Petition for Writ of Certiorari — Nishioka v. University of Texas M. D. Anderson Cancer Center

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No. 91169 6 may 17 o999

OFFICE OF THE CLERK

In the

Supreme Court of the Anited States

DR. KENJI NISHIOKA,

Petitioner,

Vv.

THE UNIVERSITY OF TEXAS

M.D. ANDERSON CANCER CENTER,

Respondent.

On Petition For Writ OF CERTIORARI

To Tue Unirep States Cour'’r OF APPEALS

For Tue Firrs Circuit

PETITION FOR WRIT OF CERTIORARI

ELLEN SPROVACH

Counsel of Record

c/o GrecG M. ROSENBERG

& ASSOCIATES

11 GREENWAY PLAZA

Of Counsel: Suite 2810

GrecG M. ROSENBERG Houston, TX 77046

& ASSOCIATES (713) 960-8300

Counsel for Petitioner

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

QUESTIONS PRESENTED FOR REVIEW

Whether there is a compelling reason to grant the

Petition for Writ of Certiorari because the United States Court

of Appeals for the Fifth Circuit has decided an important

question of Federal Law that has not been but should be

settled by this Court.

Whether the timing of the “end” of the protected

activity in relation to the retaliatory event or events

establishes the required nexus. 42 U.S.C. § 2000e-3.

PACA GEST Pes roster ae Oe wc EC, OER

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Parties are not

required to file a corporate disclosure statement.

Petitioner/Plaintiff is an individual. Respondent/Defendant is

a State of Texas governmental entity.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ........... i

CORPORATE DISCLOSURE STATEMENT ....... ii

TABLE OF CONTENTS .................. lii-iv

TABLE OF AUTHORITIES .................. Vv

STATEMENT OF JURISDICTION ............. |

OPINIONS BELOW ....................... |

I STATEMENT OF THECASE............ l

A. Statutes Involved as the Basis

for Federal Jurisdiction in the

Court of the First Instance .......... l

B. Facts Material to the

Consideration of the Questions

I te ee yar. ee 3

II SUMMARY OF THE ARGUMENT ........ 5

Ill REASONS FOR GRANTING WRIT ........ 6

A. Dr. Nishioka Has Brought an

Important Question of Federal

Law That Has not Been, but

Should be Settled by this Court

ill

IV

The Standard Necessary to

Survive

Summary

Judgment/ Application of Law

ae

Nishioka established a

Prima Facie Case of

Retaliation .......

Nishioka engaged in a

protected activity ...

Defendant performed

adverse actions against

eee

Defendant’s denial of

access and destruction

of the peptides was

directly linked to

Nishioka’s protected

NE ek hoo od oes

M.D. Anderson does

not have a legitimate

business reason to

explain why it discarded

Dr. Nishioka’s lifetime

he oor ey ae oe ee

Ze we ee ae ee

CEPR 6 ¥ed isso siete

Appendix A - Fifth Circuit Denial of Petition

for Rehearing - 02/22/02 ................

Appendix B - Fifth Circuit Per Curiam

CR ~ GEITOIES ogo kiko ok ck nck

Appendix C - District Court Memorandum and

ROOT ONE 5 kk hb vc eeu nadenecnss

Appendix D - District Court Final Judgment -

GE Ki a once ee eee

Appendix E - District Court Memorandum and

UT NI 6 ivan deals

TABLE OF AUTHORITIES

CASES PAGE

Mayberry v. Voight Aircraft Co.,

55 F.3d 1086 (Sth Cir. 1995) ......... 6,9, 11

McDonnell Douglas Corp. v. Green,

431 U.S. THR GTA) ccc ccccccvsavsevecs 9

Nowlin v. Resolution Trust Corp.,

33 F.3d 498 (Sth Cir. 1994) .............. 10

Robinson v. Shell Oil Co.,

S19 U.S. S37 CIGBT) 0 wc cccscccscsvenss 9

Reeves v. Sanderson Plumbing Products, Inc.,

$30 U.S. 199. GHRGED ook ci vce sutusas de 9, 16

Shirley v. Chrysler First Inc.,

970 F.2d 39, 41 (Sth Cir. 1992) ......... 9,11

STATUTES

y PIR fom >! . rr 1

42 U.S.C. § MGBeS .. ccc ccccsccencssun eS

SUPREME COURT RULES

Supreme Court Rules 12.1, 13.1, 13.3 and29....... l

Supreme Court Rule 29.6 ....... 22-00-02 e000> ii

vi

STATEMENT OF JURISDICTION

This Honorable Court has jurisdiction to hear this case

under 42 U.S.C. § 2000e-3. Jurisdiction is also proper and

timely pursuant to 28 U.S.C. § 2101 (c), Supreme Court

Rules 12.1, 13.1, 13.3, and 29.

OPINIONS BELOW

Appellant is appealing a Denial of a Petition for Panel

Rehearing entered February 22, 2002 by the United States

Court of Appeals for the Fifth Circuit and a judgment of the

United States Court of Appeals for the Fifth Circuit entered

on January 23, 2002.

The United States District Court for the Southern

District of Texas entered a final order on May 9, 2001 and a

Summary Judgment order on March 7, 2001.

I

STATEMENT OF THE CASE

A. Statutes Involved as the Basis for Federal Jurisdiction

in the Court of the First Instance

42 U.S.C. § 2000e-3.

(a)Discrimination for making charges,

testifying, assisting, or participating in

enforcement proceedings.

It shall be an unlawful employment practice

for an employer to discriminate against any of

his employees or applicants for employment,

|

EE ee

for an employment agency, or joint labor-

management committee’ controlling

apprenticeship or other training or retraining,

including on-the-job training programs, to

discriminate against any individual, or for a

labor organization to discriminate against any

member thereof or applicant for membership,

because he has opposed any practice made an

unlawful employment practice by _ this

subchapter, or because he has made a charge,

testified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this subchapter.

(b) Printing or publication of notices or

advertisements indicating prohibited

preference, limitation, specification, or

discrimination; occupational qualification

exception.

It shall be an unlawful employment practice

for an employer, labor organization

employment agency, or joint labor-

management committee controlling

apprenticeship or other training or retraining,

including on-the-job training programs, to

print or publish or cause to be printed or

published any notice or advertisement relating

to employment by such an employer or

membership in or any classification or referral

for employment by such a labor organization,

or relating to any classification or referral for

employment by such an employment agency,

or relating to admission to , or employment in,

any program established to provide

2

ae Paes

apprenticeship or other training by such a joint

labor-management committee, indicating any

preference, limitation, specification, or

discrimination, based on race, color, religion,

sex, or national origin, except that such a

notice or advertisement may indicate a

preference, limitation, specification, or

discrimination based on religion, sex, or

national origin when religion, sex or national

origin is a bona fide occupational qualification

for employment.

B. Facts Material to the Consideration of the Questions

Presented

Petitioner - Plaintiff Kenji Nishioka is a PhD. who

was employed as a biochemist with M.D. Anderson as a

faculty member and professor of oncology for a period of

almost 23 years, from 1972 through 1995. In 1994, M. D.

Anderson determined not to renew Nishioka’s contract and his

last day of employment was to be August 31, 1995. In 1995,

Nishioka filed an EEOC charge of discrimination, received a

right to sue letter and filed a lawsuit in Federal Court where

a temporary injunction hearing was held by United States

Magistrate Judge Nancy Johnson. At the hearing, Nishioka

made the first of many formal requests for access to items to

include research, however, Magistrate Judge Johnson did not

make any ownership determinations. Summary Judgment was

granted for the Defendant and Nishioka appealed to the Fifth

Circuit. The case was ultimately dismissed by an order

entered on December 10, 1997.

Dr. Nishioka made many verbal requests for personal

property, (including his requests at the August 31, 1995 TRO

hearing) which included research materials, specifically

3

peptides. On October 15, 1996, Nishioka formally made a

written request for research materials, via letter to M.D.

Anderson, specifically requesting the release of five

categories of research materials, with item “E” individually

listed as peptides. M.D. Anderson’s agent, Susan Diane

Stanford, informed Plaintiff in a telephone call that the data

and materials were not to be released. On November 19,

1996, M.D. Anderson sent a letter to Plaintiff releasing many

items but carefully omitting any reference to item “E”, the

peptides. The record shows that the letter was attempted three

times, without success, though Plaintiff was not away and did

not move.

On April 30, 1997, Nishioka wrote a second letter,

this time addressed to the new president of M.D. Anderson.

Within two weeks, Dan Fontaine, the chief legal officer of

M.D. Anderson responded in writing to Nishioka, releasing

items A-D. For the first time, M.D. Anderson responded

regarding item “E”, the peptides, stating that in the summer

of 1996, the lab freezer failed and all contents experienced a

temperature decrease. The supplies were allegedly moved to

another freezer, which also failed, and when that freezer was

cleaned that spring (1997) all contents were assumed damaged

and ultimately discarded.

Diane Stanford, Respondent’s agent responsible for the

labs, testified that she recalled power outages in the summer

of 1996 and January 1997. She transferred materials to the

second freezer but did not recall discarding any items.

Ms. Stanford did request permission to clean out Dr.

Nishioka’s freezers in early 1998 in order to prepare it for a

new faculty member. Ms. Stanford’s boss, Karen Myers, told

her that the lawsuit was over [emphasis ours] and that she

could now discard the items in the freezers Dr. Nishioka had

4

utilized. Stanford did discard the items in the freezers in

1998, less than one month after the Fifth Circuit Appeal was

denied. Additionally, she testified that both freezers were

running in early 1998.

II

SUMMARY OF THE ARGUMENT

Both the District Court and the United States Court of

Appeals for the Fifth Circuit decided, erroneously, an

important question of Federal that has not been, but should

be, settled by this Court. There are compelling reasons why

this Court should grant this Petition for Writ of Certiorari and

consider these important questions.

Specifically, the Courts determined that the issue of

the timing of the denial of Dr. Nishioka’s Appeal in the

United States Court of Appeals for the Fifth Circuit was not

the activity triggering the adverse action.

Respondent/Defendant M. D. Anderson’s agent instructed an

employee to destroy Dr. Nishioka’s lifetime research (in the

form of peptides) because, in their own words, Dr. Nishioka’s

lawsuit was over. In other words, once M.D. Anderson

believed that their liability was over, the liability stemming

from the protected activity, they took the adverse actions

against Dr. Nishioka.

The District Court erred in holding that Nishioka did

not meet his prima facie case of retaliation under 42 U.S.C.

§ 2000e-3. Dr. Nishioka asserts that the District Court’s

reasoning regarding Nishioka’s prima facie case was

incorrect, that the District Court misapplied law to fact and

settled an important question of law that should be settled by

this Honorable Court. Moreover, Nishioka further asserts

3

that in evaluating the summary judgment standard, the District

Court inappropriately weighed the evidence in favor of M. D.

Anderson. In effect, the District Court assumed there was

fact issues present and went on to assume the role of fact

finder. The District Court granted summary judgment on its

own factual determinations, which are best left to the proper

fact finder, the jury. Therefore, despite the existence of

Nishioka’s prima facie case, the District Court denied

Nishioka his right to a jury trial. The United States Court of

Appeals for the Fifth Circuit went on to affirm that ruling.

Il

REASONS FOR GRANTING WRIT

A. Dr. Nishioka Has Brought an Important Question of

Federal Law That Has not Been, but Should be Settled

by this Court.

Normally in a Title VII retaliation case, courts are

concerned with the timing of the protected activity as it relates

to the adverse action. Mayberry v. Voight Aircraft Co., 55

F.3d 1086 (5" Cir. 1995). Normally, however, the concern

is “close” timing, in other words, the adverse action occurs

close in time to the onset of the protected activity, i.e., filing

a charge of discrimination or a lawsuit. In Nishioka’s case,

though timing to the protected activity is very important,

indeed, although it is not necessarily the timing of the initial

filing that is the issue. With regard to the destruction of the

peptides, Dr. Nishioka’s case involves the polar opposite with

regard to timing, the final dismissal of the Fifth Circuit

Appeal of the original lawsuit. It was at that time, when M.D.

Anderson believed Nishioka’s lawsuit was over and their

liability expired, that the destruction of the peptides or the

items in the freezer, was ordered.

Susan Diane Stanford was the individual responsible

for the equipment that stored Nishioka’s peptides. In early

1998, she sought to clean out Nishioka’s laboratory space and

prepare it for the arrival of a new faculty member. She

specifically asked her boss, Karen Myers, if she could clean

out Dr. Nishioka’s freezers and laboratory space. Karen

Myers informed Ms. Stanford that now that the lawsuit was

settled she could go ahead and clear out everything. A. The

only discussion we had of it was that the lawsuit - the issue

was over and I could freely do whatever I needed to do. Q.

When was that discussion? A. That would have been when I

asked to clean out the freezers. Deposition of Susan Diane

Stanford, page 48. Defendant themselves link the lawsuit

(and what they believed to be its end) to the contents of the

freezer. In the instant case, the issue is not the onset of the

protected activity but rather the termination of it. It was only

when the Defendant believed that they were no longer subject

to any liability that they destroyed Dr. Nishioka’s lifetime

work.

Defendant denied Plaintiff access to the research

materials from the onset of the protected activity. Nishioka

requested the peptides both formally and informally many

times. The lower courts indicate that there is irrefutable

evidence that rather than retaliating against Dr. Nishioka,

M.D. Anderson was merely following its policy with regard

to departing faculty. Nishioka’s supervisor, Dr. Pollock,

testified that another researcher, Dr. Neil Pellis, removed his

research and materials before he left Defendant’s

employment. To the contrary, Dr. Pellis testified that he had

unfettered access to his research and material after he left

Defendant’s employ. Indeed, Dr. Pellis did not have on site

supervision after he left M.D. Anderson’s employ. The only

significant difference between Dr. Pellis and Dr. Nishioka is

that Dr. Nishioka engaged in a protected activity: Affidavit of

Neal R. Pellis.

Utilizing the above argument, had Dr. Nishioka not

engaged in protected activity, he too, would have had

unfettered access to his research materials like Dr. Pellis. Had

Dr. Nishioka not filed his lawsuit, his materials would not

have been discarded in early 1998 as Defendant only gave

permission to discard it because “his lawsuit was over”.

The District Court for the Southern District of Texas

held that “[t]he time span between the lawsuit and the alleged

retaliation is substantially longer than periods courts have

normally found to raise an inference of causation.”

Memorandum and Order Entered May 9, 2001, Rosenthal, J.

The District Court went on to determine, “[a]ssuming the

facts in the light most favorable to Nishioka, approximately

one and one-half years elapsed between the filing of

Nishioka’s lawsuit and the destruction of the peptides.”

Memorandum and Order entered March 7, 2001, Rosenthal,

J. p. 17. Additionally the United States Court of Appeals for

the Fifth Circuit held that it was “not this court’s decision

affirming the district court’s dismissal of Nishioka’s Title VII

case, as Nishioka claims, but rather Nishioka’s filing a Title

VII lawsuit, which occurred well Over a year before Nishioka

first requested and the defendant thereafter destroyed the

peptides at issue. Decision Affirming Summary Judgment,

filed on January 23, 2002, The United States Court of

Appeals for the Fifth Circuit. P. 2-3. Therefore, the United

States Court of Appeals for the Fifth Circuit decided an

important issue of law that should properly be decided by this

Court.

B. The Standard Necessary to Survive Summary

Judgment/Application of Law.

1. Nishioka established a Prima Facie Case of

Retaliation

In order for a plaintiff to establish retaliation by

showing that: (1) he engaged in an activity protected by Title

VII; (2) an adverse employment action occurred; and (3) there

was a Causal connection between the protected activity and the

adverse employment decision. Shirley v. Chrysler First, Inc.,

970 F.2d 39, 41 (5 Cir. 1992). The establishment of a prima

facie case gives rise to an inference of retaliation. Id. This

inference of retaliation, in turn, shifts the burden of proof to

the Defendant, who must then articulate a legitimate

nondiscriminatory reason for the challenged employment

action. Id; McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). The trier of fact can determine from the falsity of

explanation the Defendant is dissembling to cover up a

discriminatory or retaliatory purpose. Reeves v. Sanderson

Plumbing Products Inc., 530 U.S. 133 (2000).

The Supreme Court held that Title VII’s anti-

retaliation provisions extend to former employees as well as

employees. Robinson v. Shell Oil Co., 519 U.S. 337 (1997).

Dr. Nishioka was a_ former employee of

Respondent/Defendant.

M.D. Anderson condoned, and in fact, encouraged

and directed Diane Stanford, the laboratory personnel, to

destroy Dr. Nishioka’s lifetime research.

The Fifth Circuit has held that the timing of the

protected activity and the bad event or adverse action can be

a Significant factor. Mayberry v. Voight Aircraft Co., 55 F.3d

9

1086 (5" Cir. 1995). Nishioka need not show the Court that

the protected activity was the sole motivating factor for the

adverse action, but he must show that “but for” the protected

activity, he would not have been subjected to the adverse

employment action. Nowlin y, Resolution Trust Corp., 33

F.3d 498 (5" Cir. 1994),

2. Nishioka engaged in a protected activity.

Defendant does dispute this element of Plaintiff’ s

prima facie case. In 1995, Nishioka filed a charge of

discrimination with the Equal Employment Opportunity

Commission and received a right to sue letter. He then filed

a Title VII discrimination lawsuit. On March 5, 1997, the

federal district court dismissed Nishioka’s Title VII suit on

summary judgment. Nishioka filed an appeal with the Fifth

Circuit, which was affirmed on December 10, 1997.

3. Defendant performed adverse actions

against Nishioka.

Defendant does not dispute this element of Nishioka’s

claim either. Defendant denied Nishioka access to and

ultimately destroyed Nishioka’s lifetime culmination of

research material, most specifically peptides, after Plaintiff

formally and informally requested the peptides.

4, Defendant’s denial of access and destruction

of the peptides was directly linked to

Nishioka’s protected activity.

Defendant themselves link the lawsuit (and what they

believed to be its end) to the contents of the freezer (the

adverse action). While timing between a protected activity

and the adverse action can Support a finding of causation,

10

normally the concern is “close” timing. Mayberry, 55 F.3d

1086, 1092. The Fifth Circuit has held in Shirley v. Chrysler

First, Inc., that fourteen months between the onset of the

protected activity and the adverse action supported retaliation.

970 F.2d 39 (5" Cir. 1992).' In Nishioka’s case, though

timing to the protected activity is very important, indeed, it is

not necessarily the timing of the initial filing that we are

concerned about at least with regard to the destruction of the

peptides. This case involves the polar opposite with regard to

timing, the final dismissal of the Fifth Circuit Appeal of the

original lawsuit.

Susan Diane Stanford was the individual responsible

for the equipment that stored Nishioka’s peptides. In early

1998, she sought to clean out Nishioka’s laboratory space and

prepare it for the arrival of a new faculty member. She

specifically asked her boss, Karen Myers if she could clean

out Dr. Nishioka’s freezers and laboratory space. Karen

Myers informed Ms. Stanford that now that the lawsuit was

settled she could go ahead and clear out everything. In the

instant case, the issue is not the onset of the protected activity

but rather the termination of it. It was only when the

Defendant believed that they were no longer subject to any

liability that they destroyed Dr. Nishioka’s lifetime work.

Defendant denied Plaintiff access to the research

materials from the onset of the protected activity. Nishioka

requested the peptides both formally and informally many

times. Nishioka’s supervisor, Dr. Pollock testified that

another researcher, Dr. Neil Pellis, removed his research and

materials before he left Defendant’s employment. To the

‘ Other circuits (Eighth, Sixth, Eleventh and the District of

Columbia) have added a fourth prong discussing how much weight

should be given a lapse of time. The Fifth circuit has declined to do

so.

11

contrary, Dr. Pellis testified that he had unfettered access to

his research and material after he left Defendant’s employ.

Affidavit of Neal Pellis. The only significant difference

between Dr. Pellis and Dr. Nishioka is that Dr. Nishioka

engaged in a protected activity. Neal Pellis did not.

Utilizing the above argument, had Dr. Nishioka not

engaged in protected activity, he too, would have had

unfettered access to his research materials like Dr. Pellis. Had

Dr. Nishioka not filed his lawsuit, his materials would not

have been discarded in early 1998 as Defendant only gave

permission to discard it because “his lawsuit was over”.

M.D. Anderson denied Dr. Nishioka access to his research

material because he engaged in a protected activity AND

destroyed that research material because he engaged in a

protected activity.

S, M.D. Anderson does not have a legitimate

business reason to explain why it discarded

Dr. Nishioka’s lifetime work.

Though there is uncontroverted testimony that Plaintiff

made many verbal requests for the peptides the record does

reflect that Plaintiff made at least three formal, requests for

the peptides at the injunction hearing on August 31, 1995 and

in writing on October 15, 1996 and again on April 30, 1997.

M.D. Anderson asserts that it responded to Dr. Nishioka’s

request on November 19, 1996 but that the letter was returned

undelivered. Defendant was in touch with Plaintiff and

Plaintiff's attorney at this time (remember Plaintiff had an

ongoing lawsuit) but did not attempt to either call Plaintiff or

correspond with Plaintiff's attorney regarding Plaintiff's

specific requests.

12

ala

In the letter that Defendant asserts it attempted to send

Plaintiff, Defendant released only Item C: Reference Article

Files. At this point, almost one and one- half years after firing

Plaintiff, Defendant would only release one item, a publicly

available one at that. Defendant went on to state that it would

have to consider the remaining documents (Items A, B, and

D). Defendant misleads by omission - Defendant did not

review or consider Item E, the peptides. In fact, though M.D.

Anderson later states that the peptides were damaged in the

summer of 1996, it did not mention it in that letter.

Only after Dr. Nishioka made a new appeal to the

newly appointed president, Dr. John Mendelson, did

Defendant respond to Plaintiff, this time to Plaintiff's

attorney. Finally, Defendant acknowledges that Plaintiff has

requested the peptides, informing Plaintiff in great detail that

some power outages had occurred in the summer of 1996

causing freezer failures and the Defendant alleges, the

destruction of Plaintiff's research materials.

The problems with this argument are many. If, there

was a freezer failure and subsequent destruction of any

research materials, Defendant failed to discuss it with Plaintiff

in its letter dated November 19, 1996. Defendant was

certainly on formal notice in November of 1996 that Plaintiff

wanted those peptides. Second, Dr. Nishioka testified in his

affidavit that neptides are very stable at room temperature as

long as they remain dry. Defendant testified that the peptides

would be damaged from temperature increases. If Defendant

did indeed discard these peptides, they may very well have

destroyed important viable research. Certainly, many

researchers on staff and readily available (as well as Dr.

Nishioka) were available to answer any viability questions that

Defendant may have had. A material issue of genuine fact

13

exists as to whether the peptides were viable at the time of the

alleged power outages.

The biggest problem with regard to Defendant’s

argument that the peptides and other research materials in the

freezer were discarded in the summer of 1996 is that they

weren't. Dan Fontaine’s May 1997 letter states “[t}hese

samples were moved to another freezer which also failed

causing a second temperature increase. When the lab was

cleaned this spring, all contents exposed to the two

temperature failures were assumed damaged and were

eventually discarded. (This spring can only reference the

spring of 1997 as Dan Fontaine’s letter is dated May 1997.)

Spring or May 1997 is after October 15, 1996 when Dr.

Nishioka made a formal request for the peptides. Defendant

was on notice that he requested the peptides and if nothing

else, withheld them from Dr. Nishioka. Ms. Stanford testified

that she did not discard anything belonging to Dr. Nishioka

until early 1998.

The importance of these dates is thus: when Kenji

Nishioka visited M.D. Anderson to pick up the bulk of his

materials and supplies on June 20, 1997, Defendant still had

the peptides.

Susan Diane Stanford, the individual in charge of the

lais testified in her deposition that she recalled that in early

1998 she discarded items that were in the freezer assigned to

Dr. Nishioka. If power outages had occurred and items were

moved into two different freezers, why then were there items

in the freezer originally assigned to Dr. Nishioka on June 20,

1997 when Dr. Nishioka visited M.D. Anderson to retrieve

the bulk of his items? Couldn’t M.D. Anderson let Dr.

Nishioka look at the items in the freezer to determine if they

viable?

14

Plaintiff deposed Diane Stanford on November 16,

2000 at which point she clearly remembered items remaining

in the freezer assigned to Dr. Nishioka. It is only in an

affidavit specifically crafted to support Defendant’s Motion

for Summary Judgment signed on December 12, 2000 that she

mentions seeing commercially available items and lots of

laboratory supplies. However, Ms. Stanford goes on to

discuss the items in Dr. Nishioka’s freezer separately,

certainly indicating that the items in the freezer were products

of Dr. Nishioka’s research.

Diane Stanford offers the most striking contradiction

of Defendant’s Summary Judgment evidence. Ms. Stanford

asserts, “After Dr. Nishioka left, I was in charge of

maintaining his former laboratory.” She goes on to say, “I

know that another power outage occurred in January of 1997.

...Nevertheless, I did not discard the items related to Dr.

Nishioka’s research at that time.” In fact, I do not recall ever

personally discarding those items. Deposition of Susan Diane

Stanford. Ms. Stanford does not recall discarding items in Dr.

Nishioka’s freezer prior to being informed that his lawsuit

was over in 1998, in direct contradiction with Dan Fontaine’s

letter indicating that the research was discarded in early 1997.

This information contradicts the letter written by Dan

Fontaine, all of which creates a genuine issue of material fact

for the jury to determine.

Defendant might have had a legitimate reason for

discarding Dr. Nishioka’s research after the freezer outage (if

they determined that the materials were damaged) and if they

had actually discarded it then and if the freezers were not

working. However, none of this occurred. The issues of when

and why Defendant discarded Dr. Nishioka’s work are issues

better left for the jury.

15

6. Inference of Retaliation

On June 12, 2000, the United States Supreme Court

issued its opinion in Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133 (2000). Although Reeves is an age

discrimination case, the method of proof in an age

discrimination case is similar to the method of proof used in

a retaliation case arising under 42 U.S.C. § 2000e-3 and

therefore, a review of Reeves will be helpful at bar. In

Reeves, the plaintiff successfully sued his employer for age

discrimination after he was terminated from his position as a

hinge-department supervisor in a toilet seat plant. He was 57

years old at the time and had worked at the plant for 40 years.

This Court vacated the trial court verdict in Reeves’ favor

holding that Reeves did not offer enough proof of an illegal

bias. The Supreme Court overturned the decision because

Reeves introduced enough evidence to show discrimination

based on the prima facie case and evidence to show that the

proffered reason was false. The Supreme Court unanimously

held that a jury can, but is not required, to find intentional

discrimination from a plaintiff’ s prima facie case and evidence

that the proffered reason for terminating the plaintiff was

false.

IV

CONCLUSION

Dr. Nishioka has shown that Court that an important

federal question of law should be, but has not been decided by

this Court and that compelling reasons exist to do so. Dr.

Nishioka has met his prima facie case of retaliation and

offered evidence to rebut the “legitimate” business reason

offered by M.D. Anderson for its actions toward Dr.

16

Nishioka. Dr. Nishioka respectfully requests that his Petition

for Writ of Certiorari be GRANTED.

Respectfully submitted,

ELLEN SPROVACH

Counsel of Record

c/o Gregg M. Rosenberg & Associates

11 Greenway Plaza, Suite 2810

Houston, Texas 77046

(713) 960-8300

(713) 621-6670 (Facsimile)

Gregg M. Rosenberg & Associates

Of Counsel

ATTORNEYS FOR PETITIONER

17

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-20603

[Filed February 22, 2002]

KENJI NISHIOKA, Doctor )

)

Plaintiff - Appellant, )

Defendant - Appellee.

)

Vv. )

)

UNIVERSITY OF TEXAS )

M D ANDERSON )

CANCER CENTER )

)

)

)

- Appeal from the United States District Court

for the Southern District of Texas, Houston

ON PETITION FOR REHEARING

Before. HIGGINBOTHAM, WIENER and BARKSDALE,

Circuit Judges.

la

PER CURIAM:

IT IS ORDERED that the petition for rehearing is

DENIED.

ENTERED FOR THE COURT:

/s/

United States Circuit Judge

- APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-20603

[Filed January 23, 2002]

DR. KENJI NISHIOKA,

Plaintiff - Appellant,

V.

)

)

)

)

)

)

)

THE UNIVERSITY OF

TEXAS M. D. ANDERSON)

CANCER CENTER, )

)

Defendant - Appellee.)

)

Appeal from the United States District Court

for the Southern District of Texas, Houston

USDC No. 99-CV-1938

Before HIGGINBOTHAM, WIENER, and BARKSDALE,

Circuit Judges.

3a

Fifth Circuit Opinion - 1/23/02 -

PER CURIAM:*

Dr. Kenji Nishioka appeals from the district court's

order granting summary judgment in favor of the defendant

on Nishioka's Title VII retaliation claim. Nishioka argues that

his appeal was timely filed and that the district court erred in

concluding that he failed to make out a prima facie case of

retaliation for failure to show a causal link between his

protected activity of filing a Title VII lawsuit and an adverse

employment action, including denying him access to and

destroying the peptides that were the result of his research.

Further, Nishioka argues that he presented sufficient evidence

of pretext to go to a jury.

First, there is no issue that Nishioka's appeal was

timely filed. To the extent that Nishioka argues that the

district court erroneously applied the standard for a Fed. R.

Civ. P. 60(b) motion, rather than a Rule 59(e) motion, to his

Motion for Rehearing and Reconsideration, Nishioka fails to

articulate how the district court applied an incorrect standard

or what effect this had on the district court's decision on his

motion. Accordingly, we consider this issue waived.'

Second, assuming that the denial of access to and

subsequent destruction of the peptides was an adverse

"Pursuant to STH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

' See Trevino v. Johnson, 168 F.3d 173, 181 n.3 (Sth Cir.

1999) .

4a

Fifth Circuit Opinion - 1/23/02

employment action, we conclude that the district court did not

err in concluding that Nishioka failed to show the causal

connection between his protected activity and an adverse

employment action required to make out a prima facie case of

Title VII retaliation.” Here, the protected activity was not this

court's decision affirming the district court's dismissal of

Nishioka's Title VII case, as Nishioka claims, but rather

Nishioka's filing of a Title VII lawsuit, which occurred well

over a year before Nishioka first requested and the defendant

thereafter destroyed the peptides at issue.’ This period of time

defeats an inference of retaliation based on close timing.‘

Further, Nishioka has not put forward sufficient evidence to

establish a genuine issue of material fact that the decision to

deny Nishioka access to the peptides at issue and the decision

to destroy the peptides, as opposed to other materials which

are not the subject of his retaliation claim, were "not wholly

unrelated" to his Title VII lawsuit.* Accordingly, Nishioka

has failed to make a showing of a prima facie case of Title VII

retaliation, and the district court did not err in granting

summary judgment to the defendant on that basis.

2 See Mato v. Baldauf, 267 F.3d 444, 450 (Sth Cir.

2001).

3 Cf. Casarez v. Burlington Northern/Santa Fe Co., 193

F.3d 334, 339 (Sth Cir. 1999).

* See Mato, 267 F.3d at 453; Evans v. City of Houston,

246 F.3d 344, 354 (Sth Cir. 2001); Swanson v. Gen. Servs.

~ Admin., 110 F.3d 1180, 1188 n.3 (Sth Cir. 1997).

> Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684

(Sth Cir. 2001).

5a

Fifth Circuit Opinion - 1/23/02

Moreover, even if Nishioka had successfully presented

a prima facie case, the district court did not err in concluding

that, alternatively, Nishioka failed to establish that the

defendant's proffered, non-retaliatory reason for destroying

the peptides was pretextual.° The uncontroverted evidence in

the record shows that the peptides were destroyed only after

the second freezer failure in early 1997 and that the defendant

acted in good faith in discarding the peptides which were

presumed to be irreparably damaged.’ The other evidence to

which Nishioka points does not contradict the defendant's

explanation as to when and why the peptides were destroyed.

AFFIRMED.

® See Mato, 267 F.3d at 452.

’ See Waggoner v. City of Garland, 987 F.2d 1160, 1165-

66 & n.21 (Sth Cir. 1993); cf. Singh v. Shoney's, Inc., 64 F.3d

217, 219 (Sth Cir. 1995).

6a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-99-1938

[Filed May 9, 2001]

DR. KENJI NISHIOKA,

)

)

Plaintiff, )

)

V. )

)

THE UNIVERSITY OF )

TEXAS M. D. ANDERSON)

CANCER CENTER, )

)

Defendant. )

)

MEMORANDUM AND ORDER

Plaintiff, Dr. Kenji Nishioka, has moved for rehearing

and reconsideration of this court’s order granting summary

judgment to defendant, the University of Texas M.D.

Anderson Cancer Center (“M.D. Anderson”). (Docket Entry

No. 44). For the reasons set out below, this court DENIES

Nishioka’s motion for rehearing and reconsideration.

Ta

District Court Memorandum and Order - 5/9/01

Nishioka filed his motion for rehearing and

reconsideration on March 21, 2001. This court entered a final

judgment, dismissing this suit with prejudice, on March 7,

2001. Because Nishioka filed his motion more than ten days

after the entry of final judgment. FED R. CIV. P 60(b)

applies. Rule 60(b) allows a court to relieve a party from a

final judgment under the following circumstances:

(1) mistake, inadvertence, surprise, or

excusable neglect, (2) newly discovered

evidence which by due diligence could not

have been discovered in time to move for a

new trial under Rule 59 (b); (3) fraud...

misrepresentation, or other misconduct of an

adverse party; (4) the judgment is void, (5) the

judgment has been satisfied, released, or

discharged, or a prior judgment upon which it

is based has been reversed or otherwise

vacated, or it is no longer equitable that the

judgment should have prospective application,

or (6) any other reason justifying relief from

the operation of a judgment.

Nishioka does not assert that any of the first five criteria

apply. His motion depends on the sixth criteria, the “catch-

all.”

Rule 60(b) allows the trial court to “correct obvious

errors or injustices.” Fackelman v. Bell, 564 F. 2d 734, 736

(Sth Cir. 1977). A party moving under Rule 60(b) must show

“unusual or unique circumstances.” Jd., Pryor v. U.S. Postal

Service, 769 F.2d 281, 286 (Sth Cir. 1985). Courts have held

that “Rule 60(b)(6) relief will be granted only if extraordinary

8a

District Court Memorandum and Order - 5/9/01

circumstances are present.” Batts v. Tow Motor Forklift Co.,

66 F. 3d 743, (Sth Cir. 1995), cert. denied, 116 S. Ct. 1851

(1996); Straw v. Bowen, 866 F. 2d 1167, 1172 (9th Cir.

1989) (“a circumstance of hardship that cries out for the

unusual remedy of the reopening of a final judgment”).

Nishioka presents a number of arguments in support

of his motion for reconsideration. This court considered and

specifically rejected several of Nishioka’s arguments in the

memorandum and order granting summary judgment;

Nishioka neither raises new arguments nor demonstrates that

this court’s ruling was an obvious error or injustice.

In granting summary judgment in favor of M.D.

Anderson, this court found that: 1) Nishioka had not made a |

prima facie showing of a causal connection between his

discrimination lawsuit and the destruction of his peptides after

they had remained in freezer storage for approximately one

and one-half years after Nishioka filed his lawsuit; and 2)

M.D. Anderson had presented legitimate nonretaliatory

reasons for the events that led to the destruction of the

peptides. The time span between the lawsuit and the alleged

retaliation is substantially longer than periods courts have

normally found to raise an inference of causation. See, e.g.,

Shackelford v. Deloitte & Touche, LLP, 190 F. 3d 398, 408

(Sth Cir. 1999); Nero v. Industrial Molding Corp., 167 F. 3d

921, 926 (Sth Cir. 1999). The undisputed summary judgment

evidence also showed that Nishioka’s initial inability to access

the peptides was attributable to M.D. Anderson’s policy

requiring a detailed internal review of all research materials

requested by a departing scientist, together with Nishioka’s

own failure to complete a timely inventory of the research

materials he sought, and that M.D. Anderson finally

9a

District Court Memorandum and Order - 5/9/01

discarded the peptides only after two separate power outages

caused temperature fluctuations in the freezers. The

undisputed evidence was that M.D. Anderson assumed that

the material so exposed sustained damage and should be

discarded for that reason.

Nishioka’s present challenges to these findings do not

raise new arguments or a stronger basis for his previous

arguments. Nishioka has not demonstrated “unusual or unique

circumstances” warranting the reopening of final judgment in

this case. This court DENIES Nishioka’s motion for rehearing

and reconsideration.

SIGNED on May 9, 2001, at Houston, Texas.

/s/

Lee H. Rosenthal

United States District Judge

10a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-99-!938

[Filed March 7, 2001]

DR. KENJI NISHIOKA,

)

)

Plaintiff, )

)

v. )

)

THE UNIVERSITY OF )

TEXAS M. D. ANDERSON)

CANCER CENTER, )

)

Defendant. )

)

FINAL JUDGMENT

For the reasons stated in this court's Memorandum and

Order entered this date, this civil action is DISMISSED with

prejudice. Each party shall bear its own costs.

Ths is a FINAL JUDGMENT.

lla

SIGNED on March 6, 2001, at Houston, Texas.

/s/

Lee H. Rosenthal

United States District Judge

12a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-99-1938

[Filed March 7, 2001]

DR. KENJI NISHIOKA,

)

)

Plaintiff, )

)

V. )

)

THE UNIVERSITY OF )

TEXAS M. D. ANDERSON)

CANCER CENTER, )

)

Defendant. )

)

MEMORANDUM AND ORDER

Plaintiff, Dr. Kenji Nishioka, has sued his former

employer, the University of Texas M.D. Anderson Cancer

Center ("M.D. Anderson"), alleging retaliation for filing a

previous Title VII lawsuit. In his first suit, Nishioka sued

under the antidiscrimination provisions of Title VII, alleging

that M.D. Anderson's refusal in 1995 to renew his seven-year

13a

District Court Memorandum and Order - 3/7/01

research contract was motivated by racial and national origin

discrimination. A federal court dismissed the case on

summary judgment in 1997, a result affirmed on appeal.

Nishioka filed this suit in 1999, under the antiretaliation

provisions of Title VII.' He contends that in retaliation for the

filing of the first lawsuit, M.D. Anderson denied him access

to, and subsequently destroyed, some of his research data and

materials. Nishioka alleges that this loss has prevented him

from obtaining a new research position.

M.D. Anderson moves for summary judgment on the

retaliation claim. (Docket Entry No. 30). Nishioka has

responded; M.D. Anderson has replied. (Docket Entry Nos.

31, 32). Based on a careful review of the motions, the

pleadings, the parties' submissions, and the applicable law,

this court GRANTS M.D. Anderson's motion for summary

judgment. The reasons are stated below.

I. Background

Nishioka, a biochemist, was a member of the M.D.

Anderson faculty from 1972 to 1995 and a professor of

surgical oncology from 1983 until his discharge. In August

1994, M.D. Anderson informed Nishioka that it had decided

not to grant his application for renewal of his seven-year

tenure contract. M.D. Anderson set August 31, 1995 as

Nishioka's last day of employment. (Docket Entry No. 30,

Ex. A, Att. 1). In 1995, Nishioka filed a charge of

discrimination with the Equal Employment Opportunity

' This court previously granted M.D. Anderson's motion

to dismiss the state law intentional infliction of emotional distress

claim.

14a |

An PRA MBIPY

1924 VARIA END A DR bo AN TUS TR ORIG ATI RIRY

District Court Memorandum and Order - 3/7/01

Commission and received a right-to-sue letter. Nishioka then

filed a Title VII discrimination lawsuit and requested a

temporary injunction to prevent the termination of

employment. At a hearing held on August 31, 1995, a United

States Magistrate Judge ruled that Nishioka had failed to make

the showing necessary for a temporary injunction to issue.

(Docket Entry No. 30, Ex. A, Pollock affidavit). The next

day, Nishioka returned to M.D. Anderson to begin taking

inventory of his research materials and personal belongings.

This was the first of many visits Nishioka made over the

course of the next thirteen months to inventory, document,

and eventually remove many of his research materials.

M.D. Anderson maintains a formal, written policy on

the ownership of research data and materials produced by

scientists working at M.D. Anderson. Data and other products

of research conducted at M.D. Anderson, using M.D.

Anderson property, supplies, or employees, are considered

M.D. Anderson property. (Docket Entry No. 30, Ex. E,

Myers affidavit). If a departing scientist wishes to remove

research data or materials on which he or she worked at M.D.

Anderson, the scientist prepares an inventory and presents it

to M.D. Anderson M.D. Anderson then performs an internal

review to determine whether it wishes to claim any of the

requested materials because they have value to the institution.

(Id.). It is undisputed that on a number of occasions, M.D.

Anderson has released research materials for departing

scientists’ use at other institutions. M.D. Anderson asserts

that it typically transfers research data and materials requested

by departing scientists to the scientists' new institutions of

employment, rather than releasing the information or

materials directly to the individual scientist. (Docket Entry

No. 30, Ex. A, Pollock affidavit).

15a

District Court Memorandum and Order - 3/7/01

In this case, it is undisputed that Nishioka failed to

provide M.D. Anderson with an inventory of the data or

materials he wanted to take from the institution before his last

date of employment on August 31, 1995. M.D. Anderson has

submitted uncontroverted summary judgment evidence that it

is standard practice for researchers to submit such an

inventory before leaving their employment. M.D. Anderson

has also submitted uncontroverted evidence that such an

inventory is necessary for it to determine whether it has an

ownership interest in any of the research data or material.

During the latter part of 1995, and into the summer of

1996, Nishioka made periodic visits to M.D. Anderson to

conduct the inventory of his materials and data. The record

indicates that he made approximately twenty visits to M.D.

Anderson during this period. (Docket Entry No. 30, Ex. D,

Stanford affidavit). During each such visit, an M.D.

Anderson staff member accompanied Nishioka, in keeping

with the institution's practice of requiring staff supervision of

all nonemployee visitors to the M.D. Anderson research

facilities. (Id.). On several occasions, difficulties in

scheduling staff accompaniment prevented Nishioka from

visiting M.D. Anderson at times of his choice. M.D.

Anderson asserts that Nishioka's failure even to begin an

inventory of his research data and materials before his

employment ended, as well as the difficulties in scheduling

supervised visits necessary for him to conduct the inventory

after his employment ended, contributed to his delay in

completing the inventory process. (Docket Entry No. 30, Ex.

A, Pollock affidavit).

On October 15, 1996, over a year after he left M.D.

Anderson, Nishioka sent a letter to Dr. Raphael Pollock, the

16a

District Court Memorandum and Order - 3/7/01

Chairman of the Department of Surgical Oncology at M.D.

Anderson, formally requesting the release of five categories

' of his research materials. Nishioka designated these categories

by letter: A, B, C, D, and E. Item "E" was described as

"Tuftsin and Other Peptide Preparations." (Docket Entry No.

30, Ex. D, Att. 1).

On November 19, 1996, Pollock responded in writing,

stating as follows: "At this time, I am releasing Item C:

Reference Article Files to your permanent possession.

However, the remaining documents (Items A, B, and D) will

require further consideration prior to their release." (Docket

Entry No. 30, Ex. A, Att. 3). Pollock's letter did not mention

Item E, the peptide preparations. The record shows that

certified delivery of this letter was attempted three times,

without success. (Id.).

On March 5, 1997, the federal district court dismissed

Nishioka’s original Title VII suit on summary judgment. On

April 30, 1997, approximately six months after his first

formal request for the return of the materials, Nishioka wrote

a second letter. Nishioka addressed this letter to John

Mendelson, M.D., President of M.D. Anderson. (Docket

Entry No. 31, Ex. A-2). Within two weeks, Dan Fontaine,

Chief Legal Officer of M.D. Anderson, responded in writing,

informing Nishioka that he could come to pick up the items

listed as A-D in his first letter. As to the peptides, listed as

item E in the first letter, Fontaine stated as follows:

...we are not sure what materials [Dr.

Nishioka] is referring to in section E of his

list. However, in the summer of 1996, the lab

freezer failed and all contents experienced a

17a

District Court Memorandum and Order - 3/7/01

sustained temperature increase. These samples

were moved to another freezer which also

failed causing a second temperature increase.

When the lab was cleaned this spring, all

contents exposed to the two temperature

failures were assumed damaged and eventually

discarded.

(Docket Entry No. 31, Ex. A-3).

Nishioka went to M.D. Anderson on June 20, 1997 to

retrieve the available materials released to him. Susan

Stanford, Laboratory Coordinator for the Department of

Surgical -Oncology, accompanied Nishioka on that visit.

(Docket Entry No. 30, Ex. D, Stanford affidavit). Stanford

testified that during that visit, Nishioka did not request access

to his former laboratory or to the freezers he had used during

his employment. (/d.). At the end of the visit, Nishioka signed

a document acknowledging receipt of the items he retrieved.

At the bottom of this document, Nishioka noted that he "did

not receive any peptides today." (Docket Entry No. 30, Ex.

D, Att. 2). Nishioka filed this lawsuit on June 21, 1999.”

? Nishioka filed his initial charge of retaliation with the

Equal Employment Opportunity Commission on March 4, 1998.

Under Title VII, a plaintiff must file a charge of employment

discrimination within one hundred and eighty days after the alleged

unlawful employment practice occurred, or, in a case where a

plaintiff has also instituted proceedings with an appropriate state

agency, within three hundred days of the alleged unlawful

employment practice. 42 U.S.C. §2000e-5(e)(1). In Texas, the

three hundred day period is presumed to apply, due to "the EEOC's

routine transmittal of a copy of the complaint to the state referral

18a

District Court Memorandum and Order - 3/7/01

Susan Stanford, whose job gave her supervisory

responsibility over laboratory maintenance, also submitted an

affidavit stating that she recalled the two power outages

affecting the freezers, the first occurring in the late spring or

early summer of 1996 and the second in January 1997.

Stanford testified that after the first power outage, the items

in the freezers, including the ones that Nishioka had used

during his employment, were transferred to a new freezer.

After the second power outage, Stanford did not immediately

discard the affected items. Stanford did not recall personally

discarding Nishioka' s peptides. She stated that she had"no

personal knowledge of when, or if those items were ever

thrown out." (Docket Entry No. 30, Ex. D, Stanford

affidavit). Stanford testified that early in 1998, she learned

that Nishioka's lawsuit was over. At that time, she requested

permission to clean out his laboratory space and prepare it for

the arrival of a new faculty member. Stanford "was told that

she could clean out the lab now that the lawsuit was over and

Dr. Nishioka had retrieved everything in M.D. Anderson's

possession that he had requested." (Docket Entry No. 30, Ex.

D, p. 4, Stanford affidavit). Stanford stated in her affidavit

that when she cleaned the laboratory space formerly assigned

to Nishioka, she disposed of commercially available items,

but did not recall "disposing of anything in the freezers that

related to Dr. Nishioka" in 1998. (/d.). In her deposition,

agency." Urrutia v. Valero Energy Corp., 841 F.2d 123, 125 (Sth

Cir. 1988). Because M.D. Anderson has not raised limitations as

an affirmative defense, this court will not consider the limitations

question. See Zipes v. Trans World Airlines, 455 U.S. 385 (1982)

(holding that filing timely charge of discrimination with the EEOC

was not a jurisdictional prerequisite to suit in federal court, but

rather a defense winch was subject to waiver).

19a

District Court Memorandum and Order - 3/7/01

however, Stanford did recall that in 1998, there were a few

remaining items in the freezer space previously assigned to

Nishioka, which she discarded to prepare for new faculty.

(Docket Entry No. 31, Stanford Dep. p. 16-17, 30). The

freezers themselves were discarded a short time later.

In its reply to Nishioka's response, M.D. Anderson

clarified that the peptides were discarded in early 1997, with

other materials from freezers exposed to the temperature

fluctuation, because they were assumed damaged from the

temperature increases. (Docket Entry No. 32, p. 6). Both

Pollock and Stanford testified that items stored in a freezer

and subjected to two temperature increases were presumed

damaged and would be discarded in the normal course of

laboratory maintenance. (Docket Entry No. 30, Ex. A,

Pollock affidavit; Docket Entry No. 30, Ex. D, Stanford

affidavit). Nishioka asserts that subjecting the peptides to a

temperature increase would not have damaged them, as long

as they remained dry. (Docket Entry No. 31, Nishioka

affidavit). However, Nishioka does not dispute that many

materials stored in a freezer would be damaged by not just

one, but two, power outages and resulting temperature

fluctuations. Nor does Nishioka dispute that laboratory

workers would routinely presume that such damage had

occurred.

Nishioka contends that the destruction of the peptides

has harmed his career. He asserts that the biomedical research

field is very competitive and that as a researcher, he cannot

effectively search for a new position because he cannot

present lectures with slides showing his current research

work, and because he has no ongoing research to bring to a

new institution. (Docket Entry No. 16, p. 4).

20a

District Court Memorandum and Order - 3/7/01

M.D. Anderson seeks summary judgment on two

grounds: Nishioka has failed to make a prima facie showing

of retaliation; and, alternatively, Nishioka has failed to raise

a disputed fact issue material to determining whether M.D.

Anderson's stated reasons for the actions Nishioka challenges

are pretexts for retaliation. Each of these arguments is

examined below.

II. The Summary Judgment Standard

Summary judgment is appropriate if no genuine issue

of material fact exists and the moving party is entitled to

judgment as a matter of law. See FED. R. CIV. P. 56. Under

FED. R. CIV. P. 56(c), the moving party bears the initial

burden of "informing the district court of the basis for its

motion, and identifying those portions of [the record] which

it believes demonstrate the absence of a genuine issue of

material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); Norman v. Apache Corp., 19 F.3d 1017, 1023 (Sth

Cir. 1994). The party moving for summary judgment must

demonstrate the absence of a genuine issue of material fact,

but need not negate the elements of the nonmovant's case. See

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

(en banc). If the moving party fails to meet its initial burden,

the motion for summary judgment must be denied, regardless

of the nonmovant's response. See id.

When the moving party has met its Rule 56(c) burden,

the nonmovant cannot survive a motion for summary

judgment by resting on the mere allegations of its pleadings.

See McCallum Highlands, Ltd. v. Washington Capital Dus,

Inc., 66 F.3d 89, 92 (Sth Cir. 1995). The nonmovant must go

beyond the pleadings and designate specific facts showing that

2la

District Court Memorandum and Order - 3/7/01

there is a genuine issue for trial. See Little, 37 F.3d at 1075

(citing Celotex, 477 U.S. at 325).

"[W]hen a district court denies a motion for summary

judgment on the basis that there exist genuine issues of

material fact, the district court is actually making two separate

conclusions: ‘First, the court has concluded that the issues of

fact in question are genuine, i.e., the evidence is sufficient to

permit a reasonable factfinder to return a verdict for the

nonmoving party. Second, the court has concluded that the

issues of fact are material, i.e. resolution of the issues might

affect the outcome of the suit under governing law.'" Lemoine

v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 633 (Sth

Cir. 1999) (quoting Colston v. Barnhart, 146 F.3d 282, 284

(Sth Cir. 1998)).

In deciding a summary judgment motion, "(t]he

evidence of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). "Rule 56 'mandates

the entry of summary judgment, after adequate time for

discovery, and upon motion, against a party who fails to make

a showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will beat

the burden of proof at trial.'" Little, 37 F.3d at 1075 (quoting

Celotex, 477 at 322).

Ill. The Title VII Retaliation Standard

A plaintiff establishes a prima facie case of retaliation

by showing that: (1) he engaged in activity protected by Title

VII; (2) an adverse employment action occurred; and (3) there

was a causal connection between the protected activity and the

22a

District Court Memorandum and Order - 3/7/01

adverse employment decision. Shirley v. Chrysler First, Inc..,

970 F.2d 39, 41 (Sth Cir. 1992). The establishment of a prima

facie case gives rise to an inference of retaliation. Jd. This

inference, in turn, shifts the burden of proof to the defendant,

who must then articulate a legitimate nondiscriminatory

reason for the challenged employment action. Jd.; McDonnell

Douglas Corp. v. Green, 411 U.S. 792,801-803 (1973). The

Fifth Circuit has held that if there is a close timing between an

employee's protected activity and an adverse employment

action, the employer must offer "a legitimate,

nondiscriminatory reason that explains both the adverse action

and the timing." Swanson v. General Services Admin., 110

F.3d 1180, 1188 (Sth Cir. 1997). The plaintiff need not show

that the protected activity was the sole factor motivating the

adverse action, but he must show that "but for" the protected

activity, he would not have been subjected to the adverse

employment action. /d.; Nowlin v. Resolution Trust Corp., 33

F.3d 498, 507 (Sth Cir. 1994).

If the plaintiff can establish a prima facie case, the

burden of production shifts to the employer to show that it had

a legitimate, nondiscriminatory reason for its employment

decision. Jones v. Flagship Intern., 793 F.2d 714 (Sth Cir.

1986), cert. denied, 479 U.S. 1065 (1987). The burden then

Shifts back to the plaintiff to show that the defendant's

proffered reason is pretextual. Jd.

The question on summary judgment is whether there

is a genuine dispute material to determining whether the

employer's proffered reason was a pretext for retaliation. Put

another way, once a defendant articulates a legitimate,

nonretaliatory reason for its action, the burden shifts to the

plaintiff to point to evidence in the summary judgment record

23a

District Court Memorandum and Order - 3/7/01

showing that he would not have suffered the adverse

employment action in the absence of his having engaged in

protected conduct. Long v. Eastfield College, 88 F.3d 300,

304n.4 (Sth Cir. 1996) (the “ultimate determination in an

unlawful retaliation case is whether the conduct protected by

Title VII was a ‘but for’ cause of the adverse employment

decision") (citing McDaniel v. Temple Indep. Sch. Dist., 770

F.2d 1340, 1346 (Sth Cir. 1985)).

IV. Analysis

M.D. Anderson does not dispute the first two elements

of Nishioka's prima facie case. Nishioka engaged in a

protected Title VII activity when he filed suit in August 1995.

Nishioka alleges that M.D. Anderson subjected him to

different requirements for obtaining his data and materials

than it imposed on other departing research scientists and

eventually destroyed some of his research material. M.D.

Anderson denies that Nishioka can satisfy the third element of

his prima facie case, a causal link between his 1995 lawsuit

and the subsequent employment actions he challenges.

A. The Prima Facie Case

Nishioka alleges that M.D. Anderson treated him

differently than other departing scientists, who did not file

lawsuits against M.D. Anderson, by refusing to grant him

prompt access to his research data and materials and

permission to remove them from M.D. Anderson's premises;

requiring him to be supervised by a staff member during his

visits to M.D. Anderson; and eventually destroying the

peptides that had been stored in freezers before, and after,

Nishioka's employment.

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The summary judgment record supports M.D.

Anderson's position that it applied the same policies and

procedures to Nishioka as to other departing scientists. M.D.

Anderson has presented competent, and undisputed, summary

judgment evidence that the delay in Nishioka's access to his

research material was due to his own failure to comply with

these policies and procedures. See, e.g., Haynes v. Pennzoil

Co., 207 F.3d 296, 299 (Sth Cir. 2000) (no causal connection

between discharge and protected activity when the record

Showed that the employer was followiug a corporate

restructuring plan calling for a series of layoffs).

M.D. Anderson has submitted its written policy under

which it presumptively owns research data and material

generated by its employees that might have value to the

institution. (Docket Entry No. 30, Ex. E, Att. 1). M.D.

Anderson requires, as standard practice, that all departing

research scientists submit an inventory of the research data

and materials they wish to take with them, to permit M.D.

Anderson to conduct an internal review to determine whether

the data or material have value that would preclude or limit

their release. M.D. Anderson has submitted competent, and

undisputed, summary judgment evidence that other departing

research scientists completed the required inventories of their

research data and materials before their employment ended,

avoiding the necessity of returning later to complete the

inventory process. M.D. Anderson told Nishioka a year in

advance, in August 1994, that his contract would not be

renewed and that August 31, 1995 would be his last day of

employment. However, it is undisputed that Nishioka did not

begin to prepare the inventory of materials and data he had

developed as an M.D. Anderson employee, that he wanted

M.D. Anderson to release, until after his employment ended.

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M.D. Anderson has also submitted uncontroverted

evidence that a nonemployee cannot visit the M.D. Anderson

research laboratories unless a staff person is present. It is

undisputed that once Nishioka was no longer an employee,

M.D. Anderson policy required that he be supervised by an

M.D. Anderson staff member during his return visits to the

M.D. Anderson laboratories. Nishioka has submitted no

competent summary judgment evidence that he was singled

out or treated differently than other departed research

Scientists who returned to the laboratories after their

employment ended. It is undisputed that the requirement of

staff supervision and the difficulty of matching Nishioka's

schedule with staff availability contributed to Nishioka's delay

in completing the inventory.

It is undisputed that Nishioka did not present a formal

request for the return of his data and materials until October

1996, over a year after his employment ended and after he

had filed his discrimination lawsuit. It is undisputed that in

November 1996, M.D. Anderson told Nishioka that it would

release one category of the materials he requested and would

continue to examine three other categories. The letter did not

mention the peptides. However, Nishioka waited another six

months before sending a second written request seeking the

release of the remaining materials, including the peptides.

During the intervening period, according to the

undisputed summary judgment evidence, the freezers in which

M.D. Anderson had continued to store Nishioka's peptides

experienced two separate power outages, causing temperature

fluctuations. The uncontroverted evidence shows that M .D.

Anderson kept Nishioka's peptides in laboratory freezers until

at least early 1997, over one and one-half years after his

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employment ended and after he filed his lawsuit. It is

undisputed that M.D. Anderson did not destroy the peptides

until the two power outages had caused temperature

fluctuations in the freezers in which they were stored. It is

undisputed that Nishioka’ s other research materials remained

at M.D. Anderson for several more months, until he finally

removed them in June 1997, two years after he had filed his

original lawsuit.

In short, M.D. Anderson retained Nishioka's data and

materials long after his employment ended. In June 1997,

Nishioka retrieved the materials he sought, with two

exceptions: the peptides, destroyed in early 1997; and some

other materials that Nishioka left unclaimed. As to the

peptides, the evidence shows that M.D. Anderson retained

these materials in freezer storage for over one and one-half

years, discarding them only after two separate power outages

caused temperature fluctuations. Nishioka retrieved other

materials in June 1997. He does not appear to complain about

materials he left after his June 1997 visit, that M.D. Anderson

discarded as abandoned in 1998.

Close timing between protected Title VII activity and

an adverse employment decision can support an inference of

causation. See Swanson, 110 F.3d at 1188; Mayberry v.

Vought Aircraft Co., 55 F.3d 1086, 1092. However, the

present record discloses no competent facts supporting a

causal connection between Nishioka's original lawsuit and

M.D. Anderson's subsequent limits on his access to research

data and materials generated during his employment. The

present record discloses an extended period between

Nishioka's protected Title VII activity and the destruction of

the peptides. Assuming the facts in the light most favorable to

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Nishioka, approximately one and one-half years elapsed

between the filing of Nishioka’ s lawsuit and the destruction

of the peptides. This time span substantially exceeds the

periods courts have normally found to raise an inference of

causation. See, e.g., Shackelford v. Deloitte & Touche, LLP,

190 F.3d 398, 408 (Sth Cir: 1999) (plaintiff fired on same day

she was seen talking on phone with lawyer, one day after she

had sought to meet with supervisor concerning racial

discrimination claim, and one week after she was listed as

potential witness in suit, had presented evidence of causation);

Nero v. Industrial Molding Corp., 167 F.3d 921, 926 (Sth

Cir. 1999) (plaintiff fired days after having a heart attack had

presented evidence of causation); Mayberry v. Vought Aircraft

Co., 55 F.3d 1086, 1092 (Sth Cir. 1995) (when plaintiff was

suspended "at least several years" after protected activity had

begun, inference of causation was not raised); Z.E.O.C. v.

MCI Telecommunications Corp., 820 F.Supp. 300, 310 (S.D.

Tex. 1993) (employee's comment made six months before her

termination was "not close in time" and was not causally

connected to her termination).

The present record shows that it was not until

Nishioka's lawsuit had been dismissed and the dismissal

affirmed on appeal that M.D. Anderson authorized the

Gestruction of the materials Nishioka had left for almost three

years. The evidence appears to show that, if anything, the

lawsuit Nishioka filed in 1995 led M.D. Anderson to delay in

discarding material Nishioka had left in the laboratory until

1997 and 1998. Such a record does not constitute a showing

of a causal connection required for a prima facie case of

retaliation. M.D. Anderson is entitled to summary judgment.

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B. The Employer's Legitimate, Nonretaliatory

Reason and the Absence of Evidence of

Pretext

Even assuming that Nishioka had shown a prima facie

case of retaliation, M.D. Anderson has presented legitimate

nonretaliatory reasons for delaying and limiting Nishioka's

access to his research materials and data. Nishioka has not

presented competent summary judgment evidence to dispute

M.D. Anderson's explanation that Nishioka failed to comply

with the policies and practices generally applicable to

departing research scientists, causing the delay in providing

him the materials and data he sought to retrieve.

As to the destruction of the peptides in the spring of

1997, M.D. Anderson has also presented a legitimate

explanation. M.D. Anderson discarded the freezer contents

that had been exposed to the temperature fluctuations in 1996

and early 1997 (Docket Entry No. 31, Ex. A-3). The

undisputed evidence is that M.D. Anderson assumed that the

material so exposed sustained damage and should be

discarded. Nishioka challenges the proposition that a

temperature increase necessarily would have damaged the

peptides.* However, the relevant issue for this court is not the

3 M.D. Anderson has objected to this statement by

Nishioka on the ground that it constitutes inadmissible opinion

testimony. M.D. Anderson has also objected to and moved to strike

the affidavits of Nishioka and Dr. Marvin Rohmasdahl in their

entirety, and seventeen separate statements in these affidavits

individually. (Docket Entry No. 32). Nishioka has in turn moved

to strike M.D. Anderson's motion to strike. (Docket Entry No. 33).

After reviewing the two affidavits, including the particular

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scientific question of whether temperature fluctuations would

in fact cause damage to frozen peptides. Instead, the relevant

issue is whether employees at M.D. Anderson believed in

good faith that materials stored in the freezers, including the

peptides, had been damaged, and disposed of them for this

reason. See, e.g., Waggoner v. Garland, Texas, 987 F.2d

1160, 1165 (Sth Cir. 1993); Singh v. Shoney's, Inc., 64 F.3d

217, 219 (Sth Cir. 1995). Nishioka has presented no summary

judgment evidence controverting the explanation M.D.

Anderson provided in the May 13, 1997 letter from Fontaine,

that the peptides had been discarded with the contents of the

faulty freezers in a general cleaning of the laboratory.

Nishioka has failed to present evidence to controvert

M.D. Anderson's nonretaliatory reasons for the actions it took

with respect to the research data and materials Nishioka had

generated during his employment. Summary judgment is

appropriate.

V. Conclusion

This court GRANTS defendant's motion for summary

judgment. The case will be dismissed by separate order.

statements to which M.D. Anderson specifically objects, this court

concludes that the admission of these affidavits and statements

would not affect the court's disposition of this case. This court

therefore assumes, without deciding, that the statements are

admissible.

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SIGNED on March 6, 2001, at Houston, Texas.

/s/

Lee H. Rosenthal

United States District Judge

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