Petition for Writ of Certiorari — DeBose v. Secretary of the Army

Court, 0.8.

PILED

NO. 9 8110 De

Supreme Court of the United States

October Term, 1998

Judy M. DeBose,

Petitioner

United States Department of The Army, MPW Stone,

Secretary, and Togo D. West, Jr., Secretary,

Respondents

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Ermence DeBose-Parent

1523 Polymnia Street

New Orleans, Louisiana 70130

(504) 523-8136

Attorney For Petitioner

CORRECIED COPY

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

FLEETS PE Oy POD nee a WEE ta RLY

pee at Ft

(1)

(2)

(3)

i

QUESTIONS PRESENTED

Once the Plaintiff has established a prima facie case

of racial discrimination, can a decision by the District

Court on discriminatory employment practices be

rendered, that is not erroneous or contrary to law,

without ever reaching the question of whether the

Plaintiff has demonstrated, by competent evidence,

that the Defendant’s non-discriminatory reason for

her adverse employment action was a pretext?

Whether a District Court’s finding of no prohibited

racial motivation sufficient to violate Title VII can

be upheld where the court completley discounts the

Plaintiff's testimony on the subject of racial animus

but, does not discount the testimony of Plaintiff's

white co-workers who clearly establishes, by a

preponderance of the evidence, racial animus played

a role in Plaintiff's supervisor’s dealings with her and,

establishes that racial animus had a determinative

influence on Plaintiff's hostile work environment and

subsequent wrongful discharge.

Whether the finding of the District Court that the en-

tire testimony of the Plaintiff regarding racial animus

be held to be completely discounted and incredible,

is clearly erroneo: where the court bases its decision

on the statements a:legedly not being made before

trial and because of the court’s position that the

statements were “not made in Plaintiff's presence.”

—— ee

ii

PARTIES TO THE PROCEEDING

Plaintiff represented in this Brief is an African-

American female who was once a federal employee with the

Defendant, the Department of the Army who is the only

Defendant remaining in this action. Proceedings against five

(5) other Defendants, Colonel Richard V. Gorski, Colonel

Michael Diffley, Lieutenant Colonel James Hall (all of the

front office) Marvin T Huntsman, Comptroller and Carolyn

P. Saporito, Chief Management Analysis Branch, all in their

official capacities, were dismissed by the District Court and

not challenged on appeal because the proper party to be nam-

ed in the civil suit by a federal employee is the Department

Head, leaving Defendant M.P.W. Stone, Secretary, (named

in the first civil suit) and Togo D. West, Secretary, named

in the second civil suit.

Defendant—Respondent is the Department of the Army

iii

TABLE OF CONTENTS

Page

Questions Presented for Review. . . .. . . . . . . i

Parties to the Proceedings. e ii

— — —U— ——— 111

—8 X W ⁵ . ̃ ie —— vi

/ Ü—%— ̃ g %⅛«⁰cd!l.... 1

r 1

Constitutional Provision Involved. . . . . . . . . . 2

— —H— —— ——̃—%—ĩ6ð— 2

Reasons For Granting The Writ. . . .. . . .. . . . . 5

I. The District Court and the Fifth Circuit Court of

Appeals held that the Defendant articulated a

legitimate, non-discriminatory reason for removing

Plaintiff. However, neither the Magistrate for the

District Court nor the Fifth Circuit Court of Appeals

even addressed the question as to whether Plaintiff

had demonstrated, or had been afforded an opportuni-

ty to demonstrate that the Defendant’s reasons for her

removal was a pretext for the intentional discrimina-

tion. Because the District Court’s decision did not en-

compass this important criteria, it is clearly erroneous

, Midis — 5-10

iv

TABLE OF CONTENTS (continued)

II. The District Court’s findings that no prohibited

racial animus existed is clearly erroneous because she

discounted Plaintiff's testimony as to Saporito mak-

ing racial statements in her presence, but did not dis-

count the testimony of Saporito’s white subordinates

that establish, by preponderance of the evidence, that

Plaintiff's race played a role in Saporito’s dealings

with her and, established that Plaintiff's race had a

determinative influence on Plaintiff's hostile work en-

vironment and subsequent wrongful discharge. Thus,

the prohibited racial animus was established by Plain-

tiff through her co-workers’ testimonies and the lower

court’s decision is erroneous and must be reversed.

III. The District Court discounted Plaintiff's testimony

and held that racial slurs were not used in her

presence because Plaintiff testiffied to one racial state-

ment that she had not mentioned prior to trial. This

was the major basis for the court’s finding of no racial

animus. Because Plaintiff had, in fact, recounted all

the other racial statements prior to trial in discovery

responses and deposition (App. pp. A26 - A38) the

lower court’s decision is clearly erroneous and must

Page

10,11

v

TABLE OF CONTENTS (continued)

APPENDIX

Judgment of the United States Court of Appeals

for The Fifth Circuit On Petition For Rehearing

WENGE CORSE ˙ .

Judgment of The United States Court of Appeals

for The Fifth Circuit Filed July 24, 1990...........

Order of The United States District Court For

The Eastern District of Louisiana Filed

I Te. AddZdd

Report and Recommend ation of the Magistrate

of The United States District Court for the

Eastern District of Louisiana Filed June 25,

A Portion of Plaintiff's Answers to Defendant's

Interrogatories During Pre-trial Discovery

Mailed March 15, 1998... . . .: :. . .. .

Excerpts From Plaintiff's Deposition Taken May

2, 1996 On Plaintiff's Answers To Defendant's

— —

Page

vi

TABLE OF AUTHORITIES

Cases Cited: Page

McDonnell Douglas Corp. v. Green 411 U.S. 792, 36

oe RE aN ae Oe 6

Rhodes v. Guiberson Oil Tools, T5F.3d 989 (5th Cir.

Witt v. Roadway Exp., 880 F. supp. 1455 O. Kan. 1995). 12

Brown v. East Mississippi Elec. Power Ass 'n, 989 F.

. ——T—T—VTVTdTCVdT—T— 12,13

Other Authorities Cited:

Unlawful Employment Practice, 32 ALR Fed. 7

PETITION

Judy M. DeBose petitions for a writ of certiorari to

review the judgment and opinion of the United States Court

of Appeals for the Fifth Circuit and the judgment and opi-

nion of the United States District Court For the Eastern

District of Louisiana.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit on the appeal and rehearing (97-31306) is

reproduced at pages Al - A5 of the Appendix and not reported.

The opinion of the District Court (92-2774 CW, 94-0151) is

reproduced at page A6 of the Appendix. The Report and

Recommendation of the Magistrate recommending the

dismissal of Plaintiff's claims, at her cost, is reproduced at

pages A7 - A23 of the Appendix (cited hereinafter as the

Magistrate’s Report).

STATEMENT OF JURISDICTION

The Judgment of the Fifth Circuit on appeal was

entered on July 24, 1998 and rehearing was denied October

1, 1998. This Court has jurisdiction under 28 U.S.C. Section

1254(1). Jurisdiction of the Fifth Circuit was proper pursuant

to 28 U.S.C. Section 1291 and jurisdiction of the District

Court was proper pursuant to 28 U.S.C. Section 1331 and

Section 1343.

2

CONSTITUTIONAL PROVISION INVOLVED

This case involves a violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. Section 2000e-2(aX1) which pro-

vides, in pertinent part:

it is an unlawful employment practice for an

employer...to discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

race, color, religion, sex or national origin.”

STATEMENT OF THE CASE

. Procedural History:

On or about March 8, 1971, Plaintiff commenced

employment with the Defendant, Department of the Ar-

my, United States Army Corps of Engineers, New

Orleans District (Corps of Engineers), and remained con-

tinuously employed with the Defendant in various

capacities, rising to the position of Finance and Accoun-

ting (F&A) Branch Chief. On or about May 5, 1989,

Plaintiff began her employment as a Management

Analyst, GS-343-11, in the Management Analysis

Branch under the direct supervision of Carolyn Saporito,

the discriminating supervisor, following a demotion from

General Schedule Grade 12 (GS-12) to General Schedule

Grade 11 (GS-11) and a transfer out of the F & A Branch.

Prior to this time, Plaintiff's work record and perfor-

mance had been exemplary.

3

On or about, December 2, 1991, Plaintiff filed an Equal

Employment Opportunity (EEO) complaint and requested a

hearing before the United States Army Civilian Appellate

Review Agency (USACARA). The complaint charged both

Carolyn Saporito and the Corps of Engineers with conduct

constituting racial discrimination, satisfying the re-

quirements of 42 U.S.C. Section 2000(eX5) and 42 U.S.C. Sec-

tion 1983. A Notice of Final Decision granting the Plaintiff

thirty (30) days within which to file suit in the United States

District Court was issued on July 15, 1992 and received on

July 16, 1992. Civil action number 92-2774 was filed on

August 17, 1992 naming Carolyn Saporito, Marvin Hunt-

sman, Comptroller, Lieutenant Colonel James V. Hall, Col-

onel Michael Diffley, Colonel Richard v. Gorski and then

Secretary of the Department of the Army, M.P.W. Stone with

racial discrimination and requesting the removal of Carolyn

Saporito, replacement of all loss sick and annual leave and

compensatory damages. The same day the Agency was served

with the Complaint, Carolyn Saporito requested the issuance

of the Performance Improvement Plan (PIP) which was the

basis for Plaintiff's removal in March, 1993.

After Plaintiff's removal from her position with the

Corps of Engineers she filed an appeal of the decision before

the Merit Systems Protection Board (MSPS). Plaintiff alleg-

ed that her discharge was based upon racial discrimination

due to disability, retaliation for protected activities (filing

EEO complaints and participating in discrimination based

civil actions), and retaliation for whistle blowing activity as

the basis for her removal, these charges satisfy the re-

quirements of 42 U.S.C. Section 2000(eX5). A Notice of Final

Decision granting Plaintiff thirty (30) days in which to sue

was issued on December 8, 1993 and received December 14,

4

1993. Civil action number 94-0151 was filed on January 13,

1994 naming Togo D. West, Secretary of the Department of

the Army as Defendant charging discriminatory employment

practices on the part of the Agency and requesting reinstate-

ment and compensatory damages.

The non-jury trial of these consolidated suits was con-

ducted before the Honorable Alma L. Chasez, United States

Magistrate Judge. Plaintiff's claims of discrimination due to

disability and for judgment prior to trial. The trial began on

Monday, June 24, 1996 and concluded on Friday, June 28,

1996. The Magistrate Judge issued a Report and Recommen-

dation, an entire year later, that Plaintiff's suit be dismiss-

ed with prejudice at her cost on June 23, 1997. Plaintiff timely

filed her Objections to the Report and Recommendation on

August 1, 1997. On December 2, 1997 the Honorable Marcel

Livaudais, Jr. United States District Judge, issued a Ruling

on Plaintiff's Objections to the Report and Recommendation

and Final Judgment overruling the objections and dismiss-

ing Plaintiff's action at her cost. Plaintiff timely apppealed

on February 18, 1998. On July 24, 1998, the Fifth Circuit

Court of Appeals affirmed the lower court’s decision and on

October 1, 1998, the rehearing was denied. This Petition time-

ly follows.

2. Disposition of the Case in the District Court

The Report and Recommendation issued by the

Magistrate Judge held that Plaintiff failed to prove, by

preponderance of the evidence, that racial animus played a

“determinative role” in the adverse job action she sustain-

ed (Magistrate Report, App. p. A-15). The Magistrate Judge

found that the hostile environment and harassment Plain-

tiff was subjected to, to be products of Saporito’s management

5

style and were inflicted upon everyone equally and without

regard to race. She also found that Plaintiff's testimony con-

cerning racial remarks and comments made by Saporito were

not credible. The basis for that finding was the Court’s belief

that “if in fact, [racial] statements were made, it would have

been recounted initially and then often repeated, not

recollected for the first time years after Plaintiffs discharge.”

(Magistrate’s Report, App. p. A-15). In sum, the Magistrate

Judge determined that the working environment that Plain-

tiff was subjected to was, in fact, hostile. However, she found

that the hostility was not of a racial nature and not motivated

by Plaintiff's race and, therefore, not in violation of the Ti-

tle VII. (Magistrate Report, App. p. A-21). The Magistrate

also found the reason of poor performance to be a legitimate

non-discriminatory reason for Plaintiff's removal. (Magistrate

Report, App. p. A-18). The District Court overruled Plain-

tiffs Objections to the Magistrate Report and adopted the

Report and Recommendation. The Fifth Circuit Court of Ap-

peals affirmed the District Court stating, in pertinent part,

that “any employment action directed to DeBose by the

Defendants was not motivated by racial animus. The Defen-

dant articulated a legitimate, non-discriminatory reason for

taking the challenged employment action.” (App. p. A-5).

REASONS FOR GRANTING THE WRIT

I. The District Court and the Fifth Circuit Court of

Appeals held that the Defendant articulated a

legitimate, non-discriminatory reason for remov-

ing Plaintiff. However, neither the Magistrate for

the District Court nor the Fifth Circuit Court of

Appeals even addressed the question as to

6

whether Plaintiff had demonstrated, or had been

afforded an opportunity to demonstrate, that the

Defendant’s reasons for her removal was a

pretext for the intentional discrimination.

Because the District Courts’ decision did not en-

compass this important criteria, it is clearly er-

roneous and must be reversed.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36

L. Ed 2d. 668, 93 S.Ct. 1817 this Honorable Court held that

once the Plaintiff establishes a prima facie case of racial

discrimination, the burden shifts to the Defendant to ar-

ticulate a legitimate, non-discriminatory reason for the

adverse employment action. If the Defendant can articulate

such a reason, the Plaintiff is then entitled to a fair oppor-

tunity to prove that that reason was a pretextual cover-up

for the racially discriminatory decision. McDonnell Douglas

at 672.

If Plaintiff was afforded such an opportunity and, Plain-

tiff does not think she was, the record is still replete with

evidence that is ample enough to show that the Agency’s deci-

sion to remove her was pretextual. In determining the pretext

of the employment decision, the courts have looked at several

circumstantial factors, such as, the manipulation of the Plain-

tiffs job assignments, the discriminatory failure or refusal

to provide adequate training and the subjective nature of the

evaluation procedures used to render the adverse employ-

ment decision. Unlawful Employment Practice, 32 ALR Fed.

7 Section. 2.

Manipulation of Job Assignment

In the trial on the merits, both Ken Kanik (white subor-

7

dinate of Saporito) and Plaintiff testified as to how Carolyn

Saporito deliberately changed the criteria for the first study

assignment given to Plaintiff (the Boat Study) by taking the

original request for the study and adding complicated por-

tions that the original request did not ask for or need, such

as how many boats the Agency owned, how many in each

size and category and how much the agency paid to purchase

each boat. Plaintiff also testified as to how Carolyn Saporito

kept giving her performance improvement plans on the ex-

act same studies, each time telling Plaintiff that something

different was wrong with them.

Defendant’s Discriminatory Refusal To Provide Adequate

Training.

Plaintiff and Ken Kanik testified that Carolyn Saporito

deliberately did not assist and, kept anyone else from

assisting Plaintiff. They both testified as to how Saporito

refused to send Plaintiff to appropriate training courses. Ran-

dy Florent and Ken Kanik testified as to Saporito’s stating

that Plaintiff did not have the skills to perform the job of

a Management Analyst. The Magistrate mentioned in the

Report how many hours of training Plaintiff had been given

under Saporito’s supervision. However, the Magistrate fails

to state that the Defendant offered no evidence as to the train-

ing hours given Plaintiff's white counterparts thereby, fail-

ing to establish that those hours were adequate training for

Plaintiff. Finally, the Magistrate stated that Plaintiff was

not denied training. Plaintiff's claim has been, since the fil-

ing of her first EEO complaint, that she was not being pro-

perly, i.e., adequately trained to do her job.

8

The Subjective Nature of the Evaluation Procedures Used to

Remove Plaintiff

All of the information contained in the PIP, as to the

deficiencies in Pleintiff's work, were supplied by Saporito.

The information concerning Plaintiff's performance deficien-

cies in the Proposed Removal submitted by Saporito was sup-

plied by Saporito. No one else had any input as to Plaintiff's

alleged “poor performances” except Saporito, whose view was

obviously prejudicial.

The Magistrate held that because Plaintiff's removal

was effectuated by James Joy, the Comptroller, after the

death of Saporito, Plaintiff's removal was not racially

motivated. The holding is clearly erroneous. James Joy was

an accountant just as Plaintiff was and he knew less about

doing studies than Plaintiff did. James Joy only sustained

the decision and, according to testimony at trial, “the front

office,” (those guys named in Plaintiff's first suit filed August

17, 1992, Colonel Diffley and James V. Hall) pressured Joy

into sustaining the decision in March, 1993.

None of the above-outlined testimony was refuted by

Defendant at trial. In fact, no one who testified at trial on

behalf of Defendant could testify first-hand, as to the quali-

ty, or lack therof, of Plaintiff's work. Everything relied upon

to show Plaintiff's poor work performance was provided by

the discriminating supervisor, Carolyn Saporito, who, at time

of trial, had been dead three (3) and one-half ( years. Even

James Joy, who allegedly sustained the removal, was not pro-

duced for testimony at trial. He was out of the jurisdiction

of the court and refused to come forward.

9

Through the testimonies at trial, Plaintiff provided am-

ple circumstantial evidence to establish that the Agency’s

decision to remove her also was a mere pretext for their

discrimination. However, Plaintiff also has shown, by cir-

cumstantial evidence, that no white employee was subjected

to the level of harassment she was subjected to; no white

employee was refused adequate training; no white employee’s

work was scrutinized to the degree her work was scrutiniz-

ed. Plaintiff proved that, if she were not black, she would

not have been subjected to that level of harassment or remov-

ed from her position. Therefore, the decision of the lower court

is erroneous and must be reversed.

Disparate Treatment

The District Court, in dealing with the issue of

disparate treatment simply stated that “the ultimate issue

of motivation must be dealt with to answer the question of

whetaher racial discrimination occurred” citing Rhodes v.

Guiberson Oil Tools, 75 F. 3d. 989 (5th Cir. 1996) (Magistrate

Report, App. p. A-22). However, the court went on to simply

hold that Plaintiff had not established prohibited motivation.

No reason was given.

If the District Court had indeed followed Guiberson Oil,

it would have held that race did not have to be Defendant’s

sole reason for removing Plaintiff. All Plaintiff had to show

was that her race played a role in Defendant’s decision mak-

ing process (Saporito) and her race had a determinative in-

fluence on the outcome. If Plaintiff had not been denied, by

the Magistrate, the documents she requested during

discovery regarding the Agency’s statistics on disciplinary

actions of all its employees, Plaintiff would have been able

to show:

10

(1) That no white Branch Chief was demoted for as

minor an infraction as the misuse of a Diner’s

Club Card under $500.00;

(2) That no white Branch Chief was re-assigned to

a Branch where they were unqualified to work;

(3) That Blacks, overall, were and, probably still are,

disciplined more harshly than whites and;

(4) No white employee at a GS-11 was denied ade-

quate training to perform his or her job.

Because Plaintiff established a prima facie case and provid-

ed ample evidence to show that the Defendant’s alleged non-

discriminatory reason of poor work performance was pretex-

tual for their intentional discrimination, the lower court was

then permitted to infer the ultimate fact of intentional

discrimination. Guiberson, at 997. Because the lower court

failed to address Defendant’s pretextuality, it could not reach

the issue of the ultimate motivation and thus, reached an

erroneous decision, which must be reversed.

II. The District Court’s findings that no prohibited

racial animus existed is clearly erroneous because

she discounted Plaintiffs testimony as to Saporito

making racial statements in her presence, but did

not discount the testimony of Saporito’s white

subordinates that established, by a

preponderance of the evidence, that Plaintiff's

race played a role in Saporito’s dealings with her

and, established that Plaintiff's race had a deter-

minative influence on Plaintiff's hostile work en-

vironment and subsequent wrongful discharge.

Thus, the prohibited racial animus was establish-

11

ed by Plaintiff through her co-worker’s

testimonies and the lower court’s decision is er-

roneous and must be reversed.

The evidence and testimony adduced at trial

demonstrated that the discriminating supervisor (Carolyn

Saporito) was a demanding supervisor that did not make the

work environment difficult for all of the employees in her

department. The testimony demonstrated that Saporito had

made it known to her superiors and Plaintiff, prior to Plain-

tiffs transfer, that she did not want black employees in her

Branch. The testimony also demonstrated that Saporito had

engaged in a “racial remarks contest” (which she won) and

engaged in open advocacy of avowed racist David Duke and

what he intented to do to Blacks. It demonstrated that she

had ridiculed the dress, speech and mannerisms of Biack

employees in the Crops of Engineers. Ken Kanik, one of

Saporito’s white subordinates, testified that he himself believ-

ed that everything Saporito did to Plaintiff was because she

was black. John Knight, another white subordinate, testified

that he believed that Saporito was a racist. In sum, the trial

testimony established that Saporito held Blacks in low

esteem, that she deemed them inferior to her simply because

she was white and they were not.

The Defendant offered, as proof that Saporito was not

racist, the testimony of two other white subordinates of

Saporito; Vince Sulito, who other employees testified was

Saporito’s favorite whom she never harassed and, who

himself testified at trial that he brought David Duke material

to the office to discuss with Saporito. The other white subor-

dinate did not work in the section while Plaintiff was there,

Mike Dickman, and, he testified that he didn’t like Saporito

so he was not inclined to be paying attention to what she

was saying when she wasn’t discussing work. Because De-

12

fendant’s witnesses did not discredit or negate the testimonies

of Ken Kanik and John Knight, Plaintiff did, in fact, establish

racial motivation on the part of Saporito sufficient to violate

Title VII. The lower court’s decision is clearly erroneous and

must be reversed.

III. The District Court discounted Plaintiff's

testimony and held that racial slurs were not

used in her presence because Plaintiff testified

to one racial statement that she had not men-

tioned prior to trial. This was the major basis

for the court’s finding of no racial animus.

Because Plaintiff had, in fact, recounted all the

other racial statements prior to trial in

discovery responses and deposition (App. pp.

A26 - A38) the lower court’s decision is clearly

erroneous and must be reversed.

The Court refused to give credence to Plaintiff's

testimony concerning the use of racial slurs by Saporito

because she recounted one of the slurs for the first time at

trial. However, the use of racial slurs or comments directed

at, or in the presence of, the Plaintiff is not a requirement.

It has been established that harassment need not specifical-

ly refer to race in order to be the product of racial animus.

Witt v. Roadway Exp., 880 F. Supp. 1455 (D. Ken 1995).

In Brown v. East Mississippi Elec. Power Ass’n, 989 F.

2d 858 (5th Cir. 1993) the discriminating supervisor did not

use racial slurs in the of the presence of the Plaintiff. In fact,

the evidence demonstrated that “Pippen (the discriminating

supervisor) was usually circumspect in using the term [nig-

ger] when out of the presence of African- Americans [which]

underscores that he knew it was insulting. Nonetheless, he

13

persisted in demeaning African-Americans by using it among

whites. This is racism.” Jd. at 861. In addition, the Court

found that “Pipper’s racism infected the disciplinary deci-

sions of which Brown complains.” Brown, supra.

Plaintiff claimed that she was subjected to a hostile

working environment and wrongful discharge. The

Magistrate Judge recommended dismissal of Plaintiff's claim

as to a hostile work environment because she did not believe

that Saporito had used racial remarks in Plaintiff's presence

and because she did not believe that the hostile work environ-

ment was because of racial animus. However, as

demonstrated in Brown racial slurs need not be directed to,

or used in the presence of, the Plaintiff. That they are used

at all indicates racial prejudice. Furthermore, the hostile

work environment need not exist solely because of racial

animus. The applicable law requires only that the hostile en-

vironment exist because racial prejudice infects or influences

the actions of the supervisor. Brown, supra.

The pertinent question, never addressed in the lower

court, is: did racial prejudice play any part in the treatment

Plaintiff was forced to endure and the decisions concerning

her termination? The evidence adduced at trial indicates that

the answer to both questions is yes. The judgment of the lower

court is clearly erroneous and therefore must, be reversed.

CONCLUSION

Because every aspect of plaintiff's claims, based upon

the evidence, was erroneously decided by the District Court,

the Petition for Writ of Certiorari should be granted.

A-l

APPENDIX A

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

ON REHEARING - FILED OCTOBER 1, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-31306

FILED

JUDY M DEBOSE OCT 1 1998

Plaintiff - Appellant

v.

UNITED STATES DEPARTMENT OF THE ARMY; ET AL

Defendants

UNITED STATES DEPARTMENT OF THE ARMY, MPW

Stone, Secretary, in his official capacity

Defendant - Appellee

JUDY M DEBOSE

Plaintiff - Appellant

V.

UNITED STATES DEPARTMENT OF THE ARMY,

Togo D. West Jr, Secretary

Defendant - Appellee

Appeal from the United States District Court for the

Eastern District of Louisiana, New Orleans

A-2

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 7/24/98, 5 Cir., ; 9

Before WISDOM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:

(= Treating the Suggestion for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Panel Rehear-

ing is DENIED. No member of the panel nor judge in regular

active service of the court having requested that the court

be polled on Rehearing En Banc (FED. R. APP. P. and 5TH

CIR. R. 35), the Suggestion for Rehearing En Banc is

DENIED.

( Treating the Suggestion for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Pane] Rehear-

ing is DENIED. The court having been polled at the request

of one of the members of the court and a majority of the judges

who are in regular active service not having voted in favor

(FED. R. APP. P. and 5TH CIR. R. 35), the Suggestion for

Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

g John Minor Wisdom

UNITED STATES CIRCUIT JUDGE

REHG-6

A-3

APPENDIX B

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

FILED JULY 24, 1998

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

No. 97-31306 FILED

Summary Calendar JUL 24 1998

JUDY M. DEBOSE,

Plaintiff-Appellant,

VERSUS

UNITED STATES DEPARTMENT OF THE ARMY; ET AL,

Defendants,

UNITED STATES DEPARTMENT OF THE ARMY, MPW

Stone, Secretary, in his official capacity

Defendant-Appellee

JUDY M. DEBOSE,

Plaintiff-Appellant,

versus

UNITED STATES DEPARTMENT OF THE ARMY,

Togo D West, Jr. Secretary,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

( 92-CV-2774-E )

A4

Before WISDOM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:“

Judy M. DeBose, an African American woman former-

ly employed by the New Orleans District of the Army Corps

of Engineers, filed a suit against the United States Depart-

ment of the Army in which she alleged that the defendant

subjected her to several forms of unlawful employment

discrimination. The magistrate judge entered partial sum-

mary judgment for the defendant on the ground that DeBose

had failed to raise a genuine issue of material fact with

respect to her retaliation and handicap discrimination claims.

After conducting a bench trial, the magistrate dismissed

Debose’s remaining claims that she was subjected to a hostile

work environment and wrongfully discharged on the basis

of her race. The district court adopted the magistrate judge’s

factual findings and legal conclusions. DeBose timely filed

a notice of appeal from this final judgment. We affirm.

We review de novo the magistrate judge’s grant of par-

tial summary judgment in the Army’s favor.2 We agree with

the magistrate judge and the district court; DeBose’s han-

dicap discrimination and retaliation claims cannot survive

the defendant’s motion for summary judgment. DeBose simp-

ly did not raise a genuine issue of material fact as to whether

the defendant discriminated against her solely on the basis

Under 5TH R. 47.5, the Court has determined that this opinion should

not be published and is not precedent except in the limited circumstances

set forth in 5TH CIR. R. 47.5.4.

2 Armstrong v. City of Dallas, 997 F.2d 62, 65 (5th Cir. 1993).

A-5

of her alleged physical impairments.3 Neither did DeBose

raise a genuine issue of material fact as to whether the defen-

dant retaliated against her for filing a discrimination com-

plaint. We are not persuaded that any adverse employment

action she suffered was causally related to her decision to

file a discrimination complaint.“

We review for clear error the district court’s post-trial

dismissal of DeBose’s wrongful discharge and hostile work

environment claims.5 “A finding is clearly erroneous when

although there is evidence to support it, the reviewing court

on the entire evidence is left with a definite and firm con-

viction that a mistake has been committed.“ The district

court’s findings are not clearly erroneous. The record amply

supports both the magistrate judge’s and the district court’s

conclusion that any employment action directed to DeBose

by the defendant was not motivated by racial animus. The

defendant articulated a legitimate, nondiscriminatory reason

for taking the challenged employment action.”

AFFIRMED.

3 See Leckelt v. Board of Commissioners of Hospital District No. 1, 909

F.2d 820, 825 (6th Cir. 1990).

4 See Mattern v. Eastman Kodak Co, 104 F.3d 702, 705 (6th Cir. 1997).

5 Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1044 (n. 1) (6th Cir. 1998).

6 EEOC v. Clear Lake Dodge, 60 F.3d 1146, 1151 (6th Cir. 1995).

7 See Grimes v. Texas Dep’t of Mental Health and Mental Retardation, 102

F.3d 137, 140 th Cir. 1996).

A-

APPENDIX C

JUDGMENT OF THE UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF LOUISIANA

FILED - DECEMBER 2, 1997

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FILED

DEC 02 1997

JUDY M. DeBOSE CIVIL ACTION

versus NO. 92-2774

c/w: 94-0151

U.S. DEPARTMENT OF

THE ARMY, ET AL

SECTION: E/5

JUDGMENT

Considering the record, the evidence, and the law,

IT IS ORDERED, ADJUDGED and DECREED that

there be judgment herein in each of these civil actions in favor

of defendants and against plaintiff, Judy M. DeBose, dismiss-

ing plaintiff's claims at her cost.

New Orleans, Louisiana, December 1, 1997.

/s/ Marcel Livaudais, Jr.

DATE OF MARCEL LIVAUDAIS, JR.

ENTRY Senior United States District Judge

DEC 2 1997

3

A-7

APPENDIX D

REPORT AND RECOMMENDATION OF THE

MAGISTRATE OF THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF LOUISIANA - FILED JUNE 25, 1997

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FILED

1997 JUN 24

JUDY M. DEBOSE CIVIL ACTION

VERSUS NUMBER: 92-2774

c/w 94-0151

TOGO D. WEST, JR., SECTION: E“ (5)

SECRETARY OF THE

DEPARTMENT OF THE

ARMY

REPORT AND RECOMMENDATION

Plaintiff in the above captioned matter, Judy M. Debose,

has instituted suit herein against Togo D. West, Jr., Secretary

of the Department of the Army. Debose, a black female,

brought suit alleging a violation of her civil rights under Title

VII of the Civil Rights Act of 1964. 42 U.S.C. §2000e et seg.

and 42 U.S.C. §1918a. Plaintiff asserts that she was wrongful-

ly discharged based upon her race and further claims a hostile

DATE OF ENTRY JUN 25 1997

DATE OF MAILING JUN 25 1997 \

A-

working environment existed prior to that discharge. Cer-

tain other claims of discrimination were dismissed on a prior

urged motion for summary judgment.

It is undisputed that plaintiff was at all relevant times

employed as a Management Analyst GS 343-11 in the

Management Analyst Branch of the Office of the Comptroller,

New Orleans District of the Army Corps of Engineers. She

had been employed at the New Orleans District for a twenty-

two year period before her discharge. Plaintiff's first line

supervisor was Carolyn Saporite, now deceased, a white

female, who was the chief in the Management Analyst

Branch at the New Orleans District of the Army Corps of

Engineers from May 9, 1989 until Saporito’s death on

January 25, 1993. Saporito held management authority over

the plaintiff James Joy, a white male, was Debose’s second

line supervisor.

Prior to coming under Saporito’s supervision, Debose,

herself, held supervisory authority. More specifically, she had

been finance and accounting officer at a GS-12 level for some

number of years. At that time, she had had five different male

supervisors and experienced no problems in her dealings with

them. However, part of Debose’s responsibility as finance and

accounting officer was to make sure that various expenditures

undertaken by the district were conducted in accordance with

Federal law and Army regulations. She was demoted from

this position in 1989 in an adverse decision upheld by the

Merit System Protection Board and transferred to the

Management Analyst Branch under Carolyn Saporito’s

supervision.

Plaintiff had known and interacted with Saporito for

A-9

multiple years and, until her transfer to the Management

Analyst Branch, had no problems with Saporito. As the court

understands it, problems began in 1990 following a traffic

accident in Mississippi in which Debose was injured on her

way to a work related training course in Fort Lee, Virginia.

The issues which the court must decide are whether or

not plaintiff has been discriminated against because of her

race through undergoing a hostile work environment and

then a wrongful discharge.

The court notes at the outset that Carolyn Saporito was

a difficult supervisor at best. Many of the individuals giv-

ing testimony at trial testified to her harshness, even her

unfairness in a supervisory capacity. Indeed she was hearti-

ly disliked by a large majority of her subordinates.

John Knight worked with Carolyn Saporito as a

Management Analyst for an eighteen month pereiod prior

to the time plaintiff was employed in that department. He

testified to difficulty with Saporito and of his opinion that

the Management Analyst Division was “not a good office

Knight further testified that Saporito tolerated, condoned,

and participated in negative comments about other

employees. He further stated that Saporito did not like the

plaintiff and that she had voiced an opinion that plaintiff in-

itially got her job because she was black but that she was

incompetent. He further opined that Saporito was jealous of

plaintiff because, prior to her demotion, Debose was a GS-13

and that Saporito, herself, was only a GS-12.

According to Knight’s testimony, Saporito played

favorites so to speak. He specifically testified that he had

A-10

heard Saporito, herself, make racial comments at different

times and he personally believes race was a contributing fac-

tor in Saporito’s derogatory comments toward Judy Debose.

Melvin Huntsman worked with the Department of the

Army in New Orleans between October, 1989 and December,

1991. He was the Comptroller for the New Orleans District

during that time period and as such knew and supervised

Carolyn Saporito. Huntsman testified that Saporito had an

authoritative “nit-picky” style and did not take suggestions

well. He testified that she instituted a sign-in/sign-out log

in order to keep more complete control over her employees,

including Judy Debose and Ken Kanik, a white male. Ac-

cording to Huntsman, Saporito criticized plaintiff's work

product.

Valerie Sanders, a black female, has worked at the

Corps of Engineers from October, 1987 through and including

the date of trial. She was initially hired as a GS-9 Manage-

ment Analyst in the Manpower Branch. Saporito was her

supervisor. At the time she was initially brought on, there

were no other blacks in that branch.

Sanders testified that Saporito was cordial to her but

that she was handled differently from white employees in

the following fashion:

First, she recounted an unpleasantness with Saporito

in December of 1987 when other employees were allowed to

go to a funeral of a black employee but she was asked to re-

main in the office. The second incident of different treatment

occurred in February of 1988 when she went on a trip to

Indiana. In March of 1988, Saporito asked her for a docu-

A-11

ment known as a Trip Report. Sanders indicated that she did

not know that she had to generate such a document and was

surprised when she was asked for one. Thereafter, she did

successfully complete the Trip Report.

The third instance of different treatment had to do with

miscommunication between Saporito and herself. Saporito

stated to Sanders that an employee who was leaving was do-

ing so because of her. Later, Saporito denied making such

a statement. Lastly, a problem arose with regrd to a survey

in the spring of 1988 in which Sanders had taken part. The

survey was given to Saporito and mailed to an office in Atlan-

ta. Later, the package was returned because two items needed

recalculation. Saporito told Sanders that the entire package

was wrong when, in her opinion, minor items needed to be

corrected. —

Sanders stated that she was unaware whether other

people had problems with Saporite or not. She felt that she

was handled differently than whites in that Saporito did not

come to her desk and talk with her during the day. Insofar

as Judy Debose is concerned, Sanders testified that she heard

Saporito yell at Debose on one occasion and that she never

observed Saporito yell at white subordinates.

Ken Kanik, a while male, worked for the Corps of

Engineers under Saporito while Debose was employed there.

He disagreed with Saporito’s management style and her ex-

ercise of supervisory power as well as decisions she made.

He testified that Saporito had voiced an opinion that Debose

should have been fired in 1989 instead of transferred from

the Financial and Accounting Branch to her section. Further

Kanik contends that Saporito stated in reference to Debose

A-12

“now they want me to fire her.” Kanik further testified that

Saporito did not like the speech or dress of black employees

and criticized them in that regard. He further testified,

however, that Saporito did have black friends; i.e., a black

attorney with whom she worked well as well as a black

housekeeper.

Kanik further testified that Debose had inadequate

training to perform her job as a management analyst. Prior

to that time, she had been an accountant. She had little ex-

perience writing and had difficulty in this area. When Debose

asked for assistance from Saporito, Kanik testified that

Saporito would belittle her and say “You’re a GS-11 I won’t

do your work”. According to Kanik, Saporito had told him

that she intended to fire Debose for performance reasons. she

told him to stay away from Debose and not to assist her.

Kanik clearly felt that Saporito’s attitude toward blacks in-

fluenced her and that she always criticized black employees,

including those not under her supervision. He heard Saporito

yell at plaintiff on many occasions. Kanik further testified

that he is of the opinion that race had something to do with

the motivation to fire plaintiff but thinks also that the front

office wanted her out.

On cross-examination, Kanik acknowledged that he did

not like Saporito and indeed had been the target of her wrath

during the three to four years that he worked under her

supervision. He further testified that Saporito made fun of

other people besides blacks and that there existed a click of

people around Saporito who experienced no problems with

her. The clear implication, however, was that, if one were

not in the click, one might expect difficulties. He acknowledg-

ed Saporito’s friendship with Randy Florent, a black attorney

r ee e er sen a n

— W —— 4 ; 25 7 sig NU 4

25 oo E ene v n wie < eh n

A-13

employed by the Corps.

Michael Dickman was a program analyst who worked

under Saporito from 1984 to 1988. having been hired by her,

he nevertheless described Saporito as nit-picky, austere,

authoritative, moody, difficult, and nasty. He further stated

that she gave minimal on-the-job training and did not want

individuals to consult with co-workers about how to do things

properly. Dickman further testified that Saporito talked

about others in a belittling fashion; such as, being stupid or

fat, and was critical of their clothing and speech patterns.

He testified that he never heard Saporito use racial slurs.

He further stated that Saporite did not like the use of im-

proper grammar and further that she talked about white peo-

ple who used what he described as “ninth ward” grammar.

Vince Salito was a management analyst hired by

Saporito. He described her as strict, demanding, and detail

oriented and as an individual who had problems with her

employees. Saporito expected each analyst to do his or her

own work and the office environment was tense and unplea-

sant. He testified that he did not hear Saporito make racial

comments or jokes; however, other employees did.

Randy Florent, a black male and an attorney-at-law,

testified that Saporito was a demanding supervisor. However,

he considered himself a friend of Saporito dating back to 1984.

Florent testified that he and Saporito spoke on the telephone

four or five days a week, at which time they gossiped or talk

about work-related issues. Florent testified that Saporito

spoke of Judy Debose as friendly and helpful when she was

supervisor of the Financial and Accounting Department. She

further expressed concerns that Debose had no background

A-14

or perspective for work as a Management Analyst. She con-

fided in Florent that she planned to train Judy to see if she

could do the work but questioned Judy’s ability to write in

a job which demanded written communication. She pondered

to Florent her belief that Debose should try to get a job as

an accountant because this was her background and, at some

point, stated to Florent that she did not think plaintiff could

be a good analyst because she could not write and she did

not have analytical skills. Saporito expressed frustration to

him over plaintiff's performance.

Florent expressed his belief that Saporito was not a

racist. She, in fact, asked him to handle her legal affairs prior

to her death and he did so subsequent thereto.

Judy Debose, herself, testified that despite the fact that

she had known and interacted with Saporito for many years,

her problems did not begin until July, 1990, approximately

one year after she was transferred into Saporito’s department.

In fact, initially, plaintiff testified that Saporito told her that

the front office wanted her fired but she [Saporito] would

protect her because [plaintiff] was her friend.” The first

evidence of hostility and/or harassment contended by Debose

arose with an automobile accident wherein she suffered a

back injury in the summer of 1990. Debose contends that

Saporito attempted to prevent her from collecting workman’s

compensation while she was out recuperating from her in-

jury and placed plaintiff on A. W. O. L. for two days that were

covered by her doctor’s certificate. Debose ultimately got her

compensation and, upon furnishing proper paperwork, the

A.W.O.L. status was rescinded.

Next, Debose contends that she was harassed in March

5

4

|

i]

|

*

25

ty

5

75

3

4

*

A-15

of 1991 in that Saporito gave her two performance appraisals

to sign. One was satisfactory and the other was unsatisfac-

tory. Plaintiff refused to sign the unsatisfactory one telling

Saporito that once she did so Saporito could have begun pro-

cedures to remove her from her job. Nothing further

transpired on this issue.

Between March, 1991 and August, 1992, Debose con-

tends that Saporito continuously harassed her by yelling and

screaming at her and demeaning her in such a manner as

to place her in fear of going to work and being alone in the

office with Saporito. The evidence does not support this. Cer-

tainly there were instances of Saporito raising her voice but

these were not continuous, everyday occurrences. During that

same time, Saporito moved Debose’s desk location and

allegedly gave her performance standards so high that one

error could have resulted in her removal from the job.

Further acts of harassment are alleged between

February and June, 1992 when Saporito hired an indepen-

dent audit agency to review three of plaintiff's studies. Those

audits were critical of plaintiff's studies. Those audits were

critical of plaintiff's work product. Additionally, Saporito

refused to extend the time within which plaintiff had to take

corrective action pursuant to a P.I.P. given to her in August,

1992 when plaintiff had an eye problem and had been in-

structed by her doctor to do light visual work.

The ultimate question which the court must decide is

whether the plaintiff has proven by a preponderance of the

evidence that racial animus played a determinative role in

the adverse job action which she sustained. Hazen Paper Co.

v. Higgins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed. 2d 338

A-16

1993). Unquestionably, plaintiff was terminated against her

will and can minimally establish a prima facie case for

discriminatory conduct. The agency must then come forward

with a legitimate non-discriminatory reason for what

transpired which causes the court to weigh the motivation

for plaintiff's discharge. McDonnell Douglas Corp. V. Green,

411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 668 (1973).

There is very little positive that can be said for the

management style of Carolyn Saporite. In fact, one white

employee so disliked her that he paid for his own airplane

ticket from Europe to be present at trial and testify. Indeed,

it appears very difficult to locate any subordinate employee

who views her in a favorable light. that an atmosphere of

terror existed in her department among her employees as

a control mechanism by Saporito seems obvious. However,

it would appear that she visited her wrath on all employees,

black, white, male, and female, at one point in time.

In order to prevail under Title VII, the plaintiff must

establish more than hostility, pettiness, authoritarianism,

and unfairness, all of which she has clearly established. She

must establish that the reason the aforementioned negative

environment existed was because of racial animus on the part

of the supervisory employee.

The court notes that plaintiff testified in court that

racial remarks were made to her by Saporito. However, she

failed earlier on in the process to make these same allega-

tions. For example, plaintiff claims that Saporito told her that

she was dumb, stupid and “lazy like most blacks” and that

blacks “reminded her of pigs because when you did them

something they squealed”’. Yet, the first time these specifics

A-17

statements were testified to was in court, despite ample pre-

trial discovery and administrative hearings.

Additionally, plaintiff, at some point, wrote a letter to

Congressman William Jefferson complaining about her treat-

ment by the Corps of Engineers. At no point in her letter

to Congressman Jefferson does she mention anything about

racial slurs directed toward her by Saporito. On cross-

examination, plaintiff advised that she had forgotten about

the statement regarding “blacks being like pigs’ until the

day of her trial testimony and that she did not make earlier

complaints about the racial motivation of Saporito because

she did not understand what constituted a racial comment.

The court believes that, if in fact, that statement were made,

it would have been rcounted initially and then often repeated,

not recollected for the first time years after plaintiff's

discharge. The court completely discounts plaintiff's

testimony on this issue.

The court does not condone Saporito’s management

style nor is the court particularly impressed with the fact

that the Department of the Army allowed its employees to

be handled in this fashion but the question for the under-

signed is whether or not plaintiff's termination was motivated

by racial concerns. The record taken as a whole does not

establish by a preponderance of the evidence that this is the

case. Saporito maintained appropriate relationships with

black individuals such as Randy Florent and with Debose,

herself, prior to her demotion. Her interaction with Valerie

Sanders does not establish racial animus. As long as in-

dividuals were on the same managerial level as Saporito, she

had no problem interacting with them, be they black or white.

Plaintiff's problems arose when she no longer was on the

A-18

same level of authority and began being treated as a subor-

dinate. However, the court cannot say that plaintiff's treat-

ment at Saporito’s hands as a subordinate was substantial-

ly different from the way other people under Saporito’s

managment were handled. They were all handled inap-

propriately but not because of their race or sex, simply

because of Saporito’s management style.

Furthermore, it would appear that there were

legitimate criticisms made of plaintiff's work product and per-

formance which were documented in the independent audits

obtained by Saporito. Basically, Debose had skills in accoun-

ting, not management analysis. The latter required writing

skills in which she was deficient. She failed to meet deadlines

in completing work which has been documented, failed to

report timely on occasion which the sign in/out log address-

ed and presented projects represented as finished which were

felt to be deficient in grammar, if not content. Plaintiff was

given training opportunities, which she felt were insufficient,

but she was not denied training. As noted in the Govern-

ment’s post trial memorandum, plaintiff completed seven

courses amounting to 376 hours of training while under

Saporito’s supervision.

The crux of plaintiff's case appears to be two-fold. She

first alleges discrimination by Carolyn Saporito. But she also

alleges conduct independent of Saporito which led to her

downfall. Specifically, as noted in plaintiff's post trial

memorandum, is the following:

When Plaintiff was first transferred to

Saporito, she knew of plaintiff's shortcomings ac-

cording to Randy Florent, and so did the Agency.

A-19

cording to Randy Florent, and so did the Agency.

When Plaintiff was demoted, she could have been

demoted within finance and accounting and Plain-

tiff could have continued to produce the quality

work she had previously produced for 18 years. In-

stead, the Agency put her in an area where they

knew she did not possess the skills.

Additionally, the Agency knew of Saporito

and her tactics long before Plaintiff was tansfer-

red there but, they chose to place Plaintiff without

the skills under someone who had the reputation

for expecting her subordinates to do their own work.

They didn’t place Plaintiff under someone who had

a reputation for training and working well with

others. They placed her under someone who had a

reputation for being intolerant and impatient. This

was deliberate and calculated.

The court does not materially disagree with the

aforementioned assessment of agency motivation. In fact, the

court believes this is exactly what happened. Certainly, there

were other areas where Debose could have been transferred.

But it was not Saporito’s decision to make this transfer. Nor

is there any evidence of racial motivation on the part of those

people who did make this reassignment. However, the end

result was that Debose could not adequately perform the work

expected of people in that job description. If plaintiff believes

that she was “set up to fail”, she may well be correct in this

assumption. However, this is not protected under Title VII,

even though it is hardly behavior which should be applaud-

ed or condoned.

Lastly, the court notes that Plaintiff's actual

A-20

termination came after Saporito’s death and was effectuated

by James Joy. According to Ken Kanik, James Joy contacted

him telephonically and questioned him about Debose. At that

time Kanik was of the opinion that Joy “plainly had to make

a decision about her employment” and that he was

“distraught” about being in that position. Kanik further

testified that he believes the “front office wanted her [Debose]

out”. Indeed, Debose herself testified that “Jim Joy was

pressured to fire her.” It has never been identified who in

the front office was exerting this pressure. The court notes

that, since Saporito was deceased at the time of plaintiff's

termination, any influence which she might have had over

the situation had certainly be terminated.

The parties do not materially disagree on the law gover-

ning plaintiffs claims. Debose first claims a hostile work en-

vironment. In connection therewith, she must prove the

following elements:

(1) That she belongs to a protected group, i.e., that

she is black; (2) that she was subjected to

unwelcome racial harassment, i.e., verbal or

physical conduct of a racial nature that is

unwelcome in the sense that it is unsolicited or

uninvited and is undesirable or offensive to the

employee; (3) the harassment complained of was

made upon race, i.e. that but for the fact of her race,

the plaintiff would not have been the object of

harassment; (4) the harassment complained of af-

fected a “term, condition or privilege of employ-

ment”, i.e., the racial harassment must be suffi-

ciently pervasive so as to alter the conditions of

employment and create an abusive working en-

vironment; (5) respondent superior, i.e., that the

A-21

employer knew or should have known of the harass-

ment in question and failed to take prompt remedial

action, Jones v. Flagship International, 793 F. 2d,

714, 719 (6th Cir. 1986), cert. denied, 479 U.S. 107

S.Ct. 952, 93 L.Ed.2d 1001 (1987).

The court does not believe that Saporito used racially

charged language in plaintiff's presence. The court complete-

ly discounts any testmony which indicates that racial epithets

were used in Debose’s presence. If they had been, the under-

signed believes that this would have been alleged very ear-

ly on and reiterated in plaintiff's letter to Congressman Jef-

ferson. It was not.

While the court believes that the work environment was

hostile in the sense that it was a tense, unpleasant place,

the law likewise requires that any harassment must be severe

and pervasive and because of prohibited animus before it

becomes compensable. Harris v. Forklift Systems, Inc., 510

U.S. 17, 114 S.Ct. 367, 126 L.Ed. 2d 295 (1993); Meritor Sau-

ings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91

L.Ed. 2d 49 (1986). In other words, plaintiff must show that

“but for” her race, she would not have been subject of harass-

ment. Henson v. City of Dundee, 682 F. 2d 897 (11th Cir.

1982). The court does not believe this has been shown.

Everyone in that branch was harassed by Saporito at one

point or another. Furthermore, Valerie Sanders, a black

female did not contend that she experienced racial harass-

ment at Saporito’s hands and the evidence does not so sup-

port. Title VII does not prohibit insensitivity, tastelessness,

rudeness or authoritarian obnoxiousness.

Plaintiff contends that if her work were unsatisfactory,

A-22

it was because of the effect of the hostile and abusive work

environment she was forced to be subjected to every day and

that without that environment, she “could have performed

like every other normal employee.” That fact of the matter

is that this is not established by the record. There is no work

produced by other management analysts for purposes of com-

parison which indicates that theirs was of a similar caliber

to plaintiff's and that they were not treated in the same

fashion as she.

The court next addresses plaintiffs claim of disparate

treatment in connection with her termination. The ultimate

issue of motivation must be dealt with to answer the ques-

tion of whether racial discrimination occurred. Rhodes v.

Guiberson Oil Tools, 75 F. 3d 989 (6th Cir. 1996) (en banc).

Plaintiff has not established prohibited motivation in

her termination sufficient to violate Title VII. The court can-

not help but note that even plaintiff suspects that someone

other than Saporito, i.e., the “front office”, wanted her ter-

minated, presumably because of the problem when she was

the head of the finance and accounting brance. Saporito had

passed away two months before plaintiff was ultimately let

go. James Joy was the actual terminating official and there

is no reason to suspect him of racial animus. Lastly, there

were deficiencies in plaintiff's work which establish that she

was not adequately performing in her job as a management

analyst. For all of these reasons, the court is hard pressed

to believe that Title Vii was violated even though the under-

signed believes that Debose could have and should have been

handled in a different fashion.

A-23

RECOMMENDATION

It is recommended that the claims of plaintiff, Judy

Debose, against defendant, Togo D. West, Secretary of the

Department of the Army, be dismissed with prejudice at her

costs.

A party’s failure to file written objections to the pro-

posed findings, conclusions, and recommendation contained

in a magistrate judge’s report and recommendation within

10 days after being served with a copy shall bar that party,

except upon grounds of plain error, from attacking on appeal

the unobjected-to proposed factual findings and legal conclu-

sions accepted by the district court, provided that the party

has been served with notice that such consequences will

result from a failure to object. Douglass v. United Services

Auto. Assoc., 79 F.3d 1415 (5th Cir. 1956) (en banc).

New Orleans, Louisiana, this 23 day of June, 1997.

/s/ Alma L. Chasez

UNITED STATES MAGISTRATE JUDGE

A-24

APPENDIX E

PLAINTIFF’S ANSWERS TO DEFENDANT?’S INTER.

ROGATORIES DURING PRE-TRIAL DISCOVERY

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JUDY M. DEBOSE CIVIL ACTION

VERSUS NO. 92-2774

C/W 94-0151

TOGO D. WEST, JR.

SECRETARY SECTION E“ (5)

DEPARMENT OF THE ARMY

ANSWERS TO DEFENDANT’S INTERROGATORIES

In accordance with the Federal Rules of Civil Procedure,

Plaintiff, through counsel, respectfully respond to the Defen-

dant’s Interrogatories and Request for Production of

Documents as follows:

Interrogatories

1. (a) Dr. Doris LeBlanc

8211 Apricot St.

New Orleans, LA 70118

(504) 861-8529

Treatment for depression and the effects from

discrimination, retaliation harassment, hostile work environ-

ment (hereinafter referred to as discrimination/retaliation)

and the firing from my job.

A-25

(b) Mohammed Suleman, M.D.

4770 S. I-10 Service Road, West

Metairie, Louisiana

(504) 456-7468

Surgery on gall bladder after having a big argument

with Carolyn Saporito on May 11, 1992 and having a gall

bladder attack.

(c) Toni Spears

6600 Plaza Drive, Suite 210

New Orleans, Louisiana 70127

(504) 246-4541

She is a therapist. She treated her for the effects that

the discrimination/retaliation had on me, i.e. self esteem, etc.

(d) Eye Surgery Center of Louisiana

5640 Read Blvd. Suite 900

New Orleans, Louisiana 70127

(504) 246-2136

Treatment for eye problems and surgery.

(e) Dr. Cory L. Cashman

5646 Read Blvd.

New Orleans, Louisiana 70127

(504) 242-5357

Treatment for diabetes and thyroid problem.

(f) Heritage Beverly Hills

P.O. Box 640550

Beverly, Florida 34464-0550

(904) 746-9000

Patient No. A/D 120-1/0159.1

Treatment for food addiction, depression related to

discrimination/retaliation.

A-26

(g) Lions/LSU Eye Center, 2020 Gravier Street, New

Orleans, LA 70112, (504) 568-6700. Treatment of eye

problems.

(h) Charity Hospital/Medical Center of Louisiana, 1532

Tulane Avenue, New Orleans, LA 70140. Various tests.

2. (a) Her yelling and screaming at me.

(b) Telling me about Blacks constantly.

(c) Telling me I am just as lazy and dumb as all the

other Blacks.

(d) Purposely giving me the wrong information when

I was doing an assignment.

(e) Telling me constantly that she was going to fire

me.

(f) Telling me that she was a master at psychological

warfare and she was going to mess my mind up.

(g) Making fun of Blacks on how they dress and talk.

(h) Constantly attacking other employees in my

presence.

(i) Telling me that I was stuck in her office and she

would never give me a good referral to anyone for me to get

out of her office.

(j) Constantly and openly talking in the office about

how she supported David Duke and what he was going to

do to Blacks if he would win his election.

A-27

(k) Telling me that no one will believe me over

her because she was White and I was Black.

) After I purchased a new car, her telling me I

will be fired before I could finish paying for the car.

(m) Upon medical advice, I expressed to her how

it made me feel when she yelled and screamed at me. And

she responded with, “shut up and go sit down.”

(n) After telling her that the things she was do-

ing was causing me to feel stressful, she responded, “You

should take a course in how to manage stress,” then she went

out of her office and told another employee, loud enough for

me to hear, her that “I had just told her that the things she

was doing were causing me stress and how she knew that

she was getting to me and that she was going to do me more

(and started laughing).

(o) Always talking about Blacks on welfare. Referr-

ing to someone as a “nigger” when she knew I ꝓuld hear her.

(p) Requiring everyone in the office to sign in and

out and, then later finding out that when I was gone for five

(5) weeks and found out on my return that no one was re-

quired to sign in and out the entire time I was out.

(q) Giving me two performance ratings at the same

time: one with a satisfactory rating and one with an un-

satisfactory rating, and asking me to sign both.

3. (a) Giving me a performance rating in March 1992

with a rating of “fully successful” after I turned in the

A-28

studies, then giving me a PIP in September 1992 on the same

studies I had been rated on in March 1992.

(b) After verbally agreeing to give me an extension

at the end of the PIP period to complete the studies because

she knew I had surgery on both of my eyes, and then waiting

until the PIP period was over to deny the extension in

writing.

(c) The Agency never trying to accommodate me

when they knew of my medical conditions (handicap).

(d) The Agency not allowing me to take part in their

Employee Assistance Program when I reported my emotional

problems.

(e) Not giving me the same training as other

Management Analysts.

(f) When acting as Comptroller, signing my perfor-

mance plan in two places, but according to the regulations

she was supposed to sign only once and obtain the signature

of higher rank for approval of the plan.

(g) Not giving a description in the PIP‘s of types of

improvement that I needed to demonstrate to obtain fully

successful level, as required by regulation.

h) Failing to provide in any of the PIPs: (1) the

assistance to be provided during the period; (2) what was re-

quired for performance to improve and to be sustained at the

MET level; (3) stating what improvement was necessary fur

me to retain my position (all are required by regulation).

A-29

(j) Failing to provide an objective performance plan

which would permit an accurate evaluation of my job per-

formance, as required by regulation.

4. (a) Preventing me from talking to anyone else in the

office.

(b) The EEO Manager sending out a summary report

to managers listing the names of persons who had put in EEO

complaints, and when advised to stop, she stated she was go-

ing to continue.

(c) The Agency telling me my three EEO complaints

were moot because I no longer work there.

(d) Telling me constantly that she was going to get

me for putting in EEO complaints.

(e) Telling me that she was going to move my desk

because she saw me talking to another Black employee. She

said we may be plotting against her.

(f) Telling me, after Ken Kanik left New Orleans to

go to Japan, that I could put in all the EEO complaints I

wanted because I will never win any because she could get

Jean Vallon and Vince Salito to back her up in anything she

said or told them to say to win the case against me. She told

me “your ass is grass and I am the lawnmower.”

(g) The Agency not making accommodations for me

after they were informed of my diabetes.

(h) The Agency not letting me participate in the EAP.

A-30

(i) The Agency not allowing me to use eight hours

of company time to process my EEO claim, as permitted by

regulation.

(j) Telling me I would be fired before I win any of

my EEO cases.

(k) Telling me I should not be airing out our office

dirty laundry to the people in the EEO office.

(1) Telling me I should go ahead and resign because

she had everyone on her side and they were all White and

no one would believe me because I was Black.

5. (a) Giving me a letter of warning about telephone

usage when I was, in fact, following her guidelines.

(b) Yelling and screaming at me constantly.

(c) Saying demeaning things to me out loud in the

office.

(d) Telling people in the office things about me.

(e) Constantly telling me she was going to fire me.

(f) Constantly telling me I was dumb and stupid.

(g) Giving me wrong or bad information on

assignments.

A-31

APPENDIX F

EXCERPTS FROM PLAINTIFF'S DEPOSITION

TAKEN ON MAY 2, 1996 ON PLAINTIFF’S ANSWERS

TO DEFENDANT’S INTERROGATORIES

RACIAL ANIMUS

Deposition of Judy M. DeBose page 43, Lines 18 - 23

And I remember when I was branch chief with her,

when we would go to staff meetings, that was either the com-

ptroller, Timothy Haider or Bob Worral. I’m not sure which

one, they would talk to her about having blacks in her sec-

tion because she always had white employees. And she

always said she didn’t want any.

Deposition of Judy M. DeBose Page 44, Lines 2 -3

Yeah. She [Saporito] didn’t give a reason. She just said

she didn’t want black employees working there.

Deposition of Judy M. DeBose Page 48. Lines 1 -16

[Saporito] betrayed all these other white males, and

females, too, the same, on what basis do you find, or can you

contend, that the very same treatment you received was bas-

ed on your being black, and not just being another human

being in her section?

A. Well, I’m basing it on being black because she talked

about blacks a lot, on how they dress. She would comment

about the way they spoke.

A-32

She would have open conversations about how she back-

ed David Duke, and she believed in his phiiosophy about put-

ting blacks in their places and getting them off of welfare

and getting a job.

And some of the treatment — well, she would tell me

that when we went to the USACARRA hearing that they

would not believe me because I was black and she was white,

so that’s why I felt like it was because of my race.

Deposition of Judy M. DeBose Page 49 Lines 2 - 25

A. So maybe it was say June, 92. Carolyn and I used

to work until 5:30, and Vince used to get off at 3. By this

time, Ken had gone to Japan.

Q. Just you two little chickens.

A. Yeah. So Carolyn was in her office, and I think I

heard her go out to the door. And then the clean-up man,

who was a conract clean-up person, came — and he was a

black male — came in to empty the trash and vacuum, or

whatever they do. And he emptied her trash and emptied my

trash, and I don’t know if he left or what.

She [Saporito] came in, and she was in her office for

a few minutes, and she came to my desk and said, Did you

see anybody in my office?

And I said, No. I said, The only person I saw in there

was the clean-up man. And she said — I said, Why? And she

said, Someone atole some money out of my wallet. She said,

I had a ten and a 20 this morning, and I broke — I don’t which

one she broke, but she had that change, but she didn’t have

that other ten or 20.

A-33

And I said, Well, I didn’t see anybody go near your

purse. I saw — I heard him emptying your trash. And she

said, Well, somebody stole money out of my purse.

So she went over to finance and accounting, and I

think she told them, and she came back and she was ran-

ting and raving about —1!

Deposition of Judy M. DeBose page 50, Lines 19 - 25

A. So Carolyn came back, and she was ranting and rav-

ing. And she called somebody on the telephone, and she was

ranting and raving about her money. And then I heard her

say, that nigger stole my money. Well, she told me to my

face she thought it was the clean-up man.

So the next day I told Vince, I said Carolyn told me

something about the clean-up man stole her money yesterday.

Deposition of Judy M. DeBose page 51, Lines - F

Q. Uh-huh (Indicating an affirmative respones).

A. He laughed. He said, The clean-up man? And I think

he told me she thought it was me.

So the answer is I’m thinking she’s talking about the

clean-up man, and he’s telling me she’s talking about me.

Deposition of Judy M. Debose Page 102, Lines 2 - 25

THE WITNESS. Okay. She [Saporito] would com-

1 Testimony concludes on Page 50, Line 1

A-34

ment about the way they walk. When she would comment

about their clothes, this person, Brenda Webber, who was

black, she would comment that she was overdressed for the

office.

BY MR. SCHREIBER

How so? You mean overdressed, like to fancy?

Yeah.

And was she?

Not to my knowledge.

Well, what did she wear?

> O > © P O

She wore a suit, or she wore regular clothes. To my

Wb it was regular clothes. But she would make fun

of it saying it was not.

Q. Well, what did Carolyn Saporito wear to the office?

A. Same stuff. So that’s what I’m saying. Why was she

commenting about blacks wearing the same things she wore?

Q. Okay. She didn’t talk about white people, what they

wore?

A. I never heard her make any comment about white

people.

Q. Okay. What about how do black people walk? I didn’t

know they walk differently. How would she claim they walk

differently?

A-35

A. Well, this person, Brenda Webber —

Q. Same person, Brenda.

Deposition of Judy M. DeBose Page 103, Lines 1-17

A. Well, that’s the one that comes to my mind, Brenda

Webber. Brenda had a way of walking that was — I thought

it was very sophisticated and nice, but she would —

MS. DEBOSE-PARENT: She, who?

THE WITNESS. Carolyn Saporito would say that she

didn’t think it was good, or she thought it was too suggestive.

BY MR. SCHREIBER:

Q. How did she walk? Can you describe it in words?

A. No. She walked — when she walked, she put both feet

in front of her, like everybody else.

Q. No, you just told me she walked differently. You said

she walked sophisticated.

A. Sophisticated. She walked straight up, you know, like

she had alot of self esteem.

Q. Uh-huh (Indicating an affirmative response)

A. You know, something like that. And I didn’t see

anything wrong with it, but she would make fun of it all the

time.

A-36

Deposition of Judy M. DeBose Page 104, Lines 3 -15

Q. Okay. “Telling me constantly she was going to fire

me.’ How — she told you from January, 1990, forward that

she was going to fire you? I thought you told me that she

was your friend there in the beginning.

In 1990, yeah.

All right. So when did this start?

In May Ist — during the month of May of 1991 —

Okay.

> © > © Pp

— I had purchased a Merceded-Benz. It was a used

car, but to me it was a new car. And I don’t know how she

found out I had it. She might have seen me driving it.

And she came over to my desk and she told me that,

You will be fired before you pay for it.

Deposition of Judy M. DeBose Page 104, Lines 24 - 25 & Page

106, Lines 1 - 9

Q. But you are telling me that out of the clear blue sky

she [Saporito] walked up to you and, without anything hav-

ing happened to you in terms of a — I mean other than the

performance appraisal, where she had given you the official

one and the unofficial one, without anything else having

no PIPs, no counselings, no warnings in writing no — you

know, you’re having difficulties with your, you know, this,

that, or the other aspect of your job, out of the clear blue sky

she just walks up and says, you aren’t going to be around

here long enough to pay for it?

AYN

n FF ᷣV p . . ee V

eee a ty 2 al pe as A aN eo At&t ae Soe, age ras .

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A- 37

A. That's what she told me.

Deposition of Judy M. DeBose Page 111, Lines 10 - 16

A. Right, okay. I think I addressed that earlier when

I explained that this week she may be harassing Vince and

me —

Q. Oh, okay. Uh-huh (Indicating an affirmative

response)

A. — the next week she harassed Ken and me, the next

week she might harass me. Then she might go back to Vince

and me. But it was always me, but she would change up on

Vince and Ken, or whoever.

Deposition of Judy M. DeBose Page 111, Linew 21 - 25

Q. Oh, okay. constantly and openly talking in the of-

fice about how she supported David Duke and what he was

going to do to blacks if he would win his election.” She did

this to you or in front of you?

A. In front of me.

Deposition of Judy M. DeBose Page 112, Lines 1 - 21

Q. All right. Who is she [Saporito] talking to about this?

A. On one occasion I think she was talking to Jean

Vallon. And sometimes she would just come out of her office

and say, Did anybody see David Duke on television last

night? He’s running for whatever office. And, Did you hear

when he said such and such?

A-38

But she would make connotations of what he said in

reference to blacks. You know, whatever he might have said.

He's going to get blacks off welfare, or he’s going to get them

working, because they’re lazy. Whatever —whatever he said

the night before, or if she read it in the paper, she would just

talk openly about it in the office.

Q. So others would have heard this? Like?

A. Whoever was sitting at their desks. But I think one

time she talked to Jean Vallon about it.

All right. So Vince, if he was at his desk —

Could have heard her?

—Could have heard her?

Could have heard her.

And by your account, these other —

ee ee ae

Could have been Valerie, could have been Darryl.

Deposition of Judy M. DeBose page 115, Lines 19 -25

Q. Okay. And always said — “Always talking about

blacks on welfare, referring to someone as “nigger” when

she knew I could hear her” Is this this —

A. Yeah, right.

Q. This “nigger” thing was the thing we talked about

before, where it was actually you, but roundaboutly, due to

the stolen money?