Petition for Writ of Certiorari — Russell v. Chattanooga-Hamilton County Hospital Authority

Supreme Court brief1999

Ask Donna

What actually matters in this document.

Text

98121 9 FEB 1 -19%

Supreme Court of the United States

October Term, 1998

MARLENA RUSSELL, PETITIONER

PRO-SE

Vv.

CHATTANOOGA HAMILTON COUNTY

HOSPITAL AUTHORITY

On Petition For Writ of Cert

Slathha ~_ + Ar le Cas

To The Court of Appeals f

“9 api +

a WAL Lv

PETITION FOR WRIT OF CERTIORARI

MARLENA N. RUSSELL

1915 VINE STREET

CHATTANOOGA ,,

TENNESSEE 37404

(423) 622-5494

THERE IS SQUARE CONFLICT AND LACK OF

UNIFORMITY AMONG THE COURTS OF

APPEALS WHICH DISTORTS APPLICATION OF

FEDERAL RULE OF CIVIL PROCEDURE

92(A). WHETHER THE CONFLICT OF

INTERPRETATION AMONG THE CIRCUITS,

HAS DENIED LITIGANTS ACTIVE

PARTICIPATION (FOR THE STATES WITHIN

THE SIXTH CIRCUIT); IN THE LEGITIMACY

OF FACT-FINDING THROUGH THE “CLEARLY

ERRONEOUS” RULE IN NON JURY CASES.

This question supports others:

(la) Are Courts responsible for

applying the law as permitted

under S 1981, and Title VII?

(1b) Should Petitioners rights under

42 U.S.C. SS 1981 and 1991 be

violated due to malice and

recklessness of the respondents,

and then upheld by the courts?

(lc) Whether the courts protected the

Plaintiffs Discriminatory

Infringement Rights under 42

U.S.C. S 1981.

WHETHER PETITIONER WAS DENIED DUE

PROCESS OF LAW IN VIOLATION OF

U.S.C.A. AMENDMENT 14.

PETITIONERS RIGHTS UNDER THE FEDERAL

EQUAL PAY ACT OF 1963 AS AMENDED BY

29 U.S.C. S 206 (d) (1) WERE DENIED

BECAUSE THE COURTS RELIED ON JOB

TITLES RATHER THAN ACTUAL DUTIES

PERFORMED.

THE COURTS NEVER CONSIDERED THE

STATUTORY GUIDELINES FOR THE

ADJUDICATION OF “DISPARATE IMPACT”

SUITS UNDER TITLE VII OF THE CIVIL

RIGHTS ACT OF 1964.

LIST OF PARTIES TO THE PROCEEDINGS

IN THE COURT BELOW

The caption of the case in this Court

contains the names of all parties to the

proceedings in the United States Court of

Appeals for the Sixth Circuit.

Respectfully, Judges Krupansky,

Norris, and Siler, Circuit Judges. Juage

R. Allen Edgar for the United States

District Court for the Eastern District of

Tennessee at Chattanooga.

The Chattanooga Hamilton County

Hospital Authority (“Erlanger Hospital,

Alton Park Community Health Centers, and

Dodson Avenue Community Health Centers).

TABLE OF CONTENTS

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

LIST OF PARTIES TO THE PROCEEDINGS...... ii

Bremeee CE CaO ec ce wert edtertneneaeetes iii

OFFICIAL CITATIONS & APPENDIX........... lv

TABLE OF AUTHORITIES... .ccsccccees v,Vi,viil

CE AERND DMs ecceewocsececcucteccnne viii

STATEMENT OF JURISDICITON.....ccsvccces v1il

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, RULES AND REGULATIONS......... ix

Samecmenns OF THE CASE. cc ccccccscvscceces 1

ee ee 2

Ce. SE SCRE Nic oo on 6 64640664 04485 6 oO 3

SOCELIACION. OY GER. os cc ce ceeeeebeen 6

GLOCESCE CUES CORR sé os 6 eek cee ee deeni 7

courts ruling on discrimination.......... 9

Courts ruling O7 UAMDL LIEV. cies ccisceses 12

employers articulated reason............ 13

oe a eee Serres Pee ee eee Pee Pe 16

yo eB , eee ee eee eee Tree eee 18

QUEST IGN OF DUE PROCESS. csc ccccccvceveces 19

CRO SOVOSCHOLO GUCLOIONs cise ccstccccccenen 20

QUESTION OF Bee Pl seve evcesisvccectés< 22

QUESTION OF DISPARATE IMPACT...........- 24

REASONS FOR GRANTING THE PETITION....... 24

CACO 6 coe bebe eeese an eeweweeedeeecutens 29

CEReieaceem OF SERVIiCke cctv eevsvewessaees 30

iii

OFFICIAL CITATIONS &

LIST OF APPENDIX:

Order, United States Court of

Appeals for the Sixth Circuit,

filed September 8,

i Serre rre eee ree. eee TET CT TTT eee Apdx A

Judgement Order and Memorandum Opini

United States District Court for the

Eastern District of Tennessee at

Chattanoogad filed May 14,

On,

eee ere eer er ee ee eee Apdx

Fourteenth Amendment of the

Constitution of the United States of

ae a i a ha oe oe ea ee hee

Rule 52(a) of the Federal Rules of

Civil

oy, re ey ee ee

Pertinent part of the 1991-92

and 1992-93 Personnel Budget........

CC OE. GCSE. + « oe crdenitacveeene

Letter which supports conspiracy....

(Al Head uses Jones to )

Favorable decision from the

Hospital Grievence Board............

Apdx

TABLE OF AUTHORITIES

CASES PAGES

Anderson v. Bessemer City,

N.C, 470 U.S. 564, 105 S.Ct.1504,

OG eRe 20 GAG CiPSG, thiccadecveseesdads 10

Anderson v. Liberty Lobby, Inc.,

477 0.8. 242, 106 8. Ct. 2505,

Andrews v. City of Philadelphia,

S55 F.2d 1469 (3rd Cir.1990)..cnccccecvs 1i

Barnes v Exxon Corp.,

57 FEP 1384 (S.D. Tex.

2 Pere ee ee ee eT Te ee ET ee Pee ee eT re 2

Bishop v. Wood, 426 U.S. 342

eg. PORT EVE ere ere ey, eee err eT Ce er ree 20

Blalock v. Metals Trades, Inc.,

775 F.2d. 703, 39 FEP 140

CR Sa is iw be ov 0S oe ko ok oe eee enn 19

Board of Regents v. Roth, 408

Galle BOG (ERIE) 40:4 0056ce nto deséneceunaes 19

Biship v. Wood, 426 U.S. 342 (1976)..... 20

Carey v Piphus, 435 U.S 247, 259

(at 64.6666 45 KROME OUD AE See eee wens 20

Corning Glass Works, 417 U.S. at 208,

PE DaGes De CEOs A Oe ee eee ckee cece: 23

;

ra W

iorrT .

| ;

Vaughn v. Edel, 9.2d 517, 54

PNP MUR GPR bbe ceccccecccececeee Ttrt ” ,

“ys

Watson v. F ‘

Fits 20 8... Ct. 27' . -

2G GzZi, 47 | 1°

Constitutional Provisions

Federal Rules Fourteent

Admendment to the Unite

States Constitution.

he ae ‘ 4 .

Rule 52(a) Si tne raede é

t 71) Pp OC | re¢

ViLiVisL roceaul .

OPINIONS BELOW

The September 8, 1998 decision of the

Court of Appeals for the Sixth Circuit,

whose judgement herein is sought to be

reviewed, was Case No.: 97-5732 decided on

September 8, 1998 and is unreported, and

is reprinted in the separate Appendix to

this Petition, App A.

The case was tried in the district

court without a jury on May 1, 2, and 5,

1997.

The Memorandum Opinion of the United

States District Court for the Eastern

District of Tenntssee, at Chattanooga,

entered on May 14, 1997 was Case No.:

1:94-cv-001, decided on and entered as

final judgement against the Petitioner and

dismissed the action May 14, 1997, and is

reprinted in the separate Appendix to this

Petition, App. B.

STATEMENT OF JURISDICTION

The judgement of the United States

Court of Appeals for the Sixth Circuit was

entered on September 8, 1998. The

jJurisdicition of this court is invoked

pursuant to 28 U.S.C. 1254 (1).

An application for extension of time

in which to file for a Petition of Writ of

Certiorari was filed under “extraordinary

circumstances.” The Extension of time was

granted on December 7, 1998 to and

including February 5, 1999.

viii

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, RULES AND REGULATIONS

INVOLVED

Pertinent provisions of Federal |

of Civil Procedure 52(a) a

the Appendix to this petit

pertinent provisions of th

Amendment to the United States

Constitution.

STATEMENT OF THE CASE

This case involves clear conflict

among the courts of appeals regarding

application of Federal Rule of Civil

Procedure 52 (a) and proper adaptation of

the McDonnell Douglas Formula.

The first, fifth, ninth, tenth and

D.C. Circuits have adopted the view that

the “clearly erroneous” rule applies in

all nonjury cases even when findings are

based solely on documentary evidence or on

inferences from undisputed facts.

While the second, sixth, seventh and

eight circuits hold that appellate review

may be had without the application of the

“clearly erroneous” test, since the

appellate court is in as good a position

as the trial court to review a purely

documentary record.

The Sixth Circuits view that

“appellate review may be had without the

application of the “clearly erroneous

test” revealed in this case that the Sixth

Circuit decided a hypothetical case, not

the case actually before it.

The Sixth Circuit affirmed “per

curiam” the trial courts written

memorandum opinion; but never addressed

comments, or contents of the opinion

during oral argument.

The opinion stated that comments made

to the petitioner by the respondent such

as “bitch”; petitioners behavior being

attributed to “being on her period”; men

need more money because “men need to feed

their families”; and a “black woman should

Support a black man”; were the derivation

of aggravation and “had nothing to do with

the petitioners gender.” (memorandum

opinion, APDX B page 8).

The Sixth Circuit further affirms

that the respondent would have doubtless

made the same comments to a male.

The sixth circuit condoned behavior

which affirms that the “sex-blind

reasonable person standard, tends to be

male-biased and systematically ignores the

experience of women.” Ellison v. Brady 924

F.2d 872 (9th Cir.1991).

This attitude and inconsistent

application of Rule 52(a) is so far from

the accepted and usual course of judicial

discretion that it calls for an exercise

of this Courts supervisory power.

Further, conflict in Rule 52(a) has

caused conflict in the proper adaptation

of the McDonnell Douglas formula for

promotion cases.

Many courts have simply bumbled their

attempt to adapt McDonnell Douglas to

promotion cases, see Barnes v Exxon Corp.,

57 FEP 1384 (S.D. Tex. 1991)

This conflict is starkly illuminated

by the contrast between the Supreme Courts

ruling in Stancil v. Claytor 30 FEP 730

(D.D.C. 1978), and the Sixth Circuit

decision below.

Both cases involve the adaptation of

McDonnell Douglas formula in promotion

cases.

z. BACKGROUND

In April of 1992 a request was made

for the petitioner to assist in gathering

the necessary information to support the

grant by the Federal government; and

during the process it was determined that

the two community health subsidiaries

known as Alton Park and Dodson Avenue

Community Health Centers, operating

separately and at considerable distance

iti nian

from each other, required a separate

Administrator for each of these units of

health management.

It was recommended that a separate

Administrator be appointed for the Dodson

Avenue Center, which meant that each

Health Center would have its own

Administrator. The position required

previous health care management experience

and a Masters degree. Based upon the

qualifications of the employees, it was

determined that the petitioner was best

qualified for the position.

Russell [petitioner] had two years,

upper level management experience, and

Masters Degree. Further, her performance

was excellent. For the period from

December 1990 to December 1991, Russell

rated 96.5 out of 100 percent. For the

period 1991 to 1992 she received a score

of 94.6 percent.

: - THE GRANT APPLICATION

Albert Head Executive Director of The

Health Centers and Russells’ supervisor,

created a remedy to fulfill the

requirements set forth in the grant

application. He wanted the Health Centers

to actually receive the 1.7 million

dollars in grant funding. Therefore he

had to identify the most qualified person

for the position despite the fact that

Russell was female.

“..We did have to answer those

recommendations as related to the

grant, so the grant is due August 1“,

and we did answer the recommendations

specifically regarding the Site

Administrator.” (Head at TR p. 278

line 15) 3

Entered into evidence were two personnel

budgets. (APDX E) One for 1991-1992 which

lists Russells’ title as “ Patient

Financial Services Manager” and the other

for 1992-1993 which eliminated the

position of Patient Financial Services

Manager, and listed Russells title as

Health Center Site Administrator.

The position of the Site

Administrator required the petitioner to

move her previous offices, which were

located in the Alton Park Center, to the

Dodson Avenue Center. This was

accomplished before December 1, 1992.

This move was a requirement toward

fulfillment of the grant application,

contrary to the trial courts opinion

stated on page 3 in the memorandum

opinion, that this move was “at Russells

request”.

The Administrator for the Alton Park

Health Center was Albert Head. The

petitioner became the Administrator for

Dodson Avenue Center. For some time prior

to and after the petitioner became the

Administrator she had been receiving

orders from Albert head, wino was her

superior officer.

Through a series of acts and conduct

on the part of respondents agent, Albert

Head, it became evident that at no time

did Head intend to comply with the

conditions of the grant given by the U.S.

Government to the respondent, to recognize

Russell and pay Russell as Site

Administrator, beginning December 1.

42 U.S.C. 1981, provides a remedy for

individuals who are subjected to

discriminatory performance of their

employment through sexual discrimination

or harassment. The act itself utilizes

the following example:

“That it creates a remedy for a black

Child who is admitted to a private

school as required pursuant to

section 1981, but is then subjected

to discriminatory treatment in the

performance of the contract once he

or she is attending the school.”

Thus, Russell was given the Site

Administrators position and did began

performing those duties of the Site

Administrator, as was required by the

Federal Government in order to receive the

1.7 million dollar funding. However, she

was subjected to discrimination in the

fulfillment of the contract, by being

denied the salary and job analysis of the

Administrators position.

The Trial Court whose decision was

affirmed by the Sixth Circuit had the

following discussion

(p. 477 at TR closing)

The Court: “In other words, did he [Al

Head] acquire some gender, some

gender motivation sometime

during the process of 92 and

"937"

Mr. Berke: “...The fact is that the reason

that he put her in the budget

was because by far she was the

most qualified person for the

job and that was the clear~—”

The Court: “Despite the fact that she was a

woman?”

Mr. Berke: “Despite the fact that she was a

woman.”

The Court: “Right.”

“,.Even though a supervisor

recommends a woman for a promotion,

reasonable cause to find discrimination

may be present.” EEOC Dec. no. 71-2338,

CCH Empl. Prac. Guide !6247 (June 2,

L971).

III. RETALIATION BY DEMOTION

Albert Head created a hostile

discriminatory environment which included

yelling, insulting remarks, and cursing

which ul-imately lead to Russell filing an

grievance.

On March 22, 1993 Marlena Russell

filed a grievance, using the Hospital’s

internal procedures for sex discrimination

and harassment, among other things against

the respondents agent Albert Head.

On March 26, 1993 only four days

after filing her grievance, Russell was

demoted from her position of Site

Administrator. (APDX F)

Russell received a memo from Albert

Head, written by Charlesetta Woodard-

Thompson in the Human Resources

Department, which specifically stated:

“Ms. Russell should return to her

previous position of Patient

Financial Services Manager and vacate

the Administrators office.”

This demotion frightened Russell, as The

Patient Financial Services Manager

position had been totally deleted from the

budget, and Russell salary “draw” was

being taken from the Site Administrators

position. (see apdx E)

In March , Albert Head hired Derrek

Jones, and told Russell to began reporting

to him. Russell never had a chance to

have a normal work relationship with Jones

as On March 29, 1993, ordered Jones to

remove Russell from the Administrators

office, regardless. (APDX G).

It the petitioners claim that the

respondent as prohibited by U.S.C. §

2000e-3, the respondent retaliated against

the petitioner for filing an internal

grievance claiming sex discrimination, and

harassment.

Iv. DISTRICT COURT RULING

The district court states in

memorandum that “Actually this should be

viewed as a failure to promote claim,

Since Russell was never actually given the

Site Administrators position.

Clearly here this Court should see

the need to have a uniform policy that all

Circuit Courts of appeals should have the

view that the “clearly erroneous” rule

shuld apply in all non-jury cases.

The District court totally disregard

the binding contract that was entered into

between the Federal Government and the

Health Centers. The contract specifically

made a requirement that a separate Site

Administrator be appointed to Dodson

Avenue Center as a prerequisite for

receiving funding.

There was no evidence entered into

the record by the respondent that disputed

this change in Russell Salary or job

title; accept the respondents testimony.

The District Court stated “Thus, the

plaintiffs claim is that she was not

promoted to Site Administrator because of

her gender, female.”

The district court then applied the

‘McDonnell Douglas framework, and concluded

that the plaintiff “has established the

'The McDonnell-Douglas analysis was “Never intended

to be a rigid, mechanized, or ritualistic. Rather it

is merely a sensible, orderly way to evaluate the

evidence in light of common experience as it bears

on the critical question of discrimination.” Furnco

Constr. Corp. v. Waters, 438 U.s. 567, 577 98 s.ct.

2943 2949, 57 L.Ed.2d 957 (1978).

first three, but not the fourth, element

of a prima facie case”. That being;

“that other employees of similar

qualifications who are not members of

the protected group were indeed

promoted at the time the plaintiffs

request for promotion was denied.” (R

596 Memorandum opinion p.6 )

The District further stated in memorandum

that “The site Administrator position was

never filled. No one to this day has ever

been promoted or otherwise placed in that

position.”

In Stancil v. Claytor,30, FEP 730

(D.D.C. 1978) the court utilized the same

adaptation of the fourth element as the

Sixth Circuit court stated above. The

Supreme Court concluded that this is an

incorrect adaptation of McDonnell Douglas

and that the Supreme Court’s statement

requires merely that the employer keep

looking--not that the position must be

filled by another.

Here, in fact are two errors. First,

the Courts finding that Russell was never

actually given the site administrators

position has no evidentiary basis and

should be determined to be “clearly

erroneous.” Duty v. U.S. Dept. of

Interior, 735 F.2d 1012, 1015 (6

Cit «Looe )s

Second, if it is a case in which the

McDonnell Douglas formula applies, it is

clearly an incorrect interpretation of the

fourth element. Although the Supreme

Court has stressed the need for

flexibility in adapting the McDonnell

Douglas formulation to differing fact

Situations; the courts are divided over

the proper modification of the McDonnell

Douglas formula for promotion cases.

This square conflict among the courts

of appeals means that until this court

resolves this issue; nationwide uniformity

is not possible because differing legal

Standards adopted by the courts of appeals

create confusion regarding the proper

application of the formula.

V. COURTS RULING ON DISCRIMINATION

December 1 arrived and passed and

Russell had not receive the promised pay

increase for the Site Administrators

position, nor her job description.

Jim Whisman, a male who had also been

promised a new position and pay increase

during the reorganization, received both

his job description and raise on December

Russell repeatedly requested the job

description of an Administrator, such as

Albert Head had been for a period of time,

and when no description was forthcoming,

nor was the yearly salary of $39,000.00

per annum given to the petitioner, she

confronted him.

On one occasion when Russell asked

Head about a job description, Head threw

his hands up, took a piece of paper,

rolled it up, and asked, “why is it that a

black woman always needs a piece of paper

to trust a black man.”

On another occasion Head testified

that he felt that he had a certain

responsibility to tell Russell things as a

“black man has to a black woman”. (Head at

TR p.314 line 22 -25).

When Russell inquired about the

proposed pay scale for the Health Centers

specifically with regard to possibly

having the Site Administrator position

with a higher salary than that of the

Finance Director, Albert Head responded

that “his finance person would be a man,

and men needed to feed their families.”

Once, Albert Head in the presence of

Russell and Austin Swett, a male in key

management, remarked that Ms. Russells

behavior “was due to her period”. (Austin

Swett at TR 220, Apx. at p.323; Marlena

Russell at TR 52-53, Apx. at pp. 195-96).

Albert Heads comments became more and

more crude. Head told Russell, on numerous

occasions that he “did not want to hear

her bitch.”

Head admitted after hearing himself

on tape [played in open court] that he

told Russell his feelings and his

responsibility as a black man to a black

woman about the charge of intentional

harassment. Head stated that he believed

that:

“so I think sexual harassment or

sexual discrimination is a means of

working, and one has to do the things

that are necessary to make us

successful.”

The Sixth Circuit affirmed the trial

courts citing several statements made by

Albert Head.(in memorandum p. 8)concluding

that:

“These remarks, or something similar

to them may well have been made by

Mr. Head. However, they do not lead

to the conclusion that he did not

make Russell Site Administrator

because of her gender..The derivation

of this aggravation had nothing to do

with Russell’s gender. Head would

doubtless have had the same reaction

had Russell been a male.”

Contrary to the courts ruling and obvious

abuse of judicial discretion those remarks

made by Albert Head pursuant to 42 U.S.C.

S 2000e-2 are discriminatory with regard

to gender.

Remarks and gestures apparently

intended to embarrass or humiliate a

member of the opposite sex may constitute

a violation of Title VII. Andrews v. City

of Philadelphia, 895 F.2d 1469 (3rd Cir.

1990).

“A female plaintiff states a prima

facie case of hostile environment and

discrimination when she alleges conduct

which a reasonable woman would consider

sufficiently severe or pervasive to alter

the conditions of employment and create an

abuse working environment. Ellison v.

Brady 924d F.2d 872 (9th Cir.).

Russell was recommended for the

position of Site Administrator and had a

legitimate firmly rooted expectation of

being able to receive compensation and a

job description.

The Sixth Circuit characterized

Russell request for a job description as

“pestering” (memorandum opinion page 7).

The inference can easily be made that had

Russell been male, her inquiries regarding

a job description/analysis would not have

been regarded as “pestering.”

Albert Head, by his own admission

testified that he never prepared the

necessary “internal documents” to be sent

to Human Resources reflecting Russells pay

change or her new responsibilities as Site

Administrator, even though he had

introduced Russell on more than one

occasion as the new Site Administrator.

The (memorandum opinion page

2),states that after the resignation of

Swett, Russell reported to Head. “During

this time her job duties, but not her

compensation, expanded, and

her job title changed to Patient Financial

Services Manager.”

Is the Sixth Circuit saying that

Russell should accept additional expanded

duties,for the Site Administrators

position also, without a job analysis or

compensation?

The court concluded, “Head would

doubtless have had the same reaction had

Russell been a male.” (Id.)

Contrary to the courts decision, it

is inconceivable that Al Head would accuse

a male of exhibiting a certain behavior

due to “his menstrual cycle”.

Should the Courts in this case

acknowledge the Supreme Courts rule 50a,

which is that the trial judge must direct

a verdict if, under the governing law,

there can be but one reasonable conclusion

as to the verdict.”

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 106 S. Ct. 2505, 91 L. Ed.2d 202

(1986), citing: Brady v. Southern Ry. Co.,

320 U.S. 476, 479-460, 64 S. Ct. 232, 234-

235, 88 L.Ed. 239 (1943).

Vi. COURTS RULING ON LIABILITY

The Sixth Circuit further affirms in

(memorandum p. 8) that “liability in a

disparate treatment case depends on

whether the protected trait actually

motivated the employer’s decision

Plaintiff has not proven such motivation

by a preponderance of the evidence”

In Trans World Airlines v. Thurston,

469 U.S. 111, 105 S&S. Cl. Gis, Ge wens

523, 36 FEP 977, 982 (1985); The Supreme

Court stated in this case that “the

McDonnell Douglas test is inapplicable

where the plaintiff presents direct

evidence of discrimination.

BEST AVAIL

Most of the lower courts have applied

this rule in cases under S 1981 Fifth

Circuit: Ramirez v. Sloss, 615 F.2d 163,

22 FEP 768 (5th Cir); and Title VII Fifth

Circuit: Vaughn v. Edel, 918 F.2d 337, Sé€

FEP 870 (Sth Vir. 1990); Eleventh Circuit

EEOC v. Alton Packaging Corp., 901 F.2d

920, 52 FEP 1734 (llth Cir. 1990).

The Sixth Circuits decision

suppe ing this ruling precedes the

legis. “ive change in 1991, whereby the

employ: : could avoid liability by proving

that the same decision would have been

made absent the discrimination. Fields v.

Clark Univ., 817 F.2d 931, 43 FEP 1247

(ist Cir. 1987).

Since the legislative change in 1991,

the employer can no longer avoid full

liability, instead, the plaintiff

continues to be eligible for declaratory

and injunctive relief.

VII. EMPLOYERS ARTICULATED REASON

Albert Head testified that the reason

Russell never received the increase in

Salary or the job description is because

he never intended to give her the Site

Administrators position.

Despite the fact that he gave Signed

documents to the Government Saying that he

had given Russell a job description and

the increase in salary; Head alleges that

Russell committed three acts of

mismanagement that gave him concern.

Those being, she mishandled a

disabled employee, she leaked confidential

information to a nurse and a doctor and

she was having problems with the new

computer system. Head went on to Say that

a February 1993, report that he requested

gave him more concern.

Al Head, conspired to have Patsy

Johnson and Lois Uren, who had never met

Russell, do an evaluation on her. That

evaluation led to Russell filing a

grievence.

The Hospitals’ Vice President ordered

that a letter of apology be written to

Russell. Further, Al Head alleges only

the “tone” of the letter was at dispute;

however, the report in its entirety was

ordered destroyed. Russells personnel

file remains unblemished.

Albert Head testified that despite

all these things which supposedly gave him

grave concern, he never discussed them

with Russell, and “I never wrote her

[Russell] up.”

“The failure to give an employee the

constructive criticism afforded other

workers, thereby jeopardizing her ability

to improve her performance is actionable

discrimination. Vaughn v. Edel 918 F.2d

5917 (Sth Cir. 1990).

The trial court had the following

conversation, with regard to the employers

articulated reason:

(Page 474 closing at TR)

The Court: “And that is an explanation.”

Mr. Berke: “It is an explanation. I

believe he’s also added since

his deposition he’s added this

explanation about the person

with the disability and the

potential liability.”

Page 475 closing at TR.

Mr. Berke: “He’s added that. I think the

proof was clear that he had

ican ileal Saal

never come up before this trial

date, I think.”

The Court: “Okay. “But back to my

guestion, what evidence is there

that that personnel action was

gender related.”

Justices Souter, White, Blackmun and

Stevens wrote a dissent that the majority

had abandoned the McDonnell Douglas

framework. That framework, in particular

the requirement that the defendant

articulate the reasons for its actions,

functions to narrow the focus of the

inguiry at trial....

“once again the plaintiff is unfairly

charged with the responsibility of

rebutting every possible reason that

might have been a part of the

employer’s mental processes.” And

the majority’s rule transforms the

plaintiff showing of pretext into a

“misleading and potentially useless

ritual.”

Souter, J., dissenting, 113 S. Ct. at

2761, 62 FEP at 110 Finally, according to

the dissent, the majority’s rule would

encourage employers to lie: if an employer

articulates no reasons for its actions in

response to a prima facie case, it would

automatically lose, but if it presents

false reasons, it has an opportunity to

win.

According to Senator Metzenbaum, the

St.Mary’s ruling “rewards employers who

fabricate nondiscriminatory explanations

after the fact...”439 U.S. 24, 99 8S. Ct

295, 58 L. Ed. 2d 216, 18 FEP 520 (1978).

The Sixth Circuits failure to apply

the appropriate law is reversible error

and is reviewable “de novo”.

ale

VIII. RETALIATION

Russell specifically asked in her

March 22, 1993 internal grievance to be

given “the opportunity to serve out a four

week notice, in order to leave in good

standing”.

In response to Russells grievance

request, during one of the hearings,

Albert Head told Russell that she “would

not leave the Health Center in good

standing.”

Russell interpreted this to mean she

would be fired. Russell told Charlesetta

Woodard-Thompson the Hospitals Human

Resources agent, that Albert Head had

threatened to retaliate against her.

At trial Woodard Thompson testified

that Russell did tell me that “she feared

she would be retaliated against.”

(Charlesetta Woodard-Thompson at TR 470,

Apx. at p. 513).

On May 4, 1993, Russell filed a |

charge of discrimination with the

Tennessee Human Rights Commission and the

EEOC, and on May 25 they found a reason to

terminate Russell.

The petitioners job reguired her to

assist the director of finance [Derrek

Jones) in the daily financial operations

of the health centers. Picking up empty

banks, and then giving them to an armed

security guard, to take monies back to the

bank was part of the daily financial

operations in which Russell assisted

Jones.

On May 24th, Jones and Albert Head

went to the bank but neither of them

picked up the bags while they were

there. (Derrek Jones at TR p. 388 line 13;

p. 396 line 2-7).

On May 25th, not knowing what the

Status of the bags were, and being short

of staff, Russell placed 3 calls and left

messages for Jones which were not

returned. Russell then sent her staff

person Rosetta Price to attempt pick up of

the bags.

Russell was afraid to leave the

health center because she feared that if

she left her department and an emergency

arose, she would be fired for leaving the

staff unsupervised and the department

unmanned.

She knew that Jones and Head were

looking for reasons to fire her. She

decided to document the Situation,

Approximately 30 minutes before the

banks closing, Jones called Russel] and

instructed her to pick up the empty bank

bags. Russell explained that she was

attending to a hysterical patient and

other administrative duties, and could not

Carry out the his immediate request.

Jones insisted that Russell leave the

Site, despite the hysterical patient and

pick up empty bank bags. Russell then

suggested an alternative solution of

picking up the empty bank bags the

following morning.

She then reminded Jones that the

security guard who was required to take

the money back to the bank was out Sick,

and that meant that the money would be

housed in the safe, anyway.

On May 26, 1993, three weeks after

filing her charge with EEOC, Russell was

terminated.

Russell was discharged for refusing a

direct order. There was no investigation

of the situation or prior warning.

Despite the fact that three other lesser

disciplines were available, Jones and Head

imposed the most severe consequence.

The firing was the act of conspiracy.

It was initiated by Albert Head.

Entered into evidence was the notice

of firing or discharge papers which was

signed by Albert Head and Derrek Jones.

The sixth circuit affirmed the

(memorandum opinion on page 11) that “the

instigator of Russell’s departure was

Derrek Jones, not Albert Head.” Even

though, Al Head testified that he signed

the orders for Russells discharge.

Six days after Russells firing on

June 1, 1993, Russell was replaced by Lois

Uren, a High School graduate, white

female, who had wrote a negative report on

Russell, that was ordered to be destroyed.

The trial court states in (memorandum

opinion p. 10) that the Plaintiff has

established the first three elements of a

prima facie case, but not the fourth

element; that being (d) that there was a

casual connection between the protected

activity and the adverse employment.

Contrary to the Sixth Circuit

opinion, Russell did establish a casual

connection between the filing of her claim

with the Equal Employment Opportunity

Commission and her firing.

The cumulative weight of this

Circumstantial evidence in the face of the

courts assertion that here was virtually

no evidence from which to infer

retaliation shows that the Sixth Circuit

courts findings were clear error and

should be vacated.

IX WHEN IS THE MCDonnell DOUGLAS TEST

INAPPLICABLE

“The McDonnell Douglas test is

inapplicable where the plaintiff presents

direct evidence of discrimination.

“ Trans World Airlines v. Thurston, 4169

U.S. 111, 105 S. Ct. 613, 83 L. Ed. 2a

923, 36 FEP 977, 982 (1985).

Also, contrary to this Sixth Circuit

opinion, the lower courts cited below have

all applied this change in the McDonnell

Douglas rule in cases under Title VII and

S 1981, namely Sixth Circuit: Blalock vy.

Metals Trades, Inc., 775 F.2d. 703, 39 FEP

140 (6° Circuit 1985);Eleventh Circuit:

EEOC v. Beverage Canners, Inc., 897 F.2d

1067, 52 FEP 878 (11 Circuit).

Contrary to the Sixth Circuit Court

opinion, it is inconceivable that Albert

Head would accuse a male of acting a

certain way due to him “being on his

period.”

Albert Heads remarks are clearly

sexist, and they are not remarks that Head

would have made to a male.

When asked specifically did he not

believe that his responsibility should be

as a black manager to a black manager,

Head stated “ No, he had a responsibility

to Russell as a black man to a black

woman.”

The Sixth Circuit courts finding is

clearly erroneous and should be reviewed.

DUE PROCESS OF LAW AMENDMENT 14

I. LOSS OF EMPLOYMENT

In a series of cases, the Supreme

Court has recognized a property right in

continued employment as “intangible

property.” Board of Regents v. Roth, 408

U.S. 564 (1971); Perry v. Sindermann, 408

U.S. 593 (1972); Bishop v. Wood, 426 U.S.

342 (1976).

The petitioner believes that she had

a continued right to employment at the

Hospital, protected by procedural

safeguards of due process that were not

observed in this case. The Court in

various respects participated in

unlawfully depriving the petitioner of

egual protection of the law, due process

of law, and equal employment.

This violation was filed in the

petitioners original complaint which

alleged that by virtue of S 102 of the

Act of 1991 of Title VII, the plaintiff is

entitled to not only compensatory damages,

but also punitive damages, because the

conduct of respondents agents toward the

plaintiff was with malice and reckless

disregard and indifference to the

plaintiffs rights under 42 U.S.C. SS 1981

and 1991. (see page 6 and 7 of the

Original complaint item 8). The trial

court did not even recognize the

plaintiffs civil claim.

“Procedural due process rules are

meant to protect persons from the mistaken

or unjustified deprivation of life,

liberty, or property.” Carey v Piphus,

435 U.S 247, 259 (1978).

II. FAVORABLE DECISION

It is petitioners belief that “due

process” rules along with her Civili Rights

under act of 1964, 701 et segq., 442

U.S.C.A. s 2000e et seq were admittedly

violated by the Hospital, through the

issuance of a favorable decision from the

Hospitals Grievance Board. (APDX BH)

The Hospital had several progressive

steps for the grievance hearing and it was

ot until July 30, 1993 that Russell

eceived a favorable decision. The

ospital Grievance Board was aware that

ussell had filed an official complaint

th EEOC on May 4, 1993, but were unaware

hat Russell had been fired May 26, 1993,

Nr)

1€ board acknowledged Russells offer of

Signation. The favorable decision

tated that:

Russell be paid all the money she

would have earned for the position of

Administrator listed in the proposal,

which contained her name and was

submitted to the Department of Health

and Human Services in Atlanta,

Georgia for the said 1993 grant.

KRHet sw

t @

Z< That Russell be given a letter of

recommendation for future employment

by Albert M. Head, based upon her

last excellent evaluation score of

94.6

cB That Mr. Albert Head be instructed by

the Board of Directors to write a

letter to Mrs. Russell, apologizing

for all remarks by him that she found

offensive and for any

misunderstanding that occurred from

lack of communications concerning her

employment at the Health Centers.

The Grievance Board decision was

acceptable to Russell, and should have

been binding.

Despite this binding decision, Albert

Head willfully and maliciously avoided the

favorable decision when he changed the

grievance procedure that had been in

effect for a number of years.

With that, he reappointed new

members to the grievance board, adjusted

Russells monetary award, and refused to

write a letter of apology. Shortly

thereafter, Russell requested a right to

sue letter from EEOC.

An employer is responsible for the

behavior of someone in a supervisory

Capacity, and is accountable for a hostile

work environment. Most courts hold that

“liability will turn on the actual or

constiuctive knowledge of the employer.”

Karibian v. Columbia Univ., 14 f£.3D 773,

780 (2d Cir.1994)

3.EQUAL PAY

The courts dismissed petitioners

claim under the (EAP), for failure to

prove a prima facie case. This finding

was Clearly erroneous as the evidence

shows that Russell was performing at the

manager level.

The courts stated in memorandum the

test for a prima facie case under the EPA:

a plaintiff must show that “she performed

a job that required substantially equal

skill, effort, and responsibility but that

she received less than equal pay.”

Congress did not intend through the

use of the phrase”equal work” to require

the jobs be identical. Shultz v. Wheaton

Glass Company, 421 F2d. 259, 265 (3°

Circuit).

The EPA discusses key issues, those

being that the plaintiff is doing

substantially equal work on jobs the

performance of which requires

substantially equal skill, effort, and

responsibility; and that the plaintiff is

paid a lower wage than members of the

opposite sex doing equal work; and that

the plaintiff has been paid less because

of their sex.

;

AE TS Mie MPR ORS SY Bie at BP:

The salary for the Patient Financial

Services Manager was $31,005.00, which was

less than any other key manager. Russell

managed 3 departments at 2 locations.

The salary for the Site Administrator

was budgeted at $39,000.00, also less than

any of the salaries in key management at

that time. (see APDX E). All Key other

management positions were held by men.

Albert Head whose salary was

$69,000.00, told Russell during the

vacancy of the Finance Directors position

that this person would be a man and “men

needed to feed their families;” therefore,

this person would need to make more money

than Russell.

Derrek Jones filled the Finance

Directors position, Overseeing 2

departments at 2 locations. He hired in

making $41,750.00. Prior to hiring Jones,

Russell assumed the Finance Directors

duties. The courts rationale for claiming

that Russell did not meet the prima facie

test was that she never held the job of

Site Administrator.

The United States Supreme Court in

Corning Glass Works, stated that the EPA

should be construed and applied to achieve

a broad remdial purpose, and Courts should

not sanction practices which “would

frustrate, not serve Congress’ ends.”

Corning Glass Works, 417 U.S. at 208, 94

S.Ct. at 2228.

As the evidence shows, the petitioner

did prove a prima facie case for a

violation of the EPA, and the respondent

failed to carry its burden of proving that

the pay differential fell under one of the

exceptions to the Act. Therefore, this

Court should overturn the judgment of the

Sixth Circuit and remand the case for

determination of damages due the

petitioner under the EPA.

4. DISPARATE IMPACT

The Court of Appeals for the Sixth

Circuit never considered the statutory

guidelines for the adjudication of

“disparate impact” suits under title VII

of the Civil Rights Act of 1964. The line

between these two categories of cases is

not always clear. In fact it is not

uncommon for a “disparate impact” claim

and a “disparate treatment” claim to arise

in the same litigation, some times on the

same facts.

In Watson v. Forth Bank & Trust 48/7

U.S. 977, 108 3S. CO.2717, 101 Le EG. 2d

827, 47 FEP 102 (1988); the courts held

that by confirming that an employer’s

subjective promotion practices may be

analyzed under disparate impact theory as

well as disparate treatment theory. In

fact an “employment practice” need not be

more than a single decision by an employer

to be brought under disparate impact

theory.

REASONS FOR GRANTING THE PETITION

FOR A WRIT OF CERTIORARI

This case involves clear conflict

among the courts of appeals regarding

application of Federal Rule of Civil

Procedure 52(a).

Accordingly, Rule 52(a) was amended

in 1985 to avoid continued confusion and

conflicts among the circuit as to the

standard of appellate review of findings

of fact by the court.

Still, the ‘first, ‘ fifth, “ninth,

‘tenth and °D.C. circuits have adopted the

view that the “clearly erroneous” rule

applies in all nonjury cases even when

findings are based solely on documentary

evidence or on inferences from undisputed

facts.

While the “sixth, seventh, second and

eight circuits hold that appellate review

may be had without the application of the

“clearly erroneous” test, since the

appellate court is in as good a position

as the trial court to review a purely

documentary record.

The Sixth Circuits view that

“appellate review may be had without the

application of the “clearly erroneous

test” revealed in this case that the Sixth

Circuit decided a hypothetical case, not

the case actually before it.

The Sixth Circuit affirmed “per

curlam” the trial courts written

memorandum opinion; but never addressed

comments made in the opinion during oral

argument.

That opinion stated that comments

made to the petitioner Dy the respondent

Cy)

onstructora Maza, inc., v. Banco de Ponce,

F.2d 573, 576 (1st Cir)

United States v. Texas Education Agency, 647 F.2d

5904, 506-07 (Sth Cir. 1981).

‘Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir F

cert denied, 459 U.S. 976 (1982).

Sierra Trading Corp., 482 F.2d 333, 337 (10th Cir.

1973}.

Case v. Morrisette, 475 F.2d 1300, 1306-07 (D.c

Cif,1973}..

‘Lydle v. United States, 635 F.2d 763, 765 n. 1 (6th

ir. 1981).

hn R. Thompson co. v. United States, 477 F.2d

164, 167 (7th Cir.1973).

Taylor v. Lombard, 606 F.2d 371, 372 (2d Cir.

1979).

' Swanson v. Baker Indus., Inc., 615 F.2d 479, 483

‘ Px

such as “bitch”; petitioners behavior

being attributed to “being on her period”;

men need more money because “men need to

feed their families”; and a “black woman

should support a black man”; were the

derivation of aggravation and “had nothing

to do with the petitioners gender.”

(memorandum opinion, APDX B page 8).

The Sixth Circuit further affirms

that the respondent would have doubtless

made the same comments to a male.

The Sixth Circuit took literally that

the factual findings of.the trial court

reviewed on appeal could be made without

the “clearly erroneous test:” and thereby

they simply affirmed the trial courts

findings without review.

Also, the findings in this case, are

based on documentary evidence and

undisputed facts that were presented by

the petitioner, of which the respondent

refutes only by articulation of witnesses.

This is not the intent of Rule 52 (a).

At issue is the statement that:

“to permit courts of appeals to share

more actively in the fact-finding

function would tend to undermine the

legitimacy of the districts courts in

the eyes of the litigants.”

While the intent is a good one, in some

cases, as in this one, the circuits do not

review any materials, based on the

assumption that the trial court is without

€rror. The Supreme Court admittedly has

not resolved the issue. See Pullman

Standard v. Swint, 456 U.S. 273, 293

(13982).

This decision if left unreviewed will

have severe adverse consequences

throughout the Federal Judicial system as

1t will condone at the highest judicial

level the Sixth Circuit affirmation that

the “sex-blind reasonable person Standard,

tends to be male-biased and Systematically

ignores the experience of women.” Ellison

Vv. Brady 924 F.2d 872 (9th Cir. 1991)

This attitude and inconsistent

application of Rule 52(a) is so far from

the accepted and usua] course of judicial

discretion that it Calls for an exercise

of this Courts’ Supervisory power.

Further, conflict in Rule 52(a) has

caused conflict in the Proper adaptation

of the McDonnell Douglas formula this

promotion case.

The conflict is Starkly illuminated

by the contrast between the Supreme Courts

ruling in Stancil y. Claytor 30 FEP 730

(D.D.C. 1978), and this Sixth Circuits

decision below. Both cases involve the

adaptation of McDonnell Douglas formula in

promotion cases.

The Sixth Circuit in this case

concluded that “the plaintiff [Russell]

has not made out a prima facie case. She

has established the first three but not

the fourth element.” That being;

(d) that other employees of similar

qualifications who are not members of

the protected group were indeed

promoted at the time the plaintiffs

request for promotion was denied.

The court went on to Say that “The Site

Administrator position was never filled.

No one to this day has ever been promoted

or otherwise placed in that position.”

(Memorandum opinion Pp. 6.)

In Stancil v. Claytor, the court

utilized the same adaptation of the fourth

element as the Sixth Circuit court stated

above. The Supreme Court concluded that

this is an incorrect adaptation of

McDonnell Douglas and that the Supreme

Court’s statement requires merely that the

employer keep looking--not that the

position must be filled by another.

The Eighth Circuit in Lams v. General

Waterworks Corporation , 766 F.2d 386, 38

FEP 516 (8th Cir. 1985) commented that

that four-part McDonnell-Douglas formula

was of little use in deciding the case,

and that the district court should have

considered the plaintiff’s claim.

Although the Supreme Court has

stressed the need for flexibility in

adapting the McDonnell Douglas formulation

to differing fact situations; the courts

are divided over the proper modification

of the McDonnell Douglas formula for

promotion cases.

Every court of appeals has addressed

this question; however, differing legal

standards adopted by the courts of appeals

create confusion regarding the proper

application of the formula.

This has resulted in the Sixth

Circuit courts of appeals deciding an

important application of law which

conflicts with @ prior relevant decision

made by this court.

This Court should grant review to

clarify the governing standard and prevent

the enormous waste of both judicial and

private resources that is the inevitable

real-world result of these conflicting

rulings.

CONCLUSION

For the foregoing reasons, the Sixth

Circuit Court of Appeals decision and

affirmation of the District Court’s

judgment should be vacated and a decision

on the merits rendered by this Court

Wad

Morfian A ra

Respectfully submitted this 29th

seein sll Russel]

1915 Wrfie Street

CERTIFICATE OF SERVICE

The undersigned hereby certifies that

a true copy of the foregoing Petition of

Certiorari has been properly served this

29th day of January, 1999, to all

interested parties in this cause via U.S.

certified mail to:

J. Robin Rogers

Christine Scott

Carlos Smith

STRANG, FLETCHER, CARRIGER, WALKER

HODGE & SMITH

400 Krystal Bldg. 1 Union Square

Chattanooga, Tennessee 37402

J Meade wlan { Bus sel

Russel

APPENDIX A

ORDER, U.S. COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CASE NO. 97-5732

FILED SEPT.8,1998.

Pages A - A-1

MARLENA N. RUSSELL,

Plaintiff-Appellant,

CHATTANOOGA-HAMILTON

COUNTY HOSPITAL AUTHORITY,

Defendant-Appellee.

NOT RECOMMENDED FOR PUBLICATION

No. 97-5732

FILED

SEP 0 8 1998

LEONARD GREEN, Clerk.

UNITED STATES COURT OF APPEAL NOT

RECOMMENDED FOR FULL-TEXT

PUBLICATION

APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF

TENNESSEE |

MEMORANDUM OPINION |

BEFORE: KRUPANSKY, NORRIS, and SILER,

Circuit Judges.

PER CURIAM. Plaintiff, Marlena N. Russell,

appeals from a judgment rendered against

her by the. district court following a

trial to the court. In her lawsuit, she

contended that she was the victim of

gender discrimination and retaliation. The

court provided the parties with its

findings of fact and conclusions of law.

APPENDIX A

Having had the benefit of oral argument,

and having carefully considered the record

On appeal, the briefs of the parties, and

the applicable law, we are not persuaded

that plaintiff has demonstrated clear

error by the district court in its

findings of fact, or any commission of an

error of law that would warrant reversal.

No. 97-5732 Russell v. Chattanooga-

Hamilton County Hosp. Auth.

Because the reasoning supporting Judgment

for defendant, Chattanooga-Hamilton County

Hospital Authority, has been articulated

by the district court, the issuance of a

detailed written opinion by this court

would be duplicative and serve no useful

purpose.

—

b 3

ule

40)

“J

Cc?

ffirmed upon the reasoning

Apdx A-1

APPENDIX B

JUDGEMENT ORDER

AND MEMORANDUM OPINION

DISTRICT COURT NO. 1:94-CvV-001

FILED MAY 14, 1997.

Pages B - B-12

. CL’ DAT ro ina TAH

sas & 24irti r r ATT

A i & if j j » be

‘ “Y Amn n 1.4 —

lan A +

4fad i FAlN

Ay T ATT AT ,

Swett. However, when Albert Head

("Head") became Director of the health

centers in 1991, and after Mr. Swett

resigned in August 1992, Russell reported

to Head. During this time her job duties,

but not her compensation, expanded, and

her job title changed to Patient Financial

Services Manager.

The health centers provide medica]

services in low income geographical areas.

The centers are funded in part by federal

grants. In the spring or summer of 1992,

federal officials reviewed the operation:

of the health centers and made certain

recommendations as to how they might be

operated more effectively. Among the

recommendations was that a "Site

Administrator" be placed at the Dodson

Avenue location. Albert Head discussed

this position with Russell, and there

seems to have been a fairly clear

understanding between Head and Russel]

the fall of 1992 that Russell would

eventually be placed in the Dodson Avenue

Site Administrator slot. The target date

was December 1, 1992, which at that time

was the beginning of the fiscal] year for

the centers. The Salary for this new

position was to be $39,000 per annum.

Russell was making $32,000 per annum.

Patient Financial Services Manager.

In 1992 the defendant directed that

the health centers integrate their

bookkeeping and records with that of the

defendant hospital. The hospital's syste

was known as the "BHIS" system. This

integration proved to be difficult,

was not anywhere near completion by

December 1, 1992,

APDX B-2

Russell, in her financial job, was

important to this effort. Thus, Mr. Head

decided that he needed Russell to perform

her current job more than he needed a Site

Administrator at that time. Therefore,

sometime around December 1, 1992, he

advised Russell that he was postponing the

job change, and would take another look at

the situation around March 1, 1993.

Meanwhile, Russell kept pressuring Head by

asking for a job description of the Site

Administrator's job, and even preparing

one herself. At Russell's request, Head

did allow Russell to move her office to

the Dodson Avenue location in late

November 1992. The delay irritated Russell

and affected her attitude toward her job.

This attitude, and a few other matters,

caused Head to become disenchanted with

Russell. These other matters included his

perception that Russell had mishandled a

problem with an employee with a

disability; her sharing of confidential

information with other employees; and

problems that Russell had with the BHIS

conversion.

At the beginning of March 1993, the

plaintiff was not put in the

administrator's position. Derrek Jones

("Jones") was hired as Director of

Financial Operations, and plaintiff was to

report to him. This caused Russell, who

was already disgruntled, to become even

more disgruntled. On March 22, 1993,

Russell filed a grievance which was

handled within the defendant's in-house

grievance procedures. In this grievance,

she complained that actions taken by Head

amounted to "sexual discrimination,

harassment, deliberate deception, and

dishonesty."

APDX B-3

Before this grievance could be

resolved, the plaintiff on May 4, 1993,

filed a charge with the Equal Employment

Opportunity Commission ("EEOC") alleging

that Mr. Head and the defendant hospital

authority discriminated against her

because of her sex. This charge, as

subsequently amended in October 1993,

forms the jurisdictional predicate for

this case.

The Dodson Avenue Center has daily

cash receipts. They fall in the range of

$800 to $1,100 per day. It is defendant's

policy, for daily accounting and security

reasons, that these receipts be brought to

the bank approximately four blocks away

after the close of business each day. The

receipts must be locked in cloth bank bags

and placed in the bank's night deposit.

Each business day the bags must be picked

up at the bank for use in that night's

deposit.

On May 25, 1993, Russell, along with

two other employees, was registering

patients at the Dodson Avenue Center. She

sent another employee, Rosetta Price, to

pick up the bank bags. Price, however, was

unable to pick up the bags because her

name and signature were not on the bank's

authorization list. At this point, Russell

made up her mind that she would not pick

up the bags on that day, May 25th. In a

telephone call later that afternoon with

her supervisor, Derrek Jones, who was at

the Alton Park Center, Russell told Jones

that she could not pick up the bags

because the bank did not have her

Signature. Jones, after checking, advised

Russell that the bank did indeed have her

Signature and that she was authorized to

pick up the bags.

APDX B-4

(Later Russell was to assert that she

could not leave the center because at 3:30

p.m., about the time she talked to Jones

on the phone, an hysterical woman came

into the clinic needing attention.)

Jones, over the phone, directed

plaintiff three times to pick up the bags,

advising her that she had plenty of time

to do it, the bank being only four blocks

away. Yet, plaintiff refused to pick up

the bags, finally telling Jones that she

wasn't going to “argue™ about it, and that

the day's cash receipts would be kept in

the center's safe that night, and not

placed in the bank. The bags were not

picked up that evening. Instead, Russell

drafted a memorandum to Jones wherein she

complained that the bank bags would not be

picked up because the center had not done

the necessary paperwork to authorize

Rosetta Price to pick up the bags.

After Russell had refused to pick up

the bags on May 25th, Jones checked with

he defendant's human resources office and

was advised that a refusal to follow job

instructions was a Class IV offense under

the defendant's discipline policies, and

that Jones had the option of terminating

the plaintiff for this. Jones pondered

what to do. He knew about Russell's March

22, 1993 grievance, but not about the EEOC

charge that had been filed on May 4th.

While he discussed the situation with Al

Head, it was left to Jones to make the

jecision about firing the plaintiff. When

he viewed Russell's May 25, 1993

memorandum the next morning, Jones decided

to terminate Russell. He viewed this

memorandum, by its omissions, as

materially misrepresenting the reasons for

APDX B-5

Brown v. Tennessee, 693 F.2d 600, 603 (6th

Cir. 1982). The plaintiff has not made out

a prima facie case. She has established

the first three, but not the fourth,

element of a

prima facie case. The Site Administrator

position was never filled. No one to this

day has

ever been promoted or otherwise placed in

that position. In short, there are no

circumstances here which give rise to an

inference of unlawful discrimination.

If Russell has established a prima

facie case, the defendant has indeed

satisfied its burden of production to

produce evidence that its failure to

promote plaintiff was for legitimate,

nondiscriminatory reasons. See Texas

Department of Community Affairs v.

Burdine, 450 U.S. 248, 254 (1981). The

defendant hospital determined that,

despite the recommendations of the federal

grant administrators, it did not need to

fill the position. In addition, there were

matters relating to the plaintiffs job

performance that gave Albert Head some

second thoughts about placing plaintiff in

the Site Administrator position. Among

such matters were Russell's continually

pestering Head about a job description;

Russell's handling of a disabled employee

at Dodson Avenue; and difficulties

plaintiff was having with the BHIS system.

Since defendant has not met its burden of

production, it is incumbent upon plaintiff

Russell to prove by a preponderance of the

evidence that the real reason she wasn't

given the Site Administrator job is her

gender. St. Mary's Honor Center v. Hicks,

509 U.S. 502, 506-07

APDX B-7

(1993); Burdine, 450 U.S. at 256. She

has not met this burden.

Russell cites, in support of her

discrimination contention, several

statements made by Mr. Head in 1992 and

1993. Among these statements are the

following:

(1) Head remarked on one occasion that he

did not want to hear plaintiff "bitch."

(2) When discussing the job description,

Head say, "Why is it that a black woman

has to have a piece of paper to trust a

black man?"

(3) Head told her that as a black woman

she should support Head as a black man.

(4) Head said at a meeting of employees

that, “Brown people will rule the world."

(5) Head at one point observed that

plaintiff must be "on her period. "

These remarks, or something similar to

them, may well have been made by Mr. Head.

However, they do not lead to a conclusion

that he did not make Russell Site

Administrator because of her gender. Some

of the remarks may have been

inappropriate, but they generally reflect

Head's growing aggravation with Russell.

The derivation of this aggravation had

nothing to do with Russell's gender. Head

would doubtless have had the same reaction

had Russell been a male.

APDX B-8

"Liability in a disparate treatment case

depends on whether the protected trait

actually motivated the employer's

decision." Hartsel v. Keys, 87 F.3d 795,

800 (6th Cir. 1996), cert. denied, U.S. ,

117 S. Ct. 683, 136 L. Ed. 2d 608 (1997).

Plaintiff has not proved such motivation

by a preponderance of the evidence.

B. Retaliation

Plaintiff claims that her termination on

May 26, 1993, was in retaliation for her

having engaged in protected activity, and

thus in violation of 42 U.S.C. § 2000e-3.

The four elements of a prima facie

retaliation case are:

(1) that she engaged in activity protected

by Title VII;

(2) that this exercise of protected civil

rights was known to the defendant;

(3) that defendant thereafter took an

employment action adverse to the

plaintiff; and

(4) that there was a causal connection

between the protected activity and the

adverse employment action.

Canitia v. Yellow Freight System, Inc.,

903 F. 2d 1064, 1066 (6th Cir.), cert.

denied, 498 U.S. 984 (1990).

APDX B-9

Plaintiff has established the first

three elements of a prima facie case, but

not the fourth element. She did engage in

protected activity (filing the grievance

and the EEOC charge); this was known to

the defendant; and plaintiffs employment

was indeed terminated. At issue here is

the causation. Other than the

circumstantial fact that her discharge

came after Russell's protected activity,

the only evidence which might be construed

as indicating a retaliatory motive is

plaintiffs testimony that Mr. Head at some

point said that plaintiff would "not leave

in good standing." This statement is, at

best, ambiguous.

Assuming, however, that plaintiff has

made out a prima facie case of

retaliation, the defendant has satisfied

its burden of production to articulate a

nonretaliatory motive for its action.

Defendant says that plaintiff was

terminated for refusing to comply with

instructions given her by her Supervisor,

1.e., the instructions to pick up the bank

bags. Much of the proof in this case

Swirls around the "bank bag" incident of

May 25, 1993. The facts comprising this

incident are recited above. What happened

here was that Russell was so angry and

disgruntled with the defendant hospital,

with Mr. Head, and especially with having

to report to Jones, she just decided that

she was not going to comply with Jones'

instructions to pick up the bags.

Russell's insubordinate conduct gave Jones

ample cause to terminate her.

APDX B-10

Having the bank bags available for the

night deposit was indeed important to the

health centers. The instigator of

Russell's departure was Derrek Jones, not

Albert Head. Jones had no reason to

retaliate against Russell for filing a

grievance. He did not even know about the

EEOC charge. In sum, Russell has not

proved that her discharge was the result

of retaliatory motive. Canitia, 903 F.2d

at 1067.

Equal Pay

Finally, plaintiff claims that the

defendant violated the Equal Pay Act, 29

U.S.C. § 206. To establish aprinwfacie

case, the plaintiff must show that "she

performed a job that required

substantially equal skill, effort, and

responsibility, but that she received less

than equal pay. Rabidue v. Osceola

Refining Co., 805 F.2d 611, 623 (6th Cir.

1986), cert. denied, 481 U.S. 1041 (1987).

Russell has made no such showing. Russell

points to a discussion that she had with

Albert Head about the proposed pay scale

for the health centers. She asserts that

she complained to Head that the Dodson

Avenue Site Administrator should have a

higher salary than that of the Finance

Director for the centers,

instead of vice versa. Head reportedly

responded something to the effect that his

finance person would be a man, and men

needed to feed their families. This

mindset is indeed the kind of thing

against which the Equal Pay Act is

undoubtedly directed. However, we cannot

here compare the Finance Director position

with the Site

APDX B-11

Administrator position because plaintiff

was never placed in either job. Moreover,

we know nothing about the skill, effort,

and responsibility that is required for

those jobs. In short, the plaintiff has

not presented any evidence that she

received less pay than any employee, male

or female, who was performing a job that

required substantially equal skill,

effort, and responsibility as compared to

any job that plaintiff held. Therefore,

her equal pay claim fails.

A judgment will enter for the defendant.

R. ALLAN EDGAR

UNITED STATES DISTRICT JUDGE

APPENDIX B-12

APPENDIX C

FOURTEENTH AMENDMENT

TO THE

CONSTITUTION OF THE UNITED

STATES OF AMERICA

APPENDIX D

RULE 52 (A) FEDERAL RULES OF

CIVIL PROCEDURE

AMENDMENTS TO THE CONSTITUTION

OF THE UNITED STATES

AMENDMENT XIV

Article 14 section 1

All persons born or naturalized in

the United States and subject to the

jurisdiction thereof, are citizens of the

United States wherein they reside. No

state shall make or enforce any law which

shall abridge the privileges or immunities

of citizens of the United States; nor

process of law; nor deny to any person

within its jurisdiction the equal

protection of the laws.

APPENDIX C

FEDERAL RULES OF CIVIL PROCEDURE

RULE 52 (A)

(a) In all actions tried upon the facts

without a jury or with an advisory jury,

the court shall find the facts specially

and state separately its conclusions of

law thereon, and judgment shall be entered

pursuant to Rule 58; and in granting or

refusing interlocutory injunctions the

court shall similarity set forth the

findings of fact and conclusions of law

which constitute the grounds of its

actions.

Requests for findings are not

necessary for purposes of review.

1985 Amendment

Rule 52 (a) does not apply when the

findings do not rest on the trial courts

assessment of credibility of the witnesses

butt on an evaluation of documentary proof

and the drawing of inferences from it,

thus eliminating the need for any special

deference from the trial court’s findings.

These considerations are outweighed

by the public interest in the stability

and judicial economy that would be

promoted by recognizing that the trial

court, not the appellate tribunal, should

be the finder of the facts. To permit

courts of appeals to share more actively

in the fact-finding function would tend to

undermine the legitimacy of the districts

courts in the eyes of litigants, multiply

appeals by encouraging appellate retrial

of some factual issues, and needlessly

reallocate judicial authority.

APPENDIX D

APPENDIX E

PERSONNEL BUDGET

APPENDIX F

LETTER OF DEMOTION

APPENDIX G

LETTER OF FORCED MOVE

APPENDIX H

FAVORABLE DECISION LETTER

ALTON PARK &

DODSON AVENUE

Community Health Centers

East 37th Street

Chattanooga, TN 37410

423 267-4591

423 698-8081

Division of

Chattanooga-Hamilton

County Hospital Authority

July 30, 1993

Mrs. Marlena Russel]

1915 Vine Street

Chattanooga, TN 37404

Dear Mrs. Russell:

The Grievance Committee reconvened on July

29, 1993 at 5:30 PM. to review your

concerns. Noted below are the results of

our findings:

as The Committee recommends that Marlena

Russell be paid all monies that she

would have earned had she filled the

position listed in tile proposal that

contained her name, and was

Submitted to the Department of Health

and Human Services, Region IV, in

Atlanta, GA for the 1993 Grant.

r That Marlena Russell be given a

letter of recommendation by Mr.

Albert Head, based on her last

evaluation score of 94.6.

APPENDIX H

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.