Petition for Writ of Certiorari — Stove v. Philadelphia School District

Supreme Court, U.8

FILED

00 4

No. 0 @ 4 SEP 27 2000

: Se os

IN THE

Supreme Court of the Hnited States

CATHERINE STOVE,

Petitioner(s),

V.

PHILADELPHIA SCHOOL DISTRICT,

Respondent,

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Third Circuit

PETITION FOR A WRIT OF CERTIORARI

CATHERINE STOVE

Counsel of Record

CATHERINE STOVE - PROSE

7632 B WiLLiAMs Way

ELKINS Park, PA 19027

(215) 576-0652

aS

Ome

le eed

i

QUESTION PRESENTED

Did Magistrate Honorable Judge M. Faith Angell

abuse her discretion, commenting on my pending civil

case, according to 10p Chapter 6, at my pretrial, January

6, 1999, at District Court, 601 Market Street,

Philadelphia, Pennsylvania?

ii

LIST OF PARTIES

This action was filed by Catherine Stove, Pro se,

against the Philadelphia School District, which is a

public agency.

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- Fe ee RL ne Eek wt ene Brie ne. Ete Dae eae

Mae ee TAS AB ET GUE ay NEAT ns il UN A Dain

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....sssssssesssssssenssneenssnsene i

NITIES sssssdsctaslsansantnassasilacashnsessasbtganantensesvscans ii

I TE IO cc csnnsincsenccosusesdscnnnscsssasensonane iii

TABLE OF AUTHORITIES.........csssscssssccssscssssesssssssssses v

PETITION FOR WRIT OF CERTIORARI .......sscessssee. 1

ee 1

CONSTITUTIONAL AND STATUTORY PROVI-

RP IED sseccssssacesnsoucsennoseessanssscncsenensessancces 2

STATEMENT OF THE CASE ......ccsscsssscssesscsssecsssssscsses 2

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B. Procedural Background ......c...ccsssscsssesssssseessssssee 3

1. District Court Proceedings...........ccssssssssseesseee 3

2. The Third Circuit Decision...........cccssssessssseesssees 4

REASONS THE COURT SHOULD GRANT STOVE’S

PETITION FOR A WRIT OF CERTIORARI ..eeseesscsssses-. 5

iv

TABLE OF CONTENTS - Continued

Page

A. I, Catherine Stove, Pro se, sanctioned such a

departure by a lower court, requests this

court call for an exercise of the court's

supervisory power, and my Question

Presented. I feel should be question of

PUI BU cence ssisencnnsninniacenininntinensiinssiioe

B. The Third Circuit - saying on behalf of The

School District of Philadelphia - that there

was no abuse in their discretion, 10p Chapter

©, secmsamssininernnnennain soncvinnnepannnsisasisisansinanieniaveen

C. The Third Circuit had permission with

authority to abuse their discretion, and that

errors of law are present, conflicts with the

Eleventh Circuit decision .........ssscsssssseessseesees

Cia Ie Wcsiverinssiscsntnetbitintnnesebiaininiicnhicsbotishiiiniaeiainds 16

de eR EY oe wee ee ee od

Vv

TABLE OF AUTHORITIES

Page

Cases

McDonnell Douglas Corp. v. Green, 411 U.S. 792

SUPT isha nithtinbabaieiina aa

Gray v. York Newspapers, Inc., 957 F.2d 1070,1083

CN ETN Saison ala

Harley v. McCoach, 928 F Supp. 533, 539 (E.D. Pa

SPD sinswissasecttcincsivetbianbaiibtasiattliiatiisiiminhendi adie

Spence v. Maryland Casualty Co., 995 F.2d, 1147

Pe i sinsecsttaastiisiecciietaicinge aie a

Clowes v. Allegheny Valley Hospital, 991 F. 2d, 1159

iste Reisen Coe a

Bullock v. Children’s Hosp. (1996) ....cssssssssssssssseessseseccssss.

Hudson v. National Academy of Sciences, 816 F. Supp

FER TEPER ORI) 1ONG ccseosesissintiiicinsaniicuiiaies ec.

STATUTES

Section 503 of the Rehabilitation Act of 1973, as

amended, which prohibits discrimination.

vi

TABLE OF AUTHORITIES - Continued

STATUTES - continued

The Office of Federal Contract Compliance Programs

(OFCCP) insures that companies that do business with

the Government promote affirmative action and equal

employment opportunity on behalf of minorities.

CONSTITUTIONS

Title VII of the Civil Rights Act, 1964, 42 U.S.C. 2000 e-

2(a) states that it shall be an unlawful employment

practice for an employer (1) to fail or refuse to hire or to

discharge any individual or otherwise to discriminate

against any individual with respect to his compensation

terms, conditions, or privileges of employment because

of such individual’s race.

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Catherine Stove, Pro se respectfully

requests this Court to issue a writ of certiorari to review

the opinion of The United States Court of Appeals for

the Third Circuit, which affirmed, the final order,

judgment, in the School District of Philadelphia’s favor.

a

vv

OPINIONS BELOW

The Third Circuit Opinion herein is published in the

United States Volume 30, page 100 (Third Circuit) 2000.

Opinions of the District Court, 7-22-99, and, Judgment

and Order; opinion from Third Circuit Court of

Appeals, 7-18-2000.

e

JURISDICTION

On July 18, 20000 the Third Circuit issued its opinion

invokes the jurisdiction of this Court Pursuant to 28

U.S.C. 1254.

*

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Civil Rights Act of 1964, 42

U.S.C. 2000 e-2 may also apply because this petition

questions the decisions the 11 circuit have made.

STATEMENT OF THE CASE

A. Factual Background

The School District of Philadelphia is a public facility.

I Catherine Stove Pro se was employed by the School

District of Philadelphia from 9-3-86 until 3-26-98. I was

approved by PSER on 2-5-98 for retirement disability

because I was harassed, discriminated against, and

unequally treated by two supervisors.

3

B. Procedural Background

1. District Court Proceedings

On June 1, 1998, I Catherine Stove Pro se filed suit

against The School District of Philadelphia for unequal

treatment in employment. I sought all costs including

punitive damages.

4

On July 22, 1999, the District Court entered an

amended order in favor of the School District of

Philadelphia. On July 18, 2000 The Third Circuit Court

ordered judgment in favor of The School District of

Philadelphia.

5

REASONS THE COURT SHOULD GRANT

CATHERINE STOVE, PRO SE PETITION FORA

WRIT OF CERTIORARI

A. Third Circuit could be in conflict with other court

appeals involving abusing its discretion.

6

B. The Third Circuit agreed with the School District of

Philadelphia that I, Catherine Stove Pro se, did not

suffer an adverse employment, did not have a

constructive discharge, never advised the School

District that if changes were not made I would leave,

never asked for a transfer, never filed a grievance,

and never was suggested to retire, never was

threatened with a discharge. Why then was I

approved for a PSER retirement disability check by

the School District of Philadelphia on February 5,

1998?

7

The Third Circuit may lack jurisdiction, considering

all false, incorrect, errors. The Third Circuit decision

could have been erroneous according to 10p Chapter 6,

and also District Court may have abused their

discretion.

8

Has the District Court and Third Circuit violated the

Federal law?

Z 9

Should I, Catherine Stove Pro se, being a law-abiding

citizen, have been able to keep the confidence in the

justice system?

10

If there is not a law as yet in 11 Circuit concerning

Question 1 then maybe this court will create a law so

that issue won’t insult any other Pro se litigant.

=, ee eee ee

11

I hope that I will be equally treated in this court

because of the fact that the School District of

Philadelphia is a local, public agency.

12

Magistrate Honorable Judge M. Faith Angell made a

false statement in a document concerning my

deposition dated 2-5-99.

SPREE SE AEA NAC RD pe a aie GF eS WPAN thee eal ENR ol,

a ae

13

Third Circuit Court may have left open a question

concerning the Supreme Court powers.

14

Can it be an Equal Protection Claus to help

discrimination?

15

Have my civil rights been violated by the School

District of Philadelphia, District Court and also the

Third Circuit?

16

Shouldn’t every employee be treated equally by his

or her employer?

17

Catherine Stove

SS# 201-36-8634

Custodial Assistant

Fitzsimons School #411

Ms. Stove,

Today, while I was in a meeting with my supervisor, Mr.

Copies, I received a phone call from the nurse. She stated

that her room wasn’t cleaned and it hadn’t been touched in a

long time. She also told me that she often has to disinfect

her office. Frankly she is tired of her office being dirty.

Mr. Copes and I went up to the nurse’s office and you

could tell it wasn’t cleaned. Then we walked to your station

and found dust on top of lockers, paper on the hallway floor,

water fountain not cleaned, stairways dusty, and the main

office dirty.

I had to stop Ms. Massey (custodial assistant) from

cleaning her gym to clean up the nurse’s office. I cannot

keep pulling people from their work to cover yours. - This

school is under-staffed and by not doing your job it is

beginning to drain our custodial department. I feel we have

to have a meeting or hearing to resolve this problem,

because we can’t be headed in this direction much longer.

s/

Frank Malandra

* Building Engineer

GRIEVANCE FORM:

Local 1201 International Brotherhood of Fireman and Oilers

~ Date Submitted: 1/31/97

Name of Grievant: __Catherine Stove _

Position: Custodial Assistant

School or Department: FMS

Principal /Supervisor: Mr. Copes

SECTION FOR GRIEVANT: BRIEFLY STATE THE

PROBLEM INDICATING PROVISIONS OF AGREEMENT,

POLICY OR PRACTICE INVOLVED.

October 1996, I started work at Fitsimons. I come to work

every day, and do my job. Mr. Copies, started harassing

me, in January 1997 about my work. k Due to people being

out, I had to do their job, and my job, and did not get any

assistance from the Building Engineer. I feel that it’s

unfair for me to be held accountable for the buildings

condition.

WHEN DID GRIEVANT HAVE ORAL DISCUSSION WITH

PRINCIPAL OR SUPERVISOR? .

WHAT REMEDY IS SOUGHT?

To be transferred from District 4 and to have Bill Copes to

stop harassing me.

|

DATE GRIEVANT’S SIGNATURE

SECTION FOR PRINCIPAL OR SUPERVISOR

li

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CATHERINE STOVE ; CIVIL ACTION

v.

PHILADELPHIA SCHOOL :

DISTRICT : NO. 98-2607

ORDER

AND NOW, this 8th day of January 1999, after holding

a Rule 16 initial pretrial conference in the above-captioned

matter, it is hereby ORDERED that:

1. By January 18, 1999, the parties shall exchange self-

executing disclosures. In order to meet this requirement,

Plaintiff must give to Counsel for the School District: (1) a

copy of all pieces of paper which she believes are important

to her claims and (2) a list of persons, with their names and

addresses (if known to Plaintiff), who have knowledge of

what happened to her while she was working for the School

2. After the parties have exchanged documents and lists

of witnesses, the School District intends to ask Plaintiff to

testify under oath, in a recorded deposition, about what she

believes happened to her which led her to file this lawsuit.

The School District will arrange to have the deposition

recorded. It will be held in my courtroom, Courtroom 3-H,

3rd Floor, U.S. Courthouse, 601 Market St., Philadelphia, PA

ili

19106. Plaintiff and Counsel for the School District are to

agree upon the date and time.

3.After the Plaintiff's deposition has been completed, I

will speak to the parties about the next step in this lawsuit.

It is my understanding that the School District intends to

seek a ruling on whether Plaintiff meets the legal

requirements to continue this action.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CATHERINE STOVE ; CIVIL ACTION

Plaintiff,

v.

SCHOOL DISTRICT OF PHILA.

Defendant.

ORDER

AND NOW on this 22d day of July, 1999, upon

consideration of the motion of defendant School District of

Philadelphia for summary judgment (Document No. 17) and

the response of the plaintiff Catherine Stove thereto

(Document No. 18), and the supporting memoranda,

pleadings, discovery exhibits, and affidavits submitted by

the parties, having found that there is no genuine issue of

material fact, and that the defendant is entitled to judgment

as a matter of law, and for the reasons set for in the

foregoing memoranda, it is hereby ordered that the motion

of the School District of Philadelphia is GRANTED, and

judgment is entered in favor of the defendant against the

plaintiff.

This is a final Order.

s/

LOWELL A. REED, JR., S.J.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1639

CATHERINE STOVE,

Appellant

Vv.

PHILADELPHIA SCHOOL DISTRICT

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 98-02607)

SUR PETITION FOR REHEARING

BEFORE ORIGINAL PANEL

BEFORE: GREENBERG, NYGAARD, and BARRY,

Circuit Judges

The petition for panel rehearing filed by appellant Catherine

Stove in the above entitled case having been submitted to

the judges who participate din the decision of this court, and

no judge who concurred in the decision having asked for

rehearing, the petition for rehearing isdenied. _

BY THE COURT:

s/

DATED: July 18, 2000

vi

U. S. COURT OF APPEALS FOR THE THIRD CIRCUIT

NO. 99-1639

CATHERINE STOVE,

Appellant,

Vv

PHILADELPHIA SCHOOL DISTRICT

On Appeal From the United States District Court

For the Easters District of Pennsylvania

(D.C. Civ. No. 98-cv-02607)

District Judge: Honorable Lowell A. Reed, Jr.

Submitted Under Third Circuit LAR 34.1(a) .

May 26, 2000

Before: GREENEBERG, NYGAARD, AND BARRY, CIRCUIT

TUDGES

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the Eastern District of -

Pennsylvania. On consideration whereof, it is now here :

ORDERED AND ADJUDGED by this Court that the

judgment of the District Court entered on July 22, 1999 be,

and the same is, hereby affirmed.

Costs taxed against the appellant. All of the above in

accordance with the opinion of this Court.

ATTEST:

s/

Acting Clerk

DATED: May 26, 2000

Vil

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1639

CATHERINE STOVE

Appellant

Vv.

PHILADELPHIA SCHOOL DISTRICT

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 98-02607)

SUR PETITION FOR REHEARING

BEFORE ORIGINAL PANEL

BEFORE: GREENBERG, NYGAARD, and BARRY,

Circuit Jud

The petition for panel rehearing filed by appellant Catherine

Stove in the above entitled case having been submitted to

the judges who participated in the decision of this court, and

no-judge who concurred in the decision having asked for

rehearing, the petition for rehearing is denied.

BY THE COURT:

s/

Vill

employer suggested that she resign or retire, that she was

demoted or had her pay reduced, or that she was transferred

to a less desirable position or had her responsibilities altered

in any way. See Clowes, 991 F.2d at 1161. Furthermore, like

the plaintiff in Clowes, Stove never requested a transfer to

another position, never advised the School District that she

would have to leave if changes were not made, and never

filed a grievance. Id. Moreover, like the plaintiff in Clowes,

Stove Relies too heavily on the impact that the events in

question had on her. As the Court of Appeals in Clowes

noted, the law does not permit the subjective perceptions of

the plaintiff-employee to govern a claim of constructive

discharge. See id. at 1161-1162. Here, as in Clowes, the fact

that Stove suffered depression and anxiety is not sufficient

to establish a claim of constructive discharge. The plaintiff,

therefore, cannot establish that she was constructively

discharged. Thus, Stove fails to establish that she suffered

an adverse employment action as a result of the alleged

discriminatory treatment by Copes.

C. JOB PERFORMANCE

Stove fails to establish that she performed her job

satisfactorily. She does not deny that the condition of her

work station failed to meet building standards. Nor does

she offer any evidence to the contrary. In addition, Stove

admitted that she had difficulty arriving at work on time,

and there were times when she left work without having

fulfilled her responsibilities (Stove Dep. at 25, 31).

Moreover, when confronted about her job performance,

Stove began screaming and tore up the disciplinary memo

given to her by Malandra. (Stove Dep. at 39-40). Thus,

Stove cannot- establish that she performed her job

satisfactorily.

ix

OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

21400 United States Courthouse

Philadelphia, PA 19106-1790

July 26, 2000

Mr. Michael E. Kunz

Eastern District of Pennsylvania

US. District Court

2609 U.S. Courthouse

601 Market Street

Philadelphia, PA 19106

RE: Docket No. 99-1639

Stove vs. Phila Sch Dist

D. C. CIV. No. 98-cv-02607

Dear Mr. Kunz: “

Enclosed is a certified copy of the judgment in the above-

entitled case(s), together with copy of the opinion. The

certified judgment is issued in lieu of a formal mandate and

is to be treated in all respects as a mandate.

(x) We return herewith the certified record in the case(s).

() We release herewith the certified list in lieu of the record.

Kindly acknowledge receipt for same on the enclosed copy

of this letter.

Counsel are advised of the issuance of the mandate by copy

of this letter. A copy of the certified judgment is also

enclosed showing costs taxed, if any.

Very truly yours,

MARCIA M. WALDRON

Acting Clerk

s/Debra L. Ruh

By: DebraL.Ruh

Case Manager

COMMONWEALTH OF PENNSYLVANIA PUBLIC

SCHOOL EMPLOYES’ RETIREMENT SYSTEM

February 5, 1998

Catherine E. Stove S.S.# 201-36-8634

2415 N. Natrona St.

Philadelphia, PA 19132-3328

Dear Ms. Stove:

Your disability benefit was approved for one year by the

Public School Employes’ Retirement System (PSERS)

medical examiners. An “application to Re-apply for

Renewal of Disability Retirement” will be sent to you

approximately three months prior to your renewal date to be

completed by your physician and returned to PSERS at the

above address.

You may not be employed in a public school either in or .

outside of Pennsylvania while receiving a disability benefit

from PSERS. You may be employed elsewhere, but earnings

limitations do apply until you reach age 62.

At the end of each year, you will receive an “Annual

Earnings of a Disability Annuitant” form. On this form you

will be required to report earned income (wages received)

for the calendar year. Income from disability benefits, social

security benefits, worker's compensation investment

income, or dividends are not defined as “earned income”

and are not to be listed on this form. When you reach age

62, the earnings form will no longer be required.

If you have any questions or need further assistance,

please contact the Member Service Center at (717) 787-8540.

Sincerely,

s/

Eleanor D. Klein

Appeal and Disability Center

Xl

COMMONWEALTH OF PENNSYLVANIA

PUBLIC SCHOOL EMPLOYES RETIREMENT SYSTEM

BOX 125

HARRISBURG, PA 17108

FEB 12, 1998

CATHERINE E STOVE SS 201-36-8634

2415 N NATRONA ST

PHILADELPHIA PA 19132-3328

RETIREMENT

YOUR APPLICATION FOR RETIREMENT HAS BEEN

RECEIVED IN OUR OFFICE.

IN APPROXIMATELY 45 DAYS WE WILL REQUEST A

CHECK FOR YOU WHICH WILL COVER YOUR INITIAL

RETIREMENT PAYMENT. AT THAT TIME YOU WILL

ALSO BE ADDED TO THE PAYROLL AND WILL RECEIVE

A LETTER EXPLAINING YOUR RETIREMENT BENEFITS.

IF WE CAN BE OF FURTHER ASSISTANCE, PLEASE

CONTACT US AT AREA CODE 717-787-8540.

CENTRAL PROCESSING CENTER

COMMONWEALTH OF PENNSYLVANIA

PUBLIC SCHOOL EMPLOYES’ RETIREMENT SYSTEM

MARCH 30, 1998

CATHERINE E. STOVE SS NO 201-36-8634

7632 B. Williams Way RET TYPE DISABILITY

Elkins Park, PA 19027

ESTIMATED BENEFIT

Your retirement has been calculated based on your option

selection and the latest salaries and service on file in PSERS.

Monthly Option -MAXIMUM

Beginning 05/29/1998, your estimated monthly benefit will

be $602.98 ($630.68 less $27.70 tax deduction).

In 7 to 10 business days a payment of $ 663.27 (outlined

below) will be sent to you.

+$ 693.74 INITIAL MONTHLY PAYMENT (3/28/1998)

- 30.47 TAX DEDUCTED FROM INITIAL MONTHLY

PAYMENT

$663.27 NET CHECK

44 EREEE EEE EEE EE EEA AEE E EERE EERE EEE EEE EERE EEE EE EEE EEE

IMPORTANT........ IF YOU RECEIVED AN ESTIMATE

FROM YOUR PSERS REPRESENTATIVE, YOUR SALARIES

AND SERVICE WERE PROJECTED AND THE ABOVE

AMOUNTS MAY DIFFER FROM THE ESTIMATE.

YOUR RETIREMENT WILL BE RECOMPUTED WITH THE

FINAL REPORTS INDICATING ALL SALARIES AND

SERVICE ARE RECEIVED IN PSERS.

PPPeereeeerrrrrrrr rT TC Cr rl CTI LT tt to ia tatetletetateteleieteteleteteieieieiniaieill

Xill

COMMONWEALTH OF PENNSYLVANIA

PUBLIC SCHOOL EMPLOYES’ RETIREMENT SYSTEM

June 1, 1999

Catherine E. Stove

7632B Williams Way

Elkins Park, PA 19027-1013

S.S.# 201-36-8634

Dear Ms. Stove:

Enclosed is an “Application to Re-Apply for Renewal of

Disability Retirement” to be completed by your physician

and returned to the Public- School Employes’ Retirement

System (PSERS) by the first day of September 1999.

If the completed renewal application is not received by this

date, your disability benefit will be suspended until] the

current medical data is received in this office and a

determination is made by the PSERS medical examiners

regarding the continuation of your benefit.

If you have any questions, please contact the Member

Service Center by calling toll-free 1-888-773-7748 (1-888-

PSERS4U); Harrisburg local callers, please use 787-8540. If

you prefer, you may reach PSERS by FAX at 717-722-3860.

For your convenience, the Member Service Center is staffed

each business day from 7:00 a.m. to 6:00 p.m.

Disability Section

Enclosure