Petition for Writ of Certiorari — Joshua O. Thomas, Petitioner v. Farmers Insurance Exchange

NO. 21-_____

In the

Supreme Court of the United States

JOSHUA O. THOMAS,

Petitioner,

v.

FARMERS INSURANCE EXCHANGE,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

ALEXANDER L. EDELMAN

COUNSEL OF RECORD

EDELMAN, LIESEN & MYERS, L.L.P.

208 W. LINWOOD BLVD.

KANSAS CITY, MO 64111

(816) 607-1529

AEDELMAN@ELMLAWKC.COM

OCTOBER 6, 2021

SUPREME COURT PRESS

COUNSEL FOR PETITIONER

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

Whether the district court and court of appeals

have effectively abrogated this Court’s binding precedent for reviewing a motion for summary judgment—

whether the evidence, considered in a light most

favorable to the non-movant and with all justifiable

inferences drawn in his favor, creates a genuine issue

of material fact—by applying numerous tests and

standards that obfuscate Petitioner’s ultimate burden

and deprive him of the opportunity to make his case?

ii

DIRECTLY RELATED PROCEEDINGS

United States Court of Appeals for the Tenth Circuit

No. 20-3076

Joshua O. Thomas, Plaintiff–Appellant v.

Farmers Insurance Exchange, Defendant-Appellee

Date of Final Order and Judgment: April 14, 2021

Date of Rehearing Denial: May 10, 2021

_________________

United States District Court for the District of Kansas

No. 2:18-cv-02564-DDC

Joshua O. Thomas, Plaintiff v.

Farmers Insurance Exchange, Defendant

Date of Final Memorandum and Order: March 26, 2020

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

DIRECTLY RELATED PROCEEDINGS .................. ii

TABLE OF AUTHORITIES ....................................... v

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTORY PROVISIONS INVOLVED ................. 2

STATEMENT OF THE CASE .................................... 2

REASONS FOR GRANTING THE PETITION ......... 7

I.

WHILE PURPORTING TO APPLY THIS COURT’S

SUMMARY JUDGMENT STANDARD IN CIVIL

RIGHTS CASES, THE MULTITUDE OF TESTS

USED BY THE TENTH CIRCUIT EFFECTIVELY

ABROGATES THAT STANDARD ............................. 7

II. THE QUESTION PRESENTED IS IMPORTANT,

AND THIS COURT SHOULD RESOLVE THE

CIRCUIT SPLIT AND CORRECT DECISIONS

WHICH HAVE SILENTLY ABROGATED THIS

COURT’S BINDING PRECEDENT ........................ 14

CONCLUSION.......................................................... 16

iv

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Order and Judgment of the United States

Court of Appeals for the Tenth Circuit

(April 14, 2021) ................................................... 1a

Memorandum and Order of the United States

District Court for the District of Kansas

(March 26, 2020) ............................................... 37a

REHEARING ORDER

Order of the United States Court of Appeals for

the Tenth Circuit Denying Petition for

Rehearing (May 10, 2021) ................................ 91a

STATUTORY PROVISIONS

Relevant Statutory Provisions ............................... 93a

OTHER DOCUMENTS

Appellant’s Opening Brief—Relevant Excerpts

(July 22, 2020) ................................................ 123a

Plaintiff’s Memorandum in Opposition to

Defendant’s Motion for Summary Judgment

—Relevant Excerpts (October 22, 2019) ........ 143a

v

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986)................................ 7, 11, 12

Andrews v. CBOCS West, Inc.,

743 F.3d 230 (7th Cir. 2014) ............................. 14

Bird v. West Valley City,

832 F.3d 1188 (10th Cir. 2016) ........................... 9

Chaib v. Indiana,

744 F.3d 974 (7th Cir. 2014) ............................... 14

Cooper Tire & Rubber Co. v. Farese,

423 F.3d 446 (5th Cir. 2005) ............................... 8

DePaula v. Easter Seals El Mirador,

859 F.3d 957 (10th Cir. 2017) ............. 8, 9, 10, 13

Edwards v. Hiland Roberts Dairy Co.,

860 F.3d 1121 (8th Cir. 2017) ........................... 13

Fassbender v. Correct Care Solutions, LLC,

890 F.3d 875 (10th Cir. 2018) ............................. 9

Gohl v. Livonia Public Schools School Dist.,

836 F.3d 672 (6th Cir. 2016) ............................. 14

Green v. New Mexico,

420 F.3d 1189 (10th Cir. 2005) ............................ 9

Jordan v. Maxim Healthcare Servs., Inc.,

950 F.3d 724 (10th Cir. 2020) ............................. 7

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) ................................... 8, 9, 15

Nahno-Lopez v. Houser,

625 F.3d 1279 (10th Cir. 2010) ........................... 8

vi

TABLE OF AUTHORITIES – Continued

Page

Ortiz v. Werner Enterprises, Inc.,

834 F.3d 760 (7th Cir. 2016) ....................... 13, 14

Pioneer Centres Holding Co. Emp. Stock

Ownership Plan & Tr. v. Alerus Fin.,

N.A., 858 F.3d 1324 (10th Cir. 2017) ................ 11

Smothers v. Solvay Chems., Inc.,

740 F.3d 530 (10th Cir. 2014) ........................... 13

Sprint/United Management Co. v.

Mendelsohn, 552 U.S. 379 (2008) ................... 10

Swackhammer v. Sprint/United Mgmt. Co.,

493 F.3d 1160 (10th Cir. 2007) ........................ 10

Timmerman v. U.S. Bank, N.A.,

483 F.3d 1106 (10th Cir. 2007) ........................... 9

Tolan v. Cotton,

572 U.S. 650 (2014) ................................... 7, 9, 11

Tolan v. Cotton,

713 F.3d 299 (5th Cir. 2013) ............................... 8

STATUTES

28 U.S.C. § 1254(1) ..................................................... 2

Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq ........................... passim

JUDICIAL RULES

Fed. R. Civ. P. 56(a) .................................................... 7

vii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

EEOC,

Charge Statistics–FY 1997 through FY

2020, available at https://www.eeoc.gov/

statistics/charge-statistics-charges-filedeeoc-fy-1997-through-fy-2020 .......................... 15

Fed. Judicial Ctr.,

Memorandum from Joe Cecil & George Cort,

to Judge Baylson (Aug. 13, 2008), available

at https://www.fjc.gov/sites/default/files/

2012/SuJuLRS2.pdf ............................................ 15

U.S. District Courts

Table 4.4.–Civil Judicial Facts and

Figures (September 30, 2020), available at

https://www.uscourts.gov/statistics/table/

44/judicial-facts-and-figures/2020/09/30 .......... 15

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Joshua O. Thomas respectfully petitions

the Court for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Tenth

Circuit.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Tenth Circuit, dated April 14, 2021

(App.1a) is not reported. The opinion of the United

States District Court for the District of Kansas,

dated March 26, 2020 (App.37a), is reported at 448

F.Supp.3d 1174 (D. Kan. 2020).

JURISDICTION

The Tenth Circuit Court of Appeals issued its

order and judgment issued on April 14, 2021. (App.1a).

It issued its Order denying Petitioner’s timely petition

for rehearing on May 10, 2021. (App.91a). The first

paragraph of this Court’s Order of March 19, 2020

extended the time for filing a petition for certiorari in

all cases involving petitions due after that date to

150 days following, as relevant here, the appeals

court judgment. While that order was rescinded by

this Court’s Order of July 19, 2021, that Order left in

place the extended deadline for any case in which the

2

relevant lower court judgment or order was issued

prior to the date of this Court’s July Order. This

petition is due by October 7, 2021. The Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant provisions of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq. (hereinafter

“Title VII”) are reproduced in the Appendix at App.93a.

STATEMENT OF THE CASE

This case arises out of an action by Petitioner

arising under Title VII for sex discrimination in employment and retaliation. (App.11a). Petitioner was

employed by Farmers from March 9, 2015 to October

25, 2018, when he was terminated. (App.38a). Petitioner is male but fails to conform to male sex stereotypes.

(App.2a).

On April 2, 2018, Petitioner applied internally

for an Account Underwriter position (the “AU position”).

(App.4a). John Radliff, the hiring manager, interviewed

the candidates but did not hire Petitioner for the

position. (App.4a-5a). Petitioner reached out to Radliff

and asked for feedback on why he was not selected.

(App.5a). Radliff requested the meeting be in

person. (Id.). At the meeting, Radliff stated that he

might hire Petitioner in a different set of circumstances

if he already has “a bunch of alphas over there.” (Id.).

3

He emphasized the fact that Petitioner had not previously interacted with him or reached out to him,

and Petitioner’s lack of leadership qualities. (Id.).

These statements show inconsistencies in the reasons

given for not hiring Petitioner, as Radliff had no such

interactions with the two candidates hired. (App.5a6a). Moreover, Radliff acknowledged in a deposition that

the position was not a leadership position, and Radliff

checked the box in his interview notes showing that

Petitioner “demonstrated” teamwork and leadership

in his interview. (App.41a). Finally, a reasonable

factfinder could have inferred that Radliff’s request

to take the meeting offline showed Radliff’s misconduct.

On other occasions where Petitioner’s managers were

engaged in discrimination, they choose to take the

conversation offline. (App.152a, 154a-155a, 185a, 192a).

Petitioner provided evidence supporting his understanding of the comment about “alphas” to be a reference to his failure to conform to sex stereotypes.

(App.148a-149a, 184a). In response, he complained

internally of discrimination on April 25, 2018 in an

email and on April 26, 2018 in a meeting with Amy

Canton. (App.6a). Canton was HR manager over the

Olathe office. (App.6a).

Shortly thereafter, Petitioner’s direct supervisor,

Jarrod Shelton, placed Petitioner on a Final Warning

on May 17, 2019. (App.8a). Being put on this Warning

caused Petitioner to lose his tuition reimbursement

benefit and prevented him from applying for other

positions within the company. (Id.).

The Final Warning accused Petitioner of having

issues with “accepting and applying feedback to

grow,” stating that he had “not made improvements in

these areas” was “not meeting expectations.” (App.8a).

4

It also claimed that Petitioner’s behavior “creates a

negative work environment with your peers.” (App.9a).

The Final Warning was not the standard procedure

in Farmers’ progressive discipline system but represented a considerable escalation. (App.48a).

Other facts before the district court (and the

Tenth Circuit) were inconsistent with these allegations. For example, Petitioner’s supervisors repeatedly

praised his ability to accept and apply feedback. On

March 27, 2018, Shelton praised Petitioner for asking

a question about how he could improve his performance,

saying “[t]his is the type of attitude that I appreciate

and will make you more successful in your role.”

(App.132a). On March 31, 2018, Shelton told Petitioner

“I appreciate how open you are to feedback and I know

you’re going to do well in this area.” (App.4a). On May

1, 2018, Canton sent an email in which, unprompted,

she described a “recent ‘coaching’ experience” she

and Shelton had with Petitioner as “a great experience

to share because we were able to see quick results in

terms of the employee acceptance and ownership.”

(App.132a). Similarly, the allegation that Petitioner’s

behavior created a negative work environment was

belied by the fact that none of Petitioner’s coworkers

complained about his behavior. (App.48a).

These inconsistencies, along with other actions

by Shelton, give rise to a reasonable inference that he

planned to discipline Petitioner and set up a future

termination, in retaliation for Petitioner’s complaint.

Shelton’s actions on May 10, 2018, provide particularly

strong evidence of his inconsistency regarding Petitioner’s conduct. That day, Shelton messaged

Petitioner his phone metrics and said “[t]his is

fantastic, nice work sir,” and told Petitioner he was

5

“really supporting our team more than you know with

phone metrics.” (App.44a, n.7). The same day, Shelton

sent an email saying he could no longer coach

Petitioner. (App.45a). Later, Petitioner was assigned a

new supervisor, Curt Sims. (App.2a). Shelton helped

arrange for Sims to become Petitioner’s new

supervisor. (App.49a). Even before that happened,

Shelton and Sims had private conversations regarding disciplining Petitioner. (Id.). These conversations

continued until the week of Petitioner’s termination,

despite Shelton no longer being his supervisor. (Id.).

On at least one occasion, they intentionally took the

conversation off-line where there would be no record.

(Id.).

Farmers terminated Petitioner’s employment on

October 25, 2018. (App.13a-14a). Earlier that day,

Sims wrote a memorandum purporting to state the

reasons for the termination. (Id.). As with the final

written warning, there were multiple inconsistencies

in the reasons Farmer’s gave for the termination. For

example, the day before the termination, Sims and

another manager met with Petitioner to discuss a

phone call from a few days earlier. (App.12a). At the

end of that meeting, Sims told Petitioner that he

should use the guidance he received in the meeting

going forward. (Id.). Yet none of the purported misconduct in the memorandum happened after that

meeting. (App.13a). The reasons Farmer’s gave also

lacked credibility. Regarding the October 22, 2018

call, Petitioner was criticized for failing to contact

Sims after the agent hung up, but Sims admitted in

his deposition that Petitioner’s offer of a supervisor

callback was sufficient, and he did not need to escalate

the call where the agent did not ask him to have a

6

supervisor call back. (App.167a-173a). Petitioner was

also criticized for following Farmers’ policy when it

came to backdating discounts. (App.168a).

Petitioner filed a charge of discrimination with the

Equal Employment Opportunity Commission on May

21, 2018. (App.10a). Petitioner filed this action against

Farmers on October 19, 2018. (App.11a). There was

evidence from which it could be inferred that Canton

would have received a copy of the Complaint shortly

thereafter. (Id.). On October 24 or 25, 2018, Petitioner

saw Canton walk to the location where Sims’ desk

was, something she almost never did. (App.12a). A jury

could infer that Canton instructed Sims to terminate

Petitioner in retaliation for his having filed his

lawsuit against Farmers.

Farmers filed a Motion for Summary Judgment

on all counts. (App.14a). On March 26, 2020, the district

court entered its Memorandum and Order granting

Farmers’ Motion for Summary Judgment. (App.90a).

The clerk of the District Court entered a judgment,

and Petitioner filed a timely appeal. (App.16a). On

April 14, 2021, the Court of Appeals entered its Order

and Judgment affirming the District Court’s opinion.

(App.1a).

7

REASONS FOR GRANTING THE PETITION

I.

WHILE PURPORTING TO APPLY THIS COURT’S

SUMMARY JUDGMENT STANDARD IN CIVIL RIGHTS

CASES, THE MULTITUDE OF TESTS USED BY THE

TENTH CIRCUIT EFFECTIVELY ABROGATES THAT

STANDARD

A district court may grant summary judgment

when a party “shows that there is no genuine dispute

as to any material fact and the [party] is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

This Court has emphasized “the axiom that in ruling

on a motion for summary judgment, ‘[t]he evidence of

the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.’” Tolan v.

Cotton, 572 U.S. 650, 651 (2014) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

Thus, “a ‘judge’s function’ at summary judgment is

not ‘to weigh the evidence and determine the truth of

the matter but to determine whether there is a genuine

issue for trial.’” Id. at 657 (quoting Anderson, 477 U.S.,

at 249). While this Court is not equipped to correct

every error by a lower federal court, it has intervened

to correct “a clear misapprehension of summary judgment standards in light of our precedents.” Id. at 659.

Such a clear misapprehension is occurring in most

federal courts, although it is obscured by a facial

adherence to the standard. Both the Tenth Circuit

and the District of Kansas recognized the proper

summary judgment standard. (App.16a-17a) (citing

Jordan v. Maxim Healthcare Servs., Inc., 950 F.3d 724,

730 (10th Cir. 2020)); (App.54a) (citing, e.g., Nahno-

8

Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010)).

Yet merely repeating the standard does not indicate

adherence to it. The Fifth Circuit did the same in

Tolan. Tolan v. Cotton, 713 F.3d 299, 304 (5th Cir.

2013) (citing Cooper Tire & Rubber Co. v. Farese, 423

F.3d 446, 454 (5th Cir. 2005)). In Tolan, the Fifth

Circuit appears to have somewhat abruptly strayed

from the proper application of this Court’s precedent.

By contrast, the Tenth Circuit’s departure (along

with that of several others) seems the outcome of a

gradual, well-meaning process, arising from an attempt

to follow this Court’s precedent, but which has resulted

in it doing the opposite.

The cause of the Tenth Circuits failure to properly

apply this Court’s binding precedent appears to be its

use of a multitude of different tests and standards for

considering different types of evidence when ruling on

a motion for summary judgment in an employment

discrimination case. The use of these tests leads the

court to divide the non-movant’s evidence into separate parts, which are then considered individually,

rather than looking at the evidence in its totality

(and making any inference supported thereby). The

first such standard that is consistently applied is the

burden shifting framework set out by this Court in

McDonnell Douglas. McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). See (App.17a); DePaula

v. Easter Seals El Mirador, 859 F.3d 957, 969 (10th

Cir. 2017). McDonnell Douglas set forth a three-step

process: first, a plaintiff establishes a prima facie

case; second, a defendant must articulate a legitimate, non-discriminatory reason for its conduct; finally,

the plaintiff provides evidence showing that the

stated reason was a pretext. Id. 411 U.S., at 802-05.

9

In applying the McDonnell Douglas standard,

the Tenth Circuit has promulgated a multitude of tests

and standards for considering evidence, especially

evidence of pretext. See, e.g., DePaula, 859 F.3d, at 97071 (because courts are not to second guess an employer’s business judgment, evidence that the employer

“was mistaken or used poor business judgment” or

otherwise “should not have made the decision . . . is

not sufficient to show that the employer’s explanation

is unworthy of credibility”); Bird v. West Valley City,

832 F.3d 1188, 1204 (10th Cir. 2016) (the timing of

an adverse action is evidence of pretext, but cannot,

by itself, establish pretext); Fassbender v. Correct

Care Solutions, LLC, 890 F.3d 875, 889 (10th Cir.

2018) (when an employer’s failure to follow its own

procedure can be evidence of pretext); Timmerman v.

U.S. Bank, N.A., 483 F.3d 1106, 1120 (10th Cir. 2007)

(where an employer’s progressive discipline system

was not mandatory, the failure to use progressive

discipline is not evidence of pretext); Green v. New

Mexico, 420 F.3d 1189, 1194 (10th Cir. 2005) (whether

employees are “similarly situated” so that different

treatment can support a finding of pretext). The

application of all these standards, causes the Tenth

Circuit to abandon Tolan’s “axiom” of summary judgment in two ways.

First, some of the individual standards appear to

categorically disqualify evidence that could be relevant

to the issue of pretext. For example, the holding that,

where an employer’s system of progressive discipline

is not mandatory, “failure to implement progressive

discipline is not evidence of pretext.” Timmerman,

483 F.3d at 1120 (emphasis added). While a failure

to follow a progressive disciplinary system may be

10

far less persuasive evidence of pretext when the

system is discretionary rather than mandatory, it is

still evidence of pretext. This Court has held that

such a per se exclusion of evidence is impermissible.

Sprint/United Management Co. v. Mendelsohn, 552

U.S. 379, 387 (2008). The Tenth Circuit does the

same with its standard in DePaula (or at least its

application to this and other cases). The holding is

based on sound principles. Title VII prohibits intentional discrimination, so the relevant question is not

“whether the employer’s reasons ‘were wise, fair or

correct,’” but “whether the employer ‘honestly believed

those reasons and acted in good faith upon those

beliefs.’” DePaula, 859 F.3d, at 971 (quoting Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160,

1169-70 (10th Cir. 2007)). However, evidence from

which a factfinder could conclude that a defendant’s

proffered reason true, even if it is unwise, unfair, or

incorrect, may also support the conclusion that such

a reason is pretext. For example, in Petitioner’s

Final Written Warning, Farmers stated that his

behavior “creates a negative work environment with

your peers.” (App.9a). Petitioner argued that this

allegation was belied by Farmers’ admission that

none of his coworkers complained about his behavior.

(App.30a). In rejecting the argument, the Tenth Circuit

opined that Petitioner “merely speculates that the

absence of employee complaints demonstrates Mr.

Shelton did not believe [Petitioner] was creating a

negative work environment,” as Shelton could have

independently determined that fact, and Petitioner

“offers no evidence suggesting Mr. Shelton did not

sincerely hold that belief.” (App.30a). Yet the lack of

complaints is evidence that Shelton did not sincerely

hold those beliefs. While this is not the only conclu-

11

sion a jury could draw from that evidence, it is one

conclusion, and if the evidence were looked at “in the

light most favorable to” Petitioner, it would support a

finding of pretext. Tolan, 572 U.S., at 657. By instead

holding that such evidence does not support a finding

of pretext, the Tenth Circuit has effectively abrogated

this Court’s holdings in Tolan and Anderson.

The second way in which the Tenth Circuit’s application of its various tests leads it not to follow this

Court’s binding precedent is by breaking up its analysis into individual pieces of evidence, which are

independently examined and held not to support a

finding of pretext. This overlooks the possibility that,

even where no single piece of evidence could alone

create a genuine issue of material fact, the evidence

as a whole can do so.

This case provides a good illustration of how this

occurs. For example, in analyzing Petitioner’s arguments that Farmer’s given reasons for failing to hire

him for the AU position were pretext, the Tenth Circuit

separated its analysis into two parts (inconsistencies

in the reasons given for the decision, and Radliff’s

request for an in-person meeting), then considered

the evidence for each separately (and separately

from all the other evidence Petitioner presented).

(App.24a-26a). It then dismissed Petitioner’s argument—that Radliff’s request for an in-person meeting

supports the inference that the reasons given are

pretextual—because such an inference would be “a

guess or mere possibility” and therefore is “unreasonable” (i.e. not a “reasonable inference”). (App.25a)

(citing Pioneer Centres Holding Co. Emp. Stock

Ownership Plan & Tr. v. Alerus Fin., N.A., 858 F.3d

1324, 1334 (10th Cir. 2017)). The opinion states that

12

the jury would have to take “two speculative leaps”

to make such an inference—that Radliff wanted to

meet in person to avoid a written record and wanted

to avoid a written record because he knew his reasons

were improper—and “no evidence suggests either

conclusion would be more than a guess.” (App.25a).

In fact, Petitioner provided evidence supporting both

conclusions. There was a pattern of supervisor going

off the record before taking adverse actions against

him, which the Court of Appeals failed to recognize.

(App.152a, 154a-155a, 185a, 192a). The Tenth Circuit

ignored that evidence, seemingly because it was

more directly applicable to Petitioner’s other claims.

This Court’s clear precedent provides Petitioner

the benefit of “all justifiable inferences.” Anderson,

477 U.S., at 255 (emphasis added). By dividing evidence

into separate pools in order to apply various tests

and standards, the Tenth Circuit and its district

courts are no longer providing such inferences. The

effect of this change is to abrogate this Court’s binding

precedent, which no lower court may do.

Nor was that the only instance in which the

Tenth Circuit analyzed the evidence separately to

improperly dismiss Petitioner’s arguments. In ruling

on the argument that Farmers’ reasons for giving

him a final written warning were pretextual, the

Tenth Circuit noted that a factfinder could not “reasonably infer only from the timing and the severity of

punishment that Mr. Shelton’s reasons were pretextual.” (App.30a) (emphasis added). Yet Petitioner consistently argued that the evidence together, not any

single piece of evidence, is what supported a genuine

issue of material fact on the question of pretext.

Indeed, in his brief before the Tenth Circuit, one of

13

Petitioner’s most important arguments was that in

ruling that the evidence he presented did not create

a pretext, the district court looked at each piece of

evidence supporting pretext separately. (App.129a)

(citing Smothers v. Solvay Chems., Inc., 740 F.3d 530

(10th Cir. 2014)). In its opinion, the Tenth Circuit

recognized that Petitioner had made those arguments.

(App.25a). However, the opinion then repeats the

erroneous analysis of the district court, addressing

and discounting each piece of evidence individually,

rather than considering them in the context of all the

other evidence. (App.25a-26a, 28a-31a).

This is not the only instance in which the Tenth

Circuit has engaged in this erroneous reasoning. See,

e.g., DePaula, 859 F.3d. at 974-77. Even in Smothers,

although ultimate holding that there was sufficient

evidence to create a triable issue of fact, the Tenth

Circuit only did so by analyzing the individual categories of evidence separately, and separately concluding

each constituted evidence of pretext. Smothers, 740

F.3d at 540-44. Nor is the Tenth Circuit the only one

to make such an error. See, e.g., Edwards v. Hiland

Roberts Dairy Co., 860 F.3d 1121, 1126-27 (8th Cir.

2017).

Some Circuits have recognized how this separate

analysis of different categories of fact leads to erroneously abrogating binding precent. The Seventh

Circuit expressly held that when considering a motion

for summary judgment in a Title VII case, the evidence

“must be considered as a whole, rather than asking

whether any particular piece of evidence proves the

case by itself.” Ortiz v. Werner Enterprises, Inc., 834

F.3d 760, 765 (7th Cir. 2016). It recognized that its

own precedent had been inconsistent and overruled a

14

number of cases in which tests that were meant as a

mere framework for the broader summary judgment

analysis had been applied as substantive legal standards. Id. at 764-66 (overruling in part, e.g., Andrews

v. CBOCS West, Inc., 743 F.3d 230, 234 (7th Cir.

2014); Chaib v. Indiana, 744 F.3d 974, 981 (7th Cir.

2014)). In Ortiz, when analyzing a motion for summary

judgment, the district court separately considered the

“direct” and “indirect” evidence of discrimination and

found that neither was sufficient to meet the plaintiff’s

burden. Id., 834 F.3d at 763. The Seventh Circuit

expressly rejected this approach, saying “[e]vidence

must be considered as a whole, rather than asking

whether any particular piece of evidence proves the

case by itself — or whether just the ‘direct’ evidence

does so, or the ‘indirect’ evidence.” Id. at 765. At least

one other circuit has adopted this approach from

Ortiz. See Gohl v. Livonia Public Schools School

Dist., 836 F.3d 672, 683 (6th Cir. 2016).

II. THE QUESTION PRESENTED IS IMPORTANT, AND

THIS COURT SHOULD RESOLVE THE CIRCUIT

SPLIT AND CORRECT DECISIONS WHICH HAVE

SILENTLY ABROGATED THIS COURT’S BINDING

PRECEDENT

The issue presented here—whether a district

court considering a motion for summary judgment in

an employment discrimination case—is of great legal

significance. This Court has long recognized that it is

important for plaintiffs in such cases to be able to

obtain relief, even when there is no “smoking gun”

demonstrating discrimination outright, as “it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.” McDonnel-Douglas Corp.,

411 U.S. at 801. Yet summary judgment has long been

15

a barrier for obtaining such relief. A 2008 study by

the federal Judicial Center called “the prominent role

of summary judgment” in employment discrimination cases “striking,” noting that in such cases, summary judgment motions by defendants “are more

common . . . are more likely to be granted . . . and more

likely to terminate the litigation.” Memorandum

from Joe Cecil & George Cort, Fed. Judicial Ctr., to

Judge Baylson, 3 (Aug. 13, 2008), available at https://

www.fjc.gov/sites/default/files/2012/SuJuLRS2.pdf (last

visited Jul. 28, 2021). The failure by some Circuits to

consider evidence of discrimination or pretext as a

whole makes the promise of McDonnell Douglas a

dead letter for many of those whom Title VII is

meant to protect.

Nor are such cases rare. During the twelve-month

period ending September 30, 2020, 11,174 employment discrimination cases were filed in United States

courts, making it one of the largest individual categories of civil cases. Table 4.4. U.S. District Courts—

Civil Cases Filed, by Nature of Suit, U.S. Courts, 2

(Sept. 2010), available at https://www.uscourts.gov/

statistics/table/44/judicial-facts-and-figures/2020/09/

30. And in 2020 alone, the EEOC received more than

67,000 charges of discrimination. EEOC, Charge

Statistics–FY 1997 through FY 2020, available at https:

//www.eeoc.gov/statistics/charge-statistics-chargesfiled-eeoc-fy-1997-through-fy-2020. Given the large

number of cases and the regularity with which summary judgment is invoked, it is of great importance

that the Court address this issue.

16

CONCLUSION

For the reasons set forth herein, this petition for

a writ of certiorari should be granted.

Respectfully submitted,

ALEXANDER L. EDELMAN

COUNSEL OF RECORD

EDELMAN, LIESEN & MYERS, L.L.P.

208 W. LINWOOD BLVD.

KANSAS CITY, MO 64111

(816) 607-1529

AEDELMAN@ELMLAWKC.COM

COUNSEL FOR PETITIONER

OCTOBER 6, 2021