Petition for ReHearing — Brown v. Potter (No. 08-1091)

FILED

LD (2) APR 2 2 2099

| SUPER fe COUR AK |

md

PETITION FOR PANEL REHEARING

No. 08-1091

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543-0001

MRS. JOHNNIE L. BROWN,

PETITIONER

V.

JOHN E. POTTER, POSTMASTER GENERAL,

UNITED STATES POSTAL SERVICE

PETITIONER, JOHNNIE L. BROWN

PETITION FOR REHEARING

Mrs. Johnnie L. Brown

4851 Walnut Street

Oakland, CA 94619-2558

(510) 689-9341

TABLE OF CONTENTS

Certificate of Grounds for Panel Rehearing ..................0....ccccceeeeeeeeee l

Dtabermcest CO mts cicnccceric eee secinrirch era vinneenvensane +

PRE IIONE o....nvniesinniioresinn caches aan eiaiin ccacnnovanceesones 4

TTT TEETH HEHEHE SHEET HSE SEHE SHES ESSE EEE EEE EEE EEEEEEESEEESE EEE EEESEEEEEESESESHEESES ESE EEE

CERTIFICATE OF GROUNDS FOR REHEARING

No.08-1091

This petition for rehearing of the order denying a petition

for a writ of certiorari is presented in good faith and not for delay.

A copy of the panel decision is attached to this petition. I express a

belief based on my knowledge of the facts in this case. Specifically,

the Court overlooked an important question of Federal Law, that has

not been, but should be settled by this Court. Did the Respondents

violate Petitioner's Constitutional Rights? Yes. Petitroner's Constitu-

tional Rights was violated, due to the Respondent's disregards for the

Federal laws, prohibiting discrimination in employment.

Under Title VII, the ADA, and the ADEA, it is illegal to dis-

criminate in any aspect of employment, including: firing, compensa-

tion, fringe benefits; pay etc.

Discriminatory practices under these laws also include: ha-

rassment on the basis of race, color, religion, sex, religion, national

origin, disability or age; and retaliation against an individual for fil-

ing a charge of discrimination.

It is unlawful to discriminate against Petitioner on the Ba-

sis of Sex and Retaliation under title VII of the Civil Rights Act,

42 U.S.C. 631 et. and Age Discrimination in Employment Act

("AREA"), 29 U.S.C.63 1 et seq. The Respondents violated Peti-

tioner's Constitutional Rights by discriminating against her due to

her age and retaliation.

Title VII of the Civil Rights Act of 1964 prohibits discrimi-

nation due to sex, 41.36, disability and medical condition, national

origin, race, color religion, physical disability, mental disability, also

(FEDA). The Respondents violated Petitioner's Constitutional Rights

by their discrimination due to her sex, and mental and physical dis-

abilities.

In Addition, Petitioner's Constitutional Rights were violated

when she was not allowed to continue her employment to the full

extent. Petitioner was subjected to continued harassment, disparate

treatment and a hostile work environment, and through the Respon-

dents discriminatory acts of abuse, Petitioner was forced into invol-

untary retirement., which constitutes a constructive discharge.

Petitioner's Constitutional Rights were violated when she was

not allowed to utilize the number of employees to get her job done as

1

the other supervisors. When she was forced to work short.

Petitioner's Constitutional Rights were violated when she was

forced to help the employees work in addition to performing her su-

pervisory duties in an effort to avoid being removed from the Postal

Service, and the other younger male and female supervisors were

favored over her.

Petitioner's Constitutional Rights were violated when the

Respondents refused to accommodate Petitioner in regards to her

disability, by allowing Arlene Colbert to work on a light duty assign-

ment and Petitioner's request was denied. The (ADA) of 1990 and

Section 503 and 504 of the Rehabilitation Act of 1973 and Title 42

U.S. Code 1981, prohibit discrimination due to Petitioner's disability.

The ADA and the Rehabilitation Act defines, is similar but

not identical, the protected category of an "individual with dis-

ability." The ADA defines "individuals with disabilities," and the

Rehabilitation Act defines an "individual with disability" (labeled in

the original version of the Act as an "individuai with handicaps"), as

including any individual who: 1. Has a physical or mental impair-

ment that substantially limits one or more of such person's major life

activities: 2. Has a record of such an impairment; or 3.

Is regarded as having such an impairment. In applying this

definition, three questions must be generally be analyzed: (1) is there

an impairment?: (2) does the impairment affect a major life activity?;

and (3) does this effect rise to a substantial limitation? Petitioner’s

mental and physical disabilities can be applied to this definition.

Petitioner’s Constitutional Rights were violated when she

was forced to work in a hostile work environment from 1992 to

1999, and their discriminatory abuse did in fact cause Petitioner’s

total mental and physical disability. Petitioner is continuing to expe-

rience the disassociation episodes, the latest episode was on April 1,

2009 when she had an encounter with a woman, she made several

embarrassing statements and was unable to eat or sleep for two days,

until she contacted the person to apologize . Also, for the aforemen-

tioned reason. Petitioner is unable to hold a job and she is fearful of

being in any social gatherings.

Petitioner’s Constitutional Rights were violated when her

Merit Increase and Bonus Pay was denied. And all other supervisors

in her unit was given their merit increase and Bonus pay, except for

Francis Webb who had been off for ten years.

2

Petitioner’s Constitutional Rights were violated when she

was forced to work sacks of mail only, while Supervisor, Louis

Buckingham and Supervisor Arlene Colbert were not forced to work

sacks of mail only.

Petition’s Constitutional Rights were violated through the

Respondent’s continued discriminatory acts and abuse has caused

Petitioner’s physical and mental impairment that limits one or more

of her major life activities.

According to the ADA regulations , physical impairment

includes, any physiological disorder, or condition, cosmetic disfig-

urement or anatomical loss affecting one or more of the following

body systems: neurological, musculoskeletal, special sense organs,

respiratory (including speech organs) cardiovascular, reproductive,

digestive genito—urinary, heroic and lymphatic, skin and endocrine.

A mental impairment includes any mental or psychological disorder,

such as mental retardation, organic brain syndrome, emotional or

mental illness, and specific learning disabilities. Petitioner’s major

life activities continues to become more substantially limited on a

daily basis. ;

These cases are a casual link between Petitioner’s case. Head

v. Glacier Nw., Inc. 413 F3d 1053, 1060, 16 AD 1606 (9th Cir. 2005)

(“interacting with others is a major life activity”) Jacques v. DiMar-

zio, 386 F.3d 192, 200 (2d Cir. 2004) (“interacting with others is a

major life activity under the ADA); Ray v. Kroger Co., 264 F. Supp

2d 1221, 1226, (S.D. Ga.) aff.’d 90 Fed Appx. 384 (11t Cir. 2003).

Petitioner’s mental impairment is substantially limited in

regards to interacting with other, because her disassociation episodes

has continue from 1999 to present.

STATEMENT OF FACTS

No. 08-1091

On March 30, 2009, this court issued its decision in this case,

attached to this petition. For the reasons stated above Petitioner is

requesting that a Rehearing be granted. Petitioner’s Attorney, John L.

Taylor’s fee for representation of Petitioner was $20,000.00. Peti-

tioner did not have the funds available.

ARGUMENT

It is clear that Petitioner’s Constitutional Right has been

violated due to the Respondents continued disregard for Federal laws

prohibiting Discrimination in employment.

The Respondent’s violation of Petitioner’s Constitutional

Rights, forced her into involuntary retirement, causing her to loose

her job in 1999, and she can never be gainfully employed again.

Also, The Supreme Court has stated that the word major means im-

portant, but that major life activities are not limited to those aspects

of a person’s life that have a public, economic, or daily character.

See: Bragdon v Abbott, 524 U.S. 624, 638-39, (1998)

The EEOC regulations gives us examples of major life activi-

ties, caring for oneself, performing manual tasks, walking, seeing,

hearing speaking, breathing , sleeping, eating, drinking, toileting,

controlling one’s bowels, waste elimination, learning and working.

This list is illustrated and not exclusive. EEOC guidelines also lists

sitting, standing, lifting, reaching, as well as mental and emotional

processes such as thinking, concentrating, interacting with others,

and reading and writing. In addition to those examples given by the

EEOC, case law is largely consistent in fmding the following to be

major live activities under ADA: caring for oneself, bathing and

dressing. Petitioner is substantially limited to one or more of her life

activities.

The following information are examples of how Petitioner’s

mental and physical impairments substantially limits Petitioner’s life

activities. Caring for oneself, it is difficult at times for Petitioner to

care for herself. Example, cooking, many days and nights she will

go to bed without eating because she lacks the energy to prepare her

food. Petitioner, has difficult performing manual tasks such as, house

4

cleaning, washing, ironing etc. She often get assistance every two

weeks to perform those tasks. Petitioner has difficulty walking and

running outside of her home. Prior to Petitioner’s mental and physi-

cal impairments she would go for a walk in connection with some

running for at two miles on a daily basis. She has difficulty seeing

hearing and breathing at times. Breathing, many times Petitioner has

difficulty breathing when her stress level has increased due to every

day problems. She has feelings of choking when eating and drinking

at times.

Doe v. County of Centre, 242 F.3d 437, 447 3d Cir. 2001)

decided under Title R. Toyota Motor Mfg., 534 U.S. at 197, (stating

that major live activities include “such basic abilities as walking,

seeing and hearing).

Petitioner has difficulty sleeping, many times she contin-

ues to stay awake through the night. Petitioner has difficulty eating

and drinking. She is required to choose very carefully the kind of

food that she eat, the food often will not digest. Also, Petitioner has

a problem when drinking water or other liquids. Petitioner often

vomits rather than digesting her food. Toileting, Petitioner’s irritable

bowel syndrome has substantially limited the major life activity of

bowel control. See Workman v. Frito-Lay, Inc. 165 F.3d 460, 8 AD

1761 (6th Cir. 1999). (waste elimination, processing and cleaning

one’s own blood and eliminating body waste is a major life activ-

ity under A. Petitioner’s learning and work life activities is totally

limited because she will never be able to hold a job and her learning

is affected due to her being unable to concentrate. Also, see Amir v.

St. Louis Univ. 184 F.3d 1017, 1027, (8th Cir. 1999): Phillips v. Wal-

Mart Stores Inc. 78 F. Supp. 2d 1274, 1282 (S.D. Ala. 1999).

Petitioner also, has difficulty sitting and standing for long

periods of time. When Petitioner prepare her meals for herself she

is required to rotate between sitting and standing, she must sit for

breaks in order to prepare a meal for herself. Lifting and reaching,

Petitioner is unable to do no heavy lifting, and when she reaches to

high she often get dizzy and she might fall. Petitioner needs extra

time for thinking, when speaking or interacting in public, she is

required to prepare her speech ahead of time, otherwise she will get

confused and will be unable to continue speaking.

Petitioner has difficulty concentrating, when she is talking

she often loose her thought in the middle of the conversation. Peti-

5

tioner has difficulty bathing and dressing, many times she will go

without bathing and dressing for several days, because she lacks the

energy to get out of bed, and the long length of time that it takes to

bath and dress irritates petitioner.

These cases are a‘casual link between Petitioner’s case. For-

est City, 175 F.3d at 151; see also, Schwertfa.ger, 42 F Supp. 2d at

1359. (fording dressing oneself to be a major life activity, but fmding

no substantial limitations); McKey v. Occidental Chem. Corp. 956 F.

Supp. 1313, 1318 (S.D. Tex 1997).

In addition, Petitioner’s Constitutional Rights were violated

by the Respondents because the following list of major life activities,

such as eating, sleeping, drinking, sitting, and performing manual

tasks that are central to daily life has been substantially impaired by

the Respondents’ disregard for the Federal Laws and their contin-

ued discriminatory abuse to Petitioner for almost a decade. Coghlan

v. H.J. Heinz Co., 851 F. Supp. 808, 814 (N.D. Tex 1994) see also

EEOC Enforcement Guidance on Americans with Disabilities Act

and Psychiatric Disabilities, No. 915.002 (march 25, 1997). See

Fraser, 342 F.3d at 1039-40: Waldrip v General Elec. Co., 325 F.3d

652, 655 (Sth Cir. 2003).

Petitioner’s Constitutional Rights were violated when the Re-

spondents unlawfully discriminated against on the bases of Sex and

Retaliation Under the Title V11 of the Civil Rights Act, 42 U.S.C.,

631 & the Age Discrimination under ADEA 29 U.S.C., 631 et seq.

The Respondents discriminated against Petitioner due to her

age, when supervisor, Buckingham (DOB) 09-02-48 and Francis

Webb (DOB) 12-22-51), was allowed to change their Scheduled

Days Off and Petitioner’s request was denied. Petitioner’s Consti-

tutional Rights were violated when the Respondents discriminated

against her due to her sex when the younger male supervisors, Joe

Perkins and Louis Buckingham was treated more favorably then

Petitioner, when they were allowed to utilize more employees to get

their job done. The Respondents violated Petitioner’s Constitutional

Rights when they retaliated against Petitioner for EEO activity by

forcing her to work short, and by continuing to instruct her to work

sacks of mail only. Section 704 of Title VII prohibits retaliation

against an employee for opposing unlawful discrimination. McGin-

est v GTE Serv. Corp. 360 F.3d 1103, 1124, (9th Cir. 2004) citing 42

U.S.C. 200-e3(a).

Petitioner’s Constitutional Rights were violated when she

was subjected to continued harassment, disparate treatment and a

hostile work environment, and by the Respondents discriminatory

acts and abuse, petitioner was forced into involuntary retirement,

which constitutes a constructive discharge. Also, due to the Respon-

dents disregard to Federal Law, Petitioner’s working conditions

caused her life to become a living hell and her health deteriorated,

forcing her into involuntary retirement.

City of Moorpark v. Supreme Court (1998) 18 Cal. 4th Cir.

1143, 11161, 77 Cal Rptr., 2d 445, 959, p.2d 752.

Petitioner’s Constitutional Rights were violated when the

Respondents forced her to work under a hostile environment, from

1992-1999 and the emotional distress caused by Petitioner’s working

conditions resulted in Petitioner’s total mental and physical disabili-

ties The facts in this case is similar to the case of Schmidt v. Safeway

Inc. M. Or. 1994) 864 F. Supp. 991, 997. Faust v. California Portland

Cement Co. (2007) 150 Cal. App. 4th 824, 887, 58 Cal. Rptr..3d 729.

Petitioner’s Constitutional Rights were violated when the

Respondents refused to accommodate Petitioner in regards to her

mental disabilities, when Sr. MDO. Mr. Nathan Griffin would not al-

low Petitioner to work on a light duty assignment, while he approved

Supervisor, Arlene Colbert’s request and he allowed her to work on a

light duty assignment.

Petitioner’s Constitutional Rights were violated when the Re-

spondents denied Petitioner’s merit increase and EVA pay, by using a

letter of warning for an accident, which did not relate to Petitioner’s

performance, Title VII of the Civil Rights act of 1964 prohibits re-

taliation against and individual for filing a charge of discrimination.

In regards to the major life activity of thinking & reading:

See Head, 413 F3d at 1061, Shaver v. Independent Stave Co.,

350F.3d 716, 720-721 (8th Cir. 2003); Nawrot v. CPC, Int'l, 277 F.3d

896, 306, 903, 905,(7th Cir. 2002). In regards the major life activity

of learning: Bercovitch v. Baldwin Sch., Inc. 133 F3d 141, 155 (1St

Cir. 1998) (educational claim under the Rehabilitation Act) 113 F.

Supp. 2d at 1329. In regards to the major life activity of concentrat-

ing: See, Gagliardo v. Connaught Labs., Inc. 311 F .3d 565, 569, (3rd

Cir. 2002) (suggesting that concentrating and remembering may be a

part of the more general activity of “cognitive functions”).

The Supreme Court has suggested that manning may be a

7

major life activity, Sutton v. United Air Lines, Inc. 527, 488, 9 AD

673 (1999) ( “one has a disability, if notwithstanding the use of cor-

rective device, that individual is substantially limited in major life

activity. For example, individuals who use prosthetic limbs or wheel-

chairs may be mobile and capable of functioning in society but still

be disable because of a substantial limitation on their ability to walk

or run. Petitioner’s physical and mental Impairments has substan-

tially limited her ability to r uz, since she walked and sometimes ran

prior to her disability.

In addition, most of the major life activities that are central

to Petitioner’s daily life has been substantially impaired due to the

Respondents’ disregard to Federal laws.

CONCLUSION

The Petition for Panel Rehearing should be granted.

Respectfully Submitted.

of i

Mrs. Johnnie L. Brown,

Petitioner

4851 Walnut Street

Oakland, CA 94619-2558 April 24, 2009