Opposition Brief — Bussell v. Motorola, Inc. (No. 06-1499)

FILED

|

No. 06-1499 SEP 13 2007

IN THE

Supreme Court of the United States

MEGHAN BUSSELL,

Petitioner,

Vv.

MOTOROLA, INC., et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT

ADECCO USA, INC.

Curtis L. Mack

Counsel of Record

BRENNAN W. BOLT

McGuiRE Woops LLP

Attorneys for Respondent

Adecco USA, Inc.

1170 Peachtree Street NE

Suite 2100

Atlanta, Georgia 30309

(404) 443-5500

210948 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

CLERK |

SUPREME COURT. U.S._

i

QUESTIONS PRESENTED

1. Whether this case presents an appropriate vehicle for

resolving the conflict among the lower federal courts

regarding the proper standard of “direct evidence” to be

applied in employment discrimination cases?

2. Whether there is a split in the circuits regarding the

interpretation of Burlington Northern & Santa Fe Railway

Co. v. White, 548 U.S. __—, 126 S. Ct. 2405 (2006), with

respect to what constitutes an adverse act of retaliation under

Title VII of the Civil Rights Act of 1964, § 2000e-3(a)?

3. Whether the Eleventh Circuit complied with this

Court’s previous remand?

ii

STATEMENT PURSUANT TO RULE 29.6

Respondent, Adecco USA, Inc., is wholly owned by

Adecco, Inc. and its ultimate parent is Adecco SA, a foreign

corporation.

ili

TABLE OF CONTENTS

CPUS LIIING COEUR 0 See cence eee vane

STATEMENT PURSUANT TO RULE 29.6 ......

EEA NIE RAPUUASHEES 6 60a saw e ee nwies

TABLE OF CITED AUTHORITIES ............

eR RUNS ince caw enn 68 aA AN eC

ae TE CIE SU kk a Oe eee ees

District Court Proceedings .. 0... cease cee

Appellate Court Proceedings ................

REASONS FOR DENYING THE PETITION .....

I.

Il.

THIS CASE CANNOT RESOLVE “DIRECT

ROG EEE Ss bw nek din tnanwess

A. PETITIONER’S “DIRECT EVI-

DENCE” ISINADMISSIBLE. .......

B. PETITIONER WAIVED DIRECT

EVIDENCE ARGUMENTS. .........

THE CIRCUITS. APPLY WHITE

So. gt by eer eer teres wre ere

Page

10

lv

Contents

Permanent Employment with Motorola ....

Docked Pay & Extra Work ..............-

Fe a re

CREE 6 Sk ON aca hee Rah ween

Page

TABLE OF CITED AUTHORITIES

Page

Cases: .

Arnold vy. Tuskegee University, 212 Fed. Appx. 803

la AE ROSE ORE a etrerari rere tran are 14

Baldwin v. Blue Cross/Blue Shield of Alabama,

ge PE EE lak & ee. 1s ¢ Se 18

Burlington Northern & Santa Fe Railway Co. v.

White, 548 U.S. _, 126 S. Ct. 2405 (2006) ...passim

Bussell v. Motorola, Inc., 141 Fed. Appx. 819

ua S| ree err ree 5

Carden v. Westinghouse Electric Corp. , 850 F.2d 996

I Waa pa 55-54 acs be ON MOO 8

Carter v. George Washington University, 387 F.3d

gy kk kas oko eR 9,17

Ccicsmann vy. Sallada, 2006 WL 3611729 (4" Cir.

SSIS URES Sg ap oe cet rae a 20

Cedeck v. Hamiltonian Federal Savings & Loan

Association, 551 F.2d 1136 (8th Cir. 1977) ..... 8

Clingman v. Beaver, 544 U.S. 581 (2005) ........ 10

Conway v. California Adult Authority, 396 U.S. 107

ROBES rp ia ie ener eer Seer 9

vi

Cited Authorities

Page

Cooper Industries, Inc. v. Aviall Services, Inc.,

543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548

CRO aos he ie ew Aes oe Sa Res 10

Crosby v. Mobile County Personnel Bd., Case No.

05-17039, 2007 WL 245126 (11" Cir. Jan. 30,

NE oa a AS ee eS oe 14

Farley v. American Cast Iron Pipe Co,, 115 F.3d 1548

ChAT Ss SOE coca bec ee wee cup kewenenes 12, 18

Gupta v. Florida Board of Regents, 212 F.3d 571

Be as NE kk Ses be bone Kendo ceases 5

Halloway v. Milwaukee County, 180 F.3d 820

CP Ca: Te i esc baa wee keeeekans 7-8, 16

Higgins v. Gonzales, 481 F.3d 578 (8" Cir. 2007) ... 20, 21

Holtzclaw v. DSC Communications Corp., 255 F.3d

RE TA Es gain Ada be Labeled 9,17

James v. Watt, 716 F.2d 71 (1st Cir. 1983) ........ 13

McAdams v. Harvey, 213 Fed. Appx. 926 (11" Cir.

i eee Re eee Tey ee ee ee 14

McGowan vy. City of Eufala, 472 F.3d 736 (10" Cir.

BR SX es 550 Cue ee eee 15,17, 20

Vil

Cited Authorities

Page

Mendoza v. Borden Inc., 195 F.3d 1238 (11 Cir.

PEE ich a Ve Se AK ceS Wk Ad eRe es Gee a, ia

Oncale v. Sundower Offshore Services, 523 U.S. 75

DE 654 boy ove andar ns OS tee are rk 12

Pennsylvania State Police v. Suders, 124 S. Ct. 2342

NS ik ce cheep e basa bees eae ease 12

Rivera-Martinez v. Commonwealth of Puerto Rico,

OT Wi, 1G0GF CE" CR Bt) ow ov bas ccc nee 20

Rojas v. Florida, 285 F.3d 1339 (11" Cir. 2002) ... 8, 16

Schmidt v. Canadian Nat’l Ry. Corp., 2007

eS EY ag Os ee Ser Ee 20

Skillsky v. Lucky Stores, Inc., 893 F.2d 1088 (9" Cir.

Ns i es a ee g

Strong v. University HealthCare System, LLC,

AS2Z F.36 GG2 (5 Ce. ZIT) ic ec vines iD, £1

Taylor v. Freeland & Kronz, 503 U.S. 638, 112

S. Ct. 1644, 118 L. Ed. 2d 280 (1992) ........ 10, 13

Walton v. Johnson & Johnson Servs., Inc., 347 F.3d

ape eb ag & A: eae een nena 1s vere 18

Watson v. Adecco Employment Services, Inc.,

252 F.Supp.2d 1347 (M.D. Fla. 2003) ......... 8

vill

Cited Authorities

Page

Youakim yv. Miller, 425 U.S. 231, 96 S.Ct. 1399,

RR re a eer 10

Zaben vy. Air Prods. & Chems., Inc., 129 F.3d 1453

i ON EE re yi & 16

Statute:

Title VII of the Civil Rights Act of 1964,

EEE 3

l

INTRODUCTION

With respect to the first issue identified by Petitioner, this

case is not an appropriate vehicle to resolve the apparent split

among the federal courts concerning the proper standard of

“direct evidence” to be applied within the context of an

employment discrimination case. The principal reason that this

matter is not properly postured to resolve this conflict is that

the evidence which Petitioner relies upon as direct evidence of

retaliation is in fact inadmissible hearsay, and Petitioner never

argued to the courts below that she had direct evidence of

constructive discharge or sexual harassment. Accordingly,

Petitioner is precluded from making such an assertion at this

time. Moreover, there are other independent grounds for

dismissing Plaintiff's claims. Complicating the issue further is

the fact the Court cannot reach this issue without overturning

fact findings adverse to Petitioner. This case is also not proper

for resolving the split in the circuits because it is not binding

precedent as the Eleventh Circuit’s opinion in the case sub judice

is unpublished in the Federal Reporter.

As to the second issue stated in the petition, there is no

conflict among the circuits regarding the interpretation of

Burlington Northern & Santa Fe Railway Co. v. White, 548

U.S. __, 1268S. Ct. 2405 (2006), with respect to what constitutes

an adverse act of retaliation under Title VII of the Civil Rights

Act of 1964, § 2000e-3(a). Rather, the Eleventh Circuit expressly

adopted and applied the standard set forth by this Court in White

for retaliation cases. Even if there was a conflict among the

circuits, which Respondent denies, the Court should deny the

Petition for Writ of Certiorari because the Court’s decision in

White is relatively recent and the courts of appeals have not yet

had an opportunity to resolve any inconsistencies in their

jurisprudence.

2

It is clear that Petitioner’s request for certiorari is largely

founded on her dissatisfaction with the lower courts’ findings

of fact and their application of extant law in this case.

Contrary to Supreme Court Rule 10, the Petition for Writ of

Certiorari asks this Court to make evidentiary rulings and

reverse the factual findings :nade by the courts below. In

support of this inappropriate request, Petitioner relies on

evidence that the courts below correctly determined was

inadmissible hearsay. Accordingly, the instant Petition for

Writ of Certiorari should be denied in its entirety.

STATEMENT OF CASE

In this case Petitioner alleged sexual harassment,

retaliation, and constructive discharge in violation of Title

VII of the Civil Rights Act of 1964, as amended, and in

violation of the Florida Civil Rights Act. None of Petitioner’s

claims survived at the district court level. On appeal, the

Eleventh Circuit Court of Appeals (“Eleventh Circuit”)

affirmed the United States District Court for the Southern

District of Florida’s (“District Court”) dismissal of

Petitioner’s claims on summary judgment.

District Court Proceedings

Respondent Adecco filed a Motion for Summary

Judgment on May 1, 2003 and Motorola filed its Motion for

Summary Judgment on May 5, 2003. The District Court heard

oral argument on the Motions on August 22, 2003. After

deliberating for seven months, the District Court granted the

motions, dismissing Petitioner’s claims for hostile

environment harassment, retaliation, and constructive

discharge in their entirety.

3

With respect to its decision to dismiss Petitioner’s hostile

environment claim, the District Court relied upon Mendoza

v. Borden Inc., 195 F.3d 1238, 1244 (11% Cir. 1999), setting

forth the elements for a prima facie case' of hostile

environment harassment. Using this standard and applying

it to the facts in a light most favorable to Petitioner, * the

District Court found that Petitioner failed to establish a prima

facie case of sexual harassment. (R3-153-14-19). For

example, many of the alleged harasser’s comments, such as

mentioning strip clubs to male and female coworkers alike

and calling Petitioner’s boyfriend a “dog,” were not based

on Petitioner’s sex as required by Mendoza. Likewise, the

District Court concluded that the alleged instances of

touching and other conduct by the alleged harassers were

not so “frequent, severe, or pervasive to constitute actionable

sexual harassment... .” (R3-153-23). Accordingly, the

District Court dismissed Petitioner’s sexual harassment claim

and granted summary judgment in Respondents’ favor.

With respect to her retaliation claim, Petitioner argued

in response to Respondents’ motions for summary judgment

that she had direct evidence of retaliation. Specifically,

Petitioner alleged that she was told by Tom Karge, her Adecco

first line supervisor, that Laila Pennington, her Motorola first

line supervisor, had made it impossible for her to become a

permanent Motorola employee and that Motorola would not

hire her because she “complained too much.” (R2-78-167-

70, R2-79-268-70). Both Respondents argued that such

1. Petitioner never asserted to the District Court that she had

direct evidence of sexual harassment and, as such, the District Court

applied analysis appropriate for a circumstantial case of harassment.

2. The facts that the District Court relied upon can be found in

the record at R3-153-2-9.

4

evidence was hearsay and, therefore, not admissible, reliable

or probative of Petitioner’s retaliation claim. Ultimately, the

District Court rejected Petitioner’s direct evidence argument

because it made a factual determination that Petitioner was

never denied a permanent position:

[T]here is no evidence that Bussell was denied a

permanent position at Motorola. Evidence has

been submitted which shows that Bussell was

never eligible for and thus, was never denied a

permanent position at Motorola. The fact that she

may have wanted or even expected to receive a

permanent position at some time in the future is

irrelevant.

Thus, Petitioner’s retaliation claim was dismissed by the

District Court along with her other claims. (R3-153-22-23).

Appellate Court Proceedings

On appeal to the Eleventh Circuit, Petitioner asserted,

by brief and in oral argument, that the District Court’s

decision dismissing all of her claims was erroneous.

Specifically, Petitioner argued that the District Court erred

when it found that the record did not support a finding that

the alleged harassment was sufficiently severe or pervasive

to be actionable. Petitioner further argued that the District

Court erred in failing to find direct evidence of retaliation

and in dismissing her constructive discharge claim.°

3. Again, Petitioner never alleged she had direct evidence of

sexual harassment or constructive discharge. ay acd Ae ae

5

A three-judge panel of the Eleventh Circuit reviewed the

case de novo. Based on its factual findings‘ and relying on

Gupta v. Florida Board of Regents , 212 F.3d 571 (11" Cir.

2000), the three-judge panel decided, per curiam, that

Petitioner had failed to establish a prima facie case of hostile

environment harassment. Key to its reasoning, the panel

opined that many of the comments made by the alleged

harasser in the workplace were made to men and women

alike, and, therefore, were not based on Petitioner’s sex. The

panel further noted that 10-16 alleged instances of touching

by a co-worker over the period of several months were not

severe Or pervasive enough to constitute actionable

harassment. The panel also noted that many of the cases cited

by Petitioner involved harassment by a supervisor, not by a

coworker, and that Petitioner failed to provide “an analogous

holding that such alleged behavior is sufficiently severe or

pervasive to constitute a hostile workplace sexual harassment

claim.” Bussell, 141 Fed. Appx. at 823.

Petitioner also argued to the panel that she had direct

evidence to support her retaliation claim. The panel, however,

affirmed that there was no error by the District Court in

rejecting Petitioner’s retaliation claim, stating “there is no

record evidence to support Bussell suffered from an adverse

action by either of the defendants.” Jd. The panel did not

elaborate further, and simply concurred and affirmed the

District Court’s analysis and decision regarding the retaliation

claim. Accordingly, in an unpublished decision, the panel

affirmed the district court’s grant of summary judgment.

Finally, the Eleventh Circuit rejected Petitioner’s request for

rehearing en banc.

4. The facts that the Eleventh Circuit found probative appear

at Bussell v. Motorola, Inc., 141 Fed. Appx. 819, 820-22 (11" Cir.

2005).

6

Petitioner then filed a petition for writ of certiorari with

this Court. On October 2, 2006, the Court granted the petition

for writ of certiorari vacating the judgment and remanding

to the Eleventh Circuit “for further consideration in light of

Burlington Northern & Santa Fe Railway v. White, 548 U.S.

__ (2006).” (Petition for Cert. at 3a). On remand and in

another unpublished decision, the Eleventh Circuit

acknowledged the Court’s remand, reevaluated the facts in

light of this Court’s holding in White, and held that its

previous decision was not affected by White:

In [ White, the Supreme Court] held that “the anti-

retaliation provision does not confine the actions

and harms it forbids to those that are related to

employment or occur at the workplace,” and “the

provision covers those (and only those) employer

actions that would have been materially adverse

to a reasonable employee or job applicant.” ...

Neither holding applies to Bussell’s appeal. The

only alleged retaliatory acts of which Bussell

complained were either employment related, and

the alleged retaliatory acts were either not

retaliatory or were not acts that “would have been

materially adverse to a reasonable employee.”

(Petition for Cert. at 2a). This Petition for Writ of Certiorari

ensued.

7

REASONS FOR DENYING THE PETITION

I. THIS CASE CANNOT RESOLVE “DIRECT

EVIDENCE” SPLIT

There does appear to be a split among the federal circuit

courts of appeal and lower federal courts as to what

constitutes “direct evidence” in the context of an employment

discrimination case; however, this case is not properly

postured to resolve the conflict because Petitioner’s so-called

“direct evidence” of retaliation is inadmissible hearsay.

Furthermore, Petitioner never asserted below that she had

direct evidence of constructive discharge and sexual

harassment and, therefore, cannot propound such argument

at this time. Moreover, the Court would have to make

evidentiary rulings and overturn fact findings adverse to

Petitioner to address this issue, and the Eleventh Circuit’s

decision is unpublished in the Federal Reporter. Thus, as

explained more fully below, this case does not provide an

appropriate vehicle for resolving the circuit split regarding

the proper standard of “direct evidence.”

A. PETITIONER’S “DIRECT EVIDENCE” IS

INADMISSIBLE.

Petitioner alleges that she was told by Tom Karge, her

Adecco first line supervisor, that Laila Pennington, her

Motorola first line supervisor, had made it impossible for

her to advance and that Respondent Motorola would not hire

her permanently because of her complaints. (R2-78-167-70,

R2-79-268-70). This constitutes the entire scope of

Petitioner’s “direct evidence” of retaliation. On it is face,

this purported statement is inadmissible hearsay within

hearsay. Halloway v. Milwaukee County, 180 F.3d 820, 825

8

(7™ Cir. 1999) (multilevel statement was inadmissible hearsay

because the employees informing the plaintiff of the alleged

discriminatory statement did not act within their scope of

duties in reporting the statement to the plaintiff); Zaben v.

Air Prods. & Chems., Inc., 129 F.3d 1453, 1455-57 (11" Cir.

1997) (comments by low-level supervisors repeating

management’s discriminatory comments are inadmissible

hearsay), accord Rojas v. Florida, 285 F.3d 1339, 1343 n.3

(11" Cir. 2002); Carden v. Westinghouse Electric Corp., 850

F.2d 996, 1002 (3d Cir. 1988) (same); Cedeck v. Hamiltonian

Federal Savings & Loan Association, 551 F.2d 1136 (8" Cir.

1977) (statement by manager was inadmissible hearsay

because it contained a reiteration of what an unknown person

told him). Furthermore, Karge, an Adecco employee, cannot

make an admission on behalf of Respondent Motorola or

vice versa. See Skillsky v. Lucky Stores, Inc., 893 F.2d 1088,

1092 (9" Cir. 1990) (multiple hearsay testimony about what

a supervisor for one defendant was told by an executive

regarding what the executive was told by another defendant

was inadmissible); Watson v. Adecco Employment Services,

Inc., 252 F. Supp. 2d 1347, 1352-53 (M.D. Fla. 2003)

(Adecco representative’s purported statement to temporary

workers that Adecco’s client did not want them to return to

work was inadmissible hearsay). Indeed, Petitioner admitted

that no one at Motorola ever told her she would not become

a permanent employee. (R2-78-167-70, R2-79-268-70).

Therefore, the statement is inadmissible and was properly

discounted by the lower courts in this case.

Even without regard to the inherent hearsay problems

associated with the statement asserted above, Petitioner’s

retaliation claim would still fail on entirely independent

grounds. First, there was no evidence in the record that

Motorola or Adecco made any decision regarding a permanent

9

position for Petitioner with Motorola.*° (R2-79-267-69). To

the contrary, there was undisputed evidence in the record

that Motorola was in the process of downsizing employees

and was not hiring anyone. (R2-79-266; R2-82-62). The

record further revealed that Petitioner was ineligible for

permanent employment with Motorola as she had not yet

been in her temporary assignment for a year.° (R2-82-57-

58). Since Petitioner was never eligible for permanent

employment at Motorola in the first instance, her retaliation

claim that she was denied permanent employment simply

does not bear scrutiny. Accordingly, the findings and

conclusions of the courts below that Petitioner was not

retaliated against are both legally and factually correct. See

e.g., Carter v. George Washington University, 387 F.3d 872,

883 (D.C. Cir. 2004) (plaintiff who was not qualified for

position sought failed to establish prima facie case of

retaliation); Holtzclaw v. DSC Communications Corp., 255

F.3d 254, 260 (5" Cir. 2001) (same). Consequently, the

conflict regarding direct evidence in employment

discrimination cases cannot be resolved based on the facts

of this case. When the Petition for Writ of Certiorari is view

under these circumstances, Petitioner is clearly requesting

that this Court grant certiorari to write an opinion in an

advisory capacity, which this Court expressly loathes.

Conway v. California Adult Authority, 396 U.S. 107, 110

(1969) (“Were we to pass upon the purely artificial and

hypothetical issue tendered by the petition for certiorari we

5. The record shows that Laila Pennington made no hiring

decisions regarding Petitioner or anyone else. (R2-83-101).

6. When Petitioner left her assignment at Motorola at the end

of January, 2001, she had been employed there for about eight

months. She had only been there five months when she first

complained of any harassment in October 2000.

ot 7]

10

would not only in effect be rendering an advisory opinion

but also lending ourselves to an unjustifiable intrusion upon

the time of this Court.”)

B. PETITIONER WAIVED DIRECT EVIDENCE

ARGUMENTS.

At page 12 of the Petition for Writ of Certiorari,

Petitioner asserts that Adecco employee Kathy Brodeur stated

that Petitioner “was forced out due to continuing harassment”

and that Thomas Karge made a written notation that Petitioner

“resigned due to continuing harassment” and that both

statements constitute direct evidence of constructive

discharge and sexual harassment. Because Petitioner failed

to argue in the courts below that there was direct evidence,

she is now precluded from raising that issue in this Court in

her Petition for Writ of Certiorari. Clingman v. Beaver, 544

U.S. 581, 598 (2005) (Supreme Court ordinarily does not

consider issues “neither raised nor decided below”); Cooper

Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 168-

169, 125 S. Ct. 577, 160 L. Ed. 2d 548 (2004); Youakim v.

Miller, 425 U.S. 231, 234, 96 S. Ct. 1399, 1401, 47 L. Ed.

2d 701 (1976) (“[o]rdinarily, this Court does not decide

questions not raised or resolved in the lower court[s]”). As

this Court has opined, “allowing the able counsel who argue

before us to alter these questions or to devise additional

questions at the last minute would thwart this system.” Taylor

v. Freeland & Kronz, 503 U.S. 638, 646, 112 S. Ct. 1644,

118 L. Ed. 2d 280 (1992). Thus, Petitioner’s arguments are

not properly before this Court and must be rejected.

Clingman, 544 U:S. at 598.

11

Not only are these arguments procedurally barred from

this Court’s consideration, but there was an independently

sufficient ground for dismissing this claim as well. By her

own admission, Petitioner states that at the time she resigned

from her assignment at Motorola on January 31, 2001, the

alleged harassment had been stopped for at least a month:

Q. Okay. So [the alleged harasser] stopped

touching you around late November, early

December [2000]?

A. Right.

(R2-79-304-306).

Q. And let me just, so I’m clear, because I’m

trying to get it clear in my head. Is it safe to say

then after mid-December, [the alleged harasser]

made no other comments to you about the size of

your breasts or your hair growing because of sex,

from mid-December through January 31st?

ttt:

A. After December 26th, was the last time that I

ever spoke to [the alleged harasser].

(R2-78-165-66). Moreover, a week prior to her resignation

on January 31, 2001, Motorola removed the alleged harasser

from Petitioner’s department, and placed him on a completely

separate floor. (R3-153-7; R2-81-29; R2-78-119-20).

Accordingly, Petitioner was not in fact subject to any hostile

or unlawful conditions at the time she voluntarily left her

12

Motorola assignment. Oncale v. Sundower Offshore Services,

523 U.S. 75, 80 (1998) (isolated incidents will not satisfy

the severe and pervasive harassment standard); Mendoza v.

Borden, Inc., 195 F.3d 1238, 1246 (11" Cir. 1999) (same).

Based on this undisputed record evidence, it was

impossible for Petitioner to have sustained a constructive

discharge claim with or without the alleged statements

attributed Brodeur and Karge. Indeed, this Court has

expressly held that to prevail on a claim of constructive

discharge, the law requires that conditions be so unbearable

that a reasonable person would feel compelled to resign.

Pennsylvania State Police v. Suders, 124 §. Ct. 2342, 2351,

2354 (2004) (a plaintiff may only succeed on a constructive

discharge claim if she demonstrates that “working conditions

[were] so intolerable that a reasonable person in [her] position

would have felt compelled to resign.”) Petitioner’s claim does

not meet this standard. More specifically, since the

harassment had stopped and the harasser had been removed

from Petitioner’s department and work space, her work place

was not so intolerable that it was reasonable for her to resign

at that time. ’ /d.

Furthermore, while Petitioner may have ceased working

at the Motorola facility, she was not in fact terminated or

7. Moreover, Petitioner’s chief motivation for leaving Motorola

was not that she was still experiencing harassment, but the fact that the

alleged harasser had not been terminated as a result of her complaints.

(R2-78-118-19). Her dissatisfaction with Motorola’s business decisions

simply cannot sustain a claim of constructive discharge. See Farley v.

American Cast Iron Pipe Co., 115 F.3d 1548, 1555 (11 Cir. 1997)

(“Although [plaintiff] remains unsatisfied with [defendant's] resolution

of her complaint, we have never stated ... that a complainant in a

discrimination action has a right to the remedy of her choice”).

13

separated from her employment with Respondent Adecco.

Indeed, upon Petitioner’s departure from the Motorola

facility, Adecco immediately found her another assignment

with a different Adecco client. (R3-153-9; R2-78-170-71;

R2-79-208-09; R2-82-119-20, 175, 227-28, 231-33). Thus,

Petitioner remained in Adecco’s employ and was not in fact

“discharged,” constructively or otherwise.

In sum, since Petitioner, by her own admission, was not

suffering from any form of harassment at the time of leaving

her assignment and by virtue of the fact that she was still

employed by Adecco, it was not possible for Petitioner to

sustain a viable claim for constructive discharge. No finding

of direct evidence by the lower courts would have changed

this outcome. Thus, this case will not, as Petitioner

erroneously asserts, resolve the current conflict among the

federal courts regarding direct evidence to apply in the

employment discrimination context. Therefore, the Petition

for Writ of Certiorari should be denied as to this issue. More

importantly, Petitioner cannot fail to raise an issue in the

courts below, wait to see which way the wind is blowing,

and then shift gears before the appellate courts. Cf Taylor,

503 U.S. at 646 ( “allowing the able counsel who argue before

us to alter these questions or to devise additional questions

at the last minute would thwart this system.”); James v. Watt,

716 F.2d 71, 78 (1* Cir. 1983) (allowing amendment asserting

new theory after district court dismissal “would allow

plaintiffs to pursue a case to judgment and then, if they lose,

to reopen the case . . . to take account of the court’s decision

. a practice which[ ] should not be sanctioned in the

absence of compelling circumstances”).

14

Il. THE CIRCUITS APPLY WHITE UNIFORMLY

Petitioner’s assertion that there is a split between the

Eleventh Circuit and other courts of appeal regarding the

interpretation of White is illusory. Rather, the Eleventh Circuit

has expressly adopted this Court’s analysis in White regarding

Title VII retaliation cases:

The Supreme Court recently addressed the adverse

employment action element of a Title VII

retaliation claim in [White]. The Court held that

“the scope of Title VII’s anti-retaliation provision

extends beyond workplace-related or

employment-related retaliatory acts and harm” and

therefore “is not limited to discriminatory actions

that affect the terms and conditions of

employment.” /d. at 2412-14. Thus, an employee

need not show an adverse employment action

(which was this circuit’s pre-Burlington Northern

retaliatory act standard), but rather, must show that

“a reasonable employee would have found the

challenged action materially adverse.” Jd. at 2415.

In other words, the materially adverse employment

action must discourage a reasonable employee

from making or supporting a charge of

discrimination. /d.

Crosby v. Mobile County Personnel Bd., Case No. 05-17039,

2007 WL 245126 (11" Cir. Jan. 30, 2007). See also McAdams

v. Harvey, 213 Fed. Appx. 926, 927 (11" Cir. 2007); Arnold

v. Tuskegee University, 212 Fed. Appx. 803, 810 n.4 (11"

Cir. 2006) (“the plaintiff need not show that she suffered an

action affecting the terms and conditions of her employment

(which was this court’s standard before Burlington

15

Northerny’). Accordingly, Petitioner’s claims to the contrary

notwithstanding, the Eleventh Circuit, like its sister circuits,

undeniably follows the standard set forth in White for Title VII

retaliation cases. See, e.g., Strong v. University HealthCare

System, LLC, 482 F.3d 802, 808 (5" Cir. 2007) (“Burlington

redefined an ‘adverse employment action’ to include actions by

an employer that ‘well might have dissuaded a reasonable

worker from making or supporting a charge of

discrimination.’”); McGowan v. City of Eufala, 472 F.3d 736,

742 (10" Cir. 2006) (“an employer’s action is adverse under

Title VII if it ‘well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination,” but

“(t]he materiality of a claimed adverse action is to be determined

objectively; ‘petty slights, minor annoyances, and simple lack

of good manners’ will not deter ‘a reasonable worker from

making or supporting a charge of discrimination.””). Therefore,

the Eleventh Circuit is not at odds with other courts of appeals.

Not only is the Eleventh Circuit’s test for adverse action

consistent with White and decisions from other circuits, but the

Eleventh Circuit also correctly applied White in the case sub

judice. The Eleventh Circuit’s holding that the alleged retaliatory

acts were not retaliatory or were not acts that “would have been

materially adverse to a reasonable employee” is completely

consistent with this Court’s opinion in White. As this Court

opined in White, what constitutes an adverse action is expressed

“in general terms because the significance of any given act of

retaliation will often depend upon the particular circumstances.

Context matters.” White, 126 S. Ct. at 2415 (emphasis added).

Accordingly, not all harms constitute actionable retaliation. /d.

(“we believe it is important to separate significant from trivial

harms.”). Therefore, the Eleventh Circuit’s holding that none

of the alleged retaliatory acts were either motivated by

Petitioner’s complaint of harassment and/or materially adverse

is entirely consistent with White.

is

16

Nevertheless, Petitioner challenges the lower courts’ fact

findings and analysis by arguing she was retaliated against when

1) she did not become a permanent Motorola employee; 2) she

was docked pay, 3) given extra work and 4) she was terminated.

These contentions are wholly without merit, namely because

they are not supported by the fact findings from the lower courts,

and she cannot prove that these alleged acts were either

motivated by her protected conduct or materially adverse. For

the following reasons, the Petition for Writ of Certiorari should

be denied:

Permanent Employment with Motorola

Petitioner contends that she was retaliated against when

she did not become a permanent employee of Motorola after

complaining about harassment. More specifically, Petitioner

opines that Karge told her that Pennington told him that Motorola

would not hire her “because she complained too much.” The

Eleventh Circuit correctly held that these allegations cannot

constitute retaliation because no action, materially adverse or

otherwise, ever took place. First, the purported statements

Petitioner attributed to Karge constitute inadmissible hearsay.*

In fact, Petitioner concedes that no Motorola agent ever told

her she would not be hired permanently because she engaged in

protected activity. (R2-79-267-69). More significantly, in this

8. Halloway v. Milwaukee County, 180 F.3d 820, 825 (7 Cir.

1999) (multilevel statement was inadmissible hearsay because the

employees informing the plaintiff of the alleged discriminatory

statement did not act within their scope of duties in reporting the

statement to the plaintiff); Zaben v. Air Prods. & Chems., Inc.,

129 F.3d 1453, 1455-57 (11" Cir. 1997) (comments by low-level

supervisors repeating management's discriminatory comments are

inadmissible hearsay), accord Rojas v. Florida, 285 F.3d 1339, 1343

n.3 (11" Cir. 2002).

17

case, there is no evidence that any decision was made or any

action taken with regard to Petitioner becoming a permanent

Motorola employee. Accordingly, the Eleventh Circuit’s grant

of summary judgment is consistent with White, in which this

court confirmed that some type of adverse action is required.

White, 126 S. Ct. at 2415 (holding that discrimination, i.e., a

“material adversity,” is required to prove a prima facie case

of retaliation); see also McGowan v. City of Eufala, 472 F.3d

at 742 (affirming summary judgment on retaliation claim

because no decision was made regarding the shift change).

As no decision was made, Petitioner cannot meet the

“material adversity” requirement.

The undisputed evidence shows that Motorola was in

the process of downsizing its operations and was not taking

on any permanent hires at the time of Petitioner’s protected

activity. (R2-79-266; R2-82-62). The record also shows that

Pennington made no hiring decisions regarding Petitioner.

(R2-83-101). Finally, Petitioner, having worked at the

Motorola facility for less than a year, was not eligible for

permanent employment at Motorola.’ (R2-82-57-58). Thus,

in the total absence of any action being taken for or against

Petitioner regarding permanent employment with Motorola,

9. As of December 1999, a temporary worker was required to work

at Motorola for at least a year before being considered for permanent

employment. (R2-82-57-58). At the time Petitioner first complained of

harassment in October 2000, she had only been working at the Motorola

facility for five months. When she left at the end of January 2001, she

had only been employed for about eight months. Therefore, Petitioner

was well over four months shy of being eligible for permanent

employment when she engaged in protected activity. See, e.g., Carter v.

George Washington University, 387 F.3d 872, 883 (D.C. Cir. 2004)

(plaintiff who was not qualified for position sought failed to establish

prima facie of retaliation); Holtzclaw v. DSC Communications Corp.,

255 F.3d 254, 260 (S" Cir. 2001) (same).

18

there is not a materially adverse action for which either

Respondent can be held liable.'® As such, there is nothing

inconsistent between the Eleventh Circuit’s holding and this

Court’s decision in White.

Docked Pay & Extra Work

Petitioner asserts that she suffered a materially adverse

action because she was “docked” pay one day when she left

work early and on her last day at Motorola during which she

performed no work. Petitioner’s assertions are without merit.

Petitioner admits that she was paid for the hours she worked

on the day she left early. (R2-78-157-61). While Petitioner

may have left early because she was “upset” about the

harassment investigation “taking too long,” there is no

evidence that Petitioner was denied pay because she

complained about harassment.'' Being docked pay implies a

10. Again, for the Court to hold otherwise, it would have to

overturn the lower courts’ fact findings adverse to Petitioner.

11. Although Petitioner claims she was ill because she was upset

with the investigation, Plaintiff's disagreement with Defendants”

response to her complaints does not establish a violation of Title VII.

Farley v. American Cast Iron Pipe Co,, 115 F.3d 1548, 1555 (11" Cir.

1997) (“Although [plaintiff] remains unsatisfied with [defendant’s]

resolution of her complaint, we have never stated . . . that a complainant

in a discrimination action has a right to the remedy of her choice”).

Moreover, Petitioner cannot complain about the reasonableness of the

investigation if the employer’s actions stop the harassment. See Walton

v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1278 (11" Cir. 2003)

(“[W]here the substantive measures taken by the employer are sufficient

to address the harassing behavior, complaints about the process under

which those measures are adopted ring hollow”); see also Baldwin v.

Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1304-05 (11" Cir.

2007) (“a reasonable result cures an unreasonable process. It does so

because Title Vil is concerned with preventing discrimination, not with

perfecting process.”).

19

basic entitlement in the first instance. Here, Petitioner was

not paid because she did not work the hours in question.

(/d.) There is no evidence in the record that Respondents

were required to pay Petitioner for hours she did not work.

If Respondents failed to pay for hours actually worked or

deducted from hours worked, then, perhaps, the Burlington

analysis would come into play. However, just as with the

permanent employment issue discussed supra, there is no

adverse action here in fact. Moreover, there is no retaliatory

intent—Petitioner was not sent home because of her

complaints, but because she was “ill.” (R2-93-128).

Similarly, Petitioner provided no proof, other than her own

supposition, that she received more work than her

counterparts. There is simply no evidence that work

assignments were made based on any unlawful

considerations.

Alleged Termination

Petitioner asserts that she was terminated from her

Motorola assignment for complaining of harassment. This

is not supported by the evidence. Adecco never terminated

Petitioner from its employ. A week after Motorola completed

its investigation of Petitioner’s complaint and removed the

alleged harasser from her department, Petitioner told her

Adecco supervisor that she was dissatisfied with the outcome

of the investigation and did not want to be assigned to

Motorola any longer. Honoring her request, Adecco assigned

Petitioner to work for CIGNA; however, she quit that

assignment apparently because she did not like it. Thus, as

indicated by the record, Adecco’s act of reassigning Petitioner

to another client was simply an attempt to accommodate her

obvious disdain for her Motorola supervisor and coworkers.

There was no other solution, as far as Adecco was concerned,

20

since Petitioner did not like working with Pennington and

the only other option would be to work in the department to

which the harasser had been moved. In the totality of the

circumstances, it is disingenuous and unreasonable, to claim

that such reassignment was an act of retaliation, especially

when Adecco went above and beyond in helping Petitioner

secure other employment opportunities, including a

permanent job with United Healthcare. See Higgins v.

Gonzales, 481 F.3d 578, 590 (8" Cir. 2007) (holding that a

transfer was not materially adverse under White where

transfer came after plaintiff's two-year term position ended

and she was offered and accepted a new position).

As such, the Eleventh Circuit’s decision finding that the

alleged retaliatory acts were either not retaliatory or not

materially adverse is consistent with the analysis in White

and decisions by other circuits. Indeed, Petitioner’s own cases

cited in support of her Petition for Writ of Certiorari support

the Eleventh Circuit’s holding and confirm that there is no

conflict among the circuits. See Rivera-Martinez v.

Commonwealth of Puerto Rico, 2007 WL 16069 (1% Cir.

2007) (affirming summary judgment on retaliation claim

because plaintiff cannot show that she was harassed after

her protected activity); Ccicsmann yv. Sallada, 2006 WL

3611729 (4" Cir. 2006) (affirming summary judgment on

retaliation claim because the plaintiff failed to show any

material harm); Schmidt v. Canadian Nat'l Ry. Corp., 2007

WL 755171 (7" Cir. 2007) (affirming,summary judgment on

retaliation claim because altering the plaintiff's work

schedule to make it start and end one hour later, forcing him

to use vacation time, and changing his duties were not

materially adverse under the particular circumstances of the

case); and McGowan vy. City of Eufala, 472 F.3d at 742

(affirming summary judgment on retaliation claim because

21

the denial of a shift change and harassment failed the test of

materiality). Accordingly, there is no split among the circuits

warranting review by this Court. See also Higgins, 481 F.3d at

590 (holding that lack of mentoring and a transfer were not

materially adverse under White where plaintiff was not

negatively impacted by lack of supervision and transfer came

after her two-year term position ended and she accepted a new

position with the employer); Strong, 482 F.3d at 809 (holding

that White did not affect analysis of retaliation claim because

plaintiff did not prove but for causation). Therefore, the Petition

for a Writ of Certiorari should be denied.

CONCLUSION

As demonstrated above, this case is not properly postured

to resolve the apparent conflict among the federal courts as to

what standard of direct evidence to apply in the context of

employment discrimination cases. Furthermore, the Eleventh

Circuit complied with this Court’s remand and Petitioner has

otherwise failed to present any other conflict or compelling legal

question warranting this Court’s consideration. Accordingly, the

Petition for Writ of Certiorari should be denied.

Respectfully submitted,

Curtis L. MACK

Counsel of Record

BRENNAN W. BOLT

McGuire Woops LLP

Attorneys for Respondent

Adecco USA, Inc.

1170 Peachtree Street NE

Suite 2100

Atlanta, Georgia 30309

(404) 443-5500