Opposition Brief — Palmer v. Transit Management Southeast Louisiana (TMSEL) Regional Transit Authority

2 \ 2) FILED

No. 00-824 | 7

DFC 21 2000

In The | _UPRICE OF TH CLIK

Supreme Court of the United States

+

SYLVESTER PALMER,

Petitioner,

TRANSIT MANAGEMENT OF SOUTHEAST

LOUISIANA ‘TMSEL); REGIONAL TRANSIT

AUTHORITY; AMALGAMATED TRANSIT UNION,

Division 1611; UNIDENTIFIED PARTY,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

*

RESPONDENT’S BRIEF IN OPPOSITION

¢

MarsHa J. Hopper

General Counsel for Transit

Management of Southeast

Louisiana, Inc.

6700 Plaza Drive

New Orleans, Louisiana 70127

(504) 248-3857

Rosert L. CLayton

MicHaEL M. DuraAn*

SHERRY L. TEw

Epwarp R. Wicker, Jr.

~Mitunc BENSON Woopwarp, L.L.P.

909 Poydras Street, Suite 2300

New Orleans, Louisiana 70112-1010

Telephone: (504) 569-7000

Attorneys for Respondent,

Transit Management of Southeast Louisiana

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Sa a A SP NI ts ITE SY Baa OA RI oi ENE EERE PE IRE LS RSS

=p cam ai Nc a ca aa RT ce a gyn a a a

TABLE OF CONTENTS

: Page

TABLE OF. AUTEIORIERCS ios ivins ised cig Ui ee, iv

RESPONDENT’S BRIEF IN OPPOSITION........... 1

STATEMENT OF JURISDICTION................... 1

SAT Meenas CP Bite CARE. oi es iska dos ieee e. 1

REASONS FOR DENYING THE WRIT............. 3

I. THIS COURT HAS NO JURISDICTION TO

CONSIDER PETITIONER’S ARGUMENTS..... 3

Il. THE PETITIONER HAS MADE MISREPRESEN-

TATIONS IN HIS PETITION AND OFFERED

NEW THEORIES AND FACTS TO THIS COURT

UGIEGED BREE MC 8 bois as Sk cas 4

Ill. THE DISTRICT COURT’S DECISION TO DIS-

MISS PETITIONER’S CASE WAS CORRECT... 8

A. The District Court Did Not Err When It

Dismissed Petitioner’s Breach of Contract

og ans sate 8

1. Palmer Was Not a Member of the Union

and Thus Was an At-Will Employee and

Did Not “Enjoy” Seniority Rights ..... 9

2. Because Petitioner Was an At-Will

Employee and Not a Member of the

Union, the District Court’s Decision to

Dismiss His Breach of Contract Claim

Was Correct Under Louisiana Law.... 10

3. Louisiana Revised Statute 23:890(c) and

the 13(c) Agreement Between NOPSI

and TMSEL Did Not “Protect” the Peti-

tioner’s Seniority Rights .............. 11

ii

TABLE OF CONTENTS - Continued

Page

a. The petitioner was not a “covered

employee” under the 13(c) agree-

WANE... ss cxacacebeesodseesatneuey 13

b. Even if petitioner was covered

under 13(c), the 13(c) agreement

would not have protected the peti-

tioner from the 1997 RIF.......... 14

c. Even if petitioner was covered

under the 13(c) agreement, peti-

tioner did not exhaust his adminis-

trative remedies under the 13(c)

RQTOOMOME, . oo cc cvieecadsnunvadess 15

- B. The District Court Did Not Err When It

Dismissed Petitioner’s Claims of Gender

Discriminatiom «x. ssccccauccdens eee taeee 15

1. Petitioner cannot show gender discrimi-

nation in the 1997 REP 2 i... scscceeses 15

2. The district court made the correct anal-

ysis that Francis Bowie was transferred

from the Maintenance Department to

the Transportation Department at no

Change it QM0G s.60c56sceucneseuuss 19

3. The petitioner’s claim that TMSEL

devised an elaborate conspiracy that

ultimately led to his termination is friv-

olous and not accepted by either the

Courts or the National Labor Relations

Board (“NEI bs kshecnddeetevecsecees 20 P

C. The District Court’s Decision Dismissing

Petitioner’s Retaliatory Firing Claim Was

PHODOT. 0.062 Se sk cee SG eeEs Nae ee aeee sees 22

iil

TABLE OF CONTENTS - Continued

Page

1. The district court is correct that the peti-

tioner failed to file a retaliation claim

wit Ghe WS oo iii hs cts S50 355 23

2. Even if it was assumed that petitioner

had exhausted his administrative

remedies available through the EEOC,

the district court would have properly

dismissed his retaliation claim on the

__ EEOEe Ee ET ESET TEV ETI ELLE 24

a. The petitioner cannot prove that he

was engaged in an activity protected

ee: he Frere rrrrr rrr ore 25

b. The alleged acts of retaliation do not

rise to the level of an ultimate

employment decision.............. 25

E. The Trial Court Did Not Err in Dismissing

Petitioner’s Claims of Intentional Infliction of

Emotional Distress Under Louisiana Law.... 26

F. The ERISA Ciaim Was Properly Dismissed

Because the Petitioner Had Absolutely No

Evidence Establishing That TMSEL Speci-

fically Intended to Interfere With His Bene-

SEMA Aue eeaiseGhaep es os endgecensss 28

SEE + in cebhae bebe t.02s ceed escivd coudecna 30

iv

TABLE OF AUTHORITIES

Page

Cases

Ballaron v. Equitable Shipyards, Inc., 521 So. 2d 481

Ce. BGR: FD, Fs os hv'ekeserddngngsans kanae 10

Barbour v. Dynamics Research Corp., 63 F.3d 32 (1st

Cir. 1995), cert. denied, 516 J.S. 1113 (1996) ....... 28

Barrow v. New Orleans Steamship Ass'n, 932 F.2d

473 (Sth Cir. 1991)........... been eee e eee ee cence ees 24

Beaver Valley Canning Co. v. NLRB, 332 F.2d 429

Se Te Fs 55. 6b sein ERAN SR e das iba seeds 21

Benningfield v. City of Houston, 157 F.3d 369 (5th

Cir. 1998), cert. denied, 526 U.S. 1065 (1999) ....... 26

Booth v. Intertrans Corp., No. 94-2359, 1995 US.

Dist. LEXIS 7593 (E.D. La. 1995)...........000 26, 27

Brannan v. Wyeth Labs., Inc., 526 So. 2d 1101 (La.

oe PE Tey ere fee ee Pore Poy re Pere ree 10

Braxton v. United States, 500 U.S. 344 (1991).......... 3

Burch v. Reese, No. 88-5191, 1990 U.S. Dist. LEXIS

SERS GED, LG. QO es 5 ning dd cidendedceteaesas 12, 13

Burger v. Central Apartment Management, Inc., 168

eee Ee eer errr ere Er yt perrre 20

Clark v. Coats & Clark, Inc., 990 F.2d 1217 (11th Cir.

SOU a0: Spo GAG RNa Seen 485 beh aera eee 28, 29

Clark v. Resistoflex Co., 854 F.2d 762 (5th Cir. 1988) .... 28

Crompton-Richmond Co. v. Smith, 392 F.2d 577 (3d

GM OEE Bn 6wdd Sec atSidk tds cceie eee dates knees 5

Dewitt v. Penn-Del Directory Corp., 106 F.3d 514 -

ee. eee Te Perret eT eT LUTTE eT. 28, 29

DP aiid

Vv

TABLE OF AUTHORITIES —- Continued

Page

Dister v. The Continental Group, 859 F.2d 1108 (2nd

Cie. 19GB)... icccsnedncnnceechesueeas es ences 28, 29

Dollis v. Rubin, 77 F.3d 777 (Sth Cir. 1995)........ 24, 26

Douglas v. Dyn McDermott Petroleum Operations

Co., 144 F.3d 364 (5th Cir. 1998), cert. denied, 525

U.S. 1068 (1999) ......... cece ccc eee eee eee,

Eastman Kodak Co. v. Image Tech. Servs., Inc., 504

Wis GR CE ig on gn kc eaeas eae eEAs eee +

Fine v. GAF Chemical Corporation, 995 F.2d 576 (5th

oe. | PUTT TTS CTP te ree re 24

Gil v. Metal Service Corp., 412 So. 2d 706 (La. 4th

a Se. Ceres peer ee ys cr ea 10

Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667 (5th

COE. BOIS ccc vedvice ve ccdenisasnies mekeeewenwis vers 5

Henson v. Liggett Group, Inc., 61 F.3d 270 (4th Cir,

BOOOs 6 60.6043 6550452 0as kek oy Caden renee 28

Jackson Transit Auth. v. Local Div. 1285, Amalga-

mated Transit Union, 457 U.S. 15 (1982)............ 11

Jones v. Flagship Int'l, 793 F.2d 714 (5th Cir. 1986),

cert. denied, 479 U.S. 1065 (1987) .................. 25

Keller v. Sisters of Charity, 597 So. 2d 1113 (La. 2nd

oe Perret err er Perri rr rere 10, 11

Konowitz v. Schnadig Corp., 965 F.2d 230 (7th Cir.

BES 0 55 Kn AA GS ANS EOL Sas AREAL RASC e tes 21

Leger v. Tyson Foods, Inc., 670 So. 2d 397 (La. 3rd

CR, Ait, SUED: sinc scnnss acanaasuan vast ghinaeue 10, 11

Liberles v. County of Cook, 709 F.2d 1122 (7th Cir.

EPO ET ETE Te Tere Serer rer ere Or eT 5

vi

TABLE OF AUTHORITIES - Continued

Page

Lutheran Home of Kendallville, Ind., 264 NLRB 525

(1GER) . accccncesesseseatacieesaddssseuseanenseanes 22

Macy's Missouri-Kansas Division v. NLRB, 389 F.2d

SSS Citta Che, 20GB poncccccccvocancnsercnsscedacegen 21

Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300

(Sila Che, 16GB po oc cctaccsscccccocesteassacedesdesven 5

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1

(1957) . ccccccconcdcsnccscecssssassguawenwuewawenes 21

Palucki v. Sears, Roebuck & Co., 879 F.2d 1568 (7th

Che, 19GB) oc cccccccdscccacescnseekandabtoeneeneans 21

Ramsey v. United States, 463 F.2d 815 (D.C. Cir.

1972), cert. denied, 421 U.S. 913 (1975).............. 5

Rice v. Sioux City Memorial Park Cemetery, Inc., 349

US. FO CORED oc ccccsecéccaesactedsunnnsenaeeleel 3, 4

Schwarz v. Administrators of the Tulane Educ. Fund,

699 So. 2d 895 (La. 4th Ct. App. 1997)............ 11

St. Louis Tel. Employees Credit Union and Office and

Prof'l Employees Int'l Union, 273 NLRB 625

(1SDE) . oo ccccccvecvssuckistetesenguassveeniesaeie 22

Teumer v. General Motors Corp., 34 F.3d 542 (7th Cir.

B9DR)... co cnvcccsseceacescascusisetsvesseuaeesaiaes 28

Thebner v. Xerox Corp., 480 So. 2d 454 (La. 3rd Ct.

App. 1965) ..cccccvsccvaccvadessueVeasheunuueas 10, 11

Town of New Roads v. Dukes, 312 So. 2d 890 (La.

App. ist Cir. 1975), rev'd on other grounds, Davis

v. Henry, 555 So. 2d 457 (La. 1990)................ 12

United States v. Winstar Corp., 518 U.S. 839 (1996) ..... 4

United Transp. Union v. Brock, 815 F.2d 1562 (D.C.

Cir. 1987)

Re ee ee eer

Vii

TABLE OF AUTHORITIES - Continued

Page

Watts v. Kroger Co., 170 F.3d 505 (5th Cir. 1999)..... 20

Williams v. General Motors Corp., 656 F.2d 120 (5th

Cir. 1981), cert. denied, 455 U.S. 943 (1982) ........ 16

Williams v. Touro Infirmary, 578 So. 2d 1006 (La. 4th

CO. Ape. 1598) oc cnccicdsanciuasecdumreeideenieeas 10

STATUTES AND RULES

Me Ul aics NEED 6 6 cv asipsaeunketsdaedtdtenansiees 2

yo Bk oe | er rrr ers foer errr poy ee 28

DD Ga. Gs bo obvi ccédersaredannderendsedadaseste 11

S. Ge Ts Biss cetenncatanandes sb beeen dEedwonees 3, 4

i OR, Bhi GU a oie nccnndos ic dockscusncoedisccasewas 1,3

SD CRB. Bee cbnccdekcdéewldsnnduntscondnccasssues +

SB GO Bi BOD fe sie a caasccdevisscteSindccavebavune 3 4

i Ge Mie, obsidian se Askengnckdtes nn ees sheesaekeseves 5

i, See Ss, ED 5 ce cigaes sand cbeaaneasaeaurnl 6, 11

Civil Rights Act of 1964, §701, et seq., as amended

by, 42 USC. G200De, ef 269... 2. .cccccccccccccccces 23

OTHER AUTHORITY

C. Wright, A. Miller & M. Kane, 10A Federal Prac-

tice and Procedure: Civil 2d §2716 (1998) ............ 5

i hs OE et ‘a

= Aw be

1

RESPONDENT’S BRIEF IN OPPOSITION

Respondent requests that the Court deny the Petition

for Writ of Certiorari seeking review of the Opinion of the

Court of Appeals for the Fifth Circuit, Docket No.

00-30184, which summarily affirmed the District Court’s

Judgment, and the Opinion of United States Magistrate

Judge Alma L. Chasez, Docket No. 98-0594. The Opinion

of the Court of Appeals for the Fifth Circuit is reproduced

commencing at page la of the Petition and is herein

referred to as the Court of Appeals Opinion or Decision.

The Opinion of United States Magistrate Judge Alma L.

Chasez is reproduced commencing at page 7a of the

Petition and is herein referred to as the District Court’s

Opinion or Decision.

STATEMENT OF JURISDICTION

The Court should not exercise jurisdiction over this

case pursuant to 28 U.S.C. §1254 or Supreme Court Rule

10 (a) or (c) because there is neither an important federal

question involved nor does the Court of Appeals’ opinion

or that of the District Court conflict with any decision of

this Court. Moreover, the Petition consists of alleged fac-

tual errors, which, under the Court’s own Rule 10, rarely

support the granting of a petition of writ of certiorari.

4

STATEMENT OF THE CASE

In July of 1978, the petitioner was hired by New

Orleans Public Service, Inc. (“NOPSI”) in the capacity of

operator (bus driver), a union position. Five years later,

NOPSI was acquired by the Regional Transit Authority

(“RTA”). Petitioner continued to work as an operator for

Transit Management of Southeast Louisiana (“TMSEL”)

in service to the RTA. By 1995, the petitioner had worked

2

himself up to the position of instructor within the Trans-

portation Department, another union position. On Octo-

ber 6, 1995, the petitioner was transferred from the

instructor position to the position of assignment super-

visor in the Maintenance Department, a non-union posi-

tion. Along with the petitioner, three male instructors and

one female run dispatcher, Dale Newman, were also reas-

signed to the Maintenance Department. On October 13,

1995, the petitioner filed an internal grievance wherein he

complained that his lateral transfer had operated to

deprive him of the benefit of seniority in the selection of

work schedules and vacation tirhe.!

Thereafter, the petitioner alleged that he received

constant shift changes, cancellation of vacation days, and

substandard evaluations.? In December of 1995, Newman

was transferred back to the Transportation Department to

the position of run dispatcher, a job she had previously

held, at no change in salary. The following month, Francis

Bowie, a female, was transferred to the Maintenance

Department as assignment supervisor. The petitioner

alleged that Bowie, too, received preferential treatment in

the selection of work schedules, training, and vacation

time. On December 30, 1996, Bowie was transferred to the

LFS Sem MERE TA g teams

1 The substance of the petitioner’s grievance, as reflected

on the form that he completed for that purpose, was that shift

schedules and vacation time were determined alphabetically

subsequent to his transfer to the Maintenance Department,

contrary to being determined on the basis of seniority. Although

not specifically mentioned in the written grievance form, the

petitioner also alleged that his “seniority” rights were violated

because Newman received better shift assignments and

vacation schedules following their reassignment to the

Maintenance Department.

PI ARTE RE MR BORE er roweme ra Ra F00, ve

2 The petitioner made no allegation that these occurrences

resulted in a change of his job duties or loss of pay.

ee pars im e re |

3

Para-Transit Department as a senior run dispatcher with

no change in salary.

Subsequently, on March 31, 1997, the petitioner, along

with twenty female employees and eight other male

employees, was terminated as a result of a reduction in

force (“RIF”). On June 9, 1997, the petitioner filed a

charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”). The standardized

charge form signed by the petitioner indicates that the

alleged discrimination was based on gender alone and

that the acts involved occurred between January 1, 1997

and March 31, 1997.5

REASONS FOR DENYING THE WRIT

I.

THIS COURT HAS NO JURISDICTION TO

CONSIDER PETITIONER’S ARGUMENTS.

This Court does not review decisions of a United

States Court of Appeals unless an important federal ques-

tion has been decided in conflict with another United

States Court of Appeals or state court of last resort or this

Honorable Court. 28 U.S.C. §1254(1); S. Ct. R. 10(a) and

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

Moreover, a “petition for a writ of certiorari will be

granted only for compelling reasons.” S. Ct. R. 10. In light

of this, the Court will only grant review where there are

“special and important reasons” to do so. Rice v. Sioux

City Memorial Park Cemetery, Inc., 349 U.S. 70, 74 (1955).

3 Notwithstanding the allegations contained within the

charge of discrimination, the petitioner testified at his

deposition that gender discrimination played no part in the RIF.

+

The petitioner, however, did not — because he could

not — assert in his Petition any “compelling,” “special,” or

“important” reason regarding why this Court should

grant review of this matter. See S. Ct. R. 10; Rice, 349 U.S.

at 74. He did not — because he could not —- invoke any of

the grounds this Court takes into account in deciding

whether to grant review. See S. Ct. R. 10(b) and (c). |

Rather, the petitioner’s entire Petition focused on his

contention that neither the federal district court nor the

Fifth Circuit properly considered the facts. But the truly

significant fact is that a “petition for a writ of certiorari is

rarely granted when the asserted error consists of erro-

neous factual findings.” S. Ct. R. 10.

There is no jurisdictional basis, and none has been

invoked, which supports the petitioner’s writ and which,

therefore, allows this Court to grant review. The peti-

tioner has not cited — nor could he cite - any important

questions of federal law in this matter that are decided -

differently among the Courts of Appeals, by a state court |

of last resort, or any decision in conflict with precedent of '

this Court. The district court and the Fifth Circuit prop-

erly decided this case, and the petitioner’s writ should be

denied.

Il.

THE PETITIONER HAS MADE

MISREPRESENTATIONS IN HIS PETITION

AND OFFERED NEW THEORIES AND FACTS |

TO THIS COURT BEYOND THE RECORD. |

On summary judgment, this Court may examine the

record de novo. United States v. Winstar Corp., 518 U.S. 839,

860 (1996); Eastman Kodak Co. v. Image Tech. Servs., Inc.,

504 U.S. 451, 466 (1992). However, it must limit its review

ssereaereeeeernarsiiiaaiaaaaaiaaiamiaiaiiii

5

to those facts, exhibits, theories, depositions, and affi-

davits that were before the district court when it entered

summary judgment for TMSEL. To be sure, the petitioner

cannot now - for the first time before this Court — allege

“new” facts and issues beyond the record to secure a

reversal and remand of this matter. See Grenier v. Cya-

namid Plastics, Inc., 70 F.3d 667 (5th Cir. 1995); Nissho-Iwai

American Corp. v. Kline, 845 F.2d 1300 (5th Cir. 1988);

Liberles v. County of Cook, 709 F.2d 1122 (7th Cir. 1983);

Ramsey v. United States, 463 F.2d 815 (D.C. Cir. 1972), cert.

denied, 421 U.S. 913 (1975); and Crompton-Richmond Co. v.

Smith, 392 F.2d 577 (3d Cir. 1967). See also C. Wright, A.

Miller & M. Kane, 10A Federal Practice and Procedure: Civil

2d §2716 (1998). Significantly, the circuits are uniform

on this issue.

Nonetheless, that is exactly what the petitioner has

done: he has conjured up new facts and theories before

this Court that were never alleged below. In accordance

with Supreme Court Rules. See S. Ct. R. 15.2. TMSEL is

obligated to point out the following misstatements of law

and fact:

1. The petitioner has now alleged for the first

time before this Court that TMSEL violated

his employment contract by denying him

seniority rights. See Petition at p. 11. In the

lower courts, however, he claimed that his

lay-off in 1997 violated his contract. The

Court should not allow the petitioner to

secure a reversal based upon this “new” the-

ory of contract.

2. The Petition states, “TMSEL does not dis-

pute that Palmer, an employee of 19 years,

enjoyed seniority rights. . . . ” Ibid. at p. 10.

To the contrary, TMSEL submitted undis-

puted evidence to the district court, through

the affidavit of union president Robert L.

6

Spencer, that the petitioner was not a mem-

ber of the union, and thus, did not “enjoy

seniority rights” as now claimed by the Peti-

tion.

3. The Petition states, “TMSEL could not dis-

pute Palmer’s seniority rights because these

rights were protected by Louisiana Revised

Statute 23:890 and by Palmer’s employment

contract.” Ibid. at p. 10. As an at-will, non-

union employee, petitioner’s “seniority

rights” were protected neither by that stat-

ute nor by any purported employment con-

tract.

4. The Petition states, “TMSEL’s sole argument

in support of summary judgment dismissal

of Palmer’s breach of contract claim is that

Palmer was an ‘at-will’ employee.” Ibid. at

pp. 10-11. This is yet another mischaracteriz-

ation. It was not until after the Motion for

Summary Judgment had been filed that the

petitioner ever pled or even mentioned that

he was allegedly protected by the 13(c)

agreement. The petitioner first raised the

issue of 13(c) in his Opposition to Motion,

and then TMSEL refuted his position in its |

Reply Memorandum. Thus, for the peti- |

tioner to now assert that TMSEL’s sole basis :

for summary judgment on the contract claim

was that the petitioner was an “at-will”

employee is not correct. —

5. The petitioner stated that “TMSEL did not

dispute the fact that Palmer was. . . denied

promotions back to the union position that

he held for five years. ...” See Petition at

p. 17. TMSEL did, in fact, deny that the

petitioner was denied promotions and

ican

7

proved that the “promotions” that the Peti-

tion referenced were, in fact, transfers,

which are not adverse employment actions

under Title VII.

The Petition states, “TMSEL does not dis-

pute that Palmer was contractually entitled

to preferences based on seniority, including

most importantly preferences in promotions

and rehiring.” Ibid. TMSEL has clearly dis-

puted the fact that the petitioner was con-

tractually entitled to preferences based on

seniority. TMSEL denied the fact that the

petitioner had been denied promotions and

made clear that the petitioner had the

opportunity to be considered for rehire, but

never went to apply for such positions.

The Petition urged that “TMSEL acknow-

ledges that Bowie and Newman, two

females with less seniority than Palmer,

were transferred back to the Transportation

Department.” Ibid. at p. 17. Whether Bowie

and Newman had less seniority than peti-

tioner was not in the record for TMSEL to

dispute and not an issue brought before the

District Court.

The Petition states, “TMSEL does not dis-

pute the fact that . . . if Palmer had been

given an equal opportunity to transfer back

to a union position in the Transportation

Department, he would have been secure

from the 1997 layoff. . .. ” Ibid. TMSEL

certainly has always pled that petitioner was

given an “equal opportunity” while

employed by TMSEL. Furthermore, there is

nothing in the record that proves that mem-

bers of the union were not laid off in the

1997 RIF.

8

9. The Petition states, “TMSEL does not dis-

pute the fact that because Bowie and New-

man were transferred back to the

Transportation Department, they were not

laid off.” There is nothing in the record to

show that Bowie and Newman were trans-

ferred to allegedly protected union positions

or that they have not been laid off by

TMSEL.

Regarding his various claims, the peti.ioner has

attempted to create legal and factual controversies before

this Court by alleging *new” facts and theories (not

raised in the district court); this is clearly not allowed.

The law is clear that this Court’s review is limited to the

record before the district court when it entered summary

judgment for TMSEL. This Court cannot now consider

issues bevond the record.

Ill.

THE DISTRICT COURT’S DECISION TO DISMISS

PETITIONER’S CASE WAS CORRECT.

A. The District Court Did Not Err When It Dis-

missed Petitioner’s Breach of Contract Claims.

For the first time ever, the petitioner now argues that

the District Court ignored uncontested facts showing that

TMSEL violated his contractually protected seniority

rights by denying petitioner the opportunity to transfer

to the Transportation Department.

If the petitioner had been a member of the union, he

may have had a valid complaint through the union arbi-

tration process or the National Labor Relations Act;4

however, petitioner WAS NOT A MEMBER OF THE

+ The petitioner has never filed a charge with the National

Labor Relations Board.

9

UNION when the events he is complaining of occurred.

Moreover, under Louisiana law, unless an employee is

contractually obligated to be employed for a fixed term,

the employee is considered “at-will.” As explained more

fully below, none of the documents referenced by the

Petitioner altered his status as an at-will employee, and

TMSEL had no legal obligation to transfer the petitioner

because of his seniority rights or otherwise.

1. Palmer Was Not a Member of the Union and

Thus Was an At-Will Employee and Did

Not “Enjoy” Seniority Rights.

Presumably, when the Petition states that the peti-

tioner has “seniority rights,” it means that he was entitled

to these rights by virtue of his membership in the union.

Nevertheless, it is an uncontested fact that at the time

petitioner requested the transfers and at the time he was

RIF’d, he was not a member of the union and was an at-

will employee.

TMSEL submitted to the district court an affidavit of

the union president which unequivocally established that

as an assignment supervisor, the petitioner did not hold a

position covered by the union's collective bargaining

agreement (CBA) with TMSEL. Moreover, petitioner

never contested this fact to the district court. Therefore,

the district court’s determination that petitioner was an

at-will employee and not a member of the union at the

time of the RIF was not erroneous. This Court, therefore,

has no basis whatsoever for questioning the validity of

the Summary Judgment granted.

10

2. Because Petitioner Was an At-Will

Employee and Not a Member of the Union,

the District Court’s Decision to Dismiss His

Breach of Contract Claim Was Correct

Under Louisiana Law.

Louisiana law provides that when a person is

employed for an indefinite period of time, he is consid-

ered an at-will employee. Brannan v. Wyeth Labs., Inc., 526

So. 2d 1101, 1104 (La. 1988). An employee not hired for a

fixed term may be terminated without cause at any time

and that “[a]bsent a specific contract or agreement estab-

lishing a fixed term of employment, an employer is at

liberty to dismiss an employee at any time for any reason

without incurring liability for the discharge.” Thebner v.

Xerox Corp., 480 So. 2d 454, 457 (La. 3rd Ct. App. 1985);

Leger v. Tyson Foods, Inc., 670 So. 2d 397 (La. 3rd Ct. App.

1996); and Keller v. Sisters of Charity, 597 So. 2d 1113 (La.

2nd Ct. App. 1992). See also Williams v. Touro Infirmary,

578 So. 2d 1006 (La. 4th Ct. App. 1991); Ballaron v. Equita-

ble Shipyards, Inc., 521 So. 2d 481, 482 (La. 4th Ct. App.

1988); and Gil v. Metal Service Corp., 412 So. 2d 706, 707

(La. 4th Ct. App. 1982).

The petitioner contended that TMSEL was contrac-

tually obligated to transfer him to a union position under

the following documents: 1) the CBA between TMSEL

and ATU Local No. 1611; 2) the 13(c) agreement; 3) the |

TMSEL employee handbook; 4) a letter from Leroy Bailey,

General Manager to Robert Spencer, President ATU Local

Union 1611, dated October 3, 1995; and 5) statements

from, union representatives. None of these documents or

statements provide for a fixed term of employment for

the Petitioner, nor has he alleged that he was employed

for a fixed term.

11

Personnel policy manuals do not constitute binding

employment contracts. Thebner, 480 So. 2d at 457. See also

Schwarz v. Administrators of the Tulane Educ. Fund, 699 So.

2d 895 (La. 4th Ct. App. 1997); Keller, 597 So. 2d at

1113-15. In fact, there is “no Louisiana jurisprudence in

which an employee manual has been held to confer any

contractual rights upon an employee or to create any

exception to the employment-at-will doctrine.” Leger, 670

So. 2d at 402.

Since the petitioner was not employed for a fixed

term, he was an at-will employee and did not enjoy any

contractual right to any special status regarding seniority

rights.

3. Louisiana Revised Statute 23:890(c) and the

13(c) Agreement Between NOPSI and

TMSEL Did Not “Protect” the Petitioner’s

Seniority Rights.

The petitioner argues that his “seniority rights” were

“protected” based upon selected sections of La. Rev. Stat.

23:890. When this statute is viewed in its entirety, how-

ever, it is clear that §890 was promulgated in conjunction

with the Urban Mass Transportation Act (UMTA) and

was only intended to cover employees who are members

of a union. See 49 U.S.C. §5333 (formerly §1609).

In an effort to protect the collective bargaining rights

of transit workers, Congress created the UMTA. Jacks:

Transit Auth. v. Local Div. 1285, Amalgamated Transit Union*

457 U.S. 15 (1982). Section 13(c) of the UMTA mandates

that a local government like the City of New Orleans

make arrangements to preserve transit workers’ existing

collective bargaining rights before it may receive federal

financial assistance to acquire \a privately owned transit

company. Id. at 16; 49 U.S.C. §5333.

12

Section 890 was enacted the same year as the UMTA

and was intended to be a companion statute to UMTA.

The only federal court previously to address §890 was the

Eastern District of Louisiana in an unpublished opinion,

Burch v. Reese, No. 88-5191, 1990 U.S. Dist. LEXIS 3112

(E.D. La. 1990). In that decision, the district court deter-

mined that both the Louisiana and federal statutes are

meant simply to require municipalities to honor CBAs

negotiated between employees and their private

employers, when those municipalities acquire a transit

system. Id. The federal statute conditions federal funding

on honoring the CBAs, while the state statute simply

requires honoring the agreement. Id.

The only state case to address §890 recognized that it

authorized “municipalities, transit authorities or other

authorities to recognize collective bargaining agents of

operating and other transit personnel and to enter into

contract with such representatives. .. . ” Town of New

Roads v. Dukes, 312 So. 2d 890, 894 n.1 (La. App. 1st Cir.

1975), rev'd on other grounds, Davis v. Henry, 555 So. 2d 457

(La. 1990). Because §890 and 13(c) are companion stat-

utes, they will be addressed together concerning peti-

tioner’s argument.

Petitioner’s reliance on the 13(c) agreement and §890

is flawed for these reasons: 1) because he was not a

member of the union, the petitioner was not a covered

employee under the 13(c) agreement; 2) even if it is

assumed that the petitioner- was covered by the 13(c)

agreement, the terms of the agreement do not prevent

him from being discharged; and 3) even if it is assumed

that the petitioner was covered by the 13(c) agreement, he

failed to exhaust his administrative remedies.

13

a. The petitioner was not a “covered

employee” under the 13(c) agreement.

Petitioner was not a “covered employee” under

either the provisions of the 13(c) agreement itself or those

of §890. In Burch, the Court determined that 13(c) agree-

ments apply only to union members at the time of the

alleged breach. The plaintiffs sued TMSEL on an alleged

_ breach of the same 13(c) agreement that is at issue in this

matter. Since none of the plaintiffs was affiliated with the

union at the time of termination, the 13(c) agreement

cause of action was dismissed. Burch, 1990 U.S. Dist.

LEXIS 3112, at *12. tf

In United Transp. Union v. Brock, the D.C. Circuit held

that a 13(c) agreement provided no protection for transit

employees who did not have any collective bargaining

rights. United Transp. Union v. Brock, 815 F.2d 1562,

1564-66 (D.C. Cir. 1987). Seven years before the public

transit authority applied for federal assistance, the

employees lost their collective bargaining rights for rea-

sons wholly unrelated to the UMTA. Id. Because the

employees lost their collective bargaining rights for a

reason unrelated to UMTA, the Court found that there

were no rights to be protected or continued under 13(c).

Id. Therefore, both of these cases made clear that in order

for the a 13(c) agreement to apply, the employee has to be

a member of a union.

The petitioner never disputed at the district court

level that he was not a member of the union. Conse-

quently, the 13(c) agreement did not apply to him and the

district court’s decision to dismiss his contract claim was

correct.

14

b. Even if petitioner was covered under

13(c), the 13(c) agreement would not

have protected the petitioner from the

1997 RIF.

The petitioner argues that the 13(c) agreement pro-

tects all former NOPSI employees from ever being laid

off or terminated by TMSEL. See Petition at p. 14. This is

simply not the case. In fact, the language of the 13(c)

agreement expressly provides for potential layoffs. On

this point, at least, the petitioner does not misstate the

lower court records, but remains ominously silent:

Any employee in the bargaining unit repre-

sented by the Union who has been terminated or

laid off for lack of work as a result of the Project

shall be granted priority of employment or

reemployment to fill any vacant position on the

transit system for which he is, or by training or

re-training can become qualified.

The record shows that petitioner made NO EFFORT to

avail himself of any re-hire opportunities offered him in

his layoff notification letter. Moreover, the 13(c) agree-

ment specifically provides for what happens when

TMSEL contemplates a change that will result in the

displacement of employees:

In the event the Company contemplates any

change in its organization or operations which

will result in the dismissal or displacement of

employees, or rearrangement of the working

forces represented by the Union as a result of

the Project, the Company shall give reasonable

written notice of such intended change to the

Union.

Not only do these provisions from the 13(c) agreement

directly contradict the petitioner’s arguments, but the

petitioner utterly failed to cite language in the 13(c)

15

agreement that supports his claim. Therefore, the peti-

tioner was never — even as a union member - protected

from potential layoffs by the 13(c) agreement.

c. Even if petitioner was covered under

the 13(c) agreement, petitioner did not

exhaust his administrative remedies

under the 13(c) agreement.

Even if it is assumed that the petitioner was covered

by the provisions of the 13(c) agreement, he failed to

exhaust the administrative remedies afforded under the

agreement. Paragraph 5 of the 13(c) agreement provides

as follows: “The Company shall be financially responsible

for the application of these conditions and will make the

necessary arrangements with the Union to provide for

mutually satisfactory claims handling procedure under

this agreement.” Because the petitioner did not exhaust

his administrative remedies, his alleged 13(c) claim is

without merit.

B. The District Court Did Not Err When It Dis-

missed Petitioner’s Claims of Gender Discrimi-

nation.

In his second argument, the petitioner complains that

his gender discrimination claim should not have been

dismissed because: 1) he was laid off in the 1997 RIF,

which resulted in a loss of benefits, and 2) that he was

denied promotions back to safe harbor union positions.

1. Petitioner cannot show gender discrimina-

tion in the 1997 RIF.

The petitioner argues that the district court’s decision

should be overturned because it “ignored” uncontested

16

issues of fact when deciding petitioner’s gender discrimi-

nation claim. The Petition fails to contradict the evidence

that clearly proved that gender played no role in the 1997

RIF.

The Fifth Circuit in Williams v. General Motors Corp.,

656 F.2d 120 (5th Cir. 1981), cert. denied, 455 U.S. 943

(1982), articulated the prima facie elements to determine if

the Age Discrimination in Employment Act (ADEA) was

violated in a RIF: 1) the plaintiff was within the protected

age group and he was adversely affected by defendant's

employment decision; 2) the plaintiff must make a show-

ing that he was qualified to assume another position at

the time of discharge or demotion; and 3) the plaintiff

must make some evidentiary showing from which the

factfinder might reasonably conclude that the employer

intended to discriminate in reaching the decision at issue.

Id. at 129. The Williams Court did not place an affirmative

duty upon an employer to accord special treatment to

members of the protected group. Id. at 129-30.

If the same analysis is applied to petitioner’s gender

discrimination claim, he cannot prove a prima facie case.

Title VII does not require that members of a certain

gender group be protected from an adverse employment

decision. If that were the standard, then every person

who was discharged in March of 1997 would have a claim

for gender discrimination - all of whom would be either

men or women.

In fact, the uncontroverted evidence presented to the

district court by TMSEL proves the opposite. In the

March 31, 1997 RIF, some twenty female employees and

eight other male employees were terminated at the same

time. There is seemingly no evidence that shows that

females were “favored” by the RIF. On the day petitioner

was discharged, more than twice as many women than

+ epteeeeee omen

17

men were discharged in the RIF. As the trial court noted:

if anything, males were treated preferentially in the RIF.

Moreover, petitioner’s own deposition testimony

shows that females were not treated favorably in the RIF.

When petitioner was asked if there was a gender bias at

the time of the RIF, his answer was undeniably “No”:

Q. Okay. Now, let me see if I can get this

straight. Is your claim that there was unfair

gender bias at work in the March of ‘97

when there was a reduction in force?

A. No, sir. That’s not what I’m saying.

Record 323.

The petitioner also testified that to the best of his

knowledge, none of the females who had been laid off

were subsequently rehired by TMSEL. Any suggestion

that Bowie was strategically positioned to avoid the RIF

because of her gender fails for two reasons: 1) there is no

direct evidence of an intent on anyone’s part at TMSEL to

prefer Bowie over the petitioner because of her gender;

and 2) any “indirect evidence” of discriminatory intent

would have to be overshadowed by the undisputed sta-

tistical evidence which Magistrate Chasez relied on in

finding that the RIF actually favored males.

The petitioner failed to produce any evidence dem-

onstrating that petitioner’s gender was a factor in his

discharge. Petitioner does not show that significantly

more men than women were discharged, he does not

produce affidavits from other men who believe that their

gender played a role in their discharge, and he cannot

show that his gender had anything to do with his dis-

charge.

The petitioner can only provide a laundry list of

unsubstantiated facts, speculation, and innuendo to

attempt to persuade this Court to grant his Petition. The

18

Petition states, “TMSEL does not dispute that Palmer was

contractually entitled to preferences based on seniority.”

See Petition at p. 17. As stated earlier, TMSEL did indeed

dispute the petitioner’s contractual entitlement at the

district court, and has argued earlier that petitioner is not

entitled to any preferences based on any alleged contract.

The petitioner also argues that “TMSEL acknowl-

edges that Bowie and Newman, two females with less

seniority than Palmer, were transferred back to the Trans-

portation Department.” See Petition at p. 17. The record

never establishes whether Bowie and Newman had less

seniority than the petitioner. Accordingly, this fact is not

in the record to support petitioner’s argument.

Petitioner’s “final and most important argument” in

support of a reversal of the district court’s decision was

this: if petitioner would have been transferred back to a

union position he would have been secure from the 1997

layoff, and Bowie and Newman were transferred back

and were not laid off. See Petition at p. 18. There is no

evidence in the record, however, that Bowie and Newman

vere transferred to union positions; there is no evidence

iri the record that Bowie and Newman were not laid off

'%y TMSEL; and there is no evidence in the record that

union employees were protected from layoffs. The

entirety of petitioner’s “last and most important” argu-

ment is built on speculation without corroborating evi-

dence in the record.

Furthermore, there is the above cited testimonial evi-

dence from the petitioner himself which states that gen-

der did not play a role in his layoff. Significantly, in his

Affidavit in Opposition to the Motion for Summary Judg-

ment, petitioner failed to contradict or explain this depo-

sition testimony. When the factual circumstances of

record are reviewed in their totality, petitioner does not

19

have the grounds or the contradictory evidence to sup-

port a reversal of the district court’s decision concerning

his gender discrimination claim.

2. The district court made the correct analysis

that Francis Bowie was transferred from the

Maintenance Department to the Transporta-

tion Department at no change in salary.

Aside from the RIF that ended the petitioner’s

employment with TMSEL, the only thing approaching an

actionable “adverse employment action” was what the

petitioner has come to characterize as a discriminatory

promotion of Francis Bowie. At the heart of his argument

is the assertion that Frances Bowie's transfer was a “pro-

motion” that carried a $2.00 per hour raise, which sup-

posedly would elevate this action to an “adverse

employment decision” under Title VII. The petitioner

concluded that Bowie received a raise because TMSEL’s

Payroll Authorization, Control No. 106568 dated January

31, 1996, stated that her salary was $14.6829/hour, and

TMSEL’s Payroll Authorization Control No. 109357 dated

August 8, 1997, stated that her salary was $16.6829/hour.

While it may appear that there is a discrepancy con-

cerning Bowie’s salary, the undisputed affidavit by Tam-

era Sylvain, TMSEL’s Acting Director of Human

Resources, established that the difference in the hourly

rate between Control Numbers 106568 and 109357 was a

typographical error. Furthermore, Sylvain’s Affidavit was

supported by undisputed payroll records which clearly

showed that Bowie did not receive a pay raise in January

or August of 1996 or at any other time. Bowie’s salary

remained at $14.6829/hour after her transfer, and she did

not receive a raise as a result of her transfer. Conse-

quently, the typographical mistake on form 106568 did

ee

20

not constitute a “raise,” and the transfer was not a “pro-

motion.”

Numerous actions commonly taken by employers are

not considered adverse employment decisions for Title

VII purposes. See Burger v. Central Apartment Management,

Inc., 168 F.3d 875, 879 (5th Cir. 1999) (“Refusing an

employee’s request for a purely lateral transfer does not

qualify as an ultimate employment decision.”) and Watts

v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999) (“We have

held, along with many of our sister circuits, that employ-

ment actions are not adverse where pay, benefits, and

level of responsibility remain the same.”).

Therefore, given that Bowie was simply transferred

and did not receive a pay raise, the district court properly

dismissed this claim.

3. The petitioner’s claim that TMSEL devised

an elaborate conspiracy that ultimately led

to his termination is frivolous and not

accepted by either the Courts or the |

National Labor Relations Board (“NLRB”).

Petitioner’s allegation concerning the RIF is the final

event in his litany of claims suggesting that TMSEL was

“out to get him.” The constant theme of his Petition is

that in 1995 TMSEL “conspired” to move him out of a

union position into a management position ultimately to

fire him in 1997, along with twenty-eight other TMSEL

employees. Petitioner’s reason for this alleged conspir-

acy: TMSEL favored women over men. Petitioner’s scat-

tergun of claims leads to nothing more than that there

was a “conspiracy” among Leroy Bailey, Eddie Moore,

Jerome Beasley, Dale Newman and Francis Bowie, with

all of them out to discriminate against him because of his

gender, i.e., because he was a man.

21

However, the courts are “skeptical of such elaborate

plot theories.” Konowitz v. Schnadig Corp., 965 F.2d 230,

234 (7th Cir. 1992). In Konowitz, the plaintiff claimed that

his promotion was the first step in his ultimate discharge

that violated the Age Discrimination in Employment Act.

Id. Nonetheless, the Seventh Circuit found this theory

“imaginative at best;” the Court focused on the fact that

the plaintiff was promoted in the company, which cut

against the notion that the company harbored any ill-will

or discriminatory intent towards the plaintiff. Id. More-

over, in Palucki v. Sears, Roebuck & Co., the court affirmed

summary judgment in favor of the employer where the

plaintiff had argued that his promotion to division head,

which entailed supervision of three departments, was a

set-up to ensure his failure and facilitate his discharge.

Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1570-71 (7th

Cir. 1989). The Court called this an “exceedingly improb-

able plot.” Id. at p. 1571.

Furthermore, the NLRB has recognized that

employers have a fundamental right to assign employees

to positions the employer deems, in the exercise of its

managerial discretion, most expedient. Only if the NLRB

finds proof that a particular transfer was made because

the employee exercised rights guaranteed by the National

Labor Relations Act will an employer’s assignment be

declared an unfair labor practice. See NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1 (1937). It is well-estab-

lished at the NLRB that the mere coincidence of an

employee’s union activity (or benefits) and his transfer

will not support a charge of discrimination. See Beaver

Valley Canning Co. v. NLRB, 332 F.2d 429 (8th Cir. 1964);

and Macy's Missouri-Kansas Division v. NLRB, 389 F.2d 835

(8th Cir. 1968).

———so. ee ee ee

22

The NLRB further allows an employer to promote an

employee out of a bargaining unit and into a supervisory

position unless “the bargaining unit thereby suffers a

significant loss of work.” Lutheran Home of Kendallville,

Ind., 264 NLRB 525, 525 n.2 (1982). Where an employer

“wishes to select a unit employee to be a supervisor, and

the unit will not lose that employee’s work, the NLRB

does not find that the employer has a duty to bargain

over the selection.” Id. An employer may have an obliga-

tion to bargain with a union only if it reduces bargaining

unit work. See St. Louis Tel. Employees Credit Union and

Office and Prof’l Employees Int’l Union, 273 NLRB 625

(1984). The petitioner has never alleged that the union’s

work was reduced because of his promotion, and the

petitioner never filed an unfair labor practice charge.

ot em:

In a desperate attempt to save his case, the petitioner '

claims that TMSEL conspired to single him out and move |

him to a managerial position as part of a grand scheme to

deny him benefits and ultimately fire the petitioner years

later as part of a RIF. The petitioner had absolutely no

proof of this. The district court correctly dismissed the !

matter. j

C. The District Court’s Decision Dismissing Peti-

tioner’s Retaliatory Firing Claim Was Proper.

The petitioner argued that he experienced retaliation

from TMSEL management after filing a grievance on

October 13, 1995. The district court concluded that peti-

tioner’s EEOC charge did not address events that

occurred prior to 1997, and that there was no evidence in

the record that the EEOC investigated events that

occurred as far back as 1995. Therefore, the district court

determined that it lacked jurisdiction over his retaliation

SE eT me ie Ne eee

23

claim based on the petitioner's failure to exhaust admin-

istrative remedies.

It is the apparent argument of the petitioner that the

district court failed to take into account that his 1997

layoff “grew out of” his 1995 union grievance. However,

the petitioner has not pointed to one piece of evidence to

show that this occurred. In contrast, the record unequivo-

cally proves that the petitioner’s EEOC charge stated

nothing about his 19955 grievance and that his 1995 griev-

ance stated nothing about gender discrimination.

1. The district court is correct that the peti-

tioner failed to file a retaliation claim with

the EEOC. ue

The petitioner alleged that he was retaliated against

for filing an internal grievance at TMSEL on October 13,

1995. The grievance addressed issues concerning

seniority for scheduling shifts and failed to mention any

gender inequity issues. On June 9, 1997, the petitioner

filed EEOC Charge No. 270970922 concerning alleged acts

of gender discrimination. The Charge of Discrimination,

however, makes no specific mention of the grievance of

October 13, 1995. The petitioner never filed an EEOC

charge concerning the October 13, 1995 grievance.

The filing of an administrative complaint is a juris-

dictional prerequisite to bringing suit under Title VII.

Civil Rights Act of 1964, §701 et seq., as amended by, 42

U.S.C. §2000e et seq. The Court has ancillary jurisdiction

to hear a claim of retaliation even if it is not filed with the

° On p. 22 of the Petition there appears the incorrect

statement that the petitioner filed an EEOC complaint in 1995.

In 1995, the petitioner filed an internal administrative grievance

— not with the union -— at TMSEL.

24

EEOC, “when it grows out of an administrative charge

that is properly before the court.” Barrow v. New Orleans

Steamship Ass'n, 932 F.2d 473 (5th Cir. 1991), (quoting

Gupta v. East Texas State Univ., 654 F.2d 411, 414 (5th Cir.

1981)). It is axiomatic that a plaintiff must exhaust avail-

able administrative remedies prior to filing suit under

Title VII. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995)

(citing Ray v. Freeman, 626 F.2d 439, 442 (5th Cir. 1980),

cert. denied, 450 U.S. 997 (1981)). Courts hearing Title VII

claims may consider only those specific claims set forth in

a charge of discrimination in any way related to the

charge’s allegations, limited only by the scope of the

EEOC investigation that could reasonably be expected to

grow out of the charge. Id.; Fine v. GAF Chemical Corpora-

tion, 995 F.2d 576, 578 (5th Cir. 1993). -

The petitioner’s retaliation claim, however, did not

“grow out” of the EEOC administrative charge. The

administrative charge speaks for itself: it concerned

alleged events that occurred only in 1997. There was no

evidence that the EEOC investigation extended to events

as far back as 1995. Since there was nothing in the record

to prove otherwise, the district court held that it was

constrained to determine that it lacked jurisdiction over

the pctitioner’s retaliation claim. Therefore, because the

petitioner could not point to a single piece of evidence

showing that the EEOC investigation extended to inci-

dents in 1995, the district court’s decision was correct.

2. Even if it was assumed that petitioner had

exhausted his administrative remedies

available through the EEOC, the district

court would have properly dismissed his

retaliation claim on the merits.

In order for petitioner to establish a prima facie case of

retaliation under Title VII, he must show that: 1) he was

ee Se

25

engaged in an activity protected by Title VII; 2) an

adverse employment decision occurred; and 3) there was

a causal connection between participation in the pro-

tected activity and the adverse employment decision.

Jones v. Flagship Int'l, 793 F.2d 714, 724 (5th Cir. 1986), cert.

denied, 479 U.S. 1065 (1987).

a. The petitioner cannot prove that he was

engaged in an activity protected b

Title VII. :

The first element of a retaliation claim requires the

petitioner to prove that he was engaged in an activity

protected by Title VII. Douglas v. Dyn McDermott Petro-

leum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998), cert.

denied, 525 U.S. 1068 (1999). The petitioner’s grievance

filed with the company on October 13, 1995 pertained to

issues concerning the seniority among workers in the

Maintenance Department. The filing of an internal griev-

ance concerning seniority is not protected by Title VII.

Thus, on its face, the petitioner’s retaliation claim failed

because the activity that he was engaged in was not one

protected by Title VII.

b. The alieged acts of retaliation do not

rise to the level of an ultimate employ-

ment decision.

In his deposition, the petitioner testified that TMSEL

retaliated against him because TMSEL gave him different

shifts, made false accusations, refused to pay sick time,

and moved him to different departments in the area.

Many actions commonly taken by employers are not con-

sidered “ultimate employment decisions” for Title VII

26

purposes. See Dollis, 77 F.3d at 782 (denials of administra-

tive complaints and internal grievances were not ultimate

employment decisions) and Benningfield v. City of

Houston, 157 F.3d 369, 377 (5th Cir. 1998), cert. denied, 526

U.S. 1065 (1999) (changes in employee’s work schedule,

hours, and work load are administrative decisions that do

not rise to the level of an ultimate employment decision

under Title VII).

None of the actions complained of by the petitioner is

an “ultimate employment decision.” Because the peti-

tioner could not prove the first two elements of a prima

facie claim of retaliation, the district court’s decision to

dismiss this cause of action was correct.

E. The Trial Court Did Not Err in Dismissing Peti-

tioner’s Claims of Intentional Infliction of

Emotional Distress Under Louisiana Law.

In Louisiana, in order for the petitioner to prevail on

a claim for intentional infliction of emotional distress, the

“conduct complained of must be so outrageous in charac-

ter and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious and

utterly intolerable in a civilized community.” Booth v.

Intertrans Corp., No. 94-2359, 1995 U.S. Dist. LEXIS 7593

(E.D. La. 1995), (citing Deus v. Allstate Insurance Co., 15

F.3d 506, 514 (5th Cir. 1994), quoting White v. Monsanto,

585 So. 2d 1205, 1209 (La. 1991)). Even if workplace

conduct is calculated to cause some degree of mental

anguish it will rarely be so severe as to rise to the level of

“outrageous conduct.” Booth, 1995 U.S. Dist. LEXIS at *14

(citing Prunty v. Arkansas Freightways, Inc., 16 F.3d 649,

654 (5th Cir. 1994)). Thus, ordinary employment disputes,

even those that concern discrimination under Title VII,

will only rise to the level of intentional infliction of

27

emotional distress in highly unusual cases. Booth, 1995

U.S. Dist. LEXIS at *i4, (citing Wilson v. Monarch Paper

Co., 939 F.2d 1138, 1144 (Sth Cir. 1991); Dean v. Ford Motor

Co., 885 F.2d 300, 304-07 (5th Cir. 1989)).

Even if accepted as true, none of the conduct alleged

by petitioner rises to the level of actionable discrimina-

tion, and it certainly does not rise to the level of “beyond

all possible bounds of decency.” The events that the peti-

tioner complained of are nothing more than ordinary

employment disputes that occur daily at every company.

According to the petitioner’s own testimony, he dis-

agreed with the scheduling of shifts; supervisors were

uncivil to him at times; he did not get the days off that he

wanted; and he allegedly had to report to another

employee whom he viewed as his subordinate. These

kinds of disagreements between employers and

employees happen constantly and cannot be considered

“atrocious and utterly intolerable in a civilized commu-

nity.” Id. The district court agreed and determined that

the petitioner failed to come forward with any credible

summary judgment evidence of conduct that was “outra-

geous in character . . . [and] atrocious and utterly intoler-

able in a civilized community.” See District Court Opinion

at p. 18a.

The petitioner now urges that if he can prove his

gender discrimination claim, he can prove his intentional

infliction of emotional distress claim. But one claim

should not be dependent on another claim. The petitioner

had a fair opportunity to present facts to substantiate his

intentional infliction of emotional distress. The facts are

the facts. Whether the petitioner can prove his gender

discrimination claim should have no bearing on his inten-

tional infliction of emotional distress claim. For these

reasons, the District Court’s Opinion should be upheld.

28

F. The ERISA Claim Was Properly Dismissed

Because the Petitioner Had Absolutely No Evi-

dence Establishing That TMSEL Specifically

Intended to Interfere With His Benefits.

Section 510 of ERISA prohibits an employer from

interfering with an employee’s right to attain or receive

benefits under a pension plan. 29 U.S.C. §1140. A plaintiff

who seeks recovery under §510 must present evidence

establishing that the employer specifically intended to

violate ERISA. An employer’s specific intent to interfere

under §510 is not established merely by proving that an

employee suffered an incidental loss to benefits as a

result of a termination, for a loss of benefits occurs each

time an employee is discharged. Therefore, additional

evidence is needed to establish that the employer

intended to interfere with the employee’s ERISA rights.

See Barbour v. Dynamics Research Corp., 63 F.3d 32 (1st Cir.

1995), cert. denied, 516 U.S. 1113 (1996); Dister v. The

Continental Group, 859 F.2d 1108 (2nd Cir. 1988); Dewitt v.

Penn-Del Directory Corp., 106 F.3d 514 (3rd Cir. 1997);

Henson v. Liggett Group, Inc., 61 F.3d 270 (4th Cir. 1995);

Clark v. Resistoflex Co., 854 F.2d 762 (5th Cir. 1988); Teumer

v. General Motors Corp., 34 F.3d 542 (7th Cir. 1994); and

Clark v. Coats & Clark, Inc., 990 F.2d 1217 (11th Cir. 1993).

Significantly, the circuits are uniform on this issue.

In the instant matter, the district court and the Filth

Circuit properly found no evidence in the record that

TMSEL specifically intended to violate the petitioner’s

ERISA rights; rather, they determined that his ERISA

rights were affected only as a consequence of his dis-

charge. The petitioner’s allegations rested solely on the

suggestion that his termination as a result of a RIF

occurred 18 months before his pension allegedly vested.

But to “recover under section 510, the employee must

show that the employer made a conscious decision to

29

interfere with the employee’s attainment of pension eligi-

bility or additional benefits.” Dewitt, 106 F.3d at 23

(emphasis added). The petitioner never came forward

with evidence establishing that TMSEL made a “con-

scious decision” to specifically deny him his ERISA

rights. To the contrary, he was terminated as part of a RIF

along with dozens of other employees.

In the same vein, in Clark, the Eleventh Circuit held

that a plaintiff was required to show more than the fact

that he was terminated as a result of a RIF to support his

claim that his employer intentionally interfered with his

ERISA rights. Because he could not do so, and because

the workforce reduction was a legitimate attempt to cut

costs, the court found that he failed to establish a prima

facie case of a §510 violation. Clark, 990 F.2d at 1225. See

also Dister, 859 F.2d at 1111 (“Plaintiff is required to prove

more than the single fact that his termination precluded

him from vesting into the . . . Plan; he must demonstrate

[an] unlawful purpose in firing him”).

Just as the plaintiff in Clark could not prove specific

intent by merely claiming he was fired as part of a RIF,

nor can the petitioner in the instant matter. Likewise, the

fact the petitioner was terminated only 18 months before

his pension allegedly vested (and there is no record evi-

dence that any “vesting” was to occur) does not support

his claim that TMSEL specifically intended to interfere

with his ERISA rights. See Dewitt, 106 F.3d at 23. This

evidence by itself was insufficient to create a factual

dispute as to whether TMSEL had the specific intent to

violate §510. As the record is devoid of any proof of

specific intent as required under §510, the district court

properly dismissed the matter.

30

CONCLUSION

This case is not “writ worthy.” The petitioner has

failed to show that the district court’s determination is

even arguably incorrect, much less in conflict with a

decision of this Court, other Courts of Appeals, state

courts, or federal law. To the contrary, the district court’s

decision is in full accord with controlling decisions of this

Court and the Courts of Appeals. The petitioner has

merely made factual arguments to this Court, arguments

that the lower courts have already properly considered.

Moreover, the petitioner, has raised new facts beyond the

record for this Court to consider. For these reasons it is

respectfully submitted that the Petition for Writ of Cer-

tiorari should be denied.

Respectfully submitted,

MarsHa J. Hopper

General Counsel for Transit

Management of Southeast

Louisiana, Inc.

6700 Plaza Drive

New Orleans, Louisiana 70127

(504) 248-3857

Rosert L. CLAYTON

MicHaet M. Duran*

SHERRY L. Tew

Epwarp R. WIcKER, JR.

MILLING BENSON Woopwarp, L.L.P.

909 Poydras Street, Suite 2300

New Orleans, Louisiana 70112-1010

Telephone: (504) 569-7000

Attorneys for Respondent,

Transit Management of Southeast Louisiana

* Counsel of Record