IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ______________________ No. 06-41574 ______________________ JUAN MOLINA, Plaintiff-Appellant, v. EQUISTAR CHEMICALS, L.P., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Southern District of Texas _____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF AND IN FAVOR OF REVERSAL ______________________________________________ RONALD S. COOPER EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION LORRAINE C. DAVIS Office of General Counsel Acting Associate General Counsel 1801 L Street, N.W., 7th Floor Washington, DC 20507 VINCENT J. BLACKWOOD 202-663-4721 Assistant General Counsel BARBARA L. SLOAN Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings. . . . . . . . . . 3 2. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . 3 3. District Court Decision . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT A REASONABLE JURY COULD FIND THAT PLAINTIFF WAS CONSTRUCTIVELY DISCHARGED WHEN HE RESIGNED RATHER THAN SIGN A "LAST CHANCE AGREEMENT" WAIVING HIS EMPLOYMENT DISCRIMINATION RIGHTS AND CLAIMS . . . . . . . . . . . 10 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 19 ADDENDUM Last Chance Agreement CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . . . . . . . . . . . . . . . . . . . . 14 Brown v. Kinney Shoe Corp., 237 F.3d 556 (5th Cir. 2001) . . . . . . . . . . . 8, 11-12, 17 Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006) . . . . . . . . . . . . . . . . 9, 10 EEOC v. University of Chicago Hospitals, 276 F.3d 326 (7th Cir. 2002) . . . . . . . . . . . . . . . . 12 Faruki v. Parsons S.I.P., Inc., 123 F.3d 315 (5th Cir. 1997) . . . . . . . . . . . . . . . . 12 Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) . . . . . . . . . . . . . . . . . . . . 16 Guthrie v. J.C. Penney Co., 803 F.2d 202 (5th Cir. 1986) . . . . . . . . . . . . . . 15-16 Harvill v. Westward Communications, LLC, 433 F.3d 428 (5th Cir. 2005) . . . . . . . . . . . . . 10, 11 Jones v. Robinson Property Group, 427 F.3d 987 (5th Cir. 2005) . . . . . . . . . . . . . . . . 9 Local 351, IUOE v. Cooper Natural Resources, 163 F.3d 916 (5th Cir. 1999) . . . . . . . . . . . . . . . . 15 Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) . . . . . . . . . . . . . . . . . . . . 11 Young v. Southwestern Savings & Loan Association, 509 F.2d 140 (5th Cir. 1975) . . . . . . . . . . . . . . 12, 17 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq . . . . . . . . . . . . passim 42 U.S.C. § 2003-3(a) . . . . . . . . . . . . . . . . 10 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ______________________ No. 06-41574 ______________________ JUAN MOLINA, Plaintiff-Appellant, v. EQUISTAR CHEMICALS, L.P., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Southern District of Texas _____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF AND IN FAVOR OF REVERSAL _______________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and other federal employment discrimination statutes. This appeal raises important questions about the meaning of "constructive discharge" in the context of a Title VII discrimination or retaliation case. Plaintiff alleges that he was constructively discharged when he resigned rather than sign an agreement, required by his employer as a condition of continued employment, waiving his employment discrimination rights and claims. The district court held that, even if his employer imposed the agreement because of plaintiff's complaints about discrimination, he could not show that he was constructively discharged or otherwise suffered an adverse action, because, according to the court, a reasonable person in plaintiff's position would have signed the agreement. We believe that, in reaching this conclusion, the district court misapplied the law regarding constructive discharge. Unless reversed by this Court, the ruling would undermine Title VII's protections against employment discrimination and retaliation. We therefore offer our views to the Court. STATEMENT OF THE ISSUE<1> Whether the district court erred in holding that plaintiff failed to show that he was constructively discharged when he resigned rather than sign an agreement, required by his employer as a condition of continued employment, waiving his employment discrimination rights and claims. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment of the district court dismissing this action. On July 8, 2005, plaintiff brought suit under Title VII and state law alleging that he was subjected to discrimination on the basis of his national origin and to retaliation for complaining about the discrimination. District court docket number ("R.")1. Defendant moved for summary judgment (R.13, R.25), and plaintiff opposed the motion. R.14. On June 30, 2006, the district court issued an order granting defendant's motion for summary judgment. R.28 ("Order"). Judgment was entered the same day. R.29. Thereafter, plaintiff moved for a new trial on his retaliation claim, attaching additional evidence. R.30. On September 18, 2006, the district court denied plaintiff's motion. R.33. On October 18, plaintiff filed a timely notice of appeal. See R.34 (amended notice of appeal). 2. Statement of Facts Juan Molina worked as an operator for a petrochemical plant in Corpus Christi, Texas. He began working at the plant in 1980; Equistar Chemicals acquired the plant in 1998. Order at 3. It is undisputed that Molina was a highly skilled employee who had never been formally disciplined until November of 2002. See id.; Molina Declaration ("Decl.") at 2. In August 2002, Molina called in sick the day after his vacation ended. On that day, he seriously injured his right hand while fixing a truck and, so, was unable to work for several months. Order at 3-4. When he returned to work on November 8, missing part of an index finger, he was called into a meeting with his supervisor, Albert Hesseltine, and two other management officials. Order at 4; see also Decl. at 3. At the meeting, he was given a "Decision Making Leave" ("DML") memorandum, criticizing him for excessive absences, tardiness, and attitude problems. Order at 4. To keep his job, Molina was required to answer a series of questions agreeing to adjust his behavior in these specific areas and acknowledging that further problems could result in discipline including termination. Id. Although Molina complied with this requirement, he maintains that neither his attendance nor his attitude had been problematic. Decl. at 3-5. He was later informed that the DML probation would last indefinitely, as long as he worked at Equistar. Order at 5; Decl. at 5-6. In 2004, Molina missed a total of 12 sick days and was counseled for one incident of forgetting to wear his safety goggles. Order at 6. He also failed to complete two training sessions as originally scheduled. Id. For the first, on April 30, he explained that he was out sick with kidney stones the last week of April; he made up the training on May 1, his first day back at work. For the second, on June 21, he explained that he had planned to be on vacation that day, so Hesseltine arranged for him to take the training with another crew in August, after he returned. Decl. at 6, 8-9. In June 2004, Molina and a coworker were changing the distribution nozzles on a cooling tower. Molina stated that, because this was a dirty, steamy job reached by mounting approximately 75 steps, once an employee was up on the cooling tower, he typically did not come down until he finished except to eat. On the morning in question, however, Hesseltine radioed him to come down, mid-task, and help unload a truck. Seeing Molina's location, another employee volunteered to unload the truck in Molina's stead. Nevertheless, Molina believed that, as a Hispanic, he received more than his share of hard, dirty work; he also believed that Hispanics generally were not treated equally to whites. At lunch time, he approached Hesseltine and asked why he "was being discriminated against." According to Molina, Hesseltine responded that, if he was discriminating, he was doing it "subconsciously." Decl. at 7. Shortly after this incident, Molina started his summer vacation. Two days after his return, he was met at the gate by Hesseltine and escorted to a meeting with two other management officials where he was presented with a document entitled "Last Chance Agreement" ("LCA"). Order at 6; R.25, Exhibit 3 (LCA).<2> In pertinent part, the LCA provides that, despite his DML in 2002, Molina had missed twelve work days and two trainings in 2004. LCA at page 1. The document then states that, "in lieu of termination," Molina would "stipulate and agree" inter alia: (1) that he "will be terminated" for repeating these performance issues or for "any other unacceptable performance or unacceptable behaviors" (LCA at page 2, ¶ 2); (2) that "his failure to comply with the terms of the Agreement will result in his immediate, voluntary and irrevocable resignation, with no right of appeal or any other form of redress under any provisions under law, or in equity, or in any other manner whatsoever" (id. ¶ 4); and (3) that the "Agreement operates as a General Release, which includes but is not limited to any claim or claims arising under federal, state or local laws, prohibiting discrimination or claims growing out of the Superintendent's right to discipline and direct employees including grievances and claims" under Title VII, seven other named discrimination laws, and "any other federal or state statute or local ordinance or law which may apply to civil rights or employment discrimination of any kind or nature." Id. ¶ 5 (adding that "list is . . . illustrative and not all- inclusive"). Finally, the document specifies that Molina would have 21 days in which to consider whether to sign the agreement and was encouraged to talk to an attorney. Id. at page 3 ¶ 8. Molina refused to sign. After scanning the document, he stated: "I don't work here no more . . . because I'm not signing that paper." Order at 7. Molina was escorted to his locker where he told his coworkers that he had been forced to resign. Decl. at 9. He then filed a charge and brought suit alleging federal and state claims for national origin discrimination and retaliation. R.1.<3> Defendant moved for summary judgment, arguing inter alia that Molina had not suffered any adverse employment action. 3. District Court Decision The district court granted defendant's motion. After summarizing the facts, the court dismissed plaintiff's national origin discrimination claim on the ground that there was insufficient evidence that he was subjected to an adverse action. Order at 16. Noting that plaintiff had resigned, the court stated that, in the Fifth Circuit, a "resignation is actionable . . . only if [it] amounts to a constructive discharge," which requires proof that "working conditions were so intolerable that a reasonable employee would feel compelled to resign." Id. at 11. Under that standard, the court concluded, plaintiff could not show that he was constructively discharged. Without discussing the specific terms of the agreement, the court reasoned that the "fact that plaintiff was required to sign the LCA to remain employed does not amount to a constructive discharge." Id. at 13. According to the court, the LCA, rather than an "intolerable condition," presents "an opportunity for employees to continue to work on a probationary basis and gives them a final chance to meet performance standards to avoid termination." Id. at 13-20 (emphasis in original). Nor, the court added, did plaintiff show any of the aggravating circumstances, such as a demotion or harassment, that this Court considers relevant in determining whether working conditions are intolerable. See Order at 11-12, 15-16 (citing, e.g., Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)). Accordingly, the court concluded, "Plaintiff fails to satisfy the third prong of the prima facie test for discrimination." Order at 16. Turning to the retaliation claim, the court noted that Title VII prohibits employer actions that discriminate against an employee because he has opposed a practice forbidden under Title VII. Order at 21. To make out a prima facie case, a plaintiff must show that he engaged in protected activity, he suffered an "adverse employment action," and there is a causal nexus between the two. Id. The court acknowledged that plaintiff was given the LCA only five working days after complaining about discrimination, and that "‘closeness in time between the protected activity and the adverse employment action could create a genuine issue of fact as to whether there was a causal connection.'" Id. at 21-22 (citing inter alia Jones v. Robinson Prop. Group, 427 F.3d 987, 995 (5th Cir. 2005)). Without deciding whether the evidence would support a finding that the other elements of a retaliation claim were satisfied, however, the court held that the "claim fails because [plaintiff] has not provided any evidence showing that he suffered an adverse employment action." Order at 22 (citing Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415 (2006)). The court indicated that it had already found that plaintiff was not constructively discharged. See Order at 23 ("Plaintiff was not terminated, rather, he resigned"). In addition, the court reasoned, unlike the plaintiff in Burlington Northern, Molina was not suspended or reassigned but was "merely asked to attend a meeting and was given the LCA at the meeting." Order at 23. Although plaintiff was "encouraged to consult an attorney" and "given 21 days to consider the Agreement," the court added, he resigned at the meeting. Id. at 23-24. "As such," the court concluded, "Plaintiff has failed to raise a genuine issue of material fact that he had suffered an adverse employment action." Id. at 24. The court also held, in the alternative, that there was insufficient evidence that defendant's articulated non-retaliatory reasons for imposing the LCA were pretextual. Id. ARGUMENT A REASONABLE JURY COULD FIND THAT PLAINTIFF WAS CONSTRUCTIVELY DISCHARGED WHEN HE RESIGNED RATHER THAN SIGN A "LAST CHANCE AGREEMENT" WAIVING HIS EMPLOYMENT DISCRIMINATION RIGHTS AND CLAIMS. The district court erred in holding that, even if defendant conditioned plaintiff's continued employment on agreeing to the LCA because he had complained about discrimination, there has been no Title VII violation because plaintiff did not present sufficient evidence that he suffered an adverse action. On the contrary, ample evidence suggests that Molina was constructively discharged when he resigned after refusing to sign the agreement. Not only is it clear that Equistar would have fired him if he had not resigned but, given the terms of the LCA, a jury easily could find that his refusal to sign the agreement was reasonable. Section 704(a) of Title VII makes it unlawful for an employer to discriminate against an individual because that individual has opposed any practice made unlawful under the statute. 42 U.S.C. § 2000e-3(a); see also Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006). To establish a claim under that provision, a plaintiff must show that he engaged in protected activity, he suffered an adverse action, and a causal connection exists between the two. See, e.g., Harvill v. Westward Communications, LLC, 433 F.3d 428, 439 (5th Cir. 2005). In this case, Molina alleges that, because he engaged in protected activity by complaining about discrimination, Equistar retaliated against him by requiring that he sign the LCA, waiving his employment discrimination rights and claims, as a condition of continued employment. He also alleges that, because he refused to sign the agreement, he was forced to resign to avoid being fired. Without determining whether Molina could establish the other elements of a retaliation claim, the district court dismissed the claim on the ground that there was no adverse action, reasoning that Molina could not show that he was constructively discharged. This was error. As the district court acknowledged, a constructive discharge, like an actual termination, is an adverse action. Order at 11; see also Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004) (employee's reasonable decision to resign because of intolerable working conditions "is assimilated to a formal discharge for remedial purposes"). The standard is objective: "Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?" Suders, 542 U.S. at 141. In cases such as Harvill, employees have alleged that working conditions became intolerable because of sexual harassment or other aggravating circumstances. See Harvill, 433 F.3d at 439; see also Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001) (listing "relevant" events including demotion, reduction in pay or job duties, harassment, and offers of continued employment on terms less favorable than the employee's former status). Historically, however, this Court and others have also held that an employee may be constructively discharged where, as here, he resigns rather than await inevitable termination. See Young v. Southwestern Sav. & Loan Ass'n, 509 F.2d 140, 144 (5th Cir. 1975); accord, e.g., EEOC v. University of Chicago Hosps., 276 F.3d 326, 332 (7th Cir. 2002) (constructive discharge where employee resigns after employer "acts in a manner so as to have communicated to a reasonable employee that she will be terminated"). Thus, for example, in Young, this Court reversed a judgment in favor of the employer where the plaintiff, an atheist, resigned rather than attend mandatory business meetings that began with a short religious talk and prayer. 509 F.2d at 144. The Court reasoned that, because plaintiff's absence from the meetings had been noticed, she could reasonably infer that termination was inevitable, and "it would be too nice a distinction to say that [she] should have borne the considerable emotional discomfort of waiting to be fired instead of immediately terminating her association with [her employer]." Id. See also Chicago Hospitals, 276 F.3d at 332 (no need to wait for axe to fall); Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997) (constructive discharge where plaintiff has choice between resigning and being terminated). Similarly, here, a reasonable jury could find that Molina was constructively discharged. Equistar does not suggest that Molina could have kept his job without signing the LCA. A jury thus could find that, having refused to sign the document, Molina reasonably believed that, if he did not quit first, termination was inevitable. This is apparent from his statement: "I don't work here no more . . because I'm not signing that paper." Order at 7. That he did not wait for defendant to say the words is irrelevant. The district court concluded that Molina had not shown a constructive discharge because a reasonable person in his position would have signed the agreement. According to the court, "[t]he LCA, rather than an intolerable working condition, presents an opportunity for employees to continue to work on a probationary basis and gives them a final chance to meet probationary standards to avoid termination." Order at 13. In reaching that conclusion, however, the court did not analyze the particular terms of this agreement. In fact, viewing the document as a whole, a jury could find that Molina's refusal to sign was justified for two reasons. First, the LCA would have required that Molina waive his employment discrimination rights and claims, both prospectively and retrospectively. See LCA, page 2, ¶¶ 4-5. If terminated, Molina would have "no right of appeal or any other form of redress under any provision under law, or in equity, or in any other manner whatsoever" (¶ 4). This means that he would be giving up his right to challenge his future termination on any grounds. But cf. Alexander v. Gardner- Denver Co., 415 U.S. 36, 51 (1974) ("there can be no prospective waiver of an employee's rights under Title VII"). In addition, the LCA would "operate[] as a General Release, which includes, but is not limited to, any claim or claims arising under federal, state or local laws, prohibiting discrimination or claims growing out of the Superintendent's right to discipline or direct employees, including grievances and claims under [eight specific discrimination statutes including Title VII] and [a]ny other federal or state statute or local ordinance or law which may apply to civil rights or employment discrimination of any kind or nature . . ." (page 2, ¶ 5). Thus, even assuming that this latter language were construed as limited to existing claims, Molina would still have had to relinquish what he considered valid national origin and retaliation claims just to keep his job. Although the district court decision barely mentions these waiver provisions, a reasonable person in Molina's position might well conclude that the statutory protections that Equistar was insisting he abandon are significant. Second, a jury reasonably could find that Molina had no real chance of avoiding termination under the terms of this agreement. In particular, the agreement is not aimed at any specific performance or behavioral concern, nor does it lay out concrete requirements that Molina must fulfill to keep his job. Compare Local 351, IUOE v. Cooper Natural Res., 163 F.3d 916, 918 (5th Cir. 1999) (because plaintiff tested positive for barbiturates, in violation of company drug policy, he was required to "abstain from using drugs in derogation of the drug policy" and submit to any testing employer deemed necessary for 12 months). Instead, the LCA applies to "any" performance or behavior that Equistar deemed "unacceptable" (page 2, ¶ 2), throughout the entire two-year duration of the agreement. Because the term "any . . . unacceptable performance or unacceptable behaviors" is not defined, it plainly would permit the company to fire Molina for any reason, however trivial or unavoidable. By signing the LCA, therefore, Molina would have been agreeing that he "will be terminated" unless his performance and behavior were flawless in every way; indeed, in light of the prospective waiver, he would have had no redress even if he were fired for overtly unlawful reasons or no reason at all. A reasonable person in Molina's position could easily find that working under such conditions was intolerable. In short, viewing paragraphs 4 and 5 in conjunction with paragraph 2, a reasonable jury might well conclude that Molina was being forced to give up his employment discrimination rights and claims in exchange for what in fact was only an illusory offer of continued employment. Cf. Guthrie v. J.C. Penney Co., 803 F.2d 202, 207 (5th Cir. 1986) (upholding constructive discharge finding where plaintiff's downgraded performance rating was a recognized step towards dismissal and new performance goals were considered impossible to meet). Rather than provide a realistic "opportunity" to keep his job, the LCA was intended simply to insulate the company from discrimination claims when -- not if –- Molina was fired. He could protect his employment record -- and retain his discrimination claims -- only by resigning at this juncture. Contrary to the court's conclusion, therefore, a jury could find that Molina reasonably refused to sign the agreement. Equistar may argue that this agreement is not materially different from a settlement agreement, which typically includes a waiver of existing claims. Any such analogy is inapt. Had Equistar fired Molina and then offered to reinstate him –- even one day later -- on condition that he waive his claims and accept the other conditions in the agreement, he would have had two choices. He could have accepted the offer and thereby waived his claim or he could have rejected the offer and gone to court; his rejection of the conditional offer would not even have affected his right to backpay if he eventually prevailed. See Ford Motor Co. v. EEOC, 458 U.S. 219, 232 n.18 (1982) (no failure to mitigate if plaintiff rejects job offer conditioned on compromising his claim). Because he would have actually been discharged, there would be no question that he had suffered an adverse action. By contrast, under the district court's decision here, Molina did not have that second option. If he signed the LCA, he would have waived his right to challenge his eventual termination (and any other discrimination claims). However, when he rejected the offer and resigned, reasonably believing that the alternative was termination, his departure was deemed voluntary and, according to the court, he suffered no adverse action. He thus was precluded from challenging discrimination whether or not he signed the agreement. Such a result makes no sense. An employer should not be permitted to deprive an employee of discrimination claims merely by manipulating the timing of a settlement offer. In dismissing Molina's claim, the district court also reasoned that he was not subjected to any of the aggravating circumstances that this Court has considered relevant in determining whether a plaintiff was constructively discharged. See Order at 11-12, 15 (citing Brown, 237 F.3d at 566). That is simply wrong. One of the relevant circumstances is the offer of continued employment on terms less favorable than the employee's former status. Brown, 237 F.3d at 566. In light of the LCA, a jury could easily find that, as in Young, the employment terms that Equistar was offering Molina were far "less favorable" than his former status. We therefore urge this Court to hold that Molina's evidence amply supports a finding that he was constructively discharged and, so, suffered an adverse action. To the extent the grant of summary judgment is based on a contrary ruling, the judgment should be reversed. CONCLUSION For the foregoing reasons, the judgment below should be reversed and the case remanded to the district court for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 3816 words, from the Statement of Interest through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2003 with Times New Roman 14-point font. Attorney for Equal Employment Opportunity Commission Dated: _________________________ ADDENDUM Last Chance Agreement CERTIFICATE OF SERVICE I certify that two paper copies of the foregoing Brief of the Equal Employment Opportunity Commission As Amicus Curiae, along with one diskette containing an electronic copy of the brief, were sent February 28, 2007, by first-class mail, postage prepaid, to: Ethel J. Johnson OGLETREE, DEAKINGS, NASH, SMOAK & STEWART PC 500 Dallas Street, Suite 3000 Houston, TX 77002-4709 Kathleen L. Day 1001 Santa Fe Street Corpus Christi, TX 78404 ________________________________ Barbara L. Sloan *********************************************************************** <> <1> The Commission takes no position on any other issue in this case. <2> A copy of the LCA is attached as an addendum to this brief. <3> Plaintiff’s appellate brief indicates that he is abandoning his national origin claim. Molina Brief at 9.