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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1073%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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
Filed 01/10/2005 Page 6 of 28

(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
Filed 01/10/2005 Page 7 of 28

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
Filed 01/10/2005 Page 8 of 28

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
Filed 01/10/2005 Page 8 of 28

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
Filed 01/10/2005 Page 9 of 28

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
Filed 01/10/2005 Page 11 of 28

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
Filed 01/10/2005 Page 12 of 28

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
page 21 of 28

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
page 22 of 28

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

Case 5:03-cv-00442-DCB Document 32 Filed 01/10/2005
page 23 of 28

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

28

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1073%3A1. Public record. Not legal advice.