Opposition Brief — Webb v. Level 3 Communications, LLC (No. 05-1458)
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By,
—
No. 05-1458
IN THE
Supreme Court of the United States
GEORGE WEBB
Petitioner:
V.
LEVEL 3 COMMUNICATIONS, LLC,
Respondent.
On PETITION FOR A WRIT OF CERTIORARI TO THE
Unitep States Court or APPEALS
FOR THE TENTH CIRCUIT
BRIEF IN OPPOSITION
Lisa HOGAN ; RICHARD P. BARKLEY
Lever 3 Communications, LLC Counsel of Record
1025 Eldorado Boulevard MEGHAN W. MARTINEZ
Broomtield, Colorado 80021 Brownstein Hyart & Farper, PC.
(720) 888-1000 410 17" Street. Suite 2200
Denver. Colorado 80202
(303) 223-1100
Counsel for Respondent
sAN2
fAD ta cr
t
Not ¢
Ned) » a. 44
1. Although the Tenth Circuit Court of Appeals correctly
stated the summary judgment standard in its unpublished
Order and Judgment in this case, did the court misapply the
i
QUESTIONS PRESENTED
standard by not properly taking into account:
a.
(This restates Nos. 1, 2, 3, 4, and 9 of Webb’s Questions
Presented.)
2. Did the court misapply the correctly stated summary
Petitioner, George Webb’s (“Webb”)
views of his own qualifications as
compared with his views of other
employees of Respondent, Level 3
Communications, LLC (“Level 3”):
Webb’s argument with respect to the
criteria used by Level 3 in selecting
Webb to be laid off as part of a reduction
in force (“RIF”);
Prior employment events that occurred
approximately a year and a half before
Webb was laid off; and
Events that occurred after Webb was
laid off?
judgment standard by:
a.
Not considering Webb's evidence as a
whole;
Not drawing all reasonable inferences
from the evidence in Webb’s favor;
il
c. Explicitly or implicitly determining
issues of credibility; and
d. Not conducting a “sensitive inquiry” as
to Webb’s discrimination claim?
(This restates Nos. 5, 6, 7, and 8 of Webb’s Questions
Presented. )
3. Did the court misapply the correctly stated summary
judgment standard when it held that Webb had not established
a prima facie case of retaliation because he had not shown
any causal connection between the protected activity and the
adverse employment action?
(This restates No. 10 of Webb’s Questions Presented.)
iil
CORPORATE DISCLOSURE STATEMENT
PURSUANT TO SUPREME COURT RULE 29.6
Level 3 Communications, LLC’s parent company is
Level 3 Communications, Inc.
Because Level 3 Communications, LLC is a limited
liability company, it does not have any stock. Level 3
Communications, Inc. is the only publicly held company that
holds an ownership interest of 10 percent or more in Level 3
Communications, LLC.
iv
TABLE OF CONTENTS
CPUS 1 ECPIND CREO ERD 6.5 Gch dc ce eevecee ces
CORPORATE DISCLOSURE STATEMENT
PURSUANT TO SUPREME COURT RULE 29.6
& @ DB S96 26 2A. 86 OD OE OR OE SH CS. C.D 8 48 SS Ce YK EY OD OS
TABLE OF CITED AUTHORITIES ............
Re R III NE Ak WS AS EN hs hens VR ES Se
RAR eereS GOP TEE CAB ois ies ne cee e es
I. FACTUAL BACKGROUND ............
Th, PRUs CADENA | nd wo aiee ewes
II. FACTUAL ERRORS IN THE PETITION ...
REASONS FOR DENYING THE PETITION ....
I. THE PETITION SHOULD BE DENIED
BECAUSE THE QUESTIONS IT PRESENTS
MERELY ASSERT THAT THE TENTH
CIRCUIT MISAPPLIED THE SUMMARY
JUDGMENT STANDARD ..............
ll. THE PETITION SHOULD ALSO BE
DENIED BECAUSE NONE OF THE
REASONS SET FORTH IN RULE 10 FOR
GRANTING A PETITION APPLIES HERE
2-8 & 26 & 8 2:8 6.80 8 6. 8.42 3-6 °S. 6 8 OSS OA 6 88'S OS eS
11
12
IIT.
Contents
A. The Tenth Circuit’s Decision Does Not
Conflict with the Decision of Another
United States Court of Appeals on the
Same Important Matter, or a Decision by
a State Court of Last Resort .........
B. The Tenth Circuit’s Decision Is Not Such
a Departure from the Accepted and Usual
Course of Judicial Proceedings as to
Require an Exercise of the Court’s
Supervisory Power....... ee tS
WEBB’S ASSERTION THAT THE TENTH
CIRCUIT IN THIS CASE FAILED TO
FOLLOW ESTABLISHED LAW
GOVERNING SUMMARY JUDGMENT
MOTIONS IS WITHOUT MERIT .......
A. This Court Delineated the Correct
Summary Judgment Standard in Celotex,
Anderson, and Matsushita ..........
B. Webb’s Claim That the Tenth Circuit’s
Opinion Is Contrary to Reeves Is Without
WHE Fs os bc kee a aie eke
C. The Tenth Circuit Properly Applied the
Summary Judgment Standard in This
Case, and Thus the Petition Provides no
eae Gar MOWINONE ives pasb eee ss
Page
15
16
16
17
19
21
vi
Contents
An employee’s belief about his own
qualifications and performance is
insufficient to create a dispute as to
a genuine issue of material fact ...
Webb failed to show that Level 3
deviated from the RIF criteria ....
Webb failed to present evidence of
prior discriminatory acts, and he
failed to present evidence of a causal
connection between the prior acts and
the decision to include him in the
yg Gaia a enUna eso g airy Seemeie an ere™
Webb’s claim of post-layoff
discrimination in the denial of
retirement benefits was unsupported
by evidence and was unconnected
with the decision to include him in
SR: Be Esc 6 ch aes eek
The implications Webb attempts to
make with his rhetorical “questions
presented” are baseless ..........
The Tenth Circuit correctly found
that the RIF criteria were not
completely subjective ...........
Page
21
Pt
24
25
26
26
vil
Contents
Page
7. The Tenth Circuit correctly affirmed
the district court’s grant of summary
judgment on Webb’s retaliation
claim on the ground that no causal
connection existed between the
protected activity and the adverse
employment action ............. 27
EASES RG aly's VXCRRUUR Okt GRR OS - 29
vill
TABLE OF CITEDAUTHORITIES
Page
CASES:
Abuan v. Level (3) Commc’ns, Inc.,
Dad Eidek BLOM CAM Gls BOSD oc kee ccc nsec 6
Anderson v. Liberty Lobby, Inc.,
ee Se COE no sk wk awe he ck ea eas passim
Ash v. Tyson Foods, Inc.,
Pe ee CD eck a kesh ks kao hes 22
Beaird v. Seagate Tech., Inc.,
EAS Fe 14 Cee ie; AIS) ok on e's 8 vas y
Brooks v. Barnhart,
No. 02-1449, 78 Fed. Appx. 52
PaaS ee AO 8g ke ek Nib a 8 Shas een 22
Brown v. McDonnell Douglas Corp.,
TAS Pe te CAE, F997) no cee ean’ 7
Cartagena v. Aegis Mortgage Corp.,
No. 01-20324, 275 F.3d 46 (Sth Cir. 2001) ..... 27
Orta-Castro v. Merck, Sharp & Dohme
Quimica P.R., Inc.,
aT Bee Be CEE GE, AOD i ob ene ck oe ees 26
Celotex Corp. v. Catrett,
ee eR) ee ee eres re ree passim
Colon-Sanchez v. Marsh,
peer Be fe gee eee eee 24
ix
Cited Authorities
Page
Combs v. PriceWaterhouse Coopers LLP,
382 F.3d TESS CAG Oe, BOO) ceca cece. 12
Curby v. Solutia, Inc.,
351 F. 3G BO Cee BD eee wee see se. 13
Faruki v. Parsons S.1.P., Inc.,
PAE we Behe Ce S| sy CEG ae 27
Hedberg v. Ind. Bell Tel. Co., Inc.,
4] P36 Dae Cee ED Ga eb wwe cn cees 18
Heno v. Sprint/United Mgmnt. Co.,
208 F.3d 847 (10th Cir. 2000) ...........: Bes 24
Holt v. KMI-Cont’l, Inc.,
OS FBG PES gi BO oa be cee eee ee 13
Hudson v. Chi. Transit Auth.,
375 F.20 Dok © Pee En one ses vce eee es 28
Hutson v. McDonnell Douglas Corp.,
G3 FSG 7 Fr ee aie ccc ess. 7
Immigration and Naturalization Serv. v. Abudu,
eee ee Me ere “12
Johnson v. U.S. Dep t of Health and Human Servs.,
RS NA ie ae a 13
vee. v. Barnhart.
Fae Pe tae Ce a enw c cece nes, 27
Cited Authorities
Page
Lexington Ins. Co. v. W. Pa. Hosp.,
AZS F306 SUR (SG See) 4s ke Sie eke awe 18
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
fe ge See Ca. | a ee ere ee passim
Nichols v. Loral Vought Sys. Corp.,
Bt 8.36 350 (oe et ee os hives ia se eee ees 13
Ost v. W. Suburban Travelers Limousine, Inc.,
BG F350 635.6 7n Ce ESP) nis eek hee saves 13
Platero v. Williams Field Servs. Co.,
No. 05-2006, 2006 WL 864851
CIOREC AGES. Zee) mea sins eivceiwn eee 27
Rea v. Martin Marietta Corp.,
29 F356 1450 Ci Ca. TPR) ci hie ee tae
Reeves v. Sanderson Plumbing Prods., Inc.,
Sa tS. Laat er 5s eA E Cs eS b ows es 19, 20, 21
Shorette v. Rite Aid of Me., Inc.,
13a Fr EL CO. PD Sst ee ees 13
Simms v. Okla. ex rel. Dep t of Mental Health and
Substance Abuse Servs.,
163 F360 152 (2G Ci. TOPE ee ees ies 13, 24
Stidham v. Minn. Mining & Mfg., Inc.,
Soe F306 Sao Cie Ce Bed ses Ca hes 7
xi
Cited Authorities aes
Page
Stone v. City of Indianapolis Pub. Utils. Div.,
Sek U.2e GO CHR BOOED oka evans pet ves 28, 29
Trotter v. Todd,
T1D eee oe (ee Cr, BES) cease 25
U.S. v. Diebold, Inc.,
ee a OAD obo che sear eee eenus 13
Webb v. Level 3 Commc’ns, L.L.C.,
No. 05-cv-773-RPM-BNB ;
(i. foie: ee At. 21, 2008) i ee 4
STATUTES:
29 U.S.C. §§ sSNA a eet tet vac eee ere 4-5
OTHER:
Pe ee as We ON nos 6 ks ok ads > MA Ak eee 19,21
SU eC ho ks 6 SG ob kee dea hi eee wee t.19
Pe A Es eae bs bee ews aerate 12,18
i Oe NE ck nha ak ou housek nae ee 11
PE sonic aia Mba ae bak cay ees passim
As ae PE eRe eed es Oe tans l
Ns ae ee Ne 5 re ee ee ae 15
xii
Cited Authorities
Sie SS SePrereryee CPE TT eT Te Tae ee
es a SUE Fe aOR eae ws ek ee Ge kaee eS
es Mae EE On RAIA a WEN eee ae ae
Fed. R. Civ. P. 56(e)
advisory committee’s note (1963) ............
Page
il
17
l
INTRODUCTION
Supreme Court Rule 10 provides: “A petition for a writ of
certiorari is rarely granted when the asserted error consists of . .
. the misapplication of a properly stated rule of law.” Sup. Ct.
R. 10. This is the only type of error Webb asserts in his Petition
for a Writ of Certiorari (“Petition”). Although Webb identifies
10 “Questions Presented,” each is based on a single underlying
argument: that the Tenth Circuit, in affirming the grant of
summary judgment against Webb and in favor of Level 3,
misapplied the summary judgment standard by giving too little,
or too much, papsseete value to certain purported “facts.”
ee tee
in the Petition are not appropriate for certiorari review.
In addition, none of the reasons given in Rule 10 for granting
review applies to the questions presented in the Petition. Webb
makes no attempt to argue that the Tenth Circuit’s decision
conflicts with a decision “of another United States court of
appeals on the same important matter,” or “by a state court of
last resort... .” Sup. Ct. R. 10(a). Similarly, although Webb
claims to discern a “trend” among federal courts “to limit
discrimination plaintiffs’ rights to present circumstantial
evidence in opposition to motions for summary judgment” (Pet.
at 16), Webb does not contend — even looking at the Tenth
Circuit’s decision through his own, distorted prism — that in
this case the court “so far departed from the accepted and usual
course of judicial proceedings” as to require “‘an exercise of
this Court’s supervisory power. . . .” Sup. Ct. R. 10. Thus, Webb
also fails to advance any reason why, under the guidelines
delineated in Rule 10, the Petition should be granted.
Moreover, the overarching claim of error by Webb — that
the Tenth Circuit in this case subverted the correct summary
judgment standard — is simply wrong. Despite his professed
obeisance to this Court’s description of the proper standard for
summary judgment, Webb never examines, quotes, or cites, Rule
56 or any of the Court's trilogy of seminal summary judgment
decisions: Celotex Corp. v. Catrett, 477 U.S. 317 (1986),
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475
U.S. §74 (1986). Had he done so, he would have been forced to
2
acknowledge that the Tenth Circuit’s decision is entirely
consistent with Rule 56 and Celotex, Anderson, and Matsushita.
Thus, Webb’s argument is not really — as he pretends — that
courts of appeals are not correctly applying the proper summary
judgment standard. It is that the proper summary judgment
standard imposed a burden he was unable to meet.
Further, Webb distorts the record in this case, and the Tenth
Circuit’s rulings based on the record. In truth, the reason the
district court granted summary judgment, and the court of
appeals affirmed that decision, is not because those courts
misapplied the correct summary judgment standard. It is because
Webb was unable to produce sufficient evidence (because no
evidence existed) that would have allowed a jury to find that
the proffered reason Webb was laid off was pretextual. Thus,
although Webb pretends that he was deprived of his claims due
to judicial error, in reality Webb’s claims were dismissed because
of a failure of proof.
STATEMENT OF THE CASE
I. FACTUAL BACKGROUND
In late 1997, Webb was hired as a Senior Network
Developer by a predecessor of Level 3. At the time Webb was
hired, he was 55 years old. Webb initially worked for Level 3’s
predecessor in California, but relocated to Colorado in August
2000. Between January 1998 and June 2001, Webb had at least
four supervisors. Webb testified in deposition that he suffered
no disparate treatment from any of them because of his age.'
In June 2001, Level 3 went through the first of a series of
reductions in force (“RIF”), and Webb was notified that “[his]
employment or [his] position was being eliminated, and that
[he] would no longer have a job effective ... September 9"
1. Although Webb did not bring a claim of gender discrimination,
he opined that an early supervisor, Elsa Svensson (“Svensson”),
discriminated against him based on gender. But Webb had no evidence
of discrimination; his allegation was due to the fact that he “felt that
since [he] was the only male working for her . . . [he] might be held to
a different standard.” In fact, Webb testified that Svensson did not treat
Webb differently than his coworkers because of his age.
3
[2001].”? Webb ultimately was not laid off, however, because
he was transferred to Level 3’s Customer Operations department
as a “program manager”. The transfer, by Webb’s own
admission, was a lateral transfer. Webb testified that he did not
experience any discrimination while working in the Customer
Operations department. In fact, although Level 3 went through
several additional RIFs between June 2001 and January 2003,
Webb survived all of them.
After working in the Customer Operations department for
more than a year, Webb concluded that his position did not fully
utilize his abilities. On November 14, 2002, Webb met with a
representative in Level 3’s Human Resources department (“HR’’)
named Blake Isom (“Isom”). The sole reason for the meeting
was that Webb wanted to seek “assistance from HR in finding
opportunities that could better utilize [his] experience and
expertise. .. .” During the meeting, Isom asked Webb, “Have
you ever been discriminated against [at Level 3]?” In his
deposition, Webb said that he “believe[d]” he told Isom that
“a case could probably be made for it.” Webb, however, neither
intended nor expected Isom to conduct an age discrimination
investigation. Isom likewise did not understand that Webb was
claiming age discrimination, or that Isom should undertake an
investigation on behalf of Webb. Isom did not take any action
or discuss his conversation with Webb “with any managers or
employees in Customer Operations. . . .”
On January 16, 2003, more than two months after Webb
met with Isom, Level 3 went through another RIF. Forty-nine
employees — 25 who were under the age of 40 and 24 who were
40 years or older — were laid off. Webb was among the employees
2. Webb stated (after filing the first of his lawsuits against Level
3) that his inclusion in the June 2001 RIF was “the first time that [he]
started feeling like age might be impacting [his] employment in any
way.” Webb had no basis for his “feeling,” which is contrary to the
facts. At the time of the June 200! RIF, Level 3 employed two Senior
Network Developers: Webb and a female employee in her mid-30s.
Webb was able to transfer to a lateral position in another department,
but the employee in her 30s was not, and was laid off. Further, Webb's
implication — that the person who included him in the June 2001 RIF
might have discriminated against him — rings hollow in light of the fact
that Webb could not even identify that person.
4
who were laid off. The person who decided to include Webb in
the 2003 RIF was Tim Leddy (“Leddy”), the same person who,
a year and five months earlier, had decided to hire Webb to
work in the Customer Operations department. Leddy — who
was himself 45 years old at the time of the RIF — submitted an
affidavit stating that he did not know Webb’s age in making the
decision to place Webb “among the individuals [Leddy] decided
to include in the RIF.” Likewise, Leddy did not know about
“Webb’s alleged complaints regarding his employment
(specifically, that he claims he was treated unlawfully because
of his age). In fact, [Leddy] was unaware that [Webb] had even
talked to Human Resources regarding any workplace issues.”
When the January 2003 RIF was announced, Webb was
offered the choice of a severance package or a retirement
package. The retirement package option expired in 45 days, and
Webb decided not to accept it. Thirty-seven days after the
retirement option expired, Webb changed his mind and
submitted to HR a “formal request to retire from Level 3... .”
Because Webb had “retained legal counsel with regard to [his]
claims concerning [his] separation from employment,”
HR referred Webb’s request to Level 3’s legal department.
Thereafter, Webb’s request for retirement benefits was denied
because it was untimely.
After Webb was laid off, he applied for several jobs at Level
3 — including a job for the position of Program Manager — but
he did not receive an interview. Although Webb has brought a
separate EEOC Charge — and a second age discrimination
lawsuit which is currently pending in federal court, see Webb v.
Level 3 Commc’ns, L.L.C., No. 05-cv-773-RPM-BNB (D. Colo.
filed Apr. 27, 2005) — based on Level 3’s post-termination failure
to hire him, Webb also alleged in this case that the failure to
hire showed that his inclusion in the RIF was based on
discrimination.
li. PROCEDURAL HISTORY
On October 7, 2003, Webb filed a lawsuit against Level 3
in the United States District Court for the District of Colorado
against Level 3. Webb alleged claims for discrimination and
retaliation in violation of the Age Discrimination in Employment
5
Act, 29 U.S.C. §§ 621-34 (2006) (“ADEA”). On April 1, 2004,
Level 3 moved for summary judgment on Webb’s claims.
On January 11, 2005, the district court granted Level 3’s
motion. The court found that although Webb had established a
prima facie case of age discrimination, Level 3 had produced a
legitimate, non-discriminatory reason for Webb’s discharge — a
RIF — and “no reasonable jury could conclude that Mr. Webb’s
employment was terminated for any reason apart from a
reduction in force.” (Supp. App. at 30a.) The court also found
that (a) Webb had failed to establish a prima facie case of
retaliation because he had “offered no evidence as to a causal
connection” between the protected action and the adverse
employment action (id. at 31a); and (b) even if Webb had
presented a prima facie case of retaliation, Level 3 had produced
evidence of a nondiscriminatory reason for Webb’s termination
and Webb had “not offered sufficient evidence from which a
reasonable jury could conclude that Level 3’s reason is
pretextual.” (/d.)
Webb appealed. On January 25, 2006, the United States
Court of Appeals for the Tenth Circuit affirmed the district
court’s grant of summary judgment.
Ill. FACTUAL ERRORS IN THE PETITION
Supreme Court Rule 15(2) provides that respondents “have
an obligation to the Court to point out in the brief in opposition,
and not later, any perceived misstatement made in the petition.”
Level 3 identifies the following misstatements in the Petition.
1. Webb asserts that Level 3 hired Webb “to tap into his
expertise in a certain technical area” (Pet. at 2), and that Webb
“was so informed by Level 3... .” (/d.) Neither assertion is
supported by any evidence. (See App. at | Sa-16a (“Webb [argues
that] Level 3 initially hired older employees in order to ‘milk’
their expertise. . .. Webb has presented no evidence to support
his conspiracy theory.”).)
2. Webb claims that he “directly observed that the company
was made up primarily of males in their 20s and 30s, and the
number of employees older than that was in the low single digits.
This was an objectively observable fact.” (Pet. at 2-3.) Webb's
contention is erroneous, and illustrates the fallacy in Webb's
6
persistent portrayal of subjective opinions as objective facts.
Although Level 3’s workforce (like that of many
telecommunications companies at the time) was comparatively
young, Webb’s claim that he “directly observed” that the
percentage of employees 40 or older was “in the low single
digits” is an egregious exaggeration. At the time of the January
2003 RIF, 28.2 percent of Level 3’s workforce was 40 or older.
(App. at 8a.)
3. Webb claims that in Abuan v. Level (3) Communications,
Inc., 353 F.3d 1158, 1165 (10" Cir. 2003), a jury finding of age
discrimination “was upheld upon evidence of a young work
force with little senior oversight.” (Pet. at 2.) Webb
mischaracterizes the basis on which the court upheld the jury
verdict in Abuan. In Abuan — which, unlike this case, did not
involve a RIF but involved the demotion of an employee during
a time when Level 3 was “actively recruiting new employees,”
353 F.3d at 1169 — the court’s evaluation of the sufficiency of
the evidence did not rely on, discuss, or even mention the age
of the workforce. See id. at 1168-70.°
4. Webb asserts that he learned that the RIF criteria that
Level 3 announced “were not applied to him at all.” (Pet. at 3.)
“Instead,” Webb argues, “a human resources manager informed
plaintiff that he had been terminated because his position had
been eliminated. This directly contradicted the announced RIF
criteria.” (/d.) There is no inconsistency between the announced
RIF criteria and a statement that Webb’s position had been
eliminated. In the January 2003 RIF, one Program Manager II
position — Webb’s — was eliminated. The selection of Webb’s
position (as opposed to another employee’s Program Manager
II position) was based on specified RIF criteria. In fact, Level
3’s application of its RIF criteria was examined at length by the
Tenth Circuit. Webb’s attempt to create a contradiction fails.
(See App. at 12-14a.)
5. Webb argues that he was the only Program Manager II
older than 45 years of age who was included in the RIF. (Pet. at
3.) Webb’s use of the “45 years old” cutoff is misleading. The
3. In its discussion of the facts, the court repeated testimony that
Level 3°s workforce was young. That testimony was not relied on in
evaluating the sufficiency of the evidence. /d. at 1165.
a,
7
ADEA protects individuals who are 40 years of age and older;
and four of the eight employees (including Webb) with the title
of Program Manager II were 40 years of age or older.‘
6. Webb claims that several employees under the age of
40 with whom Webb had worked, and whom he had “directly
observed” were not laid off even though they had not worked
for Level 3 as long as Webb had. (/d. at 3-4.) The Tenth Circuit
found that Webb “failed to provide any specific facts” supporting
his belief that he had more seniority and experience, and made
superior contributions, than his peers. (App. at 13a.) The court
stated: “There is virtually no evidence in the record, aside from
vague generalities and speculation, as to the qualifications of
Webb’s peers.” (/d.) Further, Webb never attempted to show
that the individuals to whom he is referring in this cryptic
statement were comparators.
7. Webb asserts that “[w]hile working at the company,
[Webb’s] formal performance evaluations were e .cellent, i.e.
‘at or above’ expectations.” (Pet. at 4.) Webb’s evaluations were
generally, but not uniformly, favorable. (Supp. App. at 23a (Fact
No. 10).) Further, Webb provides no evidence comparing his
evaluations to those of other employees.
8. Webb argues that the favorable reviews he received
constitute “strong evidence in a discrimination case... .” But
“in a RIF a record of positive performance reviews is generally
unpersuasive evidence of age bias because ‘even capable employees
are released when an employer is down-sizing.’ ” Brown v.
McDonnell Douglas Corp., 113 F.3d 139, 142 (8th Cir. 1997)
(quoting Hutson v. McDonnell Douglas Corp., 63 F.3d 771,
781 (8 Cir. 1995)); accord Rea v. Martin Marietta Corp., 29
F.3d 1450, 1456 (10th Cir. 1994) (quoted at App. at 13a.).°
4. The Tenth Circuit says that “Webb was one of seven individuals
who held the position of Program Manager II” and that “four were under
the age of forty, and three were over forty years of age.” (App. at 12a.)
This enumeration does not include Webb himself.
5. In fact, if positive performance evaluations are evidence of anything,
they are evidence of no discriminatory animus, since it is unlikely that a
company would praise an employee against whom it was prejudiced, just
so it could then take discriminatory action against him or her. See Stidham
v. Minn. Mining & Mfg., Inc., 399 F.3d 935, 940 (8th Cir. 2005).
8
9. Webb expresses the belief that his transfer in 2001 from
the Network Development department to the Customer
Operations department “made him vulnerable to RIF
termination.” (Pet. at 4.) Webb concedes that this belief is
“subjective,” but contends that his inclusion in the January 2003
RIF transforms his belief into “an objective fact.” (/d.) The fact
that Webb was included in a RIF after his transfer does not
mean he became “more vulnerable” as a result of the transfer.
Indeed, the undisputed facts establish just the opposite. If Webb
had not transferred to the Customer Operations department,
he would have been laid off a year and a half earlier, in the
June 2001 RIF. Further, the Tenth Circuit found that Webb had
“presented no evidence to support” the argument that his 2001
transfer made him more vulnerable to a subsequent RIF, and
that is was “based purely upon speculation, and speculation is
insufficient to raise a genuine issue of material fact as to pretext.”
(App. at 15a-16a.) Still further, even if one were to accept Webb’s
speculation that his 2001 transfer made him more vulnerable to
a RIF in 2003, that fact would not be probative in any way of
age discrimination. To make such a causal leap, one would have
to assume that when Webb was hired laterally in June 2001, the
person who hired him — Leddy — was sufficiently prescient to
realize that in a year and a half, (a) Level 3 would have another
RIF,° (b) the January 2003 RIF would affect the Customer
Operations department more heavily than the Network
Development department, and (c) Leddy would, at that time,
have the opportunity to lay off Webb. If Leddy had such
discriminatory animus, it would have been much simpler for
him simply not to hire Webb for the lateral position. As this
Court emphasized in Matsushita, “if the factual context renders
[a party’s] claim implausible . . . [the party] must come forward
with more persuasive evidence to support [his] claim. . . .”475
U.S. at 587.
had no knowledge about any subsequent layoffs in January 2003. Thus,
the undisputed evidence — as well as common sense — demonstrates
that Webb was not transferred so that he would be more vulnerable to
layoff a year and a half later.
9
10. Webb asserts that when he was transferred to Customer
Operations in 2001, “contrary to routine the company then
provided no planning for [his] future career progression, as it
did for other, younger employees.” (Pet. at 5.) The assertions
that Level 3 had a “routine” practice of planning for its
employees’ “career progression,” and that Level 3 planned for
the future career progression of its younger employees, are
unsupported by the record.
11. Webb states that “Elsa Svensson, in her mid-30s,” had
“no prior experience in network development and no prior
experience as a supervisor, as she readily conceded.” (/d. at 5.)
This statement is unsupported by the record. Webb did not
introduce Svensson’s “prior experience” into the record, and
he did not introduce evidence that Svensson “conceded” a lack
of experience.
12. Webb contends that “[nJinety percent of plaintiff’s
peers,” all of whom were under 40, received promotions while
Webb did not. (/d. at 5-6.) The Tenth Circuit found that Webb’s
allegations about unfair promotions were unsupported by the
record: Z
Webb offers the names of ten individuals whom he
contends are younger and less experienced but
received promotions. The record contains virtually
no evidence as to the specific qualifications of each
of these individuals, and the little evidence Webb
presented was based on hearsay, vague generalities,
and speculation. Webb also failed to identify, with
any detail, when these promotions occurred and how
these prior incidents are connected to his termination
in the January 2003 RIF.
(App. at 9a.) Further, Webb testified in deposition that the only
basis for his claim of discrimination in promotion was that the
people who were promoted to the level of director were younger
than he was. Still further, all of the individuals Webb identified
worked in Level 3’s Network Development department, which
Webb left in 2001. As the district court found, Webb “offer[ed]
no evidence to connect these prior instances of alleged
discrimination with Mr. Leddy’s decision to include him in the
[RIF].° (Supp. App. at 29a.)
10
13. Webb states that on November 14, 2002, he went to
HR to “register his concerns” about discrimination. (Pet. at 6-
7.) This assertion about the reason for Webb’s meeting with
HR is contradicted by Webb’s deposition testimony. Webb
testified at deposition that the sole reason for the meeting with
HR was that Webb wanted “assistance from HR in finding
opportunities that could better utilize [his] experience and
expertise. ...” Webb also states that during this meeting, he
expressed the view that Level 3 was “a company dominated by
younger males and that the company had a disproportionately
low number of older males.” (/d. at 7.) This assertion is contrary
to the record.
14. Webb states that the HR representative “took
handwritten notes during plaintiff’s discussion about
discrimination, but said notes have never been found.” (/d. at
7.) This is incorrect. The notes were typed up, and the typed
notes were identified in Level 3’s disclosures and made available
for inspection and copying.
15. Webb makes several statements about an employee
named Jason Pearce (“Pearce”). (/d. at 7-8.) These statements
concern the June 2001 RIF, and not the January 2003 RIF when
Webb was laid off. (See App. 15a.) Webb also attributes
statements about Webb’s superior experience to Pearce. (See,
e.g., Pet. at 8 (“Plaintiffhad been Pearce’s ‘mentor’ and “teacher,”
according to Pearce himself.’’).) Pearce, however, provided no
testimony in this case. Thus, Webb’s attribution of statements
to Pearce either are unsupported by the record, or are based
solely on hearsay (statements by Webb about what Pearce
purportedly said to Webb).
16. Webb contends that “[t]he sole explanation for the RIF
selection of plaintiff was completely subjective.” (Pet. at 8.)
The court found that Webb, yet again, failed to present evidence
supporting his assertion, and that the record showed otherwise.
(See App. at 13a-14a (“Webb has not shown that Leddy’s
decision was based entirely upon subjective criteria. Rather the
1]
evidence indicates that Leddy considered both objective and
subjective criteria.”’).)’
17. Inresponse to Level 3’s motion for summary judgment,
Webb presented an affidavit in which he, for the first time, told
a story about a meeting with Leddy (after Webb was discharged),
in which Leddy “spontaneously asked [Webb] if he thought he
had been discriminated against.” Webb contends this question
raises an issue of pretext. Ignoring the questionable veracity of
Webb’s fortuitous remembrance, the question is not probative
of discrimination by Leddy. See Fed. R. Evid. 401. (See also
App. at 19a (“Assuming Leddy made such an inquiry after
Webb’s termination, we do not believe a reasonable juror could
infer, from that statement alone, that Leddy had knowledge of
Webb’s prior meeting with Isom.”’).)*
18. Webb claims that although he was offered the option
of early retirement, when he attempted to select that option, he
was referred to Level 3’s legal department “because plaintiff
had hired a lawyer.” The legal department then denied Webb’s
request for early retirement. Webb’s claim ignores the facts that
(a) the option of early retirement — offered to all employees
who were subject to the January 2003 RIF — expired 45 days
after it was offered, (b) Webb initially declined to apply for the
option, and (c) it was only after the option expired that Webb
changed his mind and attempted to select the early retirement
option. Further, as the Tenth Circuit recognized, because the
denial decision occurred after Webb’s layoff and was made by
a different individual in a different department, it was “not
sufficiently connected to his termination to demonstrate pretext.”
(App. at Ila.)
REASONS FOR DENYING THE PETITION
Webb’s Petition should be denied for the following reasons:
First, the questions it presents are based on a supposed
7. Webb also asserts that Leddy’s “only pertinent statement of
analysis” was that “ ‘I considered input from Mr. Webb's direct
supervisor, Davetta Garcia.’ ” (Pet. at 8.) In truth, Leddy presented an
affidavit to the district court that provided additional detail. Moreover,
Webb elected not to take Leddy’s deposition.
8. Moreover, Webb fails to mention that in response to this
question, he did not claim discrimination.
12
misapplication by the Tenth Circuit of the correct summary
judgment standard, and certiorari review is “rarely granted”
based on such an asserted error. Moreover, Webb does not assert
that any of the reasons set out in Rule 10 for granting a petition
apply here. Second, Webb’s assertion that the court of appeals
failed to properly apply the correct summary judgment standard
is based on (a) Webb’s purposeful ignorance of the law governing
summary judgment — Webb does not examine, discuss, review,
or even cite to any of this Court’s trilogy of seminal summary
judgment decisions, and he does not discuss, review, or cite to
Rule 56 — ; and (b) a blatant mischaracterization of the factual
record in this case. If the applicable summary judgment standard
is applied to the actual facts, it becomes evident that the court
properly applied the summary judgment standard. Accordingly,
the Petition advances no reason why certiorari review would be
appropriate here.
I. THE PETITION SHOULD BE DENIED BECAUSE
THE QUESTIONS IT PRESENTS MERELY ASSERT
THAT THE TENTH CERCUIT MISAPPLIED THE
SUMMARY JUDGMENT STANDARD.
In his Petition, Webb does not dispute that the Tenth Circuit
delineated the correct summary judgment standard in its opinion.
Nor could he; the court expressly quoted the standard set forth
in Rule 56. “Summary judgment is appropriate,” the court stated,
“ ‘if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’ ”
(App. at 4a (quoting Fed. R. Civ. P. 56(c).) Further, the court
articulated the proper perspective for reviewing summary
judgment evidence. “ ‘We view the evidence, and draw
reasonable inferences therefrom, in the light most favorable to
the nonmoving party.’ ” (App. at 4a (quoting Combs v.
Price Waterhouse Coopers LLP, 382 F.3d 1196, 1199 (10th Cir.
2004) (citation omitted)); see, e.g., Immigration and
Naturalization Serv. v. Abudu, 485 U.S. 94, 101 (1988) (* ‘On
summary judgment the inferences to be drawn from the
underlying facts contained in such materials must be viewed in
the light most favorable to the party opposing the motion.’ *’)
13
(citing U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Thus,
the Tenth Circuit “properly stated” the “rule of law” applicable
to summary judgment motions.
Nonetheless, Webb argues that the Tenth Circuit erred
because it misapplied the applicable summary judgment
standard. First, Webb asserts, the court gave insufficient credence
to evidence, favorable to him, showing (1) inconsistency and
subjectivity in the application of RIF criteria; (2) the “young
age of the company’s workforce;” (3) Webb’s personal
comparison of himself with younger employees; (4) prior acts
against Webb; and (5) post-termination acts against him. (Pet.
at 12-13.) Second, Webb contends, the court misapplied the
summary judgment standard by ruling that (1) “[t]he decision
to terminate [Webb] was in part objective and that defeats a
showing of pretext;” and (2) “after [Webb’s] termination, his
duties were divided up among other employees, and that defeats
a showing of pretext.” (Pet. at 13.)
Webb mischaracterizes both the “evidence” and the Tenth
Circuit’s rulings. More significantly for purposes of ruling on
the Petition, however, the purported errors claimed by Webb
are nothing more than allegations that Rule 56 was misapplied.
For instance, Webb criticizes at length the Tenth Circuit’s ruling
— which is consistent with decisions over more than a decade
by other circuit courts of appeal’ (and with other decisions by
the Tenth Circuit) — that Webb’s personal beliefs about the
superiority of his own qualifications compared to the
qualifications of other employees are insufficient to create a
genuine issue of material fact as whether the reasons given for
including Webb in the RIF were pretextual. But Webb’s criticism
is simply another way of saying that the court did not properly
apply the summary judgment standard because it failed to draw
9. See, e.g., Curby v. Solutia, Inc., 351 F.3d 868, 874 (8th Cir.
2003); Simms v. Okla. ex rel. Dept of Mental Health and Substance
Abuse Servs., 165 F.3d 1321, 1329 (10th Cir. 1999): Shorette v. Rite Aid
of Me., Inc., 155 F.3d 8, 15 (1st Cir. 1998); Ost v. W. Suburban Travelers
Limousine, Inc., 88 F.3d 435, 441 (7th Cir. 1996): Nichols v. Loral Vought
Sys. Corp., 81 F.3d 38, 42 (Sth Cir. 1996): Holt v. KMI-Cont'l. Inc., 95
F.3d 123, 129 (2nd Cir. 1996); Johnson v. U.S. Dept of Health and
Human Servs., 30 F.3d 45, 47 (6th Cir. 1994).
14
all “reasonable inferences” from Webb’s characterization of his
qualifications. Similarly, Webb criticizes the Tenth Circuit
because it supposedly “weighed and discounted” certain
unsubstantiated allegations — which Webb incorrectly calls
“circumstantial evidence” — including such things as “the
background level of a workforce dominated by young people
with little senior supervision, a prior reassignment of [Webb]
to a job that made him more vulnerable to layoff; [and the] .
failure thereafter to provide career planning typical for other,
y unger employees. . . .” (Pet. at 25-26.) Again, however, the
court’s purported weighing and discounting of this “evidence”
implicate nothing more than the way the court applied the
correctly articulated summary judgment standard.
The same is true of each of the 10 questions presented by
the Petition. Each addresses the correct way for a court to apply
the standard for summary judgment. The first question asks
whether a court should discount an employee’s “evidence of
his own qualifications and performance . . . as mere opinion.”
(Pet. at ii.) The second question asks whether it is error for a
court to conclude that an employer’s “total deviation from
announced criteria for [a] reduction in force” was insufficient
to prove pretext. (/d.) The third asks whether a court misapplies
the summary judgment standard if it rules that “prior acts against
plaintiff and in favor of others outside the protected class” are
not relevant to prove pretext. (/d.) The fourth asks whether a
court conclusion that “subsequent acts against an employee after
termination . . . are relevant to prove pretext” is error. And on
and on. Characterized fairly, each question does nothing more
than challenge a supposed ruling that, according to Webb,
misapplied the correct standard for summary judgment. As such,
each assertion of error consists of — at most — the “misapplication
of a properly stated rule of law” for which review is “rarely
granted.” Sup. Ct. R. 10.
Il. THE PETITION SHOULD BE DENIED BECAUSE
NONE OF THE REASONS SET FORTH IN RULE 10
FOR GRANTING A PETITION APPLIES HERE.
Nor does this case presents one of the “rare” instances that
might justify review of a court of appeals’ alleged “misapplication
of a properly stated rule of law.” This is a garden-variety age
15
discrimination case. It does not raise unusual or complex
questions of law, it does not present unsettled issues, it does not
require consideration of new or novel analyses, and it does not
concern legal questions about which other courts disagree. In
fact, this case does not implicate — and Webb does not even attempt
to argue that this case implicates — any of the guidelines identified
in Rule 10 as “indicat[ing] the character of the reasons the Court
considers” in granting certiorari review. Sup. Ct. R. 10.'°
A. The Tenth Circuit’s Decision Does Not Conflict with
the Decision of Another United States Court of
Appeals on the Same Important Matter, or a
Decision by a State Court of Last Resort.
Rule 10 recognizes that certiorari review may be granted
where a court of appeals (a) issues a decision that conflicts “with
the decision of another United States court of appeals on the
same important matter,” or (b) decides “an important federal
question in a way that conflicts with a decision by a state court
of last resort. . . .”” Sup. Ct. R. 10. Neither situation exists here.
Webb’s Petition indisputably does not assert a conflict between
the Tenth Circuit’s decision in this case, and a decision by a
state court in another case. In fact, Webb’s Petition does not
cite to a single state court decision, conflicting or otherwise."
Likewise, Webb’s Petition does not assert a conflict between
the decision here and decisions by other court of appeals. Indeed,
the opposite is true. Webb argues that the Tenth Circuit is
following the lead of other appellate courts in supposedly
misapplying the proper summary judgment standard. (See Pet.
at 14-15 (repeated assertion that “an increasing number of courts
of appeals” are misapplying the correct standard for summary
judgment) (capitalization and emphasis omitted).) Webb
identifies several rulings by the court in this case, and then cites
consistent decisions over the past 10 years by the Tenth Circuit
or other courts of appeals. See, e.g., id. at 22 (criticizing Tenth
10. In his Petition, Webb never once discusses, quotes from,
paraphrases, or cites to Rule 10.
11. Because no state court decision is at issue, the guidelines for
certiorari review in Rule 10(b) and (c) are also inapposite. See Sup. Ct.
R. 10(b), (c).
16
Circuit for “adopt[ing] a rule of law previously created by
Seventh Circuit” and citing consistent decision by Eleventh
Circuit); id. at 24 (describing “ ‘mere opinion’ line of cases from
Tenth Circuit and from other circuits” as “a de facto variety of
[a] new rule of law” in Eighth and Ninth Circuits); id. at 17
(citing consistent decisions by Ninth and Eighth Circuits). Thus,
Webb does not complain of inconsistent rulings by other
appellate courts; he complains of consistent rulings by them.
B. The Tenth Circuit’s Decision Is Not Such a
Departure from the Accepted and Usual Course of
Judicial Proceedings as to Require an Exercise of
the Court’s Supervisory Power.
Under Rule 10, this Court also considers granting certiorari
review when a court of appeals “has so far departed from the
accepted and usual course of judicial proceedings . . . as to call
for an exercise of this Court’s supervisory power. . . .” Sup. Ct.
R. 10. That is not the situation here.'* The Petition itself
demonstrates that the Tenth Circuit’s decision is not a dramatic
departure from “accepted and usual” decisions by other courts.
As noted previously (see supra §11.A), the Petition complains
that the court’s decision in this case is in accordance with
accepted and usual decisions of other courts, not that it 1s a far
departure from them.
Ill. WEBB’S ASSERTION THAT THE TENTH CIRCUIT
IN THIS CASE FAILED TO FOLLOW ESTABLISHED
LAW GOVERNING SUMMARY JUDGMENT
MOTIONS IS WITHOUT MERIT.
Rather than attempt to argue that his Petition should be
granted because the questions it presents fall within the
guidelines identified in Rule 10, Webb apparently believes the
Court should grant the Petition because the Tenth Circuit’s ruling
epitomizes what Webb perceives as a massive groundswell of
judicial insubordination by federal courts. According to Webb,
the Tenth Circuit in this case (and other federal circuit courts in
similar cases), is refusing to follow established precedent by
12. To the extent this guideline is directed toward procedural
irregularities, it is inapposite on its face because Webb does not identify
any uregularity in the judicial proceedings themselves.
17
this Court delineating the proper application of Fed. R. Civ. P.
56. Asa result, Webb implies, this Court should grant the Petition
to quell the judicial insurrection by the Tenth Circuit (and the
other courts of appeal)."’
Webb’s view that the Tenth Circuit in this case failed to
follow established precedent is legally and factually erroneous.
The decision by the court in this case is entirely consistent with
Rule 56 and this Court’s summary judgment decisions.
Accordingly, the Petition presents no reason why certiorari
review would be appropriate.
A. This Court Delineated the Correct Summary
Judgment Standard in Celotex, Anderson, and
Matsushita.
Twenty years ago, this Court issued a trilogy of cases —
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475
U.S. 574 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986), and Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986) — that addressed the purposes of, and standards for,
summary judgment. A principal purpose of Fed. R. Civ. P. 56,
the Court declared, “is to isolate and dispose of factually
unsupported claims or defenses. . . .”” Celotex, 477 U.S. at 323-
24; see also Matsushita, 475 U.S. at 587 (“purpose of summary
judgment is to ‘pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial’ ’’) (quoting
Fed. R. Civ. P. 56(e) advisory committee’s note (1963)).
Accordingly, the Court concluded, Rule 56 “should be
interpreted in a way that allows it to accomplish this purpose.”
Celotex, 477 U.S. at 324.
The Court then outlined the correct interpretation of Rule
56. A party moving for summary judgment must demonstrate
to the district court that “* ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
13. Even if the Court were to conclude that courts of appeals have,
in certain cases, misapplied the correct summary judgment standard,
the Court should still deny the Petition. Regardless what other appellate
courts may be doing, in this case the Tenth Circuit correctly applied the
summary judgment standard. Thus, a grant of certiorari review here,
for the purpose of instructing other appellate courts in other appellate
cases, would be nothing more than an advisory opinion.
18
affidavits, if any,’ ” show that “ ‘there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.’ ” Celotex, 477 U.S. at 322 (quoting
Fed. R. Civ. P. 56(c)). When the moving party makes a proper .
showing, the nonmoving party — if it bears the burden of proof
at trial — must “go beyond the pleadings and by [its] own
affidavits, or by the ‘depositions, answers to interrogatories,
and admissions on file,’ designate ‘specific facts showing that
there is a genuine issue for trial.” ” Jd. at 324.
The obligation of a nonmoving party to show a factual
dispute “has two components.” Matsushita, 475 U.S. at 586.
The dispute must be material, and it must be and genuine. See
Anderson, 477 U.S. at 247-48 (the Rule 56 standard “provides
that the mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact”) (emphasis in original)).
A disputed fact is material when it “might affect the outcome of
the suit under the governing law. . . .” /d. at 248. Thus, “[f]actual
disputes that are irrelevant or unnecessary” are not material and
“will not be counted.” /d.
A disputed issue of fact is genuine when it is sufficient to
allow a reasonable jury to return a verdict for the nonmoving
party. /d. at 249. Evidence that “is merely colorable, or is not
significantly probative,” will not create a genuine issue, and
“summary judgment may be granted.” /d. at 249-50 (citations
omitted); see also Matsushita, 475 U.S. at 587 (“When the
moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. In the language of
the Rule, the nonmoving party must come forward with ‘specific
facts showing that there is a genuine issue for trial.’ ”) (citations
omitted) (emphasis in original). Likewise, evidence that is based
on speculation “does not create a genuine issue of fact; instead,
it creates a false issue, the demolition of which is a primary
goal of summary judgment.” Lexington Ins. Co. v. W. Pa. Hosp.,
423 F.3d 318 (3d Cir. 2005) (quoting Hedberg v. Ind. Bell Tel.
Co., Inc., 47 F.3d 928, 932 (7" Cir. 1995) (emphasis in original)).
19
Under Rule 56, therefore, judges are not “ ‘required to
submit a question to a jury merely because evidence has been
introduced by the party having the burden of proof, unless the
evidence be of such a character that it would warrant the jury in
finding a verdict in favor of that party.” ” Anderson, 477 U.S.
at 251 (citations omitted). Rather, “in every case, before the
evidence is left to the jury, there is a preliminary question for
the judge, not whether there is literally no evidence, but whether
there is any upon which a jury could properly proceed to find a
verdict for the party producing it, upon whom the onus of proof
is imposed.” /d.
B. Webb’s Claim That the Tenth Circuit’s Opinion Is
Contrary to Reeves Is Without Merit.
As noted previously, although Webb contends that the Tenth
Circuit erroneously applied the corrects standard for summary
judgment, he does not discuss Celotex, Anderson, or Matsushita.
Rather, Webb relies solely on Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000), in which this Court
evaluated the standard (which is identical to the summary
judgment standard) for ruling on a motion for judgment as a
matter of law under Fed. R. Civ. P. 50.'* Webb claims that the
Tenth Circuit failed to follow:
the teaching of Reeves, supra, that questions of fact
are to be approached the same in discrimination cases
as in other cases. /d., at 148. “It therefore follows
that, in entertaining a motion for judgment as a
matter of law, the court should review ail of the
evidence in the record.” /d., at 150. [emphasis
added]. “. .. In so doing, however, the court must
draw all inferences in favor of the nonmoving party,
and it may not make credibility determinations or
weigh the evidence.” /d.
(Pet. at 23.)
14. To the extent Webb intends to suggest by his exclusive reliance
on Reeves that its standard differs from the standard in Celotex, Anderson,
and Matsushita, that suggestion is untenable. This Court clearly saw no
substantive difference; the Court cited all three of the summary judgment
decisions in Reeves, and it cited Anderson multiple times.
20
Webb’s argument that the Tenth Circuit’s decision is
contrary to Reeves is based on a misreading of the court of
appeal’s decision and a mischaracterization of the “evidence”
Webb presented. For example:
¢ Webb contends that “the Tenth Circuit was
required to take as true that plaintiff had
previously been evaluated by the company as ‘at
or above’ expectations” and that the court violated
Reeves when it failed to do so. (/d.) But the Tenth
Circuit expressly found that “overall Webb’s
performance met or exceeded expectations.”'°
(App. at 2a.) The Court did not find — because
there was no evidentiary basis for finding — that
Webb’s positive evaluations demonstrated
pretext. (See supra at 104 8 & n.5.)
¢ Webb claims that the Tenth Circuit “violat[ed]
the tenants of Reeves” when the court rejected
the allegation that Webb’s firing contravened the
announced RIF criteria, on the ground that a
purported inconsistency identified by Webb was
“insignificant.” (Pet. at 25 (citing App. at 7a).)
As shown below, the court neither weighed the
evidence nor stated that Webb’s allegation of an
inconsistency was “insignificant.” (See §1II.C.2,
infra & n.17.) Rather, the court found that Webb
had failed to show an inconsistency.
* Webb asserts that he presented “other forms of
circumstantial evidence,” including “the
background level of a workforce dominated by
young people with little senior supervision, [and]
a prior reassignment of plaintiff to a job that made
him more vulnerable to layoff. . . .” (Pet. at 25.)
Webb argues that the Tenth Circuit violated the
standard set forth in Reeves by “weigh[ing] and
discount[ing]” this “circumstantial evidence.” (/d.)
15. Webb surely is not suggesting that a court must take such an
assertion by an employee as true if an employer produces the actual
performance evaluations, and they show that the employee received
lower ratings.
21
But again, the Tenth Circuit did not weigh or
discount any evidence. Rather, it concluded that
these allegations either were “based purely upon
speculation” (App. at 16a), or insufficient,
without more, to “create an inference of
discrimination.” (See App. at 8a.) Both of these
conclusions are consistent with Reeves, and with
Celotex, Anderson, and Matsushita. Indeed,
Webb’s reliance on Reeves’ analysis under Fed.
R. Civ. P. 50 to argue that the Tenth Circuit should
have given greater weight to such things as
Webb’s speculation about the effect of his transfer
on his vulnerability to future layoffs is ironic.
Because such speculation by Webb would not be
admissible at trial, it would never be considered
in a motion under Rule 50.
C. The Tenth Circuit Properly Applied the Summary
Judgment Standard in This Case, and Thus the
Petition Provides No Basis for Reversal.
In this case, the district court and the court of appeals both
determined that the purported “evidence” presented by Webb
was insufficient to allow a jury to return a verdict in favor of
him. (App. at 20a; Supp. App. at 31a.) And examination of the
issues underlying the “questions presented” by the Petition
demonstrates that those courts were correct. Accordingly, not
only does the Petition fail to present any question for which
certiorari review is appropriate, it does not even present a basis
for reversal of the Tenth Circuit decision.
1. Anemployee s belief about his own qualifications
and performance is insufficient to create a dispute
as to a genuine issue of material fact.
The first question presented in the Petition concerns the
probative value of an employee’s belief as to his or her own
qualifications and performance as compared with other
employees.'® Webb’s contends that he “well-established [sic]:
16. Because Webb's characterizations of the “Questions Presented”
are one-sided, Level 3 rephrases them 1n what it considers a more neutral
manner.
22
(1) his own qualifications, based upon his own direct knowledge
of them; (2) the qualifications of comparators, who disclosed
those qualifications to him; (3) his own performance, as
expressed in performance evaluations by the company; [and]
(4) the performance of comparators, as he directly observed it
on the job... .” (Pet. at 18 (emphasis omitted).) Webb argues
that the evidence he produced on these subjects was sufficient
to establish that his inclusion in the RIF was pretextual, and the
Tenth Circuit misapplied the correct summary judgment standard
when it refused to consider these “objective assessments” on
the ground that they were “inadmissible opinion.” (/d. (emphasis
omitted).)
Webb misstates both the evidence he presented and the
Tenth Circuit’s rulings. The court did not hold that evidence by
Webb about the qualifications and performance of comparators
could not be considered in determining whether his layoff was
pretextual. See Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197
(2006). In fact the Tenth Circuit has held in multiple cases
that evidence of a disparity in qualifications may be sufficient
to create a question of fact as to pretext. See, e.g., Brooks v.
Barnhart, No. 02-1449, 78 Fed. Appx. 52, 55-56 (10" Cir.
Oct. 7, 2003). Rather, in this case the Tenth Circuit found that
Webb did not present sufficient evidence about the qualifications
and performance of other employees:
Webb has failed to provide any specific facts for
this conclusory statement [that he had more seniority,
more experience, and superior contributions when
compared to his peers]. There is virtually no evidence
in the record, aside from vague generalities and
speculation, as to the qualifications of Webb’s peers.
(App. at 13a.) Indeed, the Tenth Circuit’s finding is generous to
Webb. Not only did he not present evidence about the
qualifications of individuals he deemed to be comparators, he
did not present evidence showing that the individuals he
identified were in fact comparators.
Similarly, the Tenth Circuit did not rule that Webb’s
performance evaluations were inadmissible opinions. What the
court found was that in the context of a RIF, evidence of
satisfactory performance alone is not probative of pretext
23
because “ ‘someone has to be let go, . . . including satisfactory
employees.” ” (App. at 13a (quoting Rea v. Martin Marietta
Corp., 29 F.3d 1450, 1456 (10" Cir. 1994)). And because Webb,
once again, failed to produce any evidence of the performance
evaluations received by supposed comparators of Webb, the
court had no basis for concluding that a genuine issue of material
fact existed about whether Webb’s layoff was pretextual because
his evaluations were significantly superior to those of his
comparators.
The Tenth Circuit did conclude that Webb’s subjective
beliefs about the superiority of his own qualifications and
performance (or the inferiority of the performance of other
employees) was insufficient to prove pretext. (App. at 13a.) But
that has to be the case. If an employee could create a triable
issue of fact merely by expressing a heartfelt belief that he or
she was more qualified or performed better than other
employees, summary judgment would never be granted.
2. Webb failed to show that Level 3 deviated from
the RIF criteria.
The second quest on presented in the Petition concerns an
employer’s alleged deviation from the established criteria in
determining whether an employee will be included in the RIF.
Webb contends that Level 3 “announced one set of criteria for
selecting employees to be laid off (performance, skills,
qualifications, tenure)” but then “informed plaintiff he was being
laid off, instead, for a different reason — his job had been
eliminated.” (Pet. at 25.) Webb contends that the Tenth Circuit’s
label of this change as a “minor inconsistency” demonstrates
that the court “weighed” the evidence, violating basic summary
judgment law. (/d. (emphasis in original).)
Once again, Webb misreads the court’s decision. The court
did not dismiss Webb’s assertion on the ground that the supposed
change in criteria was a “minor inconsistency.’ It did so on
17. Webb’s “minor inconsistency” assertion is unwarranted, and
completely misrepresents the Tenth Circuit's analysis. (Compare App.
at 7a (quoting Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1168 (10th
Cir. 1998), for “minor inconsistency” standard) with App. at 12a-14a
(evaluating Webb’s claim of deviation from criteria without mentioning
“minor inconsistency”).)
24
the ground that Webb’s assertion — even if accepted as true —
did not show an inconsistency between the announced RIF
criteria and the statement that Webb’s position had been
eliminated. In the January 2003 RIF, one Program Manager II
position — Webb’s — was eliminated by Level 3. The selection
of Webb’s position (as opposed to another employee’s Program
Manager II position) was based on specified RIF criteria.
According!y, the two statements are completely consistent with
one another, and no reasonable jury could find that they were
evidence of pretext.
3. Webb failed to present evidence of prior
discriminatory acts, and he failed to present
evidence of a causal connection between the prior
acts and the decision to include him in the 2003
RIF
Webb characterizes the third question in the Petition as
whether evidence of prior acts of discrimination against him is
relevant to prove pretext. But that issue is not implicated here.
The Tenth Circuit did not hold, in this case or any other case of
which Level 3 is aware, that evidence of prior acts of
discrimination against a party is never relevant to establish
pretext. Rather, the court held in this case, as it has held in
numerous other cases over the past 20 years, see, e.g., Colon-
Sanchez v. Marsh, 733 F.2d 78, 81 (10" Cir. 1984), that evidence
of prior discriminatory acts against a party can establish pretext
if“ ‘the prior incidences of alleged discrimination can somehow
be tied to the employment actions disputed in the case at hand.” ”
Heno v. Sprint/United Mgmnt. Co., 208 F.3d 847, 856 (10" Cir.
2000) (quoting Simms v. State of Okla., 165 F.3d 1321, 1330
(10 Cir.1999); (see App. at 9a, 10a.) Here, the Tenth Circuit
found that Webb’s allegations of prior discrimination were
insufficient to establish pretext for three reasons: they were
unsupported by evidence, Webb failed to make any showing of
a connection between the prior allegations and his inclusion in
the January 2003 RIF, and the alleged events were too remote
in time to demonstrate pretext. (See App. at 9a-1 1a.)
25
4. Webbs claim of post-layoff discrimination in the
denial of retirement benefits was unsupported by
evidence and was unconnected with the decision
to include him in the 2003 RIF.
The fourth question presented in the Petition is “[w]hether
subsequent acts against an employee after termination, such as
denial of retirement benefits, are relevant to prove pretext.” (Pet.
at ii.) Webb’s attempt to use post-layoff events to prove pre-
layoff discrimination founders for two reasons. First, Webb, once
again, failed to produce evidence from which a jury could find
that the events were due to discrimination. For example, Webb
claims that the denial of retirement benefits was discriminatory.
But Webb cannot dispute that he was notified that the option to
receive retirement benefits would expire, that Level 3 never
attempted to prevent Webb from exercising the option before it
expired, and that Webb did not try to exercise that option
until more than a month after it expired. See Trotter v. Todd,
719 F.2d 346, 349 (10" Cir. 1983) (no prima facie case where
defendants complied with internal policy). Thus, to show that
the decision to deny his untimely request for option benefits
was due to discrimination, Webb would have to produce
evidence that other employees — who were outside the ADA’s
protected class and who were subject to the RIF — were allowed
to receive retirement benefits pursuant to the option when their
requests were made untimely, even though Webb was not.
Needless to say, there is no such evidence.
Second, for post-discharge actions to be probative of
pretext, they, just like prior actions, must be causally connected
to the discharge. But here, no causal connection existed. (Pet.
at lla.) The decision to deny Webb’s untimely request for
retirement benefits was not made by Leddy — the person who
included Webb in the RIF — and there is no evidence that Leddy
even knew about the decision. Accordingly, the Tenth Circuit
correctly found that the post-termination actions about which
Webb complains, such as the denial of his request to exercise
untimely the early retirement option, are not probative on the
issue of pretext.
26
5. The implications Webb attempts to make with his
rhetorical “questions presented” are baseless.
Four of the 10 questions presented in the Petition are
rhetorical. They ask whether, in a discrimination case:
(a) circumstantial evidence must be considered as a whole; (b) all
reasonable inferences should be drawn in the nonmovant’s favor;
(c) a court should conduct a “sensitive inquiry” as to
discriminatory animus and pretext, and (d) issues of credibility
although Webb uses these rhetorical questions to imply that the
Tenth Circuit did not follow basic summary judgment standards,
that implication is false. First, the court’s decision demonstrates
on its face that the court considered the evidence as a whole.
After exhaustively evaluating Webb’s allegations, the court of
appeals concluded: “Based on the foregoing, Webb has failed
to present sufficient evidence of pretext to preclude summary
judgment on his age discrimination claim.” (App. at 16a
(emphasis added).) Second, the Tenth Circuit expressly
recognized its obligation to draw all reasonable inferences in
Webb’s favor. (See App. at 4a.) Third, the care taken by the
Tenth Circuit in evaluating the evidence demonstrates that it
performed a “sensitive inquiry” into Webb’s claims. Although
the decision was unpublished, the court’s opinion is 20 pages
long. (See App. at la-20a.) And fourth, the decision discloses
that the court did not determine issues of credibility. Nowhere
did it reyect evidence presented by Webb on the ground that it
was not credible. To the contrary, even where the court could
have legitimately rejected evidence by Webb — such as Webb’s
belated recollection of a mesting with Leddy, see Orta-Castro
v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105,
110-11 (1st Cir. 2006) — the Tenth Circuit did not do so. Instead,
it accepted the evidence presented by Webb as true, and
evaluated his claims based on it.
6. The Tenth Circuit correctly found that the RIF
criteria were not completely subjective.
The penultimate question presented in the Petition is based
on Webb’s assertion that the criteria used in determining the
employees to include in the RIF were “substantially subjective.”
According to Webb, this demonstrates pretext. (Pet. at ii.) Webb
27
misstates the rule concerning the use of subjective criteria.
Pretext “is ordinarily inferred ‘only when the criteria on which
the employers ultimately rely are entirely subjective.’ ” Platero
v. Williams Field Servs. Co., No. 05-2006, 2006 WL 864851,
at *3 (10th Cir. Apr. 5, 2006) (emphasis in original) (quoting
Jones v. Barnhart, 349 F.3d 1260, 1267-68 (10th Cir.2003)).
Here, as Webb’s question presented implicitly concedes, “Leddy
considered both objective and subjective criteria.” (App. at 14a.)
Moreover, “[t]he inference of pretext in this context is based
on the idea that a decision-maker could cloak his bias in an
unassailable subjective judgment. Thus, when a subjective
decision is made by someone whose motives have been put in
question in the case, an inference of pretext may be appropriate.”
Slip Op. at 3, Platero, No. 05-2006 (original emphasis partially
omitted). But the motives of the decision maker who included
Webb in the RIF — Leddy — have never been “put in question.”
(See Supp. App. at 23a) (“There is no evidence that Mr. Leddy
decided to include Mr. Webb in the 2003 reduction in force
because of his age.”’). In fact, the opposite is true. Leddy himself
was a member of the same protected class as Webb; which would
tend to negate any inference of prejudice. And Leddy was also
the same person who, a year and a half earlier, had made the
decision to hire Webb. This fact, as numerous courts have
recognized, creates “ ‘an inference that discrimination was not
the employer’s motive in terminating the employee.’ ”
Cartagena v. Aegis Mortgage Corp., No. 01-20324, 275 F.3d
46 (5" Cir. 2001) (not selected for publication) (quoting Faruki
v. Parsons S.1.P., Inc., 123 F.3d 315, 320 n.3 (5 Cir. 1997).
Accordingly, the mere fact that some of the criteria used in
selecting employees for inclusion in the RIF were subjective is
insufficient for a jury to find that Webb’s inclusion was
discriminatory.
7. The Tenth Circuit correctly affirmed the district
court’ grant of summary judgment on Webb’
retaliation claim on the ground that no causal
connection existed between the protected activity
and the adverse employment action.
The final question presented in the Petition concerns the
correct elements of a claim for retaliation. In his complaint,
28
Webb alleged that his inclusion in the RIF was in retaliation for
his charge, made to Isom in November 2002, that Webb had
been the victim of discrimination. The district court granted
summary judgment on Webb’s retaliation claim, which the Tenth
Circuit affirmed, on the ground that the undisputed evidence
showed that the person who took the adverse employment action
— Leddy — had no knowledge that Webb had met with Isom,
or engaged in a protected activity at that meeting, and thus there
was no causal connection between the protected activity and
the adverse employment action. (See App. at 16a-20a.)
Webb does not seriously dispute that he was unable to
present evidence of any causal connection. Instead, Webb argues
that that the Tenth Circuit erred in requiring evidence of a causal
connection between Webb’s protected activity and his inclusion
in the RIF. (App. at 16a-20a.) Webb argues that the Tenth Circuit
should have applied the standard adopted in Stone v. City of
Indianapolis Pub. Utils. Div., 281 F.3d 640 (7" Cir. 2002).
According to Webb, under Stone, to establish a “prima facie
case of retaliation, no causal connection need be demonstrated:
plaintiff need merely show that comparators who did not
complain about discrimination did not suffer the adverse action.”
(Pet. at 29.)
Webb misstates the standard adopted in Stone. Stone does
not say that that a plaintiff must only show that others who did
not complain about discrimination did not suffer an adverse
employment action. It says that a plaintiff must show that after
complaining about discrimination, “only he, and not any
similarly situated employee who did not [complain about
discrimination], was subjected to an adverse employment
action. .. .” Stone, 281 F.3d 640, 644 (7 Cir. 2002) (emphasis
added); see also Hudson vy. Chicago Transit Auth., 375 F.3d
552, 559 (7" Cir. 2004). Thus, under Stone, Webb would have
to show that he complained of discrimination, and then only he
was laid off. But in light of the fact that Webb was laid off as
part of a RIF, in which 49 people were laid off, he could not
make that showing. Thus, application of the standard in Stone
would not alter the result in this case. Under either standard,
Webb would not be able to show a prima facie case of retaliation.
- 2
Indeed, it seems unlikely that the Seventh Circuit would
apply the indirect-evidence standard adopted in Stone to an
action involving a RIF. Because a RIF, by definition, involves
the layoff of multiple employees, no employee would be able
to show that only he or she, and not any employee who did not
complain of discrimination, “was subjected to an adverse
employment action.” Application of the Stone standard in the
context of a RIF, therefore, would effectively shield employers
from retaliation claims based on indirect discrimination.
CONCLUSION
As shown above, Webb has not identified any reason why
it would be appropriate for this Court to grant the Petition.
Accordingly, Level 3 requests that the Petition be denied.
Respectfully submitted,
RICHARD P. BARKLEY
Counsel of Record
MEGHAN W. MarTINEZ
BROWNSTEIN Hyatt & Farser, P.C.
410 17" Street, Suite 2200
Denver, Colorado 80202
(303) 223-1100
LisA HOGAN
Lever 3 Communications, LLC
1025 Eldorado Boulevard
Broomfield, Colorado 80021
(720) 888-1000
Counsel for Respondent
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.