# Petition for Writ of Certiorari — Denny's Inc. v. Thomas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1581%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 522 U.S. 1028 ## 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, v. RONALD K. THOMAS, Respondent. ne ee we ew a Ww Baecase Simin Str > ew ee —~ 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 SP pet a, eo ed x, ae yee: ee ew . we ee Cy 0 ae PETITION FOR WRIT OF CERTIORARI _* ae SO ann - — oI 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 oe 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 ew Se wr’ Pecan b f % a) % i ) ‘ ‘ 4 . th .) ate ate! ‘ +t» > ES i 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. il 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, : 25 OOIOT ISIN og cc cena saab ie vaeewer teense enews 29 Vv 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 vi 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 2 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 3 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. 4 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 1 5 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. 6 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 ¢ 4 4 % z 7 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 8 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 9 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 10 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). 12 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 13 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. 14 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 { 4 a i t ) 7 a] 4 3 " 15 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. 16 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). tJ . 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). WN . Housam Elsoueissi Completed UPP and college courses. (Pages A-58 and A-59 of the Appendix). oO . 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 17 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 18 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 19 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 20 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 21 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). (c) Johnson testified that she mentioned 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). 22 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 23 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.” 2 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.’” we 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.’” 4 Williams testified in part, ". Did you overhear Mr. Churchville make any other comments about your termination at a later date? 24 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: 25 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. 26 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. tc Meaux declined an offer by Darweesh to be placed in Denny’s management in order to pursue his college education. 27 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. 28 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 29 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 30 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, 3 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. II 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 4 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 5 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.’ 6 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). 7 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. 8 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. IV 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. V. 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. Vi 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. 9 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1581%3A1. Public record. Not legal advice.