Opposition Brief — Ray v. CSX Transportation, Inc. (No. 06-405)

No. 06-405

Jn The

Supreme Court of the Ciuted States

JAMES RAY,

Petitioner,

CSX TRANSPORTATION, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals -

for the Fourth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

R. Craig Wood

MCGUIREWOODS LLP

Counsel of Record

Court Square Building -

310 4th Street, N.E., Suite 300

Post Office Box 1288

Charlottesville, Virginia 22902-1288

(434) 977-2558 (ph)

(434) 980-2274 (fax)

Counsel for Respondent

iin

‘ rs ‘ ~~

{ oe -! ' PEN TINE

QUESTIONS PRESENTED

l. Whether the decision of the Fourth Circuit

Court of Appeals is in conflict with other circuits regarding

whether Respondent is liable under Title VII of the Civil

Rights Act of 1964, where no one related to the decision to

terminate Petitioner possessed a discriminatory animus, or if

a discriminatory animus is assumed, where the final

decisionmaker terminated Petitioner based upon an

independent and unbiased investigation that included

Petitioner's multiple confessions of guilt.

2. Whether the U.S. Court of Appeals for the

Fourth Circuit properly applied well-settled standards of

review to find that Petitioner had failed to present sufficient

evidence for a jury to find that his termination resulted from

discrimination based upon Petitioner’s race by the

Respondent as opposed to Petitioner’s multiple admissions

that he alone was responsible for the violations of

Respondent's policy regarding overtime compensation.

CORPORATE DISCLOSURE STATEMENT

Respondent CSX Transportation, Inc. has the

following parent corporation:

CSX Corporation.

The only publicly held company that owns 10% or

more of Respondent’s stock is:

CSX Corporation.

il

D.

E.

~

TABLE OF CONTENTS

QUESTIONS PRESENTED. ..........cccccscccscecees i

CORPORATE DISCLOSURE... .ccscceccsconsveveceees il

TABLE OF AUTHIORIVIES. ..0cccccees evcovsvecsesces iv

STATEMENT OF THE CASE.......cccsccccccrccsseess l

1. Investigation and Charge.............cccssccsseore: l

I]. Boards of Inquiry and Decision-Making

Hl.

EE RP A Rae SE TE op Pen Te 3

a Ee EI ances uc ececkentens 7

REASONS FOR DENYING THE PETITION...... 9

Certiorari should not be granted to this case

because the Fourth Circuit’s opinion on these

facts concurs with the law of every other

GE csc cdcucacctatncnccdadesvscssivadauetasacea 9

A. Petrroner failed to meet the threshold

requirement of every circuit that a plaintiff

must show racial bias by a supervisor in order

to impute liability to the employer. .......... 9

B. There is no disagreement among the circuits

where any causal link between an allegedly

biased supervisor and a termination of

employment was broken by an

independent investigation and repeated

confessions of guilt by the minority

SEES cacdonatucusund duenckreabataeeveuss 12

C. The decision below and Hill are in line with

other circuits and applies a similar causation

ERE gti ere ANNE,

Il. | Certiorari should not be granted in this case

because the Fourth Circuit applied the proper

principles of review to sustain the District Court's

grant of Respondent’s motion for judgment

OP IIE AF ie ssi caceckesnsndssinelonnsssen 19

’. CRORES wntacvnsdcncccocsncuscstenceasesnkeuinee 22

10.

11.

TABLE OF AUTHORITIES

Bryant v. Aiken Reg’! Med. Ctrs., Inc.,

333 F.3d 536 (4™ Cir. 2003)..........00.c.000 20

Campbell v. Town of Southern Pines,

2005 U.S. Dist. LEXIS 38488

Re rs PEE sw rcdcideteevitcnesnerions 18

Cariglia v. Hertz Equip. Rental Corp.,

363 F.3d 77 (1 Cir. 2004)........... pedauael 14

Collins v. New York City Transit Authority,

DOS FSG TUS CS6 Cir, Fee hii siccecsscrivees 13

Cook v. CSX Transp. Co.,

988 F.2d 507 (4 Cir. 1993).........00000 11,21

DeJarnette v. Corning, Inc..

133 F.3d 293 (4" Cir. 1998).....0...ccceeeeees 20

English v. Colorado Dept. of Corrections,

248 F.3d 1002 (10" Cir. 2001)............ 13,14

Foster v. New Castle Area Sch. Dist.,

2004 U.S. App. LEXIS 7447

CECE Tee 14

Hill v. Lockheed Martin Logistics Mgmt.,

354 F.3d 277 (4™ Cir. 2004)......500000+ passim

Jimenez v. Mary Washington Coll.,

§7 F.3d 369 (4" Cir. 1995)........0ccececeecees 16

King v. Rumsfeld,

328 F.3d 145 (4 Cir. 2003)..........0.ecse0e. 13

12.

14.

15.

16.

17.

18.

19.

nN

Nm

Lacks v. Ferguson Reorganized Sch. Dist. R-2,

147 F.3d 718 (8" Cir. 1998).............2206. 13

Llampallas v. Mini-Circuits, Inc..,

163 F.3d 1236 (11™ Cir. 1998)........... 13,14

Long v. Eastfield College,

88 F.3d 300 (5" Cir. 1996)..........00ccec00e 13

Lust v. Sealy. Inc.,

383 F.3d 580, 584-585

vg | AE Rie enn 18

Murray v. United Food & Commercial Workers

Union, Local 400, 2004

U.S. App. LEXIS 11341 (4" Cir. 2004)............. 18

Olevear v. County of Durham,

336 F.Supp.2d 512

CRY Peiips S Ee ecaccrdrnivhinentacncasceian 18

Price v. City of Charlotte,

93 F.3d 1241 (4 Cir. 1996)........0...00000- 20

Shager v. Upjohn, Co.,

913 F.2d 398 (7" Cir. 1990)............ passim

Stimpson v. City of Tuscaloosa,

186 F.3d 1328 (11 Cir. 1999)............... 13

Sullivan v. The Cato Corp..

2006 U.S. Dist. LEXIS 14612

(EP. BA. BIC Pccenssenessivncvecessvessvesoseaes 17

Vasquez v. County of Los Angeles,

349 F.3d 634 (9" Cir. 2003)..............006. 14

23.

24.

Wallace v. The Methodist Hosp. Sys..

271 F.3d 212, 225 (5 Cir. 2001)............ 11

Wallace v. SMC Pneumatics, Inc..

103 F.3d 1394 (7" Cir. 1994)..........0.0c00 18

Watkins v. Hospitality Group Mgmt.. Inc..

2004 U.S. Dist. LEXIS 4037

RP, AIP end ininbnnnscsnsimentedietention #

Willis v. Marion County Auditor’s Office,

118 F.3d 542

Pes S00re 13-14, 17-18

Wilson v. Stroh Companies. Inc..

952 F.2d 942 (6" Cir. 1992).........0cc0c000. 13

Vil

STATEMENT OF THE CASE

Respondent, CSX Transportation, Inc., cannot accept

the facts submitted by Petitioner James Ray because the

petition contains statements and conclusions not supported

by the record. Petitioner submits the following as facts

material to the consideration of the questions presented:

I. Investigation and Charge

On April 15, 2003, Steve Persinger, trainmaster at

Balcony Falls, Virginia depot, had a conversation with his

brother, Mike. See Joint Appendix (hereinafter “J.A.”) at

324-25. Mike mentioned that one of Mr. Persinger’s

engineers, William Hardbarger, a white employee, picked up

his paycheck at 3:30 the previous afternoon. Id. Mr.

Persinger found that odd as time records showed Mr.

Hardbarger had worked until 5:30 the previous day and as a

result claimed overtime. Id. Based solely on the actions of

this white employee, Mr. Persinger began an investigation

into whether employees at Balcony Falls were stealing

overtime. Id.

As Mr. Persinger was the supervisor who noticed the

initial irregularity and informed his supervisors, Mr.

Persinger was put in charge of the investigation.’ Id, At 325-

26. Mr. Persinger, in order to conduct an investigation that

could withstand union scrutiny, knew that he needed credible

evidence to charge any employee with stealing overtime. Id.

at 358-59. Asaresult, Mr. Persinger downloaded employee

' Petitioner refers to the fact Lenford Hatcher, a black

trainmaster, was not allowed to conduct the investigation.

Ilowever, the undisputed facts demenstraic ine Respondent

has the legitimate policy to assign investigations to

supervisors who begin an investigation. J.A. at 423. Thus,

Mr. Persinger conducted the investigation and there was no

need to include Mr. Ilatcher, who was not even working that

day. f

time records. The time records revealed that some Balcony

Falls employees recently had signed out using terminals

remote from the actual job sites, called “Blue Zone.” Id. at

328, 332-33.

The “Blue Zone” was a computer program designed

to allow union officials to monitor their members’ work

hours for contract administration purposes. Id. at 328. It

also had the unintended feature of enabling Respondent's

employees to sign off of work from home, as opposed to the

location where they were directed by policy to sign off of

work. Based on the initial time records, Mr. Persinger was

able to determine that Balcony Falls employees, both white

and black, were signing out incorrectly. Id. However, Mr.

Persinger did not believe he had enough evidence to charge

employees with stealing overtime based only on the fact that

the Blue Zone program was used. Mr. Persinger knew that

any charges would have to withstand union challenge and

arbitration scrutiny, and so he set out to determine the exact

hours worked by the employees. Id. at 331, 358-59.

To corroborate his suspicions, Mr. Persinger

requested the “black box” records from the train operated at

Balcony Falls. The “black box” records the exact time an

engine starts and stops each day it is in operation. Id. at 328-

29. However, the “black box” continuously tapes over itself

so that only the most recent times are recoverable. Id. at

329-330. When Mr. Persinger received the records from the

“black box,” the information was only available from April

11, 2003 through April 16, 2003. Id.

Integrating the time records with the “black box”

data, Mr. Persinger concluded he could reliably charge four

employees with stealing overtime.” Specifically, Mr.

Persinger charged Petitioner and three white employees with

stealing overtime, charging: (1) Petitioner and Mr.

—>———

* Respondent charged both crew members, conductor

and engineer, with stealing overtime, regardless of the party

responsible for logging off the crew. See J.A. 608-613.

i

-_

Hardbarger with stealing overtime on April 5, 2003° , and

April 14, 2003; (2) Petitioner and Mr. Woodard with stealing

overtime on April 13, 2003; (3) Petitioner and Mr.

Hardbarger with stealing overtime on April 11, 2003; and (4)

Petitioner and Mr. Mahaffey with stealing overtime on April

16, 2003. Id. at 334-345.

All four employees were charged with the exact same

offense. More importantly, no employee was charged where

there was no corroborating evidence. For example, the time

records showed that on April 12, 2003, Petitioner and

Richard Wallace, a black engineer, logged off using the

“Blue Zone” but were not charged because no overtime was

claimed that day. Id. at 341-42. Further, Petitioner and Mr.

Woodward, a white engineer, logged off using the “Blue

Zone” on April 8, 2003, and claimed overtime. Id. at 339.

However, since there was no corroborating evidence from

the “black box,” no charges were filed against cither

employee. Id. Charges were levied against black and white

employees where two independent forms of evidence

supported the charges, and charges were withheld against

both black and white employees where only one indicia of

culpability was present. .

Il. Boards of Inquiry and Decision-Making

Process

As part of the collective bargaining agreement

between Respondent and the union that represents

Respondent’s employees, employees are entitled to a

’ Petitioner and Mr. Hardbarger were charged with

stealing overtime based on Mr. Hardbarger’s unsolicited

confession prior to any charges being assessed that the “Blue

Zone” had been used improperly on that date to claim

unearned overtime, so corroborating evidence from the

“black box” was not necessary. The rest of the charges were

based on corroboration between the time records and “black

box” information.

hearing, called a “Board of Inquiry” (“Board”), with regards

to any disciplinary charges against them. See J.A. at 346-47.

During these hearings, Respondent’s managers present

evidence supporting the charges, while each employee is

allowed a representative who may cross-examine

Respondent's witnesses and present his own evidence that

may exonerate him.* Id. Three separate Boards were held

into the charges against Petitioner and his fellow employees.

Id. at 117, 331, 396. Mr. Riddle conducted the Boards, and

Petitioner had a union representative at each Board. Id.

Petitioner presented no evidence of bias on the part of Mr.

Riddle or with regards to the Boards of Inquiry, and asserts

none on appeal. :

The first Board of Inquiry pertained to the charges

against Petitioner and Mr. Hardbarger. At this Board,

Petitioner was represented by Mr. Cletus Roy. Id. at 124.

When Petitioner was presented the opportunity to present

evidence that might exoncrate him, Petitioner gave the

following testimony: “I apologize to Mr. Hardbarger. I'd

like to make a personal apology to him because he had no

clue, no idea what went on. It was a bad choice on my part.

I didn’t use good judgment.” Id. at 127. No evidence was

given with regards to the charges against Petitioner and Mr.

Hardbarger that contradicted Petitioner’s confession, and

Petitioner did not challenge in any way the evidence

presented by Respondent. Id. at 126-28.

At the next Board of Inquiry, Mr. Riddle heard

evidence related to the charges against Petitioner and Mr.

Mahaffey. During this hearing, Petitioner was represented

by his union official, Mr. Hardbarger. Id. at 124-27. When

presented with an opportunity to exonerate himself of this

charge, Petitioner gave the following testimony: “Mr.

Mahaffey had nothing to do with it.” Id. at 120. Petitioner

confirmed that he alone was responsible for stealing

* At no time during any of the three Boards did Mr.

Persinger recommend what discipline, if any. should be

i@igoysed on Petitioner or the other three white employees.

overtime on April 16, 2003. Id. at 120-21. Petitioner again

did not question or challenge Respondent’s evidence.

During the final Board of Inquiry, Mr. Riddle

conducted a hearing with regards to the charges against

Petitioner and Mr. Woodward. Id. at 121. At this hearing,

Petitioner was again-rep:sented by Mr. Hardbarger and gave

the following testimony: “I'd like to apologize to Mr.

Woodward. I’ve got him involved in this and he didn’t have

anything to do with it.”° Id, at 121, 124-27. For the third

time, Petitioner did not challenge t'.. evidence against him or

request that any additional investigation take place.

Once the Boards were completed, the transcripts of

the hearings were relayed to Garhart Williams, Huntington

Division Manager. Id. at 397. Before making his final

decision, Mr. Williams reviewed the transcripts. Id.

Additionally, Mr. Williams asked other high ranking

officials of Respondent for their input in order to determine

whether his proposed discipline was reasonable. Id. at 397-

400. It is important to note that at no time during Mr.

Williams’ decision-making process did he ever consult with

Mr. Persinger.° Further, Mr. Williams oversees 2500 -

* Petitioner argues that the fact Mr. Woodward was

not charged with stealing overtime en April 3, 2003, and

April 6, 2003 is evidence of the disparate

treatment/discipline meted out by the Respondent. See

Petition at 5-6. However, the fact is that Petitioner was the

conductor working with Mr. Woodward those days and

would have been charged as well if Respondent believed it

had enough evidence to charge Mr. Woodward. See J.A. at

335-38. It is odd that Petitioner's evidence of discrimination

amounts to a belief that the fact he was not charged for two

other violations is evidence of discrimination.

* Petitioner tries to argue that Mr. Persinger made

disciplinary recommendations to Mr. Williams. See Petition

at 7, citing J.A. at 237. However, Petitioner is citing the

tesumony of Mr. Hatcher, who admits he was not present at

any of the Boards and had no idea whether any

employees, and did not know Mr. Ray to be black at the time

he made his decision. Id. at 391-393. Petitioner never

presented any evidence, or made any allegation, that Mr.

Williams had a discriminatory animus.

Based on the testimony given at the Boards, Mr.

Williams meted out the following discipline: (1) Petitioner

was terminated for stealing overtime on four separate

occasions; (2) Mr. Woodard, although exonerated by

Petitioner, was suspended for 15 days because he did not

report the violations; (3) Mr. Hardbarger was suspended for

60 days because he improperly used the “Blue Zone” to

receive overtime (only his prior self-reporting saved him

from termination); and (4) Mr. Mahaffey was completely

exonerated due to Petitioner’s confession and the fact Mr.

Mahaffey had no idea he received overtime improperly. Id.

at 400-01.

Mr. Williams based his decision to terminate

Petitioner on Petitioner’s repeated confessions. Id. at 400.

As Mr. Williams testified at trial: “Well, it’s--- 1 don’t mean

to downplay its importance but it’s open and shut. | mean, if

we've got a board that reads like that where the employee

steps forth and takes responsibility, | mean, there’s not much

else to look at.” Id. at 401. Further, Mr. Williams made the

following statement concerning Petitioner's repeated

confessions: “Well, it plays a very large part in it. | mean,

you ve got one (1) employee standing up and saying that I

did it, it’s my fault, and either the facts don’t contradict it or

none of the employees speak up and say so.” Id. at 426-27.

After reviewing the Boards of Inquiry and finding

that Petitioner’s repeated confessions confirmed the results

of Mr. Persinger’s investigation, Mr. Williams decided to

terminate Petitioner. Id. at 400-01. The other employees

were given less severe discipline based on Petitioner’s

recommendations were made. See J.A. at 237. Petitioner

has no credible evidence that Mr. Persinger ever made

disciplinary recommendations.

repeated confessions and his exoneration of the other

employees. Id.

As is his right under the collective bargaining

agreement, Petitioner appealed his termination to a Public

Law Board, established pursuant to the Railway Labor Act.

During this hearing, Petitioner stated for the first time that he

was terminated for race discrimination. While the Public

Law Board did reinstate Petitioner for other reasons, without

back pay, the arbitrator found that there was “not a scintilla

of credible proof of racial discrimination.” Id. at 599.

Ill. Lower Court Decisions

Despite three attempts by Petitioner to prove

intentional discrimination, no independent tribunal that has

reviewed this case has found support for Petitioner’s

argument that he was terminated because of his race. Afte.

raising the issue of racial discrimination for the first time at

the Public Law Board hearing, the arbitrator found “not a

seintilla of credible proof of racial discrimination.” J.A. at

599.

Next, the trial court granted Respondent’s renewed

motion for judgment as a matter of law and set aside the jury

verdict because “a reasonable fact-finder could not conclude,

on the evidence presented, that in order to rid itself of one

particular black employee, CSX charged three white

employees, along with plaintiff, knowing somehow that

plaintiff would accept full responsibility for the other

charged employees.” Id. at 591. Specifically, the court

found that Petitioner’s statements during the Boards of

Inquiry made his conduct more serious than others and

therefore demonstrated that Petitioner failed to make out a

prima facie case of racial discrimination. Id. Additionally,

the trial court found that the decisionmaker “was presented

with a record of four employees charged with violations and

one of them having accepted full responsibility for all of the

violations.” Id. The trial court found that the decisionmaker,

Mr. Williams, “relied on Petitioner’s own statements and

took action accordingly.” Id.

Finally, in an unpublished per curiam opinion, the

Fourth Circuit upheld the trial court’s grant of Respondent’s

renewed motion for judgment as a matter of law. In its

opinion, the Fourth Circuit found that Petitioner “presented

insufficient evidence that he was discriminated against when

CSX brought charges against him,” thus demonstrating that

Mr. Persinger did not conduct an investigation with a

discriminatory animus. See Opinion at 12-13.’ Further, the

Fourth Circuit held that Petitioner’s own “confessions”

demonstrated that Petitioner was not the victim of intentional

discrimination. The Fourth Circuit properly found that

“CSX terminated Ray only because of his admissions that

evidenced more culpable conduct than other employees who

were charged.” Id. at 15. In summary, all three independent

tribunals found that Petitioner was terminated because of his

repeated confessions, and exonerations of the other charged

employees, and not as a result of intentional discrimination.

A copy of the Fourth Circuit's opinion is attached as

an appendix to the Petition for Writ of Certiorari.

REASONS FOR DENYING THE PETITION

I. Certiorari should not be granted to this

case because the Fourth Circuit’s opinion

on these facts concurs with the law of every

other circuit.

Petitioner argues that this case is appropriate to

resolve an asserted split between the Fourth Circuit’s opinion

in Hill v. Lockheed Martin Logistics Management, 354 F.3d

277 ca" Cir. 2004) and the other circuits that follow Shager

v. Upjohn, Co., 913 F.2d 398 (7" Cir. 1990). Petitioner

posits that the Fourth Circuit should have applied the

Seventh Circuit’s standard for imputing liability to the

employer based on a biased subordinate, see Petition at 15,

and that applying Shager would yield a different result.

The facts of this case do not support Petitioner’s

theory. Petitioner failed to satisfy the threshold requirement

of demonstrating racial bias by a supervisor who influenced

the decision-making process. All three independent tribunals

that have reviewed this matter have found that Petitioner did

not present credible evidence demonstrating that Mr.

Persinger conducted his investigation with a discriminatory

bias. Additionally, any causal link between Mr. Persinger’s

investigation and the final decision was destroyed by

Petitioner’s multiple confessions of guilt and exonerations of

his fellow employees. Therefore, this case is not appropriate

to resolve any “perceived” split as every circuit court in the

country would have reached the same result as the Fourth

Circuit.

A. Petitioner failed to mect the threshold

requirement of every circuit that a plaintiff

must show racial bias by a supervisor in order

to impute liability to the emplover.

There is no circuit split with regards to the first step

in the analysis of «whether the employer can be held liable for

the alleged bias of a supervisor and/or subordinate.

Even Petitioner acknowledges that a plaintiff must first show

that a supervisory employee connected to the final decision

possessed discriminatory motives. See Petition, citations

omitted; see also Hill, 354 F.3d at 291 (holding that an

employer can be liable for “an improperly motivated

person”). It is axiomatic that liability cannot be imposed on

an employer unless the aggrieved employee demonstrates

that someone related to the decision-making process was

“improperly motivated” by a discriminatory animus.

Petitioner cannot make such a showing in this case.

Petitioner argues that Respondent, through Mr. Persinger,

conducted an investigation with discriminatory animus, thus

tainting the whole decisionmaking process. See Petition at 5,

15. Mr. Persinger began his investigation oniy after he

became suspicious that a white employee was stealing

overtime. See J.A. at 324-25. Based solely on these

suspicions, Mr. Persinger pulled up time records for all

employees at Balcony Falls. Id. at 332-33. Next, Mr.

Persinger knew that any charges had to be supported by

corroborating evidence because of the inevitable challenges

from the union that represented Respondent’s employees.

id. at 358-59. Because of this, Mr. Persinger decided that he

wouid only charge employees if he had corroborating

evidence.

After Mr. Persinger gathered his information, he

applied his decision to charge employees with stealing

overtime equally with respect to black and white employees.

He charged four employees, three whites and one black, with

stealing overtime. Id. at 334-345. Four of the charges were

based on the employees’ time records and the “black box”

data. The fifth charge was based on an employee's

confession, corroborating the time records. Id. Where there

was no evidence other than the time records, no employee

was charged. This decision was applied to all employees

10

equally, including the Petitioner.* Id. Finally, Mr. Persinger

charged each employee with the same offense, stealing

overtime, and never made any recommendation concerning

discipline with regards to Petitioner or the other employees.

At no time did Mr. Persinger ever treat Petitioner differently,

let alone discriminate against him.’

Despite Petiticner’s attempt to recast the facts, the

undisputed facts demonstrate that Mr. Persinger conducted a

neutral investigation with no discriminatory animus.

Further, all three independent triounals that have reviewed

this case have agreed with Respondent that Mr. Persinger’s

investigation was free of any discriminatory animus. See

J.A. at 599 (Public Law Board arbitrator found “not a

scintilla of credible proof [of] any form of racial

discrimination”); J.A. at 590 (Trial court found Mr. Persinger

conducted an investigation without suspect motives);

Opinion at 13 (Fourth Circuit found that Petitioner

“presented insufficient evidence that he was discriminated

against when CSX brought charges against him’’).

Therefore, all circuits would concur with the Fourth Circuit’s

opinion that there is no credible evidence demonstrating bias

* The Fourth Circuit, therefore, properly found that

“there was no disparity of treatment from which one could

conclude that [CSX’s decision to charge Ray] was a product

of racial discrimination.” Opinion at 12-13, quoting Cook v.

CSX Transp. Co., 988 F.2d 507, 512 (4" Cir. 1993).

* Petitioner’s argument that a different investigation

would have yielded more charges against white employees

docs not demonstrate pretext. See Wallace v. The Methodist

Hosp. Sys., 271 F.3d 212, 225 (5" Cir. 2001) (upholding the

district court’s grant of a judgment as a matter of law motion

where no reasonable jury could have found pretext based on

an employer's failure to investigate the plaintiff's general

allegations about other potential violations where the

plaintiff admitted committing the violations for which she

was terminated).

1]

on the part of Mr. Persinger, thus making any “perceived”

split irrelevant to the issue in this case.

B. There is no disagreement among the circuits

where any causal link between an allegedly

biased supervisor and a termination of

employment was broken by an independent

investigation and repeated confessions of guilt

by the minority plaintiff.

Under Shager, any link of the chain of causation is

destroyed when the final decisionmaker bases his decision

on an independent investigation and/or where an employee “

confesses to the offense when given an opportunity to

exonerate himself. If the final decisionmaker terminates an

employee “for reasons untainted by any prejudice” on the

part of the supervisor, “the causal link between that prejudice

and [the employee’s] discharge is severed.” Id. at 405.

In affirming the district court’s grant of Respondent's

motion for judgment as a matter of law, the Fourth Circuit,

citing Hill, properly found that Mr. Williams was the final,

and relevant, decisionmaker as to Petitioner’s termination.

See Opinion at 13. Despite Petitioner’s attempt to distort the

record and ultimate issue in this case, Mr. Williams made the

decision to terminate Petitioner only after Petitioner

confessed his guilt three times and exonerated the cther

employees who, coincidentally, were white, during three

separate Boards of Inquiry conducted by an unbiased hearing

officer at which Petitioner was represented by his union

officials. See J.A. at 400-01, 426-27. The Boards of Inquiry

and Petitioner's repeated confessions destroyed any causal

link between Mr. Persinger’s investigation and Mr.

Williams’s decision to terminate Petitioner.

The Fourth Circuit’s decision is supported by courts

applying Shager to hold that liability is not imputed to the

employer where the final decisionmaker bases the decision

on an independent investigation because it breaks the link in

the causation analysis. All circuits have found that where the

}2

—

final decisionmaker bases his decision on an independent

investigation, any alleged bias on the part of the supervisor is

insufficient to impute liability on the part of the employer.

See Willis v. Marion County Auditor’s Office, 118 F.3d 542,

547 (7" Cir. 1997) (finding the causal link broken where the

final decisionmaker conducted his own investigation,

including a meeting with the plaintiff, thus making the bias

of the subordinate no longer relevant); Long v. Eastfield

College, 88 F.3d 300, 307 (5 Cir. 1996) (“If [the final

decisionmaker] based his decisions on his own independent

investigation, the causal link” is broken); Wilson v. Stroh

Companies, Inc., 952 F.2d 942, 946 (6" Cir. 1992) (finding

the causal link between the alleged bias on the part of the

supervisor and the final decisionmaker broken where the

decisionmaker conducted an independent investigation);

Collins v. New York City Transit Authority, 305 F.3d 113,

119 (2d Cir. 2002) (finding no causal link between the

alleged bias of a supervisor and the arbitration panel that

terminated the plaintiff after an evidentiary hearing was

held); English v. Colorado Dept. of Corrections, 248 F.3d

1002, 1011 (10" Cir. 2001) (“A plaintiff cannot claim that a

firing authority relied uncritically upon a subordinate’s

prejudiced recommendation where the plaintiff had an

opportunity to respond to and rebut the evidence supporting

the recommendation.”); Stimpson v. City of Tuscaloosa. 186

F.3d 1328, 1332 (11" Cir. 1999) (“{T]he causal link between

[the supervisor’s] animus and her termination is broken by

the [final decisionmaker’s] hearing and independent decision

to actually terminate her.”); King v. Rumsfeld, 328 F.3d 145,

153 (4" Cir. 2003) (Finding evidence related to subordinate

bias irrelevant when the final decisionmaker conducted his

own independent investigation); Llampallas v. Mini-Circuits,

Inc.. 163 F.3d 1236, 1249 (11" Cir. 1998) (finding the “cat's

paw” line of cases inapplicable where the final

decisionmakei met with the plaintiff and gave the plaintiff an

opportunity to explain); Lacks v. Ferguson Reorganized Sch.

Dist. R-2, 147 F.3d 718. 725 (8" Cir. 1998) (failing to

impute liability to employer after a hearing where evidence

13

was heard and no allegedly biased supervisor made any

recommendation regarding final discipline); Vasquez v.

County of Los Angeles, 349 F.3d 634, 641 (9" Cir. 2003)

(dismissing plaintiff's claim where there was no evidence of

nexus between final decision and allegedly biased supervisor

because the decisionmaker conducted an independent

investigation); Cariglia v. Hertz Equip. Rental Corp., 363

F.3d 77, 87 n.4 (1* Cir. 2004) (noting that wheré an

aggrieved employee was given an opportunity to present his

side of the story, a non-decisionmaking subordinate’s alleged

bias would not infect the decisionmaking process).'”

This is especially true where the aggrieved employee

has an opportunity to rebut the charges. See Willis, 118 F.3d

at 547, English, 248 F.3d at 1011, Llampallas, 163 F.3d at

1249. Willis is quite instructive as to how courts apply

Shager. In Willis, 118 F.3d at 547, an employee was

.erminated after the final decisionmaker conducted an

independent investigation and the employee had an

opportunity to explain herself. Id. at 546. The Seventh

Circuit found the “‘cat’s paw” analysis inapplicable as the

record showed the final decisionmaker based his decision on

undisputed evidence of violations and only after the

employee was given an opportunity to defend herself. Id. at

547-48.

The facts in Willis are quite analogous to the

undisputed facts of this case. Here, after Mr. Persinger

conducted the investigation and charged four employees,

three of whom were white, with the exact same offense, see

J.A. at 334-45, three separate Boards of Inquiry were held

where Petitioner was represented by a union official and had

a chance to challenge or contradict the charges. Id. at 346-

47. Rather than exonerating himself, or contesting the

'° See also Foster v. New Castle Area Sch. Dist.. 2004

U.S. App. LEXIS 7447 (3d Cir. 2004) (following Lill and

holding that discriminatory statements by non-

decisionmakers were inadequate to support an inference of

discrimination).

14

evidence demonstrating his guilt, Petitioner confessed three

times to the charges against him and completely exonerated

the other employees charged with stealing overtime. Id. at

120-21, 124-27. Mr. Williams terminated Petitioner based

on an independent and intervening investigation that

included three opportunities for Petitioner to tell his side of

the story and where he gave three separate confessions,

thereby making the “cat’s paw” theory inapplicable to this

case.

Petitioner miscasts the facts of this case to drum up a

circuit court split that, even if it does exist, has no bearing on

the outcome of the case. It is undisputed that Mr. Williams

was the final decisionmaker and that Petitioner put forth no

evidence that Mr. Williams possessed a discriminatory

animus. Id. at 397. Instead, Petitioner attempts to argue that

Mr. Persinger had the discriminatory animus and that his

investigation so tainted the decisionmaking process as to

make Mr. Persinger the actual decisionmaker for Title VII

purposes.'' The facts do not support Petitioner's argument.

The facts demonstrate that Mr. Williams was

“influenced” by Petitioner’s confessions, and not by Mr.

Persinger’s investigation. “Well, it’s--- I don’t mean to

downplay its importance but it’s open and shut. I mean, if

-we’ve got a board that reads like that where the employee

steps forth and takes responsibility, I mean, there’s not much

else to look at.” Id. at 401. As such, all circuits would agree

that Mr. Williams was the “relevant decisionmaker” and that

he was not “influenced” by Mr. Persinger’s investigation, but

rather by Petitioner's repeated confessions and exonerations

of the other employees. Therefore, Petitioner has failed to

demonstrate that a circuit court split exists and that the other

circuits would not concur with the Fourth Circuit’s opinion. — -

'' What is interesting to note is that Petitioner's

repeated confessions confirmed the findings of Mr.

Persinger’s investigation that Petitioner stole overtime.

C. The decision below and Hill are in line with

other circuits and applies a similar causation

analysis.

All circuits, including the Fourth Circuit, find that an

employer can be liable when it bases the employment

decision on a biased supervisor’s actions or

recommendations. Petitioner misreads Hill in order to create

an illusory conflict. While Hill may differ in its articulation

of its approach, it is in line with all other circuits on when it

would hold an employer liable for the bias of a supervisor

other than the final decisionmaker. Petitioner argues that

Hill stands for the proposition that “corporate employers can

shield themselves from liability for a supervisor’s animus or

even institutional discrimination, as long as the company

makes sure the ultimate, formal decision is made by an

oblivious individual with no apparent discriminatory

motivation.” Petition at 15. Petitioner mischaracterizes the

Fourth Circuit’s holding in Hill in order to conjure up a

circuit split, and seeks to do so with an unpublished

disposition with limited precedential significance. See Rule

36(c) of the Local Rules for the Fourth Circuit

In Hill, the Fourth Circuit correctly placed the burden

of proof on the employee to prove that it was the

discriminatory animus of a supervisor that was the principal

reason for the ultimate employment decision. This is correct

because the employee, at all times, has the burden to

demonstrate that the employment decision was based on

intentional discrimination. See e.g., Jiminez v. Mary

Washington Coll., 57 F.3d 369, 377 (4” Cir. 1995). As such,

the standard in the Fourth Circuit for imposing liability based

on a biased supervisor is:

“{Ajn aggrieved employee who rests a discrimination

claim under Title VII or the ADEA upon the

discriminatory motivations of a subordinate

employee must come forward with sufficient

evidence that the subordinate employee possessed

16

such authority as to be viewed as the one principally

responsible for the decision or the actual

decisionmaker for the employer.”

Hill, 354 F.3d at 291.

Under the Seventh Circuit Shager standard, “there

can be situations in which the forbidden motive of a

subordinate employee can be imputed to the employer

because, under the circumstances of the case, the employer

simply acted as the ‘cat’s paw’ of the subordinate.” Willis,

118 F.3d at 547, citing Shager, 913 F.2d at 405. “In sucha

case, a jury may impute the discriminatory motive of the

biased subordinate, as opposed to the motives of the ignorant

decisionmaker, to the compaay.” Id.

The Fourth Circuit’s standard, while exhibiting

grammatical differences from other circuits, applies the same

principles of causation that the Seventh Circuit court uses, as

well as those employed in the other cases cited by Petitioner.

In applying Hill, courts in the Fourth Circuit have applied the

causation analysis to determine whether the acts of the

subordinate will be imputed to the employer. See Sullivan v.

The Cato Corp., 2006 U.S. Dist. LEXIS 14612, *11-12

(D.S.C. 2006); Watkins v. Hospitality Group Mgmt., Inc..,

2004 U.S. Dist. LEXIS 4037, *2-4 (M.D.N.C. 2004)."?

These courts have found that the employer may be liable for

the acts of the subordinate where it was shown that the

subordinate influenced the decision or was “principally

responsible” for the decision, even though another person

made the final decision. Id.

Further, courts applying Hill require plaintiff to make

the same showing as required in other circuits. Compare

ay

'’ Respondent recognizes the limited precedential

value of unpublished opinions. However, Respondent

merely cites to these cases to highlight how the Hill standard

is applied to demonstrate that there is no split among the

circuits.

17

Murray v. United Food & Commercial Workers Union,

Local 400, 2004 U.S. App. LEXIS 11341, *29 (4" Cir. 2004)

(requiring plaintiff to present evidence that supervisor

harbored racial animus and that the animus can be imputed

to the employer) and Lust v. Sealy, Inc., 383 F.3d 580, 584-

585 (7"" Cir. 2004) (applying Shager, finding liability proper

where a biased subordinate’s actions may be imputed to his

employer). Utilizing Hill, the Fourth Circuit finds an

employer liable in the same situations as courts applying the

Shager standard.

Under the Seventh Circuit standard, the employer

may be liable for the actions of the biased supervisor, even

when another makes the formal decision, where the biased

supervisor influenced the decision by manipulating the a

decisionmaking process, see Willis, 118 F.3d at 547, or by

concealing relevant information or feeding false information.

See Lust, 383 F.3d at 585-86, citing Wallace v. SMC

Pneumatics, Inc., 193 F.3d 1394, 1400 "i Cir. 1997).

Applying Hill, the Fourth Circuit also holds that employers

will be liable in similar situations. See e.g., Oleyear v.

County of Durham, 336 F.Supp.2d 512, 517-18 (M.D.N.C.

2004) (finding that if the final decisionmaker merely rubber

stamps the superior’s advice, liability will be imposed on the

employer based on the supervisor’s influence); Campbell v.

Town of Southern Pines, 2005 U.S. Dist. LEXIS 38488, *27

n.6 (M.D.N.C. 2005) (imputing liability to the employer’s

two managers’ recommendations for termination where no

independent investigation was conducted and one of the

managers had made statements threatening retaliation).

Under Hill, the employer will be iiable for the

adverse employment action if that decision was caused by a

biased subordinate. Id. Under Shager, an employer is liable

if the biased subordinate caused the adverse employment

action. See Lust, 383 F.3d at 584. Both the Fourth and

Seventh Circuits apply the same functional causation

analysis to determine whether the unlawful bias of a low-

level supervisor was the proximate cause of the decision

about which the aggrieved employee complains. Therefore,

1%

there is no circuit split on an “important matter” that requires

Supreme Court review and Petitioner’s writ for petition for

certiorari should be denied.

Il. Certiorari should not be granted in this

case because the Fourth Circuit applied the

proper principles of review to sustain the

District Court’s grant of Respondent’s

motion for judgment as a matter of law.

Although Petitioner claims the Fourth Circuit should

have reached a different conclusion concerning whether

there was discriminatory animus, Petitioner is merely

asserting error not involving any lack of decisional

uniformity. A petition for certiorari should show that a

circuit court “has so far departed from the accepted and usual

course of judicial proceedings, or sanctioned such a

departure by a lower court, as to call for an exercise of this

Court’s supervisory power.” Supreme Court Rule 10(a).

On this record, Petitioner cannot demonstrate that the

Fourth Circuit’s opinion deviated from the “accepted and

usual course of judicial proceedings.” Rather, Petitioner

simply disagrees with the Fourth Circuit’s analysis and

application of the standard of review to the facts of his

particular case. Petitioner argues that the Fourth Circuit, and

trial court substituted “their own interpretations of the facts”

for those of the jury. However, the undisputed,

unambiguous facts demonstrate that Petitioner was

terminated as a result of his multiple confessions, and not

because of intentional discrimination. While Petitioner may

not agree with the opinion of the Fourth Circuit, he cannot

overcome his hurdle of having to demonstrate that he

presented credible evidence of discrimination that could

support the jury’s verdict, especially after three independent

tribunals found not a scintilla of proof supporting

Petitioner's allegations.

In affirming the trial court=s order, the Fourth Circuit

applied the correct standard of review. The Fourth Circuit

19

found that “if reasonable minds could differ about the result

in this case, we must reverse the grant of judgment as a

matter of law.” Opinion at 11, citing Bryant v. Aiken Reg’!

Med. Ctrs., Inc., 333 F.3d 536, 543 (4" Cir. 2003).

However, this standard does not mean that jury verdicts are

beyond reproach. “A mere scintilla of evidence 1s

insufficient to sustain the verdict, and the inferences a jury

draws to establish causation must be reasonably probable.”

DeJarnette v. Corning, Inc., 133 F.3d 293, 298 (4" Cir. 1998)

(internal quotations omitted). Courts “are not a rubber stamp

convened mercly to endorse the conclusions of a jury, but

rather have a duty to reverse the [jury’s verdict] if the

evidence cannot support it.” Price v. City of Charlotte, 93

F.3d 1241, 1250 (4™ Cir. 1996).

Here, the Fourth Circuit properly affirmed the trial

court’s reversal of the jury verdict as the evidence does not

support the conclusion that Petitioner was the victim of

intentional discrimination.'> As shown above, Mr. Persinger

conducted a neutral investigation without any discriminatory

animus. He made decisions on who to charge in a neutral

manner, charged each employee with the same violation, and

never recommended different discipline for any employee.

See supra at Section I(A).

Once Mr. Persinger made his charges, the four

employees went before a Board of Inquiry. Id. at 346-47. In

each instance, Pctitioner confessed to stealing overtime and

exonerated the other employees. Id. at 120-21, 124-27.

Based on these confessions, Respondent terminated

Petitioner and meted out lesser discipline to the other

It is interesting to note that Petitioner cites the

Public Law Board’s ruling as proof that Petitioner was not

treated the same as the other employees but fails to cite the

same Public Law Board’s finding that there was “not a

scintilla of credible proof of racial discrimination.” Where a

plaintiff makes such a weak evidentiary showing, granting

judgment as a matter of law is proper. See DeJarnette. 133

F.3d at 298.

20

employees. For the first and only time, and based solely on

his confessions, Petitioner was treated differently than the

other three employees charged with stealing overtime.

Petitioner’s confessions demonstrated that he had

engaged in conduct different from that of the three white

employees. Thus, the Fourth Circuit properly found

Petitioner “was no longer engaged in conduct that “was

comparable in seriousness to misconduct of employees

outside the protected class.’” Opinion at 14, quoting Cook,

988 F.2d at 51i.

The undisputed, unambiguous facts demonstrate that

the Fourth Circuit properly found that “the district court did

not err in granting judgment as a matter of law.”” Opinion at

14. The facts, even when viewed in the light most favorable

to Petitioner, demonstrate that Petitioner failed to

demonstrate that he was terminated based upon his race.

Petitioner failed to satisfy his burden of proof and present

evidence, even when viewed in the light most favorable to

him, that Mr. Persinger conducted an investigation and

charged Petitioner and three white employees with a

discriminatory animus. Further, Petitioner failed to present

evidence to contradict Mr. Williams’ testimony that

Petitioner's own confessions, and exonerations of the other

employees, were the basis for Mr. Williams’ decision to

terminate Petitioner. Therefore, as the Fourth Circuit

_ properly affirmed the trial court’s ruling. this Court should

deny Petitioner’s Writ for Petition for Certiorari and affirm

the ruling of the Fourth Circuit.

CONCLUSION

For the foregoing reasons, Respondent respectfully

requests that the Petitioner’s Petition a Writ of Certiorari

be denied.

Respectfully submitted this ae, day of October,

G0= 5 (ag ae ae

R. . Craig Wood \

McGuire Woods

Court Square Building

310 4" Street, N.E., Suite 300

P.O. Box 1288

Charlottesville, Virginia 22902-1288

(434) 977-2558 (ph)

(434) 980-2274 (fax)

2006.

1, R. Craig Wood, certify that | am a member of the

Bar of the Supreme Court of the United States.

SP Cette

R. Ctaig Wood |

po,

es