Respondents Brief — Sasha Trieste McGarity, Petitioner v. Birmingham Public Schools, dba West Maple Elementary - Bloomfield Hills

NO. 21-5886

IN THE

SUPREME COURT OF THE UNITED STATES

SASHA McGARITY

Petitioner,

v

BIRMINGHAM PUBLIC SCHOOLS

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION TO SASHA MCGARITY’S

PETITION FOR WRIT OF CERTIORARI

KENNETH B. CHAPIE (P66148)

GIARMARCO, MULLINS & HORTON, P.C,

Attorney for Respondent

101 W. Big Beaver Road, 10" Floor

Troy, MI 48084-5280

(248) 457-7048

kchapie@gmhlaw.com

*Counsel of Record

QUESTIONS PRESENTED FOR REVIEW

. Whether a defendant properly serves its answer onto a plaintiff if it sent a copy of the

answer by electronic means and by mail to the plaintiff's last known address under Federal

Rule of Civil Procedure 5?

. In applying the McDonald Douglas burden shifting framework to Petitioner’s race

discrimination claim brought under Title VII, whether the Sixth Circuit’s decision that

Petitioner failed to meet her burden of proof as to pretext because she relied only on

unsupported conclusory allegations, comported with the relevant decisions of this Court?

. Whether a plaintiff's failure to prove “but for” causation is fatal to her ability to prove a

prima facie case of retaliation under Title VII?

. Whether the Sixth Circuit followed the usual course of judicial proceedings in declining to

review state law claims that were never raised before the district court?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......ccesssssssssecereseeeteseenssensneerenessseanseecrsenserenenes ii

TABLE OF AUTHORITIES occ cccccesssesssssassesssescenenssessassenersesnsscesensecieasasenenseensneasaeeninases iv

OPINIONS BELOW Quoc esccceerensssstsesseassesssessceessaasensneneseeenseneceseassassensessecnererenensaseanseseeuserenrenee ix

RELEVANT AUTHORITY oo. scscecsseeeseeseesesensenenaneaseensssassesserssseeneateaasiseerecesreneenennacats x

COUNTER-STATEMENT OF THE CASE u.....ccccccssscsssessesceseneesensseaseesecensenenenenenenesenanseanseenenes 1

ARGUMENT .....ccceccsecseseseeseceeeererssesesasenscssvesssenssenessesenssesesenseassasessussesserenerennemasisssunsesssnersesneneaes 9

I THIS COURT SHOULD DENY PETITIONER’S PETITION GIVEN

THAT PETITIONER FAILS TO ARTICULATE ANY COMPELLING

REASON WHY THIS COURT SHOULD REVIEW THIS CASE ON A

WRIT OF CERTIORARL 0... ei eccscsssesscaesscenenssssenseeessnssessenessenesesessneseaseerereensnesensenenes 1

A.

The Sixth Circuit Correctly Found that Petitioner Lacked a Procedural

Basis to Pursue Default Judgment Under Federal Rule of Civil

Procedure 55 ..cecceseccssesessecseessssescessscseeseveecseesssesssesesseneesseessnesseeeassesensseesenseeseees 9

The Sixth Circuit Correctly Found that Petitioner Failed to Meet her

Burden of Proof that her Termination was a Pretext for Discrimination as

she Presented No Evidence of Pretext ........ ci esescseseessersceseesenensesnssseesesereeees 12

There is No Circuit Split that the Heightened “But For” Causation Standard

Applies to Petitioner’s Retaliation Claims Brought Under Title VII and the

Sixth Circuit Correctly Found that Petitioner Failed to Meet this Heightened

Causation Standard 0.0... ceseseceseneeess sseseseseesesesusseneatsenecaceeeutnscsscensnenseesntens 20

The Sixth Circuit’s Decision to Decline to Review Petitioner’s State Law

Claims Directly Followed the Accepted and Usual Practice of All Federal

Circuit COUrts......cccecccscssescssssereeaeeseetscsesersecesseesensssasesuscasseesusecassensenassteessentenes 23

CONCLUSION... cceececeecesceessseseseseessesscecsesesenesseessesenssesesenesessessaeaeseeensanerseenesarsessaaseseausessenenenes 24

itl

TABLE OF AUTHORITIES

Cases

Angel v. Seattle-First Nat. Bank, 653 F.2d 1293 (9th Cir. 1981) w....ceccesessesseeseeeeteeeeteereneeneenes 14

Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193 (10th Cir. 2006) sveveeteseesseeeeaes 21

Ash vy. Tyson Foods, Inc., 546 U.S. 454 (2006) ...ccsscsesssseseseseseseeessensessseenseeneasseneassersesseneenes 15

Bell v. Ohio State Univ., 352 F.3d 240 (6" Cir. 2006) Berry v. CIGNA/RSI-CIGNA,

975 F.2d 1188 (Sth Cir, 1992) we eeecsseesccrseecsnesesessvsssanssessenesssesssesesesseasseensenseeseasersesenessenes 14

Blanding y. Pennsylvania State Police, 12 F.3d 1303 (2rd Cir, 199) ..cccssssessssessssnesseeesesseens 17

Bogren v. Minnesota, 236 F.3d 399 (8th Cir. 2000) ....secsccssesssscsesessseersessnessenesseesseseresscensseenes 17

Brnovich v. Democratic National Committee, 141 8. Ct. 2321 (2021) veccccececceseeeeteeeneees 20

Burtscher v. Moore, 611 Fed. Appx. 456 (9th Cir, 2015)... ccssseesesessesneesseresenerensteseeeenenees 11

Caskey vy. Colgate-Palmolive Co., 535 F.3d 585 (7th Cir. 2008) .....cecccssesssteeeseseeeteneeneeneenes 16

City of Waco, Tex. v. Bridges, 710 F.2d 220 (Sth Cir, 1983).....scecsssecsessscersstesseseseesseereessestens 23

Clark County School District v. Breeden, 532 U.S. 268 (2001) ..ccseccsssssereseseereseneneneeeeneennees 23

Cornhusker Cas. Ins. Co., v. Kachman, 553 F.3d 1187 (9th Cir. 2009)... cccccssccnssseeerenene 23

Crites, Inc., v. Prudential Ins. Co. of America, 322 U.S. 408 (1944) ..ccceseeseseerseseneneenees 12

Davenport v. Riverview gardens Sch, Dist., 30 F.3d 940 (8th Cir. 1994) 0. eceseeeeseeeteeneees 14

Davis v. Time Warner Cable of Southeastern Wisconsin, L.P., 651 F.3d 664

(7th Cir, 2011)... eeecesesesssecssssenssesrescenescsssseassssausssensseresssssescassecasessnsessassesecaesecsnsnnsassessenesseasinene 21

EEOC v. American Glory Restaurant Corp., Case No. 1:20-cv-01184-DHN-DJS

(N.DLNGY) ceeeeseseeseseesesseansneatscssseeneceenenesesesssusavessanssesesesnesessessansseseenesuseestsnssesesseenesesenasansseeneenees 23

EEOC vy. Workplace Staffing Solutions, LLC, Case No. 1:15cv360LG-RHW,

2016 WL 3676656 (S.D. Miss. July 7, 2016)... ccccceeeseseseesssssessssesseeseseessensensressseateees 11,12

Etienne v. Inter-County Sec. Corp., 173 F.3d 1372 (11th Cir. 1999) oo. ceceseseserereeereneeneeees 23

Fidrych y. Marriott International, Inc., 952 F.3d 124 (4th Cir, 2020) ....ceccecesesssceeseseeeseeneens 11

iv

First Bank Puerto Rico v Jaymo Properties, LLC, 379 Fed. Appx. 166

(3rd Cit, 2010) vasscsssviessisvsssasssseesanustenanatietsiseineiaeinsustienetiasinusinenenenetnseeL]

Forsyth v. Barr, 19 F.3d 1527 (Sth Cir. 1994) oc cceeeeeeeeseerereeeesetsnemscssesersesenesseseeaneseenes 14

Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir, 2006) ...ceesseeersereeneenes 14

Frazier y. Secretary, Department of Health and Human Services, 710 Fed. Appx. 864

(LU th Cir, 2017)... scceesreceesrestsssescsssencsecesessessseessssesscesscessasaseassacasenetinencsnenssacsnessseacsneasensesseneaneas 21

Freeman v. Ace Tel. Ass'n., 467 F.3d 695 (8th Cir. 2006)... ccesssssssereneseenssetersneensseseenenseeees 21

General Utilities and Operating Co. v. Helvering, 296 U.S. 200 (1935). essences 23

Gilmore v. Palestinian Interim Self-Government Authority,

843 F.3d 958 (D.C. Cir. 2016). ceeeesseceerecesessesssssssssnssssseseasessenenesssnesececssensscensnensersnearsnnscenneees il

Gogel v. Kia Motors Manufacturing of Georgia, Inc., 967 F.3d 1121

(11th Cir, 2020)... cessececeessesssssssseassesesesecnscsessneesasssssacqunensenneereensssassussssasseceseaseestanenssaneenienss 22

Goldberg v. B. Green & Co., Inc., 836 F.2d 845 (4 Cir. 1988) ...cecsscssneessecsseesseenneteeeeessenes 14

Grant v. City of Blytheville, Arkansas, 841 F.3d 767(8™ Cir, 2016) ..eessesctecssessesersenressesssees 11

Green v. New Mexico, 420 F.3d 1189 (10 Cir, 2005) .....ecseescsseeesesstesesseerseeneeateaseaneseenerees 17

Greene v. United States, 13 F.3d 577 (2™4 Cir. 1994) voscsssvssnnnnnene esatssessessesseseseensees 23

Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137

(5™ Cir, 1996)..cecccsccsseesectsssessseesscsecssecsesusessesnesseesnessceaccusenassasenequacsuccanereenaceusesneaseeacensereceesssentes 14

Gunn y. Senior Services of Northern Kentucky, 632 Fed. Appx. 839 (6" Cir. 2015)... eee 14

Harry y. Countrywide Home Loans, Inc., 902 F.3d 16 (18 Cir, 2018) oe eeeeseseeseeseeseeneeees il

Harvey v. U.S., 685 F.3d 939 (10 Cir. 2012) .....ceecssssssessssssseescessssneeccessssseeesesanncsseennreeseenans 11

Hawn v. Exec. Jet Memt., Inc., 615 F.3d 1151 (9! Cir, 2010) oe cececseesceecneseseresscetseneenneesseteass 16

Heard v. Caruso, 351 F. App’x 1 (6™ Cir, 2009) w.ceecccssecssnsssssesssnesessessseessseessnecssnsesniessnees 11

Hicks v. Gates Rubber Co., 928 F.2d 966 (10 Cir, 1991)....cccceccseesseesecnecersssreesnesseesseessiness 23

Holbrook v. Reno, 196 F.3d 255 (D.C. Cir, 1999)... cccsssseesescsseeenenesensseneersrenstrsesencieererenenes 17

Hormel v. Helvering, 312 U.S. 552 (1941) ..ccescsecsesssssecssesseessensinseessensncerenensensssauasaseennneesenens 23

International Broth. Of Teamsters v. U.S., 431 U.S. 324 (1977) cccsseeesererssecserttseneenerenees 15,16

Inre Diet Drugs Product Liability Litigation, 706 F.3d 217 (3 Cir, 2013) ceceeeseseesseeneeees 23

Isenbergh v. Knight-Rider Newspaper Sales, Inc., 97 F.3d 436 (1 1 Cir, 1996) ..ceseeeceeeeeees 15

Jackson v. E.J. Brach Corp., 176 F.3d. 971 (7® Cir. 1999)... cssssessssescsseessesecseeesneeesseesstensnniess 14

Jackson v. State of Alabama State Tenure Com’n, 405 F.3d 1276 (1 1 Cir, 2005)... .cecceeeeees 18

Kenney v. Aspen Technologies, Inc., 965 F.3d 443 (6 Cit, 2020) .oeesecseecsesseersenessssstssteeneesnees 20

Kindler v. Potter, 197 F. App’x 515 (7 Cit, 2006) ..o...sseessseeessssessssssusesessesessaseessseesseneceennnass 16

Krim v. Banc Texas Group, Inc., 989 F.2d 1435 (5® Cir. 1993) ...eccssesssessssssssssseescenseseassaee 14

Kuhn v. Washtenaw County, 709 F.3d 612 (6! Cir, 2013) .ccssecssscsressseseseessnsessseesseeessessnsnes 21

Lewis v, City of Union City, Georgia, 918 F.3d 1213 (11 Cir, 2019)... eeecseeeseereeeseesseseenenss 17

Lewis v. Jefferson Parish Hosp. Serv. Dist. No. 2,562 Fed. Appx. 209

(Sth Cir, 2005)... ceeeeceessessseeseesseeeesecesscsesseesssesseessseseesccaensseassneenaqsuecansceeearserenmsssssunsasescereassnaeses 17

Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (LO Cir. 2018) ...cssscssssesssssseccssecensssssesnecseenessennnees 17

Local 377, RWDSU, UFCW v. 1864 Tenants Ass’n, 533 F.3d 98 (24 Cir, 2008)... 23

Loudermilk v. Best Pallet Co., 636 F.3d 312 (7 Cit. 2011) ..cccssscssssssssessseesseereeneeeneesnessssesse 22

McKenna v. Weinberger, 729 F.2d 783 (D.C. Cit. 1984)....cccssessesessseseereeteeereesenennsneenseereeees 17

MacKenzie v. City & Cnty. Of Denver, 414 F.3d 1266 (10 Cir, 2005)....sesceesrereeseesseees 15,16

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) w.cesessseeeeereentesnneeatersneeneunesnesies 13

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5 (1% Cir, 1990) eessssesssesseseesssnnsen 14

Meehan v. Snow, 652 F.2d 274 (24 Cir, 1981)...ccceccsessssssessseesneessnessseesassssesssessnesseesseessessaeeene 11

Myers y. Alvey-Ferguson Co., 326 F.2d 590, 592 (6 Cit, 1964) ooeceeccceseesteecreserereeneesseetsases 23

Nolley v. Swiss Reinsurance Am. Corp., 857 F. Supp. 2d 441 (S.D. N.Y. 2012)... eee 21

Oviedo v. Washington Metropolitan Area Transit Authority, 948 F.3d 386

(D.C. Cir, 2020) .eeeccesecssststessesessnesceesessssneaseesscscenssassseaseacseceseacerssaseseearensarsncenssasassscssesecssrasase 15

vi

Perez y, Wells Fargo N.A., 774 F.3d 1329 (14 Cir, 2014)..eccceccceectecstesseeeenessresanesareseseseseesss 11

Reider vy. Philip Morris USA, Inc., 793 F.3d 1254 (1 TV Cir, 2015) ..cccceseessecseeseestececeeeeseesseesees 23

Sanchez-Arroyo v. Eastern Airlines, Inc., 835 F.2d 407 (1% Cit. 1987) ...ssseeseseecsseseenteesn rene 23

Shah v. Oklahoma, ex rel. Oklahoma Dept. of Mental Health and Substance Abuse,

A85 Fed. Appx. 971 (10% Cir. 2012).....ssssssccssseresssssnsssssssseecesessssssseenestinesessuuenecesonnnasensonnnens 14

Smelter v. Southern Home Care Services, Inc., 904 F.3d 1276 (11™ Cir, 2018) ...ccscsceccee 18

Smith v. American Express Co., 853 F.2d 151(2%4 Cir. 1988) .....-sssssssssessseesssssescesnecseenseeeennes 14

Solomon v. Society of Automotive Engineers, 41 Fed. Appx. 585 (3% Cir. 2002) v.seeeeceeeecees 14

Steinhauer v. DeGolier, 359 F.3d 481 (7 Cir, 2004) .eseesesesssconscsssessessseesseeseseassesseensensseensess 17

St. Mary’s Honor Center v. Hicks, 509 U.S. 202 (1993) ....ccssseseseseeseerseeteessesssneseenseassnesnens 13

Staub v. Proctor Hospital, 562 U.S. 411 (2011) ..scscccsseseessesscetsseneeesnertsneseeunseeceseeeeneenenerrenes 20

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). eseeeesesesseeeerenesseesneennensennesees 13

Thomas vy. Johnson, 788 F.3d 177(5® Cir, 2015)... scssssessssstscsssseesssuneessaneseesseseessneceennneeesaniases 17

Twigg v. Hawker Beechcraft Corp., 659 F.3d 987 (10 Cir, 2011) .eceessessessessseessetsseneenseene 21

United Coin Meter Co., Inc. y. Seaboard Coastline RR., 505 F.2d 839 (6 Cir. 1983) ........0: 11

University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013) esses 20

Vasquez v. County of Los Angeles, 349 F.3d 634 (98 Cir, 2003) oo escecseesstecseesseesseeeseesseesseesees 16

VLM Food Trading Intern., Inc. y. Illinois Trading Co., 811 F.3d 247

(7th Cir, 2016)... eesscsesseeessesssssesesaneecssessnasensasennaessunenssssenecesnrenssavecsssessessansucsaseennnesquasesnanecenastey il

Vt. Teddy Bear Co. v. 1-800 Beargram Co,, 373 F.3d 241 (2nd Cir. 2004)... sence 11

Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463 (6th Cir. 2012)... sceneries 21

Wever v. Lincoln County, Nebraska, 388 F.3d 601 (8th Cir. 2004) «00... ees seseeseeeeeeteesesseens 23

Wingo v. Michigan Bell Telephone Company., 815 Fed. Appx. 43 (6th Cir. 2020)... 21

vii

Statutes

2B U.S.C. § 1652. ccecessesssccrsnersenssesssseseesessssensaseensnesssassesesscersnersaseesasecevenessaeacenenanerenasasnrnenngs 10

2B U.S.C.§ 3004 (8) neeeceesccsnesssessesessesenssecsesnenesssnsseeseatenesensenssnescensceseneassssnnerenasnaseeneneernessntits 10

AZ U.S.C. § 20006 ..eesceecereseenescersestesesessvensssensesenesesesssseesenasaaseencarerecsseasauesenceveasseennseneansnesseneeatees x

Rules

Fed. R. Civ. P. Svccceccsccscsssssessensescecscsereeecoesssescauseesensceeeasenenseeeenssaneneeesasnasusnsassescessnaseeeaseeeegeaeens 10

Fed. R. Civ. P. 55 ccccccccccccssecesecsseeneeesencsescsssnsvensscsssnsvsnenenensassesesceneaeseneeneneeavensnersaeeseassesneases 9,11,12

viii

OPINIONS BELOW

In addition to the opinions below identified in the Petition, the U.S. District Court for the

Eastern District of Michigan Magistrate Judge’s Report and Recommendation to Deny

[Petitioner]’s Motion for Summary Judgment (Record 37, 156) and Grant Defendant’s Motion for

Summary Judgment (Record 55, 479-509) is unpublished, a slip copy can be found at McGarity v.

Birmingham Public Schools, No. 19-11316, Slip Copy, 2020 WL 7268590 (E.D. Mich. Nov. 3,

2020). The U.S. District Court for the Eastern District of Michigan’s Opinion and Order Accepting

Magistrate Judge’s Report and Recommendations, Denying [Petitioner]’s Motion for Summary

Judgment, Granting Defendant’s Motion for Summary Judgment, and Denying [Petitioner]’s

Motion for Leave to Amend is unpublished, a slip copy can be found at McGarity v. Birmingham

Publie Schools, No. 19-11316, Slip Copy, 2020 WL 6793327 (E.D. Mich. Nov. 19, 2020). The

United States Court of Appeals, Sixth Circuit’s Order is not reported in Fed. Rptr., the unpublished

Order is available at McGarity v. Birmingham Public Schools, No. 20-2176, __Fed. Rptr.__, 2021

WL 4568050 (6th Cir. Sept. 7, 2021).

ix

RELEVANT AUTHORITY

The text of the following relevant Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000¢ is contained in Respondent’s Appendix. The text of Federal Rules of Civil Procedure 5

and 55 are contained in Respondent’s Appendix.

COUNTER-STATEMENT OF THE CASE

The key facts of this case, supplemented by the judicially noticed facts, are as follows.

Petitioner, Sasha McGarity, (“Petitioner”), filed suit against her former employer, Birmingham

Public Schools (the “District”), alleging that she was terminated because of her race and in

retaliation for requesting union representation.

On August 28, 2018, Petitioner was hired as a special education paraprofessional at West

Maple Elementary to support the Learning Resource Center (“LRC”) teachers, Claire Theys and

Grace Weiss, with their special education students. Petitioner App. A 1-2.! As such, Claire Theys

and Grace Weiss were Petitioner’s direct supervisors. Petitioner was one of four paraprofessionals

that worked directly under the LRC teachers at West Maple during the 2018-2019 school year.

Record 55-8, 561. The other four paraprofessionals were long time employees and had worked for

West Maple for at least ten years. One of these veterans was Julie Shimshock. The other four

paraprofessionals are white, and Petitioner is African American. Petitioner App. A 2.

Petitioner was classified as a probationary employee from August 28, 2018, until January

22, 2019. Petitioner App. A 1-2. The District has a union for paraprofessionals called the

Birmingham Association for Paraprofessionals, however, while probationary paraprofessionals

could join the union, they were not treated the same as non-probationary paraprofessionals. Jd. at

2. Under the Paraprofessional Collective Bargaining Agreement, the District had an “unconditional

right to terminate” probationary paraprofessionals’ employment at any time during the

probationary period without going through the formal grievance process contained in the

Agreement. Jd.

1 Special Education Director, Laura Mahler, recommended that the District hire Petitioner after the interview process.

Record 55-5, 554. As such, Petitioner’s allegation to the contrary is contradicted by the record evidence.

1

Special education paraprofessionals (“paras”) are hired to assist disabled students in the

Learning Resource Center (“LRC”), in the general education classroom, and in school activities.

Paras work at the direction of the LRC teachers and the general education teachers. Record 55-7,

558. In short, LRC teachers provide paras with their schedule, their assigned special education

students, and special instructions regarding their assigned students’ needs. See Record 55-12, 574-

575. To ensure that special education students are educated in the least restrictive environment

(LRE), these students spend most of their school day in general education classrooms, not in the

LRC. Petitioner App. A 2; Record 60-2, 849. Because of this, the paras, like Petitioner, spend most

of their workday rotating between general education classrooms, where they work one-on-one with

their assigned disabled students.

Regular and effective communication with the LRC teachers, the classroom teachers, and

the other paras is an essential function of the para position. Petitioner App. A 2; Record 55-7, 557-

59. In fact, communication is expressly listed as a duty on the paraprofessional job description.

See Jd The LRC teachers are primarily responsible for assessing and accommodating each

individual student’s needs. Because of this, daily communication between the paras and the LRC

teachers is imperative, to ensure that each disabled student’s individual needs are met. Record 55-

7, 558; Record 62, 902-903; Record 63-3, 931-932.

During the 2018-2019 school year, there were only two LRC teachers that served several

disabled students that were spread across the 25 general education classrooms at West Maple.

Petitioner App. A 2; Record 62, 902-903. As previously explained, the disabled students spend

most of the school day in these general education classrooms. Jd. The LRC teachers were unable

to be physically present in each of the 25 classrooms to observe their students’ progress with the

general education curriculum. Instead, the LRC teachers relied on Petitioner and the other four

paras to share information regarding their assigned students’ progress. Petitioner was the only

probationary para during the 2018-2019 school year.

Petitioner began exhibiting performance issues shortly after her she began working at West

Maple. Record 55-8, 561; Record 55-18, 591. By Mid-October Petitioner stopped attending

morning meanings with the LRC teachers and stopped communication with the other paras. Record

55-18, 591. Petitioner admitted that she intentionally refrained from regular communication with

the LRC and general education teachers because she believed she could work “independently” and

without teacher supervision. Record 55-4, 534-35, 539-40, Instead of meeting with the LRC

teachers throughout the day, Petitioner admits she spent her down time alone in a vacant classroom

or in her car, watching “shows.” By November, Petitioner ceased all communication with the LRC

teachers, a fact which is not in dispute. Id. at 534-35, 539-40. However, this was contrary to the

paraprofessional performance expectations and prevented the LRC teachers from giving and

receiving necessary feedback regarding Petitioner’s assigned students. Petitioner also refused to

work with several of her assigned disabled students because they exhibited “difficult behaviors.”

The LRC teachers made several unsuccessful attempts to work with Petitioner on her

performance issues. Record 62, 903; 55-8, 562; Record 55-18, 592. However, Petitioner continued

her pattern of not communicating with the LRC Teachers. Record 55-4, 534-35, 539. In early

_ December the LRC teachers scheduled another meeting with Petitioner to address their continued

concerns with her lack of communication. Petitioner App. A 3-4; Record 55-8, 562; Record 55-

18, 593. However, Petitioner admitted that she skipped this meeting. Record 55-4, 538-39; Record

37, 156.

As a result, the LRC teachers brought their concerns to their direct supervisor, Principal

Jason Pesamoska. Record 55-8, 562; Record 55-18, 593. Then on December 13, 2018, Principal

Pesamoska met with Petitioner to speak with her regarding her performance issues, Record 55-13,

77. During this meeting, Principal Pesamoska instructed Petitioner to meet with the LRC teachers,

to make sure that the “lines of communication had been opened.” Record 55-14, 580; Record 55-

4, 540. Five days later Principal Pesamoska asked whether she had a chance with meet with the

LRC teachers and whether she had opened the lines of communication with them. Jd; Record 62,

907-908. Petitioner admitted during her deposition that she had purposefully refrained from

initiating any communication with the LRC teachers because she did not want to talk to them

anymore. Record 55-4, 540-41. Principal Pesamoska then directed Petitioner to speak with them

by the end of the day Friday.

On December 19, 2018, Petitioner finally met with the LRC teachers. During this meeting

the LRC teachers discussed their concerns with Petitioner’s communication and reviewed the job

performance expectation. Record 55-8, 563; Record 55-18, Page ID #593. Following this meeting,

Petitioner admitted during her deposition that she never spoke with the LRC teachers again. Record

55-4, 542.

Given that Principal Pesamoska received multiple complaints regarding Petitioner’s job

performance, he decided to conduct an independent investigation into her work performance.

Record 62, 908; Record 55-11, 570-71. He interviewed seven objective West Maple employees

about Petitioner’s work performance. All seven employees corroborated the LRC teachers’

complaints about Petitioner’s communication issues and unwillingness to work with certain

disabled students. Principal Pesamoska took notes during his investigation, briefly detailing each

interviewed employee’s account of Petitioner’s work performance. Record 55-11, 570-71.

Principal Pesamoska testified that based on these seven interviewed employees’ statements, he

honestly believed the LRC teachers’ reports regarding Petitioner’s inadequate work performance

were true. Thus, he had an “honest belief” that the complaints were true. Still, Principal Pesamoska

gave Petitioner another chance and told her on December 21, 2018, that she needed to start

communicating with the LRC teachers if she wanted to keep working at West Maple. On January

1, 2019, Petitioner informed Principal Pesamoska that she wanted to keep working at West Maple

and indicated that she would work things out with the LRC Teachers. Record 37-2, 181.

Petitioner admitted during her deposition that she refused to correct her communication

issues and intentionally disobeyed Principal Pesamoska’s express directive. Petitioner admitted

she refused to communicate with the classroom teachers, as Pesamoska ordered her to do:

Q. And what happened when you returned to school?

A. We were supposed to gather a meeting to, you know, discuss my issues with

Grace and Claire. And did I talk to them? No. I did my job and I went

home.... Did I talk to them? No. I did not want to talk to them. 1 was

still very angry...

Q. Until the point of that January 10 meeting, had you spoken with Claire and

Grace?

A. No.

Record 55-4, 542.

On or around January 7, 2019, Principal Pesamoska learned of Petitioner’s continued

unwillingness to correct her communication issues with the LRC teachers. See Petitioner App. A

4. Principal Pesamoska interpreted Petitioner’s refusal to follow his direct instructions to

communicate with the LRC teachers as insubordination, and grounds for termination. As a result,

he recommended that Petitioner be terminated.

On January 8, 2019, Principal Pesamoska notified Petitioner that a disciplinary meeting

was scheduled for January 10, 2019. Record 55-16, 5842 While Petitioner never joined the

2 In this same email Principal Pesamoska notified Petitioner that “Dean Niforos, [the Deputy Superintendent of]

Human Resources, along with Laura Mahler, [the Director of] Special Education will be in attendance.” And informed

Petitioner that he included a union representative in the email to inform her of the meeting in case Petitioner chose to

have union representation. Record. 55-16, 584. Petitioner misrepresents in her Petition that Laura Mahler is Claire

Theys’ mother. This has no basis in fact and Petitioner has never provided any evidence to the contrary.

5

paraprofessional union, and on January 7, 2019, Petitioner stated she did not want representation,

the District arranged for Petitioner to have a union representative at the disciplinary meeting.

Record 55-16, 584; Record 55-17, 586-89. Based on the above, the District terminated Petitioner’s

employment on January 11, 2019, which was before the expiration of her probationary period.

Petitioner App. A 3.

Petitioner filed suit, pro se, alleging that her termination was the result of discrimination

and retaliation in violation of Title VII and the Fair Labor Standards Act (FLSA). Petitioner

initially claimed that Grace Weiss told her that she should “put in her two weeks’ notice” during

the December 2018 meeting, and that this statement created a racially hostile environment under

Title VII. However, Petitioner later admitted on appeal to the Sixth Circuit that this claim is not

actionable under Title VIL. See Pl. Appeal Br., Doc. 8-1, 21.

Petitioner served her complaint and summons on May 21, 2019. The District filed an

answer on June 12, 2019 using the Court’s electronic filing system. Record 12, 43-53. Petitioner

filed multiple requests for a clerk’s entry of default several weeks after the District filed its answer,

which were denied. Record 16, 57; Record 20, 66. She then filed a motion for default judgment

without first obtaining an entry of default from the Clerk. While the district court acknowledge

that the District filed its answer one day later than required under Federal Rule of Civil Procedure

12(a)(1)(A)(i), the Court found that Petitioner failed to demonstrate how she was prejudiced by

the one day delay. Because of this and because Petitioner’s motion was procedurally deficient, the

district court, upon the recommendation of the magistrate judge, denied Petitioner’s motion.

Petitioner App. C; Record 25, 89-90. The case then proceeded through discovery.

The Parties filed cross-motions for summary judgment. Record 37, 154-164; Record 55,

479-509; Record 63, 915-922. On October 27, 2020, the district court held a hearing on the

competing Motions. On November 11, 2020, the Magistrate issued his report and recommendation

that the district court should grant the District’s Motion for Summary Judgment and should deny

Petitioner’s competing Motion. Record 73, 1138-1164.

On November 16, 2020, Petitioner filed a motion for leave to amend her Complaint and

filed an objection to the Magistrate’s Report and Recommendation. Record 75, 1168-70; Record.

76, 1177-1195. Petitioner then filed a second objection on November 17, 2020. Record 77, Page

1215-33.

On November 19, 2020, the district court issued its Opinion adopting the Magistrate’s

Report and Recommendation. Record 78, 1252-58. The district court concluded that, based on its

independent review of the Parties’ Motions, “the magistrate judge’s R&R thoroughly, accurately,

and fairly presents all of the relevant facts and analyzes them, as [Plaintiff acknowledges, ‘based

upon the law.’ [The District] is entitled to summary judgment because no reasonable jury could

find in [P]laintiff’s favor on any of her claims.” Jd. at 1254-55. The district court reasoned that:

[t]here is not a shred of record evidence to suggest that [P]laintiff's race or her

engagement in any protected activity played a role whatsoever in [the District’s]

decision to discharge her. Nor is there a shred of evidence to suggest that [P]laintiff

was subjected to a hostile work environment or that her rights under the FLSA were

violated. In fact, the Court finds that [P]laintiff’s case is so lacking in factual or

legal support as to be frivolous and sanctionable under Fed. R. C. P. 11.

Id. at 1255 (emphasis added). The district court entered its Judgment on November 19, 2020,

granting the District’s Motion for Summary Judgment and denying Petitioner’s competing Motion.

Record 79, 1259.

On December 3, 2020, Petitioner filed a notice of appeal to the Sixth Circuit. Record 80,

1260. She abandoned her hostile environment and FLSA claims and only appealed her racial

discrimination and retaliation claims brought under Title VII. See Pl. Appeal Br., Doc. 8-1. She

also challenged the district court’s denial of her motion for default judgment. See Id.

7

On March 30, 2021, the District filed its brief on appeal. Def. Appeal Br., Doc. 17. On

September 7, 2021, the Sixth Circuit issued an Order affirming the district court’s judgment.

Petitioner App. A. In reviewing the district court’s denial of Petitioner’s motion for default

judgment, the Sixth Circuit determined that the district court did not abuse its discretion in denying

Petitioner’s motion. Petitioner App. A 6. The Sixth Circuit explained that that the Clerk had no

obligation to enter a default against the District and she had no basis to pursue a default judgment

since it filed an answer. /d. In reviewing the district court’s grant of summary judgment, the Sixth

Circuit determined that summary judgment was proper on Petitioner’s discrimination, retaliation,

and hostile environment claims. First, the Sixth Circuit determined that Petitioner failed to meet

her burden of proof for her race discrimination claim given that she failed to prove that her

termination was actually a pretext for discrimination. See Petitioner App. A 8-10. The Sixth Circuit

reasoned that Petitioner provided no evidence that her lack of communication did not actually

motivate dismissal or that it was insufficient to warrant dismissal. See Id. Second, the Sixth Circuit

determined that Petitioner’s retaliation claim failed because Petitioner did not prove but for

protected activity she would not have been terminated. In affirming the district court’s conclusion,

the Sixth Circuit explained that Petitioner provided no argument identifying a genuine issue of

material fact as to the intervening event—i.e. Principal Pesamoska’s discovery that Petitioner

disobeyed his direct order and did not correct her communication issues—that was the legitimate

reason for Petitioner’s termination. See Jd at 10-11. Lastly, in reviewing Petitioner’s hostile

environment claim, the Sixth Circuit agreed that Petitioner abandoned the claim by conceding that

Grace Weiss’ alleged comment was not actionable under Title VII. Jd at 12. The Sixth Circuit

expressly declined to review the state-law claim that was raised for the first time on appeal. Id.

3 The Sixth Circuit agreed that Petitioner abandoned her FLSA claim on appeal. Petitioner App. A 7.

8

ARGUMENT

L THIS COURT SHOULD DENY PETITIONER’S PETITION GIVEN THAT

PETITIONER FAILS TO ARTICULATE ANY COMPELLING REASON WHY

THIS COURT SHOULD REVIEW THIS CASE ON A WRIT OF CERTIORARL

Petitioner’s petition does not point to any authority indicating that the Sixth Circuit’s

decision is in conflict with a decision from another United State Court of Appeals. Moreover, it

does not explain how the Sixth Circuit decided an important question of federal law that has not

been, but should be, settled by this Court. As explained in more detail below, this Court should

deny the Petition as frivolous given that the Sixth Circuit’s decision: (1) did not involve an

important question of federal law that remains unsettled; (2) did not conflict with the relevant

decisions ftom this Court; and (3) aligns with the accepted and usual course of judicial

proceedings.

A. The Sixth Circuit Correctly Found that Petitioner Lacked a Procedural Basis

to Pursue Default Judgment Under Federal Rule of Civil Procedure 55.

Federal Rule of Civil Procedure 55 governs requests for entry of default and motions for

default judgment. See Fed. R. Civ. P. 55{a)-(b). Rule 55 states:

(a) Entering A Default. When a party against whom a judgment for affirmative

relief is sought has failed to plead or otherwise defend, and that failure is shown

by affidavit or otherwise, the clerk must enter the party’s default.

(b) Entering A Default Judgment.

(1) By the Clerk. If the plaintiffs claim is for a sum certain . . . the

clerk—on the plaintiff's request, with an affidavit showing the

amount due—must enter judgment for that amount and costs against

a defendant who has been defaulted for not appearing ... .

(2) By the Court. In ail other cases, the party must apply the court for a

default judgment.

See Id.

Here, Petitioner provides no authority in support of her contention that the Sixth Circuit

decision was incorrect. Instead, she claims that under the state court rules the Sixth Circuit

misapplied the applicable procedural rules when concluding that the district court did not abuse its

9

discretion in denying her request for default judgment. While this Court does not review circuit

court’s procedural rules absent a compelling reason to do so, Petitioner failed to show such a

compelling reason is present in this case.

First, neither of the federal statutes cited by Petitioner stand for her claimed proposition.

28 U.S.C.§ 3004(a) states that service is in accordance with the Federal Rules of Civil Procedure.

Similarly, 28 U.S.C. § 1652 states that federal courts will recognize state court rules when there is

no federal rule that applies. However, Federal Rule of Civil Procedure 5 governs service of

pleadings. Because of this, federal courts are not permitted to apply the state court version of Rule

5 pursuant to 28 U.S.C. § 1652. Third, Petitioner misrepresents the facts in terms of whether she

was properly served under Rule 5. Under Rule 5, service of a pleading is proper if it is made by

filing it through the Court’s electronic filing system. See Fed. R. Civ. P. 5(b)(2)(E). However, if

the filer learns that it did not reach the person to be served, then service is considered incomplete

and must be completed through one of the other modes of service listed in Fed. R. Civ. P. 5(b)(2).

Here, the District served its answer onto Petitioner through filing it in the district court’s

electronic filing system. However, once it learned that Petitioner did not receive it because she was

not yet an authorized user, the District immediately mailed a copy to Petitioners last known address

which amounts to proper service under Fed. R. Civ. P. 5(b)(2)(C). As such, Petitioner’s service

argument lacks merit.

Furthermore, Petitioner’s argument completely confuses the issues and ignores the Sixth

Circuit’s basis for decision—.e. that the district court did not abuse its discretion in denying her

motion for default judgment because she failed to comply with the procedural requirements of

Rule 55. There is no disagreement among the circuit courts that a district court does not abuse its

discretion when it properly applies the procedure outlined in Rule 55 when deciding a motion for

10

_ default judgment. See Vi. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,246 Qnd Cir.

2004)(discussing the basis procedure for obtaining a default judgment under Fed. R. Civ. P. 55));

see generally First Bank Puerto Rico v Jaymo Properties, LLC, 379 Fed. Appx. 166, 170 Grd Cir.

2010); Grant v. City of Blytheville, Arkansas, 841 F.3d 767, 773 (8th Cir. 2016); Perez v. Wells

Fargo N.A., 774 F.3d 1329, 1336 (11th Cir. 2014); Fidrych v. Marriott International, Inc., 952

F.3d 124, 130 (4th Cir. 2020); Harvey v. U.S., 685 F.3d 939, 946 (10th Cir. 2012); Gilmore v.

Palestinian Interim Self-Government Authority, 843 F.3d 958, 965 (D.C. Cir. 2016)(“The Federal

Rules of Civil Procedure delineate the standards governing the entry and vacatur of defaults and

default judgments.”)); VLM Food Trading Intern., Inc. v. Illinois Trading Co., 811 F.3d 247, 255

(7th Cir. 2016); see also Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1192, n.3 (Sth Cir. 1992);

see Heard v. Caruso, 351 F. App’x 1, 15-16 (6th Cir. 2009); United Coin Meter Co., Inc. v.

Seaboard Coastline RR., 505 F.2d 839, 844 (6th Cir. 1983)(citing Meehan v. Snow, 652 F.2d 274,

276 (2nd Cir. 1981)); see Burtscher v. Moore, 611 Fed. Appx. 456 (9th Cir. 2015); see Harry v.

Countrywide Home Loans, Inc., 902 F.3d 16, 19 (1st Cir. 2018)(citing Fed. R. Civ. P. 55 and

holding that motions for default properly denied when the plaintiff failed to prove that the

defendant “filed to plead or otherwise defend” against the complaint.)).

Petitioner only cites to one case, EEOC v. Workplace Staffing Solutions, LLC, Case No.

1:15ev360LG-RHW, 2016 WL 3676656 (S.D. Miss. July 7, 2016), in support of her contention

that this Court should review the district court’s denial of her motion for default judgment.

However, this unreported case from the Southern District of Mississippi does not evidence that the

Sixth Circuit’s decision is in conflict with another federal circuit court on an important issue. Apart

from the fact that this case is an unreported district court case, it applied the same default judgment

procedure as the Sixth Circuit:

il

When a party against whom a judgment for affirmative relief is sought has failed

to plead or otherwise defend, and that failure is shown by affidavit or otherwise,

the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). The plaintiff may

then seek a default judgment pursuant to Fed. R. Civ. P. 55(b).

EEOC vy. Workplace Staffing Solutions, LLC, Case No. 1:15¢v360LG-RHW, 2016 WL 3676656,

*1 (S.D. Miss. July 7, 2016). As such, this case does not support review of this issue.

Furthermore, applying the proper federal rule of civil procedure, the Sixth Circuit properly

determined that the district court did not abuse its discretion in denying Petitioner’s motion. There

is no dispute that the District filed its answer. Record 12, 43. Because of this, the Clerk had no

obligation to enter a default against the District. See Fed. R. Civ. P. 55(a). Also, given that

Petitioner did not first obtain a clerk’s entry of default under Rule 55(a), Petitioner’s request for a

default judgment under Rule 55(b) was procedurally deficient. The district court then declined to

award Petitioner’s requested relief given that she failed to prove how she was prejudiced. Petitioner

cites to no authority that would indicate that this amounts to a clear abuse of discretion. As such,

this Court should deny the Petition as to this issue. See Crites, Inc., v. Prudential Ins. Co. of

America, 322 U.S. 408, 418 (1944)(holding that matters within the sound discretion of the district

court are ordinarily not reviewable except where a clear abuse of discretion is apparent)).

B. The Sixth Circuit Correctly Found that Petitioner Failed to Meet her Burden

of Proof that her Termination was a Pretext for Discrimination as she

Presented No Evidence of Pretext.

Petitioner misrepresents that she established inconsistencies and contradictions in the

District’s arguments, As the Sixth Circuit explained, Petitioner “d[id] not identify any blatant

contradictions, only factual determinations made by the [D]istrict that she disagrees with.

4 Petitioner’s claims that “[t]he circuit court apparently neglected to say whether the evidence was sufficient to prove

or disprove pretext” and that she showed pretext “by pointing to inconsistencies and contradictions in BPS arguments”

have no basis in fact. See Petition, p. 12. Petitioner pointed to zero contradictions in the District proffered reason for

her termination. In fact, the Sixth Circuit expressly determined that Petitioner’s chart did not evidence any blatant

contradictions. Petitioner App. A 10.

12

Petitioner App. A 10. In addition to Petitioner’s numerous misstatements regarding her proffered

evidence of pretext, Petitioner grossly misstates her burden of proof. Petitioner assumes that her

unsupported conclusory allegations can carry her burden of proof regarding pretext. However, this

does not comport with the law.

The evidentiary burdening shifting framework for Title VII employment discrimination

cases, is well settled precedent. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), this

Court explained the burdens of proof for employment discrimination cases brought under Title

VIL This Court explained that the plaintiff has the initial burden of establishing a prima facie case

of racial discrimination. See Jd. at 802. Then “[t]he burden must shift to the employer to articulate

some legitimate, nondiscriminatory reason for the employee’s rejection.” Jd. If the employer meets

its burden of production, then the burden shift back to the plaintiff to prove that the employer’s

reason was in fact pretext. Jd. at 804-805. This Court explained that the plaintiffmust “demonstrate

by competent evidence that the presumptively valid reasons for [her] rejection were in fact a

coverup for a racially discriminatory decision.” Jd. at 805. This Court has indicated that in order

to show pretext, the plaintiff must “demonstrate that the proffered reason was not the true reason

or the employment decision . . . [and] may succeed in this either directly by persuading the court

that a discriminatory reason more likely motivated the employer or indirectly by showing that the

employer’s’ proffered explanation is not worthy of credence.” Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256 (1981)

This Court clarified in St. Mary’s Honor Center v. Hicks, “[i]t is important to note,

however, that although the McDonnel Douglas presumption shifts the burden of production to the

defendant, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.’” 509 U.S. 502, 507.

13

Here, in the context of summary judgment, there is no disagreement among the federal

circuit courts that the plaintiff cannot meet her burden of proof as to pretext if she relies only on

unsupported and conclusory allegations. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896

F.2d 5, 8 (1st Cir. 1990)(holding that where the “nonmoving party rests merely on conclusory

allegations, improbable inferences, and unsupported speculation,” summary judgment is

appropriate)); see Smith v. American Express Co., 853 F.2d 151, 154-55 (2nd Cir. 1988)(holding

that summary judgment was appropriate where the plaintiff provided only conclusory allegations

of pretext that were unsupported by the weight of the evidence)); see Solomon v. Society of

Automotive Engineers, 41 Fed. Appx. 585, 586 Grd Cir. 2002)(holding that a plaintiff cannot rely

on unsupported assertions, speculation, or conclusory allegations to avoid a motion for summary

judgment)); see Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006); see

Goldberg v. B. Green & Co., Inc., 836 F.2d 845, 858 (4th Cir. 1988); see Grimes v. Texas Dept.

of Mental Health and Mental Retardation, 102 F.3d 137, 139-140, 143 (Sth Cir. 1996); see Krim

y, Banc Texas Group, Inc., 989 F.2d 1435, 1449 (5th Cir. 1993); see Forsyth v. Barr, 19 F.3d 1527,

1533 (5th Cir.) cert. denied, 513 U.S. 871 (1994)(holding that unsubstantiated assertions are not

competent summary judgment evidence)); see Gunn v. Senior Services of Northern Kentucky, 632

Fed. Appx. 839, 846 (6th Cir. 2015); see Bell v. Ohio State Univ., 352 F.3d 240, 253 (6th Cir.

2006)(holding that “conclusory and unsupported allegations, rooted in speculation” are

insufficient to create a genuine issue of material fact)); see Jackson v. EJ. Brach Corp., 176 F.3d

971, 985 (7th Cir. 1999)(holding that summary judgment was proper for the defendant because the

plaintiff presented no evidence to show that his employer’s reasons were a pretext for

discrimination)); see Davenport v. Riverview gardens Sch. Dist., 30 F.3d 940, 945 (8th Cir. 1994);

see Angel v. Seattle-First Nat. Bank, 653 F.2d 1293,1299 (9th Cir. 1981); see Shah v. Oklahoma,

14

ex rel. Oklahoma Dept. of Mental Health and Substance Abuse, 485 Fed. Appx. 971, 974-975

(10th Cir. 2012); see MacKenzie y. City & Cnty. of Denver, 414 F.3d 1266, 1273 (10th Cir.

2005)(“Unsupported conclusory allegations, however, do not create an issue of fact.”)); see

Isenbergh v. Knight-Rider Newspaper Sales, Inc., 97 F.3d 436, 444 (11th Cir. 1996)(‘Conclusory

allegations of discrimination, without more, are insufficient to raise an inference of pretext.”)); see

Oviedo v. Washington Metropolitan Area Transit Authority, 948 F.3d 386, 399 (D.C, Cir. 2020).

Furthermore, based on the well-established evidentiary standards for pretext, Sixth Circuit

correctly determined that Petitioner failed to meet her burden of proof given that Petitioner

presented no evidence of pretext. The cases relied on by Petitioner from this Court do not alter this

conclusion. Petitioner cites to Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006), in support of her

contention that the Sixth Circuit wrongly decided the issue of pretext. However, Ash is factually

and legally distinguishable from this case. In Ash, this Court determined when qualifications

evidence is sufficient evidence of pretext in the failure to promote context. See Ash, 546 U.S. at

457. Petitioner does not claim that the District failed to promote her nor has she ever relied on

evidence suggesting that she possessed superior qualifications to any other paraprofessional.

Moreover, Petitioner does not explain how the Sixth Circuit’s decision on the pretext issue

conflicts with this Court’s decision in Ash.

Petitioner also cites to International Broth. of Teamsters v. U.S., 431 U.S. 324 (1977), in

support of her argument the statistical proofs are probative of pretext. However, that case involved

aclass action pattern-or-practice case where this Court discussed statistical evidence as proof that

the company operated under a general policy of discrimination. As such, that case lends no support

in proving pretext in this single race discrimination case and does not evidence that the Sixth

15

Circuit’s decision regarding pretext conflicts with this Court’s decision in International Broth of

Teamsters.

Petitioner claims that the Sixth Circuit wrongly decided that she failed to prove pretext by

showing her communication issues were insufficient to warrant termination. However, Plaintiff is

mistaken given that she presented zero evidence that Caucasian similarly situated employees were

not terminated for substantially identical conduct. .

Federal circuit courts have consistently held that non similar employees cannot be used as

a comparable employee for the purpose of proving pretext. Indeed, when there are material

distinctions between employees, such as differences in the conduct committed, differences in the

employment status of the employees, or that involve such differentiating or mitigating

circumstances that would distinguish the plaintiff's conduct from that of the other employee, the

circuits uniformly find that the employees cannot be similarly situated to one another. See Kindler

y. Potter, 197 F. App'x 515, 518 (7th Cir. 2006)(“[plaintiff] is not similarly: situated to either

[employee], because the [employees] engaged in different conduct [that warranted discipline].”)

\(citations omitted); see Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 592 (7th Cir. 2008)(“A

similarly situated employee need not be “identical,” but the plaintiff must show that the other

employee “dealt with the same supervisor, [was] subject to the same standards, and had engaged

in similar conduct without such differentiating or mitigating circumstances as would distinguish

[his] conduct or the employer's treatment of [him].”)); see Hawn v. Exec. Jet Mgmt, Inc., 615 F.3d

1151, 1157 (9th Cir. 2010)(we have determined that “individuals are similarly situated when they

have similar jobs and display similar conduct.” )); see Vasquez v. County of Los Angeles, 349 F.3d

634, 641 (9th Cir. 2003)(holding that the employees were not similarly situated where the type

and severity of an alleged offense was dissimilar)); see MacKenzie v. City & Cnty. of Denver, 414

16

F.3d 1266, 1277 (10th Cir. 2005)(“Individuals are considered ‘similarly-situated’ when they (1)

have dealt with the same supervisor; (2) were subjected to the same work standards; and (3) had

engaged in the same conduct without such differentiating or mitigating circumstances that would

distinguish their conduct or the employer's treatment of them for it.” )), abrogated on other grounds

by Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018); see Lewis v. City of Union City,

Georgia, 918 F.3d 1213, 1229 (11th Cir. 2019)(“she must demonstrate—as part of her prima facie

case—that she and her comparators are “similarly situated in all material respects.”)).

Following the above well-established principles, federal circuit courts have uniformly held

that probationary employees cannot be similarly situated to non-probationary employees. See

Thomas v. Johnson, 788 F.3d 177, 180 (Sth Cir. 2015); see George v. Leavitt, 407 F.3d 405, 415

(D.C. Cir. 2005); see Lewis v. Jefferson Parish Hosp. Serv. Dist. No. 2, 562 Fed. Appx. 209, 212

(5th Cir. 2005)(holding that employees were not similarly situated where one was fired during her

“probationary period” and the permanent employee had different job responsibilities)); see Green

y. New Mexico, 420 F.3d 1189, 1195 (10th Cir. 2005)(finding employees were not similarly

situated where, the comparing employees were not probationary employees)); see Steinhauer v.

DeGolier, 359 F.3d 481, 484-85 (7th Cir. 2004)(holding that the proposed comparable employee

was not similarly situated to the plaintiff because the proposed comparable was not on probation));

see Bogren v. Minnesota, 236 F.3d 399, 405 (8th Cir. 2000)(holding that troopers that were no

longer in their probationary period could not be similarly situated to a probationary trooper)); see

Blanding v. Pennsylvania State Police, 12 F.3d 1303, 1309-10 Grd Cir. 1993); see Holbrook v.

Reno, 196 F.3d 255, 262 (D.C. Cir. 1999)(holding that a probationary trainee cannot be similarly

situated to 15 year veteran employee with supervisory responsibilities); see McKenna v.

Weinberger, 729 F.2d 783 (D.C. Cir. 1984)(holding that probationary employees are not similarly

17

situated to permanent employees)); see Smelter v. Southern Home Care Services, Inc., 904 F.3d

1276, 1292 (11th Cir. 2018)(holding that the plaintiff, who was a probationary employee could not

use an employee who worked for the employer for over two years as a comparable employee

because they are not similarly situated). Petitioner does not cite to any conflicting circuit decision

that would suggest a circuit split on the issue.

The Eleventh Circuit decision, Jackson v. State of Alabama State Tenure Com’n, 405 F.3d

1276 (11th Cir. 2005), relied on by Petitioner, does not support Petitioner’s contention that she

provided sufficient evidence of pretext. In fact, it supports the opposite conclusion. In Jackson, the

Eleventh Circuit found that the plaintiff's evidence, as a whole, did not support any reasonable

inference of racist motivation. As such, this case illustrates the agreement among the circuits that

a failure to provide sufficient evidence of pretext is fatal to a plaintiffs Title VI race

discrimination claim.

Furthermore, based on the undisputed facts of this case, the Sixth Circuit correctly

determined that Petitioner is not similarly situated to Claire Theys, Julie Shimshock or Amy

Tomaselli. First, Claire Theys is a tenured teacher and was Petitioner’s supervisor. Tenured

teachers and probationary paras do not have the same job duties. Record 63-3, 930-931. Thus, a

teacher cannot be a comparable employee to a para because they are not similar in all relevant

respects. Moreover, Petitioner’s does not allege that Claire Theys engaged in the same conduct. In

fact, as the Sixth Circuit explained, there is no evidence on the record that Claire Theys refused to

communicate with Petitioner.

Second, Julie Shimshock is not a similarly situated employee because they allegedly

engaged in different conduct that was not of comparable seriousness. Petitioner was terminated for

her continuous failure to adequately communicate with the LRC teachers and her failure to meet

18

her job performance expectations. This happened only after Petitioner’s performance issues were

confirmed by seven other employees during Principal Pesamoska’s independent investigation, and

Petitioner admitted to consciously disregarding Principal Pesamoska’s direct order to

communicate with the LRC teachers. In contrast, Ms. Shimshock has never engaged in similar

communication or job performance issues or disregarded any orders from her supervisors. See

Record 55-4, 549. Instead, on one occasion Ms. Shimshock’s de-escalation response to a student’s

violent outburst was investigated. Record 63-3, 932-33. The allegations against Ms. Shimshock

were thoroughly investigated by multiple, different administrators. But unlike Petitioner’s

situation, the investigations revealed no wrongdoing on Ms. Shimshock’s part. Jd. Finally, Ms.

Shimshock dealt with a different decisionmaker. As such, Petitioner cannot be similarly situated

to Ms. Shimshock.

Third, Petitioner argues that Amy Tomaselli is a comparable employee. Petitioner’s absurd

argument is premised on Ms. Tomaselli lack of in-person communication because she was required

to carry out her job duties virtually due to the COVID-19 pandemic when the Governor ordered

ALL schools to provide virtual instruction. These same unique circumstances did not exist during

the 2018-2019 school year. Therefore, there were such differentiating and mitigating

circumstances that would distinguish Petitioner’s conduct from that of Ms. Tomaselli and the

District’s treatment of them for it.

Lastly, Petitioner does not explain how the Sixth Circuit’s alleged failure to apply the “cat’s

paw” theory was in error. In fact, she provides no authority in support of her proposition that the

theory applies to the facts of this case. Furthermore, Petitioner has never produced any evidence

that Principal Pesamoska harbored any animus towards her or that he was not the one that made

the decision to recommend her termination. Because of this, Petitioner has never proved that this

19

theory is applicable to the facts of this case. See Brnovich v. Democratic National Committee, 141

S. Ct. 2321, 2350 (2021)(quoting Staub v. Proctor Hospital, 562 U.S. 411, 415 (2011)).

In sum, the evidence was undisputed that Petitioner’s refusal to communicate with the LRC

teachers during the probationary period, which was necessary part of the para job, provided a

legitimate basis for her termination. Petitioner provided no evidence to refute this legitimate basis.

Therefore, this Court should decline review of Petitioner’s Title VII race discrimination claim.

Cc. There is No Circuit Split that the Heightened “But For” Causation Standard

Applies to Petitioner’s Retaliation Claims Brought Under Title VII and the

Sixth Circuit Correctly Found that Petitioner Failed to Meet this Heightened

Causation Standard.

In University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 339 (2013),

this Court clarified that a plaintiff must prove the heightened “but for” causation standard to

succeed in a Title VII retaliation claim rather than the lesser causation standard used in Title Vil

discrimination claims. Since Nassar, it has been well settled law that but for causation is a

necessary element to a Title VII retaliation claim. This is the exact causation standard that was

applied by the Sixth Circuit when reviewing Petitioner’s retaliation claim. Petitioner App. A, p.

10.

Here, the District provided undisputed evidence that Petitioner failed to comply with

Principal Pesamoska express directive to open the lines of communication with the LRC teachers.

It was only after Principal Pesamoska’s discovery that Petitioner stilled refused to communicate

with her direct supervisors that he decided to recommend her termination. As such, the Sixth

Circuit then correctly determined that Petitioner’s intervening act that occurred between the

protected activity and the adverse action broke the causal chain necessary to establish but for

causation. See Kenney v. Aspen Technologies, Inc., 965 F.3d 443, 450 (6th Cir. 2020)(holding

“that an intervening cause between protected activity and an adverse employment action dispels

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