Opposition Brief — Boynton v. Western Wyoming Community College (No. 05-1554)

No. 05-1554 JUN ¢ 5 Zax

In The

Supreme Court of the Anited States

‘

BRENDA BOYNTON,

Petitioner.

WESTERN WYOMING COMMUNITY COLLEGE,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

+

PATRICK E. HACKER

Counsel of Record

PATRICK E. HACKER, P.-C.

2515 Pioneer Avenue

Cheyenne, Wyoming 82001

Telephone: (307) 778-8844

Attorney for Respondent

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT : 402) 442-2831

TABLE OF CONTENTS

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I. The Petition Fails to Address the Alternative

Basis for Granting Summary Judgment — That

Petitioner Could Not Demonstrate That the

Employer’s Non-Discriminatory Reasons Were

PRIS sin iekinsnsxivncurtcicnnistionesaaaaabianS 9

II. The Petitioner’s Arguments Regarding the

Level of Scrutiny of Causality and That

Summary Judgment Should be Granted Only

Upon the Totality of the Circumstances are

Applicable to These Facts..................ccccceccceseeees 15

Ill. The Petition for Certiorari Should be Denied... 23

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TABLE OF AUTHORITIES

Page

CASES

Alexander v. Wisconsin Department of Health, 263

I SEINE D css ctipiinarend beviraliandepveiveduaiwabenios 19

Anderson v. Liberty Lobby, 477 U.S. 242 (1986)............... 22

Celotex v. Catrett, 477 U.S. 317 (1986).............ccceceeeees 18, 23

English v. Colorado Department of Corrections, 248

SE GE Cy OPEL) venceccestccnsvereitieneuetessentontvesscouns 21

McDonnell-Douglas v. Green, 411 U.S. 793 (1973)........... 14

Peterson v. Utah Department of Corrections, 301

OTE, IED ins cecunancnncisacshninnehandeneoonentgaaaes 16

Stimson v. City of Tuscaloosa, 186 F.3d 1328 (11th

sca Lik usd velces cocyes bcy comkeglanenaieaiensedvusorins 21

Wallace v. DTG Operations, Inc., 442 F.3d 1112 (8th

Sih ,. Giribinachebuderuniveiindicsendiuiieieddtcabedtiesbinienivee 19

Willis v. Marion County Auditor’s Office, 118 F.3d

EE IE Td ceca lila a sou usibdhapinegbepsedaubiehewnunesneneis 22

BRIEF IN OPPOSITION

Respondent Western Wyoming Community College

respectfully requests the Court deny the Petition for a

Writ of Certiorari in its entirety.

S

COUNTER STATEMENT OF THE CASE

I. FACTUAL BACKGROUND

Pursuant to Supreme Court Rule 15, Respondent

provides this statement to correct inaccuracies in the

Petition. The Petition misstates the record and the reason-

ing of the Tenth Circuit Court of Appeals and District

Court for the District of Wyoming. The Petition’s factual

statement begins by confusing two different positions held

by Petitioner and by blurring the timeline of events.

Brenda Boynton was hired December 1, 1997 to work as a

custodian at the Rock Springs, Wyoming, campus of

Western Wyoming Community College (WWCC). During

her time in that position, she received the favorable

comments quoted in the Petition. On August 10, 1998, she

was promoted to a new position of Maintenance/Custodian

at a different campus in Green River, Wyoming. That

position involved significantly different duties including

building security, plowimg and sanding the entrance and

parking areas, and i#teracting with the public to set up

rooms for specialized classes and functions. In the new

position, Boynton was initially given satisfactory evalua-

tions, with notations that she was learning a new job and

that improvement with time was expected in certain

areas, including productivity and communications with

others. As early as October 10, 1998, nearly two years

before Brenda Boynton first alleged sexual harassment,

her evaluation plainly stated that, “Brenda’s communica-

tion skills do need to be improved.” The theme that she

needed to improve and was being given time to learn and

meet the job standards was continued throughout her

evaluations which predate the sexual harassment com-

plaint which is the alleged basis of retaliation.

When Brenda Boynton became pregnant, she was

permitted to take maternity leave. In September 2000,

shortly before her return to work following maternity

leave, Boynton met with College President Tex Boggs, and

asserted that her supervisor, Gary Bussart, had sexually

harassed her two years earlier when she had worked in

her previous position in Rock Springs, Wyoming. Boggs

immediately requested the Dean of Administration, Marty

Kelsey, to meet with Boynton to discuss the accusations

and investigate. Kelsey met with Boynton, and then

interviewed all of the persons whom Boynton suggested

might have knowledge. Bussart strongly denied the

accusations. Other witnesses with whom Boynton claimed

to have discussed the issue denied such conversations had

occurred. Kelsey chose to go beyond the persons identified

by Boynton to also inquire of the administrative director of

the Green River Center, Mary Ann Huebner, as to whether

she had ever observed any conduct on the part of Bussart

that appeared questionable, or whether any complaints or

concerns had been voiced about Bussert. Kelsey deliber-

ately did not inform Ms. Huebner that Boynton had made

a complaint, or that a sexual harassment complaint had

been made.

Kelsey completed his investigation and on October 9,

2000 wrote a letter to Boynton explaining that Bussart

had directly disputed her accusations, that the other

witnesses she said she had spoken to about the matter had

3

no recollection of the conversations she claimed, and that

he could not confirm the accusation. His letter invited

Boynton to supply any other information she could so that

he could investigate further, and noted that he had gone as

far as he could go, based on the information he had re-

ceived at that point. Boynton did not follow up further

with Kelsey.

The Petition makes much of the timing of an evalua-

tion received by Boynton on October 10, 2000. That

evaluation included a rating of satisfactory overall, with

satisfactory ratings in four of five evaluation subcatego-

ries, but a rating of “marginal” in the subcategory of

communication. Petitioner’s brief quotes two comments

out of context regarding consulting her supervisor when

she had questions, and the need to work together with

other staff as part of a team. Those comments are virtually

identical to comments made in evaluations which predate

her complaint of harassment. The 1998 evaluation com-

ments observed that “one of the weakest areas that really

needs some improvement” is “communication with the

Director of the GRC [Green River Center],” that she “also

needs good communication with her fellow employees,”

and that “She also needs to participate in staff meetings.”

The evaluation was not markedly different from the

previous evaluations. Brenda Boynton testified that she

considered the earlier evaluations with the comments that

she needed to improve communication and productivity,

but was being given the benefit of the doubt while she

learned the job, to be “borderline” evaluations. (Aplee.

Supp. App. p. 40)

While the Petition emphasized that the October 10,

2000 evaluation is dated one day after the letter from

Kelsey indicating he had been unable to determine

4

whether harassment had occurred, the Petition fails to

explain that the timing of the evaluation was controlled by

the fact that it was an annual evaluation due on a prede-

termined date, and that Boynton had chosen to make her

complaint of the events allegedly occurring two years

earlier, two weeks before the scheduled evaluation.

The Petition’s summary of facts following the Gctober

10, 2000 evaluation is incomplete and inaccurate. It is

undisputed that during the period following the October

10, 2000 evaluation, supervisor Bussart received com-

plaints from other employees at the Green River Center

regarding Boynton’s communications and failure to ac-

complish tasks. (Aplt. App. p. 61) In March of 2001, in

accordance with College policy, Boynton was placed on an

improvement plan designed to address the areas of con-

cern. In June of 2001, supervisor Bussart recommended

termination of Ms. Boynton. As provided by policy, Presi-

dent Boggs met with Boynton to review the recommenda-

tion and receive a response from her. Boggs found that the

concerns regarding performance were significant, but he

rejected the recommendation because he felt that the

employee may not have been fully informed of the signifi-

cance of the performance concerns.

President Boggs later reorganized the Green River

Center, having the Center Director, Mary Ann Huebner,

assume supervision of all custodians including Ms. Boyn-

ton, which eliminated Bussart from supervisory duties at

the Green River campus. Boggs had previously worked

closely with Ms. Huebner and considered her to be a

nurturing supervisor. Huebner expressed her commitment

to working with Brenda Boynton to help her succeed.

The Petition inaccurately asserts that the evaluations

prepared during the time of Bussart’s supervision were

jointly “prepared by Bussart and Huebner.” (Petition p. 10)

There is nothing in the record to demonstrate that Hueb-

ner prepared the evaluations. Her role was that of Direc-

tor of the Center. She simply sat in on the evaluation

conference when Bussart met with the employee to outline

job expectations, and did so because Boynton was perform-

ing those duties in the Green River Center.

Upon assuming responsibility for supervision of

Boynton, Huebner met with her and developed a different

plan of improvement aimed at addressing the areas of

concern. At the end of six months, Huebner evaluated

Boynton and found that her performance was deficient.

Huebner noted her lack of communication with both

administrators and fellow staff members, and failure to

get the assigned work accomplished. Boynton hed a

number of excuses, particularly that she had not been

properly trained. Because Huebner had not been the

supervisor earlier and did not know if she had received

proper orientation and training, she elected to establish

another six-month plan of improvement, which included

opportunity for training as well as direction regarding how

to overcome ongoing issues of communication and produc-

tivity.

In the spring of 2002, Huebner met with Boynton,

explained that Boynton had not met the plan and had

actually gotten worse, and informed Boynton she had

given Huebner no choice but to recommend termination.

Huebner’s recommendation to college President Boggs was

based upon Boynton’s performance during the period

Huebner was supervisor. That recommendation went to

President Boggs, who again invited Boynton to meet with

6

him to provide a response to Huebner’s recommendation.

Neither in any meeting with Huebner, nor with Boggs, did

Boynton ever assert that her evaluations or the recom-

mendation of termination were related to retaliation.

Boggs noted that the issues first raised in the 1998

evaluation had not been resolved, but had gotten worse,

and that the employee had been given multiple opportuni-

ties to improve. He recommended termination to the

college Board of Trustees.

Brenda Boynton requested a formal hearing on the

recommendation of termination as provided in college

policy. The. Board employed a retired state district court

judge to act as an independent hearing officer to conduct a

hearing and make a recommendation to the Board. While

the Petition complains that none of the board members

attended the hearing, that is exactly what is contemplated

in the college’s policy — an independent hearing conducted

before an impartial hearing officer, separate from the

Board.

The hearing process was conducted in accordance with

Wyoming's statutory Administrative Procedures Act, which

requires full trial-type proceedings, including representa-

tion by legal counsel, a right to discovery, subpoenas for

witnesses, proceedings transcribed by a court reporter,

calling and cross-examining witnesses under oath, oppor-

tunity for submission of proposed findings, etc. At the two-

day hearing, for the first time Boynton raised the issue of

alleged retaliation. Petitioner testified and presented

argument regarding the alleged retaliation.

At the conclusion of the hearing, after reviewing the

record, the independent hearing officer concluded that

termination was justified for the performance problems.

He considered Petitioner’s argument that the termination

was based on retaliation, but he found there was no

evidence of retaliation and the reasons given were legiti-

mate reasons to pursue a termination.

Upon receipt of the recommendation of the independ-

ent hearing officer, the Board of Trustees conducted its

own review of the record. The Board hired separate legal

counsel to advise them regarding the process and to assist

in drafting a decision once it was reached. The Board read

the entire record, the proposed findings from the parties,

and the recommendation of the hearing officer. After

deliberation, the Board voted to terminate employment

based upon the same reasons set forth in the findings and

recommendation of the independent hearing officer.

The Petition does not make it clear that in the reor-

ganization, when Huebner assumed responsibility for

supervision, Bussart then ceased to have any input into

the supervision or evaluation of Boynton. Bussart had no

part in Huebner’s recommendation for termination. He did

not know it was occurring and he was not called as a

witness by either side at the hearing on her termination.

Boynton’s original complaint named both custodial

supervisor Bussart and College President Boggs in their

individual capacities. A motion for summary judgment was

filed on their behalf arguing that the decision to terminate

occurred with the hearing officer and the Board’s inde-

pendent review of the evidence and recommendation.

Further, it was argued that Boynton had testified that she

had always been treated professionally and appropriately

by the President, that she had no evidence that he was

influenced by a desire to retaliate, and that if he believed

Huebner’s evaluation, it would have been appropriate for

8

him to recommend termination. Likewise, it was argued

Boynton testified that she was not aware of any evidence

that Bussart had been involved in Huebner’s recommen-

dation, and that the termination was based on events

occurring while Huebner was supervisor. In response to

the motion for summary judgment, Boynton conceded the

motions for Bussart and President Boggs, but argued that

her sole remaining claim against the college as an entity

should go to trial.

II. PROCEDURAL BACKGROUND

Plaintiff filed a complaint in the District Court for the

District of Wyoming alleging unlawful retaliation and

naming college President Tex Boggs, custodial supervisor

Gary Bussart, and Western Wyoming College as defen-

dants. After discovery, all three defendants submitted

motions for summary judgment. Those motions argued

that Petitioner had failed to demonstrate causation

between the protected activity and the adverse employ-

ment action and had failed to demonstrate that the rea-

sons reached by the independent hearing officer and the

Board were pretextual. Petitioner conceded the motions of

Defendants Bussart and Boggs, but contended that a trial

should go forth on the claim against the Defendant Col-

lege.

The District Court granted summary judgment on the

remaining claim against the college. The court concluded

causation was not demonstrated based on the fact that the

supervisor making the recommendation had no knowledge

of the protected activity and also because of the overall

evidence, including the fact that the decision to terminate

9

was made on the evidence at a hearing, reviewed by an

independent hearing officer and the Board.

Petitioner appealed the District Court order granting

summary judgment. On December 3, 2004, the Tenth

Circuit, in an unpublished opinion, affirmed the District

Court decision both that the element of causation was not

demonstrated and that the Petitioner failed to provide

evidence to demonstrate that the reasons given were

pretextual. On December 13, 2005 Petitioner filed a

Petition for Re-hearing with Suggestion of Re-hearing En

Banc. The Petition for Re-hearing was denied November

29, 2005. An Order Granting Extension of Time to File a

Petition for Writ of Certiorari was issued extending the

time to file a Petition to June 5, 2006.

+

ARGUMENT

I. THE PETITION FAILS TO ADDRESS THE AL-

TERNATIVE BASIS FOR GRANTING SUMMARY

JUDGMENT - THAT PETITIONER COULD NOT

DEMONSTRATE THAT THE EMPLOYER’S NON-

DISCRIMINATORY REASONS WERE PRETEX-

TUAL.

Both the District Court and the Tenth Circuit sus-

tained the grant of summary judgment on the dual bases

that causation was not shown, and that the Petitioner

failed to demonstrate the reasons given were pretextual.

The grant of summary judgment can and should be sus-

tained on the basis that Petitioner failed to provide evi-

dence that the college’s non-discriminatory reasons were

pretextual. There is no need to even reach Petitioner’s

arguments regarding the causation element.

10

The Tenth Circuit summarized: “The Court also

determined that Boynton failed to demonstrate that

WWCC’s reasons for terminating her were pretextual....

We agree... .” The Petition essentially ignores this find-

ing. Other than a single paragraph at page eleven of the

Petition very loosely referencing a few of the detailed

findings entered by the Board, and the assertion that the

reasons are “trivial,” Petitioner fails to make any serious

argument that the reasons found by the independent

hearing officer and written into express formal findings by

the Board are pretextual. The outside independent hear-

ing officer ~ a retired state court judge — found the reasons

to be serious and good cause for termination, as did the

Board. A review of the reasons given, most of which

Petitioner does not dispute, demonstrates legitimate non-

discriminatory reasons for termination.

The following are some examples from the official

College Board findings which the Petitioner conceded were

valid:

{ 23. Boynton, on multipie occasions, demon-

strated an inability to consistently discharge

work duties in the absence of constant close su-

pervision and exercised poor judgment in the

performance of her job duties. She failed to clean

a bathroom with urine covering toilet paper,

walls and floor because of an invalid concern

about overtime. She failed to disengage a faulty

fire alarm system, requiring students and staff to

stand outside in winter weather while cleaning a

smoke detector head when it was apparent there

was no fire in the gymnasium.

Petitioner wrote an email documenting that “it looks

and smells like someone urinated all over the wall, toilet

11

paper and floor in the handicapped stall of the downstairs

men’s room. Now my souls (sic) smell bad and are sticky

because I had to walk through it.” (Aplee. Supp. App. p.

51) Although Boynton admitted she could have secured

permission to stay at the end of her shift to clean it up, she

chose to leave it overnight, risking that persons arriving in

the morning could be exposed to a health hazard. (Aplee.

Supp. App. pp. 51-52) She likewise testified that when the

fire alarm went off she checked to determine there was no

fire in the gymnasium, but left everyone out in the cold

while she got a ladder and climbed up to clean the dirty

sensor. (Aplee. Supp. App. pp. 54-55)

4 24. After working at the Green River Center for

three years, Boynton did not or would not learn

how to run the snow plow, truck and sander

equipment used to clean the roadway entrance to

the center. The failure on the part of Boynton to

learn her duties resulted in dangerous and slick

conditions and resulted on occasion in cars run-

ning off the road and patrons being denied access

to activities. Boynton either refused or was un-

able to follow directions given. Boynton’s testi-

mony reflected she did not follow supervisor

instructions to place dry sand at the front of the

sand hopper so sand at the rear could dry. This

caused her to use wet sand, making it impossible

to operate the sander; Boynton showed a com-

plete inability to remove the snow from the

roadway entrance and sand the hill... .

Petitioner testified that snow removal was a part of

her job, that she was shown how to use the equipment,

that she never had success trying to sand the hill, that

others felt the hill was slick, and that she didn’t dispute

that the other custodian/maintenance person was able to

12

use the equipment successfully on each occasion when she

couldn't. (Aplee. Supp. App. pp. 49-51)

{ 26. Boynton refused to perform her security re-

lated assigned duties. She was unwilling or un-

able te adequately supervise unruly children

during ballet and hunter safety classes at the

Center. She was unable or unwilling to control

high school students using the college computers

to find pornography on the internet, skateboard-

ing or otherwise engaging in disruptive conduct

at the Center. Boynton refused to assume re-

sponsibility for security despite the fact that she

was clearly assigned responsibility for security

by her position description.

Boynton admitted security was part of her duties, that

there were problems with students using computers to

access pornography and students being disruptive in the

halls. (Aplee. Supp. App. pp. 49, 52, 53) She admitted

supervisor Huebner instructed her to first tell them to

stop, then to tell them to leave the campus if they were

noncompliant, and then, if necessary, to call the police.

Boynton refused to follow the instructions, saying she

couldn’t be that mean. (Aplee. Supp. App. pp. 52-53) She

admitted she did not respond to security alarms and failed

to discuss with her supervisor why she did not respond.

(Aplee. Supp. App. p. 34)

It was undisputed that Petitioner had substantial

problems with a negative, insubordinate attitude toward

her supervisors. The District Court observed that her own

deposition demonstrated that she had “substantial disdain

for the authority of her supervisor and demonstrated a

non-compliant, defiant attitude unquestionably detrimen-

tal to her future employment prospects at WWCC.” (Dist.

13

Ct. Order p. 16) As an illustration, the District Court

noted:

By way of example only, Boynton was ad-

vised to keep a log of her daily activities by her

supervisor as a part of her remediation plan. In

her deposition she admits that she kept the logs

on paper napkins, paper towels, or toilet paper

and could not be bothered to find an alternative

means of recording her activities and she ‘was

not going to provide a notebook for them.’ Deposi-

tion at 157. This is in stark contrast to her depo-

sition testimony indicating that she kept a

notebook regarding her complaints, incidents and

disputes with individuals at the college. In the

log, for example, Plaintiff notes that she is on a

‘pee break’; recorded that between 9:09 and 9:14,

she ‘readjusted bra strap (rt)’ and between 6:12

and 6:16 pm January 16, ‘good healthy crap.’

(Dist. Ct. Order p. 16)

While the termination was pending, an incident occurred

where Boynton was instructed by Huebner to clean mouse

droppings off Huebner’s desk. Boynton did not do so and

insisted Huebner remove everything from her desk before she

would clean it, although Huebner specifically instructed her

and gave her permission to clean the desk. Huebner then

suspended Boynton without pay for a period of 24 hours (three

8 hour shifts) for insubordination. (Dist. Ct. Order p. 7)

The reasons given by the Board were based on the

extensive sworn testimony in the record, particularly

Boynton’s own testimony. The retired state court judge

acting as an independent hearing officer found the reasons

for termination worthy of belief, as did the Board. It would

be very legitimate for an employer to be concerned that a

14

custodian left a urine soaked bathroom for someone else to

clean another day. There is nothing trivial about repeated

unwillingness or inability to keep the entrance and park-

ing lot clear of snow and sanded for safety. Refusing to

follow instructions regarding issues like students viewing

pornography and disrupting Center activities are signifi-

cant issues. Likewise, not responding to security alarms

and not talking to supervisors about the failures to re-

spond are serious problems.

In addition to the findings quoted, there are addi-

tional other significant performance issues set forth in the

findings. Neither at the District Court level nor at the

Tenth Circuit has the Petitioner ever explained why the

specific findings of the Board are unworthy of belief.

Instead, Petitioner has relied entirely on Petitioner’s

subjective, self-serving, opinion expressed in her affidavit

that she does not consider the reasons given adequate to

justify termination. Nevertheless, the hearing officer and

the Board both found them to be valid reasons and there is

no evidence in the record to suggest that in doing so either

the hearing officer or the Board did not believe what they

wrote in their findings, but were only using those reasons

as a pretext for a hidden motive to retaliate.

Where the employer relied on legitimate reasens for

the termination, the claim fails. Because Petitioner did not

demonstrate that the legitimate reasons given by the

employer were pretextual, the summary judgment must be

upheld. McDonnell-Douglas v. Green, 411 U.S. 793 (1973).

15

Il. THE PETITIONER’S ARGUMENTS REGARD-

ING THE LEVEL OF SCRUTINY OF CAUSAL-

ITY AND THAT SUMMARY JUDGMENT

SHOULD BE GRANTED ONLY UPON THE TO-

TALITY OF THE CIRCUMSTANCES ARE IN-

APPLICABLE TO THESE FACTS.

The arguments advanced by Petitioner, regarding the

level of scrutiny on summary judgment and that courts

should look to the totality of the circumstances rather

than “discrete facts,” are not applicable to the facts or the

actual reasoning applied in this case. As to the level of

scrutiny, Petitioner outlines a purported difference of view

between the circuits as to whether there should be some

form of heightened level of scrutiny “where evidence of

discrimination is necessarily indirect and inferential.”

(Petition, p. 19) Assuming arguendo that some circuits

may not acknowledge or accept the fact that evidence may

be indirect or circumstantial in discrimination cases, those

holdings do not apply to this case. The District Court did

consider what inferences might be drawn from the facts,

including Petitioner’s argument that an inference could be

drawn on “temporal proximity.” Likewise, whether the

evidence should be viewed based on discrete factors or on a

“totality of the evidence” basis cannot be resolved in this

case because the District Court used both approaches.

In reaching its decision on causality, the court noted

that the recommendation for termination originated with

Huebner, who did not know that Petitioner had engaged in

protected conduct of complaining about sexual harass-

ment. In argument to the District Court, Petitioner con-

tended Huebaer did not know, arguing Huebner “was

never informed Boynton had turned Bussart in to the

College for bizarre gender-related behavior... .” (Aplee.

16

Supp. App. p. 87; Plaintiff’s Response to Defendant’s

Motion for Summary Judgment, p. 28) The District Court

accepted the undisputed fact that the supervisor recom-

mending the termination did not know of the protected

conduct, and reasoned that the supervisor could not have

been retaliating for something she did not know.

On appeal to the Tenth Circuit, the Petitioner changed

the argument to contend that because other College

officials knew of the complaint, some inference should be

drawn that Huebner could have also known, despite

Petitioner’s earlier argument to the District Court that she

did not know and despite the testimony of all witnesses

that Huebner was not informed. Petitioner’s complaint is

that the Circuit Court’s consideration of Huebner’s lack of

knowledge is focusing on “discrete” items. Such an argu-

ment defies common sense and the well established law of

multiple circuits. Peterson v. Utah Department of Correc-

tions, 301 F.3d 1182, 1188 (10th Cir. 2002). It is self-

evident that Huebner was not retaliating against Peti-

tioner for actions Huebner did not know about.

The Petition makes now a third different argument,

namely that there was knowledge of the protected activity

by the Board, since the Petitioner injected such an argu-

ment into the record of the hearing before the independent

hearing officer. Petitioner contends that the District Court

erroneously looked only at the “discrete” fact that Hueb-

ner, who recommended termination, didn’t know of the

protected activity.

The argument misstates the District Court’s decision

and its reasoning. The District Court indeed found that

there could be no inference of discrimination ky Huebner

17

where it could not be established that she knew a pro-

tected act had even occurred. However, the District Court

also analyzed the evidence in its totality, concluding

Petitioner could not establish causation on the evidence as

a whole. The District Court’s opinion relied on the three-

year lapse between her allegation and the termination, the

fact the College President actually rejected Bussart’s

recommendation of termination and reassigned supervi-

sion to Huebner, the fact that Huebner did not know of the

protected conduct, the fact Boynton “offers no evidence

that she was in fact complying with the employer’s expec-

tations of improved job performance pursuant to numerous

remediation plans,” that Boynton’s own deposition testi-

mony demonstrates “a non-compliant, defiant attitude,”

and the fact that the termination occurred after “a full

hearing” before the administrative hearing officer, and

review of the record by the College Board.

The District Court looked at all of the evidence, and

judging it in totality, found “there is no evidence whatso-

ever to permit any reasonable inference that there was

any causal connection between Boynton’s complaints to

President Boggs in September 2001 and her termination

... All of the evidence suggests that Boynton’s termination

was for unsatisfactory performance of her job duties.”

(Dist. Ct. Order p. 15, emphasis added) The District Court

found no evidence of causation both when analyzing from

the viewpoint of the recommending supervisor who didn’t

know of the protected acti*ity, and when analyzing the

evidence as a whole, particularly the decision of the

independent hearing officer and the Board.

It is actually the Petitioner who is attempting to

isolate discrete facts and ignore the totality of the evi-

dence. The Petitioner places great emphasis on the fact

18

that the day after Dean Kelsey wrote Petitioner that he

had investigated her complaint and was unable to resolve

the conflict between her information and the testimony of

others, that Petitioner received an evaluation which rated

her as “marginal” in one of five subcategories. Petitioner

asks the courts to focus on that discrete item, ignoring the

context and all other intervening events. Petitioner’s

narrow focus disregards the fact that the evaluation was

very similar to evaluations received prior to the protected

activity. It disregards the fact that there was not a con-

tinuous pattern of adverse action, but rather the College

President instead rejected the first recommendation of

termination and assigned a new supervisor who had no

knowledge of the protected conduct. It disregards the fact

that Petitioner failed to complete two more improvement

plans under Huebner’s supervision, and that Petitioner

did have significant performance problems and conflicts

with Huebner while under her supervision. It ignores the

fact that Petitioner did not raise any complaint of retalia-

tion either to Huebner or President Boggs when the

recommendation was being formulated and reviewed.

Most of all, it ignores the fact that Bussart had absolutely

nothing to do with either the events or the process that led

to her termination, and that the decision was made by the

hearing officer and the Board after a full and fair opportu-

nity for Petitioner to present her arguments regarding

retaliation.

The District Court decided this case entirely consis-

tent with Celotex v. Catrett, 477 U.S. 317 (1986). Celotex

held that:

The plain language of Rule 56(c) mandates

the entry of summary judgment, after adequate

time for discovery and upon motion, against a

19

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

bear the burden of proof at trial. In such a situa-

tion, there can be ‘no genuine issue as to any ma-

terial fact,’ since a complete failure of proof

considering an essential element of the nonmov-

ing partys case necessarily renders all other

facts immaterial. Jd. at 318.

The District Court’s decision does not raise any issue

of a split in the circuits. Petitioner argues that there is a

difference between the Seventh, Eighth and Eleventh

Circuits. Petitioner argues that the Eighth Circuit holds

that summary judgment “should be used sparingly in the

context of ... [a] retaliation case ... ” and that courts

should “ ... exercise particular caution when examining

the factual question of intent ...” Wallace v. DTG Opera-

tions, Inc., 442 F.3d 1112 (8th Cir. 2006) (quoted at page 18

of the Petition). Petitioner argues that the Seventh Circuit

uses a standard of “added vigor” in reviewing motions for

summary judgment in discrimination cases, citing Alexan-

der v. Wisconsin Department of Health, 263 F.3d 673, 681

(7th Cir. 2001). (Petition p. 18) Petitioner seeks to contrast

that language to the Eleventh Circuit which Petitioner

characterizes as no special caution being required. How-

ever, this case arises in the Tenth Circuit, and Petitioner

fails to demonstrate that the Tenth Circuit applied any

incorrect standard. Even more importantly, the Petition

fails to demonstrate how application of any of the allegedly

more strict standards for summary judgment voiced in

some circuits would change the outcome of this case.

The District Court properly applied the summary

judgment standard. It took the position that it would

20

consider there to be a genuine issue of material fact if the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party. Likewise, it took the

position that “The factual record and reasonable infer-

ences therefrom are construed in the light most favorable

to the nonmovant.” (Dist. Ct. Order p. 2) The District

Court did agree with Petitioner’s argument that “Temporal

proximity between protected activity and adverse action

may... support an inference of causation.” (Dist. Ct. Order

p. 15) However, the Court noted that proximity alone is

insufficient where there is a “three year period” between

the complaint and the termination, where the person

making the termination recommendation did not know of

the complaint and where the actual termination decision

was based on the recommendation of an independent

hearing officer. (Dist. Ct. Order pp. 15-16) Under those

circumstances the District Court found, “Boynton must

provide other evidence of retaliatory motive if her claim is

to survive summary judgment.” (Dist. Ct. Order p. 16) The

only evidence Petitioner has presented of retaliatory

intent is the argument that there was a temporal prox-

imity between her complaint about Bussart and an

evaluation of her as marginal in one subcategory of the

next evaluation she received from Bussart. Petitioner’s

arguments about proximity fail to deal with the absence of

any evidence, direct or indirect, to demonstrate that Ms.

Huebner, who made the recommendation, or the hearing

officer and Board, who made the final decision, had re-

taliatory motives. At most, Petitioner presents an argu-

ment which might arguably create an inference of possible

retaliation by Mr. Bussart, but he was removed as her

supervisor, and had no input into the recommendation or

the final decision. Even granting all the inferences to the

Petitioner, there is no evidence from which to infer that

21

Ms. Huebner, the hearing officer, or the Board were

motivated by retaliation.

Petitioner has never articulated any reason why an

independent hearing officer would have a motive to retali-

ate against the Petitioner because of her sexual harass-

ment complaint to President Boggs three years earlier.

While the hearing officer was exposed to the Petitioner’s

evidence and argument regarding her contention that the

termination was retaliation, there is no evidence or argu-

ment that would give rise to an inference that the hearing

officer was retaliating when he rendered his advisory

findings of fact and recommendation.

There is no basis on which to draw an inference of a

retaliatory motive by the Board who accepted the findings

of good cause to terminate issued by the independent

hearing officer. As the District Court noted, “Boynton has

provided no evidence whatsoever as to retaliatory motive

other than her own speculation and belief to support her

claim of retaliation. Her own subjective opinions are not

sufficient.” (Dist. Ct. Order p. 16)

While there are circumstances where it might be

shown that a manager was simply carrying out the unre-

viewed recommendation of a biased subordinate, and it

might be proper to impute the subordinate’s motive to the

employer, that is not the case here. Petitioner suggests

such a “cat’s paw” argument, citing Stimson v. City of

Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999). However,

the “cat’s paw” argument imputing a motive does not apply

where there is an intervening independent investigation of

the complaints against the employee. /d.; English uv.

22

Colorado Department of Corrections, 248 F.3d 1002, 1010-

1011 (10th Cir 2001); Willis v. Marion County Auditor’s

Office, 118 F.3d 542, 547 (7th Cir. 1997).

Moreover, the Petitioner has never reconciled conced-

ing the motion for summary judgment on behalf of Defen-

dants Bussart and Boggs with its position regarding

liability of the college. When faced with a motion that

Bussart had no input into the termination recommenda-

tion and that neither Bussart nor Boggs made the termi-

nation decision, the Petitioner conceded the motion.

Despite having conceded that Bussart had no input into

the actual termination and that Boggs likewise was not

responsible because the actual decision was made by the

Board, Petitioner nonetheless persists in basing its factual

and legal arguments on actions of Bussart.

A plaintiff cannot meet her burden by “merely assert-

ing that a jury might and legally could disbelieve” the

employer’s testimony. Anderson v. Liberty Lobby, 477 U.S.

242 (1986). The plaintiff is obligated to “present evidence

from which a jury might return a verdict in his favor.” Id.

The District Court and the Tenth Circuit both applied the

appropriate standard and concluded that no reasonable

jury could find retaliation based on the materials before

the courts.

The Petitioner argues that summary judgment in

discrimination and retaliation cases is being abused or

overused. While that may occur in some instances, sum-

mary judgment should not be viewed as some form of

illegitimate legal activity. “Summary judgment procedure

is properly regarded not as a disfavored procedural short-

cut, but rather as an integral part of the Federal Rules as

a whole, which are designed ‘to secure the just, speedy and

23

inexpensive determination of every action.’” Celotex, supra

at 328.

There may very well be room for additional refine-

ment of the rules for summary judgment, possibly includ-

ing the issues raised in the scholarly articles quoted in the

Petition. However, those issues are not present in the facts

of this case. This case does not present any opportunity to

define those principles further, because regardless of

which of the allegedly different approaches is taken, the

outcome will be the same due to the overall failure of

proof. None of the approaches in use by any of the circuits

would deny summary judgment in a context where there is

literally no evidence that the decision maker — the hearing

officer and the Board — retaliated.

ll. THE PETITION FOR CERTIORARI SHOULD

BE DENIED

The Petition for Certiorari should be denied because:

1. Petitioner failed to address the alternative basis

for summary judgment that Petitioner did not demon-

strate that the employer’s legitimate proffered reasons

were pretextual. Summary judgment should be affirmed

on that basis in any event.

2. Petitioner’s argument regarding whether the

courts should look at “discrete facts” or the totality of

evidence is inapplicable because the District used both

approaches.

3. Due to a complete failure to provide evidence that

the hearing officer and Board were motivated by retalia-

tion, Petitioner’s arguments that the circuit courts have

differed on the precise standard of review is inapplicable

24

because summary judgment was appropriate under any of

the summary judgment formulations.

4. The legal arguments advanced in the Petition do

not correspond to the facts and reasoning actually used by

the courts below, making this a poor case to attempt to

consider the legal issues surrounding summary judgment

standards which Petitioner is attempting to raise.

+

CONCLUSION

For the reasons set forth, the Petition for a Writ of

Certiorari should be denied in its entirety.

Respectfully submitted,

PATRICK E. HACKER

PATRICK E. HACKER, PC.

2515 Pioneer Avenue

Cheyenne, Wyoming 82001

307-778-8844

Attorney for Respondent

Western Wyoming

Community College