Petition for Writ of Certiorari — Roby v. Danzig
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ies FILED
BBL B77 yav4 1999
OFFICE OF THE CLEKK
No.
In The
Supreme Court of the United States
October Term, 1998
THELMA ROBY
DARLENE SHARPE
JAMES WELCOME,
Petitioners,
VS.
JOHN H. DALTON,
Respondent.
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Eleventh Circuit Court
PETITION FOR WRIT OF CERTIORARI
THELMA L. ROBY, Pro Se
DARLENE D. SHARPE, Pro Se
JAMES R. WELCOME, Pro Se
502 North Green Street
Pensacola, Florida 32505
(850) 432-4090
9
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a
i
QUESTION(S) PRESENTED
Are the issues outlined in the appeal before this
Supreme Court precedent setting?
Were the Plaintiffs-Appellants’ constitutional nghts to
due process denied when the Appeals Court upheld the
lower court decision to dismiss the aforementioned
complaints including Johnson et. al., case number
94-30165RV, even after they were made aware that the
Attorney of Record for the Plaintiffs-Appellants was
incompetent, lacked standing, and was on suspension by the
Florida Bar to practice law in the State of Florida?
Would the fact that an attomey who has been
sanctioned for disciplinary action by the lower court for
similar failures, require a higher level of constitutional
scrutiny by the District Court for failure to adequately
exercise the duties and responsibilities to properly defend
her clients, in order to ensure other clients did not fall prey
to the same deficiencies (see LW 96-1072 Robb VS.
Mississippi Bar)?
Were the Pilaintiffs-Appellants denied their
constitutional rights to due process of law, as stated in the
fourteenth amendment of the Constitution of the United
States, when their Counsel of Record, Sadie Moore Stewart,
failed to diligently represent her clients, explain matters to
them, and inform them that she was under suspension to
practice law in the United States District Court for the
Northern District of Florida?
Are the Plaintiffs-Appellants entitled to due process of
law because of their legal representative’s failure to provide
adequate defense, failure to timely respond to motions, and
failure to correct deficiencies in original filing of claim?
il
When the Northern District Court severed the case of
Abraham Johnson, et. al into 48 separate cases, was the
court's failure to grant discovery to each individually named
Plaintiff a violation of Plaintiffs-Appellants’ Constitutional
right of due process?
Did the Appeal Court violate Rule 39 (d) when it
allowed the taxable cost out of time?
anette
aloe GA aD BLM A oy . sth eel
PR Ad he
il
PARTIES TO THE PROCEEDING BELOW
The parties before this Court are those set forth in the
caption, as well as those listed below.
COX, BIRCH AND MARCUS,
Circu:t Judges, United States Court of Appeals, Eleventh
Circuit
ANTHONY R. CROUSE,
Special Assistant, U.S. Attorney,
Counsel for Defendant-Appellee
ANDREA HEFFERNAN,
Counsel for Defendant-Appellee
PAMELA A. MOINE, Assistant U.S. Attorney,
Counsel for Defendant-Appellee
P. MICHAEL PATTERSON, U. S. Attorney,
Counsel for Defendant-Appellee
MARK EVAN FREDERICK, Esquire,
Prior Counsel for Plaintiff-Appellant
SADIE MOORE STEWART, Esquire,
Prior Counsel for Plaintiff-Appellant
THE HONORABLE ROGER VINSON,
United States District Judge, Northern District of Florida
iv
TABLE OF CONTENTS
Page
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Parties to the Proceeding Below......................ccce000c0008- iii
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Tee EE i iii tiated v
Petition for Writ of Certiorari .................cccsccceseseescesseees |
Seotennetlt CE FIN assis: <cantesenievasetsvtesincetsepscienses I
Constitutional and Statutory Provisions
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A. Attomey Representation. .................ccsssescsccsceesesees 3
B. Responsibility I iis wiciddeveniaseseeses 5
Reasons for Granting the Writ... RES SST aE TE EOE 7
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TABLE OF CITATIONS
Page
Statutes and Rules Cited:
Florida Statutes (1998 edition); Title XXXII,
Regulation of Professions and
PT ER SS RCE ae a ss iabatesbein 2
Chapter 454; Attormey at Law ...............ccccccccccsccsescesensers 2
Rules Regulating the Florida Bar...............0.....00c0ccccc0c00e. 2
The Federal Rules of Appellate Procedures
| REC SUN EEC Pot Ok SURED Tee bys ARE ME Pee MEER ee a 2
Cases Cited:
Pennoyer v. Neiff, 95 U.S. 733, 24 L.Ed.565 ................. 7
Cohen v. Hurley, 366 U.S. 117, 124(1961) 0.000.000... 9
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]
PETITION FOR WRIT OF CERTIORARI
Thelma Roby, Darlene Sharpe, and James Welcome
respectfully petition for certiorari to review the judgment
and opinion of the United States Court of Appeals, Eleventh
Circuit in Thelma L. Roby v. John H. Dalton, Secretary of
the Navy, Darlene D. Sharpe v. John H. Dalton, Secretary
of the Navy, and James R. Welcome v. John H. Dalton,
Secretary of the Navy.
STATEMENT OF JURISDICTION
The jurisdiction of this Court is invoked under 28
U.S.C. subsection 1254(1).
The date on which the United States Court of Appeals
decided my case was October 6, 1998.
A timely petition for rehearing was denied by the
United States Court of Appeals on October 6. 1998, and a
copy of the order denying rehearing appears at Appendix C.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The United States Constitution. Amendment XIV,
Section 1, “All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and of the state 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
shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
law."
2
Florida Statutes. The 1998 edition; Title XXXII;
Regulation of Professions and Occupations; Chapter 454;
Attorney at Law, 454.31, Practice while disbarred or
suspended prohibited. “Any person who has been disbarred
and who has been lawfully reinstated or is under suspension
from the practice of law by any circuit court of the state or
by the Supreme Court of the state who shall either directly
or indirectly practice law in any manner or hold himself or
herself out as an attorney at law or qualify to practice law
shall be guilty of a misdemeanor of the first degree,
punishable as provided in s. 775.082 or s. 775.083.
The Flonda Bar Rule 1-3.4 CLER Delinquent
Members and CLER Exempt Members. (a) CLER
Delinquent Members. Any member who is suspended by
reason of failure to complete continuing legal education
requirements shall be deemed a delinquent member. A
delinquent member shall not engage in the practice of law in
this state and shall not be entitled to any privileges and
benefits according to members of the Florida Bar in good
standing.
Federal Rules of Appellate Procedure. Rule 39(d),
Bill of Costs; Objections; Coast to be inserted in Mandate
or Added Later. A party who desires such costs to be taxed
shall state them in an itemized and verified bill of costs
which the party shall file with the clerk, with proof of
service, within 14 days after the entry of judgment.
Objections to the bill of costs must be filed within 10 days
of service on the party against whom costs are to be taxed
unless the time is extended by the court. The clerk shall
prepare and certify an itemized statement of costs taxed in
the court of appeals for insertion in the mandate, but the
issuance of the mandate shall not be delayed for taxation of
GAG Raa tari ee AS We candle ieee
3
costs and if the mandate has been issued before final
determination of costs, the statement, or any amendment
thereof, shall be added to the mandate upon request by the
Clerk of the Court of Appeals to the Clerk of the District
Court.
STATEMENT OF THE CASE
A. ATTORNEY REPRESENTATION
The Plaintiffs-Appellants entered into an Agreement
for Representation with Attorney Sadie Moore Stewart,
Florida Bar # 970530, in September 1995, regarding case
No. 94-30165-RV, Johnson, et. al vs. John H. Dalton,
Secretary of the Navy (Appendix D). Attorney Sadie Moore
Stewart signed the Agreement For Representation and
received compensation in the amount of $15,000.00 for
services to provide legal counseling and representation to
Plaintiffs. Attorney Sadie Moore Stewart told Plaintiffs that
she had extensive experience in Title VII law and she would
represent all 46 Plaintiffs in this case. Stewart was given
two checks, one for $5,000.00 to be immediately deposited,
and one for $10,000 to be held until Cohesion, Inc. was
reimbursed funds by it’s original attorney, Mark Evan
Frederick, who had recently requested to be relieved from
the case. Instead of Stewart following the guidelines of the
verbal agreement she made with her clients, she
immediately and prior to Cohesion, Inc. receiving a written
contract presented both checks to Cohesion, Inc.'s bank for
payment. Cohesion, Inc. continued to press her for a
written contract, however, one never materialized. On
November 6, 1995, because of Stewart's negligence in
providing a contract, Cohesion, Inc., with limited
experience, drafted a contract that was then signed by all
parties. In that contract, providing timely responses and
4
completing all motions thereto, as well as establishing an
escrow account, were the main issues of the contract. The
Plaintiffs paid an additional $2,500 to Stewart in September
1995 to cover retainer and assistance fees during the
deposition of Plaintiffs in the Johnson, et. al.
The Florida Bar filed its complaint in the Supreme
Court of Florida against Attorney Sadie Moore Stewart
(Appendix E) to conduct disciplinary proceedings according
to Rule 3-7.6, Rules of Discipline. Attorney Sadie Moore
Stewart continued her practice of law during the period that
she was ineligible to practice law in Florida and despite her
knowledge that she was ineligible to do so. Rule 1-3.4(a) of
the Florida Bar states:
"A delinquent member shall not engage in the practice
of law in this state and shall not be entitled to any privileges
and benefits afforded to members of the Florida Bar in good
standing.”
Attorney Sadie Moore Stewart did not provide
reasonable diligence and promptness in representing the
Plaintiffs-Appellants, nor did she make them aware of her
suspension. Attorney Sadie Moore Stewart was suspended
from practicing law in Flonda for 91 days, effective
immediately, following a May 14th court order. In several
unrelated cases, Attorney Sadie Moore Stewart violated
rules regulating the Florida Bar. She practiced law while
suspended and failed to diligently represent her clients,
explain matters fully to clients, meet contingency fee
guidelines, and comply with many other Florida Bar rules.
Attorney Sadie Moore Stewart failed to respond to motions,
file claims, and responded out of time to the District Court
on behalf of her clients. She violated the attorney/client trust
and the Agreement for Representation. knowledge of
5
negligence. The U. S. Attorney had the responsibility of
reporting a pattern of misconduct especially
B. RESPONSIBILITY OF OTHER PARTIES
Even though Stewart is guilty of not properly
informing her clients, the defendant's attorneys had an
ethnical obligation to inform responsible parties. They also
had an obligation, instead of making the Plaintiffs and
Stewart the butt of jokes, to inform the court also of this
knowledge of negligence. The U.S. Attorney had the
responsibility of reporting a pattern of misconduct
especially where the victim (who were the Plaintiffs ) was
unlikely to discover the offenses. Rule 4-8.3 of the Florida
Bar requires a lawyer who has knowledge that another
lawyer has violated the rules of professional conduct raises
a honesty, trustworthiness, or fitness as a lawyer, in other
respects, should inform the appropriate professional
authority. The Defendant had at his disposal U. S. Attorney,
P. Michael Patterson, Assistant U. S. Attorney, Pamela A.
Moine, and both their staff, contract support personnel, and
15 other U. S. Attorneys from across the country. These
individuals, with such an elaborate amount of proficiency,
had to know that the actions or the lack of actions by he
attorney of record, Sadie Moore Stewart, would subject
Plaintiffs to a status of loss of due process. Self regulation
of the legal profession requires that members of the
profession initiate disciplinary investigation when they
know of a violation of the rule of professional conduct,
especially when reporting a violation where the victim is
unlikely to discover the defense. Since none of the Plaintiffs
were bar certified, when the incompetence of our attorney
was discovered, the District Court had already rendered a
decision in favor of the Defendant on a file that lacked any
6
assertion of defense on behalf of the Plaintiffs. Lawyers
have an obligation, with respect to judicial misconduct, to
notify the appropriate authonties. The appropriate person
that should have been notified in this case is the United
States District Court Judge, Roger Vinson, whom himself
should have recognized the deficiencies in the pleadings, the
response or lack of motions, and the gross negligence of the
attorney of record to provide a proper defense. In his
decision to grant summary judgment, he made mention of
the lack of defense by Plaintiffs. Knowing all this, the
District Court Judge, Roger Vinson, denied every attempt
by Pro Se Plaintiffs to have the record supplemented so that
a fair and impartial decision could be rendered. In order for
any element of due process to be maintained, Plaintiffs
should have been allowed to present, in full, their case. The
United States District Court was aware of the deficiencies
of the attorney of record because they themselves
reprimanded Sadie Stewart in a similar case by public
reprimand (1997, TFB File Number 98-00713-O1B). The
pleadings of the case presented to the court was so deficient
that the issues were interchanged from one Plaintiff to
another, even after numerous attempts by the Plaintiffs to
correct the pleadings on record during video taped
deposition and interrogatories. The U. S. District Judge also
made rulings on claims for which he lacked jurisdiction and
which the appeal's court upheld. Furthermore, the U. S.
District Judge made rulings on issues of one Plaintiff which
were actually issues of another Plaintiff for which the
Plaintiffs specifically and correctly identified on the record
during video taped deposition. The U. S. Attorney was fully
aware during the long, drawn out, drooling, intimidating,
and costly video taped deposition that the pleadings were
grossly incorrect, but because the Defendant had no
intention of justice being served, issues were defended that
7
were not properly identified as issues of each individual
Plaintiff. The question is how could the U.S. District Court
render a decision based on insufficient pleadings, and how
could the Appeals Court uphold the lower court's decision
on pleadings that were not properly pled?
In as much as Pro Se Plaintiffs-appellants' research
has not uncovered any existing case law that deals
specifically with the denial of due process in a civil action.
Plaintiffs-appellants believed that this case is npe for
decision by the Supreme Court.
REASONS FOR GRANTING THE WRIT
Whereas, Pro Se Plaintiffs-Appellants retained in
good faith Attorney Sadie Moore Stewart, believing her to
be of sound, experienced, and competent legal authority,
and realized the opposite until such time the District Court
rendered a decision unfavorable to the Plaintiffs-Appellants.
Plaintiffs-Appellants should not be deprived of _ their
constitutional nght to due process due to the negligent
misconduct and misrepresentation of Attorney Sadie Moore
Stewart, and due to the failure of the U.S. Attorney and the
District Judge to protect their constitutional mghts. The
Petition of Wnt of Certioran should be granted in this case
because the decision rendered in this case is precedent in
nature. To allow the lower court's decision granting
summary judgment to stand would be in direct opposition to
decisions rendered in previous cases of similar matters
(where the negligence of an attorney to properly defend
his/her client and where the client was denied his/her
constitutional rights to due process) have been overturned
by higher courts (Pennoyer v. Neiff. 95 U.S. 733,
24L.Ed.565.). Furthermore, opposition to previous
8
decisions rendered would be the case if the decision is
upheld to grant taxable costs by the Defendant to be
incurred by individual Plaintiffs for a claim that was filed
out of time in accordance with the Federal Rule of
Appellant Procedure Rule 39 (d), and merely to intimidate
and deter individuals from pursuing claims of
discrimination by billing exorbitant cost to the Plaintiffs.
The Constitution of the United States guarantees that
each Plaintiff can expect legal representation and a proper
defense. This system has failed in its obligation to the
Plaintiffs-Appellees. The docket sheets alone show that the
Plaintiffs-Appellants always lacked proper defense,
representation, and discovery. The Plaintiffs-Appellants
were charged thousands of dollars for the production of
documents that were not included in records that have been
before this honorable court and that addresses the Plaintiffs-
Appellees’ nights to due process of law. We believe this
case will set a standard of precedence that can be measured
for numerous Plaintiffs whose cases have fallen prey to the
same type of deficiencies in civil and criminal action. If this
was a criminal action, the Supreme Court will overturn the
lower court's decisions solely on the reason that the Plaintiff
did not have proper defense. Plaintiffs-Appellants have their
constitutional rights to counsel. This means adequate legal
representation, someone working for the well being of the
clients, not just a warm body. If the Justices would pattern
their decision in a criminal defense with the situation of an
incompetent attorney in this civil case, this case would be
remanded back to the District Court for a proper hearing
before the District Court Judge, who would make a decision
based on a complete and accurate case file.
9
While lawyers act in part as "self-employed
businessmen,” they also act "as trusted agents of their
clients, and as assistants to the court in search of a just
solution to disputes." (Cohen v. Hurley,366 U. S. 117, 124
(1961). The conduct of attorneys is governed by rules
established by each state and by the American Bar
Association's Model Rules of Professional Conduct. All
attorneys Owe a duty to provide competent and diligent
representation to each of it’s clients. Attorneys are required
to be familiar with well-settled principles of law applicable
to a case and to discover law that can be found through a
reasonable and discover facts that could materially affect
the client's legal rights. This is the Attorney's Duty of Care.
The Plaintiffs did not receive due process of law nor did
they receive the Attorney's Duty of Care due to Attorney
Sadie Moore Stewart's inability to practice law, and her
ineligibility to properly represent her clients because she
could not practice law before the Florida Bar
Despite the above, and that this honorable court has
set standards in historical cases such as Brown v. Board of
Education, Roe v. Wade, McDonnell Douglas Corp. v.
Green, and Texas Department of Community Affairs v.
Burdine, the U. S. District Court along with the U. S.
Attorneys, have inexplicably failed to enforce the same
course and magnitude used in previous rulings to ensure
fairness and justice was upheld.
10
CONCLUSION
Whereas, Pro Se Plaintiffs-Appellants have been
denied any form of due process, we prey that this honorable
court would restore our constitutional nght. The petition for
a writ of certiorari should be granted.
Respectfully submitted,
Duala wo
THELMA L. ROBY
Pro Se
DARLENE D. SHARPE
Pro Se
JAMES R. WELCOME
Pro Se
502 North Green Street
Pensacola, Florida 32505 q
(850) 432 - 4090 7
APPENDIX
:
Ange
yi
ie
TABLE OF CONTENTS
Page
Appendix A — Decisions of the Eleventh Circuit
Court of Appeals (4) Filed June 30, July 1, and
Bay UT, Pe Re Ee ee as la
Appendix B — Decisions of the District Court for the
Northern District of Florida (3) Filed September 25,
September 16, and August 8, 1996.00.00... 10a
Appendix C — Orders (3) denying rehearing by the
United States Court of Appeals (3) Filed October 6,
September 16, and October 20,1998... 58a
Appendix D — Agreement for Representation
between Attorney Sadie Moore Stewart and
Plaintiffs Dated November 6, 1995... 6la
Appendix E — Report of the Referee; The Florida
Bar vs. Sadie Moore Stewart Filed April 27,
ESE bectcnas cosigess elas las lGh OU piaiemadinecistiids <5). 65a
Appendix F — Plaintiffs-Appellants’ FOLA/Privacy
Act Request to the Agency Dated
a he ge MA GOERS TS CE REN es Oa 92a
Appendix G — FOIA Officer’s Response to
Plaintiffs-Appellants’ FOLA/Privacy Act
mompnet Dated Jane 21995 666i se. 98a
Appendix H — The Supreme Court of Florida
Disciplines Sadie Moore Stewart Filed July 2,
Cape UPA nar SRR AE ces 2Ur Boo ae SE 99a
la
APPENDIX A——DECISIONS OF THE ELEVENTH
CIRCUIT COURT OF APPEALS (4) FILED JUNE 30,
JULY 1, AND JULY 17, 1998
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-3689
Non-Argument Calendar
District Court Docket No. 96-CV-1 42
THELMA L. ROBY,
Plaintiff-Appellee,
versus
JOHN H. DALTON,
Secretary of the Navy,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Florida
Before COX, BIRCH and MARCUS, Circuit Judges.
JUDGMENT
This cause came to be heard on the transcript of the
record from the United States District Court for the
Northen District of Florida, and was taken under
submission by the Court upon the record and briefs on file,
pursuant to Eleventh Circuit Rule 34 - 3:
2a
Appendix A
UPON CONSIDERATION WHEREOF, it is now
hereby ordered and adjudged by this court that the
judgment of the said District Court in this cause be and the
same is hereby AFFIRMED,
It is FURTHER ORDERED THAT Piaintiff-appellant
pay to the defendant-Appellee, the costs on appeal to be
taxed by the Clerk of Court.
Entered: June 30, 1998
For the Court: Thomas K. Kahn, Clerk
By: “s/
Deputy Clerk
ISSUED AS MANDATE: Oct 30 1998
.
}
4
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3a
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-3412
Non-Argument Calendar
District Court Docket No. 3:96-CV-151
DARLENE D. SHARPE,
Plaintiff-Appellee,
versus
JOHN H. DALTON,
Secretary of the Navy,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Florida
Before COX, BIRCH and MARCUS, Circuit Judges.
JUDGMENT
This cause came to be heard on the transcript of the
record from the United States District Court for the
Northern District of Florida, and was taken under
submission by the Court upon the record and briefs on file,
pursuant to Eleventh Circuit Rule 34 - 3;
4a
Appendix A
UPON CONSIDERATION WHEREOF, it is now
hereby ordered and adjudged by this court that the judgment
of the said District Court in this cause be and the same ts
hereby AFFIRMED,
It is FURTHER ORDERED THAT Plaintiff-appellant
pay to the defendant-Appellee, the costs on appeal to be
taxed by the Clerk of this Court.
Entered: July 1, 1998
For the Court: Thomas K. Kahn, Clerk
By: “s/ ae?
Deputy Clerk
ISSUED AS MANDATE: Sep 25 1998
Sa
Appendix A
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-3412-1
Non-Argument Calendar
D.C. Docket No. 3:96-CV-151-RV
DARLENE D. SHARPE,
Plaintiff-Appellant,
versus
JOHN H. DALTON,
Secretary of the Navy,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Florida
(July 1, 1998)
Before COX, BIRCH and MARCUS, Circuit Judges.
PER CURIAM:
6a
Appendix A
Darlene Sharpe appeals summary judgment against
her on her claims against the Secretary of the Navy for
discrimination on the basis of race and in retaliation for
EEO activity. We affirm.
One of Sharpe's claims is that in 1989 she was
discriminatorily placed in a nonprofessional job series. She
filed a timely complaint with the Navy's Equal Employment
Office concerning this claim, but she later abandoned it.
(R.1-315, McCann Decl. Tab 2 at 17.) In 1993, she filed
another EEO complaint raising the same claim. (R. 1-315,
Haworth Decl. Tab 1.) The EEO dismissed this complaint
as untimely, and she appealed this dismissal to the Equal
Opportunity Employment Commission. (/d; R.1-315,
Haworth Decl. Tab 3.) While the EEOC appeal was
pending, but before 180 days had elapsed from the filing of
the appeal, Cohesion, Inc., a corporation, sued the Secretary
of the Navy claiming employment discrimination on behalf
of 33 people, including Sharpe. (See R.2-464, at 1, 5.) The
district court dismissed this complaint for want of standing.
(See id.) The current amended complaint including Sharpe
as a named Plaintiff was filed after Sharpe had received a
ruling from the EEOC affirming the dismissal of her
complaint as untimely. (See R. 1-17; R. 1-315, Haworth
Decl. Tab 4.)
The district court concluded on this procedural history
that it lacked jurisdiction over this claim because less that
180 days had elapsed from the filing of the EEOC appeal
when Cohesion, Inc. filed suit. (See R.2-464, at 5 (citing 29
C.F.R.§ 1614.408(d); Tolbert v. United States, 916 F.2d
245, 248 (Sth Cir. 1990)).) But Sharpe was not a party to
ee
Sa PR AION Sie REL OPI TS VeRO
Ta
Appendix A
the Cohesion, Inc. suit; she first asserted a claim in district
court when the amended complaint was filed. At that time.
she had received an EEOC ruling. The district court thus
had jurisdiction. And it properly granted summary
judgment because the EEO correctly determined that
Sharpe's complaint to the EEO was untimely, having been
filed four years after the alleged discriminatory actions! See
Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992) (claims
untimely presented to the EEO barred from federal court
consideration absent grounds for excuse).
The district court found that it lacked jurisdiction for
similar reasons on Sharpe's retaliation claims, but went on to
hold on the merits that Sharpe had not shown a prima facie
case of retaliation. We agree with the district court's
analysis of the merits of the retaliation claims.
For the foregoing reasons, the grant of summary
judgment is affirmed.
AFFIRMED.
It appears that Sharpe's filing suit was untimely because it followed
the EEOC ruling by more than 90 days, see 42 U.S.C. § 2000e-16(c), but the
Secretary docs not malice such an argument, and we do not address it.
8a
Appendix A
{DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-3210
Non-Argument Calendar
D.C. Docket No. 3:96-CV-174-RV
JAMES R. WELCOME,
Plaintiff-Appellant,
versus
JOHN H. DALTON,
Secretary of the Navy,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Flonda
(July 17, 1998)
Before COX, BIRCH and MARCUS, Circuit Judges.
PER CURIAM:
ee
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jolene nn Es SSRIS — —
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9a
Appendix A
The district court properly granted summary judgment
for the reasons stated in the district court’s summary
judgment order. (R.2-457.) The other issues raised by
Welcome on this appeal are meritless and do not warrant
discussion. See 11" Cir, R. 36-1.'
AFFIRMED.
“Costs taxed against the Plaintiff-appellant.”
Entered: July 17, 1998
For the Court: Thomas K. Kahn, Clerk
By: “s/_ =
11 Cir R.36-1 provides:
When the court determines that any of the following exist:
(a) judgment of the district court is based on findings of fact that are not
clearly erroneous;
(b) the evidence in support of a jury verdict is sufficient
(c) the order of an administrative agency is supported by substantial
evidence on the record as a whole:
(d) summary judgment, directed verdict, or judgment on the pleadings is
supported by the record:
(¢) judgment has been entered without a reversible error of law:
and an opinion would have no precedential vaiue, the judgment or
order may be affirmed or enforced without opinion.
10a
APPENDIX B——DECISIONS OF THE DISTRICT
COURT FOR THE NORTHERN DISTRICT OF
FLORIDA (3) FILED SEPTEMBER 23,
SEPTEMBER 16, AND AUGUST 8, 1996
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
THELMA ROBY,
Plaintiff,
Case No. 96cv142-RV
v.
JOHN H. DALTON,
Secretary of the Navy,
Defendant. /
ORDER
Pending is the defendant’s motion for summary
judgment of the claims of Plaintiff Thelma Roby. (doc.232)
Also pending is the defendant’s motion for partial summary
judgment for the disparate treatment and retaliation claims
of the Plaintiff. (doc. 367)
I. BACKGROUND
This is an employment discrimination action, brought
pursuant to Title VII of the Civil Rights Act of 1964 (42
U.S.C. ss 2000e, et. seq.). Originally, former Plaintiff
Cohesion, Inc. attempted to sue on behalf of thirty-three
individuals; however, the defendant’s motion to dismiss
lla
Appendix B
for lack of standing was granted on January 27, 1995. The
complaint was amended to substitute forty-six individual
Plaintiffs, including Thelma Roby. The claims of the
individual Plaintiffs were later severed into individual
actions.
The Plaintiff, Thelma Roby, is a black female. Roby
alleges that the defendant subjected her to numerous
discriminatory practices during the course of her
employment, and that she was discriminated against on the
basis of her race. Roby also alleges retaliation. Except as
noted, the following facts are not in dispute.
Roby began working at Naval Aviation Depot
Pensacola ("NADEP") in March 1988 as a Man-hour Cost
Accounting Clerk (GS-0503-02) in the Management
Controls Department. She was promoted to GS-04 in
October 1988. She was promoted to Shot Peening Machine
Operator (WG-3769-01) in March 1989, and to Welder
Helper (WG-3703-05) in October 1989. In April 1990 she
was promoted to Shot Peening Machine Operator
(WG-3769-08) in the Metals Division of the Production
Department. Her position was moved to the Manufacturing
& Components Department at NADEP in October 1991.
She transferred to the North Island (California) Detachment
in February 1995, where she works today.
In 1991, Roby applied for EEO Specialist GS-7 and
GS-9 positions for which she was rated highly qualified and
qualified, respectively. She was not selected for the
positions. Eva Leatherwood and Greg Stallworth, both
black employees, were selected for the positions. According
to Roby, her non-selection was in retaliation for her union
activities and for past EEO complaints. Roby filed a formal
eee eee y Se ee ee i ee
12a
Appendix B
complaint on June 24, 1993, and _ signed a_ settlement
agreement on June 30, 1994. (Haworth decl., ex. 3-4)
Roby filed an appeal to the EEOC on October 21, 1994,
alleging that the defendant failed to comply with the
settlement agreement. (Haworth decl., ex. 4-5).
In March 1993, Roby's first line supervisor, Philemon
Evans, asked Roby to stand in for him since it was Roby's
turn on the roster. Roby attended a meeting as acting
supervisor regarding allowing employees to take smoke
breaks only at designated break times. When Roby asked
the employees to sign a roster, Evelyn Mercon wrote "under
protest" on the roster next to her name. When Roby asked
Mercon if she had a problem, Mercon told Roby that she
had a problem with Roby being acting supervisor. Roby
attempted to leave the room, and Mercon blocked her exit
and pushed her back into the room. According to Roby, the
defendant did not punish Mercon for her behavior, and
failed to protect Roby from further possible incidents
involving Mercon.
According to Roby, she was orally admonished by
Leroy Boyd, a supervisor, regarding the incident with
Mercon. Boyd told Roby that she did not have the authority
to counsel Mercon. Roby alleges that Boyd's comments
were made in retaliation for his being named in her previous
EEO complaints.
Roby alleges that she was denied training and
experience in the hazardous materials area starting in 1991.
Roby was not able to apply for temporary promotions to
several hazardous waste positions because she did not have
13a
Appendix B
the necessary training. Although Roby asked for training in
November 1992, she was told that such training would
never lead to permanent positions. She requested training
from Albert Baxter in 1992 and wrote a memorandum
requesting that she be allowed to work with the HAZMAT
team. Roby filed a formal complaint of discrimination on
September 8, 1994.
Roby filed a union grievance on October 30, 1992,
concerning a performance appraisal rating given to her by
Leo Stanford. Roby alleges that Stanford lied on an official
document when he discriminated against her by giving her a
poor performance rating. Roby filed an EEO complaint on
March 29, 1993. The agency dismissed her complaint, and
Roby appealed to the EEOC on May 29,1993 (Haworth
decl., ex.12). On September 3, 1993, the EEOC affirmed
the agency decision, on the ground that Roby had previously
elected to pursue the union grievance procedure.
According to Roby, she was denied the chance to
compete for eighteen positions filled in the Human
Resources Office during September and October 1993.
Roby filed a formal complaint on January 12, 1994
(Haworth deal., ex. 13), which was settled by a mediated
agreement on June 30, 1994. Roby filed an appeal to the
EEOC to enforce the terms of the agreement on October 21,
1994. (Haworth decl., ex. 4-5)
Roby alleges in the amended complaint that: (1) she
was not selected for GS-7 and GS-9 EEO Specialist
positions; (2) the defendant failed to protect her from a
white employee, Evelyn Mercon; (3) she was orally
l4a
Appendix B
admonished by Leroy Boyd; (4) she was denied training and
experience in the hazardous materials area; (5) a supervisor
lied on an official document when he gave Roby a poor
performance rating; and (6) she was denied the opportunity
to compete for eighteen positions in the HRO office during
September and October 1992. Roby also alleges disparate
impact.
Il. ANALYSIS
A. Summary Judgment Standard
A motion for summary judgment should be granted
when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Rule 56(c), Fed. R.Civ. P.
"[T]he plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the
burden of proof at trial." Celotex Corp v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273
(1986). See Everett v. Napoer, 833 F.2d 1507, 1510 (11th
Cir. 1987) .
However, summary judgment is improper "[i]f a
reasonable fact finder could draw more than one inference
' The defendant's motion for partial summary judgment on all plaintiffs’
disparate impact claims was granted on February 28, 1996. (doc. 439)
15a
Appendix B
from the facts, and that inference creates a genuine issue of
material fact." Cornelius v. Highland Lake, 880 F.2d 348,
351 (11th Cir 1989), cert. denied, 494 U.S. 1066, 110 S. Ct.
1784, 108 L. Ed. 2d 785 (1990). An issue of fact is
“material” if it might affect the outcome of the case under
the governing law. Anderson v. Liberty Lobby, Inc., 477
U.S.242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211
(1986). It is "genuine" if the record taken as a whole could
lead a rational trier of fact to find for the non-moving party.
Id See also Matsushita Electric Indus. Co. v. Zenith Radio
Corp, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d
538, 552 (1986).
Conclusory allegations based on _ speculation,
subjective beliefs, or bald assertions based upon
unsubstantiated hearsay are insufficient to create a "genuine
issue of material fact." Carter v. Miami, 870 F.2d 578, 585
(11th Cir.1989); Ramsev Heath, 706 F.2d 1166, 1170 (11th
Cir. 1983). On the other hand, if the record taken as a whole
could lead a rational trier of fact to find for the nonmovin
party, then the issue of fact is genuine, Matsushita Elec.
Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574.
58648, 1356, 89 L_Ed.2d 538 552 (1986).
The court may not weigh evidence to resolve a factual
dispute; if a genuine issue of material fact is present, the
court must deny summary judgment. Hutcherson _v.
Progressive Corp., 984 F.2d 1152, //55 (11th Cir. 1993).
On a summary judgment motion, the record and all
reasonable inferences that can be drawn from it must be
viewed in the light most favorable to the non-moving party.
McCabe Sharett, 12 F.3d 1558, 1560 (11th Cir. 1994).
l6a
Appendix B
B. Discussion
The defendant contends that several of Robins claims
are barred for failure to exhaust administrative remedies The
defendant also contends that Roby has failed to establish a
prima facie case of discrimination or retaliation.
(1) Failure to Exhaust Administrative Remedies
Roby alleges that she was denied training in the
hazardous materials area, and that as a result, she was not
eligible for temporary promotions to hazardous waste
positions. The defendant contends that Roby's claim is
barred, since she failed to Contact an EEO Counselor within
the required 45 day period.
A federal employee must seek administrative review
of his grievance before filing a suit for unlawful
discrimination in employment under Title V11. Young v.
National Center for Health Serv. Research, 828 F.2d 235,
237 (4th Cir. 1987). As a first step, the employee must
speak to an EEO counselor about an alleged act of
discrimination within 45 days of the alleged act. 29 C.F.R. §
1614.10s(aX1). The time period begins to run when ‘the
facts that would support a charge of discrimination would
have been apparent to a similarly situated person with a
reasonably prudent regard for his nghts." Bovd v. United
States Postal Serv., 752d 410, 414 (9th Cir, 1985); Bickham
v. Miller, 584 F.2d 736 738 (Sth Cir. 1978). Failure to
notify the EEO counselor in timely fashion may bar a claim,
absent a defense of waiver, estoppel, or equitable
tolling. Pacheco v. Rice, 966 F.2d 904,906 (Sth Cir. 1992);
SEE EES
SAAS: iS AER cts
17a
Appendix B
Nealon v. Stone, 958 F.2d 584, 589 (4th Cir. 1992); Benign.
Frank, 943 F.2d 609, 612 (6th Cir. 1991); Bovd v. United
States Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985).
Roby's claims arise from conduct occurring in 1992
and 1993, when hazardous material positions were first
developed in Roby's workplace. (Haworth deal., ex. 8)
Roby filed a formal complaint in September 1994, alleging
that the agency prevented black employees from receiving
hazardous material training in order to prevent them from
gaining permanent positions. (Haworth decl., ex. 8) Roby
testified at her deposition that she suspected in 1992 and
1993 that blacks were being discriminated against by not
being allowed to receive hazardous material training. (Roby
dep., at 103-05) Even where a Plaintiff docs not know all
the facts regarding the mechanisms of the discrimination,
equitable tolling is inappropriate where the Plaintiff was
aware that the defendant was violating her right to be free of
racial discrimination in his employment. See McClinton v.
Alabama By-Products Corp, 743 F.2d 1483, 1487 (11th Cir.
1984). Since Roby failed to notify the EEO counselor in
timely fashion of her claim, and has made no showing of
waiver, estoppel. or equitable tolling, the claim is barred for
failure to exhaust administrative remedies. Roby alleges
that her foreman, Leo Stanford, discriminated against her by
giving her a poor performance rating. The defendant
contends that Roby failed to timely file her civil action as to
this claim.
A federal employee must seek administrative review
of his grievance before filing a suit for unlawful
discrimination in employment under Title Vi1. Brown v.
18a
Appendix B
General Services Administration, 425 U.S. 820, 832-33, 96
S.Ct. 1961,1967-68, 48 L.Ed.2d 402 (1976). A federal
employee who has filed a Title V11 complaint may file a
civil action within 90 days of receiving the Commission's
final decision on an appeal. 29 C.F.R. § 1614.408(c). A
claim may be time barred if filed too late. See Jones
v.Runvon, 32 F.3d 1454, 1457 (Roth Cir. 1994); Long v.
Frank, 22 F.3d 54, 57 (2nd Cir. 1994).
Roby filed an EEO complaint raising this claim on
lViarch 29, 1993. (Haworth decl., ex. 11) The agency
dismissed her complaint, and Roby appealed to the EEOC
on May 29, 1993. (Haworth decl., ex. 12) On September 3,
1993, the EEOC affirmed the agency decision, on the
ground that Roby had previously elected to pursue the union
grievance procedure. Roby filed the present action on May
17, 1994, more than 90 days after she received the EEOC
decision. Accordingly, her claim is barred for failure to
exhaust administrative remedies.
(2} Disparate Treatment
Roby alleges that she was discriminated against when:
(1) she was not selected for GS-7 and GS-9 EEO Specialist
positions for which she was rated highly qualified; (2) her
commander did not take disciplinary action against a white
female employee who assaulted her; and (3) she received an
oral admonishment from a supervisor who was not in her
chain of command. The defendant contends that Roby has
failed to establish a prima facie case of discrimination as to
her claims.
—
19a
Appendix B
Titie V11 of the Civil Rights Act of 1964 provides
that it is unlawful for an employer "to discriminate against
any individual with respect to his compensation, terms.
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)1) (1988). The Plaintiff may establish a
prima facie case of discrimination under Title V11 on the
basis of statistical proof of a pattern of discrimination, or on
the basis of direct evidence of discrimination, which
consists of "evidence which, if believed, would prove the
existence of discrimination without inference or
presumption.” Carter _v. City of Miami, 870 F.2d 578,
581-82 (11th Cir. 1989). In the usual case, however, direct
evidence is not present, and the Plaintiff must rely on
circumstantial evidence to prove discriminatory intent, using
the framework established in McDonnell Doualas Coro. v.
Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36
L.Ed.2d 668 (1973). Under McDonnell Douglas, a Plaintiff
establishes a prima facie case of race discrimination under
Title V11 by showing: (1) she belongs to a racial minority;
(2) she was subjected to adverse job action; (3) her
employer treated similarly situated employees outside his
classification more favorably and (4) she was qualified to do
the job. McDonnell Douglas Corp., 411 U.S. at 802, 93
S.Ct. at 1824, 36 L.Ed.2d 677 See_St. Mary's Honor Ctr v
Hicks, _ U.S. _, 113 S.Ct. 2742, 2747, 125L.Ed.2d 407
(1993). Demonstrating a prima facie case is not onerous; it
requires only that the Plaintiff establish facts adequate to
permit an inference of discrimination. Williams v. Ford
Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994). See Texas
“t_of unity ims _V. ine, 450 U.S. 248,
253-54, 101 S.Ct. 1089, 1093-4, 67 L.Ed.2d 207 (1981).
20a
Appendix B
a. Pr ions T -7 GS-9
Roby contends that she was denied promotions to
GS-7 and GS-9 EEO Specialist positions. The defendant
contends that the Plaintiff has not shown that an equally or
less qualified individual outside of the Plaintiff's class
received the promotion.
Roby applied for GS-7 and GS-9 EEO Specialist
positions in 1992. Eva Leatherwood, Greg Stallworth,
Leona Bjorklund, Patricia Stewart and Frances Pinson were
chosen for the positions. Leatherwood, Stallworth, and
Pinson are black employees, while Bjorklund and Stewart
are white.
Roby was rated “highly qualified" for the GS-7
position, as was the selectee, Leona Bjorklund. (Sass deal.,
ex. 5) Roby had no college credit hours, and no prior EEO
experience. In contrast, Bjorklund had an Associate's
Degree and eight years experience as an EEO Assistant.
Roby was given a rating of "qualified" for the GS-9
position. Stewart had two years of experience as an EEO
Counselor. Stallworth had a Master's Degree in Public
Administration, and experience on the CNET Staff Human
Relations Council. Pinson had three and a half years
experience as an Equal Opportunity Assistant. Leatherwood
had five years experience as an EEO counselor. (Sass deal.,
ex. 7) Of the selectees for the GS-9 position, only Stewart
was not of Roby’s protected class.
2la
Appendix B
While Roby docs not dispute that she did not have as
much EEO-related experience as the selectees, she argues
that her experience as a union representative is sufficient to
qualify her for the positions. However, the agency was
specifically seeking someone experienced in EEO
procedures. (Washington decl.) All the selectees had such
experience, while Roby did not. "[T]he employer has the
discretion to choose among equally qualified candidates,
provided the decision is not based upon unlawful criteria
"Texas Dept of Communitv Affairs v. Burdine, 450 U.S.
248,259, 101 S.Ct. 1989, 1096,67L.Ed.2d207(1981). Here,
the selectees were selected because they had more
experience and education. Roby has presented no evidence
of discrimination on the part of the defendant in making
selections for the positions. Roby's conclusory allegations of
discrimination are insufficient to create an issue of fact.
Carter _v. Miami, 870 F.2d 578, 585 (llth Cir. 1989);
Forsbero v. Pacific Northwest Bell Tel. Co., 840 F.2d 1409,
1419 (9th Cir. 1988); Meiri v. Dacon, 759 F.2d 989, 998 (2d
Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d
74 (1985). In addition, the defendant has proffered evidence
supporting a legitimate nondiscriminatory reason for its
non-selection of Roby for the positions, and Roby has not
come forward with any evidence to show that this reason is
pretextual. The defendant is entitled to summary judgment
on Roby’s non-selection claim.
b. Assault By White Emplovee
Roby alleges that she was assaulted by Evelyn
Mercon, a white employee, and that the defendant failed to
protect Roby from Mercon and forced Roby to work with
Mercon after the assault.
22a
Appendix B
When Roby was allegedly assaulted, she was the.
stand-in supervisor for Philemon Evans, Roby's first line
supervisor. (Evans decl.) Roby submitted a request after the
incident that Mercon be moved out of the building. Mercon
submitted a request through her attorney that Roby be
moved out of the building. (Evans decl.) While an
investigation of the incident was pending, Leroy Boyd, the
shop supervisor, decided to move both Roby and Mercon
out of the shop area. Neither Roby nor Mercon lost any
benefits from being moved out of the shop (Evans deal.).
The defendant contends that Roby has failed to show
that she suffered an adverse job action. I agree. Section
2000e-2(aX1) of Title V1l makes it an unlawful
employment practice to discriminate against an individual
with respect to "compensation, terms, conditions, or
privileges of employment ...." See, e.q., Jordan v. Clark,
847 F.2d 1368, 1373 n.3 (9th Cir. 1988), cert. denied, 488
U.S. 1006, 109 S.Ct. 786, 102 L.Ed.2d 778 (1989); Bundy
v. Jackson, 641 F.2d 934, 942 (D.C.Cir. 1981). See also
Chandler v. Roudebush, 425 U.S. 840, 841, 96 S.Ct.1949,
1950, 48 L.Ed:2d-4~6 (1976). "[U]ltimate employment
decisions such as hiring, granting leave, discharging,
promoting, and compensating” are the types of personnel
actions subject to Title V11 relief. Page v. Boluer, 645 F.2d
227, 233 (4th Cir.) (en bane), cert. denied, 454 U.S. 892,
102 S.Ct. 388, 70 L.Ed.2d 206 (1981). See Dollis v. Rubin,
77 F.3d 777, 781 (Sth Cir. 1995). There is no Title V11
violation absent a materially adverse change in terms and
conditions of employment. Harlston v. McDonnell Douglas
Corp., 37 F.3d 379, 382 (8th Cir. 1994); Cradv v. Liberty
23a
Appendix B
National Bank & Trust Co. of Indiana, 993 F.2d 132, 136
(7th Cir. 1993); Plaisance v. Travelers Ins. Co., 880 F.Supp.
798, 810 (N.D.Ga. 1994), affd. 56 F.3d 1391 (11 th Cir.
1995). Here, while Roby was moved out of the shop, she
did not lose any benefits or suffer any loss in grade or
salary. She was not disciplined for the incident involving
Mercon. Mercon was treated the same way. Since the
Plaintiff has not shown that she suffered an adverse job
action, she has failed to establish a prima facie case of
discrimination.
c. nishment
Roby alleges that she was orally admonished by a
Supervisor not in her chain of command. The defendant
contends that Roby has failed to show that she suffered an
adverse employment action.
After the incident between Roby and Mercon, Roby’s
Division Director, Harris Hill, asked Roby's supervisor,
Leroy Boyd, to take action on the investigative report
concerning the incident. The report could not conclude who
was telling the truth. Hill decl.; 2 Roby dep., p. 110) Boyd
counseled both employees and advised them that if such an
incident occurred again, they would be disciplined (Roby
dep., p. 9596).
There is no Title V11 violation absent a materially
adverse change in terms and conditions of employment.
Harlston v. McDonnell Douglas Corral., 37 F.3d 379, 382
(8th Cir. 1994). Roby has not shown that she suffered an
24a
Appendix B
adverse change in her employ7ment through receiving the
oral admonishment from Boyd, her supervisor. The
admonishment did not constitute an official disciplinary
action, and was not placed on her personnel record. (Sass
decl., ex. 12) In addition, while Roby alleges racial bias in
the application of- the discipline against her, she has failed
to show that the disciplinary measures enforced against her
were more severe than those enforced against Mercon, a
white female. See Jones v. Gerwens, 874 F.2d 1534, 1540
(11th Cir. 1989). The defendant could not determine which
of the two employees caused the incident, and both received
an oral admonishment. Since Roby has presented no
evidence of discrimination in the decision to orally
admonish her, and the defendant has established legitimate,
non-discriminatory reasons for its action, the defendant is
entitled to summary judgment on Roby's claim.
(3) Retaliation
Roby alleges that she was retaliated against when she
was denied the chance to compete for positions filled in the
Human Resources Office during September and October
1993. According to Roby, eighteen positions were filled
without competition and without regard for the Merit
Promotion process. To establish a prima facie case of
retaliation, the Plaintiff must show: (1) that she engaged in
statutorily protected expression; (2) that she suffered an
adverse employment action; and (3) that there is some
causal relationship between the two events. Meeks v.
Computer Associates Int'l, 15 F.3d 1013, 1021 (11th Cir.
1994); E.E.O.C. v. Ohio Edison Co., 7 F.3d 541 (6th Cir.
1993); Archuleta v. Colorado Dept. of Institutions, 936 F.2d
25a
Appendix B
483 (10th Cir.1991). To recover for retaliation, the Plaintiff
"need not prove the underlying claim of discrimination
which led to [his] protest;" however, the Plaintiff must have
had a reasonable good faith belief that the discrimination
existed. Ti vV. 1 f Tce,
872 F.2d 1491, 1494 (11th Cir. 1989). To meet the causal
link requirement, the Plaintiff "merely has to prove that the
protected activity and the negative employment action are
not completely unrelated." E.E.O.C. v. Reichhold Chemical.
Inc., 988 F.2d 1564, 1571 -72 (llth Cir. 1993). The
Plaintiff must at least establish that the employer was
actually aware of the protected expression at the time the
employer took adverse employment action against the
Plaintiff. Goldsmith v, City of Atmore, 996 F.2d 1155, 1163
(11th Cir. 1993); Weaver v. Casa Gallardo. Inc., 922 F.2d
1515, 1524 (11th Cir. 1991). The employer's awareness of
the statement may be established by circumstantial
evidence. -id.
During September and October 1993, twelve
vacancies existed for GS positions at NAS Pensacola
dealing with personnel functions at elementary and
secondary schools on military installations in the United
States. (Gonzalez decl.) Ten of the positions were filled
competitively through merit staffing, while two were filled
through noncompetitive actions outside the merit staffing
process. (Gonzalez decl.) Seven other vacancies existed at
the Human Resources Office. (Gonzalez deal.) At a meeting
of HRO managers on September 28, 1993, Barry Foster, the
head of HRO, stated that HRO might lose positions not
filled by September 30, 1993, the end of the fiscal year.
26a
Appendix B
Because there was not enough time to conduct merit staffing
competitions, the managers decided to fill the positions
noncompetitively. Foster instructed the managers to select
only employees from activities scheduled for closure or
realignment. Roby did not meet the requirements for the
noncompetitive selection, which depended upon grade level,
and was not eligible for any of the positions. (Gonzalez
deal.) William Gonzalez was the selecting official for the
positions in question. (2 Gonzalez deal.)
Roby docs not dispute that Gonzalez was unaware of
her prior EEO activity at the time he made the selections for
the positions in question. She has presented no evidence
that the other management officials involved in allowing
certain positions to be filled noncompetitively were aware
of her prior EEO activity. To establish a prima facie case of
retaliation, the Plaintiff must at least show the employer was
actually aware of the protected expression at the time the
employer took adverse employment action against the
Plaintiff. Goldsmith v. City of Atmore, 996 F.2d 1 155, |
163 (11th Cir. 1993). Roby has failed to establish the
employer's awareness of her protected activities.
In addition, the defendant has presented legitimate,
non-discriminatory reasons for its actions. Roby docs not
dispute that because of the nature of the vacancies, the
defendant did not have time to use a competitive merit
staffing process to fill the vacancies. Since Roby has failed
to demonstrate that the employer's explanation is a pretext
for retaliation, and has presented no other evidence of
retaliation, the defendant is entitled to summary judgment
on Roby’s retaliation claim. See Goldsmith v. City of
Atmore, 996 F.2d 1 155, 1 163 (11th Cir. 1993).
ee
Ce mee re
27a
Appendix B
Ifl. CONCLUSION
For the reasons discussed above, the defendant's
motions for summary judgment (doc. 232) and for partial
summary judgment (doc. 367)-are GRANTED as to the
claims of Plaintiff Thelma Roby. Since all claims of
Plaintiff Thelma Roby have been resolved, the Clerk is
directed to enter judgment for the defendant and against
Plaintiff Thelma Roby, together with taxable costs.
DONE AND ORDERED this 23rd day of September, 1996.
By: “s / a
ROGER VINSON
United States District Judge
28a
Appendix B
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
DARLENE SHARPE,
Plaintiff,
Case No. 95cv151-RV
v.
JOHN H. DALTON,
Secretary of the Navy,
Defendant.
/
ORDER
Pending is the defendant’s motion for summary
judgment of the claims of Plaintiff Darlene Sharpe.
(doc.314) Also pending is the defendant’s motion for
partial summary judgment for the retaliation claims of the
Plaintiff (doc. 403).
I. BACKGROUND
This is an employment discrimination action, brought
pursuant to Title VII of the Civil Rights Act of 1964 (42
U.S.C. ss 2000e, et. seq.). Originally, former Plaintiff
Cohesion, Inc. attempted to sue on behalf of thirty-three
individuals; however, the defendant’s motion to dismiss for
lack of standing was granted on January 27, 1995. The
————E—E—E——————E—————
29a
Appendix B
The Plaintiff, Darlene Sharpe, is a black female.
Sharpe alleges that the defendant subjected her to numerous
discriminatory practices during the course of her
employment, and that she was discriminated against on the
basis of his race. Sharpe also alleges retaliation. Except as
noted, the following facts are not in dispute.
Sharpe began working at Naval Air Station Pensacola
("NAS") as a Student Aid in the office of the Director of Air
Training for the Chief of Naval Education and Training. Her
position changed to Student Trainee (Management &
Financial Analysis) (GS-0099-04) in the Mgmt Support
Activity Department of NETPMSA. Her position was
changed to Budget Analyst (GS-0:44-05) in the Financial
Information Processing Center Department in May 1989.
She was promoted to Financial Specialist (GS-0501-07) in
November 1991, and was promoted to the next grade
(GS-09) in November 1992. In September 1994, Sharpe
successfully competed for a reassignment to Management
Analyst (GS-0343-09) in the Manpower and Personnel
Department in CNET, where she remains today.
Sharpe completed her requirements for a Bachelor's
Degree in Business Administration in March 1989. Prior to
her graduation, Sharpe had been employed under the
NETPMSA College Cooperative Program. According to
Sharpe, she had been told by her supervisor, Dick
Crenshaw, that she would be converted into a professional
series position. However, only a limited number of positions
were available, and Sharpe was asked in May 1989 if she
would accept a Payroll Clerk position at the GS-05 rate with
promotion potential to GS-09. Sharpe accepted the position.
She was asked to sign a letter stating that she had had a
Budget Analyst job for the first two weeks, and that she had
30a
Appendix B
requested to be changed to a Payroll Clerk position. Sharpe
signed the letter although she knew it was untrue, because
she was told by Melba Antoine that Sharpe would not have
a job if she did not sign the letter.
Sharpe alleges that placing her in a nonprofessional
series violated Office of Personnel Management regulations.
She filed an informal EEO complaint in June 1989, but
withdraw the complaint on August 11, 1989. She filed a
formal complaint on November 12, 1993, which was
dismissed as untimely on March 10, 1994. According to
Sharpe, the dismissal of her November 12,1993, complaint
by the agency was in retaliation for her filing of the
complaint. She filed a formal complaint on April 25,1994,
concerning the dismissal of the pnor complaint, and that
complaint was itself dismissed on May 11,1994. Sharpe
appealed to the EEOC, which affirmed the dismissal of the
April 25, 1994, complaint on September 14, 1994.
Sharpe alleges that she was retaliated against for prior
EEO activity when she was removed from the CPATS/LCM
project by her supervisor, Jacklyn Crumpler, and replaced
by a two-higher-grade white female. A white co-worker,
Mike Keeth, was removed and replaced at the same time.
Sharpe filed a formal EEO complaint on October 17, 1994.
The complaint was dismissed by the agency on May 19,
1995, due to the filing of the present action.
Sharpe alleges in the amended complaint that: (1) she
was placed in a nonprofessional series position; (2) her EEO
complaint concerning her placement was dismissed in
retaliation for EEO activity; and (3) she was removed from
the CPATS project. Sharpe also alleges disparate impact."
3la
Appendix B
ll. ANALYSIS
A. Summary Judgment Standard
A motion for summary judgment should be granted
when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a maker of law.! Rule 56(c), Fed. R. Civ. P.
"[T]he plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the
burden of proof at trial." Celotex Corp. v. Catrett, 477 US.
317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273
(1986). See Everett v. Napoer, 833 F.2d 1507,-1510 (1th
Cir. 1987).
However, summary judgment is improper “if a
reasonable fact finder could draw more than one inference
from the facts, and that inference creates a genuine issue of
material fact." Cornelius v. Highland Lake, 880 F.2d 348,
351 (11th Cir. 1989), cert. denied, 494 U.S. 1066, 110 S.
Ct.1784, 108 L. Ed. 2d 785 (1990). An issue of fact is
"material" if it might affect the outcome of the case under
the governing law. Anderson _v. Liberty Lobby, Inc., 477
U.S.242, 248, 106 S.Ct. 2505, 25 10, 91 L.Ed.2d 202, 211
(1986). It is "genuine" if the record taken as a whole could
lead a rational trier of fact to find for the non-moving party.
32a
Appendix B
Id. See also Matsushita Electric Indus. Co. v. Zenith Radio
Coro., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538, 552 (1986).
Conclusory allegations based on _ speculation,
subjective beliefs, or bald assertions based upon
unsubstantiated hearsay are insufficient to create a "genuine
issue of material fact.” Carter v. Miami, 870 F.2d 578, 585
(11th Cir.1989); Ramsey v. Leath, 706 F.2d 1166, 1170
(11th Cir. 1983). On the other hand, if the record taken as a
whole could lead a rational trier of fact to find for the
nonmoving party, then the issue of fact is genuine.
Matsushita Elec. Industrial Co. Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L_Ed.2d 538,
552 (1986).
The court may not weigh evidence to resolve a factual
dispute; if a genuine issue of material fact is present, the
court must deny summary judgment. Hut Vv.
Progressive Corp., 984 F.2d 1152, 1155 (11th Cir. 1993).
On a summary judgment motion, the record and all
reasonable inferences that can ‘be drawn from it must be
viewed in the light most favorable to the non-moving party.
McCabe v. Sharett, 12 F.3d 1558, 1560 (1 1th Cir. 1994).
B. Discussion
The defendant contends that several of Sharpe's
claims are barred for failure to exhaust administrative
remedies. The defendant also contends that Sharpe has
failed to establish a prima facie case of retaliation.
33a
Appendix B
(1) Failure to Exhaust Administrative Remedies
Sharpe alleges that she was placed as a cooperative
program graduate in a non-professional series position. The
_ defendant contends that Sharpe's claim is barred, since she
withdrew her claim from the administrative process, and
attempted to resurrect her claim in an untimely manner
Sharpe filed an EEO complaint in July 1989, and
voluntarily withdrew her complaint on August 11, 1989. A
federal employee must seek administrative review of her
grievance before filing a suit for unlawful discrimination in
employment under Title V11. Brown v. Services
Administration, 425 U.S. 820, 8.32-33, 96 S.Ct. 1961,
1967-68, 48 L.Ed.2d 402 (1976). The purpose of requiring
Plaintiffs to exhaust administrative remedies is to avoid
burdening courts with cases that otherwise might be
terminated successfully by mediation and conciliation.
Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994):
intv_v. United S Dep't of the Army, 900 F.2d
1114, 1117 (7th Cir. 1990). A claimant who abandons or
withdraws her claim before the agency has reached a
deternination "cannot be deemed to have exhausted
administrative remedies." Khader v. Aspin, 1 F.8d 968, 970
(10th Cir. 1993). Rivera_v. United States Postal
Service, 830 F.2d 1037, 1039 (9th Cir. 1987); Sharon v
| ., 872 F.Supp. 839, 844 (D.Kan.
1994); Brown _v.Citvof New York, 869 F.Supp. 158, 170
(S.D.N.Y. 1994).
34a
Appendix B
Sharpe filed a formal complaint of discrimination
concerning her claim on November 12, 1993, in an attempt
to resurrect her claim. The agency dismissed her complaint,
and she appealed to the EEOC on September 24,1995.
Sharpe then filed the present action on May 17, 1994, while
her EEOC appeal was still pending.
A complainant who files an appeal with the EEO(:
may file a civil action in federal court after 180 days from
the date of filing an appeal if no final decision has been
issued. 29 C.F.R. § 1614.408(d). A Plaintiff who files
before the expiration of the 180 days has failed to exhaust
her administrative remedies, and is barred from bringing his
claim in federal court. Tolbert v. United States, 916 F.2d
245, 248 (Sth Cir. 1990); Thomoson v. West, 883 F.Supp.
1502, 1508 (S.D.Ala. 1995). Here, Sharpe's claim was filed
before withdrawal from the administrative process in order
to file suit constitutes a failure to exhaust administrative
remedies. Tolbert v. United States, 916 F.2d 245, 249 (Sth
Cir. 1990); Rivera v. United States Postal Service, 830 F.2d
1037, 1039 (9th Cir. 1987).
Allowing a claimant to file too early "would tend to
frustrate the ability of the agency to deal with complaints.
All participants would know that at any moment an
impatient claimant could take his claim to i court and abort
the administrative proceedings.” McGinty v. United States
Dep't of Army, 900 F.2d 1114, 1117 (7th Cir. 1990)
(quoting Purtill v. Harris, 658 F.2d 134, 138 (3rd Cir.
1981). To withdraw constitutes abandoning one’s claim.
Ri'vera v. United States Postal Service, supra, 830 F.2d at
1039. See Vinieratos v. United States Dept of Air Force,
35a
Appendix B
939 F.2d 762, 768-69 (9th Cir. 1991). Dismissal with
prejudice on the basis of lack of subject matter jurisdiction
is appropriate. See Askew v. Stone, 1996 WL 135042 (6th
Cir. 1996); Tolbert v. United States, supra, 916 F.2d at 249:
Thompson v. West, 883 F.Supp. 1502, 1509 (M.D.Ala.
1996); Patel _v. Derwinski, 778 F.Supp. 1450, 1457
(N.D.III. 1991). Abandoning the administrative process
prior to the expiration of the | 80-day time period deprives
the court of subject matter jurisdiction, and the filing
requirement is not subject to equitable tolling. Askew v.
Stone, 1996 WL 135042 (6th Cir. 1996). The fact that 180
days has now passed while this case has been pending docs
not cure the Plaintiff's error, since "such a rule would permit
Plaintiff to file prematurely and then to wait out the 180-day
period in this Court." Patel v. Derwnski, supra, 778 F Supp.
at 1457. Accordingly, the defendant is entitled to summary
judgment on Sharpe's claim that she was placed in a
nonprofessional position.? '
(2) Retaliation
Sharpe also alleges that her complaint of November
12, 1993, was dismissed in retaliation for prior EEO
activity. The defendant contends that this claim is untimely.
Sharpe filed a formal EEO complaint on April 25, 1994,
alleging that her complaint of November 12, 1993, had been
dismissed by the agency in retaliation for prior EEO
- Sharpe argues that her administrative complaint of November 12. 1993, was
timely filed. Accordin to Sharpe, the discriminatory events concerning her
Placement were continuing in nature, and continued until the filing of the
complaint in 1993. However, the timeliness of Sharpe's administrative
complaint is irrelevant, since, as explained above, she filed her civil action too
early.
36a
Appendix B
activity. Sharpe filed her claim in the present action on May
17, 1994, twenty-two days after Sharpe filed a formal EEO
complaint on April 25, 1994, alleging that her complaint of
November 12, 1993, had been dismissed by the agency in
retaliation for prior EEO activity. Sharpe filed her claim in
the present action on May 17, 1994, twenty-two days after
filing her EEO’ complaint. Under the applicable EEOC
regulations, a complaint who has filed an individual
complaint is authorized to file an action under Title V11
"after 180 days from the date of filing an individual or class
complaint if an appeal has not been filed Andrea final
decision has not been issued.” 29 C. F. R. § 1614.408
(1995). Since Sharpe files’ before the expiration of the 180
day period, she is barred from barred from bringing her
retaliation claim in federal court. Tolbert v. United States,
916 F.2d 245, 248 (Sth Cir.1990); Thompson v. West, 883
F.Supp. 1502, 1508 (S.D.Ala. 1995).
Nevertheless, I will consider the merits of Plaintiff's
retaliation claim to insure completeness. Sharpe alleges that
in retaliation for prior EEO activity: (1) her complaint of
November 12, 1993 was dismissed; and (2) she was
removed from the CPAT project.
To establish a prima facie case of retaliation, the
Plaintiff must show: (1) that she engaged in statutorily
protected expression; (2) that she suffered an adverse
employment action; and (3) that there is some causal
relationship between the two events. Meeks v. Computer
Associates Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994);
E.E.0.C. v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993);
37a
Appendix B
Archuleta v. Colorado Dept. of Institutions, 936 F.2d 483
(10th Cir. 1991). The term “employment action" may be
construed in light of Section 2000e-2(aX1), which makes it
an unlawfvi employment practice to discriminate against an
individuzi with respect to "compensation, terms, conditions,
or privileges of employment ...." See, e.q., Jordan v. Clark.
847 F.2d 1368, 1373 n.3 (9th Cir. 1988), cert. denied, 488
U.S. 1006, 109 S.Ct. 786, 102 L.Ed.2d 778 (1989); Bundy
v. Jackson, 641 F.2d 934, 942 (D.C.Cir. 1981). See also
Chandle_v. Roudebush, 425 U.S. 840, 841, 96 S.Ct. 1949,
1950, 48 L.Ed.2d 416 (1976).
(a) Dismissal of Complaint
Sharpe alleges that her complaint of November 12,
1993, was dismissed in retaliation for the filing of that
compiaint. The defendant contends that, even assuming
Sharpe has established a prima facie case of retaliation, it
has shown legitimate, nondiscriminatory reasons for the
dismissal of the complaint.
Sharpe's complaint of November 12, 1993, alleged
that in 1989, she had been placed as a cooperative program
graduate in a nonprofessional series position. The
complaint was dismissed by the agency on March 10, 1994.
The notice of dismissal stated that since Sharpe did not
contact an EEO counselor until September 3, 1993, while
the alleged discriminatory events occurred in March 1989.
Sharpe failed to initiate contact with the EEO counselor
within the required 45-day time limit. (2 Sass decl., ex. 2)
The notice of dismissal also stated that the complaint stated
the same claim as the complaint of July 1989, which Sharpe
had withdrawn on August 11, 1989.
38a
Appendix B
Even assuming that Sharpe has established a prima
facie case of retaliation, the defendant is still entitled to
summary judgment on Sharpe's claim. Once the Plaintiff
establishes his prima facie case, the employer must proffer a
legitimate, nondiscriminatory reason for the adverse
employment action. E.E.O.C. v. Reichhold Chemical, Inc.
988 F.2d 1564, 1571-72 (11th Cir. 1993). If the employer
offers legitimate reasons for the employment action, the
Plaintiff must then demonstrate that the employer's proffered
explanation is a pretext for retaliation. Meeks, 15 F.3d at
1021; Goldsmith v. City of Atmore, 996 F.2d 1155,1163
(llth Cuir.1993). Here, the defendant relied upon
applicable regulations in dismissing Sharpe's claim.
Clapsadl decl. See 29 C.F.R. § 1614.105(1) (1995). Sharpe
has not refuted the evidence offered by the defendant, and
has failed to demonstrate that the defendant's proffered
explanation is a pretext for retaliation. Goldsmith v. City of
Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). The
defendant is entitled to summary judgment on Sharpe's
claim. See Grigsbv v. Reynolds Metals Co., 821 F.2d 590,
596 (11th Cir. 1987).
(b) Removal from CPAT/LCM Project.
Sharpe also aileges that she was removed from the
CPATS/LCM project and replaced by a higher grade
co-worker in retaliation for filing an EEO Complaint on
June 21, 1994. The defendant contends that Sharpe has
failed to establish an adverse personnel action, and that the
defendant has shown legitimate, nondiscriminatory reasons
for its action.
39a
Appendix B
Sharpe was removed from the project on August
25,1994. A white male, Mike Keeth, was also taken off the
project. (2 Sharpe dep., at p. 74) Sharpe's supervisor,
Jacklyn Crumpler, was Division Head of Resource
Information Systems at NETPMSA. Crumpler assigned
Keeth and Sharpe to collect part of the data for a segment of
the project. After they completed their portion, higher
ranking analysts were assigned to complete the technical
review and findings and recommendation phases. (Crumpler
deal.)
"[U]ltimate employment decisions such as hiring,
granting leave, discharging, promoting, and compensating”
are the types of personnel actions subject to Title VII relief.
Pane v. Bolger, 645 F.2d 227, 233 (4th Cir.) (en bane), cert.
denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206
(1981). See Dollis v. Rubin, 77 F.3d 777, 781 (Sth Cir.
1995). There is no Title V11 violation absent a materially
adverse change in terms and conditions of employment.
Harlston_v. McDonnell Douglas Corp, 37 F.3d 379, 382
(8th Cir.1994): Crady v. Liberty National Bank & Trust Co.
of Indiana, 993 F.2d 132,136 (7th Cir.1993); Plaisance v.
Travelers Ins. Co., 880 F. Supp. 798, 810 (N.D.Ga. 1994),
affd, 56 F.3d 1391 (11th Cir. 1995). Sharpe docs not
dispute the evidence presented by the defendant that she
was taken off the project because she had completed her
assignment. Since Sharpe has not shown that she was
subjected to an adverse job action, she has failed to
establish a prima facie case of retaliation. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1824,
36 L.Ed.2d 668, 677 (1973); Coutu v. Martin Cty. Bd. of
Cty. Commissioners, 47 F.3d 1068, 1073 (11th Cir. 1995).
40a
Appendix B
In addition, the defendant has shown legitimate,
nondiscriminatory reasons for removing Sharpe from the
project. The defendant is entitled to summary judgment on
Sharpe's claim.
il. -CONCLUSION
For all the reasons discussed above, the defendants’
motions for summary judgment (doc. 314) and for partial
summary judgment (doc. 403) are GRANTED as to the
claims of Plaintiff Darlene Sharpe). Since all claims of the
Plaintiff have been resolved, the Clerk is directed to enter
judgment for the defendant and against Plaintiff Darlene
Sharpe, together with taxable costs.
DONE AND ORDERED
this 13" day of September, 1996.
““o/ ”
— =
ROGER VINSON
United States District Judge
Aaa es EOE ARI eat scandals sob Ma »
4la
Appendix B
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
JAMES R. WELCOME,
Plaintiff,
Case No. 96cv174/RV
v.
JOHN H. DALTON,
Secretary of the Navy,
Defendant.
/
ORDER
Pending is the defendant’s motion to dismiss or, in the
alternative, for summary judgment of the claims of Plaintiff
James R. Welcome. (doc.325) Also pending is the
defendant’s motion for partial summary judgment on the
disparate treatment and reprisal claims of the Plaintiff (doc.
387)
.. BACKGROUND
This is an employment discrimination action, brought
pursuant to Title VII of the Civil Rights Act of 1964 (42
U.S.C. ss 2000e, et. seq.). Originally, former Plaintiff
Cohesion, Inc. attempted to sue on behalf of thirty-three
individuals; however, the defendant’s motion to dismiss for
lack of standing was granted on January 27, 1995. The
42a
Appendix B
complaint was amended to substitute forty-six individual
Plaintiffs, including James R. Welcome.
The Plamtiff, James R. Welcome, is a black male.
Welcome alleges that the defendant subjected him to
numerous discriminatory practices during the course of his
employment, and that he was discriminated against on the
basis of his race. Welcome also alleges that the defendant
retaliated against him. Except as noted, the following facts
are not in dispute.
Welcome began working at the Pensacola Naval Air
Station ("NAS") in 1980 in the position of Warehouse
Worker (WG-6907-05) in the Service Department of the
Public Works Center. In September 1984, he was promoted
to Supply Technician (GS-2005-06), and moved to the
Chief of Naval Education and Training ("CNET") Supply
Department.
In October 1984, Welcome entered the Electroplater
Apprentice program, and moved to the Naval Aviation
Depot Production Department, Metals Division. He was
promoted to the position of journeyman Electroplater
(WG-3711-09) in 1988. In 1990, he was promoted to
Electroplater Foreman (WS-3711-09). As a result of the
1991 Reduction-In-Force (RIF) at NADEP, he was changed
to Industrial Specialist (Aircraft) (GS-1150-11). He
currently works in that position.
In December 1993, Welcome applied for the position
of Equal Employment Specialist (GS-260-11) on Merit
Promotion Vacancy Announcement CPE-0296(93). The
oP ha Ne aa ic, wre a de yh
a
43a
Appendix B
announcement was for a vacancy at Naval Air Station
Meridian, Mississippi. The Merit Promotion was suspended
before issuance of the Certificate of Eligibles.' HRO
management chose to post the vacancy through the Office of
Personnel Management in order to gain access to a wider
pool of qualified applicants. Welcome did not apply through
the OPM for the position. (Gonzalez decl.)
During 1994 and 1995, Welcome requested that his
Priority Placement Program ("PPP") registration be revised
to include the registered skill of Equal Employment
Specialist (GS-0260-11). Based on the written information
submitted by Welcome as to his qualifications for the
position, HRO staffing specialists found Welcome to be less
than "fully qualified" for the position, and did not register
him on the PPP.
Upon denial of Welcome's request for registration,
Welcome filed an EEO complaint against Lee Weiland,
Supervisory Personnel Staffing Specialist at HRO. On May
23, 1994, while Welcome was reviewing his PPP folder, he
asked Weiland several questions about his PPP status.
Weiland informed Welcome that he could not answer
specific questions about the PPP folder because the
' The Certificate of Eligibles is the listing of eligible applicants ranked
according to their rating, which is given by evaluators designated by
management. (Reboulet deci. )
44a
Appendix B
questions were the subject of the pending EEO complaint.
At the request of Welcome, Weiland had no further
involvement with Welcome's PPP folder after May 31,
1994.
In 1994, Welcome was given approval to attend Track
Il of the CNET Equal Employment Opportunity
Practitioners’ Workshop. Track I concerned the process of
informal EEO complaint processing, Track II concerned
formal complaint processing, and Track III focused on EEO
efforts to prevent potentially discriminatory situations
through proactive initiatives. Because actual EEO
complaints were used during the lectures in Track I and
Track II lectures, attendance was limited to employees
whose positions directly involved the processing of such
complaints. Welcome was registered only for Track III
classes. On March 16, 1994, Welcome entered Janice
Swann's Track II workshop. Swann informed Welcome that
he would have to leave the classroom, since he was not
registered for Track II classes.
Welcome filed a formal complaint of discrimination
on May 27, 1994, alleging that he was discriminated against
on the basis of race when: (1) he was denied the opportunity
to gain employment as an Equal Employment Specialist; (2)
he was denied the opportunity to change his PPP status; and
(3) he was ejected by Janice Swann from an EEO class. The
agency dismissed the complaint on May 11, 1995. Welcome
appealed to the EEOC, which affirmed the agency's decision
on June 8, 1995.
Welcome alleges in the amended complaint that: (1 )
he was denied promotion to Equal Employment Specialist;
ee
was retaliated against when Lee Weiland refused to speak
to Welcome regarding his PPP registration and job
placement. Welcome also alleges disparate impact.’
Il. ANALYSIS
A. Summary Judgment Standard
A motion for summary judgment should be granted
when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Rule 56(c), Fed. R. Civ. P.
"(T)he plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
? The defendant's motion for partial summary judgment on all Plaintiffs
disparate impact claims was granted on February 28, 1996. (doc. 439)
46a
Appendix B
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the
burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273
(1986). See Everett v. Napper, 833 F.2d 1507, 1510 (11th
Cir. 1987). However, summary judgment is improper "if a
reasonable fact finder could draw more than one inference
from the facts, and that inference creates a genuine issue of
material fact." Cornelius v. Highland Lake, 880 F.2d 348,
351 (11th Cir. 1989), cert. denied, 494 U. $.1066,110 S.
Ct.1784,108 L. Ed. 2d 785 (1990). An issue of fact is
“material” if it might affect the outcome of the case under
the governing law._Anderson v. Liberty Lobby, Inc., 477
U.S. 242,248,106 S.Ct.2505, 2510, 91 L.Ed.2d 202, 211
(1986). It is "genuine" if the record taken as a whole could
lead a rational trier of fact to find for the non-moving party.
Id. See also Matsushita Electric Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106'S.Ct. 1348, 1356, 89
L.Ed.2d 538, 552 (1986).
Conclusory allegations based on _ speculation,
subjective beliefs, or bald assertions based upon
unsubstantiated hearsay are insufficient to create a "genuine
issue of material fact." Carter v. Miami, 870 F.2d 578,585
(11th Cir.1989); Ramsev v. Leath, 706 F.2d 1166, 1170
(11th Cir. 1983). On the other hand, if the record taken as a
whole could lead a rational tner of fact to find for the
nonmoving party, then the issue of fact is genuine.
Matsushita Elec. Industrial Co. Ltd. v. Zenith Radio Corn,
475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538,
552 (1986).
a
tah arta ae
47a
Appendix B
viewed in the light most favorable to the non-moving party.
McCabe v. Sharett, 12 F.3d 1558, 1560 (11 th Cir. 1994).
Discussion
(1) Disparate Treatment
The defendant contends that the Plaintiff has failed to
establish a prima facie case of disparate treatment on the
basis of race as to any of his claims
Title V11 of the Civil Rights Act of 1964 provides
that it is unlawful for an employer "to discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.” 42
U.S.C. ss 2000e-2(a 1) (1988). The Plaintiff may establish
prima facie case of discrimination under Title V11 on the
basis of statistical proof of a pattern of discrimination, or on
the basis of direct evidence of discrimination, which
consists of "evidence which, if believed, would prove the
existence of discrimination without inference or
presumption." Carter yv_ Citv of Miami, 870 F.2d 578.
581-82 (11th Cir. 1989). In the usual case, however, direct
evidence is not present. and the Plaintiff must rely on
circumstantial evidence to Prove discriminatory intent, using
the framework established in McDonnell Douglas Corn. yv
48a
Appendix B
Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36
L.Ed.2d 668 (1973). Under McDonnell Douglas, a Plaintiff
establishes a prima facie case of race discrimination under
Title V11 by showing: (1) he belongs to a racial minority;
(2) he was subjected to adverse job action; (3) his employer
treated similarly situated employees outside his
classification more favorably; and (4) he was qualified to do
the job. McDonnell Douglas Com., 411 U.S. at 802, 93
S.Ct. at 1824, 36 L.Ed.2d 677. See St. Mary's Honor Ctr.
v. Hicks, U.S. _, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407
(1993). Demonstrating a prima facie case is not onerous; it
requires only that the Plaintiff establish facts adequate to
permit an inference of discrimination. Williams Ford Motor
Co., 14 F.3d 1305,1308 (8th Cir.1994). See Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101
S.Ct. 1089, 1093-4, 67 L.Ed.2d 207 (1981).
(a) Non-Selection for Equal Employment Specialist
The Plaintiff alleges that the defendant discriminated
against him when it denied him a promotion to an Equal
Employment Specialist on Merit Promotion Announcement
CP-0296(93) by removing the position from the competitive
process. The defendant argues that the Plaintiff has failed to
demonstrate that the decision to remove the job from the
competitive application process and use approved
procedures to fill the vacancy was pretext to disguise
discriminatory motivation.
In December 1993, Welcome applied for the position
of Equal Employment Specialist under a Merit Promotion
Announcement. Before any of the candidates were rated and
the Certificate of Eligibles issued, the Announcement was
ESL S LRLN ABALONE BIG el II ME RE, z
Ae SO CDS BRE
CDA Sp Aaa OR ce bhi: aE eg a
49a
Appendix B
suspended, and HRO management posted the vacancy
through the Office of Personnel Management in an attempt
to gain access to a wider pool of qualified applicants.
(Welcome dep., at 69) At any time prior to the issuance of
the Certificate of Eligibles, a Merit Promotion vacancy may
be canceled in favor of an alternative procedure for filling
the vacancy. (Gonzalez decl.) Welcome did not apply
through OPM for the position.
The defendant contends that Welcome has not
demonstrated that similarly situated persons outside his
classification were treated more favorably as to the Merit
Promotion vacancy, and that Welcome has failed to present
any evidence supporting an inference of discrimination. |
have to agree. Here, Welcome was not denied promotion to
Equal Employment Specialist on the Merit Promotion
Vacancy announcement. Instead, the announcement was
canceled before Welcome was rated, and Welcome did not
re-apply under the OPM open competitive announcement.
The sole support for Welcome's allegations in the complaint
are his conclusory statements that the cancellation of the
announcement was racially motivated. Such conclusory
allegations of discrimination are insufficient to create an
issue of fact. Carter v. Miami, 870 F.2d 578, 585 (11th Cir.
1989); Forsberg v. Pacific Northwest Bell Tel. Co., 840
F.2d 1409, 1419 (9th Cir. 1988); Meiri v. Dacon, 759 F.2d
989, 998 (2d Cir.), cert. denied, 474 U.S. 829. 106 S.Ct 91,
88 L.Ed2d 74 (1985). In addition, the defendant has
proffered evidence supporting a legitimate
nondiscriminatory reason for canceling the announcement,
and Welcome has not come forward with any evidence to
show that this reason is pretextual. The defendant is entitled
50a
Appendix B
to summary judgment on Welcome's claim of non-selection
for Equal Employment Specialist.
(b) Pnonty Placement Program
Welcome alleges that he was denied the opportunity
to change his Priority Placement Program ("PPP") status
from an Electroplater Supervisor to an Equal Employment
Specialist, and that as a result he was denied a promotion to
Equal Employment Specialist on a Ment Promotion
Vacancy Announcement. The defendant maintains that the
Plaintiff has failed to demonstrate a prima facie case of
discrimination, since Welcome was not qualified to change
his PPP status.
Under the Pnority Placement Program, an employee
may register for up to five occupational series for which the
employee has been rated “fully qualified" by HRO, one of
which must be the employee's present series.’ . To be
considered fully qualified, the employee must be able to
enter the position and fully perform the duties of the
position without training. (Gonzalez decl.) During 1994 and
1995, Welcome requested on several occasions that his PPP
registration be revised to include the registered skill of
Equal Employment Specialist. Welcome's experience for the
position consisted of his membership on a voluntary EEO
committee and of his activities as a complainant. (Gonzalez
decl.) Staffing specialists at HRO found that Welcome was
not fully qualified for the position.
> The purpose of the PPP is to provide at least one valid job offer to each PPP
registrant who either has been or is scheduled to be adversely affected by a
reduction in force or workload transfer. (Gonzalez deci.)
OPEN BE sb A OIC LEST Vitae Se ae Rel
ee
—
Sla
Appendix B
As part of the Title V11 Plaintiffs prima facie case,
the Plaintiff must show that his employer treated similarly
situated employees outside his Classification more favorably
than himself. Coutu vy. Martin Cty. Bd of Cty.
Commissioners, 47 F.3d 1068, 1073 (11th Cir. 1995). If a
Plaintiff fails to show the existence of a similarly situated
employee, summary judgment is appropriate where no other
evidence of discrimination is present. See. e.g. Mack v.
Great Atlantic and Pacific Tea Co., 871 F.2d 179, 182 (ist
Cir. 1989). Here, Welcome has failed to show that similarly
situated employees outside his classification were allowed
to register on the PPP without being "fully qualified" for the
position. Weicome has offered no evidence supporting an
inference of discrimination. But even assuming that
Welcome has established a prima facie case, the defendant
is still entitled to summary judgment on Welcome’s PPP
claim. Once the Plaintiff has established a prima facie case,
thereby raising an inference that she was the subject of
intentional race discrimination, the burden shifts tc the
defendant to rebut this inference by presenting legitimate.
non-discriminatory reasons for its employment action. Texas
Dep't of Community Affairs v Burdine, 450 U.S.248. 101
S.Ct.1089, 67 L.Ed2d 207 (1981). This intermediate
burden is "exceedingly light.” Turnes v. AmSouth Bank,
N.A.,36 F.3d 1057,1061 (11th Cir 1994). The defendant has
fully met its burden in this case
The evidence in the record shows that Welcome was
not registered as an Equal Employment Specialist on the
PPP because he was not “fully qualified” for the position, as
1S required. On the basis of Welcome's SF 171, HRO
specialists found that Welcome did not have sufficient EEO
experience to step into the pesition of Equal Employment
52a
Appendix B
Specialist without training. Welcome has produced no
evidence that the defendant did not properly follow its
procedures, or that he had the requisite experience to qualify
under the criteria. Nor has Welcome shown that the use of
the criteria constituted a pretext for discrimination.
Welcome has failed to establish that the defendant's
proffered reason is unworthy of credence, or that the
defendant was more likely motivated by a discriminatory
reason in taking its actions. See Karazanos v. Navistar Int'l
Transu. Corp., 948 F.2d 332, 336 (7th Cir.1991). Since the
defendant has proffered evidence supporting a legitimate,
nondiscriminatory reason for not enrolling Welcome on the
PPP, and Welcome has not come forward with any evidence
to show that this reason is pretextual, summary judgment is
warranted. See Richmond v. Board of Resents of
Universitv of Minnesota, 957 F.2d 595, 598 (8th Cir. 1992);
Karazanos, 948 F.2d at 336; Mason v. Pierce, 774 F.2d
825, 829 (7th Cir. 1985).
(c) Equal Emplovment Opportunity Training
Welcome alleges that he was denied the opportunity
to attend an EEO Formal Complaint Process training
process by Janice Swann, a white female.
In March 1994, Welcome requested permission to
attend the CNET Equal Employment Opportunity
Practitioners’ Workshop. The purpose of the workshop was
to provide training for EEO practitioners whose official
duties concerned EEO matters. Attendance to Tracks I and
II of the workshop were limited to such practitioners, and
involved the examination of actual EEO complaints. (Swann
53a
Appendix B
decl.) However, Track III was open to non-specialists.
Since Welcome was a member of NADEP's Commanding
Officer Action Committee on EEO, a voluntary advisory
group, he was allowed to enter Track III, even though he
was not eligible for Tracks I and 11. (Welcome dep., at 79)
On March 16, 1994, Welcome entered Janice Swann's
Track II classroom. Swann informed Welcome that he was
in the wrong classroom, since he could not attend Track II
classes, and Welcome left. (Welcome dep., at 77) Welcome
testified in his deposition that he believed discrimination
was the basis for Swann's action. However, Welcome's
conclusory allegations of discrimination are insufficient to
create an issue of fact. Meiri v. Dacon. 759 F.2d 989, 998
(2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88
L.Ed.2d 74 (1985). Welcome docs not dispute that he was’°
not registered for Track II classes, and was not eligible to
register for such classes. He has presented no evidence,
circumstantial or otherwise, to support his allegation that
Swann asked Welcome to leave her class on the basis of
Welcome's race. The central inquiry in evaluating whether
the Plaintiff has met his initial burden in a Title V1] Case is
whether the circumstantial evidence presented is sufficient
to create an inference of discrimination. Fitzpatrick v. City
of Atlanta, 2 F.3d 1112, 1123 (11" Cir. 1993): Shah v.
General Electric Co., 816 F.2d 264, 268 (6th Cir. 1987).
Sufficient evidence is simply not present in this case as to
Welcome's claim concerning the Track II] workshop.
(b) Retaliation
Welcome alleges that the defendant retaliated against
him when Lee Weiland, an HRO employee, refused to
54a
Appendix B
speak with Welcome about Welcome's PPP registration
because of Welcome's pending EEO complaint against
Weiland. Welcome contends that Weiland’'s actions
interfered with Welcome's job placement and PPP
registration. The defendant argues that Weiland's action did
not constitute a adverse employment action under Title Vi 1,
and that Welcome has not established a prima facie case of
retaliation.
To establish a prima facie case of retaliation, the
Plaintiff must show: (1) that he engaged in statutorily
protected expression; (2) that he suffered an adverse
employment action; and (3) that there is some causal
relationship between the two events. Meeksv. Computer
Associates Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994);
E.E.O.C. v. Ohio Edison Co., 7 F.3d 541 (6th
Cir.1993):Archuleta v. Colorado Dept. of Institutions, 936
F.2d 483 (10th Cir. 1991). The term “employment action"
may be construed in light of Section 2000e-2(a) (1), which
makes it an unlawful employment practice to discriminate
against an individual with respect to "compensation, terms,
conditions, or privileges of employment ...." See, e.g.,
Jordan v. Clark, 847 F.2d 1368, 1373 n.3 (9th Cir. 1988),
cert. denied, 488 U.S. 1006, 109 S.Ct. 786, 102 L.Ed.2d
778 (1989); Bundy v. Jackson, 641 F.2d 934, 942 (D.C.Cir.
1981). See also Chandler v. Roudebush, 425 U.S. 840, 841,
96 S.Ct. 1949, 1950, 48 L.Ed.2d 416 (1976).
The Plaintiff alleges that Weiland's retaliatory actions
interfered with his job placements in PPP registration. "He
being supervisor staffing specialist of HRO, | feel that he
displayed his true racist attitudes toward me in his
comments.” (Welcome dep., at 102) According to Weiland,
55a
Appendix B
he could not answer Welcome's questions about the
specifics of his PPP registration because Welcome's
questions were the subject of Welcome's EEO complaint
against him. (Wetland decl.) Welcome has produced no
evidence that Weiland's action harmed him, or affected his
PPP registration. Shortly after the incident, Weiland was
Welcome has failed to show how Weiland's action
affected his terms or conditions of employment. Since the
Plaintiff has not shown that he was subjected to an adverse
job action, he has failed to establish a prima facie case of
retaliation, McDonnell Douglas Com. v. Green. 41] US.
792, 802, 93 S.Ct 1824, 36 L.Ed.2d 668, 677 (1973);
outu v. in _ Bd. of _ Commissioners, 47 F 3d
1068, 1073 (11th Cir. 1995).
Even assuming that Welcome has established a prima
facie case of retaliation, the defendant is stil] entitled to
summary judgment on Welcome's retaliation claim. Once
the Plaintiff establishes his prima facie case, the employer
must proffer a legitimate, non-discriminatory reason for the
adverse employment action. EEOC. v._Reichhold
Chemical, Inc., 988 F.2d 1564,1571-72 (11th Cir.1993). If
the employer offers legitimate reasons for the employment
action, the Plaintiff must then demonstrate that the
employer's proffered explanation is a pretext for retaliation.
Meeks, 15 F.3d at 1021: Goldsmith v. City of Atmore, 996
F.2d 1155, 1163 (11th Cir. 1993).
Here, Welcome alleges that Weiland refused to
answer his questions about PPP registration. Weiland states
56a
Appendix B
in his affidavit that when Welcome's request to add Equal
Employment Specialist to his PPP registration was denied,
Welcome filed an EEO complaint naming Weiland as a
respondent on March 3, 1994. (aft. to doc. 388, Weiland
decl.) On May 23, 1994, when Welcome was reviewing his
PPP folder, he asked Weiland to answer some questions.
Weiland told Welcome that he could not answer certain
questions about the PPP folder, since the questions were the
subject of the EEO complaint Welcome had filed against
him in March 1994, and were part of an ongoing
investigation. (aft. to doc.388, Weiland decl.) Weiland
requested that Tom Easley and Berniece Reboulet answer
the questions. The defendant has definitely met its burden of
presenting legitimate, non-discriminatory reasons for
Weiland’s action.
Pursuant to departmental policy, Weiland could not
answer Welcome's questions because of the pending EEO
complaint. Welcome has not refuted the evidence offered by
the defendant, and has failed to demonstrate that the
defendant's proffered explanation is a pretext for retaliation.
Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th
Cir. 1993). In this case, the defendant's evidence of a
legitimate, non-discriminatory reason for its action is so
strong as to rebut completely the inference raised by the
Plaintiffs prima facie case of retaliation. See Gnrgsbv_ v.
Reynolds Metals Co., 821 F.2d 590, 596 (11th Cir.1987).
The evidence supporting Welcome's prima facie case is
simply not sufficient to create an issue of fact in light of the
substantial evidence of lawful motive presented by the
defendant. As a result, the defendant is entitled to summary
judgment on the Plaintiff's retaliation claim.
57a
Appendix B
[f. CONCLUSION
For the reasons discussed above, the defendant's
motion for summary judgment is GRANTED as to the
claims of James R. Welcome. (doc. 325) The defendant's
motion for partial Summary judgment on the disparate
treatment and retaliation claims of Plaintiff James R.
Welcome is GRANTED. (doc. 387) The Clerk shall enter
judgment for the defendant and against plaintiff Welcome,
together with taxable costs.
DONE AND ORDERED this 8" day of August, 1996.
“e/ ”
ROGER VINSON
United States District Judge
58a
APPENDIX C-——-ORDERS (3) DENYING
REHEARING IN THE UNITED STATES COURT OF
APPEALS
FOR THE ELEVENTH CIRCUIT FILED
OCTOBER 6, 1998, SEPTEMBER 16, 1998 AND
OCTOBER 20, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-3689
THELMA ROBY,
Plaintiff-Appellant,
versus
JOHN H. DALTON,
Secretary of the Navy,
Defendant-Appellee.
On Appeal from the United States District Court for the
Northern District of Florida
BEFORE: COX, BIRCH AND MARCUS, Circuit Judges.
PER CURIAM:
The petition for rehearing filed by the appellant is
DENIED.
ENTERED FOR THE COURT:
“s/EMMETT R. COX”.
UNITED STATES CIRCUIT JUDGE
ORD-41
59a
Appendix C
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-3412
DARLENE D. SHARP,
Plaintiff-Appellant,
versus
JOHN H. DALTON,
Secretary of the Navy,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Florida
BEFORE: COX, BIRCH AND MARCUS, Circuit Judges.
PER CURIAM:
The petition for rehearing filed by the
appellant is DENIED.
ENTERED FOR THE COURT:
“s/EMMETT R. COX”.
UNITED STATES CIRCUIT JUDGE
ORD-41
60a
Appendix C
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-3689
JAMES R. WELCOME,
Plaintiff-Appellant,
versus
JOHN H. DALTON,
Secretary of the Navy,
Defendant-Appellee.
On Appeal from the United States District Court for the
Northern District of Florida
ON PETITION(S) FOR REHEARING AND
SUGGESTION(S) OF REHEARING EN BANC
(Opinion 1° Ce 2
Before: COX, BIRCH AND MARCUS, Circuit Judges.
PER CURIAM:
The Petition(s) for Rehearing are DENIED and no member
of this panel nor other Judge in regular active service on the
Court having requested that the Court be polled on
rehearing en banc (Rule 35, Federal Rules of Appellate
Procedure, Eleventh Circuit Rule 35-5), the Suggestions(s)
of Rehearing En Banc are DENIED.
ENTERED FOR THE COURT:
“s/EMMETT R. COX”,
UNITED STATES CIRCUIT JUDGE
ORD-42
(6/95)
6la
APPENDIX D——AGREEMENT FOR
REPRESENTATION BETWEEN ATTORNEY SADIE
MOORE STEWART AND PLAINTIFFS SIGNED
NOVEMBER 6, 1995
AGRE R REPRESENTATION
FEE:
As compensation for services, Cohesion, Inc., agrees to pay
Attorney Sadie Moore Stewart a fee of $15,000. This
agreement is entered into by and among all named Plaintiffs
regarding case No. 94-30165-RV, Johnson, et.al. V. John
H. Dalton, Secretary of the Navy and Attorney Sadie Moore
Stewart, Fla. Bar # 970530.
ATTORNEYS' RESPONSIBILITIES:
Attorney Stewart is responsible for the timely answering of
any and all outstanding motions, ensuring that all
interrogatories and production of documents are properly
addressed, scheduled interviews with all Plaintiff's to ensure
that all interrogatories are properly addressed and answered,
ensure adequate time is allowed for PLAINTIFFS,
individually or the Board of Directors of Cohesion, Inc.,
where issues affect all PLAINTIFFS or multiple
PLAINTIFFS, to review legal actions prior to timely filing.
Conduct any all Depositions and requests for production of
documents.
Render timely responses and complete all motions thereto.
Provide legal counseling and representation to PLAINTIFFS
when necessary to ensure compliance with this agreement.
62a
Appendix D
Submit written reports of all actions taken on behalf of
PLAINTIFFS on a monthly basis. Said reports will be
mailed to COHESION, INC.,at P.O. Box 16189,
Warrington, Fla. 32507 within five days of the end of each
month until full settlement of aforementioned case or
superseding of this agreement by mutual consent of the
parties hereto whichever occurs first.
We understand and agree that our attomey will render
periodic statements to us indicating the current status of our
account and complaint.
ATTORNEY'S ALLOWED TO EXERCISE LIMITED
DISCRETION:
1 understand or have had explained to me, the fact that it
frequently becomes necessary for an attorney to make
choices of alternatives that may be presented in the courses
of his/her representation of us.
We further understand that full discussion of such
alternatives may not be practical or even possible in a given
situation. Therefore, we authorize our attorney to exercise
discretion after discussion with any one of the designated
executive board members.
Subsequent to any negotiations or settlement talks, we agree
that our attorney will meet, discuss and obtain approval of
the full body unless time restricts and time constraints are
required approval from the board with a two third vote.
63a
Appendix D
CONSTRUCTION OF AGREEMENT:
This agreement will be construed and interpreted according
to the Laws of the State of Florida and the Code of
Professional Responsibility. No paragraph heading will be
relied upon or utilized in the interpretation of any of this
agreement such readings being for convenience only, and in
all references herein to persons, whether attomey, client or
others, the use of any particular gender or the plural or
singular number is intended to include the appropriate
gender of numbers as the written instrument may require.
RIGHTS OF CLIENT TO CANCEL:
This contract may be canceled by written notification to the
attomey at any time it is deemed the attomey is flagrantly
missing deadlines, not responding to motions, causing
unnecessary delays in the timely processing of this lawsuit.
If canceled the client, will not be obligated to pay any fee to
the attorney for the work performed during this period. If
the attorney has advanced funds to others in representation
of the client, the attorney is entitled to reimbursement for
such amounts as he or she has reasonably advanced on
behalf of the client.
IN WITNESS WHEREOF., the parties hereto have executed
this agreement the date stated below. This agreement shall
remain in effect until full settlement of the aforementioned
case or until superceded by agreement of the parties.
64a
Appendix D
//s//Sadie Moore Stewart
ATTORNEY SIGNATURE//DATE
FLORIDA BAR NR.
[falls ante ROR iy eer es
PLAINTIFFS DESIGNATED
REPRESENTATIVE/DATE
NOTARY
SIGNATURE/DATE
WITNESS ___//s//Tamara D. Tikell
SIGNATURE/DATE
a ie eile as
eee ae cen were ge Tie, Pee acer tat eh eee nre cst
ee ee ee eee Cee ee
on
Risch See: es EI A MG ei iWeb ANAM AE eg aR a les Se
65a
APPENDIX E——REPORT OF THE REFEREE,
THE FLORIDA BAR VS. SADIE MOORE STEWART
FILED APRIL 27, 1998
IN THE SUPREME COURT OF FLORIDA
(Before a Referee)
THE FLORIDA BAR,
Complainant, Case Nos.
91,263;91,338:91,S40: and
92,515
vs. TFB File Nos. 97-00765-O1B; 97-00617-O1B:
97-00727-01B,97-00190-01B:
97-00505-01B,97-01312-O1B:
and 98-00713-01B
SADIE MOORE STEWART,
Respondent.
/
REPORT OF THE REFEREE
| SUMMARY OF PROCEEDINGS
Pursuant to the undersigned being duly appointed as
referee to conduct disciplinary proceedings herein according
to Rule 3-7.6, Rules of Discipline, the following
proceedings occurred:
On August 25, 1997, The Florida Bar filed its
Complaint in Supreme Court Case No. 91,263 (The Florida
Bar File No. 97-00765-O1B) against Respondent as well as
66a
Appendix E
its Request for Admissions in these proceedings. On
September 3, 1997, The Flonda Bar filed its Complaint in
Supreme Court Case No. 91,338 (The Flonda Bar File
No.97-00797-0 I B) against Respondent as well as its
Request for Admissions in these proceedings. On
November 19, 1997, The Florida Bar filed its Complaint in
Supreme Court Case No. 91,840 (The Florida Bar File No.
97-00617-Ol1B, against Respondent as well as_ its Request
for Admissions in these proceedings. By order dated
February 13, 1998, this Referee consolidated Supreme
Court Case Nos. .91,263;91,338; and 91,8 40. On March
6,1998, The Florida Bar filed its Complaint in Supreme
Court Case Into. 92,515 (The Fiorida Bar File Nos. 97-
0019001B and 97-00505-01B) against Respondent as well
as its Request for Admissions in these proceedings. On
April 15, 1998, in The Florida Bar File No. 97-0132-O1B,
Respondent waived the finding of probable cause and
waived the filing of a formal complaint and consented to
this Referee having jurisdiction to hear this matter. Also on
April 15, 1998, in The Florida Bar File No. 98-0071~—01B,
Respondent waived the finding of probable cause and
waived the filing of a formal complaint and consented to
this Referee having junsdiction to hear this matter. By
motion of the parties, which was ordered by this Referee, all
of the aforementioned cases have been consolidated and are
considered herein. The patties entered into a conditional
guilty plea for consent judgment and joint recommendation
as to discipline which have been submitted to this Referee
and are hereby approved. All of the aforementioned
pleadings and responses thereto and this Report constitute
the record in this case and are forwarded to the Supreme
Court of Florida.
TEES EEE coe
67a
Appendix E
I. FINDINGS OF FACT AND
RECOMMENDATIONS
A. Jurisdictional Statement.
Respondent is, and at all times mentioned during this
investigation was, a member of The Florida Bar, subject to
the jurisdiction and Disciplinary Rules of the Supreme Court
of Florida. The Referee was appointed by the Supreme
Court of Florida to hear the matters involved in Supreme
Court Case Nos. 91,963, 91,3~8, 91.840 and 99,515.
Respondent consented to Referee having jurisdiction over
The Florida Bar File Nos. 97-01,1~-0 LB and 98-007
1~-01B and to consolidation of these cases with Supreme
Court Case Nos. 91,960, 91,3,8, 91,840 and 99,515.
B. Narrative Summaries of Facts.
Case No, 91.263 (TFB File No. 97 00765-0IB)
Complaint of The Florida Bar
Respondent was required to complete 30 hours,
including two hours of Ethics, of Continuing Legal
Education prior to July 31, 1996. On or about August 16,
1996, The Florida Bar, via certified mail, advised
Respondent that she was ineligible to practice law because
of her failure to comply with her Continuing Legal
Education Requirements (CLER). Due to Respondent's
direction to her of Lice staff, Respondent did not pick up the
certified letter from The Florida Bar until September 19,
1996.
68a
Appendix E
On or about September 26,1996, Respondent filed a
motion for extension of time in Michael Clark v. Robert E.
Rubin, Secretary of the Treasury, the Department of
Treasury, and the US. Customs Service, Case No.
5:96CV3361RH, in the United States District Court,
Northern District of Florida, Panama City Division, citing
therein her health as the reason for the motion. At no time
did Respondent advise the United States District Court that
she was ineligible to practice law due to her failure to
comply with CLER.
On or about October 1, 1996, Respondent petitioned
The Florida Bar for removal of CLER delinquency. In so
petitioning, Respondent divas required to fill out a form
petition for removal of CLER delinquency. Respondent
answered under oath all questions on the form petition
except the following:
"5. During my delinquency, I have/have not
(circle one) practiced law in Florida or
rendered advice on matters of Flonda law.”
Respondent was reinstated to membership in good
standing on or about October 3, 1996. Respondent
continued her practice of law during the period that she was
ineligible to practice law in Florida and despite her
knowledge that she was ineligible to do so.
Based upon Respondent's admission, I recommend
that Respondent be found guilty of violating Rule 1-3.4(a)
(Any member who is suspended by reason of failure to
complete continuing legal education requirements shall be
deemed a delinquent member. A delinquent member shall
tice PR ae mE) The
MEE an Re hic A IA a, J
=
ND al a ae
69a
Appendix E
not engage in the practice of law in this state and shall not
be entitled to any privileges and benefits accorded to
members of The Florida Bar in good standing. Any member
suspended for failure to complete continuing legal education
requirements may be reinstated as elsewhere provided in
these rules) of the Rules of Professional Conduct.
Case No. 91,338 (TFB File No. 97-00797-01B
(Complaint of James Hawthorne)
James E. Hawthome filed suit in the United States
District Court, Northern District of Florida, Pensacola
Division, alleging racial discrimination and retaliatory
conduct by the University of West Florida. After the
University of West Florida filed a motion to dismiss, Mr.
Hawthome hired Respondent to represent him in this
lawsuit.
On or about August 93, 1995, Respondent filed a
notice of appearance in the case. Pursuant to an agreement
of counsel and a pre-trial order, certain disclosures as
required by Rule 26 ( N) of the Federal Rules of Civil
Procedure (regarding witness lists, inter alia) were due to be
filed on December 90, 1995. On or about December ‘9
1995, the University of West Florida filed its Rule 96 (A)
disclosure. On or about February 0,, 1996, the University of
West Florida filed a motion to compel the filing of the
Plaintiffs Rule 26 (at) disclosure. By order dated March 7,
1996, the court granted the University of West Florida's
motion to compel arid ordered that Plaintiffs Rule 96 (A)
disclosure should be filed by March 14, 1996. The court
also awarded attorneys fees in the amount of 563 to the
70a
Appendix E
University of West Florida which fees were to be paid
within 10 days of the court's order.
Respondent filed the Plaintiffs Rule 96 (ok) disclosure
on March 1A, 1996. The University of West Florida filed a
motion for summary judgment in April 1996, to which
Respondent responded. By order dated October 9~, 1996,
the court granted summary judgment unto the University of
West Florida. Respondent forwarded a copy of the order
granting summary judgment to Mr. Hawthorne. Respondent
did not clearly advise Mr. Hawthorne that he had 30 days
from October 99, 1996 within which to file a notice of
appeal of the order granting summary judgment. On
Wednesday, November 90, 1996, Mr. Hawthorne contacted
Respondent to inquire as to whether she aids going to file an
appeal of the order granting summary judgment. Respondent
appeared to De unaware that the time for filing the appeal
ran on November 91, 1996. Apparently Air. Hawthorne was
under the impression that the time to appeal ran on
November 79, 1996; nonetheless, on November ~ 1, 1996,
he filed a notice of appeal Pro Se. Respondent did not
clearly establish with her client the issue of whether Mr.
Hawthorne wanted to appeal the summary judgment and
whether Respondent would file that notice of appeal for Mr.
Hawthorne.
Respondent agreed to accept the representation of Mr.
Hawthorne for a $ 500 retainer plus a fee contingent upon
the outcome of the case. Respondent did not enter into a
written contingency fee contract with Mr. Hawthome nor
did she provide Mr. Hawthorne with a copy of the statement
of clients nghts.
7la
Appendix E
Based upon Respondent's admission, | recommend that
Respondent be found guilty of violating Rules 4-1.3 (A
lawyer shall act with reasonable diligence and promptness
in representing a client), 4-14(b) (Duty to Explain Matters
to Client. A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed
decisions regarding the representation), 4-3.2 (A lawyer
shall make reasonable efforts to expedite litigation
consistent with the interests of the client.), and 4-1.5(f)
(Contingent Fees. As to contingent fees: (1) A fee may be
contingent on the outcome of the matter for which the
service is rendered, except in a matter in which a contingent
fee is prohibited by paragraph (f)\3) or by law. A contingent
fee agreement shall be in writing and shall state the method
by which the fee is to be determined, including the
percentage or percentages that shall accrue to the lawyer in
the event of settlement, trial, or appeal, litigation and other
expenses to be deducted from the recovery, and whether
such expenses are to be deducted before or after the
contingent fee is calculated. Upon conclusion of a
contingent fee matter, the lawyer shall provide the client
with a written statement stating the outcome of the matter
and, if there is a recovery, showing the remittance to the
client and the method of its determination: (2) Every lawyer
who accepts a retainer or enters into an agreement, express
or implied, for compensation for services rendered or to be
rendered in any action, claim, or proceeding whereby the
lawyer's compensation is to be dependent or contingent in
whole or in part upon the successful prosecution or
settlement thereof shall do so only where such fee
arrangement is reduced to a written contract, signed by the
client, and by a lawyer for the lawyer or for the law firm
representing the client. No lawyer or firm may participate in
72a
Appendix E
the fee without the consent of the client in writing Each
participating lawyer or law firm shall sign the contract with
the client and shall agree to assume joint legal responsibility
to the client for the performance of the services in question
as if each were partners of the other lawyer or law firm
involved. The client shall be furnished with a copy of the
signed contract and any subsequent notices or consents. All
provisions of this rule shall apply to such fee contracts; (a)
A lawyer who enters into an arrangement for, charges, or
collects any fee in an action or claim for personal injury or
for property damages or for death or loss of services
resulting from personal injuries based upon tortious conduct
of another, including products liability claims, whereby the
compensation is to be dependent or contingent in whole or
in part upon the successful prosecution or settlement thereof
shall do so only under the following requirements: (A) The
contract shall contain the following provisions: (i) “The
undersigned client has, before signing this contract, received
and read the statement of client's mghts and understands
each of the nghts set forth therein. The undersigned client
has signed the statement and received a signed copy to refer
to while being represented by the undersigned attorney(s)."
(ii) "This contract may be cancelled by written notification
to the attorney at any time within 3 business days of the date
the contract was signed, as shown below, and if cancelled
the client shall not be obligated to pay any fees to the
attorney for the work performed during that time. If the
attorney has advanced funds to others in representation of
the client, the attorney is entitled to be reimbursed for such
amounts as the attorney has reasonably advanced on behalf
of the client; (C) Before a lawyer enters into a contingent
fee contract for representation of a client in a matter set
forth in this rule, the lawyer shall provide the client with a
73a
Appendix E
copy of the statement of client’s rights and shall afford the
client a full and complete opportunity to understand each of
the rights as set forth therein. A copy of the statement,
signed by both the client and the lawyer, shall be given to
the client to retain and the lawyer shall keep a copy in the
client's file. The statement shall be retained by the lawyer
with the written fee contract and closing statement under the
same conditions and requirements as subdivision (fS).) of
the Rules of Professional Conduct.
Case No. 91,840. TFB File No. 97-00617-OIB
(Complaint of Gillis Thomas))
In approximately November 1996, Respondent was
hired to represent Gillis Thomas in an employment
discrimination matter against J.C. Penney, Inc. A hearing
was scheduled before the Honorable Lacy Collier, U.S.
District Court, Northern District of Florida, Pensacola
Division, for June 14, 1996 at 10:00 a.m. Respondent failed
to appear at the hearing before Judge Collier. Respondent
did attempt to make a telephone appearance before Judge
Collier in this matter, but such appearance was denied. As a
result of the June 11, 1996 hearing, certain costs were
assessed against Mr. Thomas, the Plaintiff.
After Mr. Thomas filed a complaint with The Florida
Bar on January 17, 1997, Respondent wrote Mr. Thomas
and advised that she was terminating the representation and
cited therein certain attorney/client privileged, and therefore
confidential, information relative to Mr. Thomas' case
against J.C. Penney. Respondent provided J.C. Penney’s
counsel with a copy of her attorney/client privileged
communication with Mr. Thomas which disclosed
74a
Appendix E
information detrimental to Mr. Thomas’ action against J.C.
Penney.
Based upon Respondent's admission, | recommend
that Respondent be found guilty of violating Rules 4-1.6(a!
(Confidentiality of information (a) Consent Required to
Reveal Information. A lawyer shall not reveal information
relating to representation of a client except as stated in
subdivisions (b), (c), and (d), unless the client consents after
disclosure to the client and 4-3,4(c ) (A lawyer shall not
knowingly disobey an obligation under the rules of a
tribunal except for an open refusal based on an assertion
that no valid obligation exists) of the Rules of Professional
Conduct.
Case No. 92.515(TFB File Nos. 97-00190-01B and
97-00505-0
(Complaints of Sammy Barnes, Ray Dunklin, and James
Cox and Gary Scott)
Respondent was hired, as successor counsel, by nine
people to represent them in a racial discrimination case
arising out of their employment by the U.S. Navy, Coastal
Systems Station, Panama City, Florida. The representation
was intended to become a class action matter.
On or about November 27, 1995, Respondent entered
into a modified contingency fee agreement, signed by three
of the Plaintiffs, Sammy Barnes, Ray Dunklin, and James
Cox, in which the Respondent was paid a $12,500.00
retainer. Costs of the litigation were to be paid by the
clients.
BRS Stan z 5 ‘ POM We ee
PORE Makiahinw er Nes oR Ma Seis ude SU Aaa
75a
Appendix E
At the time the clients hired Respondent, they inquired
about Respondent’s experience in handling United States
Code Title VII discrimination cases and class action
matters. Respondent advised her clients that she was
experienced and could handle their legal matter. At no time
did the Respondent advise the clients that her experience in
United States Code Title VII actions had been limited to
administrative actions before the Equal Employment
Opportunity Commission (EEOC). At no time prior to
being hired did Respondent advise her clients that she had
never before participated in a class action matter.
Beginning in the spring of 1996 and for approximately
three months, Respondent was out of her office a significant
amount of time because of a family member’s illness.
Respondent left her paralegal, Tamara Tikell, in charge of
her law practice. Ms. Tikell, as Respondent’s agent,
requested $1,000 from the clients in April 1996 to be used
to pay costs of the litigation. The clients delivered a $1,000
check to Respondent’s office in April 1996. The clients
repeatedly requested a receipt for the $1,000 from
Respondent’s office, to no avail. The clients requested an
accounting for the $1,000 which Respondent did not
provide.
In response to the instant inquiry/complaint (TFB File
No. 97-00505-01B) on January 3, 1997, Respondent
advised The Florida Bar that “[t}he money in question was
used to pay for transcripts of the Plaintiff's depositions and
miscellaneous expenses.” Respondent’s response
references a court reporter bill for $945.25. Because of the
allegations regarding the $1,000 court deposit, the First
Judicial Circuit Grievance Committee “B” requested an
76a
Appendix E
audit of Respondent’s trust account for the time period
January 1, 1995 through May 31, 1997. The audit reveals,
and Respondent confirms, that the $1,000 check for costs
was not deposited into Respondent’s trust account. The
$1,000 was not applied towards the clients’ cost of
litigation. The $1,000 was deposited into Respondent’s
operating account. According to Respondent, Tamara
Tikell removed the $1,000 from Respondent’s operating
account immediately after it was deposited therein.
Respondent became aware of the discrepancy over the
$1,000 costs in approximately May 1996. Respondent
states that sometime after October, 1996, using her own
funds, she paid a court reporter $945.25 to cover the costs
of depositions related to this matter. Respondent has not
accounted to the clients for the balance of $54.75.
The trust account audit, unable to be completed due to
lack of records, revealed the following deficiencies:
A. Respondent did not maintain the following
records:
-Original or duplicate deposit records, indicating (a)
date and source of the deposit and (b) client and/or
matter, for the months of July 1995 through August
1996;
~Onginal cancelled checks for July 1995 through
August 1996;
-Case receipts and disbursements journal;
77a
Appendix E
-Client ledger accounts:
-Bank reconciliations;
-Monthly comparisons;
-Annual listing of trust obligations:
B. Respondent’s trust account is not set up as an
IOTA (Interest on Trust Accounts) account;
C. The checks do not reflect Ms. Stewart’s name, nor
do the checks reflect that the account is a trust accouni.
D. A shortage of funds existed in the trust account.
Based upon Respondent’s admission, I recommend
that Respondent be found guilty of violating Rules 4-1.4(b)
(Duty to Explain Matters to Client. A lawyer shall explain a
matter to the extent reasonable necessary to permit the
client to make informed decisions regarding the
representation), 4-1.15(a) (Clients’ and Third Party Funds to
be Held in Trust. A lawyer shall hold in trust, separate from
the lawyer’s own property, funds and property of clients or
third persons that are in a lawyer’s possession in connection
with representation. All funds, including advances for costs
and expenses, shall be kept in a separate account maintained
in the state where the lawyer’s office is situated or
elsewhere with the consent of the client or third person,
provided that funds may be separately held and maintained
other than in a bank account if the lawyer received written
permission from the client to do so and provided that such
written permission is received prior to maintaining the funds
78a
Appendix E
other than in a separate bank account. In no event may the
lawyer commingle the client’s funds with those of the
lawyer or those of the lawyer’s law firm. Other property
shall be identified as such and appropnately safeguarded.
Complete records of such account funds and other property,
including client funds not maintained in a separate bank
account, shall be kept by the lawyer and shall be preserved
for a period of 6 years after termination of the
representation), 4-1.15(b) (Notice of Receipt of Trust
Funds; Delivery; Accounting. Upon receiving funds or
other property in which a client or third person has an
interest, a lawyer shall promptly notify the client of third
person. Except as stated in this rule or otherwise permitted
by law or by agreement with the client, a lawyer shall
promptly deliver to the client or third person any funds or
other property that the client or third person is entitled to
receive and, upon request by the client or third person, shall
promptly render a full accounting regarding such property)
of the Rules of Professional Conduct, and 5-1.1(a) (Nature
of Money or Property Entrusted to Attorney. Money or
other property entrusted to an attomney for a specific
purpose, including advances for costs and expenses, is held
in trust and must be applied only to that purpose. Money
and other property of clients coming into the hands of an
attorney are not subject to counterclaim or setoff for
attommey’s fees, and a refusal to account for and deliver over
such property upon demand shall be deemed a conversion.
This is not to preclude the retention of money or other
property upon which the lawyer has a valid lien for services
or to preclude the payment of agreed fees from the proceeds
of transactions or collection. Controversies as to the
amount of fees are not grounds for disciplinary proceeding
unless the amount demanded in clearly excessive,
79a
Appendix E
extortionate, or fraudulent. In a controversy alleging a
clearly excessive, extortionate, or fraudulent fee, announced
willingness of an attorney to submit a dispute as to the
amount of a fee to a competent tribunal for determination
may be considered in any determination as to intent or in
mitigation of discipline; provided, such willingness shall not
preclude admission of any other relevant admissible
evidence relating to such controversy, including evidence as
to the withholding of funds or property of the client, or to
other injury to the client occasioned by such controversy), 5-
1.1(b) (Trust Accounts Required. Any bank or Savings and
loan association account maintained by a member of The
Florida Bar to comply with rule 4-1.15, Rules of
Professional Conduct, is and shall be clearly labeled and
designated as a trust account. Any safe deposit box used in
connection with the practice of law in Florida maintained by
a member of The Florida Bar to comply with rule 4-1.15
shall be located in this state unless the client otherwise
consents in writing. A member of The Florida Bar shall
advise any institution in which such deposit box is located
that it may include property of clients), 5-1. l(c) (Trust
Accounts as Official Records. A member of The Florida
Bar shall preserve or cause to be preserved the records of
all bank and savings and loan association accounts or other
records pertaining to the funds or property of a client or a
third party maintained in compliance with rule 4-1.15 for a
period of not less than 6 years subsequent to the final
conclusion of the representation of a client relative to such
funds or property. Such records shall include checkbooks,
cancelled checks, check stubs, vouchers, ledgers and
journals, closing statements, accounting or other statements
of disbursements rendered to chents or third parties with
regard to trust funds, or similar equivalent records clearly
80a
Appendix E
and expressly reflecting the date, amount, source, and
reason for all receipts, withdrawals, deliveries, and
disbursements of the funds or property of a client or third
party. Such records shall be kept pursuant to these rules as
a specific prerequisite to the right to receive, deliver, and
disburse funds or property of a client or third party and to
have a public aspect relating to the protection of clients and
to fitness of a member of The Florida Bar to practice law.
In any instance of an alleged violation by a member of The
Florida Bar of this rule or of any of the rules of Professional
Conduct, such records insofar as they may relate in any way
to the transaction, occurrence, or client in questions shall be
produced by the member of The Florida Bar for inspection,
audit, and copying by a designated representative of The
Florida Bar upon the direction of this court, a grievance
committee, the board of governors if acting pursuant to rule
3-7.5(b), or a referee. Such records or copies thereof shall
be admissible in evidence in any proceeding under this rule,
provided notice of such intended use shall be given to any
client involved, if practicable, unless such client is already
aware of such intended use, and upon good cause shown by
such client the admission of the same shal! be under such
conditions as shall be reasonably calculated thereafter to
protect the confidences of such client in the event the
proceedings otherwise become public records. Permissible
means of protection shall not prejudice the respondent and
may include but are not limited to excision, in camera
production, retention in sealed envelopes, or similar
devices. Failure to maintain such records or to produce
them upon such direction shall constitute ground for
disciplinary action under this rule without regard to any
other matter. The cost of any audit or investigation
necessitated by such failure may be taxed against a
————
8la
Appendix E
respondent), 5-1.1(4) (Trust Accounting. Minimum trust
accounting records shall be maintained and minimum trust
accounting procedures must be followed by all attorneys
practicing in Florida who receive or disburse trust money or
property), 5-1.1(e)2) (Interest on Trust Accounts(IOTA)
Program. Required participation. All nominal or short-term
funds belonging to clients or third persons that are placed in
trust with any member of The Florida Bar practicing from an
office or other business location within the State of Florida
shall be deposited into one or more interest-banking trust
checking accounts in an eligible financial institution for the
benefit of the Foundation, except as provided in rule 4-1.15
with respect to funds maintained other than in a bank
account, or as provided in rule 5-1.2(a). Only trust funds
that are nominal or short term shall be deposited into an
IOTA account. The member shall certify annually, in
writing, that the member is in compliance with, or is exempt
from, the provisions of this rule), 5-1.2(b) (Minimum Trust
Accounting Records. The following are the minimum trust
accounting records that shall be maintained: (1) A separate
bank account or accounts and, if utilized, a separate savings
and loan association account or accounts. Such accounts
shall be located in the State of Florida unless the client
otherwise directs, in writing, or unless the financial
institution in which the funds are maintained voluntarily
submits to the jurisdiction of the Supreme Court of Florida.
Such voluntary submission to the jurisdiction of the
Supreme Court of Florida shall be on the form prescribed by
the board of governors of The Florida Bar. The account or
accounts shall be in the name of the lawyer or law firm and
clearly labeled and designed as a “trust account.” (2)
Original or duplicate deposit slips and, in the case of
currency or coin, an additional case receipts book, clearly
82a
Appendix E
identifying: (A) the date and source of all trust funds |
received, and (B) the client or matter for which the funds
were received. (3) Original canceled checks, all of which
must be numbered consecutively, or, if the financial
institution wherein the trust account is maintained doc not
return the original checks, copies thereof, as provided by the
financial institution. (4) Other documentary support for all
disbursements and transfers from the trust account. (5) A
separate cash receipts and disbursements journal, including
columns for receipts, disbursements, transfers, and the
account balance, and contained at least: (A) the
identification of the client or matter for which the funds
were received, disbursed, or transferred; (B) the date on
which all trust funds were received, disbursed, or
transferred; (C) the check number for all disbursements, and
(D) the reason for which all trust funds were received,
disbursed, or transferred. (6) A separate file or ledger with
an individual card or page for each client or matter, showing
all individual receipts, disbursements, or transfers and any
unexpended balance, and containing: (A) the identification
of the client or matter for which trust funds were received,
disbursed, or transferred; (B) the date on which all trust
funds were received, disbursed, or transferred; (C) the
check number for all disbursements; and (D) the reason for
which all trust funds were received, disbursed, or
transferred. (7) All bank or savings and loan association
statements for all trust accounts), and 5-1.2(c) (Minimum
Trust Accounting Procedures. The minimum trust
accounting procedures that shall be followed by all
attorneys practicing in Florida who receive or disburse trust
money or property are as follows: (1) The lawyer shall
cause to be made monthly: (A) reconciliations of all trust
83a
Appendix E
bank or savings and loan association accounts, disclosing
the balance per bank, deposits in transit, outstanding checks
identified by date and check number, and nay other items
necessary to reconcile the balance per bank with the balance
per the checkbook and the cash receipts and disbursements
journal; and (B) a comparison between the total of the
reconciled balances of all trust accounts and the total of the
trust ledger cards or pages, together with specific
descriptions of any differences between the 2 totals and
reasons thereof. (2) At least annually, the lawyer shall
prepare a detailed listing identifying the balance of the
unexpended trust money held for each client or matter. (3)
The above reconciliations, comparisons, and listing shall be
retained for at least 6 years. (4) The lawyer or law firm
shall authorize and request any bank or savings and loan
associawon where the lawyer is a signatory on a trust
account to notice Staff Counsel, The Florida Bar, 650
Apalachee Parkway, Tallahassee, Florida 32399-2300, in
the event any trust check is returned due to insufficient
funds or uncollected funds, absent bank error. (5) The
lawyer shall file with The Florida Bar between June | and
August 15 of each year a trust accounting certificate
showing compliance with these rules on a form approved by
the board of governors of the Rules Regulating Trust
Accounts of the Florida Bar.
TFB No. 97-01312-01B
(Complaint of Shirley Minter-Smith)
Respondent waiver a formal finding of probable cause
and the filing of a formal complaint with respect to TFB File
No. 97-01312-01B.
84a
Appendix E
On August 22, 1996, Respondent was retained by Ms.
Shirley Minter-Smith to serve as attorney ad litem for her
minor son’s emancipation proceeding.
On or about September 11, 1996, Ms. Minter-Smith’s
son was arrested for aggravated battery and robbery and
Respondent was retained to handle his criminal case. Over
the next 4-6 weeks, Ms. Minter-Smith was unable to
communicate with Respondent to obtain information about
the status of her son’s criminal case.
On or about October 31, 1996, ms. Minter-Smith
retained another attorney to handle her son’s criminal
matter.
Respondent did not proceed with the emancipation
proceeding while the criminal charges were pending. It
appears that Ms. Minter-Smith wanted to go forward with
the emancipation proceeding notwithstanding the criminal
proceedings, yet the communication between Respondent
and Ms. Minter-Smith on this issue is not clear.
Based upon Respondent’s admission, I recommend
that Respondent be found guilty of violating Rule 4-1.4(a)
(A lawyer shall keep a client reasonable informed about the
status of a matter and promptly comply with reasonable
requests for information) of the Rules of Professional
Conduct.
85a
Appendix E
il 98-007 13-01B\
(Complaint of The Florida Bar)
Respondent has waived a formal finding of probable
cause and the filing of a formal complaint with respect to
TFB File No. 98-00713-01B.
Respondent represented the Plaintiff Wanda Rogers in
a federal action. The defendant, Marvin Runyon, the U.S.
Postmaster, filed a motion for summary judgment. At the
hearing on the motion for summary judgment, Respondent
appeared by telephone without leave of court while the —
defendant’s counsel was required to travel a significant
distance to attend this hearing. Respondent conceded that
summary judgment was appropriate. The defendant moved
for a judgment of costs against Respondent based upon the
above and Respondent did not respond, despite a
requirement to do so under the court’s rules. By order
dated December 2, 1997, the United States District Court
ordered Respondent to pay $2,260 to the defendant for her
actions herein.
Respondent did not respond to The Florida Bar’s
requests for information about this matter violating Rules 4-
3.4(c) (A lawyer shall not knowingly disobey an obligation
under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists) and 4-
8.4(g) (A lawyer shall not fail to respond, in writing, to any
inquiry by a disciplinary agency when such agency is
conducting an investigation into the lawyer’s conduct) of the
Rules of Professional Conduct.
86a
Appendix E
Ill. RECOMMENDATION AS TO DISCIPLINARY
MEASURE TO BE APPLIED
I recommend that Respondent be found guilty of
misconduct justifying disciplinary measures, and in
accordance with the terms of the consent judgment that she
be disciplined by:
A. Suspension from the practice of law for ninety-one(91)
days, which requires proof of rehabilitation.
B. Payment of The Flonda Bar’s costs in these
proceedings.
IV. PERSONAL HISTORY PAST DISCIPLINARY
RECORD AND AGGRAVATING AND
MITIGATING FACTORS
Prior to recommending discipline pursuant to Rule
3-7.6(k\(1), I considered the following:
A. Personal History of Respondent:
Age: 47 years old
Date admitted to the Bar: January 29, 1993
87a
Appendix E
B. Aggravating Factors:
i. 9.22(a) Prior Discipline: The Florida Bar File No.
96-00126-01B (Complaint of Eugene M. Bemstein) -
Respondent’s neglect and lack of communication in an
EEOC matter resulted in an admonishment before the
grievance committee in 1996.
Supreme Court Case No. 90,013; The Florida Bar File
No. 96-00958-01B (Complaint of Jonathan McNabb) -
Respondent’s neglect and incompetent representation in a
criminal matter resulted in a public reprimand in 1997.
Respondent is currently on an indefinite suspension
for failure to comply with a trust account subpoena, as
outlined in the consent judgment. Supreme Court Case No.
91,803, The Florida Bar File No. 98-00123-01B.
li. 9.22(c) - Pattern of misconduct; and
iii. 9.22(d) - Multiple offenses.
C. Mitigating Factors:
i. 9.32(b) - Absence of dishonest or selfish motive;
li. 9.32(c) - Personal or emotional problems - During
1996, Respondent was coping with the terminal
illness and subsequent of one of her sisters, for
88a
Appendix E
whom she was a caregiver. Further, Respondent was
coping with the commission of a violent crime
against her other sister. °
These events took Respondent out of her law office
for a period of time and diverted her attention away from
her law practice.
ili. 9.32(f) - Inexperience in the practice of law -
Respondent was admitted to the practice of law on
January 29, 1993 and most of the events occurred
between late 1995 and 1997;
iv. 9.32(e) - Full and free disclosure to disciplinary
board or cooperative attitude towards proceedings
Respondent has cooperated with The Florida Bar
in these proceedings and has been candid with
The Florida Bar regarding her role and
responsibility for these matters. Such cooperation
and candor is a major consideration by the Florida
Bar in entering into this consent judgment.
Respondent contends that where she was
nonresponsive, she had nothing to add to the
proceedings;
v. 9.32(h) - Physical or mental disability -
Respondent suffers from Lupus which was
diagnosed in 1997. During the time periods
involved in these matters, Respondent was
suffering from the symptoms of Lupus, which
were undiagnosed. Respondent is currently
being treated for Lupus.
89a
Appendix E
vi. 9.32(1) - Remorse - Respondent’s intent
was to help these clients and she is remorseful
that her actions or inactions resulted in harm to
the clients and the public. Respondent recognizes
that her major weakness stems from lack of office
management skills and that she needs to associate
herself with others who are better equipped at
office management matters.
T RIN
WHICH COSTS SHOULD BE TAXED
I find the following costs were reasonably incurred by
The Florida Bar:
TFB File Nos. 97-00727-01B, 97-007654-01B, and
97-00617-01B
Administrative Costs pursuant $
Rule 3-7.6(0)(1), Rules of Discipline 750.00
Court Reporter Fees and Transcripts 305.50
Bar Counsel Travel Expenses and 242.57
Witness Travel Expenses 25.33
Subtotal $1,323.40
TFB File Nos. 97-00190-01B and 97-00505-01B
Administrative Costs pursuant Rule $
3-7.6(0(1), Rules of Discipline 750.00
Court Reporter Fees and Transcripts 426.00
Grievance Committee Investigative
Expenses 175.96
Bar Counsel Travel Expenses and 133.25
Auditor Expenses (Travel and Audit) 446.58
90a
Appendix E
Witness Travel Expenses 73.30
and Copies 24.00
Subtotal $2,029.09
TEB File No. 97-01312-01B
Court Reporter Fees and Transcripts $ 265.00
Bar Counsel Travel Expenses and 118.41
Witness Travel Expenses 387.25
Subtotal $ 770.66
TEB File No. 98-00713-01B
No costs associated with file.
TOTAL $4,123.15
It is recommended that such costs be charged to Respondent
and that interest at the statutory rate shall accrue and be
payable beginning 30 days after the judgment in this case
becomes final unless a waiver is granted by the Board of
Governors of The Florida Bar.
Dated this 27 day of Apnil, 1998.
“s/ cf
William L. Wright, Circuit Judge Referee
Jackson County Courthouse
Post Office Box 852
Marianna, Florida 32447-0852
(850)482-9078
src i a a ana reat
9la
Appendix E
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of the foregoing
Report of Referee has been mailed by regular U.S. Mail to
SID J. WHITE, Clerk of the Supreme Court of Florida,
Supreme Court Building, Tallahassee, Florida 32301, and
that copies were mailed by regular U.S. Mail to JOHN
ANTHONY BOGGS, Staff Counsel, The Florida Bar, 650
Apalachee Parkway, Tallahassee, Florida 32399-2300;
LOIS B. LEPP, Bar Counsel, The Florida Bar, 650
Apalachee Parkway, Tallahassee, Florida 32399-2300; and
SADIE MOORE STEWART, Respondent, at her record
Bar address of 986 Caledonia Road, Cleveland Heights,
Ohio 44112, on this 27 day of Apmil, 1998.
“*¢/ ”
William L. Wright, Referee
92a
APPENDIX F——PLAINTIFFS-APPELLANT’S
FOLA/PRIVACY ACT REQUEST TO THE AGENCY
DATED MAY 22, 1995
From: See Enclosure (1) Schedule of Depositions
To: Freedom of Information Act (FOIA) Officer,
Human Resources Office, 368 South Ave.,
Pensacola, FL 32508-5214
Subj: FOLA/PRIVACY ACT REQUEST
1. This is a request under the FOIA, 5 U.S.C. Section 552
and the Privacy Act, 5 U.S.C. Section 552a. The United
States Attorney for the Northern District of Florida has
notified us that he will take depositions in the case of
Abraham Johnson, et al v. John H. Dalton, civil Action
Number 94-30165-RV. Enclosure (1) lists the time and
date of these to be deposed. The US Attorney’s Office has
requested that all records and information related to this
action be brought with us at the time we are to be deposed.
2. We understand that the standard time for answering
FOIA requests is 10 days; however, the below requested
information is needed so that we can fully comply with the
US Attomey’s proposed depositions of us. Thus, we
request that you provide this information expeditiously to
the addresses listed in item 4, and all documents,
memoranda, notes, reports, diaries, things and computer
disks in your possess or under your control related in any
way to the parties to this civil action including, but not
limited to, the following:
a. Any personnel files, wherever maintained;
b. Any departmental files, wherever maintained;
c. Any and all EEO complaints, wherever maintained;
93a
Appendix F
d. Any and all MSPB complaints, wherever
maintained;
e. Any and all umion grievances, wherever
maintained;
f. Any and all offers of employment; applications for
employment; terms, conditions, and benefits of employment;
employment contracts, if any, and/or amendments thereto;
resumes or Forms SF-171; and insurance related documents.
g. Any and all job assignments, job requirements, job
title or job status, benefits statements, rates of
pay, and evaluations of job performance;
h. Any and all offers of employment; applications for
employment; terms, conditions, and benefits of employment;
employment contracts, if any, and/or amendments thereto;
resumes or Forms SF-171; and insurance related documents;
i. Any and all documents wherever maintained,
including but not limited to, notes, papers, transcripts, files,
diaries, notebooks, computer disks, video tapes, recording
an/or writings which relate to, pertain to, refer to, or support
any or all of the allegations in the complaint in this matter.
3. We request a waiver of all fees for this request. We are
the Plaintiffs in civil Action #94-30165-RV and we are
seeking information to assist us in fully answering the
United States Attorney when he deposes us about the above
referenced civil action.
4. If you require any assistance in expediting this request
or have any questions, the point of contact for this request is
Darlene D. Sharpe, she can be reached at 452-3692. Thank
you for your consideration of this request.
94a
Appendix F
The requesters and addresses are as follows:
Thelma Roby
200 E. Burgess Rd.,
Apt. #48B
Pensacola, FL 32503
Eugene Lovelace
3410 W. Hernandez St
Pensacola, FL 32503
Frances Brown
P. QO. Box 125
Pensacola, FL 32591
-0125
James R. Welcome
502 N. Green St.
Pensacola, FL 32505
Fred Bass
75 South Madison
Pensacola, FL 32534
Robert Brooks
712 W. Gregory St.
Pensacola, FL 32501
Mary Gibson
309 Gamarra Rd
Pensacola, FL 32503
Jerald Lacey
4552 Independence Ave.
Pensacola, FL 32505
Darlene D. Sharpe
8800 Fowler Ave., Apt.
#B203
Pensacola, FL 32534
Ametha Welcome
502 N. Green St.
Pensacola, FL 32505
April Posey
6672 Bellview Pines Place
Pensacola, FL 32526
Vera Evans
940 N. “C” St
Pensacola, FL 32501
Sylvia Bell
910 Winston Ave
Pensacola, FL 32507
Willie Carson
To be provided
Tommie Ware
1301 E. Leonard St
Pensacola, FL 32501
Calvin Robinson
318 E. Garfield Dr.
Pensacola, FL 32505
Willie Remer Young
1006 Texar Dr
Pensacola, FL 32503-
3643
Abraham Johnson
3300 Rollingbrook Rd.,
Apt. 1017
Daytown, TX 77521
Marilyn Alexander
6444 Memphis Ave
Pensacola, FL 32506
Robert Broughton
8317 Ranger Dr
Pensacola, FL 32534
Gilda James
4001 Shorewood Dr
Pensacola, FL 32507
95a
Appendix F
Van G. Nelson
2490 Bellview Pines Way
Pensacola, FL 32526
Earnest Standberry (Retired)
8719 Orange Ave
Pensacola, FL 32534
Robert Taylor
6492 Memphis Ave.
Pensacola, FL 32506
Fred Hicks
744 Boxwood Dr
Pensacola, FL 32503
J.W. Bridges
2208 Inverness Dr
Pensacola, FL 32503
Pat Frelix
C/O Thelma Roby
200 E. Burgess Rd.,
Apt 48B
Pensacola, FL 32503
Eugene Ward
2301 St. Andrews Dr
Cantonment, FL 32533
Lorenzo Chatman
395 N. “T” St
Pensacola, FL 32505
Jennifer Jones-Butler
4519 Chantilly Way
Pensacola, FL 32505
Velma Jones
1956 Gary Circle
Pensacola, FL 32505
Debrah Burgess
630 W. Lee St
Pensacola, FL 32501
Lamar Jackson
P. O. Box 1605]
Pensacola, FL 32507
Larry Goggans
2031 Brenda Ave
Pensacola, FL 32506
Roscoe Kidd
8295 Ranger Dr
Pensacola, FL 32534
James Stanten
6410 Birkhead Dr
Pensacola, FL 32506
96a
Appendix F
Lillian Smith
1251 Mahogany Mills Apt
Pensacola, FL 32507
Robert Cannon
3161 Torres Ave
Pensacola, FL 32503
Victor Barnes
1999 Detroit Blvd
Pensacola, FL 32534
Margaret McQueen
P. O. Box 474
Cantonment, FL 32533
Leslie Johnson
903 W. Hatton St
Pensacola, FL 32501
Kathy Floyd
611 Washington St
Cantonment, FL 32533
Wilbur Henderson
C/O Thelma Roby
200 E. Burgess Rd, Apt 48B
Pensacola, FL 32503
Joseph Wright
125 W. Highland Dr
Pensacola, FL 32503
James Thompson
5.N. 9" Ave
Pensacola, FL 32503
Margaret Miles
4495 Landes Dr
Pensacola, FL 32505
97a
Appendix F
James Royster (Retired)
1105 W. Leonard St
Pensacola, FL 32501
98a
APPENDIX G——FOIA OFFICER’S RESPONSE TO
PLAINTIFFS-APPELLANT’S REQUEST SIGNED
DATED JUNE 2, 1995"
5720
Code 09A1
Jun 02 1995
Ms. Darlene D. Sharpe
8800 Fowler Avenue
Apartment B203
Pensacola, FL 32534
Dear Ms. Sharpe:
This is in response to the Freedom of Information/Privacy
Act request which you hand delivered to the Human
Resources Office Pensacola on May 22, 1995. You
requested documents and files pertaining to 47 different
individuals. You further indicated that the documents were
required to respond to a Notice of Video Tape Deposition
issued by the U. S. Attomey in the case of Abraham
Johnson Jr., et al v. John H. Dalton. That Notice required
the deponent to bring certain documents “in his or her
possession or under his or her control.” Since you have
indicated the requested records are required to respond to
the U.S. Attorney, be advised that the Human Resources
Office has turned the files over to the cognizant Assistant
United States Attorney. To facilitate your expeditious
access to these records, you should contact your attorney so
that he can arrange for the necessary discovery notices to be
issued. Point of contact for the Navy in the U.S. Attorney’s
office is Mr. Anthony Crouse and he may be reached at
434-3251.
Sincerely.
“e/ ”
M. D. MILLAS
Deputy Director, Acting
99a
APPENDIX H——THE SUPREME COURT OF
FLORIDA DISCIPLINES SADIE MOORE
STEWART RELEASED JULY 2, 1998
Discipline Release Page | of 9
PUBLIC & MEDIA INFORMATION
Public and Media Information
Discipline Releases
Discipline Release: July 2, 1998
FOR IMMEDIATE RELEASE
July 2, 1998
CONTACT: Toyca D. Williams
The Florida Bar
TELEPHONE: 850/561-5666
FROM THE FLORIDA BAR
SUPREME COURT DISCIPLINES 34
ATTORNEYS
TALLAHASSEE, July 2 — The Florida Supreme Court in
recent court orders suspended 18 attorneys, disbarred three,
reprimanded five, accepted the resignation of seven
attorneys and placed one on probation. The Supreme Court
of Florida issued these orders following action by The
Florida Bar.
The following lawyers are disciplined:
Raymond A. Argyros, 511 Paula Dr., South, Dunedin,
automatically suspended from practicing law in
100a
Appendix H
Florida,effective immediately following a May | court
order. Argyros, found guilty of perjury, was sentenced to
five years probation.
Andrew Baron, 1803 E. Kaley St., Orlando,
reprimanded for professional misconduct following a May
14 court order. Baron ran an advertisement in the telephone
book that failed to meet Bar standards. The Standing
Committee on Advertising had advised Baron earlier that
the same advertisement did not meet specific guidelines. He
also failed to respond to Bar investigative inquiries. He is
placed on probation for one year.
Discipline Release Page 7 of 9
Kenneth Robert Schroff, 346 Biake Ave., Orange Park,
resigned in lieu of disciplinary proceedings, with leave to
seek readmission after years, effective 30 days following a
May 7 court order. In several instances, Schroff allegedly
failed to competently represent his clients and allegedly
failed to act with diligence and promptness. He agreed to
cooperate with any Client Security Fund claims related to
his clients.
Lloyd Raymond Schwed, 19055 S.E. Coral Reef Lane,
Jupiter, suspended from practicing law in Florida for two
years, retroactive to Sept. 12, 1996, following a March 19
court order. Schwed pleaded guilty to one count of
obstructing proceedings before the Securities Exchange
Commission. He was sentenced to five months in prison
and five months home confinement. Within a couple days
10la
Appendix H
after his arrest, Schwed filed a voluntary petition with The
Florida Bar to suspend his license.
Sadie Moore Stewart, 986 Caledonia Ave., Cleveland
Heights, Ohio, suspended from practicing law in Florida
for 91 days, effective immediately following a May 14 court
order. In several unrelated cases, Stewart violated rules
regulating the Bar. She practiced law while suspended and
failed to diligently represent her clients, explain matters
fully to clients, meet contingency fee guidelines comply
with many other Bar rules.
Ernest J. Szarwark, 503 Lynnwood Blvd., Nashville,
Tenn., automatically suspended from practicing law in
Florida, effective immediately following a May 18 court
order. Szarwark was found guilty of four courts of mail
fraud, a felony. He was sentenced to 24 months in prison,
with two years of supervised release.
Claire L. Tacher, 15041 S.W. 146" St., Miami, resigned
in lieu of disciplinary proceedings, with leave to seek
readmission after five years, effective immediately following
a May 7 court order. Tacher allegedly violated Bar rules
regulating trust accounts. She also failed to communicate
with her client, represent her client diligently, file an
appellate brief and respond to Bar
In The
Supreme Court of the United States
October Term, 1998
THELMA ROBY
DARLENE SHARPE
JAMES WELCOME,
Petitioners,
vs.
JOHN H. DALTON,
Respondent.
PROOF OF SERVICE
We, Thelma L. Roby, Darlene D. Sharpe, and James R. Welcome,
do swear or declare that on this date, enclosed PETITION FOR A
WRIT OF CERTIORARI on each of the above proceeding or that
party’s counsel, and on every other person required to be served, by
depositing an envelope containing the above documents in the
United States mail properly addressed to each of them with first-
class postage prepaid.
The names and addresses of those served are as follows:
The U.S. Attorney, P. Michael Patterson
114 E. Gregory Street
Pensacola, FL 32501-4972
We declare under penalty of perjury tht the foregoing is true
and correct.
Executed on 4 Mende , 1999.
DMaQec rival, brew K LLMeang
Signature
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.