XXX COURT OF APPEALS FOR THE XXX CIRCUIT
XXX,
Plaintiff/ Appellant
vs
XXX INC
Defendant/Respondent
NOW COMES Diondre Cobb, Appellant, and files this Appellate Brief against the Order
Granting Defendant’s Motion for Summary Judgment and for cause would show this Honorable
Court as follows:
ARGUMENT
The Plaintiff-Appellant, lodges this appeal against the decision of the XXX District
Court Western District of XXXX regarding the motion for summary judgment
granted to the Defendant/Respondent and states as follows:
1. That the Judge at the United States District Court Western District of XXX at
XXXX erred in law by failing to consider that a summary judgment is appropriate if it
appears, after viewing the evidence in the light most favorable to the non-moving party,
that there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); T.W. Electrical Service, Inc. v. Pacific
Electrical Contractors Association., XXX. The
Defendant/ Respondent did not present any genuine issue of material fact in their case.
2. That the Judge at the United States District Court Western District of Washington at
Tacoma erred in law by failing to appreciate the principles regarding summary judgment.
Precisely, that there is no issue for trial unless there is sufficient evidence favoring the
non-moving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby,
Inc., XXX. The Court
thus erred in considering that the Appellant/Plaintiff’s case disclosed triable issues.
3. That the Judge at the XXXX District Court Western District of XXX at
Tacoma erred in law by failing to appreciate the fact that the non-moving party may not
rely on the mere allegations in the pleadings to avoid summary judgment but must set
forth “specific facts showing that there is a genuine issue for trial.” T.W. Electrical
Service, Inc., 809 F. 2d at 630 (quoting Fed. R. Civ. P. 56(e)). The Plaintiff/ Appellant
did not rely on the mere allegations in the pleadings to avoid triable issues but disclosed
genuine issues in the opposition to the summary judgment which was disregarded by the
judge.
4. That the Judge at the XXXXX District Court Western District of XXX at
XXX erred in law by disregarding that “For a non-moving party to withstand a
summary judgment motion, it must show that there are genuine issues of material fact
that can only be resolved by a finder of fact because they may reasonably be resolved in
favor of either party. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics,
Inc.¸ 818 F.2d 1466, 1468 (9 th Cir. 1987)
5. That the Judge at the United States District Court Western District of Washington at
Tacoma erred in law and in fact by granting summary judgment despite the Plaintiff
Appellant demonstrating genuine issues for material fact. The court thus erred in fact and
in law in disregarding the following facts:
a) The Motion for Summary Judgment filed by Defendant contains numerous
falsities. The Defendant/Respondent claims that Plaintiff did not exhaust
administrative remedies available to him such as filing a complaint to the Equal
Employment Opportunities Commission (EEOC). The Plaintiff/ Appellant
submitted a complaint to EEOC and the commission issued its determination.
Exhibit 1. If a party feels aggrieved by the determination of the EEOC, he has a
right to seek redress elsewhere, including suing in a court of law. Plaintiff/
Appellant exercised his right to sue as he was not satisfied with EEOC’s
determination. This court has jurisdiction and this matter is properly before it.
b) The Judge at the United States District Court Western District of Washington at
Tacoma failed to disregard the declaration of Laura Crisp filed in support of
Defendant’s Motion for Summary Judgment (hereinafter referred to as the
“Motion”) for reasons that it is based on perjured testimony. At paragraph 6 of the
declaration, Ms. Crisp states that she has access to administrative charges that
have been filed against Alaska and that she confirms the Plaintiff/Appellant never
filed any administrative charges with the EEOC. This is proven as false. Ms.
Crisp also states that nothing else was done under the collective bargain
agreement, the collective bargain agreement ended in 2018 with a new collective
bargaining agreement being passed and approved on August 27th, 2019 the day
after the plaintiff was terminated.
c) That the Judge at the United States District Court Western District of Washington
at Tacoma erred in disregarding the declaration of Katheryn Garceau filed in
support of Defendant’s Motion for the reasons that it is based on perjured
testimony and hearsay. At paragraph 27 of the declaration, Ms. XXXX
that she called Plaintiff to a meeting. She also states that during the meeting, she
and others questioned Plaintiff about the use of his FMLA. Ms. XXXX was not
present during the meeting that was held on August 17, 2019. DKT #29 PG. 11-
12, 1.24-1.26 Defendants Answers to Complaint At paragraph 13 of the
declaration, Ms. XXXX states that Alaska provides travel privileges to many of
its employees. That is not true as all Alaska employees receive flight benefits.
d) The Judge at the United States District Court Western District of XXX at
Tacoma erred in disregarding the fact that Alaska’s flight privileges are benefits
that Plaintiff earned at the onset and during the duration of his employment. Just
like all other employees of Defendant, Plaintiff/Appellant was entitled to use
those benefits. The denial of those benefits by Defendant/Respondent while
allowing other employees who were not disabled and not on FMLA amounted to
discrimination.
e) The Judge also erred in failing to consider that the benefit being termed a “free
trip” was inconsequential since the Plaintiff/Appellant paid for it.
f) The Judge at the XXX District Court Western District of XXX at
Tacoma erred in fact and in law in ignoring the fact that the
Defendant/Respondent punished the Plaintiff/Appellant for each sick time he had.
Plaintiff had 52 hours of frontloaded Washington Paid Sick time which is outside
of the regular company accrued sick time for the year XXX and he was punished
and disciplined for each sick time he had. The records for XXX omit missing sick
time that Plaintiff had. Exhibit 3 & 4. The Plaintiff/Appellant had meetings with
his supervisors about the missing sick time and once he had proof of the missing
sick time defendant then denied a further request to meet and resolve the issue.
Exhibit 5
g) The Judge at the XXXX District Court Western District of XXX at
Tacoma also erred in fact and in law by failing to consider that the
Defendant/Respondent claims that Plaintiff/Appellant’s August 9 trade was
canceled because Fatima Hameed, the person who agreed to cover Plaintiff’s
shift, was not qualified to cover Plaintiff/Appellant’s shift. At the time Ms.
Hameed agreed to cover Plaintiff/Appellant’s shift, she was qualified to do
so. The system Alaska used for Trading shifts between employees of the same
rank and level allowed the trade. The trade performed by XXX on
Plaintiff’s behalf was successful. Defendant/Respondent’s decision to cancel that
trade was wrong as Ms. Hameed was qualified to conduct it. XXX Exhibit L.
h) The Judge at the United States District Court Western District of Washington at
Tacoma also erred in fact and in law by granting the Defendant/Respondent the
summary judgment and disregarding the fact that the Defendant/Respondent made
false allegations regarding the Plaintiff/Appellant’s conduct at work. As opposed
to the allegation that the Plaintiff/Appellant was dishonest, he was an outstanding
employee who performed exemplarily, earning recognition from his seniors as
well as colleagues even during his FMLA period.
i) The Judge at the United States District Court Western District of XXX at
XXX also erred in fact and in law by granting the Defendant/Respondent the
summary judgment and disregarding the fact that as opposed to the fraud
allegations against the Plaintiff/Appellant, the record shows that the defendant not
only believed the plaintiff had a disability that caused him to be ill during that
time but that his disability warranted approval of the connecting consecutive
FMLA days to continue to take care of his failing health.
6. Given the preceding demonstration of genuine issues of material fact in accordance
with Fed. R. Civ. P. 56(e), the Plaintiff/Appellant prays that the summary judgment
issued by the Judge of the United States District Court Western District of XXX at
XXX be set aside.
7. That this Appeal is brought without malice and is meritorious.
PRAYER FOR RELIEF
REASONS WHEREFORE, PREMISES CONSIDERED, the Plaintiff/Appellant thus prays for:
a) Setting aside the summary judgment issued by the Judge of the XXX District
Court Western District of XXX at XXX
b) Stay of execution of the summary judgment against the Plaintiff-Appellant by the Judge
of the XXXX Court Western District of XXX at XXX.
c) Reconsidering the facts stated by the Plaintiff/Appellant.
d) Any other relief that the court deems fit to grant.
Dated this ____ day of June, XXX.
Respectfully Submitted,
___________________________________
XXX
Plaintiff/Appellant in pro per
VERIFICATION
I, XXX, being duly sworn depose and say that I have read the foregoing Appellate Brief
and know the contents thereof. That the same is true of my own knowledge except as to those
matters and things stated upon information and belief, and as to those things, I believe them to be
true.
_________________________________
(Sign in the presence of a Notary Public)
Sworn to and subscribed before me this ___ day of June,XXX.
______________________________
Notary Public
________________________________________
(Printed name of Notary Public)
My Commission Expires: ____________________
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