I call Elisabeth Wheeler and her attorney Donna Glover inveterate liars because they lie all the time. In fact, they lie, kind of like our current orange skinned president, when they really don't have to lie. I think its just their first option. Anyway, when I have more time I'll add to this. Here's the latest that I sent to the court.
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
Pivot Physical Therapy
Case No.: No. 2 18 cv 221 DSC
Plaintiff's Response to Defendant's Aug 8th Statement, Local Rule 7E argument for August 20th extension and query to the Court: Does the Court want me to write an Amended Complaint?
While I'm limited by the demands of my very grueling physical job -- I walk three to five miles a day in 90 degree plus heat several days a week (With Pgh hills and steps its not unlike being on a stairmaster for three hours straight while in a sauna...) -- and the fact that I'm now juggling two lawsuits instead of one -- I believe I have a right under Rule 7 to file a response within 21, or even 35 days on a dispositive motion. But just to play it safe I think 21 days ends on August 29th. And there was so much that was wrong with Donna Glover's August 8th statement to this court that it quite frankly demands a response. There has been no response to the extension that I asked for or the motion to strike asked for by defendant's counsel. So I usually assume the worst and that 21 or 35 days is all that I get. But I would love that extension under local Rule 7e so I could be more thorough and scrutinize every dot and every t of Donna Glover's August 8th statement. Unless the court were to grant my wish and strip both PHRA and Title VII (They're not needed. You can do retaliation and disparate treatment and mixed motive cases just fine under Section 1981. In fact you can do more. I'm not sure why I'm supposed to by angry about that. Or even care.)
I'm going to briefly address three arguments. One, we're going to argue that my August 20th motion for an extension is clearly allowed under Local Rule 7E. Two, we believe that the Reyes vs. Autozone Inc. case is the most on point case for going forward where Title VII and PHRA were time barred but the valid Section 1981 claim continued and where the plaintiff was allowed discovery to attempt to prove his case. (Decisions that weren't rendered until after Discovery and only at the summary judgment stage. ) Three, we're going to talk a little bit more about civility and explain the factual basis behind our meat and potatoes disparate treatment case. They're overwhelming and are, for the most part, already proven by the Defendant's own 20 page EEOC statement. My arguments aren't "conclusionary" but based on the facts within the Defendant's own very flawed statements and my own experiences at Pivot.
So. Let us begin again.
I. Local Rule 7E allows for a one time extension for all parties. Let's quote the rule here:
E. Stipulations. The parties, without Court approval, may file a stipulation one time which extends for a period not to exceed 45 days from the original due date the time for filing either an answer to a complaint or a motion pursuant to Fed. R.
Civ. P. 12
There really shouldn't be any problem with me asking for such a request. I don't even ask for the full 45 days.
II. We have no problem with Title VII or the PHRA being stripped. Section 1981 claim is still valid and relies on the same methodology and the case can proceed. I thought that should be in bold.
A.) When I was back on the debate team in college (eons ago) we used a simple technique. Any argument that wasn't challenged by the other side was a win for us. The case that wasn't brought up or challenged in any way was Reyes vs. Autozone Inc, where the Title VII and PHRC were time barred but the Section 1981 claim was valid and it continued. That's also the case with Ejikeme v. PA Dept of Transportation. Not the exact same case law with Ejikeme but the common sense approach of barring claims that aren't allowed and allowing claims that are valid, like Section 1981 in this case, to continue. It should be noted that those conclusions were made in that case during the summary judgment phase and after Discovery and not beforehand. Go figure. Or you can go to the online database of Casetext and find 1000 plus cases featuring motions denied or motions affirmed. This isn't really a controversial view. Yes we know defendants take a crack at this in pages 9 though but they fail horribly. These issues can be fully addressed if my Aug. 20th extension is granted.
III. Let's talk briefly about "Civility" and why I think Attorney Donna Glover and her client Pivot Physical Therapy Supervisor Elizabeth Wheeler are both inveterate liars.
This has to be discussed a bit more fully.
A.) Let's address these concerns about "civility". Like in most writing people tend to bury the really interesting stuff in the footnotes. Here's one such statement although I'm not sure if a pro se plaintiff can effectively be threatened with sanctions"
Throughout the course of his Opposition,
Shropshire referred to the undersigned
defense counsel as “arrogant,” “kinda dumb,” and “lackluster, poorly briefed
clowns.” ( Shropshire Opp. at 5, 10). Shropshire also suggested that the
undersigned defense counsel are incapable of reading, are “silly and full of
lies,” and are “desperate.” ( at 10, 16) Although Id. Shropshire is not a member of the bar, and
thus not held to the same standards of conduct, he should nonetheless conduct
himself before this Court in a manner that respects and treats everyone with
civility, including the Defendants and their counsel. Counsel for Defendants
therefore requests that Shropshire refrain from this behavior going
Yeah, well, respect is earned not granted. Look, its not that I mind that you lie to me. Its clear that you and your client think that I'm a dumb darkie who doesn't know when white people are lying to his face. Fair enough. What I find, uh, well, "kinda dumb" and "arrogant" is lying to the court. This judge is learned but even if he weren't he has researchers and other legal minds to help guide him. So you should never lie about cases that Judge Cercone actually worked on. For example, in a paragraph that is kind of one big lie in itself (More on that paragraph later if I get that extension.) you state this on page 17 of your August 8th statement:
Second, case law from throughout the Third Circuit, and this Court in particular, is replete with examples of complaints that were factually deficient on their face and were dismissed as a matter of law prior to discovery. Of course, many of these cases were employment discrimination cases and involved pro se plaintiffs, some of which were decided by this very Court. See, e.g., Koger v. Robert Half International, 247 Fed. Appx. 349 (3d Cir. 2007) (affirming Judge Cercone’s decision to grant defendant’s motion to dismiss pro se plaintiff’s employment discrimination claim before discovery);
Yet Cercone wrote a case management order that included Discovery. There was an exhibit plan that was as released. This is one of Cercone's orders, which you can read at the PACER datebase.
DISCOVERY AND PRETRIAL DEADLINES IT IS FURTHER ORDERED that compliance with Local Rule 16.1 shall be completed as follows: 1) The parties shall move to amend the pleadings or add new parties by
January 9, 2006. 2) All fact and expert discovery shall be completed by February 7, 2006. All written discovery shall be initiated in sufficient
time to permit responses to be completed and depositions to be taken in
compliance with all applicable deadlines. 3) Plaintiff’s pretrial narrative
statement shall be filed on or before March 9, 2006, and comply with Local Rule
16.1.4A. Case -cv-00850-DSC Document 14 Filed 10/07/05 Page 1 of 5 -2- Counsel shall specify all material facts
to be proved at trial and identify all exhibits to be used in the plaintiff’s
case-in-chief. Proof of facts not specified or exhibits not identified may be
excluded at trial upon objection or by the court sua sponte. 4) Defendants’
pretrial narrative statement shall be filed on or before April 7, 2005, and comply with Local Rule 16.1.4B. Counsel shall
specify all material facts to be proved at trial and identify all exhibits to
be used in the defendants’ case-in-chief. Proof of facts not specified or exhibits
not identified may be excluded at trial upon objection or by the court sua
5) Counsel shall confer and complete the attached pretrial stipulation on or before
April 17, 2006. 6) All dispositive motions shall
be filed on or before May 17, 2006.
And if you look at Exhibit Two you find that Koger was actually deposed! This would suggest a discovery period. It also means that defendant's counsel is either incompetent or she told a big fat lie. Probably both. Perhaps this is an example of someone being "poorly briefed" or "lackluster" Now, its one thing to want more discovery after you've been granted a discovery period but its another thing to entirely claim that no discovery period ever occurred. And I'm pretty sure that's a lie. How is that not a lie? And as long as you and your clients lie, I'm going to call out your lies.
B.) The Defendant's EEOC statement, written by Attorney Donna Glover, is full of lies.
This is Exhibit One. I'm putting the whole 20 pages into the record. Here are just the lies on page 2 of that statement. Some of my claims can be proven with a discovery period. Some are already proven by the lack of any progressive discipline record. Why are lies important? Because, according to analysis by the Boston Employment Blog and written jury instructions for Title VII and Section 1981 discrimination cases:
"... “the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.” The Court further stated that “once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.”
Now this is just page two of that 20 page statement but Donna Glover and Elizabeth Wheeler lied about me being late for work on my second day. I was given a span to arrive between 7 and 7 15 am. I arrived in the lot by 7 15 am or possibly 7 14 am. The vehicle was long gone. I didn't even catch it pulling out. I got there on time. But there are cameras and I would be happy to look at the tape. Something I wouldn't want to do if I was lying. We need discovery for that. Both Donna Glover and Elizabeth Wheeler are lying about me violating the dress code. I wore sweatpants underneath my approved of slacks mainly because I used to walk home in 10 degree weather and didn't want to freeze off my essential bits. That's not a violation. Both Donna Glover and Elizabeth Wheeler are lying when they say I violated rules about submitting time sheets. According to April Bibars you could do it one of two ways: you could submit the sheets electronically or you could hand deliver them. I tried electronic delivery at first. But the Pivot computer systems couldn't read my documents even though my home computers could. But I never violated any orders by doing it that way. Under section five on page two, at least one of those occasions was when they sent me to the wrong address which made me late although without discovery how they define "late" or whether white workers were treated to the same standards isn't actually clear. (The other one was when they didn't tell me when my work day started. Usually I have to call the day before.) Also keep in mind the progressive discipline that they have. It wasn't used in just about every one of these situations. You're supposed to use it if I gamble on the premises or bring a gun to work. A verbal warning, then a written one. I got nuthin'. (Their suggested use of the progressive discipline rules.) On page two, third graph, that begins "On at least one occasion" both Donna Glover and Elizabeth Wheeler are lying when they claim "Mr. Shropshire disappeared during the workday". You know why that's a lie? Because I usually carried two cell phones on me. They knew where I was at all times and could reach me at all times. Sometimes trips were cancelled. I usually knew while driving. Hey its the future. You're never away from "work" with cell phones. I've been called while in the bathroom. They also mention, on page 5, that I committed the crime of going to the grocery while forgetting to mention that I had a lunch break and had to occasionally use the bathroom. The East End Coop is actually underneath Pivot. These are just awful dimwitted lies uttered by, I'm presuming, a desperate Elizabeth Wheeler and sanctioned by an equally desperate Donna Glover. Frankly, they'll be disproved within 90 seconds of a deposition with any other driver. I just hope I can get a discovery period.
And that's just pages two and five. So when I say this in my initial complaint:
11. Plaintiff believes he was fired for his race for a host of pretextual reasons including but not limited to: lying in wait, post hoc rationalizations, using a hypercritical standard not applied to white workers, treating white workers better and holding them to a lesser standard, false information in defendant's EEOC position statement and a whole bunch of "weaknesses, implausibilities, inconsistencies, incoherencies or contradictions" as written by Ruth Bader Ginsburg, Hardy v. S.F. Phosphates Ltd. Co. , 185 F.3d 1076, 1080 (10th Cir. 1999). We plan to save Pivot's unsigned evaluation, a two page parade of pretext, presented to the EEOC but never before seen by me, for either a rebuttal or perhaps even an amended complaint.
These aren't "conclusionary". These are facts that I derive from Pivot Physical Therapy's own EEOC statement, which I described as "silly and full of lies". I stand by that statement. And whenever Donna Glover or Elizabeth Wheeler lies, whether its court statements or to my face, I'm going to call them liars. To their faces. I don't know if lawyers can be sanctioned for lying all the time. Perhaps the judge would consider that "redundant" and "moot". After seeing Donna Glover in action I would get that.
I would also hope that the court would see that there are enough sufficient facts about the case to proceed to a discovery period. I was using shorthand for pretext before in describing the incidents. I hope this adds a bit more detail and depth.
Just for the record these are the kinds of pretext that are evident from Pivot's EEOC statement and my own observations:
Unattainable goals (Being on time when the destination is wrong.)
No opportunity to finish work improvement plan.
Suspect documentation (Using desk files and unsigned evaluations to prove alleged work deficiencies that were never mentioned to me when I worked there.)
Papering the file and hypercritical (A dirty shirt? Really? That's an offense to be fired for? Or just niggers?)
Failure to follow policies as typically applied (Take Pivot's progressive discipline policy, please.)
False statements to EEOC and other agencies (Take Pivot's EEOC statement, please.)
Not my job (To get the addresses right.)
Reasons just make no sense (You supplied the wrong address not me. That's what made me late. Whatever that means.)
Lying in wait
Post Hoc rationalizations (Didn't receive a single client complaint while working at Pivot now there's a bunch of them. Contradicted even by their own unsigned evaluation.)
Weaknesses, implausibilities, incoherencies or contradictions (See all of the above.)
Any one of these should beat summary judgment and get me a jury trial. But its not just the one thing. This case is wide and deep even before discovery. And if a shark like Cordes or O Brien were to get this case in front of a jury then your company is looking at extinction. Those are just the kinds of pretext I have time to list.
Are these enough facts for the court or is an amended complaint still needed? I can't tell if Attorney Donna Glover is being purposely obtuse or is just dim wittedly obtuse, or some awful combination of incompetence or stupidity or if she's just lying, yet again, when she says there are not facts in the case. Ms. Glover lies so much of course so who knows. I respect the competence and intelligence of this court and this judge. I have always been treated more than fairly. I have no respect for the aptitude or competence of Ms. Donna Glover, who as Pivot's attorney made their case much worse with that EEOC statement full of lies and error.