# Petition for Writ of Certiorari — Russell v. Chattanooga-Hamilton County Hospital Authority > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1223%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1050 ## 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. 1 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). ii 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............ iv Apdx Q 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 ; ve ra W ul iorrT . | ; r + a Vaughn v. Edel, 9.2d 517, 54 PNP MUR GPR bbe ceccccecccececeee Ttrt ” , _ ry ct “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. ix 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 2 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 6 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 9 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. 10 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. 12 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. 13 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 14 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”. 15 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). 16 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 17 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. as 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 19 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 20 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) ai Y + H i by 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 be 0) t @ f 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 21 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. 22 ; 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. 24 ee 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 27 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. 28 29 CONCLUSION For the foregoing reasons, the Sixth Circuit Court of Appeals decision and affirmation of the District Court’s VU judgment should be vacated and a decision on the merits rendered by this Court Wad Morfian A ra Respectfully submitted this 29th 19 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 = A 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, Ve 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 | i 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. Q . — iQ b 3 ~% _- ct oo OD ule - Q OQ 3 40) “J Ct O Hh + = @ Q + W ct ry r 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. Ge 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. S/ 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 et Ww --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1223%3A1. Public record. Not legal advice.