Petition for Writ of Certiorari — City of Tallahassee v. Edwards

Supreme Court, U.8.

eFIiLEod

© 901202 Jan 25 2008

No. 00- OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

CITY OF TALLAHASSEE,

Petitioner,

v.

ROY HARVEY EDWARDS,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNiTep STaTes Court OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ee

LAuRA BETH FARAGASSO,

Counsel of Record

J. STEVEN CARTER

HENRY, BUCHANAN, Hupson,

SuBer & Carter, P.A.

Attorneys for Petitioner

Post Office Drawer 1049

Tallahassee, Florida 32302

(850) 222-2920

164380 @ Counsel Press LLC

(800) 274-3321 + (800) 359-6859

ut (gp

i

QUESTION PRESENTED

Whether the holding of Delta Air Lines, Inc. v. August,

450 U.S. 346, 101 S. Ct. 1146, 67 L. Ed. 2d 287 (1981),

that the cost-shifting provision of Federal Rule of Civil

Procedure 68 does not apply when judgment is entered in

favor of a defendant, should be overturned.

il

TABLE OF CONTENTS

Page

Question Presented ©... 05:65. Sead eahes dee wane i

Table of Cited Authorities ... 0.0... cc ccccccccces iil

Table of AppemGhete 4. cci ene dacesacbeaweauen Vv

Opinions Belew ..... os i<ss5c400e084505 eee l

Statement of JuriedieGiom «oo 0c ci cusssscseebes |

Statutory Provision Involved .................. l

Statement of the Case... ccc psnuatnekananuel 2

A. Mr. Béwanda’ LOGOSR. .6cccccccsseastes 2

B. Proceedings Belew... .0cvssesccncastan 2

Reasons for Granting the Writ ................. +

I. The Plain Language and the History of Rule

68 Demonstrate that Delta Air Lines was

Incerrectiy EDeckaed .... 0 ccaasaeeeceenan 4

II. Delta Air Lines Does Not Serve the Purpose

of Rule G6 ..... 6 ésicctectenteneeee 7

Comclesiam ... 6 6s. ska kkneae dee eee 10

iti

TABLE OF CITED AUTHORITIES

Page

Cases:

Delta Air Lines, Inc. v. August, 450 U.S. 346, 101

S. Ct. 1146, 67 L. Ed. 2d 287 (1981) ......... passim

Seminole Tribe of Florida v. Florida, 517 U.S. 44,

116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996) ..... 4

Statutes:

Oe WEED b ciccsveccccccc chica l

Be eNO Sabo ON CR ere 2

Se See See SFA OE 8 2

Io's Fins 2 an C's 'eWanigvaiece 2

I Whi Fi Gad once heccelicctelk 3

Oe Cee oe OO, 2 an CS 2

OR ee eee 2

Florida Statute § 760.10 et seg. ................ 2

2 Minn. Stat. § 9323 (Mason 1927) ...........:. 5,6

4 Mont. Rev. Codes Ann. § 9770 (1935) ......... 5, 6

N.Y. Civ. Prac. Law § 177 (Cahill 1937) ......... 5,6

iv

Cited Authorities

Page

Rules:

Federal Rule of Civil Procedure Rule 54 ......... 7

Federal Rule of Civil Procedure Rule 54(D) ...... 7

Federal Rule of Civil Procedure 68 ............ passim

FP CE Kk 65d nd dco dodacsteadonee 6

Other Authority:

U.S. Department of Justice, Bureau of Justice

Statistics, “Civil Rights Complaints in U.S.

District Courts, 1990-1998” (January, 2000)

Vv

TABLE OF APPENDICES

Page

Appendix A — Per Curiam Opinion Of The United

States Court Of Appeals For The Eleventh Circuit

Dated And Filed October 25,2000 ........... la

Appendix B — Order Of The United States District

Court For The Northern District Of Florida,

Tallahassee Division Granting Defendant’s

Motion For Taxation Of Costs And Denying

Defendant’s Motion For-Fees Dated January 3,

2000 And Entered And Filed January 4,2000 .. 3a

Appendix C — Order Of The United States District

Court For The Northern District Of Florida,

Tallahassee Division Granting Defendant’s

Motion For Summary Judgment Dated And

Filed November 10, 1999 And Entered November

Sig SOUR foc 0 08 ibs oes Fis ee 6a

Appendix D — Judgment Of The United States

District Court For The Northern District Of

Florida, Tallahassee Division Dated, Filed And :

Entered November 11,1999 ................. 22a

Appendix E — Offer Of Judgment Dated May 20,

EPS i655 Hota Bieta Pe 23a

l

Petitioner respectfully petitions for a writ of certiorari

to review the judgment of the Eleventh Circuit Court of

Appeals in this case.

OPINIONS BELOW

Neither the Eleventh Circuit opinion (App. A) nor the

district court opinion (App. B) is reported.

STATEMENT OF JURISDICTION

The judgment of the Eleventh Circuit Court of Appeals

was entered on October 25, 2000. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

This case centers on the proper interpretation of Federal

Rule of Civil Procedure 68. In pertinent part, Rule 68 states:

At any time more than 10 days before the trial

begins, a party defending against a claim may

serve upon the adverse party an offer to allow

judgment to be taken against the defending party

for the money or property or to the effect specified

in the offer, with costs accrued. If within 10 days

after the service of the offer the adverse party

serves written notice that the offer is accepted,

either party may then file the offer and notice of

acceptance together with proof of service thereof

and thereupon the clerk shall enter judgment.

An offer not accepted shall be deemed withdrawn

and evidence thereof is not admissible except in

a proceeding to determine costs. If the judgment

2

finally obtained by the offeree is not more

favorable than the offer, the offeree must pay

the costs incurred after the making of the offer.

STATEMENT OF THE CASE

A. Mr. Edwards’ Lawsuit.

Roy Harvey Edwards, an employee of the electric

department of the City of Tallahassee, filed suit against

the City in state court, alleging violations by the City

under the Age Discrimination and Employment Act,

29 U.S.C. § 621, et seg.; the Americans with Disabilities

Act, 42 U.S.C. § 12101, et seq.; and the Florida Civil Rights

Act of 1992, § 760.10, Florida Statutes, et seg. He claimed

that his failure to receive promotions within the electric

department were the result of unlawful age or disability

discrimination by the City.

B. Proceedings Below.

The City of Tallahassee timely removed the action from

state court to the federal district court for the Northern

District of Florida on April 17, 1998, pursuant to 28 U.S.C.

§§ 1441 and 1446. The jurisdiction of the district court was

invoked under 28 U.S.C. § 1331 (general federal jurisdiction).

On May 29, 1999, after roughly one year of litigation and

discovery, the City made an offer of judgment (App. E) to

Mr. Edwards pursuant to Federal Rule of Civil Procedure 68.

The offer was for judgment to be taken against the City in the

total amount of $1,000, inclusive of attorney’s fees, costs and

all damages. The offer of judgment was rejected.

3

After the close of discovery, the City filed a motion for

summary judgment which addressed all of Mr. Edwards’

claims. The district court granted the City’s motion for

summary judgment (App. C), and final judgment was entered

for the City on November 11, 1999. (App. D.) Mr. Edwards

appealed the judgment to the Eleventh Circuit Court of

Appeals, in a case styled Roy Harvey Edwards v. City of

Tallahassee, Case Number 99-15255-B. The judgment

was affirmed by the Eleventh Circuit Court of Appeals on

August 2, 2000. Edwards v. City of Tallahassee, 229 F.3d

1169 (11th Cir. 2000).

The district court judgment in favor of the City ordered

that costs be taxed against Mr. Edwards pursuant to 28 U.S.C.

§ 1920. The City thereafter moved for the taxation of costs,

both those taxable under § 1920, and non-taxable costs

incurred subsequent to the City’s rejected offer of judgment.

The district court allowed a portion of the requested costs

under § 1920 but disallowed $1,242.90 in unspecified costs.

The district court denied the City’s motion for imposition

of non-taxable costs under Rule 68, citing this Court’s

opinion in Delta Air Lines, Inc. v. August, 450 U.S. 346, 101

S. Ct. 1146, 67 L. Ed. 2d 287 (1981). (App. B.) The City

appealed the denial of its motion to the Eleventh Circuit

Court of Appeals, in the case styled City of Tallahassee v.

Roy Harvey Edwards, Eleventh Circuit Case Number

00-10624-B. On October 25, 2000, the Circuit Court,

reiterating its obligation to follow the binding precedent of

Delta Air Lines v. August as acknowledged by the City,

affirmed the district court order. (App. A.) It is from this

ruling of the Court of Appeals that the City the seeks a writ

of certiorari.

4

REASONS FOR GRANTING THE WRIT

I. The Plain Language and the History of Rule 68

Demonstrate that Delta Air Lines was Incorrectly

Decided

While thoroughly cognizant and respectful of the

principle of stare decisis, the City believes this case presents

the rare occasion when the precedent of this Court should be

reversed. As this Court explained in Seminole Tribe

of Florida v. Florida, 517 U.S. 44, 65, 116 S. Ct. 1114,

134 L. Ed. 2d 252 (1996):

... Generally, the principle of stare decisis,

and the interests that it serves, viz.,

“the evenhanded, predictable, and consistent

development of legal principles, . . . reliance on

judicial decisions, and . . . the actual and perceived

integrity of the judicial process,” Payne v.

Tennessee, 501 U.S. 808, 827, 115 L. Ed. 2d 720,

111 S. Ct. 2597 (1991), counsel strongly against

reconsideration of our precedent. Nevertheless, we

always have treated stare decisis as a “principle

of policy, Helvering v. Hallock, 309 U.S. 106, 119,

84 L.Ed. 604, 60 S. Ct. 444, 125 ALR 1368

(1940), and not as an “inexorable command,”

Payne, 501 U.S., at 828, 115 L. Ed. 2d 720, 111

S. Ct. 2597. “[W]hen governing decisions are

unworkable or are badly reasoned, ‘this Court has

never felt constrained to follow precedent.’ ”

Id., at 827, 115 L. Ed. 2d 720, 111 S. Ct. 2597

(quoting Smith v. Allwright, 321 U.S. 649, 665,

88 L.Ed. 987, 64 S. Ct. 757, 151 ALR 1110

(1944)).

Delta Air Lines presents such a “badly reasoned” case.

5

The majority opinion in Delta Air Lines held that the

plain language, the history and the purpose of Rule 68 all

mandated that costs may not be imposed against a plaintiff

who has rejected an offer of judgment and then subsequently

loses his case, but may be imposed against a plaintiff who

has rejected an offer of judgment and obtains a judgment

less favorable than the offer. By concentrating on the phrase,

“the judgment finally obtained by the offeree”, the majority

concluded that the appropriate focus of the rule was on the

nominal judgment holder and not on the substantive outcome

of the case. In so doing, the majority imposed upon litigants

the illogical result that an entirely victorious defendant may

be placed in a financially worse position under Rule 68 than

a defendant who loses the case. As stated by Justice Powell

in his rejection of the majority’s “plain meaning” reading of

Rule 68: “It is anomalous indeed that, under the court’s view,

a defendant may obtain costs under Rule 68 against a plaintiff

who prevails in part but not against a plaintiff who loses

entirely.” Delta Air Lines, 450 U.S. at 362 (Powell, J.,

concurring on other grounds).

In his strong dissent, Justice (now Chief Justice)

Rehnquist observed that the majority’s plain meaning analysis

“totally ignor[ed] the common sense maxim that the greater

includes the lesser... .” Delta Air Lines, 450 U.S. at 369

(Rehnquist, J., dissenting). The greater — here, a “take

nothing” judgment in favor of the defendant — surely

includes the lesser, i.e., the plaintiff’s failure to win more

than the offer of judgment.

The majority opinion also erroneously relied on the

history of Rule 68 to support its analysis. Three state statutes

served as the basis for Rule 68: 2 Minn. Stat. § 9323 (Mason

1927); 4 Mont. Rev. Codes Ann. § 9770 (1935); N.Y. Civ.

6

Prac. Law § 177 (Cahill 1937). None of these statutes,

however, required a plaintiff who had rejected an offer of

judgment to affirmatively obtain a judgment in an amount

less than the offer before post-offer costs could be imposed.

Rather, the imposition of costs under each of the foundational

statutes was triggered by the unsuccessful plaintiff’s failure

to obtain a judgment in an amount which exceeded the

amount of the offer.' In fact, the original text of Rule 68

mirrored this language,’ and the 1948 amendment which

created the current language was not meant as a “substantive

change.” ?

Thus, as cogently observed by Justice Rehnquist, the

majority misinterpreted both the plain meaning and the

history of Rule 68 and reaches a conclusion which simply

defies common sense.

1. 2 Minn. Stat. § 9323 (Mason 1927): “. . . ifa more favorable

judgment be not recovered no costs shall be allowed, but those of

the defendant shall be taxed in his favor” ; 4 Mont. Rev. Codes Ann.

§ 9770 (1935): “If the plaintiff fail to obtain a more favorable

judgment, he cannot recover costs, but he must pay the defendant’s

costs from the time of the offer” ; N.Y. Civ. Prac. Law § 177 (Cahill

1937): “If the plaintiff fail to obtain a more favorable judgment, he

cannot recover costs from the time of the offer, but must pay costs

from that time.”

2. Rule 68 originally stated, “If the adverse party fails to obtain

a judgment more favorable than that offered. . . .”

3. Advisory Committee Notes on Amendment to Rules of Civil

Procedure, 28 U.S.C. App., pp. 499-500, 5 F.R.D. 433, 483 (1946).

7

II. Delta Air Lines Does Not Serve the Purpose of

Rule 68

The majority opined that the purpose of Rule 68,

encouraging settlement, was furthered by its interpretation.

The Delta Air Lines court noted that a plaintiff has incentive

to settle under Rule 68 because the marginally successful

plaintiff loses his presumptive right to an award of the post-

offer of costs which ordinarily would be awarded under

Rule 54(D) to the successful plaintiff. The Court reasoned

that to award a prevailing defendant its post-offer costs would

encourage defendants to make grossly low offers of j udgment,

which would naturally be rejected, with the ultimate effect

of removing from the trial court the discretion it generally

enjoys under Rule 54 in the event of a defense verdict.

Again, the rationale is illogical and defies not only the

plain language of the rule, but also thwarts its obvious intent.

As Justice Rehnquist noted,

While I do not think it necessary to address the

“policy” considerations relied upon by the Court

when the intent of the drafters of the Rule is as

plain as it is here, I do think it appropriate to note

that no policy argument will convince me that a

plaintiff who has refused an offer under Rule 68

and then has a “take nothing” judgment entered

against her should be in a better position than a

similar plaintiff who has refused an offer under

Rule 68 but obtained a judgment in her favor,

although in a lesser amount than that which was

offered pursuant to Rule 68. The construction of

Rule 68 urged by the Court would place in a better

position a defendant who tendered $10,000 to a

8

plaintiff under Rule 68 in a case where the plaintiff

was awarded $5,000 than where the same tender

was made and the plaintiff was awarded

nothing... .

It may be said that to read the Rule according to

its plain meaning as I see it will place barriers in

the way of plaintiffs’ suing defendants. The short

answer to this argument is that any provisions such

as Rule 68 designed to promote settlement, rather

than litigation, of claims is bound to make a

plaintiff take a look at his “hole card.” By the

same token, the availability of such a procedure

is bound to make the defendant take a look at his

“hole card” in order to make certain that he is

using every means available to both avoid costly

protracted litigation and possible loss of the case

if it goes to trial. The Rule interpreted in

accordance with its “plain meaning” offers a

defendant a method for preventing further accrual

of taxable costs in the case of inflated or

“nuisance” lawsuits; if the plaintiff is of the

opinion that the offer is too low to be worth

acceptance or even serious consideration, he need

not even respond to it and the case will, unless

settled in some other manner, go to trial.

By following such a course, a plaintiff who obtains

a judgment in excess of the defendant’s Rule 68

offer loses absolutely nothing; a plaintiff against

whom a “take nothing” judgment is entered loses

only the possibility that a district court might

exercise its discretion and not award costs to the

prevailing defendant. Although the vast increase

in the amount of litigation in this Nation today is

9

not a valid reason for twisting rules or statutes in

order to reduce such volume, if the plain meaning

of a rule may have a tendency to encourage

settlement rather than trial, this is surely not an

unfortunate mishap in our system of administering

justice. -

Delta Air Lines, 450 U.S. at 375, 380 (Rehnquist, J.,

dissenting).

Justice Rehnquist’s dissent is all the more salient today

than it was twenty years ago. U.S. Department of Justice

Statistics reflect a 125 percent increase in the filing of civil

rights complaints in United States District Courts between

1990 and 1998, with only approximately one-third of these

cases settling prior to trial.‘ One may surmise that there are

many causes for this extraordinary increase in litigation,

including the advent of the jury trial for Title VII cases under

the Civil Rights Act of 1991 and the generally litigious

environment in which we live. In any event, the incorrectly

decided Delta Air Lines opinion certainly does not discourage

the litigation of frivolous or marginal lawsuits and does

little to encourage settlement of either meritorious or

unfounded claims.

- 4. U.S. Department of Justice, Bureau of Justice Statistics,

“Civil Rights Complaints in U.S. District Courts, 1990-1998”

(January, 2000).

10

CONCLUSION

The holding of Delta Air Lines v. August defies the plain

language, history and purpose of Rule 68. In cases such as

the one at bar, Delta Air Lines results in a prevailing

defendant being placed in a worse position than a defendant

whose offer of judgment is rejected and subsequently loses

at trial, but in an amount less than the offer. The rationale of

Chief Justice Rehnquist’s dissent in Delta Air Lines rings

even truer today than it did twenty years ago, due to the

universally acknowledged explosion of litigation which our

country has experienced in the years since Delta Air Lines

was erroneously decided. If Rule 68 is to accomplish

its purpose of early settlement of litigation, the holding of

Delta Air Lines must be overturned.

For the reasons set forth above, the petition for writ of

certiorari should be granted.

Respectfully submitted,

LAURA BETH FARAGASSO,

Counsel of Record

J. STEVEN CARTER

HENRY, BUCHANAN, HuDsoNn,

Super & Carter, P.A.

Attorneys for Petitioner

Post Office Drawer 1049

Tallahassee, Florida 32302

(850) 222-2920

APPENDIX

la

APPENDIX A — PER CURIAM OPINION OF THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT DATED AND

FILED OCTOBER 25, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-10624

Non-Argument Calendar

D. C. Docket No. 98-00144-CV-4-WS

ROY HARVEY EDWARDS,

Plaintiff-Appellee,

versus

CITY OF TALLAHASSEE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Florida

(October 25, 2000)

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

We affirm the judgment of the district court. As the court

stated in its dispositive order of January 3, 2000, and as

2a

Appendix A

appellant acknowledges, “under Delta Airlines v. August, 450

U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981), [Fed. R.

Civ. P.] 68 does not apply to cases where a defendant has

obtained a judgment.”

Appellant has taken this appeal “in an effort to gain the

Supreme Court’s review and revision of its Delta Air Lines

holding ....” Appellant’s brief at 5. Appellant has a right

to do that. In the interim, however, we are bound by the Delta

Air Lines holding.

AFFIRMED.

3a

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF FLORIDA, TALLAHASSEE DIVISION GRANTING

DEFENDANT’S MOTION FOR TAXATION OF

COSTS AND DENYING DEFENDANT’S MOTION

FOR FEES DATED JANUARY 3, 2000 AND ENTERED

AND FILED JANUARY 4, 2000

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

4:98cv144-WS

ROY HARVEY EDWARDS,

Plaintiff,

v.

CITY OF TALLAHASSEE,

Defendant.

ORDER GRANTING DEFENDANT’S MOTION

FOR TAXATION OF COSTS AND DENYING

DEFENDANT’S MOTION FOR FEES

Before the court are Defendant’s motions for taxation

of costs (doc. 78) and for attorney’s fees and non-taxable

costs (doc. 81). Plaintiff has responded (docs. 82 & 83) to

both motions.

4a

Appendix B

Plaintiff does not object to the taxation of costs allowed

under Title 28, United States Code, Section 1920. Plaintiff

does object, however, to Defendant’s request for attorney’s

fees and non-taxable costs under Rule 68 of the Federal Rules

of Civil Procedure. Plaintiff suggests that a Rule 68 award

of fees and costs is precluded by Delta Airlines v. August,

450 U.S. 346, 101 S. Ct. 1146, 67 L.Ed.2d 287 (1981)

(holding that Rule 68 offers have no effect where, as here,

the defendant prevails).

While acknowledging that, under Delta Airlines, Rule

68 does not apply to cases where a defendant has obtained a

judgment, Defendant first invites this court to revisit the

majority decision in Delta Airlines and to follow, instead,

the reasoning of the dissenting justices. In the alternative,

Defendant suggests that Plaintiff's action was frivolous and

that fees and non-taxable costs should be awarded to

Defendant under Christiansburg Garment Co. v. EEOC, 434

U.S. 412, 98 S. Ct. 694, 54 L.Ed.2d 648 (1978).

The court finding neither of Defendant’s arguments

persuasive, it is ORDERED:

1. Defendant’s request for attorney’s fees and non-

taxable costs (doc. 81) is DENIED.

2. Defendant’s motion for costs (doc. 78) is GRANTED

to the extent Defendant has supported its motion with

appropriate documentation and to the extent Defendant seeks

taxation of costs allowable under section 1920.

3. The clerk shall tax costs accordingly.

5a

Appendix B

DONE AND ORDERED this 3rd day of January, 2000.

s/ William Stafford

WILLIAM STAFFORD

SENIOR UNITED STATES

DISTRICT JUDGE

6a

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF FLORIDA, TALLAHASSEE DIVISION GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

DATED AND FILED NOVEMBER 10, 1999

AND ENTERED NOVEMBER 11, 1999

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

4:98cv144-WS

ROY HARVEY EDWARDS,

Plaintiff,

\

| Vv.

CITY OF TALLAHASSEE,

Defendant.

ORDER GRANTING DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

Roy Harvey Edwards (“Edwards”) contends that his

employer, the City of Tallahassee (“City”), discriminated

against him and subjected him to a hostile work environment

based on his age and disability. He seeks relief under (1) the

Age Discrimination in Employment Act of 1967 (the

“ADEA”), 29 U.S.C. § 621-634; (2) the Americans with

Disabilities Act of 1990 (the “ADA”), 42 U.S.C. §§ 12101-

12213; and (3) the Florida Civil Rights Act of 1992, Chapter

760, Florida Statutes. |

7a

Appendix C

Before the court is the City’s motion for summary

judgment (doc. 58). Plaintiff has responded (doc. 67) in

Opposition to the motion, and the parties have been advised

(doc. 74) that the motion would be taken under advisement

as of a date certain.

I.

In support of its motion for summary judgment, the City

has submitted deposition transcripts, answers to interrogatories,

an affidavit, and other documents that reveal the following:

Edwards was born on February 14, 1943. In 1985, he

was hired by the City as a journeyman lineman. He was

assigned to Transmission and Distribution Operations, a

division in the City’s Electric Department. He continues in

that position today.

In October, 1991, Edwards suffered a heart attack that

required coronary artery by-pass surgery. When Edwards was

released to return to work on March 2, 1992, Dr. Joseph

Baker placed medical restrictions on him as follows:

As a result of his recent operation, I would suggest

that he not work on a stand-by basis, nor should

he lift any more than 50 Ibs. In addition, he should

not be required to climb, due to some remaining

problems with his right leg, and . . . he [should]

be allowed at least 12 hour rest periods.

Edwards Dep., Ex. 9. There have been no material changes

to these medical restrictions since 1992.

Appendix C

For a year or two after he returned to work, Edwards

was given light duty assignments with the underground crew.

When he no longer required light duty work, he was assigned

regular journeyman lineman duties to the extent such duties

were consistent with his medical restrictions. For a brief time,

he was assigned a lineman’s duties as a locator. A locator is

responsible for identifying the location of underground cables

and utilities before construction work is begun in the area.

Edwards was given a different assignment, one at the training

center, after his stint as a locator resulted in an unusual

number of cable cuts due to mislocations. At the training

center, Edwards used his expertise as a lineman to help train

apprentice linemen. He remained at the training center until

the center was temporarily closed during a departmental

reorganization. The training center was later reopened after

the responsibilities of administering the center were

transferred to a newly created administrative department

within the City. Although the Electric Department continued

to provide support staff for the training center, Edwards did

not return to the training center but was instead assigned to

the field as an underground crew leader. According to Gary

Oberschleke, Department Director, Edwards was not returned

to the training center because the Electric Department then

had a need for qualified technical people — like Edwards —

in the field. Furthermore, after the reorganization, the training

function was assigned to different linemen for varying

periods of time as a learning experience.

From May, 1993, to April, 1995, Edwards unsuccessfully

applied for the position of line crew foreman on at least three

occasions. On the last of these occasions, Edwards was told

that he would not be interviewed for the position because of

9a

Appendix C

his physical constraints. Edwards noted on his calendar on

March 14, 1995: “Terry Lowe [supervisor], about 8:18 a.m.,

told me I could and would not be promoted because of my

physical constraints, referring to my heart problem.” Edwards

Dep. at 78. Edwards did not thereafter apply for any

promotions because he felt it would be futile to do so. Of

the four men who were promoted to line crew foreman during

the 1993 to 1995 period, one was older than Edwards while

three were younger.

Terry Lowe (“Lowe”) was hired as Supervisor of

Transmission and Distribution Operations on July 14, 1993.

Since he began as Supervisor, Lowe has had discussions with

Edwards regarding Edwards’ work limitations. Edwards has

said to Lowe on various occasions that he (Edwards) had

lifting limitations, that he could not work long hours, that

he could not work at night, that the stress was too great in

some structures, and that he was unable to do some of the

physical things needed to participate in some of the crew

structures, According to Lowe, the City has attempted to

accommodate Edwards despite his inability to perform all

the duties of a journeyman lineman.

On August 21, 1995, Edwards received an “exceeds

expectations” performance evaluation. On the evaluation

form, Lowe noted as follows:

Ray’s physical limitations impact his ability to

perform all tasks required of a journeyman

lineman. These limitations may change his future

responsibilities and position with the electric

department.

ori ath ede ernest a ghie

10a

Appendix C

Edwards Dep., Ex. 10. When asked at his deposition whether

Edwards’ physical limitations would prevent him from

performing the duties of a line crew foreman, Lowe

responded that, while his physical limitations alone would

not eliminate Edwards from consideration for a foreman’s

job, there were other factors that made Edwards an

undesirable candidate for such a position. In particular, Lowe

cited Edwards’ lack of communication skills and

interpersonal relations skills.

On August 9, 1996, Edwards filed an administrative

charge of discrimination in which he explained:

Complainant has been looked over for

promotion. ... The constraints placed upon

Complainant by his physician were used as the

excuse for not promoting Complainant, and even

for not interviewing him for positions. He was

told by Lowe that the reason he had not gotten a

promotion was because of the restraints.

Complainant was removed from his position at

the Training Facility and put on the line crew.

Respondent knew that a lineman has to lift more

z than 50 pounds, and this assignment was in direct

opposition to the restrictions imposed by

Complainant’s physician. Another requirement of

a lineman’s position is to climb — another

restriction imposed by Complainant’s physician.

He is not supposed to work on stand-by because

of the hours and stress of being on call 24 hours a

day. Since Complainant’s physician also

recommended 12 hours rest per day, this is another

lla a

Appendix C

requirement of the lineman position that should

not have been imposed on Complainant.

Complainant also believes that some of the

adverse action taken against him has been because

of his age. All persons hired and promoted with

Respondent have been younger than Complainant.

Doc. 66, Ex. B. Edwards filed this age and disability

discrimination lawsuit in March, 1998.

Il.

Among other things, the City contends that Edwards’

claims are time-barred. Under the ADEA and the ADA, a

plaintiff's discrimination claims will be time-barred unless

the plaintiff files a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) or the

Florida Commission on Human Relations (“FCHR”) within

three hundred (300) days of the alleged discriminatory

employment action. Under Chapter 760, the limitations

period is three hundred sixty-five (365) days.

Edwards filed his administrative charge of discrimination-

on August 9, 1996. For purposes of the ADEA and the ADA,

his charge-filing period thus began on October 14, 1995,

three hundred days before he filed his charge. For purposes

of Chapter 760, his charge-filing period began on August

10, 1995. To the extent, if any, that Edwards seeks relief for

the City’s alleged discriminatory actions occurring within

the applicable charge-filing periods, his claims are not

time-barred. Otherwise, his claims are time-barred unless

he demonstrates special circumstances.

12a

Appendix C

Edwards in fact seeks relief for at least four promotion

denials that occurred outside the applicable charge-filing

periods. Edwards maintains that the continuing violation

doctrine applies in his case to make the otherwise time-barred

conduct actionable. Under the continuing violation doctrine,

acts of discrimination that occur outside the charge-filing

period are not time-barred if they are part of a continuing

violation that extends into the limitations period. Stated

differently, an otherwise time-barred claim may be

considered timely if it and a timely-filed claim are treated as

a single claim directed at continuing discriminatory conduct,

part of which occurred within the statutory filing period.

The Eleventh Circuit has cautioned that even when a

plaintiff proves a continuing policy of discrimination, relief

may nonetheless be denied for specific discriminatory acts

if the plaintiff knowingly fails to challenge the specific illegal

acts within the relevant limitations period. See Roberts v.

Gadsden Memorial Hosp., 835 F.2d 793 (11th Cir.), modified

on reh'g, 850 F.2d 1549 (11th Cir. 1988). As the Eleventh

Circuit wrote in Roberts, 835 F.2d at 800, “[t]he continuing

violation doctrine does not exist to give a second chance to

an employee who allowed a legitimate . . . claim to lapse.”

In Roberts, the plaintiff filed suit in 1983 alleging that

his employer had discriminated against him by denying him

promotions in 1977, 1978, and 1981. While finding no

evidence of racial discrimination in the 1977 incident, the

district court found that the 1978 and 1981 incidents arose

out of a pattern and practice of discrimination that constituted

a continuing violation. The judge accordingly awarded the

plaintiff relief on both the 1978 and 1981 claims. The

SE VORAA-5 ENCE Eee an ee Ee az

13a

Appendix C

Eleventh Circuit affirmed the district court’s decision as to

the 1981 violation but reversed the court’s decision to award

damages for the 1978 violation. Noting that the plaintiff did

not file a timely charge of discrimination following the

occurrence of the 1978 incident, the appellate court wrote:

[E]ven if we assume that the 1978 discriminatory

act continued into the statutory filing period, we

must still conclude that Roberts’ claim based on

that incident is time-barred. Roberts admitted that

he was aware of his rights in 1978. He could have

asserted them at that time. To the extent that GMH

injured him on a continuing basis as a result of

the 1978 incident, it was only because he

knowingly failed to exercise his right. A claim

arising out of an injury which is ‘continuing’ only

because a putative plaintiff knowingly fails to

seek relief is exactly the sort of claim that

Congress intended to bar by the [300]-day

limitation period.

Roberts, 850 F.2d at 1550.

In this case, consistent with the lessons taught in Roberts,

Edwards is not entitled to relief for discriminatory acts that

allegedly occurred outside the applicable charge-filing

period, if, before the charge-filing period began, Edwards

knew, or had reason to know, that the acts were discriminatory.

In an affidavit filed in response to the City’s motion for

summary judgment, Edwards says that he did not know “for

sure” that the City was discriminating against him until

sometime during the applicable charge-filing periods.

l4a

Appendix C

Edwards Aff. at 4 18. Before that time, he says, he merely

suspected that the City was basing its employment decisions

on his age and/or perceived disability.

The record, however, belies Edwards’ self-serving effort

to make timely otherwise time-barred events. Most notably,

during his deposition, Edwards explicitly stated that he

started to believe that the City was discriminating against

him after he failed to get the promotion that Willie Leon

received in February, 1994. He gave the following responses

to defense counsel’s questions:

Q:

oe oe

[Whenever this Willie Leon selection

occurred is when you started believing you

were discriminated against based on disability

and age correct?

That is correct.

Did you complain to anybody about it?

No.

Why not?

Wouldn’t do no [sic] good.

Well, you believe that there was action being

taken against you in a discriminatory manner,

correct?

That is correct.

15a

Appendix C

And you were aware that there was an equal

opportunity employment department, correct?

A: Yes.

Q: And through your training and experience and

ee ae: SP ae

familiarity with the city policy and

procedures, you knew you could go there and

lodge a complaint if you had one about

discrimination, correct?

Yes.

All right. But you chose not to do that?

Yes.

Why was that?

Because it wouldn’t do no [sic] good.

Had you ever worked with the equal

opportunity department or anyone at human

resources or employee relations before?

\

A: Never had this problem before.

Q: So why didn’t you think it would do any

good? You had no experience with them,

correct? ,

Well, I had seen what had happened with

some other people’s problems, and I just felt

16a

Appendix C

since this was the highest level of management,

my immediate supervisors, it wouldn’t do any

good anyway.

Q: What other people had you seen had problems

and it wouldn’t do any good? Who are the

people, specifically?

A: Charles Martin, for one.

Q: What was his problem?

A: I don’t know. He never did get into it with

me.

Q: Anybody else, other than Charles Martin, that

you saw had — or that you believed had

problems with human resources or trying to

get problems resolved?

A: I can’t remember any more right now.

Edwards Dep. at 48-50.

Also during his deposition, Edwards explained that, after

Lowe told him in March, 1995, that he would not be

interviewed for a promotion, he started keeping a daily

calendar so that “[he]’d have a record of what was being

done.” Edwards Dep. at 21. When asked why he didn’t apply

for promotions in 1996 and 1998, Edwards responded:

17a

Appendix C

“Because of what Terry Lowe had told me [in March, 1995]

about not being promoted.” Edwards Dep. at 96.

Defense counsel questioned Edwards about other alleged

examples of discrimination as well.

Q: Are you contending in this lawsuit that you’ve

been discriminated against because of

positions that they’ve placed you in, like, the

various jobs that they’ve had you do since

you’ve come back from your heart surgery?

I guess that’s my question.

A: Yes.

Q: ... Which particular job duties that you were

performing where you believe there was some

form of discrimination against you?

A: When they had me locating.

Q: The first time or the second time?

A: The first time [well outside the charge-filing

period].

Q: What was wrong with having you locating the

a first time they did that?

18a

Appendix C

A: Well, I felt they were going to use anything

I did to try and get rid of me.

Edwards Dep. at 122-124.

After his first locating assignment, Edwards was moved

to the training center. He was working at the training center

when he applied for the 1994 and 1995 promotions. In his

affidavit, Edwards states: “With respect to being reassigned

to the lineman training center, I considered this to be

disciplinary and against me because of my age and/or

disability.” Edwards Aff. at 9 4 n.7.'

It is evident from Edwards’ own statements that he came

to believe at least by March, 1995, that the City was

discriminating against him on the basis of his disability

and/or age. He nonetheless waited until August 9, 1996, to

file his charge of discrimination. Like the plaintiff in Roberts,

Edwards could have asserted his rights by filing timely

charges of discrimination. Because he failed to do so,

Edwards is now barred from seeking relief for the City’s

alleged discriminatory actions that occurred outside the

charge-filing periods.

Il.

Edwards alleges that he was subjected to a hostile work

environment on the basis of his age and disability. To succeed

1. While Edwards states in his affidavit that he considered his

move to the training center discriminatory, he suggests in his

administrative charge that his removal from the training center was

discriminatory.

19a

Appendix C

with his hostile environment claim, Edwards must

demonstrate that the workplace was permeated with

“discriminatory intimidation, ridicule, and insult . . . sufficiently

severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.”

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 1148S. Ct. 367,

126 L.Ed.2d 295 (1993). The City suggests that there is no

competent evidence to support such a claim. This court

agrees.

IV.

As to the surviving claims, if any, the City maintains

that Edwards has not established a prima facie case of age

or disability discrimination. The City also contends that

Edwards has failed to produce any competent evidence to

show that the City’s reasons for its decisions were pretextual.

Again, this court agrees.

Edwards’ affidavit is replete with conclusory assertions,

inadmissible hearsay, and inconsistencies. He says, on the

one hand: “I can do overhead work as it is within my medical

restrictions.” Edwards’ Aff. at § 20. On the other hand, he

goes on to say:

I try to limit myself in that work, however, but

I can perform the overhead transmission and

overhead distribution work. In other words, my

medical condition does not limit my ability to do

that overhead work but I try not to do it so as not

to cause me any problems.

Id.

20a

Appendix C

He says that, on June 11, 1996, a female co-worker

advised him that he was on a list of twelve people that the

City wanted to “get rid of.” Edwards Aff. at ¢ 18. He does

not name this co-worker; nor does he produce a sworn

statement from her. He says that a co-worker, Clayton

Spivey, told him that he needed to watch his back because

“they” were after him. Edwards Aff. at ¢ 19. Again, he does

not produce a sworn statement from the declarant.

He says: “I also had interpersonal relations skills, the

attitude, organization skills and communication skills, if any,

needed for the [foreman] position.” Edwards Aff. at § 23. At

the same time, he submits the deposition of Mac McCloud

(“McCloud”), who says: :

The biggest problem that I ever had with Roy

was personality conflict with other people. He had

a pretty negative attitude towards just about

everybody. It is hard to get him to say anything

good about anybody, and that was the biggest

problem that I had with Roy as a supervisor on a

truck. Not really a supervisor, but as a lead worker

on a truck.

A lot of times he would have trouble with

some of the men and it really wasn’t — it really

wasn’t their fault. ... Several people come [sic]

to me and told me they had trouble working with

Roy. And Roy and I had talked about it.

—

McCloud Dep. at 31-32.

2la

Appendix C

Edwards says “line crew foremen do not actually perform

the physical work.” Edwards Aff. at ¢ 12. McCloud, who is

a roving foreman, says otherwise. At his deposition,

McCloud answered defense counsel’s questions as follows:

Q: As the supervisor that you are now ... [alt

any point in time, during any day you could

have to go out and work on that crew and

perform the same duties that those journeymen

linemen do and that overhead crew may have

to do; is that right?

A: This is right.

While the court must resolve doubts in favor of the party

opposing summary judgment, the evidence produced by

Edwards is simply insufficient to defeat the City’s properly

supported motion. Accordingly, it is ORDERED:

1. The City’s motion for summary judgment (doc. 58)

is GRANTED.

2. The clerk is directed to enter judgment in the City’s

favor and against Edwards. Costs shall be taxed against

Edwards in accordance with 28 U.S.C. § 1920.

DONE AND ORDERED this 10th day of November,

1999.

s/ William Stafford

WILLIAM STAFFORD

SENIOR UNITED STATES

DISTRICT JUDGE

22a

APPENDIX D — JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF FLORIDA, TALLAHASSEE DIVISION

DATED, FILED AND ENTERED NOVEMBER 11, 1999

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CASE NO. 4:98cv144-WS

ROY HARVEY EDWARDS,

VS

CITY OF TALLAHASSEE,

JUDGMENT

This action came to trial or hearing before the Court with

the Honorable William Stafford presiding. The issues have

been tried or heard and a decision has been rendered.

Judgment is entered in the City of Tallahassee’s favor and

against Roy Harvey Edwards. Costs shall be taxed against

Edwards in accordance with 28 U.S.C. 1920.

ROBERT A. MOSSING, CLERK

November 11, 1999 s/ Angela M. Maxweil

DATE Deputy Clerk:

Angela M. Maxwell

23a

APPENDIX E — OFFER OF JUDGMENT | |

DATED MAY 20, 1999 |

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CASE NO. 4:98CV144-WS

ROY HARVEY EDWARDS,

Plaintiff,

vs.

CITY OF TALLAHASSEE,

Defendant.

OFFER OF JUDGMENT

TO: MARIE MATTOX

310 East Bradford Road

Tallahassee, Florida 32303

(Attorney for plaintiff)

Pursuant to Rule 68 of the Federal Rules of Civil

Procedure, Defendant, CITY OF TALLAHASSEE, hereby

offers to allow judgment to be taken against defendant in

this action, in the total amount of One Thousand Dollars

($1,000.00), for all damages or compensation which may be

Claimed in this action, inclusive of attorney fees, costs and

any other damages asserted in this matter. This Offer of

Judgment is made for the purposes specified in Rule 68, and

24a

Appendix E

is not to be construed either as an admission that the

defendant is liable in this action, or that ani has suffered

any damage. 7

HENRY, BUCHANAN, HUDSON,

SUBER & WILLIAMS, P.A.

s/ J. Steven Carter

J. STEVEN CARTER

Florida Bar No. 896152

Post Office Drawer 1049

Tallahassee, Florida 32302

(850) 222-2920