Opposition Brief — Graham v. AT&T Mobility, LLC (No. 07-1020)

No. 07-1020 FILED

APR 8 - 2008

IN THE

Supreme Court of the UPS SAGX

CHRISTOPHER A. GRAHAM,

Petitioner,

V.

AT&T MOBILITY, LLC,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION

NADINE C. ABRAHAMS

Counsel of Record

GERARD A. McINNIS

JACKSON LEwis LLP

320 West Ohio Street

Suite 500

Chicago, IL 60610

(812) 787-4949

Counsel for Respondent

215197 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-4859

aa.

III.

a

COUNTER STATEMENT OF

QUESTIONS PRESENTED

Whether Petitioner has presented compelling

reasons to grant the Petition regarding the

Seventh Circuit’s Opinion affirming the District

Court’s award of costs?

Whether Petitioner has presented compelling

reasons to grant the Petition regarding the

Seventh Circuit’s Opinion affirming the District

Court’s dismissal of his race discrimination claims?

Whether Petitioner has presented compelling

reasons to grant the Petition regarding the

Seventh Circuit’s Opinion affirming the District

Court’s grant of summary judgment on his

remaining race and retaliation claims?

Whether Petitioner has presented compelling

reasons to grant the Petition regarding the

Seventh Circuit’s Opinion affirming the District

Court’s denial of his Rule 60 (b) (6) motion to

reconsider?

a

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

Respondent AT&T Mobility, LLC, formerly Cingular

Wireless, LLC, is a limited liability corporation owned

by:

SBC Long Distance, LLC - Delaware limited

liability company. Principal Place of Business: 5850

West Las Positas Blvd., Pleasanton, CA 94588. Sole

Member: SBC Telecom, Inc., a Delaware

corporation. Principal Place of Business: 175 East

Houston Street, San Antonio, TX.

SBC Alloy Holdings, Inc. - Delaware corporation.

Principal Place of Business: 175 East Houston

Street, San Antonio, TX.

AT&T Mobility Corporation - Delaware

Corporation. Principal Place of Business: 5565

Glenridge Connector, Atlanta, GA 30342.

BLS Cingular Holdings, LLC - Georgia limited

liability company. Principal Place of Business: 1155

Peachtree Street, N.E., AtlantajgGA 30367.

Members: |

(a) AB Cellular Holding, LLC, a Delaware

limited liability company. Principal Place

of Business: 1155 Peachtree Street, N.E.,

Atlanta, GA 30367. Members: (1)

BellSouth Mobile Data, Inc., a Georgia

corporation. Principal Place of Business:

1155 Peachtree Street, N.E., Atlanta, GA

30367. (2) RAM _ Broadcasting

Corporation, a New York corporation.

Principal Place of Business: 1155

Peachtree Street, N.E., Atlanta, GA

30367.

(b) Wireless Telecommunications Investment

Company, LLC, a Delaware limited

liability company. Principal Place of

Business: 1155 Peachtree Street, N.E.,

Atlanta, GA 30367. Member: BellSouth

Mobile Data, Inc., a Georgia corporation.

(c) BellSouth Mobile Data, Inc., a Georgia

corporation. Principal Place of Business:

1155 Peachtree Street, N.E., Atlanta, GA-

30367.

All of the companies listed above are subsidiaries of

AT&T, Inc., and none are traded publicly. AT&T, Inc. is ©

a publicly traded company, and there is no one person

or group that owns 10% or more of the stock of AT&T,

Ine. No third party has a financial interest in this case.

iv

TABLE OF CONTENTS

COUNTER STATEMENT OF QUESTIONS

ye 6 > Saar carrera errerans rare I

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE

WOM CURR ri syaed sada i cise Tics wees ii

SERRE CAPT EIN ES 6 bss dvcsavecessvcesss iv

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

COUNTER STATEMENT OF THE CASE ... 1

Bi FMD TCERIOUNG 6 ick kicks cece kines J

1. Petitioner’s Employment with

Eee er Trey ere eT arr er 1

2. AT&T Mobility’s Equal Employment

Opportunity Policies .............. 2

3. Workplace Incidents Related to

Petitioner’s Lawsuit .............. 2

B. The Proceedings Below ..:............ 8

ie? 3), rr 8

2. The Court of Appeals ............. 12

Contents

Page

REASONS FOR DENYING THE PETITION ... 14

I. Considerations Governing Review Of

Petitions For Writ of Certiorari ........ 14

II. The Decisions of the District Court Were

Correct and, Therefore, Properly

Affirmed By The Seventh Circuit ....... 15

A. The District Court Did Not Abuse Its

Discretion In Entering Costs

Pursuant To Rule 54(d). ........... 15

B. The District Court Properly

Dismissed Petitioner’s Race

Discrimination Claim For Failure to

Exhaust His Administrative

EN ie ee ee 19

C. The District Court Properly

Dismissed Petitioner’s Untimely

Race Discrimination Claims. ....... 22

D. The District Court Properly Granted

Summary Judgment On Petitioner’s

Remaining Retaliation Allegations.

De eine hae hy Kaan 4s 24

1. The District Court properly

determined Petitioner could not

establish a prima facie case of

retaliation or discrimination. ... 25

vi

Contents

Page

a. Petitioner was not subjected

to any materially adverse

NG soni y wiegeth dese 26

b. The District Court properly

determined that Petitioner

did not identify any similarly

situated employees who were

treated more favorably. .... 31

2. The District Court properly

determined that even if

Petitioner could make out a

prima facie case, Respondent’s

actions were based on legitimate

business reasons which were not

a pretext for retaliation. ....... 33

E. The District Court Did Not Abuse Its

Discretion In Denying Petitioner’s

Rule 60(b)(6) Motion To Reconsider.

Vil

TABLE OF CITEDAUTHORITIES

Page

FEDERAL CASES

Alexander v. Gardner-Denver Co.,

415 U.S. 36, 39 L. Ed. 2d 147, 94S. Ct. 1011

SES er a, wh ak al baie EO 19-20, 21

Buchanan v. Stanships, Inc.,

485 U.S. 265, 108 S. Ct. 1130, 99 L. Ed. 2d 289

SU cia at awed ok sch de Ghd emis GKROoa 15

Burks v. Wis. Department of Transportation,

S64 Fog 144 (TU Cit ZUG) gw. eee eee 26

Burlington Northern & Santa Fe Railway

Co. v. White,

548 U.S. 53, 165 L. Ed. 2d 345, 126 S. Ct. 2405

Pay Fis dv tke aoe niak ad emeeeuRer passim

Evans v. U.S. Pipe & Foundry Co.,

696 F-2d 925 (11th Cir. T9653) ...........64.. 20

Farmer v. Arabian American Oil Co.,

379 U.S. 227, 85 S. Ct. 411, 138 L. Ed. 2d 248

Dai ak oa sa ba ha en ee eR A he 16

Graniteville Co. (Sibley Division) v. EEOC,

438 F.2d 32 (4th Cir. 1971) ................. 20

Jenkins v. Blue Cross Mutual

Hospital Insurance, Inc.,

538 F.2d 164 (7th Cir. 1976) ................ 20

vill

Cited Authorities

Joslin Dry Goods Co. v. EEOC,

483 F260 178 (10th Cir. 1978) ....... 6.6 eee cees

McBride v. Delta Air Lines, Inc.,

OG eG FE ie OTE) wesc cs ceccsicn

McDonnell Douglas Corp. v. Green,

411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817

SEIS Seer o ceca uieb cee bs tO eeu

NLRB ». J. Weingarten, Inc.,

420 U.S. 251, 43 L. Ed. 2d 171, 95 S. Ct. 959

CE ES Red oa awd wenn whee cane das

National Railroad Passenger Corp. v. Morgan,

536 U.S. 101, 153 L. Ed. 2d 106, 1278S. Ct. 2061

558 KE RE in HEN oA ARR EKS

Oncale v. Sundowner Offshore Services, Inc.,

NE UE PRE 6 a da NEW 6 bara pece bk

Ostapowicz v. Johnson Bronze Co.,

ge bh Re oe eh | re

Oubichon v. North American Rockwell Corp.,

ABZ FOG GOO (th Cir. 19TS) 2... ec cee

Sanchez v. Standard Brands, Inc., .

431 F2d EE ER Ly) re

ae

ix

Cited Authorities

Page

Satz v. ITT Financial Corp.,

619 F.2d 738 (8th Cir. 1980) ................ 20

Sitar v. Indiana Department of Transportation,

344 F.8d 720 (ith Cir. 2008) ......cccccceees 21

St. Mary’s Honor Center v. Hicks,

509 U.S. 502, 125 L. Ed. 2d 407, 1138. Ct. 2742

EEE PO EO rer 33

DOCKETED CASES

Graham, et al. v. Cingular Wirele t al.,

NE re 8, 10

FEDERAL STATUTES

tans acc dae beeen eeeseceses 16

ee eee, ECD, ccc cccccescacsewecs 8, 22, 28

FEDERAL RULES OF CIVIL PROCEDURE

SS BEERS onc cn edvecccecuace 15, 17, 18

SUPREME COURT RULES

en es sus ou seuawe 14, 15

1

COUNTER STATEMENT OF THE CASE

A. Factual Background

1. Petitioner’s Employment with Respondent

Petitioner Christopher Graham (“Petitioner”) is

employed as a wireless technician with AT&T Mobility,

LLC (“AT&T Mobility”) in its Field Engineering

Department.! App. 67, 12; App. 159.2 He has been

employed with AT&T Mobility or one of its predecessor

companies since 1993. App. 67, 1 1; App. 159. The Field

Engineering Department is responsible for maintaining

the Chicago, Illinois cellular market for AT&T Mobility.

App. 67-8; 13; App. 159. At all times relevant to this

lawsuit, Petitioner’s supervisors were John Coffey

(November 2002 to March 2005) and David Lindon

(January 2005 to present). App. 68, 16; App. 69, 19.

From the beginning of Petitioner’s employment through

the relevant time period covered by this lawsuit,

Petitioner was never denied a promotion, suspended,

disciplined, or even reprimanded in any fashion. App.

68, 14; App. 95, 1118; App. 165.

! AT&T Mobility LLC was formerly Cingular Wireless,

LLC, the named defendant in the proceedings in the lower

courts.

* Citations to “Pet.” Refer to the Petition for a Writ of

Certiorari filed herein. Citations to “Pet. App.” refer to the

Appendix filed with the Petition. Citations to “App.” refer to

AT&T Mobility’s appendix filed in the Seventh Circuit Court

of Appeals. Citations to “R.” refer to the Record in the Seventh

Circuit Court of Appeals.

2

2. AT&T Mobility’s Equal Employment

Opportunity Policies

AT&T Mobility has at all relevant times maintained

a comprehensive equal employment policy which

prohibits discrimination, retaliation, and harassment

based on race, color, gender, age, national origin, religion,

pregnancy, physical or mental disability, and any other

protected class. App. 70, 114; App. 173. This policy is

contained within the organization’s Code of Conduct,

which is distributed to all employees. Jd. The policy

explains how employees may make complaints of

discrimination, harassment, or retaliation, and details

to whom such complaints should be made. Jd. AT&T

Mobility also has an Ethics Hotline available to all

employees to report complaints about discrimination,

which are then investigated and resolved. App. 70, 1 17;

App. 173. Petitioner was aware of these resources, and

had made several complaints to human resources which

were investigated. App. 76-7, 11 36-7; App. 80-1, 111 54-

7; App. 82, 11 63-4; App. 85-6, 11 79, 82; App. 173-74.

3. Workplace Incidents Related to Petitioner’s

Lawsuit

Petitioner based his lawsuit on several discrete

occurrences between 2003 and 2005. According to

Petitioner, on March 17, 2008, in reference to an incident

of vandalism, James Gurga, an Operations Manager,

purportedly stated to Petitioner’s co-worker

Dan Delaney, “they might suspect you because you have

a tan.” Gurga does not directly supervise Petitioner.

App. 82-3, 167. Petitioner learned of this alleged

comment from co-worker Carl Blackmon, who was

3

present during the conversation. /d. Gurga did not make

the alleged comment to Petitioner. Petitioner was not

present when the comment was allegedly made and

Gurga did not mention Petitioner when he allegedly

made the comment. App. 83, 1 69, App. 202. Petitioner

never complained to human resources about this

comment. App. 83, 9 70.

On November 18, 2003, Petitioner’s co-worker

Michael Morrissey, in his capacity as a union steward,

sent an e-mail to his co-workers who were union

members which stated, among other things, that the

union frowns upon employees “ratting out” other

employees. App. 84, 171. Morrissey’s e-mail was

communicating information he had recently learned at

a union steward training meeting and the comment in

the e-mail had nothing to do with Petitioner. App. 84,

1 71, 73. When he sent the e-mail, Morrissey was

unaware Petitioner had filed an EEOC charge or that

he had complained about discrimination. App. 84, 11 74.

Petitioner did not complain to human resources about

the e-mail. App. 84, 9 72.

In early 2004, Petitioner received his 20038

performance evaluation. App. 75, 1 33. Petitioner

received satisfactory ratings and had no objection to

the numerical ratings in the reviews, just the comments.

Id. Petitioner met with Coffey, his supervisory at that

time, and Timothy Kaufenberg, the Director of Network

Operations for Illinois, to discuss the evaluation.

App. 75-6, 134. Petitioner disagreed with some of the

‘statements in the evaluation. App. 76, 135. Specifically,

Petitioner objected to the following statement:

“Continued efforts toward staying abreast of changing

4

technology and retention of job knowledge could

improve Chris’s effectiveness when working in

ambiguous situations.” Jd. He also objected to the

statement that “Chris needs to consider feedback as an

opportunity to learn from others’ experiences and

respond appropriately with internal groups. He needs

to foster a better working relationship with his peers to

identify opportunities for professional growth and

development.” 7d. This type of feedback in a

performance evaluation was consistent with that given

to others, and white employees had been advised in their

performance reviews to communicate better and to keep

their managers apprised of their activities. App. 77, 1 39.

The overall ratings or comments received by Field

Engineering Technicians on their performance

appraisals do not affect their salary, raises, bonuses or

job assignments. App. 77, 9 41.

Petitioner complained to Senior Human Resources

Manager Corinne Bolanowski about his evaluation and

requested a meeting with her and an investigation of

all of the statements in the review. App. 76, {11 36.

Bolanowski investigated the complaint, including asking

Coffey to substantiate the comments in the evaluation.

App. 76, 1 37. Coffey did so, and Bolanowski determined

the appraisal was in order and she communicated this

to Petitioner. Jd. Bolanowski offered to meet with

Petitioner several times. App. 76-7, 137. Petitioner

stated he would not attend the meeting without union

representation. App. 87, 185. Bolanowski responded

she could not grant that request because this was not a

disciplinary meeting in which union representation

would be allowed. /d. Petitioner then refused to meet

with her. /d.

5

In the spring of 2004, following his receipt of his

2003 performance evaluation, Petitioner started sending

e-mails to his co-workers informing them of his daily

work activities. App. 78, 1 43. Petitioner admitted he

was not required to do so, but rather chose to send the

e-mails on his own initiative. App. 78, 1 45. Lindon did

not require Petitioner to send out daily e-mails about

his work schedule. App. 79, 1 49. Petitioner made no

complaint to human resources that he had allegedly been

required to send such e-mails. App. 78, 1 47.

In or about March 2004, Morrissey placed a small

“built by Irish crew” label on a temporary movable cell

tower he had personally built with another employee.

App. 85, 177. Morrissey did not know the movable cell

tower would be temporarily assigned to one of.

Petitioner’s sites. Jd. Petitioner complained to

Bolanowski about the “built by Irish crew” label.

App. 85-6, 179; App. 173-74. She investigated the

allegations and spoke to Kaufenberg. App. 85-6, 1 79.

Kaufenberg then told Morrissey to remove the label,

which was immediately done. Jd. Bolanowski directed

that Morrissey be coached regarding the incident.

Morrissey was reprimanded by Kaufenberg regarding

his actions, and coached not to place any such labels on

any cell sites in the future. /d. Petitioner never saw any

label like it again. App. 86, 11 82.

On October 13, 2004, Dan Delaney, one of

Petitioner’s co-workers, sent Petitioner an e-mail

requesting Petitioner consolidate his multiple e-mails

sent to the Department throughout the day into one e-

mail per day. App. 81, 160, App. 170-71. Petitioner

responded negatively to Delaney’s e-mail, and Delaney

6

sent Petitioner a reply apologizing for his initial e-mail.

App. 81, 161. Even though Delaney apologized for

sending the e-mail, Petitioner was not satisfied because

Delaney did not copy the entire department on the

apology. Jd. Petitioner complained to Bolanowski

regarding Delaney’s e-mail. App. 82, 163. After

receiving the complaint, Bolanowski asked Petitioner

whether the issue was resolved based on Delaney’s

apology. App. 82, 164. She determined there was

nothing discriminatory or inappropriate about

Delaney’s request. Jd.

In July 2005, Petitioner requested a laptop

computer mount for his van. App. 89, 1 94; App. 170-71.

Such equipment was not available from AT&T

Mobility’s regular supplier, which resulted in a delay in

obtaining the mount. App. 93-4, 11 109-10. Petitioner

ultimately received the mount, and is the only technician

with such equipment. App. 94 1 115. In October 2005,

Petitioner told Lindon his cell phone was not working,

and Lindon said he would get it repaired. App. 92, 1 106.

Petitioner believes it took too long for Lindon to get

the phone repaired. App. 92, 1 107.

During the period from September to November

2005, all of the approximately 38 technicians in the Field

Engineering Department were required to attend

Ericsson “UMTS” training. App. 90, 197. Pursuant to

company policy and the collective bargaining agreement,

when all employees in a department are being trained,

such training may be scheduled without regard to

seniority. App. 92, 1102. When training is offered to

only a subset of employees, it must be scheduled in order

of seniority. Jd. The training at issue was required of all

7

employees and therefore did not need to be scheduled

based on seniority. App. 90-92, 11 97-98, 100, 102. As a

result, AT&T Mobility was not obligated to schedule

Petitioner in the first training class. 7d. In fact, more

senior white employees attended the training after

Petitioner. App. 90, 198. Because the UMTS system

was not even launched until December 2005, there was

no advantage to being among the earliest technicians

to attend the UMTS training. App. 90-91, 1 98.

Petitioner did not complain to human resources

regarding the scheduling of his training. App. 92, 11 104.

On October 25, 2005, Larry Barrett, one of

Petitioner’s co-workers, sent an e-mail to Petitioner

asking him why he sends out separate e-mails on the

status of each of his sites to the entire department

rather than in one communication. App. 79, 751.

Petitioner complained to Senior Human Resources

Manager Tracy Ryan about Barrett’s e-mail. App. 80,

1 54. Ryan investigated the complaint. App. 80, 1 55.

She spoke to Barrett, who stated he had e-mailed

Petitioner and asked him to attempt to consolidate his

e-mails and that he also sent an e-mail to the entire team

requesting they do the same. /d. As part of the

investigation, Ryan also spoke to Petitioner and Lindon,

who stated he did not require Petitioner to send e-mails

to everyone on the team. App. 80, 1 56. Ryan concluded

there was no evidence Barrett’s e-mail was

inappropriate or that it was racially discriminatory or

retaliatory. App. 81, 9 57.

8

B. The Proceedings Below

1. The District Court

Petitioner has a long history of filing meritless

discrimination charges and lawsuits against his

employer alleging violations of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e. App. 23-30, 33-

47. On April 1, 2002, Petitioner filed his first Charge with

the Equal Employment Opportunity Commission

(“EEOC”) against AT&T Mobility (the “2002 charge”)

alleging he was discriminated against based on his race

with regard to promotions, training, and bonuses from

March 15, 1993 through March 29, 2002. App. 71, 119.

Petitioner did not file a lawsuit based on the allegations

of race discrimination contained in the 2002 charge.

App. 71, 1 20.

On May 29, 2003, Petitioner filed a second EEOC

charge (the “2003 charge”) claiming race discrimination

and retaliation, including allegations he was denied

overtime and received a negative performance review.

App. 71, 121. Petitioner filed suit (Graham, et al. v.

Cingular Wireless et al., Case No. 04 C 540), alleging

he was retaliated and discriminated against based on

his race in regard to promotions, assignments, and

overtime pay, and was subjected to a hostile work

environment due to racial graffiti. App. 71, 11 22-3. The

District Court dismissed Petitioner’s complaint in

March 2004, and the Seventh Circuit Court of Appeals

dismissed Petitioner’s untimely appeal for lack of

jurisdiction (No. 05-1370). App. 71, 9 24.

9

In November 2004, Petitioner filed his third EEOC

charge (the “2004 charge”) alleging he was retaliated

against for filing his 2003 charge by receiving a

“derogatory” performance evaluation; being told by a

co-worker that a manager made an allegedly racist

comment; being directed to “copy all of [his] e-mails and

send them to [his] direct manager and work group;”

having a “built by Irish crew” sign placed in an area in

which he worked; being denied his request to have a

union representative present during a meeting

concerning his evaluation; and having “false and

defamatory” statements made about him to his personal

injury attorney. App. 72, 125; App. 160-61.

In February 2005, Petitioner filed the underlying

lawsuit in this action alleging AT&T Mobility violated

Title VII through a pattern and practice of

discrimination and by discriminating and retaliating

against him for his first lawsuit. App. 72, 1 25; App. 160-

61. On April 5, 2005, AT&T Mobility moved to dismiss

Petitioner’s retaliation claim in part, and his race

discrimination and “pattern and practice” claims in their

entirety. R. 7,9. District Judge Elaine E. Bucklo granted

AT&T Mobility’s Motion to Dismiss on October 21, 2005,

ruling Petitioner’s 2004 charge stated only that he had

been “discriminated against because of retaliation.”

App. 31-32. The Court also noted that only the

“retaliation” box was checked on the charge form. /d.

Further, the Court determined there was “no suggestion

in the EEOC charge Petitioner felt he had been

discriminated against because of his race” and dismissed

the discrimination claim. App. 32. The Court also struck

certain allegations of the retaliation claim not raised in

the 2004 Charge as outside the scope of the Charge and

10

dismissed the “pattern and practice” claim because the

Charge’s allegations pertained to Petitioner alone. /d.

On November 1, 2005, Petitioner filed his fourth

EEOC charge (the “2005 charge”) in which he realleged

the dismissed discrimination allegations as well as

additional acts of alleged discrimination and retaliation

by AT&T Mobility in 2004 and 2005. App. 73-4, 11 27-8;

App. 161. Shortly thereafter, Petitioner then filed an

amended complaint in this case alleging retaliation and

race discrimination claims based on acts alleged in his

2005 charge. App. 33-47; App. 74, 129; App. 161.

AT&T Mobility moved to dismiss the race

discrimination claim in the amended complaint as

untimely and to strike other untimely allegations from

the amended complaint based on res judicata. R. 28,

29. On March 6, 2006, the District Court granted AT&T

Mobility’s Motion to Dismiss in part. R. 43. It ruled

Petitioner could only allege race discrimination based

upon acts occurring within 300 days of the filing of his

2005 EEOC Charge, and that he could not rely on a

continuing violation theory to pursue earlier

discrimination allegations. The District Court also ruled

Petitioner’s untimely allegations were barred under the

doctrine of res judicata due to the dismissal of his first

lawsuit (Graham, et al. v. Cingular Wireless, et al., Case

No. 04 C 540) and his failure to timely file an EEOC

charge. Id.

Thereafter, AT&T Mobility moved for summary

judgment on Petitioner’s remaining claims. App. 48-96.

Petitioner filed a response which was limited to a

response to AT&T Mobility’s Local Rule 56(a)(1)

11

Statement of Undisputed Material Facts. Petitioner did

not file a memorandum of law or proffer any evidentiary

submissions other than a lengthy affidavit containing

numerous exhibits. R. 57, 58. In its Order granting

AT&T Mobility’s Motion, the District Court ruled it

could not consider portions of Petitioner’s affidavit that

were outside his personal knowledge, reliant on hearsay,

speculation, or unsupported opinion. App. 158. The

Court also ruled that much of Petitioner’s response to

AT&T Mobility’s Local Rule 56.1(a)(3) Statement did

not comply with Local Rule 56.1(b)(3) because it did not

contain specific references to affidavits, parts of the

record, or other supporting materials. App. 158-59.

With respect to Petitioner’s discrimination and

retaliation claims, the Court ruled Petitioner was unable

to establish a prima facie case because he could not

show any of the instances of alleged discrimination and

retaliation constituted an adverse action and because

he did not identify any similarly situated employees who

were treated more favorably. App. 165-69. To the extent

Petitioner attempted to assert a hostile work

environment claim, the District Court found the

incidents complained of were race-neutral and not so

severe or pervasive as to alter the conditions of his

employment. App. 170-71. Finally, the Court ruled that

even if the incidents were actionable harassment, AT&T

Mobility was not liable because it had promptly

investigated Petitioner’s complaints and taken action

when appropriate. App. 173-74.

On July 11, 2006, Petitioner filed a Rule 60(b)(6)

Motion asking the District Court to reopen his case

based on this Court’s decision in Burlington Northern

12

& Santa Fe Ry. Co. v. White, 548 U.S. 58, 165 L.Ed. 2d

345, 126 S. Ct. 2405 (2006), decided after the District

Court granted AT&T Mobility’s Summary Judgment

Motion. App. 177-99. The District Court denied

Petitioner’s motion. Applying Burlington, the District

Court found several of the complained of actions would

not have been materially adverse to a reasonable person.

App. 202. The Court also found that even if other actions

could qualify as materially adverse, Petitioner could not

establish 2 prima facie case of retaliation because he

had provided no evidence of similarly situated

employees being treated more favorably, and that AT&T

Mobility had provided legitimate, non-discriminatory

reasons for all of the actions and Petitioner had not

presented any evidence the reasons were pre-textual.

App. 203-04. Accordingly, the Court denied Petitioner’s

motion.

On July 11, 2006, AT&T Mobility filed its Bill of

Costs and memorandum in support, seeking $7,325.60

in court reporter and photocopying costs. R. 74, 75.

More than two months later, Petitioner filed an untimely

response in opposition to the Bill of Costs in which he

did not contest the individual items, but instead argued

the Bill of Costs itself was a retaliatory action within

the meaning of Burlington. App. 14-22. The District

Court entered AT&T Mobility’s Bill of Costs in the

amount requested. App. 13.

2. The Court of Appeals

Petitioner appealed the District Court’s rulings to

the Seventh Circuit Court of Appeals (Nos. 06-3020 &

06-3734). Petitioner argued the District Court erred in

13

dismissing his discrimination claims because the failure

to check the “race” box on his 2004 EEOC charge form

was a clerical error. Pet. App. 37. Petitioner also argued

a genuine issue of material fact existed regarding his

retaliation and pattern and practice claims and that the

District Court misapplied this Court’s holding in

Burlington when it denied Petitioner’s motion to

reconsider. Jd. Finally, Petitioner argued the District

Court should strike AT&T Mobility’s Bill of Costs

because it would have a deterrent effect on others

wishing to bring discrimination claims. /d.

The Seventh Circuit affirmed the District Court’s

rulings. Pet. App. 33-45. Regarding Petitioner’s

dismissed discrimination claims, the Seventh Circuit

found Petitioner failed to satisfy the prerequisite of

alleging a discrimination claim in his 2004 EEOC charge.

Pet. App. 37-39. The Seventh Circuit analyzed

Petitioner’s retaliation claims using both the direct and

indirect methods of proof. Applying the direct method,

the Seventh Circuit found Petitioner’s allegations

insufficient. Pet. App. 40-41. Applying the indirect

method, the Seventh Circuit found that “[e]ven

assuming one or more of [Petitioner’s] claims amounts

to an adverse employment action,” he failed to identify

any similarly situated individuals treated more favorably

and, therefore, affirmed the District Court’s grant of

summary judgment. Pet. App. 41.

Because Petitioner failed to properly develop his

pattern and practice discrimination arguments in his

brief, the Seventh Circuit found he waived those claims

and affirmed the District Court’s grant of summary

judgment of that count. Pet. App. 42. The Seventh

14

Circuit also found the District Court did not abuse its

discretion when it denied Petitioner’s Rule 60 (b) (6)

motion to reconsider based on this Court’s decision in

Burlington, which approved the approach previously

employed by the Seventh Circuit. Pet. App. 42-43.

Because the Petitioner failed to demonstrate how the

district court improperly applied Burlington, the

Seventh Circuit affirmed the District Court’s denial of

Petitioner’s motion to reconsider. /d. Finally, the

Seventh Circuit rejected Petitioner’s assertion the Bill

of Costs awarded by the District Court would dissuade

a reasonable worker from making or supporting a

charge of discrimination and, therefore, concluded the

District Court did not abuse its discretion in awarding

costs. Pet. App. 44.

REASONS FOR DENYING THE PETITION

I. Considerations Governing Review Of Petitions

For Writ of Certiorari

This case is not one in which certiorari should be

granted because it does not present any compelling

reasons as required by Sup. Ct. R. 10 for granting the

Petition. The Petition does not demonstrate the decision

below conflicts with any decision of this Court or any

Court of Appeal, nor that it implicates a federal question

unaddressed by this Court. Indeed, the Petition makes

no attempt to do so. Rather, the Petition essentially

reiterates the arguments rejected by the Seventh

Circuit Court of Appeals.

In sum, this is simply an unremarkable case in which

the Seventh Circuit Court of Appeals found that the

15

District Court: 1) properly dismissed Petitioner’s

untimely and previously-litigated claims; 2) properly

awarded summary judgment on Petitioner’s remaining

claims; and 3) did not abuse its discretion in awarding

costs to AT&T. Furthermore, even if the Seventh Circuit

Court of Appeals’ decision was erroneous, that fact alone

is insufficient to support granting the Petition. See Sup.

Ct. R. 10 (“a petition for a writ of certiorari is rarely

granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly stated

rule of law”). Petitioner has not carried his burden of

demonstrating any “compelling reasons” for the Petition

to be granted and, thus, the Petition should be denied.

II. The Decisions of the District Court Were Correct

and, Therefore, Properly Affirmed By The

Seventh Circuit

A. The District Court Did Not Abuse Its

Discretion In Entering Costs Pursuant To

Rule 54(d).

Rule 54(d)(1) of the Federal Rules of Civil Procedure

provides, in relevant part, that “[u]nless a federal

statute, these rules, or a court order provides otherwise,

costs — other than attorney’s fees — should be allowed

to the prevailing party. “ Fed. R. Civ. P 54(d)(1). In

Buchanan v. Stanships, Inc., 485 U.S. 265, 108 S.Ct.

1130, 99 L.Ed. 2d 289 (1988), this Court noted a

prevailing party “automatically is entitled to costs”

unless the district court finds otherwise. /d. at 294.

Thus, Rule 54 creates a presumption the district courts

will award costs to the prevailing party and confers

discretion on the district courts in considering requests

16

for costs. A district court’s discretion is not without limit.

See Farmer v. Arabian American Oil Co., 379 U.S. 227,

85 S.Ct. 411, 13 L.Ed. 2d 248 (1964) (noting Rule 54 does

not give district judges unrestrained discretion to tax

costs and the discretion afforded should be exercised

sparingly with respect to expenses not specifically

allowed by statute).

The District Court awarded AT&T Mobility costs

for deposition transcripts and photocopying, costs which

are expressly authorized by statute. See 28 U.S.C. § 1920.

To overcome the presumption in favor of awarding costs,

Petitioner argues the District Court should have denied

costs outright because AT&T Mobility allegedly

engaged in excessive discovery, “ran up” costs, and that

its Bill of Costs was retaliatory. Petitioner’s contentions

are absolutely baseless.

The record below demonstrates Respondent simply

availed itself of its statutory rights in seeking

reimbursement of its costs. Petitioner’s suggestion that

AT&T Mobility’s net worth should preclude it from

recapturing reasonable costs is unsupported. Likewise,

Petitioner’s reliance on AT&T Mobility’s counsel’s

March 2, 2006 e-mail as proof of retaliatory motive is

misplaced. The e-mail, a response to Petitioner’s

counsel’s request to provide authority for the position

that a prevailing defendant is entitled to costs, and

which sets forth the law related to recovery of costs,

does not evidence a retaliatory motive. App. 22.

Likewise, Petitioner’s assertion AT&T Mobility

purposely engaged in excessive discovery to increase

costs is completely unsupported by the record. As the

Court below noted, AT&T Mobility acted reasonably by

17

consistently attempting to narrow the scope of this case

in response to Petitioner’s repeated attempts to

broaden it. As the record reflects, Petitioner asserted

claims of discrimination going back ten years, which

were either untimely or previously adjudicated. AT&T

Mobility avoided discovery into these matters through

its motions to dismiss, thereby streamlining the issues

in the case. It further limited costs by taking only five

depositions, all of persons Petitioner identified as

witnesses who could support his substantive claims or

damages claims, even though Petitioner identified over

100 witnesses in his Rule 26(a) disclosures. R. 7, 9, 28,

29, 92, Ex. A.® Based on these facts, the Seventh Circuit

correctly rejected Petitioner’s claim that AT&T Mobility

needlessly “ran up” its costs to punish him for pursuing

his claims. Pet. App. 44. Furthermore, because

Petitioner’s assertion that AT&T Mobility’s Bill of Costs

was retaliatory was never raised in an EEOC charge,

this claim was not properly before the Courts below and,

therefore, can provide no basis for granting the Petition.

Moreover, Petitioner’s reliance on this Court’s

decision in Burlington is unavailing. First, the decision

in Burlington did not exclude Title VII cases from the

application of Rule 54 (d). Nothing in Burlington could

3 Even if the Seventh Cireuit Court erred in its statement

of the number of depositions AT&T Mobility took — which it did

not — the result is the same. Petitioner asserts AT&T Mobility

took “eleven plus” depositions in the case, apparently because

its counsel questioned witnesses during portions of the

depositions Petitioner noticed. Pet. 3. Whether AT&T Mobility

took five depositions or twelve, the facts demonstrate AT&T

Mobility conducted its defense in a reasonable manner and did

not engage in excessive discovery.

18

reasonably be interpreted as stripping a Title VII

defendant of its right to recoup costs as approved by

Rule 54 (d). Second, an award of costs is not an “adverse

employment action” under Burlington because it is not

an act of the employer. Rather, it is an action of the

district court, pursuant to long-established rules of

procedure, requiring the losing party to reimburse the

prevailing party for certain out-of-pocket expenses

incurred in litigation. Moreover, through established

procedures, the district court stands as a check to

protect against any abuse.

Third, Petitioner’s assertion that an award of costs

would dissuade a reasonable employee from making or

supporting a charge of discrimination is specious.

A reasonable employee would not be dissuaded from

pursuing a discrimination charge by the possibility that,

at some point in the distant future, he might be required

to pay costs 2f the case proceeded to litigation and the

employer prevailed. The court-ordered payment of costs

is entirely unrelated to the pursuit of a charge of

discrimination at the EEOC or through the employer’s

internal complaint procedure. Rather, it follows from a

decision to litigate a claim. However, the possibility of

having to pay costs to a prevailing employer is unlikely

to dissuade a reasonable plaintiff who has been a true

victim of discrimination and stands to win substantial

economic and non-economic damages, including possible

compensatory and punitive damages, costs, and

attorneys fees. To the extent having to pay costs would,

and should, dissuade someone, such as Petitioner, from

bringing meritless claims, then an intended purpose of

Rule 54 (d) is served.

19

In sum, there is no factual or legal basis for

Petitioner’s argument that AT&T Mobility’s Bill of

Costs was, in fact, retaliatory. Accordingly, the Petition

should be denied.

B. The District Court Properly Dismissed

Petitioner’s Race Discrimination Claim For

Failure to Exhaust His Administrative

Remedies.

Petitioner argues the District Court improperly

dismissed the race discrimination claim alleged in his

original complaint because of a clerical error at the

EEOC. Pet. 14-17. This argument entirely

mischaracterizes the rulings below. The record reflects

the District Court dismissed Petitioner’s race

discrimination claim because he did not allege race

discrimination in his charge. R.9, Ex. A. Even if the

Court erred, such error was harmless because the

District Court ultimately properly determined Petitioner

could not establish a prima facie case of retaliation

based on the same allegations and applying the same

legal standard. Accordingly, the District Court’s order

should be affirmed.

The District Court’s dismissal of Petitioner’s

discrimination claim was entirely proper. A plaintiff may

not bring Title VII discrimination claims not alleged in

an EEOC charge. See Alexander v. Gardner-Denver Co.,

4 Petitioner’s remaining arguments are certainly not a

model of clarity. Accordingly, AT&T Mobility sets forth herein

the arguments which most clearly demonstrate the decisions of

the Courts below were correct and, therefore, that there is no

basis for granting the Petition.

20

415 US. 36, 47 39 L.Ed. 2d 147, 94 S.Ct. 1011 (1974).

The record below amply demonstrates Petitioner’s 2004

charge focused exclusively on alleged retaliation. R. 9,

Ex. A. However, retaliation and discrimination claims

are unrelated and an administrative charge of one

cannot support a civil suit for the other. The Seventh

Circuit has held that all claims of discrimination are

cognizable that are like or reasonably related to the

allegations of the charge and growing out of such

allegations. Jenkins v. Blue Cross Mutual Hospital

Insurance, Inc., 588 F.2d 164, 167 (7th Cir. 1976)

(en banc) (quoting Danner v. Phillips Petroleum Co.,

447 F.2d 159, 162 (5th Cir. 1971)), certiorari denied, 429

U.S. 986, 97 S. Ct. 506, 50 L. Ed. 2d 598 (1976). The

standard is a liberal one in order to effectuate the

remedial purposes of Title VII. Jd. at 167-168. Other

circuits are in accord with this analysis. Evans v. U.S.

Pipe & Foundry Co., 696 F.2d 925, 928 (11th Cir. 1983);

Satz v. ITT Financial Corp., 619 F.2d 738, 741 (8th Cir.

1980); McBride v. Delta Air Lines, Inc., 551 F.2d 118,

115 (6th Cir. 1977), vacated on other grounds, 434 U.S.

916, 54 L. Ed. 2d 273, 98 S. Ct. 387 (1977); Ostapowicz v.

Johnson Bronze Co., 541 F.2d 394, 398-399 (3d Cir. 1976),

certiorari denied, 429 U.S. 1041, 50 L. Ed. 2d 753, 97 S.

Ct. 741 (1977); Joslin Dry Goods Co. v. EEOC, 483 F.2d

178, 184 (10th Cir. 1973); Oubichon v. North American

Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973);

Graniteville Co. (Sibley Division) v. EEOC, 438 F.2d

32, 41-42 (4th Cir. 1971); Sanchez v. Standard Brands,

Inc., 431 F.2d 455, 462-467 (5th Cir. 1970). However, the

Seventh Circuit correctly recognizes that the gist of a

retaliation claim is that the employer lashed out against

an employee for exercising a right, not out of animosity

21

for his race. See Sitar v. Indiana Dept. of Transp., 344

3d 720, 726-27 (7 Cir. 2003) (finding plaintiff could not

proceed with her discrimination claim based upon an

EEOC charge alleging retaliation).

Here, the District Court properly determined

Petitioner did not advance a race discrimination claim

in his 2004 EEOC charge. First, nowhere in the

particulars of his charge did he indicate or even mention

he believed he had been discriminated against because

of his race or that the alleged retaliatory actions were

also racially discriminatory. R. 9, Ex. A. Rather,

Petitioner specifically stated, “I believe I have been

discriminated against because of retaliation, in violation

of Title VII of the Civil Rights Act of 1964.” (emphasis

added). Jd. Second, Petitioner checked only the

retaliation box on his charge. Jd. Contrary to

Petitioner’s assertions (Pet. 15-17.), Petitioner’s claim

of racial discrimination cannot be reasonably inferred

from the allegations of retaliation in his 2004 EEOC

charge and therefore was properly dismissed.

Petitioner’s assertion AT&T Mobility should have

known his 2004 EEOC Charge raised allegations of race

discrimination based on its knowledge of his race and

prior charges is meritless and its application here would

defeat the statutory scheme established by Title VII

favoring “an opportunity to settle disputes through

conference, conciliation, and persuasion before the

aggrieved party [is] permitted to file a lawsuit” (See

Alexander v. Gardner-Denver Co., 415 U.S. at 44) while

at the same time imposing an unrealistic requirement

of clairvoyance on the employer.

22

Furthermore, even if the District Court did err in

dismissing Petitioner’s discrimination claim, such error

was harmless because the District Court properly

determined Petitioner could not establish a prima facie

case of retaliation based on the same allegations upon

which his dismissed race claim was based. The incidents

underlying both Petitioner’s retaliation and

discrimination claims were identical. App. 23-30, 33-47.

The District Court‘ultimately ruled Petitioner failed to

establish a prima facie case of retaliation based on these

incidents in that none of them constituted adverse

actions (under both Burlington and pre-Burlington

standards) and Petitioner had not identified any similarly

situated employees who were treated more favorably.

App. 157-75, 201-05. Moreover, the District Court

determined Petitioner proffered no evidence

demonstrating Respondent’s legitimate non-

discriminatory reasons for the actions were pre-textual.

App. 204. Accordingly, had Petitioner been allowed to

proceed on the discrimination claim in his original

complaint, the end result would have been the same.

C. The District Court Properly Dismissed

Petitioner’s Untimely Race Discrimination

Claims.

Under Title VII, to proceed in federal court, a

plaintiff must have filed a charge of discrimination with

the EEOC describing the basis for the allegations within

300 days of the date of their occurrence. 42 U.S.C.

§ 2000e-5(e). A plaintiff cannot circumvent the statute

of limitations by filing a new EEOC charge mirroring

the allegations contained in a retaliation charge filed a

year earlier but merely checking the discrimination box

23

on the charge form. That is what Petitioner attempted

to do in this case.

Petitioner’s contention that the time barred

discrimination claims were part of a continuing violation

and, hence, timely is without merit. In National

Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114-

117, 153 L.Ed. 2d 106, 127 S.Ct. 2061 (2002), this Court

held the continuing violation doctrine applies only to

hostile work environment claims. With respect to

discrete acts of alleged discrimination of the type alleged

by Petitioner, each act starts a new clock for filing

charges, and the clock starts on the date that the act

occurred. Morgan, 536 U.S. at 118. Any discrete

discriminatory acts that fall outside the statute of

limitations are time-barred even though they may relate

to other discrete acts that fall within the statute of

limitations. Similarly, timely filed discrete acts cannot

save discrete acts that are related but not timely filed.

Morgan, 536 U.S. at 112 (“Discrete acts that fall within

the statutory time period do not make timely acts that

fall outside the time period”).

Here, the time-barred discrimination allegations in

Petitioner’s Amended Complaint all pertained to

discrete allegedly discriminatory acts.,R. 27, 11 6, 8, 11-

18, 21. Petitioner’s assertion of timely discrete acts

elsewhere in his complaint does not save these untimely

acts. R. 27, 1910, 19-20. Furthermore, even if the District

Court did err in dismissing Petitioner’s untimely

allegations of discrimination, such error was harmless

because the District Court ultimately properly

determined that Petitioner could not establish a prima

facie case of retaliation based on the same allegations.

24

The District Court also properly dismissed

Petitioner’s other untimely allegations because they

were or could have been raised in his first lawsuit against

Respondent, which was dismissed. R. 48. Accordingly,

under the doctrine of res judicata, Petitioner was

precluded from re-litigating these claims.

D. The District Court Properly Granted

Summary Judgment On Petitioner’s

Remaining Retaliation Allegations.

As a result of the Court’s order granting AT&T

Mobility’s second motion to dismiss, Petitioner’s

remaining allegations were that AT&T Mobility

discriminated and retaliated against him by: requiring

him to email his superiors and co-workers about his job

progress throughout the day; permitting co-worker

Barrett to email him in 2005 to ask him to stop sending

numerous emails throughout the day; requiring him to

follow “strict instructions” from his supervisors; denying

his request to receive earlier technology training due

to his seniority as allegedly required by the union’s

agreement with AT&T Mobility; denying him a laptop

mount and a cellular telephone in a timely fashion; and

that AT&T Mobility retaliated against him by giving him

a “derogatory” performance evaluation in 2004; through

co-worker Dan Delaney’s 2004 email to Petitioner asking

him to stop sending him copies of his emails at the end

of the day; through union steward and co-worker

Michael Morrissey’s 2003 email to Petitioner and all

other union members telling them that “ratting people

out” could result in dismissal from the union; through

James Gurga’s racial statement to Petitioner’s co-

worker that the co-worker might be suspected of

25

vandalism because he “had a tan;” through Morrissey’s

placement of a “built by Irish crew” sticker at a cellular

site located in Petitioner’s work zone; by denying

Petitioner’s request to have a union representative

present when he met with his supervisor regarding his

performance review; and through AT&T Mobility’s

attorney’s allegedly “false and defamatory” statement

about Petitioner in a settlement letter sent to

Petitioner’s personal injury attorney. App. 33-47; App.

74-75, 19 31-32; App. 161-63; R. 43.

Petitioner alleges these incidents present material

facts which should have precluded summary judgment

on his claims. Pet. 17-20. However, in the proceedings

below, Petitioner failed to address several of the grounds

on which the District Court granted summary judgment.

He made absolutely no argument the District Court

erred in: (1) dismissing his race discrimination claim;

(2) dismissing his hostile work environment claim;

(3) finding he failed to establish similarly situated

employees were treated more favorably; or (4) finding

AT&T Mobility’s legitimate, non-discriminatory reasons

for its actions were pre-textual. Petitioner’s failure to

argue the District Court erred with respect to essential

elements of his claims in the proceedings below should,

therefore, preclude this Court’s granting of the Petition.

1. The District Court properly

determined Petitioner could not

establish a prima facie case of

retaliation or discrimination.

Under the indirect method of proof, a plaintiff must

first establish a prima facie case. See generally,

26

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36

L.Ed.2d 668, 93 S.Ct. 1817 (19738). If he is able to do so,

the burden shifts to the defendant to proffer a

legitimate, non-retaliatory or non-discriminatory reason

for its actions. /d. The burden then shifts back to the

plaintiff to establish that proffered legitimate reason

was in fact pre-textual. Jd.

Here, to establish a prima facie case of retaliation,

Petitioner must show: he engaged in protected activity;

was subject to an adverse employment action; was

performing his job satisfactorily; and that no similarly

situated employee who did not engage in protected

activity suffered an adverse employment action. See

Burks v. Wis. Dept. of Transp., 464 F.3d 744, 759 (‘7th

Cir. 2006), applying McDonnell Douglas Corp. 411 U.S.

at 792. Here, Petitioner did not establish the second and

fourth elements of the prima facie case.

a. Petitioner was not subjected to any

materially adverse actions.

A materially adverse action is one that “must be

harmful to the point that [it] could well dissuade a

reasonable worker from making or supporting a charge

of discrimination.” Burlington, 548 U.S. at 53. Materially

adverse employment actions do not include trivial harms,

petty slights, or minor annoyances. As this Court

reasoned in Burlington, “it is important to separate

significant from trivial harms.” 548 U.S. at 53. Title VII

does not set forth “a general civility code for the

American workplace.” Oncale v. Sundowner Offshore

Services, Inc., 523 U.S. 75, 80 (1998). Accordingly, an

“employee’s decision to report discriminatory behavior

27

cannot immunize that employee from those petty slights

or minor annoyances that often take place at work and

that all employees experience.” Burlington, 548 U.S. at

53.

This Court’s holding in Burlington is entirely

consistent with prior Seventh Circuit law. Indeed, this

Court stated the Court agreed with the Seventh

Circuit’s formulation of the test for actionable

retaliation. Burlington, 548 U.S. at 58. Here, the

undisputed evidence reflects Petitioner suffered no

materially adverse actions. None of the acts Petitioner

complains of would have dissuaded a reasonable person

from complaining of discrimination. Rather, as outlined

below, all of the acts upon which Petitioner based his

retaliation and race discrimination claims were trivial

harms, petty slights, or minor annoyances which do not

constitute material adverse actions. App. 202. Indeed,

from the beginning of Petitioner’s employment through |

the relevant time period covered by this lawsuit,

Petitioner was never suspended, disciplined, or even

reprimanded in any fashion. App. 68, 7 4; App. 165.

Petitioner’s satisfactory performance evaluation

was not a materially adverse action. Contrary to

Petitioner’s assertions, it is undisputed he did not

receive a negative performance evaluation, but rather

a satisfactory evaluation. App. 75, 133. His personal

dissatisfaction with some of the comments therein does

not render the evaluation a materially adverse action.

Moreover, AT&T Mobility fully investigated his

complaint and determined the evaluation was well-

grounded. App. 76-77, 11 36-37.

28

Petitioner was not required to send daily e-mails

regarding his work activities, and his voluntary

decision to do so did not constitute a materially

adverse action. Petitioner conceded he was never

required to send daily e-mails regarding his ‘vork

activities to his supervisors or co-workers, but rather

took it upon himself to do so. App. 78, 1 45. Even if he

was required to send daily e-mails, such requirement

would not have dissuaded a reasonable person from

complaining of discrimination.

Petitioner’s co-workers’ comments regarding his

daily e-mails were not materially adverse actions.

Clearly, the e-mails from co-workers Barrett and

Delaney regarding Petitioner’s e-mail usage are not

adverse actions. App. 79-82, 11 51-66; App. 170-71. First,

Barrett and Delaney are not Petitioner’s supervisors

and could not direct his work or discipline him. App. 80-

82, 191 55, 60, 65; App. 170-71. Second, their requests

were nothing more than everyday communications

between co-workers regarding business-related

activities. Petitioner’s subjective upset or

embarrassment does not make the requests adverse

actions. Moreover, there is no evidence Barrett and

Delaney were even aware Petitioner had complained of

discrimination when they sent the e-mails, and it is

undisputed Barrett has sent similar e-mails to white

employees. App. 81, 1171 58-59, 62.

Morrissey’s e-mail to all union members

regarding “ratting out” other employees was not a

materially adverse action.’ Morrissey’s e-mail to the

5 The District Court correctly determined this allegation

was time-barred because it occurred more than 300 days before

the filing of the November 2004 EEOC charge. 42 U.S.C.

§ 2000e-5(e).

29

entire field engineering department was in no way a

materially adverse action. It is undisputed the e-mail

was completely unrelated to Petitioner and Morrissey

was unaware of Petitioner’s EEOC charge and complaint

at the time he sent the e-mail. App. 69-70, 113; App.

84-85, 19 73-74, 76.

The small “built by Irish crew” label Petitioner’s

co-worker Morrissey placed on the door of a movable

cell tower was not a materially adverse action.

Morrissey had no idea the movable cell tower would be

placed in one of Petitioner’s sites, and was unaware

Petitioner had filed any EEOC charges or complained

of discrimination. App. 85-87, 19 77, 81, 83. Furthermore,

when Petitioner complained to human resources,

Morrissey was immediately required to remove the label,

reprimanded, and instructed not to place such labels on

company property in the future. App. 85-86, 9 79.

Respondent’s decision to disallow Petitioner from

bringing a union representative to a performance

appraisal meeting was not a materially adverse

action. Petitioner had no right to union representation

at a meeting concerning his petty complaints about his

satisfactory performance evaluation. App. 87-88, 1 86.

Indeed, Respondent’s refusal to allow Petitioner to have

union representation was based on Company policy, the

collective bargaining agreement, and this Court’s

decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251,

43 L.Ed. 2d 171, 95 S.Ct. 959 (1975). The policy, CBA,

and case law clearly establish that when a meeting with

management has nothing to do with disciplinary action,

an employee has no right to union representation. App.

87-88, 1 86. Petitioner’s subjective desire for a union

30

representative at the meeting does not render AT&T

Mobility’s entirely lawful refusal of the request a

materially adverse action.

The letter from Respondent’s workers’

compensation attorney was not a materially adverse

action. The letter Petitioner complains of was nothing

more than a routine settlement communication between

attorneys, and thus in no way would have dissuaded a

reasonable person from complaining of discrimination.

App. 89-90, 111 94-95; App. 170-71.

‘rhe order in which Petitioner attended the UMTS

training class was not a materially adverse action.

Because AT&T Mobility was not required to train the

Field Engineering department employees in order of

seniority, because Petitioner received the training, and

because there was no advantage to the order in which

technicians were trained, the fact Petitioner was not the

first person to receive the training was not a materially

adverse action.

Respondent provided Petitioner with a laptop

mount and wireless phone. Petitioner’s petty

complaints about purported delays in the processing of

his request for a laptop mount and a new wireless phone

do not rise to the level of materially adverse actions.

App. 92-95, 11 105-117. Any delays were due to routine

problems ordering equipment. App. 93-95, 19 109-10,

116. Clearly, a delay in receiving work-related products

is not a materially adverse action.

A stray comment by a non-decision-maker does

not constitute a materially adverse action.

31

Petitioner’s allegation regarding Gurga’s “tan”

comment is not only untimely because it occurred more

than 300 days before the November 2004 EEOC charge,

but it is also not actionable as a matter of law. App. 72,

1 25; App. 82-83, 167. The ambiguous and innocuous

comment was purportedly made more than three years

ago by a non-decision-maker, outside of Petitioner’s

presence to Petitioner’s co-worker. App. 69, 1 10; App.

82-83, 11 67-70. Petitioner never complained about the

comment to AT&T Mobility’s Human Resources

Department. App. 83, 1 70. Because the purported

comment had absolutely no effect on Petitioner’s

employment and no relevance to the claims at issue in

this case, it should not even have been considered by

the Courts below. In any event, such a temporally remote

and vague comment, not directed at the complaining

employee, would not have dissuaded a reasonable -

person from complaining of discrimination.

b:. The District Court properly

determined that Petitioner did not

identify any similarly situated

employees who were treated more

favorably.

In order to establish a prima facie case of retaliation

or discrimination, Petitioner must also show a similarly

situated employee was treated more favorably. The

District: Court properly found Petitioner presented no

evidence that similarly situated employees who had not

complained about discrimination or who were not in his

protected category were treated more favorably.

32

For example, with regard to his 2003 evaluation,

Petitioner admitted he is simply guessing white

employees received more favorable appraisals. App. 77,

138. He also concedes he has never seen the

performance appraisals of his co-workers, was not

present at any of their performance appraisal meetings,

and cannot identify any employee who received higher

ratings. Jd. Likewise, no employees, regardless of race

or protected activity, were permitted union

representation at performance review meetings or other

non-disciplinary meetings. App. 87-89, 11 86, 88-90, 92-

93. With respect to the distribution of equipment,

Petitioner admitted he was not aware of any employees

treated differently with regard to equipment, or who

received equipment more expeditiously. App. 92-94,

19 107, 111-12. With respect to the UMTS training,

there were several white field technicians with more

seniority than Petitioner who received the training after

Petitioner. App. 90-91, 11.98, 101. With respect to the

e-mails, it is undisputed Barrett also asked white

employees to limit the frequency of their e-mails (App.

81, 159) and Morrissey sent the “ratting out” e-mail to

all union members regardless of their race or whether

they had made complaints of discrimination. App. 84-

85, 1171, 76. Because Petitioner failed to identify any

similarly situated employees who were treated more

favorably, he failed to establish a prima facte case and

the District Court properly granted summary judgment

and the Petition should be denied.

33

2. The District Court properly

determined that even if Petitioner

could make out a prima facie case,

Respondent’s actions were based on

legitimate business reasons which

were not a pretext for retaliation.®

Because the District Court properly found

Petitioner could not establish a prima facie case of

retaliation or discrimination, there was no need to

address whether AT&T Mobility’s legitimate reasons

for its actions was pre-textual. However, even if

Petitioner was able to establish a prima facie case,

AT&T Mobility proffered legitimate business reasons

for its actions, and Petitioner cannot establish these

reasons are pre-textual. In order to establish pretext,

Petitioner must show AT&T Mobility’s legitimate

reasons were not the actual reasons for the purported

adverse employment actions, but rather that his race

or his filing of a discrimination charge or complaint was

the real reason. See St. Mary’s Honor Center v. Hicks,

509 U.S. 502, 508, 125 L. Ed. 2d 407, 113 S.Ct. 2742

(1993). Because a Title VII claim requires intentional

discrimination, the pretext inquiry necessarily focuses

on whether the employer’s stated reason was honest,

not whether it was accurate. If the employer honestly

believed in its reasons, the plaintiff loses even if the

reasons are foolish, trivial, or baseless. Courts do not

6 Because the District Court found Petitioner could not

establish a prima facie case, it did not reach the other prongs of

the burden shifting scheme in its summary judgment decision.

App. 175. However, in its decision denying Petitioner’s Rule

60(b) motion, the District Court did ultimately find Petitioner

had failed to create an issue of fact that Respondent’s legitimate

non-retaliatory reasons were pre-textual. App. 203-04.

34

sit as a super-personnel department that reexamines

an entity’s business decision and reviews the propriety

of the decision. Moreover, it is not sufficient for

Petitioner to merely establish the reasons were doubtful

or mistaken. Pretext does not mean a mistake, but

rather a lie, specifically, a phony reason for some action.

Here, the District Court found Petitioner did not

present any evidence that Respondent’s legitimate

reasons for its actions were pre-textual. App. 204.

Accordingly, the District Court properly granted

summary judgment in favor of Respondent and the

Petition should be denied.

E. The District Court Did Not Abuse Its

Discretion In Denying Petitioner’s Rule

60(b)(6) Motion To Reconsider.

Petitioner argues the Courts below misapplied this

Court’s holding in Burlington, and that a proper

application would change the outcome of this case.

However, Petitioner offers no argument as to why the

complained-of actions were materially adverse.

Moreover, the District Court’s well-reasoned opinion

reflects that it did not abuse its discretion in determining

that, even under Burlington, Petitioner failed to

establish a prima facie case of discrimination or

retaliation.

As the District Court properly found, no reasonable

person in Petitioner’s position would view the actions

he has complained of as materially adverse. App. 202.

For instance, no reasonable person would be deterred

from filing an EEOC charge because of a co-worker’s

35

request to send fewer e-mails; purported delay in

receiving a laptop mount; or any of the other trivial acts

complained of by Petitioner. App. 202. Instead, all of

these acts fall squarely in the realm of petty slights and

minor annoyances exempted from the category of

material adverse actions by this Court. “We speak of

material adversity because we believe it is important

to separate significant from trivial harms.... An

employee’s decision to report discriminatory behavior

cannot immunize that employee from those petty slights

or minor annoyances that often take place at work and

that all employees experience.” Burlington, 548 U.S. at

53.

Furthermore, as the District Court itself noted, even

assuming the remaining acts of “retaliation” Petitioner

complained of were “materially adverse,” Petitioner still

did not establish a prima facie case because he did not

identify any similarly situated employees who filed

charges or complaints or were outside his protected

class and were treated more favorably. App. 166-67, 203.

Thus, the District Court gave Petitioner the benefit of

the doubt with respect to certain aspects of his

retaliation claim, i.e. that although certain of the

complained of conduct might be materially adverse, it

makes no difference here because Petitioner still failed

to establish another element of his prima facie case.

App. 203. Finally, as the District Court properly found, ©

even if Petitioner were able to establish a prima facie

case, Petitioner failed to establish that any of

Respondent’s legitimate, non-retaliatory reasons for its

actions were pre-textual. App. 203-04. The decisions of

the Courts below on all these issues were entirely correct

and consistent with this Court’s prior rulings.

Accordingly, the Petition should be denied.

36

CONCLUSION

Petitioner has not established any compelling reason

for this Court to grant the Petition. Therefore, AT&T

Mobility respectfully requests that the Petition be

denied.

Respectfully submitted,

NADINE C. ABRAHAMS

Counsel of Record

GERARD A. McINNIS

JACKSON LEwis, LLP

320 West Ohio Street

Suite 500

Chicago, IL 60610

(312) 787-4949

Counsel for Respondent