35

DISCRIMINATION -- BASED ON RACE

The Civil Rights Act 42 U.S.C. Section 1981 is directed only at

racial discrimination. In this lawsuit plaintiffs claim is limited to

allegations of racial discrimination. You must determine whether the

discrimination, if any, involved in this case was racial discrimination. It is

not necessary, in order to determine that the discrimination was based on

race, for you to find that the class being discriminated against constitutes

a discrete “race”, as that term is commonly understood today. If the

plaintiff was subjected to intentional discrimination because of his ancestry

or ethnic characteristics, then you should find that the alleged

discrimination was based on race if you find such discrimination was a

determining factor. If, however, you believe that the alleged discrimination

was not based on race, but rather on other factors, such as sex, then you

must find for the defendant, Denny’s.

NONDISCRIMINATORY REASON

42 U.S.C. SECTION 1981

You are advised that if plaintiff Ronald Thomas establishes the

essential elements of his prima facie claims of discrimination and/or

retaliation by a preponderance of the evidence, the burden then shifts to the

defendant to state a legitimate non-discriminatory reason for its actions

toward plaintiff. In doing so, Denny’s need not prove the absence of a

discriminatory motive. Denny’s must merely produce evidence that dispels

the presumption of discriminatory intent as to each of plaintiff's prima

facie claims. If the defendant does not present a legitimate non-

discriminatory reason, you should take into consideration the presumption

of race discrimination the prima facie evidence establishes.

In this action Denny’s asserts that its decision not to promote

plaintiff was due to plaintiff's lack of qualifications and/or his failure to

complete the management training program.

You are advised that it is not up to you to determine whether

Denny’s decision not to promote plaintiff to management was a wise

business decision. Such a determination is irrelevant to the issue of race

discrimination.

A-36

“PRETEXT” -- DEFINED

In this action plaintiff asserts that Denny’s articulated reasons for

its failure to promote him to management is pretextual or a Cover-up for

race discrimination and/or retaliation.

In order to establish that a reason is pretext the plaintiff must show

that the defendant's stated reason is not the motivating reason for the action

and that the real reason was more likely discriminatory in purpose, or the

plaintiff must show that the articulated reason is unworthy of credence.

A pretextual reason is not a true reason; it is unworthy of belief.

The plaintiff may show by direct or indirect evidence that the defendant's

proffered explanation is unworthy of credence by relying solely on

evidence presented in establishing a prima facie case or by introducing

additional evidence.

When you consider the plaintiff's evidence that the reason

advanced by the defendant is a pretext, keep in mind that the relevant

question is whether the defendant’s reason was not the real reason for his

actions. The question is not whether the defendant’s reason showed poor

or erroneous judgment. You are not to judge the defendant’s wisdom. You

are to decide whether Denny’s intentionally discriminated against the

plaintiff because of his. race.

AN EMPLOYER HAS NO DUTY TO SHOW

PREFERENTIAL TREATMENT TO EMPLOYEES

Section 1981 of the Civil Rights Act was intended to prohibit

arbitrary race discrimination and to promote equality of treatment and

opportunity among persons without regard to race. The law does not

require an employer to extend preferential treatment to any person simply

because of his or her race. An employer has no duty or obligation to

structure employment policies and practices in force so as to favor the

retention of black employees. Employers may select any person for

promotion for any reason, so long as race or filing a race discrimination

claim is not a determinative factor in the selection. Denny’s was not

obligated to give plaintiff any special opportunities, special consideration,

or special treatment simply because of his race.

A-37

COMPENSATORY DAMAGES -- GENERALLY

42 U.S.C. §1981

In the event you find by a preponderance of the evidence that

plaintiff has proven his claim of failure to promote based on race

discrimination under 42 U.S.C.§1981 as defined under these instructions.

then you must determine the amount of damages that plaintiff has sustained

for the injury you believe he has suffered as a result of Denny's racially

discriminatory conduct.

In considering the issue of plaintiff s damages under these sections,

you are instructed that you should assess the amount you find to be

established by a preponderance of the evidence as just and reasonable

compensation for plaintiff's damages, no more and no less.

Although it is often impossible to arrive at a precise award, any

award of compensatory damages is not allowed as punishment and cannot

be imposed or increased to penalize the defendant. Neither can this form

of damages be based on speculation or guesswork because it is only actual

damages that are recoverable.

If you find that Denny’s acted unlawfully as defined in these

instructions the plaintiff, Ronald Thomas, is entitled to recover back wages

_ and any pain, suffering or mental anguish that plaintiff experienced as a

direct consequence of Denny’s unlawful conduct. You will consider the

issue of liability separately as to plaintiff's claims of discrimination for

failure to promote and for retaliation.

DAMAGES -- STATUTE OF LIMITATION

In this action plaintiff, Ronald Thomas, asserts that defendant’s

racially discriminatory conduct in failure to promote him to management

occurred in the early 1980's. Prior to considering the issue of damages, vou

must determine the first date and each subsequent date, if any, in which the

defendant failed to promote the plaintiff because of his race and/or

retaliation. If, however, you find that Denny’s did not discriminate and/or

retaliate against plaintiff after September 12, 1989, your deliberations will

be concluded and you should return a verdict for the defendant.

If, on the other hand, you find that the defendant racially

discriminated and/or retaliated against plaintiff by failure to promote him

A-38

into management at any time after September 12, 1989, then you must

proceed to determine an award of damages in favor of the plaintiff.

Any award of damages that is established for Denny’s failure to

promote plaintiff must be calculated from the first date you determine that

Denny's actually failed to promote plaintiff because of his race and/or

because of retaliation -- to the date that plaintiff terminated his employment

with Denny's.

However, any award of damages may not be calculated prior to

September 12, 1989, that being, two years prior to plaintiff filing this

lawsuit on September 12, 1991. Such limitation period is controlled by the

provisions contained within the Civil Rights Act.

DETERMINATION OF BACK WAGES

in determining an award of loss of wages in the form of “back pay”

you should consider the following elements to the extent you find such

elements proved by a preponderance of the evidence:

FIRST: You must determine and list on the verdict form

the date or dates in which plaintiff was denied promotion

to management based on his race and/or based on

retaliation.

SECOND: You must then determine the difference

between any wages which plaintiff actually earned while

working for Denny’s and those wages plaintiff should

have earned had he not been discriminated against by

Denny’s.

MENTAL PAIN AND SUFFERING -- DETERMINATION

Damages that you award plaintiff should also provide

compensation for any injuries caused by impairment of reputation, personal

humiliation, embarrassment and emotional and mental anguish.

A determination of compensatory damages for emotional distress

and humiliation under section 1981 may be difficult to calculate.

Nonetheless. it is necessary to arrive at a reasonable award that is supported

by the evidence offered by the plaintiff. There must be evidence presented

a a ae

A-39

at trial to support your award of general compensatory damages, for an

award cannot be based on speculation or sympathy on your part.

EFFECT OF INSTRUCTIONS AS TO DAMAGES

The fact that the Court has instructed you as to the proper measure

of damages should not be considered by you as intimating any view of the

Court as to which side of this litigation is entitled to receive a verdict in

this case. Instructions as to the measure of damages are given for your

guidance in the event you should find in favor of plaintiff from a

preponderance of the evidence in the case.

EVIDENCE--DIRECT AND CIRCUMSTANTIAL

There are, generally speaking, two types of evidence from which

a jury may properly find the truth as to the facts of a case. One is direct

evidence -- such as the testimony of an eyewitness. The other is indirect

or circumstantial evidence -- the proof of a chain of circumstances pointing

to the existence or non-existence of certain facts.

As a general rule, the law makes no distinction between direct and

circumstantial evidence, but simply requires that the jury find the facts in

accordance with the preponderance of all the evidence in the case, both

direct and circumstantial.

CREDIBILITY OF WITNESSES

Now in saying that you must consider all the evidence does not

mean that you must accept all of the evidence as true or accurate. You

should decide whether you believe what each witness had to say, and how

important that testimony was. In making that decision you may believe or

disbelieve any witness, in whole or in part. Also, the number of witnesses

testifying concerning any particular dispute is not controlling. You may

decide that the testimony of a smaller number of witnesses concerning any

fact in dispute is more believable than the testimony of a larger number of

witnesses to the contrary.

In deciding whether you believe any witness you should ask

yourself a few questions: did the witness impress you as one who was

telling the truth? Did the witness have any particular reason not to tell the

truth? Did the witness have a personal interest in the outcome of the case?

Did the witness seem to have a good memory? Did the witness have the

A-40

opportunity and ability to observe accurately the things he or she testified

about? Did the witness appear to understand the question clearly and

answer them directly? Did the witness’s testimony differ from other

testimony or other evidence?

IMPEACHMENT AND INCONSISTENT STATEMENTS

You should also ask yourself whether there was evidence tending

to prove that the witness testified concerning some important fact; or,

whether there was evidence that at some other time the witness said or did

something, or failed to say or do something, which was different from the

testimony he or she gave you during the trial.

You should keep in mind, of course, that a simple mistake by a

witness does not necessarily mean that the witness was not telling the truth

as he or she remembers it, because people naturally tend to forget some

things or remember other things inaccurately. So, if a witness has made a

misstatement, you need to consider whether that misstatement was simply

an innocent lapse of memory or an intentional falsehood; and the

significance of that may depend on whether it has to do with an important

fact or with only an unimportant detail.

STIPULATIONS USED AS EVIDENCE

During the trial of this case, a stipulation has been entered into

between the attorneys. Such stipulation consisted of the testimony that

would have been offered by a witness if the witness had testified from the

witness stand. This stipulation is entitled to the same consideration and,

insofar as possible, is to be weighed by the Jury in the same way as if the

witness had testified.

DEPOSITIONS USED AS EVIDENCE

During the trial of this case, certain testimony has been read to you

by way of deposition. The testimony of a witness who--for some reason--

cannot be present to testify from the witness stand is usually presented in

writing under oath in the form of a deposition. Such testimony is entitled

to the same consideration and, in so far as possible, is to be judged as to

credibility and weighed and otherwise considered by the jury in the same

way as if the witness had been present and had given, from the witness

stand, the testimony read to you from the denosition.

A-41

ARGUMENTS AND STATEMENTS OF COUNSEL

ARE NOT EVIDENCE

You are instructed that the arguments and statements of counsel are

not evidence in the case.

The evidence consists of the sworn testimony of the witnesses,

exhibits, facts stipulated, and all pertinent presumptions stated in these

instructions.

You are to consider only the evidence in the case. However, in

your consideration of the evidence, you are not limited to only the

statements of the witnesses. On the contrary, you are permitted to draw--

from the facts which you find have been proved -- such reasonable

inferences as seem justified in the light of your experience.

CONCLUDING INSTRUCTION

In order to return a verdict, each juror must agree thereto.

As jurors you have a duty to consult with one another and to

deliberate with a view toward reaching an agreement, provided agreement

can be reached without violence to individual judgment. Each of you must

decide the case for yourself, but only after an impartial consideration of the

evidence with your fellow jurors.

In the course of deliberations, you, as jurors, should not hesitate to

reexamine your own views and change your opinion if convinced it is

erroneous. H« wever, you should not surrender your honest conviction as

to the weight or effect of the evidence solely because of the opinion of your

fellow jurors, or for the mere purpose of a verdict.

CLOSING

You are the judges of the facts, of the weight of the evidence, and

of the credibility of the witnesses. In determining such weight or credit,

you may consider the interest (if any) which a witness may have in the

result of the trial, the relation of the witness to the parties, the bias or

prejudice (if any has been apparent) the candor -- fairness -- intelligence

and demeanor of the witness, the ability of the witness to remember and

relate past occurrences, means of observation, and opportunity of knowing

the matters about which the witness has testified. From all the facts and

A-42

circumstances appearing in evidence and coming to your observation

during the trial, and aided by the knowledge which you each possess in

common with other persons, you will reach your conclusions. You should

not let sympathy, sentiment or prejudice enter into your deliberations; but

you should discharge your duties as jurors impartially, conscientiously and

faithfully under your oaths and return such verdict as the evidence warrants

when measured by these instructions.

These instructions contain all the law -- whether statutory or

otherwise -- to be applied by you in this case and the rules by which you

are to weigh the evidence and determine the facts in issue. You will not

use any method of chance in arriving at a verdict, but base it on the

judgment of each juror concurring therein.

The Court has made rulings in the conduct of the trial and the

admission of evidence. In so doing, the Court has not expressed -- nor

intimated in any way -- the weight or credit to be given any evidence or

testimony admitted during the trial, nor indicated in any way the

conclusions to be reached by you in this case. When the Court has

sustained an objection to a question, the jury should disregard the question,

draw no inference from the wording of it, nor speculate as to what the

witness would have said if permitted to answer.

After you have retired to consider your verdict, select one of your

number as foreman or forewoman and enter upon your deliberations. Your

verdict must be unanimous. After you have reached a verdict, your

foreman or forewoman alone will sign it; and you will -- as a body -- return

with it into Court. Verdict forms will be furnished for your consideration

and use.

If, during your deliberations, it becomes necessary to communicate

with the Court, you may send a note by the marshal. Bear in mind that you

are not to reveal to the Court -- or any person -- how the jury stands --

numerically or otherwise -- until you have reached your verdict.

The marshal will come forward to be sworn.

—\s\H. Dale Cook

H. DALE COOK

UNITED STATES DISTRICT JUDGE

Date: _ Jan. 30, 1995

Appendix F A-43

THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

RONALD K. THOMAS ) FILED

) INOPEN COURT

) JAN 30, 1995

VS. ) NO.91-C-715-C

)

DENNY’S, INC. )

VERDICT FORM I

Plaintiff's Claim

Failure to promote Based on Race Discrimination

(Your answers to each of the fol

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.