Petition for Writ of Certiorari — Earnest Durant, Petitioner v. District of Columbia

No. _____

IN THE

Supreme Court of the United States

__________________________

EARNEST DURANT,

v.

Petitioner,

DISTRICT OF COLUMBIA GOVERNMENT,

Respondent.

__________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the

District of Columbia Circuit

__________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________

ANTHONY F. SHELLEY

Counsel of Record

AMELIA D. HAIRSTON-PORTER

KATHLEEN T. WACH

MILLER & CHEVALIER

CHARTERED

900 Sixteenth St. NW

Washington, D.C. 20006

(202) 626-5800

E-mail: ashelley@milchev.com

i

QUESTIONS PRESENTED

(1) In light of the fractured decision in Celotex

Corp. v. Catrett, 477 U.S. 317 (1986), and the conflicting Circuit approaches regarding summary-judgment

practice that it has generated, what is a movant’s burden of production to obtain summary judgment

pursuant to Fed. R. Civ. P. 56 when the movant does

not bear the burden of proof on the merits of a claim?

(2) For purposes of defeating a summary-judgment

motion on a retaliation claim under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), is a

showing of temporal proximity between an employee’s

protected conduct (such as the filing of a lawsuit

against an employer) and an employer’s adverse employment decision (such as terminating the employee’s

job) sufficient to create a genuine issue that any proffered legitimate reasons by the employer for the

adverse employment decision are a “pretext” for retaliation?

ii

LIST OF PARTIES TO THE PROCEEDINGS

IN THE COURT OF APPEALS

Plaintiff-Appellant

Earnest Durant

Defendant-Appellee

District of Columbia Government

Court-Appointed Amicus Curiae on Behalf of Appellant

Anthony F. Shelley

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................................i

LIST OF PARTIES TO THE PROCEEDINGS

IN THE COURT OF APPEALS................................ ii

TABLE OF AUTHORITIES .....................................vi

INTRODUCTION & SUMMARY ..............................1

OPINIONS BELOW...................................................3

STATEMENT OF JURISDICTION ..........................4

STATUTORY PROVISIONS AND FEDERAL

RULES INVOLVED...................................................4

STATEMENT OF THE CASE ...................................4

REASONS FOR GRANTING THE PETITION ......11

I.

The Court Should Grant Certiorari on the

First Question Presented – i.e., What Is the

Burden of Production, Under Celotex, for a

Summary-Judgment Movant Who Does Not

Bear the Burden of Proof on the Merits?..........11

A. Certiorari Is Warranted Because the

Lower Courts Are Split on the Movant’s

Burden Under Celotex ................................11

B. Other Considerations Likewise Favor

Granting Certiorari to Clarify the

Summary-Judgment Movant’s Burden .....21

II. The Court Should Grant Certiorari on the

Second Question Presented – i.e., Is a Showing of Temporal Proximity Between

Protected Activity and Adverse Action, in

iv

the Context of a Title VII Retaliation Claim,

Enough to Create a Genuine Dispute About

an Employer’s Proffered Explanations? ...........25

A. Certiorari Is Warranted Because the

Circuits Are Divided in Their Approaches

to

Temporal-Proximity

Evidence ......................................................25

B. Other Considerations As Well Favor

Granting Certiorari to Clarify the Role

of Temporal-Proximity Evidence in Retaliation Cases ............................................32

CONCLUSION.........................................................34

Appendix A – Opinion Affirming District Court

Decision Granting Motion for Summary

Judgment (D.C. Cir. Nov. 17, 2017)................. 1a

Appendix B – Memorandum Opinion Granting

Defendant’s Motion for Summary Judgment (D.D.C. Mar. 25, 2013) .......................... 29a

Appendix C – D. Ct. Order Granting Motion

for Summary Judgment (D.D.C. Mar. 25,

2013)................................................................ 74a

Appendix D – Order Denying Petition for Panel Rehearing (D.C. Cir. Jan. 10, 2018) ........... 75a

Appendix E – Order Denying Petition for Rehearing En Banc (D.C. Cir. Jan. 10, 2018) .... 76a

Appendix F – D.C. Cir. Judgment (D.C. Cir.

Nov. 17, 2017) ................................................. 78a

Appendix G – Fed. R. Civ. P. 56 .......................... 80a

Appendix H – 42 U.S.C. § 2000e-3 ...................... 84a

v

TABLE OF AUTHORITIES

Cases

Page(s)

Adickes v. S.H. Kress & Co.,

398 U.S. 144 (1970)....................................9, 22, 23

Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664 (10th Cir. 1998)........................16, 20

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986)........................................23, 24

Annett v. Univ. of Kan.,

371 F.3d 1233 (10th Cir. 2004)............................28

Arrington v. United States,

473 F.3d 329 (D.C. Cir. 2006)..........................9, 20

Ashe v. Corley,

992 F.2d 540 (5th Cir. 1993)..........................17, 18

Beatty v. Wash. Metro. Area Transit Auth.,

860 F.2d 1117 (D.C. Cir. 1988)......................20, 21

Bedford v. Doe,

880 F.3d 993 (8th Cir. 2018)................................17

Brady v. Office of Sergeant at Arms,

520 F.3d 490 (D.C. Cir. 2008)................................8

Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006)..................................................7

Carter v. Ball,

33 F.3d 450 (4th Cir. 1994)..................................28

Casna v. City of Loves Park,

574 F.3d 420 (7th Cir. 2009)................................30

Catrett v. Johns-Manville Sales Corp.,

756 F.2d 181 (D.C. Cir. 1985)..............................12

vi

Celotex Corp. v. Catrett,

477 U.S. 317 (1986)...................................... passim

Clark Cnty. Sch. Dist. v. Breeden,

532 U.S. 268 (2001)..............................................33

Clark v. Coats & Clark, Inc.,

929 F.2d 604 (11th Cir. 1991)........................17, 18

Coleman v. Donahoe,

667 F.3d 835 (7th Cir. 2012)..........................30, 34

Dawson v. Entek Int’l,

630 F.3d 928 (9th Cir. 2011)................................29

Delgado Echevarria v. AstraZeneca Pharm.

LP,

856 F.3d 119 (1st Cir. 2017) ................................28

Donald v. Sybra, Inc.,

667 F.3d 757 (6th Cir. 2012)................................28

El Sayed v. Hilton Hotels Corp.,

627 F.3d 931 (2d Cir. 2010) .................................28

Elkins v. Richardson-Merrell, Inc.,

8 F.3d 1068 (6th Cir. 1993)..................................16

Ellington v. City of E. Cleveland,

689 F.3d 549 (6th Cir. 2012)................................16

Farid v. Smith,

850 F.2d 917 (2d Cir. 1988) .................................17

Farrell v. Planters Lifesavers Co.,

206 F.3d 271 (3d Cir. 2000) .................................30

Gibson v. Geithner,

776 F.3d 536 (8th Cir. 2015)................................28

Grant v. Trs. of Ind. Univ.,

870 F.3d 562 (7th Cir. 2017)................................16

vii

Grimes v. District of Columbia,

794 F.3d 83 (D.C. Cir. 2015)..........................20, 21

Hamilton v. GE,

556 F.3d 428 (6th Cir. 2009)................................32

Harris v. Forklift Sys., Inc.,

510 U.S. 17 (1993)..................................................5

Holcomb v. Powell,

433 F.3d 889 (D.C. Cir. 2006)..............................28

Hunter v. Caliber Sys., Inc.,

220 F.3d 702 (6th Cir. 2000)................................20

Jefferson v. Chattanooga Publ’g Co.,

375 F.3d 461 (6th Cir. 2004)................................16

Jones v. Bernanke,

557 F.3d 670 (D.C. Cir. 2009)..............................28

Kauffman v. P.R. Tel. Co.,

841 F.2d 1169 (1st Cir. 1988) ..............................16

Kerr v. Jewell,

549 F. App’x 635 (9th Cir. 2013) .........................29

Loudermilk v. Best Pallet Co., LLC,

636 F.3d 312 (7th Cir. 2011)..........................30, 31

Manders v. Okla. ex rel. Dep’t of Mental

Health,

875 F.2d 263 (10th Cir. 1989)........................16, 20

Marra v. Phila. Hous. Auth.,

497 F.3d 286 (3d Cir. 2007) .................................30

Matias v. Sears Home Improvement Prods.,

391 F. App’x 782 (11th Cir. 2010) .......................28

viii

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp.,

475 U.S. 574 (1986)........................................23, 24

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)........................................26, 32

Nissan Fire & Marine Ins. Co. v. Fritz Cos.,

210 F.3d 1099 (9th Cir. 2000)..................17, 18, 23

Passantino v. Johnson & Johnson

Consumer Prods.,

212 F.3d 493 (9th Cir. 2000)................................29

Proudfoot v. Arnold Logistics, LLC,

629 F. App’x 303 (3d Cir. 2015)...........................30

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000)..............................................32

Reynaga v. Roseburg Forest Prods.,

847 F.3d 678 (9th Cir. 2017)..........................28, 29

Ricci v. DeStefano,

557 U.S. 557 (2009)..............................................24

Russ v. Int’l Paper Co.,

943 F.2d 589 (5th Cir. 1991)..........................17, 18

Salahuddin v. Goord,

467 F.3d 263 (2d Cir. 2006) .................................17

Scadden v. Werner,

677 F. App’x 996 (6th Cir. 2017) .........................16

Street v. J.C. Bradford & Co.,

886 F.2d 1472 (6th Cir. 1989)........................16, 20

Strong v. Univ. Health Care Sys., L.L.C.,

482 F.3d 802 (5th Cir. 2007)................................28

ix

Strother v. S. Cal. Permanente Med. Grp.,

79 F.3d 859 (9th Cir. 1996)..................................29

Talavera v. Shah,

638 F.3d 303 (D.C. Cir. 2011)....................9, 10, 27

Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248 (1981)...................................... passim

United States v. Four Parcels of Real

Property,

941 F.2d 1428 (11th Cir. 1991)......................17, 18

Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013)........................................33, 34

Whetstine v. Gates Rubber Co.,

895 F.2d 388 (7th Cir. 1990)................................16

Windon Third Oil & Gas Drilling P’ship v.

FDIC,

805 F.2d 342 (10th Cir. 1986)..............................20

Woodruff v. Peters,

482 F.3d 521 (D.C. Cir. 2007)..............................27

Statutes

28 U.S.C. § 1254 ..........................................................4

Civil Rights Act of 1964, Title VII,

42 U.S.C. §§ 2000e - 2000e-17 ...............................2

42 U.S.C. § 2000e-3................................................4

42 U.S.C. § 2000e-16..............................................4

Rules and Other Authorities

Charles A. Wright, et al. Federal Practice &

Procedure § 2727.1 (4th ed. 2017) .......................23

x

Fed. R. Civ. P. 56............................................... passim

Jack H. Friedenthal, Symposium the Fiftieth

Anniversary of the Federal Rules of Civil

Procedure: Cases on Summary Judgment:

Has There Been a Material Change in

Standards, 63 Notre Dame L. Rev. 770

(1988)..............................................................17, 23

Samuel Issacharoff & George Lowenstein,

Second Thoughts About Summary

Judgment, 100 Yale L.J. 73 (1990) ...............23, 24

Melissa L. Nelkin, One Step Forward, Two

Steps Back: Summary Judgment After

Celotex, 40 Hastings L.J. 53 (1988).....................23

Justin P. O’Brien, Weighing Temporal

Proximity in Title VII Retaliation Claims,

43 B.C. L. Rev. 741 (2002) ...................................31

Martin H. Redish, 2005 Stanford Law Review

Symposium: The Civil Trial: Adaption &

Alternatives:

Symposium

Article:

Summary Judgment and the Vanishing

Trial: Implications of the Litigation

Matrix, 57 Stan. L. Rev. 1329 (2005) .......... passim

Adam Price, Reconsidering Celotex: What Is

the Burden of Production When a

Defendant Moves For Summary Judgment

on the Ground That the Plaintiff Lacks

Evidence?, 11 Utah Bar J. 14 (1998).............20, 23

xi

Adam N. Steinman, The Irrepressible Myth of

Celotex:

Reconsidering

Summary

Judgment Burdens Twenty Years after the

Trilogy, 63 Wash. & Lee L. Rev. 81, 119

(2006)............................................................ passim

INTRODUCTION & SUMMARY

This case involves two controversial and independent procedural questions. They are controversial in

that, on both, there are mature Circuit splits. They

are independent because the questions arise from

separate, stand-alone claims in this case and, other

than being presented in the context of the same lawsuit, are not legally related.

The first Question Presented is a long-festering

one under Celotex Corp. v. Catrett, 477 U.S. 317 (1986),

concerning summary-judgment practice: what is the

showing a party moving for summary judgment under

Fed. R. Civ. P. 56 must make to discharge its initial

burden of production, when the movant does not bear

the burden of proof on the relevant merits issue? Some

Circuits – in what has been termed the “put up or shut

up” approach – have gleaned from the Celotex fourJustice plurality opinion a requirement that the moving party may discharge its initial burden simply by

making an assertion after discovery has closed that its

opponent lacks sufficient evidence to establish disputed issues of material fact. Other Circuits, focusing on

Justice White’s concurrence and Justice Brennan’s

three-Justice dissenting opinion, have read Celotex to

mandate a higher standard, whereby the summaryjudgment movant must show that it addressed the

merits question in discovery and that the opponent’s

discovery responses establish a lack of disputed material facts. Moreover, in what creates a particularly

messy situation in the lower courts, sometimes a Circuit’s jurisprudence encompasses both approaches.

The D.C. Circuit below followed the “put up or shut up”

paradigm and affirmed summary judgment against

2

Petitioner Earnest Durant as to certain claims of retaliation and hostile work environment under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e 2000e-17, because purportedly Durant responded insufficiently to the naked assertion of his former

employer – Respondent District of Columbia (“the

District”) – that he lacked evidence supporting the

claims.

The second Question Presented involves the showing necessary for an employee to defeat a summaryjudgment motion on a retaliation claim under Title VII

if the employer has proffered supposedly legitimate

reasons for an adverse employment decision: is a

showing of temporal proximity between the employee’s

protected activity and the employer’s allegedly retaliatory act sufficient to raise a genuine issue that the

legitimate reasons the employer has supplied for its

act are really a “pretext” for retaliation? Under the

legal regime governing Title VII retaliation claims,

once a defendant-employer offers a supposedly legitimate basis for its action, the plaintiff-employee – to

avoid summary judgment – must present evidence that

“the legitimate reasons offered by the defendant were

not its true reasons, but were a pretext” for retaliation.

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

253 (1981) (“Burdine”). The Circuits are divided over

whether a showing of temporal proximity between the

protected activity and the alleged retaliation is sufficient to create a genuine dispute that the employer’s

stated reasons are pretext, with some Circuits saying

it is and others – such as the D.C. Circuit below –

saying it is not.

3

The Court should grant the Petition and resolve

both questions. Plenary review on the first question

would stem the “confusion” Celotex has long created on

a fundamental issue of summary-judgment practice

arising regularly in federal courthouses nationwide.

Martin H. Redish, 2005 Stanford Law Review Symposium: The Civil Trial: Adaption & Alternatives:

Symposium Article: Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57

Stan. L. Rev. 1329, 1348 (2005) [hereinafter “Redish”].

And with temporal proximity and other circumstantial

evidence being key to many cases alleging employer

retaliation, especially because direct evidence of an

employer’s true motive is notoriously difficult to adduce, the Court’s consideration of the second question

would resolve whether a large swath of civil-rights

cases ever can reach a jury. Finally, the fact that both

questions are here independently presented in a single

case gives the Court a unique opportunity efficiently to

settle two vexing procedural issues at one time.

OPINIONS BELOW

The November 17, 2017 opinion of the U.S. Court

of Appeals for the District of Columbia Circuit is reported at 875 F.3d 685 (D.C. Cir. 2017) and reproduced

at Pet. App. 1a-28a.1 The opinion of the U.S. District

Court for the District of Columbia is reported at 932 F.

1 “Pet. App.” refers to the Appendix attached to this Petition. “Ct.

of Appeals App.” refers to the Appendix filed in the D.C. Circuit

by the amicus curiae that the D.C. Circuit appointed to present

arguments on behalf of Durant, who otherwise proceeded pro se

on appeal. The undersigned counsel was the court-appointed

amicus below and is Durant’s counsel in this Court.

4

Supp. 2d 53 (D.D.C. 2013) and is reproduced at Pet.

App. 29a-73a.

STATEMENT OF JURISDICTION

Durant seeks review of the Court of Appeals’ November 17, 2017 decision affirming the District Court’s

summary judgment for the District on all claims. The

D.C. Circuit denied a timely-filed petition for panel

rehearing and rehearing en banc on January 10, 2018.

See Pet. App. 74a-75a. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AND

FEDERAL RULES INVOLVED

Relevant provisions of Fed. R. Civ. P. 56 and Title

VII are set forth in the Appendix to this Petition.

STATEMENT OF THE CASE

A. Durant’s Revised Amended Complaint in the

underlying lawsuit raises multiple claims against the

District under Title VII. Overall, he maintains that

the District’s Department of Corrections, where he was

employed from 1983 until 2010, “retaliated against

him for engaging in activities that were protected under Title VII and subjected him to a hostile work

environment.” Pet. App. 2a. In relevant part, Title

VII makes it unlawful “for an employer to discriminate

against [an employee] . . . because he has opposed any

practice made an unlawful employment practice by

this title, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.” 42

U.S.C. § 2000e-3(a); see also id. § 2000e-16(a) (extending Title VII to the District). Title VII also prohibits

employers from “requiring people to work in a discrim-

5

inatorily hostile or abusive environment.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

Durant maintains that the District retaliated

against him by, among other things, limiting his job

responsibilities, providing him with poor performance

reviews, requiring him to work in an isolated environment, denying him promotions, and ultimately

terminating his job in June 2010 by choosing to include

him as part of a Reduction in Force or “RIF”; it did all

of these things, says Durant, because he participated

as a plaintiff in a federal lawsuit against the District

in the 1990s alleging sexual harassment (Neal v. Dir.,

Dist. of Columbia Dep’t of Corr., Civ. A. No. 93-2420

(D.D.C.)), because he filed discrimination claims over

many years against the District with the Equal Employment Opportunity Commission (“EEOC”) and local

administrative agencies (some successful), and because

he filed in January 2010 the underlying suit against

the District. See Pet. App. 5a, 8a-9a. As to a hostile

work environment, Durant alleges that the District

“created a hostile work environment by ‘failing to provide him with due process or adequate responses on

other proceedings, by terminating him through a

fraudulent Reduction in Force, and by failing to place

him in a new position in violation of’” requirements in

governmental re-employment and veterans programs.

Id. at 9a (quoting Rev. Am. Compl.).

B. Discovery in this case closed on May 11, 2012,

with the District two months later filing a motion for

summary judgment. See id. When the District Court

subsequently took up the District’s motion, it divided

Durant’s allegations, for purposes of analysis, into four

general categories: (1) averments that the District

6

took retaliatory action prior to October 2007; (2) allegations that the District took retaliatory action

starting in October 2007, but before the District informed Durant in May 2010 that his employment

would be terminated pursuant to the RIF (which then

occurred in June 2010); (3) allegations that Durant’s

termination pursuant to the RIF was retaliatory; and

(4) the hostile-work-environment allegations. See id.

at 47a, 56a-63a, 66a, 69a. In reality, the District addressed in its summary-judgment motion only the first

three categories of allegations. See Ct. of Appeals App.

AA255-56, AA284-88. Durant, in turn, filed an opposition. See id. at AA384-565.

More specifically, with respect to Durant’s allegations that the District took retaliatory action prior to

October 2007 (i.e., the first category of allegations), the

District sought summary judgment on the ground that

Durant supposedly had not timely “exhausted his administrative remedies” with the EEOC or local

agencies. Id. at AA284. On this front, the entirety of

the District’s showing in its memorandum in support

of summary judgment was a statement that “[n]owhere

in the Revised Amended Complaint does Plaintiff aver

a timely filing as a precondition to this action.” Id. at

AA285. The District did not address the subject in its

two-page Statement of Undisputed Material Facts.

See id. at AA257-58. In his summary-judgment opposition, Durant stated that he “filed complaints in late

2007 - 2008 with [the] EEO[C] and [the District’s]

Office of Human Rights,” and he referenced an Exhibit.

Id. at AA409; see id. at AA387.

As to the second category of Durant’s allegations –

i.e., that the District took retaliatory action between

7

October 2007 and the May-June 2010 RIF – the District’s assertion in support of summary judgment was

that Durant failed to suffer cognizable “adverse action.” Id. at AA285. To Durant’s assertions that his

“duties and responsibilities changed so as to constitute

an adverse employment action” (id. at AA287), the

District stated only (and without any citation to record

materials) that its actions “did not constitute an adverse employment action, and therefore judgment

must be entered in favor of the District.” Id. at AA288.

The District did not address in its Statement of Undisputed Material Facts any evidence, or lack of evidence,

as to whether it had adversely altered Durant’s duties

and responsibilities.2 In response, Durant summarized the actions that he believed were adverse, with

references to attached Exhibits. See id. at AA409-15.

With respect to Durant’s job termination in association with the RIF (i.e., the third category of

allegations), the controversy ultimately centered on

whether the District utilized the RIF as a pretext for

retaliation. On this one issue, the District did cite to

the record, asserting in its supporting memorandum

(though disputed by Durant, see id. at AA415, AA42021) that, based on Durant’s deposition responses, he

purportedly had “failed to establish any nexus between

the RIF and the alleged protected activities.” Id. at

AA284.

2 The District did challenge Durant’s expert concerning Durant’s

loss of wages; but the District Court correctly noted that “lost

wages” is not “the standard” for “what constitutes a materially

adverse action.” Pet. App. 56a (citing Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68 (2006)).

8

On the fourth set of allegations – i.e., the claim of a

hostile work environment – the District nowhere addressed them in its summary-judgment memorandum

or Statement of Undisputed Material Facts, though

Durant did in his opposition. See id. at AA421-25.

C. The District Court granted summary judgment

on all four categories of allegations. On the first, second, and fourth categories, it repeatedly held that

“plaintiff ha[d] failed to put forth sufficient evidence

that would create a genuine question.” Pet. App. 71a

(emphasis added); see id. at 58a, 59a, 60a, 61a, 65a. At

the same time, the District Court never once outlined

how and whether the District had shown a lack of disputed facts.

With respect to the third category of allegations

(namely, that Durant’s job termination via the RIF

was retaliatory), the District Court said that, because

it found that the District had proffered an agency-wide

RIF “due to budgetary constraints” as a legitimate

reason for Durant’s job termination, Durant needed to

“produce[] evidence sufficient for a reasonable jury to

find that the employer’s stated reason was not the

actual reason for the adverse action and that the employer actually retaliated against the plaintiff.” Id. at

66a-67a (citing Brady v. Office of Sergeant at Arms,

520 F.3d 490, 495 (D.C. Cir. 2008)). But the District

Court held that Durant’s showing was insufficient,

when he relied on “temporal proximity” between the

filing of the current suit in January 2010 (as well as an

EEOC complaint in March 2010) and his termination

pursuant to the RIF in June 2010. Id. at 39a, 67a.

The District Court reasoned that, within the D.C. Circuit, “proximity alone is insufficient to prove that

9

defendant’s legitimate non-retaliatory reasons are

pretextual.” Id. at 67a (citing Talavera v. Shah, 638

F.3d 303, 313 (D.C. Cir. 2011)).

D. On appeal, the D.C. Circuit affirmed the District Court’s summary judgment for the District on all

claims. On the allegations that the District had retaliated for protected conduct pre-October 2007, had

retaliated for protected conduct from October 2007 to

May 2010, and had created a hostile work environment

(i.e., the first, second, and fourth categories of allegations existing at the close of discovery), the Court of

Appeals rejected the court-appointed amicus’s argument that the District Court applied an incorrect

summary-judgment standard. The amicus, citing

Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970),

asserted that “a party moving for summary judgment

bears the burden to ‘show initially the absence of a

genuine issue concerning any material fact,’ and [that]

‘it makes no difference if the non-moving party fails to

offer opposing evidence, or even to respond at all.’”

Pet. App. 15a (quoting Amicus Br.). The Court of Appeals, relying on the plurality opinion in Celotex, held

that “[t]his argument misstates the law and is contrary

to the principles governing summary judgment.” Id.

(citing Celotex, 477 U.S. at 323). The standard applied

by the D.C. Circuit, instead, was that “[s]ummary

judgment is warranted where the party bearing the

burden of proof at trial fails to show a triable issue as

to an essential element of that party’s claim.” Id. at

10a (citing Arrington v. United States, 473 F.3d 329,

335 (D.C. Cir. 2006)) (emphasis added).

The Court of Appeals then determined, on each of

these three categories of allegations (again, the first,

10

second, and fourth categories), that Durant had failed

to present affirmative evidence necessary to avoid

summary judgment. See, e.g., id. at 16a-17a, 20a, 24a25a, 26a. Like the District Court, the D.C. Circuit did

not address the showing the District made to support

its initial summary-judgment burden, stating only at

one point that “[d]iscovery closed on May 11, 2012 and

the District filed a motion for summary judgment on

July 13, 2012” and, on one other occasion, describing

what the District “contend[ed].” Id. at 9a, 2a.

On Durant’s other allegations – namely, that the

District’s termination of his job in June 2010 through

the RIF was retaliatory (i.e. the third category of allegations) – the D.C. Circuit engaged in the same

reasoning as the District Court. Durant, the Court of

Appeals said, needed to show that the District’s “legitimate,

nonretaliatory

explanation

for

[his]

termination” was “‘a pretext’ for retaliation.” Id. at

24a (quoting Burdine, 450 U.S. at 253). Finding that

Durant had failed this test, the D.C. Circuit stated:

[T]he only evidence Durant provided to support an inference of retaliation was the

temporal proximity between his having filed

the present action (on January 6, 2010) and

his termination (for which he received notification on May 25, 1010). . . . “Where, as here,

an employer has provided a legitimate, nonretaliatory reason for its employment action,

positive evidence beyond mere proximity is

required to defeat the presumption that the

proffered explanation[] [is] genuine.”

Id. at 24a-25a (quoting Talavera, 638 F.3d at 313).

11

In determining that Durant had presented insufficient evidence of pretext, the Court of Appeals made no

mention of other points Durant had made to substantiate that (in his view) the District’s motives for

including him in the RIF were suspect: he was the

only employee immediately escorted out of the office

upon notification of the RIF and placed on immediate

administrative leave (until the RIF took effect) and

was also one of the few employees not rehired in another capacity soon after the RIF. See, e.g., Ct. of

Appeals App. AA396-97.

REASONS FOR GRANTING THE PETITION

I.

The Court Should Grant Certiorari on the

First Question Presented – i.e., What Is the

Burden of Production, Under Celotex, for a

Summary-Judgment Movant Who Does Not

Bear the Burden of Proof on the Merits?

A. Certiorari Is Warranted Because the

Lower Courts Are Split on the Movant’s

Burden Under Celotex

The first Question Presented – namely, what is the

movant’s burden, under Celotex Corp. v. Catrett, 477

U.S. 317 (1986), to obtain summary judgment when

the movant does not bear the burden of proof on the

merits of the claim? – has divided the Circuits and

sometimes even appellate panels within Circuits. That

division is long-existing and well-documented in the

scholarly commentary. It is also understandable, given the fractured nature of the decision thirty years ago

in Celotex. And the D.C. Circuit’s view of the movant’s

burden – a burden lower than what some other Circuits (and even some other D.C. Circuit decisions)

12

would have imposed – was determinative of several

categories of Durant’s allegations. The Court should

grant certiorari in Durant’s case to clear up the disorder wrought by Celotex.

1. Celotex was a splintered decision, with a fourJustice plurality opinion authored by then-Justice

Rehnquist, a concurrence by Justice White, a threeJustice dissent per Justice Brennan, and a separate

dissent by Justice Stevens. In Celotex, the D.C. Circuit

had ordered a denial of summary judgment where the

moving defendant, who (as a defendant) did not have

“the burden of proof at trial,” had not presented “‘any

evidence, in the form of affidavits or otherwise, to

support its motion.’” 477 U.S. at 322, 321 (quoting

Catrett v. Johns-Manville Sales Corp., 756 F.2d 181,

181, 184 (D.C. Cir. 1985)). The plurality and Justice

White reversed and ordered further proceedings in the

lower courts on the ground that the D.C. Circuit’s

decision was “inconsistent with the standard for summary judgment set forth in [the then-existing version

of] Rule 56(c).” Id. at 322; see also id. at 328 (White, J.,

concurring).

On the summary-judgment movant’s burden, the

plurality in Celotex found “no express or implied requirement in Rule 56 that the moving party support

its motion with affidavits or other similar materials

negating the opponent’s claim.” Id. at 323. It noted

that, “[o]f course, a party seeking summary judgment

always bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions,

answers to interrogatories, and admissions on file,

together with the affidavits, if any,’ which it believes

13

demonstrate the absence of a genuine issue of material

fact.” Id. (quoting earlier version of Fed. R. Civ. P.

56(c)). According to the plurality, that “burden on the

moving party may be discharged by ‘showing’ – that is,

pointing out to the district court – that there is an

absence of evidence to support the nonmoving party’s

case.” Id. at 325 (emphasis added). The plurality,

however, did not elaborate on how a moving party

“point[s] out” the absence of supporting evidence for

the non-movant, other than to emphasize that the

creation of affirmative evidence in the form of affidavits (which the court below had required) to undermine

the non-movant’s case was unnecessary. Id.

But Justice White in concurrence had more to say

concerning the burden on the moving party. He added:

I agree that the Court of Appeals was wrong in

holding that the moving defendant must always support his motion with evidence or

affidavits showing the absence of a genuine

dispute about a material fact. I also agree that

the movant may rely on depositions, answers to

interrogatories, and the like, to demonstrate

that the plaintiff has no evidence to prove his

case and hence that there can be no factual

dispute. But the movant must discharge the

burden the Rules place upon him: It is not

enough to move for summary judgment without

supporting the motion in any way or with a

conclusory assertion that the plaintiff has no

evidence to prove his case.

Id. at 328 (White, J., concurring) (emphasis added).

14

Justice Brennan, in dissent, believed that “the

Court ha[d] not clearly explained what is required of a

moving party seeking summary judgment on the

ground that the nonmoving party cannot prove its

case” and stated that, under the correctly-articulated

standard, the defendant “did not meet its burden.” Id.

at 329 (Brennan, J., dissenting). Importantly, Justice

Brennan amplified points made by Justice White:

Where the moving party . . . seeks summary

judgment on the ground that the nonmoving

party – who will bear the burden of persuasion

at trial – has no evidence, the mechanics of

discharging Rule 56’s burden of production

are . . . trick[y]. Plainly, a conclusory assertion

that the nonmoving party has no evidence is

insufficient. See ante, at 328 (WHITE, J., concurring). Such a “burden” of production is no

burden at all and would simply permit summary judgment procedure to be converted into

a tool for harassment. Rather, as the Court

confirms, a party who moves for summary

judgment on the ground that the nonmoving

party has no evidence must affirmatively show

the absence of evidence in the record. Ante, at

323. This may require the moving party to depose the nonmoving party’s witnesses or to

establish the inadequacy of documentary evidence. If there is literally no evidence in the

record, the moving party may demonstrate this

by reviewing for the court the admissions, interrogatories, and other exchanges between the

parties that are in the record.

Id. at 331-32 (emphasis added).

15

Justice Stevens’s dissent did not comment on the

summary-judgment standard, citing alternative reasons for upholding the D.C. Circuit’s decision. See id.

at 339 (Stevens, J., dissenting).

The upshot of the several opinions in Celotex was

that four Justices via the plurality opinion did not

engage in much detail regarding the movant’s burden

to achieve summary judgment (when the movant does

not have the burden of proof on the merits); their instruction was chiefly that the movant must “point[]

out” the basis for its motion, but need not present

evidence of its own, such as affidavits. Id. at 325. On

the other hand, four other Justices (i.e., Justice White

and Justice Brennan in his three-Justice dissent) did

not think the movant satisfies his or her burden with

“conclusory” statements and must instead identify

parts of the discovery record, such as deposition testimony, interrogatory responses, or admission

responses, but, again, not necessarily newly-created

affidavits, that prove a lack of material dispute. Id. at

328 (White, J., concurring). Emphasizing both the

“ambiguity” generated by the plurality “fail[ing] to

explain exactly what ‘pointing out’ actually means”

and the difficulty of fashioning a “binding majority

opinion of the Court” from the various opinions, one

commentator has suggested that Celotex from its inception was destined to create “doctrinal confusion” as

“lower courts attempt[ed] to decode” it. Redish, 57

Stan. L. Rev. at 1344-45.

2. Not surprisingly, “the [l]ower courts have conflicting views with respect to the scope of a defendant’s

burden under Celotex.” Adam N. Steinman, The Irrepressible Myth of Celotex: Reconsidering Summary

16

Judgment Burdens Twenty Years after the Trilogy, 63

Wash. & Lee L. Rev. 81, 119 (2006) [hereinafter

“Steinman”]; accord Redish, 57 Stan. L. Rev. at 1345.

Relying usually on the Celotex plurality opinion, some

decisions – most notably from the First, Sixth, Seventh, and Tenth Circuits – have held that the

summary-judgment movant need only “challenge the

opposing party to ‘put up or shut up’ on a critical issue.” Street v. J.C. Bradford & Co., 886 F.2d 1472,

1478 (6th Cir. 1989)). It is enough for the movant “to

state that there is an absence of facts or evidence to

support [the non-movant’s] claims.” Jefferson v. Chattanooga Publ’g Co., 375 F.3d 461, 463 (6th Cir. 2004)

(emphasis added). If, in response, “the respondent

d[oes] not ‘put up,’ summary judgment [is] proper”

(Street, 886 F.2d at 1478), with “putting up” meaning

the non-movant “‘must set forth specific facts’ showing

that there is a ‘genuine issue’ for trial.” Scadden v.

Werner, 677 F. App’x 996, 1001 (6th Cir. 2017) (quoting

Ellington v. City of E. Cleveland, 689 F.3d 549, 552

(6th Cir. 2012)).3

3 Accord Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 1172-73 (1st

Cir. 1988); Elkins v. Richardson-Merrell, Inc., 8 F.3d 1068, 1071

(6th Cir. 1993); Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568-69

(7th Cir. 2017); Whetstine v. Gates Rubber Co., 895 F.2d 388, 394

(7th Cir. 1990); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671

(10th Cir. 1998); Manders v. Okla. ex rel. Dep’t of Mental Health,

875 F.2d 263, 264 (10th Cir. 1989); see generally Steinman, 63

Wash. & Lee L. Rev. at 119-20 & nn. 251-54 (citing Adler, Manders, and Street as decisions “imposing virtually no burden on

defendants moving for summary judgment”); Redish, 57 Stan. L.

Rev. at 1345 & n.55 (citing Elkins, Whetstine, and Kauffman as

decisions “impos[ing] virtually no burden at all on the movant

where she would have no burden of proof at trial”). The colorful

label “put up or shut up” used in this context appears to have

17

In contrast, other decisions – most notably from

the Second, Fifth, Eighth, Ninth, and Eleventh Circuits – have set a higher threshold, often invoking

Justices White’s and Brennan’s opinions in Celotex.

These courts have held that “[a] moving party may not

require the nonmoving party to produce evidence supporting its claim or defense simply by saying that the

nonmoving party has no such evidence.” Nissan Fire

& Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105

(9th Cir. 2000). “In a typical case, in order to carry its

initial burden of production . . . , the moving party will

have made reasonable efforts, using the normal tools of

discovery, to discover whether the nonmoving party

has enough evidence to carry its burden of persuasion at trial” and will “‘point to’” those discovery

materials in its summary-judgment motion. Id. (quoting Clark v. Coats & Clark, Inc., 929 F.2d 604, 608

(11th Cir. 1991)); see, e.g., Bedford v. Doe, 880 F.3d

993, 997 (8th Cir. 2018) (“IP [i.e., the movant] . . . supported its assertions by citing materials in the record

like the deposition transcripts of Bedford, Doe, and

others, pointing out that none of those materials established that anyone was negligent”).4

been coined by Professor Friedenthal soon after Celotex was

decided. See Jack H. Friedenthal, Symposium the Fiftieth Anniversary of the Federal Rules of Civil Procedure: Cases on

Summary Judgment: Has There Been a Material Change in

Standards, 63 Notre Dame L. Rev. 770, 772, 776 (1988) [hereinafter “Friedenthal”].

4 Accord Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir.

2006); Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988); Ashe v.

Corley, 992 F.2d 540, 543 (5th Cir. 1993); Russ v. Int’l Paper Co.,

943 F.2d 589, 592 (5th Cir. 1991); United States v. Four Parcels of

Real Property, 941 F.2d 1428, 1438 n.19 (11th Cir. 1991); see

18

3. The D.C. Circuit, in its rulings on the first, second, and fourth categories of Durant’s allegations

existing at the close of discovery, adopted a very low

threshold for the District to satisfy as a summaryjudgment movant, in line with the courts requiring a

movant merely to challenge its opponent to “put up or

shut up.” Starting with the first and second categories, these allegations are the ones involving, as to the

first category, the pre-October 2007 events (where, in

moving for summary judgment, the District asserted

Durant had failed to exhaust administrative remedies)

and, as to the second category, the events from October

2007 to the RIF announcement in May 2010 (where, in

moving for summary judgment, the District argued

that Durant had suffered no adverse consequences as a

result of the alleged retaliation).

On these allegations, when describing the summary judgment standard, the D.C. Circuit quoted at

length the Celotex plurality opinion. See Pet. App. 15a16a. Then, it found, in effect, the burden to shift from

the District as movant to Durant, because the District

“contend[ed]” there was “nothing in the record” supporting Durant. Id. at 2a. Thereafter, it ruled against

Durant on the basis that “Durant failed to present

affirmative evidence sufficient to show that a reasonable jury could return a verdict in his favor.” Id. at 3a

generally Steinman, 63 Wash. & Lee L. Rev. at 120-21 & nn. 25459 (identifying Nissan, Clark, Russ, and Four Parcels as decisions

imposing a “more substantial burden on a moving defendant”);

Redish, 57 Stan. L. Rev. at 1345 & n.56 (citing Nissan, Clark, and

Ashe as among the decisions “impos[ing] a rather substantial

burden on all movants for summary judgment, with or without a

production burden at trial, after Celotex”).

19

(emphasis added; internal quotation marks and citation omitted).

Missing from the D.C. Circuit’s decision respecting

the first and second categories of allegations was application of any requirement that the moving party, as

outlined in Justices White’s and Brennan’s opinions in

Celotex, reference the discovery record to support its

summary-judgment motion. For instance, on the allegations concerning the pre-October 2007 events (i.e.,

the first category), the Court of Appeals never described, and indeed the District never referenced

anywhere in the District Court or appellate record, any

discovery the District took to elicit whether, or the

extent to which, Durant had filed administrative

grievances. Nor did the D.C. Circuit or the District

point to, with regard to the supposed lack of adverse

action affecting Durant from October 2007 to May

2010 (i.e., the second category of allegations), anything

the District had done in discovery to explore the consequences on Durant of the various admonition letters,

changes in job responsibilities, and isolation in working environment that he maintained were adverse to

him during that period.

And on the fourth category of allegations, in which

Durant alleged a hostile work environment, the D.C.

Circuit was even more lenient to the District. Again,

the District nowhere moved for summary judgment on

that set of allegations. Yet, the Court of Appeals affirmed the summary judgment awarded by the District

Court (which itself could, by necessity, summarize only

what Durant presented, since the District had not

addressed the issue, see Pet. App. 70a) because “Durant provided no evidence that he was subjected to

20

‘severe or pervasive’ conduct by [the District].” Id. at

26a (emphasis added).

Still, it would be inaccurate to label the D.C. Circuit as straightforwardly among the Circuits allowing

a movant to meet its burden simply through a demand

that the non-movant “put up or shut up.” While the

decision below, and others from the D.C. Circuit, e.g.,

Arrington v. United States, 473 F.3d 329, 335 (D.C.

Cir. 2006), plainly do place “virtually no burden at all

on the [summary-judgment] movant” (Redish, 57 Stan.

L. Rev. at 1345), other decisions have referenced Justices White’s and Brennan’s opinions in Celotex and

placed a “more substantial burden” on the movant.

Steinman, 63 Wash. & Lee L. Rev. at 120; e.g., Grimes

v. District of Columbia, 794 F.3d 83, 93-94 (D.C. Cir.

2015); Beatty v. Wash. Metro. Area Transit Auth., 860

F.2d 1117, 1120-21 (D.C. Cir. 1988). In fact, a disparity of decisions within a Circuit can be found in other

Circuits too.5 Thus, the conflict here among the lower

courts is particularly messy, encompassing differences

5 Compare Steinman, 63 Wash. & Lee L. Rev. at 120 & n.252

(identifying Sixth Circuit’s Street decision as imposing low burden

on summary-judgment movant) with Redish, 57 Stan. L. Rev. at

1345 & n.56 (identifying Hunter v. Caliber Sys., Inc., 220 F.3d

702, 725-26 (6th Cir. 2000), as imposing substantial burden on

summary-judgment movant); compare also Steinman, 63 Wash. &

Lee L. Rev. at 120 & nn.252-53 (identifying Tenth Circuit’s decisions in Adler and Manders as imposing low burden) with Adam

Price, Reconsidering Celotex: What Is the Burden of Production

When a Defendant Moves For Summary Judgment on the Ground

That the Plaintiff Lacks Evidence?, 11 Utah Bar J. 14, 16 & n.22

(1998) (identifying Windon Third Oil & Gas Drilling P’ship v.

FDIC, 805 F.2d 342, 345 & n.7 (10th Cir. 1986), as adopting

Justice Brennan’s view in Celotex) [hereinafter “Price”].

21

both among Circuits and within Circuits. Put in terms

of this case, had Durant’s appeal been heard in some of

the other Circuits, or even by a different panel within

the D.C. Circuit (following Grimes and Beatty, for instance), the summary-judgment ruling against him

would have been overturned because the District had

offered only “conclusory assertion[s]” with no analysis

of the discovery record to support its summaryjudgment motion. Celotex, 477 U.S. at 328 (White, J.,

concurring).

B. Other Considerations Likewise Favor

Granting Certiorari to Clarify the Summary-Judgment Movant’s Burden

In addition to the split among lower courts, two

other considerations support certiorari on the first

Question Presented: (1) the D.C. Circuit below

reached the wrong conclusion on how best to read

Celotex, giving this Court opportunity now to correct

the error; and (2) the question of the summaryjudgment movant’s burden is of substantial importance.

1. In Durant’s case, the D.C. Circuit adopted the

less persuasive view of Celotex as to the summaryjudgment movant’s burden. As a threshold matter, the

lenient approach adopted by the D.C. Circuit below did

not garner a majority of the Justices in Celotex. If the

plurality opinion, in fact, can be read as allowing a

summary-judgment movant simply to challenge the

non-movant to “put up or shut up” at the close of discovery on an element of the non-movant’s merits case,

Justice White’s concurrence – rejecting conclusory

assertions – did not agree with that approach. The

only view that overtly achieved five votes in Celotex –

22

and indeed marshalled eight votes (including Justice

Brennan’s dissent) – was that a moving party need not

create or offer evidence of its own, such as affidavits or

evidence from its own sources, in order to achieve

summary judgment when the non-movant has the

burden of proof on the merits. Accordingly, ruling in

favor of Durant on plenary review would not involve

overturning a summary-judgment standard already

adopted by the Court.

Not only is the result in Durant’s case not compelled by Celotex, the best approach emanating from

Celotex is opposite to the one applied by the D.C. Circuit below – namely, the movant should, at a

minimum, point to discovery materials that establish a

lack of factual disputes in order to carry its summaryjudgment burden, as Justices White and Brennan

opined. That standard follows from the text of Rule

56. In all instances, Rule 56 prohibits summary judgment unless “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law” (Fed.

R. Civ. P. 56(a) (emphasis added)); simply saying “put

up or shut up” is not a “showing” of any variety. Additionally, Rule 56, as amended in 2010, references –

when defining the movant’s burden – “cit[ation] to

particular parts of the materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations . . .

admissions, interrogatory answers, or other materials.”

Fed. R. Civ. P. 56 (c)(1)(A); see Fed. R. Civ. P.

56(c)(1)(B). Still further, requiring the movant to cite

to specific discovery materials showing no disputed

facts better comports with (rather than requires the

implicit overruling of) Adickes v. S.H. Kress & Co., 398

23

U.S. 144, 159 (1970), where the Court emphasized the

necessity for some sort of positive showing by a summary-judgment movant. See Nissan, 210 F.3d at 1103

(resolving “the perceived tension between Adickes and

Celotex”).

Likewise, most commentators (though, admittedly,

not all) side with requiring more from a summaryjudgment movant than daring the opponent to establish genuine disputes regarding matters on which the

opponent has the burden of proof. See 10A Charles A.

Wright, et al. Federal Practice & Procedure § 2727.1, at

488-92 (4th ed. 2017); Steinman, 63 Wash. & Lee L.

Rev. at 131-32; Price, 11 Utah Bar J. at 14, 16-17;

Samuel Issacharoff & George Lowenstein, Second

Thoughts About Summary Judgment, 100 Yale L.J. 73,

75 (1990) [hereinafter “Issacharoff & Lowenstein”];

Melissa L. Nelkin, One Step Forward, Two Steps Back:

Summary Judgment After Celotex, 40 Hastings L.J. 53,

85 (1988); but see Redish, 57 Stan. L. Rev. at 1343-46;

Friedenthal, 63 Notre Dame L. Rev. at 779-80.

2. The question of the movant’s summaryjudgment burden when the movant does not bear the

burden of proof at trial is an important one to resolve

for the sound administration of justice in the federal

courts. As of 1998, one commentator determined that

Celotex had been cited “as controlling or persuasive

authority in over 34,000 published and unpublished

judicial opinions.” Price, 11 Utah Bar J. at 14. By

2005, another commentator reported that Celotex,

along with two other decisions that same Term addressing summary-judgment standards (Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574

(1986), and Anderson v. Liberty Lobby, Inc., 477 U.S.

24

242 (1986)) had been cited “more than any other U.S.

Supreme Court decisions.” Steinman, 63 Wash. & Lee

L. Rev. at 82. A LEXIS search this past month revealed that Celotex has now been cited an astronomical

240,000 times. Furthermore, Celotex, along with

Matsushita and Anderson, ushered in a new era of

greater judicial receptivity to summary-judgment disposition of cases generally. See Redish, 57 Stanford L.

Rev. at 1330. As a consequence, summary-judgment

practice is now a regular feature of nearly all substantial federal civil lawsuits, and, in turn, the citation

numbers reflect that Celotex is playing a critical role in

that universe.

Yet, at this late date, courts are disparately determining the burden of production under Celotex to be

placed on a summary-judgment movant, at least when

the non-movant bears the burden of proof at trial. If

courts are to deliver justice consistently and fairly, it is

critical for the Court to clarify this basic procedural

issue prevalent in so vast a number of cases. See

Steinman, 63 Wash. & Lee L. Rev. at 120 & n.253

(noting “[o]ne empirical study undertaken after Celotex

indicated that 60% of decisions granting summary

judgment for a defendant contained no ‘discussion of

the sufficiency of the defendant’s production in support

of the summary judgment motion’”)(quoting Issacharoff & Lowenstein, 100 Yale L. J. at 92).6

6 The passing mention of Celotex in Ricci v. DeStefano, 557 U.S.

557 (2009), highlights the need for further clarification. The

Court did there say the movant “must demonstrate that there can

be no genuine dispute that there was no strong basis in evidence

for the [non-movant’s position].” Id. at 586. But the Court immediately thereafter cited Celotex for a proposition that, “where the

25

II. The Court Should Grant Certiorari on the

Second Question Presented – i.e., Is a Showing of Temporal Proximity Between

Protected Activity and Adverse Action, in the

Context of a Title VII Retaliation Claim,

Enough to Create a Genuine Dispute About

an Employer’s Proffered Explanations?

A. Certiorari Is Warranted Because the Circuits Are Divided in Their Approaches to

Temporal-Proximity Evidence

While the first Question Presented involves a

question about general summary-judgment practice,

the second Question Presented more pointedly concerns a summary-judgment issue specific to Title VII

retaliation claims: is a showing of temporal proximity

between an employee’s protected activity and an employer’s adverse action toward the employee sufficient

to create a genuine issue that the employer’s stated

legitimate reason for the adverse action is “pretext”?

That question too divides the Circuits and deserves

plenary review from this Court. And in this case, the

question surfaces in the setting of Durant’s third category of allegations existing after discovery (i.e.,

whether his job termination in connection with the

Reduction in Force was retaliatory for his filing of legal

claims and grievances).

nonmoving party ‘will bear the burden of proof at trial on a dispositive issue,’ the nonmoving party bears the burden of

production under Rule 56 to ‘designate specific facts showing that

there is a genuine issue for trial.’” Id. (quoting Celotex, 477 U.S.

at 324) (emphasis added).

26

The division among the Circuits arises against the

backdrop of the burden-shifting framework applied in

retaliation claims under McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). That framework, as described by the D.C. Circuit below, works as follows:

To establish a prima facie case of retaliation,

a plaintiff must show that (1) [the plaintiff]

engaged in activity protected by Title VII; (2)

the employer took an adverse action against

[the plaintiff]; and (3) the adverse action was

causally related to the exercise of [the plaintiff’s] rights. If a prima facie case is shown,

the burden shifts to the employer to provide a

legitimate, nonretaliatory reason for its action. If the employer provides a legitimate,

nonretaliatory reason for its conduct, the burden-shifting framework disappears and the

question becomes whether a reasonable jury

could infer . . . retaliation from all the evidence, which includes not only the prima facie

case but also evidence the plaintiff offers to

attack the employer’s proffered explanation

for its action and other evidence of retaliation.

In rebutting the proffered explanation, the

plaintiff may show “that the legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for [retaliation].”

Pet App. 18a (quoting Burdine, 450 U.S. at 253) (other

internal quotation marks and citations omitted).

The D.C. Circuit below held – as to the last part of

the inquiry, which is where the Circuit split comes into

play – that Durant failed to create (on the third cate-

27

gory of allegations) a genuine issue regarding the District’s proffered legitimate reason for his job

termination. The Court of Appeals deemed the District to have identified as the reason for the

termination “a District-wide RIF due to budgetary

constraints.” Id. at 22a. In response, Durant posited

that the District’s decision to include him in the RIF

announced in May 2010, as opposed to choosing an

alternative employee or job function to satisfy the RIF,

was because the District wanted to retaliate for his

many administrative grievances, including the most

recent one in March 2010, and his filing of the underlying lawsuit in January 2010. See Ct. of Appeals App.

AA396-97, AA415, AA419-21. Finding, however, that

Durant had failed to show that the District’s stated

reason was really pretext, the D.C. Circuit (as summarized earlier, see supra p. 10) held that the “only”

evidence Durant provided was “the temporal proximity” between the filing of this lawsuit and his

termination. Pet. App. 24a. Relying on earlier Circuit

precedent, the D.C. Circuit declared that temporal

proximity was insufficient and that Durant had to

present “‘positive evidence’” aside from temporal proximity to create a genuine issue of pretext to avoid

summary judgment. Id. at 25a (quoting Talavera v.

Shah, 638 F.3d 303, 313 (D.C. Cir. 2011)).

Indeed, it is an established rule within the D.C.

Circuit that “positive evidence beyond mere proximity

is required to defeat the presumption that the proffered explanations are genuine.” Woodruff v. Peters,

482 F.3d 521, 530 (D.C. Cir. 2007); accord Talavera,

638 F.3d at 313. Positive evidence beyond temporal

proximity is necessary, notwithstanding that temporal

proximity “is ‘adequate to permit an inference of retal-

28

iatory motive’ . . . at the prima facie stage.” Jones v.

Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009) (quoting

Holcomb v. Powell, 433 F.3d 889, 903 (D.C. Cir. 2006)).

To be sure, a majority of the other Circuits agree

with the D.C. Circuit. The First, Second, Fourth,

Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits

similarly have held that “[temporal] proximity alone is

insufficient to establish pretext.” Gibson v. Geithner,

776 F.3d 536, 541 (8th Cir. 2015).7 These Circuits, like

the D.C. Circuit, have found temporal-proximity evidence to be insufficient at the pretext stage, despite

also holding that “[t]he temporal proximity of events

may give rise to an inference of retaliation for the

purposes of establishing a prima facie case of retaliation under Title VII.” El Sayed, 627 F.3d at 933.

But at least three other Circuits have found a

showing of temporal proximity to be sufficient to create

a genuine issue that an employer’s stated reason for

adverse employment action is pretext. One proponent

of that view is the Ninth Circuit, which holds that a

showing of temporal proximity generally is sufficient to

create a genuine dispute about pretext. See Reynaga

v. Roseburg Forest Prods., 847 F.3d 678, 694 (9th Cir.

2017) (“‘In some cases, temporal proximity can by itself

constitute sufficient circumstantial evidence of retalia7 Accord Delgado Echevarria v. AstraZeneca Pharm. LP, 856 F.3d

119, 138 (1st Cir. 2017); El Sayed v. Hilton Hotels Corp., 627 F.3d

931, 933 (2d Cir. 2010); Carter v. Ball, 33 F.3d 450, 460 (4th Cir.

1994); Strong v. Univ. Health Care Sys., L.L.C., 482 F.3d 802, 808

(5th Cir. 2007); Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir.

2012); Annett v. Univ. of Kan., 371 F.3d 1233, 1240-41 (10th Cir.

2004); Matias v. Sears Home Improvement Prods., 391 F. App’x

782, 787 (11th Cir. 2010).

29

tion for purposes of both the prima facie case and the

showing of pretext.’”) (quoting Dawson v. Entek Int’l,

630 F.3d 928, 937 (9th Cir. 2011)); Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 507

(9th Cir. 2000) (“we have held that evidence based on

timing can be sufficient to let the issue go to the jury,

even in the face of alternative reasons proffered by the

defendant”) (citing Strother v. S. Cal. Permanente Med.

Grp., 79 F.3d 859, 870-71 (9th Cir. 1996)); see also Kerr

v. Jewell, 549 F. App’x 635, 639 (9th Cir. 2013) (“The

temporal proximity of these complaints to the permanent reassignment alone provides a sufficient basis

from which to infer pretext.”) (emphasis added).

Though the Ninth Circuit’s Reynaga and Dawson

decisions use the language “in some cases” in noting

when temporal proximity is enough to create a genuine

issue on pretext, the decisions indicate that the dividing line is based on how close the proximity is, with

temporal proximity being sufficient whenever “adverse

employment decisions are taken within a reasonable

period of time after complaints.” Passantino, 212 F.3d

at 507. “Reasonable period” has meant “within

months.” Strother, 79 F.3d at 870; see also id. at 870

n.14 (citing two precedents where temporal proximity

was “five months” and between “42 and 59 days,” respectively); see also, e.g., Kerr, 596 F. App’x at 639

(period of “roughly a month”); Reynaga, 847 F.3d at

694 (same).

Also on the side of finding temporal-proximity evidence sufficient at the pretext stage, the Third Circuit

takes the view that “temporal proximity may be sufficient to show pretext ‘[i]n certain narrow

circumstances’ based on the particular facts and stage

30

of a case.” Proudfoot v. Arnold Logistics, LLC, 629 F.

App’x 303, 308 (3d Cir. 2015) (quoting Marra v. Phila.

Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007)); accord

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-80

(3d Cir. 2000). Under the Third Circuit’s case law,

short time proximity between events is sufficient, but

long time proximity is not; and a longer time period

will be accepted at the prima facie stage than at the

pretext stage. See Farrell, 206 F.3d at 279 n.5 (“[t]here

is clearly a difference between two days and nineteen

months”; “[t]here is also a difference between a plaintiff relying upon temporal proximity to satisfy her

prima facie case for the purpose of summary judgment . . . and to reverse a verdict”) (citations omitted).

The Seventh Circuit too has found that a “discharge’s timing . . . could support an adverse inference

[of retaliation] by a reasonable trier of fact.”

Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315

(7th Cir. 2011); see Coleman v. Donahoe, 667 F.3d 835,

860-61 (7th Cir. 2012) (stating that “suspicious timing”

is among the “categories of circumstantial evidence

available to a plaintiff” seeking to prove retaliation;

“[e]ach type of evidence is sufficient by itself (depending of course on its strength in relation to whatever

other evidence is in the case) to support a judgment for

the plaintiff”) (emphasis added; internal quotation

marks and citation omitted). In the past, the Seventh

Circuit has found a showing of temporal proximity to

create a genuine issue on pretext “where the adverse

impact comes on the heels of the protected activity”

(Casna v. City of Loves Park, 574 F.3d 420, 427 (7th

Cir. 2009) (internal quotation marks and citation omitted)), or where a lengthier time proximity is

31

accompanied by a “fishy” explanation by the employer

for its adverse action. Loudermilk, 636 F.3d at 315.

Hence, all of the Circuits have now spoken on the

issue, and there is “conflicting treatment of temporal

proximity evidence [at the pretext stage] by different

federal jurisdictions.” Justin P. O’Brien, Weighing

Temporal Proximity in Title VII Retaliation Claims, 43

B.C. L. Rev. 741, 781 (2002). Moreover, the Circuit

conflict has impact in Durant’s case, on his third category of allegations. Had Durant’s action arisen in the

Ninth Circuit, his showing of time proximity between,

on the one hand, the January 2010 filing of this lawsuit and the March 2010 EEOC charge and, on the

other, the District’s May 2010 announcement of his job

termination through the RIF would have been sufficient to create a genuine issue about pretext and send

the case to a jury. Likewise, it probably would have

been enough in the Third and Seventh Circuits, especially given the suspicion about the District’s real

motives engendered by the District singling Durant

out for immediate escort from the building and administrative leave among all employees subject to the RIF

and the District hiring others (but not Durant) back

after the RIF. See supra p. 11. In contrast, in the D.C.

Circuit, Durant’s focus on temporal-proximity evidence

was insufficient and some sort of additional “positive

evidence” was required. See Pet. App. 25a.8

8 The D.C. Circuit cited Durant’s deposition testimony, in which

he admitted the existence of the RIF, as countering his temporalproximity evidence. See Pet. App. 24a. But Durant has never

denied that the RIF occurred, instead asserting that the District’s

choice to include him in it was invidious and “fraudulent.” See

supra p. 5. His allegations are in the nature of a nefarious sce-

32

B. Other Considerations As Well Favor

Granting Certiorari to Clarify the Role of

Temporal-Proximity Evidence in Retaliation Cases

As with the first Question Presented, there are

considerations on the second Question Presented, beyond a Circuit split, supporting granting certiorari: (1)

the D.C. Circuit’s decision is inconsistent with this

Court’s jurisprudence; and (2) the question is important.

1. The D.C. Circuit’s – and, indeed, the majority of

Circuits’ – hard-and-fast rule that, on its own, temporal proximity is insufficient to create a genuine issue

about pretext is incommensurate with the sanction

this Court has given to “indirect evidence” in retaliation cases. Burdine, 450 U.S. at 256. The Court has

recognized that “there will seldom be eyewitness testimony as to the employer’s mental processes.” Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141

(2000) (internal quotation marks and citation omitted).

Given the practical unavailability of direct evidence,

“circumstantial evidence” is sufficient to secure a win

for the employee on a retaliation claim, and the

McDonnell Douglas test, of course, seeks to facilitate

the presentation of such evidence. Id. Thus, while the

Court has invited the presentation of indirect evidence,

the D.C. Circuit treats as always inadequate at the

nario the Sixth Circuit has described: the District “wait[ed] for a

legal, legitimate reason to fortuitously materialize, and then

use[d] it to cover up [its] true, longstanding motivations for firing

the employee,” which is “the very nature of pretext.” Hamilton v.

GE, 556 F.3d 428, 436 (6th Cir. 2009).

33

pretext stage what is often the key piece of circumstantial evidence – temporal proximity.

Even more specifically, the Court’s precedents can

be read as telegraphing Durant’s case as just the sort

that can support a plaintiff’s judgment. The Court

has, on one prior instance, addressed incidentally the

probity of temporal-proximity evidence in a retaliation

case, and it suggested there that a showing of temporal

proximity could be sufficient at the prima facie stage

(with the pretext stage not being at issue in that case).

See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,

273-74 (2001). In turn, another precedent – Burdine –

commented that “there may be some cases where the

plaintiff’s initial evidence [i.e., prima facie evidence],

combined with effective cross-examination of the defendant, will suffice to discredit the defendant’s

explanation.” 450 U.S. at 255 n.10. That was essentially Durant’s situation: his temporal-proximity

evidence could under Clark County (and in all Circuits)

suffice at the prima facie stage, and he then pointed to

details surrounding the RIF that made suspicious the

District’s explanation for his termination. See supra p.

11. Nevertheless, the D.C. Circuit ruled that Durant

must lose on summary judgment, based on a rule nowhere stated in Burdine, Clark County, or any other of

this Court’s decisions that temporal-proximity evidence necessarily is inadequate at the pretext stage.

2. The role of temporal-proximity evidence at a retaliation claim’s pretext stage is an important issue for

the Court to consider. The Court has noted the staggering volume of retaliation claims brought annually

at the EEOC, many of which eventually proceed to

federal court. See Univ. of Tex. Sw. Med. Ctr. v. Nas-

34

sar, 570 U.S. 338, 358 (2013). And as the number of

Circuit cases mentioned just in this Petition illustrates, a large segment of that docket turns in some

measure on temporal-proximity evidence. Courts, the

EEOC, and litigants would all benefit from clarity on

the evidentiary standards for this “ever-increasing”

genre of civil-rights litigation. Id.; see Coleman, 667

F.3d at 863 (Wood, J., concurring on behalf of entire

three-judge panel) (noting “the snarls and knots”

plaguing the evidentiary standards applicable to retaliation claims and the McConnell Douglas framework

generally and seeking more “straightforward” system).

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

ANTHONY F. SHELLEY

Counsel of Record

AMELIA D. HAIRSTON-PORTER

KATHLEEN T. WACH

MILLER & CHEVALIER CHARTERED

900 Sixteenth St. NW

Washington, D.C. 20006

(202) 626-5800

E-mail: ashelley@milchev.com

APRIL 2018