PETITION TO REDRESS OF GRIEVANCE

We the undersigned,

<!--[if !supportEmptyParas]-->Petition to Redress of Grievance <!--[endif]-->

Published by LaRonda Phox July 20, 2009

Category: Civil Rights, Employment, Human Rights

Region: President Obama, Congress, Senators and the House of Representatives

Target: Workers

Web site: http://www.mobbing-usa.com, http://www.civilrights.org/

Background (Preamble):  http://www.thepetitionsite.com/2/END-DISCRIMINATION-NOW

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STATEMENT OF THE CASE

This was a mixed motive case, with multiple issues of discrimination, to include disparities and state violations, that was denied in the US Supreme Courts, April 20, 2009.  This claim was relevant to the decisions, on April 22, 2009, when the same courts granted oral arguments to the New Haven Connecticut firefighters discrimination claims. 

The plaintiff alleges there was %u201CFraud Up On The Court%u201D where the Judge Fernando J. Gaitan and the defendant%u2019s attorney, Matt Gist, Robert O. Jester, and Janice Earlene Gordon, of the Ensz & Jester law firm, acted %u201CUnder The Color of Law%u201D, with misconduct.  The defendant(s) acted willfully to deprive or conspire to deprive the plaintiff of her rights protected by the Constitution or U.S. law. 

The consequences were destructive in everyway. 

Phox alleges that Gaitan %u201CActed Under Color Of State Law%u201D repeatedly when the entire claim should have been sanctionable. 

Under color of authority is a legal phrase used in the United States indicating a person is claiming or implying the acts he or she is committing are related to and legitimized by his or her role as an agent of governmental power.

A factual pattern would give rise to a successful claim under the federal civil rights law.  Title 42 U.S. Code Section 1983 reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.

The first ten amendments of the Bill of Rights are self-explanatory.  Violations of any of the rights described in these amendments give rise to cause of action, both against state judges under Title 42 USC Section 1983 and arguably against federal judges in Bivens actions.

The judge has violated my constitutional rights.  I have lost certain rights without a meaningful hearing or even an opportunity to be heard.

I have also been deprived of other constitutional protections.

JURISDICTIONAL BASIS

I.  Plaintiff claims federal jurisdiction pursuant to Article III Section 2, which extends the jurisdiction to cases arising under the U.S. Constitution.

II.  Plaintiff brings this suit pursuant to Title 42 U.S. Code Section 1983 for violations of certain protections guaranteed to him by the First, Fifth, Eighth, Ninth and Fourteenth Amendments of the Federal Constitution, by the defendant under color of law in her capacity as a judge in the Superior Court of (Jackson) County

%u201CPlaintiff brings this action against (Fernando J. Gaitan), a federal judicial officer, pursuant to Title 28 U.S. Code Section 1331, in claims arising from violations of federal constitutional rights guaranteed in the First, Fifth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution and redressable pursuant to Bivens v. Six Unknown Narcotics Agents 403 U.S. 388 (1971).%u201D

The Supreme Court ruled in Griggs v. Duke Power Co. (1971) that (1) if an employer's policy has disparate racial consequences, and (2) if the employer cannot give a reasonable justification for such a policy on grounds of "business necessity," then the employer's policy violates Title VII.

A motion for summary judgment in United States District Court is governed by Rule 56 of the Federal Rules of Civil Procedure and should have never been granted when there were clearly discovery issues.  (See Judicial orders and Plaintiffs motion to compels/sanctions)

Federal Rule of Civil Procedure 39(c) allows a court to use one at its discretion. To determine whether the action would have been legal or equitable in 1791, one must first look at the type of action and whether such an action was considered "legal" or "equitable" in 1791.

Next, the relief being sought must be examined. Monetary damages alone were purely a legal remedy, and thus entitled to a jury. Non-monetary remedies such as injunctions, rescission, and specific performance were all equitable remedies, and thus up to the judge's discretion, not a jury. In Beacon Theaters v. Westover, the U.S. Supreme Court discussed the right to a jury, holding that when both equitable and legal claims are brought, the right to a jury trial still exists for the legal claim, which would be decided by a jury before the judge ruled on the equitable claim.

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STATEMENT OF FACTS

1.         Phox alleged she was discriminated in regards to race with retaliation, gender, age and disparities of equal pay, disparate treatment and impact and defamation/slander.  Also included were 2-state violation, being the MO Sunshine Law%u2013open records rule and the MO Service Letter Law.  However, EEOC, nor the courts could not find any discrimination. 

2.         Phox applied on March 27, 2003 for a Secretary and a Custodians position.  She was never hired as a Secretary.  She was hired as a Substitute Custodian in Oct. 2003 and went through 3-days of training and worked 8-days then.  She continued to call for work and apply, and always given an excuse and was never used.  After about 2-weeks of not working, when she called, she was asked, %u201Cwhy did you go and file for unemployment.%u201D 

3.         Phox believes she was retaliated against for this, because she applied for unemployment, and was not used for work, at any time after that, despite the many applications and calls of interest.  Phox also believes she later was retaliated for continuing to pursue her claims.

4.         Phox was hired as a Substitute Custodian at $9.22 hr. and the month she was dismissed was raised to $9.35 hr. The Regular Custodian position was $13.71, $14.22 and $15.04 when she was dismissed.  The Sub. had no benefits, on call as needed, and not placed in a permanent school. The Reg. position had benefits, guaranteed 40-hrs. and placed in a permanent school.

5.         Phox filed an EEOC claim Aug. 19, 2004 and was re-hired March 28, 2005, as a Substitute Custodian, again going through 3-days of training.  She was never promoted to a Regular Custodian and was discharged, June 22, 2005.

6.         Phox, when hired was told that all Custodians had to be hired as a Sub and apply to the Regular Custodians position, and all must go through 3-days of training.  Both times Phox went through 3-days of training and was never promoted.

7.         Phox requested to see a copy of her employment files and there was only 1-application and resume, from when she applied in March 2003.  Phox applied 2-times for the Secretaries position and over 20-times to the Regular Custodian.  Phox was then directed to the Facilities department, making a verbal and written request and was denied the opportunity to view her employment files, because they said it contained confidential information.

8.         Phox was wrongfully terminated for a statement alleged by a co-worker, which she denied ever took place, the 1st day at a different school.  Seven days later, co-worker(s) goes into the office and says she did not feel comfortable working around her.  In the termination meeting, Phox was given these reasons, but the termination letter revealed the reason as something completely different, than what was discussed.

9.            Through discovery, the LSSD admitted they have never hired a black secretary and Phox was the only Black female Custodian known, while employed. 

10.       It would take a Black Custodian approx. 1-yr. to be promoted, but took the Caucasian worker approx. 3-months.  Many were hired right into the Regular position.

11.       They have a Custodians ghost job, called a Floater, that is the same as a Regular Custodian, that is never advertised and mentioned in there handbooks.

13.            Through discovery, it was requested they send the new hire data sheets of the custodians and secretaries, during the relevant periods of March 27, 2003 and June 22, 2005.  They said they hired 17-Secretaries, but only provided information to 5.  Phox and 4-of the Secretaries information revealed that all of the tests given, were all different and the 1-Secretary they hired, immediately after Phox applied, did not have any experience, couldn%u2019t type, nor did she take a test.

14.       Most of the jobs for the Blacks were in the Cafeteria or a PT Bus driver and there was a pattern of practice, when they would only hire, on the average 1-Black person a year, with in the school district and it was hardly ever more than 1-Black person in a position at 1-time.

15.       They hired their 1st Black person, in 1993, who currently and then when employed holds a position in the Human Relations Dept as the Director of Classified.

16.       The LSSD also admitted that they hired 137 Black employees during the past 10-years, prior to June 22, 2005.  The list revealed they are counting Hispanics as Blacks and they did not provide all the hire data sheets requested in discovery of the 137 Black employees.  They either misrepresented the facts or have missing document. 

17.       They hired during the summer of 2005 approx. 40-Custodian workers that was paid various wages and not 1-was a Black person hired. 

18.       While employed, Phox received 2-incorrect, with 1-being unfavorable, evaluation performance reports.  When shown, the unfavorable report said at the bottom %u201Cand nobody likes her%u201D.  Phox questioned what this meant because she never had a dispute with any supervisor or co-worker.  The supervisor said that he would investigate the bosses of the reports and would get back with her and never did.  Her calls were ignored, when she questioned the status of the reports.  Then after the close of discovery, she was sent approx. 15-other reports that were never presented, shown or known to Phox, nor were they in the employment files, but through discovery they acknowledged that I received 2-reports.

I have also been deprived of other constitutional protections.

Wherefore plaintiff prays this Court issue equitable and injunctive relief as follows:

<!--[if !supportLists]-->1.     <!--[endif]-->to redress for grievance.

<!--[if !supportLists]-->2.     <!--[endif]-->Issue declaratory relief as this court deems appropriate just

<!--[if !supportLists]-->3.     <!--[endif]-->Issue other relief as this court deems appropriate and just

<!--[if !supportLists]-->4.     <!--[endif]-->Award plaintiff his costs of litigation

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Respectfully Submitted,

LaRonda Phox