Petition for Writ of Certiorari — Williams v. Gonzales (No. 05-1627)

S , U.S.

opreegye (1)

051627 MAR10 2006

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

DANNY WILLIAMS,

PETITIONER

VS.

ALBERTO GONZALES,

U.S. ATTORNEY GENERAL,;

UNITED STATES DEPARTMENT OF

JUSTICE, BUREAU OF PRISONS, ET AL.,

RESPONDEDTS

IN THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Danny M. Williams

831 Rice Rd #1118

Ridgeland, Mississippi 39157

601-853-0558

QUESTIONS PRESENTED

Were my Civil Rights violated under the Civil

Rights Act of 1991 when I did not receive a trial by

jury in lieu of summary judgment because of

ineffective assistance of counsel?

Should the Sixth Amendment right to ineffective

assistance of counsel include Civil Litigants when

justice demands the truth and effective assistance

of counsel can prove that one has been

discriminated against, treated less favorably,

denied fair and equal treatment and placed in a

hostile work enviroment? It is likened to denying

DNA to support a case to determine one’s guilt or

innocence when it is available for admission as

supporting evidence.

Should rule 56(e) of Federal Rules of Civil

Procedure be available to litigants who proceed

Pro Se after Summary Judgment when he or she

can produce supporting affidavits on a direct

appeal which can be entered as admissible

evidence, when it was initially part of the

proceeding but was not entered for summary

judgment due to ineffective assistance of counsel?

Does 42 U.S.C. Section 1981(b) provide employees

with actionable claims for racial discrimination,

harassment, retaliation, and discharge for conduct

arriving after November 21, 1991, the effective

date of the act?

LIST OF PARTIES

[ X ] All parties appear in the caption of the case

on the cover page.

{ } All parties do not appear in the caption of the

case on the cover page. A

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATU” ORY

PROVISIONS INVOLVED............0seccceccees 3

STATEMENT OF THE

REASONS FOR GRANTING

CONCLUSION

TABLES OF AUTHORTIES CITED

CASES

McDonnel Douglas v.

411 U.S. (1973)

PAGE NUMBER

792, 802

Mitchell v. Office of Los Angeles

County Superintendent

805 F.2d(9" Cir. 1986)

Teamsters v. United States

431 U.S. (1977)

Lowe V. City of Montrovia

775 F.2d 9" Cir. 1985)

United States v. Loud Hawk

784 F2d (1986) As Amended

Wallis v. J.R. Simplot Co.

26 F.3d (9" Cir. 1994)

Lindahl v. Air France

930 F.2d

McDonnel Douglas v. Green

450 U.S. (1981)

Hopewood v. Texas

518 U.S. (1996)

Fuentes v. Perskie

32 F. 3d(3d Cir.1994)

of Schools

844, 846

324, 358

998, 1006,

1008

1407

885, 390

1437

248, 253

1033

759, 763, 764

Hicks v. St. Mary’s Honor Center

970 F.2d 492, 493

Jones v. R. R. Donnelley & Sons’s Co.

L ed 2d 645

Markovich v. Bell Helicopter Textron, Inc.

805 F. Supp.1 (Cir. 1992)

Antol v. Perry

82 F. 3d (3d Cir. 1996) 1291

Price Waterhouse v. Hopkins

490 U.S. (1989) 228, 277

42 USCS s 2000e-16,n 43 107

Miller v. CIGNA Corp.

47 F.3d (3d Cir. 1995) 586, 597

Roxas v. Presentation College

90 F. 3d (8" Cir. 1996) 310

Meritor Savings Bank v. Vinson

477 U.S. (1986) 242, 250-51

Lanphear v. Prokop

703 F.2d 1311, 1315

OPINIONS BELOW

The opinion of the United States District Court for

the Southern District of Mississippi Western

division is not published.

The decision of United States District Court

granting Respondent’s appeal is unpublished.

The decision of the United States Court of Appeals

to deny respondent’s motion to supplement the

record following Summary Judgment is not

published.

The opinion of the United States Court of Appeals

under Fed. R. App. P. 36 is not published.

JURISDICTION

The judgm if the United States District Court

for the Southern District of Mississippi Western

Division was entered on January 10, 2005.

Petitioner timely sought rehearing, which was filed

in the United States Court of Appeals on January

13, 2006.

The United States Supreme Court has jurisdiction

under 28 U.S.C. s

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Civil Rights Act of 1991 in part: Grants a right to

a jury trial on Title VII intentional discrimination

claims for which compensatory or punitive

damages are sought, id. S1977A ( c), 105 Stat. 1071

(1991)

The Fourteenth Amendment to the U.S.

Constitution sates in revelant part: No state

shall... deprive any person of life, liberty, and the

pursuit of happiness. Without due process of law.

The Sixth Amendment to the U.S. Constitution

sates in revelant part: A person have compulsory

process for obtaining witnesses in his favor and to

have the assistance of counsel for his defense.

42 U.S.C. 1981, in part provides that: all persons

within the jurisdiction of the United States shall

have the same right in every state and territory to

make and enforce contracts. full and equal benefit

of all laws and proceedings for the security of

persons and property as is enjoyed by white

citizens...

29 U.S.C. 623 (d) in part provides that: It shall be

unlawful for an empioyeer to discriminate against

any of his employecs because of race or gender.

STATEMENT OF THE CASE

Petitioner, Danny Williams is an African American

Male hired by the Federal Bureau of Prisons on or

about March 20, 1989. At all times relevant herein, J

worked as a Food Service Administrator for the US

department of Justice Federal Bureau of Prisons at

the Federal Corrections Institutions in Yazoo City,

Mississippi. A position I was qualified to hold. I was

unjustly removed from my position and replace by a

member of a non-protected class. (see McDonnell

Douglas v. Green , 411 U.S. 792, 802 (1973). I was

the Food Service Administrator at this facility for

approximately two and a half years prior to the arrival

of Associate Warden Scott p. Fisher. | (Danny

Williams) received only Outstanding and Exceeds

evaluations prior to the arrival of Associate Warden

Scott P. Fisher. Associate Warden Scott P. Fisher

used his position as Associate Warden and his

5

knowledge of food service to discriminate, create a

hostile work environment and remove me from my

position as Food Service Administrator. Associate

Warden Scott P. Fisher knew that the only way to

remove me from my position was either thru

performance issues or conduct issues. Associate

Warden Scott P. Fisher chose performance because he

knew the language of food service and thus made it

easy for him to place words on paper to give an

impression that I was not performing my duties as

Food Service Administrator. Government

employer’s proffered reason for removing

employee from position, that he performed poorly,

was pretext where evidence shows that employee

was not only rated highly on performance reports,

but was highly praised by his peers in those areas

in which his performance was alleged to be poor.

(see 42 USCS 2000c-16, n 43 page 107).

6

Associate Warden Scott P. Fisher immediately

began communicating with the Acting Associate

Warden Kathy Dileo, instructing her of language to

use in my performance evaluation in order to justify

first downgrade which was a Minimum Successful

rating in Element 1.(Planning , Monitoring and

Evaluating). This is the element Associate Warden

Scott P. Fisher continued to down grade once he

arrived at Federal Corrections Institution Yazoo City,

Mississippi. In order to complete his plan in such a

timely manner, Associate Warden Scott P. Fisher

needed at least this Minimum Successful rating prior

to his arrival. After his arrival Associate Warden

Scott P. Fisher used no more time than necessary to

achieve his goal. In fact, Associate Warden Scott P.

Fisher arrived for duty at Federal Corrections

institution Yazoo City in mid to late November of

7

2001. By the middle of February 2002, just three

short months later I was placed on a Performance

Improvement Plan which was used as an unlawful

prevarication to remove me from the position as Food

Service Administrator.

Associate Warden Scott P. Fisher used

contradictory performance log entries to downgrade

my performance evaluation. The log entries and

rating were not in collaboration. This was easily

accomplished because only the rating mattered.

However, the rating should coincide with the

language of the evaluation. ( See performance

evaluation written by Kathy Dileo) As stated earlier

Associate Warden Scott P. Fisher needed at least one

minimum successful rating prior to his arrival in order

for his plan to quickly unfold. Observation of this

clement in comparison to elements written by

8

Associate Warden Scott P. Fisher will reveal that

language used was that of the same person.

Associate Warden Scott P. Fisher However,

Associate Warden Scott P. Fisher did not see the need

for me to accompany him on inspections of the

department. (See deposition of Associate Warden

Scott P. Fisher page 70, line 20 thru 25, and Page 71,

line 1 thru 19.) During sworn depositions Associate

Warden Scott Fisher was asked about follow-up

inspections. He repeatedly stated “I do not recall if

corrections were made.” I believe it was”, and “I

think so”. This would lead one to believe that

Associate Warden Fisher did not care if these so

called discrepancies he claim to have found while

doing an inspection alone were rectified. Why?

Because Associate Warden Scott P. Fisher knew he

had the support of Warden Khurshid Z. Yusuff, With

that, Associate Warden Scott P. Fisher knew he would

9

not be held accountable for discriminating against

me, creating a hostile work environment, making false

statements, documenting false information to be used

in my removal from the position as Food Service

Administrator. Associate Warden Scott P. Fisher

placed negative log entries in my performance log

because I would not place negative entries in the log

of an African American female | supervised.

Associate Warden Scott P. Fisher stated in his sworn

deposition that this never happened— Associate

Warden Scott P. Fisher’s supporter Warden Khurshid

Yusuff, stated in her sworn deposition that Associate

Warden Scott P. Fisher did indeed ask me to place

negative entries in the log of the Assistant Food

Service Administrator.

Associate Warden Scott P. Fisher admitted in his

sworn deposition that he played a role in the selection

of my replacement. The replacement was a White

10

Male, non-protected class. The Civil Rights Act of

1964 was enacted to prohibit discrimination on the

basis of race and color. After this selection, the

vigorous secret inspections by Associate Warden

Scott P. Fisher ceased . The deposition of James

Riley, Safety Manager, who is responsible for

safety and sanitation inspections throughout the

institution, would have proven harassment and

discrimination. But, was not submitted in the

District Court as evidence due to ineffective

assistance of counsel. The defense claims there

was no longer a need to conduct inspections of the

department because the department was quoted as

running efficient. A Program Review Inspection,

which is the highest authority of how the Bureau of

Prisons food service establishments should operate

rated the department under my leadership as

acceptable. This is a passing rating which means all

11

components that assures a safe and orderly

functioning food service department were in place.

However, the defense have no explanation of how an

efficient running department could have had so many

un-noticed problems under the leadership of my

replacement, John Torchio (White Male). The

problems that plagued the food service department

into a food strike and cost the Federal Bureau of

Prisons over Three Hundred Thousand dollars. These

problems did not happen overnight. Nevertheless,

Associate Warden Scott P. Fisher never drafted a

negative log entry on my replacement John Torchio.

(White Male). This happened because for the first

six months Associate Warden Scott P. Fisher

supervised John Torchio, he was un-molested

and not harassed. This treatmen’ «* John Torchio

continued after he was supervised by Associate

Warden Retired, James Mitchell. Mr. Torchio, my

12

replacement, because he was White was never

subjected to harassment, hostility in the work place,

or disparity treatment by Associate Warden Scott P.

Fisher. Ironically, in six months under the supervision

of Associate Warden Scott P. Fisher Mr. Torchio was

recommended as Supervisor of the Quarter. I, on the

other hand in six months was recommended for

removal by Associate Warden Scott P. Fisher. Mr.

Torchio had not been held to the same set of standards

that I was supposedly demoted. I served as Food

Service Administrator for two and a half years prior to

the arrival of Scott P. Fisher. I never once had a food

strike or any demonstration that derived because of

food or food related issues. This tend to have one

believe that Warden Khurshid Yusuff and Associate

Warden Scott P. Fisher planned my demise and

demotion from the moment Associate Warden Scott

P. Fisher was selected.

]3

Associate Warden Scott P. Fisher and Warden

Yusuff hoped because of severe staff shortages the

Program Review scheduled from December 10, 2001

thru December 14, 2001 would be less than favorable.

Therefore, the failed Program review would be

documentation enough. However, the department

received an acceptable rating which is a passing

rating. Associate Warden Scott P. Fisher had no -

choice but to continue his unfair harassment by

demanding the Safety Manager, James Riley along

with himself conduct more unnecessary inspections.

The sworn deposition of James Riley will show that

he was forced to conduct these harassing inspections.

( Due to ineffective assistance of counsel, this

evidence was not submitted in the District Court

and could not be raised on direct appeal. ) Should

Rule 56(e) of the United States Rules of Civil

Procedure be enacted and made available to

14

litigants who proceed Pro Se after summary

judgment when admissible evidence can be 1

produced on direct eppeal? ;

Associate Warden Scott P. Fisher claims he

specifically conducted an inspection on May 14,

2002. Associate Warden Scott P. Fisher cited many

discrepancies during this inspection. In fact,

Associate Warden Scott P. Fisher used the results of

this inspection to request my removal from the

position of Food Service Administrator. Truth is,

Associate warden Scott P. Fisher did not conduct an

inspection on May 14, 2002. Associate Warden Scott

P. Fisher was participating in an executive function

that held him away from the main kitchen for the

entire morning. Associate Warden Scott P. Fisher did

not come to food service until 11:00 a.m. to observe

the noon meal and afterwards left and did not return

to food service on this particular day. On the same

15

day an inspection was conducted by the safety

department unknown to Associate Warden Scott P.

Fisher. This inspection did not reveal any of the

discrepancies Associate Warden Scott P. Fisher

claims he discovered. This was just one more of

Associate Warden Scott P. Fisher’s schemes to drive

towards my removal. (see Lowe v. City of

Monrovia, 775 F.2d 998, 1006(9"™ Cir. 1985)

(plaintiff can establish prima facie case of

disparate treatment without satisfying McDonnell

Douglas test if he or she provides evidence

“suggesting termination based on discriminatory

criteria). Associate Warden Scott P. Fisher never

made a practice of accompanying the Safety Manager

on inspections of other departments. Only Food

Service. Warden Yusuff admitted in a sworn

deposition that she, Martha Mitchell, Regional Food

Service Administrator and Associate Warden Scott P.

16 ;

Fisher held a meeting after the program review. In

this meeting the topic of discussion was a change of

administration in the Food Service Department. The

change meaning Myself It was stated that Associate

Warden Scott P. Fisher did not want to change

administration, oe he wanted to work with me.

Associate warden Scott P. Fisher knew that he could

not just change administration because a change was

desired. Associate Warden Scott P. Fisher knew that

a personnel action was necessary to remove me. With

the support of Warden Khurshid Yusuff and the

assistance of the Human Resource Manager,

Associate Warden Scott P. Fisher used his authority

to discriminate against me and ruin thirteen years of a

career in six short months. Does 42 U.S.C. Section

1981(b) provide employees with actionable claims

for racial harassment, retaliation, and discharge

for conduct arising after November 21, 1991, the

~ 17

effective date of the Act?

REASONS FOR GRANTING THE PETITION »

The Fifth Circuit is deemed by Attorneys as the

most conservative circuit in the land. While

conservatism has it’s place, it has been the practice

of other circuits to find the facts and rule

accordingly. In a similar case, Anderson v. Baxter

healthcare Corp., the 7" Circuit held: to defeat

summary judgment , Title VII plaintiff, must

only produce evidence from which a rational fact

finder could infer that the company lied about it’s

proffered reason for dismissal.

Washington v. Garrett the 9" circuit held that the

fact finder in a Title VII case is entitled to infer

discrimination from plaintiff's proffer of a prima

facie case and showing of pretext without anything

more.

18

Sheridan v. E. I. Dupont De Nemours and

Company, 3” circuit ruled in favor of plaintiff

after establishing a prima facie case and

producing adequate evidence.

Sec. 2 [ 42 U.S.C. 1981 note] The congress finds

that-

(1) additional remedies under Federal Law are

needed to deter unlawful harassment and

intentional discrimination in the workplace;

(2) the decision of the Supreme Court in Wards

Cove packing Co. v. Antonio, 490 U.S. 642 (1989)

has weakened the scope and effectiveness of

federal Civil Rights protection; and

(3) legislation is necessary to provide additional

protection against unlawful discrimination in

employment. Ref: EEOC/Civil Rights Act of 1991

page 1 & 2.

19

Quoting form Sheridan v. E. I. Dupont De

Nemours and Company. As Chief Justice, then

Justice, Rehnquist earlier had explained, the initial

presumption of discrimination arises from the

plaintiff's prima facie case of discrimination

“because we presume these acts, if otherwise

unexplained, are more likely than not based on the

consideration of impermissible factors. Furnco

Construction Corp. v. Waters, 438 U.S. 567, 577

(1978).

“He continued:

[W]e are willing to presume this largely

because we know from our experience that more

often than not people do not act in a totally

arbitrary manner, without any underlying

reasons, especially in a business setting. Thus,

when all legitimate reasons for rejecting an

applicant have been eliminated as possible reasons

20

for the employer’s actions, it is more likely than

not the employers, who we generally assume acts

only with some reason based his decision on an

impermissible consideration such as race.

Lastly, the truth needs no explanation. Therefore,

beyond a shadow of a doubt I believe I have ;

evidence that will prove this case. Evidence that

was not submitted or argued was due to ineffective

assistance of counsel. Thus, giving serious

consideration to the plea of civil litigants who have

no alternative except to proceed Pro Se.

21

CONCLUSION

Danny Williams Respectfully submitted on this

day the 9" of March 2006.

22

INDEX TO APPENDICIES

APPENDIX A

The decision-of the United States Court of Appeals

APPENDIX B

The order and final judgment of the United States

District Court

APPENDIX C

Initial Order of U.S. Magistrate for the United

States District Court (Southern District)

APPENDIX D

Denial of United States district Court of

Respondents’ motion to supplement the record in

this case.

Case 5:03-cv-00442-DCB Document 38

Filed 02/07/2006 Page 1 of 1

United States Court

of Appeals

Fifth Circuit

FILED

December 13,2005

Charles R. Fulbruge LI

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-60105

Summary Calender

D. C. Docket No. 5: 03-CV-442

DANNY WILLIAMS

Plaintiff - Appellant

V.

ALBERTO R. GONZALES, U S ATTORNEY

GENERAL; UNITED STATES DEPARTMENT OF

JUSTICE FEDERAL BUREAU OF PRISONS

Defendant - Appellees

Appeal from the United States District Court for

the Southern District of Mississippi, Jackson.

Before KING, Chief Judge, and BARKSDALE and

BENAVIDES, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal

and the briefs on file.

It is ordered and adjudged that the judgment of

the District Court is affirmed.

IT IS FURTHER ORDERED that plaintiff-

appellant pay to defendants-appellees the costs on

appeal to be taxed by the Clerk of this Court.

ISSUED AS MANDATE: FEB 0 6 2006

A true copy

Test

Clerk, U.S. Court of Appeals, Fifth Circuit

S/ Dawn D. Actionies

Deputy

New Orleans, Louisiana

File Stamped Feb 06 2006

Case 5:03-cv-00442-DCB Document 37

Filed 02/07/2006 Page 1 of 3

United States Court

of Appeals

Fifth Circuit

FILED

December 13,2005

Charles R. Fulbruge IT

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-60105

Summary Calendar

DANNY WILLIAMS

Plaintiff - Appellant

Vs

ALBERTO R. GONZALES, U S ATTORNEY

GENERAL; UNITED STATES DEPARTMENT OF

JUSTICE FEDERAL BUREAU OF PRISONS

Defendant - Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 5: 03-CV-442

Before KING, Chief Judge, and BARKSDALE and

BENAVIDES, Circuit Judges.

PER CURIAM:

Danny Williams appeals form the district

court’s order granting summary judgment to the

defendants in his Title VII suit alleging discriminaton

based on race and gender. We review the district

court’s decision order de novo. American Home

Assur. Co. v. United space Alliance, LLC, 378 f.3D

482 (5™ Cir. 2004 ); see also Fed. R. Civ. P. 56.

Pursuant to 5" Cir. R. 47.5, the court has

determined that this opinion should not be published

and is not precedent except under the limited

circumstances set forth in 5" Cir. R. 47. 5. 4.

Case 5:03-cv-00442-DCB Document 37

Filed 02/07/2006 Page 2 of 3

No. 05-60105

4.

Williams presents no argument in his brief

concerning allegations of discrimination based on

gender. Accordingly, those claims are deemed

abandoned. See Yohey v. Collins, 985 F. 2d 222,

224-25 (5" Cir. 1993). Similarly, Williams offers no

argument concerning the district court’s conclusion

that Williams exhausted administrative remedies only

with respect to incidents occurring after March 27,

2002, which was 45 days prior to his first contact cith

the EEO Counselor, and that all other claims were

unexhausted and time-barred. By faining to address

the basis of the district court’s decision, Williams has

abandoned calims related to incidents prior to March

27, 2002. see Yohey, 985 F.2d at 224-25;

Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F. 2d 744, 748 (5™ Cir. 1987).

Williams arfues that he was demoted from Food

Services Administrator to training instructor as a

result of Associate Warden Fisher’s racial animus and

conspiracy with other prison supervisory officials. To

establish a prima facie case of discrimination, a

plaintiff must have shown that (1) he was subject to

adverse treatment or was denied an employment

benefit or opportunity by the employer; (2) he as a

member of a protected froup; and (3) a similarly

situated individual not a member of his protected

group was treated more favorably. see McDonnell

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

see also Auguster v. Vermilion Parish School Bd.,

249 F.3d 400, 403 (5 Cir. 2001). Williams has

not shown that person outside of a

Case 5:03-cv-00442-DCB Document 37

Filed 02/07/2006 Page 3 of 3

No. 05-60105

i<

Protected class were treated more favorably that her ot

that the legitimate performance-related reason

articulated by the defendants for the demotion was

pretextual. See St. Mary’s Honor Ctr. V. Hicks, 509

U.S. 502, 507 (1993).

Williams also argues that he received ineffective

assistance of counsel because his attorney did not

produce testimony from witnesses that allegedly

would have created a eenuine issue of material fact.

The right to effective assistance of counsel does not

apply in a civil context. Sanchez v. U.S. Postal Serv.,

785 F.2d 1236, 1237 (5" Cir. 1996). Williams

further asserts in his statement of issues that the

defendants ignored an order from the EEOC to take

corrective action regarding his complaint. This issue

is not addressed because it is raised for the first time

on appeal and is inadequately briefed. See leverette v.

Louisville Ladder Co., 183 F.3d 339, 342 (5" Cir.

1999); Yohey, 985 F.2d at 224-25. The district

court did not err in tis summary judgment order.

AFFIRMED.

Case 5:03-cv-00442-DCB Document 33

Filed 01/10/2005 Page | of 1

Southern District of Mussissippi

FILED

JAN 10 2005

J T. Noblin, Clerk

ae

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSiSSIPPI

WESTERN DIVISION

DANNY WILLIAMS PLAINTIFF

V. Civil Action No. 5: 03-cv-442 (Br) (Su)

JOHN ASHCROFT IN HIS OFFICIAL CAPACITY

AS ATTORNEY GENERAL OF THE UNITED

STATES, ACTING BY AND THROUGH THE

UNITED STATES DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF PRISONS

DFENDANTS

FINAL JUDGMENT

This cause having come before the Court on the

defendants’ motion for summary judgment, and the

Court having issued a memorandum Opinion finding

the motion to be well-taken, and having issued an

order granting same; according'y,

IT IS HEREBY ORDERED AND ADJUDGED

that this action is dismissed with prejudice.

SO ORDERED AND ADJUDGED, this the 7"

day of January, 2005.

s/David Bramlette

UNITED STATES DISTRICT JUDGE

Case 5:03-cv-00442-DCB Document 32

Filed 01/10/2005 Page 1 of 28

Southern District of Mississippi

FILED

JAN 10 2005

JT. Noblin, Clerk

By Deputy

_ IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

DANNY WILLIAMS PLAINTIFF

V. Civil Action No. 5: 03-cv-442 (Br) (Su)

JOHN ASHCROFT IN HIS OFFICIAL CAPACITY

AS ATTORNEY GENERAL OF THE UNITED

STATES, ACTING BY AND THROUGH THE

UNITED STATES DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF PRISONS

DFENDANTS

MEMORANDUM OPINION

This cause is before the Court on the defendants’

motion to dismiss or in the alternative for summary

judgment (docket entry 23). having carefully

considered the motion and response, the memoranda

of the parties filed in support thereof, and the

applicable law, the Court finds as follows:

This case is brought by federal bureau of Prisons

employee Danny Williams under Title VII of the Civil

Rights Act of 1964. Mr. Willliams alleges he was

discriminated against due to his race (African-

American) and gender (male). He is presently

employed at FCI Yazoo City as a vocational Trainng

Instructor with the united States Department of

Justice, federal Bureau of Prisons. In his complaint,

the plaintiff alleges a number of discriminatory

incidents occurring over a period from December of

2001 until September 8, 2002, when he was demoted

from food service administrator ro a Training

instructor. His allegations are primarily targeted

toward his two former supervisors, Warden

Case 5:03-cv-00442-DCB Document 32

Filed 01/10/2005 Page 2 of 28

Khurshid Z. Yusuff (Asian female), retired, and

Associate Warden Scott Fisher ( white male). The

alleged discriminatory incidents, as stated in

paragraphs 7-12 of the complaint, are set forth as

follows:

7. On or about December 2001, Danny Williams

received a written rerimand for allegedly refusing to

make negative log entries in the performance log of

an African American employee whom he supervised.

8. On February 25, 2002, Danny Williams was

placed on a Performance Improvement Plan.

9. On May 23, 2002, Danny Williams was not

permitted to attend a training for department heads

although he had received notice that the training

session was mandatory.

The Warden, on or about June 21, 2002 sent

2

an e-mail to all deprtment heads stating that

mandatory training would take place on june 25,

2002. As Danny Williams approached the visiting

gate leading into the Federal Corrections Institution

compound, on June 25, 2002 at 7:20 am, he noticed

that AWO Scott P. Fisher (“A WO fisher”) and Robin

Harmon, Trust Fund Supervisor, were standing at the

gate. When AWO Fisher noticed Danny Williams, he

said “damn”. robin Harmon asked “what’s wrong?”

AWO Fisher did not reply. He instead told Danny

Williams that “There is training at the training center

but you don’t have to be there.”

12. On September 8, 2002, Danny Williams was

demoted to a Trainng Instructor.

(Complaint, II 7-12). Williams contends that he

“received treatment different from that afforded to

other similarly situated

Case 5:03-cv-00442-DCB Document 32

Filed 01/10/2005 Page 3 of 28

Whites because of his status a an African-American.”

(Complaint I 19). He also contends the he “received

treatment different from that afforded to other

similarly situated females because of his status as a

male”. (Complaint, 23).

The defendant move for dismissal pursuant to Fed.

R. Civ. P. 12(b) (6) or, in the alternative, summary

judgment pursuant to Fed. R. Civ. P. 56. A complaint

may be dismidded under Rule 12 (b) (6) for falure to

sate a claim “only if it is clear that no relief could be

granted under any set of facts that could be proved

consistent eith the allegations.” Hishon v. king &

Spalding, 467 U.S. 69, 73 (1984). In deciding a

motion to dismiss under Rule 12(b) (6), [t]he court

must construe the complaint in a light most favorable

to the plaintiff, and accept all of [the] factual

allegations as true.” Bloch v. Ribar, 156 F. 3d 673,

677 (1988). If, on the motion to dismiss pursuant to

Rule 12(b) (6), matters outside of the pleadings are

presented to and not excluded by the court, the motion

shall be treated as one for summary judgment. Fed.

R. civ.P. 12 (b).

Because both the defendants and the plaintiff have

submitted matters outside the oleadings, the Coourt

shall treat the defendants’ motion as ond for summary

judgment where “the pleadings, depositions, answers

to interrogatories and admissions on file together with

affidavits, if any, show that there is no genuine

Case 5:03-cv-00442-DCB Document 32

Filed 01/10/2005 Page 4 of 28

dispute as to any material fact and tht the moving

party is entitled to judgment as a matter of law.”

Celotex Corporation v. Catrett, 477 U.S. 317, 322

(1986). The existence of a material question of fact is

itself a question of law that the district court is bound

to consider before granting summary judgment. John

v. F 2d State of La. (Bd of T. for State C & U.), 757

F. 2d 698, 712 (5™ Cir. 1985).

The district court’s functionat the summary

judgment stage is not to weigh the evidence and

determine the truth of the matter but to determine

whether there is a genuine issue for trial. There is no

issue for trial unless there is sufficient favoring the

non-moving party for a jury to return a verdict for that

lf the evidence is merely colorable, or is not

ignificantly probative, summary judgment may be

granted. Anderson vy. Liberty lobby, Inc., 477 U.S.

4

242, 249-50 (1986).

Although Rule 56 is peculiarly adapted to the

dispoition fo legal questions, it is not limited to that

role. Professional Managers, Inc. V. Fawer, Brian,

Hardy & Zatzkis, 799 F.2d 218, 222 (5" cir. 1986).

“The mere existence of a disputed factual issue,

therefore , does mot foreclose summary judgment.

The dispute must be genuine, and the facts must be

material. “Id. “With regard to materiality,’ only

those disputes over the facts that might affect the

outcome of the lawsuit under the gor _ verning

substantive law will preclude summary judgment.”

Phillips oil Company v. OKC Corp., 812

Case 5:03-cv-00442-DCB Document 32

Filed 01/10/2005 Page 5 of 28

F. 2d 265, 272 (5" Cir. 1987). Where “the summary

judgment evidence establishes that one of the

essential elements of the plaintiff's cause of action not

exist as a matter of law, ...all other contested ussues

of fact are rendered immaterial.” Topalian v. Ehrman,

954 F. 2d 1125, 1138 (5" Cir. 1992) (citing Celotex,

477 US. at 323).

In making its determination fo fact on a motion for

summary judgment, the court must view the evidence

submitted by both parties in a light most favorable to

the non-moving party. McPherson v. Rankin, 736 F.

2d 175, 178 (5" Cir. 1984) the moving party has the

duty to demonstrate the lack of a genuine issue of

material fact and the appropriateness of judgment as a

matter of law to prevail onits motion. Union planters

Nat. Leasing v. woods, 687 F .2d 117 (5" Cir. 1982).

The moving party accomplishes this by informing the

5

court of the basis of tis motion and by identifying

portions of the record which highlight the absence of

genuine factual issues. _Topalian, 954 F. 2d at 1131.

Once a properly supported motion for summary

judgment is presented, the non-moving party must

rebut with “significant probative” evidence. Ferguson

v. National Broadcasting Co., Inc. 584 F.2d 111, 114

(5 Cir. 1978). In order words, “ the nonmoving

litigant is required to bring forward ‘significant

probative evidence’ demonstrating the existence of a

triable issue of fact.”In re Municipal Bond Reporting

Antitrust Lit., 672 F. 2d 436, 440

Case 5:03-cv-00442-DCB Document 32

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(5" cir. 1982) (citing Ferguson v. National Broadcasting

Co., Inc., 584 F. 2d 111, 114 (5" Cir. 1978). To defend

against a proper summary judgment motion, the non-

moving party may not simply refer back to the allegations

of his pleadings. Leslie v. Ingalls shipbuilding, Inc., 899

F. Supp. 1578, 1580 (S.D. Miss. 1995) the non-moving

party’s response, by affidavit or otherwise, must set forth

specific facts showing that there is a genuine ussue for

trial. Fed. R. Civ. P. 56(e); Union Planter Nat. Leasing v.

Woods, 687 F. 2d at 119. While “(t]he moving party need

not support its motion with affidavits or ther evidence, ...

to defeat a motion for summary judgment the nonmoving

must present evidence sufficient to establish the

existence of each element of his claim as to which he will

have the burden of proof at trial.” Pavone v. Mississippi

Amusement Corp., 52 f.3d 560, 565 (5™ Cir. 1995)

(citation omitted). Consequently, “[n]either

“unsubstantiated assertions’ nor ’conclusion allegations’

6

can satisfy the non-moving party’s burden.” Lawrence v.

University of Tex. Medical Branch at Galveston, 163 f.

3d 309, 312 (5" Cir. 1999) (ciation omitted).

Moreover, a ciaim tht further discovery or a trial might

reveal facts of which the plaintiff is currently unaware is

insufficient to defeat the motion. See Woods v. Federal

Home Loan Bank Bd., 826 F. 2d 1400, 1414,-15 (5 Cir.

1987). If the nonmoving fails to satisfy its burden,

summary judgment is required. leslie, 899 F. Supp. at

1588.

Case 5:03-cv-00442-DCB Document 32

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Summary judgment is available in employment

discrimination cases and is appropriate where “critical

evidence is so weak or tenuous on an essential fact

that it could not support a judgment in favor of the

nonmoving, or where it is so everwhelming that if

mandates judgment in faovr of the movant.”

Armstrong v. City of Dallas, 997 F. 2d 62, 67 (5" Cir.

1993). “If the movant satisfies its initial burden of

demonstrating the absence of a material fact issue,

*the non-movant must identify specific evidence in

the summary judgment rrecord demonstrating that

there is a material fact issue concerning the essentail

element of its case for which it will bear the burden of

] >

proof at trial.”” Douglass v. united States Automobile

assn’n, 79 F. 3d 1415, 1429 (5" Cir. 1996). (quoting

Forsyth v. Barr, 19 F. 3d 1527, 1533 (5™ Cir. 1994).

7

“{C]onclusory allegations, speculation and

unsubstantiated assertions are inadequate to satisfy

the nonmoving burden.” Id. Futhermore, it is “well-

settled that an employee’s subjective belief that he

suffered an adverse employment action as a result of

discrimination, without more, is not enough to survive

a summary judgment motion, in the face of proof

showing an adequate nondiscriminatory reason.” Id.

at 1430; see also Odom v. Frank, 3 F. 3d 839, 849

(5" Cir. 1993) (finding athat anecdotal evidence and

bare speculation are not enough to survive summary

judgment).

Several of the plaintiff's allegations must be

dismissed because he failed to exhaust his

administrative remedies. When

Case 5:03-cv-00442-DCB Document 32

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Congress enacted Title VII, it required that certain

procedures be established as a prerequisite to bringing

an employment discrimination claim in federal court.

42 U.S.C. s 20003-16(b). the Equal Employment

~ Opportunity Commission, pursuant to this statutory

authority, established clear guidelines governing

federal employees’ discrimination claims at the

administrative stage. Of significance in this action,

29 C.F.R. s 1614.105 (a) (1) mandates that a federa

employee bring incidents of alleged discrimination to

the attention of the agency’s Equal Employment

Opportunity Counselor (“EEO Counselor“) within 45

days of the date he knew, or should have known, of

the discriminatory act. See Teemac v. Henderson,

298 F. 3d 452, 454 (5" Cir. 2002). Lf the federal

employee fails to timely refer the matter to an EEO

Counselor, his claims are barred. Id.

These procedures establish “rigorous

administrative exhaustion requirements and time

limitations” as a “precondition” to a federal

employee’s fight to gile a Title VII action in federal

court. Brown v. General Services Administration,

425 US. 820, 833 (1976). As the First Circuit stated

in Misra v. Smithsonian Astrophysical

Observatory:

Under the principal of sovereign immunity, individuals

may not sue the United states without its consent. This

immunity extended to suits brought under the Civil Rights

act of 1964 (the “Act”). In 1972, Congress amended the

act to waive the federal government’s sovereign immunity

for employment discrimination actions against wvarous

federa agencies and institution and to permit federal court

jusisdiction over such violations. Congress also

8

Case 5:03-cv-00442-DCB Document 32

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Outlined, as a condition of this waiver, a series of

administrative remedies which a claimant must exhaust

Before filing suit in federal court.

248 F. 3d 37, 39 (1* Cir. 2001) (internal citations

omitted).

Strict adherence to time limits is also required to

prevent litigation of stale claims. see, e.g., Delaware

State college v. Ricks, 449 U.S. 250, 256-57 (1980)

(“The limitation periods, while guaranteeing the

protection of the civil rights laws to those who

promptly assert their rights, also protect employers

from the burden of defending claims arising from

decisions are long past.’). Consequently, where

federal employees fail to avide by the limitations

period within which to contact an EEO Counselor,

courts have not hesitated to dismiss their claims. As

the Supreme Court has advised, “a discriminatory act

which is not made the basis for a timely charge is the

legal equivalent of a discriminatory act which

occurred before the statue was passed... it is merely

an unfortunate event in history which has no present

legal consequence.” United Air Lones v. Evans, 431,

U.S. 553, 558 (1977).

The plaintiff referred his allegations of

discrimination to the EEO Counselor on june 11,

2002. (Federal Bureau of Prisons Report of

Investigation Re: Danny Williams (hereafter “ROT’),

Ex. B-4 attached thereto). Accordingly, he has

exhausted his administrative remedies only with

respect to the incidents that occurred after March 27,

2002- 45 days before he contacted the EEO

Case 5:03-cv-00442-DCB Document 32

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Outlined, as a condition of this waiver, a series of

administrative remedies which a claimant must exhaust

before fining a suit in federal court.

248 F. 3d 37, 39 (1" cir. 2001) (internal citations

omitted).

Strict adherence to time limits is also required to

prevent litigation of stale claims. See, e.g.., Delaware

State College v. Ricks, 449 U.S. 250, 256-57 (1980)

(“The limitation periods, while guaranteeing the

protection of the civil rights laws to those who

promptly asserts their rights, also protect employers

from the burden of defending claims arising from

decisions that are long past.”). Consequently, where

federal employees fail to abide by the limitation

period within whi¢h to contact an EEO Counselor,

courts have not hesitated to dismiss their claoms. As

the supreme Court has advised, “ a discriminatory act

which is not made the basis for a timely charge is the

9

legal equivalent of a discriminatory act which

occurred before the statue was passed it is merely

an unfortunate event in history which has no present

legal consequence.” United Air Lines v. Evans, 431

U.S. 553, 558 (1977).

The plaintiff referred his allegations fo

discrimination to the EEO Counselor on June 11,

2002. (Federal Bureau of prisons Report of

Investigation Re: Danny Williams (hereafter “ROT’),

Ex. B-4 attached thereto). Accordingly, he has

exhausted his administrative remedies only with

respect to the incidents that occurred after March 27,

2002- 45 days before he contacted the EEO

Case 5:03-cv-00442-DCB Document 32

Filed 01/10/2005 Page 10 of 28

Counselor. All of his other claims are time-barred

because they were not timely referred to an EEO

Counselor.

The plaintiff claims that he was demoted from

Food Service Administrator to Vocat‘onal Training

Instructor as a result of dicerimination because of his

race and gender, and in retaliation for his

participation in Title VIl-protected activity (filing his

claim with the EEO Counselor). The Court shall

address his claims of race and gender discrimination,

then his clalim for retaliatory demotion in violation of

Title VI.

In order to establish a prima facie case of race or

gender discrimination, the plaintiff must show: (1) he

is a member of a protected group. St. Mary’s Honor

Center v. Hicks, 509, U.S. 502, 506 (1993); Tex.

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

248, 252-53 (1981); McDonnel Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). Alternatively, the

plaintiff may establish a prima facie case by showing

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

qualified for the position , and persons outside the

protected class were treated more favoebly atha he.

Waggoner v. City of Garland, 987 F. 2d 1160, 1163

(5" Cir. 1993). At all times, the plaintiff has the

ultimate burden to prove race and sex discrimination.

Hicks, 509 U.S. at 510.

Once the prima facie case is established, the burden

then

10

Case 5:03-cv-00442-DCB Document 32

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shifts to the employer to articulate a llegimate,

. nondiscriminatory reason for its actions. McDonnell

Douglas, 411 U.S. at 802. If the employer neets its

burden, the prima facie case is dissolved, and the

burden shifts back to the plaintiff to establish that the

reason proffered by the employer is merely a pretext

for discrimination. Id.; Rhodes v. Guiberson Oil

Tools, 39 F. 3d 537, 542 (5" Cir. 1994). To

demonstrate a “pretext for disctimination.” the

plaintiff must show both that the employer’s proffered

reason was false and that race or sex discrimination

was the real reason. See Hicks, 509 U.S. at 510;

Rhodes, 39 F. 3d at 542.

An employee’s own subjective belief of race and

sex discrimination, however genuine, cannot be the

1]

basis for judical relief. Little v. Republic Refining

Co, , 924 F. 3d 93, 96 (Stth Cir. 1991).; Sherrod v.

sears Roebuck & Co., 785 F. 2d 1312, 1316 ( 5" Cir.

1986); Elliot v. Group Medical & Surgical Serv..,

714 F.2d 556, 557 (5™ Cir. 1983). Although Title

VII protects employees against racial and sex

discrimination in the rerms and conditions of

employment, it does not afford minorities special

preferences or place upon the employer an affiemative

duty to accord them special treatment. See Williams

v. General Motors Corp., 656 F. 2d 120, 129 (5" Cir

1981).

The Fifth Circuit has held that only actions

affecting ultimate employment decisions, such as

hiring , promoting,

Case 5:03-cv-00442-DCB Document 32

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Compensatinf, granting leave, and firing, can

constitute adverse employment actionf for the

purposes of establishing a prima facie case for

retaliation. See Mattern v. Eastman Kodak, 104 F. 3d

702, 707 (5" Cir. 1997); Dollis v. Rubin, 77 F. 3d

777, 782 (5" Cir. 1995) (citing page v. Bolger, 645 F.

2d 227, 233 (4 Cir. 1981) ); see also Padilla v.

Carer Air Conditioning, 67 Supp. 2d 650, 656 (E.D.

Tex. 1999). Most of the plaintiff's claims of

discrimination fail to rise to the level of an adverse

employment action.

The plaintiff calims that he; (1) received a written

reprimand for allegedly refusing to make negative log

entries in the performance log of an African American

employee who he supervised; (2) was placed on a

performance improvement plan; (3) received low

12

quarterly performance log ratings; and (4) was not

permitted attend a training session for department

heads. However, these alleged incidents do not rise to

the level of adverse employment actions. The

plaintiff

has produced no evidence of a written reprimand.

Furthermore, documented reprimands alone, and

negative performance evaluations, even if underseved,

do not constitute “adverse employment actions”

under Title VII. Thompson v. Exxon Mobil Corp.,

344 F. supp 2d 971,981 (E.D. Tex. 2004). See also

Douglas v. Dyn McDermott petroleum Operations

Co., 144 F. 3d 364, 373, fn.11 (5" Cir. 1998) (even if

ermployee evaluations was “low” it was not an adverse

employment action). Similarly, the Fifth Circuit has

specifically held that placing an employee on a

Case 5:03-cv-00442-DCB Document 32

Filed 01/10/2005 Page 13 of 28

Performance inprovement plan alone is not an

“ultimate employment decision.” Felton v. Polles,

315 F. 3d 470, 488 (5™ Cir. 2002) (citing Mattern,

104 F. 3d at 708). Denial of an opportunity to attend

a department head training meeting is also not an

adverse employment action. See Dollis, 77 F. 3d at

781-82 (alleged denial of attendance at conference not

sufficient to establish an adverse employment action).

Thus, the only claim alleged by the plaintiff which

rises to the level of an adverse personnel action is his

demotion.

At all times revelant to this action, while the

plaintiff was Food Service, his first-line supervisor

was Associate Warden of Operations scott Fisher, a

white male, and his second-line supervisor was

13

Warden Kurshid Yusuff, and asian female. (ROI,

Exh. F-1, p.5). Prior to Fisher’s arrival at FCI Yazoo

City as an associate Warden, he spent approximately

thirteen (13) years in various Food Service

Departments within the federal Bureau of prisons.

(Depositions of Scott Fisher, pp. 32-41). His position

as associate Warden of Operations at FCI Yazoo City

required that he have direct oversight of the FC]

Yazoo City food Service Department. (Id at 41; ROI,

F-4, PP. 10-11).

Upon Fisher’s arrival at FCI Yazoo City in

November of 2001, he discovered many areas under

the plaintiff's supervision which were unsatisfactory

and which were not operating in accordance with the

Agency’s policies and the plaintiff's performance

standards.

Case 5:03-cv-00442-DCB Document 32

Filed 01/10/2005 Page 14 of 28

(ROI, Exh. F-4, pp. 1, 12-14; Deposition of Scott

Fisher, p. 66). Specific areas fo concern regarding the

Food Service Department operations inclided: (1) the

Cook Supervisors, under the plaintiff's chain of

command, were inadequately trained; (2) oftentimes

the meals served to inmates and staff were not at the

correct temperature potentially causing food-borne

illness; (3) the saintation fo the deparfment was

unacceptable; (4) supplies were inadequately

maintained; (5) religious diets were not being

adhered to; (6) procedures for the cook/chill program

were not being adhered to; and (7) the Food Service

\

staff was corrected when using improper procedures

to serve food. (Deposition of Scott Fisher, pp. 68-

121; ROI, Exh. F-4, pp. 17-51). Further, upon

14

inspection of the Food Service Department, Fisher

discovered several cross-contamination and sagety

issues pertaining to food in the department.

(Deposition o fscott Fisher, pp. 94-95; ROI, Ehx. F-

4).

During the period of December 10-13, 2001, a

Program Review of the Food Service department was

conducted by the Bureau of prisons. (Depposition fo

Scott Fisher, Ehx. 3). The review was a

comprehensive examination of the Food service

operations with attention given to the performance of

the vital functions regarding sanitation, quality and

service management. (Id.). The Department received

an “Acceptable” rating with ten noted deficiencies.

(Id.; ROI, Ehx. F-4, p.25). The program Review, in

the “General

14

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005

page 15 of 28

comments” section, noted several areas with respect to food

safety that needed improvement:

On Monday, December 10, 2001, a comprehensive food

safety and sanitation inspection revealed sanitation at an

acceptable level at the main institution and excellent at

the camp. Several areas were noted in the area of food

safety that needed improvement. Sanitizing and air

drying of equipment were not being accomplished due to

the use of paper towels to clean and dry equipment.

Further attention is needed in regards to food

temperatures during cooking, holding, cooling, and

serving times. Food Service staff were vcry receptive to

advi[c]e ion methods to improve and maintain required

levels of sanitation. The AFSA must continue training

and providing guidance to cook supervisors and other

non-food service staff assigned to Food Service.

( Deposition of Scott Fisher, Exh. 3, p. 4).

The review specifically noted four (4) deficiencies which

related to food not being at correct temperatures, and failure

of the cook supervisors to use calibrated thermometers to

ensure attainment and maintenance of proper internal

cooking, holding, or refrigeration temperatures of all

15

potentially hazardous foods. (Id., pp. 6-7. Moreover, the

review found that hazardous chemicals were not controlled

and accounted for daily. (Id., p. 7). The review also found

that cutting boards, pans, and food inserts used in the

production of foods for religious diets were not identified for

use only in the Religious Diet program. (Id.). It was also

noted that the meat and dairy service utensils were not stored

in separate areas. (Id.).

Prior to the Program Review, a Staff Assistance Visit was

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005

page 16 of 28

conducted by the regional food Services Administrator,

Martha Mitchell, an African-American female, from October

30 through November 1, 2001. (Deposition of Martha

Mitchell, pp. 35-46). Mitchell found and noted several

deficiencies in the Food Service Department. (Id. , Staff

Assistance Visit (“SAV”). She found that daily cleaning

were not being followed and sanitation was not being

maintained in accordance with policy. (SAV, P. 2). It was

noted that hazardous chemicals were observed unsecured in

pots and pans area. (Id.). Deficiencies were noted with

respect to the Special Feeding Program were not marked and

the utensils for meat and dairy were not stored separately.

(Id.). Similar deficiencies noted during the Staff Assistance

Visit with respect to hazardous chemicals and the utensils

for the Religious Diet Program were also noted during the

16

Program review held in December of 2001. (Deposition of

Martha Mitchell, pp. 42-44).

On January 31, 2002, Associate Warden Fisher conducted

another inspection of the Food Service department.

Sanitation continued to be a problem. (Deposition of Scott

Fisher, pp. 125, 131-133.) During this inspection, Fisher

noted approximately 120 sanitation deficiencies. (Id., p. 133

and Exh. 4). Deficiencies noted included: (1) inmates eating

and drinking in food preparation areas; (2) potential cross-

contamination; (3) inaccurate temperature of potentially

hazardous foods in storage and being

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005

page 17 of 28

offered for service during the lunch meal; and (4) pork

spareribs served on January 21, 2002 (ten days prior), still

| being stored as leftovers. (Id.). The results of this

inspection were noted in the Plaintiff's Performance Log by

an entry dated February 1, 2002. (Deposition of Scott

Fisher, Exh. 14).

On February 25, 2002, the plaintiff received an entry in

his Performance Log which references the January 31, 2002,

sanitation inspection of the Food Service Department

wherein approximately 120 deficiencies were noted, with

many having the potential of causing food-bornc illnesses.

(id., p. 4). The Performance Log entry also states that a

follow-up inspection of the Food Service Department was

conducted on February 12, 2002, during the January 31,

2002, inspection stiil existed with no indication that an

17

attempt had been made to rectify those deficiencies. (Id.).

It was further noted that the plaintiff had been counseled

several times regarding his responsibility to train his staff

and monitor their performance by performing daily

inspecting and by conducting additional training. (Id., p. 5).

Consequently, the plaintiff was placed on a Performance

Improvement Plan on February 25, 2002. (Deposition of

Scott Fisher, Exh. 12; ROI, Exh. F-1, p. 10) the

Performance Improvement Plan required the plaintiff to

manage the day-to-day operations of the food Service

Department. Specifically, the

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005

page 18 of 28

plaintiff was to provide training to his staff in the policies

and procedures governing their responsibilities, to allow

them to work independently without constant intervention.

(Id.). The plaintiff was also required to conduct daily

inspections of the Food Service Department to assure staff

adherence to policies and procedures. In addition, with

respect to any deficiencies identified, it was the plaintiff's

responsibility to motivate his staff to correct the areas of

concern with training and coaching, in order to improve their

performance. (Id.). The plaintiff was also to ensure that

sanitation inspections, and to follow up on inspections in

areas that were noted as deficient. (Id.). In addition, the

plaintiff was to establish priorities and provide a timetable

for attainment of goals needed for corrective actions or

program improvements identified from safety and sanitation

inspections. (Id.).

On or about May 23, 2002, the plaintiff received and

overall Fully Satisfactory Performance Appraisal for the

period of Apnil 1, 2001- March 31, 2002. ; (Deposition of

Scott Fisher, Exh. 13; ROI, Exh. F-24). The plaintiff's

Performance Appraisal was completed by Associate Warden

Fisher. (ROI, Exh. F-24, p. 3). In the May 23, 2002

Performance appraisal, the plaintiff received a Minimally

Satisfactory rating in Element No. 1. (ROJ, Exh. F-26, p. 1).

| Employee Performance appraisals range from Outstanding,

Exceeds, Full Satisfactory, Minimally Satisfactory, and

Unsatisfactory.

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005

page 19 of 28

Element No. | of the Performance Appraisal rates the

plaintiff's ability as department head to plan, monitor, and

evaluate various tasks. (ROI, Exh. F-1, p. 5). The

Performance Appraisal noted that the plaintiff and difficulty

throughout the rating period with monitoring and evaluating

the operation of the Food Service Department. (Id.).

Further, the plaintiff had problems understanding the

importance adhering to priorities, and he failed to establish a

timetable for goals and objectives established by both policy

and his supervisor. (Id.).

A follow-up review of the food Service Department was

conducted during the period of May 12- 16, 2002. As with

the Staff Assistance Visit and the Program Review, several

deficiencies regarding sanitation and safety issues were

noted. (Deposition of Scott Fisher, Exh. 10). Again,

19

deficiencies were noted with respect to the roper holding

temperatures for leftover foods which crated the potential for

food borne illness. (Id.). Repeat violations were also found

regarding the storage of chemicals and Religious Diet

Program. (Id., pp. 2-3). The deficiencies found in this

follow-up review were noted in an entry dated May 24, 2002

in the plaintiff's Performance Log. (Deposition of Scott

Fisher, Exh. 15, pp. 2-3).

Consequently, on June 3, 23002, the Plaintiff received an

Unsatisfactory Performance Log entry for Element No. 1.

(Deposition

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005

page 20 of 28

of Scott Fisher, Exh. 15, p. 2; ROL Exh. A-2). Then on June

18, 2002, the plaintiff was issued a notice proposing charges

for his removal as the Food Service Administrator for

unsatisfactory performance of assigned duties from

Associate Warden Fisher. (ROI, Exh, F-21, p. 1).

Subsequently, the plaintiff had two opportunities to orally

respond to the proposal letter for removal

-one with Jose Vasquez on July 18, 2002, and another with

Warden Yusuff on August 9, 2002. (ROI, Exh. F-21, pp. 10-

12).

On August 28, 2002, upon consideration of the proposal,

oral and written responses, and all relevant information

contained in the adverse action file, Warden Yusuff decided

to full support the charge of Unacceptable Performance of

Assigned Duties. In lieu of removal, Warden Yusuff

20

demoted the plaintiff to the position of Training Instructor,

effective September 8, 2002. (ROI, Exh. F-21).

On June 11, 2002, Plaintiff initiated his first contact with

an EEO counselor. (ROI, Exh B-4). On July 12, 2002, the

plaintiff formally filed his complaint of discrimination

against the Agency. (ROI, Exh. B-5). Subsequently, the

agency accepted for investigation Plaintiff's allegation that

he was discriminated against based on his race (African

American) and sex (male), when he was subjected to a

hostile work environment and when on or about June 25,

2002, he was not permitted to attend a department head

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005

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training meeting, and the associate warden recommended

that he be removed from his position as Food service

Administrator, Id, Ex. 1, ROI, Ex. Cl.

Informal efforts to resolve the matter were unsuccessful.

The plaintiff then requested a hearing before an EEOC

Administrative Judge. On June 9, 2003, Administrative

Judge Clarence Bell issued a decision without a hearing in

favor of the agency. (Decision in the Matter of Danny

Williams v. John Ashcroft, et al., EEOC Case No. 130-2003-

08096-X). Administrative Judge Bell found that the

evidence presented did not support the plaintiffs allegations

of a hostile work environment, harassment, or reprisal. (Id.).

On August 28, 2003, the plaintiff filed the instant action

before this Court.

in re@pense to the defendants’ motion for summary

2]

judgment, the plaintiff has not bought forward any evidence

to show that the alleged letter of reprimand, Performance

Improvement Plan, low Quarterly evaluation log entry,

denial to attend training meeting, or the ultimate decision to

demote the plaintiff were due to his race or sex, or that other

similarly situated persons of different race or sex were

ultimately demoted. The defendants have put forward

significant evidence, however, that the personnel actions

alleged by the plaintiff were a direct result of Associate

Warden Fisher’s assessment that the Food Service

Department was poorly run and the performance of the

department was unsatisfactory, of

21

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005

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Regional Food Service Administrator Mitchell’s findings of

deficiencies in the Food Service Department during the Staff

Assistance Visit, and of the Program review. The plaintiff

was informed of the Regional Food Service Administrator

Mitchell’s findings of deficiencies in the Food Service

Department during the Staff Assistance Visit need to correct

the deficiencies and was given an opportunity to do so.

Plaintiff has presented no evidence suggesting that any of the

actions he complains of were due to his race or sex, nor has

he provided any evidence to rebut the agency’s legitimate,

nondiscriminatory reasons for its actions.

The plaintiff has also failed to establish that non-black

employees or female employees were treated more favorably than

he. The plaintiff has identified three comparators, Brenda Bush, a

white female; Thomas Ivy, a white male, former Food Service

22

Administrator of the Food Service Department at FCI Yazoo City;

and John Torchio, a white male, the current Food service

Administrator.

The Fifth Circuit has held that “To establish disparate

treatment, a plaintiff must show that the employer gave

preferential treatment to another employee under “nearly identical

circumstances;” that is, “that the misconduct for which the

plaintiff was [demoted] was nearly identical to that engaged in by

...[other] employee [s].” Okoye v. The University of Texas

Houston Health Science Center, 245 F. 3d 507, 513 (5" Cir.

2001) (citation omitted). See also Lockett v. Wal-Mart Stores,

Inc. , 2004 WL 21006411 (E.D. Tex).

Brenda Bush, formerly head of the Financial Services

22

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Department, is not a proper comparator. She was removed

as department head for continuously reporting inaccurate

financial information to the executive staff. (Deposition of

Scott Fisher, pp. 47, 55). She is now the Internal Control

Manager. (Id., p.48). Associate Warden Fisher

recommended that Bush be demoted. (Id., p. 178) Bush’s

discipline was based on conduct rather than performance,

i.e., it was based on a blatant disregard for Agency policy

regarding honesty. She was additionally recommended for

an investigation by the Office of Internal Affairs. (Id., p.

179). The plaintiff, however, was demoted for performance-

based issues. The Fifth Circuit has held that employees who

engaged in different violations of company policy are not

nearly identical for purposes of Title VI. See Okoye, 245,

F. 3d at 513; see also Coleman v. Exxon Chemical

ee

Corporation, 162 F. Supp. 2d 593 (S.D. Tex.2001)

(employee with different responsibilities, different

capabilities, different work rules violations, and different

disciplinary rewards is not nearly identical). Thus, Brenda

Bush is not an appropriate comparator.

Similarly, Thomas Ivy and John Torchio are not suitable

comparators. Prior to Fisher coming to FCI Yazoo City,

during his tenure as Regional Food Service Administrator,

fisher was asked by the Warden at Fort Dix, New Jersey to

review the Food Service Department at FCI Fort Dix, which

was then headed by Thomas Ivy, (Deposition of Scott Fisher,

pp. 169-172). Plaintiff has tried to

23

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005

page 24 of 28

make much fo the fact that Fisher did not recommend Ivy for

removal based on deficiencies in Ivy’s department. However,

it is undisputed that this was not part of Fisher’s role as

Regional Food Service Administrator. (Id., p. 171). The

Regional Food Services Administrator functions as a

technical advisor to the Warden at various BOP institutions.

(Deposition fo Martha Mitchell, pp. 10-30). The warden and

their deputies are responsible for the food service

departments of their respective institutions. (Id., p. 31).

Consequently, the managing officials responsible for any

disciplinary action taken toward Ivy would have been the

Warden and the deputy at FCI Fort Dix, not Fisher. The

Fifth Circuit has held that circumstances are not nearly

identical wher employees’ actions are reviewed by different

supervisors. See Okoye, 243 F. 3d at 513; Coleman, 162 F.

24

Supp. at 613.

For similar reason, John Torchio is not a suitable

comparator. Associate Warden Fisher only supervised

Torchio from December 2002 until May 2003. Prior to

Torchio becoming Food Service Administrator, Fisher had

provided oversight to the Food Service Department. After

Torchio assumed leadership fo the department, Martha

Mitchell’s observation of the Food Service Department was

that it was running in an efficient manner. (Deposition of

Martha Mitchell, p. 35).

The plaintiff attempts to make much of the fact that a

food strike occurred in April 2004, during Torchio’s Tenure.

Williams

24

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005

page 25 of 28

argues that the After Action Report concerning the food

strike points to numerous problems similar to the one he

experienced during his tenure, yet Torchio was not removed

from his position as Food Service Administrator. Again, the

plaintiff ignores the fact that management officials other

than Fisher and Warden Yusuff were overseeing the Food

Service Department. Prior to and during the food strike,

Warden Pettiford and James Mitchell, Associate Warden of

Operations, Provided oversight of the Food Service

Department. According to the legal principles of Okoye,

243 F.3d at 513, Torchio is not a suitable comparator.

Having failed to identify a suitable comparator, the plaintiff

4

cannot establish a prima facie case. Moreover, the

defendants have articulated legitimate, nondiscriminatory

reasons for the plaintiff's demotion, and the plaintiff has not

25

shown that these reasons are pretextual.

As for the plaintiff's theory of liability based on disparate

impact, he must show that a policy or practice, that appears

neutral on its face, in fact has a disparate impact or effect on

a protected class. See Patterson v. Magnolia Regional

Health Center, 2001 WL 1524419, *2 (N.D. Miss. 2001). If

the plaintiff meets this burden, the burden shifts to the

defendants to prove a substantial legitimate justification for

the practice. Id. If the defendants prove a valid justification,

the plaintiff may still prevail by presenting evidence that the

legitimate practice is a pretext for discrimination. Id.

25

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005 -

page 26 of 28

The plaintiff cannot meet his burden. His complaint

identifies only one individual, himself, who has allegedly

been adversely impacted. Furthermore, the defendant have

asserted a substantial legitimate justificatiorf for the

challenged personnel practices, which has not been shown to

be pretextual.

The plaintiff's claim of retaliation is similarly deficient.

Title VII makes it unlawful for an employer to discriminate

against an employee for making a charge under the Civil

Rights Act. See 42 U.S.C. s 2000e-3(a). In order to

establish a prima facie case of retaliation, the plaintiff must

show: (1) he was engaged in a protected activity; (2) there

was an adverse action taken against him; and (3) a casual

connection exists between the protected activity and the

adverse employment action. Shirley v. Chrylser First, 970 F.

26

2d 39, 42 (5 Cir. 1992) ; Barrow v, New Orleans SS Assn,

10F. 3d 292, 298 (5" Cir. 1994). On a motion for summary

judgment, the Court will weigh heavily the timing between

the protected activity and the adverse employment action in

deciding if the employer’s reasons for the adverse action

pretextual. Shakleford v. Deloitte & Touche, LLP, 190 F. 3d

393, 408-409 (5" Cir. 1999).

In his Complaint, the plaintiff alleges that he was

retaliated against when he refused to make negative log

entries into the performance log of an African-American

employee whom he supervised. This incident allegedly

occurred on a about December

26

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005

page 27 of 28

2001. As stated previously, this incident predated the

plaintiff's charge of discrimination, referred to the EEO

Counselor on June 11, 2002. By more than 45 days.

Furthermore, the plaintiff has produced no evidence that a

written reprimand was issued for his refusal to make such a

log entry. Even assuming that the plaintiff can establish that

he had engaged in activity protected by Title VII prior to te

alleged written letter of reprimand, he cannot prove that he

suffered an adverse employment action. As articulated

above, the Fifth Circuit has stated that the purpose of Title

VIL is to address “ultimate employment decisions,” Mattern

v. Eastman Kodak Co., 104 F. 3d 702, 707 (5" Cir. 1997)

(citing Dollis v. Rubin, 77 F. 3d 777, 781-82 (5" Cir. 1995)).

These ultimate decisions include such actions as “hiring,

granting leave, discharging, promoting, and compensating.”

27

Id. Other acts, such as documented reprimands, verbal

threats of being fired, and placement on “final warning” do

not constitute ultimate employment actions. Id. at 780.

Thus, the alleged letter of reprimand cannot constitute an

ultimate employment decision, and the plaintiff cannot

maintain his claim for retaliation.

The Court therefore finds that the defendants’ motion to

dismiss, or in the alternative for summary judgment (docket

entry 23), which the Court has converted to a motion for

summary

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Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005

page 28 of 28

judgment, is well taken.

A separate order of even date herewith shall be entered,

granting the motion, and a final judgment shall also be

entered dismissing this case with prejudice.

This the 7" day of January, 2005

S/David Bramlette

UNITED STATES DISTRICT JUDGE

28

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

Southern District of Mississippi

FILED

JAN 10 2005

J T. Noblin, Clerk

By Deputy

DANNY WILLIAMS PLAINTIFF(S)

VERSUS CIVIL ACTION NO. 5:03cv442BrSu

JOHN ASHCROFT, et al DEFENDANT(S)

RULE 16.1(A) INITIAL ORDER

The above captioned cause is set for a

TELEPHONIC CASE MANAGEMENT

CONFERENCE (CMC) on December 12, 2003, at

2:00 p.m. before:

Magistrate James C. Sumner

245 East Capitol Street

Room 400

Jackson, MS 39201

(601) 965-4292

UNLESS OTHERWISE AGREED, IT SHALL BE

THE RESPONSIBILITY OF COUNSEL FOR

THE PLAINTIFF TO SET UP THE

CONFERENCE CALL AT THE SCHEDULED

TIME.

RULE 16.1(B) (1) ATTORNEY CONFERENCE

No later than twenty one(21) days prior to the

CMC, counsel shall confer, either in person or

telephonically, regarding the following matters:

1. Identify the principal factual and legal issues in

Dispute;

2. Discuss the principal evidentiary basis for claims

and defenses;

3. Determine the differentiated case management

case track, days required for trial, and wether the

Case should be considered for Alternative

Dispute Resolution (ADR);

4. Discuss when voluntary disclosure of

documents or other information should be

made pursuant to Rule 26.1 [no later than

fourteen(14) days after the attorney

-conference, Local Rule 16.1(B)(7)];

5. Identify any motions whose early resolution

would have significant impact on the scope of

discovery or other aspects of the litigation.

6. Consistent with the case track

recommendations, determine what additional

discovery is required beyond the voluntary

disclosures and initial depositions of the

parties, with designated time limitations;

7. Discuss whether all parties consent to

jurisdiction by a magistrate judge;

8. Discuss time for the loca Rule 16.1 settlement

Conference;

9. Discuss settlement prospects full with each

____ other and their respective clients and represent

to the Court that they have done so and

communicate the costs of going through

litigation and the appeal process with each’s

respective clients and represent to the Court

that they have done so.

10. Discuss preparation of a proposed case

management order. Scheduling deadlines

based on the track designation should not be

included in the proposed case mamagement

order. All deadlines shall be determined at

at the telephonic case mamagement

conference.

PROPOSED CASE MAMAGEMENT ORDER

CONFIDENTIAL SETTLEMENT

MEMORANDA

Counsel are instructed to submit a proposed case

Management order by mail (NO FAXES) to the

judge no later than fourteen (14) days after the

attorney conference. By the deadline, counsel shall

also submit an original and one(10 copy of a

memorandum (3 page maximun) setting forth a brief

explanation of the case, and a candid appraisal of the

respective positions, inducing possible settlement

figures. Counsel will also furnish in their

memoranduma good faith estimate of the expense of

carring the litigation through trial and the appellate

process, if not settled,and will have discussed and will

represent to the Court that they have so discussed

these costs with their respective clients and will be

prepared tp candidly discuss them with the Court.

These memoranda are not to be exchanged and will

be viewed only by the Court. These will not become

a part of the record and will be destroyed upon the

resolution of the case.

CASE MANAGEMENT PLAN

At the conference, the Court and the parties shall:

1. Identify the principal factual and legal issues in

Dispute;

2. Identify the alternative dispute prodcedure

which or report specifically why no such

procedures would assist in the resolultion of the

case;

3. Indicate whether all parties consent to

Jurisdiction by a magistrate judge;

4. Review the parties’ compliance with their

disclosure obligations and consider whether

to order additional disclosures;

5. Determine whether to order early filing of any

motions that might significantly affect the

scope of discovery or other aspects of the

litigation, and provide for the staged z

resolution, or bifurcation of issues for trial

consistent with 42(b) Feb. R. Civ. P.;

6. Determine the plan for at least the first stage

of discovery tool, time periods and other

appropriate matters;

7. Determine the date for the Local Rule 16.1 (C)

settlement conference or mediation;

8. Discuss scheduling andset apropriate

scheduling deadlines including dates for

settlement conference, completion of

discovery, motion, final pretrial conference

and trial.

CASE MANAGEMENT ORDER

A Case Management order shall be entered by the

Court within ten (10) days of the conference. A

Uniform Case Management order has been developed

and is available on the Court web site at

www.inssd.uscourts.gov and as Form no. | in the

revised Uniform Local Rules, effective December 1, -

2000. Counsel shall use that format in discussions

and preparation.

J. T. NOBLIN, CLERK

Date: ifjalo3 By: s/ P. McPhail

oe Deputy Clerk

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

CHARLES R, FULBRUGE III TEL. 504-310-7710

CLERK 600 CAMP STREET

NEW ORLEANS, LA 70130

MAY 23, 2005

MEMORANDUM: TO COUNSEL OR PARTIES

LISTED BELOW:

No. 05-60105 Williams v. Gonzales

USDC No. 5:03-CV-442

The court has denied the appellant’s motion to

supplement the record in this case.

Sincerely,

CHARLES R. FULBRUGE Ill, CLERK

BY: s/ Tania Bechtel

Tania Bechtel, Deputy Clerk

504-310-7644

Mr Danny Williams

Ms Felicia Collete Adams

MOT-2