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SAMPLE NINTH CIRCUIT BRIEF
The following is a sample brief to the Ninth Circuit Court of Appeals
drafted by On-Point Paralegal Services, LLC. The parties names, docket numbers
and other personal information has been omitted. We have done our best to
preserve the formatting of the brief when converting it to html code for
display on the Internet.
UNITED STATES COURT OF APPEALS No. _____________________
Plaintiff-Appellant
Defendants-Respondents __________________________________________ Appeal from the United States District Court Initial Brief For Plaintiff-Appellant,
Dated:
TABLE OF CONTENTS Table Of Authorities ……………………………………………………. 3 Corporate Disclosure Statement ………………………………………... 4 Jurisdictional Statement ………………………………….………………4 Ninth Circuit Local Rule 28-2.6 Statement …………………………..… 5 Statement Of Issues Presented For Review …………………………….. 5 Statement Of The Case ………………………………………………….. 6 Statement Of The Facts …………………………………………………. 6 Summary Of Argument ……………………………………..….,……… 11 ARGUMENT
Conclusion ………………………………………………………….… 17 Certificate of Compliance …………………………………………….. 18
TABLE OF AUTHORITIES Caselaws: Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ……………………. 14 Bass vs. Bd. Of County Comm'rs, 256 F.3d 1095 (11th Cir. 2001) …..…… 14 Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) ……………….. 17 Carey vs. Piphus, 435 U.S. 247 (1978) …………………………………..... 16 Garrett vs. Hewlett Packard Co., 305 F.2d 1210 (10th Cir. 2002) ……….… 13 Giacoletto vs. Amax Zinc. Co., 954 F.2d 424 (7th Cir. 1992) ………….….. 14 Gilbert v. Homar, 520 U.S. 924 (1997) ……………………………………. 16 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) ………………………. 17 Hernandez v. Hughes Missile Systems Co., 362 F.3d 564 (9th Cir. 2004) ….. 5 Mathews v. Eldridge, 424 U.S. 319 (1976) ………………………………... 16 Price vs. Charlotte, 93 F.3d 1241 (4th Cir. 1996) ……………………….…. 16 Russell vs. TG Mo. Corp., 340 F.3d 735 (8th Cir 2003) ………………….... 13 Stern vs. Trs. Of Columbia Univ., 131 F.3d 305 (2nd Cir. 1997) ………..… 14
42 U.S.C. Sec. 1981 ……………………………………………....… 5, 6, 8 42 U.S.C. Sec. 1983 ……………………………………………...…. 5, 6, 8 42 U.S.C. Secs. 1985 …………………………………………..…… 5, 6, 8 42 U.S.C. §1986 ……………………………………………………… 8, 14
CORPORATE DISCLOSURE STATEMENT This statement is made pursuant to Federal Rule of Appellate Procedure 26.1. Plaintiff is not a corporate entity and has no parent corporation, subsidiaries or affiliates that has issued shares to the public. JURISDICTIONAL STATEMENT The court below had jurisdiction to entertain this matter because all claims brought herein related to alleged violations of the United States Constitution and various federal statutes, including 42 U.S.C. Secs. 1985 and 1981. The claims were brought by virtue of 42 U.S.C. Sec. 1983. The Ninth Circuit Court of Appeals has jurisdiction to entertain this appeal pursuant to 28 U.S.C. Sec. 1291. Final Judgment was rendered on September 13, 2005. [App621, Volume IV] Plaintiff filed a timely Notice of Appeal on October 13, 2005. [App633] NINTH CIRCUIT LOCAL RULE 28-2.6 STATEMENT
Plaintiff has no knowledge of any pending cases related to the issues herein. STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Was plaintiff entitled to survive summary judgment
on his hostile work environment and retaliation claims as a matter of
law if he was able to prove that (a) he filed two EEOC complaints against
the defendant employer, (b) a period of harassment and retaliation endured
over the next nineteen months and (c) plaintiff was forced to retire at
the expiration of that nineteen month period after having been employed
by the XXXXXXXXXXXXX since 1984? Plaintiff submits that the answer to
this is "yes". The standard of review of the trial court's order
of summary judgment is de novo. Hernandez v. Hughes Missile Systems Co.,
362 F.3d 564 (9th Cir. 2004), and cases cited. 2. May a trial court make a credibility determination
during a motion for summary judgment regarding the meaning of or intent
behind circumstantial evidence in a hostile work environment / retaliation
action? Plaintiff submits that the answer to this is "no". The
standard of review of the trial court's order of summary judgment is de
novo. Id. 3. If an employee of a governmental entity is entitled to appear and defend at a disciplinary hearing, although California state law may not provide detailed notice requirements, does the federal constitution mandate such safeguards as a matter of procedural due process? The standard of review of the trial court's order of summary judgment is de novo. Id.
STATEMENT OF THE CASE This is an action brought for workplace discrimination, harassment and retaliation. Plaintiff asserts denial of equal protection under the law, violation of procedural due process with regard to disciplinary hearings, conspiracy under 42 U.S.C. Secs. 1985 and 1981, with all claims being brought by virtue of 42 U.S.C. Sec. 1983. STATEMENT OF THE FACTS Plaintiff's Complaint alleges that plaintiff, an African-American, was
discriminated and retaliated against during the course of his employment
with the California XXXXXXXXXXXXX Services. [App2, Vol. I] His position
was XXXXXXXXXX. [App3, App5, Vol. I] Plaintiff alleged that Defendant Mike XXXXXXXXXXXXX ("XXXXXXXXXXXXX"),
a Caucasian-American male, who holds the position of XXXXXXXXXXXX and
was plaintiff's supervisor, and Defendant Larry A. XXXXXXXXXXXXX ("XXXXXXXXXXXXX"),
also a Caucasian-American male, discriminated against plaintiff on the
basis of plaintiff's race and/or retaliated against him for having filed
claims of discrimination against defendant. [App3, App5, Vol. I] Plaintiff
also alleged that XXXXXXXXXXXXX and XXXXXXXXXXXXX conspired between themselves
or with others to discriminate against plaintiff or to otherwise retaliate
against him for the before mentioned reasons. [App3, App5, Vol. I] Plaintiff alleges that the defendants committed all acts, individually
and collectively, while acting under color of state law, to further their
own personal interests, while an agent of the California XXXXXXXXXXXXX,
that they singled him out from amongst all of the employees on the basis
of his race and that at all relevant times they were acting outside of
the scope of their employment. [App3-App5] Plaintiff alleged that official policies and procedures of the California
XXXXXXXXXXXXX endorsed or otherwise led to the alleged discriminatory
and retaliatory conduct engaged in by the individual defendants, that
the defendants violated plaintiff's well-established law that they were
or should have been aware of and that such conduct constituted a continuing
pattern. [App11-App12, Vol. I] The Complaint, read as a whole, implies
that the defendants were sued in both their individual and official capacities.
Plaintiff alleged that the defendants are not entitled to qualified immunity.
[App12, Vol. I] Plaintiff brought claims alleging a violation of the United States Constitution
including the Equal Protection Clause thereof (as applicable to the states
by and through the Fourteenth Amendment) [App11, Vol. I]; 42 U.S.C. §1985
(conspiracy to violate civil rights) [App13, Vol. I]; 42 U.S.C. §1986
(failure to prevent a conspiracy that violates 42 U.S.C. §1985) [App3,
Vol. I]; 42 U.S.C. §1981 [App14, Vol. I]; a claim for declaratory
relief [App15, Vol. I], and sought relief for all claims by virtue of
the Civil Rights Act of 1871, 42 U.S.C. §1983. [App11, App16, Vol.
I] The parties entered into a stipulation to dismiss plaintiff's claims
brought under 42 U.S.C. §1985 and 42 U.S.C. §1986 as they related
to XXXXXXXXXXXXX and XXXXXXXXXXXXX, and all references to Title VII or
to 42 U.S.C. §2000e. [App36, Vol. I] Plaintiff thereafter filed a
First Amended Complaint to conform to that stipulation. [App19, Vol. I]
Those were the only changes made. Defendants filed a motion for summary judgment, or in the alternative for partial summary judgment, on January 7, 2005. [App49, Vol. I] The court ultimately granted that motion in its entirety [App621, Vol. IV]. The trial court held, inter alia,
Defendants thereafter made an application for attorney's fees. That motion was denied, and defendants have not filed a Notice of Appeal concerning that issue. Finally, defendant's made an application for costs [App618, Vol. IV] that was granted by the court in the amount of $1,800.60. [App621, Vol. IV] Plaintiff also appeals from that award of costs. SUMMARY OF ARGUMENT Plaintiff submits that the trial court made credibility determinations during a motion for summary judgment regarding the meaning of and intent underlying circumstantial evidence. Plaintiff also alleges that the trial court considered separately each alleged incident of discrimination or retaliation, rather than considering the totality of the circumstances. Plaintiff's argument is that these are both reversible errors.
ARGUMENT
Defendant XXXXXXXXXXXXX testified at his deposition that it would not have been a violation of the XXXXXXXXXXXXX's policies for plaintiff to date XXXXXXXXXXXXX. It also went undisputed below that the Department did not believe XXXXXXXXXXXXX's allegations of sexual assault and that plaintiff did not have any further contact with XXXXXXXXXXXXX after he was instructed not to do so. The evidence showed that the decision to terminate plaintiff was made by XXXXXXXXXXXXX, and that the only other employees that XXXXXXXXXXXXX has ever recommended for dismissal were for incidents of misconduct that constituted a violation of the law, with the sole exception of one incident where someone was terminated for inappropriate use of a state vehicle. It should be noted that the individual terminated for inappropriate use of a state vehicle had a history of misconduct, and that all persons received warnings and reprimands before their termination. Plaintiff received no pre-termination warning or reprimand which was a violation of XXXXXXXXXXXXX policy. (XXXXXXXXXXXXX Deposition, App685, Vol. IV, at 49:24-25; XXXXXXXXXXXXX Deposition, App686, Vol. IV, at 50:1-2; XXXXXXXXXXXXX Deposition, App646-App661, Vol. IV, at Pgs. 10-25; XXXXXXXXXXXXX Deposition, App692, Vol. IV, at 56:10-25; XXXXXXX Deposition, App1113, Vol. VI, at 221:1-24; XXXXXXX Deposition, App1114, Vol. VI, at 222:18-24; XXXXXXX Deposition, App1115, Vol. VI, at 223; XXXXXXX Deposition, App1116, Vol. VI, at 224:1-8; Plaintiff's Exhibit A, App396, pg. 6-2) The evidence also showed that XXXXXXX, an African-American, was terminated
for alleged conduct that was trivial compared to incidents committed by
Caucasian males that go virtually unpunished. (XXXXXXXXXXXXX Dep., 79:19-25,
80:1-11, Plaintiff's Exhibit 22; XXXXXXX Dep., App.1048, at 155:3-25;
XXXXXXX Dep., App.1051, at 158:22-25; XXXXXXX Dep., App.1052, at 159:1-6;
Defendants' Exhibits 24 and 27, App83, Vol. I; Bibbs Decl., App540, Vol.
II, at §§ 4, 5, 7). The court should note that this is not a wrongful termination or constructive
discharge case. Plaintiff has brought neither of those claims. Rather,
plaintiff is solely suing for the harassment and retaliation he endured
in the workplace. Being subjected to harassment or retaliation with a
discriminatory intent states a claim upon which relief can be granted.
Aside from run-of-the-mill employment related causes of action, plaintiff
could have recovered against the individual defendants who were sued in
both their individual and official capacities on a theory of outrage or
negligent or intentional infliction of emotional distress. The trial court,
however, only analyzed this case under employment law theories. The evidence shows that plaintiff filed a claim of discrimination with the EEOC, and that after doing so his employment situation with a year had grown distasteful to the extent that he was left with no alternative but to resign. Plaintiff's evidence shows that his employer deviated from company policy or procedure on multiple occasions. See Garrett vs. Hewlett Packard Co., 305 F.2d 1210, 1220 (10th Cir. 2002) (holding that deviations from an employer's regular procedures established pretext); Russell vs. TG Mo. Corp., 340 F.3d 735, 746 (8th Cir 2003) ("We agree … that an employer's deviation from its own policies can, in some instances, provide evidence of pretext"); Bass vs. Bd. Of County Comm'rs, 256 F.3d 1095, 1108 (11th Cir. 2001) ("An employer's violation of its own normal hiring procedure [was] evidence of pretext"); Stern vs. Trs. Of Columbia Univ., 131 F.3d 305, 313 (2nd Cir. 1997) (reiterating that an employer's departure from regular procedures can be indicative of pretext); Giacoletto vs. Amax Zinc. Co., 954 F.2d 424, 427 (7th Cir. 1992) ("The jury could reasonably have concluded that because Amax neglected to follow[its] procedures for helping employees to overcome their deficiencies, the company had fired Giacoletto not because of his asserted deficiencies, but to retaliate [against him]").
II. SUMMARY JUDGMENT IS NOT APPROPRIATE BECAUSE A JURY IS REQUIRED TO MAKE CREDIBILITY DETERMINATIONS "Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not
those of a judge, whether he is ruling on a motion for summary judgment
or for a directed verdict." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). In order to properly dispose of plaintiff's claims,
the court had to make credibility determinations as to various material
issues of disputed fact. This included credibility determinations as to,
inter alia,
All of these facts are determinative as to instant claims and require credibility determinations. Only a jury may do that. Id.
A governmental employee is entitled to notice of hearing as a matter
of procedural due process guaranteed under the Fourteenth Amendment to
the United States Constitution because their job is a constitutionally
protected liberty and property interest. See Mathews v. Eldridge, 424
U.S. 319, 349 (1976); Gilbert v. Homar, 520 U.S. 924, 928 (1997). The
trial court held not only that plaintiff had no right to fair notice and
hearing under California law, and totally ignored federal constitutional
law in this regard, but also held that such conduct was unlikely to be
a deterrent to employees who may want to engage in legally protected conduct
such as filing complaints of discrimination. Plaintiff respectfully disagrees with the trial court that deprivation
of constitutionally protected due process rights before adverse action
is taken against an employee could not deter that employee from engaging
in constitutionally protected conduct. In fact, our Supreme Court has
held that deprivation of due process is such a significant issue that
at least nominal damages are always available as a simple recognition
that a deprivation occurred. Carey vs. Piphus, 435 U.S. 247, 266 (1978)
(nominal damages available for denial of procedural due process rights);
Price vs. Charlotte, 93 F.3d 1241, 1246 (4th Cir. 1996) (stating that
"the rationale for the award of nominal damages being that federal
courts should provide some marginal vindication for a constitutional violation"). The District Court's message here is that any employee who engages in such conduct (reporting racial discrimination, for example) will be penalized without being afforded fair opportunity to defend against the charges. That is bad law, bad rationale and a bad overall adjudication. This court is asked to reject it by remanding the case for further proceedings on this issue.
The trial court did not consider the totality of the circumstances. It considered each alleged incident of discriminatory conduct separate and distinctly. That was an error. See Brooks v. City of San Mateo, 229 F.3d 917, 923-24 (9th Cir. 2000) ("We use a totality of the circumstances test to determine whether a plaintiff's allegations make out a colorable claim of hostile work environment"), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
CONCLUSION In light of the foregoing, the court should reverse the trial court's
Order of Summary Judgment and remand this matter for further proceedings. Respectfully Submitted,
______________________________ Dated: CERTIFICATE OF COMPLIANCE Pursuant to Federal Rules of Appellate Procedure 29(d) and 32(a)(7)(C), I certify that this brief is proportionately space with one inch margins on all four corners with a total of ________ words. ______________________________ Dated:
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