Petition for Writ of Certiorari — Dorota Peterson, Petitioner v. Staples the Office Superstore, LLC

Supreme Court briefApr 5, 2025

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IN THE

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APR 05 2025

SUPREME COURT OF THE UNITED STATES

WASHINGTON, DC.

DOROTA PETERSON - PETITIONER

VS.

“STAPLES Inc. HR

- RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DOROTA PETERSON

45 BEESLEY LN

VICTOR, ID,83455

307 413 3587

dorotapeterson@hotmail.com

RECEIVED

APR 11 ?m

OFFICE OF THE CLERK

SUPREME COURT, U.S

QUESTION (S) PRESENTED

Title Vll of the Civil Rights Act of 1964 makes it unlawful for an

employer “to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to” the

person’s “compensation, terms, conditions, or privileges of

employment” on the basis of race, color, religion, sex, or national

origin and age.

The question presented is:

1 .Do Title Vll and Section 1981 prohibit discrimination as to all

“terms, 11 u conditions,” or “privileges” of employment, or are they

limited to “significant” discriminatory employer actions only?

LIST OF PARTIES

All parties appear in the caption of case on the cover page:

Dorota Peterson - Petitioner, Staples Inc. HR -Respondent,

Tenth Circuit U.S. Court.

All Parties do not appear in the caption of the case on the cover

page. A list of all parties to the proceeding in the court whose

judgment is subject of this petition is as follows:

UNITED STATES DISTRICT COURT DISTRICT OF WYOMING.

RELATED CASES

Peterson v Staples Inc. HR No.1: 23-cv-00059, Wyoming District

Court.

Peterson v Staples Inc Human Resources No.0:24-cv-08041, Tenth

Circuit U. S. Court.

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLOVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

Opinion of the U.S. Court of Appeals for the Tenth Circuit dated

January 17,2025.

APPENIDIX B

Opinion of the U.S. District Court for District of Wyoming dated May

20,2024.

TABLE OF AUTHORITIES CITED

PAGE NUMB

CASES

Cases

TABLE OF AUTHORITIES

Page(s)

Betts v. Summit Oaks Hosp.,

687 F. App’x 206 (3d Cir. 2017).....

Boone v. Goldin,

178 F.3d 253 (4th Cir. 1999).............

Bostock v. Clayton County,

140 S. Ct. 1731 (2020).......................

Burlington Indus., Inc. v. Ellerth,

27, 28

524 U.S. 742(1998)............................

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

20, 27

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

Campbell v. Dep’t of Hum. Servs.,

384 F. Supp. 3d 1209 (D. Haw. 2019)

Campbell v. Haw. Dep’t of Educ.,

892 F.3d 1005 (9th Cir. 2018)...........

Cham v. Station Operators, Inc.,

685 F.3d 87 (1st Cir. 2012)..... ..........

Chambers v. District of Columbia,

35 F.4th 870 (D.C. Cir. 2022) (en banc).. 4, 17, 18

Chapter 7 Tr. v. Gate Gourmet, Inc.,

683 F.3d 1249 (11th Cir. 2012).

Clegg v. Ark. Dep’t of Corr.,

496 F.3d 922 (8th Cir. 2007).....

Cole v. Wake Cnty. Bd. of Educ.,

12, 13

834 F. App’x 820 (4th Cir. 2021)

Cottman v. Rubin,

35 F. App’x 53 (4th Cir. 2002)....

Davis v. N.Y.C. Dep’t of Educ.,

804 F.3d 231 (2d Cir. 2015)......

Davis v. Team Elec. Co.,

520 F.3d 1080 (9th Cir. 2008)...

Davis v. Town of Lake Park,

245 F.3d 1232 (11th Cir. 2001)..................

De Jesus-Hall v. N.Y. Unified Ct. Sys.,

856 F. App’x 328 (2d Cir. 2021)......... ......... 12

de la Cruz v. N.Y.C. Hum. Res. Admin.

Dep’t of Soc. Servs.,

82 F.3d 16 (2d Cir. 1996)............................. 12

Dimitrov v. Seattle Times Co., No. 98-36156,

2000 WL 1228995 (9th Cir. 2000)........

EEOC v. LHC Grp.,

773 F.3d 688 (5th Cir. 2014)...............

Ellis v. CCA of Tenn. LLC,

650 F.3d 640 (7th Cir. 2011)......... ........

Fonseca v. Sysco Food Servs. of Ariz.,

374 F.3d 840 (9th Cir. 2004)..................

Grimsley v. Marshalls of MA, Inc.,

284 F. App’x 604 (11th Cir. 2008).......... 16, 17

Hamilton v. Dallas County,

42 F.4th 550 (5th Cir. 2022), petition for

reh’g en banc filed (Aug. 16, 2022)....... 9, 10, 20

Haugerud v. Amery Sch. Dist.,

259 F.3d 678 (7th Cir. 2001)..................

Herrnreiter v. Chi. Hous. Auth.,

315 F.3d 742 (7th Cir. 2002)..................

Jackman v. Fifth Jud. Dist. Dep’t of Corr. Servs.,

728 F.3d 800 (8th Cir. 2013)......................... 15

James v. Booz-Allen & Hamilton, Inc.,

368 F.3d 371 (4th Cir. 2004)......................... 12

Johnson v. Manpower Pro. Servs., Inc.,

442 F. App’x 977 (5th Cir. 2011)..................... 9

Joseph v. Leavitt,

465 F.3d 87 (2d Cir. 2006)

Kessler v. Westchester Cnty. Dep’t of Soc. Servs.,

21-22

461 F.3d 199 (2d Cir. 2006).................

L.A. Dep’t of Water & Power v. Man hart,

435 U.S. 702 (1978).............................

Lewis v. City of Chicago,

496 F.3d 645 (7th Cir. 2007)............

13, 15

Marrero v. Goya of P.R.,

304 F.3d 7 (1st Cir. 2002).............

McCone v. Pitney Bowes, Inc.,

582 F. App’x 798 (11th Cir. 2014)

McDonnell Douglas Corp. v. Green,

3, 24, 28

411 U.S. 792 (1973)........................

Melendez v. Bd. of Educ. for Montgomery Cnty.,

711 F. App’x 685 (4th Cir. 2017)

Meritor Sav. Bank v. Vinson,

477 U.S. 57 (1986).................... ..................

Morales-Val lei lanes v. Potter,

605 F.3d 27 (1st Cir. 2010)....................... 11, 12

Muldrow v. City of St. Louis, 30 F.4th 680

(8th Cir. 2022), petition for cert, filed,

No. 22-193 (Aug. 29, 2022)....................... 15, 24

Oest v. III. Dep’t of Corr.,

240 F.3d 605 (7th Cir. 2001), overruled

on other grounds by Ortiz v. Werner

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

Pegram v. Honeywell, Inc.,

361 F.3d 272 (5th Cir. 2004)....................

Peterson v. Linear Controls, Inc.,

140 S. Ct. 2841 (2020)...............................

Peterson v. Linear Controls, Inc.,

757 F. App’x 370 (5th Cir. 2019),

petition for cert, dismissed,

140S. Ct. 2841 (2020)............................... 9, 21

Piercy v. Maketa,

480 F.3d 1192 (10th Cir. 2007)...............

Prince-Garrison v. Md. Dep’t of Health &

Mental Hygiene,

317 F. App’x 351 (4th Cir. 2009)..............

Stewart v. Mo. Pac. R.R.,

121 F. App’x 558 (5th Cir. 2005)..............

Stewart v. Union Cnty. Bd. of Educ.,

655 F. App’x 1 51 (3d Cir. 2016)..............

Stone v. La. Dep’t of Revenue,

590 F. App’x 332 (5th Cir. 2014)..............

Threat v. City of Cleveland, 6 F.4th 672

16, 18, 20, 25, 26, 28

(6th Cir. 2021)

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977)..................................

Traylor v. Brown,

295 F.3d 783 (7th Cir. 2002).................

Ugorji v. N.J. Env’t Infrastructure Tr.,

529 F. App’x 145 (3d Cir. 2013).............

Vega v. Hempstead Union Free Sch. Dist.,

801 F.3d 72 (2d Cir. 2015).....................

Webb-Edwards v. Orange Cnty. Sheriff’s Off.,

525 F.3d 1013 (11th Cir. 2008).................

Statutes

28 U.S.C. § 1254(1) ......................................... 1 29 U.S.C. §

.................. 21 42 U.S.C. § 1981

623(a)(1).................

i, 2, 6, 24 42 U.S.C. § 2000e-2(a)(1)...

i, 1

22 42 U.S.C. §

2, 8, 24 42 U.S.C. § 2000e-16

21 42 U.S.C. § 12112(a)

2000ff-1(a)(1)..........................

21 Other Authorities

Br. for United States as Amicus Curiae,

Peterson v. Linear Controls, Inc., No. 183, 22

1401, 2020 WL 1433451 (Mar. 20, 2020)

Br. in Opp’n, Forgus v. Shanahan, No. 1822

942, 2019 WL 2006239 (May 6, 2019)..

Principal Br. of Pl.-Appellant/CrossAppellee, Davis v. Legal Servs. Ala., 19

F.4th 1261 (11th Cir. 2021) (No. 2023

12886)

XII

Eduardo Medina, Professor Who Called

Students ‘Vectors of Disease’ in Video Is Suspended, N.Y. Times (Jan. 16,

2022) https://www.nytimes.eom/2022/01/16/us/b arry-mehler29

coronavirus.html

EEOC, All Statutes (Charges filed with

EEOC) FY 1997-FY 2021, https://www.eeoc.gov/statistics/all- statutes22

charges-filed-eeoc-fy-1997-fy- 2021........................................................

Nashville Disciplines Police Officer Who

Fired Last in Fatal Highway Standoff,

The Guardian (Jan. 29, 2022, 07:23 AM) https://www.theguardian.com/usnews/2022/jan/29/nashville-disciplines- police-officer-highway-standoff29

landon- eastep-box-cutter..................

Josh Brown Placed on Commissioner

Exempt List, NFL.com (Oct. 21, 2016,

08:20 AM), https://www.nfl.com/news/josh-brown- placed-on-commissioner29

exempt-list- 0ap3000000725116.............

Webster’s Third New Int’l Dictionary (1961)

IN THE SUPREME COURT OF THE UNITED STATED

PETITION FOR A WRIT OF CERTIORARI

Petitioner Dorota Peterson respectfully prays that a writ of certiorari issue to

review the judgment of the United States Court of Appeals for the Tenth

Circuit U.S. Court and judgment of District Court of Wyoming.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Tenth Circuit, App.

1a. published.

The opinion of the United States District Court for the District of Wyoming

App. 2a.

JURISDICTION

The Tenth Circuit entered judgment on January 17,2025. App. 1a. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

The District Court of Wyoming entered judgment on May 20,2024 App. 2a.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Section 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, provides in

relevant part:

(a) Employer practices

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race,

color, religion, sex, or national origin [.]

42 U.S.C. § 1981 provides in relevant part:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is enjoyed by

citizens, and shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.

INTRODUCTION

Federal anti-discrimination law forbids employers from discriminating with

respect to employees’ “compensation, terms, conditions, or privileges of

employment." 42 U.S.C. § 2000e-2(a)(1); see also 42 U.S.C. §1981(a)-(b). On

its face, this standard “tolerates no national discrimination, age discrimination

an employer who suspends an employee because her nationality is liable only

if the suspension results in a loss of pay or is “similarly significant.”

The decision below implicates a longstanding, deepening circuit conflict over,

subtle or

otherwise.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973).

But rather than applying the statutory text, the Eleventh Circuit held here that

which discriminatory employment practices are actionable under Title VII of

the Civil Rights Act of 1964. The Eleventh Circuit and eight other courts of

appeals require a Plaintiff to prove an “adverse employment action,” a

judicially created prerequisite that conflicts with this Court’s precedent and

unjustifiably limits the scope of federal employment-discrimination law. By

contrast, three courts of appeals interpret the statutory language consistent

with its plain meaning and Congress’s intent to “eliminate" those

discriminatory employment practices that have “fostered stratified job

environments to the disadvantage of minority citizens." McDonnell Douglas

Corp., 411 U.S. at 800. Clarity in this area of the law is years overdue.

Peterson v. Linear Controls, Inc., No. 18-1401, presented this Court with

question nearly identical to the question presented here. This Court called for

the views of the United States, 140 S. Ct. 387 (2019) (Mem.), and the

Solicitor General recommended a grant of certiorari, Br. for United States as

Amicus Curiae at 6, Peterson v. Linear Controls, Inc., No. 18- 1401, 2020 WL

1433451 (Mar. 20, 2020). He explained that interpreting Title VII to cover

only “‘significant and material’ employment actions” is “a textual and

mistaken.” Id. But shortly thereafter, the parties apparently settled, see Jt.

Mot. to Defer Consideration

of Pet. for a Writ of Cert., No. 18-1401 (May 28, 2020), preventing the Court

from resolving the important question presented, Peterson v. Linear Controls,

Inc., 140 S. Ct. 2841 (2020) (Mem.).

The Court should do now what it did not have the opportunity to do in

Peterson: grant review, resolve the circuit split, and reject the circuits’ many a

textual formulation of their adverse-employment-action doctrine. In doing so,

it should reverse the Tenth Circuit’s application of that doctrine and hold that

“[ojonce it has been established that an employer has discriminated against

an employee with respect to that employee’s ‘terms, conditions, or privileges

of employment’ because of a protected characteristic, the analysis is

complete.” Chambers v. District of Columbia, 35 F.4th 870, 874-75 (D.C. Cir.

2022) (a banc).

STATEMENT OF THE CASE

Petitioner Pro Se, Dorota Peterson age 57, I’m duo citizen I'm Polish

Citizen born and race in Poland move to a USA in 2003 and married Thomas

Peterson for 22 years and I’m US Citizen. We are happy couple love and

protecte each other. On October ,2018 I started working for Canadian

company “Staples “at store in Jackson, Wyoming address: 520 Broadway,

Teton County, 83001.

I was hired in October,2018 by Store Manager Ian Mclever and he hired me

as Sales Associate because of many of years of sales experience. I got from

Store Manager employee recognized and I got employee of the Month. He

had me work on the floor most of the time selling products and helping

customers find products. When Ian moved on and the new Store Manager

Chris Sabatka was hired I was put on register “non- stop” for my whole shift.

I felt like I was treated less favorably than other Sales Associates in this store.

He did not rotate people even new hires on register like previous Manager

had. I was told by other employees that after I finished my shift Sales

Associates would rotate through the register every 2 hours. After the new

Store Manager Chris Sabatka was hired the entire atmosphere of the store

changed. He hired new employees and created a “hostile work environment

“by pitting employees against me especially due to my nationality. We have

another example nationality pattern due my employment few months before

my termination one employee was terminated by Chris Sabatka because of

speaking Spanish. Store Manager Chris Sabatka let new hire employees

harasse me at work: on May16, 2019 Lucinda Thompson another Sales

Associate harassed me about my job performance at work “yelling” at me and

telling me that” I was not doing good job, and I need grow up and act like

adult”. I spoke with Store Manager Chris Sabatka about this harassment, and I

gave to him my written statement. This should be in my employee file

according to Chris Sabatka, but Staples never gave to me my hard copy files

located at files Manager in Store. I asked Store Manager why she defamation

my character and slander me and talking about me bad to other employees in

store. On same day Assistant Manager Amanda Riviera texted me when I was

in home and said we don't threaten people with corporate at work. I have a

copy of this SMS, and I gave all Exhibits to District Court of Wyoming. The

next morning when I was ready to be driving with my husband to work over

the Teton Pass, I received more text messages from Amanda telling me that I

was suspended from work and that was Store Manager Chris Sabatka's

decision to suspend me. I called to HR Staples, and I spoke with Agent, and

he told me that Chris Sabatka can't suspend me from work because he did

not follow the proper policies company, and I would be paid for my day I was

suspended. I feel like he was mad at me because I was calling to HR and

telling them about my harassment by Lucinda Thompson in workplace. On

May 20, 2019, around 9:00 am Store Manager Chris talked with me in office

about harassment by Lucinda Thompson and he told me that he suspends me

because I supposedly pushed her. I told him it's defamation of my character

and its false accusation and somebody fabricated and harassed me. Store

Manager Chris Sabatka asked me “why people don't like you”. This made me

feel very uncomfortable and intimidated at this moment I told him I felt like

Lucinda and Jay don't like me because I'm from Europe. On October ,2019

around 5:00 pm when I was leaving work, I was in employees room Lucinda

Thompson was taking with another employee Ryan Caldwell about how she

don't like people from Eastern Europe and she look at me why she come to

my land she was talking about another European girl where she was part time

working at Motel 6 and Lucinda said:” I made her cry.” She was directly

looking at me and make me feel very uncomfortable and intimidated. On

October,2019 Jay Townbrige came to me and complained about the fact that

he not gotten a raise, or he don't have from the company any benefits after

working for the Staples for 7 months and 32 h per week. Somehow Jay knew

I had benefits from the company he told me that only few positions are full

time in this store, and he got mad at me and told me that all people from

Eastern Europe come and take the best jobs. He intimidated, harassed me

about my benefits and harassed me about my nationality. On December 2019

Chris Sabatka posted on timesheets when and how many PTO days has each

employees got it was post on front register for everyone can see.

Store Manager Chris Sabatka created a hostile environment at work example

is posting benefits employees. It started with more questions from other

employees like Lisa, she told me that she worked 40 hours a week for over a

year without health insurance and she don’t have PTO time. On January 20,

2020, the new employee Christian Hernandez, Hispanic man who Store

Manager Chris Sabatka hired, came to work for second shift at 2:00 pm and

immediately started telling me what I had to do and acting like he was my

boss. He had only worked with me for 2 months at this point, and I had been

there over 2 years. I was in fact training him on the register. On January 23,

2020, Chris Sabatka interrupted me when I was talking with customers at

company policy and helping at the register.

On February 19, 2020, HR Staples Agent Laurene Tompkins Relation

Specialist with Chris Sabatka brought me into office, it was phone interview,

Laurene HR asked me “do you wink at other employees?". I was not sure

exactly what the point was. I told her I don’t remember winking at anyone.

She then proceeded to falsely accuse me of cornering Christian Hernandez,

Hispanic man at the register and rubbing my breast on him. I told her I'm 52

years old and mature woman who is happily married and would never do

anything like this. She told me that since I'm an older mature woman that I

should know better because he is only 19 years old. At this point I felt like

she was accusing and harassing me without listening to me so I told her that

my husband would not be happier with this accusation, and we would be

getting a lawyer. I also told HR during phone call about illegal activity in store

that people show me ID with different name on, specific Hispanic. I was

treated less favorably than others in store examples is HR never even

investigated Lucinda Thompson about my harassment even that I gave written

statement about my harassment to Store Manager Chris Sabatka and spoke

with HR about it, Store Manager Chris Sabatka would hug Lucinda Thompson

even after she harassed me, and I gave him my complaint statement about

harassment by Lucinda Thompson . Jose Hernandez was the Manager on duty

I would ask him if I could take a 5 min break after working 5 hr strait on

someone to cover my position before I could go and use bathroom, when I

page him, he said he don't understand my accent. HR Staples never

investigated or call ICE and checked on Christian Hernandez - who is this man

and why he accused another employee of sexual harassment and harassing

me at workplace. I believe that I was truly discriminated based on my

nationality. I believe that my ultimate termination from this store was due to

the discrimination and harassment I received over past year from new Store

Manager Chris Sabatka , HR and new hired employees who harassed and

discriminated me based on my nationality and age. Chris Sabatka cultivated

this atmosphere with other employees by playing favorites, harassment and

accepting their lies about me. The hostile work environment and harassment

that was created in this store created a lack of morale, culture, ethics and

professionalism at workplace.

I lost my job, my family benefits and most importantly my reputation in

the small town where I live.

My life is full of stress and worry about my future about my new jobs. It

was very hard time find job for me: I applied to TJ Max across from Staples

the-Store Manager Janell told me that she can't hire me because what

happened in Staples (Jay Townbrige was part -time employee in TJ Max also

and part time in Staples this time).

Jay Townbrige Sales Associate slander and deformation my character around

small town of Jackson, Wyoming. I was discriminated, suspended, terminated

by Canadian Company Staples and falsely accused of sexual harassment

Hispanic man Christian Hernandez. I know why Christian Hernandez falsely

accused me of sexual harassment and he been brought my attention by

another Hispanic person in our community. He wants to apply for his

Immigration status to be changed if he fills out an 1-918 Immigration form. I

was told by this member of our community that he had been thinking about

doing this. I’m a victim of this fraudulent act that Christian Hernandez has

committed, discriminated, harassed and accused me of rubbing my breast on

him. I called and spoke with ICE officer when I got from Staples his I-9 form I

gave officer Christian Hernandez date of birth and name, she texts me back

that this individual commit fraud in USA and all is documented DHS, Exhibits

of those text massages was sent to District Court of Wyoming and Defendant.

Next day of my termination I send email to HR Staples about criminal

activity what Christian Hernandez plan was, but they never responded to me

and never investigated my concern.

Christian Hernandez used me, my gender to harasse me, used part of

my body my breast to try and commit the fraud and lies serval time for 2

months working with me that I was rubbing my breast on him. Jay Townbrige

and Lucinda Thompson hate me don't like me because I'm from Eastern

Europe and I had full time job with benefits which Ian Mclver switched after 3

months from part -time employee status to full -time employee. It was agreed

during hire interview, and I was only looking for job with health insurance and

full benefits. I spoke with a fellow coworker Maribel Ocasio after the Appeal

Case for my Unemployment and she send me a text massage saying “Jay

always told me that “he does not like you and working with you and he was

looking for the moment to catch you and take a picture “.Townbrige and

Christian Hernandez have both fabricated lies about me to fire me and harass

me. HR Staple Agent Specialist Laurene Tompkins brought me to office with

Store Manager Chris Sabatka on February19, 2020 at 2 pm and I was given

24 hours to self-defend and called on February 20 ,2020 and I was fired for

sexual harassment Hispanic man Christian Hernandez. Chris Sabatka Store

Manager Staples sends me email and termination form and accused me of

sexual harassment of this man. I was never told of any wrongdoing or asked

about anything regarding this situation even though it had been reported to

Store Manager on January 20, 2020. Store Manager Chris Sabatka allowed

me to work with and train Christian Hernandez on the register for over a

month even though he was accusing me of sexual harassment how Chris

Sabatka explained to Unemployment Hearing on the tape Exhibit sent to

District Court in Wyoming, serval time Christian Hernandez complained about

harassment to him. Why would Store Manager Chris Sabatka keep me

working and training Christian Hernandez on register considering this

situation? It’s allowed in the company policy.

Staples employees and Management Staples suspended, discriminated,

harassed me based on my national origin to the end of my wrongful, falsely

and fabricated termination. Staples HR, Management and employees put me

for mental, psychological and emotional distress. The counseling's termination

form Staples is defamatory of my character it's slander of deformation of my

character. I'm not harasser and I never was. The Canadian company Staples

harm my professional reputation in my lively hood in small town, making it

more difficult to find new employment like example TJ Max don’t want to hire

me because “what happen in Staples” and I’m consistently worry about my

present job I m a teacher at daycare for District School No. 1 in Jackson,

Wyoming.

Staples is also known to lower the cost of operations by systematically

removing older with full benefits employees through discriminatory and

disciplinary actions. I was maybe one of the few employees who has health

insurance and full benefits in store at Jackson. A group of Managers

participated in the final decision to terminate me after 2 years successful

employee without any warnings. Canadian company Staples made me jobless

and was hard for me find new job. Staples employees tarnished my

professional reputation in my lively hood. Staples wrongfully terminated me

and falsely accused me of sexual harassment Hispanic man who committed

fraud in USA regarding ICE officer, who sent me texts massages about this

individual. I alleged that defendant's actions constituted wrongful termination,

harassment base on national origin discrimination on the basis of Nationality

Origin in Violation of the Fair Employment and Housing Act. I was undergoing

a series of false accusations and increasing levels of harassment from

coworkers and Managers including the fact I was suspended from work not

only once but twice. Defendant Staples targeted me before termination he

treated me less favorably than others example is it was never investigated my

harassment by Lucinda Thompson even, I gave Chris Sabatka my written

complaints about my harassment in work. I lost my job and being by Staples

branded a harasser, they harm me emotional well-being and had followed a

series of discriminatory and harassing events. I’m victim of nationality, age

discrimination and wrongful termination by Staples management and

coworkers. Jay Townbrige written false and defamatory my character

statement. They hate me Jay, Lucinda, Christian because I'm from Europe and

have better job with benefits then Chris Sabatka offered them. I need to clean

my family name and overturn my wrongful termination. I was discriminated in

store Staples by coworkers and Management. I was harassed and

discriminated by fraudulent Hispanic man Christian Hernandez in store at

Jackson, Wyoming.

Staples HR and Store Manager Chris Sabatka replaced me by 19 years

old Christian Hernandez without any long term experience work history and

he was continued work after my termination for about 1 year.

I, Dorota Peterson Pro Se sued Staples alleged, as relevant here, national

discrimination, age discrimination, deformation character, gender

discrimination and hostile workplace under Title VII of the Civil Rights Act of

1964 and 42 U.S.C. §1981. Pet. App. 4a. 1

1 I, Dorota Peterson brought claims under both Section 703(a)(1) of the Civil

Rights Act of 1964 and 42 U.S.C. § 1981. The courts of appeals apply the

same standards of liability to both provisions, see, e.g., Chapter 7 Tr. v. Gate

Gourmet, Inc., 683 F.3d 1249, 1256-57 (11th Cir. 2012), so the discussion

in this petition of Section 703(a)(1) applies as well to Section 1981.

The District Court of Wyoming granted summary judgment to the Defendant

on nationality origin, age discrimination, harassment claims, fired, denied a

promotion, reassigned to significantly different responsibilities, or suffered a

significant change in benefits, the court concluded, neither Title VII nor

Section 1981 prohibited the discrimination.

The Tenth Circuit affirmed.

REASONS FOR GRANTING THE PETITION

I. The question presented has deeply divided the circuits.

In Section 703(a)(1) of the Civil Rights Act of 1964, Title VII makes it unlawful

for an employer to “discriminate against' an employee “with respect to” the

“terms, conditions, or privileges” of the person’s “employment” because of

various characteristics;

including nationality 42 U.S.C. § 2000e-2(a)(1). That prohibition consists of

everyday words with straightforward definitions. And yet Tenth Circuit have

abandoned its plain meaning, splitting from the three circuits that honor

Section 703(a)(1)’s text.

The Fifth and Third Circuits read the statute very narrowly and without any

consideration of its text In these courts, Section 703(a)(1) applies to only

what the Fifth Circuit calls “ultimate employment decisions," like firings,

refusals to hire, and demotions, but not to all terms, conditions, or privileges

of employment. The First, Second, Fourth, Seventh, Eighth, Tenth and

Eleventh Circuits view Section 703(a)(1) more expansively, but still fail to take

its language at face value. They have recognized that some discriminatory

practices aside from ultimate employment decisions can give rise to liability

under Title VII. But they apply various a textual gloss of their own, requiring

an employee to show not only that she suffered discrimination but that the

discrimination was “significant,” “serious," or “substantial.”

The Sixth and D.C. Circuits, by contrast, apply the statute as written. They

recognize that Section 703(a)(1)’s text contemplates neither an ultimateemployment-decision requirement nor a showing of harm beyond the fact of

discrimination. These courts thus join the Ninth Circuit in condemning as

unlawful more discriminatory employer conduct than the other courts of

appeals.

A. Two circuits require an ultimate employment decision. The Fifth and Third

Circuits apply Section 703(a)(1) in a particularly restrictive and particularly a

textual manner. These circuits

police only employment actions that result in tangible, pocketbook harms.

The Fifth Circuit has adopted a “strict interpretation” of Title VII. Pegram v.

Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). It refuses to recognize a

Section 703(a)(1) claim unless the challenged employment action “affect[s]

job duties, compensation, or benefits.” Id. (citation omitted). That restrictive

reading leaves a Louisiana employer free to demand that black employees

work outdoors in the summer without access to water while white employees

remain in an air-conditioned building and receive water breaks. Peterson v.

Linear Controls, Inc., 757 F. App’x 370, 372-73 (5th Cir. 2019), petition for

cert, dismissed, 140 S. Ct. 2841 (2020) (Mem.). It authorizes an employer in

Texas to administer drug tests to Black job applicants and not white

applicants. Johnson v. Manpower Pro. Servs., Inc., 442 F. App’x 977, 983

(5th Cir. 2011). It insulates an employer’s decision to grant white employees

work-from-home privileges while denying Black employees the same benefit.

Stone v. La. Dep't of Revenue, 590 F. App’x 332, 339-40 (5th Cir. 2014).

And it would permit an employer to give white employees weekends off while

scheduling Black employees to work weekends. See Hamilton v. Dallas

County, 42 F.4th 550, 552-53, 555- 56 (5th Cir. 2022), petition for reh’g en

banc filed (Aug. 16, 2022).2

2 In Hamilton, female detention officers alleged that their employer had

subjected them to an expressly sex-based scheduling policy, which permitted

male officers to take weekend days off but required female officers to

invariably work weekends.

The Third Circuit adheres to a similarly a textual and restrictive rule. Like the

Fifth Circuit, it has held that an employment practice is actionable only when

it includes “a significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different responsibilities, or

a decision causing a significant change in benefits.” Stewart v. Union Cnty. Bd.

of Educ., 655 F. App’x 151, 155 (3d Cir. 2016) (citation omitted). That preset

list excludes a school district’s decision to post a security guard outdoors in

the winter. Id. It excludes a hospital’s decision to regularly assign a nurse to a

unit where she must “do the work of five people.” Betts v. Summit Oaks

Hosp., 687 F. App’x 206, 207-08 (3d Cir. 2017). And it excludes an

organization’s decision to assign an employee to a “noisy, moldy office

without windows” and “confiscate [] a space heater from his office.” Ugorji v.

N.J. Env’t Infrastructure Tr., 529 F. App’x 145, 1 51 n.4 (3d Cir. 2013).

Accordingly, in the Third Circuit, employers can make all these decisions on

the basis of race, or any other protected characteristic, without running afoul

of Title VII.

B. Seven circuits require a heightened showing of harm. The First, Second,

Fourth, Seventh, Eighth,

42 F.4th at 552. The Fifth Circuit explained that “[t]he conduct complained of

... fits squarely within the ambit of Title VH’s proscribed conduct.” Id. at 555.

The panel felt constrained to affirm the district court’s grant of the employer’s

motion to dismiss under the circuit’s “ultimate employment decision”

precedent but noted that the case was a strong candidate for an banc review.

Id. at 555, 557. Even if an banc Fifth Circuit were to apply the text as written,

see infra at 17-19 (discussing views of Sixth and D.C. Circuits), that would

only slightly reconfigure, not eliminate, the circuit split.

Tenth, and Eleventh Circuits have recognized (or at least stated) that Title VII

extends beyond “ultimate employment decisions,” but still fail to read the

statute according to its text. In this intermediate category, a court will dismiss

a claim that an employer has discriminated against an employee with respect

to terms, conditions, or privileges of employment unless the employee can

show that the discrimination was, in the court’s view, serious enough. This

causes confusion over what degree of discrimination qualifies. And it regularly

leads courts to dismiss claims unless the Plaintiff can allege a pocketbook

injury—a requirement that lacks an anchor in Section 703(a)(1)’s words.

First Circuit. The First Circuit “typically” requires an ultimate employment

decision before it will find that an employment practice is serious enough to

be actionable under Title VII. Cham v. Station Operators, Inc., 685 F.3d 87,

94 (1st Cir. 2012) (citation omitted). Accordingly, it has held that refusing to

assign an employee to holiday shifts because of his race “simply does not rise

to the level of an adverse employment action.” Id. at 94-95. The court has

applied similar reasoning to an employee’s job duties. In Morales-Vallelianes

v. Potter, 605 F.3d 27 (1st Cir. 2010), the court noted that, under circuit

precedent, a “permanent, lateral reassignment” to work in the same role for a

new boss did not qualify as an adverse employment action if the job

description and salary remained the same, even if the transfer required the

employee to “do more work," be "subject to extreme supervision," and

“undergo a period of probation.” Id. at 38 (quoting Marrero v. Goya of P.R.

304 F.3d 7, 23 (1st Cir. 2002)). And it held that

imposing “inconvenience[sj” on an employee, like assigning him to lessdesirable tasks because of his sex, is not “materially adverse” to him and thus

does not violate Title VII in the First Circuit. Id. at 35, 37- 39.

Second Circuit. The Second Circuit recognizes that discriminatory employment

practices that are not ultimate employment decisions can support a Title VII

claim. See, e.g., de la Cruz v. N.Y.C. Hum. Res. Admin. Dep’t of Soc. Servs., 82

F.3d 16, 21 (2d Cir. 1996); Vega v. Hempstead Union Free Sch. Dist., 801

F.3d 72^ 88 (2d Cir. 2015). But the court still requires a Plaintiff to show,

under the facts of the case, that the “challenged employment action is

sufficiently significant.” Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231, 235 (2d

Cir. 2015). It has thus dismissed a complaint alleging that a school district

assigned a teacher to an “excessively noisy media center” and barred him

from accessing tools to do his job because of his race. Vega, 801 F.3d at 89.

And it has similarly found an employee who alleged she was involuntarily

transferred from her preferred division based on her race could not pursue a

Title VII claim because the transfer did not “result [] in a setback to her

career. » De Jesus-Hall v. N.Y. Unified Ct. Sys., 856 F. App’x 328, 330 (2d Cir.

2021).

Fourth Circuit. The Fourth Circuit occupies the same middle lane. It too rejects

an ultimate- employment-decision approach to Section 703(a)(1). James v.

Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375-76 (4th Cir. 2004). But it

requires more than Title Vll’s text allows, demanding a showing that an

employer’s practices “had some significant detrimental effect" on the

employee. Cole v. Wake

Cnty. Bd. of Educ., 834 F. App’x 820, 821 (4th Cir. 2021) (citation omitted).

Applying that heightened standard, the Fourth Circuit has held that forced

reassignment to a more stressful position does not give rise to a Title VII

claim, at least without “evidence that [the] new position is significantly more

stressful than the last." Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999)

(emphasis added). And it rejected a school principal’s claim that she was

transferred out of her principal’s role to a position with less supervisory

responsibility because it concluded this change had no “significant

detrimental effect.” Cole, 834 F. App’x at 821 (citation omitted). Outside the

reassignment context, the same pattern holds. The Fourth Circuit has

overlooked allegations of discriminatory scheduling changes and placement

on a performance improvement plan, Melendez v. Bd. of Educ. for

Montgomery Cnty., 711 F. App’x 685, 688 (4th Cir. 2017), race-based

disciplinary reprimands, Prince-Garrison v. Md. Dep’t of Health & Mental

Hygiene, 317 F. App’x 351, 353 (4th Cir. 2009), and discriminatory refusals

to nominate an employee for an award, Cottman v. Rubin, 35 F. App’x 53, 55

(4th Cir. 2002), to name a few, all because the court has concluded that Title

VII countenances discrimination so long as it is not, in the court’s view, too

detrimental.

Seventh Circuit. The Seventh Circuit professes to understand the problem

running through the decisions discussed above—that interpreting Section

703(a)(1) “so narrowly” gives employers “license to discriminate.” Lewis v.

City of Chicago, 496 F.3d 645, 654 (7th Cir. 2007) (citation omitted). Some

of its decisions endeavor to close this “loophole for discriminatory actions by

employers.” Id.; see

Herrnreiter v. Chi. Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002)

(interpreting Section 703(a)(1) to encompass employer conduct that subjects

an employee to “humiliating, degrading, unsafe,” or “unhealthful” conditions,

even if the employee’s salary and benefits remain constant).

But like many of its sister circuits, the Seventh Circuit has deviated from that

commitment. Before the court will recognize a disparate-treatment claim, the

change an employee suffers “needs to be significant.” Ellis v. CCA of Tenn.

LLC, 650 F.3d 640, 649 (7th Cir. 2011). The court has thus held

nonactionable an employer’s issuance of discriminatory reprimands under a

progressive discipline policy, each of which brought the employee closer to

termination. Oest v. III. Dep’t of Corr., 240 F.3d 605, 613 (7th Cir. 2001),

overruled on other grounds by Ortiz v. Werner Enters., 834 F.3d 760 (7th

Cir. 2016). It has dismissed a claim against an employer who discriminatorily

limited an employee’s duties because “she was not terminated, demoted, or

disciplined” and her salary, title, and official job description remained

unchanged. Traylor v. Brown, 295 F.3d 783, 789 (7th Cir. 2002). And it held

that an employer who “told the male night custodians not to help the female

custodians” and gave a female custodian “additional responsibilities above

what was expected of the male custodians and above that which she should

have reasonably ... been given” did not carry out an adverse employment

action because these actions were not “materially adverse" to the female

employee. Haugerud v. Amery Sch. Dist., 259 F.3d 678, 691-92 (7th Cir.

2001). In other words, if the Seventh Circuit concludes that the impact on the

employee is not material enough, the “loophole for discriminatory actions by

employers,” Lewis, 496 F.3d at 654, remains open.

Eighth Circuit. So too in the Eighth Circuit. A Section 703(a)(1) claim requires

an employee to show a “material employment disadvantage.” Muldrow v. City

of St. Louis, 30 F.4th 680, 688 (8th Cir. 2022) (citation omitted), petition for

cert, filed, No. 22-193 (Aug. 29, 2022). “[Tjtermination, cuts in pay or

benefits, and changes that affect an employee’s future career prospects”

count as material disadvantages. Jackman v. Fifth Jud. Dist. Dep’t of Corr.

Servs., 728 F.3d 800, 804 (8th Cir. 2013). But forcing an employee to

deplete her sick leave, id. at 805, giving an employee a poor performance

evaluation that requires her to complete additional training, Clegg v. Ark.

Dep’t of Corr., 496 F.3d 922, 927-28 (8th Cir. 2007), and transferring or

denying a request to transfer, Muldrow, 30 F.4th at 689-90, do not.

Tenth Circuit. The Tenth Circuit’s attempts to define just how “significant”

discrimination must be for Section 703(a)(1) to cover it have been

inconsistent. The court has held that assigning employees to particular shifts

based on sex is not actionable but assigning employees to particular facilities

based on sex is actionable. Piercy v. Maketa, 480 F.3d 1192, 1203-05 (10th

Cir. 2007). Requiring an employee to report to work at certain times based

on her sex did not discriminate with respect to the terms, conditions, or

privileges of her employment, the court explained, because it was a “mere

inconvenience.” Id. at 1204. But requiring an employee to report to a certain

facility based on her sex did discriminate with respect to the terms,

conditions, or privileges of her employment

because the differences in stress and job difficulty and flexibility were

“sufficiently substantial.” Id. at 1205. This attempt to draw a line between

significant and insignificant discriminatory employment practices illustrates

just how far the courts have strayed from Section 703(a)(1)’s text. After all,

when an employee works is just as much a “term” or “condition” of

employment as is where an employee works. See Threat v. City of Cleveland,

6 F.4th 672, 677 (6th Cir. 2021).

Eleventh Circuit. The decision below demonstrates that the Eleventh Circuit

has also strayed from Section 703(a)(1)’s text. The panel relied on circuit

precedent holding that “adverse employment actions” are those that “affect

continued employment or pay” or are “similarly significant standing alone.”

That court requires an employee to “show a serious and material change,”

Webb-Edwards v. Orange Cnty. Sheriff’s Off., 525 F.3d 1013, 1031 (11th Cir.

2008) (citation omitted), which does not encompass discriminatory conduct

like reassigning an associate from working a desk job to being a delivery

driver, McCone v. Pitney Bowes, Inc., 582 F. App’x 798, 799- 801 (11th Cir.

2014), increasing an employee’s workload, Grimsley v. Marshalls of MA, Inc.,

284 F. App’x 604, 606, 609 (11th Cir. 2008), or, as in Peterson case,

suspending an employee with pay pending an investigation in a humiliating,

public, professionally harmful manner. In short, in the Eleventh Circuit, what

the court terms “unfair treatment does not... support a disparate treatment

claim.” Grimsley, 284 F. App’x at 609 (citation omitted).

Thus, the Eleventh Circuit tracks the path taken by the First, Second, Fourth,

Seventh, Eighth, and Tenth Circuits. These courts insist that a Section

703(a)(1) claim does not strictly require “evidence of ‘direct economic

consequences.’” Grimsley, 284 F. App’x at 608 (quoting Davis v. Town of

Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001)). And yet, across the

board, an ultimate employment decision remains the primary means by which

an employee can show that an employer’s discriminatory conduct meets the

necessary “threshold level of substantiality.” Id. (citation omitted). True, these

courts purport to apply less stingy standards than the ultimate-employmentdecision test, but they nevertheless authorize countless discriminatory

employment practices that Section 703(a)(1)’s text prohibits.

C. Three circuits interpret the statute according to its text. The D.C. Circuit

and the Sixth Circuit hew to Section 703(a)(1)’s language. Earlier this year, an

banc D.C. Circuit held that after an employee has “established that an

employer has discriminated against [her or him] with respect to that

employee’s ‘terms, conditions, or privileges of employment’ because of a

protected characteristic, the analysis is complete.” Chambers v. District of

Columbia, 35 F.4th 870, 874-45 (D.C. Cir. 2022). The court thus rejected

“[a]ny additional requirement” that demands “objectively tangible harm” as “a

judicial gloss that lacks any textual support." Id. at 875. The court therefore

found that the discriminatory denial of a request to transfer violates Title VII,

id. at 872, even when the denial does not affect an employee’s “pay, hours,

advancement opportunity,

prestige, or other benefits,” id. at 889 (Katsas, J., dissenting).

The D.C. Circuit thus joined the Sixth Circuit, which rejects the notion that an

adverse employment action requires harm greater than that inherent in the

statutory term “discriminate.” Threat, 6 F.4th at 678- 79. In Threat, the City of

Cleveland admittedly reassigned a captain of the Emergency Medical Service

division from his preferred shift to a different timeslot because he is Black. Id.

at 675-76. The Sixth Circuit held that the city “discriminated against [the

captain] based on race with respect to his terms and privileges of

employment” when it "decided when [he] had to work based on his race.” Id.

at 678. And because Section 703(a)(1) “means what it says,” that was

enough for the Sixth Circuit. Id. at 680.

The panel in Threat did observe a measure of tension between its own

textualist approach and circuit precedent construing Section 703(a)(1) to

cover “only a materially adverse employment action.” 6 F.4th at 678 (citation

omitted).

But Chief Judge Sutton explained that, taking “the words of Title VII as our

compass,” as courts must, the so-called adverse- employment-action

requirement fulfills a pedestrian purpose: ensuring that an employee suffers

differential treatment that “involves an Article III injury,” rather than, “for

example, differential treatment that helps the employee or perhaps even was

requested by the employee.” Id. at 677-78. Sixth Circuit case law today

cannot be read to require a showing of harm that exceeds that minimal

threshold. In any event, even if the circuit’s decisions admit a degree of

confusion, that does not soften the divisions

among the other courts of appeals. It only heightens the need for this Court’s

intervention.

The Ninth Circuit, while less focused on the statutory text than the Sixth and

D.C. Circuits, ends up in a similar place. It describes Section 703(a)(1) as

requiring an “adverse employment action,” but defines that term “broadly.”

Fonseca v. Sysco Food Servs. of Ariz., 374 F.3d 840, 847 (9th Cir. 2004).

Accordingly, the court has explained that “a wide array of disadvantageous

changes in the workplace constitute adverse employment actions.” Dimitrow.

Seattle Times Co., No. 98-36156, 2000 WL 1228995, at *2 (9th Cir. 2000)

(citation omitted). And its case law reflects that principle, finding that an

employer discriminates with respect to the terms, conditions, or privileges of

a person’s employment by assigning the employee to more-strenuous tasks,

giving the employee less varied assignments, banning her from important

areas of the workplace, Davis v. Team Elec. Co., 520 F.3d 1080, 1090 (9th

Cir. 2008), passing him over for overtime, or issuing him a warning letter that

is publicized to all employees, Fonseca, 374 F.3d at 847-48. And, especially

salient here, Ninth Circuit precedent “suggests that involuntary leave with

pay" qualifies as an adverse employment action. See Campbell v. Dep’t of

Hum. Servs., 384 F. Supp. 3d 1209, 1222 (D. Haw. 2019) (citing Campbell v.

Haw. Dep’t of Educ., 892 F.3d 1005, 1014 (9th Cir. 2018)).

***

In sum, the regional courts of appeals have all addressed the question

presented, and they divide into three camps. The majority of courts have

departed markedly from Section 703(a)(1)’s plain meaning. “Title Vll’s core

antidiscrimination provision,”

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 61 (2006), deserves

better. This Court should grant review and apply the statute’s text.

II. The question presented is important and recurring.

A. The courts of appeals’ various a textual adverse-employment-action rules

have far-reaching consequences. The discussion above shows that, consistent

with circuit precedent, employers may dictate when employees work, where

they work, how much they work, and the arduousness of their work, on the

basis of race, color, religion, sex, or national origin, without fear of liability

under Section 703(a)(1). This disparate treatment does not immediately affect

pay, title, or benefits. But it surely qualifies as imposing “terms, conditions, or

privileges of employment.” See, e.g., Threat v. City of Cleveland, 6 F.4th 672,

677 (6th Cir. 2021); Hamilton v. Dallas County, 42 F.4th 550, 555 (5th Cir.

2022), petition for reh’g en banc filed (Aug. 16, 2022). Nonenforcement of

Section 703(a)(1) in this large category of circumstances thwarts Congress’s

intent “to strike at the entire spectrum of disparate treatment” in employment.

Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986) (citation omitted).

These erroneous circuit precedents do more than prevent employees from

recovering damages when they suffer from idiosyncratic discriminatory acts.

The case law also effectively blesses prospective discriminatory policies.

Under the Fifth Circuit’s approach, for instance, an employer may lawfully

adopt the following prospective policy: “Pay, titles, and job descriptions are

based on merit without regard to

race, but we require Black employees to work outside in the heat because

they are Black while white employees may work inside with air conditioning.”

See Peterson v. Linear Controls, Inc., 757 F. App’x 370, 373 (5th Cir. 2019),

petition for cert, dismissed, 140 S. Ct. 2841 (2020) (Mem.). And we know

from the precedential decision below that, in the Eleventh Circuit, a district

court would be powerless to enjoin a company policy stating that it suspends

Black employees with pay while they are under investigation but allows white

employees to continue to work. See Pet. App. 9a-10a.

B. The question presented concerns the breadth of the workplacediscrimination bans in Title VII and Section 1981. But it implicates the

interests of employers and employees under other statutes as well. The

Americans with Disabilities Act, the Age Discrimination in Employment Act,

and the Genetic Information Nondiscrimination Act, like Title VII and Section

1981, prohibit discrimination with respect to “terms,” “conditions,” or

“privileges” of employment. See 42 U.S.C. § 12112(a); 29 U.S.C. § 623(a)(1);

42 U.S.C. § 2000ff-1(a)(1). And these other statutes likewise do not use the

phrase “adverse employment action" (nor various circuit-court offshoots, such

as “ultimate employment decision” or “significant detrimental effect”). Yet,

current doctrine requires a Plaintiff alleging disparate treatment under these

statutes to plead and prove one.3

3 See, e.g., EEOC v. LHC Grp., 773 F.3d 688, 695, 700 (5th Cir. 2014)

(requiring a Plaintiff alleging ADA discrimination to prove she suffered an

adverse employment action); Kessler v.

C. The United States has acknowledged the significance of the question

presented. It has stressed that the scope of Section 703(a)(1) is “undeniably

important" and urged the Court to grant review. Br. for United States as

Amicus Curiae at 20, Peterson v. Linear Controls, Inc., No. 18-1401, petition

for cert, dismissed, 140 S. Ct. 2841 (2020) (Mem.), 2020 WL 1433451 (Mar.

20, 2020). Taking aim at the Fifth Circuit’s rule, the United States explained

that the ultimate-employment-decision doctrine has “no foundation” in Title

VIPs language and conflicts with this Court’s precedent. Id. at 6, 13. And in

arguing elsewhere against a textual heightened-harm approach taken by

seven courts of appeals, the United States described the “significantdetrimental-effect” formulation employed by the Fourth Circuit as “misguided”

and “irreconcilable with the statutory text.” Br. in Opp’n at 13-15, Forgus v.

Shanahan, No. 18-942, 2019 WL 2006239 (May 6, 2019).

The United States is a frequent defendant in employment-discrimination

litigation infected by a textual adverse-employment-action gloss, see 42

U.S.C. § 2000e-16, and the Equal Employment Opportunity Commission rules

on thousands of employment discrimination charges annually.4 So the United

States’ contention that the requirements to prove an ultimate employment

decision or show harm

4 See EEOC, All Statutes (Charges filed with EEOC) FY 1997-FY 2021,

https://www.eeoc.gov/statistics/all-statutes- charges-filed-eeoc-fy-1997-fy2021.

Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 204 (2d Cir. 2006)

(analyzing whether a plaintiff pursuing Title VII and ADEA claims had suffered

an “adverse employment action”).

beyond being subjected to discrimination are mistaken judicial innovations

carries extra weight. For these reasons as well, the question presented is

important and ripe for this Court’s resolution.

III. This case provides an ideal vehicle for deciding the question presented.

This case involves one issue, and one issue alone: whether the courts below

properly rejected Dorota Peterson discrimination claims. Staples moved for

summary judgment on those claims on the ground that Peterson did not

suffer an adverse employment action. The district court agreed, granting

summary judgment to the respondents for that reason.” Peterson v. Staples

(10th Cir. 2025) (No.24-8041). Peterson also stressed that her suspension

and termination carried a stigma and “inevitably" led to public “suspicion of

misconduct.” Id. The Tenth Circuit affirmed the District Court, again

addressing only the (purportedly essential) adverse-employment-action

element of his claims.

Peterson case concerns an alleged discriminatory suspension and

discriminatory adverse -employment -action, which directly poses the

question whether the circuits’ varying “adverse employment action” doctrines

run afoul of Section 703(a)(1)’s simple, unadorned text If considering a

broader swath of employer conduct would aid this Court’s review, it could

grant certiorari here and in Muldrow v. City of Saint Louis, No. 22-193 (filed

Aug. 29, 2022). Muldrow concerns a discriminatory transfer of an employee

and a later refusal to grant that employee a transfer. Muldrow v. City of Saint

Louis, 30 F.4th 680, 688-89 (8th Cir. 2022). Together the cases present an

even fuller picture of the workplace “discriminatory practices and devices”

that circuit precedent blesses. McDonnell Douglas Corp. v. Green, 411 U.S.

792, 800(1973).

IV. The Tenth Circuit’s decision is wrong.

Title VII makes it unlawful for an employer to “discriminate against” an

employee “with respect to” the “terms, conditions, or privileges” of his

“employment” 42 U.S.C. § 2000e-2(a)(1); see 42 U.S.C. § 1981(a)-(b). That

proscription does not contain the phrase “adverse employment action.” Not is

it limited to discrimination that rises to a “substantial,” “significant,” or

“serious” level. By reading extraneous terms into a statute where they do not

appear, the Tenth Circuit has imposed a judge-made, threshold requirement

that keeps meritorious claims out of court at odds with Congress’s will.

A. A suspension alters the terms and conditions of a person’s employment. In

fact, it alters the most fundamental of work requirements: that a person

perform her job duties. A suspended employee goes

from active to idle. Without anything more, benching an employee

unequivocally changes the terms and conditions that govern the employeremployee relationship.

To the extent that common sense does not settle the point, dictionary

definitions do. See Threat, 6 F.4th at 677. “Terms” are “propositions,

limitations, or provisions stated or offered for the acceptance of another and

determining (as in a contract) the nature and scope of the agreement.” Terms,

Webster’s Third New Int’l Dictionary 2358 (1961) (Webster’s Third). A

“condition” is “something established or agreed upon as a requisite to the

doing or taking effect of something else.” Condition, Webster’s Third 473.

And a “privilege” is the enjoyment of “a peculiar right, immunity, prerogative,

or other benefit.” Privilege, Webster’s Third 1805. Together these words refer

to “the entire spectrum of disparate treatment,” covering the gamut of

workplace requirements, obligations, customs, and benefits that an employer

imposes on, or grants to, an employee. L.A. Dep’t of Water & Power v.

Manhart, 435 U.S. 702, 707 n.13 (1978) (citation omitted).

Peterson suspension and termination easily falls under that mantle. Her

suspension and termination rewrote the terms, conditions, and privileges of

her employment. When the workday began in October 2018, she was

working on floor and selling computer and copy machines with success. Her

job required her to perform certain tasks. She had a voice in personnel

decisions, strategy of selling products work with customers on floor and after

on register only on stop. She was permitted to enter the store and terminated

next day by Staples.

Despite this inescapable logic, many courts of appeals have held otherwise.

Decisions from the Tenth Circuit and its fellow travelers are sparse on

reasoning, largely drawing their doctrine from a common, flawed, starting

point. The most thorough opinion of the bunch noted that “the terms and

conditions of employment ordinarily include the possibility that an employee

will be subject to an employer’s disciplinary policies in appropriate

circumstances.” Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006). In

enforcing a policy that comprises a term of employment, the court explained,

an employer does not alter the terms of employment. See id. at 92 n.1.

That view is untenable. True, both before and after an employee is

suspended, one term of her employment is the possibility that she may have

to endure a period of suspension. But, as just shown, the fact of the

suspension still drastically alters the day- to-day terms, conditions, and

privileges of the job.

Further, taken at its word, this slippery logic eviscerates Section 703(a)(1).

The statute cannot permit national discrimination whenever some internal

policy contemplates the employer’s actions. If it did, a company could issue a

policy providing that a supervisor may increase an employee’s workload for

any reason. If the supervisor gave employees twice as much work, they would

be unable to object that the change altered the terms, conditions, or

privileges of their employment. That cannot be right. Congress did not pass

Section 703(a)(1), “Title VIPs core antidiscrimination provision,” Burlington N.

& Santa Fe Ry. v. White, 548 U.S. 53, 61 (2006), for employers to promptly

contract it out of existence.

The ultimate-employment-decision test is no better reasoned. The test is an

invasive species— developed for a different environment and imported

without regard for its knock-on effects. The Fifth Circuit originally took its list

of ultimate employment decisions from the catalogue of “tangible

employment action[s]” enumerated by this Court in Burlington Industries, Inc.

v. Ellerth, 524 U.S. 742, 761 (1998). See Stewart v. Mo. Pac. R.R., 121 F.

App’x 558, 561-62 (5th Cir. 2005). Ellerth was also a Title VII case, but it

“did not discuss the scope of” Section 703(a)(1). Burlington N., 548 U.S. at

65.

Instead, Ellerth concerned when a supervisor’s workplace harassment of an

employee can be attributed to the employer in a Title VII hostile-workenvironment case. In some circumstances, this Court held, the employer has

an affirmative defense to vicarious liability if it exercised reasonable care to

prevent and promptly correct the harassment. Ellerth, 524 U.S. at 765. The

employer loses the affirmative defense, however, if the harassing supervisor

took a “tangible employment action” against the subordinate. Id. at 765. The

Court elaborated that a “tangible employment action” is one that causes “a

significant change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in

benefits.” Id. at 761.

Thus, courts that demand an ultimate employment decision to find liability

under Section 703(a)(1) not only stray from the statute’s text, but they also

invoke an off-topic case (Ellerth) for help in creating this a textual, additional

requirement. Far better to let the statutory phrase “terms, conditions, or

privileges of employment” be our “compass.” See Threat, 6 F.4th at 677.

B. To state what should be clear, a suspension and termination based on

national is also discriminatory. To discriminate under Title VII is to make

“distinctions or differences in treatment that injure protected individuals."

Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020) (citation omitted).

An employer who suspends different characteristic of employees and does

not suspend other employees treats these employees differently and harms

the employees in the process. There is “little room for debate” that this

qualifies as discrimination. Threat, 6 F.4th at 677.

Section 703(a)(1)’s text establishes no minimum level of actionable harm.

“The emphasis of both the language and the legislative history of the statute

is on eliminating discrimination in employment” Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63, 71 (1977). Section 703(a)(1) does not tolerate racial

discrimination as long as it is not too significant or too serious—the statute

“tolerates no racial discrimination.” McDonnell Douglas Corp. v. Green, 411

U.S. 792, 801 (1973) (emphasis added).

Peterson suspension and termination easily exceeds the minimally

unfavorable treatment inherent in the word

“Discriminate. ” Her situation was intrinsically undesirable, it is hard to imagine

any employee would react positively to the news that she has been

suspended pending an investigation. Whether or not the discipline leads to

termination, it heightens the risk of termination or some additional discipline

(not to mention the employee’s stress levels). Barring an employee from work

also prevents him from participating in projects, exerting influence, meeting

deadlines, and advancing his career. And reputational harms almost invariably

accompany a suspension. Indeed, whether it is an officer who is suspended

while the police department looks into an officer-involved shooting,5 a

football player suspended after the National Football League begins a

domestic-violence investigation^ or a professor suspended while the

university opens an inquiry into his “eccentric” teaching methods,7 doing

one’s job is superior to being sidelined pending an investigation.

5 Nashville Disciplines Police Officer Who Fired Last in Fatal Highway

Standoff, The Guardian (Jan. 29, 2022, 07:23 AM)

https://www.theguardian.com/us-news/2022/jan/29/nashville- disciplinespolice-officer-highway-standoff-landon-eastep-box- cutter.

6 Josh Brown Placed on Commissioner Exempt List, NFL.com (Oct. 21, 2016,

08:20 AM), https://www.nfl.com/news/josh-brown-placed-on-commissionerexempt-list-0ap3000000725116.

7 Eduardo Medina, Professor Who Called Students ‘Vectors of Disease’ in

Video Is Suspended, N.Y. Times (Jan. 16, 2022)

https://www.nytimes.eom/2022/01/16/us/barry-mehler- coronavirus.html.

That Staples paid Peterson does not change matters. The police officer,

football player, and professor just described were paid while on leave. Simply

put, being suspended, even with pay, imposed discriminatory disparate

treatment on Peterson because Staples prevented her from continuing to

serve under circumstances in which it allowed other employees to work. That

meets the standard imposed by Section 703(a)(1). That Staples could have

harmed Peterson even more does not erase the damage the organization

inflicted.

Finally, the panel’s observation that a “paid suspension can be a useful tool

for an employer," fundamentally misunderstands Title Vll’s purpose. The

statute does not insulate discriminatory discipline simply because employers’

benefit from it. A paid suspension can be useful to the employer, but the

point remains that the same suspension harms the employee. Employers

retain the ability to suspend employees accused of wrongdoing, so long as

they do so for nondiscriminatory reasons. What employers cannot do is apply

a disciplinary rule to a different characteristic employee while ignoring similar

allegations of misconduct against a others employee. A suspension on the

basis of nationality alters the terms, conditions, or privileges of employment

and therefore violates Section 703(a)(1). In requiring that employees show

more, the Tenth Circuit erred.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Dorota Peterson (Pro Se)

45 Beesley Ln

Victor,ID 83455

307 413 3587

dorotapeterson@hotmail.com

Dated on

.2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.