# Petition for Writ of Certiorari — Jaggers v. West Virginia Human Rights Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1527%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1116 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1527%3A1. Public record. Not legal advice.