Petition for Writ of Certiorari — Connor v. Henderson

“~ \

Fn of 7e Court, U.S,

LED

00 562 AUG 7-200

No.

ientunti OFFICE OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

CHARLES R. CONNOR,

Petitiener

Vv.

WILLIAM HENDERSON, POSTMASTER GENERAL

UNITED STATES POSTAL SERVICE

Respondent

On the Petition For Writ Of Certioran

To The Fifth Circuit Court Of Appeals

Charlie R. Connor, pro se

950 East 8th Street

Ferris, Texas 75125-2810

972-842-2422

QUESTIONS PRESENTED FOR REVIEW

- Whether a six-year interval between the completion of a Title

VII case in a United States District Court and the rendering of

the Final Decision by the Presiding Judge constitutes

impermissible delay-thereby entitling Plaintiff to reversal or

new trial.

- Whether the Plaintiff-Petitioner was entitled to have his

question answered as to what impact his filing of a Complaint

of Judicial Misconduct or Disability against the presiding

judge had upon the timing and manner in which the decision

was rendered.

Whether the Plaintiff-Petitioner was entitled to an analysis and

answer to the factual question of whether. the requisite

credibility of approximately twenty witnesses, including

Plaintiff-Petitioner could be properly ascertained after a lapse

of almost six-years from the dates of their testimony and the

date the final decision was rendered.

_

Whether the fact that Agericy Officials repeatedly took

unwarranted and unduly harsh disciplinary actions against

Plaintiff-Petitioner should have been given weight in

determining whether discrimination had in fact occurred.

Whether the fact that Postal Service Officials violated

Plaintiffs rights under the Privacy Act and numerous of his

other civil and constitutional rights constitutes grounds for _

reversal or new trial.

. Whether Postal Service Officials were required to obey its own

Policies, Rules, Regulations and the Laws and Statutes of the .

United States.

Whether District Court committed reversible error when it

failed to grant Plaintiff injunctive Relief that was requested

early on in this case.

ii

8. Whether District Court committed clear, and therefore

reversible error when it failed to exercise its Court of Equity

powers to make awards to Plaintiff in numerous proven

instances of wrongful treatment by Agency Officials.

9. Whether District Court committed reversible error when it

failed to apply the Unclean Hands Doctrine in determining the

credibility of the testimony of Agency Officials and its star

witness-Dr. Skinner.

10. Whether District Court committed reversible error in allowing

Postal Service Officials and its agents to suborn and commit

perjury with impunity throughout the proceedings.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED—

TABLE OF AUTHORITIES-

OPINIONS BELOW.

JURISDICTION:

CONSTITUTIONAL PROVISIONS AND STAUTES—-

STATEMENT OF THE CASE

ARGUMENT

CONCLUSION

Pages

tii

17

TABLE OF AUTHORITIES

Pages

Cases

Federal Deposit Ins. Corp. v. Sicoco, C.A.N.Y., 1949

174 F. Ed. 360 12

Gaddy v. Abex Corp., C.A. 7(IIL) 1989,

884 F.2d 312 12

In re Potter Instrument Co., Inc. Bkptcy. N.Y. 1981, — |

15 B.R. 202 12

Reddit v. Mississippi Extended Care Center, Inc.,

718 F.2d 818 (5™ Cir. 1983) 11

Smith v. Texas Dept. of Water Resources, 99 F.2d

181 (5" Cir. 1983) 11

State of Illinois Dept. Public Aid v. Heckles,

616 F. Supp. 620, Affirmed 808 F. 2d 571 (D.C.

Ill. 1985) 16

Statutes

United States Supreme Court Rule No. 10---------- 7

Federal Rules of Civil Procedures No. 1------------ 8

Federal Rules of Civil Procedures No. 52(a)------- 10

Federal Rules of Civil Procedures, No. 35--------- 14

Vv

Federal Rules of Civil Procedures, No. 63 11

Title 5 US.C. § 552(a)iX1)- oon. £3

Constitution |

Fourth Amendment of the United States Constitution — 1

Other(s) =

Clean Hands Doctrine, Black’s Law Dictionary (7 Ed.)— 16

1

OPINIONS BELOW

The OPINION of the United States Court of Appeals and

its ORDER denying Petition For Rehearing are reproduced in the

Appendix at App. 1 and App. 5 respectively.

The United States District Court's Findings Of Fact And

Conclusions Of Law and its Final Judgement and Order are

reproduced in the Appendix at App. 1 and App. 6 respectively.

JURISDICTION

This Petition For Writ Of Certiorari is submitted in

accordance with Rule 10 of Part I of Rules of The Supreme

Court Of the United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U. S. Constitution, Amendment IV. The right of the people

to be secure in their persons, houses, papers and effects, against

unreasonable searches and scizures shall not be violated, and no

' ‘Warranties shall issue, but upon probable cause, supported by

Oath or Affirmation, and particularly describing the place to be

Searched, and the persons or things to be seized.

The various Statutes applicable to the Petition are listed at

page iv of this Petition.

tv

STATEMENT OF THE CASE

The history of this case is long, convoluted and

torturous. It was initially filed on March 13, 1985. Its genesis

dates back to 1979 when Charlie R. Connor, then having

served as a highly successful Level 16 Station Manager started

applying for promotion to Level 18 Station Manager job

vacancies at stations located in the Dallas Post Office

Management Sectional Center. Each time for various alleged

reasons he was not promoted. In October 1979 two Level 18

vacancies were posted. Connor submitted his application in

accordance with the accompanying instructions and standard

procedures.

Notwithstanding the fact that Connor was _ highly

recommended by his immediate superior, and notwithstanding

the fact that the Review Board, whose duty was to screen the

applications, determined that he was highly qualified and

referred him to the selecting officials, along with other

applicants also considered to be qualified, he was not

promoted to either of the level 18 jobs.

After being informed that he did not receive a promotion,

Connor requested and was granted a meeting with Glen Smith

and Charles Flagg the Officials who made the decisions as to

who received the two promotions. During the mecting the

only reason given Connor by Smith and Flagg as to why he

was not promoted was that he did not know what his Station's

MPDs (Minutes Per Delivery) were at the time.

Viewing Flagg’s and Smith's explanation as being

pretexual, Connor reminded them that all of their previous

3

promotees to level 18 positions had been Level 17

Superintendents of Station Operations and then Level 16

Station managers in order of length of time they had served

in those positions. Connor also reminded them that he was

the only exception to that clearly established and enunciated

policy.

Having received no hope of redress during his mecting

with Flagg and Smith, Connor shortly thereafter contacted

the Office of Postal Service EEO Counselors. On April 3,

1980 Connor filed a formal discrimination complaint

essentially charging the Dallas Post Office with

discriminatory promotional practices against him in

particular and Blacks generally as it related to Station

Manager jobs.

A hearing on Connor's discrimination complaint was

held before an EEOC Attorney-Examiner on May 21-22,

1982. The EEOC Attorney-Examiner ruled against Connor

and the Postal Service issued its final decision on October 15,

1982. Connor made a timely appeal of that decision to the

EEOC Board of Review and Appeals. That appeal was still

pending before the EEOC Board when Connor filed his

original Title VII Complaint No. 3-85-0517 in Federal

District Court on March 13, 1985.

The record clearly shows that up until the time Connor

filed his discrimination complaint, he had compiled an

impeccable record during his twenty years of Postal Service

employment. Nevertheless; shortly afterwards his status

declining. Not long thereafter his longtime impeccable

4.

In order to correctly delineate this case it is necessary to

point out that it followed a two-track course of litigation.

One course was being adjudicated in U.S. District Court in

response to Connor's Title VII case. The other course was

being pursued in various administrative venues.

__ Listed below and in chronological order are the major

pleadings submitted during the 14 years that Connor's initial

Title VII Complaint was pending in District Court through

the appeal to and issuance of the Final Judgment by the Fifth

Circuit Court of Appeal on May 9, 2000. During the time

Connor's case No.3:85-CV-517-T, (R.1-6)', was pending five

amended complaints as well as a second civil action that was

consolidated with the first one was filed

The Court entered the interlocutory orders dismissing

Certain claims and a final judgment on all remaining claims

on April 28, 1999 after a bench trial that ended in May, 1993.

R88, 224, 501, 845, 1322.

First, on May 13, 1985 Connor, along with two other

plaintiffs, - filed a first Amended Complaint-Class Action,

alleging classwide racial discrimination agaimst Black

Supervisors by the Dallas Post Office. R7-16.

On March 31, 1987, the Court issued an Order granting

summary judgment in part and granting leave to amend in

Part, in response to previous submitted pleadings. R-224-26.

' (References to the thirteen-volume record on Appeal in Case No. 3:8-

CV-517-are designated by "R” followed by the pertinent page number(s)

(References to the one volume record of the second case (No. 3-90-3844-6

are ¢ ssignated ("2R").

S

Connor filed a Second-Amended Complaint in May 1987

and a Third Amended Complaint in February 1988. R. 227-31,

248-53. In December 1988 Connor filed a Fourth oman

Complaint.

On December 18, 1990, Connor filed another case against

the Postal Service. 2-R1. This action, Case No. 3-90-3844-G,

sought the District Court's review of a decision of the Merit

Systems Protection Board (MSPB), which upheld his June

1990 removal from the Postal Service. tt

Pursuant to Defendant's motion, on February 26, 1991, the

District Court consolidated the second civil action with action

No. 3-85-0517-T. R. 1085-89; 2-R21. Connor's Fifth

‘ Amended Complaint was filed on December 23, 1991. R.1196-

1204. The District Court conducted a trial of Connor's civil

actions on April 19-23, and May 3, 1993.

In February and September 1997 Connor filed requests

that a status conference be held to determine whether

additional filings by the parties might aid he Court in rendering

a decision. R.11314-17. In February 1998 Connor filed a

—=_. eee

the case. R.1318.

6

The Fifth Circuit Court concluded the Compliant against Judge

Maloney was now moot since the decision had now been

issued. On May 19, 1999 Connor filed a Petition For review

of the Order concluding that his Complaint was moot.

Connor's petition was premised on the contention that the

timing and manner in which the Final Decision was issued

made it apparent that the decision was used as an instrument of

retaliation in response to Connor's complaint.

In an Order dated September 15, 1999 an Appellant Review

Panel of the Judicial Council of the Fifth Circuit Affirmed the

previous Order concluding the complaint against Judge

Maloney. ,

In a letter dated June 25, 1999 Connor gave proper and

timely notice of Appeal of the District Court Order to the Fifth

Circuit Court.

On September 29, 1999 Connor’s appeal brief was filed.

On November 22, 1999 Appellee's brief was filed. On

December 9, 1999 Appellant's reply brief was filed. On

February 21, 2000 the Fifth Circuit Court issued its Opinion

and Order affirming the judgment of the District Court.

On April 5, 2000 Connor filed a Petition For Rehearing.

On May 9, 2000 Connor's Petition For Rehearing was denied.

ARGUMENT

The Petition For Writ Of Certiorari is based on ten

questions presented this Court for review. However, the .

gravamen of this case-the root-cause from which those ten

questions are derived is the six-year interval between the May

3, 1993 trial ending and the April 28, 1999 date that the

District Court issued its. Decision.

7

It is apparent that such unexplained delay was so at variance

with the required standards of judicial conduct and competence as

to constitute grounds for reversal. It just is not humanly possible

that the same Court which could not render a decision promptly

after the trial ended-while testimony and other trial evidence were

fresh in mind-could render one so quickly following the filing of

Connor's judicial misconduct complaint. It should especially be

considered that during the six-year interval, Petitioner submitted

three pleadings to the Court in an effort to elicit a Decision. Those

pleadings were ignored, as were numerous inquiries by phone.

Had the District Court rendered its Decision in a reasonable

period of time, then Petitioner's Complaint of Judicial Misconduct

or Disability would not have been filed; and thereby the hasty and

erroneous Court Decision and the concomitant questions listed in

this Petition would not have had to be raised. .

Rule 10 of the Supreme Court Rules states in pertinent part as

follows: “Review on a Writ of Certiorari is not a matter of right,

but of judicial discretion. A petition for Writ of Certiorari will be

granted only for compelling reasons. The fol‘owing, although

neither controlling nor fully measuring the .Court's discretion,

indicate the character of the reasons the Court considers: (a) A.

United States Court of Appeals has entered a decision in conflict

with the decision of another United States court of appeals on the

same important matter, has decided by a state court of last resort;

or has so far departed from the accepted and unusual course of

judicial proceeding, or sanctioned such a departure by a lower

court, as to call for an exercise of this Court's supervisory power."

Indeed the District Court and the Appeals Court in this

instance have departed from the required standards of judicial

conchict as to make necessary the exercise of this Court's

supervisory powers. Pro se Petitioner mostly in layman terms shall

set forth the most egregious acts of judicial misconduct committed

against petitioner by the District Court and concurred by the

certiorari should be granted. Therefore, Petitioner shall set forth

his argument for certiorari in the same sequence as those Questions

Presented For Review.

1. The questions pertaining to the six-year interval between the

end of Connor’s trial and the rendering of the decision were never

answered to by cither the District Court or Appeals Court. Connor

arduous odyssey through District Court was embodied in the

Courts long delayed decision dated April 28, 1999.

The Federal Rules of Civil Procedures states thusly: Rule L

Scope of Rules-these rules govern the procedure in the United

States District Courts in all suits of a civil nature whether

cognizable as cases at law or in equity or in admiralty, with the

exceptions stated in Rule 81. They shall be construed to secure the

just, speedy, and inexpensive determination of every action.

It is highly apparent that allowing Connor's case to languish in

District Court for cight years before holding a trial and then

waiting six-years after the conclusion of the trial to render a

decision constitute a serious violation of Rule I. Petitioner

implores this Court to grant certiorari based on this violation alone,

and thereby answering the question as to what constitutes

reasonable and permissible delay.

2. It is highly apparent that the filing of a Judicial Complaint of

Misconduct or Disability was the precipitating factor in ending the

six-year delay in rendering a decision after the completion of the

trial on Connor’s case. It is also highly apparent that the District

Court’s decision was useif as an instrument of reprisal against

Connor for having filed the Complaint. This is highly inferred by

the tone and timing of the Court's ruling.

acknowledge or respond in any way to cither of these

Notwithstanding the six-year delay and the indications by

Court employees that the Judge was on numerous occasions

working very hard on Connor's case, the Decision shows

absolutely no evidence that it had been arrived at after being

subjected to the required analytic and deliberative process. In

fact a comparison between th: Court's Findings of Fact and

Conclusions of Law. (R.1322) and the Proposed Findings of

Fact and Conclusions of Law submitted by the Defendant

(R.1275-45) shows the former to be almost an exact replica of

the latter.

inescapable inference is that the District Court totally

ignored Connor's case for six-years and upon being notified

that a Complaint had been filed-hastily and vindictively

retrieved Defendant's proposed Findings Of Fact and

Conclusions of Law and used them as a basis for formulating

his ruling against Connor.

10

Both the District Court and the Appeals Court failed to

address the issues contained in Questions Presented For

Review No. 2. Surely this court will consider the apparent

misconduct indigenous of this question to be so serious as to

justify granting certiorari on this question alone.

3. Ina Title VII case proceeding; the Presiding Judge is both

the trier of fact and law. As trier of fact the credibility of

witnesses is a key factor. In credibility determinations

behavior traits such as the degree of fugitiveness, eye contact,

voice inflection, and body language should be closely observed

and carefully evaluated.

Rule 52(a) of the Rules of Civil Procedure states in

pertinent part: Findings of Fact, whether based on oral or

documentary evidence, shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity of

the trial court to judge the credibility of the witnesses." It just

is not humanly possible to judge the credibility of each of the

twenty or so witnesses that testified during Connor's trial after

a six-year interval. The truth of the preceding statement is so

apparent as to obviate the need of having to document it with

case law or legal precedents. However, Petitioner does remind

the Court that in all jury trials the deliberative process starts

shortly after the trial ends. The jury is not allowed to go on

Se SO Es ES DOR ey Oey

at hand before reaching a verdict.

It is clear that the intent of Rule 52(a) is to make sure that

all evidence is carefully examined and the credibility of all

witnesses is determined before findings of fact are arrived at.

It is clear that the District Court could not have reached the

threshold requirements of Rule 52(a) due to the six-year lapse

of time between trial ending and the Decision.

1]

The Fifth Circuit Court has consistently made rulings that

stress the importance of adhering to Rule 52(a) in matters relating

to pretext, oral and documentary evidence, and credibility of all

witnesses. In Reddit v. Mississippi Extended Care Center, Inc. 718

F.2d 181 (1983), the Court ruled in pertinent part as follows:

"(1) District Court's conclusionary findings as to whether black

and white employees of nursing home were treated differently was

inadequate to support dismissal, particularly in view of substantial

record evidence on issue of whether assertedly legitimate

nondiscriminatory reasons proffered by employer were, in fact,

mere pretext. In Smith v. Texas Dept. Of Water Resources, 99

F.2d 1026 (5*. Cir. 1986). The Court stated as follows: "After trial

to the court, judgment was rendered for the Defendants based on

written Findings of Fact and Conclusions of Law. Because the

findings lack the required specificity to permit effective Appellant

Review, we vacate the judgment and remand for further

proceedings." Also, Federal Rule of Civil Procedure 52(a) requires

the trial court to "find the facts specially." The findings must be

explicit enough to allow for Appellant Review." "If the trial court

believes the employer's explanation of its motivation, the courts

may not merely state, the conclusory terms, that the plaintiff has

failed to prove the employer's suggested reason to be a pretext for

invidious discrimination or the that there is no evidence of

discriminatory treatment. It must at least refer to the evidence

tending to prove and disprove the merits of the proffered

explanation and state why the court reached the conclusion that the

explanation had not been discredited."

Because it deals with testimony and other evidence Rule 63 of

Federal Rules of Civil Procedure is also applicable to Petitioner's

case and is stated in pertinent part as follows: Rule 63. Inability of

a_Judge to proceed: In a hearing or trial without a jury, the

successor judge shall at the request of a party recall any witness

whose testimony is material and disputed and who is available to

testify again without undue burden. The successor judge may also

recall any other witness.

12

’ The six-year interval between trial ending and decision

rendering constitutes substantive evidence that the District Court.

either because of disability or misconduct, demonstrated an

inability to proceed toward the completion of Connor's case. Such

inability is grounds for reversal based on the clearly erroneous _

criterion.

Although Appellant cannot cite a Rule 63 case that deals

specifically with six-year time lapse unique to Connor's case, there

are numerous cases that clearly weigh against delays and any other

practice inimical to fair and expeditious rendering of all decisions.

Some of those cases in summarized form are cited below:

"District Judge, who, after abrupt retirement of trial judge,

received sex discrimination case after trial and upon plaintiffs

motion to amend findings of fact or for new trial and upon

defendant's motion for sanctions against plaintiff and her attorneys,

did not abuse his discretion in granting motion for new trial;

District Judge was unable to observe parties and their counsel at

trial, and noted that findings of fact were inconsistent and trial

judge had disclosed conflict of interest." Gaddy v, Abex Corp..

C.A. 7(TlL) 1989, 884 F.2d 312, and "Where testimony of

defendant and his witness was sufficient to support finding for

defendant, but facts raised a suspicion as to verity of their

testimony, and Judge to whom case was referred after death of

Judge who heard testimony, and who made finding in favor of

defendant did not see witnesses, court of appeals would reverse

finding and award a new trial before Judge who could decide after

seeing witnesses," Federal Deposit Ins, Corp, v, Sicoco, C.A.N.Y.,

1949, 174 Fed. 360, and "where first bankruptcy judge never -

rendered a decision on fraud count prior to judge’s death, primary

issues reserved were the defendant's state of mind and the

sufficiency the evidence presented to establish that fact and there

was no indication as to first judge's evaluation of credibility of

certain witnesses and neither party requested second judge to

decide the reserved issue, new trial was required. “In re Potter

Instrument Co, Inc., Bkricy. N.Y. 1981, 15 B.R. 202.

13

In view of all the foregoing, it is apparent that the issues

raised in Petitioner’s Question No. 3 in and of themselves justify

granting of certiorari by this Court.

4. Case documents and trial testimony contain unrebutted

evidence that numerous unwarranted and unduly harsh

disciplinary actions were taken against Petitioner after he filed

his 1980 Discrimination Complaint. Yet no weight of evidence

was given these disciplinary actions as reprisal factors in

determining if discrimination had in fact occurred. Hence, the

question of whether acts of reprisal taken against an employee

who engages in protected activities was left unanswered by both

District and Appeals Courts.

Failure to address the reprisal issue by the lower courts

constitutes an act that has so far departed from the accepted and

usual course of judicial proceedings as stated under Rule No. 10

as to justify the granting of certiorari by this Court.

5. Trial testimony contains- numerous instances of Connor's

rights under the Privacy Act of 1974 being violated by Postal

Service Officials. | These violations are corroborated by

numerous case documents. Testimony relating to instances of

violating Connor's rights under the Privacy Act of 1974 is

typified by the trial testimony of Postal Official Primo Marques.

Tr. V35-103. The trial testimony of Fostal Service Official John

Vallie further substantiates Connor's contentions that his privacy

rights wee violated. Tr. I 187 thru Tr. IV 40.

The Privacy Act of 1974. Title 5 U.S.C. §552(a)iX(1) states

as follows: Criminal Penalties - Any official or employee of an

agency who by virtue of his employment or official position, has

possession of, or access to, agency records which contain

individually identifiable information the discl of which is

14

prohibited by this section or by rules or regulations established

thereunder, and who knowing that disclosure of the specific

material is so prohibited, willfully discloses the material in any

manner to any person or agency not entitled to receive it, shall be

guilty of a misdemeanor and fined not more than $5000.

Inasmuch as the violation of the Privacy Act of 1974 is a

criminal offense and inasmuch as this case contains evidence

that Postal Service Officials violated Petitioner's privacy and

other rights, and inasmuch as the lower Court's failed to take

proper cognizance of such violations, it is hoped that this Court

6. The answer to the question as to whether Postal Service

Officials are required to obey its own policies, rules, regulations

and the laws and statutes of the United States is so obviously yes

as to put petitioner at risk of insulting this Court by asking this

question. Yet the District Court and the Appeals Court both

failed to answer or even address this question when asked to do

so by Petitioner.

The Record shows that throughout its dealings with Connor

the Postal Service repeatedly violated its own policies,

procedures, rules and regulations as set forth in its E & LR

Manual, P-11 Handbook and other Manuals. For example,

Postal Service regulations clearly require the mandatory use of

PS-Form 2485 whenever a fitness for duty cxamination is

conducted on an employee. Additionally, Federal Rule of Civil

Procedure No. 35 required that a Court order be obtained before

forcing Connor to undergo examination. Pertinent parts of Rule

No. 35 are as follows: (a) Order for Examination: When the

mental or physical condition (including he blood group) of a

party, or of a person in the custody or under the legal control of a

party, is in controversy, the court in which the action is pending

may order the party to submit a physical or mental examination

15

by a physician or to produce for examination the person in the

party's custody or legal control. Connor’s case was pending in

District Court each time he was illegally forced to undergo a

fitness for duty examination.

Given the immediate foregoing facts it is imperative that this

Court grants Petitioner's request for certiorari regarding this

question.

7. The question as to whether District Court committed

reversible error when it failed to grant plaintiff the injunctive

relief that was requested carly on in this case is answered by the

following:

Since the commencing of this case on March 13, 1985 until

its trial in April 1993 Petitioner filed a total of six complaints

(original and five amended). Each complaint contained the

following:

1."Grant plaintiff a permanent injunction enjoining defendant,

its agents, successors, employees, attorneys and all others acting

in concert with defendant or at the direction of defendant from

continuing or maintaining any policy, practice, conspiracy,

custom or usage of denying, abridging, withholding,

conditioning, or otherwise interfering with the right of plaintiff

to enjoy equal opportunity in employment, and all other rights to

which he is entitled". During the more than fourteen years this

case was pending before the Court is totally ignored this plea.

By doing so Connor suffered almost incalculable losses and

damages to his reputation, career, finances, and even his health.

All the Court had to do was put Postal Service Officials on

Notice that abuses perpetrated and propagated against Connor,

no matter under what guise or pretext, would not be tolerated by

simply issuing an injunction. The District Court's failure to do

16

so along with the Appeal Court's concurrence constitute grounds

for this Court to grant certiorari regarding this issue.

8. In addition to being a Court of Law, District Court is also a

Court of Equity, Hence, it had the power to grant equitable relief

illustrated as follows: "Equity involves rejection of rigid rules to

accomplish what is fair and just in a particular situation. State of

Illinois Department, Public Aid vy. Heckles, 616 F. Supplement

620, Affirmed 808 F.2d 571 D.C. Ill. 1985".

Throughout the pendency of this case in District Court

whenever the issue of equitable relicf was raised it was cither

ignored or rejected. Likewise the Fifth Circuit Court of Appeals

refused to grant Connor's Petition For Rehearing, which included

that question as one constituting reversible error.

Petitioner belicves that the question of a District Court's right

to exercise its Court of Equity Powers is of such importance as to

grant certiorari based on this question.

9 The Clean-Hands Doctrine is stated thusly: The principle

that a party cannot-seek equitable relief or assert an equitable

defense is that party violated an equitable principle such as good

faith. Such a party is described as having "Unclean Hands"-

Unclean Hands Doctrine. Black's Law Dictionary

Ed. Evidence submitted to the Court fully apprised it of the

Postal Services’ dirty-hands. Yet it failed to take the requisite

recognizance,

Since it is obvious that had the lower courts adhered to

Unclean Hands Doctrine in making credibility and other vital

determinations regarding this case, the Final Decisions would

have favored Petitioner. Therefore, it is necessary that certiorari

be granted so that the questions relating to the Clean Hands

Doctrine may be clarified.

17

10. | The District Court's actions and inactions that allowed

Postal Service Officials and Agents to suborn and commit

perjury during the trying of this case contributed heavily toward

the judgment against Connor.

Notwithstanding the multitude of accusations that Postal

Service Officials brought against Connor in the interval between

his filing his 1980 EEO Complaint and his 1990 Termination,

the bottom-line basis for the District Court's sustaining that

termination was the testimony of Psychiatrist Dr. Skinner. Tr.

Vol. 10, p. 66. That testimony was clearly perjurious. For

example his conclusion that Connor had a paranoid personality

disorder was based on Dr. Skinner's citing of events that in fact

never occurred. Documents substantiating perjury was

submitted by Connor to both the District and Appeals Courts.

Had the Court taken proper cognizance of that perjurious

testimony and other proven instances of perjury and the

suborning of perjury then the Rulings in both instances would

have inevitably favored Connor. Since the lower courts failed to

act properly regarding questions relating to perjury this Court

should take the first steps in taking corrective actions by granting

certiorari.

CONCLUSION

For all the reasons stated above Petition For Writ Of Certiorari

should be granted by this Court.

Respectfully submitted by:

Charlie Connor-Petitioner, pro se

950 E. 8” St.

Ferris, TX 75125-2810

972-842-2422/972-407-4626

App. 1

IN THE UNITED STATES COURTS OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99 - 10757

Summary Calendar

CHARLES R. CONNOR,

Plaintiff - Appellant,

VERSUS

UNITED STATES POSTAL SERVICE

WILLIAM j HENDERSON,

Postmaster General, United States Postal Service,

Defendants - Appellees.

Cee E EERE

CHARLES R. CONNOR,

Plaintiff- Appellant,

VERSUS

WILLIAM J. HENDERSON,

Postmaster General, United States Postal Service,

Defendant - Appellee. —

(Filed Feb. 21, 2000)

Appeal from the United States District Court

For the Northern District of Texas

(3:85-CV-517-T)

App. 2

Before SMITH, BARKSDALE, and

PARKER, Circuit Judge

JERRY E. SMITH, Circuit Judge: °

Charles Connor, a former employee of the United States

Postal Service, appeals an adverse judgment following a bench

trial of his claims of unlawful employment discrimination and

retaliation under title VII of the Civil Rights Act of 1964, 42

U.S.C. Section 2000e-16(c), and the Age Discrimination in

Employment Act ("ADEA"), 29 U.S.C. Section 633a(c). ' He

also appeals the holding that his claim of discrimination arising

in 1980 was untimely. Finding no error, we AFFIRM.

I.

To succeed on a claim of unlawful employment

discrimination on the basis of race or age, or of unlawful

retaliation for raising such claims, the employee must prove

improper motive. Where the employer has offered a lawful

explanation, the employee must establish that the asserted

justification is pretext that conceals an improper purpose. See

St. Mary's Honor Cir. v. Hicks, 509 U.S. 502, 510-11

(1993 title VID); Bauer v. Albemarle Corp., 169 F.3d 962m 966

(Sth Cir. 1999) (ADEA)

We review only for clear error a factual conclusion that an

employer did not engage in unlawful discrimination. See

Boehms v. Crowell, 139 F.3d 452, 457 (Sth Cir. 1998), cert.

denied, 525 U.S. 1102 (1999).

"Where the evidence can support findings cither way, a

choice by the trial judge between two permissible views of the

“Pursuant to STH Cir. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in STH Cir. R.47.5.4.

' Connor filed two actions that were consolidated; we treat them as one.

App. 3

weight of the evidence is not clearly erroneous....A. trial court's

decision to credit the testimony of one, two, or more witnesses,

each of whom has told a coherent, facially-plausible story that is

not weight of the evidence is not clearly erroneous....A trial

court's decision to credit the testimony of one, two, or more

witnesses, each of whom has told a coherent, facially-plausible

story that is not contradicted by extrinsic evidence,...can

virtually never be clear error." Theriot v. Parish of Jefferson, 185

F.3d 477, 490 (Sth Cir. 1999), petition for cert. filed (Jan. 18,

2000)(No. 99-1203).’

II.

Although Connor alleges multiple episodes of unlawful

discrimination and retaliation during his final decade: of

employment, he fails to show clear error in the district court's

factual findings. His bare assertion of statistical discrepancy in

the number of blacks in management is not enough to mandate a

finding of discrimination.”

Moreover, Flagg actually recommended Connor for a

promotion in November, after Connor's MPD numbers and

audit picture began to show improvement. The promotion, the

court reasonably found, was denied only because Connor had

? Connor received a trial de novo to review the similar

conclusion of the Merit Systems Protection Board that the Postal

Service did not engage in unlawful employment discrimination. See

SU.S.C. Section 7703(c). Appellate review of the decisions of that

board and of the district court thus merge into a single inquiry whether

the court made reasonable factual findings on the basis of all the

evidence.

> Of Walter v. Long Star Gas Co., 9T7R.2d 161 (Sth Cir.

1992)\(noting that “it is the unusual case in which statistics alone can

support a finding of intentional discrimination").

numbers and did not know where he stood on his own budget.

By contrast, the other candidates were familiar with their

stations’ status and statistics. Among those receiving promotions

include at least two other black supervisors, a fact that alone

tends to negate any inference of discriminatory intent.”

The court was similarly reasonable in finding that

continued problems in Connor's job performance justified his

poor evaluation in 1984 and the Postal Service's 1987 and 1989

rulings regarding his requests for backpay. Finally, the

testimony of William Skinner, the psychiatrist who examined

4 For example, Flagg noted that Connor's minutes-per-delivery

performance was too high.

> See Singh v. Shoney's Inc., 64F.3d 217, 219 (Sth Cir.

1995)"Singh [a white female] failed to make out a prima facie case of 4

racial discrimination on this record, because she was replaced by a

white female."); Nieto v. L&H Packing Co., 108F.3d 621, 624 (Sth Cir.

1997\"While not outcome determinative, this fact({that a Hispanic

employee is succeeded by another Hispanic] is certainly material to the

question of discriminatory intent.").

ee

App. 5

Connor February 1990, supports the finding that the Postal

Service had deemed Connor no longer medically able to perform

his duties, and discharged him for that reason.°

The rebuttal testimony of Dr. Judy Cook was insufficient to

preclude a reasonable fact-finder from crediting Skinner's

diagnosis.’

Having reasonably reached these numerous factual

conclusions, the court did not commit clear error in holding that

Connor's inability to do the job, rather than race or age,

AFFIRMED.

© Specifically, Skinner diagnosed Connor with a paranoid

personality disorder and concluded that Connor was very sensitive,

communications, and used inflammatory phrases, such as the "Four

Horseman of the Apocalypse," when explaining his perception that

there was a conspiracy to harm him. The court was entitled not only to

give credence to the diagnosis that Connor was unfit for duty, but also

to discredit Connor’s testimony accordingly.

: We need not pass judgment on the merits of the Postal Service

Service's ability determination, for “our inquiry is not into the merits of

the employer's employment decisions but into the motives." Wilson v.

Belmont Homes, Inc/. 970 F.2d 53, 57 (Sth Cir. 1992).

App. 6

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-10775

CHARLES R. CONNOR

Plaintiff — Appellant,

Vv.

UNITED STATES POSTAL SERVICE;

WILLIAM J. HENDERSON, Postmaster General, United States

Postal Service.

Defendant — Appellees.

CHARLES R. CONNOR

Plaintiff — Appellant,

Vv.

WILLIAM J. HENDERSON, Postmaster General, United States

Defendant — Appellee

Appeal from the United States District Court for the

Northern District of Texas, Dallas

(Filed May 9, 2000)

ON PETITION FOR REHEARING

Before SMITH BARKSDATE,

and PARKER, Circuit Judges. PER CURIAM:

IT IS ORDERED that the petition for

rehearing is DENIED. ENTERED FOR THE

COURT.

\S\United States Circuit Judges.

App.7

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHARLES R. CONNOR,

Plaintiff,

Vv.

WILLIAM HENDERSON, POSTMASTER GENERAL

UNITED STATES POSTAL SERVICE,

Defendant.

COURT'S FINDINGS OF FACT

AND

CONCLUSIONS OF LAW

This action having come before the Court in a bench trial, the

Court having heard and considered the witnesses and having

examined the exhibits enters these findings of fact and conclusions

of law.

Finding of Fact

1. Plaintiffs Charles R. Connor is a black male and was an '

Employee of the United States Postal Service at the Dallas Post

Office during all periods relevant to this claim. At the time of his

removal from the Unites States Postal Service, he was more than

40 years old. At all times relevant to this matter, Connor has

resided in Dallas, Texas.

2. Connor began work with the Postal Service in July 1960, as a

substitute letter carrier and became a regular carrier in June 1967.

In November 1973, he was promoted to a level 15 initial level

supervisory positions, Route Examiner. In March 1974, he was

reassigned to level 15 supervisory positions, Foreman, Delivery,

App. 8

and Collection. In October 1975, he was promoted to a level

16 Superintendent of Station and Branch Operations at the

Industrial Postal Station. In December 1976, he was

reassigned as a level 16 Manager, Station and Branch

Operations, at the East Oak Cliff Station. In February 1977,

he was reassigned as a level 16 Manager, Station and Branch

Operations, at the Highland Hills Station. In March 1981, he

was reassigned as a level 16 Superintendent, Station and

Branch Operations, at the Beverly Hills Station. was

reassigned subsequently to the Farmers Branch Station, as

the Superintendent, and this was the position be held at the

time of his initial removal in July 1987.

3. Beginning in February 1977, Connor was the Station

Manager at the Highland Hills Station. This was one of the

smallest stations in Dallas as most stations were level 18

stations. In 1978, Connor began reporting to Charles Flagg,

Area Manager, who was responsible for 16 of the stations in

Dallas, including Highland Hills. Glenn Smith was the other

Area Manager and he was responsible for the other 15 Dallas

stations. Flagg had previously supervised Connor as a letter

carrier at the South Oak Cliff Station.

4. Flagg determined that Connor's station was not performing

productively, was not adequately supervising check cashing

Policies, and was having problems with financial audits. In

speaking with Connor, he found that Connor needed help with the

financial audits because he did not have sufficient expertise.

Accordingly, Flagg sent a postal examiner to assist Connor in this

regard. :

5. Flagg discussed with Connor the fact that his Minutes Per

Delivery (MPD) performance at the station was too high. Minutes

Per Delivery was the basic measure of productivity used in the

stations at the time and served to compare stations with carlier

performance based on the circumstances at that station.

App. 9

6. During 1979, Connor's performance began to improve in the

MPD and finance area.

Connor for promotion in November 1979, after Connor’s MPD

numbers and audit picture began to improve.

8. Connor was not recommended for promotion by review

App. 10

10. Flagg and Smith picked the persons they thought were most

qualified and did not give significant weight to an applicant's

seniority.

11. Flagg worked with and helped develop several other black

supervisors who were promoted to the position of Area manager.

Arthur Young and Nathaneal Harris.

12. Connor appealed the decision to the Regional EEO Office

alleging race discrimination. On October 15, 1982, after a full

hearing, the Attorney Examiner denied Connor’ complaint,

finding no discrimination. Connor appealed to the Office of

Review and Appeals of the EEOC. The Office of Review and

Appeals affirmed the finding of not discrimination in the

promotion decisions of Flagg and Smith. Although the Office of

Review and Appeals issued its decision in October 1985, Connor

failed to include this claim in this action for many months

beyond the 30-day period for appealing to district court. The

court finds that Connor failed include this claim in this action for

many months beyond the 30-day period for appealing to district

Court . The court finds that Connor, represented by counsel at

the time, failed to timely amend his complaint to include these

claims and has failed to offer any explanation for that failure

simply except neglect.

13. Based primarily on Connor's interview, Flagg and Smith

did not select Connor for the level 18 position. Connor failed to

offer any credible evidence to rebut the explanations to Smith

and Flagg other than his subjective conclusion that he was

discriminated against and the fact that the two men who were

aS een

App. 11

14. The promotion decisions made by Flagg and Smith were

made for legitimate reasons and were not motivated by any

intent to discriminate against Connor because of his race.

15. In March 1981, after serving in the Highland Hills Station

as the Manager, Connor was reassigned as a Superintendent,

reporting to the Station Manager, at the Beverly Hills Station. In

1983, he was assigned to the Farmers Branch Station as

Superintendent.

16. In late 1983, Gerald Townsend was assigned to the

Farmers Branch Station as the Station Manager in an effort to

correct problems relating to, among other things, a backlog of

ate.

accrual of excessive overtime.

17. Connor reported directly to Townsend. Townsend observed

problems in Connor's as second in command at the station.

Connor was not getting mail delivered, not training subordinates,

and not keeping up with the goals of the station. Tasks given

him were not completed in a timely manner.

18. On or about June 7, 1984 Charles R. Connor received a

letter of warning from Townsend charging him with failure to

maintain overtime at a minimal amount and with failing to obtain

Townsend's approval for overtime.

19. On June 20, 1984. Connor appealed his letter of warning

through the internal non-bargaining grievance process in the

Posed Serviid ead: “Salles 690 cf the Padtoyee end Labor

Relations Manual (ELM). Connor's grievance was denied.

20. Connor then appealed to the next level in the Section

650 process. Connor's grievance regarding the letter of warning

was denied at this level as well.

App. 12

21. | Connor received an annual merit performance evaluation

by Townsend on or about June 21, 1984, which rated him as

"marginal". Townsend cited problems in Connor's supervision

of the supervisors under him as well as his lack of productivity.

22. In October 1984, Connor applied for promotion on job

number 84-27, a level 17 Superintendent, Station/Branch

Operations position, and job number 84-29, a level 17

Superintendent, Station/Branch Operations. Townsend did not

recommend him for those positions, citing his supervision,

productivity, and discipline problems. Don Young, Acting Area

Manager, concurred those non-recommendations.

23. Connor filed EEOC complaints as to both the non-

24. In January 1986, after a full hearing, the Attorney Examiner

for the EEOC found no discrimination and no reprisal in

Townsend's 1984 marginal rating of Connor nor in Townsend's

non-recommendation for promotion of Connor. In August 1984,

the Office of Review and Appeals of the EEOC agreed, and

Connor appealed to this court. ;

25. The court finds that Townsend's explanations for his

assessment of Connor's performance are credible and they were

corroborated by the testimony of other supervisors from Farmers

Branch who worked with Connor. Further, the Court finds no

credible evidence to support Connor's allegation that Connor's

race, age, or a reprisal for an EEOC complaint Connor filed four

years earlier motivated Townsend's action.

26. In the latter part of 1984, Connor and Townsend were

transferred to the Beverly Hills Station. In December 1984, it

was proposed to reduce Connor from a supervisor to a letter

carrier because of a serious non-delivery of mail problem in the

reproduction and mailing on postal premises of

containing Connor's name and soliciting votes for him in a

National Association of Postal Supervisors (NAPS) election. A

Walder discussed these problems with Connor, but to no avail.

App. 14

31. In carly May 1986, Walter met with Connor to discuss his

merit evaluation. Walder proposed to give Connor a “marginal”

rating as to his abilities but invited Connor's comments as to

what Connor believed is performance was. During the course of

this discussion, Connor, became upset and left the office. A few

minutes later, Connor submitted a leave slip to Walder stating

that he was “incapacitated” to work and requesting leave.

Walder granted the request. The next day Connor telephoned

Walder and said that he was not coming in to work but refused to

provide a reason.

32. While the referral to a psychiatrist was pending, Connor's

removal was proposed by Walder based on an incident of

AWOL (appearing at a NAPS convention while on sick leave)

and a customer complaint concerning Connor's rude behavior

just before his merit evaluation on May 7. The removal was

ultimately held in abeyance because of the pending psychiatric

.

33. Connor was examined by a psychiatrist, Dr. William Waltrip

in August 1985. Waltrip determined that Connor was unfit for

duty based on his diagnosis that Connor suffered from a paranoid

34. After a delay of several months because of an administrative

App. 15

not participate in an effort to impose management-initiated

disability retirement. In essence, Connor declined any option

other than removal based on his ability to perform his position.

35. Effective July 31, 1987 Connor was removed from his

position as Superintendent, Station Operations, Farmers Branch

Station, for inability to perform the duties of his position.

36. The July 15, 1987 letter of decision from the Director of

City Operations » Ben Jasek, regarding Connor removal informed

Connor of his right to appeal the decision to either the Merit

Systems Protection Board (MSPB) or through the agency

internal appeal procedures under Part 650 of the Employee and

Labor Relations Manual (ELM).

37. By letter of July 27, 1987, Connor chose the internal agency

appeal process. After a full evidentiary hearing, Larry Stebbins

issued his decision at Step I of the internal appeals process. This

decision essentially set aside the removal and returned Connor to

work on the condition that he pass a new psychiatric fitess-for-

duty exam. At this time, the first fitness-for duty report was year

and a half old. According to the decision, if Connor failed the

new exam, he could initiate disability retirement or the

would do so. Connor appealed that decision to Step II on May

26, 1988, sating that he wanted either to be removed or, put back

to work without any further examination by medical personnel.

38. A decision was issued at Step II on March 28, 1989,

rescinding the removal for a procedural error, namely, a failure

to notify Connor within 30 days of the Postal Service's intention

to remove him before issuing the letter of decision on the

removal. The decision did not address the merits of the removal.

App. 16

39. On April 13, 1989, a letter was sent to Connor from the

Acting Field Director, Human Resources, Dallas Division

(Primo Marquez), informing Connor of the effect of the Step ii

decision and offering Connor the opportunity to submit any

information that he had which was inconsistent with that in the

possession of the Postal Service to enable the Postal Service to

comply with the Step II decision, including backpay in

accordance with the Postal Service's regulations. Connor

et ee ee ee

that he had any psychiatric problem.

40. By letter of August 21, 1989, Connor was informed that

backpay for the period following the July 1987 removal until the

reversal of that removal on procedural grounds in March 1989

would be denied because the medical information the Postal

Service retained on file regarding Connor’s condition indicated

that he was not ready, willing, and able to work, and Connor

failed to supply medical documentation to indicate otherwise.

Connor appealed repeatedly to the MSPB alleging discrimination

in the Postal Service's determination not to pay him backpay

after the rescission of his original 1987 removal in March 1989,

and alleging constructive suspension in that he was being carried

without pay when he refused to appear for fitness-for-duty-

examinations through 1989. The MSPB declined to accept

jurisdiction over these allegations findings that the Postal Service

had the right t send him to such an examination and to carry him

without pay if he refused.

41. The MSPB did not find that the Postal Service had caused

Connor to involuntarily retire in February 1989 because of any

error in its retirement counseling of him. The Board found no

evidence of discrimination in this regard, and subsequently

found that the Postal Service had fully complied with the Board's

order to reactive Connor retroactive to February 1989.

~ App. 17

42. Based on the facts found above, the Court finds that the

Postal Service had a legitimate, nondiscriminatory reason for

declining to approve backpay for Connor for the period from

1987 through 1989 when his removal was rescinded for

procedural error, and Connor had failed to provide amy credible

evidence to support that such reason was. a pretext for race, age,

or LJ ] di 7 * * ° j

43. Additionally, by.a letter of August 21, 1989, Connor was

advised that he would shortly be sent for another psychiatric

i the Postal Service had discriminatory

suspended him by placing him on leave without pay, the Merit

Systems Protection Board confirmed that the Postal Service had

the right tp send him for such an examination and to carry him

App. 18

46. On March 8, 1990, Connor and his wife met with Primo

When the subject ‘of retitmeat was raised, C onnor declined to

respond at all to the options proposed by Marquez and Faulker.

48. When no action was taken by Connor, on May 4, 1990, the

Postal Service proposed Connors removal for inability to

perform his position and AWOL. rear corn patente

response on May 18, 1990.

49. On June 18, 1990, Marquez issued his decision approving

the removal effective June 22. 1990. and informing Connor of

his appeals rights.

50. Connor appealed his removal to the MSPB and included

allegations of discrimination based ona race, age, and reprisal.

51. After a full evidentiary hearing, the MSPB sustained the

agency's action and found no evidence of discrimination in a

App. 19

detailed decision of October 23, 1990. Connor appealed directly

to this court by seeking to amend his earlier district court

complaint. Ultimately, these claims, were accepted into this

action by the Court's Order of December 11, 1991.

52. Connor was removed from the official roles of the Postal

Service effective November 27, 1990, in accordance with its

regulations, after the MSPB's affirmance of his removal became

final. As a result, and in accord with Postal and Office of

_ Personnel Management regulations, he was referred to the Office

53. The Court finds that the Postal Service had legitimate,

nondiscriminatory reasons for the removal action it took in June,

1990. Despite a number of procedural errors, the Postal Service

had reliable documentation supporting a determination of

requests regarding his employment. The court finds that Connor

had not produced any credible of a conspiracy of race, age, or

App. 20

54. The Court further finds that the MSPB's determination in

this matter that the removal from service was proper and in the

interests of the efficiency of the Service was amply supported by

a detailed record.

55. Further, the Court finds that Connor’s retirement was

properly processed by the Office of Personnel Management, as

evidenced by the fact that he is currently receiving an annuity

ee ee ee

November 1990.

56. The Coun festhiey-Mete: ab anette. beaker: Comets

allegations of discrimination in the handling of his retirement has

he had offered no evidence to rebut the regulations supporting

the Postal Service actions in removing from the rolls and

referring him to the Office of Personnel Management. In any

event, Connor’s claims are moot as he has not demonstrated any

loss which is remediable under Title VII resulting from this

transaction.

Conclusions of Law

It is well established that Title VII actions by federal

employees must be brought to district court within prescribed

limitation periods. Specifically, Connor was required to file his

claim regarding non-promotion in 1979-1980 in this court within

30 days after any final decision by the Office of Review and

Appeals of the EEOC, 29 C.F.R. 16.3.2810 Connor failed to do

so, and this claim must be dismissed. /rwin v. Veterans

Administration, 11 S. Ct.453, 457-458 (1990). (Tolling not

granted for late filings due to lack of diligence in Title VII

matters). The cvidentially standards for Title VII cases are

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

(1973), Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248 (1981), and the decisions of the Fifth Circuit. Valdez v. San

App. 21

Antonio Chamber of Commerce, 974 F.2d 1160 (5* Cir. 1991);

Turner v. North American Rubber, 979 F.2d 55 (5* Cir. 1992

Homes, 979 F.2d 53, $7 (1992). Neither Title VII nor

ion in Employment Act(ADEA) intended to

personnel

ti ty a 6; ii of i ° al fi * -e ti

without more. Walther v. Lone Star Gas, 977 F.2d 161, 162 (5*

Regarding claims of reprisal, it is well established that a

plaintiff must demonstrate that he engaged in protected activity;

that an adverse employment action occurred, and that there is s

App. 22 -

causal connection between the two. Shirley v. Chrysler First,

970 F.2d 39, 42 (5* Cir. 1992); Jones v. Flagship Int'l, 793 F 2d

714 (S* Cir. 1986)

In light of the foregoing findings of fact and legal principles,

the court concludes that:

1. This court has jurisdiction over this action pursuant to

42U.S.C. Section 20000-160, 29 U.S.C. Section 633a and-5

U.S.C. Section 703(aX(2). ge :

2. Connor’s claim of race discrimination in his non-promotion

to two level 18 positions in 1980 should be dismissed as

untimely filed. Irwin v. Veterans Administration, 11 S. Ct. at

457-458. In any event, the Postal Service did not intentionally

discriminate against Connor on the basis of his race, or his age or

in reprisal in not selecting him for those positions.

3. Connor's claim of race, age, and reprisal discrimination in his

marginal rating in 1984 is moot as no remedy is available under

Title VII. Moreover, the Postal Service did not intentionally

discriminate against Connor on the basis of his race or age, or in

reprisal in rating him marginal, in not recommending him for

Promotion, or in not selecting him for promotion in 1374.

4. The postal service did not intentionally discriminate against

Connor on the basis of race, age, or in reprisal when it

compensated him only for straight time after the rescission of his

suspension in 1985. :

Connor on the basis of race, age, or in reprisal when it

him without backpay after the rescission of his July

1987 removal.

App. 23 a

6. The postal service did not intentionally discriminate against

Connor on the basis of race, age, or in reprisal in its removal of

him in June 1990 removal is amply supported by substantial

record.

7. The MSPB affirmance of the June 1990 removal is amply

supported by substantial evidence in the administrative record.

Based on the foregoing finds of fact and conclusions of law,

Postal Sev nm final judgment of Defendant United States

Signed: April 28, 1999,

Ls/ Robert B. Maloney

App. 24

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RAKES EREERES

CHARLES R. CONNOR,

Plaintiff, -

Vv.

WILLIAM HENDERSON, POSTMASTER GENERAL,

UNITED STATES POSTAL SERVICE,

Defendant.

(Filed Apr. 28, 1999)

FINAL JUDGEMENT

The action came on before the Court on a bench trial,

Honorable Robert B. Maloney, presiding, and the issues having

been duly considered and a decision having been rendered,

It is ORDERED and ADJUDGED that Plaintiff Charles R. .

Connor's claims of race discrimination, age discrimination, and

reprisal against Defendant William Henderson, Postmaster

General, United States Postal Service, are dismissed with

ordadl

It is FURTHER ORDERED and ADJUDGED that all

relief not specifically granted herein is DENIED.

Signed this 28 day of April 1999.

/s/ Robert B, Maloney