Petition for Writ of Certiorari — Simotas v. Kelsey-Seybold (No. 06-1338)
Supreme Court brief2006
Ask Donna
What actually matters in this document.
Text
Supreme Court, U.S.
» P FILED
v 061338 APR3 - 2007
ee
‘OFFICE OF THE CLERK
In the
Supreme Court of the United States
ALEXANDRA SIMOTAS, M.D.,
Petitioner,
¥.
KELSEY-SEYBOLD,
Respondent.
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI.
ELLEN SPROVACH
Counsel of Record
ROSENBERG & SPROVACH
11 GREENWAY PLAZA
SurrE 2810
Houston, TX 77046
(713) 960-8300
Counsel for Petitioner
April 3, 2007
Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001
i
QUESTIONS PRESENTED
1. Does the opinion of the Fifth Circuit Court of Appeals
opinion conflict with the reasoning and interpretation of
the First Circuit Court of Appeals because the Fifth
Circuit decided that it was irrelevant when Petitioner felt
the effects of the adverse employment decision?
. Does the opinion of the Fifth Circuit Court of Appeals fly
in the face of the plain meaning of the statute?
- Does the opinion of the Fifth Circuit Court of Appeals
conflict with Delaware State College v. Ricks, 449 U.S.
250 (1980) and Hitt v. Connell, 301 F.3d 240 (5" Cir.
2002) because the Court of Appeals found that Petitioner’s
cause of action accrued on September 12, 2006, one of
the 11 different days that have been used as her
termination date because Petitioner received notice of
termination that day though an actionable injury or an
adverse action had not yet occurred?
. Does the opinion of the Fifth Circuit Court of Appeals
conflict with Walters v. Metropolitan Educ. Enters. 519
U.S. 202 (1997); Community for Creative Non-Violence
v. Reid, 490 U.S. 730 (1989) by incorrectly determining
the last discriminatory act and affirming a lower court
finding of fact?
il
TABLE OF CONTENTS
PAGE
Qucstions Presented .. «0... cece cee ccnseeeecce i
Tile EO nc nc be wa ee eee eneewiens il
Tete OF AGES 0. wc ce cee cc ewes eet hases iV
Citations of Opinions and Orders ..........-...--. I
Basis for Jurisdiction CE soe ce eee we eer 1
Constitutional Provisions Implicated by this Petition... 2
Dennett oF Gr CAO .. . wk is cee weet ce sues 2
Reasons for Granting the Writ ...............-- 7
1. The opinion of Court of Appeals of the Fifth Circuit
conflicts with the reasoning and interpretation of the
First Circuit Court of Appeals because the Fifth
Circuit decided that it was irrelevant when Simotas
felt the effects of the adverse decision .......... 7
2. The opinion of the Fifth Circuit flies in the face of the
plain meaning of the statute ..............--. 9
3. The opinion of the Fifth Circuit Court of Appeals
conflicts with Delaware State College v. Ricks, 449
U.S. 250 (1980) and Hitt v. Connell, 301 F.3d 240
(5" Cir. 2002) because the Court of Appeals found
that Simotas’ cause of action accrued on September
12, 2006, one of the 11 different days that have been
ill
used as her termination date because Simotas received
notice of termination that day though an actionable
injury or an adverse action did not occur ........ 11
4. The opinion of the Fifth Circuit conflicts with Walters
v. Metropolitan Educ. Enters. , 519 U.S. 202 (1997);
Community for Creative Non-Violence v. Reid, 490
U.S. 730 (1989) by incorrectly determining the date of
the latest discriminatory act and affirming a lower
Se PIN cbc era 6 wa eee eaes 14
I a 62 iN FAS ok 8 EO eC ee 17
APPENDIX
Appendix A: 1/3/07 Circuit Court Order denying
PIN ie Sore on iy Woe en cea aly eo as la
Appendix B: 12/6/06 Circuit Court Opinion ...... 3a
Appendix C: 12/6/06 Circuit Court Judgment... .: 8a
Appendix D: 1/4/06 District Court Order Denying
Motion for Reconsideration ............... 10a
Appendix E: 11/30/05 District Court Memorandum
PS SS eG eeu ee deena ea 13a
Appendix F: 11/30/05 District Court Judgment ... 17a
Appendix G: 9/12/4002 Letter .........2.0.0-. 19a
Appendix H: Human Resources Action Form .... 21a
Appendix I: Chardon, et al. v. Fernandez, et al., 454
Se EI ho Os igi Vala wales 23a
Appendix J: Hitt v. Connell, et al., 301 F.3d 240
hoor DO ee ae ee tT Cre 32a
Appendix K: Thomas yv. Eastman Kodak Co., 183
Pe ee Fo oe oe pea ek eee 54a
iV
TABLE OF AUTHORITIES
Cases
Bano v. Union Carbide Corp.,
DOt Fae CPO CG: BED ov ha Fie een ees 15
Breaux v. City of Garland,
205 F.3d 150 (Sth Cir. 2000) ............... 12
Burlington Northern v. White,
126 S.Ct. 2003 Game 22, FUG) «wc ee ree vens 13
Chardon v. Fernandez,
ee are OD 8 os oe oo ee a ee 7, 8,9
Clark v. Resistoflex Co..,
O56 P.28 POs CC. TG) kak ce tec te ees 16
Community for Creative Non-Violence v. Retd,
Ge aes, FEE ee eee eee eerie i, 14
Delaware State College v. Ricks,
Ge Or ee CO 0 oo 4 oe Ke ee i, 11, 12
Devito vy. Chicago Park Dist.,
ie ee Ee ge, LS Re. en rerrurure a 16
EEOC v. Griffin Wheel Company,
Sal Fe SO CC, VS acc co oo ie ee et 15
Fletcher v. Tufts University,
367 F. Supp. 2d 99 (D.Mass 2005) ........... 8
Hitt v. Connell,
301 F.3d 240 (Sth Cir. 2002) ............, passim
Johnson v. General Electric,
OOO Fae 852 Clot Cie, 1908) 2... cece 8
Rhodes v. Guiberson Oil Tools Division,
927 ¥.20 B76 (Sth Clr. 1991) .. wc ee cc e 10
Thomas v. Eastman Kodak Co..,
ee RR fe oS ee nes 8
United States v. Georgia Power Co.,
474 F.20 906 Gh Cir. 1973) 2. ww ccs 15
United States v. Ron Pair Enterprises, Inc.,
WO Ais SPREE vc vo wees vcviics (ic wkan 9
Walters v. Metropolitan Educ. Enters.,
SEP Wee DUR CIIODD oc cceccesrviviibnt i, 14
Statutes
as aay hae
ise MTU cg oa oe Ke ve oe we 2
ir aes URED nk bela bes oe oe we eos 2, 10
Rules
Supreme Court Rule 13.3. (Revised) ............. 2
]
CITATIONS OF OPINIONS AND ORDERS
The unpublished per curiam opinion and judgment of the
United States Court of Appeals for the Fifth Circuit in
Alexandra Simotas, M.D. v. Kelsey-Seybold (C.A. 06-20049)
decided December 6, 2006, affirming the District Court’s
granting of Respondent’s Kelsey-Seybold’s motion for
summary judgment and denying the Petitioner Alexandra
Simotas’ motion for reconsideration is set forth in the
Appendix hereto (App. 3a and 10a).
The unpublished Memorandum Opinion of the United
States District Court for the Southern District of Texas,
Houston Division, in Alexandra Simotas v. Kelsey-Seybold
(Civil Action No. 04-3549), decided November 30, 2005
granting Respondent’s motion for summary judgment is set
forth in the Appendix hereto (App. 13a and 17a).
The unpublished order of the United States District Court
for the Southern District of Texas, Houston Division in
Alexandra Simotas v. Kelsey-Seybold (Civil Action No. 06-
20049), entered January 4, 2006, denying Petitioner’s motion
for reconsideration is set forth in the Appendix hereto (App.
10a).
The order by the Fifth Circuit denying the petition for
rehearing dated January 3, 2007 is set cae i in the Appendix
hereto (App. 1a).
BASIS FOR JURISDICTION
IN THIS COURT
The decision of the United States Court of Appeals for the
_ Fifth Circuit affirming the District Court’s order denying
Petitioner’s Motion for Reconsideration and affirming the
2
granting of Respondent’s Motion for Summary Judgment was
entered on December 6, 2006; and its order denying the
Petitioner’s timely filed petition for rehearing was filed on
January 3, 2007. (App. 1a).
_ This petition for writ of certiorari is timely filed within
ninety (90) days of the date the Court of Appeals denied
petitioner’s timely filed petition for rehearing. 28 U.S.C.
§ 2101(c); Revised Supreme Court Rule 13.3.
This Court has jurisdiction to review the judgment of the
United States Court of Appeals for the Fifth Circuit pursuant
to 28 U.S.C § 1254(1).
CONSTITUTIONAL PROVISIONS
IMPLICATED BY THIS PETITION
(a) General rule. - No covered entity shall
discriminate against a qualified individual with a
disability because of the disability of such
individual in regard to job application procedures,
the hiring, advancement, or discharge of
employees, employee compensation, job training,
and other terms conditions and privileges of
employment.
42 U.S.C § 12112(a).
STATEMENT OF THE CASE
Simotas is a physician who began employment with
Kelsey-Seybold on March 15, 1999 in their
Obstetrics/Gynecology department. During her employment,
Kelsey-Seybold assigned Simotas to work with other resident-
physicians in the department. This alarmed Simotas, as she
3
only had three years of medical experience outside of
residency, and felt that in order to ensure the safety of her
patients she needed the additional guidance gained from
working alongside more experienced physicians.
Accordingly, Simotas reported the situation and her concerns
to her supervisors.
After learning of Simotas’ concerns, her supervisors
concluded that she was suffering from depression and needed
to take medical leave from work. On or around May 3; 2002,
Simotas took leave pursuant to the recommendation of her
supervisors.
After going on medical leave, Kelsey-Seybold sent
Simotas a- “separation agreement.” in that agreement,
Kelsey-Seybold stated that Simotas was to be terminated and
her last working day would be May 15, 2002. While the
document was signed by Kelsey-Seybold, it was not signed by
Simotas and did not constitute her discharge. Irrespective, an
email exchange later took place between members of Kelsey-
Seybold management stating, “Dr. Simotas [is terminated as
of] 5/16/02, but don’t send notice quite yet - let’s wait until
early next week.”
Dr. James Hoyle, Medical Director for Kelsey-Seybold,
sent Out a notice informing “all providers” that Simotas had
submitted her resignation as of May 23, 2002. However,
Simotas had not expressed any interest towards resigning,
much less submitted a formal resignation. Simotas did not
perform any services for Kelsey-Seybold after mid-May 2002.
Shortly thereafter, Simotas received a letter from Cigna,
Kelsey-Seybold’s health insurance provider, stating that she
had been terminated from Kelsey-Seybold as of May 31,
2002. Then, St. Luke’s Episcopal Hospital, an affiliate of
4
Kelsey-Seybold, contacted Simotas and informed her that, as
of June 10, 2002, she was no longer associated with Kelsey-
Seybold.
While not entirely clear as to the date of Simotas’
termination, the foregoing events clearly seem to indicate
that—at some point, at least in house—she was terminated.
However, on August 16, 2002, a form was completed and
signed by the Kelsey-Seybold’s human resources department,
stating that Simotas had not been terminated in May 2002 but
retroactively was to be placed on “leave status,” and not to be
classified as “terminated.” (App. 21a.). This indicates that,
according to Respondent, Simotas was terminated in May in
their system but approximately three months later they
“un” terminated her. (App. 21a.).
Thereafter, the human resource’s department issued a
document stating that as of September 10, 2002, Simotas was
terminated. However, the document was not signed or
approved until September 11, 2002. Further, the document
classified Simotas as “TEMPPEND - Term Pending Final
Check,” meaning that the date of Simotas’ actual termination
was pending upon payment of her final paycheck. Kelsey-
Seybold then sent a letter to Simotas, stating that she was
terminated, but she would continue to receive her salary for
30 days. Kelsey-Seybold sent this letter to the wrong address
and Simotas did not receive the letter. Kelsey-Seybold was
fully aware of Simotas’ correct address, as indicated on the
stub for her last 30 days salary.
In a letter written by counsel for Kelsey-Seybold to the
Equal Employment Opportunity Commission, the company
stated that Simotas was terminated on September 12, 2002 as
opposed to their previous general position that she was
terminated on September 10, 2002. Respondent’s position was
5
further emphasized and corroborated in another, separate
letter written to the EEOC from Kelsey-Seybold’s counsel,
stating, again, that Simotas’ date of termination was
September 12. However, in yet another letter dated
September 12, 2002 written by counsel for Kelsey-Seybold to
counsel for Simotas, the company stated that Simotas was
terminated retroactively on September 10, 2002 but would
receive 30 days pay. Most importantly, Simotas was going to
be receiving pay and was on the payroll from 30 days from
September 12, 2002. (App. 19a.)
Due to the patent ambiguity of the foregoing events and
communications between Simotas, Kelsey-Seybold, and
various representatives for Kelsey-Seybold, it became
impossible for Simotas to determine the actual date of her
termination. Since it had been indicated that Simotas was
terminated on September 12th, but that she would continue to
receive pay or be on the payroll for an additional 30 days
thereafter, Simotas’ last day of employment would be October
12, 2002. Yet, Kelsey-Seybold did not cut a check for
Simotas for her last 30 days of employment until September
20th, extending the date she was on payroll to be October
20, 2002. As such, the 300-day limitations period for filing a
charge of discrimination with the EEOC expired no earlier
than October 12th, and possibly extended through October
20th. Accordingly, Simotas was within the 300-day filing
period when she filed her charge with the EEOC on August
8, 2003.'
' Kelsey Seybold is at least consistent in its pattern and practice of
changing dates as they relate to Dr. Simotas. Additionally, though
Plaintiff has shown this Court above that Defendant sent a
communication on September 12, 2002, Defendant specifically
denies sending such a communication in paragraph 4.3 of its
Amended Original Answer filed in this case on March 7, 2005.
6
Plaintiff offers sworn evidence under oath that the last day
of her employ with Defendant was October 12, 2002. The
sworn EEOC charge wherein the EEOC requests the Jatest
date discrimination took place [emphasis ours] indicating that
the “latest date discrimination took place” was October 12,
2002. This is based on page two of Dr. Simotas’ charge,
paragraph 3 where she indicates that on “September 12, 2002,
Kelsey-Seybold communicated to me that I would be fired. 30
days from September 12, 2002 is October 12, 2002 - and
according to the EEOC form - the latest date discrimination
took place. This is supported by notification from defense
counsel Ms. Cavazos to Plaintiff's counsel and through letter
dated September 12, 2002 that Dr. Simotas was to be on
payroll for 30 days [emphasis ours] and that Defendant “will
forward a check for 30 days pay, less legal deductions.”
Kelsey Seybold argues that on August 8, 2003, 332 days
after her termination of employment, Simotas filed a charge
of discrimination with the EEOC. Rather, on August 8, 2003,
300 days after the last day she was on Kelsey Seybold’s
payroll (September 12, 2002 plus 30 days is October 12,
2002) Dr. Simotas timely filed her charge of discrimination.
District Court Judge Harmon determined that a fact issue
did not exist as which date was the last discriminatory action.
The District Court offered analysis benefit of any case law or
Defendant states that according to the administrative file maintained
by the EEOC, Simotas’ charge of discrimination was prepared,
faxed and filed by her attorneys on August 8, 2002. It is true that
Plaintiff filed her charge on August 8, 2003; however, the
documents Defendant provided and swore to be true from the
EEOC erroneously indicate a filing date of August 18, 2002.
7
legal standard in its order denying Petitioner’s Motion for
Reconsideration.
Judge Harmon went on to determine that Simotas
specifically raised questions of how to interpret facts, “yet
held that no fact issue existed.” Des; ‘te these raised questions
of how to interpret facts, Judge Harmon interpreted facts and
waded through the eleven proposed termination dates and
chose a date of the latest discriminatory event herself. The
District Court did not draw references in favor of Petitioner.
Judge Harmon held that Petitioner’s Motion for
Reconsideration was untimely filed, a proposition which the
Court of Appeals for the Fifth Circuit ultimately disagreed.
REASONS FOR GRANTING THE WRIT
1. The opinion of Court of Appeals of the Fifth Circuit
conflicts with the reasoning and interpretation of the
First Circuit Court of Appeals because the Fifth
Circuit decided that it was irrelevant when Simotas felt
the effects of the adverse decision.
The First Circuit Court of Appeals declined to follow or
extend Ricks and the lines of cases immediately following
Ricks, including but not limited to Chardon v. Fernandez,”
because there was no apparent tangible effects of the injury
and the implications of the discriminatory acts were not
crystallized.
The First Circuit has noted that that an overly expansive
reading of Ricks may lead to problems of ripeness. See
* 454 U.S. 6 (1981). (App. 23a).
8
Johnson v. General Electric, 840 F.2d132, 136 (1* Cir.
1988). The Johnson court went on to state that it is unwise to
encourage lawsuits before the injuries occur resulting from
the violations are delineated, or before it is even certain that
the injuries will occur at all. /d. Actions that do not have any
crystallized implications or apparent tangible effects do not
trigger the statute of limitations. Thomas v. Eastman Kodak
Co., 183 F.3d 38, 55 (1* Cir. 1999). (App. 54a). In fact, they
are not actionable at all. In Fletcher v. Tufts University, the
plaintiff was a former employee of the university and eligible
for disability benefits. 367 F. Supp. 2d 99 (D.Mass 2005).
The court held, invoking Thomas, that plaintiff's statute did
not begin to run when she was classified as having a mental
condition or when she was given notice that her benefits
would end but rather when her benefits ended [emphasis
ours] as she would not have suffered an injury because she
would not have been deprived of any benefits to which she
would have been entitled. Fletcher, 367 F. Supp. at 99. Thus
plaintiff was aware of her actionable injury on the date the
benefits stopped that she was aware of the cause of the injury
and it was on that date that the alleged discriminatory acts
became apparent and crystallized. Fletcher, 367 F. Supp. 2d
99, 109. (citing Thomas, 183 F.3d at 55).
Accordingly, Simotas’ cause of action accrued when her
benefits (30 days or salary pay) ended and her injury was
apparent and crystallized. Review is necessary to maintain
uniformity and consistency among the Circuit Court’s
regarding this Court’s opinions, particularly those interpreting
Ricks and Chardon.
The First Circuit reasoning is appropriate and consistent
with the definition of actionable injury and the plain meaning
of the statute.
9
Justices Brennan and Marshall dissented in Chardon,
opining that it is quite another thing to hold, as the Court did
in Chardon, that a cause of action for damages resulting from
an unconstitutional termination of employment accrues when
the Plaintiff learns that he will be terminated. Chardon, 454
U.S. at 9. (App. 23a). Justices Brennan stated that to his
knowledge such a rule has no analogue in customary
principles of limitations law. Jd.; See 4 A. Corbin, Contactors
§ 989 (1951). (App. 23a).
Petitioner had no concrete harm and had not suffered an
adverse action until she was no longer on Respondent’s
payroll.
2. The opinion of the Fifth Circuit flies in the face of
the plain meaning of the statute.
The Fifth Circuit opinion as to when the cause of action
accrued or the statute of limitations begins to run is not within
the plain meaning of the statute at hand. The first step for the
Court in interpreting a statute is to determine whether the
language at issue has a plain and unambiguous meaning with
regard to the particular dispute in the case. The inquiry must
cease if the statutory language is unambiguous and “the
statutory scheme is coherent and consistent.” United States v.
Ron Pair Enterprises, Inc., 489 U.S. 235, 240(1989). The
Statue defines the action, which can be considered an
actionable injury. The Fifth Circuit’s holding that the
beginning date for the limitations period is the day the
employee learns of the challenged decision is contrary to the
plain meaning of the statute. This statute is not ambiguous.
(b) General rule. - No covered entity shall
discriminate against a qualified individual with a
disability because of the disability of such
10
individual in regard to job application procedures,
the hiring, advancement, or discharge of
employees, employee compensation, job training,
and other terms conditions and privileges of
employment.
42 U.S.C § 12112(a).
This Court should not depart from the plain meaning of
the statute.
The actionable injury in the instant case is the termination
or discharge of the Plaintiff, not her notice of termination or
discharge. “Notice” of termination of her employment
relationship or the decision to terminate is clearly and
unambiguously not listed as a mechanism for discriminating
and is not an actionable injury or adverse action under the
statute. The notice is not a ripe adverse action or an adverse
action at all under the law. The Fifth Circuit opinion in the
instant matter and particularly in the instant matter - as eleven
very different dates exist as to when Defendant “terminated”
Plaintiff (even on one occasion terminated her in their human
resources software and months later “un” terminated her) -
lead to those very problems of ripeness. The opinion of the
Fifth Circuit stands for the premise of encouraging lawsuits
before the injuries or violations occur and is contra to the
statute.
While a provision exists for statutes to be tolled or
modified those provisions exist when facts are concealed or
the injured is mislead. However, those situations always
involve the injured obtaining knowledge after the injury as
opposed to before. Rhodes v. Guiberson Oil Tools Division,
927 F.2d 876 (5" Cir. 1991). This is similar to a patient
finding out his doctor left a sponge in during surgery. The
1]
scienter is after the action. In the instant case, the Court wants
us to have knowledge of the actionable injury or adverse
action before it actually occurs. Petitioner, and in the very
good company of Justice Brennan, can think of no other
circumstance where the statute begins to run before the
actionable injury occurs. This simply isn’t good law.
3. The opinion of the Fifth Circuit Court of Appeals
conflicts with Delaware State College v. Ricks, 449
U.S. 250 (1980) and Hitt v. Connell, 301 F.3d 240
(5" Cir. 2002) because the Court of Appeals found
that Simotas’ cause of action accrued on September
12, 2006, one of the 11 different days that have
been used as her termination date because Simotas
received notice of termination that day though an
actionable injury or an adverse action did not
occur,
The trial court committed error by making a factual
interpretation of when Plaintiff's ADA claims accrued. The
Fifth Circuit opinion in this case conflicts with existing Fifth
Circuit precedent because the decision is based on the premise
that the relevant date for the limitations period is the day the
employee learns the decision has. been made. An actionable
injury is required for a statute to run, not even a proposed
notice constitutes an actionable injury such as an adverse
action.
In Hitt, the Fifth Circuit Court of Appeals found that it
was not Hitt’s perception of a threat to his job, his fear of
being fired or even the proposed notice of firing that
constituted an actionable injury. Hitt v. Connell, 301 F.3d 240
(S" Cir.2002). (App. 32a). In this context, the injury is
unlawful retaliation resulting in an “adverse employment
action,” such as discharge, demotion or formal reprimand.
12
Hitt v. Connell, 301 F.3d 240 (5" Cir. 2002); See Breaux v.
City of Garland, 205 F.3d 150, 157-58 (5" Cir. 2000). The
Court in Hitt’ opined that the Appellant’s (Connell’s)
argument rested on a misreading of the Supreme Court
decision in Delaware State College v. Ricks. 301 F.3d at 246.
The Court went on to hold:
In Ricks, the plaintiff alleged that the college
unlawfully discriminated against him when it denied
him tenure. After denying him tenure, however, the
college offered Ricks a “terminal” employment
contract; both parties understood that Ricks had to
leave at the end of the year. The Supreme Court held
that the statute of limitations began to run when the
college reached a final decision denying tenure, rather
than when Rick’s employment ultimately ceased. The
result hinged on the fact that Ricks complained about
a single adverse employment action: the denial of
tenure. As the Court clearly explained, “If Ricks
intended to complain of a discriminatory discharge,
he should have identified the alleged discriminatory
acts that continued until, or occurred at the time
of, the actual termination of his employment. But
the complaint alleges no such facts”
Hitt, 301 F.3d at 246, (citing Ricks, 449 U.S. at 255-
258.) (App. 32a).
In other words, the only adverse action Ricks complained
of was the denial of tenure. Ricks did not complain of his
termination or discharge. If he had complained of his
termination, like Petitioner did, his cause of action would
3 The opinion was authored by the Honorable Edith Jones.
13
have accrued at the time of his actual termination of
employment. It is important to note that the Supreme Court
uses the words “actual termination of employment” [emphasis
ours} as opposed to “notice of.” Ricks, 449 U.S. 258.
Simotas’ actual employment relationship ended on October
21, 2006 as she was on Respondent’s payroll until that time.
The end of the actual employment relationship is the
discriminatory discharge of which Petitioner complains.
The Court of Appeals went on to incorrectly hold that
“[mjere continuity of employment, without more, is
insufficient to prolong the life of a cause of action for
employment discrimination. Opinion, page 4 at Appendix la.
(citing Ricks, 449 U.S. at 257.) This premise is simply wrong
and inapplicable to the case at bar. That reasoning was
discussed in Ricks, only because he failed to complain about
his termination as an adverse action and was trying to boot
strap onto his denial of tenure complaint. The argument
regarding continuity of employment does not apply here
because Simotas did complain about her termination as the
adverse action just as the Fifth Circuit opined in Hitt. 301
F.3d at 246, (citing Ricks, 449 U.S. at-255-258.) (App. 32a)
The Court of Appeal’s opinion of the Fifth Circuit is
inconsistent with Supreme Court and existing Fifth Circuit
precedent.‘
* The June 2006 Supreme Court decision expanding the definition
of adverse action boosts Simotas’ position by stating that the anti-
retaliation provision covers only those employer actions that would
have been materially adverse to a reasonable employee. Burlington
Northern v. White, 126 S.Ct. 2405 (June 22, 2006). The case does
not discuss notice as materially adverse.
14
4. The opinion of the Fifth Circuit conflicts with
Walters v. Metropolitan Educ. Enters. , 519 U.S. 202
(1997); Community for Creative Non-Violence v.
Reid, 490 U.S. 730 (1989) by incorrectly
determining the date of the latest discriminatory
act and affirming a lower court finding of fact.
The standard the district court did use, and the Fifth
Circuit affirmed, and which was bereft of any legal authority
at all, and which stated that Simotas did not perform any
services for Defendant after a September 12, 2002 date is
incorrect in law and in fact. Simotas had been on leave for
five months, had not performed services during that time
and was indeed an employee of Defendant. The correct
standard to determine when an employment relationship ends
is the Supreme Court precedent setting forth that person is an
employee is whether that employee is on the payroll and the
tax subsequent treatment of the employee. Walters v.
Metropolitan Educ. Enters., 519 U.S. 202, 206, 117 S.Ct.
660, 663 (1997); Community for Creative Non-Violence v.
Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 2178-79
(1989).
On September 20, 2006, 8 days after the district court
determined was the last discriminatory event, Respondent
gave Simotas a paycheck for “30 days pay” replete with
deductions. Simotas remained on the payroll and a remained
an employee, for the next 30 days. The employment
relationship did not end until after October 20, 2002, which
is the day before the statute began to run. Accordingly,
Simotas would be off the payroll on October 21, 2002.
The Fifth Circuit and Judge Harmon erred in determining
there was not a fact issue as to the last date of discrimination
for purposes of statute of limitations which in itself is a
15
conflict with Fifth Circuit precedent. In fact, determining
which date is the last discriminatory act is itself a fact issue.
United States v. Georgia Power Co., 474 F.2d 906, 923-24
(Sth Cir. 1973); see Bano v. Union Carbide Corp. , 361 F.3d
696, 712 (2nd Cir. 2004). Judge Harmon determined that
“Simotas specifically raised questions of how to interpret
facts.” The Fifth Circuit ignored this blatant inconsistency
with precedent.
In the District Court’s order granting summary judgment,
the Court concludes “(t]he employment relationship ended no
later than September 12, 2002.” However, as shown above,
there is a material dispute between the litigants concerning the
date representing the end of the employment relationship.
Simotas consistently took the position that the employment
relationship ended no sooner than October 12, 2002, and
possibly extended as far as October 20, 2002. In support of
this position, Simotas has offered her sworn testimony that
she believed in good faith the last date of discrimination was
October 12, 2002. Further, she has produced a paycheck that
she received on September 20, 2002, representing 30 days
pay, indicating her employment was extended through
October 20, 2002 (i.e. 30 days from the receipt of the check).
The District Court’s order denying the Motion for
Reconsideration is two pages and two lines long. The only
authority contained in the order is Federal rule related to the
court’s incorrect proposition that Simotas untimely filed her
motion.
The District Court’s mischaracterization of dates, and
engagement as a fact finder on what was the last
discriminatory act is a question of fact for the trial court.
EEOC v. Griffin Wheel Company, 511 F.2d 456 (5" Cir.
1975).
16
In the District Court’s order granting summary judgment,
the Court concludes “[t]he employment relationship ended no
later than September 12, 2002.” Despite that incorrect finding
of fact, a material dispute exists between the litigants
concerning the date representing the end of the employment
relationship.
The District Court states that “[n]o evidence suggests that
Simotas haf{d] the right to exchange labor for money with
Kelsey-Seybold after September 12, 2002.” In fact, Simotas
did not exchange labor for money after mid-May 2002
through her ultimate or “real” termination in October 2002.
However, the Court failed to explain how Simotas was an
employee from May through September though she had not
performed services at that time.° Eleven dates exist as to when
Respondent terminated Simotas. Kelsey-Seybold had, in their
files, terminated Simotas from May 15, 2002 to August 16,
2003 and retroactively re-instated her on their payroll as an
employee though she, Simotas, had not exchanged labor for
services or under the District Court’s respectfully misguided
position that she had no right to perform serviccs.
The circumstances surrounding Simotas’ discharge,
coupled with the mixed official signals conveyed to her by
Kelsey-Seybold and its various affiliates, are collectively
sufficient to cast doubt upon whether a reasonable employee
in Simotas’ position should have known of the exact date she
had been discharged. See Clark v. Resistoflex Co., 854 F.2d
762, 766 (Sth Cir. 1988). The record contains undisputed
evidence that Simotas received several different statements
indicating the date of her termination, none being any more
> Anemployee on ununpaid leave is still an employee. DeVito v.
Chicago Park Dist. 83 F.3d 878, 880 (7" Cir. 1996).
17
persuasive or authoritative then another. Yet, the relevant
inquiry is not merely on the subjective state of mind of the
plaintiff, but also on the sufficiency of the notice Simotas
received and when an actionable injury occurred. See id.
While Kelsey-Seybold argues that Simotas received notice on
September 10th, it hardly can be said that such notice was any
more sufficient than the October 20th termination date. This
creates an undeniable fact issue on the date of Simotas’
termination. |
CONCLUSION
For all of the reasons identified herein, a Writ of
Certiorari should issue to review the judgment of the United
States Court of Appeals for the Fifth Circuit and, ultimately,
the vacate the judgment below and remand the cause to the
District Court for the Southern District of Texas, Houston
Division, for further proceedings and a trial on the merits of
Simotas’ claims or provide the Petitioner such other relief as
is far and just in the circumstances.
Respectfully submitted,
Ellen Sprovach
Counsel of Record
ROSENBERG & SPROVACH
11 Greenway Plaza, Suite 2810
Houston, Texas 77046
(713) 960-8300
Attorney For Petitioner
APPENDIX
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20049
[Filed January 3, 2007]
MD ALEXANDRA SIMOTAS
Plaintiff-Appellant,
KELSEY-SEYBOLD,
)
)
)
v. ae
)
)
‘Defendant-Appellee. )
)
Appeal from the United States District Court
for the Southern District of Texas, Houston
ON PETITION FOR REHEARING
Before JONES, KING, and, DAVIS, Circuit Judges.
PER CURIAM:
IT IS ORDERED that the petition for rehearing is denied.
2a
ENTERED FOR THE COURT:
/s/
United States Circuit Judge
3a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20049
[Filed December 6, 2006]
ALEXANDRA SIMOTAS, M.D.,
Plaintiff-A ppellant,
versus
KELSEY-SEYBOLD,
)
)
)
)
)
)
Defendant-Appellee. )
)
Before JONES, Chief Judge, and KING and DAVIS, Circuit
Judges.
OPINION
PER CURIAM:*
Dr. Alexandra Simotas appeals the district court’s grant of
summary judgment on her ADA claim against her former
* Pursuant to 5TH 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 STH Cir. R. 47.5.4.
4a
employer. As the claim is time-barred, the district court’s
ruling is AFFIRMED.
I. BACKGROUND
Simotas previously was employed as a physician by
Kelsey-Seybold Medical Group, P.A. (“Kelsey-Seybold”) in
Houston, Texas. On September 10, 2002, after Simotas had
been on leave for several months, Kelsey-Seybold sent a letter
informing her that her leave had expired as she was
“terminated effective today . . . without notice and with thirty
(30) days [sic] pay.” Simotas received the letter on September
12, 2002. Also on September 12, Kelsey-Seybold notified
Simotas’s attorneys of the discharge.
On August 8, 2003, 332 days after her termination,
Simotas submitted a charge of discrimination to the Equal
Employment Opportunity Commission (“EEOC”). The EEOC
dismissed the charge as untimely and issued a notice of right
to sue. Simotas filed this lawsuit, asserting a violation of the
Americans with Disabilities Act (“ADA”) in the Southern
District of Texas. The district court granted Kelsey-Seybold’s
motion for summary judgment on November 30, 2005.
Simotas filed a motion for reconsideration, which the district
court denied. This appeal followed.
II. DISCUSSION »
_A. Summary Judgment
We review a district court’s grant of summary judgment
de novo, applying the same standards as the trial court.
MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 478 (Sth
Cir. 2003). A court should grant summary judgment when
“the pleadings, depositions, answers to interrogatories, and
Sa
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
FED. R. CIV. P. 56(c). Facts are material only if they
“might affect the outcome of the suit under the governing law
. . . . Factual disputes that are irrelevant or unnecessary will
not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
The ADA incorporates the enforcement procedures of
Title VII of the Civil Rights Act of 1964, set forth in 42
U.S.C. § 2000e-5. See 42 U.S.C. § 12117. Before pursuing
a claim, a plaintiff must file a timely charge of discrimination
with the EEOC. Dao v. Auchan Hypermarket, 96 F.3d 787,
788-89 (Sth Cir. 1996) (per curiam). In a “deferral state”
such as Texas, the charge must be filed within 300 days. 42
U.S.C. § 2000e-5(e)(1); Tyler v. Union Oil Co. of Cal., 304
F.3d 379, 384 (Sth Cir. 2002).
The discriminatory act of which Simotas complains is the
termination of employment. Simotas admitted receiving the
letter informing her of the termination on September 12,
2002, and her counsel received notice that same day. Simotas
did not file her EEOC charge until August 8, 2003, well over
300 days later.
The fact that she received thirty days’ pay with her
termination does not extend the filing period. The relevant
date for determining the beginning date for the limitations
period is the day the employee learns that the challenged
decision has been made, not when she feels the effects of that
decision. See Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.
Ct. 28, 29, 70 L. Ed. 2d 6 (1981) (per curiam) (statute of
limitations bégan to run when plaintiffs learned of the decision
to terminate, not when their appointments ended); Del. State
6a
Coll. v. Ricks, 449 U.S. 250, 257-59, 101 S. Ct. 498, 504,
66 L. Ed. 2d 431 (1980) (limitations period began to run
when plaintiff was notified of the denial of tenure, not on the
date his employment ended); Rhodes v. Guiberson Oil Tools
Div., 927 F.2d 876, 878 (Sth Cir. 1991) (“filing period
begins when the employee receives notice of discharge.”).
Even if the payment extended her employment, “mere
continuity of employment, without more, is insufficient to
prolong the life of a cause of action for employment
discrimination.” Ricks, 449 U.S. at 257, 101 S. Ct. at 504.!
For the first time on appeal, Simotas argues that the
limitations period should be equitably modified. Arguments
not made before the district court are waived and will not be
considered on:appeal. Jethroe v. Omnova Solutions, Inc., 412
F.3d 598, 601 (Sth Cir. 2005). Moreover, Simotas can point
to no recognized basis for equitable modification, nor can she
put forth evidence to justify a modification. As Simotas has
the burden of proving any grounds for equitable modification,
her claim must fail. See Rhodes, 927 F.2d at 879.
B. Attorneys’ Fees
Kelsey-Seybold moves for attorneys’ fees under either
Federal Rule of Appellate Procedure 38 or 42 U.S.C.
§ 2000e-5(k), which is incorporated into the ADA by 42
' Simotas also contends, and Appellee agrees, that the court
mistakenly held her motion for reconsideration to be untimely.
Even if true, this error was harmless, as Simotas failed to explain
why her affidavit was not filed in conjunction with initial
consideration of summary judgment, and the affidavit even if
considered, does not dispute that her attorneys were informed on
September 12 of her termination. See Jn re Cueva, 371 F.3d 232,
234 (Sth Cir. 2004).
Ta
U.S.C. § 12117. While Simotas presents a fundamentally
incorrect understanding of the law, we decline to say that her
claims were “frivolous, unreasonable, or without foundation.”
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98
S. Ct. 694, 700, 54 L. Ed. 2d 648 (1978). Additionally, a
portion of the appeal sprang from the district court’s error in
calculating the applicable time limitation regarding the motion
for reconsideration. Although we affirm the judgment of the
district court, the appeal was not entirely frivolous.
Ill. CONCLUSION
The district court properly dismissed Simotas’s
employment discrimination action as time barred.
Its judgment is AFFIRMED.
8a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20049
D.C. Docket No. 4:04-cv-3549
[Filed December 6, 2006]
MD ALEXANDRA SIMOTAS
Plaintiff-Appellant,
KELSEY-SEYBOLD,
)
)
)
V. )
)
)
Defendant-Appellee. )
)
Appeal from the United States District Court for the
Southern District of Texas, Houston.
Before JONES, Chief Judge, and KING and DAVIS, 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.
9a
IT IS FURTHER ORDERED that plaintiff-appellant pay
to defendant-appellee the costs on appeal to be taxed by the
Clerk of this Court.
ISSUED AS MANDATE: Jan 11 2007
A True Copy Attest
Clerk, U.S. Court of Appeals Fifth Circuit
By: /s/
Deputy
New Orleans, Louisiana Jan 11 2007
10a
APPENDIX D
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CIVIL ACTION NO. H-04-3549
[Filed January 4, 2006]
ALEXANDRA SIMOTAS,
Plaintiff,
KELSEY-SEYBOLD,
)
)
| )
VS. )
)
)
Defendant. )
)
ORDER DENYING MOTION FOR
RECONSIDERATION
Before the court is a motion for reconsideration brought
by the Plaintiff, Alexandra Simotas (Simotas). Doc. 30. The
Defendant, Kelsey-Seybold, responded. Doc. 31.
The motion for reconsideration is DENIED. Doc. 30.
BACKGROUND
Kelsey-Seybold terminated Simotas through a letter dated
September 10, 2002 and received September 12, 2002. That
lla
letter read, in part, “your employment is terminated, effective
today... with thirty (30) days pay.”
On November 30, 2005, the court entered a memorandum
and order granting Kelsey-Seybold’s motion for summary
judgment. Doc. 28. Simotas filed her motion for
reconsideration on December 14, 2005.
LEGAL ANALYSIS
A litigant must file a motion for reconsideration in a
timely manner. “Any motion to alter or amend a judgment
shall be filed no later than 10 days after entry of the
judgment.” Fed. R. Civ. P. 59(e). ‘”Judgment’ as used in
these rules includes a decree and any order from which an
appeal lies.” Fed. R. Civ. P. 54(a). Simotas asks the court to
alter its order entered November 30, 2005, i.e., the order
granting the motion for summary judgment. She filed her
motion more than ten days after the order granting the motion
for summary judgment was entered. Therefore, this court has
no ability to entertain her motion. Fed. R. Civ. P. 59(e).
Furthermore, no question of material fact exists. The
arguments that Simotas advances do not raise disputes of fact.
Instead, they raise questions of how to interpret facts. Both
parties agree that Simotas received a stating that her
employment was terminated “effective today ... with thirty
days pay.” They also agree that the letter was dated
September 10, 2002. There is no evidence that Simotas
received the letter after September 12, 2002. The parties
dispute only when Simotas ceased to be an employee of
Kelsey-Seybold, an issue dispute raises a question of how to
interpret the legal effect of the letter, but does not raise any
factual disputes.
12a
Kelsey-Seybold terminated Simotas’ employment,
“effective today.” The phrase “effective today” cannot mean
that Simotas was terminated September 20, 2002 or on
October 12, 2002 as neither of those dates could reasonably
be considered “today” as the term was used in a letter dated
September 10, 2002 and received on September 12, 2002.
In fact, Simotas does not appear to dispute the meaning of
“effective today.” Instead, she identifies another portion of
the sentence as contradicting the first part of the sentence.
Specifically, she believes that “with thirty days pay” some
how extended her employment beyond the date referenced as
“today.” It did not. The first part of the sentence, “effective
today” described how long the employment relationship
would continue. “Thirty days pay” described the terms on
which it would end. “Thirty days” pay is merely a method of
denominating the amount of money that Simotas- would
receive. Kelsey-Seybold could have denominated the same
amount of money in an absolute dollar figure without
changing the meaning of the sentence.
Because Simotas, the Plaintiff, did not file a motion for
reconsideration in a timely fashion, her motion is DENIED.
Doc. 30.
SIGNED at Houston, Texas, this 4th day of January, 2006
/s/
Melinda Harmon
United States District Judge
13a
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CIVIL ACTION NO. H-04-3549
[Filed November 30, 2005]
ALEXANDRA SIMOTAS
Plaintiff
»
KELSEY-SEYBOLD
)
)
)
)
)
)
Defendant )
)
MEMORANDUM AND ORDER
The Defendant’s Motion for Summary Judgment is
GRANTED. Doc. 16.
BACKGROUND
Both parties agree that:
(1) No later than September 12, 2002, the Plaintiff, Alexandra
Simotas (Simotas) received a letter from the Defendant,
Kelsey-Seybold. The letter read, in part, “Your employment
14a
is terminated, effective today... with thirty (30) days pay.”
Doc. 16, Exh. 3.
(2) Kelsey-Seybold did not employ Simotas at any time after
September 12, 2002.
(3) Simotas filed a charge of discrimination with the Equal
Opportunity Employment Commission (“EEOC”) on August
8, 2003, more than 300 days after September 12, 2002.
LEGAL STANDARDS
A party seeking summary judgment must identify those
portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, showing that no genuine issue of material
fact exists and explain why it is is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). If the moving party
demonstrates both an absence of a material fact and an
entitlement to judgment as a matter of law, then the party
opposing the motion for summary judgment bears the burden
of setting forth specific facts and competent summary
judgment evidence that raise a genuine issue of material fact
on each essential element of any claim on which he bears the
burden of proof at trial. Fed. R.Civ. P. 56(c). The non-
moving party may not rest on mere allegations or denials in
its pleadings, but must produce affirmative evidence and
specific facts demonstrating the existence of a genuine issue
for trial. Fed. R.Civ. P. 56(e); Anderson v. Liberty Lobby,
477 U.S. 248, 256-57 (1986). The non-moving party need not
present its own evidence, but may identify genuine issues of
fact raised by the evidence produced by the moving party to
survive summary judgment. Isquith v. Middle South Utilities,
Inc., 847 F.2d 186, 198-200 (Sth Cir. 1988).
15a
Simotas alleges that Kelsey-Seybold violated the -
Americans with Disabilities Act (42 U.S.C. § 12101, et seq.,
“ADA”). Claims under the ADA must be filed with the
EEOC within 300 days after the “alleged unlawful practice
occurred” pursuant to 42 U.S.C. § 2000e-5, otherwise, they
are time-barred. See, 42 U.S.C. § 12117: Waltman v.
International Paper Co., 875 F.2d 468, 474 (Sth Cir. 1988);
and Stith v. Perot Systems Corp.. 2004 WL 690884 (N.D.
Tex. 2004).
ANALYSIS
In this case, the “alleged unlawful practice” was the
termination of the employment relationship between Simotas
and Kelsey-Seybold. The employment relationship ended no
later than September 12, 2002. No evidence suggests that
Kelsey-Seybold asked Simotas to perform any services for it
after September 12, 2002. Likewise, no evidence suggests
that Simotas attempted to perfoml any services after
September 12, 2002. No evidence suggests that Simotas has
the right to exchange labor for money with Kelsey-Seybold
after September 12, 2002.
Simotas argues that she was “on the payroll” for thirty
days after September 12, 2002 because she received thirty
days pay, rather than thirty days of severance pay. However,
the fact that Simotas received thirty days of pay is immaterial
because the “alleged unlawful practice” was not the act of
paying money to Simotas. Simotas did not explain how ADA
prohibited, or even regulated, the choice Kelsey-Seybold
made to structure its last payment to her. Moreover, whether
Simotas was “on the payroll” is similarly irrelevant because
Simotas had no right to return to work after September 12,
2002 whether she was “on the payroll” or not.
l6a
In summary, Simotas presented no admissible evidence
suggesting that “effective today” meant anything other than
what the words appear to mean: Kelsey-Seybold committed
the “alleged unlawful practice” more than 300 days before
Simotas filed her charge of discrimination.
Accordingly the Defendant’s Motion for Summary Judgment
is GRANTED. Doc. 16.
SIGNED at Houston, Texas, this 29" day of November,
2005.
/s/
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
l7a
APPENDIX F
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CIVIL ACTION NO. H-04-3549
{Filed November 30, 2005]
ALEXANDRA SIMOTAS,
Plaintiff,
VS.
KELSEY-SEYBOLD,
)
)
)
)
)
)
Defendant. )
)
FINAL JUDGMENT
On this day, November 30, 2005, in the action pending
between Plaintiff, Alexandra Simotas, and Defendant, Kelsey-
Seybold, lhe court issued its Opinion on Summary Judgment
that Plaintiff's claims must be dismissed, and the court hereby
ORDERS that Plaintiff, Alexandra Simotas, take nothing,
and that Defendant, Kelsey-Seybold, is awarded its costs.
SIGNED at Houston, Texas, this 30th day of November,
2005.
18a
/s/
Melinda Harmon
United States District Judge
19a
APPENDIX G
THOMPSON & KNIGHT LLP
ATTORNEYS AND COUNSELORS
THREE ALLEN CENTER
333 CLAY STREET SUITE 3300
HOUSTON, TEXAS 77022-4499
(713)854-8111 FAX (713) 654-1871
www.tklaw.com
September 12, 2002
Via Facsimile 713 621-6670
And Regular Mail
Ellen Sprovach, Esq.
Gregg M. Rosenberg & Associates
11 Greenway Plaza, Suite 2810
Houston, TX 77046
Re:Alexandra_ Simotas, M.D./Kelsey-Seybold
MedicalGroup, P.A. (“Kelsy-Seybold”)
Dear: Ms. Sprovach:
Kelsey-Seybold rejects Dr. Simotas’ offer to settle her
claims for the payment of five months severance. As you
know, on Friday, May 3, 2002, Dr. Simotas met with Dr.
James Hoyle, Kelsey’s Medical Director of Clinical
Operations; Dr. Fran Smith, Department Chief of Obstetrics;
20a
and Susan Moore, Director of Human Resources. Dr. Hoyle
informed Dr. Simotas of certain concerns including
performance and quality of care issues that would need to be
addressed through the peer review process.
Dr. Hoyle discussed an alternative if Dr. Simotas wanted
to resign and be paid severance. Instead, Dr. Simotas
requested to be placed on leave, and she was placed on leave
without pay. Dr. Simotas has now been on leqave status for
just over four months. Her leave has expired, and I have
been advised that her employment has been terminated by
Kelsey-Seybold without notice and with thirty (30) days pay,
effective September 10, 2002. By separate letter, Kelsey-
Seybold has advised Dr. Simotas of her termination of
employment and will forward a check for 30 days pay, less
legal deductions.
On another note, you sent me a letter, advising that it was
your understanding that Kelsey-Seybold had cancelled Dr.
Simotas’ health insurance. If Dr. Simotas’ health insurance
was cancelled inadvertently, it has been reinstated. In
connection with her termination of employment, Dr. Simotas
will receive a separate letter, advising her of her right to elect
health insurance continuation.
Yours very truly,
/s/ Roxella T. Cavazos
Roxella T. Cavazos
[ USCAS 193 ]
2la
APPENDIX H
Kelsey-Seybold Clinic
HUMAN RESOURCES ACTION FORM
Employee Identification Information
Name (Last, First, MI) Employee #
Alexandra Simotas 11867
Termination (2 reason codes and Term/Final status code
required)
Status Code Term/Final Status
Tl
Miscellaneous Change
Effective Date
05/15/02
Comments: _ Change Employee to L9 status (no pay. no
benefits).
APPROVALS
Initiative Supervisor/Manager Date
Manager/Director Date
Vice President/CAO Date
22a
s/SM 8/16/02
Human Resources Date
Data Entry Initials: _SB
6/18/02
RETURN TO HUMAN RESOURCES
[ USCAS 420 ]
[ PLAINTIFF’S EXHIBIT 9 ]
APPENDIX I
454 U.S. 6, 102 S.Ct. 28, 27 Fair Empl. Prac. Cas.(BNA)
57, 27 Empl. Prac. Dec. P 32,205, 70 L.Ed.2d 6 (1981)
SUPREME COURT OF THE UNITED STATES
No. 81-249
[Filed November 2, 1981]
CHARDON, SECRETARY OF PUBLIC
EDUCATION OF PUERTO RICO, ET AL.
)
)
)
Vv. )
)
FERNANDEZ ET AL.” )
” Together with Chardon, Secretary of Public Education of
Puerto Rico, et al. v. Rodriguez; Chardon, Secretary of Public
Education of Puerto Rico, et al. v. Santiago de Orta; Chardon,
Secretary of Public Education of Puerto Rico, et al. v. Angiuta de
Rios; Chardon, Secretary of Public Education of Puerto Rico, et al.
v. Sanchez; Chardon, Secretary of Public Education of Puerto Rico,
et al. v. Santana; Chardon, Secretary of Public Education of Puerto
Rico, et al. v. Perez-Ramirez; Chardon, Secretary of Public
Education of Puerto Rico, et al. v. Roman de Molina; Chardon,
Secretary of Public Education of Puerto Rico, et al. v. Collazo;
Chardon, Secretary of Public Education of Puerto Rico, et al. y.
Garcia; Chardon, Secretary of Public Education of Puerto Rico, et
al. v. Lopez de Ferra; Chardon, Secretary of Public Education of
Puerto Rico, et al. v. Beltran; Chardon, Secretary of Public
24a
In a suit by terminated nontenured administrators in the
Puerto Rico Department of Education, under the 1871 civil
rights statute, a dismissal was granted by the United States
District Court for the District of Puerto Rico, but the Court of
Appeals, First Circuit, reversed 648 F.2d 765. The Supreme
Court held that applicable limitations period began to run
when notice of termination was given, allegedly on political
grounds, and not on date when employment terminated, there
being no allegation of illegal acts committed subsequent on
date on which decisions to terminate were made.
Reversed and remanded.
Justice Brennan dissented and filed opinion in which Justice
Marshall joined.
Justice Stevens dissented and filed opinion in which Justice
Brennan and Justice Marshall joined.
OPINION
[*6] [**28] PER CURIAM.
Respondents were nontenured administrators in the Puerto
Rico Department of Education during the 1976-1977 [*7]
school year.' On dates prior to June 18, 1977, each
Education of Puerto Rico, et al. v. Cacho.de Freytes; and Chardon,
Secretary of Public Education of Puerto Rico, et al. v. Navarro,
also on petition for certiorari to the same court (see this Court’s
Rule 19.4).
' Petitioners request a writ of certiorari to the Court of Appeals
for the First Circuit to review a total of 14 judgments entered in
favor of 36 respondents. The published decision, discussed in text,
25a
respondent was notified by letter that his appointment would
terminate at a specified date between June 30 and August 8,
1977. On June 19, 1978, Rafael Rivera Fernandez filed a
complaint alleging that the terminations violated 42 U. S. C.
§ 1983. The District Court dismissed the suit, holding that the
action had accrued on the date the employees received the
letters and that the claims were therefore barred by the
applicable 1-year statute of limitations, P. R. Laws Ann., Tit.
31, § 5298(2) (1968). The Court of Appeals for the First
Circuit reversed on the ground that the limitations period did
not begin running until respondents’ [**29] appointments
ended. 648 F.2d 765 (1981).
The decision below is contrary to a recent decision of this
Court: Delaware State College v. Ricks, 449 U.S. 250 (1980).
In that case, Ricks filed suit alleging that the denial of tenure
at a state college deprived him of his rights under Title VII of
the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seg.,
and under 42 U. S. C. § 1981. And we held that the
applicable limitations periods began to run when Ricks was
denied tenure, rather than on the date his employment
terminated. His action was, therefore, time-barred.
The Court of Appeals for the First Circuit distinguished
Ricks on the ground that Ricks had alleged that denial of
tenure was the “unlawful employment practice,” whereas here
respondents allege that termination of their employment as
administrators was the “unlawful employment practice.” [*8]
represents one judgment in a suit brought by 23-respondents; that
decision was issued May 8, 1981. See 648 F.2d 765 (1981).
Identical individual judgments in favor of the other 13 respondents
were issued on June 11, 1981. See App. to Pet. for Cert. Ila
(unpublished orders).
26a
We think Ricks is indistinguishable. When Ricks was denied
tenure, he was given a l-year “terminal” contract. Thus, in
each case, the operative decision was made -- and notice
given -- in advance of a designated date on which employment
terminated.’
{2}In Ricks, we held that the proper focus is on the time
of the discriminatory act, not the point at which the
consequences of the act become painful. 449 U.S., at 258.
The fact of termination is not itself an illegal act. In Ricks, the
alleged illegal act was racial discrimination in the tenure
decision. /d., at 259. Here, respondents allege that the
decision to terminate was made solely for political reasons,
violative of First Amendment rights. There were no other
allegations, either in Ricks or in these cases, of illegal acts
subsequent to the date on which the decisions to terminate
were made. As we noted in Ricks, “[mere] continuity of
employment, without more, is insufficient to prolong the life
of a cause of action for employment discrimination.” /d., at
257. In the cases at bar, respondents were notified, when they
received their letters, that a final decision had been made to
terminate their appointments. The fact that they were afforded
reasonable notice cannot extend the period within which suit
must be filed. We therefore grant certiorari. The judgments
entered below on May 8, 1981, and June 11, 1981, are
? Delaware State College had a policy of giving a final 1-year
contract to teachers who were denied tenure. Only when that
contract expired, did the “employment relationship [end].” 449
U.S., at 253. Apparently, the practice of the Puerto Rico
Department of Education was similar in principle. Following a
decision to terminate, the actual ending of employment was
deferred to a designated date. Advance notice of termination is a
customary and reasonable employment practice which affords the
employee an opportunity to find another job.
27a
reversed, and the cases are remanded for further proceedings
consistent with this decision.
Reversed and remanded.
DISSENT:
[*9] JUSTICE BRENNAN, with whom JUSTICE
MARSHALL joins, dissenting.
While I agree with the analysis of Judge Campbell for the
Court of Appeals, and therefore join in the dissenting opinion
of JUSTICE STEVENS, I believe this per curiam disposition
is particularly ill-conceived.
It is one thing to hold, as was held in Delaware State
College v. Ricks, 449 U.S. 250 (1980), that for the purpose
of computing the limitations period, a cause of action for
denial of a benefit such as tenure, and consequent damage,
accrues when the plaintiff learns that he has been denied that
benefit; it is quite another to hold, as the Court does here, that
a cause of action for damages resulting from an
unconstitutional termination of employment accrues when the
plaintiff learns that he will be terminated. To my knowledge,
such a rule has no analogue in customary principles of
limitations law. See 4 A. Corbin, Contracts § 989 (1951)
(“The plaintiff should not be penalized for leaving to the
defendant an opportunity to retract his wrongful repudiation;
and he [**30] would be so penalized if the statutory period
of limitation is held to begin to run against him
immediately”).
The thrust of the Court’s decision is to require a potential
civil rights plaintiff to measure the time for filing his claim
from the moment some form of injunctive relief first becomes
28a
available. The effect of this ruling will be to increase the
number of unripe and anticipatory lawsuits in the federal
courts -- lawsuits that should not be filed until some concrete
harm has been suffered, and until the parties, and the forces
of time, have had maximum opportunity to resolve the
controversy.
Because this case is plainly distinguishable from Ricks,
and the decision potentially far-reaching in its impact, the
issue should be decided only upon plenary review. The
Court’s summary reversal is therefore particularly
inappropriate, and I respectfully dissent.
[*10} JUSTICE STEVENS, with whom JUSTICE
BRENNAN and JUSTICE MARSHALL join, dissenting.
After noting that most judges who have confronted the
issue have reached a conclusion at odds with the Court’s
holding today, Judge Campbell, writing for the Court of
Appeals, cogently explained why the decision in Delaware
State College v. Ricks, 449 U.S. 250, is not dispositive and
should not be followed in this case:
“The issue of when the cause of action accrues
depends, we believe, on when the alleged unlawful act
occurred. It is necessary, therefore, to identify the
unlawful act. Where, as here, the claim is that an
employment decision. was made for a prohibited
reason, it could be argued that the unlawful act was
the making of the decision, rather than the
implementation of it. But we think such a refined rule
would depart too sharply from the understanding of
ordinary people. The plaintiffs in these cases are
complaining that they were demoted or discharged,
not merely that a decision was made on a particular
29a
occasion, of which notice was then given, to take such
action against them. Had the decision been made but
not yet implemented, equitable relief might have been
sought to forestall irreparable harm, but it is unlikely
that plaintiffs would have sought or received damages
until or unless the threatened action was
consummated. The alleged unlawful act was
revocable, incomplete and, for practical purposes,
nonexistent until the actual demotion or discharge.
“Moreover, important policies of judicial administration
favor a rule based on the date of implementation. While the
date of notice in the present cases was easily established,
other cases would surely arise in which resolution of that
question would require lengthy proceedings. Notice might be
oral, or it might be ambiguously phrased, or it might be
transmitted by one whose authority [*11] is subject to
question. We see no value in requiring courts and parties to
devote their resources to litigating the adequacy of notice,
when the date of the action itself is easily determined. In
sayinz this we are aware that the Supreme Court has declined
to reach out for an easily identified date when that date bears ©
no genuine relationship to the act of which plaintiff
complains. Compare Delaware State College v. Ricks, [449
U.S. 250] (1980) (date of termination not sufficiently
connected to the challenged denial of tenure), discussed infra.
But where, as here, the date that is most closely related to the
plaintiffs’ claim is also the date most easily identified, we
think concern for adoption of the rule that best promotes
certainty and eliminates litigation over technical niceties is
well warranted.
“After the district court’s decision of these cases, the
Supreme Court decided Delaware State College v. Ricks,
supra. Defendants contend that that decision compels
30a
affirmance here. We disagree. Ricks, a black Liberian
instructor, was informed in June 1974 that the faculty of
Delaware State College had voted to deny him tenure. In
accordance with the school’s usual practice, he was thereafter
[**31] granted a one-year terminal contract, after which his
employment with the school ended. In his suit alleging
discrimination on the basis of national origin, Ricks contended
that the limitations period under Title VII began to run only
when he left the university in June 1975. The Supreme Court
rejected this argument and concluded that Ricks’ cause of
action had accrued when he was notified of the denial of
tenure, in June 1974, and that his suit was therefore barred.
The Court focussed on the allegations of Ricks’ complaint,
which it found to charge discrimination in the denial of
tenure, not in the discharge or any other subsequent action.
The Court held that the denial of tenure was the ‘unlawful
employment practice’ within the meaning of Title (*12] VII,
_and that the date of that action was therefore the beginning of
the limitations period. Three justices, in dissent, accepted the
majority’s analysis (i. e., that denial of tenure, not discharge,
was the unlawful employment practice) but placed the denial
of tenure at a later date because of the later decision of an
internal grievance board. Justice Stevens, alone among the
justices, took the view that denial of tenure is analogous to
advance notice of discharge. Based on that analogy, he
argued that the date of discharge should control.
“Refusal of the Ricks majority to adopt Justice Stevens’
-analogy does not seem to us in any way to repudiate the
precedents to which he sought to draw an analogy. The
majority held merely that the denial of tenure in the academic
setting is fundamentally different from a notice of discharge;
it is a distinct and separate employment action, with important
and far-reaching consequences for all aspects of the
employee’s status. While denial of tenure is often followed
3la
by discharge, it is not always, and the consequences of denial
of tenure are not dependent on its being followed by
discharge. The Court found that Ricks’ complaint was based
_ on the denial of tenure, which was effective immediately; it
followed, therefore, that the limitations period began as soon
as Ricks received notice of that action. Here, plaintiffs
complain of discharges and demotions, not of any distinct
event that occurred on an earlier date. The letters notifying
them of the planned actions were notice and nothing more;
they were not actions in themselves comparable to the denial
of tenure.
“To be sure, as we have said, one can argue that the
notices themselves mirror the allegedly discriminatory
motives of the defendants. One can also argue that a suit for
injunctive relief might lie after receipt of notice (or, indeed,
even before) to forestall threatened irreparable harm. Still
plaintiffs’ quarrel is with their demotions [*13] and discharges
-- not with the notices themselves. No actual harm is done
until the threatened action is consummated. Until then, the
act which is the central focus of the plaintiffs’ claim remains
incomplete. Such was not the situation in Ricks, where the
denial of tenure was itself the completed act being challenged.
“We conclude, therefore, that Ricks is inapplicable to
these cases, and that the district court erred in dismissing the
complaints.” 648 F.2d 765, 768-770 (CAI 1981) (footnotes
omitted).
For the reasons stated by the Court of Appeals, I
respectfully dissent.
32a
APPENDIX J
301 F.3d 240; 2002 U.S. App. LEXIS 15334; 170
L.R.R.M. 2789; 146 Lab. Cas. (CCH) P59,606; 59 Fed.
R. Serv. 3d (Callaghan) 498; 19 I.E.R. Cas. (BNA) 47
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50117, No. 01-51010
[Filed July 31, 2002]
HAROLD MERRITT HITT,
Plaintiff-Counter-Defendant-Appellee,
versus
JERRY CONNELL, ETC.; ET AL.,
Defendants,
JERRY CONNELL, Bexar County
Constable, Precinct 2, Individually
and in His Official Capacity,
Defendant-Counter-Claimant-Appellant.
ee i a a ee a a _ a
Appeals from the United States District Court
for the Western District of Texas.
SA-99-CV-173.
H F Garcia, US District Judge.
33a
Former deputy constable brought civil rights action
against constable, for dismissing him in alleged retaliation for
his exercise of First Amendment associational rights in
participating in union activity. The United States District
Court for the Western District of Texas, H.F. Garcia, J.,
entered judgment on jury verdict in favor of deputy, and
constable appealed. The Court of Appeals, Edith H. Jones,
Circuit Judge, held that: (1) deputy constable was injured, and
his cause of action accrued, only when his employment was
terminated; (2) local civil service commission did not serve as
final decision-maker with respect to employment decisions in
local constables’ office, so that commission’s decision
upholding deputy constable’s dismissal did not preclude
deputy from recovering, on First Amendment retaliation
theory, from constable for constable’s role in his dismissal;
(3) admission of other bad acts evidence regarding constable’s
acts of discrimination against other deputies was not abuse of
discretion; and (4) deputy’s vague, conclusory, and
uncorroborated testimony concerning his emotion distress
upon being dismissed from his position was insufficient to
support jury’s award of emotion distress damages.
AFFIRMED in part, VACATED in part, and REMANDED.
Before JONES, EMILIO M. GARZA, and STEWART,
Circuit Judges. CARL E. STEWART, Circuit Judge,
concurring in part and dissenting in part.
OPINION
[*243] EDITH H. JONES, Circuit Judge:
In this 42 U.S.C. § 1983 action, the jury found that Bexar
County, Texas, Constable Jerry Connell fired deputy
constable Harold Merritt Hitt in retaliation for Hitt’s exercise
34a
of his First Amendment right to freedom of association. The
jury awarded Hitt $300,000 in compensatory damages, three-
fourths of which was for non-pecuniary harms like “mental
and emotional distress”. The district court subsequently
awarded Hitt approximately $88,500 in attorney’s fees and
costs pursuant to 42 U.S.C. § 1988. Connell has appealed
both the judgment and the award of attorney’s fees.
We hold principally that the Bexar County Civil Service
Commission’s decision upholding Hitt’s termination did not
break the causal connection between the protected activity and
the adverse employment action, and Connell was not entitled
to qualified immunity. However, Hitt introduced insufficient
evidence to support an award of nonpecuniary damages, so
[*244] that a portion [**2] of his damages must be vacated
and the attorney’s fee award remanded for reconsideration.
I. BACKGROUND
Harold Merritt Hitt was employed as a deputy constable
in precinct 2 of Bexar County from 1993 until March 1997,
when he was fired by Constable Connell. Hitt alleged, and a
jury found, that his employment was terminated because
Connell disapproved of Hitt’s involvement with two affiliated
labor unions, the Alamo Area Peace Officers’ Association and
the Texas Conference of Police and Sheriffs (“TCOPS”).
The dispute between Connell and Hitt began in October
1995 when Connell ordered his deputies to start reporting to
the office 15 minutes before their shifts were scheduled to
begin. Deputy Hitt, who was serving as the secretary of the
local union, wrote to TCOPS for advice about getting paid for
these extra 15 minutes. Connell learned of Hitt’s letter and
called a general meeting of his deputies, one of whom
surreptitiously tape-recorded what was said. Connell
35a
reiterated that his deputies would not be paid for the 15
minutes before their shifts, but his main point was that salary
grievances should not be aired outside the constable’s office.
Connell suggested that deputies [**3] who continued to
complain to the union were in danger of losing their
commissions.
Three deputies -- Ray Mullins, Joe Algueseva, and Robert
Whitney -- testified at trial that Constable Connell spoke to
each of them privately not long after this meeting and told
them that he would not tolerate union activity in his office.
Each deputy testified that Connell referred specifically to Hitt
and said that he intended to fire Hitt because he was a
“troublemaker.” One of the deputies, Ray Mullins, served as
president of the local union. Mullins tape-recorded a
conversation in which Connell said several times that they
would have a “running gun battle” if Mullins did not quit the
union. Connell threatened to “play dirty” and said he would
start by taking away Mullins’s $500 monthly car allowance.
During this recorded conversation, Connell observed in
passing that he could fire Hitt with impunity.’
{**4] Connell fired Hitt in March 1997. Connell testified that
he harbored no ill will toward the deputies who were active
in the union. Moreover, Connell insisted that Hitt would have
lost his job regardless of his union activity because Hitt had
made a “bomb threat” in a January 1997 telephone
conversation with his immediate supervisor, Deputy Robert
North.
' Mullins nevertheless remained active in the union, and
Connell fired him in early 1996. Mullins appealed the decision, the
Bexar County Civil Service Commission ordered that Mullins be
reinstated, and he was assigned to a new precinct.
36a
The gist of the telephone conversation is not in dispute.
Hitt was angry that North had assigned a first-year constable
to patrol traffic in a certain neighborhood. In his account of
the conversation, which was written approximately three
weeks after the telephone conversation, Deputy North wrote:
Sgt. Hitt stated, was I trying to get him (Sgt. Hitt) in
trouble or fired. Sgt. Hitt stated, he knew what was
going on and that I (Sgt. North) was fixing to be in the
war....
Sgt. Hitt stated, that when the bomb went off with
Horn (Asst. Chief Horn) that it might get my (Sgt.
North) legs also.
As Sgt. Hitt and myself (Sgt. North) are both Vietnam
veterans, it could have meant that the bomb, when it
went off, [*245] would take out Asst. Chief Horn, and
possibly my (Sgt. North) legs, as-we both had seen in
Vietnam.
This [**5] statement could have only meant to be
taken figuratively. But I don’t know this for sure. Sgt.
Hitt’s tone of voice was filled with a lot of anger.
Hitt concedes that Deputy North’s account of the
conversation is generally accurate. Hitt argues, however, that
violent figures of speech were used regularly around the
office (e.g., Conneli’s “running gun battle”) and that “the
war” and “the bomb” referred to an ongoing criminal
investigation of the constable’s department.
Sergeant Gerardo De Los Santos of the Texas Rangers
testified at trial that he had been investigating the constable’s
office since Deputy Mullins had contacted him in December
37a
1995. At the time of the telephone conversation between Hitt
and North, Sergeant De Los Santos was completing his
investigation and had decided that there was sufficient
evidence of retaliation and discrimination to file a report with
the Bexar County District Attorney’s Office. (He interviewed
and took statements from Hitt in January and February of
1997, and then filed his report in late February.)
Deputy North admitted at trial that he had never really
believed that Hitt was making a legitimate bomb threat.
Consequently, North waited [**6] three weeks before
informing Constable Connell and Chief Deputy Chuck Horn
of the conversation, and one reason why he submitted the
report was that he had been ordered “to look for things to
write Hitt up about.” Then, after North submitted the
memorandum quoted above, Chief Deputy Horn instructed
North to revise his memo and omit any suggestion that Hitt’s
reference to a “bomb” should be taken figuratively.
In February 1997, Constable Connell delivered a proposed
notice of termination to Hitt. Citing the telephone
conversation between Hitt and North, Connell wrote that such
“unprofessionalism . . . cannot and will not be tolerated.” On
March 5, Connell informed Hitt that his employment was
terminated. Hitt appealed his dismissal to the Bexar County
Civil Service Commission, but the commissioners who heard
the appeal voted to uphold Constable Connell’s decision.
Hitt filed this 42 U.S.C. § 1983 action in February 1999.
Before trial, the district court dismissed all claims except for
Hitt’s free speech and free association claims against Connell
in his individual capacity. Then, at the close of evidence, the
district court granted judgment as a matter of law [**7] for
Connell on the free speech claim. The jury returned a verdict
38a
for Hitt on the First Amendment association claim and
awarded him $300,000 in compensatory damages.
The district court entered judgment for Hitt and, pursuant
to 42 U.S.C. § 1988, awarded Hitt $88,487.94 in attorney’s
fees and expenses. Connell’s appeals of both awards have
been consolidated.
II. DISCUSSION
The First Amendment protects a public employee’s right
to associate with a union. As this court has stated,
This right of association encompasses the right of
public employees to join unions and the right of their
unions to engage in advocacy and to petition
government in their behalf. Thus, the first amendment
is violated by state action whose purpose is either to
intimidate public employees from joining a union or
~ from taking an active part in its affairs or to retaliate
against those who do.
Boddie +. City of Columbus, Miss., 989 F.2d 745, 749 (Sth
Cir. i993), quoting Professional Ass'n of College Educators
v. El [*246] Paso County Community College Dist. , 730 F.2d
258, 262 (Sth Cir. 1984) (citations omitted).
To prevail on his First Amendment [**8] retaliation
claim, Hitt had to show that (1) he suffered an adverse
employment action, (2) his interest in “associating”
outweighed the constable’s interest in efficiency, and (3) his
protected activity was a substantial or motivating factor in the
adverse employment action. Breaux v. City of Garland, 205
F.3d 150, 156, 157 n.12 (Sth Cir. 2000); Boddie, 989 F.2d
at 747. Connell’s principal arguments on the merits focus on
39a
the third element of causation. He contends that Hitt’s :
participation in union activity was not a motivating factor in
his discharge because the county civil service commissioners
(who had no retaliatory animus) actually made the decision
or, alternatively, Connell fired Hitt because of the bomb
threat. The jury concluded, however, that Constable Connell
made the decision to fire Hitt and that he did so in retaliation
for Hitt’s protected activity. Their verdict may be overturned
only if, “after viewing the trial record in the light most
favorable to the verdict, there is no legally sufficient
evidentiary basis for a reasonable jury to have found for the
prevailing party.” Mato v. Baldauf, 267 F.3d 444, 450-51
(Sth Cir. 2001) [**9] (quotations and citations omitted).
A. Statute of Limitations
Connell’s contention that this suit was time-barred is
easily rejected. While Texas’s two-year statute of limitations
applied to Hitt’s constitutional injury claims, Piotrowski v.
City of Houston, 237 F.3d 567, 576 (Sth Cir. 2001), the date
a § 1983 claim accrues is governed by federal, not state law.
The limitations period begins to run when the plaintiff
“becomes aware that he has suffered an injury or has
sufficient information to know that he has been injured.”
Helton v. Clements, 832 F.2d 332, 335 (Sth Cir. 1987).
Connell tries to argue that Hitt’s retaliation claim accrued
at some time before his March 1997 termination, either when
Hitt “felt his job was threatened” at the October 1995 office
meeting; or when Hitt. acknowledged in a December 1995
memo that he was afraid he was going to be fired; or when
Hitt received a proposed notice of termination on February
14, 1997. If the cause of action accrued on any of these dates,
then Hitt’s lawsuit -- filed on February 16, 1999 -- would not
be timely.
40a
But neither the perception of a threat to one’s job, nor fear
of being fired, nor [**10] even the proposed notice of firing
constitutes an actionable injury. In this context, the injury is
unlawful retaliation resulting in an “adverse employment
action,” such as a discharge, demotion, or formal reprimand.
‘See Breaux, 205 F.3d at 157-58. Hitt was injured, and his
cause of action accrued, when his employment was terminated
on March 5, 1997. The lawsuit was timely.’
[**11] [*247] B. The Civil Service Commission
The second (and most difficult) question in this case is the
legal effect of the Bexar County Civil Service Commission’s
decision upholding the termination of Hitt’s employment. —
Connell recognized the importance of this fact, but he
vacillated between characterizing the commission, on one
hand, as a quasi-judicial body whose findings of fact were
? Connell’s argument rests on a misreading of the Supreme
Court’s decision in Delaware State College v. Ricks, 449 U.S. 250,
101 S. Ct. 498, 66 L. Ed. 2d 431 (1980). In Ricks, the plaintiff
alleged that the college unlawfully discriminated against him when
it denied him tenure. After denying him tenure, however, the
college offered Ricks a “terminal” employment contract; both
parties understood that Ricks had to leave at the end of the year.
The Supreme Court held that the statute of limitations began to run
when the college reached a final decision denying tenure, rather
than when Ricks’s employment ultimately ceased. The result hinged
on the fact that Ricks complained about a single adverse
employment action: the denial of tenure. As the Court clearly
explained, “If Ricks intended to complain of a discriminatory
discharge, he should have identified the alleged discriminatory acts
that continued until, or occurred at the time of, the actual
termination of his employment. But the complaint alleges no such
facts.” Ricks, 449 U.S. at 255-58, 101 S. Ct. at 503-04.
4la
entitled to preclusive effect in this § 1983 action; and, on the
other, as an executive board, which has the final decision-
making power with respect to all personnel matters in Bexar
County.
In his motion for summary judgment, Connell urged the
court to give issue or claim preclusive effect to the
commission’s finding that Hitt made a credible bomb threat
that warranted dismissal. As Connell pointed out, the
Supreme Court has “long favored application of the common-
law doctrines of collateral estoppel (as to issues) and res
judicata (as to claims) to those determinations of
administrative bodies that have attained finality.” Astoria Fed.
Sav. & Loan Ass’n. v. Solimino, 501 U.S. 104, 107, 111 S.
Ct. 2166, 2169, 115 L. Ed. 2d 96 (1991). Further, federal
courts must ordinarily give a state [**12] agency’s decision
“the same preclusive effect to which it would be entitled in
the state’s courts.” Univ. of Tennessee v. Elliott, 478 U.S.
788, 799, 106 S. Ct. 3220, 3226, 92 L. Ed. 2d 635 (1986).
This court has implied, however, that federal rules of claim
preclusion may apply to determine whether § 1983 claims are
barred from litigation in federal court by the outcome of prior
unreviewed state administrative adjudications. Frazier v.
King, 873 F.2d 820, 823-25 (5th Cir. 1989).* The magistrate
* Frazier opined, over a dissent and before Astoria was decided,
that federal preclusion law, if applicable, would not prevent a
plaintiff's filing a § 1983 claim following state administrative
proceedings. 873 F.2d at 824-25. But the court specifically
declined to decide whether federal or state claim preclusion applied.
Since Frazier and Astoria, the circuits, curiously in light of
Astoria’s unequivocal statement, have split over whether to follow
state claim preclusion principles in regard to § 1983 claims that are
filed in federal court after unreviewed state administrative
proceedings. Compare Miller v. County of Santa Cruz, 39 F.3d
i
42a
judge found, in a ruling adopted by the district court, that the
civil service commission’s decision was entitled neither to
claim nor issue preclusive effect on Hitt’s subsequent § 1983
action. Whether those conclusions were correct or not is of no
moment, since Connell has not appealed them.
[**13] Instead, the argument Connell ultimately adopted at
trial and now pursues on appeal is that the Bexar County Civil
Service Commission -- rather than Constable Connell -- is the
final decision-maker with respect to employment decisions in
the constables’ offices. It is beyond dispute that the
commissioners conducted an independent inquiry into Hitt’s
discharge and were not motivated by any improper motive.
Consequently, if the commission is the final decision-maker,
then the causal [*248] connection between Hitt’s
constitutionally protected activity and the adverse employment
action is broken, and Connell may not be held liable. See
Mato v. Baldauf, 267 F.3d 444, 450 (Sth Cir. 2001); Long v.
Eastfield College, 88 F.3d 300, 307 (Sth Cir. 1996).
In most “causal connection” cases, the determinative
question is whether the discriminatory or retaliatory motive of
1030, 1037-38 and n.7 (9th Cir. 1994) (state claim preclusion rules
generally apply), with Edmundson v. Borough of Kennett Square,
4 F.3d 186 (3d Cir. 1993) (no preclusion for non-attorney state
administrative tribunals), and Dionne v. Mayor and City Council of
Baltimore, 40 F.3d 677, 682-84 (3d Cir. 1994) (federal claim
preclusion governs).
To her credit, the magistrate judge applied a state law claim
preclusion rule. The applicability of the state law of issue
preclusion, also applied, is not in doubt. See Univ. of Tennessee v.
Elliott, supra; United States v. State of Texas, 158 F.3d 209, 304
(Sth Cir. 1998). .
43a
a subordinate employee may be imputed to the titular
decision-maker. /d. A decision-maker may serve as the
conduit of the subordinate’s improper motive, for example, if
he merely “rubber-stamps” the recommendation of a
subordinate. This case, however, poses the logically
antecedent question how to [**14] identify the official
decision-maker.
The official or formal decision-maker may often be
identified by a rule, e.g., an employee handbook or a
company organizational chart. For public entity employers, it
is appropriate to look to the statutory authority of the official
or board that is alleged to have made the decision. Unlike a
Texas school board, for example,* a county civil service
commission does not have express statutory responsibility to
act as the final decision-maker with respect to individual
employment decisions. The relevant statute requires only that
each civil service commission “adopt, publish, and enforce
rules” regarding the selection* of county employees;
promotions, seniority, and tenure; layoffs and dismissals;
disciplinary actions; grievance procedures; and similar
matters. TEX. LOCAL GOVT. CODE § 158.009(a). But the
statute imposes no superintending responsibility over
individual employment decisions. While it is conceivable that
a commission could promulgate a rule that no employment
decision becomes final until approved by the commission, no
such rule is present here.
[**15] Under its governing rules, the commission is
authorized to review and approve, reverse or modify an
* See TEX. EDUC. CODE § 21.211 (authorizing school boards
to “terminate a term contract and discharge a teacher at any time
for . . . good cause as determined by the board”).
44a
adverse employment decision if an employee elects to appeal
it. But the mere authority to review an employment decision
is not decisive. The commission became involved as an
adjudicative tribunal after Hitt chose to appeal his notice of
termination. Its task was to review Constable Connell’s
decision for conformity with applicable law and regulations,
not to initiate Connell’s action or generally superintend
Connell’s employment practices.
In light of these procedures, Connell’s reliance on the
Eleventh Circuit’s decision in Stimpson v. City of Tuscaloosa,
186 F.3d 1328 (11th Cir. 1999), is misplaced. In that Title
VII retaliation case, Stimpson, a police officer, alleged that
the City of Tuscaloosa was motivated unlawfully when it fired
her. The Eleventh Circuit emphasized three times in its brief
opinion that Alabama law unequivocally deprives the city of
power to discharge a police officer and that the authority to
terminate employment rests solely with a statutorily-created
civil service board. /d. at 1330, 1331, 1332. Stimpson thus
held that [**16] the City of Tuscaloosa could not be liable for
retaliation because the civil service board was, as a matter of
law, the actual decisionymaker, and there was no evidence
that the board was a mere conduit for the city’s supposed
discriminatory motive.
Just as clearly, the Bexar County Civil Service
Commission did aot assume final decisionmaking authority.
The commission did not finalize a decision that Constable
Connell had merely recommended or proposed. Although the
commission [*249] did conduct its own review of Hitt’s
termination, it did so in a quasi- judicial capacity.
45a
C. Qualified Immunity and Mt. Healthy
In the third issue raised on appeal, Constable Connell
seeks to avail himself of the principle that a public employer
may escape liability by proving that it would have taken the
same adverse employment action “even in the absence of the
protected conduct.” Gerhart v. Hayes, 217 F.3d 320, 321
(Sth Cir. 2000) (citing Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ld.
2d 471 (1977)). Connell contends that he is entitled to
qualified immunity because an objectively reasonable officer
would have believed [**17] that he could lawfully terminate
Hitt’s employment -- notwithstanding Hitt’s involvement with
the union -- because of the bomb threat against Deputy North
and Chief Deputy Horn. Cf. Gonzales v. Dallas County,
Texas, 249 F.3d 406, 412 (Sth Cir. 2001).
Connell fails to apprehend the significance of the jury
finding that he fired Hitt because of Hitt’s union membership
and not because of the bomb threat. The jury was instructed
on Connell’s Mt. Healthy defense: In order to find a violation
of Hitt’s rights, they had to decide, inter alia,
whether the defendant has shown by a preponderance
of the evidence that the action he took against the
plaintiff was for other reasons, regardless of whether
or not the plaintiff exercised his protected association
activity. If you find that the defendant would have
taken the same action against the plaintiff for reasons
apart from the association activity, then your verdict
should be for the defendant.
The jury verdict rejects Connell’s explanation of the
employment decision. Their factual finding is supported in the
record. See Boddie v. City of Columbus,-.Miss., 989 F.2d
46a
745, 748 (Sth Cir. 1993). [**18] No reasonable officer could
have concluded that firing Hitt because of his union affiliation
was legally permissible. Jd. Further, because the jury
discredited Connell’s explanation, the basis for his qualified
immunity contention was vitiated.°
D. Evidentiary Rulings
Connell contends that the district court committed
reversible error in admitting into evidence (1) testimony
regarding disciplinary actions that Connell took against
Mullins and other deputies and (2) the audiotape recordings
of several meetings and conversations involving Connell. We
review the [**19] district court’s decision to admit this
evidence for an abuse of discretion. United States v. Vega,
221 F.3d 789, 803 (Sth Cir. 2000).
Other deputies, including Ray Mullins, were allowed to
testify that they were discharged or otherwise discriminated
against because of their participation in the union. Connell
contends that admitting this evidence violated Federal Rules
of Evidence 404 and 403, inasmuch as the other deputies’
testimony was used “to show that Connell’s actions with other
employees supposedly proves [sic] his conduct in Hitt’s case
is improper”; and, even assuming this testimony was
admissible, the danger of unfair prejudice outweighed its
probative value. This testimony was admissible, however, as
> The jury verdict distinguishes this case from Gonzales v.
Dallas County, 249 F.3d 406 (Sth Cir. 2001), in which summary
judgment was granted to a constable who fired one of his deputies
at least in part because of the deputy’s undisputed use of excessive
force. Here, the jury had to determine, whether the disputed bomb
threat was a credible threat and an actual motivating factor in Hitt’s
firing, and they found against Connell.
47a
proof of Connell’s [*250] motive in firing Hitt. FED. R.
EVID. 404(b). Moreover, the-testimony was admissible to
impeach Connell’s statements on multiple occasions that he
was “a union man” and that he. had no animus against TCOPS
or any other police union. The district court did not abuse its
discretion in admitting this evidence.
Connell’s second argument is that the district court erred
in admitting two audiotapes (as well as transcripts of those
tapes) that were not [**20] properly authenticated. We
disagree. Both deputies who recorded Connell’s statements
testified about how they made the recordings, and Connell
does not dispute their identification of his voice on the tapes.
Connell has not produced sufficient evidence to cast doubt on
the reliability of the tapes or the transcripts prepared from
them.
E. Compensatory Damages
Connell challenges the jury’s award of $300,000 in
compensatory damages as excessive because Hitt presented
little or no evidence of his nonpecuniary damages. We agree.
The verdict form did not separate pecuniary and non-
pecuniary damages. However, during his closing argument,
Hitt’s attorney argued that lost earnings, both past and future,
amounted to $76,000. Hitt’s attorney then explained the jury
question on damages:
Interrogatory Number 3 is the money issue. . . I think
you start there with the basic lost income of
[$]76,000, and then whatever you ladies feel the loss
of retirement, loss of job satisfaction, worry about no
job, embarrassment within the law enforcement field.
What’s all that worth in addition to the [$ ]76,000? I'll
48a
leave that to you. But it should be a reasonably large
sum of money.
{**21] Based on this representation to the jury, there is no
plausible alternative but that the jury awarded Hitt $224,000
in non- pecuniary damages for mental anguish, loss of job
satisfaction and prestige, and embarrassment.
The question, therefore, is whether Hitt’s evidence of non-
pecuniary damages is legally sufficient to warrant an award of
$224,000. Our review of non-pecuniary damages is for abuse
of discretion. Migis v. Pearle Vision, Inc., 135 F.3d 1041,
1046 (Sth Cir. 1998).
This court has articulated in detail the kind of evidence
needed io support compensatory damages for mental anguish
or emotional distress. See, e.g., Vadie v. Mississippi State
Univ. , 218 F.3d 365, 376 (Sth Cir. 2000); Brady v. Fort Bend
County, 145 F.3d 691, 718-20 (Sth Cir. 1998); Patterson v.
P.H.P. Healthcare Corp. , 90 F.3d 927, 940 (Sth Cir. 1996).
The same principles would logically apply to other
nonpecuniary types of damages such as those urged by Hitt.
For starters, we have emphasized that “hurt feelings, anger
and frustration are part of life,” and are not the types of
emotional harm that could support an award of damages.
[**22] Patterson, 90 F.3d at 940. The plaintiff must instead
present specific evidence of emotional damage: “[T}here must
be a ‘specific discernable injury to the claimant’s emotional
state,’ proven with evidence regarding the ‘nature and extent’
of the harm.” Brady, 145 F.3d at 718 (quoting Patterson, 90
F.3d at 938, 940). To meet this burden, a plaintiff is not
absolutely required to submit corroborating testimony (from
a spouse or family member, for example) or medical or
psychological evidence. Brady, 145 F.3d at 718, 720. The
plaintiff's own testimony, standing alone, may be sufficient to
49a
prove mental damagés but only if the testimony is
“particularizea and extensive” enough to [*251] meet the
specificity requirement discussed above: “’ Neither conclusory
statements that the plaintiff suffered emotional distress nor the
mere fact that a constitutional violation occurred supports an
award of compensatory damages.’” Brady, 145 F.3d at 720,
718 (quoting Price v. City of Charlotte, 93 F.3d 1241, 1254 ©
(4th Cir. 1996)).
Hitt did not satisfy these standards. The record is devoid
of any corroborating evidence [**23] with respect to Hitt’s
emotional distress or other elements of nonpecuniary damage.
There is no medical evidence, no testimony from family
members or co- workers, no evidence of physical
manifestations of distress. In sum, all the evidence that the
jury heard was Hitt’s testimony that his discharge
was emotionally trying. I was depressed. I was out of
work. I was embarrassed because it never should have
happened. And it made me very defensive in terms of
applying for jobs and having to go through and
explain, if it got to that point what had gone on and
why I was out looking for wo-k.
I’ve been around law enforcement in Bexar County
for a number of years. And people ask you, hey,
what’s going on. You know, how come you got fired.
It’s kind of a blight on your reputation, and it does
affect you emotionally.
At that point, Hitt’s attorney turned to the question of lost
income. Aside from a few other scattered statements, the
quoted testimony is all the evidence of mental anguish that
Hitt presented.
50a
Our conclusion in Brady applies equally well to this case:
The plaintiff's testimony is “vague, conclusory, and
uncorroborated . . . . [and] cannot legally support [**24]
mental anguish damages.” Brady, 145 F.3d at 720. The
district court thus abused its discretion in entering judgment
for Hitt in the amount of $300,000. The evidence presented
at trial supports the $76,000 in damages for lost income but
not the remaining $224,000 in non-pecuniary damages.
F. Attorney’s fees
In a consolidated appeal, Connell challenges the district
court’s decision to award attorney’s fees and expenses in the
amount of $88,487.94 to Hitt’s attorney. See 42 U.S.C.
§ 1988. Appellate review of this award would have been
hampered in any event by appellant’s apparent failure to
include the district court decision in the appellate record. But
because we have substanfially reduced the judgment, it is
prudent to remand the fee award for reconsideration. We
express no opinion on the award.
Ifl. CONCLUSION
In Cause No. 01-50117, we AFFIRM the judgment of
liability, but VACATE the award of damages and REMAND
with Instructions to enter judgment for $76,000. In Cause No.
01-51010, the district court’s judgment awarding attorney's
fees is VACATED and REMANDED for reconsideration in
light of this opinion.
AFFIRMED [**25] in part, VACATED in part, and
REMANDED.
CARL E. STEWART, Circuit Judge, concurring in part and
dissenting in part.
Sla
I concur with the majority’s resolution of the liability
issues and the affirmance of Hitt’s $76,000 lost wages award
in cause No. 01-50117. I also agree that the jury’s mental
anguish award of $224,000 is excessive because Hitt’s
evidence on this claim was minimal. However, I do not
believe that the solution is to zero out the award completely.
See Vadie v. Mississippi, 218 F.3d 365, 375-79 (Sth Cir.
2000) (finding an award of $300,000 in mental anguish
damages [*252] under Title VII was excessive where the only
evidence supporting a finding of emotional injury was the
plaintiff's own testimony, and concluding that because the
evidence presented supported an award no greater than
$10,000, either remittitur or a new trial was required).
I respectfully dissent from the majority view that Hitt
failed to present sufficient evidence to support some award for
mental anguish. In Oden v. Oktibbeha County, Mississippi,
we determined that there was sufficient evidence to [**26]
support a jury award of $20,000 in compensatory damages for
mental anguish when the only evidence submitted by Deputy
Sheriff Oden was his own testimony that as a result of the
defendants’ discrimination, he experienced _ stress,
sleeplessness, betrayal, and shame. 246 F.3d 458, 470-71
(Sth Cir. 2001); See alse Migis v. Pearle Vision, Inc., 135
F.3d 1041, 1046 (Sth Cir. 1998) (concluding that the
evidence, which consisted solely of Migis’ testimony, was
sufficiently detailed to preclude this court from holding that
the district court abused its discretion in awarding $5,000 in
compensatory damages for mental anguish); Williams v.
Trader Publ’g Co., 218 F.3d 481 (Sth Cir. 2000) (upholding
an award of $100,000 in compensatory damages for emotional
distress, premised solely on Williams’ testimony regarding
her “severe emotional distress,” “sleep loss,” “severe loss of
weight,” and “beginning smoking”); Forsyth v. City of
Dallas, Tex., 91 F.3d 769, 775 (Sth Cir. 1996) (upholding an
52a
emotional distress award of $100,000 that was premised on
the plaintiff's testimony describing “depression, weight loss,
intestinal troubles, [**27] and marital problems”).
In the instant case, Deputy Constable Hitt testified that his
termination
was emotionally trying. | was depressed. I was out of
work. J was embarrassed because it never should have
happened. And it made me very defensive in terms of
applying for jobs and having to go through and
explain, if it got to that point what had gone on and
why I was out looking for work. I’ve been around law
enforcement in Bexar County for a number of years.
And people ask you, hey, what’s going on. You
know, how come you got fired. It’s kind of a blight on
your reputation, and it does affect you emotionally.
Hitt’s claim for some compensation is supported by this
court’s holdings in Forsyth, Migis, Oden, Vadie, and
Williams. In these cases, as in the instant case, there was no
corroborating evidence, only the testimony of the plaintiffs.
In addition, Hitt’s testimony is arguably comparable to that of
Deputy Sheriff Oden, who recovered a $20,000 award from
a jury based solely on his testimony.
Along the spectrum of awards that have previously been
upheld by this court, it is debatable what specific amount of
mental anguish damages Hitt is entitled [**28] to. However,
it is clear that he is entitled to an award that is greater than
zero. Thus, for the foregoing reasons, I would vacate the
jury’s mental anguish award of $224,000 and either remit the
award down to $20,000, or remand to the district court for a
new trial on damages. In cause No. 01-51010;1 concur in the
53a
remand of the attorney’s fees award for reconsideration in
light of the overall reduction of the jury award.
54a
APPENDIX K
183 F.3d 38, *; 1999 U.S. App. LEXIS 17044, **;
80 Fair Empl. Prac. Cas. (BNA) 537;
76 Empl. Prac. Dec. (CCH) P46, 187
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 98-2231
[Filed July 15, 1999}
MYRTLE THOMAS,
Plaintiff, Appellant,
Vv.
EASTMAN KODAK COMPANY,
Defendant, Appellee.
ee ee i
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MASSACHUSETTS.
Hon. W. Arthur Garrity, Jr., U.S. District Judge.
Before Lynch, Circuit Judge, Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Former employee brought Title VII race discrimination
action against former employer. The United States District
Court for the District of Massachusetts, Arthur Garrity, Jr.,
5Sa
J., 18 F.Supp.2d 129, granted former employer’s motion for
summary judgment. Former employee appealed. The Court
of Appeals, Lynch, Circuit Judge, held that: (1) action
accrued when employee received notice of layoff, not when
she received negative performance appraisals; (2) once
employee has shown employer’s reason for adverse action is
pretextual, employee is not always required to produce direct
evidence to demonstrate that employer’s real reason was
discriminatory; (3) District Court erroneously based entry of
summary judgment upon nondiscriminatory reason not
articulated by employer; and (4) employee met burden of
showing employer’s proffered reason for laying her off was
pretext for race discrimination.
OPINION
[*42] LYNCH, Circuit Judge.
In 1993, Myrtle Thomas, the only black Customer Service
Representative in Eastman Kodak’s Wellesley, Massachusetts
office, was laid off. Thomas responded with a race
discrimination suit against Kodak under Title VII, 42 U.S.C.
§§ 2000e to e-17, arguing that Kodak’s layoff decision was
discriminatory because it resulted from a ranking process that
relied on racially biased performance appraisals prepared in
1990, 1991, and 1992. Kodak made two arguments in its
motion for summary judgment: first, that Thomas’s claim was
time-barred because the performance [**2] appraisals were
conducted outside of Title VII’s statutory limitation period,
and second, that Thomas failed in any event to present enough
evidence { facial animus to support a disparate treatment
claim. The district court disagreed with the first point but
agreed with Kodak’s second argument and granted summary
judgment. Both issues are before us on appeal.
56a
We decide both in favor of Thomas. We find Thomas’s
claim to be timely because the discriminatory appraisals that
she is challenging first caused her concrete harm when they
led to her layoff in 1993. Because we also find that she has
presented enough evidence to support her claim that the
performance appraisals were racially biased, we reverse the
district court’s grant of summary judgment and remand for
further proceedings.
After thirty-five years of litigation under Title VII, cases
can still present new wrinkles. This is one such case. Because
it raises a number of important issues -- some new and some
familiar but difficult -- we preview the key holdings.
First, when an employee claims that a layoff is
discriminatory and the employer utilizes scores from past
performance appraisals in an objective formula to determine
{**3] who will be laid off, the limitations period runs from
the date of the notice of layoff where the laid off employee
has suffered no concrete earlier harm from the appraisals.
Second, once there is sufficient evidence to create a
material issue of fact that the employer’s articulated reason
for an adverse employment action is a pretext, there is no
requirement that a plaintiff always produce direct evidence to
demonstrate that the real reason was discriminatory.
Third, Title Vil’s prohibition against “disparate treatment
because of race” extends both to employer acts based on
conscious racial animus and to employer decisions that are -
based on stereotyped thinking or other forms of less conscious
bias.
Fourth, under the McDonnell Douglas/Burdine
framework, a court may not enter summary judgment for an
“
S7a
employer based upon a non-discriminatory reason not
articulated by the employer but identified sua sponte by the
district court.
I
In reviewing a grant of summary judgment, we consider
the facts in the light most favorable to the nonmoving party,
drawing all reasonable inferences in that party’s favor. See
Aponte Matos v. Toledo Davila, 135 F.3d 182, 186 (1st Cir.
1998). [**4] Given the subtlety of the questions before [*43]
us, we outline Thomas’s experiences at Kodak in some detail.
Thomas was a long-term Kodak employee. She first began
working for the company in 1974. In 1980, after working for
six years in clerical and administrative positions in Kodak’s
Rochester, New York facility, she was promoted to Customer
Support Representative (“CSR”) within the Office Imaging
Division and transferred to Kodak’s office in Wellesley,
Massachusetts.
Along with five other CSRs working out of the Wellesley
office, Thomas supported customers in an assigned territory
who owned Kodak copiers and other Kodak equipment. She
helped salespeople perform installations, trained customers in
the use and maintenance of Kodak equipment, facilitated
communication between customers and sales and service
personnel, and provided other forms of marketing support.
Thomas generally performed her job well. Kodak
managers who supervised Thomas during her first ten years
as a CSR in the Wellesley office reported me oe that they
were never dissatisfied with her performance, that they were
“delighted” with Thomas, that her work was “excellent” and
“far superior” to that of some [**5] of the other CSRs, that
58a
she was “very much on top of things,” and that she was “the
perfect support person.”
Co-workers and customers expressed similar sentiments.
A sales representative who worked with Thomas sent a
memorandum to Thomas’s_ supervisor praising her
“continuous professionalism,” “very high level of
commitment,” and “total dedication.” The sales
representative later noted that he was particularly impressed
with the way a certain customer “really went out of his way”
to emphasize his satisfaction with Thomas’s support. Another
customer who contacted Kodak after Thomas’s layoff
described Thomas as “an irreplaceable part of the Kodak
team” and explained that Thomas was the primary reason for
his selection of Kodak copiers over copiers from other
companies. The customer concluded: “In my many contacts
with company representatives, I have not met anyone of the
class and caliber of Myrtle Thomas.”
Because of her high level of performance, Thomas
received awards and bonuses from Kodak. In 1989, the
company also changed Thomas’s grade from K4 to K6, which
resulted in a salary increase. According to Kodak’s job
description, the K6 grade was limited to CSRs who were
“making an [**6] outstanding contribution to the support
activities,” defined as “servicing the largest and/or most
sensitive accounts, developing and giving individualized
presentations and/or demonstrations, and training new CSRs.”
Thomas received at least eight other salary increases during
her years as a CSR. At the time of the 1993 layoff, Thomas
was the fourth most senior CSR in the Wellesley office and
earned the third highest salary.
The Kodak compensation plan stated that “[t}he
company’s goai for {its pay program is to reward each
59a
individual’s job performance appropriately” and to ensure that
“[pleople with higher performance will, over time, be paid
more than average performers.” The company made use of
annual performance appraisals in order to reach this goal.
According to the compensation plan, performance appraisals
were also used for a number of other purposes, including:
A. Evaluating and documenting the performance of
each individual in comparison with performance
expectations for the job.
B. Providing individuals with constructive feedback.
C. Identifying the guidance and training that can help
individuals be as successful as their ability permits.
fand]
D. [**7] Determining who should be promoted,
transferred, demoted, terminated, laid off, and re-
employed.
[*44] To conduct an appraisal, the supervisor who directed
an employee’s day-to-day activities filled out an appraisal form.
The form contained a section pertaining to “basic performance
measures,” which included categories for quality of results,
quantity of results, job skills, and teamwork. Another section
pertained to “additional performance measures,” including
dependability, versatility, communications, and leadership. The
form required the supervisor to give the employee a rating from
1 to 7 for each applicable category, as well as an overall rating. '
7
' The lowest rating was | (for performance that “does not meei
essential job requifements”) and the highest was 7 (for performance
60a
A separate section of the appraisal form contained space for
the supervisor’s comments on the evaluated categories, a
description of any developmental opportunities, a description
of matters discussed during the post-appraisal interview with
the employee, and both supervisor and employee signatures.
Each appraisal was also reviewed and signed by the
appraiser’s supervisor. The appraiser and the appraiser’s
supervisor were together responsible for the appraisal’s
accuracy, consistency, and conformance to company policy,
including [**8] a policy favoring fair and objective
evaluations, conducted “without regard to non-job-related
criteria such as{] race.”
Kodak intended the appraisal scores to be on a curve,
company-wide. The compensation plan suggested that
“performance appraisal ratings for large groups of people
(approximately 100 or more) [should] average around the
middle of the rating scale,” but acknowledged that factors
such as the amount of turnover and the percentage of long-
term employees could influence the distribution of ratings in
any given group, particularly groups with a small number of
employees. The compensation plan suggested that appraisers
{**9] attempt to validate their distribution of appraisal ratings
by rank-ordering employees in the same grade and job
category. After the rank ordering was complete, supervisors
would finalize the preliminary ratings to agree with the rank-
order results. However, these rank orderings were not
discussed with employees. Supervisors were told that
“appraisals verified through this process [should be]
that “far exceeds requirements of the position”). The middle rating
of 4 was considered appropriate “for individuals who regularly
perform all assigned responsibilities with independence and
initiative, and achieve expected results on a continual basis.”
6la
communicated by referencing performance relative to job
expectations with nvu.reference to the rank-order process.”
Thomas’s appraisals for 1988 and 1989 show that she was
performing at a high level. In 1988, when she was responsible
for more than 400 machines, Thomas received seven 5 ratings
and one 6 rating, for an overall rating of 5, which was a
rating “appropriate for individuals who not only achieve
results and meet all expectations on a regular basis, but who
go beyond these requirements from time to time.” Her
supervisor’s comments were uniformly positive. In 1989,
when she was responsible for more than 500 machines,
Thomas received even higher ratings -- five 6s and three 5s,
for an Overall rating of 6, which meant that her “performance
consistently exceeded the requirements of the [**10] position
and [was] characterized by unusual initiative, resourcefulness,
and creativity.” Once again, the supervisor’s comments were
uniformly positive.
In 1989, Kodak created the position of Customer Support
Manager throughout its Office Imaging organization. Thomas
asked to be considered for the Wellesley position, but was
told that she was not qualified. Instead, the position went to
Claire Flannery, a former CSR who had been working as a
division secretary. As Customer Support Manager, Flannery
was responsible for supervising the six Wellesley CSRs. She
remained in this position until 1993, when both she and
Thomas [*45] were laid off as part of a company-wide
reduction in force.
The appointment of Flannery as Customer Support
Manager marked a significant downturn in Thomas’s fortunes
at Kodak. Although Thomas states that she and Flannery
“were on a professional basis,” and Flannery denies having
any problems with Thomas’s job performance, it appears that
62a
their working relationship was strained. Thomas alleges that
Flannery treated her differently from the other five CSRs, all
of whom were white’ (as were, in fact, all of the other CSRs
during Thomas’s thirteen years [**11] in the Wellesley
office).
She describes a number of occasions on which she claims
Flannery unnecessarily damaged her professional standing
with customers. For example, on the only occasion on which
Flannery accompanied Thomas to a customer training session
in order to observe Thomas’s work, Flannery instead took
over the session and conducted the entire training herself. On
another occasion, Flannery told Thomas the wrong time for
a training session Flannery had scheduled on site, and then
refused to write to the customer, who was upset, to explain
why Thomas had been several hours late. (After Thomas
proved to Flannery what had occurred by playing back
Flannery’s voice mail message to her, Flannery did agree to
call -- but not to write -- the customer.) On a third occasion,
Flannery became quite angry and attempted physically to
block Thomas from leaving a CSR meeting which had been
scheduled at the same time as an important training [**12]
session for one of Thomas’s customers. .
Thomas also provides evidence from which the inference
can be drawn that Flannery did not evaluate her skills fairly
or give her appropriate opportunities for growth and success.
For example, Flannery did not travel with Thomas as she did
with the other CSRs in order to observe Thomas’s interactions
with customers. Flannery did not give Thomas the same type
of developmental opportunities available to other CSRs. She
4
2 We use the terms “black” and “white,” as Thomas has chosen
this terminology.
63a
criticized Thomas for lack of computer skills, but then failed
to train Thomas when computer equipment became available.
After Thomas was asked to prepare a presentation for a
Kodak meeting, Flannery told her that there would not be
time for her presentation, although time was found for a
presentation by a white employee on a less pressing topic.
Thomas was denied the opportunity to apply for sales jobs,
despite her good track record in sales support activities.
Flannery expressly discouraged her from applying for a
management position in another division, telling her she was
not qualified because she did not yet have a master’s degree
(Thomas was studying for one at the time), even though none
of the other managers in that position [**13] had a master’s
degree or even a bachelor’s degree. Finally, Flannery went to
great lengths to prevent Thomas from meeting with Bill
Cassidy, the Regional Vice President for Office Imaging, to
discuss advancement opportunities, and became angry when
Thomas nevertheless managed to schedule an appointment.
Thomas’s most significant and concrete allegation is that
Flannery gave her inaccurately low scores on her annual
performance appraisals. For example, after receiving only 5s
and 6s in 1988 and 1989, Thomas received a 2, four 3s, and
a 4 from Flannery in 1990, for an overall score of 3. This
was a below-average rating, appropriate for employees who
had “a need for further improvement to achieve a middle
rating [of 4]” or for employees “whose overall performance
has slipped from a higher level.” Thomas’s performance
appraisal scores in 1991 and 1992, while higher than her 1990
scores, were also inappropriately low, in Thomas’s estimation
-- especially when compared to the higher scores that
Flannery gave to other [*46] CSRs. Thomas presents
specific comparisons, discussed further below.
64a
Thomas was distressed by the 1990 performance appraisal
and refused to sign it. She also [**14] refused to sign the
1992 appraisal, and signed her 1991 appraisal only “‘out of
a joke,” because it was a joke.” It is clear that Thomas
disagreed with Flannery’s evaluations; more than that -- she
found them “insulting” and “shameful.” To the extent that it
was possible for her to compare salary and raises with other
CSRs, however, she would not have noted any obvious effects
of the negative appraisals, since neither her salary nor the
raises she was given during Flannery’s tenure as Customer
Support Manager differed significantly from those of other
employees. She did complain about the appraisals, both to
Flannery herself and to others within Kodak, including Bill
Cassidy, the Regional Vice President for Office Imaging, and
Patti Weissinger, a Human Resources Representative.
However, fearing retaliation from her new boss, she did not
file a formal charge against Flannery with the Human
Resources Department, and Kodak did not take any action in
response to her informa] complaints.
In January 1993, Kodak decided to reduce the number of
employees in its Office Imaging Division. It selected
employees for layoff using a “Performance Appraisal Ranking
Process (“PAR process”), which produced [**15}] a
numerical score for each employee by adding together the
employee’s overall performance appraisal score for each of
the three preceding years, after weighting the most recent
score by a factor of 25 and the second most recent score by
a factor of 5.* Thomas’s PAR ranking, which was derived
> This formula was used for employees whose grade remained
the same for all three years. If an employee had changed grades
during the three year period, the formula gave less weight to the
score immediately following the grade change.
65a
from the three appraisals conducted by Flannery, was the
second lowest of the Wellesley CSRs. Since Kodak had
decided to cut two Wellesley CSR positions, as well as the
Customer Support Manager position, Flannery, Thomas, and
the lowest ranked CSR (Eileen Lavallee) were laid off in
March 1993.
I
In July 1993, four months after her layoff, Thomas filed
a charge of race discrimination with the Equal Employment
Opportunity Commission. The EEOC issued a “right to sue”
letter in February [**16] 1996, and Thomas brought suit in
May 1996.
Although her complaint asserts a variety of race
discrimination claims, Thomas has focused primarily on
Kodak’s 1993 decision to terminate her, arguing that this
decision was discriminatory because it was based on
discriminatory performance appraisals conducted by Flannery
from 1990 through 1992.‘ It is the layoff which is the subject
* Thomas described a number of other events as evidence of
unlawful race discrimination by Kodak. The district court provided
a succinct summary:
When plaintiff was transferred to Wellesley, Kodak did not
fly her to Massachusetts, as it had other transferred
employees. Instead, Thomas was told to drive a car that
had been requested by Richard Austin, her new supervisor.
The car was in disrepair, requiring a new muffler. Though
other employees had two weeks in a new location before
reporting to work, plaintiff was told to report right away.
66a
[*47] of this appeal. Kodak moved for summary judgment,
contending that Thomas’s claim was time-barred, and in the
alternative, that she had failed to present enough evidence of
racial animus to reach a jury under the First Circuit's standard
for showing disparate treatment once pretext has been shown.
See Udo v. Tomes, 54 F.3d 9, 12-13 (Ist Cir. 1995)
(describing standard). The district court found Thomas’s
claim timely, but granted summary judgment to Kodak on the
As part of plaintiffs move benefits, Kodak provided
storage for her belongings. The warehouse burned in 1981,
destroying virtually all of Thomas’ belongings. Thomas
gave Austin an inventory of her losses; in response, he
asked, “Are you rich or something?” Before Thomas was
reimbursed, another Kodak employee encouraged her to
change her inventory listing. Defendant did not reimburse
Thomas for five years.
A few months after Thomas began working in Wellesley,
she was standing with a group of employees when Austin
introduced two visiting sales managers. Austin introduced
everyone in the group except Thomas.
In 1983, Thomas passed a co-worker in the hallway outside
the department manager’s office. The co-worker asked the
manager if plaintiff was “here to do the cleaning.”
Thomas lost a gold bracelet at work. A co-worker
announced finding it just before a sales meeting, as other
employees arrived. Thomas claimed the bracelet, and
described it at his request. He refused to return the bracelet
until he had confirmed that it did not belong to another,
white female employee.
Thomas v. Eastman Kodak Co., 18 F. Supp. 2d 129, 132 (D. Mass.
1998).
\
| /
67a
merits argument. See Thomas v. Kodak, 18 F. Supp. 2d 129,
133-38 (D. Mass. 1998). On appeal, Thomas argues that the
district court applied the standard incorrectly. Kodak defends
the district court’s application of the standard, while also
continuing to argue that Thomas’s claim is time-barred.
[**17]
iil
We review the district court’s grant of summary judgment
de novo, see Lennon v. Rubin, 166 F.3d 6, 8 (1999), and will
find summary judgment appropriate if “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law,” Fed. R. Civ. P.
56(c).
A
We first address Kodak’s argument that the district court
erred in not dismissing the action as untimely. Title VII
requires aggrieved individuals to file a charge with the EEOC
“within one hundred and eighty days after the alleged
unlawful employment practice occurred.” 42 U.S.C. § 2000e-
5(e)(1). In a “deferral jurisdiction,” such as Massachusetts,
this period is extended to three hundred days.° See 42 U.S.C.
* The full story is more complicated, in part betause § 2000e-
5(e) interacts with § 2000e-5(c), which imposes a sixty-day waiting
period between the filing of a charge with state or local authorities
and the filing of a charge with the EEOC:
68a
§ 2000e-5(e)(1); Mohasco Corp. v. Silver, 447 U.S. 807, 814
n.16, 65 L. Ed. 2d 532, 100 S. Ct. 2486 (1980); Mack v.
Great Atl. & Pac. Tea Co., 871 F.2d 179, 181-82 (1st Cir.
1989). This relatively short limitations period serves [**18]
important interests. “The limitations period{], while
guaranteeing the protection of the civil rights laws to those
who promptly assert their rights, also protect{s] employers
from the burden of defending claims arising from employment
decisions that-are long past.” Delaware State College v.
Ricks, 449 U.S. 250, 256-57, 66 L. Ed. 2d 431, 101 S. Ct.
498 (1980). In the Title VII context, as in others, “the period
allowed for instituting suit inevitably reflects a value judgment
concerning the point at which the interests in favor of
protecting valid claims are outweighed by the interests in
prohibiting the prosecution of stale ones.” /d. at 259-60
(internal quotation marks omitted) (quoting Johnson v.
Railway Express Agency, Inc., 421 U.S. [*48] 454, 463-64,
44 L. Ed. 2d 295, 95S. Ct. 1716 (1975)). Congress has made
that value judgment.
—
[A] complainant in a deferral State . . . need only file his
charge within 240 days of the alleged discriminatory
employment practice in order to insure that his federal
rights will be preserved. If a complainant files later than
that (but not more than 300 days after the practice
complained of), his right to seek relief under Title VII will
nonetheless be preserved if the State happens to complete
its consideration of the charge prior to the 300-day period.
Mohasco Corp. v. Silver, 447 U.S. 807, 814 n.16, 65 L. Ed. 2d
532, 100 S. Ct. 2486 (1980). None of these subtleties is relevant to
the question here, since, as the district court noted, “[p}laintiff filed
her EEOC charge within the minimum 180 days of her termination,
but more than the maxim 300 days after her most recent
evaluation.” Thomas, 18 F. Supp. 2d at 133 n.1.
69a
[** 19]
However, Title VII’s statute of limitations is not self-
executing. The three hundred day (or one hundred and eighty
day) rule cannot be mechanically applied, because it is not
possible to pinpoint when the limitations period begins -- i.e.,
when the plaintiff's claim “accrues” -- without first
determining the date, or the temporal boundary, of the
“alleged unlawful employment practice” referred to in
§ 2000e-5(e)(1).
The crux of Thomas’s claim is that her layoff of tainted
because the 1990-92 performance appraisals were tainted by
Flannery’s alleged racial bias. Thomas does not argue that
Kodak’s decision to utilize the PAR process to determine who
would be laid off was racially biased. See Thomas, 18 F.
Supp. 2d at 135 (“[P]laintiff does not contend that Kodak’s .
. . PAR layoff process[] [was itself] discriminatory.”). As we
understand her argument, she does not allege that Flannery
and other Kodak employees participated in a conspiracy to
oust her from her job because of her race, using the
performance appraisals and the PAR process as a thin cover
for this express discriminatory purpose. Rather, she argues
that the PAR process was illegitimate under Title [**20] VII
in a derivative way, because its calculations were based on
discriminatory appraisal scores. If racially biased scores were
plugged in to the PAR formula, she argues, then the ranking
that came out must also be biased.
According to Kodak, this argument can only mean that the
performance appraisals themselves constitute the “unlawful~
employment practice” at issue under § 2000e-5(e)(1), and
thus that any claim regarding the allegedly biased
performance appraisals thust have accrued at the time the
appraisals were conducted. Since even the most recent
70a
appraisal (presented to Thomas in May 1992) was conducted
more than three hundred days before Thomas filed her
complaint with the EEOC in July 1993, Kodak asserts that
Thomas is precluded from questioning the racial neutrality of
any of the three performance appraisals. And without the
ability to challenge the appraisals upon which the PAR
process was based, Kodak notes, Thomas’s discriminatory
termination claim collapses.
According to Thomas, the fact that the performance
appraisals were conducted more than three hundred days
before she filed her EEOC charge is irrelevant, because the
adverse employment decision that she is challenging [**21] --
the “unlawful employment practice” under § 2000e-5(e)(1) --
is Kodak’s decision to lay her off, and not performance
appraisals independently, and this decision indisputably fell
within the statutory period.
Kodak’s general policy stance makes sense: given that the
central purpose of the statute of limitations is to protect
employers from stale claims, it cannot be true that plaintiffs
have an unfettered ability to reach back and litigate biased
evaluations. Yet Thomas’s position is also reasonable, since
it seems unlikely that Title VII permits employers to take a
new employment action such as a layoff which first causes an
employee harm, as long as the allegedly discriminatory
evaluations on which the layoff is based were conducted more
than three hundred days earlier.
Counsel did not call the court’s attention to any First
Circuit caselaw on this point. The district court, led to believe
that the First Circuit had not addressed this question, “looked
for guidance elsewhere.” Thomas, 18 F. Supp. 2d at 133. The
court focused on the decision of the Third Circuit in Colgan
v. Fisher Scientific Co., 935 F.2d 1407 (3d Cir.), cert.
Tila
denied, 502 U.S. 941, 116 L. Ed. 2d 330, 112 S. Ct. 379
(1991). [**22} The facts in Colgan do closely resemble the
facts here. Like Thomas, the Colgan plaintiff was fired after
receiving a negative performance review. See 935 F.2d at
1410-11. He filed a charge of age discrimination with the
EEOC within three hundred days of his termination, but more
than three hundred days after the negative performance
review. [*49] See id. at 1411. The Third Circuit determined
that Colgan’s claim was not time-barred because it accrucd at
Colgan’s termination, not when he received the negative
review. See id. at 1415-21. The court concluded that “an
alleged unlawful employment practice, here the performance
evaluation, must have inflicted harm which was or should
have been noticed, or it will not have triggered the limitations
period.” /d. at 1418. Colgan’s review stated that he failed to
meet job requirements and expressly warned that action would
be taken unless his performance improved. See id. at 1410.
Nonetheless, the court found that the review did not produce
the requisite notice of harm to trigger the running of the
statute of limitations, because “(t]he performance [**23]
evaluation had no immediate consequence on Colgan’s
employment, such as a loss of seniority, nor did it alert
Colgan to the possibility that consequences would flow from
it without an opportunity for him to improve his
performance.” /d. at 1419-20. The Third Circuit based its
Colgan analysis on a trilogy of Supreme Court cases, which
we summarize briefly here. In United Air Lines v. Evans, 431
U.S. 553, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977), the
Supreme Court held that a flight attendant who was
wrongfully forced to resign and then later rehired could not
challenge the airline’s refusal to grant her seniority as if there
had been no break in her employment, since the relevant
wrongful act -- Evans’s being forced to resign -- occurred
outside of the limitations period. See id. at 555. In Ricks, the
Court held that the college’s denial of tenure, not a later
72a
discharge pursuant to that denial, was the event that triggered
Title VII’s statute of limitations. See Ricks, 449 U.S. at 256-
58. Finally, in Lorance v. AT&T Technologies, 490 U.S. 900,
104 L. Ed. 2d 961, 109 S. Ct. 2261 (1989), the Court [**24]
held that the Title VII limitations period begins to run when
an employer adopts a seniority system, not when an employee
is demoted pursuant to that system.° See id. at 912-13. Read
together, this trilogy defines a notice rule: an employer action
only triggers the running of the statute of limitations if that
action has concrete, negative consequences for an employee,
and the employee is aware or should have been aware of those
consequences. See Colgan, 935 F.2d at 1415-21; see also 2
B. Lindemann & P. Grossman, Employment Discrimination
Law 1349 (3d ed. 1996) (observing that Supreme Court cases
“seem to establish a relatively simple ‘notice’ rule as to when
discrimination ‘occurs’”).
[**25]
~~
We think many aspects of Colgan’s reasoning are correct.
However, we find more direct guidance in a First Circuit case
decided several years before Colgan. In Johnson v. General
Electric, 840 F.2d 132 (ist Cir. 1988), a black employee
® Section 112 of the 1991 Civil Rights Act later overruled
Lorance, allowing employees to challenge a seniority system “when
the system is adopted, when an individual becomes subject to the
seniority system, or when a person aggrieved is injured by the
application of the seniority system.” 1991 Civil Rights Act, Pub. L.
No. 102-166, §412;105 Stat. 1071, 1079 (1991) (codified at 42
U.S.C. § 2000e-5(e)(2)). This may mean that seniority systems
should be treated as an exception to the “notice rule” discussed in
Colgan; alternatively, it may simply mean that Congress thought
that the Court had misapplied the notice rule in the seniority system
context.
_
v2”
Claimed that he had been denied a promotion based on a
special review process that was intentionally designed to
prevent him from qualifying for promotion. See id. at 134.
The employer contended that the plaintiff's claim accrued
when the review process was first put into place, while the
plaintiff insisted that the clock did not start running on his
claim until he was informed that he had failed the review
process and would not be promoted. See id. The district
court, relying on Ricks, held that the establishment of the
review process was the “unlawful employment practice” of
which the plaintiff complained, and therefore started the
running of the statute from that point. See id. Although [*50]
this court affirmed the dismissal on other grounds, it
disagreed with the district court’s analysis, noting that the
“question [is] . . . whether a claim accrues when an employee
is made subject to [**26] an... evaluation. . ., or when
that . . . evaluation is applied to deny the plaintiff particular
benefits or positions.” /d. This court chose the latter rule,
holding that the notice standard is met and the statute of
limitations is triggered only if “the implications [of the
evaluation] have crystallized” and “some tangible effects of
the discrimination were apparent to the plaintiff,” i.e. , if “the
plaintiff is aware that he will in fact be injured by the
challenged practice.”’ Jd. at 136-37.
The decision was motivated, in part, by concerns about
ripeness. The court noted that “it is [**27] far from clear
whether claims under Title VII and analogous statutes would
” Johnson, which was decided shortly before the Supreme
Court’s decision in Lorance, suggested that this rule would apply
to discriminatory seniority systems as well. See Johnson, 840 F.2d
at 134. Congress has since provided a specific accrual rule for
seniority systems. See 1991 Civil Rights Act § 112 (codified at 42
U.S.C. § 2000e-5(e)(2)).
74a
be ripe for adjudication until discriminatory systems [or
evaluations] were actually applied to plaintiffs in particular
employment decisions,” and observed that “it is unwise to
encourage lawsuits before the injuries resulting from the
violations are delineated, or before it is even certain that
injuries will occur at all.” /d. at 136.
Johnson’s notice standard serves multiple functions. By
Starting the limitations clock as soon as harm is noticed, or
should be noticed, the standard protects employers from stale
claims while also lessening the risk that employees will bring
unripe claims. The notice standard protects employees as
well, because it ensures that claims will not be foreclosed by
events that occurred outside the limitations period that did not
put the employees on notice.
The notice standard in Johnson also resolves the apparent
contradiction between the two reasonable policy stances
pressed by the litigants here. Thomas is correct that Title VII
extends to a neutral employer decision-making process that
relies on discriminatory evaluations. But Kodak is also right
[**28] that employees do not have an unfettered right to
reach back to challenge previous evaluations. The key is
whether those evaluations had tangible, concrete effects at the
time they were conducted. If the evaluation did cause
tangible, concrete harm, the notice standard requires the
injured employee to promptly bring suit to recover for those
harms. Failure to do so will render any later claim regarding
those particular harms time-barred.°
‘If, for example, a poor job evaluation resulted in a denial of
a salary increase, notice of the denial would mark the accrual point
for a pay inequity claim. Under Ricks, the statute would also begin
to run on any other harm that was the “delayed; but inevitable,
75a
[**29]
This means that an employer could be exposed to Title VII
liability for harms stemming from discriminatory evaluations
[*51] some years after the evaluations vere conducted, if the
evaluations first cause tangible harm to the employee at that
later point. Kodak argues that this puts employers in an
untenable position. We disagree, for three reasons.
First, as a matter of practicality, employers are unlikely
to rely on “stale” evaluations. The older the evaluation, the
less likely an employer would be to use that evaluation as the
basis of an employment decision. Employers’ preference for
more recent evaluations is demonstrated dramatically by
Kodak’s own PAR formula, which used only the latest three
evaluations and then weighted the most recent by a factor of
a2.
Second, the passage of time would affect employees as
well as employers. An employee who sought to challenge an
consequence” of the denial of a salary increase, Ricks, 449 U.S. at
257-58, since “[t]he proper focus is upon the time of the
discriminatory acts, not upon the time at which the consequences of
the acts became most painful,” Ricks, 449 U.S. at 258 (internal
quotation marks and emphasis omitted) (alteration in or inal)
(quoting Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th
Cir. 1979)). Ricks did not address the question whether the statute
of limitations would also begin to run on an unrelated harm
(unrelated, that is, to the denial of a salary increase) which might
later arise from the challenged employer act -- for example,
whether a plaintiff's challenge to a layoff decision based on the
poor evaluation could be time-barred because the evaluation initially
resulted in the denial of a pay increase. As we explain below, the
facts here do not require us to resolve this difficult question.
é 76a
old evaluation would bear the burden of proving that the
evaluation was discriminatory -- and the older the evaluation,
the more difficult that task would be.
Third, the standard gives concomitant advantages to
employers. It avoids forcing employees to “run to the EEOC”
each time they disagree with a performance [**30]
evaluation. As the district court aptly observed:
If we apply the time bar to plaintiff's [performance
appraisals], then we require a given plaintiff to file
EEOC charges successively for each performance
evaluation, informal feedback from a supervisor, or
office rumor, so long as these events -- even if
nonharmful in themselves -- might be informed by
racial animus and could someday contribute to a later,
harmful result. This requirement would surely disrupt
the American workplace . .
Thomas, 18 F. Supp. 2d at 134-35. Instead, the Johnson
notice standard allows employces to give employers the
benefit of the doubt, where employees suspect that an
evaluation which has yet to cause tangible harm might be
tainted by bias, and encourages them to try to solve the
problem by proving their actual worth to the employer. And
_ while the standard places an ongoing obligation on employers
to monitor their evaluation processes to ensure that they are
free from illegal bias, employers also benefit from the
opportunity to base personnel decisions on accurate, bias-free
evaluations. In any event, this sort of obligation is foreseen by
Title VII, since the [**31] statute encourages the elimination
of both obvious and subtle forms of discrimination. - See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 36
L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
77a
In arguing against the application of the Colgan rule
(which, as explained above, resembles the First Circuit
standard announced in Johnson), Kodak has presented a two-
stranded argument. The first strand is based on notions of fair
notice to the employer. The second asserts that Thomas’s
timeliness argument relies on an impermissible combination
of the equitable tolling and continuing violation doctrines.
Kodak would substitute for the accrual rule in Johnson a
rule that focuses on notice to the employer. According to
Kodak, the Colgan accrual rule makes “bad law because it
allows an employee to introduce a time-barred incident where
the employee has never previously contended, even in an
informal process afforded by the employer, that the employee
was subjected to unlawful discrimination.” Appellee’s Brief
at 17. According to Kodak, this violates “the policy
underlying Title VII [entitling] an employer . . . to some kind
of prior notice.” /d.
“~
This is not an [**32] irrational position, but Kodak cites
no authority for it. The argument calls to mind the exhaustion
rule imposed by courts in the ERISA context, see Employee
Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq.,
which requires employees to take full advantage of employer-
internal appeals processes before bringing suit to recover
denied benefits, see McMahon v. Digital Equipment Corp.,
162 F.3d 28, 40 (Ist Cir. 1998) (noting court-imposed
exhaustion rule for [*52] ERISA benefit claims). But the
analogy is inappropriate. ERISA requires employers to offer
employees a speedy appeals procedure for denied benefits.
See 29 U.S.C. § 1133 (stating that employers must “afford a
reasonable opportunity to any participant whose claim for
benefits has been denied for a full and fair review by the
appropriate named fiduciary of the decision denying the
claim”); 29 C.F.R. § 2560.503-1 (imposing time limits). Only
78a
after this process is complete does the ERISA statute of
limitations begin to run. See, e.g.,- Godfrey v. BellSouth
Telecomms., Inc., 89 F.3d 755, 759-60 (11th Cir. 1996);
Martin v. Construction Laborer’s Pension Trust, 947 F.2d
1381, 1385 (9th Cir. 1991). [**33]
In Title VII, by contrast, Congress chose not to impose a
particular employer-internal appeals procedure. Furthermore,
the statute of limitations for a Title VII claim is not tolled
while an employee exhausts any internal remedy the employer
has made available. See Ricks, 449 U.S. at 261 (“[T]he
pendency of a grievance, or some other method of collateral
review of an employment decision, does not toll the running
of the limitations periods.”); /nternational Union of Elec.
Workers v. Robbins & Myers, Inc. , 429 U.S. 229, 236-37, 50
L. Ed. 2d 427, 97 S. Ct. 441 (1976) (holding that the Title
VII statute of limitations is not tolled by a collective-
bargaining grievance procedure). Thus, a court-imposed
exhaustion requirement would not work well in the Title VII
context, because it would place employees in the position of
having to exhaust an internal appeals process of uncertain
length while also bringing suit within three hundred (or one
hundred and eighty) days of the employer’s allegedly
wrongful act.
Kodak’s position bears an even closer resemblance to one
aspect of the approach first explicated in Stoller v. Marsh,
221 U.S. App. D.C. 22, 682 F.2d 971 (D.C. Cir. 1982),
[**34] and followed by a number of other courts, see, e.g.,
Hale v. Marsh, 808 F.2d 616, 620 (7th Cir. 1986); Brown v.
City of New York, 869 F. Supp. 158, 169 (S.D.N.Y. 1994);
Woolery v. Brady, 741 F. Supp. 667, 669-70 (E.D. Mich.
1990). The Stoller court held that a plaintiff could challenge
an employer's wrongful reliance on discriminatory
evaluations, even where the plaintiff has acknowledged that
79a
the employer’s reliance itself was not intentionally
discriminatory. See Stoller, 682 F.2d at 979 (“Otherwise an
Organization could separate illegal motive from
decisionmaking responsibility, contrary to the principle that
Title VII applies to the employer as an organization.”). This
is essentially the same result that Johnson permits. See
Johnson, 840 F.2d 132 at 135, 137 (citing this portion of
Stoller).
But the Stoller court added a second part to this rule:
[A]fter preparation of employee evaluations, the
employing organization may protect itself from Title
VII liability by establishing procedures to allow
employees to screen their personnel files and to
_ remove damaging, discriminatory [**35] information.
. .. If established procedures have given an employee
a reasonable opportunity to inspect the supervisory
evaluations in his or her file, to challenge allegedly
inaccurate materials, and to have such materials
corrected or removed, and if the organization gives its
employees adequate notice that these rights may be
exercised, then it may rely in good faith on such
evaluations in making subsequent employment
decisions without violating Title VII.
Stoller, 682 F.2d at 979 (footnotes omitted). Kodak’s “notice
to the employer” argument could refer to this second half of
the Stoller rule: Kodak apparently wants to be able to rely on
Thomas’s performance appraisals, because in its view Thomas
had a reasonable opportunity to inspect the appraisals and to
challenge inaccuracies through the “Open Door” appeals
process.
80a
We can imagine advantages of the Stoller rule for both
employers and employees. Employers, of course, would be
able to limit their liability. Employees could conceivably
[*53] benefit as well, if the rule increased the likelihood that
employers would implement effective review procedures. But
we decline to adopt this rule [**36] -- which was, in any
event, implicitly rejected in Johnson -- because we think any
possible advantages would be outweighed by two serious
risks. One is the obvious risk that employers would have carte
blanche to rely on discriminatory appraisals as long as they
offered their employees an “Open Door.” Avoiding the first
risk would entail a second: courts would need to interpret
strictly the concept of “[adequate] procedures to allow
employees to screen their personnel files and remove
damaging, discriminatory information.” This would in turn
entail a degree of judicial scrutiny and interference with day-
to-day employer operations that employers would be unlikely
to welcome and which courts interpreting Title VII have tried
to avoid. See Hidalgo v. Overseas Condado Ins. Agencies,
Inc., 120 F.3d 328, 337 (Ist Cir. 1997) (noting courts’
reluctance to “‘sit as super personnel departments’” (quoting
Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir.
1991)).
The second strand of Kodak’s timeliness argument is the
claim that both Thomas and the district court have relied on
an illegitimate “hybrid” of the equitable tolling and continuing
violation [**37] doctrines. Thomas disavows any such
reliance. We make several observations in response to
Kodak’s argument.
First, the First Circuit doctrine of equitable tolling is
simply inapplicable to these facts. Some courts permit-tolling
of the statute of limitations if the plaintiff knew of a harm but
not of its discriminatory basis. See 2 Lindemann & Grossman,
8la
supra, at 1350. But our approach to equitable tolling is
narrower; First Circuit law permits equitable tolling only
where the employer has actively misled the employee. See
Mack, 871 F.2d at 185 (noting that the First Circuit’s
“narrow view” of equitable tolling reaches only “active
deception” (internal quotation marks and citations omitted));
Jensen v. Frank, 912 F.2d 517, 521 (1st Cir. 1990). There is
no allegation here that Kodak actively attempted to mislead
Thomas about her performance appraisals.
Second, there is no need to apply the continuing violation
doctrine. Commentators have labeled this doctrine “the most
muddled area in all of employment discrimination law,” 2
Lindemann & Grossman, supra, at 1351, and some courts
have gone so far as to conclude that the entire doctrine [**38]
is misguided and unnecessary, see, e.g., Moskowitz v.
Trustees of Purdue Univ., 5 F.3d 279, 282 (7th Cir. 1993).
We need not enter into that debate here. We describe the First
Circuit’s continuing violation doctrine with only as much
detail as is necessary to show that it is inapplicable to
Thomas’s claim.
The First Circuit has recognized two different types of
continuing violations: systemic violations, which “ha[ve]
{their] roots in a discriminatory policy or practice . . . [that]
itself continues into the limitation period,” DeNovellis v.
Shalala, 124 F.3d 298, 307 (ist Cir. 1997) (quoting Jensen,
912 F.2d at 523), and serial violations, which are “composed
of a number of discriminatory acts emanating from the same
discriminatory animus, [with] each act constituting a separate
wrong actionable under Title VII,” id.; see also Mack, 871
F.2d at 182-84. The systemic violation doctrine is clearly
inapposite because Thomas has not alleged that Kodak has
“an overarching policy or practice” of conducting
discriminatory evaluations. Jensen, 912 F.2d at 523. Kodak
82a
apparently believes that [**39] Thomas is inappropriately
attempting to shoe-horn her claim into the serial violation
category. This is not so. Whether a serial violation exists does
depend in part on a type of notice standard similar to the one
in Johnson. See Sabree v. United Bhd. of Carpenters, Local
No. 33, 921 F.2d 396, 402 (1st Cir. 1990) (stating that if an
earlier event had “‘the degree of permanence which should
trigger an employee’s awareness and duty to assert [*54] his
or her rights,’” then it is not substantially related to the later
event, and therefore cannot form part of a continuing
violation (quoting Berry v. Board of Supervisors of L.S.U.,
715 F.2d 971, 981 (Sth Cir. 1983))). This similarity may be
the source of Kodak’s argument. But the serial violation
doctrine, like the systemic violation doctrine, stands as an
exception to the accrual rule recognized in Johnson. The
purpose of this exception is to permit suit on later wrongs
where a wrongdoer would otherwise be able to repeat a
wrongful act indefinitely merely because the first instance of
wrongdoing was not timely challenged.. See D. Laycock,
Continuing Violations, Disparate Impact in Compensation,
[**40] and Other Title VII Issues, 49 Law & Contemp. Probs.
53, 55 (1986) (comparing the application of the continuing
violation doctrine in employment discrimination cases to its
application in an antitrust case, Hanover Shoe, Inc. v. United
Shoe Machinery Corp., 392 U.S. 481, 20 L. Ed. 2d 1231, 88
S. Ct. 2224 (1968), and observing that “obviously, United’
should not be able to continue its illegal conduct forever
because no one challenged it during World War I”); J.
MacAyeal, The Discovery Rule and the Continuing Violation
Doctrine as Exceptions to the Statute of Limitations for Civil
Environmental Penalty Claims, 15 Va. Envtl. L.J. 589, 615-
22 (1996) (describing the history and purpose of the
continuing violation doctrine); see also Sabree, 921 F.2d at
401 (discussing proper remedy).
83a
In the Title VII context, the continuing violation doctrine
applies where “a number of discriminatory acts emanatfe]
from the same discriminatory animus, [with] each act
constituting a separate wrong actionable under Title VII.”
Jensen, 912 F.2d at 522. Sexual harassment, failure to
promote, and pay inequity cases often fall into this category.
Plaintiffs [**41] in these cases experience harm from each
employer act (e.g., a harassing comment, a denied promotion,
or a smaller paycheck), for which they could recover under
Title VII. Thus, under the Johnson standard, each act could
trigger the running of the statute of limitations. The
continuing violation doctrine ensures that these plaintiffs’
claims are not foreclosed merely because the plaintiffs needed
to see a pattern of repeated acts before they realized that the
individual acts were discriminatory.
Thomas’s claim presents a different question: not whether
she is permitted to bring suit after many repeated harms, but
rather whether harm cognizable under Title VII existed at the
time she first received her performance appraisals sufficient
to mean that the notice of layoff is not the date on which the
limitations period began for her layoff claim. This question is
more appropriately addressed under the Johnson notice
standard.
We consider whether the date on which the limitations
period begins to run should be earlier than the notice of layoff
because there was earlier concerte harm to Thomas resulting
from the performance appraisals. According to Kodak’s
compensation plan, appraisal [**42] scores were intended to
affect salary levels and determine “who should be promoted,
transferred, demoted, terminated, laid off, and re-employed.”
It is not clear whether Kodak informed employees of this
intention. But even if employees were familiar with the
intended possible uses of the scores, it appears that the effects
84a
listed in the compensation plan remained abstract -- mere
possibilities, not certainties.
This was particularly true in Thomas’s case. Flannery’s
appraisals evaluated Thomas’s performance as only average
or below average. But the appraisals did not specify that
Thomas was to suffer an immediate consequence for her
alleged performance failures,? much [*55] less that they
would mechanically lead to her being laid off. Because
Thomas seeks to recover for an allegedly discriminatory
layoff, we consider whether that particular consequence was
apparent at the time Thomas received the appraisals. Cf.
Colgan, 935 F.2d at 1410, 1419-20 (finding notice lacking
even where an evaluation explicitly warned that adverse
actions would be taken if the employee’s performance did not
improve). She was not told that layoffs were impending and
” Under Ricks, we must also consider whether the appraisals led
to any other concrete harm for which the layoffs were the “delayed,
but inevitable, consequence.” Ricks, 449 U.S. at 257-58. We do not
find any evidence of such related harm in the record.
As noted above, it is not clear whether a separate, unrelated
harm would also trigger the accrual of Thomas’s layoff claim. We
need not reach this question. Assuming arguendo that unrelated |
harms would trigger accrual of Thomas’s layoff claim, accrual was
not triggered here, because Thomas’s appraisals did not in fact
result in any tangible, concrete harms at the time they were
presented to her. Although Thomas was denied some promotion
Opportunities during Flannery’s tenure, she was not told that she
lost those opportunities because of her low performance appraisals;
rather, Flannery told her she lacked the proper credentials. Thomas
was also not told that her salary would be affected by her low
scores, and indeed, it appears that her salary kept pace with the
other five CSRs throughout Flannery’s tenure as Customer Support
Manager.
85a
that her scores [**43] placed her at high risk for layoff.’°
Even if she did have this information, it would fall short of
the “crystallized” implications required under Johnson, 840
F.2d at 136, since being at risk for layoff (due to a low
ranking relative to other empluyees) and actually being
selected for layoff are two quite different things.
[**44]
Kodak emphasizes the fact that Thomas refused to sign
two of the three performance appraisals. According to Kodak,
her refusal to sign “demonstrates that she was dissatisfied
with [the appraisals! for some reason” and makes it “evident
that she then believed she had been treated unfairly.”
Appellee’s Brief at 18 n.6. A trier of fact could, but need not
necessarily, conclude that Thomas had notice of the
appraisals’ possible racial bias as soon as they were presented
to her. However, this fact does not go to the relevant question
under Johnson’s notice rule: whether Thomas had notice of
immediate, tangible consequences of her poor scores. [**45]
Kodak’s argument pertains to notice of bias rather than the
notice of harm required under Johnson. But notice of bias
alone, absent harm, is clearly
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.