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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0235%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for ReHearing
- **Published:** January 1, 2008

## Text

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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

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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

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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.

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0235%3A2. Public record. Not legal advice.