# Petition for Writ of Certiorari — Nero v. Donley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 860

## Text

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...

Pe

16

ii
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

iv

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)
19
20, 21
D>, id,
iv, a8
20
3, 4&6
3
3
3
2

i
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

2
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.

3

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-

le

4
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

5
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

6

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

7
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

8
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

9
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

10

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.

11
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

12

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

pe

13

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-

14
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

iS

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

16
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

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 |

18
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

19

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

ee

20
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,

Sn

i

21

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

|

22
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,
yl

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

2
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,
3

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).

6

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

8

:
;

motivated because of the
plaintiff’s race and sex; and

(c) that the Notice was intended to
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

10

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."

xa

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,

12

(a) that the frequent "loans" were
because he was a black male and
in retaliation for previous EEO
activity; and

on

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.

13

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.

14

|

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

15

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."

16

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

17

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

18

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

19

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

20

|

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

21

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 .
w

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

22

4

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

23

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

24

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

he

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

26

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

27

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

28

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,"

29

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

30

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

2
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
(c) of this rule, the appellant shall
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.

(c) Alternative method of
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

Pee oe it ee

ees

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.

s0Gn Cir. RR. 303 Ap © @ ) 4:4. 9 2-77 @

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1093%3A1. Public record. Not legal advice.