Opposition Brief — Cardenas-Garcia v. Texas Tech University
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( | JUL 6 - 2005
No. 04-1239 LOFFICE OF THE CLERK |
In the
Supreme Court of the United States
JAIME CARDENAS-GARCIA AND JAHAN RASTY,
Petitioners,
Vv.
TEXAS TECH UNIVERSITY, ET AL.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
RESPONDENTS’ BRIEF IN OPPOSITION
GREG ABBOTT R. TED CRUZ
Attorney General of Texas Solicitor General
~~ ee Counsel of Record
First Assistant Attorney RANCE L. CRAFT
General Assistant Solicitor General
EDWARD D. BURBACH P.O. Box 12548
Deputy Attorney General Austin, Texas 78711
for Litigation (512) 936-1700
COUNSEL FOR RESPONDENTS
i
TABLE OF CONTENTS
pe re ee ee ee i
pe PP eee Tree EVE ree rere iil
RC ree Tee rere Pe rT rere l
I Es aie 3 ck oo eee dw 0c knee a8 2
PRONE 10 TAI GRO PORMIOR oon occ cece sincvacs 5
I. The Question Regarding What Conduct Qualifies as
an “Adverse Employment Action” in a Title VII
Retaliation Claim Does Not Warrant Review. ..... 5 -
A. Petitioners Overstate the Extent of the Conflict. 5
B. The Difference Between the Fifth Circuit Rule
and the Majority Rule Exists More in Principle
ee go a acer lo aw kkees 11
C. The Court Has Recently Declined to Review
I, io oe ae tO ee hash eae a 17
II. The Question Whether Disproportionate Pay Raises
Qualify as “Adverse Employment Actions” ina Title
VII Discrimination Claim Does Not Warrant
a EE Pe Lee etE oey re rt eee err ee 18
ii
III. | Alternative Grounds for Affirmance Make This
Case an Inappropriate Candidate for Review. . 19
Comchusiom ... «is cana bbe oe eee 21
ili
TABLE OF AUTHORITIES
Cases
Amro v. Boeing Co., 232 F.3d 790 (CA10 2000) .......... 14
Anderson v. Coors Brewing Co., 181 F.3d 1171
DE sch vluuadey hous veuset ares eens Raed ks 12
Aquilino v. Univ. of Kan., 268 F.3d 930 (CA10 2001) ....... 9
Beamon v. Marshall & Ilsley Trust Co.,
Nos. 04-1521 & 04-2263,
2005 WL 1399307 (CA7 June 15, 2005) .......... 5, 8,14
Becker v. Gannett Satellite Info. Network, Inc.,
10 Fed. Appx. 135 (CA4 2001) (per curiam) ............ 6
Berry v. Stevinson Chevrolet, 74 F.3d 980 (CA10 1996) ..... 9
Blum v. Bacon, 457 U.S. 132 (1982) ...........0ceeee0e 19
Brackman v. Fauquier County, 72 Fed. Appx. 887
a rn 6
Bradley v. Widnall, 232 F.3d 626 (CA8 2000) ............. 5
Brown v. Brody, 199 F.3d 446 (CADC 1999) ............. 14
Cardenas v. Massey, 269 F.3d 251 (CA3 2001) ........... 13
Corneveaux v. CUNA Mut. Ins. Group,
Pe CU I CD 6 nike cndandadndeecdavicbes 9
Davis v. Town of Lake Park, 245 F.3d 1232 (CA11 2001) . 7, 14
iV
Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977) ..... 19
Dick v. Phone Directories Co., 397 F.3d 1256 (CA10 2005) .. 9
Dirusso v. Aspen Sch. Dist. No. 1, 123 Fed. Appx. 826
a ee re er Err ney eer ry 9
Dollis v. Rubin, 77 F.3d 777 (CAS 1995) .............008. 7
Duncan v. Manager, Dep’t of Safety, 397 F.3d 1300
EE a hi -954 Kn 4 ean ee eee one kd 5,9
Fairbrother v. Morrison, No. 03-9242-CV,
2005 WL 1389894 (CA2 June 14, 2005) ............ 5,14
Felton v. Polles, 315 F.3d 470 (CAS 2002) ............ 13, 14
Forkkio v. Powell, 306 F.3d 1127 (CADC 2002) ........ 6, 10
Gillis v. Ga. Dep’t of Corr., 400 F.3d 883 (CA11 2005)..... 18
Grube v. Lau Indus., Inc., 257 F.3d 723 (CA7 2001) ........ 8
Gu v. Boston Police Dep’t, 312 F.3d 6(CA1 2002) ......... 5
Gupta v. Fla. Bd. of Regents, 212 F.3d 571 (CA11 2000).... 12
Haddon v. Executive Residence at White House,
FAA Ce Re CE ED kb ot on keeskessaperseaer 16
Harrington v. Harris, 118 F.3d 359 (CAS 1997) ....... 15,18
Hashimoto v. Dalton, 118 F.3d 671 (CA9 1997)........ 15, 16
Vv
Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528
(CAS 2003) (per curiam), cert. denied,
POD i BOT CD on une Kd das en deeeela es 17
Hernandez-Torres v. Intercontinental Trading, Inc.,
Saw 5 -00SS Ge TOR ke ob kk xd039$oee 13
Honor v. Booz-Allen & Hamilton, Inc.,
S03 F285 GARB 5s 3 id dence 14
Jones v. Fitzgerald, 285 F.3d 705 (CA8 2002) ............ 16
Kang v. Bd. of Supervisors of La. State. Univ.,
75 Fed. Appx. 974 (CAS 2003) (per curiam),
cert. denied, 541 U3. 903 GOGA) gos oc oan accent 17
Kim v. Nash Finch Co., 123 F.3d 1046 (CA8 > J) Serene 13
Knox v. State, 93 F.3d 1327 (CA7 1996) ..............000. 8
LaCroix v. Sears, Roebuck, & Co.,
64D FSO GBE CCAS TOOT oe iia ee 13
Lyons v. England, 307 F.3d 1092 (CA9 2002) ............ 14
Manning v. Metro. Life. Ins. Co., 127 F.3d 686
CAS ISE2) oc iecisvatiavstueseeeien eee 10
Markel v. Bd. of Regents of Univ. of Wis. Sys.,
276 FSA SOB CAT BORD) 3s okkvcccied eee 8
Marrero v. Goya of P.R., Inc., 304 F.3d 7 (CA1 2002) ....... 8
vi
Mattern v. Eastman Kodak Co., 104 F.3d 702
(CAS 0999) occcvecevassitssse eee 7,15
Mota v. Univ. of Tex. Houston Health Sci. Ctr.,
261 F.3G SIZ CCAS SBOE) 0 0en0ees006csseseseseene 7
Passer v. Am. Chem. Soc'y, 935 F.2d 322 (CADC 1991) .... 10
Peltier v. United States, 388 F.3d 984 (CA6 2004) ......... 16
Primes v. Reno, 190 F.3d 765 (CA6 1999) ............... 14
Ray v. Henderson, 217 F.3d 1234 (CA9 2000) ..... 7,9, 10,15
Robinson v. City of Pittsburgh, 120 F.3d 1286
(CAS 1997) .vcccceseeecevsenedsauseeeee 6
Simas v. First Citizens’ Fed. Credit Union,
170 F.364 37 (CAL IGSSP oa ccacewsees 606554550 12
Stavropoulos v. Firestone, 361 F.3d 610 (CA11 2004),
cert. denied, 125 S$. Ct. 1950 (2005) .. ccccscccsascs 6,17
Tyler v. Union Oil Co., 304 F.3d 379 (CAS 2002) ......... 15
Vasquez v. Snow, 75 Fed. Appx. 275 (CAS5 2003)
(per curiam), cert. denied, 541 U.S. 936 (2004) ...... 11,17
Von Gunten v. Maryland, 243 F.3d 858
(CAA 2001)... ccccvsccksasneene eee 6, 10-12, 16
Walker v. Thompson, 214 F.3d 615 (CAS 2000) ............ 7
Vii
Wanamaker v. Columbian Rope Co.,
108 F.3d 462 (CA2 1997) ............. eet Perey yer 12
Washington v. Yakima Indian Nation,
Spy Ga MEP EENOED 10 56 kxcieesceseis fede 19
Weston v. Pennsylvania, 251 F.3d 420 (CA3 2001) ........ 13
White v. Burlington N. & Santa Fe Ry. Co.,
364 F.3d 789 (CA6 2004) (en banc) ................ 5, 12
Wideman v. Wal-Mart Stores, Inc.,
PSS dee PUD CREE BOE ko doe Kad vabueceseceusiol 9
Wyatt v. City of Boston, 35 F.3d 13
CSRs FSP eP CID on bb cddcncesehectebasueeu 8, 13
Yartzoff v. Thomas, 809 F.2d 1371 (CA9 1987) ........... 13
Statutes and Rules
MURE OE ooo cies 2
MUSE OU 3. hiskioksascicnne eee 2
MUSE. MI ooo vos onckks cer 17
ee. Gis is. Oe oS euaecouece seat thee eee ll
Vill
Other Authorities
Brief for Respondent in Opposition,
Vasquez v. Snow, 541 U.S. 936 (2004)
os ie aah a BA ae be ew ae 11,17
Brief for Respondent in Opposition,
Noland v. Henderson, 532 U.S. 1019 (2001)
SD, ED “bo xb cscs adc se cdebanedtanweed’c 11
Rosalie Berger Levinson, Parsing the Meaning of
“Adverse Employment Action” in Title VII Disparate
Treatment, Sexual Harassment, and Retaliation Claims:
What Should Be Actionable Wrongdoing?,
Pe GEA Ei ee ee GD do decors neh oeesndeviewus 10
BRIEF IN OPPOSITION
The Court should deny the petition for writ of certiorari because
it does not present an important question of federal law over which
the courts of appeals conflict. The courts of appeals have reached
a near-consensus regarding the standard for “adverse employment
actions” in Title VII retaliation claims, with ten of the twelve
circuits requiring that any such action be “material,” “serious and
tangible,” or “significant.” And while the Fifth Circuit’s “ultimate
employment decision” test is worded somewhat differently from the
majority rule, the Solicitor General has observed that “it is unclear
that there is any real difference in practice” between the two
standards. Indeed, a review of case law from other circuits shows
that it is far from certain that Petitioners would have viable claims
in those jurisdictions under the specific facts of this case.
Underscoring the insignificance of this conflict, the Court has
already denied review on this question once during this Term. And
just last Term, the Court declined to review three Fifth Circuit cases
applying the same “ultimate employment decision” standard that
Petitioners challenge here. Nothing about the Fifth Circuit’s
unpublished, non-precedential decision in this case warrants a
sudden change in course. Consistent with its recent dispositions of
petitions raising this issue, the Court should deny review.
Petitioners’ second question raises a false conflict between Fifth
and Eleventh Circuit precedent regarding whether disproportionate
pay raises present actionable discrimination claims under Title VII.
Precedent from both courts states that denials of “significant” raises
are actionable. To the extent the court of appeals’s non-
precedential opinion in this case rests on a categorical rule that
disproportionate pay raises can never be actionable in
discrimination cases, it is at most a misapplication of circuit
precedent that does not warrant review.
Finally, this case is inappropriate for the Court’s review because
numerous alternative grounds for affirmance exist that would
require the Court to engage in a cumbersome, case-specific analysis
2
of Respondents’ various defenses. Accordingly, the Court should
deny the petition.
STATEMENT OF THE CASE
1. Respondents incorporate by reference the factual background
set forth in the district court’s January 20, 2004 Order. Pet. App.
15a-30a.
2. In December 2002, Petitioners filed suit against Texas Tech
University ("TTU") alleging national origin discrimination and
retaliation in violation of Title VII and violation of due process
pursuant to 42 U.S.C. §1983. R1-19. In June 2003, Petitioners
amended their complaint to add: (1) Respondents Thomas Burton
and William Marcy as named defendants; (2) a claim of harassment
under Title VII against TTU; and (3) claims of national-origin
discrimination, retaliation, and harassment under 42 U.S.C. §§1981
and 1983 against all Respondents. R93-122. The district court
subsequently granted TTU's partial motion to dismiss Petitioners’
claims for monetary damages against TTU under §§1981 and 1983
as barred by Eleventh Amendment immunity. R191-97.
In October 2003, Respondents Burton and Marcy filed a motion
for summary judgment. R287. On January 20, 2004, the district
court granted this motion, dismissing all of Petitioners’ claims
against Burton and Marcy on numerous independent, alternative
grounds. Pet. App. 14a-69a.
First, with respect to Cardenas-Garcia’s discrimination and
retaliation claims based on his annual performance review, the
district court held that: (1) Cardenas-Garcia had not established the
“adverse employment action” element of a prima facie case for
either claim because the review was not an “ultimate employment
decision”; (2) alternatively, Burton and Marcy had produced
evidence of a legitimate, non-discriminatory reason for the
review—Cardenas-Garcia’s poor work performance—and there was
no genuine issue of material fact that the reason was pretextual; and
3
(3) as an alternative ground on the discrimination claim, the
evidence did not show that Cardenas-Garcia was reviewed
differently than someone in similar circumstances because the
professor with whom he compared reviews had _ other
accomplishments that justified the better review. Pet. App. 52a-
53a.
With respect to Rasty’s discrimination and retaliation claims
based on the investigation of academic-dishonesty charges against
him, the district court held that: (1) Rasty had not established the
“adverse employment action” element of a prima facie case for
either claim because the investigation—which found inaccuracies
in Rasty’s publication record, but not sanctionable “academic
misconduct”—did not result in an “ultimate employment decision”;
(2) alternatively, Burton and Marcy had produced evidence of a
legitimate, non-discriminatory reason for the investigation—
inaccurate statements regarding Rasty’s publications—and there
was no genuine issue of material fact that the reason was pretextual;
(3) as an alternative ground on the discrimination claim, the
evidence did not show that Rasty was investigated differently than
someone in similar circumstances because the professor with whom
he compared himself had admitted and corrected mistakes in his
academic record, thereby obviating the need for an investigation;
and (4) as an alternative ground for the retaliation claim, Rasty had
not established the causation element of a prima facie case because
he offered only conclusory statements of retaliatory motive. Pet.
App. 59a-6 la.
And with respect to Petitioners’ discrimination and retaliation
claims that they received proportionately lower pay raises than
some of their Anglo-American colleagues, the district court held
that: (1) claims predicated on many of the raises were barred by the
statute of limitations; (2) alternatively, Petitioners had not
established the “adverse employment action” element of a prima
facie case for either claim because the variations in pay raises did
4
not qualify as “ultimate employment decisions”; and (3)
alternatively, Burton and Marcy had produced evidence of a
legitimate, non-discriminatory reason for the raise amounts—they
were justified by differences in performance—and there was no
genuine issue of material fact that the reason was pretextual. Pet.
App. 51a, 53a-54a, 65a-66a.
Finally, as to all of Petitioners’ claims, the district court held
that Burton and Marcy were entitled to qualified immunity.
Specifically, the court held that Petitioners had failed to show
violation of a clearly established right and, alternatively, they had
not shown that Burton’s and Marcy’s actions were objectively
unreasonable. Pet. App. 56a-57a, 66a-67a.
In December 2003, TTU filed its motion for summary
judgment. R956. On January 22, 2004, the district court granted
TTU's motion, dismissing all of Petitioners’ claims against TTU for
essentially the same reasons provided in the Order granting Burton
and Marcy’s summary-judgment motion. Pet. App. 4a-13a. The
district court entered final judgment for all Respondents on January
22, 2004. R1681.
3. In an unpublished, per curiam opinion, the court of appeals
affirmed the district court’s judgment. Pet. App. la-3a. The court
of appeals held that Cardenas-Garcia’s annual review and the
investigation into charges of academic dishonesty against Rasty did
not satisfy the “adverse employment action” element of a prima
facie case because they were not ultimate employment decisions.
Pet. App. 2a. With respect to Petitioners’ claims based on lower
pay raises, the court of appeals reviewed its jurisprudence and
observed “we have never held that a proportionately lesser pay
increase, where an increase was received every year, could fulfill
the [adverse employment action] requirement.” Pet. App. 3a.
5
REASONS TO DENY THE PETITION
I. THE QUESTION REGARDING WHAT CONDUCT QUALIFIES AS
AN “ADVERSE EMPLOYMENT ACTION” IN A TITLE VII
RETALIATION CLAIM DOES NOT WARRANT REVIEW.
A. Petitioners Overstate the Extent of the Conflict.
Petitioners overstate the extent of the circuits’ disagreement
regarding what constitutes an “adverse employment action”
sufficient to state a prima facie case of retaliation under Title VII.
In fact, the circuits have now reached near-unanimity on the
standard for such actions.
1. Ten of the twelve circuits currently require a plaintiff to
show that he suffered a retaliatory action that meets a threshold of
materiality or significance. The First, Second, Sixth, Seventh,
Eighth, Tenth, and District of Columbia Circuits use the term
“material.”' The Third and Eleventh Circuits apply essentially the
1. Gu v. Boston Police Dep’t, 312 F.3d 6, 14 (CA1 2002) (holding
that “[t]o be adverse, an action must materially change the conditions of
plaintiffs’ employ”); Fairbrother v. Morrison, No. 03-9242-CV, 2005
WL 1389894, at *13 (CA2 June 14, 2005) (explaining that “[a]n adverse
employment action is a ‘materially adverse change’ in the terms and
conditions of employment” (citations and internal quotations omitted));
White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 797, 800 (CA6
2004) (en banc) (reaffirming circuit standard that plaintiff must show “a
materially adverse change in the terms of her employment” (citations and
internal quotations omitted)); Beamon v. Marshall & Ilsley Trust Co.,
Nos. 04-1521 & 04-2263, 2005 WL 1399307, at *6 (CA7 June 15, 2005)
(requiring retaliation plaintiff to show that “he suffered a materially
adverse employment action”); Bradley v. Widnail, 232 F.3d 626, 632
(CA8 2000) (holding that “[a]n adverse employment action is exhibited
by a material employment disadvantage” (emphasis in original)); Duncan
v. Manager, Dep't of Safety, 397 F.3d 1300, 1314 (CA10 2005) (noting
that “[a]n adverse employment action must be materially adverse to the
|
6
same standard using different language, requiring the adverse action
to be “serious and tangible enough to alter an employee’s
compensation, terms, conditions, or privileges of employment.”
And while the Fourth Circuit ostensibly demands only a showing
that the employer’s actions “adversely affected ‘the terms,
conditions, or benefits’ of the plaintiff's employment,” Von Gunten
v. Maryland, 243 F.3d 858, 865 (CA4 2001), in practice it has
rejected actions it did not deem “significant,” id., at 868 (finding
poor performance reviews and change in job assignments were not
adverse actions because court could not discern “any significant
difference” between earlier performance review and challenged
review and change in job assignment was not “truly .. .
significant”).? Reviewing these various standards, the Eleventh
Circuit has concluded that, regardless of the language used, “[a]s
employee’s job status” (citation and internal quotations omitted));
Forkkio v. Powell, 306 F.3d 1127, 1131 (CADC 2002) (describing circuit
standard that “an employee suffers an adverse employment action if he
experiences materially adverse consequences affecting the terms,
conditions, or privileges of employment or future employment
opportunities”).
2. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (CA3 1997);
Stavropoulos v. Firestone, 361 F.3d 610, 617 (CA11 2004) (citation and
internal quotations omitted), cert. denied, 125 S. Ct. 1850 (2005).
3. See also Brackman v. Fauquier County, 72 Fed. Appx. 887, 893
(CA4 2003) (per curiam) (holding that plaintiff did not show adverse
employment action because “we fail to see how [the challenged action]
had a ‘significant detrimental effect’ on [the plaintiff]’) (citation
omitted); Becker v. Gannett Satellite Info. Network, Inc., 10 Fed. Appx.
135, 140 (CA4 2001) (per curiam) (holding that plaintiff did not show
adverse employment action where employer “did not significantly alter:
her job responsibilities in any detrimental or significant way”).
7
applied, these standards are essentially interchangeable.” Davis v.
Town of Lake Park, 245 F.3d 1232, 1239 (CA11 2001).
The Fifth Circuit has articulated a different threshold, requiring
the employee to show that he suffered an “ultimate employment
decision,” which “include[s] acts ‘such as hiring, granting leave,
discharging, promoting, and compensating.’” Mattern v. Eastman
Kodak Co., 104 F.3d 702, 707 (CA5 1997) (quoting Dollis v. Rubin,
77 F.3d 777, 781-82 (CA5 1995)). Elaborating on this standard, the
court has explained that “[a]n employer's action does not rise to the
level of an ‘adverse employment action’ when it fails to have more
than ‘mere tangential effect on a possible future ultimate
employment decision.’” Mota v. Univ. of Tex. Houston Health Sci.
Ctr., 261 F.3d 512, 519 (CA5 2001) (quoting Walker v. Thompson,
214 F.3d 615, 629 (CA5 2000)). Accordingly, the Fifth Circuit
standard is largely the same as the standard predominant among
other circuits, differing only in the margin between “material” or
“serious” employment actions and actions that concern or have
more than a tangential effect on hiring, granting leave, discharging,
promotions, and compensation.
Finally, the Ninth Circuit alone adopts a broader interpretation
of what constitutes an adverse employment action. In Ray v.
Henderson, 217 F.3d 1234, 1243 (CA9 2000), it held that “an
action is cognizable as an adverse employment action if it is
reasonably likely to deter employees from engaging in protected
activity.”
2. Petitioners incorrectly describe the circuits’ standards as
more divergent by relying on the Ninth Circuit’s erroneous and
dated assessment of circuit law in Ray. Pet. 15. In that case, the
court claimed that its “expansive view” of actionable adverse
employment actions was shared by the First, Seventh, Tenth,
Eleventh, and District of Columbia Circuits. Ray, 217 F.3d, at
1241-42; see also Pet. 15. But, as previously discussed, all of these
courts now require a showing of “material” or “serious and
8
tangible” actions to establish a prima facie case of retaliation. See
supra nn.1, 2.
Moreover, an examination of the cases relied on by the Ninth
Circuit further demonstrates why Ray’s description of the state of
circuit law on this issue in 2000 is either outdated or simply wrong.
In Wyatt v. City of Boston, 35 F.3d 13, 15-16 (CA1 1994) (per
curiam), the First Circuit stated in dicta that, apart from discharge,
“other adverse actions” covered by Title VII include, inter alia,
“disadvantageous transfers or assignments” and “toleration of
harassment.” But eight years later, notwithstanding Wyatt’s dicta,
the First Circuit specifically rejected a retaliation claim based on
disadvantageous transfer and toleration of harassment on the ground
that those particular actions in that case did not satisfy the Court’s
“materially adverse” standard. Marrero v. Goya of P.R., Inc., 304
F.3d 7, 22-27 (CA1 2002).
Similarly, in Knox v. State, 93 F.3d 1327, 1334 (CA7 1996), the
Seventh Circuit stated in dicta that there is “nothing in the law of
retaliation that restricts the type of retaliatory act that might be
visited upon an employee.” But in the nine years since Knox was
decided, the court has decidedly distanced itself from this dicta,
embracing the much stricter “materially adverse” standard.
Beamon, 2005 WL 1399307, at *6; see also Markel v. Bd. of
Regents of Univ. of Wis. Sys., 276 F.3d 906, 911 (CA7 2002)
(holding plaintiffs claims that she was “denied ‘better’ equipment,
the ability to travel and make presentations, and removed from
certain accounts that caused her not to receive bonuses” were not
material, and thus, not actionable); Grube v. Lau Indus., Inc., 257
F.3d 723, 729 (CA7 2001) (holding that “unfair reprimands or
negative performance evaluations, unaccompanied by some tangible
job consequence, do not constitute adverse employment actions”).‘
4. Like the Ninth Circuit, Petitioners also misplace reliance on the
Wyatt and Knox dicta to describe—incorrectly—the current state of
9
The Tenth Circuit cases cited in Ray do not align that court with -
the Ninth Circuit’s broad definition of adverse employment actions.
In Corneveaux v. CUNA Mut. Ins. Group, 76 F.3d 1498, 1507
(CA10 1996), the plaintiff was actually denied severance benefits—
a compensation decision that would be actionabie in any circuit.
And, although the Tenth Circuit held in Berry v. Stevinson
Chevrolet, 74 F.3d 980, 986 (CA10 1996), that a criminal
prosecution could constitute an adverse employment action because
of its impact on future hiring, the court has since effectively limited
Berry to its facts by declining to extend it to other situations not
deemed materially adverse. See, e.g., Dick v. Phone Directories
Co., 397 F.3d 1256, 1269 (CA10 2005) (declining to extend Berry
to filing of police report against employee); Dirusso v. Aspen Sch.
Dist. No. 1, 123 Fed. Appx. 826, 839 (CA10 2004) (declining to
extend Berry to negative job reference given to future employer);
Aquilino v. Univ. of Kan., 268 F.3d 930, 934 (CA10 2001)
(declining to extend Berry to removal of plaintiff from committee,
notwithstanding impact on future employment). Finally, as
discussed previously, the Tenth Circuit now requires a “materially
adverse” employment action to state a prima facie case of
retaliation. Duncan, 397 F.3d, at 1314.
The Ninth Circuit simply misread the Eleventh Circuit’s
decision in Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453
(CA11 1998). In Ray, the Ninth Circuit described Wideman as
holding that actionable adverse employment actions “include”
matters such as “requiring plaintiff to work without lunch break,
giving her a one-day suspension, soliciting other employees for
negative statements about her, changing her schedule without
notification, making negative comments about her, and needlessly
delaying authorization for medical treatment.” Ray, 217 F.3d, at
1241-42 (citing Wideman, 141 F.3d, at 1456). In fact, the Eleventh
circuit law on this issue. Pet. 17.
10
Circuit held that these actions “considered collectively are sufficient
to constitute prohibited discrimination” under Title VII’s anti-
retaliation provision. 141 F.3d, at 1456 (emphasis added). The
court specifically declined to decide “whether anything less than the
totality of the alleged reprisals would be sufficient.” Jd.
Finally, in Passer v. American Chemical Society, 935 F.2d 322,
330-31 (CADC 1991), the District of Columbia Circuit held that an
adverse employment action could include an act that affected future
employment prospects. But that court has since specified that any
such effect must be a “materially adverse consequence[].” Forkkio,
306 F.3d, at 1131.°
Indeed, Petitioners’ own authority acknowledges that the
“emerging trend” among the circuits is a movement toward the
more restrictive “materially adverse” standard. See Rosalie Berger
Levinson, Parsing the Meaning of “Adverse Employment Action”
in Title VII Disparate Treatment, Sexual Harassment, and
Retaliation Claims: What Should Be Actionable Wrongdoing?, 56
OKLA. L. REV. 623, 636 & n.29 (2003). Thus, contrary to
Petitioners’ assertion that this conflict is “intractable” and
“entrenched,” this trend suggests that circuit law is evolving toward
a consensus, and, therefore, does not warrant review by the Court.
3. In sum, the conflict raised by Petitioners is extremely
lopsided, with all almost all circuits requiring that an adverse
5. The Ninth Circuit also erroneously aligned the Eighth Circuit with
the Fifth Circuit as using the “ultimate employment decision” standard.
Ray, 217 F.3d, at 1242. Although the Eighth Circuit has used those
words to describe actionable conduct, it has defined that phrase to include
any “tangible change in duties or working conditions that constituted a
material employment disadvantage.” Manning v. Metro. Life. Ins. Co.,
127 F.3d 686, 692 (CA8 1997); see also Von Gunten, 243 F.3d, at 864
(recognizing that Eighth Circuit actually uses “material disadvantage”
standard rather than “ultimate employment decision” standard).
11
employment action be “material,” “serious and tangible,” or
“significant” to state a retaliation claim. And the Fifth Circuit’s
rule ostensibly differs from this standard only in the narrow margin
between such “material” employment actions and “ultimate
employment decisions” that have more than a tangential effect on
hiring, granting leave, discharging, promotions, and compensation.
B. The Difference Between the Fifth Circuit Rule and the
Majority Rule Exists More in Principle than in Practice.
The small and somewhat vague distinction between the Fifth
Circuit’s “ultimate employment decision” standard and the
materiality/significance standard used by almost all other circuits
does not present an “important” conflict that merits certiorari
review. See Sup. CT.R. 10. The difference exists more in principle
than in practice, as evidenced by Petitioners’ failure to show a clear,
divergence in the application of these standards to the facts of this
case.
1. Petitioners rely on the Solicitor General’s comment that
“(t]he courts of appeals have articulated different standards for
what types of employment conduct are actionable” under Title VII’s
anti-retaliation provision. Pet. 17 (quoting Brief for Respondent in
Opposition at 7, Noland v. Henderson, 532 U.S. 1019 (2001)
(mem.) (No. 00-1259) (emphasis added)). But the Solicitor General
has since opined that “‘it is unclear that there is any real difference
in practice between the ‘ultimate employment decision’ standard .
. . and the ‘adverse employment action’ standard” employed by
most circuits. Brief for Respondent in Opposition at 5, Vasquez v.
Snow, 541 U.S. 936 (2004) (mem.) (No. 03-887). In other words,
although the circuits may employ different verbal formulations of
the standard for evaluating alleged retaliatory actions, application
of those standards yields little difference in results.
The Fourth Circuit echoed this assessment in Von Gunten,
noting that “[s]ometimes the practical differences between these
ee Cd hae et
12
two standards are difficult to discern” and the distinction results in
a “sometime slight real world difference.” 243 F.3d, at 864. And ;
although the Fourth Circuit stated that the standards could produce
different results if “strictly applied,” id, they would not have
yielded disparate results in Von Gunten. The court rejected the
plaintiffs claims that denying her use of a state vehicle,
downgrading her annual review, changing her job assignments,
mishandling her requests for leave, and failing to deal adequately
with her complaints of harassment constituted, either individually
or collectively, adverse employment action sufficient to state a
retaliation claim. /d., at 867-70.
The “slight real world difference” in these standards largely
results from the fact that courts are resolving this issue
experientially by deciding particular cases on their peculiar facts.
See White, 364 F.3d, at 799 (stating that “we have over the last
twenty years given some shape to the definition by describing the
kinds of material adverse employment actions that rise above the
level of trivial”); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587
(CA11 2000) (holding that “[w]hether an action is sufficient to
constitute an adverse employment action for purposes of a
retaliation claim must be determined on a case-by-case basis”).°
Even the Fifth Circuit’s seemingly more categorical approach can
yield varying results depending on the circumstances. For example,
although the court held in this case that Petitioners’ poor
na a a RE Se Pn
6. See also Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178
(CA10 1999) (noting that “we take a case-by-case approach in
determining whether a given employment action is ‘adverse’”); Simas v.
First Citizens’ Fed. Credit Union, 170 F.3d 37, 49 (CAI 1999)
(observing that “[d]jetermining whether an action is materially adverse
necessarily requires a case-by-case inquiry”); Wanamaker v. Columbian
Rope Co., 108 F.3d 462, 466 (CA2 1997) (commenting that “courts must
pore over each case to determine whether the challenged employment
action reaches the level of ‘adverse’”).
|
13
performance reviews did not constitute “ultimate employment
decisions,” Pet. App. 2a, in another case it assumed that a low
performance evaluation was an “ultimate employment decision”
where it automatically postponed an annual raise. See Felton v.
Polles, 315 F.3d 470, 488 (CAS5 2002). Consequently, the circuits’
different “articulations” of the standard for adverse employment
actions are less relevant than how they are applied in a given case.
2. The limited practical effect of these differently phrased
standards is reflected in Petitioners’ unconvincing attempt to show
that the conflict is necessarily outcome-determinative in this case.
Pet. 20-22.
Petitioner Cardenas-Garcia alleges a conflict between the Fifth
Circuit’s decision that one of his annual reviews was not an adverse
employment action and cases from four other circuits. Pet. 20-21
(citing Wyatt v. City of Boston, 35 F.3d 13, 16 (CA1 1994) (per
curiam); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (CA9 1987);
Cardenas v. Massey, 269 F.3d 251, 263-64 (CA3 2001); Kim v.
Nash Finch Co., 123 F.3d 1046, 1060 (CA8 1997)). Thus, he
asserts that his retaliation claim predicated on his annual review
would have been viable in these jurisdictions. Pet. 21.
But the viability of Cardenas-Garcia’s retaliation claim is not
simply a matter of geography. All of these courts—including the
Ninth Circuit—have held under certain circumstances that negative
performance reviews did not qualify as adverse employment
actions. See Hernandez-Torres v. Intercontinental Trading, Inc.,
158 F.3d 43, 47 (CAI 1998) (holding that critical reports on
plaintiff's productivity were not adverse employment actions);
Weston v. Pennsylvania, 251 F.3d 420, 430-31 (CA3 2001)
(holding that written reprimands were not actionable adverse
employment actions when plaintiff did not show material change in
terms and conditions of employment); LaCroix v. Sears, Roebuck,
& Co., 240 F.3d 688, 691-92 (CA8 2001) (holding that performance
review was not actionable where plaintiff did not show it resulted
14
in a material employment disadvantage); Lyons v. England, 307
F.3d 1092, 1118 (CA9 2002) (holding that lower evaluation was not
actionable where it did not translate into further adverse decision).’
And, as discussed previously, the Fifth Circuit has suggested that a
performance review could be actionable if it directly affected
compensation. See Felton, 315 F.3d at 488.
These divergent assessments of whether performance reviews
present actionable retaliation claims naturally result from the fact-
specific inquiry courts conduct to determine whether a particular act
is “material” or “reasonably likely to deter employees” or has “more
than a mere tangential effect” on future employment decisions. As
such, Cardenas-Garcia’s claim regarding his annual review—which
apparently is based on a single comment that Burton made in his
7. Indeed, all of the other circuits have held likewise. See, e.g.,
Fairbrother v. Morrison, No. 03-9242-CV, 2005 WL 1389894, at *14
(CA2 June 14, 2005) (holding that negative evaluation was not adverse
employment action); Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d
180, 189 (CA4 2004) (holding that negative employment evaluation did
not “rise[] to the level of an adverse employment action”); Primes v.
Reno, 190 F.3d 765, 767 (CA6 1999) (holding that low evaluation was
not adverse employment action under circumstances of that case); |
Beamon v. Marshall & Ilsley Trust Co., Nos. 04-1521 & 04-2263, 2005 |
WL 1399307, at *6 (CA7 June 15, 2005) (observing that “although
negative performance evaluations may be evidence of discrimination,
they are not alone considered to be actionable adverse employment
actions); Amro v. Boeing Co., 232 F.3d 790, 799 (CA10 2000) (holding
that lower performance evaluation was not adverse employment action);
Davis v. Town of Lake Park, 245 F.3d 1232, 1240 (CA11 2001) (holding
that negative job performance memoranda did not constitute actionable
adverse employment actions); Brown v. Brody, 199 F.3d 446, 458
(CADC 1999) (noting that a “thick body of precedent . . . refutes the
notion that formal criticism or poor performance evaluations are
necessarily adverse actions”).
15
evaluation, Pet. App. 18a-19a—does not present a clear circuit
conflict that merits review.
For the two remaining adverse actions raised by Petitioners
(disproportionate pay raises and disciplinary investigations), they
can cite only an alleged conflict with two cases from the Ninth
Circuit, which alone among the circuits has adopted a broad
definition of adverse employment action. Pet. 21-22 (citing Ray,
217 F.3d, at 1243-44; Hashimoto v. Dalton, 118 F.3d 671, 676
(CA9 1997)). And even then, neither of these cases directly
conflicts with the Fifth Circuit’s decision below.
In Ray, the Ninth Circuit held that a reduction in the plaintiff's
pay constituted an adverse employment action. 217 F.3d, at 1244.
This holding does not conflict with Fifth Circuit precedent
generally, which holds that a reduction in pay qualifies as an
actionable adverse employment action. Tyler v. Union Oil Co., 304
F.3d 379, 397 (CAS 2002). Nor does Ray’s holding regarding pay
reductions present an actual conflict with this case, in which
Petitioners complain that the amount of the pay raises they received
constitutes an adverse employment action. Pet. App. 54a, 65a-66a.°
8. Even if Ray could be broadly read to mean any disproportionate
adjustment in pay is actionable, it still does not present a circuit conflict.
The Fifth Circuit does not categorically reject retaliation claims
predicated on disproportionate pay raises. Harrington v. Harris, 118
F.3d 359, 366 (CAS 1997). Indeed, such actions certainly represent
“compensation” determinations, which the Fifth Circuit has always
considered “ultimate employment decisions.” See Mattern, 104 F.3d at
707. Accordingly, to the extent the court of appeals’s non-precedential
opinion in this case rests on a categorical rule that disproportionate pay
raises can never be actionable in retaliation cases, see Pet. App. 3a, it is
at most a misapplication of circuit precedent that does not warrant
review. See infra Part II.
16
In Hashimoto, the Ninth Circuit held that a negative job
reference could constitute an adverse employment action despite the
fact that it “turned out to be inconsequential” because the
prospective employer would not have hired the plaintiff even
without the negative reference. 118 F.3d, at 676. Rasty claims that
Hashimoto conflicts with the court of appeals’s holding that TTU’s
investigation into academic-dishonesty charges against him was not
an ultimate employment decision. Pet. 21-22. There are several
problems with this purported conflict.
As an initial matter, the negative job reference in Hashimoto
and the academic investigation into Rasty’s statements about his
publications are so factually dissimilar that a genuine conflict does
not exist. Rasty nevertheless tries to present a conflict in rationale,
asserting that, in contrast to the job reference in Hashimoto, TTU’s
investigation was held not to be an adverse employment action
because it cleared Rasty of academic misconduct, and thus was
“inconsequential.” See Pet. 21-22. But that was the district court’s
reasoning, Pet. 21-22; Pet. App. 59a; the Fifth Circuit simply held
that an investigation did not qualify as an ultimate employment
decision, Pet. App. 2a. That Petitioners are reaching back to the
district court’s opinion to try to establish a conflict with a factually
inapposite decision further demonstrates that this case does not
warrant the Court’s review. Finally, exemplifying the limited
practical difference between the “ultimate employment decision”
standard and the materiality/significance standard, the Fifth
Circuit’s opinion in this case comports with decisions from other
circuits holding that internal investigations are not actionable
adverse employment actions. See, e.g., Peltier v. United States, 388
F.3d 984, 988 (CA6 2004); Haddon v. Executive Residence at White
House, 313 F.3d 1352, 1363-64 (CAFed 2002); Jones v. Fitzgerald,
285 F.3d 705, 714-15 (CA8 2002); Von Gunten, 243 F.3d, at 869.
For these reasons, Rasty’s claim regarding the academic-dishonesty
investigation does not present a genuine conflict warranting review.
17
C. The Court Has Recently Declined to Review This
Question.
Underscoring the unimportance of this issue, the Court has
already declined to address it this Term in another case where it was
squarely presented. Stavropoulos v. Firestone, 361 F.3d610 (CA11
2004), cert. denied, 125 S. Ct. 1850 (2005) (Question Presented:
“Should this Court grant certiorari to resolve the circuit split
regarding the type of employer conduct that constitutes an ‘adverse
employment action’ in a Title VII retaliation suit under 42 U.S.C.
2000e-3(a)?”). Since the Court denied review in Stavropoulos in
April 2005, there have been no developments in the legal landscape
that have transformed this issue into one that suddenly merits the
Court’s review.
Indeed, the Court has recently refused to review this question
even when presented through the vehicle of a Fifth Circuit decision
applying that court’s “ultimate employment decision” standard.
Just last Term, the Court denied review in three Fifth Circuit cases
squarely presenting that issue.’ There is nothing about the Fifth
9. Kang v. Bd. of Supervisors of La. State. Univ., 75 Fed. Appx. 974
(CA5 2003) (per curiam), cert. denied, 541 U.S. 903 (2004) (Question
Presented: “Does section 704(a) of Title VII of the 1964 Civil Rights Act,
which prohibits retaliation against an employee for filing a charge with
the EEOC, permit an employer to engage in retaliatory action so long as
that reprisal does not constitute an ‘ultimate employment decision’?”’);
Vasquez v. Snow, 75 Fed. Appx. 275 (CAS 2003) (per curiam), cert.
denied, 541 U.S. 936 (2004) (Question Presented: “Whether a plaintiff
must show an ultimate employment action rather than an adverse
employment action to establish a claim for retaliation under Title VII.”);
Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528 (CAS 2003)
(per curiam), cert. denied, 540 U.S. 817 (2003) (Question Presented: “Do
the anti-retaliation provisions of Title VII and the Age Discrimination in
Employment Act, which forbid an employer from discriminating against
an employee for seeking to enforce his or her rights under Title VII and
18
Circuit’s unpublished, non-precedential opinion in this case that
makes it a more appropriate vehicle to address this question."
Consistent with its treatment of this unimportant issue over the last
two terms, the Court should again deny review. —
Il. THE QUESTION WHETHER DISPROPORTIONATE PAY RAISES
QUALIFY AS “ADVERSE EMPLOYMENT ACTIONS” IN A TITLE
VII DISCRIMINATION CLAIM DOES NOT WARRANT REVIEW.
Petitioners also assert a conflict between the Fifth Circuit and
the Eleventh Circuit as to whether disproportionate pay raises may
constitute “adverse employment actions” in a Title VII
discrimination claim. Pet. 27-29. But in reality, precedent from
these courts is in accord on this issue, and the Fifth Circuit’s non-
precedential opinion in this case does not disturb that consensus.
In Gillis v. Georgia Department of Corrections, the Eleventh
Circuit held that an employer’s decision that “disentitles an
employee to a raise of any significance is an adverse employment
action under Title VII.” 400 F.3d 883, 888 (CA11 2005) (emphasis
added). Fifth Circuit law is similar. In Harrington v. Harris, the
court held that certain variations in the percentage of merit pay
increases among a university’s faculty did not qualify as “adverse
employment actions” because they “were not significant.” 118 F.3d
359, 366 (CAS 1997). But, the court added, “[i]f Plaintiffs had
received no merit pay increase at all or if the amount of such
ADEA respectively, actually permit such retaliation so long as the
employer’s actions do not constitute an ‘ultimate employment
decision’?”).
10. See Pet. App. la; STH Cir. R. 47.5.4 (“Unpublished opinions
issued on or after January 1, 1996, are not precedent, except under the
doctrine of res judicata, collateral estoppel or law of the case (or similarly
to show double jeopardy, abuse of the writ, notice, sanctionable conduct,
entitlement to attorney’s fees, or the like).”’).
x
a
“4
2
3
be
5
:
19
increase were so small as to be simply a token increase which was
out of proportion to the rnerit pay increases granted to others, we
might reach a different conclusion.” Jd. Thus, precedent from the
Eleventh Circuit and Fifth Circuit does not conflict on this point.
Accordingly, to the extent the court of appeals’s non-precedential
opinion in this case rests on a categorical rule that disproportionate
pay raises can never be actionable in discrimination cases, see Pet.
App. 3a, it is at most a misapplication of circuit precedent that does
not warrant review.
III. ALTERNATIVE GROUNDS FOR AFFIRMANCE MAKE THIS
CASE AN INAPPROPRIATE CANDIDATE FOR REVIEW.
If the Court were to grant the petition, Respondents would
defend the judgment below by advancing alternative grounds for
affirmance raised in the Fifth Circuit briefing but not reached by
that court. See Blum v. Bacon, 457 U.S. 132, 138 n.5 (1982)
(noting that respondents “may rely upon any matter appearing in the
record in support of the judgment below”); Dayton Bd. of Educ. v.
Brinkman, 433 U.S. 406, 419 (1977) (explaining that respondents
are “entitled under our precedents to urge any grounds which would
lend support to the judgment below”).
Although the court of appeals’s disposition pretermitted
consideration of numerous other defects in Petitioners’ claims, a
respondent may “defend its judgment on any ground properly raised
below whether or not that ground was relied upon, rejected, or even
considered by the District Court or the Court of Appeals.”
Washington v. Yakima Indian Nation, 439 U.S. 463, 478 n.20
(1979). Although Respondents’ strong arguments for affirming the
judgment would be presented for this Court’s review should it grant
the petition, the existence of these alternative grounds for
affirmance provides yet another reason why this case is an
unsuitable vehicle for review of the questions urged by Petitioners.
20
The Court would become mired in a detailed record and
evidentiary questions regarding whether Petitioners’ claims of
disparate treatment were founded on comparisons with “similarly
situated” persons, whether Respondents had met their burden to
show legitimate, non-discriminatory reasons for their actions,
whether there is a genuine issue of material fact as to pretext, and
whether Burton and Marcy were entitled to qualified immunity.
Indeed, the bulk of the district court’s opinion was dedicated to
these issues rather than the “adverse employment action” question
addressed by the Fifth Circuit. See Pet. App. 47a-69a. Because the
issues related to the definition of “adverse employment action”
concern only a portion of the district court’s order as applied to a
discrete set of facts, this case does not merit the Court’s attention.
21
CONCLUSION
The Court should deny the petition for writ of certiorari.
July 6, 2005
Respectfully submitted,
GREG ABBOTT
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney
General
EDWARD D. BURBACH
Deputy Attorney General
for Litigation
R. TED CRUZ
Solicitor General
Counsel of Record
RANCE L. CRAFT
Assistant Solicitor General
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711
(512) 936-1700
2: [Supreme Court, US.
FILED
No. 04-1239 JUL ? { 2005
OFFICE OF THE CLERK
5n The
Supreme Court of the Gnited States
&
_.
JAIME CARDENAS-GARCIA and JAHAN RASTY,
Petitioners,
V.
TEXAS TECH UNIVERSITY, THOMAS BURTON,
individually and in his official capacity as Chair of the
Mechanical Engineering Department at Texas Tech
University; WILLIAM MARCY, individually and in his
official capacity as Associate Dean and later Dean of the
College of Engineering at Texas Tech University,
Respondents.
o¢—
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
@
v
REPLY BRIEF FOR PETITIONERS
ry
LEvI G. MCCATHERN JOHN R. ATES
TISHA LYNN DODGE (Counsel of Record)
McCATHERN Mooty ALBO & OBLON, L.L.P.
3710 Rawlins 2200 Clarendon Blvd.
Dallas, Texas 75219 Arlington, Virginia 22201
(703) 562-3385
July 21, 2005
ee
——
te ne eee St ee ae
| ern re ee ee ——~
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
TABLE OF CONTENTS
Page
SR SIE GAIN BIIN Blinds tninonsedwonicssbascsive.cusuoneivdastes i
PAPA EE FRAT REAR BAIS ope ccseisnesecsscounecennsiseneaeoesss ii
REPLY BRIEF FOR PETITIONERG....................0006 1
I. Certiorari Should Be Granted To Resolve
The Circuit Conflict Regarding The Proper
Standard For Actionable Retaliation.............. 2
II. This Court Should Resolve The Circuit Split
Over What Constitutes Discrimination.......... 9
SN RAIN iad senitsavcp rides gales snsepaitars nacersvausebuneaxs 10
i
TABLE OF AUTHORITIES
Page
CASES:
Beamon v. Marshall & Ilsley Trust Co., Nos. 04-
1521 & 04-2263, 2005 WL 1399307 (CA7 June
BEE Fe ens ons aca hacia cs deeds eck Adasen en ee 3
Berry v. Stevinson Chevrolet, 74 F.3d 980 (CA10
WINE ani Hina icch i sccntarcdishadacxuvhcsbdensaceisteeatedacas 3, 5, 6, 7
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742
GRIME is ocus daccsuducbecsvicsasnasbbaabeapabnicgncisscusccdieeibisedtpehidatainas 3,4
Clark County Sch. Dist. v. Breeden, 532 U.S. 268
CLT CE COPII iss ae ee sccssinsckcaas 9
Faragher v. City of Boca Raton, 524 U.S. 775 (1998)......... 3
Felton v. Polles, 315 F.3d 470 (CA5 2002) .............0..0.....00 7
Firestine v. Parkview Health Sys., 388 F.3d 229
LEIA POI vies cine Gincrcuvascocccemubicsieds Goansnntackccssbasucnideidesoauine 6
Gillis v. Ga. Dep’t of Corrections, 400 F.3d 883
CEST BN ss fants hcacaccrsicta Siac cckeceeasencsensassdeeeseeie 1, 7, 9, 10
Graube v. Lau Indus., 257 F.3d 723 (CA7 2001)................ 3
Haddon v. Executive Residence at White House, 313
Fe See CCA, BED fives gsacieinscctcaabncassdodseisicocccasouss 7
Harrington v. Harris, 118 F.3d 359 (CA5 1997)....... 7, 9,10
Henandez v. Crawford Bldg. Material Co., 321 F.3d
528 (CA5 2003), cert. denied, 540 U.S. 817 (2003).......... g
Hernandez-Torres v. Intercontinental Trading, Inc.,
166 P8438 (CAS 2008) i eke. 7,9
Herrnreiter v. Chi. Hous. Auth., 315 F.3d 742 (CA7
MIE ai isa ciadssgiech thatccsnatecdapisdvsibsieenieswesdideneisabivaness 2, 3, 5, 6
Page
Hilt-Dyson v. City of Chicago, 282 F.3d 456 (CA7
I ietkcovidscdbincscus skin talack nel enue aba ukiiees 3
Johnson v. Milwaukee Sch. of Eng’g, 258 F. Supp.
Bk OG Lae WE, BN) aos psc ekctaigessokbn shel cnanues os 3
Kang v. Bd. of Supervisors of La. State Univ., 75
Fed. Appx. 974 (CA5 2003), cert. denied, 541 US.
RST CN ii ss sisted a ected cio tcanenindbonuss 8
Knox v. State, 93 F.3d 1327 (CA7 1996) ...................cceeeeeees 5
LaCroix v. Sears, Roebuck & Co., 240 F.3d 688
AGE RL 5 9 aber SOO URE MSA RR Rr MIDE Ie RR SEN MOIE HS PCED NOS POR EED 7
Lyons v. England, 307 F.3d 1092 (CA9 2002) .................... 7
Markel v. Bd. of Regents of the Univ. of Wis. Sys.,
DTG Fk PO kL Bd oo bbb cco sts asseenewenvebdassciccearsecs 3
Marrero v. Goya of P.R., Inc., 304 F.3d 7 (CA1
7 | | ROSE Se CUTER Dok eae ml Se B/S RAV = Boe oer Re Ns leno Go ape oe 5
Mattern v. Eastman Kodak Co., 104 F.3d 702 (CA5
LE § PERE TES) ARE SO Let TENET IK TE EHEC ELE CNTR EB EBTE AR 1
Noviello v. City of Boston, 398 F.3d 76 (CA1 2005)........ 3,5
Passer v. Am. Chem. Soc’y, 935 F.2d 322 (CADC
RT Foi nceictacansccssnk saci caanss rks adit fae cceavgwanns 3, 5
Rabinovitiz v. Pena, 89 F.3d 482 (CA7 1996) .................... 10
Ray v. Henderson, 217 F.3d 1234 (CA9 2000) ........ 2,4, 5,6
Russell v. Principi, 257 F.3d 815 (CADC 2001)................ 10
Smith v. Sec. of Navy, 659 F.2d 1113 (CADC 1981)............. 4
Stone v. City of Indianapolis Pub. Utils. Div., 281
WB COO GT DE wicca ses GB bsacacdscreecsicncdpevarnete 2,3
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)............. 9
iv
TABLE OF AUTHORITIES — Continued
Page
Vasquez v. Snow, 75 Fed. Appx. 275 (CA5 2003),
cert. denied, 541 U.S. 936 (2004)...............ccsssscsssereceeeeees 8
White v. Burlington N. & Santa Fe Ry. Co., 364
Bae TU AAI PO i ai 5a casio aces nscoadheossasancbosoone 3,4
Williams v. Waste Mgmt. of Iil., 361 F.3d 1021 (CA7
MNT idisiubssed ga tase aAtlv dain sich tas aiceaiaaleipisianae lvecoustooamiat 2,3
Wyatt v. City of Boston, 35 F.3d 13 (CA1 1994) (per
PN icy shh de fase chieeebaisssd nadenicesessescsussusneuhsesdonbale 5
Yartzoff v. Thomas, 809 F.2d 1371 (CA9 1987).............00. 7
STATUTES:
Ms By IO) oii i ssssissc2 Cigcicecdavincoacsconseseddcceusantwasanabans 1
MD EFT i BO rise isi saciiicsninnbicdccesosassenthunssacancasandbcbeds 1
OTHER AUTHORITIES:
Joan M. Savage, Note: Adopting the EEOC Deterrence
Approach to the Adverse Employment Action Prong
in a Prima Facie Case for Title VII Retaliation, 46
Bas Bhs BOs Ae I wrk dich cosa bdnassgusscduscscnsoasscnsaancnoebents 4,6
U.S. Equal Employment Opportunity Comm’n
Compliance Manual, § 8 (May 1998) ...............ccceeeeeeceeeee 3
1
REPLY BRIEF FOR PETITIONERS
This Court should grant certiorari on both questions
presented. Respondents’ brief in opposition confirms that the
courts of appeal are in disarray regarding proper standards
for actionable retaliation under § 704(a) of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and action-
able discrimination under § 703(a), 42 U.S.C. § 2000e-2(a).
The Fifth Circuit rejected Petitioners’ retaliation claims
because none of the acts at issue (lower salaries; unjustified
poor performance reviews that resulted in disproportion-
ately lower raises and salaries, and disciplinary investiga-
tions) constituted an “adverse employment action,” which
the Fifth Circuit requires to be an “ultimate employment
decision.” Pet. App. 2-3; Mattern v. Eastman Kodak Co., 104
F.3d 702, 708-09 (CA5 1997). A majority of the courts of
appeals, although at times using the same “adverse em-
ployment action” phraseology, embrace a rationale and
standard for retaliation claims that is materially different
than that adopted by the Fifth Circuit. There is no consen-
sus among the courts of appeal regarding the appropriate
standard for analyzing retaliation claims; the difference in
legal standards is entrenched and important; and the
disparity in results among the circuits from the application
of the varying standards is untenable.
The Fifth Circuit also rejected Petitioners’ discrimina-
tion claims, applying its strict “ultimate employment deci-
sion” test. See Pet. App. at 3. Yet, the Eleventh Circuit has
held that “actions that affect compensation are considered
adverse employment actions,” specifically finding that “an
evaluation that directly disentitles an employee to a raise of
any significance is an adverse employment action under Title
VIL.” Gillis v. Ga. Dept of Corrections, 400 F.3d 883, 888
(CA11 2005). The Fifth Circuit here held the opposite.
This case is an ideal vehicle for resolving these splits of
authority because the Fifth Circuit decided this case solely on
the “ultimate employment decision” issue; there is no alterna-
tive basis for its holding. This Court should grant certiorari to
bring needed clarity to these important questions.
2
I. Certiorari Should Be Granted To Resolve The
Circuit Conflict Regarding The Proper Stan-
dard For Actionable Retaliation.
Contrary to Respondents’ assertion (BIO 5-11), courts
of appeal have not converged on a test for what constitutes
actionable retaliation. In attempting to paper over the deep
conflict that exists, Respondents assert two arguments: 1)
that the “ultimate employment decision” test is “largely the
same” as that used in most other circuits and differs only in
the margin between “material” and “serious” employment
actions required by some circuits and “ultimate” actions
required by the Fifth Circuit; and 2) that case law has
changed since the Ninth Circuit adopted an expansive
standard that Respondents admit conflicts with the Fifth
Circuit’s strict test. These attempts to downplay the conflict
are not persuasive; indeed, cases cited by Respondents
plainly illustrate the intractable split regarding the appro-
priate standard for retaliation claims.
1. At base, this is a conflict over whether discrimina-
tion and retaliation claims are subject to the same “adverse
action” standard, despite difference in language between the
two provisions. Pet. 23-27; Pet. App. 70. The Fifth Circuit
holds discrimination and retaliation claims are subject to the
same standard, requiring an “adverse employment action”
that actually is an “ultimate employment decision.” Pet. App.
at 2. Other circuits and the EEOC do not require even an
adverse employment action, and certainly not an ultimate
employment decision. See, e.g., Herrnreiter v. Chi. Hous.
Auth., 315 F.3d 742, 745 (CA7 2002) (Posner, J.) (“We do not
mean to suggest ... that retaliation, to be actionable under
Title VII (or other statutes), has to involve an adverse
employment action. It does not.”);' Ray v. Henderson, 217
‘ Another opinion by Judge Posner, Stone v. City of Indianapolis Pub.
Utils. Div., 281 F.3d 640 (CA7 2002), uses adverse employment action
language. Yet, the Seventh Circuit reads Herrnreiter as limiting Stone. See
Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1031, n.4 (CA7 2004) (noting
Herrnreiter was decided post-Stone and “retaliation claims need not always
involve an adverse action directly related to employment, just an adverse
(Continued on following page)
3
F.3d 1234, 1240-43 (CA9 2000) (adopting EEOC standard
and “hold{ing] that an action is cognizable as an adverse
employment action if it is reasonably likely to deter employ-
ees from engaging in protected activity”); U.S. Equal Em-
ployment Opportunity Comm’n Compliance Manual, § 8, at
14 (May 1998) (opining that the retaliation provision “set([s]
no qualifiers on the term ‘to discriminate,’ and therefore
prohibit[s] any discrimination that is reasonably likely to
deter protected activity.”); see also Noviello v. City of Boston,
398 F.3d 76, 88-90 (CA1 2005) (deferring to EEOC standard
when recognizing retaliatory harassment claim); Berry v.
Stevinson Chevrolet, 74 F.3d 980, 986 (CA10 1996) (rejecting
view that retaliation claim must be based on “formal prac-
tices linked to an existing employer/employee relationship”);
Passer v. Am. Chem. Soc’y, 935 F.2d 322, 331 (CADC 1991)
(retaliation is not limited “only to acts of retaliation that take
the form of cognizable employment actions”).”
action by an employer of some kind, depending on the facts”) (emphasis in
original). Thus, Respondents’ reliance on Beamon v. Marshall & Ilsley Trust
Co., Nos. 04-1521 & 04-2263, 2005 WL 1399307 (CA7 June 15, 2005) is
misplaced because it cited a pre-Herrnreiter case, Hilt-Dyson v. City of
Chicago, 282 F.3d 456 (CA7 2002), which in turn relied on Stone. Stone is
no longer good law. Williams, 361 F.3d at 1031, n.4.
Reliance on Markel v. Bd. of Regents of the Univ. of Wis. Sys., 276 F.3d
906 (CA7 2002), and Graube v. Lau Indus., 257 F.3d 723 (CA7 2001), also is
misplaced as both concerned discrimination not retaliation claims.
Standards for discrimination and retaliation claims should differ. See
Johnson v. Milwaukee Sch. of Eng’g, 258 F. Supp. 2d 896, 905-06 (E.D. Wis.
2003) (citiag Herrnreiter and Ray, holding “[a] Title VII discrimination
plaintiff must establish an adverse employment action. However, the same
is not true in a retaliation case.”).
* The split also results from confusion regarding the affect of the
definition of “tangible employment action” in Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998). Ellerth concerned employer liability for
sexual harassment. 524 U.S. at 761 (stating that the “tangible employment
action” definition was “for resolution of the vicarious liability issue . . . ”);
see also Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998) (holding
affirmative defense is available “[w)hen no tangible employment action is
taken”). Yet some courts have imported the “tangible employment action”
definition into all Title VII claims. See, e.g., White v. Burlington N. & Santa
Fe Ry. Co., 364 F.3d 789, 795-800 and n.1 (CA6 2004). Others have taken
(Continued on following page)
4
Unlike the Fifth Circuit’s categorical, “laundry list”
approach, these circuits and the EEOC focus not on the type
of employment action at issue, but upon the retaliatory
motive and the effects on the employee, which necessarily
requires a case-by-case approach. See Joan M. Savage, Note:
Adopting the EEOC Deterrence Approach to the Adverse
Employment Action Prong in a Prima Facie Case for Title VII
Retaliation, 46 B.C. L. Rev. 215, 216-17 (2004) (noting the
above circuits “employ a broad, case-by-case approach, which
focuses on the retaliatory motive rather than solely on the
severity of the action”); see also Smith v. Sec. of Navy, 659
F.2d 1113, 1119-20 and n.56 (CADC 1981).
Yet, under the Fifth Circuit’s strict test, the court
categorizes actions as “ultimate” or not, with only the former
supporting a claim. As a result, as shown in this case,
important questions of motive and cumulative effect are
dismissed by the analysis. The chill on an employee's will-
ingness to oppose discrimination is not considered, which can
emasculate effective enforcement of Title VII . Pet. at 19-20.
Moreover, even circuits that require “adverse employ-
ment action” nonetheless have explicitly rejected the Fifth
Circuit’s strict test. See, e.g., White, 364 F.3d at 795-800; id.
at 808-17 (Clay, J., concurring); see also BIO at 12, n.6 (citing
courts that have rejected Fifth Circuit’s categorical approach
and instead decide question on case-by-case basis).
In sum, the circuits have splintered, and this Court
should grant certiorari in this case to resolve the confu-
sion. See Savage, Note: Adopting the EEOC Deterrence
Approach, 46 B.C. L. REV. at 230-38.
the correct view that the “tangible employment action” definition should
not be incorporated into ai! Title VII claims, and specifically not into
retaliation claims. Ray, 217 F.2d at 1242, n.5 (rejecting argument that
Ellerth sets standard for retaliation claims); Hillig v. Rumsfeld, 381 F.3d
1028, 1031-32 (CA10 2004) (same and noting Ellerth does not set standard
for discrimination claims). Even if Elleth’s “tangible employment action”
standard applies to retaliation claims, it conflicts with the Fifth Circuit's
ultimate employment decision test. Pet. at 25-6.
5
2. The circuit split continues. Respondents acknow]l-
edge the split, but posit that the conflict is not as ea-
trenched as Ray states, (BIO 7-10), and that the cases Ray
relies upon are “outdated or simply wrong.” Jd. at 8. Yet,
cases decided since Ray clearly demonstrate that the
circuits remain deeply divided and show that the Ninth
Circuit is not alone in adopting the EEOC’s position.
For example, Respondents argue that the First Circuit in
Marrero v. Goya of P-R., Inc., 304 F.3d 7, 22-27 (CA1 2002),
moved away from an expansive retaliation standard articu-
lated in Wyatt v. City of Boston, 35 F.3d 13, 15-16 (CA1 1994)
(per curiam), which was cited approvingly in Ray. BIO at 8.
Respondents assert that Marrero rejected a retaliatory
harassment claim because it did not meet a “materially
adverse” employment action standard. Yet, Respondents
overlook that the First Circuit held this year that retaliatory
harassment is actionable. Noviello, 398 F.3d at 76, 88-90. In so
holding, the First Circuit recognized the circuit split and
deferred to the EEOC standard adopted in Ray. Id. at 90.
Respondents next mistakenly argue that the Seventh
Circuit has distanced itself from the broad language in
Knox v. State, 93 F.3d 1327, 1334 (CA7 1996), which was
cited approvingly in Ray. Rather, as noted by Judge
Posner, speaking for the Seventh Circuit in Herrnreiter:
We do not mean to suggest . . . that retaliation, to be
actionable under Title VII (or other statutes), has to
involve an adverse employment action. It does not.
Aviles v. Cornell Forge Co., 183 F.3d 598, 605-06 (7th
Cir. 1999); Aviles v. Cornell Forge Co., 241 F.3d 589,
593 (7th Cir. 2001); Passer v. American Chemical So-
ciety, 935 F.'2d 322, 331-32 (D.C. Cir. 1991); EEOC
Compliance Manual § 8, P 8008 (1998) (directive No.
915.003); see also Veprinsky v. Fluor Daniel, Inc., 87
F.3d 881, 891-92 (7th Cir. 1996). Some cases reach
this conclusion by interpreting “adverse employment
action” in the retaliation context as not requiring an
actual employment action; an example is Berry uv.
Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir.
1996), where the retaliation took the form of prefer-
ring charges of theft and forgery against an employee
6
who had filed a charge of discrimination See also
Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir.
2000). . .. We left open in [another] case the question
whether retaliation in other forms was actionable
under Title VII [or whether retaliation must take the
form of an adverse job action]. The cases cited earlier
in this paragraph have now resolved the issue by
holding that the provision is not so confined.
Ibid., 315 F.3d at 745-46 (emphasis in original); see also
Firestine v. Parkview Health Sys., 388 F.3d 229, 235 (CA7
2004) (retaliation is not limited to adverse job action). By
citing the EEOC, Ray, Passer and Berry as stating the
correct retaliation standard, the Seventh Circuit has
placed itself solidly in line with Ray.
Finally, Berry articulated a broad retaliation test that is in
line with Ray, but Respondents assert that the Tenth Circuit
has since retreated. BIO at 9. Yet, just a year ago, the Tenth
Circuit specifically held that “we have not abandoned the
[adverse action] definition we used in Berry . .. we have contin-
ued to liberally define the term ‘adverse employment action’
and take a case-by-case approach.” Hillig, 381 F.3d at 1031-33.
In sum, rather than converging on the Fifth Circuit's
narrow test, other courts of appeals are adhering to a more
expansive view of what constitutes actionable retaliation.
3. This split over the rationale and standard is not
merely a difference in semantics; application of the varying
tests is leading to divergent results. See Savage, Note: Adopt-
ing the EEOC Deterrence Approach, 46 B.C. L. REv. at 238.
Had Petitioners worked in other circuits they would have had
actionable retaliation claims, but because they worked in the
Fifth Circuit, they were adjudged to have no claims.
Contrary to Respondents’ characterization (BIO at 13-14),
Petitioners not only claim: that performance evaluations
standing alone are actionable, but also claim that the poor
performance reviews resulted in a lower raise when compared
to similarly-situated colleagues and that the cumulative effect
of the actions at issue constituted actionable retaliation. See
Pet. at 4, 7. Indeed, Petitioner Cardenas-Garcia’s performance
review specifically criticizes his protected activity, and this
7
retaliatory review of his performance directly resulted in a
reduced raise. See Pet. at 4.
Respondents’ own authority supports finding an actionable
retaliation claim. See Hernandez-Torres v. Intercontinental
Trading, Inc., 158 F.3d 438, 47 (CA1 1998) (noting retaliation
“encompasses a variety of adverse employment actions, includ-
ing ... unwarranted negative job evaluations”); LaCroix uv.
Sears, Roebuck & Co., 240 F.3d 688, 691-92 (CA8 2001) (noting
negative review would be actionable where used as a basis to
detrimentally alter terms or conditions of employment); Lyons
v. England, 307 F.3d 1092, 1118 (CA9 2002) (Gimplying that
performance evaluation that gives rise to further negative
employment action would violate Title VID); Yartzoff' v. Thomas,
809 F.2d 1371, 1376 (CA9 1987) (holding that “transfers of job
duties and undeserved performance ratings, if proven, would
constitute ‘adverse employment decisions’ cognizable under
[Title VIPs] retaliation provision”); see also Pet. at 20-22."
Respondents’ cases also confirm that the retaliatory
investigation into Petitioner Rasty’s alleged academic
dishonesty and interference with his research, Pet. at 5-7,
would be actionable outside the Fifth Circuit. See also Pet.
at 22. For example, in Haddon v. Executive Residence at
White House, 313 F.3d 1352, 1363-64 (CAFed. 2002), the
Federal Circuit cited Berry favorably for the proposition
* The case at bar is not merely misapplication of circuit precedent.
BIO at 14, and n.8. First, Felton v. Polles, 315 F.3d 470, 488 (CA5 2002),
did not suggest that a poor performance evaluation could be actionable
if it directly affected compensation. Rather the court assumed that
postponing a raise constituted actionable discrarmination. Yet, the Fifth
Circuit in this case held that a negative performance review, even if
enacted with retaliatory motive and even though it resulted in a reduced
raise, does not constitute an “ultimate employment action.” Pet. App. at 2.
Second, their reliance on Harrington v. Harris, 118 F.3d 359, 366 (CA5
1997), is misplaced, as discussed supra at 9-10. Finally, even if discrimi-
nation and retaliation cases should be analyzed under the same stan-
dards (and considering the pay raise issue alone), the reduced raises
Petitioners received as a direct result of their discriminatory/retaliatory
performance reviews is actionable in the Eleventh Circuit. See Gillis, 400
F.3d at 888 (any decision that “disentitles an employee to a raise of any
significance is an adverse employment action”).
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