Petition for Writ of Certiorari — Jaggers v. West Virginia Human Rights Commission

Court, U.S.

FILED

981582 DEC 16 j999

OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNTIED STATES

OCTOBER TERM, 1998

JAMES JAGGERS

Petioner,

Vv.

WEST VIRGINIA HUMAN RIGHTS COMMISSION and

RAVENSWOOD ALUMINUM CORPORATION

- Respondents.

Petition for Writ of Certiorari to the

West Virginia Supreme Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Brent E. Beveridge, Esq.

Beveridge Law Offices

208 1/2 Adams Street

P.O. Box 1469

Fairmont, WV 26555-1469

Aires

pv ROBE She esta et Ki aR

i

QUESTIONS PRESENTED FOR REVIEW

a Whether petitioner was denied due process of law

afforded by the Fourteenth Amendment of the United States

Constitution by the West Virginia Human Rights Commission

improperly applying the burden of persuasion.

2. Whether the petitioner was denied due process of

law afforded by the Fourteenth Amendment of the United States

Constitution by the West Virginia Attorney General's office

appearing in the proceedings as an advocate and an adversary.

TABLE OF CONTENTS

PAGE

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

FAILS OOF AR EPIEA GS oe ies ie SS ee es il

OPINION OF THE COURT BELOW)... ......----, 3

JURISDICTIONAL STATEMENT . 0. cn ee ens 3

CONSTITUTIONAL PROVISIONS AND STATUTES . . iii.

STATEMENT OF 3916 SADE 3. ee a ei ss tee css 3

REASON FOR GRANTING THE WRIT

CONGLUGION 3x5 SROs or Bere eee 1]

iii

TABLE OF AUTHORITIES

P PAGE

CASES

Texas Department of ¢ ommunity Affairs vo Burdine.

430 ULS. 248, 101 S. Ct. 1089, 68 L. Ed.2d 207 (1981) 7

Conaway vy. Eastern Associated Coal Company

178 W. Va. 164, 358 S.E.2d 423 eM a i 7

Kanawha Valley Regional Transportation A uthority vo West"

Virginia Human Rights Commission

151 W. Va. 675, 383 S.E.2d 857, 860 (1989). ..... S

Nation v. Winn-Dixie Stores, Inc.

gay ©, ae. 2473 COC, Ga 1983)... 2b MS

Farber v. Massilon Board of Education

wer wee toes Coen Gr, 1900), ioe

Miles v. M.N.C. Corp.

fae ruee ee ee ee eS 9

Love v. Alamance County Board of Education

194 Vegeta, 190) (4h Cir. 1985)... ww 10)

CONSTITUTIONAL PROVISIONS AND STATUTES

. PAGE

West Virginia Code §5-11-10 2. .......... 5

West Virginia Code §5-I 1-1 et seq......... 7

ZR USA EET eh ie een iS

IN THE

SUPREME COURT OF THE UNTIED STATES

OCTOBER TERM, 199%

JAMES JAGGERS

Petitioner,

Vv.

WEST VIRGINIA HUMAN RIGHTS COMMISSION and

RAVENSWOOD ALUMINUM CORPORATION

Respondents.

Petition for Writ of Certiorari to the

West Virginia Supreme Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Brent E. Beveridge, Esq

Beveridge Law Offices

208 1/2 Adams Street

P.O. Box 1469

Fairmont, WV 26535-1469

(304) 363-1907

Attorney for Petitione:

ty

IN THE

SUPREME COURT OF THE UNTIED STATES

OCTOBER TERM, 1998

JAMES JAGGER

Petitioner,

Vv.

WEST VIRGINIA HUMAN RIGHTS COMMISSION and

RAVENSWOOD ALUMINUM CORPORATION

Respondents.

a a |

Petition. for Writ of Certiorart to the

West Virginia Supreme Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Brent E. Beveridge. Esq.

Beveridge Law Offices

208 1/2 Adams Street

P.O. Box 1469

Fairmont, WV 26555-1469

(304) 363-1907

Attorney for Petitioner |

ne neem CeT ae I

Petitioner James O, Jageers prays that a Writ of

Certiorari issue the judgment order of the West Virginia Supreme

Court of Appeals, entered on September 17, 1998.

OPINION OF THE COURT BELOW

The judgment order of the West Virginia Supreme Court of

Appeals is found in Appendix A to this Petition.

JURISDICTIONAL STATEMENT

The September 17, 1998 order of the West Virginia

Supreme Court of Appeals (Appendix A) refused a Petition for

Appeal of an Order of the Marion County. West Virginia Court

(Appendix B) entered on May 28, 1998. The jurisdiction of this

Court is invoked under 28 U.S.C. $1257(3).

CONSTITUTIONAL PROVISIONS AND STATUTES

Section | of the Fourteenth Amendment to the United States

Constitution provides in pertinent part:

- hor shall any State deprive any person of life. liberty.

or property, without due process of law.

STATEMENT OF THE CASE

The questions presented in the instant pettion are legal in

nature. The following statement provides a concise overview of the

factual and procedural background upon which the present issues

are predicated.

On December 4. 1992, Appellant James O. Jagvers tiled an

“Employment Complaint Background Information Form” with the

West Virginia) Human Rights Commission. The complaint

4

information form completed by Mr. Jaggers in his own handwriting

formed the basis for a memorandum of complaint filed by the

commission on December 11, 1992.

An amended complaint drafted by—Human Rights

Commission personnel was filed with the Commission on January

8, 1993, alleging unlawful discrimination arising out of Mr. Jaggers—

termination from Ravenswood Aluminum Corporation on June 15,

1992.

The amended complaint was dismissed without prejudice by

an order entered on October 25, 1996, pursuant to respondents

summary judgment which found as a matter of law that the

respondent had terminated all of its hourly employees.

The Commission filed a second amended complaint alleging

a discriminatory denial of a promotion. The case procceded to

hearing before the Honorable Mike Kelly, Administrative Liaw

Judge, on December 23, 1996.

Complaint/Petitioner James O. Jaggers was represented by

the Attorney General’s Civil Rights Division and the Respondent

Ravenswood Aluminum Corporation was represented by private

counsel. |

A Final Decision dated October 50, 1997, was filed by the

Administrative Law Judge finding in favor of the respondent, and

by an order entered on October 30, 1997, the complaint filed by

James O. Jaggers against Ravenswood Aluminum Corporation was

dismissed. (Attached as Appendix B)

A timely appeal of the Administrative Law Judge was filed

with the West Virginia Human Rights Commission on February 10,

1998.

A final order of the West Virginia Human Rights

Commission was entered on May 28. 1998 upholding without

modification or amendment the decision of the Administrative Law

Judge and thereby dismissing the Petitioner’s Complaint. (Attached

as Appendix C)

The commission dismissed this action based upon the

following rulings of the Administrative Law Judge:

iS This action is barred by the 180 day limitations

period for filing a complaint which was in effect at the time this

action was filed on December 11, 1992.

2. The complaint failed to carry his burden of

persuasion by a preponderance of the evidence that age was a

factor in the respondent's failure to promote the complainant.

A Petition for Appeal was filed on July 14, 1998 with the

West Virginia Supreme Court of Appeals. The Supreme Court of

Appeals refused the Petition for Appeal by an order entered on

September 17, 1998 without an opinion.

The stipulated facts are set forth in the Final Order of the

Human Rights Commission attached as Appendix B.

Additionally, the facts establish that James O. Jaggers was

a fifty-seven year old male when he filed a Memorandum of

Complaint pro se with the Human rights Commission on December

11, 1992. Mr. Jaggers’ initial complaint alleged that he was

terminated from Ravenswood Aluminum Corp. on June 15. 1992

because of his age in violation of the West Virginia Human Rights

Act, West Virginia Code § 5-11-10.

The initial complaint was dismissed on the employer's

summary judgment motion by an order entered on October 25.

1996. The basis for the summary judgment motion was that Mr,

Jaggers was a replacement worker during a labor dispute and all

replacement workers were terminated on June 29, 1992 when the

union workers returned. the summary judgment motion was

granted without prejudice and a second amended complaint was

filed by the Commission alleging that Mr. Jaggers had been denied

a promotion prior to his June 29. 1992 termination.

There was a factual dispute on the date that the- 180 day

limitation period began to run the denial of the promotion. Jaggers

contended that he was not notified that another employce. Rover

Linkous, was promoted to the foreman’s position until mid-June

1992 and that his December 11. 1992 complaint was timely,

0

Ravenswood contended that the selection of Roger Linkous was

announced on May 22, 1992 and hence the December 11, 1992

complaint was some 23 days too late.

The Administrative Law Judge made a legal determination

that the 180 day filing limitation in effect at the time of the filing

af the complaint on December 11, 1992 applied. A factual

determination was made that the time period began to run on Mary

22, 1992 and ended on November 18, 1992.

The complainant contended and offered credible evidence

that he did not receive notice of the denial of the promotion until

mid-June 1992. The respondent contended that the complainant

was notified that another employee had been selected for the

promotion to the position of foreman at a meeting held on May 22.

1992.

‘The Administrative Law Judge concluded as a matter of law

that the complainant was notified of the adverse personnel action

on May 22, 1992. this conclusion was reached on a factual issuc

which the Administrative Law Judge considered a"a very close

question”

The Administrative Law Judge considered evidence from

both partics concerning the basis for the decision of selecting a 32

vear old employee for the position of foreman over the $7 year old

complainant.

The evidence can be fairly summarized as showing that

Craig Moore, a supervisor in the Green Carbon Department of

Ravenswood Aluminum Corporation, sclected Roger Linkous. an

hourly employee for a foreman’s position The only two persons in

the department considered for the position were complainant James

QO. Jaggers, age 57, and Linkous, age 32. Mr. Moore considered

Linkous and Jaggers to be the top two employees that he had

supervised in the plant. '

Mr. Moore had previously selected Mr. Jaggers as an up-

erade or fill-in foreman and indicated that the position of up-grade

foreman was usually filled by the best available employee. The

evidence further indicated that Jaggers had performed the dutics as

un upgrade foreman successfully and had gained expericnce as a

foreman prior to Linkous’ promotion to the position.

Linkous was selected over Jaggers on the basis of Moore's

subjective evaluations of the two employees.

REASON FOR GRANTING THE WRIT

Supreme Court Rule 19 (c) sets forth, as a reason flor

granting certiorari, that a state court has decided an important

federal question in a was that conflicts with applicable decisions of

this Court and the Constitution of the United States.

A. BURDEN OF PERSUASION

The process by which the quantity and quality of proof in

an employment discrimination case is analyzed has resulted in

boundless judicial pronouncements on the burdens of proof and

persuasion.

Petitioner has been denied due process of law as secured by

Section | of the Fourteenth Amendment of the United States

Constitution by the Administrative Law Judge’s failure to properly

analyze and apply the burden of persuasion pursuant to Texas

Department of Community Affairs v. Burdine. 450 U.S. 248, 101

S. Ct. 1089, 67L.Ed.2d 207 (1981)

Initially, Courts must assess whether the employee has

established a prima facie case of discriminatory employment action

A prima facie case creates a presumption of discrimination by

satisfying the three parts test found in Conawav_v. Eastern

Associated Coal Company 178 W. Va. 164, 358 S.E.2d 423(1986):

“In order to make a prima facie case of employment discrimination

under the West Virginia Human Rights Act, W. Va. Code §5-11-|

et seq. (1979). the plaintiff must offer proof of the following:

8

(1) ‘That the plaintiff is a member of a protected class:

(2) That the employer made an adverse decision concerning the

plaintiff,

(3) But for the plaintiffs protected status, the adverse decision

would not have been made.

Conaway, 358 S.E.2d at 429; see also Kanawha Valley Regional

Transportation Authority v. West Virginia Lluman Rights

Commission, 181 W. Va. 675, 383 S.E.2d 857,860 (1989)."

Once the prima facie case ,is established by the employee.

the burden of production shifts to the employer to offer a rebuttal

to the presumption by producing evidence that the employee was

rejected, or someone was preferred for a_ legitimate

nondiscriminatory reason. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d 207

(1981). The employer's explanation “must be clearly and

reasonably specific", id at 258, and “must be legally sufficient to

justify a judgment for the defendant”. id at 254.

The Administrative Law Judge’s decision does not specily

as to where in the burden of proof analysis the complainant's proof

failed. It is reasonable to conclude that the complainant made a

prima facie case since the adverse decision did not occur by a

summary judgment or by a direct verdict. Apparently. the

complainant failed to satisfy the ultimate burden of persuasion.

lhe Administrative Law Judge was clearly wrong in reaching this

conclusion because the alleged legitimate nondiscriminatory reasons

offered by the respondent lacked the clear and reasonably specific

explanation as required by Burdine, id at 258.

The Administrative Law Judge's decision extensively

considered the employer s subjective opinion of the relative abilities

of Mr. Jaggers and Mr. Linkous to serve as foreman. The opinions

‘)

were first based upon personnel evaluations. the analysis of the

evaluations presented very little distinction between their relative

abilities. Ultimately the employer’s preference of Mr. Linkous

hinged on one supervisor’s subjective assessment that Linkous

“handled himself better in a pressure situation’, and Mr. Jageers

‘was a little bit’ insecure it his decision making ability.”

Mr. Moore, the supervisor upon whose testimony the

selection of Linkous was justified, alluded to one specific instance

where Jaggers “kind of froze". His assessment that Linkous

handled himself better in a pressure situation was a’ weneral

conclusion unsupported by specific events. Mr. Moore’s conclusion

that Jaggers “kind of froze” was also refuted by comments in his

evaluations that Mr. Jaggers wasn’t afraid to make decisions.

The distinguishing subjective assessments made by Mr.

Moore must be weighed against the objective evidence that Mr.

Jaggers had competently served as a fill-in or upgrade foreman if

the burden of persuasion s is to be properly analzyed under the

“clear and reasonably specific" standard set forth in Burdine. id.

A promotion decision based upon an assessment that Linkous

“handled himself better" is insufficient according to Nation v

Winn-Dixie Stores. Inc. 570 F.Supp. 1473 (D.C. Ga. 1983): Farber

v. Massilon Board of Education, 917 F.2d 139] (6th Cir. 1990):

and Miles v. M.N.C. Corp., 750 F.2d $67 (11th Cir. 1985).

In Nation. the District Court held that an employer °s

assessment that the selected employee had a good attitude. took

pride in his work, etc. does not meet Burdine’s requirement that

Defendant articulate a ‘clear and reasonably — specific’

nondiscriminatory reason for its personnel decision. Nation, id at

1475. In Farber, the Sixth Circuit found that an employer's

characterization that the promoted employee had a certain

"chemistry" for the position failed to satisfy the specific non-

discriminatory reason. Farber, id at 1399. Miles involved the Ivpe

of subjective evaluations used by the respondent in this instance.

the evaluations based upon vague non-specific criteria were held to

10

he insufficient to uphold a claim of legitimate non-discriminatory

reason in recalling, one ciployee as opposed to another. Miles id

aut 871.

When the employer’s proffered reasons that Mr. Linkous

handled himself better in pressure situations and Mr. Jagyers kind

of froze when confronted with a difficult situation are carefully

scrutinized, the Administrative Law Judge had no choice but to

include that the proffered reasons lacked clarity and specifity. If

the employer chooses to base the decision upon subjective criteria,

the subjective evidence must by strictly scrutinized to determine

whether it is a pretext for discrimination. Love v. Alamance

County Board of Education, 757 F.2d 1504, 1507 (4th Cir.1985)

Although subjective assessments are to be strictly scrutinized, they

may be afforded weight to support a nondiscriminatory reason if

they are supported by corroborating objective evidence. Lone, id.

In this instance, there ts no corroborating objective evidence to

support the employer's position. Jaggers and Linkous were hired

at the same time. their written personnel evaluations were

essentially equal.

One objective factor which clearly preponderates in favor of

the complainant is the fact that Jaggers was selected and worked as

an upgrade foreman. Logic would dictate that the best available

hourly employee was chosen for this position. He remained in the

position and the employer offered no evidence to contradict its

prior determination that Jaggers was the best employee available for

the foreman’s position.

B. DENIAL OF DUE PROCESS

BY THE ADMINISTRATIVE TRIBUNAL

Petitioner's case was decided by the West Virginia Human

Rights Commission. Jaggers was represented before the Human

Riehts Commission by an Assistant Attorney General of the State

af West Virginia.

1]

Pursuant to the statutory scheme of the West Virginia

Human Rights Act, West Virginia Code §5-I1-1 et seq.. the

Human Rights Commission must be designated as a respondent in

the appeal to the West Virginia Supreme Court of Appeals. the

West Virginia Attorney General’s office which had represented the

Petitioner before the Commission becomes his adversary in the

proceeding before the Supreme Court as counsel for the tuman

Rights Commission,

In this instance, the Attorney General filed a written

response in opposition to the petition for an appeal. Fundamental

due process is violated by the West Virginia statutory scheme by

which a citizen's adversary before the appellate tribunal. Withdraw

v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43L.Ed. 712 (19)

CONCLUSION

For the foregoing reasons the petition for writ of certiorari

should be granted.

Respectfully submitted,

Brent E. Beveridge, Esq

208 1/2 Adams Street

Fairmont, WV 26555-1469

Counsel for Petitioner