# Petition for Writ of Certiorari — Simotas v. Kelsey-Seybold (No. 06-1338) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2400%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 ## 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 ran [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2400%3A1. Public record. Not legal advice.