Petition for Writ of Certiorari — Perez v. Norwegian-American Hospital, Inc.

04 225 JUNS - 2006

No.

OFFICE OF THE GLERIK

In the

Supreme Court of the United States

VALENTINA PEREZ,

Petitioner,

V.

NORWEGIAN-AMERICAN HOSPITAL, IVAN RIVERA,

and STEVE DAHL,

Pe Respondents

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Valentina Perez,

5220 West Shubert

Chicago, Illinois 60639

(773) 836-8522

Pro Se

QUESTIONS PRESENTED

l. Whether a single act of battery succeeded by repeated

acts of public humiliation, threats, intimidation, demotion,

and isolation constitute the perpetuation of a hostile

workplace permeated with discriminatory intimidation,

ridicule, and insult within the meaning set forth in Harris v.

Forklift Systems, Inc. 510 U.S. 17, 114 S.Ct. 367 (1993).

a Whether an adverse employment decision resulting in

a demotion may be deemed causally linked to the reporting of

sexually motivated battery that occurred six months prior to

the demotion where the employer has committed several

discrete and overt acts of discriminatory conduct toward the

victim during the interim.

LIST OF PARTIES

All parties to this suit have been included in the

caption above.

RULE 29.6 NOTATION

Pursuant to Supreme Court Rule 29.6, petitioner

states that she is not a corporation, has no parent company,

and no wholly or nonwholly owned subsidiaries

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED..............sccsccccccsccceccsvevccees l

STATEMENT OF THE CASE ...............scscecccsesecevecees l

The Need to Establish Uniformity In the Application of the

Harris Standard to Determine “Severe and Pervasive”

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The Seventh Circuit’s Imposition of an Artificial Barrier to

Recovery Premised on its Random Assignment of an Unduly

Limited Temporal Proximity Requirement..................+++ 3

The Court of Appeal’s Decision..............:.:eeeeeeeeeeeeeens 4

REASONS FOR GRANTING THE PETITION............... 4

I. The Seventh Circuit Has Systematically Misapplied

the Standard Set forth in Harris and Guidance from This

Court is Needed to Reconcile the Definition of Harassment as

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Applied in Adusumilli, Hilt-Dyson, Quantock, Hostetler, and

Il. The Decision Below Perpetuates and Validates the

District Courts’ Misapplication of Harris and its Progeny to

Suit the Personal Biases of Individual Judges Rather than the

RI Ae iis ccc ua coctacdecdatencuyoresscacnen bevardcn 7

The Court Below Erred in Finding that battery consisting of

slapping and conduct including “shunning” was not “severe

TE I i cas csdidiccsstceanexeceastaemeseeatenntncaehaneen 7

The Court Below Erred in Finding that the Employer’s

Conduct in Transferring Petitioner to a Less Favorable Shift,

Repeatedly Charging Her With False Disciplinary Actions,

and Compelling Her to Report to the Authority of Her

Subordinates Occurred Too Long After Her Internal

Complaint of Sexual Harassment to be Deemed

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TABLE OF AUTHORITIES

Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7" Cir.

Ajayi v. Aramark Business Services Inc., 336 F.3d 520 (7"

ERNE LID DROBO, Snr en nehre rate: Semester 9

Barnett v. U.S. Air, Inc., 157 F.3d 744 (9" Cir. 1998)......10

Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 121 S.Ct.

Se CE Di sav ivans caviacancecesicnuhecnvaseiennuion ee et

Faragher v. Boca Raton, 542 U.S. 775, 118 S.Ct. 2275

SRP RMLs cats seuauncainsdcans nackeeneiaensceerinaless ence adueniiatii 11

Franzoni v. Hartmarx Corp., 300 F.3d 767, 773 (7" Cir.

ies nkskeniscdixennidienacananeaerasvideca ean 10

Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3" Dist.

Fyfe v. City of Fort Wayne, 241 F.3d 597 (7" Cir. 2001)....9

Harris v. Forklift Systems, Inc. 510 U.S. 17, 114 S.Ct. 367

ERP Oi cersskucsaceiesebitesiaiaeee hy By Su My ie Oe Oe By Bt

Haywood v. Lucent Technologies, Inc. 323 F.3d 524, 533

Oe FR is ee eee 10

Hoffman-Dombrowski v. Arlington Intern. Racecourse, 254

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Hilt-Dyson v. City of Chicago, 282 F.3d 456 (7 Cir.

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Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7" Cir.

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National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

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Passantino v. Johnson & Johnson Consumer Products, 212

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Quantock v. Shared Marketing Services, Inc., 312 F.3d 899

CP NEY iiascic eae eee 6

Smith v. Sheahan, 189 F.3d 529 (7" Cir. 1999)............. 4,6

vi

Constitutional and Statutory Provisions:

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28 U.S.C. § 1331....

28 U.S.C. § 1343....

28 U.S.C. § 1347...

28 U.S.C. § 1254...

42 U.S.C. § 2000e-5

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PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra, 1),

is unreported. The opinion of the district court (App. A, infra

2), is unreported.

JURISDICTION

The court of appeals’ judgment was entered on March

5, 2004. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Supremacy Clause of the Constitution provides in

relevant part: “[T]he Laws of the United States ...shall be the

supreme Law of the Land...any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.” U.S.

CONST. art. VI cl. 2. The relevant statutory provision is 42

U.S.C. § 2000e-5.

STATEMENT OF THE CASE

This case raises the very serious question of the lack

of uniformity of the enforcement of the Title VII prohibition

against discrimination and harassment based on gender. The

jurisdiction of the district court was invoked under 28 U.S.C.

§§ 1331, 1343, 1347, and 42 U.S.C. § 2000e-5. This Court

established a standard for evaluating the severity and

pervasiveness of discriminatory conduct in Harris v. Forklift

Systems, Inc., 510 U.S. 17, 114 S.Ct. 367 (1993). The

standard set forth in Harris, provides for evaiuation of the

existence of a hostile work environment on a case-by-case

basis. Harris holds that the language of Title VII:

evinces a congressional intent to strike at the

entire spectrum of disparate treatment of men and

women in employment, which includes requiring

people to work in a discriminatorily hostile or

abusive environment. When the workplace is

permeated with discriminatory intimidation,

ridicule, and insult...that is sufficiently severe or

pervasive to alter the conditions of the victim’s

employ .at and create an abusive vorking

environment, ...Title VII is violated.”

Harris, 510 U.S. at 21. The court established that the

existence of a hostile work environment may be determined

by “the frequency of the discriminatory conduct; its severity,

whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.” Harris, 510 USS. at

21. Unfortunately, the standard has opened the door for loose

interpretation, inequitable dispositions, and inconsistent

rulings by district courts. In the Seventh Circuit, the Court of

Appeals has ruled that statement and acts of “teasing”,

sexually suggestive comments, intimidating staring, and

unwanted touching are insufficient to constitute severe and

pervasive conduct while citing Harris as authority for this

finding. Adusumilli v. City of Chicago, 164 F.3d 353, 362

7" Cir. 1998). In view of the Court instituted determinants,

the facts alleged in cases dismissed and disposed of upon

summary judgment in the Seventh Circuit are incongruous

with this Court’s holding in Harris.

A. The Need to Establish Uniformity In the Application of

the Harris Standard to Determine “Severe and Pervasive”

Conduct.

Victims of sexual harassment and sex discrimination

within the jurisdiction of the Seventh Circuit cannot rely on

the protections of Title VII or the precepts established in

Harris. Due to the conflicting manner in which district

courts have applied the Harris factors, facts clearly

supporting claims of severe and pervasive discriminatory

conduct constituting hostile work environments are routinely

disregarded and meritorious claims have been denied.

Both the Adusmilli and Hilt-Dyson courts made

findings ostensibly applying the Harris principles. Neither of

these rulings provided a solid basis to ascertain what depth of

conduct is prohibited and what level of conduct is acceptable.

In both cases, the court supplanted the objective and

subjective effect on the respective plaintiffs and inextricably

determined that the offenses could not have been as bad as

claimed. Each court summarily came to its conclusion based

on its subjective determination that the plaintiff did not suffer

“great” impact as a result of the employer’s conduct.

Adusumilli, 164 F.3d at 361. The inconsistent findings

issued by the courts are not supported by the facts in each

case. Based upon the lack of uniformity of the application of

Harris, the Seventh Circuit’s rulings regarding the

determination of hostile work environments are unjustly

skewed.

B. The Seventh Circuit’s Imposition of an Artificial

Barrier to Recovery Premised on its Random

Assignment of an Unduly Limited Temporal Proximity

Requirement.

The lower court’s ruling impairs the ability of a

plaintiff to sustain a viable retaliation claim. Its reasoning is

in opposition to the decisions of the Ninth Circuit Court of

Appeals. Clark County Sch. Dist. v. Breeden, 532 U.S. 268,

273, 121 S.Ct. 1508, 1511 (2001). The Seventh Circuit gives

no clear definition of when alleged acts of discrimination are

within temporal proximity of a protected activity. If the

court’s ruling is allowed to stand, it will effectively bar

legitimate claims of retaliation. Review of this case is

warranted in order to set a clear threshold in establishing a

causal link between a protected activity and adverse

employment action.

C. The Court of Appeal’s Decision

The court below concluded that a slap on the buttocks

is not objectively abusive. (App. A, infra, at p. 6). The court

likened the unequivocal, forceful blow suffered by the

Petitioner to the tentatively identified “poke” noted by the

plaintiff in Adusumilli. The lower court further, found that

the stalking by one of the defendants and taunts by

Petitioner’s coworkers were not related to her sex although

there was no evidence refuting her assertions of her

malefactors’ stated intent. (App. A, infra, at p. 7). The court

of appeals found that Petitioner’s transfer to an unfavorable

shift, subjection to the authority of her subordinates, and

suffering of post traumatic stress syndrome did not constitute

adverse employment actions. Finally, the court found that

due to the six month interval between Petitioner’s complaint

of Defendants’ battery of her and her ultimate transfer to the

nightshift, the time was “too lengthy” to establish a causal

connection. (App. A, infra, at p. 9).

REASONS FOR GRANTING THE PETITION

I. The Seventh Circuit Has Systematically Misapplied

the Standard Set forth in Harris and Guidance from

This Court is Needed to Reconcile the Definition of

Harassment as Applied in Adusumilli, Hilt-Dyson,

Quantock, Hostetler, and Smith.

The Seventh Circuit Court of Appeals acknowledged

in Hilt-Dyson that no “bright line” exists differentiating

“innocuous from actionable behavior”. Hilt-Dyson v. City of

Chicago, 282 F.3d 456, 463 (7" Cir. 2002); Hostetler v.

Quality Dining, Inc., 218 F.3d 798, 807 (7" Cir. 1997). In

spite of the factors delineated by this Court, the district courts

and the Seventh Circuit Court of Appeals has failed to render

decisions in a consistent manner. This has resulted in

discriminate and inconsistent rulings for different victims

who have experienced substantially similar circumstances.

Due to the lower courts’ failure to establish a uniform basis

upon which discrimination and harassment victims can rely,

claimants are subject to a veritable crap-shoot when any

given defendant submits a motion for summary judgment. In

light of the courts’ random and arbitrary method of applying

the Harris factors, the courts need guidance to set forth more

objective elements defining “severe and pervasive” conduct.

Adusumilli v. City of Chicago

The Adusumilli court examined evidence of offensive

statements and touching and deemed them to be within the

“safe harbor” of tepid, intermittent, and equivocal behavior.

The court summarily came to this conclusion based on its

subjective determination that the plaintiff in that case did not

suffer “great” impact as a result of the employer’s conduct.

Adusumilli, 164 F.3d at 361.

Hilt-Dyson v. City of Chicago

In Hilt-Dyson, the court found that offensive touching

and leering, to such an extent that the victim felt intimidated,

did not constitute harassment within the meaning of Title VII.

The Hilt-Dyson court has created a requirement that in order

for an unwanted sexual touching to be objectively hostile or

abusive, a “threat” or “intimidation” must accompany the

conduct. The very nature of the touching itself begs the

question of whether such contact would be threatening or

intimidating to the recipient. Further, the court created a

factor not included in Harris in that if the malefactor ceases

the offending conduct after having already committed the

offending act, the egregious nature of the conduct is negated.

Quantock v. Shared Marketing Services, Inc.

Contrarily in Quantock, the Seventh Circuit held that

the “outright solicitation of numerous sex acts” constitutes

severe conduct, even though committed infrequently.

Quantock, 312 F.3d at 904. The court found that the actor’s

“significant position of authority” was a deciding factor as to

whether sexually explicit suggestions were objectively

severe. The court further found that the plaintiff's reporting

of the incident, receipt of psychological treatment, and

feelings of humiliation can substantiate the severity of the

defendant’s conduct and the hostile nature of her work

environment. Quantock, 312 F.3d at 904.

Hostetler vy. Quality Dining, Inc.

The court found that the defendant’s act of placing his

tongue in the plaintiff's mouth and partially removing her bra

constitutes humiliating and “possibly threatening” conduct.

The court further found that the defendant’s reference to a

“hypothetical sexual act” with the plaintiff “could be

interpreted as an (uninvited) sexual proposition.”

Smith v. Sheahan

In Smith the court found that the plaintiff's violent

physical abuse at the hand of her coworker constituted sexual

harassment, rather than criminal battery, even though the

contact was not sexual in and of itself. The Seventh Circuit

found that the defendant’s alleged propensity to target

women, asserted via the affidavits of his other alleged

victims, was sufficient to show his discriminatory intent.

Smith v. Sheahan, 189 F.3d 529, 531 (7" Cir. 1999).

The court below, through its ruling in the instant case,

has further diluted the demarcation line between the

actionable and the permissible by creating additional proof

requirements. Moreover, the lower court has unreasonably

and unnecessarily declined to rule on the relationship to the

Harris elements of the cumulative acts of battery, taunting,

stalking, demotion, and disparate treatment resulting in

severe psychological repercussions as they relate to a

determination of severe and pervasive conduct. A ruling

from this Court is necessary to solidify the types of acts that

may be deemed actionable under Harris and the implications

of cumulative offensive acts to the requisite factors imposed

by this Court.

II. The Decision Below Perpetuates and Validates the

District Courts’ Misapplication of Harris and its Progeny

to Suit the Personal Biases of Individual Judges Rather

than the Carriage of Justice.

A. The Court Below Erred in Finding that Battery

Consisting of Slapping and Conduct including

“shunning” was not “severe and pervasive”

Although in Quantock, the court found the plaintiffs

malefactor’s position of authority sufficiently daunting so as

to render his infrequent conduct “severe”, the court of

appeals in this case deemed insignificant one of Petitioner’s

malefactors close familial relationship and position of

influence with a decision-maker with the authority to

terminate her. The court further disregarded another

malefactor’s admission that the motive for his mistreatment

of her was her complaint against the hospital administrator’s

son. The lower court omitted ruling on the implication of

Petitioner’s subjection to the authority of her subordinates

and suffering of post-traumatic stress syndrome as they relate

to the determination as to the severity of the Defendants’

actions and the permeation of a hostile work environment.

Further, the lower court declined to analyze the

implication of the multiple adverse acts of Defendants as they

relate to the factors established by this Court. The court must

“look to “all the circumstances”, including the frequency of

discriminatory conduct and whether it is physically

threatening or humiliating, in addition to whether or not it

unreasonably interferes with an employee’s work

performance.” National R.R. Passenger Corp. v. Morgan,

536 US. 101, 116, 122 S.Ct. 2061, 2074 (2002). The

cumulative effect of repeated conduct, a series of separate

acts collectively constituting one act, evinces 2 hostile work

environment. National, 536 U.S. at 117 (2002).

B. The Court Below Erred in Finding that the

Employer’s Conduct in Transferring Petitioner to a

Less Favorable Shift, Repeatedly Charging Her With

False Disciplinary Actions, and Compelling Her to

Report to the Authority of Her Subordinates

Occurred Too Long After Her Internal Complaint of

Sexual Harassment to be Deemed Retaliatory

The Seventh Circuit Court’s decision is contrary to

this Court’s ruling in Clark County Sch. Dist. v. Breeden, that

a causal relationship between the protected activity and the

adverse employment action suffered need not be proved by

temporal proximity. Clark, 532 U.S. at 273. The Seventh

Circuit has used the temporal proximity as a bar to allowing

legitimate retaliation claims to proceed on the merits.

Under the direct method, in order to present a prima

facie case of retaliation, a plaintiff must show: (1) that she

engaged in a protected activity; (2) she suffered an adverse

employment action; and (3) there is a causal relationship

between the protected activity and the adverse employment

action suffered. Ajayi v. Aramark Business Services Inc., 336

F. 3d 520, 533 (7" Cir. 2003).

The court below erred in concluding that Petitioner

failed to establish a prima facie case of retaliation. (App. A,

infra, at p. 9-10). The court’s decision is based on the flawed

premise that Petitioner needed to establish temporal

proximity between her complaint of discrimination and

Defendants’ retaliatory acts. There is no dispute that

Petitioner engaged in a protected activity when she made a

formal complaint against Defendant Dahl. The Seventh

Circuit effectively impeded Petitioner’s claim in its finding

that the six month lapse from the time she complained of

Defendant Dahl and her subjection to a false reprimand and

demotion was too lengthy to establish a causal connection.

(App. A. infra at p. 9).

This Court has determined that “the cases that accept

mere temporal proximity between an employer’s knowledge

of protected activity and an adverse employment action as

sufficient evidence of causality to establish a prima facie case

uniformly hold that the temporal proximity must be very

close.” Clark, 532 U.S. at 273 (emphasis added). This Court

has not, however, given the circuits any guidance on what

constitutes close proximity. In Clark, this Court noted that

an action taken 20 months later is insufficient to establish

causality. Clark, 532 U.S. at 274.

The Seventh Circuit has held that “to establish a

causal connection via mere temporal proximity, the

employer’s adverse action must follow fairly soon after the

employee’s protected conduct.” Hoffman-Dombrowski v.

Arlington Intern. Racecourse, 254 F.3d 644, 653 —54 (7" Cir.

2001) (finding that employee’s termination 13 months later

was not causally connected to her retaliation claim); citing

Fyfe v. City of Fort Wayne, 241 F.3d 597, 603 (7" Cir. 2001).

In the case at bar, the Seventh Circuit appellate court

determined that a six month lapse between the protected

activity and the reprimand and transfer was too long to

establish a causal connection. (App. A, infra, at p. 9). The

court’s reliance on Franzoni v. Hartmarx Corp., 300 F.3d

167, 773 (7"" Cir. 2002) is misapplied.

In Franzoni, the Seventh Circuit found that adverse

employment action that occurred six months after the

protected expression is too lengthy to sustain a retaliation

claim in the absence additional evidence. F* ranzoni, 300 F.3d

at 772-773. The lower court’s conclusion that Petitioner’s

claim must fail because she cannot show temporal proximity

is flawed. Petitioner, unlike the employee in Franzoni,

presented additional evidence to substantiate her claim of

retaliation. Franzoni, 300 F.3d at 772-773. Petitioner did not

rest her claim solely on the temporal proximity of the

defendant retaliatory actions and her sexual harassment

complaint.

“Temporal proximity is only evidence of causation

not a separate element of the prima facie case.” Haywood v.

Lucent Technologies, Inc. 323 F.3d 524, 533 (7"" Cir. 2003).

The lower court’s analysis in determining a causal link

between Petitioner’s complaint and her demotion is too

narrowly defined. Evidence of temporal proximity coupled

with additional evidence, where the proximity is not unduly

suggestive, will effectively establish a prima facie case of

retaliation. Farrell v. Planters Lifesavers Co., 206 F.3d 271,

280 (3 Dist. 2000). The lower court’s decision improperly

limits meritorious claims.

In the Ninth Circuit, the appellate court found that a

causal connection can be inferred by producing evidence of

the temporal proximity of the adverse action to the statutorily

protected activity.” Barnett v. U.S. Air, Inc., 157 F.3d 744,

747, 754 (9" Cir. 1998). In Barnett, the court found a causal

connection between the employee’s request for

10

accommodations and the employer’s placement of the

employee on the job injury list five months later. /d.

Likewise, even under the lower court’s finding, six months is

not too lengthy a period to establish a causal link.

The retaliation against Petitioner did not begin with

her demotion, but with (1) Defendant Rivera’s and

Petitioner’s subordinates and co-workers shunning her,

isolating her, and taunting her with rumors that she would be

demoted; (2) Defendant Dahl repeatedly following her into

areas he was not stationed to work, for the express purpose of

frightening her; (3) Defendant Rivera drafting allegations of

policy violations against her which he knew to be false; and

(4) Defendant Rivera’s demoting her six month subsequent to

her internal complaint. Passantino v. Johnson & Johnson

Consumer Products, 212 F.3d 493, 502, 507 (9" Cir. 2000)

(holding that removing employee’s job responsibilities;

transferring her accounts to other employees without notice;

excluding her from manager’s meetings; reducing her

performance objectives; changing her job title; and taking

other actions to demean her job participation are sufficient

acts to establish retaliation.) Workplace conduct is not

measured in isolation, but must be evaluated by looking at

the totality of the circumstances. Clark, 532 U.S. at 271,

citing, Faragher v. Boca Raton, 542 U.S. 77, 787-88, 118

S.Ct. 2275, 2283 (1998).

The Court’s failure to indicate the prohibition or

permissibility of committing multiple adverse acts over an

extended period of time and failure to rule on the implication

of repeated discriminatory acts following an initial harassing

act and complaint thereof has resulted in confusion of the

prevailing law in the Seventh Circuit and represents a

misrepresentation of this Court’s holding in Harris. Further,

the Seventh Circuit has created a factor that replaces

causality with temporal proximity as a necessary element of a

retaliation claim. Farrell, 206 F.3d at 281. If left to stand,

the lower court’s ruling will serve to unduly complicate the

application of the Harris factors to future cases. Finally, the

lower court’s ruling distorts the Harris holding, adds an

additional and unduly oppressive element to retaliation

claims, and will result in the denial of countless meritorious

claims that should properly be presented to a trier of fact for

disposition.

CONCLUSION

The petition for writ of certiorari should be granted.

Dated: June 3, 2004 Respectfully

Submitted,

/s/ Valentina Perez

Valentina Perez, Petitioner

Valentina Perez

5220 West Shubert

Chicago, Illinois 60639

(773) 836-8522

APPENDIX

Page

A. Opinion of the U.S. Court of Appeals for

a I Fannin Sid kines creas xcceasedeanee l

B. Opinion of the U.S. District Court for the

Northern District of Illinois, Eastern Division......... |