Reply Brief — Malladi v. West

No. 98-1054 Shoes tae

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

VISALAKSHI MALLADI,

Petitioner,

Vv.

Toco WEST, JR.,

in his official capacity as Secretary,

Depariment of Veterans Affairs,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Avpeals

for the Eleventh Circuit

REPLY BRIEF OF THE PETITIONER

ALVIN T. PRESTWOOD *

VOLZ, PRESTWOOD & HANAN, P.C.

P.O. Box 1910

Montgomery, AL 36102

(834) 264-6401

* Counsel of Record

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

1,

QUESTIONS PRESENTED FOR REVIEW

Whether the trial judge’s refusal to reopen seven (7)

EEO complaints underlying a global settlement agree-

ment violated this Court’s Position in Raley v. Ohio,

360 U.S. 423 (1959)?

Whether the trial judge incorrectly applied the

McDonnell Douglas “circumstantial evidence” analysis

to the Plaintiff's Title VII retaliation claim instead of

the “direct evidence” analysis?

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ................ i

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TABLE OF AUTHORITIES

- Cases: Page

Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970)........ 3

Heckler v. Community Health Services, 467 U.S.

5 GG ” } Eapmemgmmmnncmenegnesia emt: 3 ub ES eT Raat PRG EE 2,3

Humphrey v. Erie R. Co., 116 F. Supp. 660 (DC

TEE: SIE D icciicrs'wncincsecrsncediesinaiecasnaigdbedbamecpieabeaake 8

McDonneli Douglas Corp. v. Green, 411 U.S. 792

CRITIIED siecricctséazasnsninnababaniapeaiieccnshanapaneacaaunamuaae 4

Raley v. Ohio, 360 U.S. 428 (1959) ............000....2..... 2 |

Rollins v. State of Florida Dept. of Law Enforce- |

ment, 868 F.2d 397 (11th Cir. 1989) ~.......020....... 8, 4 |

St. Regis Paper Co. v. United States, 368 U.S. 208

CRIED bivsianck ss ciceesccp ne uaeaaan cb eesenelanienbseniicn 3 '

Standard Oil Co. v. Myers, 232 Ala. 662, 169 So.

| BE |) SR aceite mate a Ee te Fie FA 3

Valley Properties Inc. v. Strahan, 565 So. 2d 571

ERO RIED sciensiscnconnivencsasigeyiceonaabiaeuetaainstaeasae 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

No. 98-1054

VISALAKSHI MALLADI,

° Petitioner,

Toco WEST, Jr.,

in his official capacity as Secretary,

Department of Veterans Affairs,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

REPLY BRIEF OF THE PETITIONER

OPINIONS BELOW

The per curiam order of the court of appeals (Pet.

App. la) is unreported. The opinion of the district court

(Pet. App. 2a-59a) is reported at 987 F. Supp. 893.

JURISDICTION

The judgment of the court of appeals was entered on

July 16, 1998. A petition for rehearing was denied on

October 2, 1998 (Pet. App. 61a). The petition of a writ

of certiorari was filed on December 30, 1998. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

2

STATEMENT

This reply brief is filed by the Petitioner in response to

the “Brief for the Respondent in Opposition”, and is filed

pursuant to Supreme Court Rule 15.6., which provides

that any petitioner “may file a reply brief addressed to

new points raised in the brief in opposition. . . .”

At page 3 of the Respondent’s brief, he contends that

“the VA... assigned a committee of doctors culled from

other VA offices to conduct the external review” and cites

certain negative findings of that “committee.” Actually,

the review team consisted of only one physician and one

coordinator who was a recreation specialist and not a

physician. Pet. p. 4. As to the summarized “findings” of

that team alluded to at page 3 of the Respondent’s brief,

the record reflects that Dr. Malladi responded to and re-

futed each of them. (R3-62, Exh. A, pp. 37-40, Atch

27). The team’s references to complaints about Dr.

Malladi’s conduct were refuted when the medical center

director, on December 20, 1995 and on January 22, 1996,

provided memoranda stating that there were no complaints

on file about her conduct. (/d., Atch 29).

ARGUMENT

The decision of the courts below should be visited by

this Court as being inconsistent with its prior decisions

upon the issues of contract law and the “direct evidence”

test.

1. In his brief in opposition, the Respondent has at-

tempted to distinguish the case of Raley v. Ohio, 360

U.S. 423 (1959), by pointing out that in Raley, the peti-

tioner had been subjected to criminal prosecution and had

sought to invoke rights under the Fourteenth Amendment.

Actually, Raley stands for the broader proposition that

government should not be allowed to achieve a goal by

resorting to tactics that constitute “active misleading.”

(Id. 360 U.S. at 438). This principle was also discussed

in Heckler v. Community Health Services, 467 U.S. 51,

3

61 (1984), where this Court acknowledged that the gov-

ernment could be subjected to estoppel principles where

citizens countervailing interests in a “minimum standard

of decency, honor, and reliability in their dealing with

their Government” were involved. The Court in Heckler

quoted inter alia, from the case of Brandt v. Hickel, 427

F.2d 53, 57 (9th Cir. 1970), to this effect that “To say

to these appellants, ‘the joke is on you. You shouldn’t

have trusted us’, is hardly worthy of our great govern-

ment.”

In the instant case, all elements of estoppel are present,

because the Petitioner surrendered her rights under seven

(7) EEO claims in return for the government’s promise

to reopen them if it did not discharge its responsibilities

under the agreement. The Equal Employment Opportu-

nity Commission found, and the district court, albeit reluc-

tantly, agreed, that the VA failed to discharge its obliga-

tion to provide management training to Dr. Malladi. The

resort to elements of law relating to breaches of contract,

as the lower courts have done, has effectively supported

the VA in its active misrepresentation to Dr. Malladi. As

Justice Black has said in his dissenting opinion in St.

Regis Paper Co. v. United States, 368 U.S. 208, 229

(1961): .

“Our Government should not, by picayunish haggling

over the scope of its promise, permit one of its arms

to do that which, by any fair construction, the Gov-

ernment has given its word that no arm will do.”

Finally, even if the courts do elect to apply the law of

contracts rigidly, it is generally held that misleading rep-

resentations, even if innocently made, are sufficient to in-

validate an agreement. See cases cited at 71 ALR 2d

118. Humphrey v. Erie R. Co., 116 F. Supp. 660 (DC

NY 1953); Valley Properties Inc. v. Strahan, 565 So. 2d

571 (Ala. 1990); Standard Oil Co. v. Myers, 232 Ala.

662, 169 So. 312 (1936).

In rejecting the Petitioner’s claims of retaliation in this

case, the lower courts have relied upon Rollins v. State of

4

Florida Dept. of Law Enforcement, 868 F.2d 397, 401

(11th Cir. 1989). The Rollins case is clearly distinguish-

able from this case, because the court there noted that

Rollins had “disrupted the workplace by repeatedly mak-

ing spurious claims of racially disparate treatment in an

extremely hostile and antagonistic manner.” 868 F.2d at

398. (Emphasis added). There is absolutely no evidence

in this case that Dr. Malladi ever acted in “an extremely

hostile and antagonistic manner.” As to the volume of

her complaints, she waives what she does not file. The

VA obviously did not view her first seven (7) charges as

frivolous, because it settled them on terms favorable to

Dr. Malladi (Pet. App. p. 6a), and the trial court has

acknowledged that she made out a prima facie case of

retaliation in her final two charges. (Pet. App. pp. 49a-

50a).

2. At pages 8 and 9 of his brief, the Respondent ar-

gues that the lower courts correctly~applied the indirect

evidence, burden-shifting analysis of McDonnell Deuglas

Corp. v. Green, 411 U.S. 792 (1973). In so doing, he

argues that the site visit reference to the EEO filings con-

tain “merely passing mentions” of them, and that such ref-

erence “in no way constitutes direct evidence that the few

references to petitioner’s EEO complaints contained in the

reports themselves influenced this action.” While that

argument might have been appropriate to present to a

jury, it widely misses the mark upon the question of the

issuance of a summary judgment. At the very least, the

evidence presented regarding the effect of the EEO filings

in the site visit report upon the treatment received by

Dr. Malladi was due to be presented to a jury.

The trial court has conceded that “the request for the

site visit and the site visit itself, began the steps that led

to Malladi’s detail, to the negative site visit team report,

and to her reduction in pay, all of which no doubt had a

serious impact on the terms and conditions of her em-

ployment.” (Pet. App. p. 46a). A review of the evidence

ereeeeeiiaitiiiiiiiiiiiiiaiiiiiiii

5

regarding the site visit report’s reference to the EEO fil-

ings and its effect on the VA’s decision to detail and

transfer Dr. Malladi reveals the following facts:

In spite of Dr. Malladi’s successful performance on a

recent review by the Joint Commission on Accreditation

of Healthcare Organizations (“JCAHO”), and in spite of

her recent “high satisfactory” to “outstanding” proficiency

ratings, the medical center director requested the external

review or site visit, which was conducted on December

14-15, 1995. (R3-62, Exh. A, pp. 1-2; R2-48, Exh. D,

Atch 6). The stated purpose of the external review “was

to review the clinical and administrative operation of the

PM&RS Service, employee-management concerns, and to

make recommendations to improve total service operation

and morale.” (Jd.) Prior to their arrival on station at

the TVAMC, the program reviewers, Dr. Leigh Anderson

and Mr. John Jacobson, requested among other things,

“Tclopies of all formal complaints, reports of contact, or

grievances filed in the last 3 years . . . as they relate to

the duties of the chief of PM&RS or other PM&RS staff.”

(R3-62-29, Exh. D). Upon their arrival at Tuskegee, the

agenda established for their visit clearly indicates that they

met with Dr. Tirado, the EEO manager at Tuskegee

VAMC, immediately after they met with the medical

center director, the chief of staff and the associate direc-

tor (the “Triad”), and prior to their meeting with Dr.

Malladi. (R3-62-29, Exh. A, Atch 24). John Jacobson

testified that they met with Dr. Tirado and that “[sJhe

basically briefed us, I believe, on the history of the EEO

complaints.” (R3-62-29, Exh. E, p. 40).

Arthur Edwards, Chief of Human Resource Manage-

ment, testified that Dr. Tirado was present at the Decem-

ber 14 meeting with the on-site team because the team

“wanted to review some EEO records.” (R3-62-30, Exh.

F, p. 14). Dr. Kahane, the Chief of Staff, testified that

he “did not recall” any conversation about Dr. Malladi’s

EEO complaints. (/d., Exh. G, p. 107). Dr. Kahane, how-

ever, also testified that he did not think that EEO mate-

6

rial, which he described as “prohibited material” should

have been transmitted to the team members before their

arrival. (/d., p. 107). Anderson’s request, however, had

clearly sought this information. (Jd., Exh. D). More-

over, “summaries of EEO complaints filed by Dr. V. Mal-

ladi October 1, 1992 to present” were provided to the on-

site team with a letter from Mr. Clay, Medical Center Di-

rector, to Dr. Anderson dated December 1, 1995, some 13

days before the on-site team arrived, in which Mr. Clay

was apparently responding to Dr. Anderson’s request for

information. (R2-49, Exh. D, Atch 5, p. 2).

The site visit was called for by the TVAMC Manage-

ment without any internal focus review and without dis-

cussing any deficiencies or complaints with Malladi. Sum-

maries of all her EEO cases were sent to that team even

before their arrival at TVAMC. The team’s report did i

not verify the statistics, did not verify the negative com-

ments, and did not include any positive comments made

by staff members regarding Malladi and her leadership.

Malladi wrote a response to the team’s report, (R3-62,

Exh. A, pp. 37-40, Atch 27), and, under dates of Decem-

ber 20, 1995 and January 22, 1996, the medical center

director provided Malladi with two memoranda stating

that there were no complaints on file against her (id.,

Exh. A, p. 38, Atch 29), a fact that directly refuted the

site visit report regarding complaints from Malladi’s sub-

ordinates.

After adopting language strongly critical of the EEO

filings, the site review report recommended the removal

of Malladi from her position. (R2-49-43). Kahane rec-

ommended her permanent reassignment based on the re-

port. (R2-49, Exh. C, Atch 27). The Medical Center

Director, Mr. Jimmie L. Clay, detailed Malladi away

from her service based on the site review report and a

memoranda from some members of Malladi’s staff (R2-

49, Exh. D, Atch 8), then permanently reassigned her.

(R2-49, Exh. D, Atch 9),

ee Se ee

7

The portion of the site visit report that refers to the

EEO filings and is characterized as “merely passing men-

tion” by the VA in its brief in opposition, and which is

basically treated as irrelevant by the lower courts, is re-

ported by the district court, at page 8a of the appendix

as follows:

“In discussion with the Chief of Staff, Medical

Center Director and the Associate Director, a strong

concern was expressed regarding the inability of the

Medical Center leadership to gain cooperation with

the current Chief of PM&RS in resolving issues pre-

cipitating the site visit. This concern stems from the

recent history of EEO complaints filed by the Chief,

PM&RS. Since December of 1992, the Chief,

PM&RS has registered a total of 12 EEO complaints

against the Director, Chief of Staff, and Associate

Director (triad) alleging discrimination on the basis

of race, disability and gender. In review of EEO

records, the majority of filings stem from the Chief’s

perceived feeling of discrimination relating to the

refusal by triad to provide additional physician staff-

ing to PM&RS. Seven of the complaints have been

resolved via a global settlement agreement signed

March 30, 1995. The Chief has continued to reg-

ister complaints to the EEO Commission based on

perceived reprisal from the triad in relation to her

original complaint. As a result of the continued fil-

ing, the members of the triad feel incapacitated in

providing the Chief with adequate direction and as-

sistance in manageemnt of her service. In discussion

with Dr. Torrado, the Staff Assistant for EEO, this

continued filing has also burdened the EEO system

at the hospital and resulted in excessive provision of

resources by the EEO staff to continually review Dr.

Malladi’s complaints.

(Emphasis added). When this language is viewed in the

light of the site review team’s recommendation to detail

and transfer Dr. Malladi, followed by a chief of staff rec-

8

ommendation to do so, based on the review team’s report,

the direct evidence scenario is complete, particularly when

the actions of the medical center director are also based

upon the report and the ensuing recommendation.

CONCLUSION

It is respectfully submitted that the lower courts have

erred in allowing the VA to escape its responsibility under

an agreement it entered into with the Petitioner, and that

they have further erred in applying the indirect burden-

shifting McDonnell Douglas analysis to a case that clearly

involves direct evidence.

Since the decisions of the lower courts are inconsistent

with this Court’s prior decisions, it is respectfully sub-

mitted that this Court should grant its writ of certiorari

and direct the lower courts to order a trial of this cause.

Respectfully submitted,

ALVIN T, PRESTWOOD *

VOLZ, PRESTWOOD & HANAN, P.C

P.O. Box 1910

Montgomery, AL 36102

(334) 264-6401

Dated: April 16, 1999 * Counsel of Record