Petition for Writ of Certiorari — Nero v. Donley

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98-155 7°

IN THE

NO.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

DONALD NERO,

PETITIONER,

VS .

DONALD B. RICE, SECRETARY,

DEPARTMENT OF THE AIR FORCE;

UNITED STATES OF AMERICA,

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LEWIS BARBER, JR.

BARBER & MARSHALL, P.A.

1528 N.E. 23RD, SUITE 410

OKLAHOMA CITY, OK 73111

(405) 424-5201

COUNSEL OF RECORD

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

DONALD NERO,

PETITIONER,

vs.

DONALD B. RICE, SECRETARY,

DEPARTMENT OF THE AIR FORCE;

UNITED STATES OF AMERICA,

RESPONDENTS.

QUESTIONS PRESENTED

i. Whether or not the appellate

court misstated appellant’s contentions

On appeal, and whether or not the

appellate court committed reversible

error by relying upon "findings" that

were clearly contra to those of the trial

court.

TABLE OF CONTENTS

STATEMENT OF THE CASE.....-ccccees

ARGUMENT AND AUTHORITIES..........

PROPOSITION I

THE APPELLATE COURT MISSTATED

NERO’S CONTENTIONS ON APPEAL

AND RELIED ON FINDINGS WHICH

CONTRA TO THE TRIAL COURT....

PROPOSITION II

IN A CASE ALLEGING A

DISCRIMINATORY EMPLOYMENT

DECISION THE EVIDENCE

RELEVANT TO SUCH A FINDING IS

EVIDENCE THAT ESTABLISHES A

PRIMA FACIE CASE, EVIDENCE

THAT ESTABLISHES THE BUSINESS

REASON FOR THE CHALLENGED

ACTION AND THE EVIDENCE

WHICH ESTABLISHES THAT THE

BUSINESS REASON IS PRETEXT...

PROPOSITION III

UNDER RULE 30 OF THE FEDERAL

RULES OF APPELLATE PROCEDURE

“THE ENTIRE RECORD IS ALWAYS

AVAILABLE TO THE COURT FOR

REFERENCE" AND IT WAS A GROSS

ABUSE OF DISCRETION FOR THE |

APPELLATE COURT TO DENY NERO

THE OPPORTUNITY TO SUPPLEMENT

PP eee Te Tee ee eee eee ee 18

CONCLUSION AND PRAYER FOR RELIEF... 22

APPENDIX "A" JUDGMENT DATED 12-12-91

UNITED STATES DISTRICT

COURT FOR THE WESTERN

DISTRICT OF OKLAHOMA

APPENDIX "B" ORDER ENTERED 12-12-91

UNITED STATES DISTRICT

COURT FOR THE WESTERN

DISTRICT OF OKLAHOMA

APPENDIX "Cc" ORDER AND JUDGMENT

OF THE UNITED STATES

COURT OF APPEALS FOR

THE TENTH CIRCUIT

APPENDIX "D" ORDER ENTERED MARCH 30,

1993 IN THE UNITED STATES

COURT OF APPEALS FOR THE

TENTH CIRCUIT DENYING

APPELLANT’S PETITION |

FOR REHEARING |

APPENDIX “E" FEDERAL RULE OF APPELLATE

PROCEDURE 10 AND 10TH

CIR. R. 10.1

iii

APPENDIX "F" FEDERAL RULE OF APPELLATE

PROCEDURE 30 AND 10TH

CIR. R. 30.1

TABLE OF AUTHORITIES

CASES:

Doyn Aircraft, Inc. v. Wylie,

443 F.2d 579, 584

iO Cie ARTE aa cor wae ex

Garnes v. Gulf & Western Mfg. Co.,

789 F.2d 637

(Sth Cir. 1986) .ccscccccseves

McDonnell Douglas v. Green,

4224 UiBe 9245

a? i ae! } ke ae x eS eer ene ee

Rodriquez v. Anderson,

973 F.2d 550

‘ta ee) See ee eee

FEDERAL RULES OF APPELLATE

PROCEDURE:

wt fet: errr errr see ee eee ee ee

DUI: BO ii as soe a Re dice eae Oe EES OOS

STATUTES:

42 U.S.C. § 2000e et seq..........

26 U.S.C. §§ 2671-2680... cccccenes

28 United States Code § 1254......

PAGE(S)

20, 21

D>, id,

iv, a8

3, 4&6

OPINIONS BELOW

The United States District Court for

the Western District of Oklahoma granted

summary judgment in favor of the United

States on Nero’s Federal Tort Claims Act

allegations on June 6, 1991. That

decision is not a part of this petition.

After a bench trial on Nero’s claims of

discrimination, the district court

entered judgment in favor of Donald Rice

on December 12, 1991. (Appendix "A" and

"B"). Nero was permitted an extension of

time in which to file a notice of appeal

by the district court and thereafter

filed his notice of appeal on March 9,

1992 to the United States Court of

Appeals for the Tenth Circuit. On

February 3, 1993, the Appeals Court

affirmed the decision of the District

Court. (Appendix "C"). In so doing, the

Tenth Circuit Court of Appeals held that

Nero had not provided the court with a

transcript sufficient for a meaningful

review of his case. Nero timely filed a

petition for rehearing and moved the

Court of Appeals for leave to file a

Supplemental appendix. The petition for

rehearing and motion to supplement was

denied by order dated March 30, 1993.

(Appendix "D").

STATEMENT OF JURISDICTION

The dates of the judgments sought to

be reviewed are February 3, 1993 and

March 30, 1993. The court from which

relief is sought is the United States

Court of Appeals for the Tenth Circuit.

This Court has jurisdiction pursuant to

28 United States Code § 1254.

STATUTCRY PROVISIONS

The statutory regulations involved

in this case are Rule 10 and 30 of the

Federal Rules of Appellate Procedure and

Rules 10 and 30, and their respective

subdivisions, of the United States Court

of Appeals For the Tenth Circuit Rules of

Court (the "Local Rules" for the Tenth

Circuit). The pertinent texts of each

are set forth in Appendix "E" and "F"

respectively.

STATEMENT OF THE CASE

The basis for federal jurisdiction

in the court of first instance was a

violation of 42 U.S.C. § 2000e et seg and

28 U.S.C. §§ 2671-2680.

Petitioner, Don Nero, Appellant

below, Plaintiff at trial, (hereinafter

referred to as "Nero" or "Petitioner" )

was employed by Defendant-Appellee-

Respondent, Donald B. Rice, Secretary of

the Air Force ("Rice", "the Air Force" or

"Respondent") as a preservation packer.

Nero brought an action in the trial court

which alleged he was not promoted to a

Supervisor’s position based on his race.

Nero’s argument on appeal was that since

the trial court summarily rejected the

Air Force’s "business reason" for his

non promotion, he should prevail as a

matter of law.

In the appeal of his case, Nero

submitted an appendix which included the

relevant portions of the trial

transcript, namely: (1) evidence of

Nero’s prima facie case; (2) evidence of

the business reason for his-~ non-

promotion, and (3) evidence of pretext.

Also Nero included findings which the

trial judge made at the close of all the

evidence which conclusively established

that the trial judge completely rejected

the "legitimate business reason" offered

by the Air Force. McDonnell Douglas v.

Green, 411 U.S. 792, 93 S.Ct. 1817

(1973). Thereafter, the trial court

refused to allow the introduction of

further evidence by the Air Force in

support of that reason and refused to

allow the introduction of further

evidence by Nero to show that’ the

proffered reason was pretext.

Specifically, the Air Force stated

that the reason that Nero was not

promoted was that his name did not appear

on a computer generated “computer

profile" list. The Air Force reasoned,

in effect, that since the computer itself

was “color blind," Nero’s non-promotion

could not be the result of race

discrimination. To this contention and

during the cross-examination of the Air

Force’s witness by Nero, the trial court

responded in open court:

THE COURT: We have spent an

enormous amount of time on profiles.

I’ll be real candid with you, it hasn’t

made a lick of sense to my why we are

involved in profiles. Now, I’m concerned

about whether the man was discriminated

against because of race. You can’t blame

what happened on a computer. In other

words, if garbage goes in, garbage comes

out. Something went in and something

went out. We have spent five hours. I

don’t know what goes in. I don’t believe

you have presented any evidence to

indicate to me what goes into’ the

profile. You haven’t presented any

evidence as to why it shouldn’t. I am

not interested in profile. The fact that

he didn’t make a profile doesn’t concern

me the least bit. It is whether or not

he was discriminated against because he

is black or not. Now, let’s quit wasting

time on this stuff and get to the issues

in this lawsuit. I have tried to be very

patient but we have wasted an enormous

amount of time. Now, let’s go.

During the closing arguments’ the

trial court made further comments

concerning the "legitimate business

reason" proffered by the Air Force. Ina

diatribe with Mr. Drenan, the defense

attorney, during the Air Force’s closing

arguments the trial court stated:

THE COURT: You’ve got to give me some

reason, because I think I’ve got to be

somewhat impressed, the fact that he’s

been there longer, his ratings are as

far as I can tell equal to these others,

and he’s black. And he’s put on some

testimony and some evidence, including

his own, that one of this supervisors was

racially motivated in these matters and

he was not promoted.

Now, give me some reason why he was

not promoted that the evidence will

Support.

MR. DRENAN: Because having the

skills as a packer are not necessarily

the skills necessary to be a permanent

supervisor and the skill coding that goes

into the computer would have had some

skills that Mr. Nero had as a packer.

THE COURT: Tell me what those are.

I never do -- I couldn’t get that from--

I tried to make some sense out of this

testimony, but what kind of skills did

they have that would allow them to be

promoted and would not permit him to be

promoted? You can’t just say the

computer spewed out something, because

that doesn’t mean anything to me.

I do not believe we are victimized

by computers. Computers do what we tell

them to do. We might not always analyze

and understand it, but if you put garbage

in there, it comes out. That’s the basic

rule. So you can’t hide behind a

computer and say, Look, I don’t know why

the computer didn’t choose him, but he

didn’t get chosen, therefore, we’re not

discriminatory. That won’t work.

MR. DRENNEN: Yes, sir. That’s not

what we’re saying. What we’re saying is

that those people’s educational and prior

work experience, because that’s’ taken

into consideration, prior qualifications,

Just not the qualifications.

THE COURT: I didn’t hear any of

those from the witness stand.

After further discourse with the

defense counsel the trial court stated:

THE COURT: See, what you have got

me on is that you say there is a whole

bunch of factors that went into getting

him on or off profile in this computer

but nothing-- I listened in vain for a

witness to say what are all of the things

that would cause him to and what are the

relevant things and so forth. I never

did get anything.

After hearing all of the evidence- the

last remarks made by the trial judge to

the defense counsel were as follows:

THE COURT: I think his best shot is

that he was a black; he was an employee

with longevity; that his ratings were

good; that he served as a temporary

supervisor and his performance ratings

were good and that three -- two or three

white people, with ostensibly no better

qualifications and less longevity, were

promoted and he was not.

If you have anything to say. about

that, you might out to say that now,

because I think that’s his best shot.

I’m not worried about whether he was

loaned out or whether he was not. He

hasn’t tugged at me in any way in that

regard. Just as the computer hasn’t

helped you any as far as I am concerned.

If the computer is programmed so that it

would reach a result that someone

desired, that’s the result that it will

reach. It doesn’t give you an excuse to

elevate three white women with no better

qualifications than a black unless you

can explain some good reason why that

happened.

The trial court entered his order of

findings nearly six months after the

trial in this matter and held:

"The Court has considered the fact

that the plaintiff’s mame has_ never

appeared on any computer-generated list

of candidates. Although mindful that

information can be supplied in a manner

designed to manipulate and/or to achieve

a desired result, the Court concludes

that no evidence was presented that any

information supplied by supervisors about

the plaintiff was inaccurate or

misleading or that he was rated on his

Civilian Performance and Promotion

Appraisal in a manner designed to deny

him a promotion or to permit the

promotion of less qualified employees."

ARGUMENT AND AUTHORITIES

Petitioner seeks review of this case

because the Tenth Circuit has so far

departed from the accepted and usual

course of judicial proceedings as to call

for an exercise of this Court’s power of

supervision.

PROPOSITION I

THE APPELLATE COURT MISSTATED NERO’S

CONTENTIONS ON APPEAL AND RELIED ON

FINDINGS WHICH — TO THE TRIAL COURT

The appellate court set’ forth

various contentions that appellant

allegedly urged on appeal; and, in

affirming the decision of the trial

court, the appellate court set forth

certain findings which are specifically

controverted by the trial court or which

are unsupported by the evidence in the

trial court. (See excerpts from the

trial set forth in statement of the

case).

First, in its Order and Judgment,

the appellate court represented inter

alia, that:

(1) "...plaintiff argues that the

district court erred by requiring him to

prove intentional discrimination..."; (2)

that the district court refused to admit

evidence regarding defendant’s "computer

profile" system, the method by which the

lec

defendant made promotion

determinations... ; (3) that the

"pretrial order stated that the issue for

trial was whether plaintiff had "suffered

loss of promotion opportunities" as a

result of retaliatory loans..."; and (4)

that "the district court improperly

"intertwined" his failure to promote

issue with his retaliatory loan

S80ue...."

All of the above alleged contentions of

Petitioner were either misstatements or

taken out of legal and factual context by

the appellate court. Further, based on

the misstatements of appellant’s issues

in its Order and Judgment, the appellate

court made the following findings to

affirm the decision rendered by the trial

court: "Upon review of the material

submitted to this court, we cannot

conclude the district court’s finding was

Clearly erroneous...."

Without specifically attacking each

and every point of error by the

appellate court, most of the errors are

apparent upon comparing the orders of the

appellate court and the trial court.

First, Petitioner did not urge that

the trial court erred in requiring him to

prove intentional discrimination.

Indeed, that is a basic tenet of

McDonnel Douglas which Petitioner does

not contest. Instead, Petitioner

represents to this Honorable Court that

he urged on appeal, inter alia, that once

the trial court found that he had made a

prima facie case; and, once the trial

court rejected the "business reason"

urged by the Air Force, Nero should have

been granted judgment as a matter of law.

Nero argued in the alternative that

if the trial court accepted the "computer

profile" as a "business reason" for his

non-promotion, it was error for the trial

court to refuse to allow him to cross-

examine the Air Force’s witness on that

point.

In the appendix submitted to the

appellate court, Nero included the

portions of the trial transcript where

the trial court rejected the “business

reason." In fact, the statements of the

trial court which are cited in the

"Statement of the Case" were taken

verbatim from the appendix which Nero

submitted to the appellate court.

Next, the appellate court refused to

consider Nero’s non-promotion argument

because the promotion issue was allegedly

not stated in the pretrial order and Nero

made no allegation that the pretrial

order was modified. However, the

pretrial order specifically states that

"Plaintiff...seeks equitable and monetary

relief...including promotion to the

position which he has been denied."

Moreover, in its Order of December 12,

1991, the trial court specifically found

that the "promotion [was] the ultimate

and true relief the plaintiff seeks in

this lawsuit." Thus, from the above

language, it is clear that the trial

court either viewed the promotion issue

as properly before it in the first

instance, or viewed the pretrial order as

amended to conform to the proof.

Finally, with regard to the

intertwining issue, the text of the

decision by the trial court clearly

recognizes that Nero was complaining of

three separate issues; discriminatory

loans, a discriminatory non-promotion,

and discriminatory appraisals. Thus, the

findings of the appellate court are

completely out of phase with the findings

of the trial court. Again, in his

appendix, Nero provided the appellate

court with portions of the transcript

where the trial court viewed each

allegation as separate acts of alleged

discriminatory conduct. Thus,

notwithstanding the appellate court’s

conclusion that the material submitted by

Nero was inadequate to provide a

meaningful review, Petitioner presented

his appendix in compliance with Fed. R.

App. P. 10 (Bb) (2).

PROPOSITION II

IN A CASE ALLEGING A DISCRIMINATORY

EMPLOYMENT DECISION THE EVIDENCE

RELEVANT TO SUCH A FINDING IS EVIDENCE

THAT ESTABLISHES A PRIMA FACIE CASE,

EVIDENCE THAT ESTABLISHES THE BUSINESS

REASON FOR THE CHALLENGED ACTION AND

THE EVIDENCE WHICH ESTABLISHES THAT THE

BUSINESS REASON IS PRETEXT

Under Fed.R.App.R., rule 10(b) (2),

28 U.S.C., an appellant is charged with

providing the appellate court with a

Suitable record on appeal:

If the appellant intends to urge on

appeal that a finding or conclusion is

unsupported by the evidence or is

contrary to the evidence, the appellant

shall include in the record a transcript

of all evidence relevant to such finding

or conclusion.

To this end, Nero included each of

the above findings by the trial judge in

his appendix. Nero also included those

portions of the trial transcript that

spoke the three prong McDonnel Douglas

scheme of proof--prima facie- rebuttal-

pretext.

Specifically, Nero included the

portions of trial testimony of each of

his witnesses which spoke to Nero’s

qualifications and the qualifications of

the comparatives who were promoted; the

selection process; and Nero’s' ultimate

non-promotion. Also, Nero included the

portions of the testimony of the

ee ee |

witnesses called by the Air Force which

spoke to Nero’s qualifications and the

qualifications of the comparatives who

were promoted; the selection process, and

his ultimate non-promotion. Likewise,

Nero’s appendix included testimony of all

the Air Force’s witnesses who testified

about its "business reason" for Nero’s

non-promotion. The trial court wholly

rejected the Air Forces "business reason"

in its "garbage-in-garbage-out"

pronouncement; and Nero met his burden of

proof under the third prong of the

McDonnell Douglas standard of proof.

Accordingly, Nero prevailed as a matter

of law.

PROPOSITION III

UNDER RULE 30 OF THE FEDERAL RULES

OF APPELLATE PROCEDURE "THE ENTIRE

RECORD IS ALWAYS AVAILABLE TO THE

COURT FOR REFERENCE" AND IT WAS A

GROSS ABUSE OF DISCRETION FOR THE

APPELLATE COURT TO DENY NERO THE

OPPORTUNITY TO SUPPLEMENT RECORD

The Tenth Circuit Court of Appeals

has long since acknowledged that to

assure a meaningful review it has the

ability to request any documents’ or

transcripts from the district court which

it deems necessary for review. See Doyn

Aircraft, Inc. v. Wylie, 443 F.2d 579,

584 (10th Cir. 1971).

In this case, as set forth in

Propositions I and II, Nero supplied the

appeals court with all the evidence

relevant to his claim of discriminatory

non-promotion. Notwithstanding, the

appeals court deemed Nero’s appendix and

the portions of the transcript

insufficient for review of the decision

of the trail court. Yet the appeals

court did not allow Nero the opportunity

to supplement the record when he

requested oral argument for that purpose;

however, sister circuits have allowed

precisely such’ supplementation. See

Rodriguez v. Anderson, 973 F.2d 550 (7th

Cir. 1992); Garnes v. Gulf & Western Mfg.

Co,, 789 F.2d 637 (8th Cir. 1986). Nor

did the court allow Nero to supplement

his record in support of his petition for

rehearing. Nero submits that in order to

do substantial justice in this case, the

Appeals court had a duty to: (1) order

that the district court send up the

entire transcript or (2) allow Nero to

supplement the record with the entire

transcript.

Again, there is nothing novel about

such a practice. In Garnes, supra, the

Eight Circuit confronted a similar issue

and reasoned:

If Gulf & Western deemed a partial

transcript sufficient for this purpose,

it had a duty to file and serve on Garnes

a statement of the issues it intended to

present on appeal and a copy of its order

of a partial transcript...That was,

Garnes could have ordered additional

parts of the transcript if he though the

partial transcript ordered by Gulf &

Western was inadequate.

After oral argument, we asked Gulf &

Western for, and received, an entire

transcript of the trial. After reviewing

the transcript, we see that the partial

transcript originally provided by Gulf &

Western included essentially all of the

relevant evidence....

Garnes v. Gulf & Western Mfg. Co, 789

F.2d at 640, note 3.

In this case, the entire transcript

waS available to the reviewing court and

there was no reason for the court of

appeals to refuse to avail itself of the

entire transcript, either by its own

motion or by allowing supplementation by

Nero. Nero submits that in order to give

meaning to the notion that "the parties

shall have regard for the fact that the

entire record is always available for

reference and examination" this Court

must pronounce a uniform standard to

which the courts of appeals must conform.

CONCLUSION AND PRAYER FOR RELIEF

Wherefore premises considered,

Petitioner respectfully prays that this

Honorable Court grant his Petition for

Writ of Certiorari and thereafter reverse

the decision of the Court of Appeals for

the Tenth Circuit. Petitioner further

prays that this Honorable Court grant him

the costs of this Petition and a

reasonable attorney fee.

es submiftted,

Lewis Rarbex. Jr 9 #500

BARBER & MARSH

Soae Mss 228 Pie 410

Oklahoma City, “OK vases

(405) 424-5201

APPENDIX "A"

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

DONALD NERO,

Plaintiff,

No. CIV-90-630-W

vs.

DONALD B. RICE,

Secretary, of the

Air Force, and

UNITED STATES OF

AMERICA,

Defendants.

JUDGMENT

Having dismissed the plaintiff’s

cause of action against the defendant,

United States of America, and having

tried the plaintiff’s remaining cause of

action against the defendant, Donald B.

Rice, Secretary, United States Department

of the Air Force, and having entered

Findings of Fact and Conclusions of Law

on the latter cause of action, the Court

hereby ORDERS and ADJUDGES that judgment

be entered in favor of the defendant,

Donald B. Rice, Secretary, United States

Department of the Air Force, and against

the plaintiff, Donald Nero.

Dated at Oklahoma City, Oklahoma,

this 12th day of December, 1991.

LEE R. WEST

UNITED STATES DISTRICT

JUDGE

ENTERED ON JUDGMENT DOCKET ON 12-12-91

APPENDIX "B"

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

DONALD NERO

Plaintiff,

Vv. No. CIV-90-630-W

DONALD B. RICE, FILED

Secretary, of the DEC 12 91

Air Force, and Robert D. Dennis

UNITED STATES OF CiOLcnR, V.S.

— ee ee ee ee ee ee ee ee

AMERICA, District Court

Western District of

Defendants. Oklahoma

BY DEPUTY

ORDER

This matter came on for trial before

the Court sitting without a jury on the

plaintiff’s claim in his’ amended

complaint! that he was the victim of

1 In his amended complaint filed

January 22, 1991, the plaintiff sought

relief against defendants Donald B. Rice,

Secretary, Department of the Air Force,

and the United States of America. The

plaintiff advanced causes of action under

Title VII against defendant Rice for

discriminatory conduct and under the

Federal Tort Claims Act (FCTA) against

the United States for intentional

adverse employment actions in violation

of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. § 2000e et

seq. Having heard the testimony of the

witnesses and having reviewed the

parties’ documentary evidence, the Court

makes the following factual findings and

draws the following legal conclusions

therefrom. @

Findings of Fact

i. The plaintiff, Donald Nero, is

infliction of emotional distress. On

June 10, 1991, the Court upon motion

dismissed the United States as a party

defendant on the ground that the

plaintiff’s exclusive remedy under these

Circumstances was Title VII. E.g.,

Hatcher-Capers v. Haley, 773 F.Supp. 486

(D.D.C. 1991) (when same facts give rise

to both Title VII claim and FTCA clain,

latter cause of action cannot be

pursued).

2 In so doing, the Court hereby

denies the defendant’s oral motion made

at the close of the plaintiff’s case-in-

chief pursuant to Rule 41(b), F.R.Civ.P.

a black male who has been employed at

Tinker Air Force Base (Tinker), Oklahoma,

for eleven years. Since April 1987, the

plaintiff has been employed as a

preservation packer, WG-7004-06, in the

Transportation Operations’ Division

(DSTEPB), Directorate of Distribution.

Immediately prior to this assignment, the

plaintiff was employed as a packer, WG-

7002-06, in the Central Packing Section

(DSTEP) .

2. The defendant is Donald B.

Rice, Secretary, United States Department

of the Air Force.

3% During the time of the

allegedly adverse employment actions, the

plaintiff was under the supervision of

among others, Section Chief Melton Moran

(now Chief, Packing and Preservation

Branch), a white male, and Unit Chief,

Central Packing Section, Norma Welch (now

Chief, Central Packing Section), a white

female.

4. On September 29, 1985, the

plaintiff was promoted temporarily to the

position of supervisor (Packer Foreman).

This promotion and the corresponding

increase in grade and pay terminated

automatically after 120 days. The

plaintiff nevertheless continued

thereafter to serve aS a _ supervisor

without any increase in grade or pay when

supervisors were absent.

S. In fact, on September 18, 1986,

Mr. Moran issued the plaintiff a Letter

of Appreciation wherein Mr. Moran wrote

that he "would like to express [his]

appreciation for the hard work and

leadership support" the plaintiff had

provided. Mr. Moran commended the

NE eee

plaintiff on his attitude and _ wrote

further that although the plaintiff’s

temporary promotion to supervisor had

expired in January 1986, the plaintiff

had

"willingly continued to

substitute for absent

supervisors, to the extent of

changing . ‘ . days off,

shifts, and even buildings in

order to accomplish the

mission."

6. The evidence demonstrated that

the rating official, Ms. Welch, in

completing the Civilian Performance and

Promotion Appraisal dated February 17,

1987, which evaluated the plaintiff’s

performance from February 1, 1986, to

January 31, 1987, took into consideration

the plaintiff’s talents as a supervisor.

The evidence demonstrated further that

the plaintiff’s "supervisory efforts when

performed were professional and

effective," but that his performance as a

packer was only average. Ms. Welch

testified that the rating score of 68 and

the corresponding achievement level,

"fully satisfactory," were obtained only

because the plaintiff’s performance as a

temporary supervisor had been

considered. ?

a The score received on this

appraisal was equal to the score received

on the preceding appraisal, the

evaluation period for which was February

1, 1985, to January 31, 1986. Ms. Welch

3 In two "periodic performance

reviews" conducted by Ms. Welch on April

17, 1986, and September 9, 1986, during

this same appraisal cycle, Ms. Welch

noted that the plaintiff had served as

"acting supervisor" whenever the need

arose, that he met or exceeded all

elements and standards of his work plan

and that he averaged 25 line items. See

AFLC-AFGE Master Labor Agreement Art. 15,

§ 15.02(f) (authorizing periodic review

during appraisal cycle).

was likewise the rating official for this

appraisal cycle and these two. scores

exceeded all earlier scores received by

the plaintiff. See Civilian Performance

and Promotion Appraisal signed by

plaintiff on February 21, 1985 (plaintiff

received 56 points for evaluation period,

July 1, 1984, to January 31, 1985).

8. During the February 1986 to

January 1987 appraisal period, 14 white

females, 23 white males, 4 black females,

11 black males, 1 Hispanic female and 2

Hispanic males were rated by Ms. Welch.

The plaintiff was rated higher than 26

white employees, 13 black employees and 3

Hispanic employees.

9. On September 30, 1986, the

plaintiff received an Administrative

Notice signed by Mr. Moran. He was

advised that two female employees had

charged him with sexual harassment and

that he would remain under Administrative

Notice until the matter had _ been

investigated and resolved.

10. In December 1986, a Notice of

Proposed Reprimand was issued and the

plaintiff was charged with disruptive

behavior. The inappropriate behavior was

making unsolicited and offensive

statements of a sexual nature toward

female employes and interfering with the

production of others.

11. On January 6, 1987, the

plaintiff contacted Evelyn Nephew, an

Equal Employment Opportunity (EEO)

counselor, and both signed a= sworn

statement that read in part:

(a) that the plaintiff had been a

packer for seven years;

(b) that the plaintiff believed

that the Notice of Proposed

Reprimand was discriminatorily

;

motivated because of the

plaintiff’s race and sex; and

hinder the plaintiff in his

efforts to be promoted to

permanent supervisor.

The plaintiff requested that the proposed

reprimand be rescinded and that he be

promoted to Packer Foreman.

12. On January 7, 1987, Ms. Nephew

completed a Counselor’s Daily Contact

Summary wherein she memorialized the fact

that the plaintiff had contacted an EEO

counselor.

13. On January 14, 1987, Mr. Moran

issued a Notice of Decision to Reprimand

after he concluded that the evidence

supported and warranted the proposed

reprimand.

14. This action prompted the

plaintiff to amend his sworn statement on

January 22, 1987. This amendment was

likewise signed by Ms. Nephew. The

plaintiff repeated his allegation of

discrimination and his requests that the

disciplinary action be rescinded and that

he be promoted to Packer Foreman. This

contact was also memorialized in a

Counselor’s Daily Contact Summary.

15. On February 9, 1987, the

plaintiff was notified of a final

counseling interview by the EEO counselor

and he was advised that he had the right

to file a complaint of discrimination

with the EEO Complaints Activity Officer

within fifteen calendar days. No

complaint was filed by the plaintiff

within that fifteen-day period.

16. From December 1986 to June

1987, the plaintiff was "loaned" by his

supervisors three times for varying

periods of time.?4 The first "loan"

occurred on January 15, 1987, nine days

after his first contact with Ms. Nephew

and one day after the Notice of Decision

to Reprimand was’ issued. The third

"loan" was in fact a reassignment to

Building 510, where the plaintiff is now

employed, as stated, as a preservation

4 AFLC-AFGE Master Labor Agreement

Art. 21, § 21.01 defines a "loan" as

"the assignment of an employee

to another supervisor or

organization to meet temporary or

limited emergency work situations

where the position has the same

grade, series, and basic duties as

his/her regularly assigned

position."

The duration of a "loan" is to

"be limited to the shortest

practicable time and, upon request,

the Employer will inform the

employee of the anticipated duration

and working conditions which are

different at the receiving

location."

packer, WG-7004-06 (DSTEPB).

17. During this same period, three

other employees, 3 black males and 1

white female, were also "loaned" from

Building 506 to other work stations.

18. When notified of the need to

"loan" an employee due to increased

workload in another building, supervisors

polled employees seeking volunteers. &

"loans" roster was used and each employee

on the roster was approached in the order

the employee’s name appeared on the

roster until a volunteer was found. 4

no employee volunteered, an employee

whose name was on the "loans" roster was

selected.

19. On June 10, 1987, the plaintiff

met again with Ms. Nephew. He swore ina

written statement, dated with that date

and signed by Ms. Nephew,

(a) that the frequent "loans" were

because he was a black male and

in retaliation for previous EEO

activity; and

that during these "loans," a

white male employee and a white

female employee were promoted

to permanent Supervisor

positions.

20. He also took issue in that

Statement with his Civilian Performance

and Promotion Appriasal dated February

17, 1987, wherein Ms. Welch had given the

plaintiff a score of 68 and rated his

° There are apparently three

promotions of co-workers about which the

plaintiff has complained: Charles

Cutting on October 13, 1985, Sheri Vann

Wiley on November 11, 1986, and Barbara

McCurdy in June 1987. Testimony

indicated that a "profile" is prepared to

fill vacancies and to make promotions. A

list of approximately ten candidates is

computer-generated after compilation of

objective factors such as_ experience,

training and education and _ subjective

factors such as appraisal scores.

Disciplinary action information is not a

factor that is used in preparing the

lists. It is undisputed that the

plaintiff’s name has not appeared on any

list of candidates.

performance as "fully satisfactory." The

plaintiff on February 19, 1987, was given

the opportunity to sign the appraisal but

he refused to do so on the ground that he

had been improperly evaluated. In this

written statement he again requested a

promotion to permanent supervisor and

reevaluation.

21. On July 1, 1987, the plaintiff

filed a formal Complain of Discrimination

wherein he described the alleged

discriminatory employment action as

follows:

"During the months 14 Jan., 87

thru 3 JUn.; 87 I was

continuosly [sic] loaned out to

other work areas, and other

employees are not loaned out as

frequent. This prevented me

from promotions and being

fairly rated on my work

performance appraisal."

He likewise requested in this’ formal

complaint a promotion and reevaluation.

22. On July 15, 1987, Johnnie Cash,

Jr., director of the EEO Complaints

Office and Chief EEO counselor, submitted

a written request to the Department of

the Air Force for an investigator. The

Statement of Accepted Issue which Mr.

Cash submitted in his request read:

"Was Mr. Donald lL. Nero

discriminated against due to

his race (Black), sex (Male)

and a victim of reprisal for

previous EEO activity when on 3

Jun 87 he was loaned from

building 18 (DSTEAB) Unit to

building 510 (DSTEP) Unit while

Caucasian males and females

were not loaned as he was

loaned?"

23. On August 20, 1987, Aletha

Tarington, also an employee in the Tinker

EEO Complaints office, submitted the

following revision to Mr. Cash’s

Statement of Accepted Issue:

"1. The attached Case File was

submitted for Air Force

Investigation in error. Review

of the FIle indicates the issue

identified requires restatement

and that the issue of the 1987

Civilian Performance and

Promotion Appraisal (CPPA) was

inadvertently omitted from

processing this formal concern.

72. Two issues have been

identified:

(1) Was Mr Donald Nero

discriminated against due

to his race (Black), sex

(male) and a victim of

reprisal for previous EEO

activity when he was

loaned from his officially

assigned work station in

OC-ALC/DSTEA (Bldg 506)

during the period 15

January 1987 to 3 June

1987 when Caucasian co-

workers were allegedly not

loaned?

(2) Was Mr Donald Nero

discriminated against due

to his race (Black), sex

(male) and a victim of

reprisal for previous EEO

activity when on 19

February 1987 he was

issued his Civilian

Performance and Promotion

Appraisal (CPPA)?

"Initial Contact with an _ EEO

Counselor concerning both

issues was 10 June 1987."

acai catia

24. On September 1987,

plaintiff Nero was advised in writing by

the Departaent of the Air Force that only

the first issue was accepted for

investigation. The second issue was

rejected as untimely. The plaintiff was

advised that Air Force Regulation 40-

1613, paragraph 2-4f, requires an

allegation of discrimination to be

brought to the attention of an_ EEO

counselor within thirty (30) days after

the incident about which the complaint is

made. The incident described in the

second issue occurred at the latest on

February 19, 1987, the date the plaintiff

refused to sign the Civilian Performance

and Promotion Appraisal. Thus, contact

with the EEO counselor on June 10, 1987,

was deemed untimely.

25. The plaintiff was also advised

on September 15, 1987, that he had the

right to appeal this decision of

acceptability to the EEO Commission or

file a lawsuit in federal court. Neither

action was taken by the plaintiff at that

time.

26. On February i 1988, the

plaintiff injured his arm at work. Upon

returning some eight months later, the

plaintiff reinjured his arm on _ two

occasions. At trial, the plaintiff

complained that these injuries resulted

because Mr. Moran and Ms. Welch assigned

the plaintiff tasks he was physically

incapable of performing. Notwithstanding

such allegations, the Court finds no

evidence to support this contention or

the plaintiff’s argument that the

plaintiff’s assigned tasks were

discriminatorily motivated. Rather, the

oe Sek Gave

evidence including the plaintiff’s own

testimony demonstrated that the plaintiff

was permitted during this time to work on

"ligne duty.“

27. On April 27, 1989, the Air

Force EEO Complaints’ Investigator

assigned to the plaintiff’s case issued

her report. She found that legitimate,

nondiscriminatory reasons existed for

loaning the plaintiff to other work areas

and that these reasons were not

pretextual and did not mask any

prohibited discriminatory or reprisal

activity.

28. At the plaintiff’s request this

report was reviewed by William P. Bowden,

Major General, United States Air Force,

Commander. On May 26, 1989, Commander

Bowen issued a Notice of Proposed

Disposition wherein he wrote that he

found no evidence that race or previous

participation in any protected activity

was an influencing factor in the

plaintiff’s loans to other work stations.

The plaintiff thereafter requested a

hearing.

29. That request was withdrawn on

August 15, 1989, and on November 28,

1989, a Final Agency Decision issued

wherein Commander Bowden’s' conclusions

and proposed disposition were adopted.

30. The plaintiff then chose to

appeal to the Office of Review and

Appeals regarding the framing of the

issue and on December 19, 1989, he gave

notice that he wished to appeal the Final

Agency Decision.

31. In his brief submitted in

support of his appeal, the plaintiff

challenged restatement of the issues

presented in his complaint of July 1,

1987, by the EEO Complaints Office. In

particular, he argued that the

restatement did not address adequately

his contentions regarding the connection

between the loans and what he perceived

to be the consequences thereof: allegedly

unfair evaluations and ultimately,

nonpromotion.

32. On March 14, 1990, the Office

of Review and Appeals denied the

plaintiff’s appeal as untimely.

Conclusions of Law

Ls The Court has jurisdiction over

this action pursuant to Title VII of the

Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e-16, the statute under

which the action arose.

as Donald Rice, Secretary,

Department of the Air Force, is the

proper party defendant. 6, (in civil

action, head of department/agency shall

be defendant).

2 Section 2000e-16(a) provides

that

"Cajll personnel action... .

shall be made free from any

discrimination based on race .

Retaliation against an employee who has

challenged an allegedly unlawful

employment practice under Title VII is

also recognized as a form of

discrimination under Title VII. A

Shamey v. Administrator, General Services

Administration, 732 F.Supp, 122 (D.D.C.

1990); 42 U.S.C. § 2000e-3.

4. This lawsuit involves

allegations of discriminatory treatment

against the plaintiff. Discriminatory

treatment occurs where an employer simply

treats an employee less favorable than

other employees because of the employee’s

race or participation in statutorily-

protected activity.

5. In the instant case, the

plaintiff has contended that he has not

been promoted and has received unfair

evaluations because he was the victim of

discriminatory “loan" practice. The

plaintiff has contended that he was

"loaned" because he is’ black and in

retaliation for his having filed charges

and complaints with the EEO counselor.

6. When alleging disparate

treatment, a plaintiff must prove by a

preponderance of the evidence that his

employer had a discriminatory motive or

intent. Watson v. Fort Worth Bank _ &

Trust, 487 U.S. 977, 986 (1988). This is

usually done by "a series of shifting

evidentiary burdens that are ‘intended

progressively to sharpen the inquiry into

the—elusive factual question of

intentional discrimination. ’" Id.

(quoting Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 255 n.8

(1981). "(T]hese shifting burdens are

meant only to aid courts and litigants in

arranging the presentation of evidence:

‘The ultimate burden of persuading the

trier of fact that the defendant

intentionally discriminated against the

plaintiff remains at all times with the

plaintiff.’" Id. (quoting Burdine, 450

0.8, # 253). Thus, as in the instant

case, when the case is fully tried, the

Court need consider only the ultimate

question; the subsidiary steps in the

proof scheme become irrelevant. Ortega

v. Safeway Stores, Inc., 943 F.2d 1230,

1237 (10th Cir. 1991) (citing United

States Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 715 (1983)).

7 The Court has first examined

the plaintiff’s complaint that he was

unfairly "loaned" to other work stations.

The Court has found no evidence that

these "loans* resulted from any

discriminatory motive. Instead, the

evidence demonstrates that employees,

including the plaintiff, either

volunteered or were selected from a

"loans" roster to work in different

locations in response to increased

workloads and to accomplish missions.

There is no credible evidence that the

plaintiff was selected for any "loan"

assignment or reassigned because he is

black or because he contacted Ms. Nephew

in January 1987.

8. The Court concludes further

that there was no evidence presented that

the plaintiff received an unfair

evaluation in February 1987 either

because of these "loans," because he is

black or because he engaged in a

statutorily protected activity. Rather,

in the Civilian Performance and Promotion

Appraisal that the plaintiff refused to

sign and that is the subject of his

amended complaint, the plaintiff received

a score equal to or higher than any

previous score he had received.

9. The Court has also considered

whether what has now been determined to

be a neutral action--the "loans"--

nevertheless had the effect of being

discriminatory by denying the plaintiff

the opportunity to be promoted. First,

two of the three promotions about which

the plaintiff has complained were given

to members of a protected group: Barbara

McCurdy (female) and Sheri Vann Wiley

(black female). Second, two of the

promotions--the ones received by Charles

Cutting and Sheri Vann Wiley--occurred

prior to the "loans" about which the

plaintiff has complained and prior to

any contact by the plaintiff with the EEO

counselor.

10. The Court has considered the

fact that the plaintiff’s name has never

appeared on any computer-generated list

of candidates. Although mindful that

information can be supplied in a manner

designed to manipulate and/or to achieve

a desired resut, the Court concludes that

no evidence was presented that = any

information supplied by the supervisors

about the plaintiff was inaccurate or

misleading or that he was rated on his

Civilian Performance and Promotion

Appraisal in a manner designed to deny

him a protion or to permit the promotion

of less qualified employees.

11. Even assuming that some or all

of the plaintiff’s supervisors may have

misdjudged the plaintiff’s skills as a

packer and/or as a permanent supervisor,

such an error in judgment alone does not

expose an employer to liablilty under

Title VII. Title VII provides redress

only when an employment decison is based

upon unlawful criteria. -

12. Various agruments have been

advanced by the defendant regarding the

timliness of the plaintiff’s statements,

charges and complaints, both informal and

forma. The Court has concluded that

resoluton of the merits of the

plaitniff’s claims of discrimination is

more appropriate in these circumstances

because each contact with an EEO

counselor and each statement and charge,

informal adn formal, submitted by the

plaintiff requested promotion, which is

the ultimate and true relief the

plaintiff seeks in this lawsuit. Unable

to ascertain or recognize the reason for

his mnonpromotion to a_- permanent

Supervisor’s position, the plaintiff has

viewed every decision, adverse or

otherwise, by a Supervisor as

discriminatory.

13. Based upon the foregoing, the

Court concludes that there is no causal

connection between any "loan" adn the

plaintiff’s race or participation in EEO

activity and no evidence to Support a

finding that hte plaintiff was treated

differently with regard to "loans,"

appraisals or promotions because of his

race or because he engaged in statutorily

protected activity. Accordingly, the

Court finds that the plaintiff has failed

to prove that he was the victim of

intentional discrimination or

retaliation. Judgment in favor of

defendant shall issue forthwith.

ENTERED this 12th day of December,

1991.

LS/

LEE R. WEST

UNITED STATES DISTRICT JUDGE

APPENDIX "Cc"

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DONALD NERO,

No. 92-6100

(D.C. No.

CIV-90-630-

W) (W.D.

)

Plaintiff-Appellant, )

)

DONALD B. RICE, Secretary,) Okla.)

)

Vv.

Department of the Air

Force; UNITED STATES OF

AMERICA,

Defendants-Appellees.

ORDER AND JUDGMENT*1

1s This order and judgment has no

precedential value and shall not be

cited, or used by any court within the

Tenth Circuit, except for purposes of

establishing the doctrines of the law of

the case, res judicata, or collateral

estoppel. 10th Cir. R. 36.3

alas After examining the briefs and

appellate record, this panel has

determined unanimously that oral argument

would not materially assist the

determination of this appeal. See. Fed.

R. App. P. 34(a); 10th Cir. R. 34.1.9.

The case is therefore ordered submitted

without oral argument.

Before TACHA and BALDOCK, CIRCUIT JUDGES,

and BROWN,** Senior District Judge. ***

*kHonorable Wesley E. Brown, Senior

District Judge, United States District

Court for the District of Kansas, sitting

by designation.

Plaintiff-appellant Donald Nero

appeals from an order of the district

court entering judgment for defendants.

We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirn.

Plaintiff, a black male civilian Air

Force employee, commenced this action

pursuant to Title VII, 42 U.S.C. § 2000e-

16, and the Federal Tort Claims Act

[Facey ;, 20 U0.8.C, §§ 2671-2680. The

district court granted defendants’ motion

for partial summary judgment’ and

dismissed plaintiff’s FTCA claim on the

ground that plaintiff’s exclusive remedy

for claims of discrimination in federal

employment was provided by Title VII.

Following a bench trial, the court held

that plaintiff had failed to prove he was

the victim of intentional discrimination

or retaliation and entered judgment for

defendants on plaintiff’s Title VII

claims.

On appeal, plaintiff argues’ the

district court erred by requiring him to

prove intentional discrimination.

Plaintiff contends that the court should

have applied the burden-shifting format

of McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), and required defendant

to show its proffered reasons were

legitimate.

While the McDonnell Douglas format

is intended for analyzing Title VII

claims, once the defendant has set forth

a facially nondiscriminatory reason for

its actions, "the plaintiff then assumes

the normal burden of any plaintiff to

prove his or her case at trial." EEOC v.

Flasher Co., 1992 WL 384935 at *3 (10th

Cir. Dec. 29, 1992). The court must

weigh the evidence presented and assess

the credibility of witnesses "to

determine whether the plaintiff was the

victim of intentional discrimination

based upon protected ciass

characteristics." Id. A plaintiff can

meet his burden either directly by

proving the employer acted with a

discriminatory motive or indirectly by

showing that the employer’s stated reason

for its action was pretextual.

The district court’s determination

of whether plaintiff met his burden is an

issue of fact which we review under the

Clearly erroneous standard. Flasher, at

*3. Upon review of the materials

submitted to this court, we cannot

ailment iiin aa

en penal

conclude the district court’s finding was

Clearly erroneous. 2

Plaintiff argues specifically that

at trial the district court refused to

admit evidence regarding defendant’s

"computer profile" System, the method by

which defendant made promotion

determinations. The court allegedly

refused to accept the absence of

Plaintiff’s name on the computer

generated promotion eligibility list as a

legitimate business reason for not

promoting plaintiff. Plaintiff argues

that in its Order, however, the court

é Our review of this issue is

necessarily limited. In his appendix,

Plaintiff included Only brief,

unidentified excerpts of the transcript.

For us to determine whether a district

court’s findings were Clearly erroneous,

Plaintiff must include in the record a

transcript of all evidence, properly

identified, which is relevant to such

findings. See Fed. R. App. P. 10(b) (2);

Deines v. Vermeer Mfa. Co.. 969 F.2d 977,

979 (10th Cir. 1992).

relied on the computer profile as the

basis for its decision.

The pretrial order stated that the

issue for trial was whether plaintiff had

"suffered loss of promotion

opportunities" as a result of retaliatory

loans. Appellant’s App. at 128-29.

Pretrial orders control the course of the

action unless later modified. Fed. R.

Civ. P. 16(e). Plaintiff has not alleged

that the pretrial order was modified.

The district court found no evidence

that the loans were made for

discriminatory reasons. Id. at 155-56.

As noted, supra, plaintiff has failed to

include a sufficient record to permit

adequate review. However, the fact that

plaintiff’s name was not on the

promotion eligibility list does. not

appear to bear on the central

determination of whether plaintiff was

loaned to other departments for

discriminatory reasons. We cannot hold

that he district court erred in its

determination.

Plaintiff argues that oral argument

is necessary because the facts and legal

arguments need to be supplemented. The

purpose of oral argument is not to

Supplement an inadequate record.

Plaintiff argues the district court

improperly "intertwined" his failure to

promote issue with his retaliatory loan

issue. The materials submitted to us

contain no indication plaintiff requested

that his failure to promote be considered

independently after the pretrial order

was entered. Cf. Hullman _v. Board of

Trustees of Pratt Community College, 950

F.2d 665, 667 (10th Cir. 4991). The

court committed no error.

Plaintiff also argues the district

court erred by considering the

administrative record and making findings

of fact based on that record. While

enumerating the findings allegedly

derived from the administrative record,

plaintiff has not identified any errors

contained therein. We cannot say that

the district court committed reversible

error.

Finally, plaintiff argues his FTCA

claim should not have been dismissed

because it was not related to his

discrimination claims. Title VII

provides "the exclusive judicial remedy

for claims of discrimination in federal

employment." Brown v. General Servs.

Admin., 425 U.S. 820, 835 (1976). Title

VII does not, however, preclude separate

‘remedies for unconstitutional actions

such as torts of highly personal

violations other than discrimination.

Otto v. Heckler, 781 F.2d 754, 756-57

(9th Cir.), amended, 802 F. 2a 337

(1986).

Both to the agency and to the

district court, plaintiff framed his FTCA

Claim as alleging intentional infliction

of emotional distress due to defendant’s

discriminatory actions of loaning him to

other departments and denying him a

promotion. This claim is’ clearly

grounded in his Title VII employment

discrimination claims and could not have

been brought separately. ?

3 On appeal, plaintiff appears to

argue his FTCA claim is based on his

Supervisor’s tortious conduct of

insisting he perform work for which he

was not medically cleared and, in one

instance refusing to approve medical

treatment for him for four’ months.

Plaintiff contends that, as a result, he

has lost the use of one arm. Arguably,

plaintiff could bring this claim under

the FTCA. However, plaintiff did not

exhaust his administrative remedies and

cannot bring this claim inn federal

court. See 28 U.S.C.§ 2675.

The judgment of the United States

District Court for the Western District

of Oklahoma is AFFIRMED.

Entered for the Court

Bobby R. Baldock

Circuit Judge

APPENDIX "D"

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DONALD NERO,

Plaintiff-Appellant,

Vv. No. 92-6100

DONALD B. RICE, Secretary,

Department of the Air

Force; UNITED STATES

OF AMERICA,

mee ee ee ee eee ee

Defendants-Appellees.

ORDER

Entered March 30, 1993

Before TACHA and BALDOCK, Circuit Judges

and BROWN, * District Judge.

*The Honorable Wesley E. Brown of the

States District Court for the District

of Kansas, sitting by designation.

This matter comes on for

consideration of appellant’s petition for

rehearing and motion to file a

supplemental appendix.

Upon consideration whereof, the

petition for rehearing and the motion to

file supplemental appendix are denied.

Entered for the Court

Robert L. Hoecker, Clerk

By Patrick Fisher

Chief Deputy Clerk

APPENDIX "EE"

FEDERAL RULE OF APPELLATE PROCEDURE 10,

The record on appeal

(a) Composition of the record on

appeal. -- The Original papers’ and

exhibits filed in the district court, the

transcript of proceedings, if any, and a

certified of the docket entries prepared

by the clerk of the district court shall

constitute the record on appeal in all

cases.

(b) The transcript of proceedings;

duty of the appellant to order; notice to

appellee if partial transcript is

Ordered. -- (1) Within 10 days after

filing the notice of appeal the

appellant shall order from the reporter a

transcript of such Parts of the

proceedings not already on file as the

appellant deems necessary, subject to

local rules of the courts of appeals.

The order shall be in writing and within

the same period a copy shall be filed

with the clerk of the district court. If

funding is to come from the United

States under the Criminal Justice Act,

the order shall so state. If no such

parts of the proceedings are to _ be

ordered, within the same period the

appellant shall file a certificate to

that effect.

(2) If the appellant intends to

urge on appeal that a finding or

conclusion is unsupported by the evidence

Or is contrary to the evidence, the

appellant shall include in the record a

transcript of all evidence relevant to

such a finding or conclusion.

a Rte PFE

L0G Cir. Rs 1631 Transcripts.

Ns Pe ORS | Appropriate transcripts. --

It is the appellant’s responsibility to

Order and provide al] portions of the

transcript necessary to give the court of

appeals a complete and accurate record

of the proceedings insofar as such

proceedings relate to the issues raised

in appeal, and when sufficiency of the

evidence is raised, the entire trial

transcript Ordinarily should be provided.

However, there will be other occasions

when a transcript is unnecessary for

resolution of the issues raised, or when

a partial transcript is sufficient. In

those instances Only the relevant

portions, if any, of the transcript

Should be ordered and provided. Counsel

should endeavor to enter into

Stipulations that will avoia Or reduce

transcripts. Transcripts should omit the

examination of jurors unless specifically

drawn into issue on appeal. If no

transcript is to be ordered, the

appellant shall file a certification to

that effect in this court within 10 days

of filing the notice of appeal, and shall

serve a copy of the certification on the

appellee and the district court clerk.

APPENDIX "F"

FEDERAL RULE OF APPELLATE PROCEDURE 30,

Appendix to the briefs

(a) Duty of appellant to prepare

and file; content of appendix; time for

filing; number of copies. --The appellant

shall prepare and file an appendix to the

briefs which shall contain: (1) the

relevant docket entries in the proceeding

below; (2) any relevant portions of the

pleadings, charge, findings or opinion;

(3) the judgment, order or decision in

question; and (4) any other parts of the

record to which the parties wish to

direct the particular attention of the

court. Except where they have

independent relevance, memoranda of law

in the district court should not be

included in the appendix. The fact that

parts of the record are not included in

the appendix shall not prevent the

parties or the court from relying on such

parts.

Unless filing is to be deferred

pursuant to the provisions of subdivision

serve and file the appendix with the

brief. Ten copies of the appendix shall

be filed with the clerk, and one copy

shall be served on counsel for each party

separately represented, unless the court

shall by rule or order direct the filing

or service of a lesser number.

(b) Determination of contents of

appendix; cost of producing. --The

parties are encouraged to agree as to the

contents of the appendix. In the

absence of agreement, the appellant

shall, not later than 10 days after the

date on which the record is filed, serve

on the appellee a designation of the

parts of the record which the appellant

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intends to include in the appendix and a

statement of the issues which the

appellant intends to present for review.

If the appellee deems it necessary to

direct the particular attention of the

court to parts of the record not

designated by the appellant, the

appellee shall, within 10 days after

receipt of the designation, serve upon

the appellant a designation of those

parts. The appellant shall include in

the appendix the parts thus designated

with respect to the appeal and any cross

appeal. In designating parts of the

record for inclusion in the appendix, the

parties shall have regard for the fact

that the entire record is always

available to the court for reference and

examination and shall not engage _ in

unnecessary designation. The provisions

of this paragraph shall apply to cross

appellants and cross appellees.

Unless the parties otherwise agree,

the cost of producing the appendix shall

initially be paid by the appellant, but

if the appellant considers that parts of

the record designated by the appellee for

inclusion are unnecessary for the

determination of the issues presented the

appellant may so advise the appellee and

the appellee shall advance the cost of

including such parts. The cost of

producing the appendix shall be taxed as

costs in the case, but if either party

shall cause matters to be included in the

appendix unnecessarily the court may

impose the cost of producing such parts

on the party. Each circuit shall provide

by local rule for the imposition of

Sanctions against attorneys who

unreasonably and vexatiously increase the

costs of litigation through the inclusion

of unnecessary material in the appendix.

designating contents of the appendix;

‘how references to the record may be made

in the briefs when alternative method is

used.--If the court shall so provide by

rule for classes of cases or by order in

specific cases, preparation of the

appendix may be deferred until after the

briefs have been filed, and the appendix

may be filed 21 days after service of the

brief of the appellee. If the

preparation and filing of the appendix is

thus deferred, the provisions of

subdivision (b) of this Rule 30 shall

apply, except that the designations

referred to therein shall be made by each

party at the time each brief is served,

and a statement of the issues presented

shall be unnecessary.

If the deferred appendix authorized

by this subdivision is_ employed,

references in the briefs to the record

may be to the pages of the parts of the

record involved, in which event’ the

original paging of each part of the

record shall be indicated in the appendix

by placing in brackets the number of each

page at the place in the appendix where

that page begins. Or if a party desires

to refer in a brief directly to pages of

the appendix, that party may serve and

file typewritten or page proof copies of

the brief within the time required by

Rule 31(a), with the appropriate

references to the pages of the parts of

the record involved. In that event,

within 14 days after the appendix is

filed the party shall serve and file

copies of the brief in the form

prescribed by Rule 32(a) containing

references to the pages of the appendix

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in place of or in addition to the

initial references to the pages of the

parts of the record involved. In that

event, within 11 days after the appendix

is filed the party shall serve and file

copies of the brief in the - form

prescribed by Rule 32(a) containing

references to the page of the appendix in

place of or in addition to the initial

references to the parts of the record

involved. No other changes may be made

in the brief as initially served and

filed, except that typographical error

may be corrected.

(d) Arrangement of the appendix.--

At the beginning of the appendix there

shall be inserted a list of the parts of

the record which it contains, in the

order in which the parts are set out

therein, with references to the pages of

the appendix at which each part begins.

The relevant docket entries shall be set

out following the list of contents.

Thereafter, other parts of the record

shall be set out in chronological order.

When matter contained in the reporter’s

transcript of proceedings is set out in

the appendix, the page of the transcript

at which such matter may be found shall

be indicated in brackets immediately

before the matter which is_' set out.

Omissions in the text of papers or of the

transcript must be indicated by

asterisks. Immaterial formal matters

(eanetions, Bubscriptions,

acknowledgements, etc.) shall be omitted.

A question and its answer may _ be

contained in a single paragraph.

(e) Reproduction of exhibits.--

Exhibits designated for inclusion in the

appendix may be contained in a separate

volume, or volumes, suitably indexed.

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Four copies thereof shall be filed with

the appendix and one copy shall be

served on counsel for each party

separately represented. The transcript

of a proceeding before an administrative

agency, board, commission or officer used

in an action in the district court shall

be regarded as an exhibit for the purpose

of this subdivision.

(f) Hearing of appeals on the

original record without the necessity of

an appendix.--A court of appeals may by

rule applicable to all cases, or to

classes of cases, or by order in specific

cases, dispense with the requirement of

an appendix and permit appeals to be

heard on the original-record, with such

copies of the record, or relevant parts

thereof, as the court may require.

Appendix. --In all appeals from a

district court, except pro se appeals

and appeals in which a party is

represented by an attorney appointed

under the Criminal Justice Act, the

record on appeal will be retained in the

district court. Appellant must file an

appendix to appellant’s opening brief,

containing excerpts of the record.

a0ckaa Contents of Appellant’s

Appendix. --Those inclusionary and

exclusionary requirements applicable to a

record on appeal --see 10th Cir. R. 10.3

-- are equally applicable to appellant’s

appendix. It is the responsibility of

the appellant’s counsel to “file an

appendix sufficient for consideration and

determination of the issues on appeal.

See particularly 10th Cir. R. 10.1.1

pertaining to adequate transcripts. The

court is under no obligation to remedy

any failure of counsel to fulfill that

responsibility.

aoe Cir. KR. 30.2 Sunpnienenta i

Appendix.--If the appellee believes that

appellant’s appendix omits items which

should be included, appellee may file a

supplemental appendix with the appellee’s

answer brief. No other appendix may be

filed express by express order of the

court. A supplemental appendix must be

in the same form as appellant’s appendix

and shall be filed and served in the same

manner.

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.